A private survey of land, claimed under an old Spanish
concession and presented to the board of commissioners appointed
under the act of 1805, is not conclusive against the party
presenting it to show the boundaries of the claim, but is proper
evidence to go to the jury, who are to decide upon its limits.
Under the acts of 1824, 1826, and 1828, the District Court of
Missouri was authorized to receive petitions of claimants to land,
until 26 May, 1829. In 1831, when claims which had not been
presented were standing under a bar, Congress confirmed the title
of the inhabitants of the Town of St. Louis to the
adjacent commons. This act was valid, unless the opposing
claimant then possessed a vested interest which was protected by
the Louisiana treaty.
By the third article of that treaty, the inhabitants were to be
protected in their property.
But land held under a concession and survey was not finally
severed from the royal domain and converted into private
property.
The power of granting the public domain was in Morales, who
resided in New Or1eans. His regulations were in force in Upper
Louisiana, and by them the title to land held under a concession
and survey was not perfected until ratified by him and a final
grant issued.
This power was in a great degree a political power, and, by the
treaty, the United States assumed the same exclusive right to deal
with the title, in its political and sovereign capacity. The courts
of justice cannot, without legislation, execute the power, because
the holder of an incomplete title has no standing in court.
A confirmatory act passed by Congress in 1836 does not reach
back to the original concession and exclude grants of the same land
made in the intermediate time, either by Congress itself or a board
of commissioners or the district court acting under its
authority.
In the act of 1836, Congress had in view the situation of
persons whose titles were, by that act, confirmed to lands which
had been previously granted to others, and, in order to meet the
case, provided that such confirmed claimants might take up,
elsewhere, an amount of public land equal to that which they
lost.
The confirmatory act of 1836 must therefore be construed to
exclude the commons which had been granted by previous acts to the
Town of St. Louis.
These acts, and a survey by the proper public officer in 1832,
placed the title of the town in the same condition as if a patent
had been issued.
This case was exactly the same, in most of its points, with the
case of
Mackay v.
Dillon, reported in a preceding part of this
volume. Reference will be made to that case in all the points which
are similar.
It was an action of ejectment brought by Les Bois in the circuit
court to recover two hundred and forty-four arpents and fifty
perches of land claimed under a Spanish concession. The defendant
Bramell claimed title under the acts of Congress of 1812 and 1831
granting a right of common to the Town of St. Louis.
The plaintiff's title was as follows.
1. A petition, concession, and survey.
2. Proceedings of the board of commissioners established by the
Act of Congress passed 2 March, 1805.
Page 45 U. S. 450
3. Proceedings of the board of commissioners established by the
Acts of July 9, 1832, and March 2, 1833.
4. The Act of Congress passed 4 July, 1836.
5. A certificate of the surveyor of the public lands dated
September 6, 1838.
These will be taken up in order.
1. A petition, concession, and survey.
The petition was as follows:
"To Don Charles Dehault Delassus, lieutenant colonel attached to
the stationary regiment of Louisiana and lieutenant governor of the
upper part of the same province."
"Marie Nicolle Les Bois has the honor of representing to you
that, having lost her father and mother since her most tender
years, in consequence of a well known disaster, which alone would
be sufficient to render her situation interesting to all men of
feelings, and having had for support since that moment an uncle and
aunt, both respectable, who have taken care of her infancy,
considering that time in his flight deprives her every day of some
one of her protectors; that her brothers and sisters are all
married, and loaded with family, and without fortune; that she
remains as an isolated being who cannot expect any assistance of
anyone whomsoever, and who, without fortune, finds herself under
several points of view in a calamitous situation which appears to
her to be worthy to attract the attention of the good heart
everybody knows you possess. Full of this idea and convinced of the
generosity of the government, which has never ceased to grant
favors to the unfortunate and to be particularly the protector of
orphans, she hopes you will be pleased to grant to her the
concession of a tract of land situated to the south of this town,
and being vacant lands of His Majesty's domain, and which may
contain two hundred and thirteen arpents in superficie, more or
less, which land shall be bounded as follows: to the north, south,
and west, by the vacant lands of the domain, and to the east by a
concession of some width belonging to Mr. Antonio Soulard."
"Such is the statement of my misfortune and pretensions, and I
presume to hope this favor of the generosity of a benevolent and
generous government, and of a chief as worthy as you are to fulfill
its benevolent intentions."
