1. The act entitled "An Act for the final adjustment of private
land claims in the States of Florida, Louisiana, and Missouri,"
approved June 22, 1860, 12 Stat. 85, provides for presenting all
such claims in Florida and Louisiana to the registers and receivers
of the several land offices within their respective districts, and
in Missouri to the recorder of H- land-titles for the city of St.
Louis, and for a report on the claims to the Commissioner of the
General Land-Office, and through him to Congress. In all such
cases, Congress reserved the right to confirm or to reject the
claim.
2. The eleventh section of the act authorizes the claimants in a
defined and
Page 98 U. S. 411
limited class of cases to sue by petition in the district court
of the United States within whose jurisdiction the land is
situate.
3. The title on which such a suit can be sustained must be one
which had been perfected under the Spanish or the French government
before the cession to the United States, and the lands separated
from the mass of the public domain by actual survey or which are
susceptible of such separation by a description which will enable a
surveyor to ascertain and identify them by the boundaries found in
the grant, or in an order of survey or investiture of
possession.
4. No person can bring suit under that act who by himself or by
those under whom he claims has not been out of possession over
twenty years.
5. The act thus intended to provide a suit in the nature of
ejectment against the United States, whether out of possession or
in possession, and to remove the bar of the statute of
limitations.
6. The claim under the grant in this case covers over seven
million acres, and it has never been actually surveyed or located;
nor do the claimants present any actual survey or ask for one to
ascertain if it be practicable under the description in the grant
made in 1793.
7. An inspection of the maps presented by them, copied from the
public surveys extended over the region to which the grant refers,
shows that the calls for the boundary of the grant are impossible
calls, that the royal surveyor was not on the ground, and was
mistaken as to the locality of the natural objects on which he
relied for description, and that no surveyor can by those calls
locate or identify the land.
8. The suit was not, therefore, authorized by said act of
1860.
This is an appeal from a decree dismissing, on demurrer, the
bill of the complainants, who, with the exception of one, their
alienee, claim to be the heirs at law of Captain Don Joseph
Valliere, who died intestate in the City of New Orleans in the year
1799. The suit was brought under the act entitled "An Act for the
final adjustment of private land claims in the States of Florida,
Louisiana, and Missouri, and for other purposes," approved June 22,
1860. 12 Stat. 85.
The claim in this case is founded on three instruments of
writing, of which translations are given in the record.
1. An order of Baron de Carondelet, Spanish governor of
Louisiana:
"11th June, 1793, to Captain Don Joseph Valliere, in the
District of Arkansas, a tract of land, situated on the White River,
extending from the Rivers Norte Grande and Cibolos to the source of
the said White River, ten leagues in depth."
"BARON DE CARONDELET"
Page 98 U. S. 412
2. A certificate of survey by Charles Trudeau:
`DON CARLOS TRUDEAU, Royal and Private Surveyor of the
Province of Louisiana.
"I certify having measured, in favor and in presence of Don
Joseph Valliere, captain of the stationary regiment of Louisiana, a
portion of land situated in the jurisdiction of Arkansas, on the
north and south banks of Rio Blanco, bounded on the east, or on the
inferior limit, by the Rio Norte Grande, the Rio Blanco, and the
Rio Cibolos; on the west, or superior limit, by the fountainhead or
origin of the most western branch of the said Rio Blanco and by
vacant lands of his majesty, separated from said vacant lands by a
line beginning at the said fountainhead of the most western branch
of Rio Blanco, running southwest ten leagues in depth; on the north
by the lands of his majesty, separated from these by a drawn line
beginning at the Rio Norte Grande, commencing at a point ten
leagues distant in a direct line from its mouth or confluence with
the Rio Blanco, running in a course nearly west until it meets the
fountainhead or origin of the most western branch of the Rio
Blanco, and on the south side by vacant lands of his majesty,
separated from these by a line drawn apart, beginning at a point
where ends the southwest limit, ten leagues from the fountainhead
or origin of the most western branch of the Rio Blanco, running on
a parallel line with said Rio Blanco descending, ten leagues in
depth, until it meets Rio Cibolos, at a distance of ten leagues in
a direct line from Rio Blanco. All of which is now fully
demonstrated in the figurative plan which precedes -- in which are
shown the dimensions and courses of the boundaries, the trees and
monuments serving as artificial and natural boundaries. The lines
and limits have been made at the request of the grantee and in
compliance with the order of the governor general, Baron de
Carondelet, of the ___ of June of the present year. All of which I
certify that it may be everywhere valid. I give these presents,
together with the figurative plan which precedes, on the 24th of
October, 1793."
