1. Where a petition was filed under the eleventh section of an
act entitled "An Act for the final adjustment of private land
claims in the States of Florida, Louisiana, and Missouri," 12 Stat.
85, praying for the confirmation of title to a tract of land in
Louisiana, and it appears that the grant, as the same is alleged in
the petition, was not surveyed before the treaty of cession, and
that it furnishes no means whereby its location or extent can be
determined,
held that the petition was properly
dismissed.
2.
United States v.
D'Auterieve, 15 How. 14, in which the same grant
was under consideration, cited and approved.
The facts are stated in the opinion of the Court.
Page 101 U. S. 701
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Claimants to land lying within the States of Florida, Louisiana,
or Missouri, by virtue of any grant, concession, order of survey,
permission to settle, or other written evidence of title bearing
date prior to the cession of the territory out of which those
states were formed, may make application to certain commissioners
for the confirmation of their title, or they may at their option
proceed by petition in the district court within whose jurisdiction
the lands are situated. 12 Stat. 85.
Either party aggrieved by the decree in the case may appeal
directly to the Supreme Court as of right, neither affidavit or
security being required of the claimant other than for costs.
Pursuant to that authority, the appellants presented their petition
to the District Court of the District for Louisiana, asking for the
confirmation of their title to the same, except as to such parts
thereof as have been granted by the United States or confirmed to
other parties, as to which they pray that they may be adjudged to
be entitled to indemnity in certificates of location to the same
extent of land.
Sufficient appears to show that the same claim was presented to
the same district court twenty years earlier, and that on appeal to
the Supreme Court, the claim was rejected.
United
States v. D'Auterieve, 15 How. 14. Full report is
there given of the origin, nature, and extent of the claim, and in
view of that fact, it is not deemed necessary to reproduce the
allegations of the petition in this opinion, as the whole substance
of the same is given in the opinion of the Court in that case.
Due appearance was entered in behalf of the United States in
this case, and the district attorney filed an answer to the
petition setting up several defenses, as follows: 1. that no such
grants or mesne conveyances as those under which the petitioners
claim were ever made; 2. that if any such grants were ever made as
alleged, which is denied, that the lands were never separated by
metes and bounds or actual survey from the mass of the public
domain, and are therefore null and void by reason of uncertainty of
location and vagueness of description both as to the boundaries of
the grants and to their extent.
Tracts of land of great extent were granted by royal charter
Page 101 U. S. 702
to a certain association called the Western Company, and the
claim of the appellants is that that company made concession of the
tract in question to the grantor of their ancestor, the tract at
the date of the concession being four leagues front on the right
bank of the Mississippi River and extending back to the River
Atchafalaya, a distance of ten or twelve miles. Neither the royal
charter granting the land to the Western Company nor the concession
to the grantor of their ancestor is given in evidence. Nothing of
the kind is pretended, but the appellants allege that the letters
patent, bearing date in 1717, were issued in the name of the
sovereign of France, by which the said company was created, and
that by the fifth article of the same all the lands, coasts, ports,
havens, and islands of the Province of Louisiana were given and
granted to the said company, with power to give, sell, and grant
the same to others, and that the company during that year or early
in the next year conveyed the tract antecedently described to the
grantor of their ancestor.
Their theory is that the concession was made by the French
authorities before the province was ceded to Spain. History shows
that France subsequently, by a secret treaty, transferred the
province to Spain in pursuance of the stipulations between the
contracting parties. When the first governor under the Spanish rule
visited the province, he reduced the tract to a front of twenty
arpents, to which no objections appear to have been made by the
claimant; but the successor of that magistrate, three years later,
when he assumed the functions of governor of the province, enlarged
the front to forty-four arpents, which perhaps was done at the
request of the claimant. Galvez was the third governor of the
province after the cession to Spain, and he, in the exercise of his
powers, took away from the heirs of the alleged purchaser the whole
front to the depth of forth arpents from the Mississippi River,
leaving them nothing except what is called in legal phrase the back
lands.
Throughout these several changes in the alleged title of the
ancestor of the appellants and his immediate heirs, all parties
appear to have acquiesced without any complaint. Nor do the
appellants now claim any of the front land on the River
Mississippi, nor the four leagues, nor the forty or forty-four
arpents.
