Lessee of Pollard's Heirs v. Kibbe
39 U.S. 353

Annotate this Case

U.S. Supreme Court

Lessee of Pollard's Heirs v. Kibbe, 39 U.S. 14 Pet. 353 353 (1840)

Lessee of Pollard's Heirs v. Kibbe*

39 U.S. (14 Pet.) 353

ERROR TO THE SUPREME COURT

OF THE STATE OF ALABAMA

Syllabus

Action of ejectment in the state court of Alabama for a lot of ground in the City of Mobile. The plaintiff claimed the title to the lot under an act of Congress, and the decision of the state court was against the right and title so set up and claimed. A writ of error was prosecuted to the Supreme Court of Alabama. It was held that this case was embraced by the twenty-fifth section of the Judiciary Act of 1789, which gives this Court jurisdiction to revise the judgment of the state court in such cases.

The act of Congress under which title was claimed being a private act and for the benefit of the City of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of individuals, and the situation of the land embraced in the law at the time it was passed.

A lot of ground was granted by the Spanish government of Florida in 1802 to Forbes & Company in the City of Mobile, which was afterwards confirmed by the commissioners of the United States. The lot granted was eighty feet in front and three hundred and four feet in depth, bounded an the east by Water Street. This, while the Spanish government had possession of the territory, was known as "a water lot." In front of the lot was a lot which, at the time of the grant of the lot to Forbes & Company, was covered by the water of the Bay and River of Mobile, the high tide flowing over it, and it was separated from Forbes & Company's lot by Water Street. It was afterwards in part reclaimed by Lewis, who had no title to it, and who was afterwards driven off by one of the firm of Forbes & Company. A blacksmith's shop was then put on the lot by him, and Lewis again, by proceedings at law, obtained possession of the blacksmith's shop, it not being his improvement. The improvement was first made in 1823. The Spanish governor, in 1809, after the Louisiana Treaty of 1803 and before the territory west of the Perdido was out of the possession of Spain, granted the lot in front of the lot owned by Forbes & Company to William Pollard, but the commissioners of the United States, appointed after the territory was in the full possession of the United States, refused to confirm the same "because of the want of improvement and occupation." In 1824, Congress passed an act the second section of which gives to those who have improved them the lots in Mobile known under the Spanish government as "water lots" except when the lot so improved had been alienated and except lots of which the Spanish government had made " new grants" or orders of survey during the time the Spanish government had "power" to

grant the same, in which case the lot is to belong to the alienee or the grantee. In 1836, Congress passed an act for the relief of William Pollard's heirs by which the lot granted by the Spanish government of 1809 was given to the heirs, saving the rights of third persons, and a patent for this lot was issued to the heirs of William Pollard by the United States on 2 July, 1836. Held that the lot lying east of the lot granted in 1802 by the Spanish government to Forbes & Company did not pass by that grant to Forbes & Company, that the Act of Congress of 1824, did not vest the title in the lot east of the lot granted in 1802 in Forbes & Company, and that the heirs of Pollard, under the second section of the act of 1824, which excepted from the grant to the City of Mobile, &c., lots held under "new grants" from the Spanish government, and under the Act of Congress of 1836 were entitled to the lot granted in 1809 by the Spanish governor to William Pollard.

The term "new grants," in its ordinary acceptation, when applied to the same subject or object, is the opposite of "old." But such cannot he its meaning in the Act of Congress of 1824. The term was doubtless used in relation to the existing condition of the territory in which such grants were made. The territory had been ceded to the United States by the Louisiana Treaty, but, in consequence of a dispute with Spain about the boundary line, had remained in the possession of Spain. During this time, Spain continued to issue evidences of titles to lands within the territory in dispute. The term

Page 39 U. S. 354

"new" was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession.

The time when the Spanish government had the "power" to grant lands in the territory, by every reasonable intendment of the Act of Congress of 1824 must have been so designated with reference to the existing state of the territory as between the United States and Spain, the right to the territory being in the United States and the possession in Spain. The language "during the time at which Spain had the power to grant the same" was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case if Spain had full dominion over the territory by the union of the right and the possession, and in this view it is no forced interpretation of the word "power" to consider it here used as importing an imperfect right, and distinguished from complete lawful authority.

The Act of Congress of 25 March, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the Mississippi and west side of the Perdido and falling within the cession of France, embraced all claims of this description. It extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever derived from the French, British, or Spanish governments, and the reports of the commissioners show that evidence of claims of various descriptions, issued by Spanish authority, down to 1810, come under their examination. And the legislation of Congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain at St. Ildefonso. Such claims are certainly not beyond the reach of Congress to confirm, although it may require a special act of Congress for that purpose. Such is the Act of Congress of 2 July, 1836, which confirms the title of William Pollard's heirs to the lot which is the subject of this suit. The judgment of the Supreme Court of the United States in a case brought by writ of error to a court of a state must be confined to the error alleged in the decision of the state court upon the construction of the act of Congress before the state court.

