1. The court reaffirms its rulings in
Scull v. United
States, 98 U. S. 410, as to
the nature of the title whereon a suit can, under sec. 11 of the
Act of June 30, 1860, 12 Stat. 85, be maintained against the United
States for lands claimed under a grant from the French or the
Spanish authorities in Louisiana.
2. The claim in this cause, founded upon an alleged grant made
at St. Louis by Trudeau, Lieutenant Governor, March 3, 1797,
examined and held not to be within the provisions of that
section.
This was a suit for lands in Missouri brought against the United
States by parties claiming under James Clamorgan, who presented his
petition -- which they filed as an exhibit -- dated at St. Louis,
March 1, 1797, to Don Zenon Trudeau, Lieutenant Governor of Upper
Louisiana, praying there be granted to him on the western side of
the River Mississippi, some leagues above the mouth of the
Missouri, the tract of land bounded on one side by the little river
called Lacharette, alias Dardenne, and on the other by the little
river called Au Cuivre -- one on the south, the other on the north,
will serve as boundaries to those two sides; also sixty arpens of
land in front of the banks of the Mississippi immediately adjoining
the mouth of the first above-named river, Lacharette, in descending
the current of the Mississippi, and again sixty arpens in front,
also, on the banks of the Mississippi, adjoining immediately to the
upper side of the mouth of the second above-named river, Au Cuivre,
and ascending the current of the Mississippi. The depth of the
three different above-described tracts of land to be extended by
two lines starting from the banks of the Mississippi, one from the
most southern and the other from the most northern point (of the
front) of the above-demanded tracts, which two lines shall be run
parallel on each side in a westwardly direction until they reach
the top of the high hills in the rear; and from there the side two
lines to be continued and prolonged in the same westwardly
direction until they reach a point at the distance of about two
hundred
Page 101 U. S. 823
arpens from the foot of said hills, and then those two extreme
points shall be connected together by a straight line which shall
be run so as to form the fourth side of the said three tracts here
above demanded, the said lines encompassing in their extent all the
waters of the above-mentioned rivers, Lacharette, alias Dardenne,
and Au Cuivre, in order that hereafter the petitioner may erect saw
and grist mills thereon, also place there a number of cattle, have
slaughterhouses, and send salt meat to the capital.
The plaintiffs also filed the following papers as exhibits:
"Don Zeon Trudeau, captain in the regiment of Louisiana,
lieutenant-colonel by brevet, and lieutenant-governor of the
western part of Illinois:"
"Cognizance being taken of the statement made by Don Santiago
Clamorgan, and the governor-general, the Baron de Carondelet,
having particularly recommended to me to facilitate and protect the
discovery and commerce of Upper Missouri, in which the above-named
Clamorgan has engaged at my entreaties, considering the losses
which said enterprise has occasioned to him, and the new expenses
to which he shall have to contribute on account of the same
undertaking, and how important it is to favor and extend the
discoveries herebefore mentioned, without prejudice to the royal
treasury, and to the interest and welfare of these settlements,
but, on the contrary, in contributing to their prosperity by
drawing new inhabitants:"
"For these considerations, and on account of the said
Clamorgan's having rendered himself worthy and deserving of the
favors of the government, the surveyor of this jurisdiction (as
soon as the occupations of his place will permit) shall survey in
favor of the party interested the extent of land he solicits in the
way and manner described in the foregoing document, which, together
with the plat and certificate of survey, and of the boundaries
which shall be set (to said land), will form the title of
concession, which in due time he shall have to lay before the
general government of the province, in order to get its approbation
and record."
"ZENON TRUDEAU"
"ST. LOUIS, March 3, 1797"
"ST. LOUIS, July 3, 1797"
"Under date of April 5, of this current year, the
governor-general, Baron de Carondelet, writes to me as follows:
"
Page 101 U. S. 824
"I have read your official note, dated 11th of last March, in
which you state the motives which have induced you to grant to Mr.
Clamorgan the tract of land situated between the two rivers
Charette and Cuivre, both emptying into the Mississippi; also sixty
arpens to the south of said rivers, which serve to determine the
situation of said land, having the Mississippi in front. Two
parallel lines are to be drawn, running in the interior of the
country until they reach at the distance of two hundred arpens
beyond the foot of the first hills, conformably to the solicitation
of the party interested."
"All which I do approve, Clamorgan having deserved this favor
from the government."
"I transmit the same to you for your knowledge and government.
