The concession of certain lands now within the State of Alabama,
confirmed to Nicholas Baudin Sept. 15, 1713, by "the then Governor
of Louisiana" (
infra, p.
101 U. S.
798), was a complete grant to the donee, and vested in
him a perfect title to them.
This was an action of ejectment brought by the defendants in
error in the Circuit Court of Mobile County, Alabama, for the
recovery of a parcel of land on Mon Louis Island, a triangular
tract of over 14,000 acres of land in the lower part of that
county, bounded on the east by Mobile Bay, on the northwest by Fowl
River, and on the south by the waters of the sound which separates
the mainland, of which Mon Louis Island is a part, from Dauphin
Island.
The plaintiffs in proof of their title put in evidence an entry
in American State Papers, vol. iii. pp. 19-20, being a part of the
report of William Crawford, commissioner under the act of Congress
of 1812 and 1813.
"Register of claims to land in the district east of Pearl River
in Louisiana, derived from either the French, British, or Spanish
government, which, from the circumstances, require a special
report:"
"No. 1. By whom claimed: Heirs of Nicholas Baudin."
"Original claimant: Nicholas Baudin."
"Nature of claim and from what authority: French
concession."
"Date of claim: 15 Sept., 1713."
"Quantity claimed: Area in arpens, about 14,360."
"Where situated: Fowl River."
"By whom issued: La Mothe Cadillac."
"Surveyed: No survey."
"Cultivation and inhabitation: Proved from 1804 to 1813. "
Page 101 U. S. 798
"The claim of the heirs of Nicholas Baudin to an island in Fowl
River, being ten or twelve miles in length and from two to three
miles wide, is founded on the following documents:"
"
[Translated from the French]"
"We, lieutenants of the King and commandant of Fort Louisiana,
and Dartiquette, King's counselor, commissary ordinary of marine,
sent by the order of the court into this colony, have agreed for
the good of his Majesty's service in the advancement of this
colony, to give contracts of cessions (des contrats des cessions)
to several inhabitants, to-wit: "
"To Nicholas Baudin, the land of Grosse Pointe, to begin at and
run along the source of Fowl River till it reaches the oysters
(oyster pass) which separate Massacre Island from the mainland, in
order to raise cattle thereon."
"Of the said land we have made to him for and in the name of his
Majesty, the entire cession, and transfer with its circumstances
and dependencies in order that he, his children, heirs, or assigns,
may enjoy and use it from henceforward and forever without being
troubled or disturbed in the peaceable possession thereof, not
pretending, nevertheless, to derogate in any manner from the rights
and pretensions which his Majesty might have thereto for the good
of his service."
"Done at Fort Louis of Louisiana this 12th November, 1710."
"DARTIGUETTE and"
"BIENVILLE"
Below is written:
"We, the governor of the Province of Louisiana, approve and
ratify the said present concession."
"Done at Fort Louis this 15th September, 1713."
"LA MOTHE CADALLAC"
On the margin is sealed a writing, of which the following is a
copy:
"This day, the 16th of July, in the morning, 1761, came to the
office of the Superior Council of the Province of Louisiana Mrs.
Francis Paille, widow of the deceased Nicholas Baudin, called
Mingoin and inhabitant of this town, who requested us to receive in
deposite, in order to be enrolled on our minutes, the above piece
and the other parts, in order that recourse may be had thereto when
necessary, and copies thereof delivered to whomsoever of
Page 101 U. S. 799
right may demand them, and declared that she did not know how to
write nor sign this according to the ordinance. In presence of and
assisted by Claude Boriteldet la Leine, her son-in-law."
"BOUTLE"
"And we, the undersigned clerk, CHATAUCOU"
And joined to the original is a small paper attached thereto by
a pin on which is written in English:
"Received from Mr. Moulouis two originals and two copies of land
grants, 27 December, 1807."
"LUKE RUSSELL"
"I certify that the present copy is conformable to the original
among the archives of the government at Mobile. This 16 June,
1783."
"JAMES DE LA LOUSAGAE,
N. Public"
"The original of this, which has been presented to me, exists in
the archives of government under my care."