"CARLOS TRUDEAU,
Surveyor General"
The figurative plan is the form following:
Page 98 U. S. 413
image:a
Page 98 U. S. 414
3. A cession or grant by Carondelet:
"For the benefit of the public, and for the greater
encouragement of agriculture and industry of the country, I have
judged it expedient to take steps for the surveying and granting
the royal lands of the provinces:"
"Therefore, I grant to Don Joseph Valliere, captain of the
regiment stationed in Louisiana, a portion of land in the
jurisdiction of Arkansas, situate on both banks of the White River,
ten leagues on both banks, beginning at the origin of the most
western branch or source of the White River, and running southwest
ten leagues, descending from thence on the south by parallel line
with White River, at the distance of ten leagues, until it
intersects the Buffalo River at a point ten leagues in a direct
line with White River, from thence descending the Buffalo River to
its confluence with the White River; following this as far as the
mouth of the Great North Fork of the White River, up the same to a
point ten leagues in a direct line from its mouth, from thence
ascending the White River to the north in a westerly direction ten
leagues from the same as far as its source, which will be better
seen on the figurative plan made by my order by the surveyor
general, Don Carlos Trudeau, of this province, 24th of October last
(it being impossible for the royal surveyor to make an actual
survey at this time), and in virtue of my order in June, of the
current year, by which I made him a grant and ordered the surveyor
general to put him in possession, according to the usual form, in
consequence of the power which has been conferred on me by our lord
the king (God preserve), I grant, in his royal name, to the said
Don Joseph Valliere, captain of the regiment of infantry of
Louisiana, the said portion described above, in order that he may
dispose of it, he and his legitimate successors, as property
belonging to him. Done in New Orleans, 22d of December, 1793."
"EL BARON DE CARONDELET"
A diagram, made in 1876, is filed with the bill as an exhibit,
accompanied by an affidavit of Mr. George H. Day, "a practical city
surveyor, duly appointed as such by the city of Brooklyn," that it
is a true and faithful diagram description and extent of the lands
covered by the grant. The description as therein set forth is that
the tract is
"situated on both sides of White River (or Rio Blanco), in the
States of Missouri and Arkansas, extending from the north fork of
White River
Page 98 U. S. 415
(or Rio Norte Grande) westerly to its source 37 7/8 miles in
depth on both sides (or ten leagues)."
"Beginning at the origin or terminal of main fork of White River
in Madison County, Arkansas, in township 13 north, range 25 west,
from thence south 37 7/8 miles (or ten leagues) to a point in
township 7 north, range 25 west; thence continuing on a line drawn
parallel with the main courses of the said White River and at a
distance of 37 7/8 miles therefrom (or ten leagues) on a line drawn
north of west 33 1/2 miles to a point in township 8 north and range
31 west; thence northwesterly 52 7/10 miles to a point in the
Indian Territory or Cherokee County near Flint Creek; thence north
by east 46 7/10 miles to a point in township 23 north, range 34
west, in McDonald County, Missouri; thence northeasterly 60 8/10
miles to a point in township 28 north, range 26 west, in Lawrence
County, Missouri; thence easterly 48 miles to a point in township
29 north, and range 18 west, and distant from a point on White
River 37 7/8 miles (or ten leagues); thence southeasterly 45 6/10
miles to a point on the Big North Fork of White River in township
24 north, and range 12 west, distant 37 7/8 miles (or ten leagues)
northerly in a direct line from the mouth of the north fork of said
White River; thence southerly down the north fork of White River
(or Rio Norte Grande) to its mouth in township 18 north, range 12
west; thence southwesterly up the White River to the mouth of
Buffalo Fork of White River; thence westerly, following said
Buffalo Fork (or Rio Cibolos), to its source in township 14 north,
range 24 west; thence southwesterly to the terminal or source of
White River, the place of beginning, as more full shown on the map
annexed, containing 11,370 square miles."