Page 101 U. S. 703
Instead of that, their claim is to the back lands, the side
lines commencing at a point forty arpents from the Mississippi
River and extending back to the River Atchafalaya. Even as reduced,
the claim is a large one, amounting to perhaps five hundred
thousand acres, but it is not more than one-fifteenth part of the
original claim, as appear by the documents exhibited in the
transcript.
3. Besides denying the authenticity of the concession, the
answer also denies in the most explicit terms that the tract, as
described in the evidence, ever extended back to Atchafalaya
River.
4. Support to that proposition is derived in the answer by
referring to the regulations adopted two years before the second
governor under Spanish rule enlarged the front to forty-four
arpents, which provide that all grants fronting upon rivers shall
be limited to a depth of forty arpents. White's Recopilacion, p.
299, art. 1.
5. That the case is in all respects the same as that previously
decided by this Court.
United States v.
D'Auterieve, 15 How. 14,
56 U. S. 23.
No record of the concession, says the Court in that case, has
been produced, and after a thorough examination of the archives,
both at New Orleans and in the appropriate offices for the deposit
of such records, none can be found. Mention was then made of the
proof exhibited in the case, which it seems consisted only of
certain historical sketches given to the public of the first
settlement of the province under the direction of the Western
Company, together with some documentary evidence relating to the
plantation of the alleged original donee through his agents, such
as powers of attorney and some intermediate transfers of the titles
in the charge of the agency. These are given in detail, but the
Court remarks that unfortunately, neither the historical sketches
nor the documentary evidence furnishes any information as to the
extent of the concession or its boundaries. Speaking to the same
point, the Court says that the tract claimed as derived from the
original donee is without boundaries or location, and the Court
proceeds to remark that the only description that has been referred
to, or which the Court has been able to find after a pretty
thorough search, even in historical records,
Page 101 U. S. 704
is that it was a concession of a large tract upon the right bank
of the Mississippi River, opposite Manchac, a point some twenty
leagues above New Orleans. We have no evidence of the extent of the
concession on the river or the depth back, says the Court, or of
any landmarks designating the tract by which it can be regarded as
severed from the public domain.
Governor Unzaga, who succeeded the first Spanish officer of that
rank, ordered a survey of the tract, and it appears it was made by
the public surveyor, and that it was returned and approved in the
same year. Special attention to that fact was called in the
argument of the prior case, and it was urged that it furnished
evidence of an incipient step to establish an incomplete title
under our treaty of cession, and the Court entered into a full
examination of the proposition and the evidence to support it,
which consisted chiefly of the field notes of the survey.
Reference is made to the claim in some of the intermediate
conveyances as a plantation or concession by the name of the first
agent of the company, or by the name of the "Bayou Goula village,"
the name of a place on the river where the tribe of Indians of that
name made their headquarters. Satisfactory evidence is exhibited
that the public surveyor surveyed the front to the depth of forty
arpents, but it must be remembered that the front of the tract on
the river to the depth of forty arpents was given up, and that it
was subsequently assigned by the governor to other emigrants, and
no part of it is now claimed by the appellants.
Back concessions, it seems, were seldom made, and in no instance
of which there appears to be any authentic account except to the
proprietor of the front, and where made, uniformly had a depth of
forty arpents, reckoning from the rear line of the first
concession, but the same form of title appears to have been
required in the one case as in the other, and in no case could a
fee simple estate be acquired from the government without the
severance of a definite tract from the mass of the public lands
under the operation of a complete grant. 4 Op.Att.Gen. 683.
Such a severance might be made by the grant itself if it
contained specific boundaries or was well defined by courses
and
Page 101 U. S. 705
distances or other authentic and definite description of the
tract. It is not pretended that either boundaries or courses and
distances or any other authentic or definite description of the
tract was given in the supposed concession. Where such evidence of
the location and description of the tract is wanting in the
concessions, they may and often have been supplied by what is
called a judicial survey, nor is it doubted that an official survey
under the order of the governor might have a like effect.
Beyond doubt, such a survey was made of the front on the river,
but this Court decided in the case already referred to that there
is not the slightest pretence that the tract as surveyed under that
order of the governor extended back further than the usual depth of
forty arpents from the river. No support to the theory of the
appellants that it extended back to the River Atchafalaya is
exhibited in the record. Nor do the field notes or the
proces
verbal of the surveyor who made the field notes and the survey
give the proposition the least countenance.
