Where the petition for a Spanish concession was for a tract of
land without any definite boundaries, and the petition was referred
to the solicitor general with instructions to put the petitioner in
possession if in so doing no prejudice would result to third
persons, this condition required some subsequent action of the
government in order to make the grant absolute.
A part of the duty of the solicitor general was to supervise the
severance of the object to be granted from the royal domain and
apportion the extent of the grant to the means which the petitioner
possessed towards carrying out the objects of the government.
The preceding decisions of this Court have established the
doctrine that in order to constitute a valid grant, there must be a
severance of the property claimed from the public domain, either by
actual survey or by some ascertained limits or mode of separation
recognized by a competent authority.
In the present case, the proof of occupation, settlement, or
cultivation is insufficient.
Lecompte claimed under D'Artigau by a chain of title which it is
not necessary to set forth.
On 31 July, 1797, D'Artigau presented the following petition to
Jose Maria Guadiana, then lieutenant governor and civil and
military commandant of the post of Nacogdoches:
"Don Juan Baptiste D'Artigau respectfully begs leave to state to
your Excellency that he desires to establish a stock farm, to raise
horses, mares, and horned cattle, at the place called Lianacoco,
within this jurisdiction; for said object, he prays your Excellency
will please grant him two leagues square of land at the
above-mentioned place, so that in these two leagues be included or
embraced the entire prairie of Lianacoco. The petitioner solicits
this grant for himself, his children, and assigns, and, from your
well known sense of justice, he hopes to obtain it."
"[Signed] J. B. D'ARTIGAU"
"Nacogdoches, 31 July, 1797"
And on the same day, the lieutenant governor issued the
following order:
"Nacogdoches, 31 July, 1797"
"Let this petition be handed to the solicitor general of this
place in order that the petitioner be placed in possession of the
land therein mentioned if in so doing no prejudice can result to
any third party."
"[Signed] GUADIANA"
The claimant alleged that possession was taken by the grantee,
and continued by those who held under him until the commencement of
the suit.
Page 52 U. S. 116
This claim was twice reported upon by the commissioners
appointed by acts of Congress, once in 1816 and again in 1824.
In January, 1816, the commissioners reported, 3 American State
Papers 88, that Madame Louise Porter filed with the board of
commissioners her claims as assignee of D'Artigau; also the
testimony of Gaspard Boudin, taken before the board, that about
thirteen or fourteen years ago,
viz., about 1802 or 1803,
Madame Monet had possession of this land in exchange for another
tract with D'Artigau, and that she put Jaques, an Englishman, on
it, and that it had been inhabited and cultivated ever since.
The board, at page 91, report that this tract is, with others
emanating from the Spanish authorities at Nacogdoches, west of Rio
Hondo in the disputed territory; that they have had no means of
acquiring satisfactory information of the powers and authorities of
the Spanish officers at that place, and therefore decline a
decision upon those claims.
On 3 March, 1823, Congress passed an Act, 3 Stat. 756, ch. 30,
relative to claims in this tract of country, between the Rio Hondo
and Sabine River, called the "neutral territory."
The first section adds the country
"situated between the Rio Hondo and the Sabine River, within the
State of Louisiana, and, previously to the treaty of 22 February,
1819, between the United States and Spain, called the 'neutral
territory,'"
to the district south of Red River, requires the register and
receiver to receive and record all written evidences of claims to
land in that neutral country,
"derived from, and issued by, the Spanish government of Texas
prior to 20 December, 1803, according to the regulations as to the
granting of lands, the laws and ordinances of said government, and
to receive and record all evidences of claim founded on occupation,
habitation, and cultivation, designating particularly the time and
manner in which each tract was occupied, inhabited, or cultivated,
prior to and on 22 February, 1819, and the continuance thereof
subsequent to that time, with the extent of the improvement on each
tract, and to receive and record such evidence as may be produced
touching the performance of the conditions required to be performed
by any holder of any grant, concession, warrant, or order of
survey, or other written evidence of claim, and on which the
validity of such claim may have depended under the government from
which it emanated, and to receive and record all evidence of fraud
in obtaining or issuing the written evidence of such claims and of
their abandonment or forfeiture. "
Page 52 U. S. 117
Section second required the register and receiver to transmit to
the Secretary of the Treasury a record of all the claims presented,
and the evidence appertaining to each claim, the claims to be
arranged in four classes:
1. A specification of complete titles, transfers &c., where
the conditions have been complied with.
