52 U.S. 63 (____)
11 How. 63
THE UNITED STATES, APPELLANTS,
v.
ETIENNE ALPHONSO BOISDORÉ, LAURENT BOISDORÉ, SIDNEY BOISDORÉ, MATHILDE AND ALERINE NICOLAS, WIDOW OF MANUEL FABRE DANONY, CAROLINE NICOLAS, ELISE NICOLAS, JOSEPH MANUEL DE LABARRE, DELPHINE VICTOIRE DE LABARRE REAL AND HER HUSBAND CHRISTOVAL REAL, LOUIS DEJEAN, ANTOINE BOISDORÉ, AND MANATTE DEJEAN PARDON AND HER HUSBAND VINCENTE PARDON, HEIRS OF LOUIS BOISDORÉ, DECEASED.
Supreme Court of United States.
The case was argued by Mr. Crittenden (Attorney-General), for the United States, and by Mr. Volney E. Howard, with whom was Mr. Henderson, for the appellees.
Mr. Justice CATRON delivered the opinion of the court.
The heirs of Boisdoré filed their petition, in the nature of a bill in equity, pursuant to the act of 1824, revived by that of 1844, against the United States, claiming a decree to a perfect title for a large body of land fronting on the Bay of St. Louis and the Gulf of Mexico, and extending in depth to Pearl River; containing between one hundred thousand and four hundred thousand acres in quantity, depending on the manner in which the claim should be surveyed. A decree was made by the District Court of Mississippi, confirming the claim, and ordering a survey to be made in a particular manner, which will more fully appear hereafter. From this decree the United States appealed; and the first question presented for our consideration is as to the nature and character of the paper title on which the claim is founded.
It was a gratuitous concession, made in 1783, by the Governor of Louisiana, exercising the powers of the king of Spain, and intended mainly for the purpose of pasturage and raising cattle.
A petition was filed by Louis Boisdoré, the ancestor of complainants, representing to the Governor that the petitioner, being an inhabitant of New Orleans, and desirous to form a plantation, or cow-pen, in the vicinity of the Bay of St. Louis, at a place commonly called Achoucoupoulous, for the whole of his petitioner's family; which was very large, as was notorious to his Excellency: and, moreover, that the petitioner might be enabled to employ all his negroes thereon, and to support a large stock of cattle which he had already; which land was, as it were, only inhabitable as, and fit for, a cattle-raising farm: and therefore he proceeds to say: "May it please your Excellency, in consideration of what is above explained, and of the benefit that will result to the capital (city) from such a considerable cattle-raising establishment as the one which I have commenced to form in the said place and in the vicinity of said city, to grant to me the portion of ground which is vacant in the said place (section of country), known under the name of Achoucoupoulous, running from the plantation of Philip Saucier up to the bayou called Bayou of Mosquito Village, formerly inhabited by Mr. (paper torn off), and running in depth down to Pearl River, in order that I may form with facility the aforesaid establishment and cow-house (cattle-raising farm) for all my family as aforesaid: a favor which I hope, according to justice, from the granting power which is vested in you. New Orleans, 1st April, 1783."
And on this petition the Governor proceeds to grant as follows:
"New Orleans, 26th April, 1783. Being satisfied with the well-founded reasons expressed above, and with the usefulness and advantage which will result to the capital (city) from the establishment of a cattle-raising farm in that section of country, little fit for any cultivation, the surveyor of the Province, Don Carlos Laveau Trudeau, will establish Louis Boisdoré upon the extent of ground which he solicits in the foregoing memorial, situated in the section of country commonly called Achoucoupoulous, commencing in front from the plantation belonging to Philip Saucier, a resident of said country, down to the bayou called Mosquito Village Bayou, with the depth down to Pearl River; the same being vacant, and no prejudice being caused to the neighbors living as well in front as upon the depth; which measures he will reduce to writing, signing with the aforesaid parties, and will remit the same to me, in order that I may furnish the party interested with a corresponding title in due form.
(Signed,) MIRO."
