In an order by a Spanish Governor of Louisiana recognizing an
Indian grant and directing the issue of "a complete title," these
words, as translated, refer to the instruments which constitute the
evidence of title, and not to the estate or interest conveyed.
It was a usage of the Spanish government, in granting lands on
the river, to reserve lands in the rear of the grants to the depth
of forty arpents, the
Page 111 U. S. 413
grantee of the riverfront having the preference right to
purchase the reservation.
Usages and customs respecting the alienation of lands prevailing
in Louisiana previous to its acquisition by the United States have
to a great extent the efficacy of law, and are to be respected in
considering the rights of grantees of the former government.
When established, such usages and customs control the
construction and qualify and limit the force of positive
enactments.
The original Houmas grant in Louisiana from the Indians, on the
5th of October, 1774, had a defined length on the River
Mississippi, and designated coterminous proprietors to the north
and to the south, but no depth to the grant was named. The Spanish
Governor executed a formal grant of the tract, describing it as of
the common depth of forty arpents. Two years later, on the petition
of the grantee, the governor directed his adjutant to give the
petitioner the land which might be vacant after forty arpents in
depth. This was done by a survey running the northern and southern
boundaries on courses from the Mississippi for forty arpents and
for two arpents additional.
Held that, in view of the
Spanish usages and of the action of the Spanish authorities and of
the action of Congress and of United States officials, all of which
are referred to, the concession extended in the designated courses
to the depth of eighty arpents from the river.
In case of doubt, a legislative grant should always be construed
most strongly against the grantee.
When a statute authorizes the creation of a commission of three
to decide upon land grants, a majority of whom "shall have power to
decide," "which decisions shall be laid before Congress, . . . and
be subject to their determination," their decisions have no binding
force until acted upon by Congress.
An act confirming "the decisions in favor of land claimants made
by" A, B, and C, reciting their names, does not confirm a decision
made by A and B and dissented from by C, although the act under
which the commission was created provided that a majority of the
commissioners should have power to decide.
A legislative confirmation of a grant of land of which no
quantity is given, no boundary stated, and no rule for its
ascertainment furnished is void for uncertainty. The distinction
between such a confirmation and that passed upon in
Langdeau v.
Hanes, 21 Wall. 521, pointed out.
These suits, which involved the validity of the titles to land
in Louisiana under what is known as the Houmas grant, were heard
together. The court below held that that grant was limited to a
depth of 40 arpents from the river. The claimants under the grant
appealed from this decision in three of the cases and brought their
writ of error to reverse the fourth. The voluminous facts, action
of Spanish authorities, action of Congress, action of United States
authorities, decisions of commissions,
Page 111 U. S. 414
and decisions of courts which go to make up the issues or bear
upon them are fully set forth in the opinion of the Court.
On the argument of these cases the contention of the plaintiffs
was that the grant of Governor Galvez to Maurice Conway, on the
21st of June, 1777, embraced all the land in the rear of the
original grant to him and Latil by Governor Unzaga in November,
1774, included within the boundary lines of that grant extended to
the limits of the possessions of the Spanish Crown. In support of
that contention, reliance was placed upon the report of the
commissioners appointed under the act of Congress of 1805, the
plats of the surveyor Lafon and the alleged confirmation by the Act
of June 2, 1858. We held that the grant of Galvez derived no aid
from these sources, but must depend for its extent upon the
language of the concession and the proceedings of the adjutant
Andry in establishing its northern and southern boundaries, and
that it was therefore limited to two arpents in the rear of the
original grant.
The plaintiffs ask a rehearing, contending that if they are not
entitled to the land claimed under the report of the commissioners
construed by reference to the plats of Lafon and the confirmatory
Act of June 2, 1858, they are entitled by virtue of the concession
and accompanying report of Andry construed in accordance with the
usages of the country, having the force of law, to forty arpents,
the quantity alleged to be the amount intended in the absence of
specific designation to be ceded in
Page 111 U. S. 415
cases of grants in the rear of the land of proprietors on the
river, thus giving to the two grants an extent of eighty arpents
from the river. And the plaintiffs have presented so may
considerations in support of this view, that the court will receive
arguments from counsel upon this point, to be in writing and filed
within two weeks from date. The clerk will give to the counsel of
the plaintiffs and to the Attorney General a copy of this
memorandum.
Mr. JUSTICE FIELD announced the following order:
Of these suits the first three are in equity; the fourth is at
law. They were argued together, as they are all founded upon the
supposed validity of the plaintiffs' title to the Conway division
of the Houmas grant in Louisiana beyond the depth of eighty arpents
from the Mississippi River. If their title beyond that depth be
sustained, other questions will arise for consideration, but if
that fails, those questions will be unimportant. The Houmas grant
is famous in the history of land titles in Louisiana from the
protracted controversy in the Land Department to which it gave rise
and the discussion created in Congress by the attempt made to
secure its legislative confirmation. The documents to which our
attention has been called as sustaining the pretensions of the
plaintiffs, or in opposition to them, are scattered through many
volumes. They consist of the original proceedings and concessions
under the Spanish government; the orders of the territorial
governor and certificates of a local surveyor after the cession of
the country to the United States; the proceedings of the board of
commissioners created by Congress to examine into and report upon
land
Page 111 U. S. 416
claims in that territory; various petitions to the officers of
the Land Department, and their reports thereon; the opinion of the
Secretary of the Treasury and of the Attorney General upon the
nature and extent of the grant, and the proceedings of Congress in
passing an act of confirmation and subsequently repealing it. We
shall endeavor to condense the history of the grant and of the
various proceedings taken with reference to it into as narrow a
compass as possible.