"MARIE NICOLLE LES BOIS"
"St. Louis, May 10, 1803"
The concession was as follows:
"St. Louis of Illinois, May 11, 1803"
"Having seen the foregoing statement, I do grant to Marie
Nicolle Les Bois, for her and her heirs, the land which she
solicits, in case it is not prejudicial to any person, and the
surveyor of this
Page 45 U. S. 451
Upper Louisiana, Don Antonio Soulard, shall put the petitioner
in possession of the quantity of land she solicits in the place
designated, which, when executed, he shall draw out a plat of
survey, delivering the same to the party, with his certificate, in
order to serve to her to obtain the concession and title in form
from the intendant general, to whom alone corresponds, by royal
order, the distributing and granting of all classes of lands of the
royal domain."
"CARLOS DEHAULT DELASSUS"
"
Of Survey -- Upper Louisiana, District of Sn. Luis de
Illinois"
"The survey was as follows:"
"
Note. The bounds set to all corners are shown on the
plat."
"All the line trees were marked with one blaze above two
notches. The trees on both sides of the lines were blazed
only."
"Registered in book B, of the surveys for said district, folio
17, No. 20."
"
Of Certificate of Survey"
"Don Antonio Soulard, Surveyor General of Upper Louisiana -- I
do certify that I have measured, run the lines, and bounded, in
favor of Marie Nicolle Les Bois, a piece of land of two hundred and
forty-four arpents and fifty perches in superficie, measured with
the perch of the City of Paris, of eighteen French feet in length,
lineal measure of the said city, according to the agrarian measure
of this province, which land is situated at about the distance of
twenty-five arpents to the southwest of this Town of Saint Louis,
and is bounded to the north-northwest by lands of Don Santiago
Mackay; to the east-southeast by lands belonging to me; to the
south-southwest in part by lands of Don Jh. Brazeau, and by vacant
lands of the royal domain, and by the west-southwest by vacant
lands; which measurement and survey I took without regarding the
variation of the needle, which is 70�30' east, as is evident by the
foregoing figurative plat, on which are noted the dimensions,
directions of the lines and limits, and other boundaries
&c."
"Said survey was executed by virtue of the memorial and decree
of the lieutenant governor and subdelegate of the royal fisc, Don
Carlos Dehault Delassus, dated 11 May, 1803."
"In testimony whereof I do give the present, with the preceding
figurative plat, executed by my exertions on 27 May of the current
year in St. Louis, August 20, 1803."
"ANTONIO SOULARD,
Surveyor General"
"Truly translated, St. Louis, December 15, 1832."
"JULIUS DE MUN"
Page 45 U. S. 452
2. Proceedings of the board of commissioners established by the
Act of Congress passed on 2 March, 1805.
"
Proceedings of commissioners"
"Friday, October 7, 1808"
"Board met. Present: The Honorable Clement B. Penrose and
Frederick Bates."
"Marie Nicolle Les Bois, claiming two hundred and forty-four and
one-half arpents of land situated in the commons of St. Louis,
produces to the board a concession from Don Charles Dehault
Delassus, lieutenant governor for the same, dated May 11, 1803; a
plat and certificate of survey, dated 27 May, 1803, and certified
20 August, same year."
"Laid over for decision; board adjourned."
"CLEMENT B. PENROSE"
"FREDERICK BATES"
"Wednesday, August 21, 1811"
"Board met. Present: Clement B. Penrose and Frederick Bates,
commissioners."
"Marie Nicolle Les Bois, claiming two hundred and forty-four and
one-half arpents of land, see book No. 3, 282. It is the opinion of
this board that this claim ought not to be confirmed."
"Board adjourned until to-morrow, eight o'clock, A. M."
"CLEMENT B. PENROSE"
"FREDERICK BATES"
3. Proceedings of the board of commissioners, established by the
acts of July 9, 1832, and March 2, 1833.
"Thursday, November 39, 1832"
"Board met pursuant to adjournment. Present: Lewis F. Linn [and]
F. R. Conway, commissioners."
"Marie Nicolle Les Bois, by her legal representatives, claiming
two hundred and forty-four and a half arpents of land, see book C,
73, 74, and 75, No. 3, 282, No. 5, 328, produces a paper purporting
to be an original concession for two hundred and thirteen arpents
of land, more or less, from Charles Dehault Delassus, dated 11 May,
1803; also a paper purporting to be a plat and certificate of
survey for two hundred and forty-four arpents and fifty perches,
taken 27 May, and certified 20 August, 1803, by Antonio
Soulard."
