A Spanish grant of land situate in the District of St. Louis,
made May 12, 1785, which this Court, in
Stanford
v. Taylor, 18 How. 409, decided did not, without a
survey, attach to any specific tract, was in 1811 confirmed by the
board of land Commissioners. The first survey was made in 1834, but
was not carried into patent, and on an application under the act of
June 2, 1862, 12 Stat. 410, the Secretary of the Interior issued
instructions for another survey. It was made, but he decided that
no effect should be given to it, as it did not conform to the calls
of the grant. In ejectment, the demanded premises being embraced by
that survey, the plaintiff, who claimed under the grantee, offered
in evidence it and one subsequently made by the surveyor of St.
Louis County, Missouri, accompanied by proof that they conformed to
the calls of the grant, and were identical. The evidence was
excluded.
Held:
1. That the survey, having been disapproved by the Secretary,
has no binding effect, and that the question of its correctness was
not for the determination of the jury.
2. That in the absence of a subsisting recognized survey, the
grant not having been confirmed by ascertained boundaries
specifically set forth in the order of the board, so that the tract
can be located without a survey, the plaintiff cannot recover.
3. That the Act of June 6, 1874, 18 Stat. part 3, 62, entitled
"An Act to obviate the necessity of issuing patents for certain
private land claims in the State of Missouri, and for other
purposes," applies only to cases where the party interested is by
law entitled to a patent.
The facts are stated in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Titles to lands claimed by individuals in Louisiana at the time
the province was ceded to the United States were in most cases
incomplete, as the governor of the province never possessed the
power to grant a patent. All he could do was to issue to the donee
an instrument called a concession or order of survey, which never
invested the party with a fee simple title, from which it follows
that the plaintiff in a suit to recover the land must prove that
his claim had been confirmed under some act of Congress.
Complete title, of which there were a few when the
jurisdiction
Page 98 U. S. 204
of the province was transferred, required no such confirmation,
as they needed no other protection than that afforded by the third
article of the treaty of cession. 8 Stat. 202;
United
States v. Wiggins, 14 Pet. 350. Incomplete titles
required confirmation, and Congress passed the Act of the 2d of
March, 1805, to "ascertain and adjust titles and claims to land in
the ceded territory." 2 Stat. 326.
Prior to the passage of that act, however, the province ceded by
the treaty had been divided into two organized territories, and the
fifth section of the act, to ascertain and adjust titles and claims
to land therein, provided for the appointment of Commissioners in
each of those territories, to ascertain and adjudicate the rights
of persons presenting such claims.
Id., 283.
Such Commissioners were required by the act providing for their
appointment to lay their decisions before Congress, but a
subsequent act provided that the decision of the Commissioners,
when in favor of the claimant, should be final against the United
States.
Id., 441.
Forty arpens of land in front by forty arpens in depth are
claimed by the plaintiffs, and they allege that the tract is
bounded on the west by the survey made for Charles Gratiot,
assignee of Louis Robert, and that the tract claimed was surveyed
April 10, 1865, for John F. Perry, assignee of Angelica Chauvin,
under the order of the Commissioner of the General Land Office, as
directed by the Secretary of the Interior.
Service was made; and the defendants appeared and filed an
answer denying that the plaintiffs are entitled to the possession
of the premises described in the petition. Subsequently the parties
went to trial before the circuit justice and a jury, and the
verdict and judgment were in favor of the defendants. Exceptions
were filed by the plaintiffs, and they sued out the present writ of
error and removed the cause into this Court.
Possession by the defendants being impliedly admitted, the
principal question is whether the evidence introduced or offered by
the plaintiffs was sufficient to prove their alleged title to the
premises. Enough appears to show that John F. Perry was the
assignee of the original donee of the tract under the former
sovereign, and that he, Aug. 26, 1806, presented the
Page 98 U. S. 205
concession for the same to the land Commissioners for
confirmation. From the concession, which bears date May 12, 1785,
it appears that the acting governor conceded to the applicant forty
arpens of land in front by forty arpens in depth, lengthwise the
river called Des Peres, from north to south, bounded on one side by
Louis Robert, and on the other by the royal domain. Evidence was
introduced in support of the claim, but the board rejected it for
the alleged cause that it appeared from the records in their
possession that the concession had been revoked and that a new one
had been issued to another party.