2. All claims on written evidence not embraced in the first
class, where the conditions on which the perfection into complete
titles depended, according to the laws and ordinances of the
Spanish government, are shown to have been complied with.
3. All claims founded on habitation, occupation, or cultivation,
previously to 22 February, 1819, and in the manner which would have
entitled the claimants to a title under the government exercising
the sovereign power over that tract of country, and which in their
opinion ought to be confirmed.
4. Those claims which, in the opinion of the register and
receiver, ought not to be confirmed, "Provided, that nothing
contained in this act shall be considered as a pledge on the part
of Congress to confirm any claim thus reported."
By a Supplementary Act approved 26 of May, 1824, 4 Stat. 65, ch.
182, the powers given and duties required of the register and
receiver of the land office south of Red River in the State of
Louisiana by Act of 3 March, 1823, ch. 30, (the act above recited)
be extend to all that tract of country called the neutral
territory
"lying east of the present western boundary of Louisiana and
west of the limits to which the land commissioners have heretofore
examined claims to land in said state, and in the examination of
claims to land within the aforesaid limits, the register and
receiver shall in all respects be governed by the provisions of
said act."
In November, 1824, these commissioners made a report which was
communicated to the Senate by the Secretary of the Treasury on 31
January, 1825. 4 American State Papers 69, claim 230
This report shows the powers, customs, and usages of the
lieutenant governors and commandants of the Spanish Province of
Texas to grant lands as far back as 1792; then special instructions
came which were deposited among the public records; they were not
limited to any specific quantity, but it was their duty to
apportion the quantity to the circumstances of the individuals
asking concessions, "to proportion their grants to the property,
force, stock, and merit of the individual asking the grant."
Page 52 U. S. 118
"The
procurador del comun was the officer appointed to
make inquiry, put the petitioner in possession of the land prayed
for, and execute the lieutenant governor's and commandant's orders
relative to the premises."
The lieutenant governors and commandants of Nacogdoches were
"not limited in the granting of lands to any specific quantity,
but it was their duty to proportion the extent of the grants to the
circumstances of the individual claiming them, and to that effect
the
procurador del comun, named to put the party in
possession, inquired into the merits and circumstances of the
applicant, and if the grant was for a stock farm, it was customary
to extend the concession to two, three, and four leagues square,
according to the wants and merits of the claimant."
"All grants signed and confirmed by the lieutenant governor or
commandant, executed in due form, were considered as vesting a
complete title in the claimant, without any further process, and
were recognized as such by the governor of the province,
particularly by Governor Salcedo in 1810, when at Nacogdoches
making his provincial visit."
"The limits of the late neutral territory, as considered by
ancient authorities of Texas and Louisiana, comprehended all that
country lying east of the Sabine, west of the branch of Red River
called Old River, southwest of Arroyo Hondo, and south of Red
River, to the northwestern boundary of the State of Louisiana."
"The inhabitants of the neutral territory were recognized as
belonging to the jurisdiction of Nacogdoches, and the Spanish
authorities considered their right of civil jurisdiction not taken
away by the arrangement between General Wilkinson and Governor
Herrera in the year 1806; yet it was seldom exercised or
enforced."
"The public archives and records of the jurisdiction of
Nacogdoches are not at that place at present; they were removed and
carried off by John Jose Montero in 1812, then commanding at
Nacogdoches, when he abandoned that place, and were destroyed at
San Antonio, where said Montero carried them."
Such is the substance of the testimony taken by the
commissioners and reported more at large in that volume, pp. 34, 35
and 36.
At page 69, claim 230, the commissioners report the claim of
John Baptiste Lecompte, lying in the neutral territory, founded on
the concession to D'Artigau, before set forth, containing, by the
plat and survey by Joseph Irwin, a deputy surveyor of the United
States in 1813, and filed with the claim,
Page 52 U. S. 119
two leagues square, or 23,507 acres, which concession
"was signed by the commandant of Nacogdoches, dated 31 July,
1797, in favor of Jean Baptiste D'Artigau for the land claimed,
transferred by said D'Artigau to Marie Louise Lecompte, Dame Porter
by act of exchange, dated _____, and by said Dame Porter
transferred to the claimant by act of sale, dated 19 June, 1813;
claimed also in virtue of habitation, occupation, and cultivation
for more than thirty-three years."