On the fifth of October, 1774, while Louisiana was under the
dominion of Spain, certain tribes of Indians known as the Houmas
and Bayou Goula tribes, had possession of certain land situated on
the left bank of the Mississippi River about twenty-two leagues
above New Orleans, and claimed some interest in it the extent and
nature of which are not given. Whatever that interest may have
been, the Indians sold it on that day to two persons by the name of
Maurice Conway and Alexander Latil for the consideration of $150. A
conveyance of that date, executed at New Orleans before a notary
public by one Calazare, describing himself as chief of the tribes,
appointed such by the governor of the province, recites that the
tract had once belonged to a Frenchman, that he had sold it to
another Frenchman, who had abandoned it, and that afterwards, being
vacant, the two Indian tribes fixed their residence upon it by
permission of the governor. The chief, on behalf of the Indians,
renouncing whatever rights they possessed, ceded the land to the
purchasers, and stipulated that after obtaining the permission of
the governor, they might possess it as absolute owners; that a copy
of the instrument should be presented to that officer for his
approval, without which they could not be permitted to take
possession. It would thus seem that the right of the tribes was one
of mere occupancy at his will, and that the title at the time was
in the Spanish crown. On the same day, Unzaga, the governor of the
province, approved the instrument thus executed and, in pursuance
of the authority vested in him, granted the land to the purchasers,
directing them, however, to apply to him in order that full title
papers -- a complete title, as the language used is translated --
might be issued to them. The words translated "a
Page 111 U. S. 417
complete title" refer, however, only to the instruments which
constitute evidence of title, and not to the estate or interest
thereby conveyed.
De Haro v. United
States, 5 Wall. 599.
The land granted is described in the conveyance of the Indians
as a tract
"measuring upwards of half a league at the distance of
twenty-two leagues from this city, on this side of the river,
joining on the upper side lands belonging to John the Blacksmith,
and on the lower side the place where are erected the huts in which
the said two nations of Indians now live; but when the said huts
will be taken away, to be transported on the other side of the
river, the true boundary on the lower side will be the lands
belonging to an old Acadian named Peter; so by the measurement
which the said purchasers will make of the said tract of land,
according to the said boundaries, its exact contents will be
ascertained."
It will be perceived from this description of the land that no
depth is given. On the first of November following, the governor
executed to the purchasers a formal grant describing the tract as
having "the common depth of forty arpents." The tract was thus
rendered susceptible of identification and measurement. Its front
bordered on the river; its side lines were determinable by
adjoining tracts, and it was of the depth mentioned. When grants
fronting on the river were made by the Spanish government, it was
customary to reserve, to the depth of forty additional arpents, the
lands immediately in the rear, to be used by the front proprietors
for pasturage, or to obtain timber for fences or for fuel. The law
on this subject which prevailed in the province is very clearly and
distinctly stated by Mr. Justice Catron in delivering the opinion
of this Court in
Surgett v.
Lapice, 8 How. 48,
49 U. S. 66. He
says that
"the grants were not large, and fronted on the river only to the
extent of from two to eight arpents as a general rule, and almost
uniformly extended forty arpents back; to these front grants the
Spanish government reserved the back lands to another depth of
forty arpents, and although few if any grants were made of back
lands in favor of front proprietors, still they were never granted
by the Spanish government to any other proprietor, but used for the
purpose of obtaining fuel and for
Page 111 U. S. 418
pasturage by the front owners, so that, for all practical
purposes, they were the beneficial proprietors, subject to the
policy of levees and of guarded protection to front owners. We took
possession of Lower Louisiana in 1804 [December, 1803]; in 1805,
commissioners were appointed, according to an act of Congress, to
report on the French and Spanish claims in that section of country,
and by the Act of April 21, 1806, it was made a part of their
duty"
"to inquire into the nature and extent of the claims which may
arise from a right, or supposed right, to a double or additional
concession on the back of grants or concessions heretofore
made,"
previous to the transfer of government,
"and to make a special report thereon to the Secretary of the
Treasury, which report shall be by him laid before Congress at
their next ensuing session. And the lands which may be embraced by
such report shall not be otherwise disposed of until a decision of
Congress shall have been had thereon."
"The commissioners were engaged nearly six years in the various
and complicated duties imposed on them, and then reported that, by
the laws and usages of the Spanish government, no front proprietor
by his own act could acquire a right to land further back than the
ordinary depth of forty arpents, and although that government
invariably refused to grant the second depth to any other than the
front proprietor, yet nothing short of a grant or warrant of survey
from the governor could confer a title or right to the land;
wherefore they rejected claims for the second depth, as not having
passed as private property to the front proprietor under the
stipulations of the treaty by which Louisiana was acquired."
On the 9th of September, 1776, nearly two years after obtaining
the grant, Conway presented a petition to the governor stating that
he was about to settle on the lands which he and Latil had
purchased of the Indians; that he had acquired Latil's interest;
that the lands were destitute of fences, and were cleared for
upwards of a league in depth in "such a manner" that the cypress
trees might be "about a league and a half from the river," and that
as the grant extended only forty arpents, he could not have access
to them to obtain timber for
Page 111 U. S. 419
his fences and other uses of his plantation. He therefore prayed
the governor to grant him
all the depth which might be vacant
at the end of his forty arpents, and that Louis Andry, the
governor's adjutant, might be appointed to put him in possession of
the front and depth "by fixing the needful boundaries" and
furnishing him "with copies of the whole transaction" for his "use
and guidance." Upon this petition, the governor directed Andry to
go upon the land and give the petitioner possession of
that
which might be vacant after the forty arpents in depth, and to
make a report of his proceedings -- a
process verbal, as
it is termed -- in order that full title papers -- "a complete
title" in the translation -- might be issued to the claimant.
In October following, this order was executed by Andry. He went
upon the land and first measured its front v. on the river and
ascertained it to be ninety-six arpents. Owing to its situation on
a bend of the Mississippi, the tract widened as it receded from the
river. He then ran the upper line north fifty degrees west to the
depth of forty arpents from the river, "opening for that purpose a
road through the woods," and placed there a stake of cypress. He
then extended the line two arpents more, and placed another similar
stake. He then proceeded to draw in the same way the southern line
of the grant, running it north seventy degrees east, going for that
purpose a part of the distance through woods, and placing a
boundary stake of cypress at the depth of forty arpents, and also
at the further depth of two arpents more, "in order," as he stated,
"to keep the course." Of his proceedings on this survey Andry made
a detailed report.
