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

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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

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

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

MR. JUSTICE CATRON delivered the opinion of the Court.

The heirs of Boisdore filed their petition, in the nature of a bill in equity, pursuant to the act of 1824, revived by that of 1844, against the United States, claiming a decree to a perfect title for a large body of land fronting on the Bay of St. Louis and the Gulf of Mexico, and extending in depth to Pearl River; containing between one hundred thousand and four hundred thousand acres in quantity, depending on the manner in which the claim should be surveyed. A decree was made by the district court of Mississippi, confirming the claim, and ordering a survey to be made in a particular manner, which will more fully appear hereafter. From this decree the United States appealed, and the first question presented for our consideration is as to the nature and character of the paper title on which the claim is founded.

It was a gratuitous concession, made in 1783, by the Governor of Louisiana, exercising the powers of the King of Spain, and intended mainly for the purpose of pasturage and raising cattle.

A petition was filed by Louis Boisdore, the ancestor of complainants, representing to the governor that the petitioner, being an inhabitant of New Orleans, and desirous to form a plantation, or cow pen, in the vicinity of the Bay of St. Louis, at a place commonly called Achoucoupoulous, for the whole of his petitioner's family, which was very large, as was notorious to his Excellency; and, moreover, that the petitioner might be enabled to employ all his negroes thereon, and to support a large stock of cattle which he had already; which land was, as it were, only inhabitable as, and fit for, a cattle raising farm, and therefore he proceeds to say:

"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

Page 52 U. S. 87

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."

And on this petition, the governor proceeds to grant as follows:

"New Orleans, 26 April, 1783. Being satisfied with the well founded reasons expressed above, and with the usefulness and advantage which will result to the capital city from the establishment of a cattle raising farm in that section of country, little fit for any cultivation, the surveyor of the Province, Don Carlos Laveau Trudeau, will establish Louis Boisdore upon the extent of ground which he solicits in the foregoing 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."

"[Signed] MIRO"

As the two papers formed the contract between the government and the petitioner, they must be construed together, there being a proposition on one side to do certain acts, and an acceptance on the other, limited by several restrictions. What is stated in either paper as to fact and intent must be taken as true. The facts appearing are, that Boisdore was an inhabitant of the City of New Orleans; that he had a large family, and that he wished to establish "a cattle raising farm."

There are several translations of this document from the Spanish, but the true one is that a stock farm was to be established on the land solicited; and that the establishment contemplated was to be "for all the family" of the petitioner; and on which he was to employ all his force of negroes.

These were leading motives set forth to the governor, and

Page 52 U. S. 88

the benefit that would result to the city from such an establishment was also presented as a prominent consideration why, on public grounds, the grant should be made.

On these motives, and their obvious consequence if the cattle farm were established as proposed, the governor acted.

This contract is to be construed with reference to the laws of the place where and when it was made, and the usages and customs observed in making similar concessions.

By the act of 1824, we are required to exercise the power of a court of equity, and to adjudge in the given case whether a court of equity could, according to the rules and laws of Spain, consider the conscience of the King so affected by the acts of his lawful authorities in the province, that he 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 was the rule laid down for our government in 1836 in the case of Smith v. United States, 10 Pet. 330, 35 U. S. 331, and which has been uniformly followed since.

The first act the claimant was bound to perform was taking possession, in regard to which it is proved by several witnesses, by affidavits taken in 1828, and then filed with the register and receiver at Jackson Courthouse in Mississippi, and which proofs are made evidence by the act of 1824, that Boisdore had had possession of a place on the Mulatto Bayou for forty years before 1828; that the land was cultivated, and cattle kept there, and the register and receiver found that the land had been inhabited and cultivated from 1788 to 1828, by Boisdore and his representatives; nor do we see any occasion to dissent from this finding.

And furthermore, as it appears from Boisdore's petition in 1783, that he had commenced forming a cattle raising establishment at said place, we deem it fair to presume that the possession and occupation proved to have existed in 1788, and afterwards, did also exist from 1783 to 1788, and so the petition to the circuit court, seeking a confirmation, states the fact to have been.

As respects the nature and extent of this occupation, the evidence is obscure. Complainants allege

"That their ancestor, Louis Boisdore, during his lifetime, and his representatives after his decease, occupied, possessed, and cultivated said tract of land, from 1783 until the year 1828; that their ancestor, and his widow and representatives, kept up and supported said plantation and grazing farm upon said land during the whole of that period of time, and fully complied with all the conditions

Page 52 U. S. 89

of the grant, and all the laws, customs, and usages of Spain in relation to grants of its public domain."

