In adjudicating upon an imperfect title under a Spanish
concession, this Court again adopts the rule laid down in
35 U. S. 10
Pet. 330,
35 U. S. 331;
viz., can a court of equity, according to its rules and
the laws of Spain, consider the conscience of the King so affected
by the acts of his lawful authorities in the province that be
became a trustee for the claimant, and held the land claimed by an
equity upon it, amounting to a severance of so much from the public
domain before and at the time the country was ceded to the United
States?
This rule, applied to the following case, brings out the results
stated below.
In 1783, in consequence of a memorial from Boisdore, Miro, the
Acting Governor of Louisiana, issued the following order to
Trudeau, the Surveyor General,
viz.:
"Don Carlos Lavean Trudeau will establish Louis Boisdore upon
the extent of ground which he solicits in the preceding memorial,
situated in the section of country commonly called Achoucoupoulous,
commencing in front from the plantation belonging to Philip
Saucier, a resident of said country, down to the bayou called
Mosquito Village Bayou, with the depth down to Pearl River, the
same being vacant and no prejudice being caused to the neighbors
living as well in front as upon the depth, which measures he will
reduce to writing, signing with the aforesaid parties, and will
remit the same to me in order that I may furnish the party
interested with a corresponding title in due form."
Boisdore, in his memorial, had stated that he wished to form an
establishment for the whole of his numerous family, on which he
might employ all his negroes, and support a large stock of cattle
which would be useful to the neighboring city.
The grantee took only a trifling possession of the land by
placing a single slave there, and Trudeau never made, nor attempted
to make, a survey. In 1808 the Spanish governor of Florida gave
directions to the Surveyor General of Florida, who drew a
figurative plan of a survey, but the Governor of Florida at that
time had no jurisdiction over the land.
If Trudeau had made a survey and returned a certificate, it
would have been binding, although it might not have conformed
strictly to the lines of the original grant. But the description of
the tract is so vague and uncertain, that it cannot now be surveyed
by an order of the court. The mode directed by the district court
would include four hundred thousand acres, and it is unreasonable
to suppose that the conscience of the King of Spain would have been
bound to confirm such a grant, when the grantee neglected to
fulfill the obligations which were incumbent upon him.
Besides, there being no given point from which to commence the
survey, or to establish the second corner, if the court were to
order the mode in which the survey was to be made, it would not be
a judicial decree, but an exercise of political jurisdiction.
The case arose under the Act of 26 May, 1824, 4 Stat. 52, as
revived and reenacted by the Act of June 17, 1844, 5 Stat. 676. A
petition was presented to the District Court of the United States
for the Southern District of Mississippi, by the heirs of Louis
Boisdore, claiming a large
Page 52 U. S. 64
tract of land lying between the Bay of St. Louis and Pearl River
in the State of Mississippi, and below the thirty-first degree of
north latitude.
The circumstances were these.
On 1 April, 1783, Louis Boisdore presented the following
application to Miro, the acting Governor General of Louisiana.
"Senor Governor General: I, Louis Boisdore, a citizen of this
city, do, with due respect, present myself to your Excellency and
say that, wishing to form an establishment and cow house cattle
raising farm in the vicinity of the Bay of St. Louis, in the place
commonly called Achoucoupoulous, for all my family, which is very
considerable, as is well known to your Excellency, and moreover,
for the purpose of employing all my negroes on it, and keeping a
considerable stock of cattle which I have already on the place, the
place being almost uninhabitable, only fit for a vaqueria (cattle
raising farm). May it please your Excellency, in consideration of
what is above explained, and of the benefit that will result to the
capital city from such a considerable cattle raising establishment
as the one which I have commenced to form in the said place, and in
the vicinity of said city, to grant to me the portion of ground
which is vacant in the said place section of country, known under
the name of Achoucoupoulous, running from the plantation of Philip
Saucier up to the bayou called Bayou of Mosquito Village, formerly
inhabited by Mr. paper torn off, and running in depth down to Pearl
River, in order that I may form with facility the aforesaid
establishment and cow house cattle raising farm for all my family
as aforesaid, a favor which I hope, according to justice, from the
granting power which is vested in you."
"New Orleans, 1 April, 1783."
"[Signed] L. BOISDORE"
Upon which application, the Governor General issued the
following,
viz.:
"New Orleans, 26 April, 1783"
"Considering the sufficient reasons explained to me above, and
having regard to the advantage and utility which will result to the
capital from the establishment of a cow pen
(vaqueria) in
that section of the country, little suited to any kind of culture,
the surveyor of the province, Don Carlos Laveau Trudeau, will
establish Don Louis Boisdore on the tract of land which he solicits
in the preceding memorial, situated in the section of country
commonly called Achoucoupoulous, taking
Page 52 U. S. 65
as the front from the plantation of Philip Saucier, a resident
of said section of country, to the bayou called the Bayou of the
Village of Maringouins, with a depth unto Pearl River, it being
vacant, and causing no prejudice to the neighboring inhabitants, as
well in front as in depth, which proceedings he will extend in
continuation, sign and forward to me, with the preceding, that I
may furnish the party interested a title in due form."
"MIRO"
In 1808, Boisdore having died, his widow authorized Don Gilbert
Guillemard, a lieutenant-colonel in the army, to obtain an order
for a survey from Morales, then in Pensacola. In the petition,
Guillemard recites as follows:
"And although, at that period, on account of the multifarious
occupations which engrossed the attention of Charles Laveau
Trudeau, the surveyor, in relation to the admeasurement and survey
of lands of value, and on account of the great expense to be
incurred previously, he did not proceed to the admeasurement and
marking out the boundaries of said tract of land, but
notwithstanding transported and conveyed thither a large stock of
cattle, and placed thereon a stock keeper named Augustus Mallet,
who remains on to the present day, to preserve the right of
property in himself, which the said Boisdore in his lifetime
possessed,"
&c.
This petition was referred to the fiscal minister of the Royal
Treasury, who, on 7 April, 1808, ordered the Surveyor General to
make out a map and certificate of survey to be returned to him.
On 23 May, 1810, Pintado addressed a letter of instructions to a
deputy surveyor, instructing him to lay down the lines of the grant
as follows:
"The demand of M. S. Boisdore, senior, is conceived in a manner
a little confused in regard to the place, for he says in his
memorandum of 1 April, 1783, that the land which he claims is on a
place called Achoucoupoulous, commencing from Philip Saucier's
plantation, as far as the bayou called the Mosquito Village,
formerly inhabited by Madam Susser, extending back to Pearl River.
This description causes sufficient embarrassment in determining the
form or figure which the land ought to have; however, as he calls
the front the distance from Saucier's plantation to the Bayou of
Mosquito Village, the depth, as far as Pearl River, can be
understood only by two lines drawn from the said last two points,
so as to strike the said Pearl River; that is to say, the
easternmost of the three which take this name, and these lines
ought
Page 52 U. S. 66
naturally to run to the west, one from Saucier's plantation, and
the other from Mosquito Village. The little sketch
(crouquis) annexed will give you a clearer idea. Though
there is no geometrical precision, it approaches, notwithstanding,
to the figure of the place. You will send it back to me when you
have finished the business,"
&c.
