A grant for land in Florida by Governor Coppinger on condition
that the grantee build a mill within a period fixed in the grant
declared to be void, the grantee not having performed the condition
or shown sufficient cause for its nonperformance.
Under the Florida treaty, grants of land made before 24 January,
1818, by His Catholic Majesty or by his lawful authorities stand
ratified and confirmed to the same extent that the same grants
would be valid if Florida had remained under the dominion of Spain,
and the owners of conditional grants who have been prevented from
fulfilling all the conditions of their grants have time by the
treaty extended to them to complete such conditions. That time, as
was declared by this Court in
Arredondo's
Case, 6 Pet. 748, began to run in regard to
individual rights from the ratification of the treaty, and the
treaty declares if the conditions are not complied with within the
terms limited in the grant that the grants shall be null and
void.
In the construction of the Florida treaty it is admitted that
the United States succeeds to all those equitable obligations which
we are to suppose would have influenced His Catholic Majesty to
secure their property to his subjects and which would have been
applied by him in the construction of a conditional grant to make
it absolute, and further that the United States must maintain the
rights of property under it by applying the laws and customs by
which those rights were secured before Florida was ceded, or by
which an inchoate right of property would, by those laws and
customs, have been adjudicated by the Spanish authority to have
become a perfect right.
The cases decided by the Court relative to grants of land in
Florida reviewed and affirmed.
In the District Court of East Florida in April, 1829, Zephaniah
Kingsley presented a petition claiming title to a tract of land
situated on a creek emptying into the River St. John which he
asserted was granted to him by Governor Coppinger on 20 November,
1816, while East Florida was held by the Crown of Spain.
The petition stated that in virtue of the grant, the petitioner
had, soon after its date, entered and taken possession of the land,
and was preparing to build a water saw mill thereon according to
the condition of the grant, but was deterred therefrom by the
disturbed state of that part of the province of East Florida and
the occupancy of the land by some of the tribes of Florida Indians,
who were wandering in all directions over the country.
Page 37 U. S. 477
The grant referred to in the petition was in the following
terms:
"Considering the advantage and utility which is to accrue to the
province if that is effected which Don Zephaniah Kingsley proposes
to do, it is hereby granted to him that, without prejudice of a
third party, he may build a water saw mill in that creek of the
River St. John called McGirt's, under the precise condition,
however, that until he builds said mill, this grant will be
considered null and void, and when the event takes place, then, in
order that he may not suffer by the expensive preparations he is
making, he will have the faculty of using the pines comprehended
within the square of five miles, which he solicits for the supply
of said saw mill, and no other person will have a right to take
anything from it. Let the corresponding certificate be issued to
him from the secretary's office."
"COPPINGER"
The District Attorney of the United States for East Florida
filed, at May term, 1829, an answer to the petition of Zephaniah
Kingsley requiring from the court that due proof should be made by
the petitioner of the matters set forth in the petition, and also
that the grantee had prepared to build a water saw mill on the land
as stated in the grant.
The answer also asserts that the grant was made on the express
condition that until the grantee built the mill, the grant was to
be considered as null and void, and that he had wholly and entirely
failed to build the mill and still fails to build the same.
On 6 July, 1833, an amended petition was filed setting forth
that upon the state and condition of the province of East Florida
east of the St. John's, being made known by the grantees of mill
grants, and of the impossibility of complying with the conditions
of the grants, Governor Coppinger, by a verbal order or decree,
made known that in consequence of the continued unsettled and
disturbed state of the province and of the impossibility of the
grantees of mill grants complying with the conditions of the same
with safety to themselves or their property, that the grantees
should not, by a failure to erect their mills, thereby forfeit
their title, but that the same should remain valid and be
exonerated from the compliance of the condition therein named till
the state of the country should be such as that the grantees could
with safety erect their works.
The amended petition alleged that the country was in a disturbed
and dangerous state from the date of the petitioner's grant and for
a long time previous, till the transfer of the province from
Page 37 U. S. 478
Spain to the United States, and that your petitioner could not
with any safety to himself or his property have erected said mill
west of the St. John's, between the time of the date of his grant
and the transfer of the province as aforesaid.
