Chouteau's Heirs v. United States
34 U.S. 137 (1835)

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U.S. Supreme Court

Chouteau's Heirs v. United States, 34 U.S. 9 Pet. 137 137 (1835)

Chouteau's Heirs v. United States

34 U.S. (9 Pet.) 137

APPEAL FROM THE DISTRICT COURT OF THE

UNITED STATES FOR THE DISTRICT OF MISSOURI

Syllabus

A concession of land was made by the Lieutenant Governor of Upper Louisiana at the time when the power of granting lands was vested in the governors of provinces. This power was, in 1799, after the concession, transferred to the intendant general, and after this transfer, in January, 1800, the order of survey of the land was made by the lieutenant governor. The validity of the order of survey depends on the authority of the lieutenant

governor to make it. The lieutenant governor was also a subdelegate, and as such was empowered to make inchoate grants. The grant was confirmed.

The transfer of the power to make concessions of lands belonging to the royal domain of Spain, from the governor general to the intendant general, did not affect the power of the subdelegate, who made this concession. The order in this case is the foundation of title, and is, according to the act of Congress on the subject of confirming titles to lands in Missouri, &c., and the general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property, capable of being alienated, of being subjected to debts, and is as such to be held as sacred and inviolate as other property.

On 18 May, 1829, the following petition, with the documents therein referred to, was presented by the appellants to the District Court of the United States for the District of Missouri.

"To the Honorable the District Court of the United States for the District of Missouri."

"The petition of Auguste A. Chouteau, Gabriel Care Chouteau, Henry Chouteau, Edward Chouteau, Eulalie Paul and Rene Paul, husband of said Eulalie, Louise Paul and Gabriel Paul, husband of said Louise, Emilie Smith and Thomas F. Smith, husband of said Emilie, respectfully showeth that in the year 1799, Auguste A. Chouteau, deceased, late of St. Louis, the father of your petitioners, applied to and obtained permission from the government then existing in Upper Louisiana, to establish a distillery in or near the Town of St. Louis, as will more fully appear by the petition and order thereon dated 5 November, 1799, and 3 January, 1800,

Page 34 U. S. 138

which are herewith shown to the court and prayed to be taken as part of this petition, marked No. 1; that on 5 January, 1800, said Auguste Chouteau presented his petition of that date to the Lieutenant Governor of the Province of Upper Louisiana, praying that a tract of land containing twelve hundred and eighty-one arpents, superficial measure of Paris, situated near the Town of St. Louis, bounded on the north by a tract granted to Doctor John Watkins, on the south and on the west by the lands of the third line of concessions, should be granted to the said Auguste Chouteau and his heirs, for the purpose of enabling said Auguste Chouteau to obtain a sufficient supply of fire wood for the distillery aforesaid; that on the same day, to-wit, 5 January, 1800, the said lieutenant governor made his decree conformably to the prayer of said petition whereby said lieutenant governor directed and ordered that the surveyor of the said province, Don Antonio Soulard, should put the said Auguste Chouteau in possession of the said tract of twelve hundred and eighty-one arpents, in the place indicated and demanded, to the end that said Auguste Chouteau might afterwards obtain the complete title thereto from the governor general, all which will appear by said petition and decree, now here produced, marked No. 2, and which petition and decree is prayed to be taken as part of this petition; that afterwards, in obedience to said decree, to-wit, on 5 March, 1801, the said surveyor, Don Antonio Soulard, delivered the possession of said tract to said Auguste, and executed a survey and plat of survey thereof, as will "

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more fully appear by the said plat and certificate of survey, bearing date the 10th of April 1801, now here produced, marked No. 3, and which said plat and certificate were recorded in book A, 43, No. 82, in the office of said surveyor, as by reference to the said certificate and to said record in the office of the surveyor of this district will appear; that said decrees so made by said lieutenant governor, were made in pursuance of the special instruction given by the governor general of Louisiana, Don Manuel Gayoso De Lemos, to said lieutenant governor, to favor and forward the aforesaid undertakings of said Auguste Chouteau, as will appear by the letter of said governor general, addressed to said Auguste Chouteau, under date 20 May, 1799, in answer to an application made by said Auguste