On 30 May, 1810, Pintado, the Surveyor General, returned a
certificate, with a map. In the certificate he says that
"the map represents and shows the tract of land, with the shape,
figure, and extent, and the boundaries, bounds, and confines,
natural and artificial, which should serve for limits,"
and then refers to a more particular map to be made hereafter by
anyone of his deputies, or by and other person,
"so that the northern boundary shall be bounded by lands
belonging to the King, on the south by the bank of the sea, on the
east by the same and a part of the Bay of St. Louis, and on the
west by the above-mentioned Pearl River."
In order to understand the argument and decision, it will be
necessary to insert a sketch of this map.
image:a
Page 52 U. S. 67
Under the act of Congress passed on 25 April, 1812, 1 Land Laws
208, this claim was presented to the commissioner appointed for the
district east of Pearl River. Mr. Crawford, the commissioner,
reported that the land was not cultivated and not inhabited.
Under the Act of Congress passed on 3 March, 1819, 1 Land Laws
316, the claim was again presented to the register and receiver of
the land office at Jackson Courthouse, who made the following
special report:
"No. 2. This claim is founded on an order of survey issued by
Governor Miro in favor of Louis Boisdore, confirmed to his widow,
Marguerite Doussin, by the Intendant Morales, 4 April, 1808.
Although a map or conjectural plan of the limits of the above
claim, made by the Surveyor General, Pintado, 30 May, 1810,
accompanies the title papers, yet it does not appear to be the
result of an actual survey, nor to have been made with geometrical
precision, but merely intended for the direction of such persons as
might be employed to make the survey. No survey appears to have
been made. This claim extends from the Bay of St. Louis to the
mouth of Pearl River, and is supposed to contain several hundred
thousand acres."
"Land office, Jackson Courthouse, July 11, 1820."
"WILLIAM BARTON,
Register"
"WILLIAM BARNETT,
Receiver"
"Attest: JOHN ELLIOT,
Clerk"
Under the Act of the 24 May, 1828, 1 Land Laws 445, this claim
was again presented to the register and receiver at Jackson
Courthouse. All the documents were submitted to this board,
together with the depositions of sundry persons, showing the
genuineness of the signatures of the Spanish officers, the locality
of the land, and its possession.
The commissioners made the following report:
"
Remarks"
"Claim No. 4. This claim is founded on an order of survey issued
by Governor Miro, in favor of Louis Boisdore, and confirmed to his
widow, Marguerite Doussin, by the Intendant Morales, 4 April, 1808.
It does not appear by the title papers that an actual survey was
made with geometrical precision; yet a map, or conjectural plan,
definitely fixing the limits of the claim, was made by the Surveyor
General, Pintado, 30 May, 1810. This claim extends from Pearl River
to the Bay of St. Louis, and is supposed to contain about one
hundred thousand acres. "
Page 52 U. S. 68
"The additional testimony adduced to us proves incontestably
that this claim has been inhabited, and a part of the land kept
under cultivation, upwards of forty years. It is also in testimony
before us, that the extent of this claim was distinctly known to
the neighbors, and that the claimant set up his claim to the whole
limits contained within the before-mentioned figurative plan. The
above claim is forfeited under the Spanish laws, usages, and
customs, for want of inhabitation and cultivation within the time
prescribed by those laws and regulations. Yet, as the inhabitation
and cultivation appear to be very ancient, it is conceived that
this claim ought to be confirmed for a reasonable quantity."
"WILLIAM HOWZE,
Register"
"G. B. DAMERON,
Receiver"
"Attest: VALENTINE DELMAS,
Clerk"
By an Act of 28 May, 1830, 1 Land Laws 468, certain of the
claims reported by the above-named register and receiver were
confirmed, and the act has this special provision respecting the
claim in controversy:
"And provided, also, that the claim of the representatives of
Louis Boisdore, numbered four, in report numbered three, shall not
be confirmed to more than twelve hundred and eighty acres."
Under this act, a certificate was issued, and a survey made, of
the twelve hundred and eighty acres, by Elihu Carver, a deputy
surveyor, on 6 November, 1830, which was approved by the Surveyor
General south of Tennessee, on 11 August, 1832.
The act of Congress, passed in 1844, reviving and reenacting the
law of 1824, has been already referred to, in the opening of this
statement.
On 1 February, 1845, the heirs of Boisdore presented a petition
to the district court of the United States, which petition was
afterwards amended in November, 1845. This amended petition
disregarded the figurative plan of Pintado, and claimed that
"the form and extent of their grant, to which, by the manifest
and only reasonable construction of their concession, they are
entitled, is that which would result and be produced by regarding
as a base an assumed straight line between the two points called
for as the front of the grant;
viz., from the beginning
point, at the north side of Philip Saucier's plantation, to the
Bayou of the Mosquito Village, and thence, by two parallel
perpendicular lines, extended from each extremity of said base or
front line, till each sideline in its extension intersected the
Pearl River. "
Page 52 U. S. 69
They aver that their title was protected and secured by the
Treaty of St. Ildefonso of October, 1800, and by the Treaty of
Louisiana of 1803, and by the laws of nations, and would, by the
laws of Spain and the laws of France, have been perfected into a
complete title, had not the sovereignty of the country been
transferred to the United States.
They aver that their ancestor, the said Louis Boisdore, and
themselves, and their agents and representatives, have asserted
their right of ownership, and maintained possession by actual
inhabitation and cultivation of part of said land in behalf of the
whole, from 1783 to the present time, and kept up a large herd of
cattle and a grazing establishment on said land from the date of
the grant until many years after the jurisdiction of the Spanish
government had been superseded by that of the United States.
To this petition, the district attorney for the United States
demurred, but the demurrer was overruled, and he then filed an
answer.
The answer of the United States in substance denies that the
concession or order of survey conveyed any title whatever, but
insists that it is void for uncertainty, and that nothing was ever
done, during the existence of the Spanish authority in the
territory, to perfect it. It denies any authority in Morales to do
what he is alleged to have done. It denies that Louis Boisdore
maintained possession by actual habitation and cultivation, as
alleged in the petition, from 1783, and insists that, for want of
such inhabitation, settlement, and cultivation, the claim, if it
ever had any existence, was forfeited by the laws, usages, and
customs of the Spanish government. The United States admit that the
claim was presented to several boards of commissioners, but deny
that the petitioners, or those representing them, ever complied
fully with the acts of Congress, or presented any sufficient and
competent evidence of title, or any evidence which would justify a
favorable report. That the Act of 28 May, 1830, provides that it
shall not be confirmed to more than twelve hundred and eighty
acres, and they rely on that act as a final and complete rejection
of he claim, and as such final action upon it by the government of
the United States, that the court has no jurisdiction to try it.
They admit that they have caused the land to be surveyed, and have
granted and sold large portions thereof, and that the settlers and
purchasers are now in possession, and they are necessarily parties
to the suit. They do not admit that the original Spanish documents
and title papers were translated and recorded as required by law,
but require full and legal proof. They deny that the claim is
protected by the treaties of
Page 52 U. S. 70
1800 and 1803, or by the law of nations, or that it would or
ought to have been perfected into a complete title if the
sovereignty of the country had not changed. They insist that the
concession was conditional, and that the grantee should have
occupied and possessed within and for a limited time, and should
have established without delay, or within a reasonable time, a cow
pen, for the public benefit, and that a survey should have been
made within a reasonable time, and made a part of the public
records, so that the public might know what land, if any, was to be
separated from the public domain, and say that none of these
requisites was complied with, and that the claim was forfeited
according to the Spanish laws, customs, and usages. They, further
answering, say that they have been informed, and charge the truth
to be that the petitioners accepted the donation of twelve hundred
and eighty acres, for which Congress confirmed their claim by the
act of 1830, and it is now too late for them to disclaim the same;
that it was surveyed for them by Elihu Carver, a deputy surveyor,
and his survey approved by the Surveyor General south of Tennessee,
and submit that such acceptance of the twelve hundred and eighty
acres is a complete extinguishment of their claim or right to any
greater quantity; but whether accepted or not, they insist that the
act of 1830 was such a final action of the government of the United
States as deprives the court of jurisdiction.