In the Circuit Court for the County of Mobile, State of Alabama, an action of ejectment for a lot of ground situated in the City of Mobile, was instituted by the plaintiffs in error and was afterwards removed, by change of venue, to the Circuit Court for the County of Baldwin. It was tried before a jury in that court, and on the trial the plaintiffs filed a bill of exceptions to the charge of the court. A verdict and judgment were given for the defendant. From this judgment of the circuit court the plaintiffs prosecuted a writ of error to the Supreme Court of the State of Alabama, and the judgment of the circuit court in favor of the defendant was affirmed by the supreme court.

The plaintiffs prosecuted this writ of error to the Supreme Court of the United States under the twenty-fifth section of the Judiciary Act of 1789.

The following is the bill of exceptions filed by the plaintiffs on the trial of the cause in the Circuit Court of the County of Baldwin.

"On the trial of this cause at the above term, the plaintiffs, to maintain the issue on their part, gave in evidence an instrument signed by Cayetano Perez, written in the Spanish language, a translation of which is hereto annexed as part of this bill of exceptions, but which instrument was shown to have been reported against and rejected by the commissioners appointed by the United States government to investigate and report on such matters because of the want of improvement and occupancy. "

Page 39 U. S. 355

"THE SPANISH GRANT, TRANSLATED."

"Mr. Commandant: "

" William Pollard, an inhabitant of the district, before you with all respect represents that he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof, and that, having found a vacant piece at the riverside between the channel which is called 'John Forbes & Company's' and the wharf at this place, he petitions you to grant said lot on the riverbank to give more facility to his trading, a favor he hopes to obtain of you."

" Mobile, 11 December, 1809 WILLIAM POLLARD"

"Mobile, 12 December, 1809"

" I grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant."

"CAYETANO PEREZ"

"They further gave in evidence an act of Congress passed 26 May, 1824, entitled an act granting certain lots of ground to the corporation of the City of Mobile and to certain individuals of said city. They further gave in evidence an Act of Congress passed July 2, 1836, entitled an act for the relief of William Pollard's heirs. They then gave in evidence a patent, dated 14 March, 1837, issued in pursuance of said act of Congress of 2 July, 1836, which patent embraced the premises in question. The plaintiffs further proved that in the year 1813 or 1814, some wreck and driftwood was removed from the place where the premises in question now are by the hands of William Pollard, the grantee. The defendant gave in evidence a Spanish grant dated 9 June, 1802, to John Forbes & Company for a lot of ground, for eighty feet front on Royal Street, with a depth of three hundred and four feet to the east and bounded on the south by Government Street, which grant was recognized as a perfect title, and so confirmed by act of Congress. Attached to the original grant was a certificate signed by W. Barton, Register, Wm. Barnet, Receiver, P.M.; Attest, John Elliott, Clerk, a copy of which is the following: "

"PROCEEDINGS OF THE COMMISSIONERS"

"Land Office, Jackson Courthouse"

"Commissioners Report, No. 2; Certificate, No. 3"

" In pursuance of the Act of Congress passed on 3 March, 1819, entitled 'an act for adjusting the claims to land, and establishing land offices in the district east of the Island of Orleans,' we certify that the claim No. 3, in the report of the commissioners, numbered 2 (claimed by John Forbes & Company, original claimant, Panton Leslie and Company) is recognized by the said act as valid against any claim on the part of the United States or right derived

Page 39 U. S. 356

from the United States, the said claim being for eighty feet in front and three hundred and four in depth, area 24,320 feet, situate in the Town of Mobile and claimed by virtue of Spanish grant executed by J. V. Morales and dated 9 June, 1802."

" Given under our hands this 8 January, 1820."

"W. BARTON, Register"

""

WM. BARNETT, Receiver, P.M.

" Attest, JOHN ELLIOTT, Clerk"

"A map, or diagram, indicating the property claimed, as well as that covered by the above grant, with other lots, streets, &c., was submitted to the jury, and is to make a part of the bill of exceptions, by agreement between the counsel of the parties."

"According to that map and the proof, the lot sued for is east of Water Street, and also immediately in front of the lot conveyed by the above mentioned grant to John Forbes & Company, and only separated from it by Water Street. The proof showed that previous to 1819, then and until filled up, as after stated, the lot claimed by plaintiffs, was at ordinary high tide, covered with water, and mainly so at all stages of the water; that the ordinary high water flowed from the east to about the middle of what is now Water Street, as indicated on the map referred to, between the lot claimed by plaintiffs, and that covered by the grant to John Forbes & Company. It was proved that John Forbes & Company had been in possession of the lot indicated by their deed since the year 1802, and that said lot was known under the Spanish government as a water lot, no lots at that time existing between it and the water."