"M. P. Leduc, duly sworn, saith, that the signature to said
concession is in the proper handwriting of the said Charles D.
Delassus, and the signature to said certificate of survey is in the
proper handwriting of said Soulard."
"The board adjourned until to-morrow at ten o'clock, A. M."
"L. F. LINN"
"F. R. CONWAY"
Page 45 U. S. 453
"
No. 39"
"Tuesday, November 5, 1833"
"The board met pursuant to adjournment. Present: L. F. Linn, A.
G. Harrison, F. R. Conway, commissioners."
"Marie Nicolle Les Bois, claiming two hundred and forty-four and
a half arpents of land, see 64 and 65 of this book (No. 6). The
board are unanimously of opinion that this claim ought to be
confirmed to the said Marie Nicolle Les Bois, or her legal
representatives, according to the concession."
"The board adjourned until tomorrow at nine o'clock, A.M."
"L. F. LINN"
"F. R. CONWAY"
"A. G. HARRISON"
4. The act of Congress passed 4 July, 1836.
The purport of this act is set forth, under the eighth head of
the plaintiff's title in the case of
Mackay v. Dillon.
5. A certificate of the surveyor of the public lands dated
September, 6, 1838.
This certificate is as follows:
"
Plat and Certificate of Survey, by Authority of the
United States"
"
Survey No. 3,184"
"Plat and description of the survey of a tract of two hundred
and four arpents and fifty perches, equal to two hundred and eight
acres of land, situated in township forty-five, north of the base
line, range seven, east of the fifth principal meridian, in the
State of Missouri, executed on the twenty-fifth day of September,
eighteen hundred and thirty-eight, by Charles De Ward, deputy
surveyor, under instructions from the Surveyor of the Public Lands
in the States of Illinois and Missouri, dated the sixth day of
September, eighteen hundred and thirty-eight."
"This being the tract of land granted, on the eleventh day of
May, eighteen hundred and three, to Marie Nicolle Les Bois, by
Charles Dehault Delassus, then lieutenant governor, for the
government of Spain, of the Province of Upper Louisiana, surveyed
on the twenty-seventh day of May, eighteen hundred and three, by
Antoine Soulard, Spanish surveyor of the same province, and
confirmed to the said Marie Nicolle Les Bois, or her legal
representatives, by the Act of Congress of the United States,
approved the fourth of July, eighteen hundred and thirty-six,
entitled 'An act confirming claims to land in the State of
Missouri, and for other purposes,' according to the decision,
numbered thirty-nine, of the report of the board of commissioners
appointed by the act of Congress, approved the ninth of July,
eighteen hundred and thirty-two, entitled 'An act for the final
adjustment of private
Page 45 U. S. 454
land claims in Missouri', and the act of Congress, approved the
second of March, eighteen hundred and thirty-three, supplemental
thereto."
Then follows a minute description of the land by metes and
bounds.
"
Defendant's Title"
The evidence offered by the defendant consisted of the first six
heads of the title offered by the defendant, in the case of
Mackay v. Dillon.
He further offered a plat and survey of the common, made in
November, 1832, under instructions from the Surveyor of Public
Lands in the States of Illinois and Missouri, and the following
certificate:
"
SURVEYOR'S OFFICE, St. Louis, 7 April, 1841"
"The foregoing plat and description of the survey of the commons
of St. Louis are correctly copied from 74, 75, and 76 of record
book C in this office. The plat of the survey, No. 3,184,
subsequently made of the claim of Marie Nicolle Les Bois, within
the survey of said commons, is this day laid down on the said
foregoing plat of the common, according to the survey of the said
claim of Marie Nicolle Les Bois."
"WILLIAM MILBURN"
"
Surveyor of the Public Lands in the States"
"
of Illinois and Missouri"
The evidence being closed on both sides, the counsel filed the
following agreement.
"
Agreement by Parties"
"It was agreed by the parties that at the time of the
commencement of this suit, the defendant was in the actual
possession and occupation of twenty acres of land, parcel of the
tract of land in the declaration mentioned, as tenant of the City
of St. Louis, claiming the same as common belonging to the
inhabitants of St. Louis, and further that the matter of dispute in
this action exceeds the value of two thousand dollars, exclusive of
costs."
