Grants of land made by a government in territory over which it
exercises political jurisdiction
de facto, but which does
not rightfully belong to it, are invalid as against the government
to which the territory rightfully belongs.
Where a disputed boundary between two states is adjusted and
settled, grants previously made by either state of lands claimed by
it and over which it exercised political jurisdiction, but which,
on the adjustment of the boundary, are found to be within the
territory of the other state, are void unless confirmed by the
latter state, and such confirmation cannot affect the titles of the
same lands previously granted by the latter state itself.
The boundary between Georgia and Florida was long in dispute,
Georgia claiming to a line called Watson's Line and exercising
political jurisdiction, and making grants of land to that line,
whilst Florida claimed to a line called McNeil's Line, further
north than Watson's. Upon running the true line as finally agreed
upon by the two states, it was found to be further north than
McNeil's Line.
Held, 1, that the grant made by Georgia of
the land in dispute, which was south of McNeil's Line, though made
whilst Georgia exercised the powers of government
de facto
over the territory there, was nevertheless void; 2, that the
confirmation by Florida of the grants made by Georgia did not
invalidate or disturb the grant of the land in dispute previously
made by itself.
The history of the Florida boundary stated.
Page 123 U. S. 2
Ejectment for lands in Madison County, Florida. Judgment for
plaintiffs, which was affirmed by the supreme court of the state.
This writ of error was sued out to review the judgment in
affirmance. The case is stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action of ejectment for 97 acres of land in Madison
County, Florida, situated near the boundary line between that state
and Georgia. The plaintiffs were James M. Groover and others, heirs
at law of Charles A. Groover and now defendants in error; the
defendant was Andrew J. Coffee, the present plaintiff in error.
Judgment was first rendered by the court of first instance in favor
of the defendant below, but, being reversed by the Supreme Court of
Florida, a new trial was had and judgment was given for the
plaintiffs and affirmed by the supreme court. The last judgment of
the supreme court is brought here for review on two grounds: first
that the matter in controversy had been tried and determined by the
Circuit Court of the United States for the Northern District of
Florida in favor of the defendant Coffee in a suit between him and
the executrix of Charles A. Groover, the ancestor under whom the
plaintiffs claim title; secondly on the ground that the defendant's
title to the land in controversy was claimed by him under a grant
made by the United States to the State of Florida, and by the State
of Florida to the defendant, which title was set aside by the state
court in favor of the plaintiff's title derived under a conflicting
grant from the State of Georgia.
The first ground of error is not raised on the record in such a
manner as to avail the defendant. The matter of defense involved
therein was set up by two pleas: first, a plea of former recovery,
and secondly a plea to the jurisdiction
Page 123 U. S. 3
of the court. These pleas were overruled on demurrer, but for
what reason is not stated. The Supreme Court of Florida, however,
in its opinion, very properly says:
"In ejectment, all legal defenses may be made under the plea of
not guilty, and the special denials mentioned in the statute.
McClelland's Dig. 481. Special pleas of matter affecting the legal
title or in estoppel only encumber the record and tend to
embarrassment.
Wade v. Doyle, 17 Fla. 522;
Neal v.
Spooner, 20 Fla. 38 (June term, 1883). They should be struck
out by the court
sua sponte or on motion or on demurrer,
because they are not proper pleas; but a judgment sustaining a
demurrer will not preclude proof, on the trial, of the facts so
improperly pleaded."
The pleas being overruled, no attempt was made on the trial to
set up the defense by proof of the former judgment relied on. This
branch of the case therefore may be laid out of view.
The second ground for reversal is stated in duplicate form in
the assignment of errors, as follows, to-wit:
"(1) In the record and proceedings aforesaid, there is manifest
error, to-wit, that the Supreme Court of the State of Florida, in
the above-stated cause, decided that a grant for land issued by the
State of Georgia is superior to a patent issued by the United
States for the same land, the said land being situate within the
territorial limits of the State of Florida."
"(2) There is manifest error in this, to-wit, that the Supreme
Court of the State of Florida, in the above-stated cause, by the
record aforesaid, it appears, held that the plaintiff in error
should be ousted from certain lands embraced within the territory
of the State of Florida, he holding title through the State of
Florida derived from the United States, and that the defendants in
error should be put in possession, they claiming under a grant
issued by the State of Georgia."
By § 709 of the Revised Statutes, where the decision of the
state court is against a title claimed under the Constitution or
any treaty or statute of or a commission held or authority
exercised under the United States, this Court has jurisdiction to
review the decision. We think it will sufficiently appear
Page 123 U. S. 4
from the facts of the present case and the points of law arising
thereon that it satisfies the conditions of the section. The title
claimed by the defendant rested not only on a grant of the United
States, but on a delimitation of territory under a treaty between
the United States and Spain.
The case is one of conflicting grants of the same land lying
near the boundary line between Georgia and Florida. The fact that
the land in controversy was covered by both grants was settled by
the jury. It is conceded to lie within the bounds of Florida
according to the line recently agreed upon by the two states.
The occasion of conflicting grants being made was the uncertain
location at the time of the true boundary line referred to and the
fact that Georgia claimed one line and the United States and
Florida claimed another.
The plaintiffs, to maintain their title to the land in dispute,
gave in evidence on the trial two patents from the State of Georgia
to one James Groover, each bearing date the first day of January,
1842 -- one for 226.2 acres of land, described as situate in the
Fifteenth District of Irwin County, Georgia, and known and
distinguished in the plan of said district by the number 199, and
having the shape, form, and marks shown by a plat annexed, the
other patent being for 250.2 acres of land, situate in the same
district and county, known and distinguished by the number 200, and
having the shape, form, and marks shown by a plat annexed. The
plats showed that the two lots joined each other east and west, and
that they were both bounded on the south by a common line called on
the plats "Florida Line;" and it was testified that the line thus
marked on the plats was a line known as the "Watson Line." Mesne
conveyances were then given in evidence showing that said lots were
conveyed by James Groover to Thomas A. Groover by deed dated
December 31, 1855, and by Thomas A. Groover to Charles A. Groover
by deed dated July 8, 1860, and it was further shown that Charles
A. Groover died in 1866, and that the plaintiffs were his heirs at
law. Evidence was also given tending to show that the said patentee
and grantees, respectively, had possession of said lands under
and
Page 123 U. S. 5
in conformity with their said titles until the plaintiffs were
ousted by the defendant in 1876.
Evidence was further given to show that another line, called the
"McNeil Line," ran about 14 chains north of the Watson Line and
parallel thereto, and that the land in controversy lay between the
said two lines, having the Watson Line on the south, and the McNeil
Line on the north. Also that a third line, called the "Orr and
Whitner Line," ran still further north than either of the aforesaid
lines, which Orr and Whitner Line was conceded to be the boundary
line between the states of Georgia and Florida as recently fixed by
mutual agreement between the two states by certain laws and
resolutions of their respective legislatures, confirmed by act of
Congress.
