Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1903-09-18
Important Questions Relative
Thereto Passed Upon by Ter
ritoriaI Supreme Court.
OPINION BY MCF|E, A. }.
Taxes Must Be Paid On Spansh-Mexi-
can Land Grants Even Though
Not Patented.

down by Associate JUSTICE y. H. wv
Fie, in the Supreme court OF the Ter
ritory of New Mexico during the jan
uary term, in the case OF the Terri
tory of New Mexico, appellee, versus
the Persons, Real Estate, Lands and
Property described in the delinquent
tax list of the county of Bernalillo, for
the year 1901 and concurred in by
Chief Justice w. Mills, Associate
Justices Frank w. Parker and Ben1a-
min S. Baker The appeal coming
from the District court of Bernalillo
County.
The opinion is one of general inter
est and Importance, because it passes
upon the question as to whether lands
embraced in a perfect Spanish-Mexi-
can land grant are subject to taxation
in the Territory of New Mexico, not
withstanding the fact that the grant
has been submitted for confirmation
by the court of private land claims,
and patent has not been issued.
The opinion of Associate Justice
McFie, in which Chief Justice Will
lam J. Mills and Associate Justice
Frank w. Parker, concur, holds that
such grants are subject to taxation.
Statement of the Case.
This is a proceeding instituted un-
der the Territorial tax statute to Sc
cure judgment for the taxes levied
upon the Ojo del Borregos grant in
Bernalllo County for the year 1900.
The complaint was filed on October
-, 1901, and on November -, 1901,
Elizabeth E. Longwell and other heirs
at law of Robert H. Longwell, de-
ceased, all claiming an interest in the
premises, filed an answer setting up
the fact that said land was granted
to one Nerio Antonio Montoya on the
17th day OF March, 176S, by the Cover
nor and Captain of what was
then the Spanish province of New
Mexico; that said grant had been
confirmed by the court of private land
claims; that a survey had been made
pursuant to said confirmation and said
survey had been duly approved by that
court, but that no patent had issued at
SAAS
es in question, and that defendants
had not at that time paid the one-hal1
of the cost of survey, which payment.
section 10 of the land court act, 26
st. 1854, make prerequisite to the is
suance of patent. 1t is claimed by the
defense in the answer that until the
payment of said expenses and the is
suance of patent, the legal title to the
lands embraced within the grant re-
mained vested in the United States,
and such lands were not a proper sub
iect of taxation, and that the assess
ment for taxes was illegal and void.
The Territory through it's district at
torney, demurred to this answer upon
the ground that it raised no defense
to the proceeding. The demurre'
was sustained, and defendants elect
ing to stand upon their answer, judg-
ment was rendered in favor of the Ter
ritory for the taxes levied together
with penalties and costs amounting in
all to $20357 Thereupon the defend
ants prosecuted this appeal.
Opinion Of the Court.
McFie, j.:
1t is admitted in the briefs filed by
counsel for each of the parties, that
the Ojo del Borrego grant was con-
firmed by the court of private land
claims, as a perfect and complete
grant; and, while there is contrary
allegation in the answer, it is admit
dofo
brief in this court that at the date o.
the assessment complained of, the Of
fetal survey of the grant had been
made under the decree of confirma-
ton. and tnat at this date said survey
had been approved by the court OF
private land claims. These admis-
sions reduced the present case to a
single question, and that is whether
or not taxes may be collected upon
perfect grant, confirmed by the court.
where such grant Ito quote from the
brief of appellant) had at the timo
of the assessment, for purposes OF
taxation been surveyed and the survey
thereof approved by the said land
grant, but were patent therefor had
not issued and the confirmee had not
paid one-half (1s) OF the expenses in
Cured in making tAe survey and plat
provided for by section 20 of the act
of Congress, approved March 3. 1891"
In other words, does the mere failure
to pay these expenses and take out
patent, preclude the assessment OF
taxes upon a perfect grant. when at
the date of such assessment the grant
had been confirmed, officially surveyed
and such survey been approved by the
court of private land claims. The So
luton of this question does not seem
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