"MOBILE, 18th June, 1783 HENRIQUE GRIMAREST"
"Inhabitation and cultivation -- Thomas Powell, being sworn,
saith that he knows of his own knowledge that land claimed by the
representatives of Nicholas Baudin, on Fowl River, called the
Island, has been inhabited and cultivated since the year 1804, and
that he believes it was inhabited and cultivated before that
period; that four or five acres have been cultivated."
"THOMAS POWELL"
Also the following from the fifth volume of the American State
Papers, page 130, to-wit:
"
Special Report, No. 2"
"Claim of the heirs of Nicholas Baudin to an island in Fowl
River, called 'Grosse Pointe' or 'L'isle Mon Louis,' estimated to
contain about 14,360 arpens."
"This claim is founded on a French concession given at Fort St.
Louis, on the 12th of November, 1710, by Bienville, lieutenant of
the King and commandant of Fort Louis, and by Dartiguette,
commissary ordinary of the marine."
"These officers in their deed of concession state their power as
emanating from the court to make grants of cession (des contrats de
cessions) in the Province of Louisiana, and under this authority it
appears they conceded to Nicholas Baudin, the ancestor of the
Page 101 U. S. 800
present claimants, the island or tract of land called the Grosse
Pointe."
"Beneath the concession is an approval and ratification of it by
La Mothe Cadallac, the Governor of Louisiana, signed on the 15th of
September, 1713."
"It also appears from a document appended to the writing above
referred to, signed by Boutru and certificate by Chantalon, clerk,
that Madame Paille, widow of N. Baudin, the original grantee,
presented at the office of the Superior Council of the Province of
Louisiana the aforesaid deed of concession, together with its
approval and ratification, with the request that they would receive
the said documents 'in deposite, in order that they might be
enrolled on the minutes of the superior council, that recourse
might be had there when necessary.'"
"Thus far, the steps taken in this concession were, as far as
this board have an opportunity of ascertaining in accordance with
the usage of the French government in granting lands in its
provinces, nor are we aware of any regulation which restricted the
authorities of that government in the quantity they might grant.
Two certificates were also presented to the board, signed, first,
by James de la Sampaye, notary public, dated 16th June, 1783, and,
secondly, by Grimarest, Spanish commandant at Mobile, stating that
the originals, the subjects of which have been recited, existed at
that time in the archives of the government at Mobile. Several
witnesses prove that the tract claimed has been inhabited and
cultivated from a period prior to 1761 to the present time. The
occupancy being uninterrupted for so long a period as is proven,
first, under the French grant by which the tract was granted, and
successively under the English and Spanish governments, is deemed
strongly corroborative of the original grant. The claim is not
encumbered by mesne conveyances, but is still in the possession of
the descendants of the original grantor."
"This claim is not encumbered with mesne conveyances, but is
still in the possession of the descendants of the original
grantor."
"From the facts here submitted, the undersigned are of opinion
that the foregoing claim is entitled to the favorable consideration
of Congress."
"All which is respectfully submitted."
"JNO. B. HAZARD"
"JNO. HENRY OWEN"
"
Board of Com. for the Adjustment of Land"
"
Claims in the State of Alabama"
"ST. STEPHEN'S, Feb. 20, 1828 "
Page 101 U. S. 801
The report was made by said commissioners under the authority
conferred by the second section of the Act of Congress approved
March 3, 1827, 4 Stat. 239, and was confirmed by the Act approved
March 2, 1829,
id., 358, the fourth section of which is as
follows:
"That the confirmation of all the claims provided for by this
act shall amount only to a relinquishment for ever, on the part of
the United States, of any claim whatever to the tracts of land and
town lots so confirmed, and that nothing herein contained shall be
construed to affect the claim or claims of any individual, or body
politic or corporate, if any such there be."
The plaintiffs also introduced evidence tending to show that the
land in the concession mentioned constitutes what is now known as
Mon Louis Island; that they derived title to the land in
controversy from said Nicholas Baudin, and that the defendants were
in possession of it at the commencement of this suit and now.