Page 34 U. S. 139

Chouteau to said governor general, as will appear by reference to said original letter herewith exhibited, marked No. 4, and prayed to be taken as part of this petition; that by virtue of said decrees, survey, and delivery of possession, said Auguste occupied and enjoyed said tract, so granted, as the lawful proprietor thereof, from the date of said delivery of possession until the decease of said Auguste Chouteau; that said Auguste, during his life, did, in conformity to the acts of Congress in that case made and provided, submit his claim to said tract, derived as aforesaid, to the board of commissioners heretofore created for the settlement and adjudication of French and Spanish land claims in Upper Louisiana; that said board rejected said claim on the sole ground that a tract of a league square having been already confirmed to said Auguste Chouteau, the board had not power under the law, as it then stood, to confirm to said Chouteau any greater quantity; and your petitioners show that said board, for the purpose, as it is supposed, of testifying their sense of the merits of said claim, did cause to be endorsed on the back of a document therein exhibited to them, the words "bona fide," as will appear, reference being had to said document No. 2, hereinbefore mentioned; your petitioners further show, that said Auguste Chouteau has departed this life, and that previous to his death he made his last will and testament, in due form of law, whereby he devised to your petitioners the said tract of twelve hundred and eighty-one arpents, besides other property, to your petitioners and their heirs, as tenants in common. Wherefore your petitioners pray that said title may be inquired into, and that the same be confirmed, as the same would have been confirmed had not the sovereignty of said province been transferred to the United States.

(Translation) No. 1.

"To Mr. Charles Dehault Delassus, lieutenant colonel attached to the regiment of Louisiana, and lieutenant governor of the upper part of same province, &c."

"Auguste Chouteau has the honor to expose, that he wishes to establish, in this town, a manufacture proper to distil the several kinds of grains raised in this dependency, [to] supply the wants of the consumption of the place, of which remote distance to the chief city renders the importation too expensive

Page 34 U. S. 140

to draw from it annually what is necessary for its use. Wherefore, sir, the supplicant, previous to subjecting himself to considerable expenses to form such an establishment, wishes to obtain the honor of your consent, in order that hereafter he may not be subject to any alteration hurtful to his interests; wherefore the supplicant will acknowledge your goodness, if you grant his request."

"AUGUSTE CHOUTEAU"

"St. Louis of Illinois, November 5, 1799"

"St. Louis of Illinois, January 3, 1800"

"Considering that the establishment which the supplicant proposes to form will be useful to the public and to commerce, because there does not exist any of this nature, and that he will procure liquors in a greater abundance, and at a less price than those which are imported, and in very little quantity, from New Orleans, we grant the request."

"CHARLES DEHAULT DELASSUS [L.S.]"

(Translation) No. 2.

"To Mr. Charles Dehault Delassus, lieutenant colonel, attached to the fixed regiment of Louisiana and lieutenant governor of the upper part of said province."

"Auguste Chouteau, merchant, of this town, has the honor to represent that the lands adjacent to this town being mostly conceded, and timber becoming daily very scarce, he is very much embarrassed in the carrying on of the considerable distillery which you have permitted him to establish by your decree, dated 5 November of last year; consequently, he hopes you will be pleased to assist him in his views, and have the goodness to grant him the concession of one thousand two hundred and eighty-one superficial arpents of this land, situated on the fourth concession in depth of the land adjoining this town; bounded north by the land of Dr John Watkins; south and west, by the lands of the third concession. The supplicant, besides having the intention to establish the said lands, hopes to obtain of your justice the favor which he solicits."

"AUGUSTE CHOUTEAU"

"St. Louis, January 5, 1800 "

Page 34 U. S. 141

"St. Louis of Illinois, January 5, 1800"

"Being satisfied that the supplicant has sufficient means to make available, in the term of the regulation of the governor general of this province, the lands which he demands, the surveyor of this Upper Louisiana, Mr. Anthony Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land in the place where he asks it, and afterwards the applicant will have to solicit the formal title of concessions of the intendant general of these provinces, to whom belongs, by order of his M___, the disposing and conceding every kind of vacant lands of the royal domains."

