John Smith, T., claimed a confirmation of a grant of land by the
Governor General of Louisiana, made on 11 February, 1796. Louisiana
was ceded by
France to the United States by the treaty of 1803. In 1811,
surveys were made under the grant of several tracts of land,
varying in numbers of acres, and several of them including lead
mines. No survey of any land was made under the
grant until after the treaty of cession. By the decree of the
district court, the claim was rejected and that decree was affirmed
by the Supreme Court.
It was never doubted by this Court that property of every
description in Louisiana was protected by the law of nations, the
terms of the treaty, and the acts of Congress, nor that in the
term
"'property' was comprehended every species of title, inchoate or
perfect, embracing those rights which lie in contracts -- 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.
512.
The act of Congress of 1804, which submitted claims to land in
Louisiana to judicial cognizance, confined the court to such claims
as had been legally made, granted, or issued before 10 March, 1804,
which were protected by the treaty of 1803, and might have been
perfected into a complete title under the laws, usages and customs
of Spain if she had continued to hold the government of the
province.
It was also made the duty of the court to conduct the
proceedings on all petitions according to the rules of a court of
equity, and to decide upon them according to the principles of
justice and the laws and ordinances of the government under which
the claim originated. In thus consenting to be made defendants in
equity at the suit of every claimant for land in Missouri, the
United States waived all rights which the treaty could give them as
purchasers for a valuable consideration without notice. They bound
themselves to carry into specific execution by patent every grant,
concession, warrant or order of survey which, before 10 March,
1804, had created any legal or equitable right of property in the
land so claimed, so that in every case arising under the law, one
general question was presented for the consideration of the court:
whether in the given case a court of equity could, according to its
rules and the laws of Spain, consider the conscience of toe King to
be so affected by his own or the acts of the lawful authorities of
the province that he had become a trustee for the claimant and held
the land claimed by an equity upon it amounting to a severance of
so much from his domain, before 10 March, 1804, in Missouri, and 24
January, 1815, in Florida, the periods fixed by the law in one case
and the treaty in the other.
The principles which have been established by the decisions of
the Court in relation to claims to lands under grants from the
Crown of Spain or the officers of Spain authorized to make
grants.
No claim to land in Missouri can be confirmed under the acts of
1824 or 1828 unless by a grant, commission, warrant or order of
survey for some tract of land described therein to make it capable
of some definite location, consistently with its terms, made,
granted, or issued before 10 March, 1804, or by an order to
survey
Page 35 U. S. 327
any given quantity, without any description or limitation as to
place, which shall have been located by a survey made by a proper
officer before that time.
Congress did not contemplate the submission of any claims to the
court except such as, on confirmation, could be surveyed and
patented, and on rejection would be thenceforth held and taken to
be a part of the public lands, though cases of claims to make a
prospective severance of particular tracts from the general domain,
when the grant was wholly indefinite, would require a distinct
provision. Spain never permitted individuals to locate their grants
by mere private survey. The grants were an authority to the public
surveyor or his deputy to make the survey as a public trust, to
protect the royal domain from
being cut up at the pleasure of the grantees. A grant might be
directed to a private person or a separate official order given to
make the survey, but without either, it would not be a legal
execution of the power.
The laws of the United States give no authority to an individual
to survey his grant or claim to lands; he may make lines to
designate the extent and bounds of his claim, but he can acquire no
rights thereby. Neither in this or the record of any of the cases
which have been before this Court has it seen any evidence of any
law of Spain, local regulations, law or usage, which makes a
private survey operate to sever any land from the royal domain. On
the contrary, all the surveys which have been exhibited in the
cases decided were made by the surveyor general of the province,
his deputies by the special order of the governor or intendant, or
those who represented them. No government gives any validity to
private surveys of its warrants or orders of survey, and there is
no reason to think that Spain was a solitary exception, even as to
the general domain, by grants in the ordinary mode for a specific
quantity to be located in one place.
It is for another branch of the government to decide on the
claims of the petitioner under the third section of the act of
1823. With that this Court have nothing to do; its duty terminates
by a decision on the validity of his title by any law, treaty, or
proceedings under them according to those principles of justice
which govern courts of equity.
This case was argued at January term 1830 by Mr. Benton for the
appellant and by Mr. Wirt for the United States. The Court held it
under advisement for the reasons stated in the case of
Smith v. United
States, 4 Pet. 511. The case is fully stated in the
opinion of this Court.
MR. JUSTICE BALDWIN delivered the opinion of the Court.