"It was also admitted by the parties that from a short time
after the settlement of the Village of St. Louis, there was a
fence, commencing above the Town of St. Louis, running westwardly,
a little west of the village, until it came to the hill near the
courthouse, and then ran in a direction south of west until it
reached the line of the Barriere des Noyer fields, and then running
southwardly along the front of those fields until it reached the
Carondelet fields, and from that point extended to the river. The
land on the eastern side of that fence was used by the inhabitants
of the town for the pasturage of cattle and for the supply of wood,
and was always
Page 45 U. S. 455
called the common of the town, while the land on the western
side was used for cultivation. The land in question lies on the
eastern side of this fence, and within what was called the common.
The fence above mentioned was destroyed in the year 1797, at which
time the cultivation of the common fields west of said fence was
discontinued."
The counsel for the plaintiff then moved the court to instruct
the jury that the survey offered by the inhabitants of St. Louis,
in support of their claim, upon which survey was laid down, at the
request of the claimants, the concession and survey of Marie
Nicolle Les Bois, excludes and protects from the confirmatory
operation of the Acts of Congress of 13 June, 1812, and Act of
Congress of 27 June, 1831, the title of said Marie Nicolle Les Bois
to the tract granted to her.
Which instruction the court refused to give; to which decision
the plaintiff, by her counsel, excepted.
"
Instructions given"
"The court then instructed the jury as follows:"
"1. That the inhabitants of the Town of St. Louis were confirmed
in their claim to commons by the acts of Congress of 1812 and
1831."
"2. That the notice of claim of said inhabitants, as filed with
the recorder of land titles, and exhibited before the board of
commissioners, read here to the jury, is evidence of the extent of
the said claim to said commons."
"3. If the claim of the plaintiff is included within the
boundary of the lands confirmed to the Town of St. Louis by the
acts of 1812 and 1831, then the jury must find for the defendant;
because those acts passed the title to the land in controversy to
the inhabitants of said town."
"To which opinion of the court, in giving the said instructions,
the plaintiff, by her counsel, excepted. And the plaintiff prays
the court to sign and seal this bill of exceptions, which is done
accordingly, this 14 April, 1841."
"J. CATRON [SEAL]"
"R. W. WELLS [SEAL]"
Under these instructions, the jury found for the defendant, and
to review them the present writ of error was brought.
Page 45 U. S. 456
MR. JUSTICE CATRON delivered the opinion of the Court.
This case comes up by a writ of error to the Circuit Court of
the District of Missouri. It is an action of ejectment for two
hundred and eight acres of land lying within the commons of St.
Louis, and confirmed to the plaintiff by the Act of Congress of
July 4, 1836, and was surveyed by the authority of the United
States in September, 1838. The act of 1836 and the survey make out
a good
prima facie title for the plaintiff.
The defendant claims title under the City of St. Louis, and the
title of the city depends on its grant of the commons by the acts
of 1812 and 1831. The evidence of identity and boundary of neither
claim being disputed, the plaintiff moved the court to instruct the
jury that the survey offered by the inhabitants of St. Louis in
support of their claim, upon which survey was laid down at the
request of the claimants; the concession and survey of Marie
Nicolle Les Bois, excludes and protects from the confirmatory
operation of the Acts of Congress of 13 June, 1812, and Act of
Congress of 27 June, 1831, the title of said Marie Nicolle Les Bois
to the tract granted to her, which instruction was refused. The
survey referred to was one made of the commons in
Page 45 U. S. 457
1806, by James Mackay, and on a plat of the survey, filed with a
notice of claim before the board of commissioners organized by
virtue of the act of 1805, to examine and report on French and
Spanish claims, this of Les Bois was laid down, with six others.
Mackay's survey was a private one, made at the instance of the
inhabitants of St. Louis, and was not binding on the rights of
anyone; nor did it profess to exclude the pretensions laid down on
the plat, as not being part of the town common, but the reverse.
For our further views on the question presented by the instruction,
we refer to what is said on it in the case of
Mackay v.
Dillon submitted to us at the same time with the
present.
The court then instructed the jury as follows:
1. That the inhabitants of the Town of St. Louis were confirmed
in their claim to commons by the acts of Congress of 1812 and
1831.
2. That the notice of claim of said inhabitants, as filed with
the recorder of land titles, and exhibited before the board of
commissioners, read here to the jury, is evidence of the extent of
the said claim to said commons.
