A petition was presented to the Governor of Florida before the
cession of the territory to the United States setting forth that
the petitioner was desirous of erecting machinery for sawing,
timber, &c., and asking
"permission for that purpose, with the corresponding survey of
the grant of land of five miles square, sixteen thousand acres or
its equivalent, in the event that this situation will not permit
the said form, which land will insure the continued supply of
timber. The permission was granted without injury to third persons
under the express condition that until the establishment of the
mill, the grant of the land, which will be a square of five miles,
in order that he may use the timber, shall be of no effect."
A survey was made of ten thousand acres, but no more than that
quantity could be had at the place described, and the residue of
the grant, six thousand acres, was afterwards surveyed in other
places at the distances of twenty and thirty miles. In 1819, the
grantee commenced the erection of a mill which was afterwards
carried away by floods. In 1827 another mill was commenced, which
was destroyed by fire in July, 1828, and in October, 1828, another
mill was commenced, which went into operation in 1929. The Superior
Court of East Florida confirmed the survey of ten thousand acres
and rejected the two surveys amounting to six thousand acres.
Held that the grantee was entitled to the whole sixteen
thousand acres.
By the eighth article of the treaty of cession of Spain to the
United States, the same time is allowed to the owners of land
granted under the authority of Spain to fulfill the conditions of
their grants after the date of the treaty as was limited in the
grants. It has been decided by this Court in the case of
Arredondo that as to individual rights, the treaty is to
be considered as dated at its ratification.
It has been decided in
Arredondo's Case that that
provision of the treaty as to the performance of the conditions in
grants is not confined to owners of land by occupancy or residence,
but extends to persons who have a legal seizin and possession of
land in virtue of a grant, and that in the situation of the
province and the claimants to land at the time of the cession, it
was enough that they should show a performance of the condition
cy pres.
This was a claim to land in East Florida, presented to the
Superior Court of East Florida by the appellee, founded on a
concession for sixteen thousand acres of land made by Don Jose
Coppinger, Governor of the Province of East Florida, to Charles F.
Sibbald, the claimant, on 2 August, 1816, for five miles square, or
sixteen thousand acres of land.
On 16 July, 1816, the petitioner, Charles F. Sibbald, presented
his petition to Governor Coppinger supplicating his permission to
construct a water saw mill on the creek called Six Miles,
Page 35 U. S. 314
alias Little Trout Creek, on the north side of the River St.
John's and that of Nassau, the creeks of which empty their waters
into the said St. John's River, with the corresponding surety for
the grant of lands embraced in a line of two and a half miles to
each wind, making a square of five miles or its equivalent in the
event that this situation will not permit the same form, which
land, he says, will insure the continued supply of timber.
On 2 August of the same year, the governor made his decree
granting the permission solicited under the express condition that
until the establishment of the mill, the grant of the land, which
will be of two miles and a half to each wind, making a square of
five miles, in order that he may use the timber, &c., shall be
of no effect.
Ten thousand acres of this land were surveyed upon Little Trout
Creek agreeably to the calls of the grant. Four thousand acres were
surveyed by George J. F. Clarke, public surveyor, on 8 February,
1820, in Turnbull's Swamp, at Mosquito, more than one hundred miles
to the southward from the first location, and between which and it
there is no water communication except by the open sea, and the
remaining two thousand acres were, on 20 February, 1820, surveyed
by said Clarke, at Bow Legs Hammock, about the same distance to the
west and from the first survey, between which and those two
thousand acres, there is no water communication at all.
The petitioner alleges that in compliance with the condition of
said grant, he, in the year 1819, expended six or eight thousand
dollars in the erection of a water saw mill, which was nearly
completed, but that, owing to various difficulties and the
embarrassments of said province, the mill did not go into
operation.
That since the cession of the Floridas to the United States, he
has expended upwards of twenty thousand dollars in the erection of
a steam saw mill on the tract of ten thousand acres, which was
completed, and some time in full operation, but that in the month
of July, 1828, it was entirely destroyed by fire, and that he has
since commenced another upon a much more extensive scale. This last
has been completed since the filing of the petition in this
case.
The answer of the district attorney denies the power of the
governor to make this grant and puts the claimant to the proof of
all the allegations contained in his petition and insists that he
has not complied with the condition of the concession.