This allegation is directly denied by the answer, and proof of the facts alleged imposed on complainants. Lewis Daniell, a witness examined by them, states that in 1824, when he first examined these lands, a few acres were cleared near Mulatto Bayou, which had then the appearance of being very anciently cleared and cultivated; that on it and in its vicinity were found weeding hoes and axes much worn by use; that the old field was the first settlement made on the east side of the bayou, and was made by Louis Boisdore, according to the general reputation of the country.

Elihu Carver, another witness of complainants, states, that in 1814 or 1815 he learned from cow hunters, who were sold inhabitants, that the old improvement was called Boisdore's cow pens, and that there was then another place, within less than a mile, where a person yet cultivated a small field on the east of the said bayou, whom he then understood to be a stock-keeper for Louis Boisdore; this last place was on the land now owned by F. Saucier.

Samuel White, examined for complainants, states:

"I know this bayou, and all the considerable branches thereof; its present name is Mulatto Bayou; it was known by this name as long ago as 1820 or 1821. It took its name, as I always understood, from the mulatto man who lived somewhere near what was formerly called Point Boisdore, and who was stationed there to take care of the stock of Louise Boisdore."

By the affidavits taken and filed on behalf of complainants before the register and receiver, in 1828, it appears that the person above referred to was a slave, named Matthew, who belonged after the death of Louis Boisdore to his widow, and who kept cattle on the land for his widow and heirs. And as this man gave its English name to the bayou, and is proved by White to have kept stock there for Louis Boisdore in his lifetime, we hold it to be sufficiently established that he had this one slave there, from the date of the grant in 1783; but as the affirmative fact of occupation was imposed on complainants by the pleadings, and as the original improvement on the land was next to nothing, no further presumption can be made that other slaves were there.

The next leading question arises on the necessity of a survey before the land solicited and granted was severed from the public domain -- that is to say, whether the grant identifies the land, or whether a survey was required to establish its identity. Boisdore asked for a grant in the "vicinity" of the Bay of St. Louis, at a place called Achoucoupoulous, running from the

Page 52 U. S. 90

plantation of Philip Saucier up to the Bayou of Mosquito Village Mulatto Bayou, and extending in depth down to Pearl River.

The governor ordered Trudeau, the Surveyor General, to establish Boisdore on the tract of land he solicited in the section of country called Achoucoupoulous; taking as the front of said tract, from the plantation of 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," says the decree, "he will reduce to writing, signing with the aforesaid parties the neighbors, and will remit the same to me, in order that I may furnish the party interested with a corresponding title in due form"; to-wit, a title corresponding to the survey returned to the governor. Boisdore's tract was to be located by a survey whose front was to commence from Saucier's plantation, and to end at Mulatto Bayou. When this front was established, and a corner at each end of it marked, and a line drawn from corner to corner, then a perpendicular line drawn from each corner to Pearl River was to be the depth. Such was proved by witnesses to be the uniform practice of surveying Spanish concessions, and this we know to be the true rule aside from proof.

The size of Saucier's plantation appears by survey. It is a considerable tract; its southwest corner points towards the bayou, which lies southwest; one line from that corner running south seventy degrees east one hundred and sixteen chains, and the other line running north twenty degrees east fifty-eight chains. According to our construction of the grant, on either of these lines, and at any point on them, the survey might begin with equal propriety. Taken together, they are seven hundred and ninety-six poles long; and this is all the certainty given for a beginning of the first or front line.

The bayou is six or seven miles long, and a notorious stream, being navigable for vessels of light draft, such as navigate the lakes in its neighborhood. It empties into Pearl River by two outlets, which are some three miles apart. From its upper mouth it extends off from the river northeastwardly, when traced upwards.

At some point of the bayou we are called on to establish the second corner of the front line, and as it is equally marked and navigable for six or seven miles of its length, one part thereof as well as another may be selected.

Tracing Pearl River up the stream from either mouth of the bayou, it extends nearly north in its general course, but bearing

Page 52 U. S. 91

more or less to the west. Saucier's plantation is about fifteen miles from the nearest part of the bayou.

