Slidell v. GrandjeanAnnotate this Case
111 U.S. 412 (1884)
U.S. Supreme Court
Slidell v. Grandjean, 111 U.S. 412 (1884)
Slidell v. Grandjean
Argued January 2, 1884
Decided March 3, 1884
111 U.S. 412
APPEALS FROM THE CIRCUIT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT OF LOUISIANA
In an order by a Spanish Governor of Louisiana recognizing an Indian grant and directing the issue of "a complete title," these words, as translated, refer to the instruments which constitute the evidence of title, and not to the estate or interest conveyed.
It was a usage of the Spanish government, in granting lands on the river, to reserve lands in the rear of the grants to the depth of forty arpents, the
grantee of the riverfront having the preference right to purchase the reservation.
Usages and customs respecting the alienation of lands prevailing in Louisiana previous to its acquisition by the United States have to a great extent the efficacy of law, and are to be respected in considering the rights of grantees of the former government.
When established, such usages and customs control the construction and qualify and limit the force of positive enactments.
The original Houmas grant in Louisiana from the Indians, on the 5th of October, 1774, had a defined length on the River Mississippi, and designated coterminous proprietors to the north and to the south, but no depth to the grant was named. The Spanish Governor executed a formal grant of the tract, describing it as of the common depth of forty arpents. Two years later, on the petition of the grantee, the governor directed his adjutant to give the petitioner the land which might be vacant after forty arpents in depth. This was done by a survey running the northern and southern boundaries on courses from the Mississippi for forty arpents and for two arpents additional. Held that, in view of the Spanish usages and of the action of the Spanish authorities and of the action of Congress and of United States officials, all of which are referred to, the concession extended in the designated courses to the depth of eighty arpents from the river.
In case of doubt, a legislative grant should always be construed most strongly against the grantee.
When a statute authorizes the creation of a commission of three to decide upon land grants, a majority of whom "shall have power to decide," "which decisions shall be laid before Congress, . . . and be subject to their determination," their decisions have no binding force until acted upon by Congress.
An act confirming "the decisions in favor of land claimants made by" A, B, and C, reciting their names, does not confirm a decision made by A and B and dissented from by C, although the act under which the commission was created provided that a majority of the commissioners should have power to decide.
A legislative confirmation of a grant of land of which no quantity is given, no boundary stated, and no rule for its ascertainment furnished is void for uncertainty. The distinction between such a confirmation and that passed upon in Langdeau v. Hanes, 21 Wall. 521, pointed out.
These suits, which involved the validity of the titles to land in Louisiana under what is known as the Houmas grant, were heard together. The court below held that that grant was limited to a depth of 40 arpents from the river. The claimants under the grant appealed from this decision in three of the cases and brought their writ of error to reverse the fourth. The voluminous facts, action of Spanish authorities, action of Congress, action of United States authorities, decisions of commissions,
and decisions of courts which go to make up the issues or bear upon them are fully set forth in the opinion of the Court.
On the argument of these cases the contention of the plaintiffs was that the grant of Governor Galvez to Maurice Conway, on the 21st of June, 1777, embraced all the land in the rear of the original grant to him and Latil by Governor Unzaga in November, 1774, included within the boundary lines of that grant extended to the limits of the possessions of the Spanish Crown. In support of that contention, reliance was placed upon the report of the commissioners appointed under the act of Congress of 1805, the plats of the surveyor Lafon and the alleged confirmation by the Act of June 2, 1858. We held that the grant of Galvez derived no aid from these sources, but must depend for its extent upon the language of the concession and the proceedings of the adjutant Andry in establishing its northern and southern boundaries, and that it was therefore limited to two arpents in the rear of the original grant.
The plaintiffs ask a rehearing, contending that if they are not entitled to the land claimed under the report of the commissioners construed by reference to the plats of Lafon and the confirmatory Act of June 2, 1858, they are entitled by virtue of the concession and accompanying report of Andry construed in accordance with the usages of the country, having the force of law, to forty arpents, the quantity alleged to be the amount intended in the absence of specific designation to be ceded in
cases of grants in the rear of the land of proprietors on the river, thus giving to the two grants an extent of eighty arpents from the river. And the plaintiffs have presented so may considerations in support of this view, that the court will receive arguments from counsel upon this point, to be in writing and filed within two weeks from date. The clerk will give to the counsel of the plaintiffs and to the Attorney General a copy of this memorandum.