On the 21st day of June of the following year, Galvez, the
successor of Unzaga as governor of the province, made to Conway a
grant of the land thus surveyed. In the instrument executed by him,
he recites that he had seen the report of the proceedings of the
adjutant of the town relating to the possession given to Conway,
pursuant to the order of his predecessor, "of all the vacant land
lying behind and in the rear of the first forty arpents" which he
then possessed "by ninety-six arpents in front on the river," and
that the adjutant had followed the
Page 111 U. S. 420
directions (lines extended) of the original concession, and that
these conformed to the rules of survey and to the concessions of
adjoining proprietors. He thereupon approved of the proceedings of
the adjutant and granted to Conway "the aforesaid land behind or at
the end of the forty arpents which contain his plantation."
These are all the papers relating to the title to the Houmas
grant, executed by the authority of the governor of the province
while it belonged to Spain.
As no back line is designated to the second grant, its
dimensions must be found, if at all, in the limitation to such
grants imposed upon the authority of the governor by positive law
or established usage. As seen from the opinion of the court in
Surgett v. Lapice, it was the invariable custom of the
Spanish government to reserve lands in the rear of grants on the
river, to a depth of forty arpents, for the use of the front
proprietors. They were always regarded as having a preference right
to become the purchasers of those lands; they were never granted to
other parties. So well established was this rule in the usages of
the province that it was deemed by our government, after the
acquisition of the country, to create in the front proprietor an
equitable right to such preference. Accordingly, Congress, by the
Act of March 3, 1811, provided that every person who owned "a tract
of land bordering on any river, creek, bayou, or watercourse" in
the Territory of Orleans, and not exceeding in depth forty arpents,
French measure, should be
"entitled to a preference in becoming the purchaser of any
vacant tract of land adjacent to and back of his own tract, not
exceeding forty arpents, French measure, in depth, nor in quantity
of land that which is contained in his own tract,"
at the price and on the terms and conditions prescribed for
other lands in the territory. The usage of the country determined
the depth of these grants of land in the rear of the premises of
the front proprietors. In
Jourdan v. Barrett, this Court,
speaking of these concessions, said:
"That back lands at all times meant those in the rear between
the extended front lines in the rear, to the distances of forty
arpents (each line being a straight one throughout), we
Page 111 U. S. 421
suppose to be undoubted as a general rule, although there may
have been exceptions to it."
45 U. S. 4 How.
169,
45 U. S.
182.
By reason of this usage, it was only deemed essential, in
surveying the second concession, to mark the courses of the upper
and lower lines of the tract, the other boundaries being readily
ascertained, one by the rear line of the original grant and the
other by a line drawn at a distance of eighty arpents from the
river. This practice of surveyors is abundantly established by the
documents accompanying the proceedings of Congress, or of its
committees, with respect to the Houmas grant.
The usages and customs prevailing in the province of Louisiana
affecting the alienation of lands are to be respected in
considering the rights of grantees of the former government. Usages
long established and followed have, to a great extent, the efficacy
of law in all countries. They control the construction and qualify
and limit the force of positive enactments. In Spain and in her
dependencies, great weight is given to such usages in the
adjustment of rights of property. "Legitimate custom," says
Escriche,
"acquires the force of law not only when there is no law to the
contrary, but also when its effect is to abrogate any former law
which may be opposed to it, as well as to explain that which is
doubtful. Hence it is said that there may be a custom without law,
in opposition to law, and according to law."
Escriche's Derecho Espanol 23-24;
Panaud v. Jones, 1
Cal. 499.
In
United States v. Arredondo, this Court, in
considering a grant of land in Florida made by the King of Spain,
said:
"The court not only may, but are bound to, notice and respect
general customs and usage as the law of the land equally with the
written law, and, when clearly proved, they will control the
general law."
31 U. S. 6 Pet.
691,
31 U. S.
715.
Looking at the grant of Galvez and the survey of Andry in the
light of the usage prevailing in the province, we have no
difficulty in fixing its limits. It was for an additional forty
arpents in the rear of the original concession, the lines of that
concession being extended in the same course to the depth of eighty
arpents from the river. To that extent, the grant was complete. Had
the holders of it confined their claim to the
Page 111 U. S. 422
land thus limited, there would not probably have been much, if
any, controversy with the United States.
But owing to the use of the words "all the vacant land" lying in
the rear of the forty arpents in the recital of the grant, a
pretension was set up, after the cession of the country to the
United States, that the grant covered all the vacant land within
the lines of the original concession extended to the limits of the
possessions of the Spanish crown. This pretension was so obviously
preposterous that it would not merit consideration but for the
bitter and protracted controversy to which it gave rise. The
petition, by Conway, for a grant of the land in the rear of his
forty arpents, though asking for all the depth which might be
vacant, was made simply to secure all such land to the ordinary and
well understood depth of forty additional arpents, from which he
might obtain timber for fuel, fences, and other uses of his
plantation. The object of reserving from grant to others the land
in the rear of proprietors on the river, according to the custom
obtaining in the province, was, as before stated, simply to give
facilities to them in the use and improvement of their river
plantations. The original concession to Conway and Latil embraced
less than 4,000 acres. The land claimed under the second grant to
Conway exceeds 180,000 acres, an augmentation for a timber
privilege which could never be allowed except upon the clearest
language, admitting no other reasonable construction. The words of
the recital in the grant are necessarily controlled by the usage of
the country, which limited the extent of such second grant, as
already mentioned. If not thus limited, no means existed for
ascertaining its extent, and it was therefore void for uncertainty.
The conjectural estimate of the distance of the cypress trees,
stated to be, owing to the manner in which the lands were cleared,
about a league and a half from the river, is too vague to affect
the boundaries of the grant against the force of the general usage.
In the Spanish law, as at the common law, grants furnishing no
available means of identifying the land were necessarily
inoperative and void. If the instrument executed by the governor
was intended to transfer all the lands between the boundary lines
of the original grant,
Page 111 U. S. 423
extended indefinitely whenever, as alleged in the complaint, it
might "suit the convenience or interests" of Conway, it was a void
act. He possessed no such unlimited authority to alienate the
public lands of Spain.
The Territory of Louisiana was ceded by Spain to France in
October, 1800, and by France to the United States on the 30th of
April, 1803. It was formally transferred on the 20th of December
following. It was stipulated by the treaty of cession that the
inhabitants should be incorporated into the Union and admitted as
such, as soon as possible, to the rights of citizenship, and that
in the meantime they should be maintained and protected in the free
enjoyment of their liberty, property, and religion. The stipulation
as to property has been held to embrace all titles to lands,
whether legal or equitable, perfect or imperfect. In
Soulard v.