To strike a base line from the southeast corner of Saucier's plantation to the upper or easternmost mouth of the bayou, then, the second corner would be on Pearl River, some ten miles above its easternmost mouth; and the western perpendicular sideline would run up the river, and nearly parallel with its general course, across a large bend to the west, and again strike the river at nine and a half miles higher up, where the bend turns to the east, and is again reached by the western sideline.

The eastern sideline would strike the river so high up as to include about 400,000 acres in the survey. And such is the mode of survey ordered by the district court, and which we are called on particularly to examine. But if the western end of the front line were established farther north on the bayou, then the quantity would be increased in proportion as the corner was located farther north, because the corresponding perpendicular sidelines would have to be extended in a direction bearing farther east, and would strike the Pearl River still higher up, if they would reach it at all; which is very improbable as respects the eastern sideline, if even the middle of the bayou was determine on as the proper point for the second corner. We think it is impossible to contend that the second corner of the front line should be on Pearl River, and that the sideline should run up it, and near to it, and each end of the line be on the river, as the Spanish mode was to front on navigable waters, and not mar their fronts by sidelines, located near to, but not on, the river.

That the topography of that section of country in which the Spanish surveyor was directed to survey and mark a tract of land for Boisdore was greatly mistaken by the governor who made the grant, is now too manifest for controversy, as no front line can be laid down, from the ends of which perpendicular sidelines will reach Pearl River in depth, without violating the plainest rules of making Spanish surveys. But for all the purposes of a Spanish survey made by a surveyor general of the province, such description as the concession sets forth was sufficient, because large latitude was allowed to his discretion. Had that authorized officer certified that the land marked out by him was "at the place granted," then this fact must be taken as prima facie true; the certificate standing on the foot of a deposition. So this Court has uniformly held, as in Breward's Case, 16 Pet. 147, in Low's Case, 16 Pet. 162, 166 [argument of counsel -- omitted], and especially in the United States v. Hanson, 16 Pet. 199, 41 U. S. 200. The Spanish

Page 52 U. S. 92

made by the surveyor general, as being at the proper place when it was thus certified in legal form, and the courts of this country have done the same, and this for the reason that the acts of the governor and surveyor general were both on behalf of the government, each being bound by his duty as a public officer to protect the King's domain.

No nice conformity was required in a Spanish survey, in cases where a section of country was designated by the concession without definite objects being given to govern the surveyor; the objects might be loosely and indefinitely stated by the concession, and yet a survey could be made, subject to the governor's sanction or rejection, because, in the language of this Court in Hanson's Case, 16 Pet. 200,

"a grant delivered out for survey meant, not, as with us, a perfect title, but an incipient right; which, when surveyed, required confirmation by the governor."

If this land had been actually surveyed by Trudeau, as demanded by the grant, and he had certified that it was at the place granted, and the survey had been returned and filed according to the twelfth regulation of governor O'Reilly made in 1770; or filed and recorded according to the fifteenth, sixteenth, and seventeenth regulations of the Intendant Morales of 1799, then such survey would identify the land granted.

A fair instance is furnished by this record of the Spanish mode. The time for making a survey having long expired, and a new order of survey being necessary before a complete title could be applied for, the widow of Boisdore in 1808 applied to the Spanish governor at Pensacola for an order of survey of this claim, on the supposition that he had authority to grant the order. It was made as requested, and Pintado, the surveyor of the Province, was directed to make the survey. He did not examine the ground, but drew a figurative plan for the information of his deputy, to be followed in marking out the grant.

This plan begins at the southwestern corner of Saucier's plantation, and pursues a line due west to Pearl River, runs down the river to its mouth, and then with the ocean to Saucier's land, and with it north seventy degrees west to the beginning. Although no call of the grant but the beginning was regarded in this plan, yet, if the survey had been actually made, certified, and returned in conformity to said plan, then the tract would have been identified according to usage, had the Spanish jurisdiction continued over the country where the land lies. But no actual survey having been made at any time, it was imposed on the court below, and it is now imposed on this Court, if in its power, to identify and cause to be

Page 52 U. S. 93

surveyed the land granted. If, however, its identity cannot be fixed, and it cannot be ascertained that any specific tract was severed from the public domain by the grant, at the time Spain ceded Louisiana, then the claim cannot be ripened into a complete title by our decree; as we only have power to adjudge what particular tract of land was granted. Our action is judicial. We have no authority to exercise political jurisdiction and to grant, as the governors of Spain had, and as Congress has. If we were to locate by survey the land claimed at random, in some part of the district of country known as Achoucoupoulous, exercising our discretion as respects the proper place, and to decree on our own survey, and thus divest the United States of title, then we should do what Congress has often done when surveys were ordered of claims founded on settlement, and what a Spanish governor usually did on the return of a survey; we should exercise the granting power; should deal with public lands -- public to the time of our decree, and first made private property by it; ours would be an exercise of political jurisdiction, and not a judicial decree.

