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

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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

ON APPEAL FROM THE SUPERIOR

COURT OF EAST FLORIDA

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.

CATRON, JUSTICE, delivered the opinion of the Court.

The petitioner asked five miles square of land, being 16,000 acres, on Little Cedar Creek, of St. John's River, he intending to establish a mill to saw lumber; 10,000 acres were asked for in the neighborhood of the place, and the remaining 6,000 acres, in Cedar Swamp, on the west side of St. John's River, and in Cabbage Hammock, on the east side of that river. On 20 August 1816, the Governor of Florida decreed the same on the condition the mill was built. The condition was complied with.

1. On 27 May 1817, George F. Clarke, the surveyor general of the province, surveyed for Breward 7,000

Page 41 U. S. 146

acres, including Little Cedar Creek; and bounded on three sides by Big Cedar Creek and Dunn's Creek, and which includes the mill. This survey is valid.

2. There were laid off 3,000 acres on the northern part of the River St. John's, and east of the Royal Road, leading from the river to St. Mary's. This survey is proved to lie four or five miles from the first survey, and is on Trout Creek. It was made 28 August, 1819.

By the 8th article of the Florida Treaty, all grants of land made before 24 January, 1818, by his Catholic Majesty were confirmed. But all grants made since 24 January 1818, when the first proposal by his majesty was made for the cession of the country, were declared and agreed by the treaty to be null and void. This survey 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 surveyor general. So this Court held in Seton's Case, 10 Pet. 309. The party, however, is entitled to his entire 10,000 acres in the neighborhood of Little Cedar Creek. The decree confirming the 3,000-acre survey is therefore, reversed, and this quantity of land will be ordered by the Superior Court of East Florida to be surveyed adjoining the 7,000-acre survey on vacant land, the addition to conform to the fourth article of the instructions to the surveyor general of 10 June 1811 (Land Laws United States 1004). The 7,000 acres and the 3,000 acres will be laid down in connection as one 10,000-acre survey. Not more than one-third can be bounded in front on the River St. John's, should the claimant choose to add the 3,000 acres next to either side of the 7,000-acres tract adjoining the river. The 7,000-acre survey being 360 chains deep, the 10,000 acres can only front 120 chains.

A motion was made to the court below on the part of the petitioner to be permitted to introduce testimony in regard to the survey of 3,000 acres; when offered, the counsel for the United States withdrew the objections to the introduction of the paper.

Page 41 U. S. 147

It is now insisted for complainant that the validity and legality of the survey was admitted, and Richard's Case, 8 Pet. 470, Sibbald's Case, 10 Pet. 323, and Seton's Case, 10 Pet. 309, are relied upon. These authorities, we think, do not sustain the argument. It being necessary to establish that such a survey had been made by the surveyor general, proof of his signature was prima facie sufficient to authorize the reading of the paper, and if the attorney of the United States was satisfied that the plat and certificate had been made by that officer (about which he could hardly be mistaken), to require proof of the fact would have been useless.

The contests of Aguilar's certificates have been numerous. Nothing was required but proof of the secretary's signature to admit in evidence the copy of the concession, so this Court held in Wiggins' Case, 14 Pet. 346; but when the concession was admitted, its legality was not conceded by the defendant; no such ground has been, to our recollection, assumed, nor do we think it can be assumed, in regard to the survey. To test its legality by the laws and regulations of Spain, it was necessary the court should have the survey in evidence. It was the common case of the competency of a title paper, wanting legal effect; the court therefore properly admitted the paper, but improperly adjudged it gave title to the land.

3. The next survey (dated in 1819) is for 2,000 acres in Cedar Swamp, west of the River St. John's at a place known under the name of Sugar-Town. Had this last designation been left out, no difficulty could be raised in regard to the fact that the survey had been located at the place granted; nor do we think this makes any difference, although a witness proves he knew nothing of such a town. The surveyor having described the land as laid off within the description of the grant, we take the fact to be prima facie as he certifies it; nor do we think the certificate discredited by the further description, even should the object called for not be found. This survey is therefore confirmed.

4. The survey for 4,000 acres (dated in April 1819) is in Cabbage Hammock, and within the grant, taking the certificate of the surveyor general to be prima facie true. And this, we think, is the credit that lawfully attaches to it. His duties

Page 41 U. S. 148

were prescribed by the instructions to him in 1811 (Land Laws 1034), and if his plot and certificate are lawful on their face, they must be accredited until the United States disprove them, which they have the right to do if the survey on the ground does not in fact correspond to the land granted, although the certificate may declare it to be at the proper place. This survey is also confirmed.

The case is, however,

Remanded to the court below to be further proceeded in as regards the rejected survey of 3000 acres.

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