The plaintiffs also introduced evidence tending to show that the
Watson Line was formerly considered the state line between Georgia
and Florida; that Georgians worked the Georgia roads to the Watson
Line and Floridians worked the Florida roads to that line; that as
far back as one of the witnesses could remember, he being for many
years a lawyer and judge in one of the border counties of Georgia,
that state had claimed and exercised jurisdiction to the Watson
Line until the Orr and Whitner Line was agreed upon as the boundary
between the two states; that the people living north of the Watson
Line did jury duty and voted in Georgia; that the wills of people
dying there were probated in the Georgia courts, and their estates
were administered upon in those courts; that the Georgia courts
took jurisdiction of offenses committed as far south as the Watson
Line, and tried cases in which people living there were interested;
that the officers of the Georgia courts executed writs as far south
as that line; that persons were tried in Georgia for offenses
committed between that line and the Orr and Whitner Line. And, on
the other hand, as correctly stated by the Supreme Court of Florida
in its opinion, there is nothing in the record nor in the history
of the government of the territory or of the State of Florida
showing that the authorities of the latter exercised any of the
powers of government north of the
Page 123 U. S. 6
Watson Line prior to the said settlement of the boundary between
the two states.
The defendant, to maintain the issue on his part, gave in
evidence first a certified copy of a patent from the United States
to the State of Florida, bearing date July 6, 1857, issued under
and in pursuance of the Act approved September 28, 1850, known as
the act for granting to certain states the "swamp and overflowed
lands" therein, by which patent there was granted to said state as
swamp and overflowed lands certain designated fractional sections
of land, among others "the whole of fractional section 29," in
township 3 north, range 9 east, which fractional section was proved
to be bounded on the north by McNeil's Line and to include the land
in controversy. The defendant also produced in evidence a
certificate of sale issued by the Register of Public Lands for the
State of Florida to one McCall and one Stripling for said
fractional section 29, and other land named in said patent, which
certificate bore date September 2, 1857, and acknowledged the
receipt of one hundred dollars in cash, and of certain bonds for
the remainder of the purchase money of said lands, as provided by
the land laws of Florida. The defendant further gave in evidence a
deed from McCall and Stripling to himself, bearing date November
12, 1858, conveying to him all the lands included in said
certificate of sale, with a covenant that they were free from
encumbrances; also a deed of grant and conveyance of the same lands
to the defendant from the trustees of the internal improvement fund
of the State of Florida -- the proper authority for that purpose --
which last deed bore date September 12, 1874. The defendant, being
sworn as a witness, testified that McCall and Stripling paid all
the purchase money for the lands to the state, but that the
certificate was lost, and he (the defendant) afterwards made proof
of it, and had the trustees of the improvement fund make him a
deed; but that the original receipt had since been found. He also
testified that he had lived near the Georgia line for over forty
years, and never heard of the Watson Line until about ten or twelve
years ago. He worked the public roads up to the McNeil Line, and
the
Page 123 U. S. 7
Georgians worked their roads down to the McNeil Line, and no
further; that the McNeil Line was understood by citizens living
near the line in both states to be the boundary line between the
two states.
The defendant also gave in evidence the testimony of one Lanier,
County Surveyor of Madison County, Florida, who testified that he
had surveyed the lands in controversy and gave it as his opinion
that the plats of land annexed to the plaintiff's grants did not
cover the said land, not having marks thereon for ponds, swamps,
and streams which he found on the premises; that the Watson Line at
the place in controversy runs through a large swamp not shown in
said plats; that until the establishment of the Orr and Whitner
Line, the McNeil Line was always considered as the boundary line
between Georgia and Florida; that he had frequently surveyed on the
Georgia line, and always surveyed to the McNeil Line; that he never
heard of the Watson Line until the controversy that led to this
suit.
The court charged the jury that if they believed from the
evidence that the State of Georgia, anterior to the year 1842,
considered the land in controversy within her territorial limits
and incorporated within one of her counties over which the
authorities of said state exercised the usual powers of government,
and that in 1842 the Governor of Georgia granted the identical
lands in controversy to James Groover, and that said James Groover
conveyed the same lands to Thomas A. Groover in 1855, and that said
Thomas A. Groover conveyed the same lands to Charles A. Groover in
1860, and that said Charles A. Groover was dead, and that the
plaintiffs were his heirs, then they must find for the plaintiffs;
but that if the evidence failed to induce the jury to believe that
the lands sued for were the same as those described in the said
grants and conveyances, or that the Georgia grants included the
lands to the Watson Line, they must find for the defendant. Under
this charge, the jury found for the plaintiffs, thus establishing
the fact that Georgia, anterior to 1842, did claim jurisdiction to
the Watson Line, and that the lands in controversy adjoining that
line were included in the grant of Georgia to James Groover in
1842.
Page 123 U. S. 8
The Supreme Court of Florida sustained the charge of the court
below, it being in accordance with its own opinion given when the
case was first before it, as reported in 19 Fla. 64. The position
assumed is that grants in a disputed territory by a government
exercising therein sovereign jurisdiction
de facto are
valid and to be sustained notwithstanding that, by a subsequent
settlement of boundaries, the disputed territory is conceded to the
other contesting sovereign. Georgia undoubtedly at the time of the
grant to James Groover exercised the powers of government
de
facto over the territory in which the land in controversy was
situated, and it is assumed by the Supreme Court of Florida that
the boundary line subsequently agreed upon, by which said land was
conceded to lie in the State of Florida was a mere arbitrary line,
adopted by way of compromise, and was never acknowledged to be the
true legal line established by previous treaties and laws. The
argument is that whatever may be the law with regard to grants made
by a government clearly beyond its lawful boundaries and
jurisdiction, it is certain that grants made within its
jurisdiction, being lawful when made, are not invalidated by a
subsequent cession of the territory to another sovereign, because
in such case the rights of sovereignty only, and not those of
private property, are changed. It is then assumed that in cases of
disputed boundary where a line is finally fixed by compromise, the
portions of territory previously possessed by either of the
contracting parties, and conceded by the adopted line to the other,
are to be regarded and treated as ceded territory, and not as
territory that always really belonged to the sovereign who gets it
by the compromise. he Supreme Court of Florida, speaking of the
decision of the lower court (which it affirmed), says:
"What they did decide was that grants by a government
de
facto of parts of a disputed territory in its possession are
valid against the state which had the right,
Dela Croix v.
Chamberlain, 12 Wheat. 600, and that when a
territory is acquired by treaty, cession, or conquest, the rights
of the inhabitants to property are respected and sacred.
Rhode
Island v. Massachusetts, 12 Pet. 657,
37 U. S.
749,
45 U. S. 4 How. 591,
45 U. S.
639;
United States v.
Page 123 U. S. 9
Clarke, 8 Pet. 436,
33 U. S.
445. And the principle applies to the states of this
union.
Poole v. Fleeger, 11 Pet.
185,
36 U. S. 209. In the latter
case, the Court said (p.
36 U. S. 210):"
"Although, in the compact, Walker's Line is agreed to be in
future the boundary between the two states, it is not so
established as having been for the past the true and rightful
boundary."
