Under the former government of Louisiana, the regulations of
O'Reilly, Gayoso, and Morales recognized the equitable claim of the
owners of tracts of land fronting on rivers &c., to a portion
of the public lands which were back of them, and after the cession,
the United States did so also.
The Act of Congress passed 3 March, 1811, 2 Lit. & Brown's
ed. 662, extended to the front owner a preference to enter the land
behind him. That act also provided that where, owing to a bend in
the river, each claimant could not obtain a tract equal in quantity
to the tract already owned by him, the principal deputy surveyor of
each district, under the superintendence of the Surveyor of the
Public Lands South of the State of Tennessee should divide the
vacant land amongst the claimants in such manner as to him might
seem most equitable.
The Act of March 2, 1805, had extended the power of the surveyor
of lands south of Tennessee over the Territory of Orleans, and the
Act of April 27, 1806, had directed him to appoint two principal
deputies, one for each district of the Territory of Orleans.
The Act of March 3, 1831, directed the appointment of a Surveyor
General of Public Lands in Louisiana, after 1 May, 1831.
In March, 1832, therefore, the Surveyor of Public Lands South of
Tennessee had no power to approve a survey.
The act of 1811 reserved for the public all such back lands as
were not correctly taken up under that act by the proprietors of
river fronts, and those who did not enter their claims in time did
not lose whatever equity they may have had before the passage of
the act.
An unauthorized survey by one of the claimants did not confer
upon him any additional rights.
In executing the acts of 1820 and 1832, claimants were allowed
to pay for the largest amount which they claimed, but the precise
amount due on the exact quantity of land to which they were
entitled could not appear until the final survey.
When the land was laid out into ranges, townships &c., the
survey of township No. 11, approved by H. S Williams, Surveyor
General of Louisiana, settled the rights of parties in that
township.
A possession of any part of these back lands anterior to this
survey cannot be set up as a defense under the laws of Louisiana,
because the lands belonged to the United States, and those persons
in possession were trespassers.
These were petitory actions, according to the practice of
Louisiana, brought by the plaintiffs in error against Barrett to
recover some land, and as they involved the same questions of law,
they were consolidated in the courts of that state.
By referring to the diagram which will be found on the next
page, it will be seen that Jourdan and Landry were the owners of
land fronting on the Mississippi River and running back about forty
arpents. There were nearly forty other proprietors similarly
situated, between
a and
c, whose location it is
not necessary to insert. Their lands were all bounded in the rear
by a line running nearly parallel with the river, so as to include
the quantity called for in their respective grants.
Page 45 U. S. 170
The facts in the case were these.
On 3 March, 1811, Congress passed an act entitled
"An act providing for the final adjustment of claims to lands,
and for the sale of the public lands, in the Territories of Orleans
and Louisiana and to repeal the Act passed for the same purpose and
approved February 16, 1811."
2 Lit. & Brown's ed. 662.
image:a
Page 45 U. S. 171
The fifth section was as follows:
"5th. That every person who, either by virtue of a French or
Spanish grant recognized by the laws of the United States, or under
a claim confirmed by the commissioners appointed for the purpose of
ascertaining the rights of persons claiming lands in the Territory
of Orleans, owns a tract of land, bordering on any river, creek,
bayou, or watercourse in the said territory, and not exceeding in
depth forty arpents, French measure, shall be entitled to a
preference in becoming the purchaser of any vacant tract of land
adjacent to, and back of, his own tract, not exceeding forty
arpents, French measure, in depth, nor in quantity of land that
which is contained in his own tract, at the same price, and on the
same terms and conditions, as are or may be provided by law for the
other public lands in the said territory. And the principal deputy
surveyor of each district, respectively, shall be, and he is,
hereby authorized, under the superintendence of the Surveyor of the
Public Lands South of the State of Tennessee, to cause to be
surveyed the tracts claimed by virtue of this section, and in all
cases where, by reason of bends in the river, lake, creek, bayou,
or watercourse bordering on the tract, and of adjacent claims of a
similar nature, each claimant cannot obtain a tract equal in
quantity to the adjacent tract already owned by him, to divide the
vacant land applicable to that object between the several claimants
in such manner as to him may appear most equitable, provided,
however, that the right of preemption granted by this section shall
not extend so far in depth as to include lands fit for cultivation
bordering on another river, creek, bayou, or watercourse. And every
person entitled to the benefit of this section shall, within three
years after the date of this act, deliver, to the register of the
proper land office, a notice in writing, stating the situation and
extent of the tract of land he wishes to purchase, and shall also
make the payment and payments for the same at the time and times
which are or may be prescribed by law for the disposal of the other
public lands in the said territory; the time of his delivering the
notice aforesaid being considered as the date of the purchase. And
if any such person shall fail to deliver such notice within the
said period of three years, or to make such payment or payments at
the time above mentioned, his right of preemption shall cease and
become void, and the land may thereafter be purchased by any other
person in the same manner and on the same terms as are or may be
provided by law for the sale of other public lands in the said
territory."