The complainants allege that "Rio Blanco" is the White River of
the State of Arkansas, having its source in the most westerly part
thereof, running through the southwesterly portion of the State of
Missouri, and thence through the said State of Arkansas, and
emptying into the Mississippi River; that Rio Cibolos is the
Buffalo River, a branch of the said White River; that Rio Norte
Grande is the Great North Fork River of the State of Arkansas, and
a branch of the said White River; that neither they nor any parties
holding title under
Page 98 U. S. 416
the original claimant have possessed and cultivated any of said
lands for the period of twenty years prior to the filing of the
petition; that the lands are partly situated in the Counties of
Ozark, Douglass, Taney, Christian, Stone, and Barry of the State of
Missouri, and are within the jurisdiction of the court below; and
that all or nearly all of them have been disposed of by the United
States. The complainants pray that they may be allowed upon the
trial to show by competent evidence what portion of the lands now
remains undisposed of and claimed by the United States; that a
patent may be issued therefor; and that warrants or scrip be
awarded to them and their legal representatives, as an equivalent
for the lands, portion of the said grant, which have been disposed
of by the United States; and for such other decree as to the court
may seem just.
MR. JUSTICE MILLER delivered the opinion of the Court.
The history of the relation of the government of the United
States to the claims for lands asserted under rights derived from
the Spanish and French governments prior to the cessions of
Louisiana and Florida to our government, as it is found in the
treaties, the acts of Congress, and the judicial decisions of the
American tribunals, is given very fully and with accuracy in the
opinion of this Court in the case of
United
States v. Lynde, 11 Wall. 632, and will be referred
to now without repeating it. The necessity and the policy of the
act of 1860 are there fully considered. It declares that the
registers and receivers of the public land offices in Florida and
Louisiana, within their respective districts, and the recorder of
land titles for the State of Missouri, shall be commissioners to
hear the evidence and make report to the Commissioner of the
General Land Office concerning this class of claims. They are
directed in their reports to divide the cases into three classes,
two of which were to be reported as valid and the third as invalid.
The nature and character of these claims, and the evidence on which
they are to be held valid or invalid, are fully set out in
Page 98 U. S. 417
the statute. After the reports of these officers are filed with
the Commissioner of the General Land Office, they are to be subject
to the examination of that officer, who is to report thereon
directly to Congress. In all cases where he and the local
commissioner concur in the rejection of the claim, that action is
to be final, but where he concurs with these commissioners in
holding a claim valid, he shall report the same to Congress for its
action. And in cases where he disapproves the report of the
commissioners, he shall in like manner report the whole matter to
Congress for final action. It will thus be seen that in all cases
brought before any of these officers under this act, except when
the Commissioner of the General Land Office concurs with them in
rejecting the claim, the whole proceeding amounts merely to a
report to Congress, and the final action of confirming or rejecting
the claim rests with that body.
The eleventh section, however, enacts that in a much more
limited class of cases, which it specifically defines, the
claimants
"may at their option, instead of submitting their claims to the
officer or officers hereinbefore mentioned, proceed by petition in
any district court of the United States within whose jurisdiction
the lands or any part of the lands claimed may lie, unless such
claim comes within the purview of the third section of this
act."