As the two papers formed the contract between the government and the petitioner, they must be construed together, there being a proposition on one side to do certain acts, and an acceptance on the other, limited by several restrictions. What is stated in either paper as to fact and intent must be taken as true. The facts appearing are, that Boisdoré was an inhabitant of the city of New Orleans; that he had a large family, and that he wished to establish "a cattle-raising farm."
There are several translations of this document from the Spanish, but the true one is, that a stock farm was to be established on the land solicited; and that the establishment contemplated was to be "for all the family" of the petitioner; and on which he was to employ all his force of negroes.
These were leading motives set forth to the Governor; and the benefit that would result to the city from such an establishment was also presented as a prominent consideration why, on public grounds, the grant should be made.
On these motives, and their obvious consequence if the cattle farm were established as proposed, the Governor acted.
This contract is to be construed with reference to the laws of the place where and when it was made, and the usages and customs observed in making similar concessions.
By the act of 1824, we are required to exercise the power of a court of equity, and to adjudge in the given case whether a court of equity could, according to the rules and laws of Spain, consider the conscience of the king so affected by the acts of his lawful authorities in the province, that he became a trustee for the claimant, and held the land claimed by an equity upon it, amounting to a severance of so much from the public domain, before and at the time the country was ceded to the United States. This was the rule laid down for our government in 1836, in the case of Smith v. The United States (10 Peters, 330, 331), and which has been uniformly followed since.
The first act the claimant was bound to perform was taking possession; in regard to which it is proved by several witnesses, by affidavits taken in 1828, and then filed with the register and receiver at Jackson Court-House in Mississippi, and which proofs are made evidence by the act of 1824, that Boisdoré had had possession of a place on the Mulatto Bayou for forty years before 1828; that the land was cultivated, and cattle kept there; and the register and receiver found that the land had been inhabited and cultivated from 1788 to 1828, by Boisdoré and his representatives; nor do we see any occasion to dissent from this finding.
And, furthermore, as it appears from Boisdoré's petition in 1783, that he had commenced forming a cattle-raising establishment at said place, we deem it fair to presume that the possession and occupation proved to have existed in 1788, and afterwards, did also exist from 1783 to 1788; and so the petition to the Circuit Court, seeking a confirmation, states the fact to have been.
As respects the nature and extent of this occupation, the evidence is obscure. Complainants allege "that their ancestor, Louis Boisdoré, during his lifetime, and his representatives after his decease, occupied, possessed, and cultivated said tract of land, from 1783 until the year 1828; that their ancestor, and his widow and representatives, kept up and supported said plantation and grazing farm upon said land during the whole of that period of time, and fully complied with all the conditions of the grant, and all the laws, customs, and usages of Spain in relation to grants of its public domain."
This allegation is directly denied by the answer, and proof of the facts alleged imposed on complainants. Lewis Daniell, a witness examined by them, states, that in 1824, when he first examined these lands, a few acres were cleared near Mulatto Bayou, which had then the appearance of being very anciently cleared and cultivated; that on it and in its vicinity were found weeding-hoes and axes much worn by use; that the old field was the first settlement made on the east side of the bayou, and was made by Louis Boisdoré, according to the general reputation of the country.
Elihu Carver, another witness of complainants, states, that in 1814 or 1815 he learned from cow-hunters, who were old inhabitants, that the old improvement was called Boisdoré's cow-pens; and that there was then another place, within less than a mile, where a person yet cultivated a small field on the east of the said bayou, whom he then understood to be a stock-keeper for Louis Boisdoré; this last place was on the land now owned by F. Saucier.
Samuel White, examined for complainants, states: "I know this bayou, and all the considerable branches thereof; its present name is Mulatto Bayou; it was known by this name as long ago as 1820 or 1821. It took its name, as I always understood, from the mulatto man who lived somewhere near what was formerly called Point Boisdoré, and who was stationed there to take care of the stock of Louis Boisdoré."