On the 11th of May, 1820, Congress passed another act, 3 Lit.
& Brown's ed. 573, entitled, "An act supplementary to the
several acts for the adjustment of land claims in the State of
Louisiana," the seventh section of which was as follows.
"That the fifth section of the Act of 3 March,
Page 45 U. S. 172
1811, entitled 'An act providing for the final adjustment,'
&c., be, and the same is, hereby revived and continued for the
term of two years from and after the passing of this act."
On 12 April, 1822, Bringier, under whom Barrett, the defendant
claimed, filed the following application.
"To the Register of the Land Office for the Eastern District of
Louisiana, at New Orleans."
"SIR -- In virtue of an Act of Congress, dated 11 May, 1820, I
apply to become the purchaser of a tract of land adjacent to and
back of a front tract already owned by me, which said front tract
contains 27 arpents 13 toises and 2 feet front, and forty arpents
in depth, bounded as follows,
viz., front on the left bank
of the Mississippi, on the upper side by land of Baptiste Loviere,
and below by lands of Paul Le Blanc. This land, composed of four
tracts, confirmed in the name of Alexis Cesar Bonremy and in the
name of James Melancon. Two arpents, on the lower side, have been
sold. The said back land, now claimed by right of preemption,
extends in depth _____ arpents, beginning at the rear of the said
front tract, and contains five hundred and ten superficial acres,
not being a greater quantity than is contained in my front tract,
and does not extend so far back as to include any land fit for
cultivation, bordering on any river, creek, bayou, or
watercourse."
"[Signed] ML. DORADON BRINGIER"
"New Orleans, April 12, 1822"
On 13 April, 1822, Bringier paid to the receiver $637.50, as the
price of the land.
On 17 May, 1822, Harper, the register, issued the following
certificate.
"I certify, that from the records in my office, expressing the
quantity of land contained in the applicant's front tract (the
surveys in this district not having been executed), and in virtue
of the laws in this case made and provided, it appears the said
applicant is entitled to the quantity of land for which he has
applied,
viz., five hundred and ten superficial acres, on
paying the price of one dollar and twenty-five cents per acre."
"[Signed] SAMUEL H. HARPER,
Register"
On 17 December, 1822, John Wilson, subscribing himself principal
deputy surveyor for that district, surveyed the tract of land at
the request of Bringier, who took possession of it. It is
unnecessary to state the mesne conveyances by which the title was
passed, through sundry persons, from Bringier to Barrett, who was
in possession at the institution of the present suits.
In 1829, the township and sectional lines were run for the
first
Page 45 U. S. 173
time over this district in the mode pursued in running out other
public lands of the United States.
On 10 June, 1830, a survey was completed under the authority and
with the approbation of A. T. Rightor, principal deputy surveyor of
the exterior boundaries of the township and of the lands in
question, together with others, which survey was reexamined and
approved by Gideon Fitz, Surveyor of Public Lands South of
Tennessee, on 9 March, 1832. This survey differed in some degree
from the one previously made by Wilson, although agreeing with it
in substance, and being adopted by Bringier and his grantees as the
basis of their title, has been followed in the preceding
diagram.
On 15 June, 1832, Congress passed another act, 4 Lit. &
Brown's ed. 539, entitled "An act to authorize the inhabitants of
the State of Louisiana to enter the back lands." It did not refer
to either of the two preceding acts, but in substance and nearly in
the same words reenacted the fifth section of the act of 1811,
limiting the time of making application to three years from the
date of the act.
On 9 August, 1834, Jourdan, one of the plaintiffs in error,
obtained from the receiver the following certificate.
"RECEIVER'S OFFICE, SO. EAST. DIST. LA."