The defendants denied this, and claimed the land under the heirs
of one Henry Francois, to whom, they assert, it was granted by
operation of the third section of the Act of Congress of May 8,
1822, by reason of said Henry's inhabitation and cultivation of it
before 1813, and by a patent from the United States issued May 5,
1870, which was founded on a land office certificate dated in
1869.
There was a verdict for the plaintiffs, and the judgment entered
thereon having been affirmed by the Supreme Court of Alabama, the
defendants sued out this writ of error.
The remaining facts, and the instructions given by the court of
original jurisdiction to the jury, are stated in the opinion of the
Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Claims to land, when the Province of Louisiana was ceded to the
United States, were, in many instances, incomplete, arising largely
from the fact that the governor of the province, during
Page 101 U. S. 802
Spanish rule, never had authority to issue a patent. Laws were
accordingly passed by Congress very early after the jurisdiction
was transferred making provision for the adjustment of such
inchoate claims, which in one form or another have been continued
in force even to the present time.
Concessions of the kind having never received the sanction of
the supreme power of the province, they did not have the effect to
segregate the tract conceded from the mass of the public lands,
from which it followed that when the jurisdiction of the province
was transferred by the treaty, the legal title to all such tracts
vested in the new sovereign until confirmed.
Complete titles, of which there were a few, mostly derived
during the dominion of the French, needed no confirmation, as they
were fully protected by the treaty.
Sufficient appears to show that the plaintiffs derive their
title from Nicholas Baudin, an old French claimant, whose title, as
the plaintiffs allege, was confirmed by an act of Congress. 4 Stat.
240. They rely upon the action of the commissioners appointed under
that act of Congress, and the proceedings of the commissioners
shown in the State Papers, and the confirmation of the same by the
subsequent act of Congress relating to the same subject matter.
Id., 358; 3 Am. State Papers, pp. 19, 20; 5
id.
130.
Evidence was given by both parties, as is fully set forth in the
transcript and in the report of the case as prepared in the court
of original jurisdiction.
Stewart v. Trenier, 49 Ala.
492.
None of the other proceedings in the cause prior to the bill of
exceptions and the final judgment removed here for reexamination
are material in this investigation, and they are omitted, with the
remark that the parties will find them all fully set forth in the
statement of the reported case.
Service was made, and the defendants having appeared pleaded the
general issue. Both parties gave evidence, and the verdict and
judgment were in favor of the plaintiffs. Exceptions were filed by
the defendants, and they appealed to the Supreme Court of the
State, where the judgment was affirmed. Still dissatisfied, they
sued out the present writ of error, and removed the cause into this
Court.
Since the cause was entered here, the defendants have
assigned
Page 101 U. S. 803
three errors, as follows:
1. That the circuit court erred in holding that the concession
under which the plaintiffs claim is a complete title.
2. That the circuit court erred in holding that the title
derived under that concession, accompanied by the statutory
confirmation referred to, is superior to that of the defendants as
confirmed by the act of Congress of an earlier date, and the patent
issued to the party.
3. That the circuit court erred in treating the question of
boundary as one to be determined by the court and jury, though the
uncontradicted evidence showed that the tract could not be located
by the description given in the concession.
Applicants for a concession in Louisiana as well as in
California usually addressed a petition to the governor for the
land, and it seldom or never appears that any survey was had before
the concession was issued. Surveys frequently followed the
concession or grant, and where the proceeding is regular, it
affords strong evidence to support the title of the claimant.
Regular concessions or grants were usually made in one of three
ways: 1. grants by specific boundaries, where, of course, the donee
is entitled to the entire tract within the described monuments; 2.
concessions or grants by quantity, as of one or more leagues of
land within a larger tract described by what are called
out-boundaries, where the donee is entitled to the quantity
specified and no more, to be located by the public authority,
usually in a manner to include the improvements of the occupant,
and with due respect to any descriptive recitals in the instrument;
3. grants or concessions of a place or rancho by some particular
name, either with or without specific boundaries, where the donee
is entitled to the tract known by the name specified according to
the boundaries, if boundaries are given, and if not then according
to the known extent and limits of the tract or rancho as shown by
the proofs, including evidence of possession and the settlement and
cultivation of the occupant.
