A concession of thirty-eight thousand acres of land was made in
1817 by the Governor of East Florida to F. M. Arredondo in
consideration of services to the Crown of Spain. The petition to
the governor asking for the grant described the situation of the
land and asks, as the survey could not be made for want of
surveyors, and the surveyor appointed by the government having
other occupations, could not attend, that the issuing of the title
should be suspended until the plot of the land could be obtained,
but that in the meantime the decree of the governor on the petition
should serve the petitioner as the title. To this application the
assent of the governor was given by a decree ordering a concession
in conformity with the petition. No survey was made under the
concession while Florida remained under the dominion of Spain or at
any time after the cession of the territory to the United States.
The Court held that want of a survey does not interfere with the
title of a grantee. The land granted must be taken, as near as may
be, to place described in the petition, and cannot be taken
elsewhere, and if it cannot be found there, the grantee has no
claim to an equivalent, and if it shall be found to interfere with
previous grants to third persons, the concession will be lessened
in quantity according to the extent of the rights of third persons,
and an equivalent for such diminution cannot be surveyed
elsewhere.
The acts of Congress for ascertaining claims and titles to lands
in Florida, whilst they recognize patents, grants, concessions, or
orders of survey as evidence of title when lawfully made, do not
permit, in case of a deficiency in the quantity from any cause
whatever, the survey to be extended on other land.
MR. JUSTICE WAYNE delivered the opinion of the Court.
This is an appeal from the Superior Court of East Florida, which
confirmed the claim of the appellees to a cession or grant of land
made by the Governor of Florida to Fernando de la Maza
Arredondo.
The concession was made on 24 March, 1817, for thirty-eight
thousand acres of land in absolute property, without prejudice to a
third party, situated on the two banks of a stream which enters the
Suwanee River called Alligator Creek, beginning at about seven
miles west of an Indian town called Alligatortown, situated
northwestwardly about forty miles distant from Payrestown, and
about eighty miles from Buena Vesta, which parts of the country are
known under the name of Alachua. In the petition for this
concession, the petitioner asks, in consideration that the
situation and then state of the province did not permit the survey
and demarcation of the tract to be made, and also the survey could
not be made for want of a surveyor -- the surveyor appointed by the
government having other occupations which prevent him from
repairing to that part of the province -- he asks the governor to
suspend the issuing of the title to the property until the plot of
the said tract could be obtained, but in the meantime that the
grant which the governor might be pleased
Page 38 U. S. 134
to give him, by his decree, should serve him as the title
thereto, to which the governor responds by declaring that the
titles corresponding to the concession will be issued to the
petitioner as soon as he shall present the plot made by the
surveyor, and in the meantime that his decree shall be
"an equivalent thereof in all its parts, of which a certificate
shall be given to the petitioners, authenticated in due form, in
order that the petitioner may prove said grant and enjoy the said
lands and dispose of them as he sees fit."
The authenticity of the petition and concession is proved by
such testimony as this Court has always deemed sufficient for such
purpose. It appears also, by documents in the record, which are
mentioned in the appellee's petition to the court for the
confirmation of this concession or grant, that after the concession
was made, the grantee, for a full and valuable consideration, sold
and conveyed this tract of land, and the title in fee to the same
was vested in Moses E. Levy, one of the appellees in this cause,
and that the said Levy did afterwards by indenture grant, bargain,
and sell, by way of exchange for other lands, the one undivided
moiety or half part of said land and its appurtenances, in fee
simple to Fernando and Joseph de la Maza Arredondo. It does not
appear by the record that a survey was made of this concession
whilst Florida continued a province of Spain, or that it has been
since surveyed. Nor does it appear by any evidence in the cause
that the locality of the concession has been definitely
ascertained.
We do not consider the want of a survey as interfering with the
right of the party to the land granted, but it must be taken near
as may be, as it is described in the petition -- where it was asked
for, and as it was granted, and cannot be taken elsewhere. If it
cannot be found there, the appellees have no claim to an
equivalent. Or if, upon the survey, it shall be found to interfere
with previous grants to third parties, the concession will be
lessened in quantity according to the extent of the rights of third
parties, and an equivalent for such diminution cannot be surveyed
elsewhere. Such are the terms of the concession that the land is to
be surveyed "in the place where the petitioner designates, without
prejudice to a third party." It gives no right to an equivalent or
another location if it cannot be found at or near the place
designated. An equivalent is not secured by the concession in
terms, nor is it by the customs or usages of Spain, nor by any law
or ordinance of Spain. And it is proper here to remark that the
acts of Congress for ascertaining claims and titles to land in
Florida, whilst they recognize patents, grants, concessions, or
orders of survey, as evidence of title when lawfully made, do not
permit, in case of a deficiency in the quantity from any cause
whatever, the survey to be extended on other lands. But this
concession calls for a natural object, a creek, and is designated
as beginning on the creek, about seven miles west of an Indian town
called Alligatortown. A survey may then be made so as to give the
appellees the benefit of the concession according to the
description in the petition, supposing that Alligator
Page 38 U. S. 135
Creek exists and that Alligatortown can be found, for by running
a line due west from the center of the town until it strikes the
creek, then extending that line west for a base line of the survey,
making the center of the creek equidistant from its extremities,
and then running down the creek on both sides of it, towards the
Suwanee, without regard to the windings of the creek, being cut by
the downward lines, the concession may be described by survey so as
to answer the description of being on the two banks of the stream
or creek. Or in the event of no such creek existing within or at
the distance of seven miles from Alligatortown or at a reasonable
distance over seven miles to the west of it, then by beginning the
survey seven miles west of the town, making a line due west the
base of the survey, and running from its extremities towards the
Suwanee or in any other direction; if it shall be found by running
them towards the Suwanee the rights of third parties would be
interfered with, then the survey of thirty-eight thousand acres
could be made so as to give the appellees the benefit of the
concession in accordance with those liberal and equitable
principles uniformly applied by this Court in the construction of
claims to land in Florida granted before the treaty with Spain
transferring Florida to the United States. If, however, neither
Alligator Creek can be found nor any creek to the west of
Alligatortown entering into the Suwanee within or at seven miles
distance from the town or a reasonable distance therefrom, and if
Alligatortown cannot be found, then it is the opinion of this Court
that the remaining description in the petition of the locality of
the concession is too indefinite to enable a survey to be made, and
that the appellees can take nothing under the concession. We have
been the more particular upon this point that the mandate which
this Court shall give to have a survey made may not be
misunderstood by the officers whose duty it will be to have the
survey executed. The decree of the Superior court of East Florida
is
Affirmed.
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 adjudged and
decreed by this Court that the decree of the said Superior Court in
this cause, so far as it declares the claim of the petitioners to
be valid, be and the same is hereby affirmed in all respects, and
that a survey be made of the lands contained in the said
concession, according to the terms thereof, for the number of
acres, and at the places therein designated, provided it does not
interfere with the rights of third parties. And it is further
ordered by the Court that a mandate be issued to the surveyor of
public lands directing him to do and cause to be done all the acts
and things enjoined on him by law and as required by the opinion
and decree of this Court in this case, and that this case be
remanded to the said superior court for further proceedings to be
had therein in conformity to this decree and the opinion of this
Court, which must be annexed to the mandate.