Forbes and Company obtained a grant of land in 1807 from
Morales, Intendant General under the Spanish government, which land
was adjacent to Mobile, in West Florida. This grant purported to
be, in part, the confirmation of a concession granted in 1796 and
surveyed in 1802. The survey terminated at high water mark upon the
river.
The grant of 1807 included the land between the then bank of the
river and the high water mark of 1802.
This grant of 1807 was excepted from the operation of the act of
Congress passed on 26 March, 1804, which annulled all Spanish
grants made after 1 October, 1800, and was recognized as a valid
grant by the Act of 3 March, 1819.
An Act of March 2, 1829, confirmed an incomplete Spanish
concession which was alleged to draw after it, as a consequence,
certain riparian rights conflicting with those claimed under the
grant of 1807.
A decision of a state court giving the land covered by these
riparian rights to the claimants under the grant of 1807 was only a
construction of a perfected Spanish title, and cannot be reviewed
by this Court under the twenty-fifth section of the Judiciary Act.
It did not draw in question an act of Congress or any authority
exercised under the Constitution or laws of the United States.
The facts in the case are sufficiently set forth in the opinion
of the Court.
Page 48 U. S. 590
MR. JUSTICE CATRON delivered the opinion of the Court.
This case comes here by writ of error to the Supreme Court of
Alabama, under the twenty-fifth section of the Judiciary Act of
1789, and the first question made by the defendants in error is
whether any matter presented by the record will authorize this
Court to exercise jurisdiction under the twenty-fifth section. And
to ascertain how far, if at all, the powers of this Court can be
called into exercise, the facts and the laws bearing on them must
be stated in something of detail, as in this case, in common with
many others, it is found much more difficult to settle the question
of jurisdiction and how far it extends than it would have been to
decide the merits of the controversy had the cause been brought
here by writ of error to a court of the United States.
Hunt, Hagan, and others sued in ejectment Kennedy's executors
and other tenants in possession for about ten acres of land lying
in the City of Mobile in the state circuit court. The plaintiffs
claimed title to the premises sued for under a grant made to John
Forbes & Co. in 1807, by Morales, Intendant General under the
Spanish government in the Province of West Florida, Spain being
then in possession of the province and exercising jurisdiction. The
grant, by its recitals, purports to be, in part, the confirmation
of a concession, and survey founded on it, of earlier dates, say
1796 and 1802, in favor of Panton, Leslie & Co., to which firm
Forbes & Co. were successors. The concession was surveyed in
1802 by Collins, an authorized surveyor under the Spanish
government, and its eastern boundary terminated on the bank of the
Mobile River, at high water mark; the survey contained two hundred
and sixty-three acres, equal to about three hundred arpens. To the
extent of Collins' survey there is no controversy, but Forbes &
Co. solicited the Intendant General in 1807 to grant them the
flowed land lying east of the eastern boundary of the survey, and
between the same and the channel of the river, and which the
Intendant proceeded to do, in the following terms:
"And as the distance that is observed in the map from the river
to the boundary lines of the land, which was left vacant at that
time in consequence of its having been impassable, has since become
of great use to the claimants, having constructed levels and the
necessary drains, in consideration of which it has been granted to
them as a compensation for their labor thereon invested, with the
reserve such as necessary to allow a free passage along the bank of
the river, without altering the figure of the tract on either of
the other sides. Wherefore, using and exercising the powers which
the King our lord -- God preserve him! -- has conferred on me, I
do
Page 48 U. S. 591
in his royal name confirm and ratify to the aforesaid John
Forbes & Co. the possession of the three hundred and ten
arpens, seventy-seven perches and one eighth, already mentioned,
and which are contained in the map (No. 1809), with the corrections
made by the surveyor general, in order that they may own and
possess the same, sell and alienate the land at their own and
entire pleasure, without prejudice to any third person who may have
a better right, on condition that they should observe and fulfill
the requisitions of the land regulations formed and published by
the intendancy on the seventeenth of July, 1799, as far as the
local situation and quality of the land will permit."