Mr. JUSTICE FIELD announced the following order:
Of these suits the first three are in equity; the fourth is at law. They were argued together, as they are all founded upon the supposed validity of the plaintiffs' title to the Conway division of the Houmas grant in Louisiana beyond the depth of eighty arpents from the Mississippi River. If their title beyond that depth be sustained, other questions will arise for consideration, but if that fails, those questions will be unimportant. The Houmas grant is famous in the history of land titles in Louisiana from the protracted controversy in the Land Department to which it gave rise and the discussion created in Congress by the attempt made to secure its legislative confirmation. The documents to which our attention has been called as sustaining the pretensions of the plaintiffs, or in opposition to them, are scattered through many volumes. They consist of the original proceedings and concessions under the Spanish government; the orders of the territorial governor and certificates of a local surveyor after the cession of the country to the United States; the proceedings of the board of commissioners created by Congress to examine into and report upon land
claims in that territory; various petitions to the officers of the Land Department, and their reports thereon; the opinion of the Secretary of the Treasury and of the Attorney General upon the nature and extent of the grant, and the proceedings of Congress in passing an act of confirmation and subsequently repealing it. We shall endeavor to condense the history of the grant and of the various proceedings taken with reference to it into as narrow a compass as possible.
On the fifth of October, 1774, while Louisiana was under the dominion of Spain, certain tribes of Indians known as the Houmas and Bayou Goula tribes, had possession of certain land situated on the left bank of the Mississippi River about twenty-two leagues above New Orleans, and claimed some interest in it the extent and nature of which are not given. Whatever that interest may have been, the Indians sold it on that day to two persons by the name of Maurice Conway and Alexander Latil for the consideration of $150. A conveyance of that date, executed at New Orleans before a notary public by one Calazare, describing himself as chief of the tribes, appointed such by the governor of the province, recites that the tract had once belonged to a Frenchman, that he had sold it to another Frenchman, who had abandoned it, and that afterwards, being vacant, the two Indian tribes fixed their residence upon it by permission of the governor. The chief, on behalf of the Indians, renouncing whatever rights they possessed, ceded the land to the purchasers, and stipulated that after obtaining the permission of the governor, they might possess it as absolute owners; that a copy of the instrument should be presented to that officer for his approval, without which they could not be permitted to take possession. It would thus seem that the right of the tribes was one of mere occupancy at his will, and that the title at the time was in the Spanish crown. On the same day, Unzaga, the governor of the province, approved the instrument thus executed and, in pursuance of the authority vested in him, granted the land to the purchasers, directing them, however, to apply to him in order that full title papers -- a complete title, as the language used is translated -- might be issued to them. The words translated "a
complete title" refer, however, only to the instruments which constitute evidence of title, and not to the estate or interest thereby conveyed. De Haro v. United States, 5 Wall. 599.
The land granted is described in the conveyance of the Indians as a tract
"measuring upwards of half a league at the distance of twenty-two leagues from this city, on this side of the river, joining on the upper side lands belonging to John the Blacksmith, and on the lower side the place where are erected the huts in which the said two nations of Indians now live; but when the said huts will be taken away, to be transported on the other side of the river, the true boundary on the lower side will be the lands belonging to an old Acadian named Peter; so by the measurement which the said purchasers will make of the said tract of land, according to the said boundaries, its exact contents will be ascertained."
