Jourdan v. Barrett

45 U.S. 169, 11 L. Ed. 924, 4 How. 169, 1846 U.S. LEXIS 392

• Court: Supreme Court of the United States
• Decided: January 27, 1846
• Status: Published

Opinion

Mr. Justice CATRON

delivered the opinion of the court.

The record brings before us two petitory actions; one of Landry against Barrett; and the other of Jourdan against the same defendant. The State District Court of Louisiana adjudged the title, of Barrett the better, and for this reason decided in his favor in both actions ; but in that of Landry it was also held, that the title to the land he claimed was invalid, because he produced no other evidence of claim than the receipt of the receiver above set forth, dated 8th March, 1836 ; that the act of June 15, 1832, limited his right to purchase to three years ; and not having filed his notice of claim, and paid his money, until the 8th of March, 1836, he came too late, and for this reason, also, the petition must be dismissed. The judgment being affirmed generally by the Supreme Court of Louisiana, and being opposed to the authority exercised by the officers of the United States, acting in virtue of acts of Congress, it becomes our duty to examine whether the judgment, below was. proper on this' ground. We find the District Court overlooked the act of February 24, 1835,'which extended the time to the 15th of June, 1836, to owners of front tracts to become purchasers by preference of the back tracts adjacent to those owned by them; so that the purchase made by Landry on the 8th of March, 1836, was in-time. It follows, the claims of Landry and Jourdan are alike ; and the opposing claim of Barrett, being the same as to each of the petitioners, the controversy, may he treated as one suit. It depends on mixed questions of law and fact; both having been submitted to the courts below for their judgment, without the aid of a jury ; and as the facts giving rise to the controversy call for construction- of acts - of Congress to give the facts effect, they come before this court for its action under the 25th section of the Judiciary Act. This is the settled doctrine here, as will be seen by the cases of Pollard’s heirs v. Kibbie (14 Peters, 353), The City of Mobile v. Eslava (16 Peters, 234), and Chouteau v. Eckhart (2 How. 372).

Neither party has a patent; and each comes before us asserting a superior equity to the lands in dispute. Barrett insists that the entry under which he claims title, dated April 12,' 1822, was made for a specific quantity of 510 superficial acres, and designated by survey and side lines ten years and more before the opposing claims originated, and therefore his possession cannot be disturbed by their assertion.

On the other hand, it is insisted that Bringier, under whom Barrett claims title, had no preference extended to him by the act. of May 11, 1820, to enter so much as 510 acres as back land to the Whitehall tract; that it fronted on the.inside of a bend of the Mississippi River, and conformed to Spanish and French forty arpent concessions made on fronts, in concave bends, in the extension of side lines ; which uniformly converged in proportion to the greater or less ' circle of the bend ; that the Whitehall tract was much narrower on the back than on the front side ; that the act of Congress did not permit Bringier to enter any other back land than that within his direct side lines, produced from the river eighty arpents deep ; and that Barrett’s equity is limited to the “ back land,” in quantity to forty arpents deep within these lines, although much .less than 510 acres. And that, as this mode of surveying the double concession will not include the land entered by either of the petitioners, they are entitled to recover ; furthermore, that in this form has Barrett’s claim been surveyed by public authority, and in no other.

In December, 1832, Bringier caused Wilson, a surveyor, to run out his claim of 510 acres, in the same form of the front tract; that is, he began at the back terminus of each side' liné of the-old tract, and ran diverging lines so as to make the opposite side of his new survey of the same width with the- front on the river, thus making á tract of 1,020 acres, little more than half as wide in the middle as it is at either end. This survey was neither returned to, nor -recorded in, the surveyor-general’s office ; nór recognized by the officers of the United States as a public survey. Bringier, and those claiming under him, however, took and held possession of the land surveyed, and improved the same, assuming that it covered the land entered in 1832, and that it was lawfully made ; at least, as against any claim the petitioners can be permitted to set up. This we suppose mainly, to depend on the true construction of the act of 1811, which was renewed from time to time.

The surveys of township No. 11, including the lands in dispute, were not made until thb’fall of 1829 and spring of 1830, and then only in part, both as to the ordinary extension- lines, and as regarded the private grants and back lands subject to be attached by preference of entry to front grants. Until these latter were surveyed, they could not be acted on as to specific quantity. By the act of March 2, 1805, section 7, the powers of the surveyor of lands south of Tennessee were extended over the Territory of Orleans. And by the 9th section of the act of April 21, 1806, he was directed to appoint two principal deputies,'one for each of the districts into which the. Orleans Territory was divided ; who were to keep separate offices of their own, and to execute public surveys in their respective districts, in conformity to the regulations and instructions of their principal.