May God have you in his keeping many years."
"ZENON TRUDEAU"
"S'or DON SANTIAGO CLAMORGAN"
Clamorgan filed, at St. Louis, June 27, 1808, notice of his
claim before the recorder of land titles. He filed therewith the
above evidence of title, and presented it to the board of land
commissioners, Nov. 14, 1811. Upon it he claimed five hundred
thousand arpens of land, situate on the Rivers Mississippi,
Dardenne, and Cuivre, District of St. Charles; sixty arpens front
on Mississippi, Charette, and Dardenne, back to the hills about two
hundred arpens, District of St. Charles; and sixty arpens of land
front on the Mississippi, commencing above the mouth of the Cuivre,
up the Mississippi and back to the hills. The board was of opinion
that the claim ought not to be confirmed.
The claim was presented June 21, 1833, by the representatives of
Clamorgan, to the board organized under the Act of July 9, 1832,
for the final adjustment of private land claims in Missouri. 4
Stat. 565. Testimony was taken, and the concession of Trudeau and
his letter to Clamorgan produced. The members of the board, Sept.
26, 1835, recorded their unanimous opinion that the claim ought not
to be confirmed.
The United States filed an answer to the bill in this suit
denying its material allegations and insisting as a bar to the
relief claimed that the lands in question had not at the time of
the cession of Louisiana been severed from the royal domain, the
concession being only inchoate and the description of them
Page 101 U. S. 825
vague, and that the conditions of taking possession --
viz., building mills, slaughterhouses, &c. -- had
never been performed by the claimant. It was admitted that the
claimed lands had been sold or disposed of by the United States.
The district court, upon a final hearing, decreed that the
concession by Trudeau, of March 3, 1797, to Clamorgan, ratified and
confirmed April 5, 1797, by Governor-General Carondelet, was a
title binding on the United States, and that the complainants were
entitled to recover certificates for 94,136 acres, to be located
upon public land subject to private entry.
From the decree the United States and the complainants appealed,
the former assigning for error that the court below erred in not
dismissing the bill and the latter, that the decree should have
been for 675,000 acres.
The remaining facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The decree was that Clamorgan and others recover of the United
States certificates under the sixth section of the Act of Congress
of June 22, 1860, 12 Stat. 85, for 94,136 acres of land, to be
located on any of the public lands of the United States subject to
private entry, in lieu of the original concession by the Spanish
authorities to James Clamorgan, their ancestor, all of the land
embraced in that concession having been disposed of by the United
States. That act, having expired by its own terms, was revived by
the Act of June 10, 1872, and under it this suit was instituted
against the United States in May, 1873. The statute in question was
the subject of very full consideration at the last term in
Scull v. United States, 98 U. S. 410. As we
see no reason to modify the construction then given to it, we
might, but for the very large amount involved, decide the present
suit by a simple reference to that case as the foundation of our
judgment.
The act of 1860 was the latest, as it was intended to be the
end, of a series of statutes for the adjustment of land claims
Page 101 U. S. 826
within the territory ceded to the United States by France, but
to portions of which there were private claims arising under the
French and the Spanish governments during the period of their
respective proprietorship. These claims were in all stages of
progress, from the merest permissive license to occupy to the
perfected grant of a tract identified by surveys and well defined
boundaries.
Immediately upon taking possession of the country, Congress
legislated on the subject, and from that day to the Act of June 10,
1872, 17 Stat. 378, the statute books abound with laws to enable
the claimants to establish their rights.
To that end, several commissions were organized. As they expired
by the terms of the law creating them or by the time limited for
prosecuting claims, they were renewed or others substituted. In
most cases, they were only empowered to hear testimony and report
it to Congress, with an opinion in favor of or against each claim
submitted. In other instances, the courts were vested with
jurisdiction to hear and decide, and summary modes of procedure
were authorized. In all this matter, Congress, whether acting
directly upon the cases brought before it or by statutes conferring
authority on other tribunals to adjudicate them, acted with a
sincere desire to do justice to those who, by the transfer of this
large domain, were remitted to our government for the recognition
of their rights. The treatment of these claimants has been governed
by patience in hearing and rehearing, by extension of time for
presenting claims, by affording repeated opportunities to establish
them, and by that careful regard for every equitable consideration
favorable to claimants which merits the name of generosity rather
than strict justice. It was in this spirit that, after all
jurisdiction over the subject matter had ceased to exist in any
other tribunal, Congress passed the act of 1860, and renewed it for
a short period in 1872.