A great number of depositions were taken on both sides. Those on
the part of the claimants were intended chiefly to prove the
genuineness of the documents, the heirship of the claimants, and
the locality and possession of the land. The deposition of
Bringier, Surveyor General of Louisiana, was also taken as to the
practicability of locating the grant, who concurred with Pintado in
his instructions of 23 May, 1810, and answered as follows:
"In answer to the third interrogatory, deponent says"
"In the case stated, I should first survey the front from point
to point, and then run back two lines perpendicular to the front,
and parallel to each other, to the natural boundary in the
rear."
On the part of the United States, the depositions (amongst
others) of Ludlow and Downing were taken. These persons had both
been surveyors general in Mississippi, and testified as
follows.
Mr. Ludlow said:
"Answer to interrogatory second: I have examined the order of
survey of Governor Miro to Louis Boisdore, dated April 26, 1783,
and believe the survey to be practicable, provided the plantation
of Philip Saucier and the Bayou of Mosquito
Page 52 U. S. 71
Village can be identified, and believe the survey should be made
by finding a straight line between the above-mentioned points and
raising perpendiculars upon said line, at its extremities,
extending back to Pearl River, provided there are no controlling
circumstances to give direction to the sidelines, such as adjoining
claims &c. The instructions of the Surveyor General Pintado are
clearly erroneous, as they, if followed, would give no sideline on
the west."
Mr. Downing said:
"Answer to second interrogatory: the phrase in the grant to
Louis Boisdore, 'the front thereof to commence from the plantation
of Philip Saucier,' 'and running to the Bayou of the Mosquito
Village,' is not sufficiently definite to enable a surveyor to fix
upon a beginning point or corner; both the beginning point and the
front line seem to be left to the discretion of the surveyor, and
it is questionable whether any two surveyors would settle upon the
same point for a beginning. I certainly could not adopt the views
of Pintado, the Spanish Surveyor General, for, in the diagram filed
in this case, and to which he refers in his instructions, he places
what should be the most eastwardly front corner on the back line of
the Saucier plantation; this seems to be his understanding of the
word from, in the grant. A line from this point to the mouth of the
Bayou of Mosquito Village would form a base, from each end of which
the sidelines should run at right angles; or in other words, the
sidelines of a Spanish grant, when the course or quantity is not
given or particularly specified, shall run 'as near as practicable'
at right angles from the front or shore. This has been the practice
on bayous and rivers, as well as on the seashore. In the present
case, a line run from the mouth of the Bayou of the Mosquito
Village, at right angles from a base line between the front
corners, would apparently, for several miles, range close along and
parallel with the east margin of Pearl River, and consequently
conflict with the uniform practice of the location and survey of
grants upon all navigable streams and shores. Upon the whole, I
think the calls of the grant in question so indefinite that no two
surveyors, having regard to the usages governing in surveys of
Spanish grants, would coincide in the survey of it as to form,
quantity,"
&c.
In November, 1847, the cause came on for trial in the district
court, when a decree was passed, confirming the title of the
claimants, and directing the survey to be made as follows:
"And it is further adjudged and decreed that the tract of land,
whereof title is so hereby confirmed, shall be surveyed and bounded
as follows, namely: having its beginning corner
Page 52 U. S. 72
at that point on the seashore, at the entrance of the Bay of St.
Louis, where the southeast corner of Joseph and Martial Nicaise's
claim, formerly the claim of Philip Saucier, has been established
by the survey made thereof by authority of the United States, as
approved and recorded; thence southwestwardly, by the meanders of
the seashore, to the mouth of East Pearl River; thence up said
river to the point on the northeast side where the easternmost
mouth of the Bayou Maringouin, otherwise called Mulatto Bayou,
intersects and empties into the said Pearl River, and which mouth,
so here intended to be described, is identical with that sometimes
called the lower mouth of the Pearl River cutoff, and which point
shall constitute the second front corner of the claim. From one of
these front corners to the other, in a direct course, shall be
drawn a theoretic baseline, and from each extremity of said
baseline, and perpendicular thereto, shall be projected the
sidelines of said claim, to be laid down in a direct course and
parallel to each other, till each, respectively, shall intersect
the Pearl River, between which two points of intersection the
meanders of Pearl River shall constitute the conjunction line of
said survey. And it is further ordered that the surveyor who shall
execute the boundary hereby directed shall note and report all
intersections of the sidelines with the public surveys of the
United States heretofore extended over said land, and especially
note and show the form and extent of all interfering private claims
held adversely to the petitioners, under grant or authority of the
United States, which may be found upon said sidelines and
projecting into said claim, as well as every other such adverse
claims as lie wholly within said survey."
"It is further adjudged and decreed, that all such adverse
claims and parts of claims as aforesaid, so found within the survey
hereby directed, shall be and the same are hereby exempted from the
operation of this decree so far as effects their validity; but in
place and stead of the lands included in such claims, the
petitioners are hereby adjudged to have right and claim to a like
quantity of lands from out of the public domain, as by law in such
case is provided."
"[Signed] S. J. GHOLSON"
From this decree the United States appealed to this Court.
Page 52 U. S. 86
MR. JUSTICE CATRON delivered the opinion of the Court.
The heirs of Boisdore filed their petition, in the nature of a
bill in equity, pursuant to the act of 1824, revived by that of
1844, against the United States, claiming a decree to a perfect
title for a large body of land fronting on the Bay of St. Louis and
the Gulf of Mexico, and extending in depth to Pearl River;
containing between one hundred thousand and four hundred thousand
acres in quantity, depending on the manner in which the claim
should be surveyed. A decree was made by the district court of
Mississippi, confirming the claim, and ordering a survey to be made
in a particular manner, which will more fully appear hereafter.
From this decree the United States appealed, and the first question
presented for our consideration is as to the nature and character
of the paper title on which the claim is founded.
It was a gratuitous concession, made in 1783, by the Governor of
Louisiana, exercising the powers of the King of Spain, and intended
mainly for the purpose of pasturage and raising cattle.
A petition was filed by Louis Boisdore, the ancestor of
complainants, representing to the governor that the petitioner,
being an inhabitant of New Orleans, and desirous to form a
plantation, or cow pen, in the vicinity of the Bay of St. Louis, at
a place commonly called Achoucoupoulous, for the whole of his
petitioner's family, which was very large, as was notorious to his
Excellency; and, moreover, that the petitioner might be enabled to
employ all his negroes thereon, and to support a large stock of
cattle which he had already; which land was, as it were, only
inhabitable as, and fit for, a cattle raising farm, and therefore
he proceeds to say:
"May it please your Excellency, in consideration of what is
above explained, and of the benefit that will result to the capital
(city) from such a considerable cattle raising establishment as the
one
Page 52 U. S. 87
which I have commenced to form in the said place and in the
vicinity of said city, to grant to me the portion of ground which
is vacant in the said place (section of country), known under the
name of Achoucoupoulous, running from the plantation of Philip
Saucier up to the bayou called Bayou of Mosquito Village, formerly
inhabited by Mr. (paper torn off), and running in depth down to
Pearl River, in order that I may form with facility the aforesaid
establishment and cow house cattle raising farm for all my family
as aforesaid: a favor which I hope, according to justice, from the
granting power which is vested in you. New Orleans, 1 April,
1783."