The claim is further supported by the following testimony, taken
before the board:
"Gaspard Boudin: that the land has been constantly and
uninterruptedly inhabited, occupied, and cultivated by those under
whom the claimant, J. B. Lecompte, holds, by the claimant, and for
his use by others, for more than thirty-three years preceding this
date."
That is, preceding this sitting of the commissioners
"We are of opinion this claim ought to be confirmed, and in the
abstract have classed it with claims of second class."
(
Viz. incomplete grants, "where the conditions on which
the perfection thereof into complete titles may have depended,
according to the laws and ordinances of the Spanish government, are
shown to have been complied with.")
In May, 1846, Lecompte filed his petition in the district court
of the United States under the act of Congress of 1844, so often
spoken of, setting forth the grant, the order of survey, possession
under it, and a deduction of title from D'Artigau to the
petitioner. An answer was filed by Mr. Downe, district Attorney of
the United States, denying generally all the facts and allegations
of the petition. Afterwards, by leave of the court, the following
supplemental petition was filed:
"The supplemental petition of Ambrose Lecompte, the plaintiff in
the above-entitled suit, with respect represents, that the warrant
and order of survey and grant legally made and issued to J. B.
D'Artigau as aforesaid, in the original petition, was such as might
and could have been perfected into a complete title under the laws,
usages, and customs of Spain, had not the sovereignty of the
country been changed; that the same was secured by treaty
stipulations, and was and is good and valid under the law of
nations and by the several acts of Congress."
Much testimony was taken, which cannot very well be condensed,
and in November, 1847, the cause came on for trial, when the court
pronounced the following judgment:
"The court having taken this cause under advisement, and having
maturely considered the same, and it appearing that
Page 52 U. S. 120
the petitioner has not sustained by the evidence offered the
validity of his claim against the United States to the land set
forth in his petition, it is therefore ordered, adjudged, and
decreed that the suit be dismissed at the cost of the
plaintiff."
"Judgment rendered 22 November, 1847."
"Judgment signed 15 December, 1847."
"[Signed] THEO. H. McCALEB [SEAL.]
U.S. Judge"
Lecompte appealed to this Court.
Page 52 U. S. 124
MR. JUSTICE DANIEL delivered the opinion of the Court.
This is an appeal from a decree of the District Court of the
United States for the District of Louisiana, pronounced on 22
November, 1847, dismissing the petition of the appellant, filed
under authority of the Act of Congress of June 17, 1844, and by
which was claimed of the United States a tract of land situated in
Louisiana of four square superficial leagues, or about 23,705
American acres.
The appellant, as the heir of Marie Louise Lecompte (also styled
Dame Porter and Madame Monet), and as heir of his late father, Jean
Baptiste Lecompte, bases his claim upon the following statements.
He asserts that on 31 July, 1797, one Jean Baptiste D'Artigau, then
an inhabitant of Nacogdoches, presented his petition to Jose Maria
Guadiana, then lieutenant governor and military commandant of the
post of Nacogdoches, asking for a grant of two leagues square, to
include the whole of the Prairie Lianacoco, which prairie should,
as the petition to the district court represents, be the center of
the said grant; that on the same day Guadiana did grant and issue
his order of survey to the proper officer to put the petitioner
D'Artigau in possession, without prejudice to third persons, and
that D'Artigau took immediate possession of the above-described
lands and continued to possess, inhabit, and cultivate the same
until he transferred them by an act of exchange to Marie Louise
Lecompte. The petitioner next states that Marie Louise Lecompte
transferred the above-described tract of land to Jean Baptiste
Lecompte, the father of the petitioner; that there is no one
residing upon the land in question except one person, who holds
under the petitioner; that no person other than the petitioner
claims any part of the land, and that the United States have never
to his knowledge sold any part thereof. Such are substantially the
averments on which the plaintiff has placed his claim, and we will
proceed to examine how far, either intrinsically or as sustained by
any evidence adduced in their support, they entitled the plaintiff
to the establishment of that claim.