In its endeavor to locate this grant, the district court examined witnesses of experience and capacity as to the possibility of doing so, and came to the conclusion that it could be done; and, as partly stated already, a survey was ordered, to begin at the southern part of Saucier's plantation on the ocean, at the mouth of the Bay of St. Louis, and to meander the ocean to the eastern mouth of Pearl River, and then up the same to the upper mouth of Mulatto Bayou. From this point to the place of beginning, a theoretic base line was to be drawn; and from each corner thus established, perpendicular sidelines were to be extended to Pearl River for the depth. The witnesses agree that, if the first two corners are established, then the survey can be made, if the sidelines would reach Pearl River. They had before them, as we have, the plan of the United States surveys, and the localities established by them, and merely expressed opinions as to the proper mode of survey. They do not agree as to where the first corner or the second corner of the base line should be; and as this is a question of legal construction of the grant, on comparing it with the face of the country, a judicial tribunal is the proper forum, and best qualified to decide the question. Conclusive information was not to be expected from practical surveyors, however experienced; yet their opinions are entitled to much consideration.

Alexander Downing, late Surveyor General of Mississippi, declares it to be his opinion, that

"The phrase in the grant to

Page 52 U. S. 94

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."

We agree with this witness as respects the beginning point. But we find still more uncertainty in determining where the second corner should be established, as there a range of discretion exists between the head and mouth of the bayou, to an extent of six of seven miles. Our opinion is that the front line cannot be laid down by a judicial decree, because of the vague description in the grant, and consequently that no parallel sidelines can be established.

How, then, do the rights of complainants stand on the facts, the Spanish laws being adopted as the governing rule? In the first place, their ancestor held the concession in his own possession for twenty years under the Spanish government -- that is to say from 1783 to 1803 -- without calling for a survey. His claim remained precisely as it was at its date, up to the time we acquired Louisiana. It was presented in 1808 to the Spanish governor at Pensacola, and a survey and complete title solicited; but as no actual survey was made and as no jurisdiction then existed in the Spanish authorities over that section of country, this step passes for nothing. Some notice of this claim was taken by commissioner Crawford, whose report condemned it. In 1820, it was filed and recorded in the land office at Jackson Courthouse, and a confirmation sought from Congress on a recommendation of the register and receiver acting as land commissioners. This was in fact the first legal step taken by complainants or their ancestor after the concession was made. For thirty-seven years they slept on their rights, and in the meantime large masses of the land now claimed by them were granted to others under both the Spanish and American governments, and this neglect for twenty years of the time was in plain violation of the Spanish laws and the face of their concession, each requiring a legal survey and specific designation of the land granted.

In the second place, no possession was ever taken according to the terms of the grant. A large tract was solicited by Boisdore where he could establish his "whole family, and employ all his negroes" in carrying on the establishment. His family was very large, according to his own showing; it consisted of a wife, children, and slaves. A removal to the premises from the City of New Orleans of this whole family was

Page 52 U. S. 95

proposed by Boisdore, and was contemplated by the governor, and as a further inducement he was assured that much benefit would result to the capital from such a considerable cattle raising establishment in its vicinity. It was to be so large as to be of public consideration. These were the notorious promises on which the governor acted. And what was the compliance on the part of the grantee? He represented that he had then commenced forming his establishment at the place. It appears to our satisfaction by proof that five years afterwards, he had a single slave there, who kept some cattle, and that a slight patch of a few acres was cleared, and we take it to have been cultivated. The slave continued at the place cleared or near to it for many years -- say up to 1814 or 1815.