By the affidavits taken and filed on behalf of complainants before the register and receiver, in 1828, it appears that the person above referred to was a slave, named Matthew, who belonged after the death of Louis Boisdoré to his widow, and who kept cattle on the land for his widow and heirs. And as this man gave its English name to the bayou, and is proved by White to have kept stock there for Louis Boisdoré in his lifetime, we hold it to be sufficiently established that he had this one slave there, from the date of the grant in 1783; but as the affirmative fact of occupation was imposed on complainants by the pleadings, and as the original improvement on the land was next to nothing, no further presumption can be made that other slaves were there.
The next leading question arises on the necessity of a survey before the land solicited and granted was severed from the public domain; that is to say, whether the grant identifies the land, or whether a survey was required to establish its identity. Boisdoré asked for a grant in the "vicinity" of the Bay of St. Louis, at a place called Achoucoupoulous, running from the plantation of Philip Saucier up to the Bayou of Mosquito Village (Mulatto Bayou), and extending in depth down to Pearl River.
The Governor ordered Trudeau, the Surveyor-General, to establish Boisdoré on the tract of land he solicited in the section of country called Achoucoupoulous; taking as the front of said tract, from the plantation of Philip Saucier, a resident of said country, down to the bayou called Mosquito Village Bayou, with the depth down to Pearl River, the same being vacant, and no prejudice being caused to the neighbors living as well in front as upon the depth, "which measures," says the decree, "he will reduce to writing, signing with the aforesaid parties (the neighbors), and will remit the same to me, in order that I may furnish the party interested with a corresponding title in due form"; to wit, a title corresponding to the survey returned to the Governor. Boisdoré's tract was to be located by a survey whose front was to commence from Saucier's plantation, and to end at Mulatto Bayou. When this front was established, and a corner at each end of it marked, and a line drawn from corner to corner, then a perpendicular line drawn from each corner to Pearl River was to be the depth. Such was proved by witnesses to be the uniform practice of surveying Spanish concessions, and this we know to be the true rule aside from proof.
The size of Saucier's plantation appears by survey. It is a considerable tract; its southwest corner points towards the bayou, which lies southwest; one line from that corner running south seventy degrees east one hundred and sixteen chains, and the other line running north twenty degrees east fifty-eight chains. According to our construction of the grant, on either of these lines, and at any point on them, the survey might begin with equal propriety. Taken together, they are seven hundred and ninety-six poles long; and this is all the certainty given for a beginning of the first or front line.
The bayou is six or seven miles long, and a notorious stream, being navigable for vessels of light draught, such as navigate the lakes in its neighborhood. It empties into Pearl River by two outlets, which are some three miles apart. From its upper mouth it extends off from the river northeastwardly, when traced upwards.
At some point of the bayou we are called on to establish the second corner of the front line; and as it is equally marked and navigable for six or seven miles of its length, one part thereof as well as another may be selected.
Tracing Pearl River up the stream from either mouth of the bayou, it extends nearly north in its general course, but bearing more or less to the west. Saucier's plantation is about fifteen miles from the nearest part of the bayou.
To strike a base line from the southeast corner of Saucier's plantation to the upper or easternmost mouth of the bayou, then, the second corner would be on Pearl River, some ten miles above its easternmost mouth; and the western perpendicular side line would run up the river, and nearly parallel with its general course, across a large bend to the west, and again strike the river at nine and a half miles higher up, where the bend turns to the east, and is again reached by the western side line.
The eastern side line would strike the river so high up as to include about 400,000 acres in the survey. And such is the mode of survey ordered by the District Court, and which we are called on particularly to examine. But if the western end of the front line were established farther north on the bayou, then the quantity would be increased in proportion as the corner was located farther north, because the corresponding perpendicular side lines would have to be extended in a direction bearing farther east, and would strike the Pearl River still higher up, if they would reach it at all; which is very improbable as respects the eastern side line, if even the middle of the bayou was determined on as the proper point for the second corner. We think it is impossible to contend that the second corner of the front line should be on Pearl River, and that the side line should run up it, and near to it, and each end of the line be on the river, as the Spanish mode was to front on navigable waters, and not mar their fronts by side lines, located near to, but not on, the river.
