United States v. Sibbald
35 U.S. 313 (1836)

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U.S. Supreme Court

United States v. Sibbald, 35 U.S. 10 Pet. 313 313 (1836)

United States v. Sibbald

35 U.S. (10 Pet.) 313

APPEAL FROM THE SUPERIOR

COURT OF EAST FLORIDA

Syllabus

A petition was presented to the Governor of Florida before the cession of the territory to the United States setting forth that the petitioner was desirous of erecting machinery for sawing, timber, &c., and asking

"permission for that purpose, with the corresponding survey of the grant of land of five miles square, sixteen thousand acres or its equivalent, in the event that this situation will not permit the said form, which land will insure the continued supply of timber. The permission was granted without injury to third persons under the express condition that until the establishment of the mill, the grant of the land, which will be a square of five miles, in order that he may use the timber, shall be of no effect."

A survey was made of ten thousand acres, but no more than that quantity could be had at the place described, and the residue of the grant, six thousand acres, was afterwards surveyed in other places at the distances of twenty and thirty miles. In 1819, the grantee commenced the erection of a mill which was afterwards carried away by floods. In 1827 another mill was commenced, which was destroyed by fire in July, 1828, and in October, 1828, another mill was commenced, which went into operation in 1929. The Superior Court of East Florida confirmed the survey of ten thousand acres and rejected the two surveys amounting to six thousand acres. Held that the grantee was entitled to the whole sixteen thousand acres.

By the eighth article of the treaty of cession of Spain to the United States, the same time is allowed to the owners of land granted under the authority of Spain to fulfill the conditions of their grants after the date of the treaty as was limited in the grants. It has been decided by this Court in the case of Arredondo that as to individual rights, the treaty is to be considered as dated at its ratification.

It has been decided in Arredondo's Case that that provision of the treaty as to the performance of the conditions in grants is not confined to owners of land by occupancy or residence, but extends to persons who have a legal seizin and possession of land in virtue of a grant, and that in the situation of the province and the claimants to land at the time of the cession, it was enough that they should show a performance of the condition cy pres.

This was a claim to land in East Florida, presented to the Superior Court of East Florida by the appellee, founded on a concession for sixteen thousand acres of land made by Don Jose Coppinger, Governor of the Province of East Florida, to Charles F. Sibbald, the claimant, on 2 August, 1816, for five miles square, or sixteen thousand acres of land.

On 16 July, 1816, the petitioner, Charles F. Sibbald, presented his petition to Governor Coppinger supplicating his permission to construct a water saw mill on the creek called Six Miles,

Page 35 U. S. 314

alias Little Trout Creek, on the north side of the River St. John's and that of Nassau, the creeks of which empty their waters into the said St. John's River, with the corresponding surety for the grant of lands embraced in a line of two and a half miles to each wind, making a square of five miles or its equivalent in the event that this situation will not permit the same form, which land, he says, will insure the continued supply of timber.

On 2 August of the same year, the governor made his decree granting the permission solicited under the express condition that until the establishment of the mill, the grant of the land, which will be of two miles and a half to each wind, making a square of five miles, in order that he may use the timber, &c., shall be of no effect.

Ten thousand acres of this land were surveyed upon Little Trout Creek agreeably to the calls of the grant. Four thousand acres were surveyed by George J. F. Clarke, public surveyor, on 8 February, 1820, in Turnbull's Swamp, at Mosquito, more than one hundred miles to the southward from the first location, and between which and it there is no water communication except by the open sea, and the remaining two thousand acres were, on 20 February, 1820, surveyed by said Clarke, at Bow Legs Hammock, about the same distance to the west and from the first survey, between which and those two thousand acres, there is no water communication at all.

The petitioner alleges that in compliance with the condition of said grant, he, in the year 1819, expended six or eight thousand dollars in the erection of a water saw mill, which was nearly completed, but that, owing to various difficulties and the embarrassments of said province, the mill did not go into operation.

That since the cession of the Floridas to the United States, he has expended upwards of twenty thousand dollars in the erection of a steam saw mill on the tract of ten thousand acres, which was completed, and some time in full operation, but that in the month of July, 1828, it was entirely destroyed by fire, and that he has since commenced another upon a much more extensive scale. This last has been completed since the filing of the petition in this case.

The answer of the district attorney denies the power of the governor to make this grant and puts the claimant to the proof of all the allegations contained in his petition and insists that he has not complied with the condition of the concession.