"We decided this to be the rule in the present case when it was
before us on the former appeal, 19 Fla. 61, and the cause was tried
the second time under the influence of the opinion and judgment of
this Court. We find no reason for modifying that judgment, and the
error assigned is not sustained."
Coffee v. Groover, 20 Fla. 64, 81.
Whether the view of the case thus taken by the Supreme Court of
Florida is the correct one, regard being had not only to the facts
found by the jury but also to the treaties and acts of the federal
government as well as of Georgia in regard to the line in question,
and whether the rule of law relied on by the court is a sound one,
and rightly applicable to the case in hand, are the questions to be
determined.
It is no doubt the received doctrine that in cases of ceded or
conquered territory, the rights of private property in lands are
respected. Grants made by the former government, being rightful
when made, are not usually disturbed. Allegiance is transferred
from one government to the other without any subversion of
property. This doctrine has been laid down very broadly on several
occasions by this Court, particularly in cases arising upon grants
of land made by the Spanish and other governments in Louisiana and
Florida before those countries were ceded to the United States. It
is true that the property rights of the people in those cases were
protected by stipulations in the treaties of cession, as is usual
in such treaties, but the Court took broader ground, and held, as a
general principal of international law, that a mere cession of
territory only operates upon the sovereignty and jurisdiction,
including the right to the public domain, and not upon the private
property of individuals which had been segregated from the public
domain before the cession. This principle is asserted in the cases
of
Page 123 U. S. 10
United States v.
Arredondo, 6 Pet. 691;
United
States v. Percheman, 7 Pet. 51,
32 U. S. 86-89;
Delassus v. United
States, 9 Pet. 117;
Strother v.
Lucas, 12 Pet. 428;
Doe v.
Eslava, 9 How. 421;
Jones v.
McMasters, 20 How. 17, and
Leitensdorfer v.
Webb, 20 How. 176. In
United States v.
Percheman, Chief Justice Marshall said:
"It may not be unworthy of remark that it is very unusual, even
in cases of conquest, for the conqueror to do more than to displace
the sovereign and assume dominion over the country. The modern
usage of nations, which has become law, would be violated, that
sense of justice and of right which is acknowledged and felt by the
whole civilized world would be outraged, if private property should
be generally confiscated and private rights annulled. The people
change their allegiance, their relation to their ancient sovereign
is dissolved, but their relations to each other, and their rights
of property, remain undisturbed. If this be the modern rule even in
cases of conquest, who can doubt its application to the case of an
amicable cession of territory? Had Florida changed its sovereign by
an act containing no stipulation respecting the property of
individuals, the right of property in all those who became subjects
or citizens of the new government would have been unaffected by the
change."
7 Pet.
32 U. S.
86-87.
But while this is the acknowledged rule in cases of ceded, and
even conquered, territory with regard to titles acquired from
former sovereign who had undoubted right to create them, it does
not apply (as well shall see) to cases of disputed boundary in
relation to titles created by a sovereign in possession, but not
rightfully so. In the latter case, when the true boundary is
ascertained or adjusted by agreement, grants made by either
sovereign beyond the limits of his rightful territory, whether he
had possession or not (unless confirmed by proper stipulations),
fail for want of title in the grantor. This is the general rule.
Circumstances may possibly exist which would make valid the grants
of a government
de facto -- as for example where they
contravene no other rights. Grants of public domain made by
Napoleon, as sovereign
de facto of France, may have had a
more solid basis of legality
Page 123 U. S. 11
than similar grants made by him as sovereign
de facto
of a Prussian province derogatory to the rights of the government
and King of Prussia.
As the case before us depends upon a disputed boundary between
two states, it cannot be properly understood or determined without
adverting to the historical facts connected with that boundary.
Some of these are referred to by the Supreme Court of Florida in
its opinion, but several others are necessary to be stated in order
to show the circumstances under which the boundary between Georgia
and Florida was finally settled and to determine whether the
assumption of the court that the territory containing the land in
controversy was ceded by Georgia to Florida is well founded. The
case, if it can be avoided, ought not to be decided upon a narrow
selection of facts which might determine the question one way
before one jury today and another way before another jury tomorrow,
but upon a broad view of all the historical events which relate to
this boundary line. We shall proceed, therefore, to review these
events as far as they have come to our knowledge from public
documents.
In early colonial times, there were always mutual complaints of
encroachment between the British provinces and the Spanish province
of Florida, sometimes resulting in military conflicts, and no
boundary was ever settled between them. The difficulty was finally
removed by the treaty of 1763, by which Florida was ceded to Great
Britain.
See Treaty, Arts. VII, XX, 1 Chalmers' Collection
of Treaties Between Great Britain and Other Powers 473, 479. Soon
after this event, on the seventh of October, 1763, King George III,
by proclamation, erected governments in the newly acquired
territories of Canada and the Floridas, and established the
boundaries of the latter as follows, to-wit:
"The government of East Florida, bounded to the westward by the
Gulf of Mexico and the Appalachicola River,
to the northward by
a line drawn from that part of said river where the Chattahoochee
and Flint Rivers meet to the source of the St. Mary's River,
and by the course of the said river to the Atlantic Ocean."
West Florida was bounded north by the parallel of 31� north
latitude, from the
Page 123 U. S. 12
Mississippi to the Chattahoochee River.
See
Proclamation in Amer.State Papers; 1 Pub.Lands 36, and 1 Bioren's
Laws U.S. 443. On January 20, 1764, the province of Georgia was
limited to the north of the line thus prescribed for Florida. 1
Bioren's Laws 448-449.
The above-defined line, from the junction of the Chattahoochee
and Flint Rivers to the source of the St. Mary's, has from 1763 to
the present time been the recognized boundary line between Georgia
and Florida. The land in controversy is situated about midway
between its extremities.
By the definitive treaty of peace with Great Britain in 1783,
the line above described was adopted as the southern boundary line
of the United States, and the Floridas were at the same time, by
another treaty, ceded to Spain.
See Treaties and
Conventions between the United States and Other Powers, Washington,
1873, pp. 315-316, 2 Chalmers' 232 -- Treaties of 1783. By the
Treaty of October 27, 1795, between the United States and Spain,
this boundary was confirmed, and it was provided that a
commissioner and a surveyor should be appointed by each party to
meet at Natchez within six months from the ratification of the
treaty and proceed to run and mark the boundary line, and make
plats, and keep journals of their proceedings, which should be
considered as part of the treaty. Our government appointed Andrew
Ellicott, Esq., as commissioner in May, 1796, and a surveyor to
assist him, and they proceeded to Natchez, and after much
procrastination on the part of the Spanish authorities, a Capt.
Stephen Minor was appointed on the part of Spain, and the joint
commissioners of the two countries, in 1798 and 1799, ran and
marked the boundary line from the Mississippi to the
Chattachoochee, and determined the geographical position of the
junction of the Chattahoochee and Flint Rivers to be in north
latitude 30�42'42.8" and west longitude 85�53'15". The hostility of
the Creek Indians prevented them from running the line east of the
Chattahoochee; but they sailed around the coast of Florida and up
the river of St. Mary's, and fixed upon the eastern terminus of the
straight line prescribed in the treaties at the head of the St.
