1. It is the duty of a party excepting to evidence to point out
the part excepted to, so that the attention of the court may be
drawn to it. Hence objections of a very general and indefinite
nature to testimony taken under a commission, with interrogatories,
and which do not point out except in gross the portions of the
answers objected to, and which embrace matters clearly competent,
will not be sustained. If the exception covers any admissible
testimony, it is rightly overruled.
2. A grant in whose language there is some obscurity and which,
if open for construction, might present some ground for an
interpretation in one way may, on a question of location, be
explained in a different sense by an official survey referred to in
it, and which was before the party when making the grant.
3. A tract of land situate in the Parish of St. Bernard, about
ten miles below New Orleans, and claimed in this suit against the
United States by parties under F. & J. Phillipon held to have
been confirmed by this government, and that grants under the French
and Spanish governments were as extensive and the boundaries as
well defined and settled as they were under the survey and location
confirmed by the United States.
This was a writ of error to the Circuit Court for the Eastern
District of Louisiana and involved two questions: one, that of a
private boundary to a tract of land, the other a question of the
admission of testimony taken under a commission.
MR. JUSTICE NELSON delivered the opinion of the Court.
This suit was brought in the court below by the United States to
recover possession of a tract of land situate in the Parish of St.
Bernard about ten miles below the City of New Orleans on the east
side of the River Mississippi, and between that river and Lake
Borgne.
The defendants set up two grounds of defense: 1. that the tract
of land in controversy had been granted to Madame Le Compte by the
Spanish government November 3, 1784, and 2. that the grant was
confirmed to F. and J. Phillipon
Page 71 U. S. 681
by Act of Congress, March 3, 1835, from whom the defendants
derived their titles.
1. The Spanish grant was produced on the trial from the
register's office in New Orleans, where these ancient titles are
deposited, and is found in the record.
The Governor, in making the grant, recites:
"Considering the foregoing proceedings, made by the
segundo
ayundante of this place, Louis Andry, who was appointed to
make survey and put Dn. Maria Le Compte in possession of the vacant
land which lies in rear or at the extremity of the forty arpents in
depth of the plantation belonging to Bachemin, Corbin, Voison, and
Portugais, and consists of fourteen arpents in front, composing the
said plantations, until it reaches Lake Borgne, and, finding that
said proceedings are made agreeably to the order of survey and to
the grants of the above-named parties, who are not injured -- nay,
who have assented thereto &c. -- now, THEREFORE &c., we do
by these presents 'grant to the said Maria Le Compte the
above-mentioned fourteen arpents front from the forty arpents in
depth owned by the said Bachemin &c., to the aforesaid lake,
following the same directions which the boundary lines of the said
Bachemin &c., run, in order that she may dispose of and enjoy
the same &c.'"
There is some obscurity in the language of the grant, and if it
was open for construction, there is ground for the interpretation
contended for by the government, namely that the tract granted
consisted of an area of fourteen arpents front, and extending back
within parallel lines to Lake Borgne. But this obscurity is removed
by the official Spanish survey referred to in the grant and which,
as we have seen, was before the government when the grant was
made.
Phelps, a United States deputy surveyor and who has been in the
service of the government under the Surveyor General since 1828,
surveyed the side lines of this tract in 1831 and, according to his
recollection and belief, had before him, at the time, the original
Spanish survey of Landry, and followed the side lines of that
survey, which were not parallel, but were diverging side lines,
corresponding with
Page 71 U. S. 682
those of the front grant to Bachemin and others. That grant
fronted on a bend of the river on the convex side or shore, and,
according to the usage in Spanish locations on such bends, and
which is the usage and practice of locations under our system of
survey, the side lines run at right angles with the bend of the
river, and, as in the instance before us, diverge and widen as the
lines extend for the entire depth of the front lot. It was these
diverging lines terminating at the rear of the Bachemin lot that
were extended in the same direction by the survey and location of
the back lot of Madame Le. Compte, by Landry, to Lake Borgne, and
which were afterwards adopted by Phelps. This Spanish survey and
location of the grant removes any obscurity that may exist in the
description.
The survey of Landry was not produced, but its existence and
loss were sufficiently proved to let in the secondary evidence
presented on the trial.
The testimony of Phelps was taken under a commission, and when
produced at the trial, several objections were taken to its
competency and admissibility on the part of the government which
were overruled. The objections were very general and indefinite,
without pointing out the portions of his answers to the
interrogatories which were inadmissible, except in gross, embracing
matters clearly competent and relevant to the issues. It is the
duty of the party excepting to evidence to point out the part
excepted to, so that the attention of the court may be drawn to it.
If the exception covers any admissible evidence, it is rightly
overruled.
* This principle
disposes of all the objections in which any doubt can exist as to
the competency of the evidence.
We do not regard, however, the portion of Phelps' testimony
objected to as of any particular importance in the case. The only
portions of his evidence which are material relate to the Landry
survey of Madame Le Compte's grant, and his own survey of the same
in 1831. But:
2. The most conclusive defense to this action to recover
Page 71 U. S. 683
the land in question is the decision of the register and
receiver, on the petition of F. and J. A. Phillipon for
confirmation, dated December 20, 1832, the report of these officers
in favor of the claim, 5th September, 1833, and confirmation by act
of Congress, March 3, 1835.
The Phillipons owned a large tract of land derived from six
French and Spanish grants, all of which are set out on the record,
and among them is the grant in question to Madame Le Compte. They
state in their petition that the land is situate in the Parish of
St. Bernard, on the east bank of the Mississippi River, about ten
miles below the City of New Orleans, measuring twenty-one arpents
front by an irregular depth extending to Lake Borgne, bounded on
one side by the plantation of Mr. Guichard and on the other side
(below) by the plantations of the widow Beauregard, the whole,
according to a full and detailed plot thereof, executed by Augustus
S. Phelps, United States deputy surveyor, in the month of February,
1831, herewith presented and prayed to be accorded. This map is in
the record, and includes the tract of Madame Le Compte, with the
diverging lines, as surveyed by Landry, and afterwards by
Phelps.
The register and receiver, after hearing the proofs in the case,
and referring to the claim, and reciting that it contains
twenty-one arpents front by an irregular depth extending to Lake
Borgne, and bounded above by land of Mr. Guichard, and below by
land of the widow Beauregard; and reciting, also, that the tract is
made up of several tracts, all of which are derived from the
original grants made, and completed in due form, as follows:
enumerating the six French and Spanish grants, with their dates,
report "We are therefore of opinion that this claim ought to be
confirmed." This claim, thus described by the register and
receiver, was specifically confirmed, referring to the date of this
report, by the act of Congress of March 3, 1835.
We do not deem it necessary to pursue the case further. It seems
to us that the title, to the extent claimed by the Phillipons,
under whom the defendants held, has not only
Page 71 U. S. 684
been confirmed by this government, but that the grants under the
French and Spanish governments were as extensive, and the
boundaries as well defined and settled, as we are of opinion they
now are under the survey and location confirmed by act of
Congress.
Judgment affirmed.
*
Moore v. Bank of the
Metropolis, 13 Pet. 302.