Les Bois v. Bramwell
45 U.S. 449 (1846)

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U.S. Supreme Court

Les Bois v. Bramwell, 45 U.S. 4 How. 449 449 (1846)

Les Bois v. Bramwell

45 U.S. (4 How.) 449

Syllabus

A private survey of land, claimed under an old Spanish concession and presented to the board of commissioners appointed under the act of 1805, is not conclusive against the party presenting it to show the boundaries of the claim, but is proper evidence to go to the jury, who are to decide upon its limits.

Under the acts of 1824, 1826, and 1828, the District Court of Missouri was authorized to receive petitions of claimants to land, until 26 May, 1829. In 1831, when claims which had not been presented were standing under a bar, Congress confirmed the title of the inhabitants of the Town of St. Louis to the

adjacent commons. This act was valid, unless the opposing claimant then possessed a vested interest which was protected by the Louisiana treaty.

By the third article of that treaty, the inhabitants were to be protected in their property.

But land held under a concession and survey was not finally severed from the royal domain and converted into private property.

The power of granting the public domain was in Morales, who resided in New Or1eans. His regulations were in force in Upper Louisiana, and by them the title to land held under a concession and survey was not perfected until ratified by him and a final grant issued.

This power was in a great degree a political power, and, by the treaty, the United States assumed the same exclusive right to deal with the title, in its political and sovereign capacity. The courts of justice cannot, without legislation, execute the power, because the holder of an incomplete title has no standing in court.

A confirmatory act passed by Congress in 1836 does not reach back to the original concession and exclude grants of the same land made in the intermediate time, either by Congress itself or a board of commissioners or the district court acting under its authority.

In the act of 1836, Congress had in view the situation of persons whose titles were, by that act, confirmed to lands which had been previously granted to others, and, in order to meet the case, provided that such confirmed claimants might take up, elsewhere, an amount of public land equal to that which they lost.

The confirmatory act of 1836 must therefore be construed to exclude the commons which had been granted by previous acts to the Town of St. Louis.

These acts, and a survey by the proper public officer in 1832, placed the title of the town in the same condition as if a patent had been issued.

This case was exactly the same, in most of its points, with the case of Mackay v. Dillon, reported in a preceding part of this volume. Reference will be made to that case in all the points which are similar.

It was an action of ejectment brought by Les Bois in the circuit court to recover two hundred and forty-four arpents and fifty perches of land claimed under a Spanish concession. The defendant Bramell claimed title under the acts of Congress of 1812 and 1831 granting a right of common to the Town of St. Louis.

The plaintiff's title was as follows.

1. A petition, concession, and survey.

2. Proceedings of the board of commissioners established by the Act of Congress passed 2 March, 1805.

Page 45 U. S. 450

3. Proceedings of the board of commissioners established by the Acts of July 9, 1832, and March 2, 1833.

4. The Act of Congress passed 4 July, 1836.

5. A certificate of the surveyor of the public lands dated September 6, 1838.

These will be taken up in order.

1. A petition, concession, and survey.

The petition was as follows:

"To Don Charles Dehault Delassus, lieutenant colonel attached to the stationary regiment of Louisiana and lieutenant governor of the upper part of the same province."

"Marie Nicolle Les Bois has the honor of representing to you that, having lost her father and mother since her most tender years, in consequence of a well known disaster, which alone would be sufficient to render her situation interesting to all men of feelings, and having had for support since that moment an uncle and aunt, both respectable, who have taken care of her infancy, considering that time in his flight deprives her every day of some one of her protectors; that her brothers and sisters are all married, and loaded with family, and without fortune; that she remains as an isolated being who cannot expect any assistance of anyone whomsoever, and who, without fortune, finds herself under several points of view in a calamitous situation which appears to her to be worthy to attract the attention of the good heart everybody knows you possess. Full of this idea and convinced of the generosity of the government, which has never ceased to grant favors to the unfortunate and to be particularly the protector of orphans, she hopes you will be pleased to grant to her the concession of a tract of land situated to the south of this town, and being vacant lands of His Majesty's domain, and which may contain two hundred and thirteen arpents in superficie, more or less, which land shall be bounded as follows: to the north, south, and west, by the vacant lands of the domain, and to the east by a concession of some width belonging to Mr. Antonio Soulard."

"Such is the statement of my misfortune and pretensions, and I presume to hope this favor of the generosity of a benevolent and generous government, and of a chief as worthy as you are to fulfill its benevolent intentions."

"MARIE NICOLLE LES BOIS"

"St. Louis, May 10, 1803"

The concession was as follows:

"St. Louis of Illinois, May 11, 1803"

"Having seen the foregoing statement, I do grant to Marie Nicolle Les Bois, for her and her heirs, the land which she solicits, in case it is not prejudicial to any person, and the surveyor of this

Page 45 U. S. 451

Upper Louisiana, Don Antonio Soulard, shall put the petitioner in possession of the quantity of land she solicits in the place designated, which, when executed, he shall draw out a plat of survey, delivering the same to the party, with his certificate, in order to serve to her to obtain the concession and title in form from the intendant general, to whom alone corresponds, by royal order, the distributing and granting of all classes of lands of the royal domain."

"CARLOS DEHAULT DELASSUS"

"Of Survey -- Upper Louisiana, District of Sn. Luis de Illinois"

"The survey was as follows:"

"Note. The bounds set to all corners are shown on the plat."

"All the line trees were marked with one blaze above two notches. The trees on both sides of the lines were blazed only."

"Registered in book B, of the surveys for said district, folio 17, No. 20."

"Of Certificate of Survey"

"Don Antonio Soulard, Surveyor General of Upper Louisiana -- I do certify that I have measured, run the lines, and bounded, in favor of Marie Nicolle Les Bois, a piece of land of two hundred and forty-four arpents and fifty perches in superficie, measured with the perch of the City of Paris, of eighteen French feet in length, lineal measure of the said city, according to the agrarian measure of this province, which land is situated at about the distance of twenty-five arpents to the southwest of this Town of Saint Louis, and is bounded to the north-northwest by lands of Don Santiago Mackay; to the east-southeast by lands belonging to me; to the south-southwest in part by lands of Don Jh. Brazeau, and by vacant lands of the royal domain, and by the west-southwest by vacant lands; which measurement and survey I took without regarding the variation of the needle, which is 70

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