Mary's, where it issues from
Page 123 U. S. 13
the Okefenoke Swamp, and erected a mound of earth to designate
the spot. This was in February, 1800. The mound is still in
existence, and is called "Ellicott's Mound," and appears on all the
principal maps of that part of the country. The commissioners,
supposing that the true head of the river was located in the swamp,
agreed that it should be considered as distant two miles northeast
from the mound, and that in running the boundary line from the
Chattachoochee, it should be run to the north of the mound, and not
nearer to it than one mile. The point fixed upon as the head of the
St. Mary's was determined by observations to be in north latitude
30�21'39 1/2" west longitude 82�15'42". The distance by straight
line or great circle from the junction of the Chattahoochee and
Flint Rivers to the head of the St. Mary's was calculated at 155.2
miles, and the initial course for running the line from each
terminus was given, with the proper corrections to be made at
intervals in order to follow the great circle. The commissioners
signed a joint report of their proceedings, and transmitted the
same to their respective governments. All these particulars are set
forth in Mr. Ellicott's journal, and are matters of public history.
See Ellicott's Journal, Philadelphia, 1803.
It thus appears that by authority of the United States and
Spain, the termini of the line in question were fixed and settled
in February, 1800. It only remained for any competent surveyor to
follow the directions of the commissioners in order to trace the
actual boundary line on the ground. The country in the region
traversed by this line was occupied, in the early part of the
century, by the nation of Creek Indians, and there was no immediate
demand for having it run and marked. And as, under the
Constitution, no state could enter into a treaty with the Indians,
it became the interest of Georgia to make some arrangement with the
government of the United States to take measures for the gradual
removal of Indian occupancy. A convention was accordingly entered
into between Georgia and the United States on the twenty-fourth of
April, 1802, by which the former ceded to the latter all her
territory between the Chattahoochee and
Page 123 U. S. 14
the Mississippi Rivers, and the United States ceded to Georgia
all their right to any public lands south of Tennessee and the
Carolinas and east of the Chattachoochee not within the proper
boundaries of any state, and agreed to extinguish the Indian title
within the State of Georgia as early as could be peaceably done.
See Agreement, 1 Bioren's Laws 488. In pursuance of this
agreement, the title of the Creek Nation was extinguished
throughout most of the southern part of the state by the treaties
made with the nation in 1802, 1805, and 1814. 7 Stat. 68, 96,
120.
The state, being now desirous of disposing of her lands and
introducing settlers thereon, naturally turned her attention to the
question of the true location of the boundary line between her own
territory and that of the Spanish province of Florida. Some person,
professing to be better posted than others as to the topography of
the country about the head of St. Mary's River, asserted that the
commissioners, Ellicott and Minor, in seeking its source, had
ascended the wrong branch -- namely the north branch -- whereas the
true St. Mary's, or main stream came from the west and took its
source many miles further south than the point fixed upon by them.
The Legislature of Georgia took up the matter, and in December,
1818, the Senate passed a resolution requesting the Governor to
appoint proper persons to proceed without delay to ascertain the
true head of St. Mary's River, and if it should appear that the
mound thrown up by Ellicott and Minor was not at the place set
forth in the treaty with Spain, that they make a special report of
the facts and that the Governor communicate the same to the
President of the United States with a request that the lines might
be run agreeably to the true intent and meaning of the treaty.
Ex.Doc. No. 77, 1st Sess. 23d Cong. 11, 86.
In pursuance of this request, the Governor appointed three
eminent engineers, Gens. Floyd, Thompson, and Blackspear, to make
the examination suggested, and immediately, by a letter dated
February 17, 1819, communicated the fact to the executive
government at Washington. The engineers made a careful
reconnaissance of the country about the head streams
Page 123 U. S. 15
of the St. Mary's, accompanied by the person who had made the
supposed discovery, and became satisfied that his information was
at fault, and reported that after a careful examination they found
the head of the river to agree with the report made by Mr.
Ellicott. This result was also communicated to the Executive at
Washington, and thus ended for the time being the claim on the part
of Georgia to have the eastern terminus of the boundary line
readjusted and changed. Soon after this proceeding, in 1819, the
state employed one J. C. Watson to run and mark the line. This is
the origin of the line called "Watson's Line," and to this line the
state laid out its counties and townships, surveyed its public
lands, and made grants to settlers. But it nowhere appears that
this line ran to Ellicott's Mound or near to it; on the contrary,
it would seem from other conceded facts that it ran considerably
south of it. As we have already seen, the lands in controversy in
the present case adjoin this line, being situated on the north side
of it.
Florida was ceded to the United States in 1819, and possession
of the territory was taken by Gen. Jackson in July, 1821. In 1825,
the surveyor general of the government for the Territory of
Florida, preparatory to a survey of the public lands therein,
caused the boundary line between Georgia and Florida to be run out
and marked by D. F. McNeil, a deputy surveyor, and the line so run
was called "McNeil's Line." At the point in controversy, which (as
before said) is about midway between the two extremities of the
straight line called for by the treaty, it ran, according to the
testimony, 14 chains to the north of Watson's Line, but how near it
approached Ellicott's Mound at the eastern extremity does not
appear. The government surveys in Florida were made to bound on
this line, and of course overlapped, more or less, the Georgia
surveys and grants extending to Watson's Line.
The State of Georgia, about this period, perhaps in consequence
of the location of McNeil's Line, by a communication of her
Governor to the government of the United States, requested that
joint measures should be undertaken for a mutual and final
settlement of the boundary. The matter
Page 123 U. S. 16
being referred to Congress, an act was passed on the fourth of
May, 1826, by which the President was authorized, in conjunction
with the constituted authorities of the State of Georgia, to cause
to be run and distinctly marked the line dividing the Territory of
Florida from the State of Georgia from the junction of the Rivers
Chattahoochee and Flint to the head of St. Mary's River, and for
that purpose to appoint a commissioner or surveyor, or both,
"
provided that the line so to be run and marked shall
be run straight from the junction of said Rivers Chattachoochee and
Flint to the point designated as the head of St. Mary's River by
the commissioners appointed under the third article of the treaty
[with Spain] made October 27, 1795."
4 Stat. 157. This act, it will be seen, adopted the eastern
terminus of the line as settled by Ellicott and Minor. The
President thereupon appointed Ex-Gov. Thomas M. Randolph, of
Virginia, as commissioner under the act, and the executive of
Georgia appointed Thomas Spaulding, and the commissioners entered
upon their joint duties in February, 1827, and appointed John
McBride as their common surveyor. They continued their operations
for over two months, but the Georgia commissioner having, as he
supposed, notwithstanding the report of the commissioners of 1819,
discovered that the western branch of the St. Mary's River was the
largest and longest stream, and therefore the true river, the
Governor of the state suddenly brought the survey to a close by
recalling the assent of Georgia and withdrawing the powers of her
commissioner. Ex.Doc. 77, 1st Sess. 23d Cong. 31, 97.