United States, this Court said it
"comprehends every species of title, inchoate or complete. It is
supposed to embrace those rights which lie in contract -- those
which are executory as well as those which are executed. In this
respect, the relation of the inhabitants to their government is not
changed. The new government takes the place of that which has
passed away."
29 U. S. 4 Pet.
511-512.
See also Hornsby v. United
States, 10 Wall. 224.
After the cession in April, 1803, Congress, in anticipation of
the delivery of the territory, passed the Act of October 31, 1803,
to enable the President to take possession of it and for its
temporary government. The act provided, among other things, that
until the expiration of the then existing session of Congress,
unless provision for the temporary government of the territory
should be sooner made, the military, civil, and judicial powers,
exercised by the officers of the existing government, should be
vested in such person or persons, and should be exercised in such
manner, as the President might direct for maintaining and
protecting the inhabitants of Louisiana in the full enjoyment of
their liberty, property, and religion. Under this law, the
President appointed William C. C. Claiborne, of Mississippi,
Governor of Louisiana. Soon afterwards a petition was presented to
him by William Donaldson, William Marriner, and Patrick Conway for
a survey of the
Page 111 U. S. 424
land known as the Houmas, they representing themselves to be its
owners and stating that they were desirous of ascertaining its
outlines and boundaries with such precision as to avoid any
interference with the proprietors of neighboring grants, and
thereby prevent disputes, and praying that he would permit William
Marriner, or such other person as might be appointed for that
purpose, to survey the tract and mark the boundaries, and that he
would direct the proprietors of adjoining patents to show their
boundaries to the surveyor, and the commander of the district to
protect him from unlawful disturbance in the prosecution of his
work. Upon this petition, the governor made the following
order:
"The proprietors of land adjoining the tract within mentioned
are requested to show their respective boundaries, and the
commandant of the district, if necessary, will extend to the
surveyor his protection."
The petition and order are without date, and it does not appear
what was done, if anything, under the order except what may perhaps
be inferred from a plat of a survey subsequently prepared by one
Lafon in 1806 and filed with the register of the land office with
notice of the claims of Conway and others. Of this plat we shall
presently speak. It is assumed in the bill of complaint and in the
argument of counsel that the survey was made under the authority of
the governor by persons appointed by him for that purpose, and that
the tract was subdivided by them into three separate parcels,
designated after those who at the time had become owners thereof,
the first or northern one of which being called the Donaldson and
Scott tract, the second or middle one the Daniel Clark tract, and
the lower or southern one the William Conway tract.
On the 26th of March, 1804, Congress passed an act dividing
Louisiana into two territories, one of which was called the
Territory of Orleans, the other the district of Louisiana. The
former territory embraced the land covered by the Houmas grant. The
act provided for a government for each of them. The fourth section
prohibited the governor from interfering with the primary disposal
of the soil or with claims to land within it. 2 Stat. 283, 287. On
the 2d of March, 1805, Congress passed an act for ascertaining and
adjusting the titles and
Page 111 U. S. 425
claims to lands within the territories. 2 Stat. 324. It provided
that the Territory of Orleans should be divided into two districts
in such a manner as the President should direct, for each of which
a register was to be appointed. The two districts into which the
territory was accordingly divided were termed the Eastern and
Western Districts. The Houmas grant was in the Eastern District.
The act permitted persons claiming lands in the territories
"by virtue of any legal French or Spanish grant made and
completed before October 1, 1800, and during the time the
government which made such grant had the actual possession of the
territories,"
and required persons claiming lands by virtue of a registered
warrant or order of survey, or by any grant or incomplete title
bearing date subsequent to October 1, 1800, to deliver before March
1, 1806, to the register or recorder of land titles of the district
a notice stating the nature and extent of their respective claims,
together with a plat of the tract or tracts claimed, and to deliver
to such officer for record the written evidence of their titles,
which were to be recorded by him, except where lands were claimed
under a complete French or Spanish grant; it was only necessary to
record "the original grant or patent, together with the warrant, or
order of survey, and the plat." Their evidence or deeds were to be
deposited with the register or recorder, to be laid before the
board of commissioners, for the creation of which the act also
provided. It declared that two persons, to be appointed by the
President for each district of the Territory of Orleans, should,
together with the register or recorder of the district, be
commissioners for the purpose of ascertaining, within their
respective districts, the rights of persons claiming under any
French or Spanish grant or by the incomplete titles mentioned. The
board, or a majority of its members, was authorized to hear and
decide in a summary manner all matters respecting the claims
presented to them; to administer oaths, compel the attendance of
witnesses and the production of the public records in which grants
of land, warrants, or orders of survey, or other evidences of
claims to land, derived from the French or Spanish governments were
recorded; to take transcripts of them or any part
Page 111 U. S. 426
of them, and to have access to all other records of a public
nature relating to the granting, sale, or transfer of land, and to
decide in a summary way, according to justice and equity, on all
claims filed with the register or recorder, in conformity with the
act, and on all complete French or Spanish grants, the evidence of
which, though not thus filed, might be found on the public records
of such grants, and that their decisions should be laid before
Congress and be subject to its determination.