Page 35 U. S. 315

That by a decree of Governor Coppinger bearing date 29 October of the same year (White's Compilations), the term of six months was limited for the performance of the conditions of all grants of this nature, and that it was then especially decreed by said governor that all those grants the conditions of which were not performed at the expiration of said six months should be null and void and that the lands should be annexed to the class of public land, which decree was subsequently, to-wit on 18 January, 1819, by another decree of the same governor, fully affirmed, and that the said Charles F. Sibbald did not erect the said saw mill within the said term of six months, and that consequently said concession, at the expiration thereof, became null and void, and the lands were annexed to the class of public lands.

The original concession in this case was not to be found in the archives; but a copy certified by Thomas de Aguilar, late secretary of the government of the province, was produced and proved.

The proof in relation to the building of the mills is substantially as stated in the petition, and a duly certified copy of the survey was also produced.

Page 35 U. S. 321

MR. JUSTICE BALDWIN delivered the opinion of the Court.

These are cross-appeals from the decree of the judge of the Superior Court of East Florida on the petition of Sibbald praying for a confirmation of his claim to sixteen thousand acres of land, pursuant to the acts of Congress for adjusting land claims in Florida.

The petition was in the form prescribed by law, presenting a case proper for the exercise of the jurisdiction of the court below. On 16 July, 1816, the petitioner applied to the Governor of East Florida, setting forth that he was desirous of erecting machinery for sawing timber on Little Trout Creek, on the north side of the River St. John's and that of Nassau:

"He asks permission for that purpose, with the corresponding surety of the grant of land of five miles square, or its equivalent, in the event that this situation will not permit the said form, which land will insure the continued supply of timber."

On 2 August, 1816, the governor decreed

"The permission solicited by this party is granted, without injury to third persons, under the express condition that until the establishment of the mill, the grant of the land, which will be a square of five miles, in order that he may use the timber, shall be of no effect,"

&c. Pursuant to this grant, a survey was made on 2 May, 1819, of ten thousand acres at the place called for in the grant. In February, 1820, four thousand acres were surveyed in another place, called Turnbull's Swamp, at the distance of thirty miles from the first survey, and afterwards the residue, two thousand acres was surveyed

Page 35 U. S. 322

at a place called Bow Legs Hammock, at the distance of twenty or thirty miles. In 1819, Sibbald commenced the erection of a saw mill on the ten thousand acre tract, and continued it till its completion, except the dam, which would have been completed had not the negroes and horses employed been stolen, and while the millwright was absent in pursuit of them, the dam was carried away by a freshet. The work was then abandoned after an expenditure of more than $5,000. In September, 1827, another mill was built and in operation which was destroyed by fire in July, 1828. Another was commenced in October, 1828, which went into operation in June, 1829, and so continues to the present time; is of seventy horse power, and calculated to saw twenty thousand feet of lumber a day.

By the decree of the court below, the claim of the petitioner was confirmed as to the ten thousand-acre survey on Trout Creek and rejected as to the two remaining surveys of four thousand, and two thousand acres, from which decree both parties appealed. Various objections to the claim were made on the hearing, but only two were relied on here.

1. That the grant was on a condition precedent, which was not begun to be performed till the grant became forfeited by the order of the governor, made 29 October, 1818, declaring all grants made in consideration of mechanical improvements to be made to be void if the conditions were not performed in six months. It is unnecessary to decide on the effect of this order or whether, by the acts which authorize the courts of Missouri and Florida to decide on claims to lands therein, Congress intended to assert a right by forfeiture for condition broken to lands which had been once legally granted. The evidence in this and the other cases which have been decided is very full and clear that no grant has ever been annulled or revoked by the Spanish authorities for any cause, and that there is no instance of a governor's having granted land which had been before granted on condition, and it may well be doubted whether it would have been reannexed to the royal domain had the province remained under the dominion of the King of Spain; nor is there any provision of any law of Congress which specially requires the court to inquire into the performance of conditions on which grants were made.

