United States v. Boisdore
52 U.S. 63

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U.S. Supreme Court

United States v. Boisdore, 52 U.S. 11 How. 63 63 (1850)

United States v. Boisdore

52 U.S. (11 How.) 63

Syllabus

In adjudicating upon an imperfect title under a Spanish concession, this Court again adopts the rule laid down in 35 U. S. 10 Pet. 330, 35 U. S. 331; viz., can a court of equity, according to its rules and the laws of Spain, consider the conscience of the King so affected by the acts of his lawful authorities in the province that be became a trustee for the claimant, and held the land claimed by an equity upon it, amounting to a severance of so much from the public domain before and at the time the country was ceded to the United States?

This rule, applied to the following case, brings out the results stated below.

In 1783, in consequence of a memorial from Boisdore, Miro, the Acting Governor of Louisiana, issued the following order to Trudeau, the Surveyor General, viz.:

"Don Carlos Lavean Trudeau will establish Louis Boisdore upon the extent of ground which he solicits in the preceding memorial, situated in the section of country commonly called Achoucoupoulous, commencing in front from the plantation belonging to Philip Saucier, a resident of said country, down to the bayou called Mosquito Village Bayou, with the depth down to Pearl River, the same being vacant and no prejudice being caused to the neighbors living as well in front as upon the depth, which measures he will reduce to writing, signing with the aforesaid parties, and will remit the same to me in order that I may furnish the party interested with a corresponding title in due form."

Boisdore, in his memorial, had stated that he wished to form an establishment for the whole of his numerous family, on which he might employ all his negroes, and support a large stock of cattle which would be useful to the neighboring city.

The grantee took only a trifling possession of the land by placing a single slave there, and Trudeau never made, nor attempted to make, a survey. In 1808 the Spanish governor of Florida gave directions to the Surveyor General of Florida, who drew a figurative plan of a survey, but the Governor of Florida at that time had no jurisdiction over the land.

If Trudeau had made a survey and returned a certificate, it would have been binding, although it might not have conformed strictly to the lines of the original grant. But the description of the tract is so vague and uncertain, that it cannot now be surveyed by an order of the court. The mode directed by the district court would include four hundred thousand acres, and it is unreasonable to suppose that the conscience of the King of Spain would have been bound to confirm such a grant, when the grantee neglected to fulfill the obligations which were incumbent upon him.

Besides, there being no given point from which to commence the survey, or to establish the second corner, if the court were to order the mode in which the survey was to be made, it would not be a judicial decree, but an exercise of political jurisdiction.

The case arose under the Act of 26 May, 1824, 4 Stat. 52, as revived and reenacted by the Act of June 17, 1844, 5 Stat. 676. A petition was presented to the District Court of the United States for the Southern District of Mississippi, by the heirs of Louis Boisdore, claiming a large

Page 52 U. S. 64

tract of land lying between the Bay of St. Louis and Pearl River in the State of Mississippi, and below the thirty-first degree of north latitude.

The circumstances were these.

On 1 April, 1783, Louis Boisdore presented the following application to Miro, the acting Governor General of Louisiana.

"Senor Governor General: I, Louis Boisdore, a citizen of this city, do, with due respect, present myself to your Excellency and say that, wishing to form an establishment and cow house cattle raising farm in the vicinity of the Bay of St. Louis, in the place commonly called Achoucoupoulous, for all my family, which is very considerable, as is well known to your Excellency, and moreover, for the purpose of employing all my negroes on it, and keeping a considerable stock of cattle which I have already on the place, the place being almost uninhabitable, only fit for a vaqueria (cattle raising farm). May it please your Excellency, in consideration of what is above explained, and of the benefit that will result to the capital city from such a considerable cattle raising establishment as the one which I have commenced to form in the said place, and in the vicinity of said city, to grant to me the portion of ground which is vacant in the said place section of country, known under the name of Achoucoupoulous, running from the plantation of Philip Saucier up to the bayou called Bayou of Mosquito Village, formerly inhabited by Mr. paper torn off, and running in depth down to Pearl River, in order that I may form with facility the aforesaid establishment and cow house cattle raising farm for all my family as aforesaid, a favor which I hope, according to justice, from the granting power which is vested in you."