For this latter purpose, the clerk of the commissioners was
required to prepare two transcripts of the decisions in favor of
the claimants, each to be signed by a majority of the
commissioners, one of which was to be transmitted to the surveyor
general of the district and the other to the Secretary of the
Treasury. And the commissioners were required to make to the
secretary a report of the claims rejected, with the evidence
offered in their support, and he was required to lay the
transcripts and reports before Congress at its next session. Under
the act, the claimants of the Houmas tract delivered to the
register of the land office at New Orleans notices of their
respective claims to the land which they asserted was covered by
the grant to Maurice Conway made by Governor Galvez, June 21, 1777;
Donaldson and Scott to the upper subdivision, Daniel Clark to the
middle subdivision, and William Conway to the lower one. Each of
these claimants deduced his title from Maurice Conway, and
accompanied his notice with a plat of a survey by one Lafon, to
whom reference is made above. These plats do not purport to have
been prepared entirely from his own surveys, but chiefly by
reliance upon the surveys of others. In the certificate given to
Donaldson and Scott, which bears date December 28, 1804, he
describes himself as a surveyor commissioned by Governor Claiborne,
though not for any particular survey, and certifies to the plat
from a survey made by Marriner and from measurements by himself on
the River Iberville. In the certificate given to Daniel Clark,
which bears date September 25, 1805, he certifies from surveys of
Marriner and measurements of his own on the River Amite and
environs of Galveston, a village on that river. In the
Page 111 U. S. 427
certificate to William Conway, which bears date February 20,
1806, he describes himself as deputized by one Isaac Briggs,
surveyor general of lands south of Tennessee, and certifies to the
plat from surveys executed by Andry in 1804, and by himself on the
River Amite in 1803. These plats cover all the land embraced within
the lines of the original purchase by Conway and Latil from the
Indian tribes in 1774, extended back not only so as include the
additional arpents surveyed by Andry in 1776 and granted by
Governor Galvez in 1777, but all the lands beyond these to the
limits of the Spanish possessions, several miles distant from the
river, and embracing over 180,000 acres. They possess no official
character, and have no greater effect as evidence than any private
surveys made at the request of claimants. The notices of the claims
thus delivered to the register of the land office were by him laid
before the board of commissioners. The board confirmed the claims,
following in its decree the description of the land given by the
claimants, but not referring to the plat of Lafon. The notice of
the claim of William Conway was presented to the board February 28,
1806, and is as follows:
"
Notice of the Claim of William Conway, of the County of
Acadia, in the Eastern District of the Territory of
Orleans."
"William Conway claims a tract of land situated in the county
aforesaid at the place called Houmas, on the left bank of the
Mississippi, containing twenty-two and a half arpents in front on
said river, with an opening toward the rear of 60 degrees and 45
minutes, the upper line running N. 9� 15 E., three hundred and
fifty-one arpents, and the lower line directed N. 70� E., and
measuring four hundred and fifty-five arpents; bounded on the upper
side by Daniel Clark, and on the lower by Simon Laneau, as more
fully described in the annexed plat, executed by Bartholomew Lafon,
deputy surveyor, dated February 20, 1806."
"Part of said land -- that is to say, seventeen arpents front --
were originally granted with a greater quantity by the Spanish
government to Maurice Conway by virtue of a complete title issued
on the 21st day of June, 1777, as per document No. 1, and the
same
Page 111 U. S. 428
conveyed to the claimant by the grantee aforesaid on the 27th
day of October, 1786, as per document No. 2."
"And the five and a half arpents remaining to the complement of
the 22 1/2 aforesaid were transferred to the claimant on the 27th
day of March, 1781, by Pierre Part, who had purchased the same at
the public sale made before Louis Joudice, commandant of the Parish
of La Fourche, of the estate of the late Joachim Mire (alias
Belony), on the 7th day of December, 1788, 'as it evidently appears
by the authenticated document hereunto annexed, No. 3.'"
"It is to be observed that although the deed of conveyance of
Maurice Conway aforesaid contains 27 arpents front, the claimant
only possesses seventeen, having disposed of the other ten in favor
of Daniel Clark."
"WILLIAM CONWAY"
The decree of confirmation was made by the board on the third of
March, 1806, and is as follows:
"
No. 125. W. CONWAY"
"MONDAY, March 3, 1806"
"William Conway, aforesaid, claims a tract of land situated in
the County of Acadia, aforesaid at a place called Houmas, on the
left bank of the Mississippi, containing twenty-two and a half
arpents in front, with an opening toward the rear of sixty degrees,
forty-five minutes, the upper line running N. 9� 15' E., three
hundred and fifty-one arpents, and the lower line directed N. 70�
E., and measuring four hundred and fifty-five arpents; bounded on
the upper side by Daniel Clark's land, and on the lower side by
land of Simon Laneau; it appearing to the board from a patent or
complete title exhibited that seventeen arpents of front were,
together with a greater quantity, granted by the Spanish government
to Maurice Conway, June 21, 1777, and it appearing that the five
and a half arpents of front remaining of the land aforesaid were
purchased by Pierre Part at the public sale of the estate of the
late Joachim Mire (alias Belony), on the 7th day of December, 1788,
and it further appearing to the board from two several instruments
of conveyance offered in testimony that the two tracts of land
aforesaid have been conveyed to the present claimant, the board do
hereby confirm his claim aforesaid. "
Page 111 U. S. 429
The confirmation of the claims of Donaldson and Scott and of
Daniel Clark was substantially in the same form, differing only as
to the lines within which it was alleged the lands lay. The claims
were respectively designated as No. 133 and No. 127. The decisions
were made before one of the commissioners had become a member of
the board, and as soon as he qualified, he dissented from them.
This fact will be important in considering the effect of
legislative confirmation in 1858. As required by the act of 1805, a
transcript of the favorable decisions rendered by the
commissioners, including these three, was duly forwarded to the
Secretary, who, in January, 1812, transmitted the same to Congress.
The decisions themselves were merely an expression of opinion by
the commissioners. They had no effect upon the title of the
claimants until approved by Congress. Until then, they amounted
only to a recommendation of their favorable consideration by the
government. No recognition of them by Congress was made until the
passage of the Act of June 2, 1858, of which we shall hereafter
speak. In the meantime, efforts were constantly made to procure a
recognition of their validity by the officers of the Land
Department, but without success except in one instance -- that by
Secretary Bibb in 1844. With that exception and the decision of the
two land commissioners, no officer of the government has ever
recognized the validity of the grant by Governor Galvez to the
extent claimed by Conway and parties deducing their interest from
him.