"It was proved that in the year 1823, no one being then in possession, and the same being under water, Curtis Lewis, without any title or claim under title, took possession of and filled up east of Water Street and from it eighty feet east, and thirty-six or forty feet wide, filling up north of Government Street, and at the corner of the same and Water Street; that Lewis remained in possession about nine months, when he was ousted in the night by James Innerarity, one of the firm of John Forbes & Company, who caused to be erected a smith shop and from whom Lewis sometime after regained possession by legal process and retained it till he conveyed the same. Proved that when said Lewis took possession, Water Street at that place could be passed by carts, and was common. The defendant connected himself, through conveyances for the premises in controversy, with the said grant to John Forbes & Company; also with the said Curtis Lewis, also, with the Mayor and Aldermen of the City of Mobile, from each of which sources his title, if any, was derived by deed."

"It was admitted by the parties to the suit that the premises sued for were between Church Street and North Boundary Street; this was all the evidence introduced on the trial."

"On this evidence, the court charged the jury that if the lot conveyed as above to John Forbes & Company by the deed aforesaid

Page 39 U. S. 357

was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at and previous to 26 May, 1824, and was east of Water Street and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed passed by the Act of Congress of 26 May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company."

"The court further charged the jury it was immaterial who made the improvements on the lot on the east side of Water Street, being the one in dispute; that by the said acts of Congress, the proprietor of the lot on the west side of Water Street, known as above, was entitled to the lot on the east side of it. To which charges of the court the plaintiffs by their counsel excepted, and this was signed and sealed as a bill of exceptions. "

Page 39 U. S. 360

MR. JUSTICE THOMPSON delivered the opinion of the Court.

The writ of error in this case brings up the record of the final judgment of the Supreme Court of the State of Alabama. This case is brought here under the 25th section of the Judiciary Act of 1789, that court being the highest court of law in that state in which a decision could be had. It was an action of ejectment brought to recover possession of a lot of land in the City of Mobile. Upon the trial of the cause, the plaintiff claimed title to the premises in question under an act of Congress, and the decision in the state court was against the right and title so set up and claimed. It is therefore one of the cases embraced in this section of the Judiciary Act, which gives to this Court jurisdiction to revise the judgment of the state court.

The act under which title was claimed was passed on 26 May, 1824, Land Laws 885, granting certain lots of ground to the corporation of the City of Mobile, and to certain individuals of that city. Although the judgment of this Court must be confined to the error alleged in the decision of the state court, upon the construction

Page 39 U. S. 361

of the act of Congress under which title was claimed, it becomes necessary to the right understanding of the act which was drawn in question to look at the state of facts appearing on the record. It being a private act for the benefit of the City of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of such individuals and the situation of the land embraced within the law at the time it was passed.

These facts, as they appear on the record, are briefly as follow. On the trial, the plaintiff gave in evidence an instrument signed by Cayetano Perez, dated at Mobile, 12 December, 1809, purporting to be a petition of William Pollard for a certain lot of ground, which is described as vacant, at the river side between the canal, which is called John Forbes & Company's, and the wharf of this place, corresponding in description with the location of the lot in question, and a grant accompanying the petition, in these words: "I grant the petitioner the lot or piece of ground he prays for on the river bank, provided it be vacant," which grant was rejected by the commissioners appointed by the government of the United States to investigate and report upon such claims because of the want of improvement and occupation of the lot. The defendant gave in evidence a Spanish grant dated 9 June in the year 1802 to John Forbes & Company for a lot of ground eighty feet front on Royal Street, with a depth of three hundred and four feet to the east and bounded on the south by Government Street, which grant was recognized by the commissioners as a perfect title, and so confirmed by Congress. A map or diagram is referred to in the record, by which it appears that the lot sued for is east of Water Street, and immediately in front of the lot conveyed by the above mentioned grant to John Forbes & Company, and only separated from it by Water Street. It appeared in evidence that previous to the year 1819, and until filled up by Curtis Lewis, the lot in question was, at ordinary high tide, covered with water, and mainly so at all stages of the tide. That the ordinary high water flowed from the east to about the middle of what is now Water Street. It was proved that John Forbes & Company had been in possession of the lot granted to them since the year 1802, and that said lot was known under the Spanish government as a water lot, no lots at that time existing between it and the water.

In the year 1823, no one being in possession of the lot in question and the same being under water, Curtis Lewis, without title or claim under title, took possession of and filled up east of Water Street, about thirty-six or forty feet wide and eighty feet deep from Water Street, the filling up being north of Government Street at the corner of that and Water Street. Lewis remained in possession about nine months, when he was ousted in the night time by James Innerarity, one of the firm of John Forbes and company, who caused to be erected thereon a smith's shop. Lewis sometime after regained the possession by legal process, and retained it until he conveyed away the same. When Lewis took possession, Water

Page 39 U. S. 362

Street at that place could be passed by carts, and was common. The defendant connected himself through conveyances for the premises in question, with the grant to John Forbes & Company, and also with Curtis Lewis and the Mayor and aldermen of the City of Mobile.