By the act of March 3, 1831, ¡a surveyor-general of public lands lying in the State of Louisiana was ordered to be appointed ; and on whom, within thá .. State, were devolved the duties formerly imposed on the surveybn of lands south of Tennessee ; that is, after the 1st of May, 1831 ; and also the duties of the two principal deputies authorized by the act of 1806. The latter offices were abolished, and the duties appertaining to them merged in the surveyor-general’s office of Louisiana. That officer took charge , of the official records and papers ; and on him was imposed the duty of doing equity among those entitled to back concessions under the acts of 1820 and 1832, where it had not been previously done. His own deputies did the 'field work not done on his coming into office ; and in his time were the surveys in township No.. 11 completed; and by him were they first approved after their completion. This the government recognizes as the legal survey of the township, by which the United States are bound, and on extracts from which patents and certificates can be founded ; and to this end the approved plan of .it was filed in the register’s office of the Southeastern District of Louisiana, on the 8th of August, 1834 ; by it all those purchasing from the United States, either by preference of entry, or otherwise, are bound to abide, unless legal alterations have been made, or there were existing legal and sanctioned surveys, laying off back lands to particular front owners, independent of the general survey. None such was made for the Whitehall tract, as we think, and its back land, as to extent and form, is governed by the general plán 'above named. The one made by Rightor’s direction, approved by Gideon Fitz, surveyor of public lands south of Tennessee (March 9, 1832), received no additional value from such approval, as the act of 1831 superseded bis authority in this respect. Rightor deposes, that at no time had the surveyor south of . Tennessee any power of approval or supervision of the surveys made by him, Rightor, as principal deputy ; and that the surveys made by Foster and Walker in the spring of 1830, and approved by Rightor, as principal deputy, June 10, 1830, in his judgment bound the United States, as to the form and extent of the land attached to the Whitehall tract. The commissioner of the general land-office thought the survey on its face an unwarrantable proceeding, as it cut off the back lands of Bringier’s neighbours, and violated the act of 1811. 2 Land Laws, No. 950. • And we think the commissioner was right in his conclusion. Claims of double concessions in Louisiana were not new in practice ; surveys of such claims were common, and the direct extension of the side lines of the front tract was the equity, as a general rule, accorded to them, as we apprehend ; and so gross a violation of it as is found in Bringier’s survey could not be sanctioned.

In April, 1822, when Bringier’s entry was made, there can be no fair pretence to say he acquired by the entry an equity to the extent of Wilson’s or Rightor’s survey, as against others having at that time equal rights to enter back land, which rights the survey assumed to defeat. By his entry Bringier acquired an equity to certain land*, to be laid off in a form not to interfere with his neighbours having equal rights under the law. They did not enter, probably because his unjust, pretended claim deterred them ; and failing to do so until the time expired, Bringier assumed that his equity might be enlarged, and was enlarged, to the extent that Rightor’s or Wilson’s survey goes.

We think this .assumption cannot be- sustained; what equity Bringier acquired took date with his entry, and his survey ought to have beeii the same, had no one claiming front lands interfered, as the act of Congress reserved for future sale all the back lands not entered in time; a provision that would have been altogether defeated in this instance, if the assumption wras true. For nearly •twenty years after the act-of 1811 was passed, the government failed to survey the back lands, so as to afford an opportunity to front owners to acquire woodland in the rear (most necessary in a sugar-growing country), and it would be strange had the power to make back concessions been parted with, in so plain a case, by permitting sweeping surveys like that of Bringier.

We say above, claims for double concessions were not new. O’Reilly’s regulations of 1770 provide for narrow front grants on rivers,'by forty arpens in depth ; for embankments in front for the exclusion of high water ; for ditches to carry off the water.; for roads and bridges. The 17th article of Gayoso’s regulations confirms those of O’Reilly. These were made by governors-general, who had. the distribution of lands from 1770 to October, 1798 ; then the authority was restored to the General Intendant of Louisiana and West Florida, Morales ; and in this officer the power remained up to the change of governments, in 1804. All the regulations. will be found in 2 White’s Recopilación, 228, 244. In article 3d of Morales’s, especial duties are prescribed to the owners of front grants, but nearly the same of O’Reilly’s. The syndics were bound to enforce the making of such embankments, ditches, roads, and bridges, and the clearing in the three first years, in addition, a certain quantity of land, and putting it into cultivation. The grants were not to exceed six or eight arpens in front; usually not so much was granted; and the lands were to adjoin. Annually the Mississippi overflows, and to prevent an inundation of the country, heavy and expensive embankments are required, and they must be continuous; and are so, for hundreds of miles, on the-batiks of the river. The country would he worthless without them. It had been reclaimed from the water by this means and the ditches, by the French and Spanish front proprietors : and on the keeping up of the levees the value of the back lands depended ; the • great expense, and constant watchings, during a part of the year, to guard against inundation, and that of the whole country, by á break in the levee at any one place, involve public considerations to Louisiana of the highest magnitude ; and those whose duty ánd interest it was to prevent.it — the front owners — had extended to them, by the Spanish government, peculiar privileges, and which the United States at an early day recognized;