"New Orleans, August 9, 1834"
"Received from Noel Jourdan, of the Parish of St. James, the sum
of three hundred and thirty-six 80/100 dollars, being in full of
the purchase money of his preemption right by virtue of an act of
Congress authorizing the inhabitants of Louisiana to enter their
back lands, approved 15 June, 1832, to a tract of land adjacent to
and back of his front tract, situate in township No. 11, range No.
3 east, and containing two hundred and sixty-nine 44/100
superficial acres, at one dollar and twenty-five cents, as per
register's certificate, numbered No. 9."
"[Signed] MAURICE CANNON,
Receiver of Public
Moneys"
On 8 March, 1836, Landry, the other plaintiff in error, obtained
the following certificate.
"No. 520. RECEIVER'S OFFICE, SO. EAST. DIST. LA."
"New Orleans, 8 March, 1836"
"Received from Joseph Landry, of the Parish of St. James, the
sum of one hundred and ninety-two 76/100 dollars, being in full of
the purchase money of his preemption rights, by virtue of an act of
Congress, authorizing the inhabitants of Louisiana to enter their
back lands, approved 15 June, 1832, to a tract of land adjacent to
and back of his front tract, situate in township No. 11, range
Page 45 U. S. 174
No. 3 east, and containing one hundred and fifty-four 21/100
superficial acres, at one dollar and twenty-five cents, as per
register's certificate, numbered 520, and being described as
section No. 19."
"[Signed] MAURICE CANNON,
Receiver of Public
Moneys"
In February, 1838, Jourdan and Landry filed separate petitions
in the District Court for the First Judicial district of the State
of Louisiana, claiming their respective back lands. Barrett, who
was then in possession of the tract surveyed for Bringier, answered
the petition and called in warranty, according to the Louisiana
practice, all the intermediate grantors between Bringier and
himself and Bringier also. They all responded to the call, and
various evidence was taken and filed in the causes, which, as has
been already mentioned, were consolidated and prosecuted
together.
On 22 March, 1838, the court adjudged and decreed that judgment
should be entered for Barrett, the defendant; an appeal being made
to the Supreme Court of Louisiana, that court, on 21 January, 1839,
affirmed the judgment, to review which a writ of error brought the
case up to this Court.
Page 45 U. S. 177
MR. JUSTICE CATRON delivered the opinion of the Court.
The record brings before us two petitory actions, one of Landry
against Barrett and the other of Jourdan against the same
defendant. The state district court of Louisiana adjudged the title
of Barrett the better, and for this reason decided in his favor in
both actions, but in that of Landry it was also held that the title
to the land he claimed was invalid because he produced no other
evidence of claim than the receipt of the receiver above set forth,
dated 8 March, 1836; that the Act of June 15, 1832, limited his
right to purchase to three years, and not having filed his notice
of claim, and paid his money, until 8 March, 1836, he came too
late, and for this reason also the petition must be dismissed. The
judgment being affirmed generally by the Supreme Court of
Louisiana, and being opposed to the authority exercised by the
officers of the United States, acting in virtue of acts of
Congress, it becomes our duty to examine whether the judgment below
was proper on this ground. We find the district court overlooked
the Act of February 24, 1835, which extended the time to 15 June,
1836, to owners of front tracts to become purchasers by preference
of the back tracts adjacent to those owned by them, so that the
purchase made by Landry on 8 March, 1836, was in time. It follows
the claims of Landry and Jourdan are alike, and the opposing claim
of Barrett, being the same as to each of the petitioners, the
controversy may be treated as one suit. It depends on mixed
questions of law and fact, both having been submitted to the courts
below for their judgment without the aid of a jury, and as the
facts giving rise to the controversy call for construction of acts
of Congress to give the facts effect, they come before this Court
for its action under the 25th section of the Judiciary Act. This is
the settled doctrine here, as will be seen by the cases of
Pollard's Heirs v.
Kibbie, 14 Pet. 353,
City of
Mobile v. Eslava, 16 Pet. 234, and
Chouteau v.
Eckhart, 2 How. 372.
Neither party has a patent, and each comes before us asserting a
superior equity to the lands in dispute. Barrett insists that the
entry under which he claims title, dated April 12, 1822, was made
for a specific quantity of 510 superficial acres, and designated
by
Page 45 U. S. 178
survey and side lines ten years and more before the opposing
claims originated, and therefore his possession cannot be disturbed
by their assertion.