But over half a century had passed since Congress first created
a tribunal to hear these claims. The system of congressional
surveys had been extended over the ceded territory, and in many
instances the legal title to claimed lands within its limits had
passed by government sales and patents to innocent purchasers, who
therefore held with that title the
Page 101 U. S. 827
superior equity. In liberality, however, towards these dilatory
or unfortunate claimants, that act provided that, whenever a claim
was established under it to lands so sold by the United States, the
successful claimant might select an equal quantity from any public
lands subject to private sale. The latter in many cases, indeed in
far the greater number of them, vastly exceeded in value those to
which the claim had originally attached.
While thus anxious to be both generous and just to this class of
claimants, it may well be supposed, in view of the period which had
elapsed during which they might have established their claims, and
the opportunities which had been given them to do so, that Congress
would impose such limitations on the exercise of the right here
granted as would protect the government against false and
fraudulent claims, supported by forged documents and perjured
evidence, easily procured and difficult of detection and
refutation, by reason of the great lapse of time and the death of
those who were most cognizant of the transaction. We accordingly
find that, with regard to the large body of these claims, Congress
required that after the evidence had been sifted by the registers
and receivers and reviewed by the Commissioner of the General Land
Office, the final confirmation of them should remain with that
body. As we said, however, in
Scull v. United States,
supra, a much more limited and well-defined class of claims
might, at the option of the claimants, be prosecuted in the
district court of the United States whose territorial jurisdiction
included the
locus in quo of the lands. Over a suit thus
brought Congress retained no further control, and the judgment,
subject to an appeal here, was made conclusive. The claimants in
the present case have invoked this alternative, and they must fail
on this appeal if their case does not come within the class of
which that court has jurisdiction, as defined by Congress.
There was excluded from confirmation under this act, either by
the courts or the favorable report of the officers of the Land
Department, any claim which had been theretofore presented for
confirmation before any board of commissioners or other public
officers acting under authority of Congress and rejected as being
fraudulent or procured or maintained by
Page 101 U. S. 828
fraudulent or improper means, or which previous boards had
already twice rejected on the merits.
But aside from this exclusion, the description of the class of
cases in which the district court has jurisdiction to decree
confirmation is found in the eleventh section of the act, which is
copied and construed in the opinion in that case.
We again epitomize that construction:
1. The documents, surveys, possession, or other acts on which
claimant relies must have been completed during the period of the
actual possession of the government, prior to that of the United
States, under which the claim is asserted.
2. The claimant, or those under whom he holds, must have been
out of possession for twenty years or more before the suit is
commenced.
3. The claim must be sustained under a complete grant or
concession from such government, or order of survey duly executed,
or by other mode of investiture of original title in the claimants,
by separation thereof from the mass of the public domain, either by
actual survey or definition of fixed, natural, or ascertainable
boundaries or initial points, courses, and distances, by competent
authority, prior to the cession of such lands to the United
States.
We also said in that case that the action under that statute is
substantially an action of ejectment in which the United States
consents to be a defendant and sued as if in possession and the bar
of the statute of limitations removed.
In the case before us, neither the claimants nor any of their
predecessors in interest were ever in possession of the land. There
was no survey of it under the former government, nor has any yet
been made for the purpose of locating the grant. There has never
been any separation of it from the public domain, nor any attempt
to separate it.
Is there any such definition of fixed, natural, ascertainable,
boundaries, with courses and distances, in the supposed concession
as will identify the land so as to make this separation?
As we have already said, no attempt has been made to make an
actual survey which would establish an answer to this question. A
sufficient reason for this may be found in the following extract
from the decree itself:
Page 101 U. S. 829
"And the parties to the above suits having by stipulation and
agreement of record referred to the court six plans or maps
representing different modes of locating said concession, . . . and
the quantities of land represented by said plans having now been
determined and reported to the court by a sworn expert, . . . it is
ordered and decreed that the plan marked 'I' truly represents the
lands conceded to Jacques Clamorgan."