From this time onward for many years, a controversy was carried
on between Georgia, on the one side, and the United States and
Florida, on the other with regard to this boundary line, Georgia
contending that the line should be run to Lake Randolph, the head
of the western or southern branch of the St. Mary's, and the United
States and Florida contending that it should run to the head of the
northern branch, as settled and determined by the commissioners,
Ellicott and Minor, under the treaty.
Ib. and Ex.Doc. 152,
1st Sess. 23d Cong.
In 1845, Florida was admitted into the union as a state,
Page 123 U. S. 17
embracing all the territories of East and West Florida, as ceded
by Spain to the United States by the Treaty of 1819. 5 Stat. 743.
Renewed efforts were soon afterwards made by Florida and Georgia to
effect a settlement of the boundary, but without success.
In 1850, the State of Florida filed a bill in this Court against
the State of Georgia to procure a determination of the controversy.
In December term, 1854, the Attorney General was allowed to
intervene on the part of the United States.
Florida v.
Georgia, 17 How. 478. Evidence was taken by the
parties, but in consequence of the war and the final settlement of
the controversy by mutual agreement, the cause was never brought to
a hearing. In 1857, the governors of the two states had a
conference which resulted in an agreement by which Georgia
relinquished her pretensions to have the eastern terminus of the
line changed and the termini fixed by the commissioners, Ellicott
and Minor, were substantially adopted. The following resolutions
and enactments of the legislatures of the two states will show the
course of negotiation, and the terms of the arrangement finally
concluded between them.
On the twenty-fourth of December, 1857, the following resolution
was adopted by the Legislature of Georgia, to-wit:
"Whereas in the matter of controversy now pending in the Supreme
Court of the United States between the State of Florida and the
State of Georgia touching the boundary line of the two states, we
deem it of much importance that this protracted and expensive
litigation should cease, and whereas, with a view to the settlement
of the question, a negotiation has been progressing between the
late executives of the aforesaid states the result of which was an
agreement to adopt the terminal points of the present recognized
line as the true terminal points of the boundary line, to be
resurveyed, corrected, and marked, provided it is shown by either
party that the present line is incorrect, the agreement aforesaid
being made subject to the ratification of the legislatures of the
two states"
"
Resolved, 1st, that we do hereby ratify the action of
the
Page 123 U. S. 18
late executive of this state in accepting the proposition of the
Governor of Florida to adopt the terminal points of the present
recognized line as the true terminal points of the boundary line,
and will regard, adopt, and act upon the present line, as run and
recognized between those points, as the settled boundary of the two
states, or will so recognize and adopt any other line between those
points, which may be ascertained and established on a resurvey and
remaking of the boundary,
provided said boundary
correction is made by virtue of law and by joint action of the
states aforesaid."
"2d.
Be it further resolved by the authority aforesaid
that should it be deemed essential or important by either state to
have the boundary line between the terminal points of the present
recognized boundary resurveyed and remarked, the Governor of this
state is hereby authorized to appoint a competent surveyor to join
any such surveyor appointed on the part of Florida to run out and
mark distinctly such a line from one to the other terminal point
herein indicated, to be known as the line and settled boundary
between the two states, the surveyor on the part of Georgia to be
paid such compensation as may be determined on by the present or
any future legislature."
"3d.
And be it further resolved that the Governor of
this state shall, so soon as the same shall have passed both
branches of the present General Assembly, transmit a certified copy
to the Governor of Florida."
"Approved December 24, 1857."
This resolution was responded to by the Legislature of Florida
on the twelfth of January, 1859, by passing a resolution in
precisely the same terms,
mutatis mutandis, and on the
fifteenth of the same month, an act was passed by the Legislature
of Florida for bringing into market, as soon as the line should be
settled, all state lands bordering thereon that had not been
disposed of, giving to the occupants whose right was not disputed
five months to purchase the lands occupied by them at their
appraised valuation. As one or both of the parties desired to have
a resurvey
Page 123 U. S. 19
made between the terminal points, the State of Georgia appointed
George F. Orr, and the State of Florida B. F. Whitner, surveyors to
run and mark the line accordingly. They commenced their work in
1859, and it is referred to in the subsequent acts and
resolutions.
An act was passed by the Legislature of Georgia on the sixteenth
of December, 1859, referring to the fact that the joint surveyors
were running their first trial line, and agreeing to adopt it as
conclusive if Florida would do the same, provided that on the
eastern terminus it did not depart exceeding one-fourth of a mile
from Ellicott's Mound, but that if it was not accepted by Florida,
and if therefore a new line would have to be run so as to get a
straight line from the mouth of Flint River to Ellicott's Mound,
then the line thus designated and marked by the surveyors should be
the permanent boundary between the two states. The act also
proposed the passage of laws to quiet the titles of
bona
fide holders of lands under grants of either Georgia or the
United States. The response made by the Legislature of Florida to
this proposition was the passage of an act on the twenty-second of
December, 1859, substantially adopting the proposition made by
Georgia, declaring
"That the line now being run by B. F. Whitner, Jr., on the part
of Florida, and G. J. Orr, on the part of Georgia, be, and the same
is hereby, recognized and declared to be the permanent boundary
line between the two states so soon as the same shall be
permanently marked by said surveyors,
provided that said
line at its eastern terminus does not depart from or miss
Ellicott's Mound more than one-fourth of a mile, or twenty
chains,"
and declaring secondly
"That the titles of
bona fide holders of land under any
grant from the State of Georgia which land may fall within this
state by the foregoing line are hereby confirmed and conveyed to
said holders so far as any right may accrue to this state,
provided nothing herein shall apply to lands to which
citizens of this state may claim title south of what is known as
the 'McNeil Line.'"
It turned out that the line run by Orr and Whitner ran even
further north than the McNeil Line, but it came within the
stipulated distance from Ellicott's Mound -- namely within
Page 123 U. S. 20
a quarter of a mile -- in fact, within 37 links, or less than 25
feet, north of the mound.
See Code of Georgia, 1868, § 19.
This was more favorable to Georgia than the line agreed on by
Ellicott and Minor, which was to run at least one mile north of the
mound.