Higueras v. United
States, 5 Wall. 827,
72 U. S.
834.
Fee simple title is claimed by the plaintiffs as purchasers from
the heirs of the original donee to whom the concession was made,
Nov. 21, 1710, by the authorized agents of the sovereign of the
province as universally admitted. Full proof is also exhibited that
the concession of the donee was confirmed
Page 101 U. S. 804
Sept. 15, 1713, by the governor of the province. Support to the
theory that the concession is genuine and authentic is also derived
from a document appended to it, showing that the widow of the
donee, at a very early period, presented the same at the office of
the council of the province in order that it might be duly enrolled
in the minutes of that tribunal.
Unimportant preliminary recitals in the concession will be
omitted, as it is not controverted that it emanated from competent
authority. It is addressed to the grantee, and purports to concede
to him
"the land of Grosse Pointe, to begin at and run along the course
of Fowl River till it reaches the Oyster Pass which separates
Massacre Island from the mainland."
Enough appears to warrant the conclusion that the land was
regarded as suitable for grazing, and the express declaration is
that the entire cession and transfer were made in the name of his
Majesty, "with its circumstances and dependencies," in order that
the donee, his children, heirs, and assigns, may enjoy and use it
forever without being troubled or disturbed in the peaceable
possession thereof. 3 Am.State Papers, 20.
When the claim was first presented to the commissioners, they
described it as follows: the claim of the heirs of Nicholas Baudin
to an island in Fowl River, being ten or twelve miles in length and
from two to three miles wide, and they refer to the concession and
the documents as the foundation of the claim.
Commissioners with fuller powers were subsequently appointed for
the adjustment of land claims in the state where this tract is
situated, and the plaintiffs gave in evidence their report upon the
subject, entitled Special Report, No. 2, as follows: Claim of the
heirs of Nicholas Baudin to an island in Fowl River, called Grosse
Pointe, or Isle Mon Louis, estimated to contain about fourteen
thousand three hundred and sixty arpens. 5
id. 130.
Extended report was made by those commissioners in favor of the
claim, and it was declared valid pursuant to the first section of
the act confirming the reports of the register and receiver of the
land office for the district therein described. 4 Stat. 358.
Proof of mesne conveyance to the plaintiffs was also introduced
by them, and that the defendants were in possession of
Page 101 U. S. 805
the premises. Documentary evidence was also introduced by the
defendants in support of their title, as heirs of Henry Francois,
for which purpose they read the entries in the third volume of the
State Papers relating to the claim, as contained in the report of
the register of the local land office. They then read in evidence
the supplementary act of Congress providing for the confirmation of
land titles in that State. 3
id. 707. Also an abstract of
locations from the records of the local land office by the
register, which was made a part of the bill of exceptions, and a
duplicate copy of the patent certificate, with proof that it was
correctly copied from the original. Evidence was also introduced by
the defendants to authenticate the record of the survey and tract
which they claim, and the same was read to the jury. Oral testimony
was also introduced by the defendants proving that the plat and
field notes of the survey and location were correct, and they also
read in evidence the patent to them from the United States, a copy
of which is attached to the transcript. Both sides examined
witnesses, whose testimony is duly reported, but it is not deemed
necessary to reproduce it, as it is fully reported in the
transcript and in the report of the case when first tried in the
court of original jurisdiction. Full report was then made of the
evidence, and the same was sent up to the supreme court of the
state.
Matters of fact are determined by the verdict of the jury, and
inasmuch as the assignment of errors does not call in question any
ruling of the court in admitting or excluding evidence, the
reexamination of the record will be confined to the instructions of
the court given to the jury, and the exceptions of the defendants
to the rulings of the court in refusing the requests for
instruction which they presented.
Exceptions of a general character to the entire charge of the
court are not entitled to much favor, as they fail to inform the
presiding justice what the matters are to which the objections
apply, and frequently give rise to embarrassment in the appellate
court for the same reason. Objections to the charge should be
specifically pointed out before the jury retire, in order that the
justice presiding may known what the supposed errors are, and have
an opportunity to make any corrections that the circumstances
Page 101 U. S. 806
may require to enable the jury to determine the issue between
the parties according to law and the evidence.
