United States v. Burgevin, 38 U.S. 85 (1839)

U.S. Supreme Court

United States v. Burgevin, 38 U.S. 13 Pet. 85 85 (1839) United States v. Burgevin

8 U.S. (13 Pet.) 85

APPEAL FROM THE SUPERIOR

COURT OF EAST FLORIDA

Syllabus

A grant of land in East Florida by the Spanish governor on the condition that a water saw mill should be erected on the land declared void, the condition of the grant not having been performed according to the terms of the grant.

Andrew Burgevin, on 21 May, 1829, presented a petition to the judge of the Superior Court for the District of East Florida claiming a tract of land of five miles square, or sixteen thousand acres, situated in the District of East Florida under a title derived from a grant made to him by the Spanish government on 13 January, 1818.

The petitioner addressed by Andrew Burgevin to Governor Coppinger, asked for the grant for the purpose of erecting a water saw mill on the same with a view not only to remedy the notable want of lumber which is felt at that place, but also to supply the export trade of that article so much recommended to the government of Florida by the superior authority of Havana.

The grant was made to Andrew Burgevin, in consideration of the advantages and benefit which the province would receive from the proposed establishment,

"with the precise condition that until he erects said machinery, said grant will be considered as null and void and without effect or value until such an event takes place."

The answer of the district Attorney of the United States, among other objections to the allowance of the claim, states that the condition of the grant has not been complied with by the grantee --

"that the said Andrew Burgevin has not built, constructed, or erected the said water saw mill on the said tract of land, but that he has always hitherto wholly failed and neglected to construct or erect the same or to comply with and perform the said conditions in any way or manner whatever. The answer denies that the said Andrew Burgevin has been prevented from constructing and erecting said mill and proceeding in the objects of said grant, owing to the general disturbed and unsettled state of the country, and farther, if any such disturbed and unsettled state of the country at any time existed, it was merely temporary and of very short continuance, whereas more than eleven years have elapsed (as appears by the showing of the said Andrew Burgevin himself) since the date of the said supposed grant, during any part of which period he might, with due and reasonable diligence, have proceeded to erect and construct the said water saw mill on the said tract of land, in accordance with the objects of said supposed grant."

The Superior court of East Florida gave a decree in favor of the petitioner, and the United States prosecuted this appeal.

Page 38 U. S. 86

MR. JUSTICE WAYNE delivered the opinion of the Court.

This is an appeal from the Supreme Court of the Eastern District of Florida confirming the right of the appellee to a tract of land under a concession or grant from the Governor of Florida dated before the treaty of 22 February, 1819, between the United States and Spain.

We think the concession or grant identical with that in Kingsley's Case, in 12 Pet. 476, and that it is controlled by the principles laid down by the Court in that case. Kingsley's Case was well considered by this Court -- has been reconsidered maturely upon the argument of counsel made in the case before us -- but we see no reason to modify or change in any particular what was then decided or why this case should be taken out of the application of that case. The decree of the Superior court of East Florida is therefore

Reversed.

This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida

Page 38 U. S. 87

argued by counsel. On consideration whereof it is the opinion of this Court that the petitioner having failed to fulfill the condition of the grant that the said grant or concession is null and void and that the said petitioner has no right or title to the land. Whereupon it is now here decreed and ordered by this Court that the decree of the said Superior Court in this cause be and the same is hereby reversed and annulled, and that this cause be and the same is hereby remanded to the said Superior Court with directions to enter a decree in conformity to the opinion of this Court.