Five years later, the claim came up again before the land
Commissioners, and the record shows that the board confirmed the
same to the assignee of the original donee for the whole amount of
the claim, and entered an order that the same be surveyed
conformable to his possession and at his expense. Pursuant to the
requirement of the sixth section of the act, the Commissioners also
delivered to the party an instrument known as a confirmation
certificate, stating the circumstances of the case, and that he is
entitled to a patent for the tract of land therein designated,
which certificate, the same section provides, shall be filed with
the proper register or recorder within twelve months after date,
and the record shows that it was duly issued and filed as required.
Id., 441, sec. 6.
Beyond doubt these proceedings were regular, but it is a great
mistake to suppose that the confirmation certificate, without more,
entitled the party to a patent. Instead of that, the next section
of the act provides that the tracts of land thus granted by the
Commissioners, unless previously surveyed, shall be surveyed at the
expense of the parties under the direction of the surveyor general
or officer acting as such, and that the officer making the survey
shall transmit general and particular plats of the tracts to the
proper register or recorder, and shall also transmit copies of the
said plats to the Secretary of the Treasury.
Id., 442,
sec. 7. When those acts have been performed, then the closing
regulation of sec. 6 of the same act comes into operation, which
makes it the duty of the register or recorder to
"issue a certificate in favor of the party, which certificate,
being transmitted to the Secretary of the Treasury, shall entitle
the party to a patent, to be issued in
Page 98 U. S. 206
like manner as is provided by law for the issuing of patents for
public lands lying in other territories."
Certificates signed by the land Commissioners were issued
subsequent to the confirmation, but before the survey required to
be made and transmitted to the register or recorder; but the patent
certificate, so called, was required to be issued by the register
or recorder, and could not lawfully be issued until the survey and
plats had been made and duly transmitted to the register or
recorder, as directed by the seventh section of the act.
Suffice it to say in that connection that no such subsisting
survey or plat was ever made in this case, nor was any such ever
transmitted to the register or recorder, nor did he register or
recorder ever issue such a certificate to the party, nor is
anything of the kind pretended by the plaintiffs. They made no
effort to prove any thing of the sort, but what they attempted to
prove was that they had acquired a fee simple title to the land by
virtue of certain other proceedings under certain other acts of
Congress, which, as they contend, dispenses with the necessity on
their part of showing that they ever complied with the sixth and
seventh sections of the act of Congress under which the claim in
question was confirmed.
Argument to show that the plaintiffs had no sufficient title
under the provisions of that act is unnecessary, as they admit that
"no previous survey had been made by Spanish, French, or American
authority."
Attempt was made by the plaintiffs to supply the omission and
cure the defect in the instruments of title exhibited in the
proceedings which followed the decree of confirmation and the
issuing of the confirmation certificate, by the evidence,
documentary and parol, offered at the trial before the court and
jury. Besides the concession of the governor and the decree of
confirmation already mentioned, the plaintiffs also offered in
evidence to the jury the petition of the original donee, addressed
to the governor, asking for the concession, and her deed conveying
the same to her assignee, together with the petition of the
assignee to the land Commissioners praying for a confirmation of
the tract to him as such assignee, which was followed, as before
stated, by the decree of confirmation and the confirmation
Page 98 U. S. 207
certificate. Appended to the decree of confirmation is the order
that the tract be surveyed conformable to his possession, and they
also offered in evidence the act obviating the necessity of issuing
patents for certain private land claims, and for other purposes. 18
Stat. 62.