According to Spanish usages and regulations, the grant to Forbes
& Co. was a perfect title, and as such binding on the
government of Spain, although made in 1807, after that government
had parted with its power to grant, according to our construction
of the treaty of 1803, the limits of which were claimed by this
government to extend east to the River Perdido, and which claim has
been upheld and established by the political and judicial
departments of the United States. The first conclusive step was
taken by Congress as early as 1804, when, by the act of March 26 of
that year, it was declared that all grants made by the Spanish
authorities after 1 October, 1800 (the date of the treaty of St.
Ildefonso) should be held and deemed to be void. But the act
excepted from its operation
"any
bona fide grant made agreeably to the laws,
usages, and customs of the Spanish government, to an actual settler
on the lands so granted for himself and for his wife and
family,"
and also excepted
"any
bona fide act or proceeding done by an actual
settler agreeably to the laws, usages, and customs of the Spanish
government, to obtain a grant for lands actually settled on by the
person or persons claiming title thereto, if such settlement, in
either case, was actually made prior to 20 December, 1803."
Some restrictions were imposed on actual settlers in regard to
quantity that have no application to the grant of Forbes &
Co.
The Spanish grant recites that Forbes & Co. had been settled
on the land granted, and that it had been occupied and cultivated
by them since the year 1796, and up to the date of the grant, and
such was the proof made before our commissioner, and therefore the
"proceeding" by which the imperfect title of Forbes & Co. was
completed was within the second exception of the act of 1804. That
the grant made by the Intendant General Morales, in 1807, was in
itself, unaided by the sanction of Congress, a valid title, we do
not assert;
Page 48 U. S. 592
but being reported on by the commissioner as a title complete in
form, according to the usages and laws of Spain, and recognized and
sanctioned by Congress as a perfect title by the act of 1819, the
courts of justice are concluded by the action of the political
department, and bound to pronounce the grant to Forbes & Co. a
perfect title in substance as well as form, because the claim was
within the exclusive jurisdiction of the political department in
1819, when Congress acted on it. Such is the well established
doctrine of this Court, as will be seen by the cases of
Chouteau v.
Eckhart, 2 How. 344;
Mackay v.
Dillon, 4 How. 421, and especially that of
Les Bois v.
Bramell, 4 How. 461.
Nor did the grant of Forbes & Co. require any further step
to perfect its boundary. This being the
prima facie
condition of Forbes & Co.'s grant, the next inquiry is whether
those claiming under Kennedy's title were in a condition, on the
trial in the state court, to call the plaintiffs' title in
question.
The defendants below claimed by virtue of an Act of Congress,
passed March 2, 1829, confirming an incomplete Spanish concession
made to Thomas Price. By the fourth section of the confirming act
of 1829, it is provided
"That the confirmations of all the claims provided for by this
act shall amount only to a relinquishment forever, on the part of
the United States, of any claim whatever to the tracts of land and
town lots so confirmed, and that nothing herein contained shall be
construed to affect the claim or claims of any individual or body
politic or corporate, if any such there be."
And by the fifth section of said act, the register and receiver
of the land office at St. Stephens were invested with power, within
their district, to direct the manner in which all claims to lands
and town lots which had been confirmed by that act should be
located and surveyed, having reference to the laws, usages, and
customs of the Spanish government on the subject, and also to the
mode adopted by the government of the United States, pursuant to
the Act of March 3, 1803. And by section sixth, certificates of
confirmation and patents were ordered to be granted for all lands
and town lots confirmed by the act.
According to the act, the claim of Joshua Kennedy
(representative of Thomas Price) was duly surveyed on 2 February,
1836, and in May, 1837, a patent was taken out by Kennedy for the
land described in the survey. The calls in the patent having any
connection with the present controversy are as follows:
"Thence north, 69�5' east, 15 chains 44 links, to the ancient
margin of the River Mobile, being
Page 48 U. S. 593
34 1/2 links west of the south angle of St. Louis and Water
Streets; thence north, 66� west, nine chains and seventy-six links,
to the southeast corner of the Orange Grove tract granted to John
Forbes & Co."