"New Orleans, 1 April, 1783."

"[Signed] L. BOISDORE"

Upon which application, the Governor General issued the following, viz.:

"New Orleans, 26 April, 1783"

"Considering the sufficient reasons explained to me above, and having regard to the advantage and utility which will result to the capital from the establishment of a cow pen (vaqueria) in that section of the country, little suited to any kind of culture, the surveyor of the province, Don Carlos Laveau Trudeau, will establish Don Louis Boisdore on the tract of land which he solicits in the preceding memorial, situated in the section of country commonly called Achoucoupoulous, taking

Page 52 U. S. 65

as the front from the plantation of Philip Saucier, a resident of said section of country, to the bayou called the Bayou of the Village of Maringouins, with a depth unto Pearl River, it being vacant, and causing no prejudice to the neighboring inhabitants, as well in front as in depth, which proceedings he will extend in continuation, sign and forward to me, with the preceding, that I may furnish the party interested a title in due form."

"MIRO"

In 1808, Boisdore having died, his widow authorized Don Gilbert Guillemard, a lieutenant-colonel in the army, to obtain an order for a survey from Morales, then in Pensacola. In the petition, Guillemard recites as follows:

"And although, at that period, on account of the multifarious occupations which engrossed the attention of Charles Laveau Trudeau, the surveyor, in relation to the admeasurement and survey of lands of value, and on account of the great expense to be incurred previously, he did not proceed to the admeasurement and marking out the boundaries of said tract of land, but notwithstanding transported and conveyed thither a large stock of cattle, and placed thereon a stock keeper named Augustus Mallet, who remains on to the present day, to preserve the right of property in himself, which the said Boisdore in his lifetime possessed,"

&c.

This petition was referred to the fiscal minister of the Royal Treasury, who, on 7 April, 1808, ordered the Surveyor General to make out a map and certificate of survey to be returned to him.

On 23 May, 1810, Pintado addressed a letter of instructions to a deputy surveyor, instructing him to lay down the lines of the grant as follows:

"The demand of M. S. Boisdore, senior, is conceived in a manner a little confused in regard to the place, for he says in his memorandum of 1 April, 1783, that the land which he claims is on a place called Achoucoupoulous, commencing from Philip Saucier's plantation, as far as the bayou called the Mosquito Village, formerly inhabited by Madam Susser, extending back to Pearl River. This description causes sufficient embarrassment in determining the form or figure which the land ought to have; however, as he calls the front the distance from Saucier's plantation to the Bayou of Mosquito Village, the depth, as far as Pearl River, can be understood only by two lines drawn from the said last two points, so as to strike the said Pearl River; that is to say, the easternmost of the three which take this name, and these lines ought

Page 52 U. S. 66

naturally to run to the west, one from Saucier's plantation, and the other from Mosquito Village. The little sketch (crouquis) annexed will give you a clearer idea. Though there is no geometrical precision, it approaches, notwithstanding, to the figure of the place. You will send it back to me when you have finished the business,"

&c.

On 30 May, 1810, Pintado, the Surveyor General, returned a certificate, with a map. In the certificate he says that

"the map represents and shows the tract of land, with the shape, figure, and extent, and the boundaries, bounds, and confines, natural and artificial, which should serve for limits,"

and then refers to a more particular map to be made hereafter by anyone of his deputies, or by and other person,

"so that the northern boundary shall be bounded by lands belonging to the King, on the south by the bank of the sea, on the east by the same and a part of the Bay of St. Louis, and on the west by the above-mentioned Pearl River."

In order to understand the argument and decision, it will be necessary to insert a sketch of this map.

image:a

Page 52 U. S. 67

Under the act of Congress passed on 25 April, 1812, 1 Land Laws 208, this claim was presented to the commissioner appointed for the district east of Pearl River. Mr. Crawford, the commissioner, reported that the land was not cultivated and not inhabited.