Page 35 U. S. 315
That by a decree of Governor Coppinger bearing date 29 October
of the same year (White's Compilations), the term of six months was
limited for the performance of the conditions of all grants of this
nature, and that it was then especially decreed by said governor
that all those grants the conditions of which were not performed at
the expiration of said six months should be null and void and that
the lands should be annexed to the class of public land, which
decree was subsequently, to-wit on 18 January, 1819, by another
decree of the same governor, fully affirmed, and that the said
Charles F. Sibbald did not erect the said saw mill within the said
term of six months, and that consequently said concession, at the
expiration thereof, became null and void, and the lands were
annexed to the class of public lands.
The original concession in this case was not to be found in the
archives; but a copy certified by Thomas de Aguilar, late secretary
of the government of the province, was produced and proved.
The proof in relation to the building of the mills is
substantially as stated in the petition, and a duly certified copy
of the survey was also produced.
Page 35 U. S. 321
MR. JUSTICE BALDWIN delivered the opinion of the Court.
These are cross-appeals from the decree of the judge of the
Superior Court of East Florida on the petition of Sibbald praying
for a confirmation of his claim to sixteen thousand acres of land,
pursuant to the acts of Congress for adjusting land claims in
Florida.
The petition was in the form prescribed by law, presenting a
case proper for the exercise of the jurisdiction of the court
below. On 16 July, 1816, the petitioner applied to the Governor of
East Florida, setting forth that he was desirous of erecting
machinery for sawing timber on Little Trout Creek, on the north
side of the River St. John's and that of Nassau:
"He asks permission for that purpose, with the corresponding
surety of the grant of land of five miles square, or its
equivalent, in the event that this situation will not permit the
said form, which land will insure the continued supply of
timber."
On 2 August, 1816, the governor decreed
"The permission solicited by this party is granted, without
injury to third persons, under the express condition that until the
establishment of the mill, the grant of the land, which will be a
square of five miles, in order that he may use the timber, shall be
of no effect,"
&c. Pursuant to this grant, a survey was made on 2 May,
1819, of ten thousand acres at the place called for in the grant.
In February, 1820, four thousand acres were surveyed in another
place, called Turnbull's Swamp, at the distance of thirty miles
from the first survey, and afterwards the residue, two thousand
acres was surveyed
Page 35 U. S. 322
at a place called Bow Legs Hammock, at the distance of twenty or
thirty miles. In 1819, Sibbald commenced the erection of a saw mill
on the ten thousand acre tract, and continued it till its
completion, except the dam, which would have been completed had not
the negroes and horses employed been stolen, and while the
millwright was absent in pursuit of them, the dam was carried away
by a freshet. The work was then abandoned after an expenditure of
more than $5,000. In September, 1827, another mill was built and in
operation which was destroyed by fire in July, 1828. Another was
commenced in October, 1828, which went into operation in June,
1829, and so continues to the present time; is of seventy horse
power, and calculated to saw twenty thousand feet of lumber a
day.
By the decree of the court below, the claim of the petitioner
was confirmed as to the ten thousand-acre survey on Trout Creek and
rejected as to the two remaining surveys of four thousand, and two
thousand acres, from which decree both parties appealed. Various
objections to the claim were made on the hearing, but only two were
relied on here.
1. That the grant was on a condition precedent, which was not
begun to be performed till the grant became forfeited by the order
of the governor, made 29 October, 1818, declaring all grants made
in consideration of mechanical improvements to be made to be void
if the conditions were not performed in six months. It is
unnecessary to decide on the effect of this order or whether, by
the acts which authorize the courts of Missouri and Florida to
decide on claims to lands therein, Congress intended to assert a
right by forfeiture for condition broken to lands which had been
once legally granted. The evidence in this and the other cases
which have been decided is very full and clear that no grant has
ever been annulled or revoked by the Spanish authorities for any
cause, and that there is no instance of a governor's having granted
land which had been before granted on condition, and it may well be
doubted whether it would have been reannexed to the royal domain
had the province remained under the dominion of the King of Spain;
nor is there any provision of any law of Congress which specially
requires the court to inquire into the performance of conditions on
which grants were made.
By the eight article of the treaty of cession by Spain to the
United States, the same time is allowed to the owners of land so
granted to
Page 35 U. S. 323
fulfill the conditions of their grants after the date of the
treaty as was limited in the grants. We have heretofore decided in
the case of
Arredondo
that as to individual rights, the treaty is to be considered as
dated at its ratification. 6 Pet. 748-749. The erection of a mill
in 1819 or 1920 would therefore be in time to save a forfeiture. No
time was limited in the grant, and no greater effect can be given
to the governor's order fixing the time for the performance of
conditions than if the limitation had been contained in the grant.