Such being the situation of the lot in question and of the several claims to the same, the Act of the 26 May, 1824, was passed. The first section of this act can have no bearing upon the claim set up to the lot in question. It only vests in the City of Mobile all the right and claim of the United States to all the lots not sold or confirmed to individuals either by this or any former act and to which no equitable title exists in favor of any individual under this or any other act. If, therefore, the second section applies to the lot in question at all, it is excepted out of the first section. That the second section does apply to this lot has not been and cannot be doubted. That section is as follows:

"That all the right and claim of the United States to so many of the lots of ground east of Water Street and between Church Street and North Boundary Street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots in the said City of Mobile whereon improvements have been made be, and the same are hereby, vested in the several proprietors and occupants of each of the lots heretofore fronting on the River Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same, in which case, the right and claim of the United States shall be and is hereby vested in the person to whom such alienation, grant, or order of survey was made or in his legal representatives. Provided that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate."

There are two facts to be collected from this description of the lots embraced in this section of the act which must be kept in view in deciding this question, viz., that the lots on the west side of Water Street were known under the Spanish government as water lots, and that the lots on the east side of Water Street are now known as water lots, and may properly be distinguished under the denomination of old water lots and new water lots.

The only question for this Court to decide is whether the state court misconstrued this act by deciding against the right and title set up under it by Pollard's heirs. The record states that the court charged the jury that if the lot conveyed as above to John Forbes & Company by the deed aforesaid was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at and previous to 26 May, 1824 (the date of the law) and was east of Water Street and immediately in front of the lot so conveyed to John Forbes & Company,

Page 39 U. S. 363

then the lot claimed passed by the Act of Congress of 26 May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company.

The facts hypothetically put by the court to the jury had been fully proved in the affirmative, and indeed were not at all denied -- to-wit that the lot conveyed to John Forbes & Company was known under the Spanish government as a water lot and that the lot claimed by the plaintiffs had been improved previous to 26 May, 1824, and was in front of the lot conveyed to John Forbes & Company.

The construction, therefore, of the court was substantially that the act conveyed the lot in question to the owners and occupants of the lot conveyed to John Forbes & Company. That such was the construction of the act given by the court is conclusively shown by the subsequent part of the charge: that it was immaterial who made the improvements on the lot in dispute on the east side of Water Street. That by the said act of Congress, the proprietor of the lot on the west side of Water Street was entitled to the lot on the east side of it.

If this construction of the act was erroneous and against the right claimed by the plaintiffs, the judgment must be reversed. The act is undoubtedly very obscurely worded, and its construction, it must be admitted, is doubtful.

The principal difficulty arises upon the true understanding and reference of the words, "whereon improvements have been made," whether they refer to improvements on the lot on the west side of Water Street or on the lot in question on the east side of Water Street. The grammatical construction would undoubtedly refer the improvements to the lot on the west side of the Street, and would be carrying into effect what is believed to be the general course of policy in most of the United States of giving a preference to the owner of land on the shore of navigable streams of water to the right and privilege of the land under the water between high and low water mark. And on the other hand, it would seem unjust, where actual improvements had been made on the land below high water mark, to disregard and take away such improvements and give them to the owner of the lot on the west side of the street.

The evidence as to the extent and value of the improvements on the lot in question is very loose, and affords but little information upon that point. They could probably have been but of little value. They were made by Curtis Lewis, he not having any title or even claim of title. And it is not reasonable to suppose that under such circumstances and from the short time he was in possession before the passage of this act, that he would have made very valuable improvements. And if the intention of Congress had been to give the lots on the east side of Water Street to those who had improved them, it would have required but a very plain and simple declaration to that effect, and might have been just and equitable if such improvements were valuable. But it is difficult to conceive how

Page 39 U. S. 364

the phraseology in the act could have been adopted to indicate such intention.

It is not, however, necessary to decide upon the construction of this act as between the conflicting claims of the owner of the lot on the west side of Water Street and those who had made improvements on the lot on the east side of that Street. For there is excepted out of the act all cases where the Spanish government has made "a new grant" or order of survey for the same during the time at which they had "the power" to grant the same, in which cases the right and claim of the United States are vested in the person to whom such grant or order of survey was made or his legal representatives. And if the plaintiffs bring themselves within this exception, the right is secured to them. And this presents the question as to the construction to be given to this exception.

Two points of inquiry seem to be presented: one relates to the description of the grant or order of survey therein mentioned, and the other as to the time when made. The exception describes these grants or orders of survey as "new grants" or orders of survey. The term "new," in its ordinary acceptation, when applied to the same subject or object, is the opposite of "old." But such cannot be its meaning as here used, for there is no pretense that two grants or orders of survey had at any time been issued for the same lot. Some other meaning must therefore be given to it. And it doubtless was used in relation to the existing condition of that part of the territory, when grants or orders of survey like the one in question were made. The territory had been ceded to the United States by the Louisiana Treaty, but in consequence of some dispute with Spain respecting the boundary line, this part of the territory remained in the possession of Spain. And it is a fact established by the public documents and laws of Congress and cases which have come before this Court that during the period between the cession by France and the acquiring possession by the United States, Spain continued to issue evidences of title of various descriptions -- some complete grants and others which were only inchoate rights or concessions. And the term "new" was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession. And this construction is rendered certain when the description of the grants is connected with the subsequent part of the sentence as to the time when made, to-wit during the time at which the Spanish government had "the power" to grant the same. This time, according to every reasonable intendment, must have been so designated with reference to the existing state of the territory as between the United States and Spain, the right to the territory being in the United States and the possession in Spain. The language "during the time at which Spain had the power to grant the same" was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case if Spain had full dominion over the territory by the union of right and possession,