Page 52 U. S. 125
In considering this petition of the appellant, the circumstance
which first strikes the attention is the extreme vagueness of its
statements, and indeed its entire omission of facts which on the
slightest view would appear indispensable to give validity to this
claim. Thus, after setting forth the concession and an order to the
proper officer to cause a survey in order to put the petitioner in
possession according to survey, and with due regard to the rights
of others, omitting any and every fact or circumstance tending to
show a compliance with these directions, and the security they were
designed to extend either to the government or to individuals, it
is said that D'Artigau took possession, and held the land until he
transferred it to another. This vagueness and this omission in the
statements in the petition are by no means immaterial, inasmuch as,
if permitted, they would in effect dispense with all compliance
with the express orders of the granting power and the terms it had
annexed to its bounty; would dispense also with what has ever been
deemed indispensable -- some act or recognition showing the
separation of the subject granted from the royal domain. And in
truth the statement in the petition of the appellant is not
consistent with, but in terms as well as in effect conflicts with
the order of Guadiana, the Spanish commandant, as filed in support
of the appellant's claim. The language of the Spanish commandant is
as follows:
"Let this petition be handed to the solicitor general of this
place in order that the petitioner be placed in possession of the
land therein mentioned if in so doing no prejudice can result to
third persons."
Can this language be correctly construed to signify an absolute,
unconditional grant of any specific land or other thing -- such a
grant as put an end to or denied the superior revising authority
and duty of the government to take care both of the rights of the
Crown and of individuals? So far from it, the authority of the
government in relation to both are here expressly reserved. There
is nowhere in this record to be found a scintilla of proof that
this order, or the petition on which it was founded, was ever
presented to the solicitor general, or that any act was performed
by any functionary of the government severing the land from the
public domain or putting the petitioner D'Artigau, or any other
person in possession of any specific land so that a boundary or
limit could be defined by possession. There is, in fact, no proof
that D'Artigau took possession of anything certain or specific or
had a right to possess himself of anything specific.
Again, there seems to be an attempt, by the statement in the
petition to the district court, to give a definiteness to the claim
or the right by possession which the language of
Page 52 U. S. 126
the concession by no means warrants. Thus it is said in the
petition that the application of D'Artigau prayed for a grant of
which the Prairie Lianacoco should be the center. There is no such
language in the application presented to the Spanish commandant.
That application asked for a grant which might include the prairie
above named, but in what part of the grant, whether in relation to
the center or to any of its exterior boundaries, neither in the
prayer to the Spanish authorities nor in the order which followed
can any reference whatsoever be found.
The importance of the omission to aver and to prove a delivery
of the order of Guadiana, the Spanish commandant, to the
procurador del comun or solicitor general, and the action
of the latter upon that order, is shown in another point of view.
In the report of the commissioners for the settlement of land
claims in Louisiana, dated November, 1824, 4 American State Papers,
p. 34, 35, and 69, the following regulations are given as those
prescribed for the Spanish officers and practiced upon by them in
making grants for lands in the district of Nacogdoches:
"The lieutenant governors and commandants of Nacogdoches were
not limited, in the granting of lands, to any specific quantity,
but it was their duty to proportion the extent of the grants to the
circumstances of the individual claiming them, and to that effect
the
procurador del comun named to put the party in
possession inquired into the merits and circumstances of the
applicant, and if the grant was for a stock farm, it was customary
to extend the concession to two, three, and four leagues square,
according to the wants and merits of the claimants. The
procurador del comun was the officer appointed to make
inquiry, put the petitioner in possession of the land prayed for,
and execute the lieutenant governor's and commandant's orders
relative to the premises."
Such, we are told, were the functions and duties of the
procurador or solicitor general relative to grants of land
in this district. It was he who was to supervise the severance of
the object to be granted from the royal domain, to give it form and
extent, either by designating ascertained and notorious limits and
boundaries or by directing an actual survey and by reporting the
proceedings he may have directed for the sanction of his superior.