We have also decided that this provision of the treaty is not
confined to owners in possession of lands by occupancy or
residence, but extends to all persons who have a legal seizin and
possession of land in virtue of a grant,
31 U. S. 6 Pet.
743, and that in the situation of the province and the claimants to
land at time of the cession, it was enough if they would show a
performance of the condition
cy pres. We are therefore of
opinion that the petitioner began the erection of the mill in time
to save the forfeiture, and that he has shown the performance of
such acts as amount to a compliance with the condition according to
the rules of equity which govern these cases.
2. It is objected that the terms of the grant do not authorize a
survey of any part of the sixteen thousand acres in any other than
in the place called for. The petition was for a grant of sixteen
thousand acres or its equivalent if it situation would not admit of
this form; the permission solicited was granted, which by reference
makes the petition a part of the grant. It is in full proof that
the quantity could not be surveyed at the place designated without
interfering with land which had been previously granted, which
would have been contrary to the express words of the grant "without
injury to third persons." It is also in proof without contradiction
that in order to obtain the ten thousand acres on Trout Creek, it
was necessary to go round one or two different tracts, and that no
more could have been obtained anywhere near it of any value; the
shape of the survey is irregular, and not at all in conformity with
the rules prescribed to surveyors, which require the surveys to be
in rectangular parallelograms, the front of which on rivers,
creeks, and roads not to exceed one-third of the depth. It was
certainly the intention of the petitioner and the governor that
there should be a grant of five miles square, which was the usual
quantity granted in consideration of the erection of mills, and we
think that taking the petition and grant, together with the
manifest intention of both parties, the equivalent for any
deficiency on Trout Creek may be referred to quantity,
Page 35 U. S. 324
rather than to the form of the survey.
It would be a very rigid construction of the grant to make the
privilege of altering the shape of the survey an equivalent for the
loss of six thousand acres of land. That such was not the intention
of the governor is evident from the evidence of Mr. Fernandez, who
testifies that on ascertaining that part of the land had been
previously granted, he informed the governor, who gave Sibbald the
right to locate his grant at any vacant place suitable for the
erection of a saw mill. The surveyor general of the province
testified that he filled that office in East Florida from 1811 to
1821, that he located grants by surveying any land which was
designated by the grantee to which no objection was made by any of
the authorities under the Spanish government and which was
considered an inherent privilege of the grantee without any order
from the government. We are therefore of opinion that the title of
the petitioner to the whole quantity of land specified in the grant
is valid by the law of nations, of Spain, the United States, and
the stipulations of the treaty between Spain and the United States
for the cession of the Floridas to the latter, and ought to be
confirmed to him according to the several surveys made as returned
with the record.
We do therefore order, adjudge and decree that the decree of
the court below confirming the title of the petitioner to the ten
thousand acres on Trout Creek be and the same is hereby affirmed.
And proceeding to render such decree as the court below ought to
have rendered, this Court doth further order, adjudge, and decree
that the decree of the court below rejecting the claim of the
petitioners to the land embraced in the surveys of four thousand
acres and of two thousand acres, as returned with the record, be
and the same is hereby reversed and annulled. That the claim of the
petitioner to the same be and the same is hereby confirmed and
declared valid, and that the Surveyor of Public Lands in the
Eastern District of Florida be and is hereby directed to do and
cause to be done all the acts and things enjoined on him by law in
relation to the lands within said surveys.
This cause came on to be heard on the transcript of the record
from the Superior Court for the District of East Florida and was
argued by counsel. On consideration whereof it is ordered adjudged
and decreed by this Court that the decree of the said superior
court confirming the title of the petitioner to the ten thousand
acres on
Page 35 U. S. 325
Trout Creek be and the same is hereby affirmed, and that the
residue of the decree of the said superior court be and the same is
hereby reversed and annulled. And this Court, proceeding to render
such decree as the said superior court ought to have rendered, doth
order, adjudge, and decree that the claim of the petitioner to the
land embraced in the surveys of four thousand acres and of two
thousand acres, as returned with and contained in the record, is
valid, and that the same be and is hereby confirmed. And it is
further ordered, adjudged, and decreed by this Court that the
Surveyor of Public Lands in the Eastern District of Florida be and
he is hereby directed to do and cause to be done all the acts and
things enjoined on him by law in relation to the lands within said
survey. And that the said cause be and the same is hereby remanded
to the said superior court to cause further to be done therein what
of right and according to law and justice and in conformity to the
opinion and decree of this Court ought to be done.
The same decree was given in the case of
Sibbald, Appellant
v. United States.