And on this petition, the governor proceeds to grant as
follows:
"New Orleans, 26 April, 1783. Being satisfied with the well
founded reasons expressed above, and with the usefulness and
advantage which will result to the capital city from the
establishment of a cattle raising farm in that section of country,
little fit for any cultivation, the surveyor of the Province, Don
Carlos Laveau Trudeau, will establish Louis Boisdore upon the
extent of ground which he solicits in the foregoing memorial,
situated in the section of country commonly called Achoucoupoulous,
commencing in front from the plantation belonging to Philip
Saucier, a resident of said country, down to the bayou called
Mosquito Village Bayou, with the depth down to Pearl River; the
same being vacant, and no prejudice being caused to the neighbors
living as well in front as upon the depth, which measures he will
reduce to writing, signing with the aforesaid parties, and will
remit the same to me, in order that I may furnish the party
interested with a corresponding title in due form."
"[Signed] MIRO"
As the two papers formed the contract between the government and
the petitioner, they must be construed together, there being a
proposition on one side to do certain acts, and an acceptance on
the other, limited by several restrictions. What is stated in
either paper as to fact and intent must be taken as true. The facts
appearing are, that Boisdore was an inhabitant of the City of New
Orleans; that he had a large family, and that he wished to
establish "a cattle raising farm."
There are several translations of this document from the
Spanish, but the true one is that a stock farm was to be
established on the land solicited; and that the establishment
contemplated was to be "for all the family" of the petitioner; and
on which he was to employ all his force of negroes.
These were leading motives set forth to the governor, and
Page 52 U. S. 88
the benefit that would result to the city from such an
establishment was also presented as a prominent consideration why,
on public grounds, the grant should be made.
On these motives, and their obvious consequence if the cattle
farm were established as proposed, the governor acted.
This contract is to be construed with reference to the laws of
the place where and when it was made, and the usages and customs
observed in making similar concessions.
By the act of 1824, we are required to exercise the power of a
court of equity, and to adjudge in the given case whether a court
of equity could, according to the rules and laws of Spain, consider
the conscience of the King so affected by the acts of his lawful
authorities in the province, that he became a trustee for the
claimant, and held the land claimed by an equity upon it, amounting
to a severance of so much from the public domain, before and at the
time the country was ceded to the United States. This was the rule
laid down for our government in 1836 in the case of
Smith v. United
States, 10 Pet. 330,
35 U. S. 331,
and which has been uniformly followed since.
The first act the claimant was bound to perform was taking
possession, in regard to which it is proved by several witnesses,
by affidavits taken in 1828, and then filed with the register and
receiver at Jackson Courthouse in Mississippi, and which proofs are
made evidence by the act of 1824, that Boisdore had had possession
of a place on the Mulatto Bayou for forty years before 1828; that
the land was cultivated, and cattle kept there, and the register
and receiver found that the land had been inhabited and cultivated
from 1788 to 1828, by Boisdore and his representatives; nor do we
see any occasion to dissent from this finding.
And furthermore, as it appears from Boisdore's petition in 1783,
that he had commenced forming a cattle raising establishment at
said place, we deem it fair to presume that the possession and
occupation proved to have existed in 1788, and afterwards, did also
exist from 1783 to 1788, and so the petition to the circuit court,
seeking a confirmation, states the fact to have been.
As respects the nature and extent of this occupation, the
evidence is obscure. Complainants allege
"That their ancestor, Louis Boisdore, during his lifetime, and
his representatives after his decease, occupied, possessed, and
cultivated said tract of land, from 1783 until the year 1828; that
their ancestor, and his widow and representatives, kept up and
supported said plantation and grazing farm upon said land during
the whole of that period of time, and fully complied with all the
conditions
Page 52 U. S. 89
of the grant, and all the laws, customs, and usages of Spain in
relation to grants of its public domain."
This allegation is directly denied by the answer, and proof of
the facts alleged imposed on complainants. Lewis Daniell, a witness
examined by them, states that in 1824, when he first examined these
lands, a few acres were cleared near Mulatto Bayou, which had then
the appearance of being very anciently cleared and cultivated; that
on it and in its vicinity were found weeding hoes and axes much
worn by use; that the old field was the first settlement made on
the east side of the bayou, and was made by Louis Boisdore,
according to the general reputation of the country.
Elihu Carver, another witness of complainants, states, that in
1814 or 1815 he learned from cow hunters, who were sold
inhabitants, that the old improvement was called Boisdore's cow
pens, and that there was then another place, within less than a
mile, where a person yet cultivated a small field on the east of
the said bayou, whom he then understood to be a stock-keeper for
Louis Boisdore; this last place was on the land now owned by F.
Saucier.
Samuel White, examined for complainants, states:
"I know this bayou, and all the considerable branches thereof;
its present name is Mulatto Bayou; it was known by this name as
long ago as 1820 or 1821. It took its name, as I always understood,
from the mulatto man who lived somewhere near what was formerly
called Point Boisdore, and who was stationed there to take care of
the stock of Louise Boisdore."
By the affidavits taken and filed on behalf of complainants
before the register and receiver, in 1828, it appears that the
person above referred to was a slave, named Matthew, who belonged
after the death of Louis Boisdore to his widow, and who kept cattle
on the land for his widow and heirs. And as this man gave its
English name to the bayou, and is proved by White to have kept
stock there for Louis Boisdore in his lifetime, we hold it to be
sufficiently established that he had this one slave there, from the
date of the grant in 1783; but as the affirmative fact of
occupation was imposed on complainants by the pleadings, and as the
original improvement on the land was next to nothing, no further
presumption can be made that other slaves were there.
The next leading question arises on the necessity of a survey
before the land solicited and granted was severed from the public
domain -- that is to say, whether the grant identifies the land, or
whether a survey was required to establish its identity. Boisdore
asked for a grant in the "vicinity" of the Bay of St. Louis, at a
place called Achoucoupoulous, running from the
Page 52 U. S. 90
plantation of Philip Saucier up to the Bayou of Mosquito Village
Mulatto Bayou, and extending in depth down to Pearl River.
The governor ordered Trudeau, the Surveyor General, to establish
Boisdore on the tract of land he solicited in the section of
country called Achoucoupoulous; taking as the front of said tract,
from the plantation of Philip Saucier, a resident of said country,
down to the bayou called Mosquito Village Bayou, with the depth
down to Pearl River, the same being vacant, and no prejudice being
caused to the neighbors living as well in front as upon the depth,
"which measures," says the decree, "he will reduce to writing,
signing with the aforesaid parties the neighbors, and will remit
the same to me, in order that I may furnish the party interested
with a corresponding title in due form"; to-wit, a title
corresponding to the survey returned to the governor. Boisdore's
tract was to be located by a survey whose front was to commence
from Saucier's plantation, and to end at Mulatto Bayou. When this
front was established, and a corner at each end of it marked, and a
line drawn from corner to corner, then a perpendicular line drawn
from each corner to Pearl River was to be the depth. Such was
proved by witnesses to be the uniform practice of surveying Spanish
concessions, and this we know to be the true rule aside from
proof.