It will be perceived from this description of the land that no depth is given. On the first of November following, the governor executed to the purchasers a formal grant describing the tract as having "the common depth of forty arpents." The tract was thus rendered susceptible of identification and measurement. Its front bordered on the river; its side lines were determinable by adjoining tracts, and it was of the depth mentioned. When grants fronting on the river were made by the Spanish government, it was customary to reserve, to the depth of forty additional arpents, the lands immediately in the rear, to be used by the front proprietors for pasturage, or to obtain timber for fences or for fuel. The law on this subject which prevailed in the province is very clearly and distinctly stated by Mr. Justice Catron in delivering the opinion of this Court in Surgett v. Lapice, 8 How. 48, 49 U. S. 66. He says that
"the grants were not large, and fronted on the river only to the extent of from two to eight arpents as a general rule, and almost uniformly extended forty arpents back; to these front grants the Spanish government reserved the back lands to another depth of forty arpents, and although few if any grants were made of back lands in favor of front proprietors, still they were never granted by the Spanish government to any other proprietor, but used for the purpose of obtaining fuel and for
pasturage by the front owners, so that, for all practical purposes, they were the beneficial proprietors, subject to the policy of levees and of guarded protection to front owners. We took possession of Lower Louisiana in 1804 [December, 1803]; in 1805, commissioners were appointed, according to an act of Congress, to report on the French and Spanish claims in that section of country, and by the Act of April 21, 1806, it was made a part of their duty"
"to inquire into the nature and extent of the claims which may arise from a right, or supposed right, to a double or additional concession on the back of grants or concessions heretofore made,"
previous to the transfer of government,
"and to make a special report thereon to the Secretary of the Treasury, which report shall be by him laid before Congress at their next ensuing session. And the lands which may be embraced by such report shall not be otherwise disposed of until a decision of Congress shall have been had thereon."
"The commissioners were engaged nearly six years in the various and complicated duties imposed on them, and then reported that, by the laws and usages of the Spanish government, no front proprietor by his own act could acquire a right to land further back than the ordinary depth of forty arpents, and although that government invariably refused to grant the second depth to any other than the front proprietor, yet nothing short of a grant or warrant of survey from the governor could confer a title or right to the land; wherefore they rejected claims for the second depth, as not having passed as private property to the front proprietor under the stipulations of the treaty by which Louisiana was acquired."
On the 9th of September, 1776, nearly two years after obtaining the grant, Conway presented a petition to the governor stating that he was about to settle on the lands which he and Latil had purchased of the Indians; that he had acquired Latil's interest; that the lands were destitute of fences, and were cleared for upwards of a league in depth in "such a manner" that the cypress trees might be "about a league and a half from the river," and that as the grant extended only forty arpents, he could not have access to them to obtain timber for
his fences and other uses of his plantation. He therefore prayed the governor to grant him all the depth which might be vacant at the end of his forty arpents, and that Louis Andry, the governor's adjutant, might be appointed to put him in possession of the front and depth "by fixing the needful boundaries" and furnishing him "with copies of the whole transaction" for his "use and guidance." Upon this petition, the governor directed Andry to go upon the land and give the petitioner possession of that which might be vacant after the forty arpents in depth, and to make a report of his proceedings -- a process verbal, as it is termed -- in order that full title papers -- "a complete title" in the translation -- might be issued to the claimant.
In October following, this order was executed by Andry. He went upon the land and first measured its front v. on the river and ascertained it to be ninety-six arpents. Owing to its situation on a bend of the Mississippi, the tract widened as it receded from the river. He then ran the upper line north fifty degrees west to the depth of forty arpents from the river, "opening for that purpose a road through the woods," and placed there a stake of cypress. He then extended the line two arpents more, and placed another similar stake. He then proceeded to draw in the same way the southern line of the grant, running it north seventy degrees east, going for that purpose a part of the distance through woods, and placing a boundary stake of cypress at the depth of forty arpents, and also at the further depth of two arpents more, "in order," as he stated, "to keep the course." Of his proceedings on this survey Andry made a detailed report.
On the 21st day of June of the following year, Galvez, the successor of Unzaga as governor of the province, made to Conway a grant of the land thus surveyed. In the instrument executed by him, he recites that he had seen the report of the proceedings of the adjutant of the town relating to the possession given to Conway, pursuant to the order of his predecessor, "of all the vacant land lying behind and in the rear of the first forty arpents" which he then possessed "by ninety-six arpents in front on the river," and that the adjutant had followed the
directions (lines extended) of the original concession, and that these conformed to the rules of survey and to the concessions of adjoining proprietors. He thereupon approved of the proceedings of the adjutant and granted to Conway "the aforesaid land behind or at the end of the forty arpents which contain his plantation."
These are all the papers relating to the title to the Houmas grant, executed by the authority of the governor of the province while it belonged to Spain.