Page 39 U. S. 365

and in this view it is no forced interpretation of the word "power" to consider it here used as importing an imperfect right, and distinguishable from complete lawful authority. And indeed no other sensible construction can be given to the language here used, and the course of the government of the United States with respect to the claims originating during this period would seem necessarily to call for this construction. The act of Congress of 25 April, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the River Mississippi and west of the River Perdido and falling within the cession by France, embraced all claims of this description; it extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever derived from the French, British, or Spanish governments. And the reports of the commissioners show that evidence of claims of various descriptions, issued by Spanish authority down to the year 1810, came under the examination of the commissioners, and the legislation of Congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain at St. Ildefonso.

Such claims are certainly not beyond the reach of Congress to confirm, although it may require a special act of Congress for that purpose, and the present claim, being founded upon such act, distinguishes it from the doctrine of this Court in the cases of Foster and Elam v. Neilson, 2 Pet. 253, and Garcia v. Lee, 12 Pet. 511. And such claims have been recognized by this Court as existing claims, and not treated as being absolutely void. In the case of Delacroix v. Chamberlain, 12 Wheat. 599, an order of survey issued during this period came under the consideration of the Court. It bore date in the year 1806. The Court said this order of survey was not sufficient to support an action of ejectment, not having been recorded or passed upon by the board of commissioners so as to vest a legal title. But the Court observed that this order of survey bears date at a time when the Spanish authorities were in the actual possession of Mobile, where the land lies, and it was claimed as a part of the Floridas, then belonging to the Spanish Crown, and the United States claimed it as a part of Louisiana. That the United States, having since purchased the Floridas without having previously settled the controverted boundary, rendered it unnecessary to examine these conflicting claims. And the Court added if the United States and Spain had settled this dispute by treaty before they extinguished the claim of Spain to the Floridas, the boundary fixed by such treaty would have bound all parties. But as that was not done, the United States has never, so far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory, while Spain was in the actual possession of it, from concessions of a similar character made by Spain within the acknowledged limits. We will not, therefore, raise any question upon the ground of want of authority in the intendant to make such concession. Nothing more

Page 39 U. S. 366

is to be understood from this case than that the Court did not consider the circumstance that the concession being made whilst Spain was in the actual possession of the territory had prevented Congress from acting on the subject of such concessions. And when Congress, in the Act of 26 May, 1824, excepts certain grants or orders of survey made by Spain during the time at which they had the power to grant the same, the conclusion is irresistible that it included grants like the one to William Pollard now in question. This grant bears date on the 9 December in the year 1809, and was rejected by the commissioners for want of improvement and occupation, and not because it was absolutely void. But suppose it had been void under the then existing laws in relation to these lands, it could not prevent Congress from afterwards confirming this grant. The Act of 26 March, 1804, 2 Story 939, sec. 14, declaring certain grants void could not affect the one to Pollard, which was made in the year 1809, after the passage of that law.

But if the construction of the Act of 26 May, 1824, is doubtful, as it is admitted to be, the Act of 2 July, 1836, is entitled to great weight in aiding to remove that doubt. It is an act specially for the relief of William Pollard's heirs. It declares that there shall be and hereby is confirmed unto the heirs of William Pollard, deceased, a certain lot of ground situated in the City of Mobile and bounded as follows, to-wit: on the north by what was formerly known as John Forbes & Company's canal, on the west by Water Street, on the south by the King's Wharf, and on the east by the channel of the river, being the description of the lot now in question, and directing a patent to be issued in the usual form for the same. There is a proviso declaring that this act shall not interfere with or affect the claims of third persons. But giving to this proviso its full force and effect, the enacting clause is a legislative construction of the act of 1824, and locates the patent thereby directed to be issued upon the lot now in question. They are acts in pari materia, and are to be construed together, and in such a manner, if the language will reasonably admit of it, as to permit both acts to stand together and remain in full force. It is not to be presumed that Congress would grant or even simply release the right of the United States to land confessedly before granted. This would be only holding out inducements to litigation. And these two acts cannot stand together without considering the lot in question as coming within the exception of the act of 1824 and the act of 1836, as a confirmation (as it purports to be) of the title to the heirs of William Pollard.

The judgment of the Supreme Court of the State of Alabama is accordingly

Reversed.

MR. JUSTICE McLEAN.

I agree to the judgment of reversal in this case, and as my opinion is mainly founded on the construction of the second section of the

Page 39 U. S. 367

act of 1824, without reference to the exceptions it contains, I will state in a very few words my views in regard to that section.

It declares

"That all the right and claim of the United States to so many of the lots of ground east of Water Street and between Church Street and North Boundary Street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots in the said City of Mobile, whereon improvements have been made be and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the River Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant,"

&c.