By the eight article of the treaty of cession by Spain to the United States, the same time is allowed to the owners of land so granted to

Page 35 U. S. 323

fulfill the conditions of their grants after the date of the treaty as was limited in the grants. We have heretofore decided in the case of Arredondo that as to individual rights, the treaty is to be considered as dated at its ratification. 6 Pet. 748-749. The erection of a mill in 1819 or 1920 would therefore be in time to save a forfeiture. No time was limited in the grant, and no greater effect can be given to the governor's order fixing the time for the performance of conditions than if the limitation had been contained in the grant. We have also decided that this provision of the treaty is not confined to owners in possession of lands by occupancy or residence, but extends to all persons who have a legal seizin and possession of land in virtue of a grant, 31 U. S. 6 Pet. 743, and that in the situation of the province and the claimants to land at time of the cession, it was enough if they would show a performance of the condition cy pres. We are therefore of opinion that the petitioner began the erection of the mill in time to save the forfeiture, and that he has shown the performance of such acts as amount to a compliance with the condition according to the rules of equity which govern these cases.

2. It is objected that the terms of the grant do not authorize a survey of any part of the sixteen thousand acres in any other than in the place called for. The petition was for a grant of sixteen thousand acres or its equivalent if it situation would not admit of this form; the permission solicited was granted, which by reference makes the petition a part of the grant. It is in full proof that the quantity could not be surveyed at the place designated without interfering with land which had been previously granted, which would have been contrary to the express words of the grant "without injury to third persons." It is also in proof without contradiction that in order to obtain the ten thousand acres on Trout Creek, it was necessary to go round one or two different tracts, and that no more could have been obtained anywhere near it of any value; the shape of the survey is irregular, and not at all in conformity with the rules prescribed to surveyors, which require the surveys to be in rectangular parallelograms, the front of which on rivers, creeks, and roads not to exceed one-third of the depth. It was certainly the intention of the petitioner and the governor that there should be a grant of five miles square, which was the usual quantity granted in consideration of the erection of mills, and we think that taking the petition and grant, together with the manifest intention of both parties, the equivalent for any deficiency on Trout Creek may be referred to quantity,

Page 35 U. S. 324

rather than to the form of the survey.

It would be a very rigid construction of the grant to make the privilege of altering the shape of the survey an equivalent for the loss of six thousand acres of land. That such was not the intention of the governor is evident from the evidence of Mr. Fernandez, who testifies that on ascertaining that part of the land had been previously granted, he informed the governor, who gave Sibbald the right to locate his grant at any vacant place suitable for the erection of a saw mill. The surveyor general of the province testified that he filled that office in East Florida from 1811 to 1821, that he located grants by surveying any land which was designated by the grantee to which no objection was made by any of the authorities under the Spanish government and which was considered an inherent privilege of the grantee without any order from the government. We are therefore of opinion that the title of the petitioner to the whole quantity of land specified in the grant is valid by the law of nations, of Spain, the United States, and the stipulations of the treaty between Spain and the United States for the cession of the Floridas to the latter, and ought to be confirmed to him according to the several surveys made as returned with the record.

We do therefore order, adjudge and decree that the decree of the court below confirming the title of the petitioner to the ten thousand acres on Trout Creek be and the same is hereby affirmed. And proceeding to render such decree as the court below ought to have rendered, this Court doth further order, adjudge, and decree that the decree of the court below rejecting the claim of the petitioners to the land embraced in the surveys of four thousand acres and of two thousand acres, as returned with the record, be and the same is hereby reversed and annulled. That the claim of the petitioner to the same be and the same is hereby confirmed and declared valid, and that the Surveyor of Public Lands in the Eastern District of Florida be and is hereby directed to do and cause to be done all the acts and things enjoined on him by law in relation to the lands within said surveys.

This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida and was argued by counsel. On consideration whereof it is ordered adjudged and decreed by this Court that the decree of the said superior court confirming the title of the petitioner to the ten thousand acres on

Page 35 U. S. 325

Trout Creek be and the same is hereby affirmed, and that the residue of the decree of the said superior court be and the same is hereby reversed and annulled. And this Court, proceeding to render such decree as the said superior court ought to have rendered, doth order, adjudge, and decree that the claim of the petitioner to the land embraced in the surveys of four thousand acres and of two thousand acres, as returned with and contained in the record, is valid, and that the same be and is hereby confirmed. And it is further ordered, adjudged, and decreed by this Court that the Surveyor of Public Lands in the Eastern District of Florida be and he is hereby directed to do and cause to be done all the acts and things enjoined on him by law in relation to the lands within said survey. And that the said cause be and the same is hereby remanded to the said superior court to cause further to be done therein what of right and according to law and justice and in conformity to the opinion and decree of this Court ought to be done.

The same decree was given in the case of Sibbald, Appellant v. United States.

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