On the other hand, it is insisted that Bringier, under whom
Barrett claims title, had no preference extended to him by the Act
of May 11, 1820, to enter so much as 510 acres as back land to the
Whitehall tract; that it fronted on the inside of a bend of the
Mississippi River and conformed to Spanish and French forty arpent
concessions made on fronts, in concave bends, in the extension of
side lines, which uniformly converged in proportion to the greater
or less circle of the bend; that the Whitehall tract was much
narrower on the back than on the front side; that the act of
Congress did not permit Bringier to enter any other back land than
that within his direct side lines, produced from the river eighty
arpents deep; and that Barrett's equity is limited to the "back
land," in quantity to forty arpents deep within these lines,
although much less than 510 acres. And that as this mode of
surveying the double concession will not include the land entered
by either of the petitioners, they are entitled to recover;
furthermore, that in this form has Barrett's claim been surveyed by
public authority, and in no other.
In December, 1832, Bringier caused Wilson, a surveyor, to run
out his claim of 510 acres in the same form of the front tract --
that is, he began at the back terminus of each side line of the old
tract and ran diverging lines so as to make the opposite side of
his new survey of the same width with the front on the river, thus
making a tract of 1,020 acres, little more than half as wide in the
middle as it is at either end. This survey was neither returned to
nor recorded in the surveyor general's office, nor recognized by
the officers of the United States as a public survey. Bringier, and
those claiming under him, however, took and held possession of the
land surveyed, and improved the same, assuming that it covered the
land entered in 1832, and that it was lawfully made; at least, as
against any claim the petitioners can be permitted to set up. This
we suppose mainly to depend on the true construction of the act of
1811, which was renewed from time to time.
The surveys of township No. 11, including the lands in dispute,
were not made until the fall of 1829 and spring of 1830, and then
only in part, both as to the ordinary extension lines, and as
regarded the private grants and back lands subject to be attached
by preference of entry to front grants. Until these latter were
surveyed, they could not be acted on as to specific quantity. By
the Act of March 2, 1805, section 7, the powers of the surveyor of
lands south of Tennessee were extended over the Territory of
Orleans. And by the 9th section of the Act of April 21, 1806, he
was directed to appoint two principal deputies, one
Page 45 U. S. 179
for each of the districts into which the Orleans territory was
divided, who were to keep separate offices of their own, and to
execute public surveys in their respective districts, in conformity
to the regulations and instructions of their principal.
By the Act of March 3, 1831, a surveyor general of public lands
lying in the State of Louisiana was ordered to be appointed, and on
whom, within that state, were devolved the duties formerly imposed
on the surveyor of lands south of Tennessee; that is, after 1 May,
1831; and also the duties of the two principal deputies authorized
by the act of 1806. The latter offices were abolished, and the
duties appertaining to them merged in the surveyor general's office
of Louisiana. That officer took charge of the official records and
papers, and on him was imposed the duty of doing equity among those
entitled to back concessions under the acts of 1820 and 1832, where
it had not been previously done. His own deputies did the field
work not done on his coming into office; and in his time were the
surveys in township No. 11 completed, and by him were they first
approved after their completion. This the government recognizes as
the legal survey of the township, by which the United States are
bound, and on extracts from which patents and certificates can be
founded, and to this end the approved plan of it was filed in the
register's office of the South-Eastern District of Louisiana on 8
of August, 1834; by it all those purchasing from the United States,
either by preference of entry or otherwise are bound to abide,
unless legal alterations have been made or there were existing
legal and sanctioned surveys, laying off back lands to particular
front owners, independent of the general survey. None such was made
for the Whitehall tract, as we think, and its back land, as to
extend and form, is governed by the general plan above named. The
one made by Rightor's direction, approved by Gideon Fitz, Surveyor
of Public Lands South of Tennessee (March 9, 1832), received no
additional value from such approval, as the act of 1831 superseded
his authority in this respect. Rightor deposes that at no time had
the surveyor south of Tennessee any power of approval or
supervision of the surveys made by him, Rightor, as principal
deputy, and that the surveys made by Foster and Walker in the
spring of 1830, and approved by Rightor, as principal deputy, June
10, 1830, in his judgment bound the United States, as to the form
and extent of the land attached to the Whitehall tract. The
Commissioner of the General Land Office thought the survey on its
face an unwarrantable proceeding, as it cut off the back lands of
Bringier's neighbors, and violated the act of 1811. 2 Land Laws,
No. 950. And we think the commissioner was right in his conclusion.