That the topography of that section of country in which the Spanish surveyor was directed to survey and mark a tract of land for Boisdoré was greatly mistaken by the governor who made the grant, is now too manifest for controversy, as no front line can be laid down, from the ends of which perpendicular side lines will reach Pearl River in depth, without violating the plainest rules of making Spanish surveys. But for all the purposes of a Spanish survey made by a surveyor-general of the Province, such description as the concession sets forth was sufficient, because large latitude was allowed to his discretion. Had that authorized officer certified that the land marked out by him was "at the place granted," then this fact must be taken as primâ facie true; the certificate standing on the foot of a deposition. So this court has uniformly held; as in Breward's case (16 Peters, 147), in Low's case (16 Peters, 166), and especially in the United States v. Hanson (16 Peters, 199, 200). The Spanish governors gave credence to surveys made by the surveyor-general, as being at the proper place when it was thus certified in legal form; and the courts of this country have done the same; and this for the reason that the acts of the governor and surveyor-general were both on behalf of the government, each being bound by his duty as a public officer to protect the king's domain.
No nice conformity was required in a Spanish survey, in cases where a section of country was designated by the concession without definite objects being given to govern the surveyor; the objects might be loosely and indefinitely stated by the concession, and yet a survey could be made, subject to the governor's sanction or rejection, because, in the language of this court in Hanson's case (16 Peters, 200), "a grant delivered out for survey meant, not, as with us, a perfect title, but an incipient right; which, when surveyed, required confirmation by the governor." If this land had been actually surveyed by Trudeau, as demanded by the grant, and he had certified that it was at the place granted, and the survey had been returned and filed according to the twelfth regulation of Governor O'Reilly made in 1770; or filed and recorded according to the fifteenth, sixteenth, and seventeenth regulations of the Intendant Morales of 1799, then such survey would identify the land granted.
A fair instance is furnished by this record of the Spanish mode. The time for making a survey having long expired, and a new order of survey being necessary before a complete title could be applied for, the widow of Boisdoré in 1808 applied to the Spanish governor at Pensacola for an order of survey of this claim, on the supposition that he had authority to grant the order. It was made as requested, and Pintado, the surveyor of the Province, was directed to make the survey. He did not examine the ground, but drew a figurative plan for the information of his deputy, to be followed in marking out the grant.
This plan begins at the southwestern corner of Saucier's plantation, and pursues a line due west to Pearl River, runs down the river to its mouth, and then with the ocean to Saucier's land, and with it north seventy degrees west to the beginning. Although no call of the grant but the beginning was regarded in this plan, yet, if the survey had been actually made, certified, and returned in conformity to said plan, then the tract would have been identified according to usage, had the Spanish jurisdiction continued over the country where the land lies. But no actual survey having been made at any time, it was imposed on the court below, and it is now imposed on this court, if in its power, to identify and cause to be surveyed the land granted. If, however, its identity cannot be fixed, and it cannot be ascertained that any specific tract was severed from the public domain by the grant, at the time Spain ceded Louisiana, then the claim cannot be ripened into a complete title by our decree; as we only have power to adjudge what particular tract of land was granted. Our action is judicial. We have no authority to exercise political jurisdiction and to grant, as the governors of Spain had, and as Congress has. If we were to locate by survey the land claimed at random, in some part of the district of country known as Achoucoupoulous, exercising our discretion as respects the proper place, and to decree on our own survey, and thus divest the United States of title, then we should do what Congress has often done when surveys were ordered of claims founded on settlement, and what a Spanish governor usually did on the return of a survey; we should exercise the granting power; should deal with public lands, public to the time of our decree, and first made private property by it: ours would be an exercise of political jurisdiction, and not a judicial decree.