On the 14th of January, 1829, the Surveyor General of
Mississippi,
ex officio Surveyor General of Louisiana
addressed a communication to the Commissioner of the General Land
Office, enclosing a rough plat of the Houmas grant, showing its
locality, the extent of land claimed, and its interference with
other grants of the Spanish government. In it he stated that
previously and subsequently to the date of the grant, the Spanish
authorities had made other grants to a number of individuals within
the limits alleged to be covered by the claim of Conway, and that
he believed no pretension to the present limits was made until
after the right to the land had vested in the United States. He
also stated as another reason why the grant could
Page 111 U. S. 430
not be extended to the Amite River that neither the petition of
Conway, the decree of the governor, nor the proceedings of the
surveyor called for or exhibited any such boundaries, and that it
was well known to be the custom of the Spanish surveyors in all
cases where a grant called for specific boundaries to exhibit them
in a plat of survey. He then considered where the boundaries were
to be established, and he suggested that if we were to be governed
by the customs of the Spanish government, we should run off such a
depth as would extend the upper line until it intercepted an older
grant. This he was of opinion would strictly conform to the decree
of the Spanish Governor, although it would not give the claim a
depth of eighty arpents, which he thought was designed, if the land
was found to be vacant. He then asked instructions to guide him, as
surveyors were engaged in the immediate vicinity of the grant. To
this communication the Commissioner of the General Land Office
replied, under date of February 17, 1829, expressing the opinion
that the grant made by Galvez in 1777 was so vague in its terms,
both as to boundary and quantity, that it would be indispensably
necessary for courts of justice to interfere for the purpose of
defining and designating both; that the claim set up to all the
vacant land which might be embraced between the northern and
southern boundary of the original grant, if it were extended in the
course called for, led to such absurdities that he thought it
impossible that the courts could sanction it; that the object for
which the grant was asked and obtained would therefore be the
leading consideration on which the courts would probably decide the
question, and, in so deciding, they might possibly confine the
grant either to the limits of the survey actually made by Andry, or
to eighty arpents, the usual extent granted when the front grant
was deficient in timber, or to the distance of one league and a
half, as requested in the petition, and that if this last
limitation was adopted, full scope would be given to the court to
exercise its discretion, and if the grant could be adjudged to
exceed these limits, it must extend to the utmost boundary of
Louisiana. He therefore decided that a league and a half should
Page 111 U. S. 431
not be open to entry, and gave instructions accordingly. Lands
beyond that depth were therefore treated as public lands, and
numerous entries of them were made at the district land office.
Before this correspondence between the surveyor general and the
land commissioner, General Wade Hampton, of South Carolina, had
acquired title to the claim made by Donaldson and Scott, and to
that of Clarke, and, he having died, his heirs, through J. S.
Preston, one of them, in June, 1836, applied to the land office for
a patent and requested, if it could not be granted, that the land
within the claims should be withheld from sale and that patents
should not be issued for the parcels already sold. To this
application the commissioner, Mr. Ethan A. Brown, replied,
addressing his communication to a senator from Louisiana, through
whom the application was presented, stating that inasmuch as he did
not consider the claims to the extent insisted on before the board
of commissioners, recognized by the United States, the office could
not issue a patent therefor, but as the law did not authorize the
sale of any lands the claim to which was filed with the
commissioners for investigation until the final action of Congress
thereon, he had directed the register of the land office at New
Orleans to withhold from entry all the lands within the limits of
that claim, as described in the reports of the commissioners, and
to report a list of all the lands sold within those limits in order
that patents might not be issued therefor. Notwithstanding this
direction of the commissioner, it would seem that the land officers
at New Orleans approved of preemption settlements on the land
claimed and floats located there, and, in the following year
(1837), complaints of these proceedings were made to the General
Land Office by Mr. Preston on behalf of the heirs of Hampton. A
communication from him on their behalf was also laid before the
Senate in which he prayed that the commissioner should be directed
to refuse titles to those who had purchased by preemption or
otherwise by refunding the money paid and taking up the
certificates of entry as far as possible, and also that he should
be directed forthwith to issue a patent for the whole claim.
The
Page 111 U. S. 432
memorial was presented and referred to the committee on private
land claims, but nothing came from it. In the following year
(1838), another effort was made to obtain the action of Congress on
the subject, which also failed.
And from year to year afterwards, communications were made by
the claimants, or persons acting for them, to the Land Department
to secure favorable action and a recognition of the validity of
their claims, but always without success until 1844. It would serve
no useful purpose to state with particularity the nature and
contents of these communications. They are referred to now merely
to show the general notoriety given to the pretensions of the
claimants, and the princely domain which, under a grant of less
than 4,000 acres on the river, was claimed by the grantee to enable
him to obtain timber for his fences and fuel, and for other uses of
his plantation. The general knowledge of the extravagant character
of the claims, which may be inferred from these proceedings, may
have had something to do with the phraseology used in the attempted
confirmation in 1858, which we shall hereafter consider.
Sometime in the year 1841 a new idea as to their rights seems to
have occurred to the claimants -- namely that the claims were
confirmed by the act of Congress of April 18, 1814, 3 Stat. 139.
Accordingly, in August, 1841, application was made to the
Commissioner of the General Land Office, on behalf of Conway, for a
patent of his claim, and in May, 1844, a similar application was
made on behalf of Hampton's heirs for a patent of their claims.
That act provided that certificates of confirmation to land lying
in the land districts of Louisiana which had been issued under the
Act of March 3, 1807, and directed to be filed with the proper
register of the land office within twelve months after date, and
certificates on claims included in the transcript of decisions made
in favor of claimants and transmitted to the Secretary of the
Treasury, should be delivered where the lands had not been already
previously surveyed, to the principal deputy surveyor of the
district and be surveyed, and for the tracts surveyed patents
should be issued by the Commissioner of the General Land Office. As
the
Page 111 U. S. 433
claims under the Houmas grant were included in the transcript of
favorable decisions transmitted to the Secretary of the Treasury
and by him laid before Congress, it was contended that they were
thereby confirmed. Mr. Bibb, the Secretary of the Treasury and head
of the Land Department under the then existing law, concurred in
this view, and his opinion was presented in a communication to the
Commissioner of the General Land Office under date of August 12,
1844. In accordance with his opinion, patents were issued to the
heirs of Hampton for the claims presented by Donaldson and Scott
and by Daniel Clark. This action of the secretary and the issue of
the patents gave rise to much unpleasant comment, and soon after
the meeting of Congress in December following, a resolution was
passed by the Senate calling upon the Secretary to communicate a
copy of his opinion directing such issue, and of opinions by other
officers connected with the General Land Office in relation to the
claims, and of the surveys and transcripts of confirmation.