Claims of double concessions in Louisiana were not new in practice;
surveys of such claims were common, and the direct extension of the
side lines of the front tract was the
Page 45 U. S. 180
equity, as a general rule, accorded to them, as we apprehend,
and so gross a violation of it as is found in Bringier's survey
could not be sanctioned.
In April, 1822, when Bringier's entry was made, there can be no
fair pretense to say he acquired by the entry an equity to the
extent of Wilson's or Rightor's survey, as against others having at
that time equal rights to enter back land, which rights the survey
assumed to defeat. By his entry, Bringier acquired an equity to
certain land, to be laid off in a form not to interfere with his
neighbors having equal rights under the law. They did not enter,
probably because his unjust, pretended claim deterred them, and
failing to do so until the time expired, Bringier assumed that his
equity might be enlarged, and was enlarged, to the extent that
Rightor's or Wilson's survey goes.
We think this assumption cannot be sustained; what equity
Bringier acquired took date with his entry, and his survey ought to
have been the same, had no one claiming front lands interfered, as
the act of Congress reserved for future sale all the back lands not
entered in time, a provision that would have been altogether
defeated in this instance if the assumption was true. For nearly
twenty years after the act of 1811 was passed, the government
failed to survey the back lands, so as to afford an opportunity to
front owners to acquire woodland in the rear (most necessary in a
sugar-growing country), and it would be strange had the power to
make back concessions been parted with, in so plain a case, by
permitting sweeping surveys like that of Bringier.
We say above claims for double concessions were not new.
O'Reilly's regulations of 1770 provide for narrow front grants on
rivers, by forty arpens in depth; for embankments in front for the
exclusion of high water; for ditches to carry off the water; for
roads and bridges. The 17th article of Gayoso's regulations
confirms those of O'Reilly. These were made by governors general,
who had the distribution of lands from 1770 to October, 1798; then
the authority was restored to the General Intendant of Louisiana
and West Florida, Morales; and in this officer the power remained
up to the change of governments in 1804. All the regulations will
be found in 2 White's Recopilacion 228, 244. In article 3 of
Morales's, especial duties are prescribed to the owners of front
grants, but nearly the same of O'Reilly's. The syndics were bound
to enforce the making of such embankments, ditches, roads, and
bridges, and the clearing in the three first years, in addition, a
certain quantity of land, and putting it into cultivation. The
grants were not to exceed six or eight arpens in front; usually not
so much was granted, and the lands were to adjoin. Annually the
Mississippi overflows, and to prevent an inundation of the country,
heavy and expensive embankments are required, and they must be
continuous, and are so, for hundreds of miles, on the banks
Page 45 U. S. 181
of the river. The country would be worthless without them. It
had been reclaimed from the water by this means and the ditches, by
the French and Spanish front proprietors, and on the keeping up of
the levees the value of the back lands depended; the great expense,
and constant watchings, during a part of the year, to guard against
inundation, and that of the whole country, by a break in the levee
at any one place, involve public considerations to Louisiana of the
highest magnitude, and those whose duty and interest it was to
prevent it -- the front owners -- had extended to them, by the
Spanish government, peculiar privileges, and which the United
States at an early day recognized.
A board of commissioners was established by the Act of March 2,
1805, whose duty it was to examine and report to Congress on French
and Spanish claims to lands in that section of country; and by the
Supplementary Act of April 21, 1806, section 5, it was made their
further duty, among other things,
"to inquire into the nature and extent of claims which may arise
from a right to a double or additional concession on the back of
grants or concessions heretofore made, . . . and to make a special
report thereon to the Secretary of the Treasury, which report shall
be by him laid before Congress at their next session. And the lands
which may be embraced in such report shall not be otherwise
disposed of until a decision of Congress shall have been had
thereupon."
The commissioners were engaged for some six years in the Orleans
Territory in pursuing their investigations, and their reports were
laid before Congress by the Secretary of the Treasury early in
1812. But in the meantime it was well known what course had been
pursued by the board in regard to all descriptions of claims, and
among others of back concessions. Instances in the report will be
found in 2 Am.State Papers 297, 337. Of claim (p. 297) No. 101, the
board says
"Benj. Babin claims a second depth of forty arpents, lying
immediately back of a front or first depth, which we have already
confirmed to him among the confirmed claims."