A board of commissioners was established'by the act of March 2, 1805, whose duty it was to examine and .report'to Congress on French-and Spanish claims to lands in that section of country ; and by the .supplementary act of April.21, 1806, section 5, it was made their further duty, among other things, “to inquire into the nature and extent of claims which may arise'from a right to a double or additional'concession on the back of grants or concessions, heretofore made,” “and to make a special report thereon to. the Secretary of .the Treasury, which report sháll be by him laid before Congress at their next session. Ahd the lands which may be embraced in such report shall not be otherwise disposed of until a decision of Congress shall have been had thereupon.”

' The commissioners were engaged for some six years in the Orleans Territory in pursuing their investigations, and their reports were laid before Congress by the Secretary of the Treasury early in 1812; But in the mean time it was well'known what course had been pursued by the board in regar-d to all descriptions' of claims, and among others oLhaftlr concessions." Instances in the report will be found in . 2 Am. State Papers, 297, 337. Of claim (p. 297). No. 101, the board says, — “ Benj. Babin claims a second depth of forty arpents, lying immediately back of a front or first depth, which we. have already confirmed to ..him among the confirmed claims.”

“ The claimant has no other foundation for his title to the second depth than having occupied the front and first depth, and having occasionally supplied himself with timber from this second depth.”

“ According to the laws,-customs, and usages of the Spanish' government, no front proprietor, by any act of his own, could acquire a right to lands, further back than the ordinary depth of forty arpents; and.although the Spanish government has invariably refused to grant the second depth to any other than the front proprietor, yet nothing short of a grant or warrant of survey from the governor could confer a title or right to the land; wherefore we reject the claim.” We give this as an instance of many similar ones reported.

The statement applies to all front tracts, where only the first forty arpents had been granted by France ór. Spain. Instead of granting the back lands as a donation, the government of the United States extended to the. front owner a -preference of entry, by the act of 1811; and if the entry was not-made, the land was reserved, as above stated. No question affecting the titles to lands in Louisiana was more interesting to the old inhabitants, than the one concerning the back lands ; and, although the former government had granted them in probably but few instances, yet this was quite immaterial to front owners at that time, as they had the privilege of getting wood and timber from them, and the lands were in no danger of being granted to another. That back lands at all times meant those in the rear between the extended front lines in the rear, to the distance of forty arpents (each line being a straight one throughout), we suppose to be undoubted, as a general rule, although there may have been exceptions to it.

Many tracts had no doubt been surveyed for the purpose of having them acted on by boards of commissioners ; but the record does not show that any of tire front tracts in township No. 11 had been surveyed by public authority ; which could only be done, after the passing of the act of February 28, 1800, under the superintendence of the surveyor-general, — and all other surveys were, .by the third section of that act, declared to be private surveys, on which no patent could issue for an incomplete claim, after it was confirmed by Congress. And this law applied equally to confirmations by the commissioners, under the act of March 3, 1807, whose adjudications were final, and authorized a patent to issue thereon.

When the first two acts of 1811 and 1820 were passed, it was known that no township surveys had been made in much the greater portion of the country to which the acts applied ; in reference to this state of the country Congress legislated, and therefore it was provided by the fifth section of the act of 1811, that the- principal deputy surveyor .of each district should be, and was, authorized, “ under the superintendence .of the surveyor of the public lands south of the State of Tennessee,” to cause to be surveyed the tracts claimed by virtue of that section, that is, preference rights ; ¿ñd in all cases where there were bends in rivers (as in the case before us), on which the granted tract bordered, and there were adjacent claims of a similar nature, and each claimant could not obtain a tract of equal 'quantity with the original front- tract, then it should be the duty of the surveyor to divide the vacant land be- . tween the several claimants, in such manner as to him might appear most equitable.

Three jfears were allowed from the date of the act for those entitled to give notice in writing, stating the situation and extent of the tract each wished to purchase ; and for which he was to make payment according to the then credit system. But if he failed in either, the right to preemption should cease and become void ; and the land might be purchased thereafter by any person, as other public lands. As no public surveys existed, from which it could be ascertained at the register’s offices what, the back lands of the numerous tracts were ; and as entries were contemplated in advance of the.public township surveys, some mode of ascertaining the quantity and form each front owner was entitled to was indispensable. And the mode adopted by Congress was to make the principal deputy-surveyor of the particular district the judge of form and quantity; subject, however, to the superintendence of his principal, thejsurveyor-in-chief of the lands south of Tennessee.