Parol evidence was also offered by the plaintiffs tending to
show that they held all the title confirmed to the assignee of the
original donee, and in order to show that the land in question
formed part of the land confirmed, they offered in evidence the
concession to Louis Robert, by which the tract claimed by the
plaintiffs is bounded on one side, and the survey of that tract by
Antoine Soulard, Spanish surveyor general of that part of the
province before the cession, and also the concession to Charles
Gratiot.
Seasonable objection to all this evidence was made by the
defendants, and it was excluded from the jury by the court, and the
plaintiffs excepted to the ruling.
During the trial, the plaintiff introduced in evidence the
letter of the Secretary of the Interior to the Commissioner of the
General Land Office, dated March 18, 1865, directing a second
survey of the tract to be made whenever the plaintiffs may request,
so that it is bounded on the one side by the land of Louis Robert,
which is one of the distinctive calls in the grant. In the course
of the letter, the Secretary also remarked that attention should be
given to calls upon the River Des Peres, as far as practicable, and
added in the same connection, that if the claimant causes the
survey to be made and the tract patented upon land not granted to
the original donee, it will be his error and misfortune. They also
offered in evidence the letter of the Commissioner of the General
Land Office, dated March 24, 1865, addressed to the recorder of
land titles at St. Louis, communicating those instructions; and
that also was admitted in evidence without objection.
Those documents having been admitted, the plaintiff then offered
in evidence the survey returned by William H. Cozzens, on the 10th
of April, 1865, in conformity with those instructions, together
with the letter of the Secretary of the Interior stating that the
survey was made under the directions of the claimants, and that
upon examination, it is found that it does
Page 98 U. S. 208
not conform to the calls of the grant required by the order of
survey, and that the survey being upon land not granted, no effect
will be given to it by the department. Due objection was made by
the defendants to the admissibility of the evidence, and it was
excluded by the court, and the plaintiffs excepted.
Failing in that, the plaintiffs then offered in evidence a
survey of the tract made by the surveyor of St. Louis County, with
oral testimony to show that the survey was identical with the one
previously ruled out, and that the land confirmed to the assignee
of the original donee was correctly located by that survey, all of
which, on the objection of the defendants, was ruled out by the
court, and the plaintiffs excepted to the ruling of the court.
Both parties resting, the court instructed the jury that the
plaintiffs were not entitled to recover, and they excepted to the
charge of the court.
Since the case was entered here, they have assigned for error
the several rulings of the court excluding evidence which they
offered to introduce at the trial, and the charge that the court
gave to the jury that they were not entitled to recover.
Questions of difficulty remain to be examined and decided in
view of the exceptions, of which the following are the most
important:
1. What would be the legal effect of the survey made under the
supervision of the plaintiffs if it had never been disapproved by
the Secretary of the Interior?
2. Was it competent for the Secretary of the Interior to
disapprove the survey so made, and if so, to what extent did such
disapproval affect the right or interest of the plaintiffs?
3. Irrespective of any survey, what is the legal operation of
the concession as confirmed by the decree of the land
Commissioners?
4. Does it contain such metes and bounds that the circuit court
can locate it without a survey and without the aid of parol
evidence?
5. Suppose that question is determined in the negative, is it
competent for the circuit court to admit parol evidence in an
ejectment suit and submit the question of location in all its
aspects to the determination of a jury?
6. Concede that there is no regular subsisting survey of the
tract, what is the legal operation of the provision contained in
the first section
Page 98 U. S. 209
of the act obviating the necessity of issuing patents in the
private land claims included within that enactment?
Id.
Remarks to show that the survey in question never was recognized
or approved either by the Commissioner or the Secretary of the
Interior may well be omitted, as nothing of the kind appears in the
record, and it is certain to a demonstration that no steps were
ever taken by the Land Department to carry it into effect. Nor is
it necessary to add much to what already appears to show that it
does not conform to the calls of the concession, as that plainly
appears by the comparison of the survey with the terms employed by
the governor in making the concession. Nor is it any proper answer
to that objection to say that the survey was authorized by the
Secretary of the Interior, as it clearly appears that it was made
in utter disregard of his directions, and that it covers land
granted to other donees and which is not embraced in the concession
granted to the assignor of the party who presented the claim for
confirmation.