If the establishment had been commenced in 1783, when the grant was made -- and we are bound to hold that it had, as the petition to the governor alleges the fact -- then it is hardly possible that it could have been on a smaller scale than it ever after continued, there being but a single slave there at any time. It could only have been less by having no one at all on the premises. It is therefore manifest that no additional possession was taken by Boisdore or his representatives in compliance with the terms of his contract after its date. He obviously abandoned the idea of taking his whole family to the place and of employing all his slaves there, and consequently abandoned all intention of having the land surveyed and himself and family established on it by the surveyor general. And to hold that such a trifling occupation, in utter neglect of Boisdore's promises to the Spanish authorities and the duties imposed by the grant fastened an equity on the conscience of the King of Spain and his representative, the Governor of Louisiana, to complete the title would in our opinion be altogether inadmissible.

Various circumstances must be taken into consideration in this connection. It was the duty of the grantee to do two controlling and requisite acts before he could ask for a completion of his title -- first, to present his concession in due time to the surveyor general of the province and secondly to take possession in substantial compliance with the terms of his grant.

Had the survey been returned with the proces verbal, or certificate attached, stating the fact of possession having been given according to the grant and that the survey did no injury to others, then the effectual and conclusive title could have been issued divesting the rights of the Spanish government, and then only.

Page 52 U. S. 96

Can it be believed that the Governor of Louisiana intended conclusively to grant a domain of fifteen miles wide and over forty miles long (as large as an ordinary county) for the mere purpose of a cow pen, and that he would have sanctioned a survey and completed the title, if the surveyor of the province had reported to him, as was his duty, that Boisdore declined to remove his family, white or black, to the place, or to employ his slaves there, with the exception of a single cowherd, and that the improvement of the place was as slight as it could well be -- that it amounted only to a trifling patch of a few acres? Such a proposition shocks all sense of equity, and is contrary to the settled policy of the Spanish government, which was to make gratuitous grants for the purposes of settlement and inhabitation, and not to the end of mere speculation.

And again, the grantee might have his land surveyed, or he might decline; he might establish himself on the land, or decline; these acts rested wholly in his discretion. But if he failed to take possession and establish himself, he had no claim to a title; his concession or first decree in such case had no operation. So the Supreme Court of Louisiana held in Lafayette v. Blanc, 3 La.Ann. 60, and in our judgment properly. There, the grantee never having had actual possession under his concession, the court decided that he could set up no claim to the land at law or in equity. This case followed Hooter v. Tippet, 17 La. 109. We take it to be undoubtedly true that if no actual possession was taken under a gratuitous concession given for the purpose of cultivation or of raising cattle during the existence of the Spanish government, no equity was imposed on our government to give any consideration or effect to such concession or requete.

And in the next place it was held in Lafayette v. Blanc that if the party took possession, but had no survey executed during the time Spain exercised jurisdiction, this being his own neglect, it lies on him to establish the boundaries of his grant and to identify his land with such certainty as to show what particular tract was severed from the public domain, and if he fails to do it, then he has no remedy in a court of justice. And this part of the decision we also approve.

Here there was no survey, and we are of opinion first that complainants have not identified any particular tract of land that was granted, and secondly that if they had, no possession was taken or pretended to be taken such as the agreement between the Spanish authorities and the grantee contemplated. And therefore it is ordered that the decree of the district court be

Reversed and the petition dismissed.

Page 52 U. S. 97

MR. JUSTICE McLEAN, MR. JUSTICE WAYNE, and MR. JUSTICE McKINLEY dissented.

MR. JUSTICE McLEAN.

In the opinion of a majority of the Court, the grant in this case is rejected, for a want of certainty in its calls. As I cannot agree with this view, I will state in few words the grounds of my dissent.

The petition to the Governor General for the grant represents that Louis Boisdore, "being desirous to form a plantation or cow pen in the vicinity of the Bay of St. Louis, at the place commonly called Achoucoupoulous," &c., that he may be enabled to employ all his negroes thereon and to support a large stock of cattle, prays,

"in consideration of what is above expressed and stated, and of the benefit which will result to the capital from a large cow pen, such as that he had commenced to establish at and near said place, to grant him the parcel of land which may be vacant at the above-mentioned place known by the name of Achoucoupoulous, to commence at the plantation of Philip Saucier, and to run therefrom to the Bayou of Mosquito Village, formerly inhabited by Mr. Loisser, and extending in depth to Pearl River, that he may be enabled to form with facility the above-mentioned plantation and cow pen for the whole of his family,"

&c., and is dated 1 April, 1783.