In its endeavor to locate this grant, the District Court examined witnesses of experience and capacity as to the possibility of doing so, and came to the conclusion that it could be done; and, as partly stated already, a survey was ordered, to begin at the southern part of Saucier's plantation on the ocean, at the mouth of the Bay of St. Louis, and to meander the ocean to the eastern mouth of Pearl River, and then up the same to the upper mouth of Mulatto Bayou. From this point to the place of beginning a theoretic base line was to be drawn; and from each corner thus established, perpendicular side lines were to be extended to Pearl River for the depth. The witnesses agree that, if the first two corners are established, then the survey can be made, if the side lines would reach Pearl River. They had before them, as we have, the plan of the United States surveys, and the localities established by them, and merely expressed opinions as to the proper mode of survey. They do not agree as to where the first corner or the second corner of the base line should be; and as this is a question of legal construction of the grant, on comparing it with the face of the country, a judicial tribunal is the proper forum, and best qualified to decide the question. Conclusive information was not to be expected from practical surveyors, however experienced; yet their opinions are entitled to much consideration.
Alexander Downing, late Surveyor-General of Mississippi, declares it to be his opinion. that "the phrase in the grant to Louis Boisdoré, `the front thereof to commence from the plantation of Philip Saucier, and running to the Bayou of the Mosquito Village,' is not sufficiently definite to enable a surveyor to fix upon a beginning point or corner; both the beginning point and the front line seem to be left to the discretion of the surveyor, and it is questionable whether any two surveyors would settle upon the same point for a beginning."
We agree with this witness as respects the beginning point. But we find still more uncertainty in determining where the second corner should be established, as there a range of discretion exists between the head and mouth of the bayou, to an extent of six or seven miles. Our opinion is, that the front line cannot be laid down by a judicial decree, because of the vague description in the grant; and consequently, that no parallel side lines can be established.
How, then, do the rights of complainants stand on the facts, the Spanish laws being adopted as the governing rule? In the first place, their ancestor held the concession in his own possession for twenty years under the Spanish government; that is to say, from 1783 to 1803, without calling for a survey. His claim remained precisely as it was at its date, up to the time we acquired Louisiana. It was presented in 1808 to the Spanish governor at Pensacola, and a survey and complete title solicited; but as no actual survey was made, and as no jurisdiction then existed in the Spanish authorities over that section of country, this step passes for nothing. Some notice of this claim was taken by Commissioner Crawford, whose report condemned it. In 1820 it was filed and recorded in the land-office at Jackson Court-House, and a confirmation sought from Congress on a recommendation of the register and receiver acting as land commissioners. This was in fact the first legal step taken by complainants or their ancestor, after the concession was made. For thirty-seven years they slept on their rights; and in the mean time large masses of the land now claimed by them were granted to others, under both the Spanish and American governments; and this neglect for twenty years of the time was in plain violation of the Spanish laws, and the face of their concession; each requiring a legal survey and specific designation of the land granted.
In the second place, no possession was ever taken according to the terms of the grant. A large tract was solicited by Boisdoré where he could establish his "whole family, and employ all his negroes" in carrying on the establishment. His family was very large, according to his own showing; it consisted of a wife, children, and slaves. A removal to the premises from the city of New Orleans of this whole family was proposed by Boisdoré, and was contemplated by the Governor; and as a further inducement he was assured that much benefit would result to the capital from such a considerable cattle-raising establishment in its vicinity. It was to be so large as to be of public consideration. These were the notorious promises on which the Governor acted. And what was the compliance on the part of the grantee? He represented that he had then commenced forming his establishment at the place. It appears to our satisfaction, by proof, that five years afterwards he had a single slave there, who kept some cattle, and that a slight patch of a few acres was cleared; and we take it to have been cultivated. The slave continued at the place cleared, or near to it, for many years; say up to 1814 or 1815.
If the establishment had been commenced in 1783, when the grant was made, (and we are bound to hold that it had, as the petition to the Governor alleges the fact,) then it is hardly possible that it could have been on a smaller scale than it ever after continued; there being but a single slave there at any time. It could only have been less, by having no one at all on the premises. It is therefore manifest, that no additional possession was taken by Boisdoré or his representatives, in compliance with the terms of his contract, after its date. He obviously abandoned the idea of taking his whole family to the place, and of employing all his slaves there; and consequently abandoned all intention of having the land surveyed and himself and family established on it by the Surveyor-General. And to hold that such a trifling occupation, in utter neglect of Boisdoré's promises to the Spanish authorities, and the duties imposed by the grant, fastened an equity on the conscience of the king of Spain, and his representative, the Governor of Louisiana, to complete the title, would in our opinion be altogether inadmissible.