Under the Act of Congress passed on 3 March, 1819, 1 Land Laws 316, the claim was again presented to the register and receiver of the land office at Jackson Courthouse, who made the following special report:

"No. 2. This claim is founded on an order of survey issued by Governor Miro in favor of Louis Boisdore, confirmed to his widow, Marguerite Doussin, by the Intendant Morales, 4 April, 1808. Although a map or conjectural plan of the limits of the above claim, made by the Surveyor General, Pintado, 30 May, 1810, accompanies the title papers, yet it does not appear to be the result of an actual survey, nor to have been made with geometrical precision, but merely intended for the direction of such persons as might be employed to make the survey. No survey appears to have been made. This claim extends from the Bay of St. Louis to the mouth of Pearl River, and is supposed to contain several hundred thousand acres."

"Land office, Jackson Courthouse, July 11, 1820."

"WILLIAM BARTON, Register"

"WILLIAM BARNETT, Receiver"

"Attest: JOHN ELLIOT, Clerk"

Under the Act of the 24 May, 1828, 1 Land Laws 445, this claim was again presented to the register and receiver at Jackson Courthouse. All the documents were submitted to this board, together with the depositions of sundry persons, showing the genuineness of the signatures of the Spanish officers, the locality of the land, and its possession.

The commissioners made the following report:

"Remarks"

"Claim No. 4. This claim is founded on an order of survey issued by Governor Miro, in favor of Louis Boisdore, and confirmed to his widow, Marguerite Doussin, by the Intendant Morales, 4 April, 1808. It does not appear by the title papers that an actual survey was made with geometrical precision; yet a map, or conjectural plan, definitely fixing the limits of the claim, was made by the Surveyor General, Pintado, 30 May, 1810. This claim extends from Pearl River to the Bay of St. Louis, and is supposed to contain about one hundred thousand acres. "

Page 52 U. S. 68

"The additional testimony adduced to us proves incontestably that this claim has been inhabited, and a part of the land kept under cultivation, upwards of forty years. It is also in testimony before us, that the extent of this claim was distinctly known to the neighbors, and that the claimant set up his claim to the whole limits contained within the before-mentioned figurative plan. The above claim is forfeited under the Spanish laws, usages, and customs, for want of inhabitation and cultivation within the time prescribed by those laws and regulations. Yet, as the inhabitation and cultivation appear to be very ancient, it is conceived that this claim ought to be confirmed for a reasonable quantity."

"WILLIAM HOWZE, Register"

"G. B. DAMERON, Receiver"

"Attest: VALENTINE DELMAS, Clerk"

By an Act of 28 May, 1830, 1 Land Laws 468, certain of the claims reported by the above-named register and receiver were confirmed, and the act has this special provision respecting the claim in controversy:

"And provided, also, that the claim of the representatives of Louis Boisdore, numbered four, in report numbered three, shall not be confirmed to more than twelve hundred and eighty acres."

Under this act, a certificate was issued, and a survey made, of the twelve hundred and eighty acres, by Elihu Carver, a deputy surveyor, on 6 November, 1830, which was approved by the Surveyor General south of Tennessee, on 11 August, 1832.

The act of Congress, passed in 1844, reviving and reenacting the law of 1824, has been already referred to, in the opening of this statement.

On 1 February, 1845, the heirs of Boisdore presented a petition to the district court of the United States, which petition was afterwards amended in November, 1845. This amended petition disregarded the figurative plan of Pintado, and claimed that

"the form and extent of their grant, to which, by the manifest and only reasonable construction of their concession, they are entitled, is that which would result and be produced by regarding as a base an assumed straight line between the two points called for as the front of the grant; viz., from the beginning point, at the north side of Philip Saucier's plantation, to the Bayou of the Mosquito Village, and thence, by two parallel perpendicular lines, extended from each extremity of said base or front line, till each sideline in its extension intersected the Pearl River. "

Page 52 U. S. 69

They aver that their title was protected and secured by the Treaty of St. Ildefonso of October, 1800, and by the Treaty of Louisiana of 1803, and by the laws of nations, and would, by the laws of Spain and the laws of France, have been perfected into a complete title, had not the sovereignty of the country been transferred to the United States.