On 26 April, 1783, Governor Miro, resident at New Orleans, answers the application by saying:

"It appearing to me that the grounds and reasons stated by the petitioner are well founded in relation to the utility and advantages which will result to the capital from the establishment of a cow pen in those places which are badly adapted to cultivation, the Surveyor of the Province, Don Carlos Laveau Trudeau, shall establish Louis Boisdore on the tract of land which he solicits in the antecedent memorial, situated at the place commonly called Achoucoupoulous, the front thereof to commence from the plantation of Philip Saucier, and inhabitant of said place, and running to the Bayou of Mosquito Village, and extending in depth to Pearl River, should the same be vacant, and cause injury to no one of the surrounding settlers, either in the front or the depth thereof; whose proceedings shall be made out and signed by him with the before-mentioned persons, and sent to me to furnish the party interested with a title in form."

This tract of land seems never to have been actually surveyed. On 4 April, 1808, Gilberto Guillemard applied to the Intendant-General at Pensacola for an order of

Page 52 U. S. 98

survey, representing that Trudeau, the surveyor, by reason of the expense and his pressing duties, had not executed the survey, and a request is made that Pintado, the present surveyor, may mark out the boundaries &c. The application was granted, but Pintado, instead of making an actual survey, marked out a figurative plan by which the distances could be ascertained. He says:

"Two years having elapsed without being able, from the emergency of my business, to attend personally to make out the boundaries and to make the survey required, and not having at the said place a deputy to execute the same, and that the heirs claiming the same may have an authentic document issued in their favor from which may be made appear the right of property and ownership which to the said lands they have and hold in virtue of the said grants, and also the shape and figure which the said tract of land ought to have,"

&c.

The boundaries, as above designated by Pintado, are shown by a plat in the case. It is true that the above proceeding in relation to the survey took place after the surrender of Louisiana to the United States, which terminated all foreign power over the territory, but the proceeding shows that there was no forfeiture under the Spanish government, for the want of a survey or on any other ground, and it also shows that the places called for in the grant were deemed sufficiently certain by Pintado, the Surveyor General, to make the survey.

What was the nature of the title given by Miro, the Governor General, to Boisdore? He petitioned the governor for a "grant" of the land at the place named for the purposes stated. The governor, admitting that "the grounds and reasons stated by the petitioner were well founded, and that his proposal was advantageous to the capital," directed the surveyor of the province, Don Carlos Laveau Trudeau, to establish the petitioner on the land he solicits, designating the boundaries &c. If there be sufficient certainty in the boundaries called for, there can be no doubt that the grant of the governor separates the land from the public domain, and that in every view constitutes property under the treaty with France. There were no conditions expressed upon the face of this grant. The consideration is named, but not as a condition.

The petition which is referred to in the grant constitutes a part of it. The vicinity of the Bay of St. Louis, the place known by the name of Achoucoupoulous, the plantation of Saucier as the beginning point called for, "and to run therefrom to the Bayou of Mosquito Village, and extending in depth to Pearl River," all these calls are identified and shown by parol evidence and the maps which are in the case.

Page 52 U. S. 99

And the great question is whether, from the calls of the grant, the survey can be executed. These calls are clear and specific. They are the plantation of Philip Saucier, on the Bay of St. Louis, the rivulet or Bayou of the Village of Mosquitos, in the district called Achoucoupoulous, and extending in depth to Pearl River. All these calls are proved to exist, and they are more special than nine-tenths of the calls in the Spanish grants which have been confirmed.

Pintado, by his figurative plan embracing those calls, seems to have had no difficulty in directing how the survey should be made. And he was the surveyor general of the Province under the Spanish government, and may be presumed to have been well acquainted with the Spanish laws and usages on the subject of surveys. Morales, who sanctioned the grant in 1808 by ordering the survey, was intendant general, and had the same powers to grant land as the governor general previously had, and he was distinguished for his general intelligence and high capacity to represent his sovereign in the important duties which were committed to him. The grant was also sanctioned by Juan Lozado, the fiscal minister pro tem., to whom the petition of Guillemard in behalf of Boisdore's representatives was referred, and who recommended that the survey be made.

L. Bringier, a witness, states

"That he has been a surveyor for upwards of thirty years, and for more than twenty-five years Surveyor General of the State of Louisiana, during which period he has had the records of Spanish surveys in his charge, and had frequent occasion to refer to them and survey lands in conformity to them; that he understands the Spanish language; and he says that he agrees with Pintado as to the mode of running the lines of the survey. He thinks the description of the grant is sufficient to enable a surveyor to make an accurate survey of it,"

&c.