The quantity of land embraced in the largest of these plans is
estimated by this expert at 1,810,240 acres, and in the one adopted
by the court, at 94,136 acres, the former quantity being nearly
twenty times as much as the latter. The expert testifies that the
estimate is as accurate as can be made in the absence of an actual
survey in the field. And yet the claimants who appeal to this Court
in order to get the largest of these amounts did not even attempt
to make an actual survey of the concession, which, if they are
correct, is occupied by a highly civilized and thickly settled
population, and there is no difficulty in making such survey other
than what is found in the descriptive language of the grant. It is
reasonable to suppose that that difficulty was known to be
insurmountable, and this is confirmed by the irreconcilable
differences of the conjectural plats, on which the government is to
be calculated out of land scrip worth over $2,000,000. That the
selection of one of these plats, almost at hazard, is to be made
the foundation of the judgment of the court is directly opposed to
the construction which this court has given to the section of the
act under which it exercises this jurisdiction.
But if we examine the description afforded by this supposed
concession for ourselves, we must arrive at the same conclusion.
The only description is that found in Clamorgan's petition asking
Lieutenant-Governor Trudeau for the concession. The two rivers
therein mentioned, and the points where they respectively enter the
Mississippi, are known or ascertainable. So also, it is clear there
could be ascertained the points sixty arpens above the mouth of the
one, and as many below the other. But the point mentioned as the
top of the high hills in the rear, in a westerly direction, is not
known, and cannot be ascertained from any evidence in this
record.
Page 101 U. S. 830
It is also clear from the plats presented to us that any two
lines drawn west or westerly from points on the Mississippi River,
sixty arpens north and south of the mouths of the Lacharette and Au
Cuivre, parallel to each other, would cross one or both of those
rivers, and leave a large part of the land lying between them out
of the survey. Nor is any attempt made to identify the high hills
or two hundred arpens from the foot of said hills, where the line
shall be drawn which is to close the survey by connecting the two
lines first mentioned.
In short, without elaborating this matter as we did in Scull's
case, it is apparent that when Clamorgan presented his petition,
and undertook to describe the land which he sought to obtain, he
had no knowledge of the ascending course of the two streams he
mentioned, nor of the hills, if there were any, west of the
Mississippi, nor of any thing else probably but the bottom lands
adjoining that river.
If the survey which the Spanish manner of granting public lands
required, and which the order of Lieutenant-Governor Trudeau
required in this case, had been made, these mistakes would have
been corrected, and the final concession from Governor Carondelet,
who alone could make such a grant, would, either in that document
or by reference to the executed survey, have given a sufficient
description. In
Scull v. United States, there was an
attempt to supply the want of an actual survey by what the royal
surveyor called "a figurative plan," and on this Governor
Carondelet issued the final grant.
But in the present case, there was neither an actual survey, nor
a figurative plan, nor a final concession. We have already shown
that the description in the petition of the original claimant is
not such as to enable any one to identify the land or make a
definitive location of it.
That we do not attach more importance to this want of a
sufficient description of land granted than Congress intended, may
be seen by a reference to the third class of sec. 3 of the act, in
which Congress directs the land officers to include
"all claims which, in their opinion, ought to be rejected,
whether from defect of proof, suspicion of fraud based on probable
ground,
uncertainty of location, vagueness of description,
or any other cause sufficient in their opinion to justify such
rejection. "
Page 101 U. S. 831
Obviously, even before this board, which was only to report to
Congress, uncertainty of location and vagueness of description were
held to be sufficient grounds for their rejection of the claim.
Much more is it a good ground in a judicial proceeding, under the
limitations of the act which we have considered as binding the
court.
Two other serious exceptions are taken to claimants' title to
recover.
It is said that there was no completed grant made by the Spanish
government; because Governor Carondelet, who alone could make such
a grant, has not done so.
It is certainly open to grave doubt whether the extract from a
letter of Carondelet to Trudeau, in which, among other things, he
expresses his approval
of the motives of Trudeau in making
the order of survey in favor of Clamorgan, can be construed into an
official act, which amounts to a grant, at a time when no survey
had been made, nor any reason given for not making it.
So, also, the petition of the present claimants in the district
court in this suit shows that this claim was before different
tribunals under the several acts on that subject, and was reported
against in both instances, and that this was long ago.
Counsel for the government insist with much force of argument
that the claim was thus "
twice rejected on its merits,"
within the meaning of the statute under which we are now
proceeding. But we do not think it necessary to examine either of
these points critically, because we are satisfied that, on the
first ground we have discussed, the case comes within
Scull v.
United States, and is not so well supported as that was in the
matter on which it was decided.
This renders unnecessary the consideration of the appeal of the
claimants.
The decree of the district court will therefore be reversed, and
the case remanded with directions to dismiss the petition on the
merits, and it is
So ordered.