As application had also been made for a patent of the Conway
claim, the House of Representatives, on the 7th of January, 1845,
passed a joint resolution prohibiting the issue of patents or other
evidences of title upon the Houmas grant until the further action
of Congress. The resolution, having been sent to the Senate, was
there amended, but upon being returned to the house on the last day
of the session, it was not taken up, and thus failed to become a
law. The commissioners of the land office, in view of this
resolution, treated the application for a patent of the Conway
claim as a suspended case. After the adjournment of Congress,
applications for a patent were renewed, but the Commissioner
declined to act upon them in face of the resolution of the two
houses, which failed to become a law only because of disagreement
as to its terms, but not as to its general purpose to suspend the
issue of a patent. In June of the following year (1846). the two
houses of Congress, by a joint resolution, directed the Attorney
General to examine the evidences of title founded upon the Houmas
claims and to report to the President his conclusions, and
requested
Page 111 U. S. 434
him, if they were against the legality of the patent issued or
to be issued, to bring suits to have the same judicially
determined. In response to this resolution, the Attorney General
made an extended examination of the title, stating in his report
all the various proceedings that had been taken in respect to it,
and giving as his conclusion that the Houmas grant passed a title
only to a tract 42 arpents deep from the river, and that the
claimants had no legal or equitable right to any land beyond that
depth, and that the Act of April 18, 1814, under which patents had
been issued for two of the claims, authorized patents only in cases
of confirmation under the act of 1807, which did not embrace more
than one league square. In thus construing the terms of the grant
and limiting its extent, it is evident that the Attorney General
was governed by the rules of the common law, rather than by the
usages of the Spanish government applicable to the case. Upon this
report, the President directed that suits in equity be brought in
the circuit court of the United States to cancel the patents. In
one of them, a decree was rendered in 1856 declaring the patent
upon the claim to David Clark void on the ground that the case was
not within the act of 1814, the court avoiding the expression of
any opinion as to the validity or extent of the claim. By a decree
rendered within the last few years, the patent upon the claim of
Donaldson and Scott was also adjudged invalid.
This narrative brings us to the act of the 2d of June, 1858,
entitled "An act to provide for the location of certain confirmed
private land claims in the State of Missouri, and for other
purposes."
Its second section enacted
"That the decisions in favor of land claimants made by P.
Grimes, Joshua Lewis, and Thomas Robertson, commissioners,
appointed to adjust private land claims in the Eastern District of
the Territory of Orleans, communicated to the House of
Representatives by the Secretary of the Treasury, on the 9th day of
January, one thousand eight hundred and twelve, and which is [are]
found in the American state Papers, Public Lands (Duff Green's
edition), volume two, from page two hundred and twenty-four to
three
Page 111 U. S. 435
hundred and sixty-seven, inclusive, be, and the same are hereby,
confirmed, saving and reserving, however, to all adverse claimants,
the right to assert the validity of their claims in a court or
courts of justice,
provided, however, that any claim so
recommended for confirmation, but which may have been rejected in
whole or in part by any subsequent board of commissioners be, and
the same is hereby, specially excepted from confirmation."
Its third section enacted
"That the locations authorized by the preceding section shall be
entered with the register of the proper land office, who shall, on
application for that purpose, make out for such claimant or his
legal representatives (as the case may be) a certificate of
location, which shall be transmitted to the Commissioner of the
General Land Office, and if it shall appear to the satisfaction of
the said Commissioner that said certificate has been fairly
obtained, according to the true intent and meaning of this act,
then and in that case, patents shall be issued for the land so
located, as in other cases."
The passage of this act at once excited great commotion among a
large number of persons who occupied the land claimed under the
Houmas grant, amounting, as stated by counsel, to nearly 5,000.
Measures were at once taken to prevent its provisions' being
carried out. On the 3d of March, 1859, Congress passed a joint
resolution suspending the operation and effect of the second
section until the end of the 36th Congress, so that no patent or
patents should be issued, nor any action be had by the executive
branch or department of the government or any officer or agent
thereof, by virtue of it. And on the 21st of June, 1860, Congress
passed an act repealing the second section and declaring that it
refused to confirm to the claimants under the Houmas grant the
lands embraced in the certificates, No. 125 to William Conway, No.
127 to Daniel Clark, and No. 133 to Donaldson and Scott. The
principal questions for our consideration arise upon the
construction of the first of these acts and the effect of its
repeal upon the confirmation of the claims. In
Page 111 U. S. 436
the first place, it is to be observed that the decisions which
are confirmed by the second section of the act of 1858 are not
described as those of the board of commissioners, nor of the
commissioners generally, appointed to adjust private land claims in
the Eastern District of the Territory of Orleans, which designation
might be taken as referring to the board as a special tribunal, but
as those rendered in favor of the claimants by the three
commissioners designated by name. There were good reasons for this.
The three decisions which relate to the claims under the Houmas
grant were made by only two of the commissioners. The third
commissioner, who joined in the other decisions, was not a member
of the board when these three were rendered; but as soon as he
became a member, he expressed his dissent from them. This dissent
accompanies the report of the decisions made to the Secretary of
the Treasury and laid by him before the House of Representatives,
and is found in the volume to which reference is made, immediately
following the three decisions, in these words:
"The three foregoing decisions were made before I became a
member of the board. As far as I am authorized to do so, I dissent
from the same."
"THOMAS B. ROBERTSON"
To the volume of state papers mentioned everyone would be
obliged to look in order to learn what claims were confirmed, and
there this statement would confront him. When we consider the
notoriety given to the extravagant claims under the Houmas grant;
the continued opposition of all the officers of the government,
with one exception, to a recognition of them; the failure of
repeated efforts to secure favorable action from Congress; the
pendency of legal proceedings authorized by Congress to vacate
patents issued upon two of them; the large number of persons in
possession, who claimed under sales of the government, a fact which
had been repeatedly brought to the attention of Congress, we are
forced to the conclusion that the limitation of the act to
favorable decisions made by the three commissioners was
intentional, and
Page 111 U. S. 437
that they were named,
ex industria, to exclude from
confirmation the claims under the Houmas grant, which had given
rise to so much controversy and litigation and had been so
uniformly denounced and repudiated.