The lots first named in this section are those to which the right of the United States is relinquished, and those lots are now denominated water lots, in contradistinction to those called water lots under the Spanish government.

"All the right and claim of the United States is relinquished to so many of the lots of ground . . . " -- then follows a description of the locality of these lots, lying

"east of Water Street, and between Church Street and North Boundary Street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots, in the said City of Mobile,"

and here the description of the locality of these lots ends, and the words "whereon improvements have been made" follow. Now I entertain no doubt the improvements must be made on the lots first named, and to which the United States relinquish their right, and not on those lots named merely to show the local situation of the present water lots. And this is the construction given to the section by the Supreme Court of Alabama.

The improvements then must be made on the water lot, and the lot in controversy in this case is a water lot.

The court instructed the jury that

"if the lot claimed by the plaintiffs had been improved at and previous to 26 May, 1824, and was east of Water Street and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed passed by the act of Congress to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company, and that it was immaterial who made the improvements on the disputed lot."

The second section gives to the proprietor of the lot fronting the water lot such water lot, provided it has been improved.

Now two things must concur to give a title under this act, and these are proprietorship of the front lot and improvements on the water lot. But by whom must these improvements be made or owned at the passage of the law?

The act does not specify, and the court instructed the jury that if improvements were made, it was not material by whom they were made. Can this be the true construction of the act?

Congress did not intend to give to the proprietor of the front lot

Page 39 U. S. 368

the water lot unless it was improved; nor did they intend to give to the person who had improved the water lot such lot unless he was the proprietor of the front lot. The improvements of the water lot were as essential to the claim of title under this act as the proprietorship of the front lot. And can it be supposed that Congress intended to give the water lot to the proprietor of the front lot, for the reason that the water lot had been improved by a stranger? In other words, that Congress, by a solemn act of legislation, would give a lot of ground to one man because it had been improved by another? This is the principle asserted by this construction, and it is so unjust and so directly opposed to the legislation of Congress in regard to the preemptive rights on the ground of improvements, that I am unwilling to sanction it. There is no instance in the entire history of legislation by Congress where they have sanctioned such a principle. The policy has been to secure to the individual the benefits of his own labor and expenditure. And I am of the opinion that unless the proprietor of the front lot was, on 26 May, 1824, also the proprietor of the improvements on the water lot, he can claim no title under the act.

MR. JUSTICE BALDWIN.

I fully concur with the Court on all the points embraced in its opinions, as well as the reasons assigned, being fully satisfied with the construction given to the acts of Congress of 1804, 1824, and 1836, I have no desire to add anything to the conclusive views presented in the opinion. But there are other important considerations necessarily connected with the merits of the case which induce me to notice them in a separate opinion, leading to the same conclusion on other grounds.

As it has been my assigned duty on several occasions to examine the subject of claims and titles to land in the various territories which the United States acquired by cession from Georgia, France, and Spain, a broad and varied field of investigation has been opened on a part of which there has been no opinion of this Court as yet delivered. That part is a review of the political condition of the territory between the Perdido and Mississippi from 1800 to 1821, under the Louisiana Treaty, the various acts of the executive and legislative departments of this government in relation to its cession, occupation, government, and adjustment of claims therein, the Constitution, and laws of nations before the ratification of the treaty of 1819, and in connection with that treaty; the judicial exposition of both treaties by this Court. It is a subject of high concern to numerous claimants of land within that territory; to the United States, both in interest and in relation to the formal complaints made by Spain of the omission "to cause the grants of the King to be respected, according to the stipulation of the eighth article of the treaty of 1819." This complaint was made soon after the decision of the case of Foster and Elam v. Neilson in 1829, and in 1832 the Secretary of State, after the decision of the case of

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Arredondo, made to the House of Representatives a long and full report in relation to these grants in which he states the opinion of the executive department to be most decidedly in favor of their confirmation on every ground on which they could be considered, and especially on the faith and honor of the United States pledged in the treaty. He felt himself to be unable to answer what he declared to be the just demands and complaints of Spain, and assigned as the sole reason why the executive had not recommended an immediate confirmation of the grants by Congress the two decisions of this Court in those two cases.

Under such circumstances, I take this occasion to throw this responsibility from the Court in the course now pursued, and hope to show most clearly that those decisions have hitherto been much misapprehended, and when taken in connection with subsequent ones, they most conclusively establish the right of the grantees of Spain in the disputed territory, derived from grants made between 1803 and 1810, while Spain was in the undisputed possession west of the Perdido, independently of the treaty of 1819, a fortiori by its stipulations. In so doing, I admit in the fullest manner, for all the purposes of this case and the principles it involves, that this Court is bound to take the east boundary of Louisiana to be the Perdido; that it was a political question, which having been settled by the political departments of the government, cannot be questioned in this; and that, as held in Foster and Elam, 2 Pet. 309, no title can be maintained under a Spanish grant "singly" on the ground that the Spanish construction of the Treaty of 1803 was right and the American construction wrong.