3. If the claim of the plaintiff is included within the boundary
of the lands confirmed to the Town of St. Louis by the acts of 1812
and 1831, then the jury must find for the defendant because those
acts passed the title to the land in controversy to the inhabitants
of said town.
These were excepted to.
As to the first instruction given, it may be remarked that by
the Act of June 13, 1812, Congress provided that the rights,
titles, and claims to town or village lots, outlots, common field
lots, "and commons" in, adjoining, and belonging to St. Louis (and
other towns) should be, and the same were, thereby confirmed to the
inhabitants, &c.
That this was a general confirmation of the common to the town
as a community no one has ever doubted so far as the confirmation
operated on the lands of the United States, and to which no
individual claim or pretension was set up, and the question arising
on the instruction is whether the plaintiff's claim was excepted
directly, or by reason of a prior right vested in the plaintiff.
The only direct exception in the act is the proviso
"That nothing herein contained shall be construed to affect the
rights of any persons claiming the same lands, or any part thereof,
whose claims have been confirmed by the 'board of commissioners'
for adjusting and settling claims to land in the said
territory."
The board referred to was organized according to the Act of
March 2, 1805, with powers to examine such claims as that of the
plaintiff, and to decide on their validity, and although, by the
act, no power was given to make a conclusive adjudication without
the sanction of Congress, yet if any claim was declared good
and
Page 45 U. S. 458
valid and recommended for confirmation, it was of the class
mentioned in the foregoing proviso, as we suppose, even when acted
on under the act of 1805; but by the Act of March 3, 1807, § 41,
the powers of the commissioners were extended, and confirmations of
various classes of claims were authorized to be made by the board
conclusively, without the intervention of Congress, and for which
patents were to issue, on surveys made by officers of the United
States.
The foregoing were the only description of titles excepted from
the act of 1812, and as the plaintiff's was not one of them, the
act did not apply to it in the saving clause.
The next inquiry on the first instruction given is as to the
operation of the act of 1831 on the plaintiff's claim.
The act of May 26, 1824, gave jurisdiction to the District Court
of the United States for the Missouri District to hear and adjudge,
in a mode of proceeding according to the rules governing courts of
equity, on all claims of the description, and that were in the
situation of the plaintiff's, the United States being defendants
and either party having the right of appeal to the supreme
court.
The fifth section of the act declares
"That any claim not brought before the district court within two
years from the passing thereof shall be forever barred, both in law
and equity, and that no other action at common law or proceeding in
equity shall ever thereafter be sustained in any court whatever, in
relation to said claim."
An act for the relief of Phineas Underwood and for other
purposes, passed 22 May, 1836, § 2, 1 United States Land Laws 924,
declares that the time for filing petitions under the act of 1824
shall be and is hereby extended to 26 May, 1828.
The Act of May 24, 1828, 4 Lit. & Brown's ed., ch. 90, 298,
declares that the district courts shall be open for the receiving
petitions of claimants, under the act of 1834, until 26 May, 1829,
and that the act shall continue in force for the purpose of
enabling claimants to obtain a final decision on their claims until
26 May, 1830, and no longer.
The plaintiff instituted no proceedings before the district
court under the act of 1824, and on 26 May, 1829, her claim stood
and was barred. For further views of this Court on the character of
the bar, we refer to the cases of
Barry v.
Gamble, 3 How. 55, and
Chouteau v.
Eckhart, 2 How. 352.
In January, 1831, the City of St. Louis and other towns applied
to have their rights of common further confirmed and regulated, and
an act of Congress was passed declaring
"That the United States does hereby relinquish to the
inhabitants of the several Towns of St. Louis, &c., all the
right, title, and interest in and to
Page 45 U. S. 459
the town or village lots, outlots, common field lots, and
commons -- to be held by the inhabitants of the said towns in 'full
property,' and to be regulated, or disposed of, for the use of the
inhabitants, according to the laws of the State of Missouri."
This law vested in the city corporation the town common, in fee
simple, and gave full power to the Legislature of Missouri to
incorporate it into the city, by extending the city charter over
it. The importance of the act will be understood when we examine
the plats and other evidences in the record, from which it will be
seen that the city is spreading over the eastern lines of the
common and that it is in part sold out in lots by the corporation
already, and fast becoming part of the city.
