United States v. Forbes' Heirs
40 U.S. 173

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U.S. Supreme Court

United States v. Forbes' Heirs, 40 U.S. 15 Pet. 173 173 (1841)

United States v. Forbes' Heirs

40 U.S. (15 Pet.) 173

APPEAL FROM THE SUPERIOR

COURT OF EAST FLORIDA

The executor of John Forbes, on 20 May, 1829, presented a petition to the Superior Court for the Eastern District

Page 40 U. S. 174

of Florida claiming 10,000 acres of land, 7,000 of which were surveyed on the waters of "Little St. Mary's River" in the then District of Nassau in East Florida, the other tract, being 3,000 acres, was alleged to be situated on "Cabbage Swamp," also in East Florida.

The petition stated that the grant for the land was made by Governor Kindelan in lieu of 15,000 acres which had been surrendered by John Forbes to the King of Spain. The petition contained the "memorial for grant," which was presented, on 27 July, 1814, to Governor Kindelan by John Forbes. It was, with the proceedings, as follows:

"His Excellency the Governor:"

"I, Don Juan Forbes, partner of the firm of Juan Forbes & Company, successors of Panton, Leslie & Company, merchant, of this province, with the greatest respect, appears before your Excellency and says that the said firm of Panton, Leslie & Company obtained, in the year 1799, a grant of 15,000 acres of vacant lands in the District of St. John in order to employ their slaves in the agriculture and for grazing their cattle, as is seen by the certificate annexed, but after a short time they were under the necessity to abandon them as being of an inferior quality, the same thing happened to which, which frequently happens in this province where the planter does not every time succeed in his choice of land, which he perceives only when a sorrowful experience shows him his error, and as it has been for many preceding years that the government, in attention to similar misfortunes and to the expenditures and losses which have been incurred, has had the goodness to permit the taking up other vacant lands, provided the prior grant be abandoned. Finding myself situated in the same case and wishing to establish a rice plantation, which production we have been, until the present time, under the necessity to import from foreign parts, I, from this moment, abandon the said 15,000 acres of land in behalf of his Majesty (whom may God have in his holy keeping!) supplicating him to admit it, and in lieu thereof, to grant me an equivalent in the district of Nassau River. Therefore I supplicate your Excellency, be pleased to order that my former abandonment be

Page 40 U. S. 175

received, and in consequence that 10,000 acres be granted to me in said district of Nassau River, the survey of which I will produce as soon as the tranquility of the province enables me to execute it. Which favor, &c."

"JUAN FORBES"

On 27 July, 1814, Governor Kindelan ordered, on the petition, "let the comptroller inform on the subject."

The comptroller reported on 28 July 1814, that

"Whereas in this province lands are distributed gratis, no record has been entered in the comptroller's office of lands so given, nor to whom given, for which reason it is not known what lands have been given and what remain vacant. Therefore nothing can be said on the subject about which information is required. It appears, however, that it is useful to promote the culture of rice, to which, as the interested party alleges, the lands granted to him 7 August, 1799, for the express purpose of pasturage, as appears by the annexed certificate of the then notary of government, Juan de Pierra, are not adapted."

On the same day, Governor Kindelan made the following "grant," by:

"DECREE: St. Augustine, on 28 July, 1814. It is permitted to this interested party to give his formal abandonment of the 15,000 acres of land, comprehended in the document annexed to the petition, and in lieu of them the 10,000 are granted to him, without prejudice to a third party, for the objects solicited, in the district or bank of the River Nassau, and in consequence let the corresponding certificate be issued in his behalf from the secretary's office in order that it may serve him as a title in form, and it will be the duty of the party to produce the plat and demarcations in the proper time, and let the expediente be registered in the secretary's office."

"KINDELAN"

On 23 October, 1816, George J. F. Clarke, "the surveyor general," certified that he had made "a survey" of 7,000

Page 40 U. S. 176

acres at the head of the River Little St. Mary's or St. Mary's River, and annexed "a plat" of the same to his certificate of survey, which, the certificate stated, he "keeps in the register of surveys under his charge." On 20 October, 1816, George J. F. Clarke certified, that he had made a survey of 3,000 acres "in Cabbage Swamp, in part of 10,000" granted to John Forbes in absolute property, and annexed "a plat" of the same to his certificate, as surveyor general, and stated "that he keeps the same in the register of surveys under his charge."

After evidence had been taken on behalf of the petitioner and of the United States, the court confirmed the claim of the petitioner to the extent for the number of acres, and at the place, as in the memorial of the said John Forbes, and the decree of the governor thereon, is set forth, to-wit: "Ten thousand acres of land in the district or bank of the River Nassau." The United States prosecuted this appeal.