The next line runs north, 82� west, with the southern boundary
of Forbes & Co.'s tract.
The southeast corner of the Orange Grove tract is an iron-bound
stake, well known, and from which the Spanish survey made by
Collins runs due north, and from that line east to the channel of
the river the land was added by the grant of the Intendant General
Morales in 1807.
The line of Kennedy's grant fronting towards the river runs 66�
west of north, and it is contended that Kennedy, as a front
proprietor, is entitled to claim a riparian right to the channel of
the river, according to lines drawn at right angles to the front
line and from each terminus thereof, unless some other claim shall
interfere, and it is insisted that the addition made to Forbes
& Co.'s grant in 1807 cannot hinder the assertion of Kennedy's
riparian right, because the addition was made after Spanish
authority ceased, and for so much the grant of 1807 is void, and
being out of the way, Forbes & Co. can only claim as front
proprietors, riparian rights in like manner that Kennedy himself
claims; and to extend Forbes' southern line east, and Kennedy's
lines at right angles, as above stated, would produce a conflict of
riparian rights incident to the respective grants, the lines
crossing each other at the iron-bound stake, forming an acute angle
at the stake, and widening towards the channel of the river; and
this angle, it is assumed by those claiming under Kennedy's grant,
should be divided between the two grants, but in what proportions
we are not informed. This assumption the state court rejected, and
held that Forbes & Co.'s grant took all the land to the channel
of the river north of a direct extension of its southern boundary,
and thereby cut off the pretension of Kennedy to the incident of
alluvion.
Suppose it to be true that the addition made to Forbes &
Co.'s grant in 1807 was void for want of authority in the Spanish
government or for any other reason, and that Kennedy's grant was
entitled to divide the alluvion as an incident to it, and that the
state court improperly rejected his claim, and wrongfully adjudged
the land to Forbes & Co. -- conceding all these assumptions,
can this Court revise and reverse the decision of the state court?
The controversy respecting the alluvion drew in question no act of
Congress, nor any authority exercised under the Constitution or
laws of the United States, and therefore the decision of the state
court could not be opposed either to the laws or to any authority
exercised under the laws
Page 48 U. S. 594
of the United States. For the established construction and
application of the twenty-fifth section of the Judiciary Act we
refer to the cases of
Crowell v.
Randell, 10 Pet. 391,
35 U. S. 398;
McKinney v.
Carroll, 12 Pet. 68; and
Armstrong v. Treasurer of
Athens County, 16 Pet. 284. In this case, as in
that of
McDonogh v.
Millaudon, 3 How. 693, the state courts were called
on to construe a perfected Spanish title, and to settle its limits
by applying the local law, and having done so, this Court has no
authority to revise the judgment; nor can we see how the case would
have been different had Forbes & Co.'s grant been an elder
patent emanating from the United States directly, as in such a case
a controversy concerning the incidents of alluvion would not have
drawn in question an act of Congress or a survey made according to
an act of Congress.
We deem it useless to examine in detail the instructions
proposed by the defendants below, and rejected by the court. The
only one worthy of notice was that which rejected Weakly's survey
of Forbes & Co.'s grant, made and approved in 1835. It could
not change the grant, nor affect its validity in any degree, and
could only be read to establish boundary as a matter of fact, and
neither its admission nor rejection, when offered for such purpose,
could give this Court jurisdiction, no matter which side should be
injured, and so this Court in effect held in the case of
Mackay v.
Dillon, 4 How. 447. The survey was an
ex
parte proceeding for the purposes of the land office, and
immaterial to Forbes & Co.'s title.
On careful examination, we are of opinion that no one question
was raised and decided in the state courts that gives this Court
jurisdiction to revise such decision, and that therefore the case
must be
Dismissed for want of jurisdiction.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Alabama and was argued by
counsel. On consideration whereof it is now here ordered and
adjudged by this Court that this cause be and the same is hereby
dismissed for want of jurisdiction.