Various circumstances must be taken into consideration in this connection. It was the duty of the grantee to do two controlling and requisite acts before he could ask for a completion of his title; first, to present his concession in due time to the Surveyor-General of the Province; and secondly, to take possession in substantial compliance with the terms of his grant.
Had the survey been returned with the proces verbal, or certificate attached, stating the fact of possession having been given according to the grant, and that the survey did no injury to others; then the effectual and conclusive title could have been issued, divesting the rights of the Spanish government; and then only.
Can it be believed that the Governor of Louisiana intended conclusively to grant a domain of fifteen miles wide and over forty miles long (as large as an ordinary county), for the mere purpose of a cow-pen? and that he would have sanctioned a survey and completed the title, if the surveyor of the Province had reported to him, as was his duty, that Boisdoré declined to remove his family, white or black, to the place, or to employ his slaves there, with the exception of a single cowherd: and that the improvement of the place was as slight as it could well be, that it amounted only to a trifling patch of a few acres? Such a proposition shocks all sense of equity, and is contrary to the settled policy of the Spanish government; which was, to make gratuitous grants for the purposes of settlement and inhabitation, and not to the end of mere speculation.
And, again, the grantee might have his land surveyed, or he might decline; he might establish himself on the land, or decline: these acts rested wholly in his discretion. But if he failed to take possession and establish himself, he had no claim to a title; his concession or first decree in such case had no operation. So the Supreme Court of Louisiana held in Lafayette v. Blanc, (3 Louisiana Annual Reports, 60,) and in our judgment properly. There, the grantee never having had actual possession under his concession, the court decided that he could set up no claim to the land at law or in equity. This case followed Hooter v. Tippet (17 La. Rep. 109). We take it to be undoubtedly true, that, if no actual possession was taken under a gratuitous concession given for the purpose of cultivation or of raising cattle, during the existence of the Spanish government, no equity was imposed on our government to give any consideration or effect to such concession, or requête.
And, in the next place, it was held in Lafayette v. Blanc, that if the party took possession, but had no survey executed during the time Spain exercised jurisdiction, this being his own neglect, it lies on him to establish the boundaries of his grant, and to identify his land with such certainty, as to show what particular tract was severed from the public domain; and if he fails to do it, then he has no remedy in a court of justice. And this part of the decision we also approve.
Here there was no survey, and we are of opinion, first, that complainants have not identified any particular tract of land that was granted; and secondly, that, if they had, no possession was taken, or pretended to be taken, such as the agreement between the Spanish authorities and the grantee contemplated. And therefore it is ordered, that the decree of the District Court be reversed, and the petition dismissed.
Mr. Justice McLEAN, Mr. Justice WAYNE, and Mr. Justice McKINLEY dissented.
Mr. Justice McLEAN.
In the opinion of a majority of the court, the grant in this case is rejected, for a want of certainty in its calls. As I cannot agree with this view, I will state, in few words, the grounds of my dissent.
The petition to the Governor-General for the grant represents that Louis Boisdoré, "being desirous to form a plantation or cow-pen in the vicinity of the Bay of St. Louis, at the place commonly called Achoucoupoulous," &c., that he may be enabled to employ all his negroes thereon, and to support a large stock of cattle, prays, "in consideration of what is above expressed and stated, and of the benefit which will result to the capital from a large cow-pen, such as that he had commenced to establish at and near said place, to grant him the parcel of land which may be vacant at the above-mentioned place known by the name of Achoucoupoulous, to commence at the plantation of Philip Saucier, and to run therefrom to the Bayou of Mosquito Village, formerly inhabited by Mr. Loisser, and extending in depth to Pearl River, that he may be enabled to form with facility the above-mentioned plantation and cow-pen for the whole of his family," &c., and is dated 1st April, 1783.