Les Bois standing barred when the act of 1831 was passed in
November, 1832, the city caused the common to be officially
surveyed, under instructions from the Surveyor General of Illinois
and Missouri, according to the Act of 26 May, 1834, § 2, 1 United
States Land Laws, ch. 311. This survey was a public one, binding on
the United States and the city corporation, and was duly recorded
by the surveyor general in his office. A copy of the plat is in the
record, with a detailed description of landmarks, courses, and
distances, and these were given in evidence to the jury in the
circuit court. Thus stood the defendant's title. On July 9, 1832, a
law was passed by Congress authorizing commissioners to be
appointed to act on claims not confirmed previously, and on 5
November, 1833, the board organized under the act declared Les
Bois' claim valid, and Congress confirmed it July 4, 1836.
To avoid the bar under these circumstances and to show that
neither the act of 1812 or that of 1831 could deprive the plaintiff
of her right, it is insisted she had a vested interest to the land
confirmed when the United States acquired Louisiana which is
protected by treaty stipulation, and that such right no act of
Congress could defeat; that by the third article of the treaty of
1803, with France, the inhabitants of the ceded territory were to
be incorporated into the Union, to be admitted to the rights,
advantages, and immunities of citizens of the United States, and in
the meantime they were to be maintained and protected in the free
enjoyment of their liberty, property, and religion. And this
implied that after their admission, they should be equally
protected, and that such would have been the measure of justice
applicable to their rights of property by the laws of nations had
the treaty been silent on the subject. On this assumption the
plaintiff mainly relies; that it is true in the abstract is not
doubted, but it involves several opposing considerations applicable
to her title:
1. Whether such a vested property in the soil existed in Les
Bois before the date of the treaty as bound the government of Spain
to perfect, by the execution of a complete title, the first
incipient step.
2. Whether
Page 45 U. S. 460
the judicial power has any jurisdiction to interfere and enforce
such right, supposing it to exist.
That this government had imposed on it the same duty to perfect
the title that rested on Spain before the country was ceded is not
open to question, but this was all the United States was bound to
perform. How, then, did the plaintiff's claim stand previous to the
cession. Her first decree and order of survey bear date in May,
1802, and the survey was made in August, 1803, but there is no
evidence that any part of the land was either occupied or
cultivated. The lieutenant governor's decree is in the usual style,
and concludes,
"That it is given to serve the interested party to obtain the
concession and title in form, from the intendant general, to whom
alone corresponds, by royal order, the distributing and granting of
all classes of the royal domain."
On 22 October, 1798, the King of Spain appointed Morales
intendant general and subdelegate; he kept his office at New
Orleans, and was charged with the superintendence and granting of
the public domain in the provinces of Upper and Lower Louisiana,
"to the conclusion of all other authority." On July 17, 1799,
Morales published his regulations to the inferior officers and the
people of the provinces, so that (in his own language)
"all persons who wish to obtain lands may know in what manner
they ought to ask for them, and on what conditions lands can be
granted and sold; that those who are in possession without the
necessary titles may know the steps they ought to take to come to
an adjustment; that the commandants and subdelegates of the
intendancy may be informed of what they ought to observe,"
&c., 2 White's Recopilacion 234.
By article eighteen it is declared
"Experience proves that a great number of those who have asked
for land think themselves the legal owners of it; those who have
obtained the first decree, by which the surveyor is ordered to
measure and put them in possession, others after a survey has been
made, have neglected to ask the title for the property, and as like
abuses continuing for a longer time will augment the confusion and
disorder which will necessarily result. We declare that no one of
those who have obtained said decrees, notwithstanding in virtue of
them the survey has taken place and that they have been put in
possession, can be regarded as owners of land until their real
titles are delivered completed, with all the formalities before
recited."
The formalities recited are found in the three preceding
sections, which give precise instructions how the title is to be
made out and where it is to be recorded by the officers of the
general intendancy. The nineteenth article declares
"All those who 'possess' lands in virtue of formal titles made
by the governors [such as Delassus was] shall be protected and
maintained in their possessions."
And by article twenty,
"Those who, without the title or possession
Page 45 U. S. 461
mentioned in the nineteenth article, are found occupying lands
shall be driven therefrom as from property belonging to the
Crown"
unless they have occupied the same more than ten years.