The size of Saucier's plantation appears by survey. It is a
considerable tract; its southwest corner points towards the bayou,
which lies southwest; one line from that corner running south
seventy degrees east one hundred and sixteen chains, and the other
line running north twenty degrees east fifty-eight chains.
According to our construction of the grant, on either of these
lines, and at any point on them, the survey might begin with equal
propriety. Taken together, they are seven hundred and ninety-six
poles long; and this is all the certainty given for a beginning of
the first or front line.
The bayou is six or seven miles long, and a notorious stream,
being navigable for vessels of light draft, such as navigate the
lakes in its neighborhood. It empties into Pearl River by two
outlets, which are some three miles apart. From its upper mouth it
extends off from the river northeastwardly, when traced
upwards.
At some point of the bayou we are called on to establish the
second corner of the front line, and as it is equally marked and
navigable for six or seven miles of its length, one part thereof as
well as another may be selected.
Tracing Pearl River up the stream from either mouth of the
bayou, it extends nearly north in its general course, but
bearing
Page 52 U. S. 91
more or less to the west. Saucier's plantation is about fifteen
miles from the nearest part of the bayou.
To strike a base line from the southeast corner of Saucier's
plantation to the upper or easternmost mouth of the bayou, then,
the second corner would be on Pearl River, some ten miles above its
easternmost mouth; and the western perpendicular sideline would run
up the river, and nearly parallel with its general course, across a
large bend to the west, and again strike the river at nine and a
half miles higher up, where the bend turns to the east, and is
again reached by the western sideline.
The eastern sideline would strike the river so high up as to
include about 400,000 acres in the survey. And such is the mode of
survey ordered by the district court, and which we are called on
particularly to examine. But if the western end of the front line
were established farther north on the bayou, then the quantity
would be increased in proportion as the corner was located farther
north, because the corresponding perpendicular sidelines would have
to be extended in a direction bearing farther east, and would
strike the Pearl River still higher up, if they would reach it at
all; which is very improbable as respects the eastern sideline, if
even the middle of the bayou was determine on as the proper point
for the second corner. We think it is impossible to contend that
the second corner of the front line should be on Pearl River, and
that the sideline should run up it, and near to it, and each end of
the line be on the river, as the Spanish mode was to front on
navigable waters, and not mar their fronts by sidelines, located
near to, but not on, the river.
That the topography of that section of country in which the
Spanish surveyor was directed to survey and mark a tract of land
for Boisdore was greatly mistaken by the governor who made the
grant, is now too manifest for controversy, as no front line can be
laid down, from the ends of which perpendicular sidelines will
reach Pearl River in depth, without violating the plainest rules of
making Spanish surveys. But for all the purposes of a Spanish
survey made by a surveyor general of the province, such description
as the concession sets forth was sufficient, because large latitude
was allowed to his discretion. Had that authorized officer
certified that the land marked out by him was "at the place
granted," then this fact must be taken as
prima facie
true; the certificate standing on the foot of a deposition. So this
Court has uniformly held, as in
Breward's
Case, 16 Pet. 147, in
Low's
Case, 16 Pet. 162, 166 [argument of counsel --
omitted], and especially in the
United
States v. Hanson, 16 Pet. 199,
41 U. S. 200.
The Spanish
Page 52 U. S. 92
made by the surveyor general, as being at the proper place when
it was thus certified in legal form, and the courts of this country
have done the same, and this for the reason that the acts of the
governor and surveyor general were both on behalf of the
government, each being bound by his duty as a public officer to
protect the King's domain.
No nice conformity was required in a Spanish survey, in cases
where a section of country was designated by the concession without
definite objects being given to govern the surveyor; the objects
might be loosely and indefinitely stated by the concession, and yet
a survey could be made, subject to the governor's sanction or
rejection, because, in the language of this Court in
Hanson's
Case, 16 Pet. 200,
"a grant delivered out for survey meant, not, as with us, a
perfect title, but an incipient right; which, when surveyed,
required confirmation by the governor."
If this land had been actually surveyed by Trudeau, as demanded
by the grant, and he had certified that it was at the place
granted, and the survey had been returned and filed according to
the twelfth regulation of governor O'Reilly made in 1770; or filed
and recorded according to the fifteenth, sixteenth, and seventeenth
regulations of the Intendant Morales of 1799, then such survey
would identify the land granted.
A fair instance is furnished by this record of the Spanish mode.
The time for making a survey having long expired, and a new order
of survey being necessary before a complete title could be applied
for, the widow of Boisdore in 1808 applied to the Spanish governor
at Pensacola for an order of survey of this claim, on the
supposition that he had authority to grant the order. It was made
as requested, and Pintado, the surveyor of the Province, was
directed to make the survey. He did not examine the ground, but
drew a figurative plan for the information of his deputy, to be
followed in marking out the grant.
This plan begins at the southwestern corner of Saucier's
plantation, and pursues a line due west to Pearl River, runs down
the river to its mouth, and then with the ocean to Saucier's land,
and with it north seventy degrees west to the beginning. Although
no call of the grant but the beginning was regarded in this plan,
yet, if the survey had been actually made, certified, and returned
in conformity to said plan, then the tract would have been
identified according to usage, had the Spanish jurisdiction
continued over the country where the land lies. But no actual
survey having been made at any time, it was imposed on the court
below, and it is now imposed on this Court, if in its power, to
identify and cause to be
Page 52 U. S. 93
surveyed the land granted. If, however, its identity cannot be
fixed, and it cannot be ascertained that any specific tract was
severed from the public domain by the grant, at the time Spain
ceded Louisiana, then the claim cannot be ripened into a complete
title by our decree; as we only have power to adjudge what
particular tract of land was granted. Our action is judicial. We
have no authority to exercise political jurisdiction and to grant,
as the governors of Spain had, and as Congress has. If we were to
locate by survey the land claimed at random, in some part of the
district of country known as Achoucoupoulous, exercising our
discretion as respects the proper place, and to decree on our own
survey, and thus divest the United States of title, then we should
do what Congress has often done when surveys were ordered of claims
founded on settlement, and what a Spanish governor usually did on
the return of a survey; we should exercise the granting power;
should deal with public lands -- public to the time of our decree,
and first made private property by it; ours would be an exercise of
political jurisdiction, and not a judicial decree.
In its endeavor to locate this grant, the district court
examined witnesses of experience and capacity as to the possibility
of doing so, and came to the conclusion that it could be done; and,
as partly stated already, a survey was ordered, to begin at the
southern part of Saucier's plantation on the ocean, at the mouth of
the Bay of St. Louis, and to meander the ocean to the eastern mouth
of Pearl River, and then up the same to the upper mouth of Mulatto
Bayou. From this point to the place of beginning, a theoretic base
line was to be drawn; and from each corner thus established,
perpendicular sidelines were to be extended to Pearl River for the
depth. The witnesses agree that, if the first two corners are
established, then the survey can be made, if the sidelines would
reach Pearl River. They had before them, as we have, the plan of
the United States surveys, and the localities established by them,
and merely expressed opinions as to the proper mode of survey. They
do not agree as to where the first corner or the second corner of
the base line should be; and as this is a question of legal
construction of the grant, on comparing it with the face of the
country, a judicial tribunal is the proper forum, and best
qualified to decide the question. Conclusive information was not to
be expected from practical surveyors, however experienced; yet
their opinions are entitled to much consideration.