Pursuant to the provisions of the act of 1824 for the adjustment
of land claims in the State of Missouri, John Smith T. filed his
petition in the district court on 3 October, 1827, claiming a
confirmation of his title to ten thousand arpents of land in that
state in virtue of a Spanish concession to James St. Vrain, a
resident of
Page 35 U. S. 328
Louisiana, legally made before 10 March, 1804, by the proper
authorities. He alleged that his claim was protected by the treaty
between France and the United States for the cession of Louisiana,
and might have been perfected into a complete title under the laws,
usages, and customs of the government under which the same
originated had not the sovereignty of the country been transferred
to the United States.
His claim is founded on a petition of James St. Vrain to the
Governor General of Louisiana in November, 1795, praying for a
grant in full property to him and his heirs of ten thousand
superficial arpents of land, with the special permission to locate
in separate pieces upon different mines of what nature they may be
-- salines, mill seats, and any other place that shall appear
suitable to his interest -- without obliging him to make a
settlement, which grant as prayed for was granted by the said
governor general 10 February, 1796. He alleges that he became owner
of the grant by purchase from St. Vrain and wife before the act of
1824, and has caused several parts thereof to be located in
Missouri, which he specifies in the petition, and prays that the
validity of his claim may be examined by the court.
On the face of the petition, the petitioner shows a case within
the provisions of the first section of the law of 1824, which
directs the court to take jurisdiction to hear and determine
it.
The petition of St. Vrain to the Governor General of Louisiana
states that misfortunes had induced him to settle in Louisiana at
St. Genevieve, where he had rendered himself useful in repressing a
certain party; that his knowledge of mineralogy had induced his
father to make over to him the contract which he had with the
government for the supply of a certain quantity of lead. To enable
him to comply with this contract and to insure him an honorable
existence, he prays for a grant as specified in the petition of the
appellant. At the foot of this petition there was the following
writing.
"New Orleans, 10 February, 1796. Granted."
"THE BARON DE CARONDELET"
The original petition, with this entry upon it, was produced
before the land commissioners in Missouri in 1806. The signature of
the baron was proved to be in his handwriting, and the residue to
be that of the secretary of the government. The original was lost
in 1807 or 1808, but a copy certified from the land records was
produced at the hearing in the court below, and competent
evidence
Page 35 U. S. 329
was given of the existence and loss of the original; the
district court did not, in its decree, decide on the effect of this
evidence, nor do we think it necessary to consider it; for the
purposes of this case, the genuineness of the grant and its loss
are assumed. On 6 February, 1808, St. Vrain and wife, in
consideration of $5,000, conveyed the concession to the petitioner
by deed duly recorded.
In 1811, the petitioner caused a survey of two hundred and
ninety-four arpents of land to be made by a private surveyor
pursuant to the concession to St. Vrain; other surveys were
afterwards made in like manner of several tracts specified in the
record, varying in quantity from one thousand two hundred to fifty
arpents, several of them including lead mines, the one for fifty
acres being on a mill seat. The claim was acted on by the United
States board of land commissioners in Missouri, which, in December,
1811, gave its opinion that it ought not to be confirmed. The
District Court of Missouri also rejected it by its final decree,
from which the petitioner has taken an appeal to this Court in the
manner directed by the act of 1824.
At January term, 1830, this cause, with that of Soulard, was
very ably and elaborately argued by the counsel on both sides; they
were the first cases which came before us since the law giving
jurisdiction to the District Court of Missouri to decide on claims
to land in that state, subject to an appeal to this Court. The
subject was a new one both to the Court and the bar; the titles and
tenures of land in Louisiana had never undergone a judicial
investigation which could give the Court such information as could
lead it to any satisfactory conclusion. Hence, and notwithstanding
the full argument in these cases, there seemed to be much matter
for consideration in the developments to be made of the laws,
usages, and customs of Spain in relation to grants of land in
Louisiana. These cases were held under advisement.
At the next term, finding that appeals had been made in cases
from Florida arising under a law authorizing a judicial decision on
claims to land in that territory on the consideration of which the
whole subject of Spanish titles would be thoroughly examined, these
causes were further postponed till the ensuing term. One of the
Florida cases was then decided on principles which did not apply to
them, and it was thought that still further information must be
presented in some of the numerous cases before us for final
adjudication,
Page 35 U. S. 330
and a further postponement was therefore deemed advisable. At
each successive term since, it has been our duty to decide on
claims to land under the government of Spain, if not in all the
aspects in which they can be presented, at least in those
sufficiently varied as to enable us to decide this case on
principles entirely satisfactory to ourselves. It was never doubted
by this Court that property of every description in Louisiana was
protected by the law of nations, the terms of the treaty, and the
acts of Congress, nor that in the term
"'property' was comprehended every species of title, inchoate or
perfect, embracing those rights which lie in contracts; 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.