The board of commissioners which confirmed Les Bois' claim acted
on the principle that the regulations of Morales were not in force
in Upper Louisiana, more than those of the royal governors,
O'Reilly and Gayoso. But as the Lieutenant Governor, Delassus,
referred the claimant in this case, and in all others so far as we
know, to the general intendant for a title, and the instructions
point out the terms on which a complete title can be had, and the
formalities with which it must be clothed, it is difficult to say
on what grounds the commissioners come to the conclusion that
Morales' regulations were not in force. The rules of proceeding of
the board will be found in 5 D. Green's State Papers 707, and the
instructions to which they refer in 2 White's Recopilacion
228-244.
In an affidavit found in the public documents and furnished by
the same board, 5 D. Green's State Papers 708, Delassus states his
practice to have been that when a petition was presented for land,
if he considered the petitioner possessed merits to entitle him to
the concession it was granted, subject to the confirmation of the
intendant general, and that he made an order of survey; these he
delivered to the petitioner, but that he kept no books, nor did he
make any registry of the decree or order of survey, and that
whether the surveyor did so or not was no concern of his, the
lieutenant governor's, nor did he deem it material when the survey
was made; as to this, there was no time limited.
From this loose mode of proceeding it is manifest the whole
matter of perfecting the title was referred to the intendant
general, and he and those acting subordinate to him in this respect
were undoubtedly governed by the intendant's regulations. As the
King's representative and deputy, he was to judge whether the
considerations moving the lieutenant governor were such as
warranted the grant; next, whether conditions had been performed
&c. The granting power was in a great degree political, and
altogether the exercise of royal authority, and of course subject
to no supervision but by the same high authority itself. By the
treaty, the United States assumed the same exclusive right to deal
with the title in their political and sovereign capacity, nor could
the courts of justice be permitted to interfere; if they could, and
by their decrees complete the title, all power over the subject
might have been defeated not by the courts of the Union only, but
by the state courts also. And therefore the contemporary
construction and practical understanding of the treaty for forty
years has been that claims like the plaintiff's had no standing in
a court of justice until confirmed by Congress or by its
authority.
Next it is insisted that the confirmation of 1836 established
the
Page 45 U. S. 462
original validity of Les Bois' title, that this stands as an
adjudged and concluded fact which a court of justice cannot
controvert, and the confirmation having operated on the concession
of 1802, therefore, by relation, it overreaches the confirmations
of the town common of 1812 and 1831.
The doctrine of relation in an action of ejectment, by which the
legal title by patent is made to take date from the entry or
inception of title, is familiar in some of the states and has been
acted on in this Court. It applies where both the litigant parties
have a grant; the case of
Ross v.
Barland, 1 Pet. 655, was of this description. There
the younger patent was founded on the best right in equity,
standing in advance of either patent, and the equities were tried
at law. But if the elder or better entry had not been carried into
a grant, a court of equity might have administered the same measure
of justice, and decreed the land from the patentee, whose legal
title was founded on the inferior equity. This is the constant
practice in the state courts in similar cases. But when courts of
law go behind conflicting patents and contest the equities on which
they are founded, it has never been held that the patent aided the
equitable title; it must come in support of the grant, and stand on
its own merits. So in this case; the plaintiff admits her grant, of
itself, is insufficient to authorize a recovery, and that she must
go behind it, and there she is met by the objection that her claim
had no standing in a court of equity or of law up to the date of
its confirmation, and depended on the political power. The
plaintiff's assumption comes only to this -- that the United States
erred in granting the common first, in prejudice of her better
right to have the first grant. To this assumption the answer is
that if the sovereign power wronged her, she is without remedy in a
municipal court.
The second instruction given by the circuit court was that the
notice of claim filed with the recorder and exhibited to the board
was evidence of the extent of said claim to commons. The competency
of the evidence was not objected to on part of the plaintiff; it
was such as she herself resorted to for the establishment of the
extent and boundary of her own claim, and, aside from the legal and
official survey of the commons made in 1832, is the only evidence
of boundary that is likely to exist at no distant future day, and
was the usual evidence introduced to prove the fact before the
survey of 1832 was made. The court gave no opinion on its effect,
but properly left it to the jury.
The third instruction is that if the jury believed the land in
dispute to lie within the bounds of the common confirmed by the
acts of 1812 and 1831, then they should find for the defendant.