"CHARLES DEHAULT DELASSUS"

No. 3. The survey of the land was made by Antonio Soulard, Principal Deputy Surveyor of Upper Louisiana, on 5 March, and certified on 10 April, 1801.

(Translation) No. 4.

"New Orleans, May 20, 1799"

"My dear friend: Wishing to testify to you my esteem, by every opportunity, I merely assure you of my esteem, promising you to answer your letter by the boat that just arrived, and which will leave here next week."

"In my instructions to Mr. Delassus, I recommend him particularly to favor all your undertakings, &c."

"Adieu: I am in such a hurry that I have but the time to tell you that I am your sincere friend and most humble servant,"

"MANUEL GAYOSO DE LEMOS"

The district attorney of the United States filed an answer to the petition, denying the claim of the petitioners, and requiring proof of the same.

At the January session of the district court in the year 1830, a decree was entered against the validity of the title and claim of the petitioners.

From this decree the petitioners prosecuted this appeal.

Page 34 U. S. 142

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

Auguste A. Chouteau and others, devisees of Auguste Chouteau, presented their petition to the Court of the United States for the District of Missouri, praying that their title to one thousand two hundred and eighty-one arpents of land near the Town of St. Louis in the State of Missouri, which they claim under the following circumstances, be confirmed.

The late Auguste Chouteau applied to the then existing governor of Upper Louisiana for permission to establish a distillery in or near the Town of St. Louis, which permission was granted on 3 January, 1800.

He then petitioned for a concession for one thousand two hundred and eighty-one superficial arpents of land, to furnish firewood for his distillery; which was granted in the following words:

"St. Louis of Illinois, January 5, 1800"

"Being satisfied that the applicant has sufficient means to make available in the term of the regulation of this province

Page 34 U. S. 143

the lands which he demands, the Surveyor of this Upper Louisiana, Mr. Anthony Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land in the place where he asks it, and afterwards the applicant will have to solicit the formal title of concessions of the intendant general of these provinces, to whom belongs, by order of his M___, the disposing and conceding every kind of vacant lands of the royal domains."

"CHARLES DEHAULT DELASSUS"

The permission of the governor general to erect the distillery is alluded to in the following letter from him to Mr. Delassus.

"New Orleans, May 20, 1799"

"My dear friend:"

"Wishing to testify to you my esteem by every opportunity, I merely assure you of my esteem, promising to answer your letter by the boat that just arrived, and which will leave here next week."

"In my instructions to Mr. Delassus, I recommend him particularly to favor all your undertakings, &c."

"Adieu. I am in such a hurry that I have but the time to tell you that I am your sincere friend and most humble servant,"

"MANUEL GAYOSO DE LEMOS"

The order of survey was executed on 10 April, 1801, and the petitioner put into possession, which he retained till his death, having first made his last will, in which he devised it to the petitioners, who have taken all the steps required by law, to preserve their claim.

The petition prays for a confirmation of the title. The answer of the district attorney admits nothing, and submits the case to the court on the proof to be made by the petitioners. The erection of the distillery, and the manufacture of spirits to a considerable extent, the apparent motives to the grant, are fully proved.

The distinction between the case of Chouteau and others and that of Delassus, whose title has been confirmed, consists in this. The concession to Delassus was made by the lieutenant governor of Upper Louisiana by direction of the governor general, at a time when the power of granting land was vested in

Page 34 U. S. 144

the governors of provinces. This power was transferred to the intendant general in 1799, after which transfer in 1800, the order of survey under which Chouteau claimed, was made by the lieutenant governor. The validity of the order depends on the authority of the lieutenant governor to make it. Chouteau alleges in support of this authority, that the lieutenant governor was also subdelegate, in which character he was empowered to grant incomplete titles.