512. Such in 1830 was our general view of the Missouri cases. Our
difficulty was in ascertaining the powers of the governor general,
of the intendant and his subdelegates, and the local governors or
commandants of posts to make grants of lands; what acts by either
operated by way of
grant, concession, warrant or order of
survey, so as to sever any portion of land from the royal
domain and create in it a right of property in an individual. The
law submitting claims of either of these four descriptions to
judicial cognizance confined the court to such as had been legally
made, granted, or issued before 10 March, 1804, which were
protected by the treaty of 1803 and might have been perfected into
a complete title under the laws, usages, and customs of Spain if
she had continued to hold the government of the province.
It was also made the duty of the court to conduct the
proceedings on all petitions according to the rules of a court of
equity, and to decide upon them according to the principles of
justice and the laws and ordinances of the government under which
the claim originated. In thus consenting to be made defendants in
equity at the suit of every claimant for land in Missouri, the
United States waived all rights which the treaty could give it as
purchaser for a valuable consideration without notice. It bound
itself to carry into specific execution by patent every grant,
concession, warrant, or order of survey which, before 4 March,
1804, had created any legal or equitable right of property in the
land so claimed, so that in every case arising under the law, one
general question was presented for the consideration of the court:
whether in the given
Page 35 U. S. 331
case a court of equity could, according to its rules and the
laws of Spain, consider the conscience of the King to be so
affected by his own or the acts of the lawful authorities of the
province that he had become a trustee for the claimant and held the
land claimed by an equity upon it amounting to a severance of so
much from his domain before 10 March, 1804, in Missouri and 24
January, 1818, in Florida, the periods fixed by the law in one case
and the treaty in the other.
In all our adjudications on either class of cases, we have
considered the term "lawful authorities" to refer to the local
governors, intendants, or their deputies; "the laws and ordinances
of Spain" as composed of royal orders, of those of the local
authorities, and the usage and custom of the provinces,
respectively, under Spain; that any inchoate or perfect title so
made, granted or issued is legally made by the proper authorities.
We have as uniformly held that in ascertaining what titles would
have been perfected if no cession had been made to the United
States, we must refer to the general course of the law of Spain, to
local usage and custom, and not to what might have been or would
have been done by the special favor or arbitrary power of the King
or his officers. It has also been distinctly decided in the Florida
cases that the land claimed must have been severed from the general
domain of the King by some grant which gives it locality by its
terms, by a reference to some description, or by a vague general
grant, with an authority to locate afterwards by survey making it
definite, which grant or authority to locate must have been made
before 24 January, 1818. That where the grant is descriptive, a
survey in any other place is unauthorized, and that where a survey
was made of part of a descriptive grant before that time, an order
or permission to survey the residue elsewhere, made afterwards, is
void, in contravention of the terms of the treaty and the act of
Congress, it being in effect and substance a new grant, made after
the power of the governor to make grants had ceased. That where the
grant was specific, a survey might be made after the time fixed by
the treaty, and where the grant was vague or contained an authority
to locate which was executed by a survey made before, it was valid.
United States v.
Clarke, 8 Pet. 466-467.
The same principles apply to the cases in Missouri, between
which and those from Florida there is (generally speaking) no
other
Page 35 U. S. 332
difference than that as to the latter the treaty annuls all
claims acquired after 24 January, 1818, while the act of 1824
limits the jurisdiction of the court to cases of claims made in
virtue of grants, &c., made before 10 March, 1804. This
limitation on the power of the court as effectually prohibits its
confirmation of grants, &c., subsequently made, or titles
acquired, as if they had been declared void by the terms of the law
or the Louisiana treaty.
In his petition to the governor general, St. Vrain asks for a
grant in full property of ten thousand arpents, to be located at
his pleasure as to place, time or quantity; it was considered by
him as authorizing locations throughout Louisiana not only while
under the government of Spain, but after its cession to the United
States and its division into the two territories of Orleans and
Missouri. So it was considered by the petitioner Smith after he
purchased from and held under St. Vrain, and such appears to be the
true construction of the petition. The grant is contained in the
one word "granted," which must be referred to everything prayed for
in the petition; its object was not to obtain a grant merely in the
upper province, or it would have been addressed to the local
governor; it must have been intended to extend to both provinces,
as it was addressed to the governor general, whose power was
general over both. He, by his grant without qualification or
restriction, has acted in the plenitude of his authority, which
authorizes no construction that could limit it to the upper
province more than to the lower; a limitation to either would be by
an arbitrary decision, without rule; so would any construction
cutting down the concession by striking from it any right or
privilege prayed for.