Surveys of such claims might at one time be made, if the party
applied to have it done, under the direction of the proper officers
of the government, the condition being that the applicant should
pay the expense or secure the same to the satisfaction of the
Secretary of the Interior before the work was performed. 12
id. 410.
By that act, the proper executive officers, at the request of
the owner of the claim, might cause it to be surveyed, but they
could not pass upon the title, nor give the survey any greater
effect than
prima facie evidence of the true location of
the land. Such a survey was made in this case under the direction
of the Secretary of the Interior, but there is nothing in that act
to compel the Secretary of the Interior to approve the survey if he
deemed it erroneous or to give it any effect whatever if he
disapproved of it for good reasons. His reasons for disapproving it
have already been referred to, and need not be repeated; nor is it
necessary to enter into any discussion of the reasons assigned by
the officer for rejecting the same, except to say that the reasons
given are, in the judgment of the court, amply sufficient to
sustain his action.
When first established, the Land Office was made a bureau
Page 98 U. S. 210
in the Department of the Treasury. 2
id. 716. By the
act to reorganize the Land Office, it is enacted that the executive
duties appertaining to the surveys and sale of the public lands
&c. shall be subject to the supervision and control of the
General Land Office, under the direction of the President. 5
id. 107. Prior to the passage of that act, appeals were
always allowed from the decision of the Commissioner to the
Secretary of the Treasury, as the head of the Treasury
Department.
Sec. 2 of the act establishing the Interior Department provides
that the Secretary of the Interior shall perform all the duties of
supervision and appeal in relation to the Land Office heretofore
discharged by the Secretary of the Treasury. 9
id.
395.
Assume that the power of such supervision and appeal was vested
in the Secretary of the Treasury prior to the passage of that act,
and it would follow beyond controversy that the same power is now
possessed by the Secretary of the Interior, but the suggestion in
that regard is, that the act reorganizing the Land Office left the
Secretary of the Treasury no such power.
Duties of the kind, it must be admitted, were rightfully
performed by the Secretary of the Treasury prior to the
reorganization of the Land Office, as the original act creating
that bureau established the office in the Department of the
Treasury, and placed the Commissioner under the direction of the
head of that department; nor does the latter act reorganizing the
office make any substantial change in that regard, as the President
still acted, as before, in matters belonging to the departments,
through their respective heads, which in legal contemplation and
practical effect gave the Secretary of the Treasury the same
supervision over the doings of the Commissioner as under the prior
act establishing the Land Office.
Patterson v. Tatum, 3
Sawyer 164. Documentary history, however, shows that the President,
when the act reorganizing the Land Office was presented to him for
approval, entertained doubts whether the Secretary of the Treasury,
if it became a law and went into operation, would be authorized to
exercise the accustomed supervision over the official acts of the
Commissioner in respect to the public lands, and that he deemed the
matter of sufficient
Page 98 U. S. 211
importance to ask the opinion of the Attorney General upon the
subject.
Prompt response to the request of the President was given by the
Attorney General, and in the course of his reply, he adverted to
the fact that the act creating the Land Office made it a branch of
the Treasury, and he expressed the opinion in very decided terms
that the Commissioner, under the new law, would still be, as
before, subject to the general superintendence of the President,
acting through the head of the Treasury Department. 3 Op. Att'y
Gen. 137. But he suggested as a measure of precaution that the
President should, before approving the act, direct the Secretary of
the Treasury that he should continue under its provisions to
exercise the same supervisory power as theretofore over the
business of the general Land Office, which suggestion, it appears,
was adopted by the President, and that the President issued such an
order, bearing even date with his approval of that act. 2 Laws,
Instructions, and Opinions, 104.
See also the opinion of
President Buchanan, 1 Lester, Land Laws, 681.