Under our treaty of cession, the United States acquired in
sovereignty all the lands in the province which had not before been
granted by one or the other of the two prior sovereigns and severed
as private property from the royal domain. It was incumbent,
therefore, upon the appellants to show that the land in question
had been so granted by the antecedent authorities, else the United
States are entitled to recover it.
United
States v. King, 7 How. 833,
48 U. S.
849.
Subsequent concessions were made by the Spanish authorities
within this claim, which, as well as the action of the authorities
in resuming the possession of the larger portion of it, show
conclusively that no such right as is now claimed by the appellants
was recognized by those authorities.
Since the cession of the province, the right of such a claimant
is the same as it would have been if the jurisdiction had not been
transferred, from which it follows that rejected claims, which had
no validity at the date of the treaty, impose no obligation upon
the United States as the successor of the foreign sovereign.
Cases of the kind have frequently been before the court, in
Page 101 U. S. 706
which the act of Congress authorizing such litigations has been
construed and the rights which it confers defined. We adopt the
construction given to the act in the last-reported case upon the
subject, as follows:
1. That the claimant or those under whom he holds must have been
out of possession for twenty years or more.
2. That the land must be claimed by a complete grant or
concession or order of survey or other mode of investiture of title
in the original claimant by separation of the tract from the mass
of the public domain, either by actual survey or defined, fixed
natural boundaries or initial points and courses and distances by
the competent authority, prior to the treaty of cession.
3. That those conditions do not apply where the title was
created and perfected during the period of the actual possession of
the government under which the claim is asserted. Titles in fee
simple which were complete when the jurisdiction of the province
was transferred to the United States needed no confirmation, as
they are fully protected by the treaty of cession.
United
States v. Percheman, 7 Pet. 51,
32 U. S. 88;
United States v.
Wiggins, 14 Pet. 334,
39 U. S.
349.
4. That the title must be complete under the former sovereign --
that is, the land must have been identified by an actual survey
with metes and bounds, or the description in the grant must be such
that judgment can be rendered with precision by such metes and
bounds, natural or otherwise; that nothing must be left to doubt or
discretion in its location; and if there was no actual survey
previously made which a surveyor can follow, there must be such a
description of natural objects for boundaries that he can do the
same thing
de novo, or in other words the separation of
the tract from the public domain must not be a mere conjectural
separation, but complete, without any element of discretion or
uncertainty.
Scull v. United States, 98 U. S.
410,
98 U. S. 418;
Smith v. United
States, 10 Pet. 326,
35 U. S.
334.
Apply those rules to the case before the Court and it is clear
that the decree of the court below must be affirmed. Even if it be
conceded that the concession is proved, it is clear that it has no
boundaries, nor does it contain any means to determine either the
location or the extent of the supposed grant.
Grants of the kind which do not contain any description by which
the land can be located, and are not connected with a survey,
Page 101 U. S. 707
do not create private property under the treaty of cession.
Where the concession contains no lines or boundaries whereby any
definite and specific parcel of land was severed from the public
domain, the claim of the donee cannot be sustained, it having been
repeatedly decided by this Court that if the description is vague
and indefinite, as in the case before the Court, and there is no
official survey to give it a certain location, it will create no
right of private property which can be maintained in a court of
justice.
United States v.
King, 3 How. 773,
44 U. S.
787.
Legal survey will often be sufficient to establish the locality
of the tract, and may have the effect to establish its extent, but
if the claimant shows no survey under the former sovereign, it lies
on him to establish the boundaries of his concession and to
identify his land with such certainty as to show what particular
tract was segregated from the public domain, and if he fails to do
it, then he has no judicial remedy, and if he seeks confirmation,
he must go to Congress.
United States v.
Boisdore, 11 How. 63,
52 U. S. 96;
Lecompte v. United
States, 11 How. 115,
52 U. S. 127;
United States v.
Forbes, 15 Pet. 173,
40 U. S.
184.
Attempt is not made to show that the supposed concession
contained any definite boundaries or any other means of
establishing its locality or of defining its extent, nor is it
pretended that the tract as now claimed by the appellants was ever
surveyed by the public surveyor antecedent to the treaty of cession
to the United States. Conclusive proof to the contrary is exhibited
in the opinion of this Court delivered by Mr. Justice Nelson, which
conclusion is fully sustained by the field notes of the survey of
the front and by the
proces verbal and the figurative plan
exhibited in the transcript.
Decree affirmed.