They aver that their ancestor, the said Louis Boisdore, and themselves, and their agents and representatives, have asserted their right of ownership, and maintained possession by actual inhabitation and cultivation of part of said land in behalf of the whole, from 1783 to the present time, and kept up a large herd of cattle and a grazing establishment on said land from the date of the grant until many years after the jurisdiction of the Spanish government had been superseded by that of the United States.

To this petition, the district attorney for the United States demurred, but the demurrer was overruled, and he then filed an answer.

The answer of the United States in substance denies that the concession or order of survey conveyed any title whatever, but insists that it is void for uncertainty, and that nothing was ever done, during the existence of the Spanish authority in the territory, to perfect it. It denies any authority in Morales to do what he is alleged to have done. It denies that Louis Boisdore maintained possession by actual habitation and cultivation, as alleged in the petition, from 1783, and insists that, for want of such inhabitation, settlement, and cultivation, the claim, if it ever had any existence, was forfeited by the laws, usages, and customs of the Spanish government. The United States admit that the claim was presented to several boards of commissioners, but deny that the petitioners, or those representing them, ever complied fully with the acts of Congress, or presented any sufficient and competent evidence of title, or any evidence which would justify a favorable report. That the Act of 28 May, 1830, provides that it shall not be confirmed to more than twelve hundred and eighty acres, and they rely on that act as a final and complete rejection of he claim, and as such final action upon it by the government of the United States, that the court has no jurisdiction to try it. They admit that they have caused the land to be surveyed, and have granted and sold large portions thereof, and that the settlers and purchasers are now in possession, and they are necessarily parties to the suit. They do not admit that the original Spanish documents and title papers were translated and recorded as required by law, but require full and legal proof. They deny that the claim is protected by the treaties of

Page 52 U. S. 70

1800 and 1803, or by the law of nations, or that it would or ought to have been perfected into a complete title if the sovereignty of the country had not changed. They insist that the concession was conditional, and that the grantee should have occupied and possessed within and for a limited time, and should have established without delay, or within a reasonable time, a cow pen, for the public benefit, and that a survey should have been made within a reasonable time, and made a part of the public records, so that the public might know what land, if any, was to be separated from the public domain, and say that none of these requisites was complied with, and that the claim was forfeited according to the Spanish laws, customs, and usages. They, further answering, say that they have been informed, and charge the truth to be that the petitioners accepted the donation of twelve hundred and eighty acres, for which Congress confirmed their claim by the act of 1830, and it is now too late for them to disclaim the same; that it was surveyed for them by Elihu Carver, a deputy surveyor, and his survey approved by the Surveyor General south of Tennessee, and submit that such acceptance of the twelve hundred and eighty acres is a complete extinguishment of their claim or right to any greater quantity; but whether accepted or not, they insist that the act of 1830 was such a final action of the government of the United States as deprives the court of jurisdiction.

A great number of depositions were taken on both sides. Those on the part of the claimants were intended chiefly to prove the genuineness of the documents, the heirship of the claimants, and the locality and possession of the land. The deposition of Bringier, Surveyor General of Louisiana, was also taken as to the practicability of locating the grant, who concurred with Pintado in his instructions of 23 May, 1810, and answered as follows:

"In answer to the third interrogatory, deponent says"

"In the case stated, I should first survey the front from point to point, and then run back two lines perpendicular to the front, and parallel to each other, to the natural boundary in the rear."

On the part of the United States, the depositions (amongst others) of Ludlow and Downing were taken. These persons had both been surveyors general in Mississippi, and testified as follows.