To this amended petition the district attorney answered and
called for proofs of the allegations therein, and he also submitted
to the court that if the part of the province in which the land
said to have been granted had continued in a disturbed situation
from Indian hostilities, it had been in that situation when the
grant was made, and that this should not be an excuse for the
noncompliance with the conditions of the grant. The answer alleged
that from 1821, part of the province has been entirely tranquil,
but no attempt to erect the mill has been made.
At July term, 1835, a second amendment to the petition was filed
stating that soon after the issuing of the grant, the petitioner
entered and took possession of a tract of the land surveyed to him
under the grant, and actually began to build a mill upon it, but
was deterred by the dangerous situation of the country from
completing the same. The answer of the district attorney denied the
allegations in this petition and called for proofs of the same. No
evidence was given to sustain the statement in the second amended
petition. The assertion that the uncertainty as to titles to the
lands in the province since the transfer by Spain is denied to be
an excuse for the laches or negligence of the grantee.
After the production of written evidence and the examination of
witnesses, the district court gave a decree in favor of the
petitioner, confirming to him the quantity of land mentioned in the
grant. From this decree the United States prosecuted an appeal to
this Court.
Page 37 U. S. 479
MR. JUSTICE WAYNE delivered the opinion of the Court:
It appears that Zephaniah Kingsley, on 20 November, 1816, being
then an inhabitant of the Province of Florida, petitioned Governor
Coppinger stating
"That wishing to erect a water sawmill in that creek of the
River St. John, called McGirt's on a vacant place, and it being
necessary for that purpose to have a quantity of
Page 37 U. S. 480
timber sufficient to supply said mill and establishment, he
supplicates your Excellency to be pleased to favor him with your
superior permission to build the same on the place aforesaid, with
its area of five miles square of land as the equivalent thereof,
for its continued supply of timber, bounded southeast and south by
lands granted to Ferguson and Doctor Lake; southwest and west by
vacant lands; north by Don Juan McIntosh's land, and east by lands
of said Kingsley, and the River St. John."
Upon this petition the governor made the following decree:
"Considering the advantage and utility which is to accrue to the
province, if that is effected which Don Zephaniah Kingsley proposes
to do, it is hereby granted to him that without prejudice of a
third party, he may build a water mill on that creek of the River
St. John, called McGirt's, under the precise condition, however,
that until he builds said mill, this grant will be considered null
and void, and when the event takes place, then in order that he may
not suffer by the expensive preparations he is making, he will have
the faculty of using the pines comprehended within the square of
five miles, which he solicits for the supply of said saw mill, and
no other person will have a right to take anything from it. Let the
corresponding certificate be issued to him from the secretary's
office."
"St. Augustine, 2d Dec. 1816 COPPINGER"
Upon this decree the petitioner states that soon after the date
of it, he entered upon and took possession of the land granted in
the situation mentioned in said grant, and was preparing to build a
water saw mill agreeably to the condition of the grant, but was
deterred therefrom by the disturbed state of that part of the
Province of East Florida and the occupancy of the land by some of
the tribes of Florida Indians, who were then wandering in all
directions over the country. The appellee then insists that his
right to the land is embraced by the treaty between Spain and the
United States, gives a narrative of his submission of his claim to
the board of commissioners under the Act of Congress entitled
"An act amending and supplementary to an act for ascertaining
claims and titles to land in the Territory of Florida, and to
provide for the survey and disposal of the public lands in
Florida,"
passed 3 March, 1823; that the commissioners reported
unfavorably upon it, which he insists was contrary to the law and
evidence produced in the cause, and further that the report of the
commissioners upon his claim was not final, as the tract of land
claimed by him contains a larger quantity than the
Page 37 U. S. 481
commissioners were authorized to decide upon by any of the acts
of Congress.