It declares that the United States may be made defendant to such
a suit, and an appeal allowed prescribes the mode of executing a
final decree in favor of the claimant, and provides for other
matters. So much of it as excludes claims coming within the purview
of the third section evidently has reference to the proviso of that
section that no case shall be reported favorably by the
commissioners which has already been twice rejected on its merits
by previous boards, or has been rejected as fraudulent, or as
having been procured or maintained by fraudulent or improper
means.
The difference in these two modes of procedure and in the
results which followed them are obvious and important. The first,
as already observed, is merely a mode of placing before Congress
the result of an investigation by the local commissioner and the
Commissioner of the General Land Office, with their opinion on the
merits of the claim. On these reports Congress either rejects or
confirms the claim, as it may think
Page 98 U. S. 418
right. Until such action by Congress, nothing is concluded, and
if it fails to act, the previous inquiry amounts to nothing.
The suit in the district court, on the other hand, has all the
elements of any other judicial proceeding, among which are the
conclusiveness of the judgment on both parties and the right to an
appeal to this Court for final decision. Considering the more
valuable results which may be obtained in the courts and the better
defined course of procedure there, it is not strange that parties
who have faith in the validity of their claims should prefer that
tribunal.
But Congress did not intend to refer all the cases embraced in
the act to the courts at the option of the claimant. It was only
claims of a class defined by the eleventh section of the act which
the claimant might bring either before the court or before the
commissioner, at his election. If the case before us does not
belong to this class, the court did right in dismissing the
petition, whatever may be its merits, and though it may be a case
which, if brought before a commissioner, would be entitled to a
favorable report.
We must therefore examine the case in the light of the
provisions of the eleventh section, which defines this class in
these words:
"Any case of such a claim to lands as is hereinbefore in the
first section of this act mentioned, where the lands claimed have
not been in possession of and cultivated by the original claimant
or claimants, or those holding title under him or them, for the
period of twenty years aforesaid, and where such lands are claimed
by complete grant or concession, or order of survey duly executed,
or by other mode of investiture of the title thereto in the
original claimant or claimants, by separation thereof from the mass
of the public domain, either by actual survey or definition of
fixed natural and ascertainable boundaries or initial points,
courses, and distances, by the competent authority prior to the
cession to the United States of the territory in which said lands
were included, or where such title was created and perfected during
the period while the foreign governments from which it emanated
claimed sovereignty over, or had the actual possession of, such
territory."
A careful examination shows three distinguishing elements
necessary to a suit in the court:
Page 98 U. S. 419
1. The claimant or those under whom he holds must have been out
of possession for twenty years or more.
2. The land must be claimed by a complete grant or concession,
or order of survey duly executed, or other mode of investiture of
the title in the original claimant by separation from the mass of
the public domains, either by actual survey or defined fixed
natural boundaries or initial points and courses and distances, by
the competent authority, prior to the cession to the United
States.
3. Where such title was created and perfected during the period
of the actual possession of the prior government under which the
claim is asserted.
This is substantially an action of ejectment, with the bar of
the statute of limitations removed, the United States having a
constructive possession for the defendant.
The title must be complete under the foreign government. The
land must have been identified by an actual survey with metes and
bounds, or the description in the grant must be such that judgment
can be rendered with precision by such metes and bounds, natural or
otherwise.
There must be nothing left to doubt or discretion in its
location. If there is no previous actual survey which a surveyor
can follow and find each line and its length, there must be such a
description of natural objects for boundaries that he can do the
same thing
de novo. The separation from the public domain
must not be a new or conjectural separation, with any element of
discretion or uncertainty.
The right to sue here given is not on an inchoate or imperfect
title. It is not on a perfected grant for an unknown location or
for a given quantity within defined out boundaries. All these are
left to be pursued, if at all, before the commissioners appointed
by the statute. They could pass upon the equities arising from
imperfect or incomplete grants. An order of survey was sufficient
before them if otherwise sustained by proof. Permission to settle
on the land, or any other written evidence of title emanating from
the foreign government prior to the cession. This required no
completed title, no actual survey, no twenty years out of
possession, no prior segregation from the public domain. In all
this class of cases, Congress, which
Page 98 U. S. 420
reserved the right to decide, only required evidence of some
equitable claim arising under the former government on which it
could make an intelligent decision.