As no back line is designated to the second grant, its dimensions must be found, if at all, in the limitation to such grants imposed upon the authority of the governor by positive law or established usage. As seen from the opinion of the court in Surgett v. Lapice, it was the invariable custom of the Spanish government to reserve lands in the rear of grants on the river, to a depth of forty arpents, for the use of the front proprietors. They were always regarded as having a preference right to become the purchasers of those lands; they were never granted to other parties. So well established was this rule in the usages of the province that it was deemed by our government, after the acquisition of the country, to create in the front proprietor an equitable right to such preference. Accordingly, Congress, by the Act of March 3, 1811, provided that every person who owned "a tract of land bordering on any river, creek, bayou, or watercourse" in the Territory of Orleans, and not exceeding in depth forty arpents, French measure, should be
"entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to and back of his own tract, not exceeding forty arpents, French measure, in depth, nor in quantity of land that which is contained in his own tract,"
at the price and on the terms and conditions prescribed for other lands in the territory. The usage of the country determined the depth of these grants of land in the rear of the premises of the front proprietors. In Jourdan v. Barrett, this Court, speaking of these concessions, said:
"That back lands at all times meant those in the rear between the extended front lines in the rear, to the distances of forty arpents (each line being a straight one throughout), we
suppose to be undoubted as a general rule, although there may have been exceptions to it."
By reason of this usage, it was only deemed essential, in surveying the second concession, to mark the courses of the upper and lower lines of the tract, the other boundaries being readily ascertained, one by the rear line of the original grant and the other by a line drawn at a distance of eighty arpents from the river. This practice of surveyors is abundantly established by the documents accompanying the proceedings of Congress, or of its committees, with respect to the Houmas grant.
The usages and customs prevailing in the province of Louisiana affecting the alienation of lands are to be respected in considering the rights of grantees of the former government. Usages long established and followed have, to a great extent, the efficacy of law in all countries. They control the construction and qualify and limit the force of positive enactments. In Spain and in her dependencies, great weight is given to such usages in the adjustment of rights of property. "Legitimate custom," says Escriche,
"acquires the force of law not only when there is no law to the contrary, but also when its effect is to abrogate any former law which may be opposed to it, as well as to explain that which is doubtful. Hence it is said that there may be a custom without law, in opposition to law, and according to law."
Escriche's Derecho Espanol 23-24; Panaud v. Jones, 1 Cal. 499.
In United States v. Arredondo, this Court, in considering a grant of land in Florida made by the King of Spain, said:
"The court not only may, but are bound to, notice and respect general customs and usage as the law of the land equally with the written law, and, when clearly proved, they will control the general law."
Looking at the grant of Galvez and the survey of Andry in the light of the usage prevailing in the province, we have no difficulty in fixing its limits. It was for an additional forty arpents in the rear of the original concession, the lines of that concession being extended in the same course to the depth of eighty arpents from the river. To that extent, the grant was complete. Had the holders of it confined their claim to the
land thus limited, there would not probably have been much, if any, controversy with the United States.
But owing to the use of the words "all the vacant land" lying in the rear of the forty arpents in the recital of the grant, a pretension was set up, after the cession of the country to the United States, that the grant covered all the vacant land within the lines of the original concession extended to the limits of the possessions of the Spanish crown. This pretension was so obviously preposterous that it would not merit consideration but for the bitter and protracted controversy to which it gave rise. The petition, by Conway, for a grant of the land in the rear of his forty arpents, though asking for all the depth which might be vacant, was made simply to secure all such land to the ordinary and well understood depth of forty additional arpents, from which he might obtain timber for fuel, fences, and other uses of his plantation. The object of reserving from grant to others the land in the rear of proprietors on the river, according to the custom obtaining in the province, was, as before stated, simply to give facilities to them in the use and improvement of their river plantations. The original concession to Conway and Latil embraced less than 4,000 acres. The land claimed under the second grant to Conway exceeds 180,000 acres, an augmentation for a timber privilege which could never be allowed except upon the clearest language, admitting no other reasonable construction. The words of the recital in the grant are necessarily controlled by the usage of the country, which limited the extent of such second grant, as already mentioned. If not thus limited, no means existed for ascertaining its extent, and it was therefore void for uncertainty. The conjectural estimate of the distance of the cypress trees, stated to be, owing to the manner in which the lands were cleared, about a league and a half from the river, is too vague to affect the boundaries of the grant against the force of the general usage. In the Spanish law, as at the common law, grants furnishing no available means of identifying the land were necessarily inoperative and void. If the instrument executed by the governor was intended to transfer all the lands between the boundary lines of the original grant,
extended indefinitely whenever, as alleged in the complaint, it might "suit the convenience or interests" of Conway, it was a void act. He possessed no such unlimited authority to alienate the public lands of Spain.