This, then, was the nature and effect of the grant, to vest in
the petitioner a title in full property to all the lands in either
province containing saline, mineral, or where there were mill
seats, which he might at any time locate in quantities to suit his
own pleasure or at any other place that might suit his
interest.
When the cession of Louisiana was completed by the surrender to
the United States, the title of St. Vrain remained precisely as it
was at the date of the grant in 1796; there is no evidence that he
had done or offered to do any act or made any claim or demand
asserting or affirming any right under the grant. With all the
ungranted salt springs, lead mines, mill seats, and valuable spots
in Louisiana at his command, he held his grant dormant in his
pocket for eight
Page 35 U. S. 333
years under the Spanish government, without making or attempting
to make one location under it.
On 4 March, 1804, then, no land had been granted to St. Vrain;
there was not an arpent on which his right had any local
habitation; until a location was made, it was a mere authority to
locate, which he might have exercised at his pleasure, both as to
time and place, by the agency of a public surveyor, authorized to
separate lands from the royal domain by a survey pursuant to a
grant, warrant, or order of survey. At the time of the cession,
nothing had been so severed, either by a public or private
surveyor, or any act done by which the King could be in any way
considered as a trustee for St. Vrain for any portion of the ten
thousand arpents, and there was no spot in the whole ceded
territory in which he had or could claim an existing right of
property. An indispensable prerequisite to such right was some act
by which his grant would acquire such locality as to attach to some
spot; until this was done, the grant could by no possibility have
been perfected into a complete title.
It is clear, therefore, that the integrity of the public domain
had in no way been affected by this grant in March, 1804. The only
pretense of any right was one which extended to every vacant spot
in Louisiana, to be located in future at the option of the grantee;
it so continued till 1811, when the first location was made by the
petitioner Smith by a private survey on part of the lands he
claims. It is evident that he had no other right to this tract of
land in March, 1804, than he had to all the vacant lands in
Louisiana. Had his claim been presented to the district court while
it remained thus indefinite and incapable of definition, there
would have been no case for its jurisdiction, under the act of
1824, to confirm or reject the claim. The sixth section provides
that on the confirmation of any claim, the surveyor should cause
the land specified in the decree to be surveyed, a plot thereof to
be made, delivered to the party, and a patent to issue therefor; if
rejected, the seventh section directs "the land specified in such
claim shall forthwith be held and taken as a part of the public
lands of the United States."
By the eleventh section, if the lands decreed to any claimant
have been sold or disposed of by the United States or have not been
located, the party interested may, after the land has been offered
at public sale, enter the like quantity of land in any land office
of the state. These provisions show clearly that Congress did not
contemplate the submission of any claims to the court except such
as, on confirmation, could be
Page 35 U. S. 334
surveyed and patented, and on rejection, would be thenceforth
held and taken to be a part of the public lands, though cases of
claims, to make a prospective severance of particular tracts from
the general domain when the grant was wholly indefinite would
require a distinct provision. If confirmed, no land could be
specified in the decree,; none could be surveyed; nor could lands
which never had been the subject of specific claim, described in no
grant or survey, become a part of the public lands, within the
meaning of the law after the decree, if there had not been some
assertion by the claimant of their having been once his property,
by a severance by grant.
In providing for a case where the land had not been located, it
was the evident intention to refer to grants of land by some
description before 10 March, 1804, which had not been surveyed; it
is certain that it could not apply to this. Should this grant be
confirmed, it must follow its tenor and purport; the decree must
affirm its validity not merely to the quantity of land, but with
the right of location according to its express terms, which gives
St. Vrain the unlimited choice of the most valuable portions of the
public lands. It would be in direct violation of those rights which
constitute the great value of the claim, which were not the
quantity of land granted, but the unlimited power of selection, to
make a decree that they were secured to him by the law of nations,
the treaty and acts of Congress, as inviolable, and in the same
decree to limit him to the selection of such lands in Missouri as
should have been offered at public sale, without any bid beyond the
minimum price of the public lands. This would necessarily deprive
him of the very spots to which he would be entitled under our
decree whenever he might choose to appropriate them by a lawful
survey.