"The claimant has no other foundation for his title to the
second depth than having occupied the front and first depth, and
having occasionally supplied himself with timber from this second
depth."
"According to the laws, customs, and usages of the Spanish
government, no front proprietor, by any act of his own, could
acquire a right to lands further back than the ordinary depth of
forty arpents, and although the Spanish government has invariably
refused to grant the second depth to any other than the front
proprietor, yet nothing short of a grant or warrant of survey from
the governor could confer a title or right to the land; wherefore
we reject the claim."
We give this as an instance of many similar ones reported.
The statement applies to all front tracts, where only the
first
Page 45 U. S. 182
forty arpents had been granted by France or Spain. Instead of
granting the back lands as a donation, the government of the United
States extended to the front owner a preference of entry, by the
act of 1811, and if the entry was not made, the land was reserved,
as above stated. No question affecting the titles to lands in
Louisiana was more interesting to the old inhabitants, than the one
concerning the back lands, and although the former government had
granted them in probably but few instances, yet this was quite
immaterial to front owners at that time, as they had the privilege
of getting wood and timber from them, and the lands were in no
danger of being granted to another. That back lands at all times
meant those in the rear between the extended front lines in the
rear, to the distance of forty arpents (each line being a straight
one throughout) we suppose to be undoubted, as a general rule,
although there may have been exceptions to it.
Many tracts had no doubt been surveyed for the purpose of having
them acted on by boards of commissioners; but the record does not
show that any of the front tracts in township No. 11 had been
surveyed by public authority; which could only be done, after the
passing of the Act of February 28, 1800, under the superintendence
of the surveyor general -- and all other surveys were, by the third
section of that act, declared to be private surveys, on which no
patent could issue for an incomplete claim, after it was confirmed
by Congress. And this law applied equally to confirmations by the
commissioners, under the act of March 3, 1807, whose adjudications
were final, and authorized a patent to issue thereon.
When the first two acts of 1811 and 1820 were passed, it was
known that no township surveys had been made in much the greater
portion of the country to which the acts applied; in reference to
this state of the country Congress legislated, and therefore it was
provided by the fifth section of the act of 1811, that the
principal deputy surveyor of each district should be, and was,
authorized, "under the superintendence of the Surveyor of the
Public Lands South of the State of Tennessee," to cause to be
surveyed the tracts claimed by virtue of that section, that is,
preference rights; and in all cases where there were bends in
rivers (as in the case before us) on which the granted tract
bordered, and there were adjacent claims of a similar nature, and
each claimant could not obtain a tract of equal quantity with the
original front tract, then it should be the duty of the surveyor to
divide the vacant land between the several claimants in such manner
as to him might appear most equitable.
Three years were allowed from the date of the act for those
entitled to give notice in writing, stating the situation and
extent of the tract each wished to purchase, and for which he was
to make payment according to the then credit system. But if he
failed in either, the right to preemption should cease and become
void, and
Page 45 U. S. 183
the land might be purchased thereafter by any person, as other
public lands. As no public surveys existed, from which it could be
ascertained at the register's offices what the back lands of the
numerous tracts were; and as entries were contemplated in advance
of the public township surveys, some mode of ascertaining the
quantity and form each front owner was entitled to was
indispensable. And the mode adopted by Congress was to make the
principal deputy surveyor of the particular district the judge of
form and quantity, subject, however, to the superintendence of his
principal, the surveyor-in-chief of the lands south of
Tennessee.
This officer (as well as the principal deputy) was, by the acts
of 1812 (April 25) and 1836 (July 4), subject to the direct
control, and bound by the instructions, of the Commissioner of the
General Land Office, and so was the commissioner subject to the
control of the President, through the Secretary of the Treasury, as
will be seen by the opinion of the Attorney General of July 4,
1836, 2 Public Lands, Laws, Opinions, &c. 103. So that, in the
end, it devolved on the President, by aid of the secretary, as in
other instances, to see the acts of Congress above set forth duly
executed; and this was done through the Commissioner of the General
Land Office.