Throughout the entire period from the approval of that act to
the passage of the act creating the Department of the Interior, the
Secretary of the Treasury was accustomed to exercise that power
without question or challenge.
Viewed in the light of these suggestions, it is clear that the
power since the passage of the last named act is vested in the
Secretary of the Interior. Conclusive support to that proposition
is also found in two decisions of this court, where the precise
points is distinctly ruled.
Magwire v.
Tyler, 1 Black 195;
s.c., 75 U. S. 8
Wall. 661.
Four points were decided in the first case, as follows:
1. That surveys under such confirmations are, in regard to their
correctness, within the jurisdiction of the Commissioner, and that
that officer has power to adjudge the question of accuracy
preliminary to the issuing of a patent.
2. That the Secretary of the Interior has the power of
supervision and appeal in all matters relating to the General Land
Office, and that that power is coextensive with the authority of
the Commissioner to adjudge.
3. That the Secretary, in the exercise of his supervisory
powers, may lawfully set aside a survey made under a confirmed
Page 98 U. S. 212
Spanish grant, and may order another to be made, and issue a
patent upon it.
4. That where the construction of the acts of Congress defining
the powers of the Secretary of the Interior is drawn in question in
a state court, and the decision is against the title supported by
the decision of the Secretary, this Court has jurisdiction to
revise the case.
Corresponding rules are adjudged to be correct in the second
case, as appears from the following propositions:
1. That the judicial tribunals, in the ordinary administration
of justice, have no jurisdiction or power to deal with these
incipient indefinite claims without survey or specific boundaries,
either as to survey or fixing boundaries, but that such titles,
until an authorized survey is made, attach to no land, nor can a
court of justice ascertain its location or boundaries, as that
power is reserved to the Executive Department.
Landes
v. Brant, 10 How. 370;
West
v. Cochran, 17 How. 414.
2. That tracts of land previously surveyed or confirmed
according to the specific boundaries set forth in the concession
need no further location, as the legal effect of the confirmation
is to establish the right of the donee to the designated tract.
Cases of the kind, it was there admitted, do sometimes arise;
but the court held that where the claim has no certain limits, and
the decree of confirmation carries along with it the condition that
the land must be surveyed and severed from the public domain and
the concessions of other parties, then in all such cases the title
of the party attaches to no particular tract, and that the courts
of justice have no power or authority in law to establish the
boundaries or locate the concession, the rule being that that power
is reserved to the appointed executive officers.
Stanford
v. Taylor, 18 How. 409;
Bissell v.
Penrose, 8 How. 334.
3. That the power to revise surveys of such claims was vested in
the first instance in the Commissioner, subject to appeal, under
the act creating the Department of the Interior, to the secretary
of that department, who might lawfully set aside such a survey; and
that the concession, when the survey was set aside by the
secretary, remained before the court as it existed when confirmed
without survey by the land commissioners. 9 Stat. 395.
Page 98 U. S. 213
Even a few observations will be sufficient to show what the
legal effect of the concession as confirmed was without a survey to
locate the tract and define its boundaries. Commissioners to
adjudicate such titles were duly appointed, and they were required,
under the sixth section of the act, to transmit to the Secretary of
the Treasury and to the surveyor general of the district where the
land lay, transcripts of their final decisions made in favor of
each claimant, and also to deliver to the claimant the confirmation
certificate stating the circumstances of the case, and that he was
entitled to a patent for the designated tract, and the further
requirement was that the certificate should be filed with the
recorder if the land lay in the District of Louisiana and with the
register of the Land Office when the land lay in the Orleans
territory.
In all cases where the tract of land confirmed by the land
commissioners had not been previously surveyed, the seventh section
of the act declared that the same should be surveyed under the
direction of the surveyor general, and that he should transmit
general and particular plats of the tracts that were surveyed to
the proper register or recorder, and also transmit copies of the
same to the Secretary of the Treasury; the further enactment being
that when the confirmation certificates and plats were filed with
the register or recorder, he should thereupon issue a patent
certificate in favor of the claimant, which, when transmitted to
the Secretary of the Treasury, entitled the party to a patent in
like manner as patents are issued for lands acquired in other
lawful ways.