The Territory of Louisiana was ceded by Spain to France in October, 1800, and by France to the United States on the 30th of April, 1803. It was formally transferred on the 20th of December following. It was stipulated by the treaty of cession that the inhabitants should be incorporated into the Union and admitted as such, as soon as possible, to the rights of citizenship, and that in the meantime they should be maintained and protected in the free enjoyment of their liberty, property, and religion. The stipulation as to property has been held to embrace all titles to lands, whether legal or equitable, perfect or imperfect. In Soulard v. United States, this Court said it
"comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract -- those which are executory as well as those which are executed. In this respect, the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away."
After the cession in April, 1803, Congress, in anticipation of the delivery of the territory, passed the Act of October 31, 1803, to enable the President to take possession of it and for its temporary government. The act provided, among other things, that until the expiration of the then existing session of Congress, unless provision for the temporary government of the territory should be sooner made, the military, civil, and judicial powers, exercised by the officers of the existing government, should be vested in such person or persons, and should be exercised in such manner, as the President might direct for maintaining and protecting the inhabitants of Louisiana in the full enjoyment of their liberty, property, and religion. Under this law, the President appointed William C. C. Claiborne, of Mississippi, Governor of Louisiana. Soon afterwards a petition was presented to him by William Donaldson, William Marriner, and Patrick Conway for a survey of the
land known as the Houmas, they representing themselves to be its owners and stating that they were desirous of ascertaining its outlines and boundaries with such precision as to avoid any interference with the proprietors of neighboring grants, and thereby prevent disputes, and praying that he would permit William Marriner, or such other person as might be appointed for that purpose, to survey the tract and mark the boundaries, and that he would direct the proprietors of adjoining patents to show their boundaries to the surveyor, and the commander of the district to protect him from unlawful disturbance in the prosecution of his work. Upon this petition, the governor made the following order:
"The proprietors of land adjoining the tract within mentioned are requested to show their respective boundaries, and the commandant of the district, if necessary, will extend to the surveyor his protection."
The petition and order are without date, and it does not appear what was done, if anything, under the order except what may perhaps be inferred from a plat of a survey subsequently prepared by one Lafon in 1806 and filed with the register of the land office with notice of the claims of Conway and others. Of this plat we shall presently speak. It is assumed in the bill of complaint and in the argument of counsel that the survey was made under the authority of the governor by persons appointed by him for that purpose, and that the tract was subdivided by them into three separate parcels, designated after those who at the time had become owners thereof, the first or northern one of which being called the Donaldson and Scott tract, the second or middle one the Daniel Clark tract, and the lower or southern one the William Conway tract.