But in the cases brought before the courts, while removing the
bar of the lapse of time, and the want of a defendant in
possession, and the defense of a better title by patent from the
United States, the act still requires a title completed under the
foreign government, evidenced by written grant, actual survey, or
investiture of possession, and, in short, evidence of a title on
which recovery of possession could be had when these defenses were
out of the way. This view is confirmed by the provision that the
petitioner must have been out of possession for twenty years. The
only reason that occurs to us for this is that, having the superior
legal title, he could recover from anyone in adverse possession
without the aid of the statute, where he was not bound by twenty
years' limitation.
Does the case before us come within this class?
There was no actual survey. The order of survey made by Governor
Carondelet is very indefinite. It is thus translated in the
record:
"11th June, 1793, to Captain Don Joseph Valliere, in the
District of Arkansas, a tract of land situated on the White River,
extending from the rivers Norte Grande and Cibolos to the source of
said White River, ten leagues in depth."
"BARON DE CARONDELET"
On the strength of this order, Trudeau, the surveyor general,
proceeded to make what he calls in his certificate of survey "a
figurative plan" by conjecture, and from this gives a certificate
of survey. It appears by the paper called a grant and signed by
Carondelet that this plan was made by his order because it was
impossible for the royal surveyor to make an actual survey at the
time.
Based upon this figurative plan, the concession or grant makes
an attempt to describe the land granted by certain natural objects,
and some general but not specific directions as to the courses and
distances. It does not appear that any actual survey has ever been
made locating this grant. It does not appear that any attempt has
ever been made to do it. We
Page 98 U. S. 421
have in the record copies of Trudeau's sketch. We have a copy of
the official map of the surveys of the land into congressional
subdivisions, made for the purpose of selling these lands, which
have been extended over all the area in which this grant could
possibly be found, and we have a map of the State of Arkansas, with
county and township subdivisions; and in both these latter, the
general course of the White River, its branches and affluents, are
laid down.
On this latter map we have what Mr. Day, a civil engineer,
swears to be a correct location of this grant according to
boundaries given in Carondelet's cession. This was not made by any
actual survey, but simply taking the sectional map of the State of
Arkansas, Mr. Day has made lines on it, which he declares to be a
location, on that map, of Valliere's grant. He does this by
assuming a point in township 13 north, range 25 west, in Arkansas,
to be the origin of the White River, and proceeding directly south
from this point ten leagues, or 37 7/8 miles, he makes a series of
arbitrary lines, with a corresponding number of angles and changes
of course, tending first northwest, and then northeast, and then
southeast, until he reaches the Great North Fork of said river. He
then descends said fork until it intersects the river, descends the
main river until he reaches Buffalo Fork, ascends Buffalo Fork
until he comes near the initial point or source of White River, and
then makes a straight and arbitrary line southwest to the
beginning. As regards this survey, the straight lines and the
changing courses and distances are wholly arbitrary and artificial,
having no natural objects to establish them, and nothing in the
descriptive language of the grant. They are intended to be the
conjectural or average distances of ten leagues from the White
River. That is to say, in a distance of nearly three hundred miles
on one side of White River, in order to ascertain definitely what
lands are within ten leagues of that river -- one of the most
tortuous ever known -- the surveyor makes six new departures and
courses, and, running these by straight lines, declares that he has
solved the problem and made an accurate survey.