The petition of the appellee, of which an abstract has been just
given, was filed on 21 April, 1829. In the following month, the
United States, by the United States attorney, filed an answer to
this petition denying, for sundry causes and reasons, the entire
existence and equity of the appellee's claim, and in August of the
ensuing year the United States attorney amended his answer,
referring to certain orders of Governor Coppinger dated 27 October,
1818, and on 19 January, 1819, the first of which limits the time
to six months from 27 October, 1818, within which all grants and
concessions of land which had been made on condition for mechanical
works, to-wit, factories, saw mills, &c., were to revert to the
class of public lands, and to be declared vacant unless the
grantees or concessioners should comply with the conditions of such
grants or concessions, and the second of which declares all such
conditional grants or concessions null and of no effect in those
cases where the persons in whose favor they were made had remained
inactive, having done nothing to advance the establishment of those
works.
See White's Compilation 250, 253, 256-257 for these
orders.
The United States attorney alleges the appellee to be one of
those persons whose supposed concession was null and void under the
first order, and that it was entirely annulled and set aside by the
last, as he had not then, nor had not since established or advanced
in any manner the building of his mill, but had wholly failed and
neglected to do so. To this answer the appellee put in a general
replication, and the cause came by regular continuance to the term
of the court in November, 1832, when permission was given to the
appellee to amend his petition. In July, 1833, he filed the
amendment stating that the disturbed and dangerous condition of the
province west of the St. John's River, which continued from 1812 to
the exchange of flags, had induced Governor Coppinger to declare,
by a verbal order and decree, that the unsettled and disturbed
state of the province and the impossibility of the grantees of mill
grants to comply with the conditions of the same with safety to
themselves and their property that the grantees should not, by a
failure to erect their mills, forfeit their titles.
Of the existence, however, of any such modification of the
condition
Page 37 U. S. 482
of such grants by any verbal order and decree the appellee gave
no proof on the trial of this cause.
In the amendment of the appellee's petition, the United States'
counsel replies, denying the existence of any such verbal order and
decree by Governor Coppinger and stating that if there was any such
danger from the disturbed condition of the province as the appellee
had alleged, that it existed as well at the time when he applied
for the grant and when he accepted the same as at any time
afterwards. In this state of the pleadings, the cause was brought
to trial as well upon the evidence on the part of the United States
as upon the part of the appellee, but was not then decided. At the
July term of 1835, the appellee filed, by permission of the court,
another amendment to his petition in which, after reciting the
surveys made under the decrees of the governor upon his petition,
he further says that soon after the grant was made to him, he took
possession of the land and actually began to build a water saw mill
on McGirt's Creek pursuant to the condition of the grant, but that
he was deterred and prevented from completing the same by the
disturbed and dangerous state of the country, which continued until
the cession of Florida by Spain to the United States. And after
that cession, he states he was deterred from proceeding to the
further performance of the conditions of said grant by the great
uncertainty in which his right and title to said land was involved
by said cession. To this amendment of the petition the United
States attorney replied, repeating the facts and objections to the
claim of the appellee made in his previous answers and further
insisting that the surveys upon which the appellee relied were made
after 24 of January, 1818, and are not agreeable to the calls of
the said supposed grant, and that they are null and void by the
provision of the latter clause of the 8th article of the treaty
between Spain and the United States of 22 February, 1819.
Upon these pleadings and the evidence, the court has decreed the
appellee's claim to be valid; that it is in accordance with the
laws and customs of Spain and under and by virtue of the late
treaty with Spain and under and by virtue of the laws of nations
and of the United States.
We think differently from the court upon all the grounds stated
in the decree. They open a wide subject of remark, but we abstain
from discussing any of them except the application of the treaty to
this claim or of the laws and customs of Spain. These points we
shall such very briefly. We first observe, that no
Page 37 U. S. 483
case of a land claim in Florida, confirmed by this Court under
the treaty, either in terms, or by necessary inference from what
the court has said, covers this case. We view this claim under the
decree of Governor Coppinger as a permission to enter upon the land
designated in the petition and decree, in which land the appellee
did not and could not acquire property, or even inchoate title,
such as embraced in the 8th article of the treaty or by this
Court's construction of it, until he had in good faith prepared to
execute the condition which the appellee held out as the inducement
to obtain a grant -- or in other words, we think the decree of the
governor contains a condition precedent to be performed by the
appellee before the grant could take effect. In this case the
appellee never attempted to perform the condition; there is no
proof of his having done so in good faith by the expenditure of
money or application of labor. On the contrary, there are, in the
original petition of the appellee to the court below and in all the
subsequent amendments of it from 1829 to 1833, his declarations
that he had not done so until the amendment made in 1835, when he
states for the first time that he actually began to build a water
saw mill according to the conditions of the grant a short time
after it was made, but that he was prevented from completing it by
the disturbed and dangerous condition of the country.