West v. Cochran, supra.
Survey was made in this case, as before explained, but it was
disapproved by the Secretary of the Interior, and became a nullity,
and of course the patent certificate could not be issued, and the
rights of the claimant were never advanced beyond what he acquired
by the concession, the confirmation by the land Commissioners, and
their certificate of confirmation.
Cases arise where the specific boundaries of the tract are set
forth in the concession given to the original donee by the foreign
government, in which cases it is well settled, as conceded in the
authorities already cited, that the decree of confirmation
Page 98 U. S. 214
locates the tract without any necessity for a subsequent survey.
Alviso v. United
States, 8 Wall. 339;
Higueras v. United
States, 5 How. 827;
Bissell v.
Penrose, 8 How. 341.
Nothing of the kind, however, of any practical importance is
exhibited in the record before the court, nor is it necessary to
enter into any extended discussion of the question, as it has
already been expressly decided by this court, in a controversy
founded upon the same concession.
Stanford v. Taylor,
supra. Stanford sued the defendant in ejectment, claiming
title from the confirmee to the land in dispute under a concession
granted by the governor to Angelica Chauvin, the tract consisting
of forty arpens in front by forty arpens in depth along the River
Des Peres from north to south, bounded on one side by the land of
Louis Robert, and on the other by the royal domain. Due
confirmation was shown, as in this case, and that the Commissioners
ordered in the decree that the land should be surveyed conformable
to the possession by virtue of the concession. Survey was made, and
the tract located west of the location of Louis Robert and on both
sides of the River Des Peres, which location, as the plaintiff
contended, was erroneous. What he insisted was that the location
should have been made east of the tract of Louis Robert, and that
that proposition was so plain on the face of the concession, that
no survey was necessary to determine the matter, and he offered
parol proof to prove his theory, but the court of original
jurisdiction rejected the proof offered, and this court affirmed
the judgment.
Three of the matters decided by the court in that case deserve
to be noticed:
1. That when there is a specific tract of land confirmed
according to ascertained boundaries, the title of the confirmee is
complete.
2. That where the claim has no certain limits, the title
attaches to no particular land, nor can a court of justice
establish the boundaries.
3. That the uncertainty of the intended location and of the
outboundary in the case is too manifest to require discussion to
show that a public survey is required to attach the concession to
any land.
Indefinite and vague as the terms of the concession are, not a
doubt is entertained that the court decided correctly in that case,
and it is only necessary to add in this connection that the
Page 98 U. S. 215
court here now adopts that conclusion, and the reasons given in
its support.
Concede that and no further argument is necessary to show that
it is not competent for the circuit court in such a case to admit
parol proof to establish the boundaries of such a concession, the
rule being established by repeated decisions that the concession in
such case being indefinite, uncertain, and vague, attaches to no
particular tract, and that it must be surveyed and located as
required by the seventh section of the act under which it was
confirmed, before the party can be entitled to a patent.
Stanford v. Taylor, supra; 75 U. S.
Tyler, 8 Wall. 661.
Authority to appoint a surveyor of lands in that territory was
conferred by Congress, and it was made his duty to cause to be
surveyed the lands in the territory which have been or may be
hereafter confirmed, under the conditions therein provided. 3 Stat.
325.
Both parties opposed the survey in the case of
Stanford v.
Taylor, supra; and the court having instructed the jury that
it did not include the land in controversy, directed the jury to
return a verdict for the defendant. Neither party claims that that
survey is of any validity, and the second survey having been
disapproved by the Secretary of the Interior, it is clear to a
demonstration that the concession in question is without any
subsisting valid survey, and remains where it stood at the date of
confirmation, having never been advanced to the condition where the
owner of the same could claim either a patent or patent certificate
under the confirmation act. 2 Stat. 441.