The first consideration on this instruction arises on the Act of
July 4, 1836, by which the plaintiff's claim was confirmed. The
fact that claims embraced by the act interfered with lands
Page 45 U. S. 463
previously granted or sold by the United States was well known
to the commissioners, and in their report of 27 November, 1833, 5
D. Green's State Papers 702, they state for the information of
Congress that
"There are numerous cases of lands lying within these French and
Spanish claims belonging to individuals whose right or claim
originated under the government of the United States; some depend
on purchases; some on the law allowing preemptions; some others on
New Madrid locations; and some again upon settlement rights which
have been confirmed; that most of these persons have been for a
long time settled on their lands; their claims being of a
bona
fide character, derived from the government of the United
States, they went on to improve their lands, making for themselves
and families comfortable homes without any belief that they would
ever be interrupted in their possessions; that should the claims
reported by the board be confirmed by Congress, in whole or in
part, Congress will, in its wisdom, no doubt notice the suggestions
here made and carve out such a course as will quiet the uneasiness
and anxiety which are felt by doing everything which even the most
scrupulous demands of justice could require."
In view of this report, Congress passed the aforesaid
confirmatory act, which declares
"That if it shall be found that any tract or tracts confirmed as
aforesaid, or any part thereof, had been previously located by any
other person or persons under any law of the United States, or had
been surveyed and sold by the United States, this act shall confer
no title to such lands in opposition to the rights acquired by such
location or purchase, but the individual or individuals whose
claims are hereby confirmed shall be permitted to locate so much
thereof as interferes with such location or purchase on other lands
of the United States,"
&c.
The officers of the government administering the land department
had to construe this law with its exceptions; the matter was
referred to the Attorney General, and in September, 1842, he gave
it as his opinion that the confirmations must yield to prior
confirmations, school sections, ordinary sales prior to the Act of
July 4, 1836, &c.
A confirmation of a Spanish or French claim, either by a board
of commissioners under the act of 1807 or by Congress directly or
by the district courts by force of the act of 1824, is a location
of land by a law of the United States; surveys have been made and
patents issued for such land in the great majority of instances,
and it cannot be questioned, as we think, that a title thus
protected by patent was intended to be carved out of the act of
1836; nor is it perceived how the St. Louis common can be in a
worse condition, as the acts of 1812 and 1831 did not contemplate
any further grant than the acts themselves import, and this
conclusion is greatly strengthened by the following
considerations.
The plaintiff's claim, and all others of a similar character
within
Page 45 U. S. 464
the St. Louis common -- that is, such as the board of
commissioners from 1806 to 1812 had examined and rejected -- were
well known to Congress when the act of that year, confirming the
common, was passed; the report of the board had just then been
returned to Congress, and Mr. Penrose, one of its members, and Mr.
Reddick, the clerk, were at Washington, as appears by their
letters. The two of Mr. Penrose were communicated to the House of
Representatives, and that of Mr. Reddick to the chairman of the
committee of public lands, 2 American State Papers 447-451; they
gave the information on which Congress proceeded in acting on the
report, as the letters plainly show. The same information was part
of the public and printed documents of Congress when the second
confirming act of 1831 was passed, and when it was known, Spanish
and French pretensions to claim conflicting with the common stood
barred. In 1832, the common was officially and legally surveyed
pursuant to the Act of May 26, 1824, and the survey stood recorded
in due form in 1836, when the plaintiff got her title. These laws,
and the acts done by the United States in pursuance of them, we
suppose, made and located the common's title as effectually as a
patent could have done, and brought it within the exception of the
act of 1836, and that the plaintiff Les Bois' confirmation was
intended to give her land elsewhere, without disturbing the
opposing title.
For another reason we think the instruction was proper. When the
country was acquired, the title to the land in dispute passed from
France to the United States; on this government was imposed the
duty by the treaty to satisfy individual and unperfected claims.
This was to be done in a due exercise of the political power, to
whose justice alone the claimant could appeal and to whose decision
she was compelled to submit, and there being two adverse claims to
the same land, equally inchoate, and the government, being unable
to confirm both, was under the necessity of determining between
them, and having granted the land to one, necessarily rejected the
pretension of the other to the same land, and therefore the first
grantee took the legal and exclusive title. But where there is a
second confirmation, as in the instance before us, then the justice
of the government must be relied on by the second grantee for
compensation, and this compensation the act of 1836 has provided.
The last ground is the one on which the decision in the case of
Chouteau v. Eckhart proceeded in regard to the St. Charles
common, and which doctrine, we think, applies equally to the
present controversy.
For the several reasons above stated, it is ordered that the
judgment of the circuit court be
Affirmed.
