The courts of justice can only adjudge what has been granted and
declare that the lands granted by the lawful authorities of Spain
are separated from the public domain, but where the land is
expressly granted at one place, they have no power by a decree to
grant an equivalent at another place, and thereby sanction an
abandonment of the grant made by the Spanish authorities. All the
public domain of Spain was ceded to this government by the treaty
of cession, and the title in fee to the same vested in the United
States; from the lands thus acquired was excepted individual
property. First, the paper title to such private property it is our
duty to investigate and ascertain, and by our decisions to
establish, and secondly it is our duty to ascertain and cause to be
surveyed and marked by definite boundaries the lands granted, and
here the duties of the courts end. They have no authority to divest
the title of the United States and vest in a claimant, however just
his claim may be, an equivalent. These principles seem to be
self-evident, and their assertion not called for because of their
undoubted character, yet the consequences flowing from them will be
found to govern a class of cases of large magnitude now in the
course of adjudication. The one before us is of that class. The
concession or grant (for the terms are synonymous in regard to
the
Page 40 U. S. 183
Spanish titles of Florida) to Juan Forbes, was for 10,000 acres
in the district or bank of the River Nassau, with an order that the
concession should serve him as a title in form, "and it will be the
duty of the party to produce the plat and demarcations, in the
proper time," says the decree of the Spanish governor.
That this concession is founded on a past consideration -- that
is, on the surrender of other 15,000 acres previously granted to
Panton, Leslie & Company -- admits of no doubt; still the
question recurs what spot of land was granted? Of the district of
Nassau we know nothing, as there is no proof of the existence of
such a section of country in the record unless we infer that it is
in the range of country through which the River Nassau runs. But
the description is more precise, and authorizes the grantee to take
the land on the bank of this river. That there is such a river as
the Nassau, in East Florida, lying south of the St. Mary's River,
we know from the general geography of the country; it is, however,
a river of considerable length; the land might have been located on
either bank, from its commencement as a river to its mouth at the
ocean. No survey of the land granted was ever made; the duty
imposed upon the grantee to produce the plat and demarcations in
the proper time was never performed. This was a condition he
assumed upon himself; the execution and return of the survey to the
proper office, in such case, could only sever the land granted from
the public domain. Before, the grantee had an equal right to any
lands on either bank of the River Nassau. The concession was made
in 1814, and how long the party had the right to survey and make
the demarcation it is needless to inquire, as it has never been
done. We apprehend, however, within six months after the
ratification of the treaty, by the contracting parties,
respectively, was the latest date at which the condition to survey
could have been complied with; on this point, however, no definite
and conclusive opinion is called for, and none is given.
Thus situated, the claim was presented to the Superior Court of
Florida for confirmation. The court pronounced the claim valid,
that is, that the concession had been made by the lawful
authorities of Spain, and it was decreed that the lands
"be confirmed at the place, as in the memorial of the said John
Forbes, and the decree of the governor thereon
Page 40 U. S. 184
set forth, to-wit, 10,000 acres of land in the district or bank
of the River Nassau."
From this decree the United States appealed, and in the review
of which decree we are compelled to find the land granted, or to
reject the claim because we cannot identify the land. If this
cannot be done, we have no power to decree an equivalent out of the
lands of the United States, for the reason that the courts have no
authority to divest the title of the government, and to vest it in
Forbes' heirs. No particular land having been severed from the
public domain by John Forbes, his was the familiar case of one
having a claim on a large section of country unlocated; in its
nature and effect, as it regards the government, not differing from
the holder of a land warrant in the American states, which might be
located by survey at any spot that was not appropriated by an
individual title, in a certain district of country. In such a case,
the government has ever been deemed to hold the fee, unaffected by
a vested equitable interest, until the location was made according
to the laws of the particular country. So here, Forbes acquired no
title to any land that can be recognized by a court of justice, and
his claim must be pronounced void for want of identity, and because
it is impossible to settle the identity, and locate the land by a
judicial decree.
Although this question has not been directly presented to the
Court for decision, yet it did arise, and received our careful
consideration in the case of the
United
States v. Arredondo, 13 Pet. 88. In that case,
30,000 acres had been granted to Arredondo in 1817, designated to
lie on Alligator Creek, a branch of the Suwanee, to begin about
seven miles west of Alligatortown, situated about forty miles
north-westwardly from Paynestown, and about eighty miles from Buena
Vista, which parts of the country are known under the name of
Alachua. The Court said
"The land must be taken, as near as may be, as it was granted,
and cannot be taken elsewhere. It [the grant] gives no right to an
equivalent or another location if it cannot be found at or near the
place designated; an equivalent is not secured by the concession in
terms, nor is it by the customs or usages of Spain, nor by any law
or ordinance of Spain. And it is proper here to remark that the
acts of Congress for ascertaining claims and titles to land
Page 40 U. S. 185
in Florida, whilst they recognize the patents, grants,
concessions or orders of survey as evidence of title when lawfully
made, do not permit, in case of a deficiency in the quantity from
any cause whatever, the survey to be extended on other lands."
Detailed and careful instructions are then given how the court
below shall proceed to identify the land and how it shall be
surveyed when the identity is established, and then the Court
declared
"If, however, neither Alligator Creek can be found nor any creek
to the west of Alligatortown entering into the Suwanee within seven
miles distance from the town or a reasonable distance therefrom,
and if Alligatortown cannot be found, then it is the opinion of
this Court that the remaining description in the petition of the
locality of the concession is too indefinite to enable a survey to
be made, and that the appellees can take nothing under the
concession."
Subject to this opinion, and a mandate in conformity to it, the
cause was remanded to the Superior Court of East Florida for
further proceedings in execution of the decree and instructions of
this Court, and where it is probably now pending. We think the
principle adopted unquestionably correct, and which rules this
case.
The petition of Juan Forbes, and the concession of Governor
Kindelan, are authenticated and were read in evidence by the
following certificate:
"On the date, a copy of this expediente was given to the
interested party above."
"AGUILAR"
We feel strongly impressed with the deficiency and
unsatisfactory character of the foregoing certificate, but as no
objection was made to the introduction of the title papers in the
court below on behalf of the United States on the hearing, and as
the cause has presented no difficulty on its merits, this
preliminary point has been passed over with this indication, so
that in future the objection may be taken below should it be deemed
desirable to present the question on part of the government,
whether such authentication is sufficient to authorize the
evidences of title to be read.
We order the decree of the Superior Court to be reversed,
and that the petition be dismissed.
Page 40 U. S. 186
This cause came on to be heard on the transcript of the record
from the Superior Court for the District of East Florida and was
argued by counsel. On consideration whereof it is the opinion of
this Court that the grant or concession is void for the want of
identity; that it appropriates no land; that the said petitioner
has acquired no right or title to any specific land. Whereupon it
is now here decreed and ordered by this Court that the decree of
the said superior court in this cause be and the same is hereby
reversed and annulled and that this cause be and the same is hereby
remanded to the said superior court with directions to enter a
decree in conformity to the opinion of this Court.