Alexander Downing, late Surveyor General of Mississippi,
declares it to be his opinion, that
"The phrase in the grant to
Page 52 U. S. 94
Louis Boisdore, 'the front thereof to commence from the
plantation of Philip Saucier, and running to the Bayou of the
Mosquito Village,' is not sufficiently definite to enable a
surveyor to fix upon a beginning point or corner; both the
beginning point and the front line seem to be left to the
discretion of the surveyor, and it is questionable whether any two
surveyors would settle upon the same point for a beginning."
We agree with this witness as respects the beginning point. But
we find still more uncertainty in determining where the second
corner should be established, as there a range of discretion exists
between the head and mouth of the bayou, to an extent of six of
seven miles. Our opinion is that the front line cannot be laid down
by a judicial decree, because of the vague description in the
grant, and consequently that no parallel sidelines can be
established.
How, then, do the rights of complainants stand on the facts, the
Spanish laws being adopted as the governing rule? In the first
place, their ancestor held the concession in his own possession for
twenty years under the Spanish government -- that is to say from
1783 to 1803 -- without calling for a survey. His claim remained
precisely as it was at its date, up to the time we acquired
Louisiana. It was presented in 1808 to the Spanish governor at
Pensacola, and a survey and complete title solicited; but as no
actual survey was made and as no jurisdiction then existed in the
Spanish authorities over that section of country, this step passes
for nothing. Some notice of this claim was taken by commissioner
Crawford, whose report condemned it. In 1820, it was filed and
recorded in the land office at Jackson Courthouse, and a
confirmation sought from Congress on a recommendation of the
register and receiver acting as land commissioners. This was in
fact the first legal step taken by complainants or their ancestor
after the concession was made. For thirty-seven years they slept on
their rights, and in the meantime large masses of the land now
claimed by them were granted to others under both the Spanish and
American governments, and this neglect for twenty years of the time
was in plain violation of the Spanish laws and the face of their
concession, each requiring a legal survey and specific designation
of the land granted.
In the second place, no possession was ever taken according to
the terms of the grant. A large tract was solicited by Boisdore
where he could establish his "whole family, and employ all his
negroes" in carrying on the establishment. His family was very
large, according to his own showing; it consisted of a wife,
children, and slaves. A removal to the premises from the City of
New Orleans of this whole family was
Page 52 U. S. 95
proposed by Boisdore, and was contemplated by the governor, and
as a further inducement he was assured that much benefit would
result to the capital from such a considerable cattle raising
establishment in its vicinity. It was to be so large as to be of
public consideration. These were the notorious promises on which
the governor acted. And what was the compliance on the part of the
grantee? He represented that he had then commenced forming his
establishment at the place. It appears to our satisfaction by proof
that five years afterwards, he had a single slave there, who kept
some cattle, and that a slight patch of a few acres was cleared,
and we take it to have been cultivated. The slave continued at the
place cleared or near to it for many years -- say up to 1814 or
1815.
If the establishment had been commenced in 1783, when the grant
was made -- and we are bound to hold that it had, as the petition
to the governor alleges the fact -- then it is hardly possible that
it could have been on a smaller scale than it ever after continued,
there being but a single slave there at any time. It could only
have been less by having no one at all on the premises. It is
therefore manifest that no additional possession was taken by
Boisdore or his representatives in compliance with the terms of his
contract after its date. He obviously abandoned the idea of taking
his whole family to the place and of employing all his slaves
there, and consequently abandoned all intention of having the land
surveyed and himself and family established on it by the surveyor
general. And to hold that such a trifling occupation, in utter
neglect of Boisdore's promises to the Spanish authorities and the
duties imposed by the grant fastened an equity on the conscience of
the King of Spain and his representative, the Governor of
Louisiana, to complete the title would in our opinion be altogether
inadmissible.
Various circumstances must be taken into consideration in this
connection. It was the duty of the grantee to do two controlling
and requisite acts before he could ask for a completion of his
title -- first, to present his concession in due time to the
surveyor general of the province and secondly to take possession in
substantial compliance with the terms of his grant.
Had the survey been returned with the proces verbal, or
certificate attached, stating the fact of possession having been
given according to the grant and that the survey did no injury to
others, then the effectual and conclusive title could have been
issued divesting the rights of the Spanish government, and then
only.
Page 52 U. S. 96
Can it be believed that the Governor of Louisiana intended
conclusively to grant a domain of fifteen miles wide and over forty
miles long (as large as an ordinary county) for the mere purpose of
a
cow pen, and that he would have sanctioned a survey and
completed the title, if the surveyor of the province had reported
to him, as was his duty, that Boisdore declined to remove his
family, white or black, to the place, or to employ his slaves
there, with the exception of a single cowherd, and that the
improvement of the place was as slight as it could well be -- that
it amounted only to a trifling patch of a few acres? Such a
proposition shocks all sense of equity, and is contrary to the
settled policy of the Spanish government, which was to make
gratuitous grants for the purposes of settlement and inhabitation,
and not to the end of mere speculation.
And again, the grantee might have his land surveyed, or he might
decline; he might establish himself on the land, or decline; these
acts rested wholly in his discretion. But if he failed to take
possession and establish himself, he had no claim to a title; his
concession or first decree in such case had no operation. So the
Supreme Court of Louisiana held in
Lafayette v. Blanc, 3
La.Ann. 60, and in our judgment properly. There, the grantee never
having had actual possession under his concession, the court
decided that he could set up no claim to the land at law or in
equity. This case followed
Hooter v. Tippet, 17 La. 109.
We take it to be undoubtedly true that if no actual possession was
taken under a gratuitous concession given for the purpose of
cultivation or of raising cattle during the existence of the
Spanish government, no equity was imposed on our government to give
any consideration or effect to such concession or
requete.
And in the next place it was held in
Lafayette v. Blanc
that if the party took possession, but had no survey executed
during the time Spain exercised jurisdiction, this being his own
neglect, it lies on him to establish the boundaries of his grant
and to identify his land with such certainty as to show what
particular tract was severed from the public domain, and if he
fails to do it, then he has no remedy in a court of justice. And
this part of the decision we also approve.
Here there was no survey, and we are of opinion first that
complainants have not identified any particular tract of land that
was granted, and secondly that if they had, no possession was taken
or pretended to be taken such as the agreement between the Spanish
authorities and the grantee contemplated. And therefore it is
ordered that the decree of the district court be
Reversed and the petition dismissed.
Page 52 U. S. 97
MR. JUSTICE McLEAN, MR. JUSTICE WAYNE, and MR. JUSTICE McKINLEY
dissented.
MR. JUSTICE McLEAN.
In the opinion of a majority of the Court, the grant in this
case is rejected, for a want of certainty in its calls. As I cannot
agree with this view, I will state in few words the grounds of my
dissent.
The petition to the Governor General for the grant represents
that Louis Boisdore, "being desirous to form a plantation or cow
pen in the vicinity of the Bay of St. Louis, at the place commonly
called Achoucoupoulous," &c., that he may be enabled to employ
all his negroes thereon and to support a large stock of cattle,
prays,
"in consideration of what is above expressed and stated, and of
the benefit which will result to the capital from a large cow pen,
such as that he had commenced to establish at and near said place,
to grant him the parcel of land which may be vacant at the
above-mentioned place known by the name of Achoucoupoulous, to
commence at the plantation of Philip Saucier, and to run therefrom
to the Bayou of Mosquito Village, formerly inhabited by Mr.