On the 26th of March, 1804, Congress passed an act dividing Louisiana into two territories, one of which was called the Territory of Orleans, the other the district of Louisiana. The former territory embraced the land covered by the Houmas grant. The act provided for a government for each of them. The fourth section prohibited the governor from interfering with the primary disposal of the soil or with claims to land within it. 2 Stat. 283, 287. On the 2d of March, 1805, Congress passed an act for ascertaining and adjusting the titles and
claims to lands within the territories. 2 Stat. 324. It provided that the Territory of Orleans should be divided into two districts in such a manner as the President should direct, for each of which a register was to be appointed. The two districts into which the territory was accordingly divided were termed the Eastern and Western Districts. The Houmas grant was in the Eastern District. The act permitted persons claiming lands in the territories
"by virtue of any legal French or Spanish grant made and completed before October 1, 1800, and during the time the government which made such grant had the actual possession of the territories,"
and required persons claiming lands by virtue of a registered warrant or order of survey, or by any grant or incomplete title bearing date subsequent to October 1, 1800, to deliver before March 1, 1806, to the register or recorder of land titles of the district a notice stating the nature and extent of their respective claims, together with a plat of the tract or tracts claimed, and to deliver to such officer for record the written evidence of their titles, which were to be recorded by him, except where lands were claimed under a complete French or Spanish grant; it was only necessary to record "the original grant or patent, together with the warrant, or order of survey, and the plat." Their evidence or deeds were to be deposited with the register or recorder, to be laid before the board of commissioners, for the creation of which the act also provided. It declared that two persons, to be appointed by the President for each district of the Territory of Orleans, should, together with the register or recorder of the district, be commissioners for the purpose of ascertaining, within their respective districts, the rights of persons claiming under any French or Spanish grant or by the incomplete titles mentioned. The board, or a majority of its members, was authorized to hear and decide in a summary manner all matters respecting the claims presented to them; to administer oaths, compel the attendance of witnesses and the production of the public records in which grants of land, warrants, or orders of survey, or other evidences of claims to land, derived from the French or Spanish governments were recorded; to take transcripts of them or any part
of them, and to have access to all other records of a public nature relating to the granting, sale, or transfer of land, and to decide in a summary way, according to justice and equity, on all claims filed with the register or recorder, in conformity with the act, and on all complete French or Spanish grants, the evidence of which, though not thus filed, might be found on the public records of such grants, and that their decisions should be laid before Congress and be subject to its determination.
For this latter purpose, the clerk of the commissioners was required to prepare two transcripts of the decisions in favor of the claimants, each to be signed by a majority of the commissioners, one of which was to be transmitted to the surveyor general of the district and the other to the Secretary of the Treasury. And the commissioners were required to make to the secretary a report of the claims rejected, with the evidence offered in their support, and he was required to lay the transcripts and reports before Congress at its next session. Under the act, the claimants of the Houmas tract delivered to the register of the land office at New Orleans notices of their respective claims to the land which they asserted was covered by the grant to Maurice Conway made by Governor Galvez, June 21, 1777; Donaldson and Scott to the upper subdivision, Daniel Clark to the middle subdivision, and William Conway to the lower one. Each of these claimants deduced his title from Maurice Conway, and accompanied his notice with a plat of a survey by one Lafon, to whom reference is made above. These plats do not purport to have been prepared entirely from his own surveys, but chiefly by reliance upon the surveys of others. In the certificate given to Donaldson and Scott, which bears date December 28, 1804, he describes himself as a surveyor commissioned by Governor Claiborne, though not for any particular survey, and certifies to the plat from a survey made by Marriner and from measurements by himself on the River Iberville. In the certificate given to Daniel Clark, which bears date September 25, 1805, he certifies from surveys of Marriner and measurements of his own on the River Amite and environs of Galveston, a village on that river. In the
certificate to William Conway, which bears date February 20, 1806, he describes himself as deputized by one Isaac Briggs, surveyor general of lands south of Tennessee, and certifies to the plat from surveys executed by Andry in 1804, and by himself on the River Amite in 1803. These plats cover all the land embraced within the lines of the original purchase by Conway and Latil from the Indian tribes in 1774, extended back not only so as include the additional arpents surveyed by Andry in 1776 and granted by Governor Galvez in 1777, but all the lands beyond these to the limits of the Spanish possessions, several miles distant from the river, and embracing over 180,000 acres. They possess no official character, and have no greater effect as evidence than any private surveys made at the request of claimants. The notices of the claims thus delivered to the register of the land office were by him laid before the board of commissioners. The board confirmed the claims, following in its decree the description of the land given by the claimants, but not referring to the plat of Lafon. The notice of the claim of William Conway was presented to the board February 28, 1806, and is as follows:
"Notice of the Claim of William Conway, of the County of Acadia, in the Eastern District of the Territory of Orleans."
"William Conway claims a tract of land situated in the county aforesaid at the place called Houmas, on the left bank of the Mississippi, containing twenty-two and a half arpents in front on said river, with an opening toward the rear of 60 degrees and 45 minutes, the upper line running N. 9
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