The position of the plaintiffs, that Congress must have intended
to include all reports made by the board because under the act of
1805 a majority of its members were authorized to act upon and
determine the validity of claims presented, does not strike us as a
logical conclusion. It would rather seem to strengthen our
construction, for by naming decisions made by the three
commissioners, the act indicates that Congress intended to refuse a
confirmation of decisions made by two of them. If it had intended
to confirm all favorable decisions of the board, whether made by a
majority of its members or by them all, its intention could have
been expressed by simply mentioning the board, without designating
its members, as had been usual where the decisions of similar
boards were confirmed. The present instance is the only one, it is
believed, where, in the legislation of Congress confirming grants,
the names of the commissioners whose favorable action was approved
have been mentioned. This departure from the ordinary language in
such cases was, we think, for a special purpose. We must assume
that the members by whose vote the act became a law fully weighed
its meaning and intended what it expressed. It is also a familiar
rule of construction that where a statute operates as a grant of
public property to an individual or the relinquishment of a public
interest, and there is a doubt as to the meaning of its terms or as
to its general purpose, that construction should be adopted which
will support the claim of the government, rather than that of the
individual. Nothing can be inferred against the state. As a reason
for this rule, it is often stated that such acts are usually drawn
by interested parties, and they are presumed to claim all they are
entitled to. The rule has been adopted and followed by this Court
in many instances in the construction of statutes of this
description.
Charles River Bridge Co. v.
Warren Bridge, 11 Pet. 420,
36 U. S. 536;
Dubuque & Pacific Railroad
Company v. Litchfield, 23 How. 66,
64 U. S. 88;
Delaware Railroad
Tax, 18 Wall. 206.
Page 111 U. S. 438
The rule is a wise one; it serves to defeat any purpose
concealed by the skillful use of terms to accomplish something not
apparent on the face of the act, and thus sanctions only open
dealing with legislative bodies.
If the construction we thus give is sound, there is an end of
the plaintiffs' case and their extravagant pretensions are
dissipated. The subsequent repeal of the section affected no
rights, and was justified by the fact that what was never intended
by the section was claimed under it.
But if we are wrong in this construction, and we should hold
that the purpose of the second section of the act of 1858 was to
confirm the decisions of the three claims under the Houmas grant,
though made by only two of the three commissioners instead of the
three named, the case of the plaintiffs would not be advanced. The
decisions confirmed the claims -- that is, recognized them as
founded in justice and equity -- in accordance with which the
commissioners were directed to proceed, and the act of 1858
approves of those decisions. What, then, were the claims? The plat
of Lafon, as already mentioned, had no official character, and was
prepared by him after the cession of the country to the United
States. It was not evidence of any kind. The commissioners could
pass only upon evidence of title existing before the cession. If
the plat, which accompanied the notice of the claims delivered to
the register of the land office, was laid before the commissioners
with that notice, they do not appear to have followed it, nor to
have paid any attention to it in their decisions. They only confirm
the claims as described in the application of the claimants, that
of Conway, for a tract on the left bank of the Mississippi, having
a front of 22 1/2 arpents, with its northern line running N. 9� 15'
E., 351 arpents, and the lower line directed N. 70� E., and
measuring 455 arpents, and bounded on the upper and lower sides by
the lands of certain proprietors. If the established usages of the
country, limiting the extent of the grant upon which the claims are
founded, are regarded, then the confirmation is only of a tract to
which the claimants have a perfect title without it. If, however,
those
Page 111 U. S. 439
usages are disregarded, the claims are for land of which no
quantity is given and no boundary stated and for their
ascertainment no rule is furnished. The confirmation in that case
would be void for uncertainty. No court can treat a claim as
conferring a right to a specific tract until its boundaries are
capable of identification or have been established by a survey. A
mere claim to something without form and shape or means of
segregation can have no judicial enforcement.
It is not necessary to call in question or to qualify any of the
adjudications cited by counsel as to the efficacy of a legislative
confirmation of a claim to land. We had occasion to speak upon that
subject in
Langdeau v.
Hanes, 21 Wall. 521. We there said that such a
confirmation was a recognition of the validity of the claim and
operated as effectually as a grant or quitclaim from the
government; that if the claim was to land with defined boundaries
or capable of identification, the legislative confirmation
perfected the title to the tract; but if the claim was to quantity,
and not a specific tract capable of identification, a segregation
by survey would be required and the confirmation would then attach
the title to the land segregated. Necessarily the legislative
action cannot go beyond that which is claimed. If only something
without form and shape is claimed, a confirmation of the claim will
amount only to a declaration that the claimant is entitled to that
something, but it will not give him a standing in court against
occupants of specific tracts under color of title. Here, the claim
confirmed, upon the theory of the plaintiff, that the grant is not
limited in depth to the additional forty arpents, is neither to a
specific tract nor to a specific quantity, and until both are
ascertained by action of the executive officers of the government,
under a law authorizing such action, the court is powerless in the
matter. The confirmation, therefore, by the second section of the
act of 1858, assuming that it covers the claims under the Houmas
grant for an indefinite quantity back of the first concession, did
not operate to vest a title to any particular land in the
claimants. It amounted only to a declaration that they were
entitled to something to which, when ascertained, the
Page 111 U. S. 440
government would grant them a title. As stated by counsel, the
position of the government upon that theory of the grant is like
that of a donor who has promised to one a gift of land when he
shall make a selection of it. In such case, the gift is executory
until the selection is made, and until then, the title remains with
the donor, whom the courts cannot compel to make a conveyance. So,
upon that theory, the act of 1860, repealing the second section of
the act of 1858, is not to be regarded as the revocation of a
grant, but as a declaration that the promised donation will not be
made.
"In any view, therefore, in which the case of the claimants is
examined, we find nothing to sustain their pretensions. They have
no title to the lands claimed under the grant in question beyond
the depth of eighty arpents from the Mississippi River which the
courts can recognize as a basis for action against parties in
possession holding under sales from the government. This result
renders it unnecessary to notice other questions which would arise
for consideration were our conclusions different."
Judgments affirmed.