Loisser, and extending in depth to Pearl River, that he may be
enabled to form with facility the above-mentioned plantation and
cow pen for the whole of his family,"
&c., and is dated 1 April, 1783.
On 26 April, 1783, Governor Miro, resident at New Orleans,
answers the application by saying:
"It appearing to me that the grounds and reasons stated by the
petitioner are well founded in relation to the utility and
advantages which will result to the capital from the establishment
of a cow pen in those places which are badly adapted to
cultivation, the Surveyor of the Province, Don Carlos Laveau
Trudeau, shall establish Louis Boisdore on the tract of land which
he solicits in the antecedent memorial, situated at the place
commonly called Achoucoupoulous, the front thereof to commence from
the plantation of Philip Saucier, and inhabitant of said place, and
running to the Bayou of Mosquito Village, and extending in depth to
Pearl River, should the same be vacant, and cause injury to no one
of the surrounding settlers, either in the front or the depth
thereof; whose proceedings shall be made out and signed by him with
the before-mentioned persons, and sent to me to furnish the party
interested with a title in form."
This tract of land seems never to have been actually surveyed.
On 4 April, 1808, Gilberto Guillemard applied to the
Intendant-General at Pensacola for an order of
Page 52 U. S. 98
survey, representing that Trudeau, the surveyor, by reason of
the expense and his pressing duties, had not executed the survey,
and a request is made that Pintado, the present surveyor, may mark
out the boundaries &c. The application was granted, but
Pintado, instead of making an actual survey, marked out a
figurative plan by which the distances could be ascertained. He
says:
"Two years having elapsed without being able, from the emergency
of my business, to attend personally to make out the boundaries and
to make the survey required, and not having at the said place a
deputy to execute the same, and that the heirs claiming the same
may have an authentic document issued in their favor from which may
be made appear the right of property and ownership which to the
said lands they have and hold in virtue of the said grants, and
also the shape and figure which the said tract of land ought to
have,"
&c.
The boundaries, as above designated by Pintado, are shown by a
plat in the case. It is true that the above proceeding in relation
to the survey took place after the surrender of Louisiana to the
United States, which terminated all foreign power over the
territory, but the proceeding shows that there was no forfeiture
under the Spanish government, for the want of a survey or on any
other ground, and it also shows that the places called for in the
grant were deemed sufficiently certain by Pintado, the Surveyor
General, to make the survey.
What was the nature of the title given by Miro, the Governor
General, to Boisdore? He petitioned the governor for a "grant" of
the land at the place named for the purposes stated. The governor,
admitting that "the grounds and reasons stated by the petitioner
were well founded, and that his proposal was advantageous to the
capital," directed the surveyor of the province, Don Carlos Laveau
Trudeau, to establish the petitioner on the land he solicits,
designating the boundaries &c. If there be sufficient certainty
in the boundaries called for, there can be no doubt that the grant
of the governor separates the land from the public domain, and that
in every view constitutes property under the treaty with France.
There were no conditions expressed upon the face of this grant. The
consideration is named, but not as a condition.
The petition which is referred to in the grant constitutes a
part of it. The vicinity of the Bay of St. Louis, the place known
by the name of Achoucoupoulous, the plantation of Saucier as the
beginning point called for, "and to run therefrom to the Bayou of
Mosquito Village, and extending in depth to Pearl River," all these
calls are identified and shown by parol evidence and the maps which
are in the case.
Page 52 U. S. 99
And the great question is whether, from the calls of the grant,
the survey can be executed. These calls are clear and specific.
They are the plantation of Philip Saucier, on the Bay of St. Louis,
the rivulet or Bayou of the Village of Mosquitos, in the district
called Achoucoupoulous, and extending in depth to Pearl River. All
these calls are proved to exist, and they are more special than
nine-tenths of the calls in the Spanish grants which have been
confirmed.
Pintado, by his figurative plan embracing those calls, seems to
have had no difficulty in directing how the survey should be made.
And he was the surveyor general of the Province under the Spanish
government, and may be presumed to have been well acquainted with
the Spanish laws and usages on the subject of surveys. Morales, who
sanctioned the grant in 1808 by ordering the survey, was intendant
general, and had the same powers to grant land as the governor
general previously had, and he was distinguished for his general
intelligence and high capacity to represent his sovereign in the
important duties which were committed to him. The grant was also
sanctioned by Juan Lozado, the fiscal minister
pro tem.,
to whom the petition of Guillemard in behalf of Boisdore's
representatives was referred, and who recommended that the survey
be made.
L. Bringier, a witness, states
"That he has been a surveyor for upwards of thirty years, and
for more than twenty-five years Surveyor General of the State of
Louisiana, during which period he has had the records of Spanish
surveys in his charge, and had frequent occasion to refer to them
and survey lands in conformity to them; that he understands the
Spanish language; and he says that he agrees with Pintado as to the
mode of running the lines of the survey. He thinks the description
of the grant is sufficient to enable a surveyor to make an accurate
survey of it,"
&c.
Elihu Carver, who says that he is a practical surveyor, on being
asked how he would survey a Spanish concession which calls for two
points as the front upon the seashore or a watercourse, and calls
to run in depth to another watercourse for quantity, answers
"that he would run from one of the first points back to the
watercourse a distance equal to the front given, thence direct to
the last point in the front."
He says that he has surveyed many Spanish claims, and, except
one, he never found the boundaries all round. That he does not
pretend to be sufficiently acquainted with the Spanish customs and
usages to pronounce upon the claim in question.
B. A. Ludlow states that he is a practical surveyor, and has
held the office of surveyor general for the district south of
Tennessee. He has examined the survey of Boisdore, and believes
Page 52 U. S. 100
the survey to be practicable, provided the plantation of Philip
Saucier and the Bayou of Mosquito Village can be identified. "The
survey should be made," he says,
"by finding a straight line between the above-mentioned points
and raising perpendiculars upon said line, at its extremities,
extending back to Pearl River,"
&c. "Exceptions to this rule," he says, "sometimes occur by
watercourses or the lines of other claims causing a deviation,"
&c. He says he is familiar with the seashore which constitutes
the front of the Boisdore claim. From his general knowledge of the
country, he can see no material difficulty in making the survey of
the claim &c.
A. Downing has been many years a practical surveyor, and has
held the office of Surveyor General of the Public Lands for the
State of Mississippi. He says,
"The phrase in the grant to Boisdore, 'the front thereof to
commence from the plantation of Philip Saucier' and 'running to the
Bayou of Mosquito Village' is not sufficiently definite to enable a
surveyor to fix upon a beginning point or corner; both the
beginning point and the front line seem to be left to the
discretion of the surveyor, and it is questionable whether any two
surveyors would settle upon the same point for a beginning. I
certainly could not adopt the view of Pintado, the Spanish surveyor
general, for in the diagram filed in the case, and to which he
refers in his instructions, he places what should be the most
easterly front corner on the back line of the Saucier
plantation."
And he says the sideline
"from the mouth of the Bayou of the Mosquito Village, at right
angles from a base line between the front corners, would,
apparently for several miles, range close along and parallel with
the east margin of Pearl River, and consequently conflict with the
uniform practice of the location and survey of grants upon all
navigable streams and shores."