Six separate propositions were submitted by the court of
original jurisdiction to the jury, in substance and effect as
follows:
1. That the concession under which the plaintiffs claim is a
complete grant, and that it vested in the donee a perfect title to
the tract therein described as being in Fowl River, ten or twelve
miles in length and from two to three miles wide, and called Grosse
Pointe; that if the jury believe from the evidence that the land of
Grosse Pointe and Mon Louis Island are the same land, having the
same boundaries and description, then the grant to the donee
conveyed to him a complete title to the whole of the island,
subject to the right of eminent domain, and that it is protected by
the treaty of cession.
2. That the grant to the donee being perfect and complete, the
land covered by it continued to be private property, the title to
which is complete, unaffected, and unimpaired by any of the
subsequent changes in the sovereignty of the province.
3. That the title of the donee was complete when the
jurisdiction was ceded to the United States, which is sufficient to
show that neither the act of Congress referred to nor the patent
could convey any title to the other donee.
4. That the right and title of the original donee were superior
to the claim of the other donee, and that if the jury believed from
the evidence that the land in controversy is embraced in that
concession, and that the plaintiffs derived their title to the same
from that donee, then they are entitled to recover in this
action.
5. That hearsay and reputation among those who may be supposed
to have been acquainted with the facts as handed down from one to
another is competent evidence of pedigree and heirship to be
submitted to the jury, who are the judges of its weight and
sufficiency.
6. That the title to real property may be acquired by virtue of
adverse possession and enjoyment, when taken under color of title
and held in good faith openly, notoriously, and continuously; that
if the jury believe from the evidence that the plaintiffs had such
possession of the premises for ten years before
Page 101 U. S. 807
the entry of the defendants, then the plaintiffs are entitled to
recover.
Exceptions were noted as having been taken to the charge of the
court and to each and every part of it. Such an exception in the
circuit court could not be regarded as sufficient, but inasmuch as
the case was reviewed and the judgment affirmed in the supreme
court of the state, we are inclined to reexamine the errors
assigned.
Suppose the matters set forth in the co cession as descriptive
of its location, extent, and boundaries existed there, as it must
be presumed they did, when the grant was made, no one, it is
supposed, would deny that they would be sufficient to give validity
to the title of the plaintiffs. Conceded or not, it must be so, as
they show a compliance with two if not all of the modes in which
such grants were made under the prior sovereigns of the
province.
Grants made by Mexican governors, says MR. JUSTICE FIELD, were
usually made in one of three ways: 1. grants by specific
boundaries, where the donee is entitled to the entire tract; 2.
grants by quantity, as of one or more leagues of land situated in a
larger tract described by out-boundaries, where the donee is
entitled only to the quantity specified; 3. grants of a certain
place or rancho by some particular name, which rule is well
exemplified by the grant exhibited in the transcript as the grant
of an island of a specified name in a particular river.
Alviso v. United
States, 8 Wall. 337,
75 U. S.
339.
Grant all that, and still it is insisted that the name of the
tract is not remembered by the witnesses, and that such changes in
the surroundings of the alleged locality have taken place that
neither the locality of the concession nor its extent can be
ascertained.
Two answers to that suggestion are made, both of which are
entitled to great weight:
1. Whether the locality of the tract as described in the
concession can be ascertained or not presents a question of fact to
be ascertained by a jury. Evidence in respect to that issue was
introduced by both parties, which was properly submitted to the
jury, whose verdict is not open to revision in this court.
2. Possession under claim of right and color of title was fully
proved, and was plainly of a character to
Page 101 U. S. 808
warrant the jury to find that it was adverse, uninterrupted,
continuous, open, and notorious for a period twice as long as was
required by the rules of the common law to bar the writ of
right.
Facts found by a jury under our system of jurisprudence can only
be revised in one of two ways: 1. by a motion for a new trial in
the court of original jurisdiction; 2. by writ of error in some
appellate tribunal for the correction of errors.