Keeping this principle in view, I shall consider the title of the plaintiff under a Spanish concession made in 1809 by the lawful authority of the King, independent of its confirmation by any special act of Congress, as resting on its validity by the laws of nations, the Constitution of the United States, the ordinance of 1787, the two treaties, and the general course of legislation by Congress in relation to government and property in the disputed territory. It will be observed that the claim of the plaintiff was duly filed and recorded, pursuant to the acts of Congress for adjusting claims to land west of the Perdido; he is therefore not deprived of any benefit which they confer or rights which are reserved, but may rely on any support they may give to his title by his having complied with all the requisitions enjoined. On a subject so broad, so interesting, so vitally affecting the rights of private property, under cessions by foreign powers or the states of this Union to the United States, and course of argument or opinion has hitherto been too limited on the course of the political departments of the government to save the necessity of the course herein pursued. It has been rather assumed than deduced from that detailed investigation which can alone lead to a satisfactory result, on matters so complicated and interwoven into our system of territorial, state, and federal governments.

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In 1800, Spain ceded Louisiana to France, by the Treaty of St. Ildefonso, but retained peaceable possession till May 1803, when it was surrendered to France in the same manner in which it was ceded by the previous treaty, declaring that,

"the limits of both shores of the Mississippi shall remain forever fixed by the treaty of Paris in 1763, and consequently the settlements from the River Manshack or Iberville to the line which divides the American territory from the dominions of the King shall remain in the possession of Spain and annexed to West Florida."

Vide27 U. S. 2 Pet. 303. White's Comp. 164.

In October, 1803, Congress authorized the President to take possession of and occupy the territory ceded by France to the United States and to organize a temporary government "for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property, and religion." 2 Story 907.

In December following, France surrendered the province to the United States, as it was ceded by Spain to France, under the same clauses and conditions, &c., and as this Court has declared, "in every respect with all its rights and appurtenances as it was held by France and received by France from Spain." 35 U. S. 10 Pet. 732.

Spain then was in the possession of the disputed territory by the consent of France expressed in the surrender of Louisiana, and the acceptance of the surrender by France to the United States, as she received it from Spain, was equally a consent by the United States to the continuance of the possession of Spain. Though the United States soon asserted her right to the "sovereignty and propriety" over and in the territory as far east as the Perdido, no attempt was made to disturb the possession of Spain till 1810. From 1803 till October, 1810, the condition of the country was this: Spain was the acknowledged sovereign de facto, in the peaceable exercise of all the powers of government, and claiming to be also the sovereign de jure, the United States neither asserting nor exercising the powers of a government de facto, but asserting her right as sovereign de jure under the Treaty of 1803, and as this Court said

"No practical application of the laws of the United States to this part of the territory was attempted, nor could be made while the country remained in the actual possession of a foreign power."

27 U. S. 2 Pet. 304.

In October, 1810, the President, by his proclamation, ordered military possession to be taken of the disputed territory, declared the laws of the United States to be in force within it, and ordered the inhabitants to be obedient thereto; but it was also declared that in the hands of the United States, the territory was "still left a subject of fair and friendly negotiation and adjustment," &c., and "under the full assurance that the inhabitants shall be protected in the enjoyment of their liberty, property, and religion." Vide 3 State Papers, Foreign Relations 397-398. Proclamation at large. At this time there was a revolutionary convention in session at Baton Rouge, within the disputed territory, claiming to be an independent

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government, to be admitted into the Union, and also claiming the "unlocated lands" therein. Id., 395-396.

In replying to these propositions, the Secretary of State, in November, 1810, in asserting the right of the United States as far as the Perdido by the Treaty of 1803, says:

"The delivery of possession has indeed been deferred, and the procrastination has been heretofore acquiesced in by this government from a hope patiently indulged that amicable negotiation would accomplish the purpose of the United States,"

&c. The Secretary then makes these remarks:

"The vacant land of this territory, thrown into common stock with all the other vacant land of the Union, will be a property in common for the national uses of all the people of the United States. The community of interest upon which this government invariably acts, the liberal policy which it has uniformly displayed towards the people of the territories (a part of which policy has ever been a just regard to honest settlers), will nevertheless be a sufficient pledge to the inhabitants of West Florida, for the early and continued attention of the federal legislature to their situation and their wants."

Id., 398.

In enclosing the President's proclamation to the Governor of Mississippi, the Secretary of State directs him to do whatever his powers will warrant to

"secure to the inhabitants the peaceable enjoyment of their liberty, property, and religion and to place them as far as may be on the same footing with the inhabitants of the other districts under his authority."

Id., 396-397.

In January, 1811, the President recommended to Congress in a confidential message the expediency of authorizing him

"to take temporary possession of any part of Florida in pursuance of arrangements with the Spanish authorities and for making provision for the government of the same during such possession."