On the 14th of December, 1860, the Legislature of Georgia,
probably considering that its last proposition was not fully
accepted, passed a resolution directing the Governor to reopen
negotiations with the authorities of Florida in regard to the
boundary line and to urge its adjustment so as to protect the
rights of citizenship and the titles of lands held under grants
from Georgia and if practicable so as to retain and keep the
fractional lots sold by Georgia within the jurisdiction of the
state. In response to this resolution, the Legislature of Florida,
on the eighth of February, 1861, passed the following resolution,
to-wit:
"
Whereas, [by] an act approved by the Governor,
twenty-second December, 1859, it was by the General Assembly
enacted that the line then being run by B. F. Whitner, Jr., on the
part of Florida, [and] G. J. Orr, on the part of Georgia, should be
and was thereby recognized and declared to be the permanent
boundary line between the states of Georgia and Florida as soon as
the same should be permanently marked by said surveyors,
provided the said line at its eastern terminus did not
depart from or miss Ellicott's Mound more than one-fourth of a mile
or twenty chains, and whereas, the said line has been run and
marked by said surveyors on the part of the two states, the eastern
terminus of which, so run and marked, is within the distance
prescribed in said proviso, therefore
resolved that the
line run and marked by B. F. Whitner, Jr., on the part of Florida,
and G. J. Orr, on the part of Georgia be and the same is hereby
declared to be the permanent boundary line between the two States
of Georgia and Florida, and that the Governor be and he is hereby
requested to issue his proclamation that the said line so run and
marked has been and is declared to be the permanent boundary line
between the two states,
provided the State of Georgia
shall have on its part declared the said line to be the boundary
between that state and Florida.
Be
Page 123 U. S. 21
it further resolved that the Governor be requested to
forward a copy of these resolutions to the Governor of Georgia with
a request that similar steps be taken by Georgia, so that the
question of boundary may be finally settled."
Bush's Digest 103; McClellland's Digest 952.
By a long and argumentative resolution passed by the Legislature
of Georgia on the eleventh of December, 1861, after stating the
respective positions taken by the two states, it was proposed as
follows:
"The General Assembly, to avoid further dispute, proposes to her
sister state Florida that what is denominated the 'Watson Line'
(which will leave in the limits of this state the fractional lots
of land heretofore sold under an act of her legislature) shall be
adopted as the boundary line. The settlement upon this basis will
not interfere with the rights of citizenship as claimed by the
citizens of either state."
Florida made no answer to this proposition.
Finally, by a resolution passed on the 13th of December, 1866,
the Legislature of Georgia, referring to the act of 16th December,
1859, and recognizing the fact that the Orr and Whitner Line as run
did not depart exceeding one-fourth of a mile from Ellicott's
Mound, and referring also to the action of the Florida Legislature
of February 8, 1861, adopted the Orr and Whitner Line as "the
permanent boundary line between the States of Georgia and Florida."
And this agreement thus finally arrived at by the two states was
recognized and confirmed by an act of Congress approved April 9,
1872, entitled "An act to settle and quiet the title to lands along
the line between the states of Georgia and Florida," by which it
declared
"That the titles to all lands lying south of the line dividing
the States of Georgia and Florida known as the 'Orr and Whitner
Line,' lately established as the true boundary between said states,
and north of the line run by Georgia, known as the 'Watson Line,'
being all the lands lying between said lines, be, and the same are
hereby, confirmed, so far as the United States has title thereto,
in the present owners deriving titles from the State of
Georgia."
This historical review is sufficient, it seems to us, to show
that the agreement come to by the two states was not in fact
Page 123 U. S. 22
and cannot be construed as a cession of territory on the part of
Georgia. It was simply the correction of the boundary line. Georgia
had inadvertently extended her jurisdiction to a line run by her
surveyor too far south. The agreement recited in the resolution of
December 24, 1857, "to adopt the terminal points of the present
recognized line as the true terminal points of the boundary line,"
carried out by a resurvey of such line from one of its terminal
points to a point sufficiently near the other to satisfy both
parties, must be construed to be the carrying out of an intent to
settle and establish the true line between the two states, and not
an intent to adopt a line different from the true one, with a
cession of the territory cut off by it. Two lines had been
contended for. Florida and the United States contended for the line
established by the joint commission under the treaty with Spain,
Georgia for a different line having a widely different terminus at
its eastern extremity. Each claimed that its line was the true one.
Georgia finally yielded the point and accepted the commissioners'
line. This was tantamount to an acknowledgment that it was the true
line. We do not say that the result would have been different if
the parties had adopted a compromise line -- as, for example, the
Watson Line, which was proposed by Georgia. When a boundary is in
dispute, the adoption of a line by compromise may be considered as
an agreement that the adopted line is the true line or that it
shall be considered as the true line. Where territories are
coterminous, they must have a common boundary. That boundary,
whether ascertained by astronomical observations or discovery of
old monuments or mutual agreement of the parties, is to be regarded
and treated as if it had always been known as the true line. The
present case, at all events, can only be regarded as one in which
the boundary line finally agreed to was always the true line, even
through and even when a different line (Watson's) was temporarily
adopted by Georgia and acquiesced in by Florida.
Then what becomes of the titles granted by Georgia outside of
that line, or south of it? She had no title there herself. Could
she confer title by the mere exercise
de facto of
jurisdiction
Page 123 U. S. 23
and government there -- such exercise being in derogation of the
successive rights of Spain, the United States, and Florida? What
authority can be found to justify such a pretension? It is the
common usage, it is true, in mutual adjustments of disputed
boundaries, to stipulate that private titles shall not be
disturbed. Such stipulations are dictated by a humane consideration
for those who have innocently invested their fortunes on the faith
of the good title of their government. In the present case, as we
have seen, the titles granted by Georgia were confirmed both by
Florida and by the United States, so far as either had any right or
title to be affected. But those confirmations cannot avail the
plaintiffs in the present case, for the United States had parted
with all their interest in the lands in controversy by a grant to
Florida in July, 1857, and Florida had disposed of all her interest
therein by a regular sale in September of the same year. Neither
the United States nor Florida, therefore, had any interest
remaining, when the confirmatory acts were passed which they could
transfer by release or confirmation or in any other mode.
The case, then, stands upon the original validity of the Georgia
grants, and the question may well be asked how does a landholder
who obtains title from a sovereign that has none stand in any
better position than one who obtains title from an individual that
has none? Georgia had no title to the land. Previous and subsequent
historical events abundantly show this. Her grants have nothing to
rest on but her actual possession of the disputed territory and her
exercise of government
de facto therein. The question is
whether this is sufficient.
The general subject is not a new one in the jurisprudence of
this Court. Before the treaty of amity and limits made with Spain
in 1795, that government had claimed and occupied, as a part of
West Florida, a large extent of country on the east side of the
Mississippi, to the north of north latitude 31�, including a large
portion of the present State of Mississippi. This claim was based
on an extension of the province of West Florida to the northward by
the government of Great Britain
Page 123 U. S. 24
prior to the Revolutionary war. It was abandoned by the treaty
referred to, and the parallel of 31� was adopted as the boundary
line between the territories of the United States and those of
Spain. But prior to that treaty, the Spanish authorities had made
grants of land in the territory referred to. This Court invariably
held those grants, not confirmed by our government, to be invalid
on the ground that the territory did not belong to Spain, though
she occupied it and claimed to own it. This point is decided in
Henderson v. Poindexter's
Lessee, 12 Wheat. 530, followed by
Hickey v.
Stewart, 3 How. 750;
Robinson
v. Minor, 10 How. 627, and other cases. In
Henderson v. Poindexter, Chief Justice Marshall carefully
examined the question of the right of Spain to the territory and
showed that it was untenable, and strenuously argued that the
treaty of 1795 was an acknowledgment on the part of Spain that she
had no such right, or why did she give it up? The idea of a grant
deriving any validity from national occupancy and government
de
facto over the territory was not even hinted at, although Mr.