Page 40 U. S. 180

CATRON, JUSTICE, delivered the opinion of the Court.

John Forbes, by his memorial to Governor Kindelan (without date), sets forth that in 1799 there had been granted to Panton, Leslie & Co., for the purpose of agriculture and for grazing

Page 40 U. S. 181

their cattle, 15,000 acres of land in the district of St. Johns, which they were under the necessity of abandoning as being of an inferior quality; that said John Forbes is one of the firm of John Forbes & Co., successor to Panton, Leslie & Co. And said John Forbes prays to be admitted to abandon the 15,000 acres to the King's domain; and in lieu thereof to have granted to him an equivalent in the district of Nassau River, to-wit, that 10,000 acres be granted to him in said district of Nassau River, the survey of which he will produce as soon as the tranquility of the province enables him to execute it. The petition avers the object was to establish a rice plantation.

The petition was referred to the comptroller, Lopez, for a report thereon to Governor Kindelan; the comptroller reports that records of such grants were not made in his office, and of course he could give no information on the subject, but gives it as his opinion that the culture of rice should be promoted. On 28 July, 1814, Governor Kindelan permitted the abandonment of the 15,000 acres granted in 1799, and in lieu thereof granted to John Forbes, for the object of cultivating rice, 10,000 acres in the district or bank of the River Nassau, and ordered a certificate to issue in the ordinary form, from the secretary's office, to serve the party as a title in form, making the duty of said Forbes to produce the plat and demarcation in proper time. On 23 October, 1816, George F. Clarke, the surveyor, returned that he had, as Surveyor General of East Florida, surveyed and delineated for Don Juan Forbes 7,000 acres of land at the head of the River Little St. Mary's, or St. Mary's River, said land being the complement of 10,000 acres which were granted to him in absolute property, conformable to the annexed plat. Previously, on 20 October 1816, said Clarke had surveyed for Forbes 3,000 acres in part of the 10,000 acres granted to him, conformable to the annexed plat. This survey was in Cabbage Swamp. But no other description of locality appears either from the certificate or plat, nor is there any evidence appearing on the surveys or by proof that the lands surveyed lie in the district of the River Nassau or on the

Page 40 U. S. 182

bank of said river; on the contrary, the 7,000 acre survey is on the River Little St. Mary's, which a woman, Mrs. Fleming, proves she had heard was near to the Nassau. The situation of Cabbage Swamp does not appear from the record.

The decree of Governor Kindelan contemplated that the tract should be included in one survey, as did the petition of Forbes. Neither of the surveys corresponding with the concession, in regard to the district where the survey could alone be made, and being on lands not granted by the Governor of Florida, the surveys, if confirmed, would be recognized as of themselves appropriations of the lands independently of the concession on which they profess to be founded, making them the origin of title, and assuming that the surveyor had the power to grant. This Court has on all occasions holden, when the question has been presented, that the survey must be for the land granted by the proper authority. United States v. Clarke, 8 Pet. 468; United States v. Huertas, 9 Pet. 171.

The courts of justice can only adjudge what has been granted and declare that the lands granted by the lawful authorities of Spain are separated from the public domain, but where the land is expressly granted at one place, they have no power by a decree to grant an equivalent at another place, and thereby sanction an abandonment of the grant made by the Spanish authorities. All the public domain of Spain was ceded to this government by the treaty of cession, and the title in fee to the same vested in the United States; from the lands thus acquired was excepted individual property. First, the paper title to such private property it is our duty to investigate and ascertain, and by our decisions to establish, and secondly it is our duty to ascertain and cause to be surveyed and marked by definite boundaries the lands granted, and here the duties of the courts end. They have no authority to divest the title of the United States and vest in a claimant, however just his claim may be, an equivalent. These principles seem to be self-evident, and their assertion not called for because of their undoubted character, yet the consequences flowing from them will be found to govern a class of cases of large magnitude now in the course of adjudication. The one before us is of that class. The concession or grant (for the terms are synonymous in regard to the

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Spanish titles of Florida) to Juan Forbes, was for 10,000 acres in the district or bank of the River Nassau, with an order that the concession should serve him as a title in form, "and it will be the duty of the party to produce the plat and demarcations, in the proper time," says the decree of the Spanish governor.