Elihu Carver, who says that he is a practical surveyor, on being asked how he would survey a Spanish concession which calls for two points as the front upon the seashore or a watercourse, and calls to run in depth to another watercourse for quantity, answers

"that he would run from one of the first points back to the watercourse a distance equal to the front given, thence direct to the last point in the front."

He says that he has surveyed many Spanish claims, and, except one, he never found the boundaries all round. That he does not pretend to be sufficiently acquainted with the Spanish customs and usages to pronounce upon the claim in question.

B. A. Ludlow states that he is a practical surveyor, and has held the office of surveyor general for the district south of Tennessee. He has examined the survey of Boisdore, and believes

Page 52 U. S. 100

the survey to be practicable, provided the plantation of Philip Saucier and the Bayou of Mosquito Village can be identified. "The survey should be made," he says,

"by finding a straight line between the above-mentioned points and raising perpendiculars upon said line, at its extremities, extending back to Pearl River,"

&c. "Exceptions to this rule," he says, "sometimes occur by watercourses or the lines of other claims causing a deviation," &c. He says he is familiar with the seashore which constitutes the front of the Boisdore claim. From his general knowledge of the country, he can see no material difficulty in making the survey of the claim &c.

A. Downing has been many years a practical surveyor, and has held the office of Surveyor General of the Public Lands for the State of Mississippi. He says,

"The phrase in the grant to Boisdore, 'the front thereof to commence from the plantation of Philip Saucier' and 'running to the Bayou of 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 view of Pintado, the Spanish surveyor general, for in the diagram filed in the case, and to which he refers in his instructions, he places what should be the most easterly front corner on the back line of the Saucier plantation."

And he says the sideline

"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."

This is the substance of the evidence in the case in relation to the calls in the grant. And it must be remarked that all the witnesses, with the exception of Downing, think that the calls of the grant are sufficient to enable a surveyor to mark out the boundaries. Downing supposes that no two surveyors would agree on the beginning corner or as to the second point and lines called for. But in this he is mistaken. In the first place, the Spanish authorities who held the calls of the grant sufficient are Miro, the Governor General who issued it, and Morales, the Intendant General, Trudeau and Pintado, surveyors general, and Lozado, the fiscal minister. These, when connected with the statements of the above witnesses, would seem to leave little doubt as to the sufficiency of the calls of the grant.

Page 52 U. S. 101

Upon this question, we must not forget that we are acting upon a Spanish grant and are governed by Spanish laws, usages, and customs. And if such a grant were valid under the Spanish government, and there has been no forfeiture of the right, we are bound by the plighted faith of our own government to sustain the grant. And in administering this foreign law, we must ascertain and regard the usages under it in the acquisition of titles to land. This is a universal principle, respected by all courts in the administration of justice. Parol evidence must be heard to establish those usages, in addition to what may appear from the action of the local tribunals. In the States of Virginia, Kentucky, Tennessee, North Carolina, Pennsylvania, and in a large district of country in Ohio, the usages in making entries and surveys of lands constitute the laws of the respective states, the usage of each state differing more or less from that of the others. One instance only will be named as peculiar, perhaps, to Kentucky and Ohio. The holder of a warrant for one thousand acres locates it, and in his survey includes fifteen hundred acres of land, more or less, and yet his survey is held valid. This, to one wholly unacquainted with such a rule of decision, would be thought unreasonable, and might be disregarded, and yet it is a rule of property which no court can reject.

To establish entries under this system, parol evidence is always heard as to the calls made and the objects called for &c. And although the survey may deviate from the calls of the entry, it is held valid if it interfere with no prior rights. This rule of decision, so firmly established in our own country, should be applied with an enlarged liberality when acting on land titles acquired under a foreign government of whose language and usages we have comparatively but little knowledge. The Act of Congress of 26 May, 1824, revived and applied to these titles by the act of 17 June, 1844, under which we exercise jurisdiction, provides that a claimant under

"any French or Spanish grant, concession, warrant, or order of survey, legally made, granted, or issued before 10 March, 1804, by the proper authorities, to any person resident in the Province of Louisiana,"

&c.,

"which might have been perfected into a complete title, under and in conformity to the laws, usages, and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States, may file his petition,"

&c. And the proceeding is required "to be conducted according to the rules of a court of equity," &c., and the court is authorized

"by a final decree to settle and determine the question of the validity of the title according to the law of nations, the stipulations

Page 52 U. S. 102

of any treaty, and proceedings under the same, the several acts of Congress in relation thereto, and the laws and ordinances of the government from which it is alleged to have been derived,"

&c.