The applicability of the functions and duties of this officer to
the case before us is evinced by reference to the character of this
application to the government. This was not a prayer for an
ordinary portion of land for cultivation, but an application for a
wide extent of territory. such an extent as would be proper or
requisite only upon the supposition of its necessity for the
occupation of a large stock and a numerous
Page 52 U. S. 127
force. The petitioner avows his intention of raising horses,
mares, and horned cattle, a purpose requiring an extensive range if
carried into effect in good faith. It became, therefore, peculiarly
proper to inquire into the means of the applicant, and into the
probabilities of his executing his proffered intentions, as it
would be highly detrimental to the province to permit an individual
to retain a large and useless extent of unsettled land, and unjust
to other settlers to permit such individual, under a false
suggestion, to acquire an extensive property for the mere purposes
of speculation. Hence it was, no doubt, that the order of the
commandant of even date with the petition was issued, sending the
petition to the officer who was to judge of its propriety, and
without whose direction there could be neither a severance of the
land from the royal domain nor regular legitimate possession in
anyone.
These conclusions are in strict accordance with the numerous
decisions in this Court which insist on the necessity for the
severance of the property claimed from the public domain either by
actual survey or by some ascertained limits or mode of separation
recognized by a competent authority. The decisions just referred to
it would be tedious to cite in detail in this place; their effect,
however, may be seen in the following perspicuous summary, made by
THE CHIEF JUSTICE in the case of
United
States v. King, 3 How. 786,
44 U. S. 787,
in which he says, speaking of the documentary evidence in that
case:
"The instruments themselves contain no lines or boundaries
whereby any definite and specific parcel of land was severed from
the public domain, and it has been settled by repeated decisions in
this Court, and in cases, too, where the instrument contained clear
words of grant, that if the description was vague and indefinite,
as in the case before us, and there was no official survey to give
a certain location, it could create no right of private property in
any particular parcel of land which could be maintained in a court
of justice. It was so held in the cases in
40 U. S.
15 Pet. 184,
40 U. S. 215,
40 U. S.
275,
40 U. S. 319, and in
41 U. S.
16 Pet. 159,
41 U. S. 160. After such
repeated decisions upon the subject all affirming the same
doctrine, the question cannot be considered as an open one in this
Court. The land claimed was not severed from the public domain by
the Spanish authorities and set apart as private property, and
consequently it passed to the United States by the treaty which
ceded to them all the public and unappropriated lands."
They accord likewise with the decisions of the Supreme Court of
Louisiana as reported in 8 Martin 637, and in 5 Martin's New Series
110, in the former of which cases the court said:
"There is no order of survey; no decree of any kind is given
Page 52 U. S. 128
by the intendant or his representative. The application stands
unanswered. Now supposing the parties to be in the situation in
which they were before the relinquishment of the rights of the
United States, would the plaintiff be able to eject the possessor
of the land with such a paper -- a paper which is the act of the
party alone, and bears not the slightest intimation of the
grantor's pleasure?"
And in the latter case the Court held
"That a permission to settle, obtained on a requete but not
followed by an actual settlement, did not give a right superior to
that resulting from an actual settlement without permission, or in
other words from a naked possession."
And in the case of
Blanc v.
Lafayette, decided during the present term, the
person from whom the appellant deduced his title had upon a
petition to the Spanish intendant obtained an order to the surveyor
general to lay off the land. No report was alleged or proved to
have been returned by the surveyor general upon the petition, and
although this claim was favorably reported upon by the
commissioners, and although it was insisted upon as having been
confirmed by act of Congress of 1814, confirming a particular class
of incomplete French and Spanish grants, concessions, warrants of
survey, having a special and definite location, yet as this order
to survey had not been executed, and as the claim was not sustained
by certain and definite boundaries nor by proof of certain and full
possession, the Supreme Court of Louisiana decided, notwithstanding
a recommendation by the commissioners and the act of Congress of
1814, that there being no survey and no definite location or
description by possession, such as could create a specific right or
title under the Spanish authorities, the recommendation of the
commissioners and the act of Congress did not cure these radical
defects nor confirm a title so wholly undefined and deduced from so
defective an origin. The opinion of the court of Louisiana has met
the approbation of this Court, which has again ratified the
principles of that decision in the case of the
United
States v. Boisdore's Heirs during the present
term.