Several documents have been laid before the Court which satisfy us that the lieutenant governors were, by virtue of their office, subdelegates. In the record in Soulard's case, which we understand is to be considered as an exhibit in this, a letter from the Lieutenant Governor Delassus to the surveyor general is introduced, in which he recites a letter of Morales, the intendant general, to him dated 1 December, 1802, informing him that in consequence of the death of the assessor, he had closed the tribunal of affairs and causes relating to grants and confirmations of royal lands. The letter adds:

"I make this communication in order that, apprised of this providence, you may not receive, frame, or transmit memorials soliciting lands until further orders."

In a letter of 26 August, 1799, addressed by Morales to Don Carlos Dehault Delassus, in which he notices instructions given by Delassus to Roberto McKay, in his character of subdelegate, he observes,

"I must say, that it being contrary to law that one subdelegate should transfer his powers to another, the instruction given by you cannot, nor ought to have effect, and the more so, as the subdelegation of the intendancy is local."

In a certificate given by Don Gilberto Leonard, Treasurer of the Army, and Don Manuel Gonzalez Armirez, Ministers of the Royal Treasury, &c., of the Province of Louisiana, they certify that in pursuance of a decree of the senior intendant general ad interim, the Senior Colonel Charles Dehault Delassus, formerly commandant of the port of New Madrid, and Lieutenant Governor of St. Louis of the Illinois, with the subdelegation of the royal treasury in both situations, &c.

In the claims laid before the commissioners and confirmed are several which originated with Delassus after the power of granting lands was transferred from the governor to the

Page 34 U. S. 145

intendant general. This very order of survey was executed by the surveyor general in 1801. Possession was delivered to Chouteau which was retained by him during his life, and appears to have remained with his devisees since his death.

On this point the report made by the recorder and commissioners to Congress under the Act of 9 July, 1832, and 2 March, 1833, cannot be disregarded. They speak of the union of the two offices of lieutenant governor and subdelegate as being universally understood and admitted.

Charles Dehault Delassus, Lieutenant Governor of Upper Louisiana, whose deposition appears to be annexed to the report of the commissioners, deposes

"that all the lieutenant governors of Upper Louisiana were, in virtue of their offices as lieutenant governors, likewise subdelegates. That the offices of lieutenant governor and subdelegate were inseparable."

Morales, immediately after the sale of the royal lands had been transferred to his intendancy, assigns as one reason for issuing his regulations, "that the commandants, as subdelegates of the intendancy, may be informed of what they ought to observe."

If, as we think must be admitted, Delassus was subdelegate as well as lieutenant governor, the transfer of the power of granting lands belonging to the royal domain from the governor to the intendant general, did not affect his power to give the order of survey on which the title of the petitioners depends. That order is the foundation of title, and is, according to the acts of Congress and the general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property capable of being alienated, of being subjected to debts, and is as such to be held as sacred and inviolate as other property.

The power of Lieutenant Governor Delassus in his character of subdelegate to make this order of survey being established, all the principles settled in the preceding cases apply to this. No objection to the claim is perceived, and we think it ought to have been declared valid.

The decree of the district court is reversed and annulled, and this Court, proceeding to give such decree as the district court ought to have given, doth declare the claim of the petitioners to the tract of land in their petition mentioned to be valid, and both confirm their title to the same according to the boundaries

Page 34 U. S. 146

thereof, as described in the survey made by Antonio Soulard, Principal Deputy Surveyor of Upper Louisiana on 5 March, 1801, a certificate of which appears in the record dated 10 April, 1801.

This cause came on to be heard on the transcript of the record from the district Court of the United States for the District of Missouri and was argued by counsel, on consideration whereof, this Court is of opinion that the claim of the appellants is valid and ought to be confirmed. Whereupon it is ordered, adjudged, and decreed by this Court that the decree of the said district court in this cause be, and the same is hereby reversed and annulled, and this Court, proceeding to pronounce such decree as the said district court ought to have given, doth declare the claim of the petitioners to be valid, and doth confirm their title to the tract of land in their petition mentioned, according to the boundaries thereof as described in the survey made by Antonio Soulard, Principal Deputy Surveyor of Upper Louisiana, on 5 March, 1801, a certificate of which appears in the record dated 10 April, 1801.

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