Grant that, and still the inquiry arises, what is the legal
effect of the more recent act dispensing with the necessity of
issuing patents in the cases to which it applies? 18
id.
62.
Taken alone, the first section grants, releases, and
relinquishes to confirmees all of the right, title, and interest of
the United States in such confirmed lands, as fully and completely
as could be done by patents; but the second section of the same act
provides that nothing contained in the first section shall abridge,
divest, impair, injure, or prejudice any valid right, title, or
interest of any person or persons in any part of the lands
mentioned in the first section. Both sections must be
Page 98 U. S. 216
construed together, and when so construed, the Court is of the
opinion that it dispenses with the necessity of issuing patents for
such lands in all cases where the party interested is by law
entitled to a patent, and in no other cases.
Patents therefore are not required where the concession was made
by specific boundaries, nor where the specific boundaries of the
tract confirmed are specifically set forth in the decree of
confirmation, or where the tract had been previously surveyed, as
required by the decree of confirmation and the seventh section of
the act providing for such confirmation.
Ample scope for the operation of the act in question is found in
the several classes of cases mentioned, without extending its
operation to cases where no right to a patent had been acquired and
which could not in that manner be conferred, without holding that
it repeals the standard land laws of the country, nor without doing
great injustice to claimants by introducing confusion and
uncertainty into the administration of the Land Department.
Nor is there a word in the act, when the two sections are
construed together, to support the theory of the plaintiffs.
Instead of that, the adoption of their theory would operate as a
virtual repeal of the second section, which was doubtless inserted
to guard against any such consequences as would flow from the act
if the theory of the plaintiffs should receive judicial
sanction.
Constant pressure of business in the Land Office occasioned
great delays in issuing patents, even in cases where the applicant
held regular patent certificates, as well as in cases where the
muniment of title granted by the former government gave the
boundaries of the concession, or where the proper location and
description of the tract was made certain by the decree of
confirmation, and it was to remedy that grievance that the act
under consideration was passed for the purpose of dispensing with
the necessity of issuing patents in certain cases.
Persons entitled to patents may, under that act, possess and
enjoy their right to the land by virtue of the act without a
patent, but the act does not dispense with a survey, made necessary
by the act under which the confirmation was decreed, in order to
entitle the party to a patent. Nor does it repeal
Page 98 U. S. 217
the seventh section of the prior act which creates that
necessity. Nor would it ultimately benefit the plaintiffs if the
act dispensing with the issuing of patents could be construed, as
they contend it should be, unless it could be held to supply
monuments or boundaries where they are not given in the foreign
concession, as the difficulty would still remain that the
description of the tract as given in the concession is too vague,
indefinite, and uncertain, to afford the means of location without
an authentic survey.
Even construed as they would have the act, still the fact would
remain, that the only guide for its identity is the description
given in the concession, which is, that it is forty arpens of land
in front by forty in depth, lengthwise the River Des Peres from
north to south, bounded on one side by the land of Louis Robert and
on the other by the royal domain. Nothing definite is stated to
show where any of the lines begin or end. As given, one boundary is
by Louis Robert, but it is not stated on which side, nor is any
point of beginning given to enable the court to determine where it
bounds on the royal domain; nor is anything set forth in the
description to enable the court to determine where it begins or
ends on the river, except what may be inferred from the phrase
"from north to south."
Sufficient appears to show that the tract cannot be located
without a survey or without the aid of extrinsic proof, which
certainly cannot be admitted while the act of Congress requiring
the survey remains in full force. These difficulties in the way of
the plaintiffs are insuperable; nor would a patent remove them
without a survey, as the concession would still be vague,
indefinite, and uncertain, and incapable of location until the
party in some way should procure an authentic survey.
Such a survey being necessary to the location of the claim, and
the antecedent surveys having been rejected, the question will
doubtless arise whether a new one may or may not be ordered, which
is not determined by the present opinion, and which it is the
intention of the court to leave entirely open.
For these reasons, the Court is of the opinion that there is no
error in the record.
Judgment affirmed.