In the absence of documentary evidence showing any act of the
Spanish authorities beyond the first order of the commandant,
sundry witnesses have been examined, with the view to supply this
deficiency and to give certainty and definiteness to the claim by
proof of occupation. A proper analysis of the statements by the
witnesses must exhibit them as coming signally short of the ends
for which they have been introduced.
The witnesses Grenaux and Plaisance knew nothing whatever of a
grant to D'Artigau, nor of any exchange of property between
D'Artigau and Madame Lecompte.
Gaspard La Cour knew D'Artigau. Always understood
Page 52 U. S. 129
that Madame Lecompte obtained the land in exchange with
D'Artigau -- but does not know for what it was exchanged; never saw
any instrument or other document showing a grant or survey to
D'Artigau, or any exchange between the latter and Madame Lecompte;
witness is unable to write.
The evidence most favorable to this claim is that of Prud'homme,
but this testimony should be taken subject to the admission of the
witness that he is a connection of the claimant. Prud'homme states
that he knew D'Artigau more than fifty years ago -- knew that
D'Artigau had a large concession -- how large he does not state --
including the Prairie Lianacoco; knows that D'Artigau transferred
this concession to Marie Louise Lecompte in exchange for another
tract of land at the Tancock Prairie; is sure that this exchange
took place before the establishment of the United States government
in Louisiana (the witness gives no date for this transaction).
Witness knows that, more than fifty years ago, the plaintiff and
those under whom he claimed had possession of the Prairie Lianacoco
as a
vacherie, and has kept the same up to this time.
Recurring now to this testimony, so far as it is adduced to
establish a title by showing specific limits by occupation on the
part of D'Artigau, not one of the witnesses proves actual
occupation by D'Artigau of anything. La Cours understood that
Madame Lecompte obtained the land (what land is not shown) in
exchange with D'Artigau, and even Prud'homme can say no more than
that D'Artigau had a large concession including the Prairie
Lianacoco, and exchanged it with Madame Lecompte for the Tancock
Prairie. Limits, specific quantity, certain descriptions, such as
might constitute severance from the royal domain, are then wholly
out of the question so far as these or any of these requisites can
be deduced from possession by D'Artigau, for he never had
possession, and could therefore transfer no right resulting from
possession to Madame Lecompte or to any other person. We have
already considered how far such a severance could be deduced from
the order of the commandant at Nacogdoches.
In the next place, with regard to the possession of Madame
Lecompte or of those claiming under her relied on as the foundation
of title, it will be seen that this evidence is utterly inadequate
to any of the purposes for which it is adduced. The utmost that any
witness has been able to state on this point is a possession of the
Prairie Lianacoco, forming, as is admitted on all sides, but a
small portion of the claim insisted upon, and hence not forming a
description either as to quantity, locality, or limits, to direct
in ascertaining that claim. And
Page 52 U. S. 130
even with respect to this prairie itself, there is nothing to
show its position, extent, or limits or the actual occupation of
the whole or of any specific part of it by the ancestor of the
appellant. Upon this subject the record is singularly barren. The
only fact we can gather from it as indicating the extent of the
occupation is one which seems strongly to militate against a right
coextensive even with this fragment of the entire claim. The fact
here alluded to is the averment in the petition that there is a
single individual residing upon some portion of the land, who holds
under the petitioner; but on what portion, or by what metes and
bounds, whether within or without the limits of the Prairie
Lianacoco, is left wholly to conjecture.
Upon the whole, therefore, we are of the opinion that neither
upon the isolated order issued on 31 July, 1797, by the commandant
at Nacogdoches, nor by virtue of any fact or testimony adduced for
the purpose of showing a right to the land claimed as resulting
from occupation, settlement, or cultivation, or from any act of the
commissioners, or any law of the United States founded thereupon,
has the claim of the appellant been sustained. We therefore adjudge
that the decree of the District Court of the United States for the
District of Louisiana dismissing the petition of the appellant be
and the same is hereby
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Louisiana and was argued by counsel. On consideration whereof, it
is now here ordered, adjudged, and decreed by this Court that the
decree of the said district court in this cause dismissing the
petition of the claimant be and the same is hereby affirmed.