Webster and Mr. Coxe argued the cause for the party claiming under
the Spanish grant. The view taken by this Court on the subject was
accurately expressed by Mr. Justice McLean in delivering the
opinion in
Robinson v.
Minor, 10 How. 643, where he says:
"The treaty with Spain established [
i.e., settled] a
disputed boundary; there was no session of territory. The
jurisdiction exercised by Spain over the country north of the
thirty-first degree of north latitude was not claimed or occupied
by force of arms against an adversary power, but it was a naked
possession under a misapprehension of right. In such a case,
Georgia, within whose sovereignty the country was situated, was not
bound to recognize the grants or other evidence of title by the
Spanish government."
The same view was taken by the Court with regard to the grants
made by Spain in the disputed territory of West Florida after the
cession of Louisiana to the United States in 1803. Spain had held
possession of Louisiana and the Floridas, but, by the secret treaty
of St. Ildefonso, made in 1800, had ceded
Page 123 U. S. 25
Louisiana to France, "with the same extent that it now has in
the hands of Spain, and that it had when France possessed it," and
in 1803 France ceded it to the United States in the same terms.
But, as formerly possessed by France, Louisiana included West
Florida as far as to the River Perdido, and our government claimed
to the same extent. Spain, with a good deal of plausibility,
contended that West Florida, extending from the Mississippi to the
Perdido, was held as a distinct province by Great Britain prior to
1783, and was not embraced in the cession, and refused to surrender
it, and kept possession of it, in the exercise of full sovereignty,
until 1810, when the United States took forcible possession of it.
Here was another case of disputed boundary. The United States
claimed the River Perdido; Spain, the Rivers Mississippi and
Iberville, as the true boundary between Louisiana and the Floridas,
and the latter was in possession of the disputed territory,
exercising all the powers of government therein, from 1803 to 1810.
During this period, the Spanish Governors made many grants of land
in the territory, which often came before this Court for
adjudication, and the decision was invariably against their
validity.
The first case in which the question arose was that of
Foster v.
Neilson, 2 Pet. 253, in which the grant was made in
1804 for land in the District of Feliciana, east of the
Mississippi. The principal questions argued were first the true
interpretation of the treaties of 1800 and 1803 as to what
territory was ceded to the United States, and secondly the effect
of the confirmation of Spanish grants contained in the treaty of
1819. Mr. Coxe, it is true, took the ground that the acts of a
sovereign power over territory it has ceded are lawful until
possession has been transferred, and therefore that the grants of
Spain, while still in possession and exercising the powers of
government
de facto, should be held to be valid. Mr.
Webster, who was on the same side with Mr. Coxe, did not allude to
this argument, and the Court took no notice of it, but placed its
decision on the ground that, by the true construction of the
treaties, Louisiana included West Florida to the Perdido, and
therefore that the territory in question did not belong to
Page 123 U. S. 26
Spain when the grant was made, and so the grant was invalid, but
that if this were not a clear proposition -- and the court admitted
that it was a question of doubtful construction -- the judiciary
would nevertheless follow the action of the political department of
the government charged with the management of its foreign affairs,
which had always contended for the line of the Perdido, and had
finally taken full possession of the country.
The case of
Foster v. Neilson was followed in the
subsequent cases of
Garcia v. Lee,
12 Pet. 511;
United States v.
Reynes, 9 How. 127;
United
States v. D'Auterive, 10 How. 609;
United
States v. Philadelphia & New Orleans, 11 How.
609;
Montault v. United
States, 12 How. 47;
United
States v. Castant, 10 How. 437, all of which are
referred to, and the history of the controversy is given, in
United States v.
Lynde, 11 Wall. 632.
It may, however, be said that the decision in these cases was
controlled by the Act of Congress approved March 26, 1804, 2 Stat.
283, 287, the 14th section of which declared void all grants for
lands within the territories ceded by the French Republic to the
United States by the treaty of 30th April, 1803, the title whereof
was at the date of the treaty of St. Ildefonso in the Crown,
government, or nation of Spain, saving, however, the titles of
actual settlers acquired before December 20, 1803.
It is doubtless true that this act did have a controlling
influence in the cases referred to, but the Court discussed the
question upon general principles also, and no hint is dropped that
the existence of a government
de facto would have any
influence on the decision.
In
Garcia v. Lee, Chief Justice Taney expressly argues
that in a case of disputed boundary, titles must stand or fall with
the right of the government creating them. His language is:
"Indeed, when it is once admitted that the boundary line,
according to the American construction of the treaty, is to be
treated as the true one in the courts of the United States, it
would seem to follow as a necessary consequence that the grant now
before the Court, which was made by the Spanish
Page 123 U. S. 27
authorities within the limit of the territory which then
belonged to the United States, must be null and void unless it has
been confirmed by the United States by treaty or otherwise. It is
obvious that one nation cannot grant away the territory of another,
and if a proposition so evident needed confirmation, it will be
found in the case of
Poole v. Fleeger, 11
Pet. 210. In that case, there had been a disputed boundary between
two states, and the parties claimed the same land under grants from
different states. The boundary line had been ascertained by compact
between the states after the grants were made. And in deciding
between the claimants in that case, the Court said:"
"In this view of the matter, it is perfectly clear that the
grants made by North Carolina and Tennessee, under which the
defendant claimed, were not rightfully made, because they were
originally beyond her territorial boundary, and that the grant
under which the claimants claim was rightfully made, because it was
within the territorial boundary of Virginia."
And again:
"If the States of North Carolina and Tennessee could not
rightfully grant the land in question, and the States of Virginia
and Kentucky could, the invalidity of the grants of the former
arises not from any violation of the obligation of the grant, but
from an intrinsic defect of title in the states."
The case of
Poole v.
Fleeger, 11 Pet. 185, quoted by Chief Justice
Taney, is much to the purpose. The northern boundary of North
Carolina (including Tennessee) was fixed by the charter of 1665,
and by the constitutions of that state and Virginia, adopted in
1776, on the parallel of 36�30' north latitude. In 1779, an
attempted survey of the line was made by commissioners of the two
states, who failed to agree, but a line run by Dr. Walker, one of
the commissioners, was practically used as the boundary of
jurisdiction. It was afterwards found to be too far north by
several miles, and a line was run on the true parallel by Professor
Matthews of Transylvania University. Tennessee laid out her
counties and exercised all sovereign jurisdiction up to the Walker
line, and both North Carolina and Tennessee made grants of land up
to that line and north of the true parallel. On the other
Page 123 U. S. 28
hand, Kentucky made grants south of that line and up to
Matthews' Line. In 1820, Kentucky and Tennessee agreed to adopt
Walker's Line as the boundary of the two states, but it was
stipulated that all private rights and interests of land between
the two lines theretofore derived from either state should be
considered as rightfully emanating therefrom, but all vacant and
unappropriated lands within those limits were declared to belong to
Kentucky and subject to her disposal. No provision was made for
cases of conflicting grants of the same land made by Virginia or
Kentucky, on one side, and by North Carolina or Tennessee on the
other. The case before the court was one of that kind, the
plaintiffs claiming under a Virginia warrant and a grant made by
Kentucky in pursuance thereof in 1796, the defendants claiming the
same land under North Carolina grants made in 1786, 1792, 1797, and
Tennessee grants of subsequent years, and the lands in controversy
being situated between the two lines before mentioned. This Court
held that the parallel of 36�30" was always the true line until
altered by agreement of the two states in 1820, and that grants
made by North Carolina and Tennessee north of that line were void,
and that the Virginia and Kentucky grants were good notwithstanding
the actual occupation of the disputed territory by Tennessee. The
adoption of Walker's Line in 1820 was held to have changed the true
and original boundary only for the purpose of future jurisdiction.