The only proof given by him of his having actually began to
build is very equivocal, and should have been rejected by the court
on the ground of its being hearsay, except so much of it as relates
to the remains of some work or mill dam, which of itself could not
be evidence, until, by other proof, the appellee had established
the fact of such work having been done by himself, as the witness
testifying says expressly that it was only from hearsay that he had
said that work was done by the appellee. The witness says he does
not know of his own knowledge that the appellee ever made any
attempt or preparations for building a saw mill on said mill seat
tract, but that he had seen timber on the said tract; was told it
was got by Kingsley for the purpose of building a saw mill; that he
afterwards saw a dam had been erected on each side of the stream,
in the bottom of the stream saw timbers laid, as witness supposed,
for the sills of a saw mill; that he only knows from hearsay that
said preparations were made by Kingsley; that a part of the
preparations are still remaining, and to be seen on said tract;
that he first saw the timber above mentioned in the year 1817 or
1818, and shortly after saw
Page 37 U. S. 484
the dam and sills aforesaid; that the said timber was mostly
destroyed by fire. And by the record we are left to conclude that
these works were made by Kingsley, without any, even probable proof
that he had at any time taken possession of the land. We cannot do
so; and if we could, it would be deemed by us no compliance with
the condition contained in the governor's decree or concession in
his favor, as the work was discontinued for an insufficient cause,
that was, the disturbed and dangerous condition of the country. All
the witnesses concur in stating there was no more danger after the
appellee petitioned for the land, than there had been before and at
the time of his application.
The appellee then cannot be permitted to urge as an excuse, in
fact or in law, for not complying with his undertaking, a danger
which applies as forcibly to repudiate the sincerity of his
intention to build a mill when he petitioned for land for that
purpose as it does to his inability from such danger to execute it
afterwards. Under the treaty, it is true that grants of land made
before 24 January, 1818, by His Catholic Majesty, or by his lawful
authorities, stand ratified and confirmed to the same extent that
the same grants would be valid if Florida had remained under the
dominion of Spain, and the owners of conditional grants, who have
been prevented by the circumstances of the Spanish nation from
fulfilling all the conditions of their grants have time by the
treaty extended to them to complete such conditions. That time, it
was determined by this Court in
Arredondo's
Case, 6 Pet. 748-749, began to run in regard to
individual rights from the ratification of the treaty, and the
treaty declares if the conditions are not complied with within the
terms limited in the grants, that the grants shall be null and
void.
It is admitted that in the construction of this article of the
treaty, the United States succeeds to all those equitable
obligations which we are to suppose would have influenced His
Catholic Majesty to secure to his subjects their property and which
would have been applied by him in the construction of a conditional
grant to make it absolute. And further, in the construction of this
article of the treaty it must be conceded that the United States
must maintain the rights of property under it by applying the laws
and customs by which those rights were secured before Florida was
ceded or by which an inchoate right of property would, by laws and
customs, have been adjudicated by Spanish authority to have become
a perfect right, by applying in the first instance in such cases as
was said in
Arredondo's Case, the principles of
justice
Page 37 U. S. 485
according to the rules of equity, and in the second all those
laws and customs decisive of a right of property whilst the party
claiming the right was a subject of Spain. Test, then, the case
before us by the most liberal equity and it will appear that the
claim of the appellee cannot be sustained by any effort by him to
perform the condition of the governor's grant, either before the
ratification of the treaty or since. Indeed, in the last amendment
of his petition in 1835, he states he was prevented from proceeding
to the further performance of the condition of said grant by the
great uncertainty in which his right and title to the land was
involved by the cession.
These Florida grants or concessions of land upon condition have
been repeatedly confirmed by this Court, and it will apply the
principles of its adjudications to all cases of a like kind. It
will, as it has done, liberally construe a performance of
conditions precedent or subsequent in such grants. It has not, nor
will it apply in the construction of such conditions in such cases
the rules of the common law. But this Court cannot say a condition
wholly unperformed, without strong proof of sufficient cause to
prevent it, does not defeat all right of property in land under
such a decree as the appellee in this case makes the foundation of
his claim.