This officer (as well as the principal deputy) was, by the acts of 1812 (April 25th) and 1836 (July 4), subject to the direct control, and bound by the instructions, of the commissioner of the general land-office \ and so was the commissioner subject to the control of the President, through the Secretary of the Treasury, as will be seen by the opinion of the Attorney-general of July 4,1836 (2 Public Lands, Laws, Opinions, &c., 103). So that, in the end, it devolved on the President, by aid of the Secretary, as in other instances, to see the acts of Congress above set forth duly executed ; and this was done through the commissioner of the general land-office.

On the 18th of 'March, 1833 (2 Land Laws, 573, No. 516), the commissioner, by. an instruction to the registers and receivers of Louisiana, gave a construction to the act of June 15th, 1832 : — 1. That where the back lands had been offered for sale and sold, after the passing of the act, still the front owner was to be permitted to enter them. 2. Where the back tracts had not been surveyed and connected with the adjoining public lands, and the quantity could not be ascertained at the time of payment, the party claim-, ing should be required to pay. for the maximum quantity to which he could be entitled under the law ; and any excess of"payment found on actual survey should thereafter be refunded to the party, on instructions to that effect, to be'given from the general land-office.

The form of the receiver’s receipt for the payment is. there given ; showing.the land had not yet been surveyed. And the register was instructed not to transmit the certificate of purchase until the survey was completed, whereby the quantity would be ascertained. The commissioner also informed the registers and receive ers that the surveyor-general had been directed to. advise them as to the course to be pursued by the claimants in cases where the back tracts remained to be surveyed. ■ ,

In executing the act Of 1832, the foregoing instructions were of course pursued, and entries received on such notices of-claim as parties saw proper to file, subject to the risk of being curtailed by the proper public surveys, approved by the surveyor-general. And Mr. Harper proves that on. these terms notices of claim were received, under the'a'ct of 1820, in 1822, when Bringier’s claim was entered. Harper was then the register at New Orleans. It is manifest that in no, other way could the acts of 1820 or 1832 be executed, than by general surveys of the back lands, whereby the portion of each claimant was marked out. Nor could any survey in township No. 11 be recognized by the register after the appointment of the surveyor-general of Louisiana, and the extinguishment of the offices of the principál deputies (May 1st, 1831), other than such as were approved by the surveyor-general. None was made of Bringier’s claim, so far as we are informed, before that time, which received the sanction pf any department of the general land-office, and on which a patent certificate and patent could issue. Of Rightor’s survey, we have already spoken. Wilson’s wás á mere private act,' at the instance of Bringier, and not recorded anywhere. The instruction of July 25th, 1838 (2 Land Laws, No. 1009), applies to Bringier’s case as well as others ; the register and receiver are there directed to issue the certificate of purchase in cases where an over-payment has been made for back lands, by “ describing each tract by section, township, range, and' area, as returned by the surveyor-general,'" — assuming the plan approved by him to have settled the equities of parties claiming under the preemption laws, as to extent and boundary. And our opinion is, that the survey of township No. 11, approved by H. S. Williams, surveyor-general of Louisiana, on the 5th of August, 1834, was made in execution of the acts of Congress, and governs the rights of the parties before this court; that to the land there designated as “ back land ” of the Whitehall tract, Bringier’s equity attached, by his notice of claim and the payment of his money, in 1822, and to none other. And that< by the same survey, the equities of Landry and Jourdan, acquired by their entries, are established as the better title to the extent of “back land” attached to their respective tracts by the survey. And to that extent they are respectively entitled to recover, as against the claim of the defendant, set forth in the answers.

Some stress, in the argument, was laid on the fact, that possession had been held of the land in dispute, under Bringier’s claim, for more than ten years before the suits of Landry and Jourdan were brought, and therefore the petitioners were barred by prescription and limitation in Louisiana. Prescription of ten years’ possession is relied on in defence by a direct plea, and made up part of the defence.

To this ground of defence, it is a sufficient answer to say, that Jourdan’first acquired his interest in 1834, and Landry his, in 1836 ; up to that time the lands they claim belonged to the United States, as part of the public domain, and on which the defendant, Barrett, and those under whom he claims, were trespassers ; and that no trespass of the kind can give title to the trespasser, as against the United States, or bar the right of recovery ; nor had the operation of time any effect as against Landry and Jourdan, until they respectively purchased.

By the Constitution, Congress is given “ power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States ” ; for the disposal of the public lands, therefore, in the new States, where such lands lie, Congress may provide by law ; and having the constitutional power to pass the law, it is.supreme ; so Congress may prohibit and punish trespassers on the public lands. Having the power of disposal and of protection, Congress alone can deal with the title, and no State law, whether of limitations or otherwise, can defeat such title.

For the foregoing reasons, we order the judgment of the Supreme Court of Louisiana to be reversed, and that the cause be remanded, &c.