We are therefore clearly of opinion that no claim to land in
Missouri can be confirmed under the acts of 1824 or 1828 unless by
a grant, concession, warrant, or order of survey for some tract of
land described therein, to make it capable of some definite
location, consistently with its terms, made, granted or issued
before 10 March, 1804, or by an order to survey any given quantity,
without any description or limitation as to place, which shall have
been located by a survey, made by a proper officer before that
time, as was
Soulard's Case. Spain never permitted
individuals to locate their grants by mere private survey. The
grants were an authority to the public surveyor or his deputy to
make the survey as a public trust, to protect the royal domain from
being cut up at the pleasure
Page 35 U. S. 335
of the grantees. A grant might be directed to a private person,
or a separate official order given to make the survey, but without
either, it would not be a legal execution of the power. No such
survey was made on this grant, so that it had not attached to the
land claimed at the time named in the law.
We have then to inquire whether a private survey made in 1811
could be so connected with the grant of 1796 as to operate by
relation to make out a title to the land claimed in March,
1804.
The laws of the United States give no authority to an individual
to survey his grant or claim to lands; he may mark lines to
designate the extent and bounds of his claim, but he can acquire no
rights thereby. The only effect which we can give to this private
survey is to consider it as a selection by the petitioner of that
piece of land as a part of what he was entitled to locate in virtue
of his general grant.
As the United States has put itself in the place of Spain, we
must view this selection, thus made, as if Louisiana had never been
ceded to it. But neither in this or the record of any of the cases
which have been before us have we seen any evidence of any law of
Spain, local regulation, law or usage, which makes a private survey
operate to sever any land from the royal domain. On the contrary,
all the surveys which have been exhibited in the cases decided were
made by the surveyor general of the province, his deputies, the
special order of the governor or intendant, or those who
represented them. No government gives any validity to private
surveys, of its warrants or orders of survey, and we have no reason
to think that Spain was a solitary exception, even as to the
general domain, by grants in the ordinary mode, for a specific
quantity, to be located in one place.
A fortiori, where a
grant,
sui generis, might by its terms be so split up as
to cover every saline, mineral, and water power site in the whole
territory. Of all others, the survey of such a grant ought to be
made by an authorized officer. If the grant was a lawful authority
for such selections, its execution by survey ought to be so
supervised that the selections should be made in a reasonable time,
quantity of land, and number of spots selected.
We cannot believe that Spain would have ever consented to the
exercise of such a right by an individual over all the most
valuable portions of her domain when she did not permit the
appropriation of her ordinary lands to be so made; still less that
a claim of this description would have been perfected into a
complete title had she remained in possession of Louisiana, or that
it ought so to have been.
Page 35 U. S. 336
The claim was unreasonable in its nature, excluding the
government from all control over locations made on a sweeping
grant, which by small subdivisions might be a monopoly of every
valuable spot in both provinces. Such a grant with such privileges
has no equity in it as against the government of Spain, or the
United States standing in its place. There appears no law, usage,
or custom to authorize it, and it is incompatible with those rights
which every government reserves to itself of directing by its own
officers the surveys of its lands either on specific grants or
orders of survey for vacant lands.
The negative evidence in the record is also powerful to lead to
the same conclusion. The unprecedented privilege granted to St.
Vrain was of immense value if asserted in time, before other
appropriations were made of the places of which he had the right of
selection, without limit, but it would become less valuable by
waiting till others had obtained grants for them. Neither he nor
the petitioner Smith has in any way accounted for the delay. They
have shown no selection made, no application to a public or even
private surveyor to make any survey during the eight years which
elapsed from the date of the grant till the cession. The grant does
not appear to have been recorded or entered in any Spanish office,
exhibited to any Spanish officer, or any notoriety given to it by
any assertion of right under it. With such powerful reasons for
action, it is not a harsh construction of this conduct of St. Vrain
to attribute it to the conviction that the Spanish authorities
would not have sanctioned his claim. The power of the governor
general being supreme, his power would not have been invoked in
vain if the grant was good, and no officer in the province would
have disobeyed his order to survey on the selections being
made.
It is not for us to say what, it any, acts would have given St.
Vrain an equity in any definite piece of ground; it suffices for
this case that he had none while the country was under the
government of Spain, and that the petitioner Smith has acquired
none since the cession by any acts which he has done or caused to
be done in making the location specified in his petition.
It is for another branch of the government to decide on the
claims of the petitioner under the third section of the act of
1828. With that we have nothing to do; our duty terminates by a
decision on the validity of his title by any law, treaty, or
proceedings under them according to those principles of justice
which govern courts of equity. Being clearly of opinion that the
claim of the petitioner to any of the
Page 35 U. S. 337
land claimed by his petition is not valid, and ought not to be
confirmed,
The decree of the district court is affirmed.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Missouri and was argued by counsel, on consideration whereof it is
ordered, adjudged, and decreed by this Court that the decree of the
said district court in this cause be and the same is hereby
affirmed.