United States v. Breward
41 U.S. 143

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U.S. Supreme Court

United States v. Breward, 41 U.S. 16 Pet. 143 143 (1842)

United States v. Breward

41 U.S. (16 Pet.) 143

Syllabus

Florida land claim. Breward petitioned the Governor of East Florida, intending to establish a saw mill to saw lumber on St. John's River, for a grant of five miles square of land or its equivalent, ten thousand acres to be in the neighborhood of the place designated and the remaining six thousand acres in Cedar Swamp, on the west side of St. John's River, and in Cabbage Hammock, on the east side of the river. The governor granted the land asked for on the condition that the mill should be built, and the condition was complied with. On 27 May, 1817, the Surveyor General surveyed seven thousand acres under the grant, including Little Cedar Creek, and bounded on three sides by Big Cedar Creek, including the mill. This grant and survey were confirmed.

Three thousand acres were laid off on the northern part of the River St. John's, and east of the Royal Road, leading from the river to St. Mary's, four or five miles from the first survey. This survey having been made at a place not within the grant, was void, but the court held that grantee is to be allowed to survey under the grant three thousand acres adjoining the survey of seven thousand acres if so much vacant land can be found, and patents for the same shall issue for the land, if laid out in conformity with the decree of the court in this case.

In 1819, two thousand acres were surveyed in Cedar Swamp, west of the River St. John's, at a place known by the name of Sugar Town. This survey was confirmed. Four thousand acres, by survey dated April, 1819, in Cabbage Hammock, were laid out by the Surveyor General. This survey was confirmed.

By the eighth article of the Florida Treaty, all grants of lands made before 24 January, 1824, by his Catholic Majesty, were confirmed, but all grants made since the time, when the first proposal by his Majesty for the cession of the country was made are declared and agreed by the treaty to be void. The survey of five thousand acres having been made at a different place from the land granted, would, if confirmed, be a new appropriation of so much land, and void if it had been ordered by the Governor of Florida, and of course it is void, having nothing to uphold it but the act of the Surveyor General. Cited, 35 U. S. 10 Pet. 309.

In the Superior Court of East Florida, the counsel for the claimant offered to introduce testimony in regard to the survey of three thousand acres, and the counsel of the United States withdrew his objections to the testimony. The admission of the evidence did not prove the survey to have been made. Proof of the signature of the Surveyor General to the return of survey made the survey prima facie evidence. Cited, Mrs. Wiggins' Case, 14 Pet. 346.

The proof of the signature of Aguilar to the certificate of a copy of the grant by the Governor of East Florida authorizes its admission in evidence, but this does not establish the validity of the concession. To test the validity of the survey, it was necessary to give it in evidence, but the survey did not give a good title to the land. The United States has a right to disprove a survey made by the Surveyor General if the survey on the ground does not correspond to the land granted.

Page 41 U. S. 144

The claim was founded on a petition of Breward dated 23 August 1816, and an alleged decree of Governor Coppinger thereon dated the following day. The petition stated that

"he intends to establish a mill to saw lumber for the supply of commerce and the province, which he wishes to situate upon St. John's River, on the creek known by the name of Little Cedar Creek, and whereas said costly fabric requires, to secure in lands and timber, what may be sufficient to cover the great expenses which are necessary to build it, and it being all for the benefit of the province, he prays that there may be granted to him the usual five miles square of land or its equivalent, destining to him ten thousand acres in the neighborhood of said place, and the remaining six thousand acres in Cedar Swamp, on the west side of St. John's River, and in Cabbage Hammock, on the east side of said river."

Governor Coppinger's decree on this petition stated that,

"In consideration of the benefit and advantages which ought to result in favor of the province if what the interested proposes is effected, the lands and permission which he solicits are granted to him, but with the express condition that he shall not have the absolute right to them until he erects said machine."

The original of the petition and decree were not produced in evidence; neither were they to be found in the archives at St. Augustine; but a certified copy, under the hand of Thomas de Aguilar, secretary of the government, whose handwriting was proved, stating that they were true copies, faithfully taken from the original which existed in his office, was offered, and was objected to by the district attorney, and admitted by the court.

There was also offered in evidence plats and certificates of survey, made for John Breward by George J. F. Clarke, surveyor general: 1. dated 27 May 1817, for 7,000 acres of land between the branches called Cedar Creek, and Dunn's Creek, on the northern part of the River St. John's; 2. dated 28 August 1819, for 3,000 acres on the northern part of the River St. John's and east of the Royal Road leading from said river to St. Mary's;

Page 41 U. S. 145

3. dated 10 October 1819, for 2,000 acres in Cedar Swamp on the west part of the River St. John's at a place known by the name of Sugar-Town; 4. dated 19 April 1820, for 4,000 acres, in Cabbage Hammock, on the east part of the River St. John's, and south of the branch called Dunn's Creek, which runs from Dunn's Creek to the said river.

After hearing testimony in the case, the superior court made a decree in favor of the claimants for the four tracts of land, from which the present appeal was taken.

For the United States, it was contended that the decree should be reversed because: 1. that there was not sufficient evidence that the said alleged grant or commission was ever made by Governor Coppinger; 2. that the alleged concession, if made, was on a condition precedent, which was never fulfilled; 3. that the concession, if ever made, did not contemplate that the lands conceded should be surveyed in four different tracts or parcels; 4. that the description of the lands in the grant were too vague to be the foundation of a valid survey; 5. that the plats and certificates of survey did not conform to the description of the lands in the said pretended grant.

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