On 18 March, 1833, 2 Land Laws, 573, No. 516, the commissioner,
by an instruction to the registers and receivers of Louisiana, gave
a construction to the Act of June 15, 1832:
1. That where the back lands had been offered for sale and sold,
after the passing of the act, still the front owner was to be
permitted to enter them.
2. Where the back tracts had not been surveyed and connected
with the adjoining public lands, and the quantity could not be
ascertained at the time of payment, the party claiming should be
required to pay for the maximum quantity to which he could be
entitled under the law, and any excess of payment found on actual
survey should thereafter be refunded to the party, on instructions
to that effect, to be given from the general land office.
The form of the receiver's receipt for the payment is there
given, showing the land had not yet been surveyed. And the register
was instructed not to transmit the certificate of purchase until
the survey was completed, whereby the quantity would be
ascertained. The commissioner also informed the registers and
receivers that the surveyor general had been directed to advise
them as to the course to be pursued by the claimants in cases where
the back tracts remained to be surveyed.
In executing the act of 1832, the foregoing instructions were of
course pursued, and entries received on such notices of claim as
parties saw proper to file, subject to the risk of being curtailed
by the proper public surveys, approved by the surveyor general. And
Mr. Harper proves that on these terms notices of claim were
received, under the act of 1820, in 1822, when Bringier's claim
was
Page 45 U. S. 184
entered. Harper was then the register at New Orleans. It is
manifest that in no other way could the acts of 1820 or 1932 be
executed, than by general surveys of the back lands, whereby the
portion of each claimant was marked out. Nor could any survey in
township No. 11 be recognized by the register after the appointment
of the surveyor general of Louisiana, and the extinguishment of the
offices of the principal deputies (May 1, 1831), other than such as
were approved by the surveyor general. None was made of Bringier's
claim, so far as we are informed, before that time, which received
the sanction of any department of the general land office, and on
which a patent certificate and patent could issue. Of Rightor's
survey, we have already spoken. Wilson's was a mere private act, at
the instance of Bringier, and not recorded anywhere. The
instruction of July 25, 1838, 2 Land Laws, No. 1009, applies to
Bringier's case as well as others; the register and receiver are
there directed to issue the certificate of purchase in cases where
an overpayment has been made for back lands, by "describing each
tract by section, township, range, and area,
as returned by the
surveyor general" -- assuming the plan approved by him to have
settled the equities of parties claiming under the preemption laws,
as to extent and boundary. And our opinion is that the survey of
township No. 11, approved by H. S. Williams, Surveyor General of
Louisiana, on 5 August, 1834, was made in execution of the acts of
Congress, and governs the rights of the parties before this Court;
that to the land there designated as "back land" of the Whitehall
tract, Bringier's equity attached, by his notice of claim and the
payment of his money, in 1822, and to none other. And that by the
same survey the equities of Landry and Jourdan, acquired by their
entries, are established as the better title to the extent of "back
land" attached to their respective tracts by the survey. And to
that extent they are respectively entitled to recover, as against
the claim of the defendant, set forth in the answers.
Some stress in the argument was laid on the fact, that
possession had been held of the land in dispute, under Bringier's
claim, for more than ten years before the suits of Landry and
Jourdan were brought, and therefore the petitioners were barred by
prescription and limitation in Louisiana. Prescription of ten
years' possession is relied on in defense by a direct plea, and
made up part of the defense.
To this ground of defense it is a sufficient answer to say that
Jourdan first acquired his interest in 1834, and Landry his, in
1836; up to that time, the lands they claim belonged to the United
States, as part of the public domain, and on which the defendant
Barrett and those under whom he claims, were trespassers, and that
no trespass of the kind can give title to the trespasser, as
against the United States, or bar the right of recovery, nor
had
Page 45 U. S. 185
the operation of time any effect as against Landry and Jourdan
until they respectively purchased.
By the Constitution, Congress is given "power to dispose of and
make all needful rules and regulations respecting the territory or
other property of the United States" for the disposal of the public
lands, therefore, in the new states, where such lands lie, Congress
may provide by law, and having the constitutional power to pass the
law, it is supreme; so Congress may prohibit and punish trespassers
on the public lands. Having the power of disposal and of
protection, Congress alone can deal with the title, and no state
law, whether of limitations or otherwise, can defeat such
title.
For the foregoing reasons, we order the judgment of the supreme
court of Louisiana to be
Reversed and that the cause be remanded, &c.