But let us compare this survey with the calls of the grant. The
latter describes the land as
"situated on both banks of White River, ten leagues on both
banks, beginning at the origin
Page 98 U. S. 422
of the most western branch or source of the White River and
running southwest ten leagues, descending thence on the South by
parallel line with White River, at the distance of ten leagues
until it intersects Buffalo River at a point ten leagues in a
direct line with White River, from thence descending the Buffalo
River to its confluence with White River; following this as far as
the mouth of the Great North Fork of the White River, up the same
to a point ten leagues in a direct line from its mouth, from thence
ascending the White River to the north in a westerly direction, ten
leagues from the same, as far as its source, which will better be
seen on the figurative plan,"
&c.
Assuming that Day's survey has located the original source of
White River as the initial point correctly, the first call in the
grant is southwest ten leagues. Mr. Day's line is ten leagues
directly south; the next departure in the grant is descending thus
on the south by parallel with the White River at the distance of
ten leagues, until it intersects the Buffalo River at a point ten
leagues in a direct line with White River. Here Mr. Day utterly
disregards the call, makes a due west line, taking him directly
away from the Buffalo River, and making his artificial courses and
distances nearly three hundred miles, not on the south, but on the
west and north, of White River, and never gets to Buffalo River
until he has run the reverse course of the call, and meets it near
the last of his survey at its junction with White River. The reason
of this is obvious. The call in the grant is an impossible call.
The Buffalo River is not in the direction supposed by Trudeau and
Carondelet, and the source of White River is not where it is
supposed to be.
The next call in the grant is to descend the Buffalo to its
confluence with White River. But the Buffalo would never be reached
by the call of the grant. In short, looking at the calls for
material objects, courses of streams, and distances, that which
might have been predicted occurred. In attempting to make a grant
described by rivers of whose courses and location they were
ignorant, by given distances which could not be made to conform to
the natural objects, making a grant of over seven millions of acres
of land by specific boundaries of which they knew nothing, they
made a total failure, and gave no
Page 98 U. S. 423
description by which any surveyor could, without the aid of a
lively imagination, make any location.
This is clearly manifest by a comparison of Trudeau's plan with
Day's location, and with the actual locality and course of the
streams as they are now ascertained.
Trudeau's plan and the calls of the grant make the initial point
and source of White River in the northeast corner of the plat; Day
makes the source of the river and the initial point in the middle
south part of his survey. Trudeau runs a waving line in a
southeastern direction to Buffalo River, where he supposed it to
be; Day runs in a reverse direction northwest, until he meets the
North Fork, and comes down it.
Trudeau was mistaken if the source of the river is where Day
locates it. But this destroys all Trudeau's plan, and locates the
grant in a very different place from where he and Carondelet
intended it to be, and where it can never be reached by any survey
following the description of the grant.
But on what evidence Mr. Day rallies to fix the source of the
river, the beginning point of his location is unknown. He did not
go on the ground or trace the stream. He merely takes the map of
Arkansas and says, here on this map I find the origin of the river
to be a point in township 13 north, range 25 west, in Madison
County.
Whether this map gave the origin of the most western branch of
that river correctly is wholly uncertain. How far a surveyor must
pursue such a branch or stream to find the fountain from which is
flows is left in the dark. If Mr. Day had gone on the ground,
ordered to make the survey under oath, he might have felt bound to
locate this point many miles from where he finds it on the map. It
is almost absurd to suppose that in an ordinary traveler's map of a
state, made to be folded into a pocket case, any reliance can be
placed on its location of the source of a stream which would
justify its acceptance as a warrant for locating with precision a
grant of over seven millions of acres of land. The combined
exhibits E and F, which are certified copies of the official
surveys of the United States, call this most western branch Buffalo
Fork, and do not locate the origin of this western branch within
thirty miles of the point which the Arkansas map does and where Mr.
Day does.
Page 98 U. S. 424
We are of opinion that for want of any actual survey, at the
time the grant was made or at any other time, by the Spanish
government, for want of any other separation of the land granted
from the mass of the public domain, and for want of any description
of the land granted in the instrument of cession, or order of
survey, by which the land can be surveyed and identified, the claim
does not come within the eleventh section of the act of 1860, and
that the district court properly rejected it.
Decree affirmed.