Arredondo's grant, confirmed by this Court, 6 Peters, was a
clear case of a grant in fee for past services and commendable
loyalty to his sovereign, with a condition subsequent of a nature
the performance of which must have been a matter of indifference as
well to the King of Spain as to the United States after a cession
of Florida was made. The condition was that the grantees should
establish on the land two hundred Spanish families, and that they
were to begin to carry into effect the establishment within three
years from the date of the grant, and there was no time limited for
its completion. This Court said in that case,
31 U. S. 6 Pet.
745:
"From the evidence returned with the record, we are abundantly
satisfied that the establishment was commenced within the time
required (which appears to have been extended for one year beyond
that limited in the grant) and in a manner which, considering the
state of that country as appears by the evidence, we must consider
as a performance of that part of the condition."
The case of
Segui, 10 Pet.
306, was a grant in consideration of services to the Spanish
government and for erecting machinery for the purpose of sawing
timber. That grant was confirmed by this Court upon the ground that
the governor considered the services
Page 37 U. S. 486
of Segui a sufficient consideration, and made the grant
absolute.
Seton's
Case, 9 Pet. 311, was a decree or permission of the
governor in all particulars like that now before us, and Seton's
right to the survey which has been made, and to the equivalent
quantity to make up the extent of the original concession, was
confirmed by this Court upon the positive proof that Seton had
built his mill in a year after the date of the decree upon which he
claimed.
Sibbald's
Case, 9 Pet. 313, another like Seton's and that
before the Court, were confirmed by this Court upon the ground that
Sibbald had performed the condition according to the rules of
equity which govern these cases. Sibbald, in good faith and within
a reasonable time after the decree in his favor, began to build his
mill, expended five thousand dollars towards it, had his horses and
negroes stolen while the mill was building; his mill-dam carried
away by a freshet, in the absence of his millwright, who was in
pursuit of the stolen property, rebuilt his mill in 1827, which was
destroyed by fire the same year, and the year after built again
another mill of twenty horsepower which could saw twenty thousand
feet of lumber a day.
It remains only for us to say a word concerning the laws and
customs of Spain supposed by the learned judge in the court below
applicable to the confirmation of this claim under the treaty. The
fact that no instance is known of land so decreed having reverted
to the class of public lands, for the nonperformance of the
condition does not prove a custom unless a current of cases can be
shown in which claimants have held the land without performance.
Besides, the existence of any such custom is disproved by the
decree for the land itself, by the subsequent decrees of the
Spanish governor declaring lands granted upon condition would be
null and void within a certain time, if the conditions were not
performed, and by the treaty itself, which stipulates for the
performance of conditions within terms after the treaty was made,
contained in the grants, and which is recognized by this Court by
its decision, that the time given only begins to run against
individual rights from the date of the ratification. As to the laws
of Spain supposed to aid the case, we remark, it being conceded
that the governor had authority to make grants and concessions and
to give permission to persons to enter upon lands upon conditions,
nothing less than a law dispensing with the performance of them or
a release of the performance of them by the governor, sanctioned by
the general royal authority under which he acted, or a release by
royal authority after grants were made general
Page 37 U. S. 487
in its application or applicable to some particular case or
class of cases can be admitted
proprio vigore as a release
of the obligations upon grantees to perform the conditions of these
grants. It is not pretended that any such law or release
exists.
MR. JUSTICE BALDWIN dissented.
This cause came on to be heard on the transcript of the record
from the Superior Court for the Eastern District of Florida and was
argued by counsel. On consideration whereof it is the opinion of
this Court that the petitioner having failed to fulfill the
condition of the grant, that the said grant or concession is null
and void, and that the said petitioner has no right or title to the
land. Whereupon it is now here decreed and ordered by this Court
that the decree of the said superior court in this cause be and the
same is hereby reversed and annulled, and that this cause be and
the same is hereby remanded to the said superior court with
directions to enter a decree in conformity to the opinion of this
Court.