Mr. Ludlow said:

"Answer to interrogatory second: I have examined the order of survey of Governor Miro to Louis Boisdore, dated April 26, 1783, and believe the survey to be practicable, provided the plantation of Philip Saucier and the Bayou of Mosquito

Page 52 U. S. 71

Village can be identified, and believe the survey should be made by finding a straight line between the above-mentioned points and raising perpendiculars upon said line, at its extremities, extending back to Pearl River, provided there are no controlling circumstances to give direction to the sidelines, such as adjoining claims &c. The instructions of the Surveyor General Pintado are clearly erroneous, as they, if followed, would give no sideline on the west."

Mr. Downing said:

"Answer to second interrogatory: the phrase in the grant to Louis Boisdore, 'the front thereof to commence from the plantation of Philip Saucier,' 'and running to the Bayou of the Mosquito Village,' is not sufficiently definite to enable a surveyor to fix upon a beginning point or corner; both the beginning point and the front line seem to be left to the discretion of the surveyor, and it is questionable whether any two surveyors would settle upon the same point for a beginning. I certainly could not adopt the views of Pintado, the Spanish Surveyor General, for, in the diagram filed in this case, and to which he refers in his instructions, he places what should be the most eastwardly front corner on the back line of the Saucier plantation; this seems to be his understanding of the word from, in the grant. A line from this point to the mouth of the Bayou of Mosquito Village would form a base, from each end of which the sidelines should run at right angles; or in other words, the sidelines of a Spanish grant, when the course or quantity is not given or particularly specified, shall run 'as near as practicable' at right angles from the front or shore. This has been the practice on bayous and rivers, as well as on the seashore. In the present case, a line run from the mouth of the Bayou of the Mosquito Village, at right angles from a base line between the front corners, would apparently, for several miles, range close along and parallel with the east margin of Pearl River, and consequently conflict with the uniform practice of the location and survey of grants upon all navigable streams and shores. Upon the whole, I think the calls of the grant in question so indefinite that no two surveyors, having regard to the usages governing in surveys of Spanish grants, would coincide in the survey of it as to form, quantity,"

&c.

In November, 1847, the cause came on for trial in the district court, when a decree was passed, confirming the title of the claimants, and directing the survey to be made as follows:

"And it is further adjudged and decreed that the tract of land, whereof title is so hereby confirmed, shall be surveyed and bounded as follows, namely: having its beginning corner

Page 52 U. S. 72

at that point on the seashore, at the entrance of the Bay of St. Louis, where the southeast corner of Joseph and Martial Nicaise's claim, formerly the claim of Philip Saucier, has been established by the survey made thereof by authority of the United States, as approved and recorded; thence southwestwardly, by the meanders of the seashore, to the mouth of East Pearl River; thence up said river to the point on the northeast side where the easternmost mouth of the Bayou Maringouin, otherwise called Mulatto Bayou, intersects and empties into the said Pearl River, and which mouth, so here intended to be described, is identical with that sometimes called the lower mouth of the Pearl River cutoff, and which point shall constitute the second front corner of the claim. From one of these front corners to the other, in a direct course, shall be drawn a theoretic baseline, and from each extremity of said baseline, and perpendicular thereto, shall be projected the sidelines of said claim, to be laid down in a direct course and parallel to each other, till each, respectively, shall intersect the Pearl River, between which two points of intersection the meanders of Pearl River shall constitute the conjunction line of said survey. And it is further ordered that the surveyor who shall execute the boundary hereby directed shall note and report all intersections of the sidelines with the public surveys of the United States heretofore extended over said land, and especially note and show the form and extent of all interfering private claims held adversely to the petitioners, under grant or authority of the United States, which may be found upon said sidelines and projecting into said claim, as well as every other such adverse claims as lie wholly within said survey."

"It is further adjudged and decreed, that all such adverse claims and parts of claims as aforesaid, so found within the survey hereby directed, shall be and the same are hereby exempted from the operation of this decree so far as effects their validity; but in place and stead of the lands included in such claims, the petitioners are hereby adjudged to have right and claim to a like quantity of lands from out of the public domain, as by law in such case is provided."

"[Signed] S. J. GHOLSON"

From this decree the United States appealed to this Court.

Page 52 U. S. 86

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