That this concession is founded on a past consideration -- that is, on the surrender of other 15,000 acres previously granted to Panton, Leslie & Company -- admits of no doubt; still the question recurs what spot of land was granted? Of the district of Nassau we know nothing, as there is no proof of the existence of such a section of country in the record unless we infer that it is in the range of country through which the River Nassau runs. But the description is more precise, and authorizes the grantee to take the land on the bank of this river. That there is such a river as the Nassau, in East Florida, lying south of the St. Mary's River, we know from the general geography of the country; it is, however, a river of considerable length; the land might have been located on either bank, from its commencement as a river to its mouth at the ocean. No survey of the land granted was ever made; the duty imposed upon the grantee to produce the plat and demarcations in the proper time was never performed. This was a condition he assumed upon himself; the execution and return of the survey to the proper office, in such case, could only sever the land granted from the public domain. Before, the grantee had an equal right to any lands on either bank of the River Nassau. The concession was made in 1814, and how long the party had the right to survey and make the demarcation it is needless to inquire, as it has never been done. We apprehend, however, within six months after the ratification of the treaty, by the contracting parties, respectively, was the latest date at which the condition to survey could have been complied with; on this point, however, no definite and conclusive opinion is called for, and none is given.

Thus situated, the claim was presented to the Superior Court of Florida for confirmation. The court pronounced the claim valid, that is, that the concession had been made by the lawful authorities of Spain, and it was decreed that the lands

"be confirmed at the place, as in the memorial of the said John Forbes, and the decree of the governor thereon

Page 40 U. S. 184

set forth, to-wit, 10,000 acres of land in the district or bank of the River Nassau."

From this decree the United States appealed, and in the review of which decree we are compelled to find the land granted, or to reject the claim because we cannot identify the land. If this cannot be done, we have no power to decree an equivalent out of the lands of the United States, for the reason that the courts have no authority to divest the title of the government, and to vest it in Forbes' heirs. No particular land having been severed from the public domain by John Forbes, his was the familiar case of one having a claim on a large section of country unlocated; in its nature and effect, as it regards the government, not differing from the holder of a land warrant in the American states, which might be located by survey at any spot that was not appropriated by an individual title, in a certain district of country. In such a case, the government has ever been deemed to hold the fee, unaffected by a vested equitable interest, until the location was made according to the laws of the particular country. So here, Forbes acquired no title to any land that can be recognized by a court of justice, and his claim must be pronounced void for want of identity, and because it is impossible to settle the identity, and locate the land by a judicial decree.

Although this question has not been directly presented to the Court for decision, yet it did arise, and received our careful consideration in the case of the United States v. Arredondo, 13 Pet. 88. In that case, 30,000 acres had been granted to Arredondo in 1817, designated to lie on Alligator Creek, a branch of the Suwanee, to begin about seven miles west of Alligatortown, situated about forty miles north-westwardly from Paynestown, and about eighty miles from Buena Vista, which parts of the country are known under the name of Alachua. The Court said

"The land must be taken, as near as may be, as it was granted, and cannot be taken elsewhere. It [the grant] gives no right to an equivalent or another location if it cannot be found at or near the place designated; an equivalent is not secured by the concession in terms, nor is it by the customs or usages of Spain, nor by any law or ordinance of Spain. And it is proper here to remark that the acts of Congress for ascertaining claims and titles to land

Page 40 U. S. 185

in Florida, whilst they recognize the patents, grants, concessions or orders of survey as evidence of title when lawfully made, do not permit, in case of a deficiency in the quantity from any cause whatever, the survey to be extended on other lands."

Detailed and careful instructions are then given how the court below shall proceed to identify the land and how it shall be surveyed when the identity is established, and then the Court declared

"If, however, neither Alligator Creek can be found nor any creek to the west of Alligatortown entering into the Suwanee within seven miles distance from the town or a reasonable distance therefrom, and if Alligatortown cannot be found, then it is the opinion of this Court that the remaining description in the petition of the locality of the concession is too indefinite to enable a survey to be made, and that the appellees can take nothing under the concession."

Subject to this opinion, and a mandate in conformity to it, the cause was remanded to the Superior Court of East Florida for further proceedings in execution of the decree and instructions of this Court, and where it is probably now pending. We think the principle adopted unquestionably correct, and which rules this case.

The petition of Juan Forbes, and the concession of Governor Kindelan, are authenticated and were read in evidence by the following certificate:

"On the date, a copy of this expediente was given to the interested party above."

"AGUILAR"

We feel strongly impressed with the deficiency and unsatisfactory character of the foregoing certificate, but as no objection was made to the introduction of the title papers in the court below on behalf of the United States on the hearing, and as the cause has presented no difficulty on its merits, this preliminary point has been passed over with this indication, so that in future the objection may be taken below should it be deemed desirable to present the question on part of the government, whether such authentication is sufficient to authorize the evidences of title to be read.

We order the decree of the Superior Court to be reversed, and that the petition be dismissed.

Page 40 U. S. 186

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 the opinion of this Court that the grant or concession is void for the want of identity; that it appropriates no land; that the said petitioner has acquired no right or title to any specific 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.

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