This is the substance of the evidence in the case in relation to
the calls in the grant. And it must be remarked that all the
witnesses, with the exception of Downing, think that the calls of
the grant are sufficient to enable a surveyor to mark out the
boundaries. Downing supposes that no two surveyors would agree on
the beginning corner or as to the second point and lines called
for. But in this he is mistaken. In the first place, the Spanish
authorities who held the calls of the grant sufficient are Miro,
the Governor General who issued it, and Morales, the Intendant
General, Trudeau and Pintado, surveyors general, and Lozado, the
fiscal minister. These, when connected with the statements of the
above witnesses, would seem to leave little doubt as to the
sufficiency of the calls of the grant.
Page 52 U. S. 101
Upon this question, we must not forget that we are acting upon a
Spanish grant and are governed by Spanish laws, usages, and
customs. And if such a grant were valid under the Spanish
government, and there has been no forfeiture of the right, we are
bound by the plighted faith of our own government to sustain the
grant. And in administering this foreign law, we must ascertain and
regard the usages under it in the acquisition of titles to land.
This is a universal principle, respected by all courts in the
administration of justice. Parol evidence must be heard to
establish those usages, in addition to what may appear from the
action of the local tribunals. In the States of Virginia, Kentucky,
Tennessee, North Carolina, Pennsylvania, and in a large district of
country in Ohio, the usages in making entries and surveys of lands
constitute the laws of the respective states, the usage of each
state differing more or less from that of the others. One instance
only will be named as peculiar, perhaps, to Kentucky and Ohio. The
holder of a warrant for one thousand acres locates it, and in his
survey includes fifteen hundred acres of land, more or less, and
yet his survey is held valid. This, to one wholly unacquainted with
such a rule of decision, would be thought unreasonable, and might
be disregarded, and yet it is a rule of property which no court can
reject.
To establish entries under this system, parol evidence is always
heard as to the calls made and the objects called for &c. And
although the survey may deviate from the calls of the entry, it is
held valid if it interfere with no prior rights. This rule of
decision, so firmly established in our own country, should be
applied with an enlarged liberality when acting on land titles
acquired under a foreign government of whose language and usages we
have comparatively but little knowledge. The Act of Congress of 26
May, 1824, revived and applied to these titles by the act of 17
June, 1844, under which we exercise jurisdiction, provides that a
claimant under
"any French or Spanish grant, concession, warrant, or order of
survey, legally made, granted, or issued before 10 March, 1804, by
the proper authorities, to any person resident in the Province of
Louisiana,"
&c.,
"which might have been perfected into a complete title, under
and in conformity to the laws, usages, and customs of the
government under which the same originated, had not the sovereignty
of the country been transferred to the United States, may file his
petition,"
&c. And the proceeding is required "to be conducted
according to the rules of a court of equity," &c., and the
court is authorized
"by a final decree to settle and determine the question of the
validity of the title according to the law of nations, the
stipulations
Page 52 U. S. 102
of any treaty, and proceedings under the same, the several acts
of Congress in relation thereto, and the laws and ordinances of the
government from which it is alleged to have been derived,"
&c.
I will refer to some cases where grants similar to the one under
consideration have been held valid by this Court. In
United States v.
Percheman, 7 Pet. 54, the petitioner asked "two
thousand acres of land in the place called Ockliwaha, situated on
the margin of St. John's River." Governor Estrada says, "I do grant
him the two thousand acres of land which he solicits, in absolute
property, in the indicated place." The survey of this land was not
executed until 20 August, 1819, after the treaty of cession. The
title was confirmed by this Court.
In the case of the
United States v.
Clarke, 8 Pet. 446, the petitioner solicited a
grant of the quantity of land which the Governor of Florida had
thought proper to assign to the water mills, equivalent to five
miles square, which lands he solicits "on the western part of St.
John's River, above Black Creek, at a place entirely vacant, known
by the name of White Spring." In the grant it is declared, "A title
shall be issued comprehending the place and under the boundaries
set forth in the petition." This was also confirmed.
In the case of the
United States v.
Levi, 8 Pet. 479, the grant was
"for twenty-five thousand acres of land, south of the place
known by the name of Spring Garden, in this form: twelve thousand
acres of them, adjoining the lake or pond called Second, and known
by the name of Valdes, and the remaining thirteen thousand acres on
the pond farther above the preceding, known by the name of Long
Pond, the whole west of the River St. John."
The survey was executed on 2 August, 1819. This Court confirmed
the title. Another grant in the same case was for
"seven thousand four hundred acres, lying on a stream running
from the west, and entering the River St. John, and called in
English the Big Spring, about twenty-five miles south of St.
George's Lake, one of the fronts of the said tract to be on St.
John's River, and to be divided in two parts by the stream
aforesaid."
This survey was made on 5 April, 1821. The title was
confirmed.
In the same case another grant, which was confirmed by this
Court, was for eight thousand acres, being part of a larger parcel
containing ten thousand acres &c.,
"five thousand of them in a hammock to be found five or six
miles east of Spring Garden, and the remaining five thousand west
of the River St. John, contiguous to a creek called Black Creek,
near Fleming's Island and the pond called Doctor's Lake. "
Page 52 U. S. 103
Another grant in the same case was confirmed for "twenty
thousand acres," described as lying
"in the hammocks known under the names of Cuscowillo and
Chachala, situate west of the place of the River St. John's where
there was a store of the house of Panton, Leslie & Co., and
about thirty miles from it."
Similar citations might be made from any of our reports of the
last fifteen or twenty years, but the above are sufficient to show
the course of the Spanish authorities in granting lands, and the
decision of this Court upon such grants. Many of the surveys, it
will be observed, were made under Spanish authority after Florida
was ceded to the United States.
The reader, if anyone shall read the above citations and the
grant of Boisdore, will be struck with the much greater certainty
in the calls of his grant than in the calls of any one of the
grants above stated. And yet they were confirmed, and his is
rejected for want of certainty. By virtue of what law this greater
certainty is now required in the calls of a grant I am not able to
determine. In my own mind, I am assured it cannot be under the
Spanish law. And I am greatly mistaken if our decision on Spanish
titles must not rest on Spanish law.
The tract claimed is said in the argument to be large. Of what
importance is that to a court which deals with established
principles? In this respect we can exercise no discretion. If the
claim of Boisdore was property under the Spanish government, it is
protected by the treaty. That it was so considered under the usages
and acts of the Spanish government, to my mind, is clear. I
therefore dissent from the judgment of the court.
MR. JUSTICE WAYNE.
I dissent from the opinion of the majority of the Court in the
case, concurring with all the views expressed by my brother McLEAN
and dissenting from every position of fact or argument in the
opinion of the Court. In my opinion, the opinion of the Court is a
departure from all heretofore adjudged by the Court in respect to
the right of property secured by our treaties with France and Spain
to the inhabitants of Louisiana and Florida.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Southern
District of Mississippi, and was argued by counsel. On
consideration whereof, it is the opinion of this Court that the
grant of petitioners had no identity, and cannot be surveyed
Page 52 U. S. 104
so as to give it boundaries. And secondly, if it could be
identified, that no occupation and inhabitation were ever taken
according to the terms of the grant, and therefore the claim is
without equity according to the laws of Spain.
Whereupon it is now here ordered, adjudged, and decreed by this
Court that the decree of the said district court in this cause be
and the same is hereby reversed, and that this cause be and the
same is hereby remanded to the said district court with directions
to dismiss the petition of the claimants in this cause.
