In 1795, Baron de Carondelet, the Governor-General of Louisiana,
made a grant of land on the Mississippi River upon condition that a
road and clearing should be made within one year and an
establishment made upon the land within three years.
Neither of these conditions was complied with, nor was
possession taken under the grant until after the cession of the
country to the United States.
The excuses for these omissions, namely that the grantee was
commandant at the post of Arkansas, and that the Indians were
hostile, are not satisfactory, because the grantee must have known
these circumstances when lie obtained the grant.
According to the principles established in the preceding case of
Glenn v. United States, the Spanish authorities would not
have confirmed this grant; neither can this Court confirm it.
Moreover, in this case, the land claimed cannot be located by a
survey.
This was a petition filed by the heirs of Don Carlos de
Vilemont, under the act of 1824 as revived by the act of 1844,
praying the confirmation of a grant of land issued by the Baron de
Carondelet in 1795.
The circumstances attending the grant are set forth in the
opinion of the Court.
The district court decided against the claim and the petitioners
appealed to this Court.
In the district court, Horace F. Walworth, Mary B. Miles, and
James B. Miles, were made defendants with the United States.
Page 54 U. S. 266
MR. JUSTICE CATRON delivered the opinion of the Court.
The heirs of Don Carlos de Vilemont filed their petition in the
District Court of Arkansas to have a confirmation of a grant for
two leagues of land front by one league in depth lying on the right
descending bank of the Mississippi at a place called the Island del
Chico, distant twenty-five leagues below the mouth of the Arkansas
River, the cypress swamp of the island being called for as the
upper boundary of said tract.
The governor-general granted the land on the express
conditions
"that a road and regular clearing be made in the peremptory
space of one year, and this concession to be null if, at the
expiration of three years' time, the said land shall not be
established, and during which time it cannot be alienated, under
which conditions the plat and certificate of survey shall be made
out and remitted to me in order to provide the interested with the
corresponding title in form."
The concession was made June 17, 1795. No possession was taken
of the land by De Vilemont, nor any survey made or demanded, during
the existence of the Spanish government. The petition alleges that
possession was first taken in 1807, and as an excuse for the delay,
it is stated that the grantee was commandant at the post of
Arkansas up to the end of the year 1802, and confined to his
official duties there; and 2dly, that so hostile were the Indians
in the neighborhood of the land, that no settlement could be made
on it. The proof shows that De Vilemont first took possession in
1822 or 1823. The 2d regulation of O'Reilly of 1770, required that
roads should be made and kept in repair, in case of grants fronting
on the Mississippi River, and that grantees should be bound within
the term of three years to clear the whole front of their lands to
the depth of two arpens; and, in default of fulfilling these
conditions, the land claimed should revert to the King's domain;
nor should proprietors alienate until after three years' possession
was held, and until the conditions were entirely fulfilled. In this
instance, the time was restricted to one year, for making the
improvements required by the regulations, and three years were
allowed for making an establishment on the premises. In this case
where a front of six miles was granted, a clearing to the whole
extent was of course not contemplated; yet to a reasonable extent
it certainly was, but it was undoubtedly necessary that an
establishment should be made within three years -- such being the
requirement of the concession, in concurrence with the
regulations.
The Act of March 26, 1804, prohibited any subsequent entry on
the land, and declared void all future acts done to the end of
obtaining a perfect title even by an actual settler, if the
settlement was not made before the 20th of December, 1803;
Page 54 U. S. 267
De Vilemont's title must therefore abide by its condition when
the act of 1804 was passed. For further views on this subject, we
refer to our opinion expressed on Clamorgan's title at the present
term in the case of
Glenn v. United States.
We are asked to decree a title and to award a patent on the same
grounds that the Governor-General of Louisiana or the intendent
would have been bound to do, had application for a perfect title
been made during the existence of the Spanish colonial government.
The only consideration on which such title could have been founded,
was inhabitation and cultivation either by De Vilemont himself or
his tenants, and having done nothing of the kind, he had no right
to a title; nor can an excuse be heard that hostility from Indians
prevented a compliance with the conditions imposed, as Vilemont
took his concession subject to this risk; and the alleged excuse
that he was commandant of the post of Arkansas, and bound to be
constantly there in the performance of his official duties, is
still more idle, as he held this office when the concession was
made, and knew what his duties were.
The petition was dismissed by the district court because the
land claimed could not be located by survey. The concession is for
two leagues front by one in depth, with parallel boundaries,
situate at Chicot Island, the cypress swamp on the island being the
upper boundary. Chicot Island is represented in the concession as
being twenty-five leagues below the mouth of the Arkansas River.
The land now claimed by the petition is represented to lie five
leagues below the mouth of that river at a place known as Chicot
Point, being a peninsula included in a sudden bend, and surrounded
on three sides by the Mississippi River.
It is difficult to conceive that Chicot Point, lying in fact
nearly twenty-five leagues below the mouth of the Arkansas, is the
Chicot Island to which the concession refers, but admitting that
the Point was meant, which we believe to be the fact, still no
cypress swamp is found there to locate the upper boundary; nor is
it possible to make a decree fixing any one side line or any one
place of beginning for a specific tract of land.
Our opinion is that on either of the grounds stated, the
petition should be dismissed and the decree below
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
Page 54 U. S. 268
of Arkansas, 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 be
and the same is hereby affirmed.