Evidence of the previous exercise of jurisdiction by Tennessee up
to Walker's Line was not allowed to affect the question of title,
although the defendants proved that North Carolina and Tennessee
had claimed to Walker's Line as the true line from the time it was
run to the time of the treaty or agreement of 1820; that the county
lines of Tennessee were Walker's Line on the north; that in her
legislative, judicial, and military capacity, Tennessee always
claimed possession and acted up to said line as the northern
boundary of the state; that process was executed, criminal acts
were punished, taxes were paid, militia was enrolled, and all other
acts done in subordination to the laws and government of Tennessee
up to that line, and corresponding jurisdiction was exercised by
Kentucky to the same line on the other side.
Page 123 U. S. 29
Here was a case of mistaken boundary, and when the error was
discovered, the states concerned agreed to adopt it as the
permanent political boundary for the future, conceding on both
sides that it was not the true original boundary. Mr. Justice
Story, delivering the opinion of the Court, said:
"Although in the compact Walker's Line is agreed to be in future
the boundary between the two states, it is not so established as
having been for the past the true and rightful boundary; on the
contrary, the compact admits the fact to be the other way. While
the compact cedes to Tennessee the jurisdiction up to Walker's
Line, it cedes to Kentucky all the unappropriated lands north of
the latitude of 36�30' north."
Then, after further remarks of the same purport, follows the
passage quoted by Chief Justice Taney to the effect that the grants
of North Carolina and Tennessee were not rightfully made because
they were originally beyond their territorial boundary.
The case of
Poole v. Fleeger covers the case now under
consideration. It was a case of disputed boundary, and Tennessee
exercised sovereign jurisdiction
de facto up to a certain
line (Walker's), which she claimed to be the true boundary line,
and made grants of land to that line, just as Georgia did in the
present case to Watson's Line. Walker's Line, like Watson's, was
found not to be the true line, and the grants made by Tennessee
were found to be for lands in territory belonging to Kentucky, just
as the grants of Georgia, next to Watson's Line, were found to be
for lands in the territory belonging to the United States and
Florida. This Court decided that the Tennessee grants were void
notwithstanding the exercise of sovereign jurisdiction
de
facto by that state over the territory in dispute when the
grants were made. If that decision was correct, the grant made by
Georgia of the land in controversy must be held to be invalid for
the same reason. The only difference between the cases is that
Kentucky and Tennessee adopted the erroneous line as their
permanent boundary, though recognizing the fact that it was not the
true original line, while in the present case Georgia and Florida
adopted the nearest practical approach to the
Page 123 U. S. 30
true line as their permanent boundary. This difference does not
affect the question except to make the present case the stronger of
the two.
The only authority cited by the Supreme Court of Florida for the
proposition that a government
de facto can make a valid
grant is a
dictum of Mr. Justice Baldwin in delivering the
opinion of the Court in the case of
Rhode
Island v. Massachusetts, 12 Pet. 748. The question
there was whether the people whose lands would be affected by the
change of state line involved in that case ought to be made parties
to the suit. Justice Baldwin says:
"It is said that the people inhabiting the disputed territory
ought to be made parties, as their rights are affected. It might
with the same reason be objected that a treaty or compact settling
boundary required the assent of the people to make it valid, and
that a decree under the Ninth Article of Confederation was void, as
the authority to make it was derived from the legislative power
only. The same objection was overruled in
Penn v.
Baltimore, and in
Poole v. Fleeger, this Court
declared that an agreement between states, consented to by
Congress, bound the citizens of each state."
Thus far the reasoning of the court was unanswerable.
Settlements of boundary belong to the sovereign power, and cannot
be questioned by individuals. But the learned justice proceeds to
lay down what he supposes to be two principles of the law of
nations, which were entirely unnecessary to the decision of the
question of parties which he was considering. He says:
"There are two principles of the law of nations which would
protect them [private citizens] in their property: (1) that grants
by a government
de facto of parts of a disputed territory
in its possession are valid against the state which had the right,
12 Wheat.
25 U. S. 600-601; (2) that
when a territory is acquired by treaty, session, or even conquest,
the rights of the inhabitants to property are respected and sacred,
8 Wheat.
21 U. S. 589,"
etc. This is the passage quoted and relied on by the Supreme
Court of Florida. The second of these propositions is in accordance
with what we have already stated to be the received rule of
international law, but the first is opposed to the cases which we
have
Page 123 U. S. 31
already cited in relation to Spanish grants in Mississippi and
West Florida and to the case of
Poole v. Fleeger. As to
the authority referred to, 12 Wheat.
25 U. S.
600-601, it is a mere dictum of Mr. Justice Trimble in
De la Croix v. Chamberlain, clearly inconsistent with the
decision made at the same term in
Henderson v. Poindexter's
Lessee and with all the subsequent decisions above referred
to, and as Mr. Justice Catron, in a manuscript note upon this part
of Justice Baldwin's opinion, justly remarks: "No such question was
raised in that case, and
Poole v. Fleeger is certainly to
the contrary."
We think that the decision of the Supreme Court of Florida is
erroneous in deciding against the title of the plaintiff in error.
That title is claimed under a grant from the United States of land
acquired by treaty with Spain, identified as such by the former
treaty of limits, and the proceedings of the commissioners
appointed to carry out that treaty. The decision of the Supreme
Court of Florida in effect is either that the land was not embraced
in the treaty of cession or, if it was, that the possession of
Georgia gave a superior right. We think it clear that the land was
embraced in the treaty and that the possession of Georgia did not
give a superior right. The judgment is therefore reversed, and the
cause remanded with instructions to proceed according to law in
conformity with this opinion.
A point was made in the brief of counsel for defendants in error
which was not raised in the courts below, and cannot, as now
presented, be properly passed upon by us -- namely that the
register had no power under the state law to make the bargain with
McCall and Stripling for the sale of the land at the time he issued
his certificate to them. This is a question of state law and
involves an issue of fact, and if deemed important may be raised on
a new trial of the cause which will necessarily be awarded as a
consequence of the reversal of the judgment.
Judgment reversed.