3 State Papers, Foreign Affairs 394-395. A law was accordingly passed giving the authority required as to the territory east of the Perdido and south of Georgia and the Mississippi Territory, and for organizing a government for the protection and maintenance of the inhabitants of the said territory in the full enjoyment of their liberty, property, and religion. At the same time, Congress resolved under certain contingencies, on the

"temporary occupation of the territory adjoining the south border of the United States, they at the same time declare that the said territory shall in their hands remain subject to future negotiation."

6 Laws 592-593.

In February, 1813, the President was authorized "to occupy and hold all that tract of country called West Florida which lies west of the Perdido not now in the possession of the United States," for which purpose and

"for affording protection to the inhabitants under the authority of the United States, the President was authorized to employ the military and naval force of the United States."

6 Laws 593. This resolution and law remained unpublished till 1821, after the final ratification of the

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treaty of 1819, but under them the whole disputed territory was taken and held by the United States till it was annexed to the adjacent states by acts of Congress.

In 1812, that portion which was situated between the Iberville, the Mississippi, the east branch of Pearl River, and the Mississippi Territory was annexed to Louisiana on condition that a law should be passed

"securing to the people of the said territory, equal rights, privileges, benefits, and advantages with those enjoyed by the people of the other parts of the state."

Vide 2 Story 1224, 1230. A law was passed by Louisiana in compliance with this condition. In May of the same year, that portion which was situated between the east boundary of Louisiana and the Perdido was annexed to the Mississippi Territory, to be governed

"by the laws now in force or which may be hereafter enacted, and the laws and ordinances of the United States relative thereto, as if the same had originally formed a part thereof,"

&c., 2 Story 1248; by subsequent acts, this part of the territory was divided between Mississippi and Alabama, and thence formed a part of those states, the former of which was admitted into the Union before the signature of the treaty of 1819 and the latter in December following. Vide 3 Story 1617, 1620, 1635, 1735, 1804. 27 U. S. 2 Pet. 308.

From this summary view of the course of the executive and legislative branches of the government it is apparent that they were in the assertion of the territorial rights of the United States as claimed by them under the Treaty of 1803; it is also apparent from the solemn pledges made by both departments that the possession of the country was taken and held by force, yet subject to future negotiation as to the right of sovereignty and propriety, and full assurances to the inhabitants of being maintained and protected in the free enjoyment of their property.

Before proceeding to the stipulations of either treaty, it is now necessary to notice those acts of Congress which are referred to in the President's proclamation of 1810, in which he declares

"That the acts of Congress relating to this territory, though contemplating a present possession by a foreign authority, have contemplated also an eventual possession of the said territory by the United States, and are accordingly so framed as to extend their operation to the same."

3 State Papers, For.Aff. 397.

The principles of this proclamation were adopted by Congress, whereby the laws which bound the inhabitants of the disputed territory at the same time protected them in their rights of property as completely as in the Island of Orleans or west of the Mississippi; these laws were suspended in their operation during the occupation of Spain, but applied to the whole country ceded by France to the United States as soon as it came into their possession, and their provisions, from the first to the last, are of a uniform character. Whenever Congress gave authority to take possession of the ceded territory and provide for its temporary government, the declared

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object was "to maintain and protect the inhabitants in the enjoyment of their property," &c., as has been seen in the act of 1803. 2 Story 907.

By the act of 1804 it was provided that "no law shall be valid which is inconsistent with the laws and Constitution of the United States." 2 Story 933. "The laws in force in the said territory and not inconsistent with this act shall continue in force until altered, modified, or repealed." 2 Story 937.

The act of 1805 authorized a government similar to that of the Mississippi Territory, and declared the ordinance of 1787 in force (except as to the descent of estates and slavery) and continued the existing laws till altered, &c.; it also authorized the admission of the territory into the Union according to the third article of the Treaty of 1803. 2 Story 963, 964.

As this act placed the whole ceded territory under the same system of government as Mississippi, we must look to the acts of 1798 and 1800, which organized a government over that territory (before any cession was made by Georgia to the United States) without the consent of Georgia, and while the whole territory over which the United States thus assumed jurisdiction, was claimed by Georgia. This is necessary in order to ascertain what effect the United States intended that their occupation of the territory then in controversy should have upon the rights of Georgia, or of the proprietors of lands claiming under that state. This is the more important when the compact with Georgia in 1802 is applied to the preexisting state of things in the territory in dispute between her and the United States, for it will be found in all respects analogous to the state of things existing in the country west of the Perdido before the treaty of 1819 took effect, and that the proclamation of the President and the acts of Congress for taking the possession of West Florida and annexing it to the contiguous territories first and then to the states, contain pledges fully as strong, and to the same import, as those given to Georgia by this provision of the acts of 1798 and 1800:

"That the establishment of the said government shall in no respect impair the right of the State of Georgia or of any person or persons either to the jurisdiction or the soil of the said territory, but the rights and claims of the said state and of all persons interested are hereby declared to be as firm and available as if this act had never been made."

1 Story 495, 778.

In connection with this provision it must be observed that up to 1797, Spain had claimed and occupied the southern portion of the Mississippi Territory as part of Florida; pursuant to the treaty of 1795, she surrendered all the country north of the 31

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