I will refer to some cases where grants similar to the one under consideration have been held valid by this Court. In United States v. Percheman, 7 Pet. 54, the petitioner asked "two thousand acres of land in the place called Ockliwaha, situated on the margin of St. John's River." Governor Estrada says, "I do grant him the two thousand acres of land which he solicits, in absolute property, in the indicated place." The survey of this land was not executed until 20 August, 1819, after the treaty of cession. The title was confirmed by this Court.

In the case of the United States v. Clarke, 8 Pet. 446, the petitioner solicited a grant of the quantity of land which the Governor of Florida had thought proper to assign to the water mills, equivalent to five miles square, which lands he solicits "on the western part of St. John's River, above Black Creek, at a place entirely vacant, known by the name of White Spring." In the grant it is declared, "A title shall be issued comprehending the place and under the boundaries set forth in the petition." This was also confirmed.

In the case of the United States v. Levi, 8 Pet. 479, the grant was

"for twenty-five thousand acres of land, south of the place known by the name of Spring Garden, in this form: twelve thousand acres of them, adjoining the lake or pond called Second, and known by the name of Valdes, and the remaining thirteen thousand acres on the pond farther above the preceding, known by the name of Long Pond, the whole west of the River St. John."

The survey was executed on 2 August, 1819. This Court confirmed the title. Another grant in the same case was for

"seven thousand four hundred acres, lying on a stream running from the west, and entering the River St. John, and called in English the Big Spring, about twenty-five miles south of St. George's Lake, one of the fronts of the said tract to be on St. John's River, and to be divided in two parts by the stream aforesaid."

This survey was made on 5 April, 1821. The title was confirmed.

In the same case another grant, which was confirmed by this Court, was for eight thousand acres, being part of a larger parcel containing ten thousand acres &c.,

"five thousand of them in a hammock to be found five or six miles east of Spring Garden, and the remaining five thousand west of the River St. John, contiguous to a creek called Black Creek, near Fleming's Island and the pond called Doctor's Lake. "

Page 52 U. S. 103

Another grant in the same case was confirmed for "twenty thousand acres," described as lying

"in the hammocks known under the names of Cuscowillo and Chachala, situate west of the place of the River St. John's where there was a store of the house of Panton, Leslie & Co., and about thirty miles from it."

Similar citations might be made from any of our reports of the last fifteen or twenty years, but the above are sufficient to show the course of the Spanish authorities in granting lands, and the decision of this Court upon such grants. Many of the surveys, it will be observed, were made under Spanish authority after Florida was ceded to the United States.

The reader, if anyone shall read the above citations and the grant of Boisdore, will be struck with the much greater certainty in the calls of his grant than in the calls of any one of the grants above stated. And yet they were confirmed, and his is rejected for want of certainty. By virtue of what law this greater certainty is now required in the calls of a grant I am not able to determine. In my own mind, I am assured it cannot be under the Spanish law. And I am greatly mistaken if our decision on Spanish titles must not rest on Spanish law.

The tract claimed is said in the argument to be large. Of what importance is that to a court which deals with established principles? In this respect we can exercise no discretion. If the claim of Boisdore was property under the Spanish government, it is protected by the treaty. That it was so considered under the usages and acts of the Spanish government, to my mind, is clear. I therefore dissent from the judgment of the court.

MR. JUSTICE WAYNE.

I dissent from the opinion of the majority of the Court in the case, concurring with all the views expressed by my brother McLEAN and dissenting from every position of fact or argument in the opinion of the Court. In my opinion, the opinion of the Court is a departure from all heretofore adjudged by the Court in respect to the right of property secured by our treaties with France and Spain to the inhabitants of Louisiana and Florida.

Order

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is the opinion of this Court that the grant of petitioners had no identity, and cannot be surveyed

Page 52 U. S. 104

so as to give it boundaries. And secondly, if it could be identified, that no occupation and inhabitation were ever taken according to the terms of the grant, and therefore the claim is without equity according to the laws of Spain.

Whereupon it is now here ordered, adjudged, and decreed by this Court that the decree of the said district court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said district court with directions to dismiss the petition of the claimants in this cause.

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