Parsons v.
Bedford, 3 Pet. 433,
28 U. S.
446.
Application for a new trial was made in the court below and was
refused. Since then, the cause has been removed here, where nothing
is open to reexamination except the question of law presented in
the assignment of errors.
Separate examination of the instructions given to the jury is
not required, nor could it well be accomplished without extending
the opinion to an unreasonable length. Suffice it to say in that
regard that they have been read with care and that the Court is of
the opinion that they are correct, from which it follows that if
any error has intervened it was the fault of the jury and not of
the court, which cannot be remedied here, as it can only be
corrected by a motion for a new trial.
Requests for instructions were made by the defendants which were
refused, and they excepted to the rulings of the court in refusing
to instruct the jury as requested.
Two propositions arising out of the facts in the case cannot
well be controverted:
1. That if both titles depended exclusively for their validity
upon the action of Congress, the defendants' must prevail, the rule
being that he who first obtains the title and not he who first
applied for it has the better right.
McCabe v.
Worthington, 16 How. 86.
2. That if the title of the original donee was complete when the
province was ceded to the United States, it is the superior title
and is protected by the treaty of cession; to which a third
proposition may be added -- that inasmuch as Congress has confirmed
the concession to the donee as one derived from a former sovereign
of the province, its genuineness and authenticity are
established.
Even grant that, and still it is contended by the defendants
that the land claimed was never segregated from the public domain.
Proof of possession for a century and a half would
Page 101 U. S. 809
seem to be a sufficient answer to that objection, but the claim
of the plaintiffs does not rest solely nor even chiefly upon that
ground. Instead of that, the evidence introduced tended strongly to
show that Grosse Pointe was the appellation given to the land
embraced in the island now called Mon Louis.
Time has doubtless made some change in the topography of the
place, but the description of the tract as given in the concession
is as follows: beginning at and running along Fowl River till it
reaches the Oyster Pass, which separates Massacre Island from the
mainland. From the subsequent survey it appears that Fowl River
separates the island of Mon Louis from the mainland, and that the
other boundaries are the bay and the gulf.
Grosse Pointe, it seems, must have referred primarily to some
point of land formed by the waters of the bay and gulf, such as
Cedar Point or some other of less notoriety. Objects of the kind
would naturally attract attention, and it appears that Grosse
Pointe was not distant from Fowl River, which serves to explain
that part of the description that describes the course after
mentioning the initial point as running along the river from the
Pointe to the Oyster Pass. Beyond doubt, the Oyster Pass led into
the gulf, as there is no other stream than the river whose waters
border upon the island.
Nothing adverse to the authenticity of the concession can be
inferred from its extent, as it was customary at that day to make
large grants. Its situation as an island made it admirably adapted
to the purpose of grazing, for which it was sought and conceded.
Its claimants went into possession of the tract nearly a hundred
years before the province came within our jurisdiction, and on
every change of the sovereign, they produced their title papers and
demanded a recognition of their rights.
Fifty years after the grant, the widow of the grantee presented
the title papers to the proper officer for registry, and it appears
that they were properly recorded. Twenty years later, when another
change of jurisdiction was about to be effected, another assertion
of title was made, nor were they ever interrupted until the United
States acquired the jurisdiction. Their title was complete when the
ratifications of the treaty of cession
Page 101 U. S. 810
were exchanged, and of course their title is protected by the
treaty.
Want of survey since the treaty is suggested, but the grant was
of the island whose boundaries are the waters which surround it,
and which separate it as effectually from the public domain as
could the most accurate official survey ever made.
Priority of recognition is claimed in favor of the other donee,
but the decisive answer to that suggestion is that the act of
Congress making it reserves in terms the rights of others, and
limits the operation of the act to the relinquishment of any claim
of the United States to the land.
Most of these views are much strengthened by historical
researches of the court below, as exhibited in the opinion of the
state court given in support of the judgment brought here by the
present writ of error.
Trenier v. Stewart, 55 Ala.
458.
Without entering further into the details of the case, it must
suffice to say that we are all of the opinion that there is no
error in the record.
Judgment affirmed.