On the 26th of April, 1783, Governor Miro, resident at New Orleans, answers the application by saying: "It appearing to me that the grounds and reasons stated by the petitioner are well founded, in relation to the utility and advantages which will result to the capital from the establishment of a cow-pen in those places which are badly adapted to cultivation, the surveyor of the Province, Don Carlos Laveau Trudeau, shall establish Louis Boisdoré on the tract of land which he solicits in the antecedent memorial, situated at the place commonly called Achoucoupoulous, the front thereof to commence from the plantation of Philip Saucier, an inhabitant of said place, and running to the Bayou of Mosquito Village, and extending in depth to Pearl River, should the same be vacant, and cause injury to no one of the surrounding settlers, either in the front or the depth thereof; whose proceedings shall be made out and signed by him with the before-mentioned persons, and sent to me to furnish the party interested with a title in form."
This tract of land seems never to have been actually surveyed. On the 4th of April, 1808, Gilberto Guillemard applied to the Intendant-General at Pensacola for an order of survey, representing that Trudeau, the surveyor, by reason of the expense and his pressing duties, had not executed the survey, and a request is made that Pintado, the present surveyor, may mark out the boundaries, &c. The application was granted, but Pintado, instead of making an actual survey, marked out a figurative plan by which the distances could be ascertained. He says: "Two years having elapsed without being able, from the emergency of my business, to attend personally to make out the boundaries, and to make the survey required; and not having at the said place a deputy to execute the same; and that the heirs claiming the same may have an authentic document issued in their favor from which may be made appear the right of property and ownership which to the said lands they have and hold in virtue of the said grants; and also the shape and figure which the said tract of land ought to have," &c.
The boundaries, as above designated by Pintado, are shown by a plat in the case. It is true, that the above proceeding in relation to the survey took place after the surrender of Louisiana to the United States, which terminated all foreign power over the territory, but the proceeding shows that there was no forfeiture under the Spanish government, for the want of a survey, or on any other ground; and it also shows that the places called for in the grant were deemed sufficiently certain by Pintado, the Surveyor-General, to make the survey.
What was the nature of the title given by Miro, the Governor-General, to Boisdoré? He petitioned the Governor for a "grant" of the land at the place named, for the purposes stated. The Governor, admitting that "the grounds and reasons stated by the petitioner were well founded, and that his proposal was advantageous to the capital," directed the surveyor of the Province, Don Carlos Laveau Trudeau, to establish the petitioner on the land he solicits, designating the boundaries, &c. If there be sufficient certainty in the boundaries called for, there can be no doubt that the grant of the Governor separates the land from the public domain, and that, in every view, constitutes property under the treaty with France. There were no conditions expressed upon the face of this grant. The consideration is named, but not as a condition.
The petition which is referred to in the grant constitutes a part of it. The vicinity of the Bay of St. Louis, the place known by the name of Achoucoupoulous, the plantation of Saucier as the beginning point called for, "and to run therefrom to the Bayou of Mosquito Village, and extending in depth to Pearl River"; all these calls are identified, and shown by parol evidence and the maps which are in the case. And the great question is, whether, from the calls of the grant, the survey can be executed. These calls are clear and specific. They are the plantation of Philip Saucier, on the Bay of St. Louis, the rivulet or Bayou of the Village of Mosquitos, in the district called Achoucoupoulous, and extending in depth to Pearl River. All these calls are proved to exist, and they are more special than nine tenths of the calls in the Spanish grants which have been confirmed.
Pintado, by his figurative plan embracing those calls, seems to have had no difficulty in directing how the survey should be made. And he was the Surveyor-General of the Province under the Spanish government, and may be presumed to have been well acquainted with the Spanish laws and usages on the subject of surveys. Morales, who sanctioned the grant in 1808 by ordering the survey, was Intendant-General, and had the same powers to grant land as the Governor-General previously had, and he was distinguished for his general intelligence and high capacity to represent his sovereign in the important duties which were committed to him. The grant was also sanctioned by Juan Lozado, the fiscal minister pro tem., to whom the petition of Guillemard in behalf of Boisdoré's representatives was referred, and who recommended that the survey be made.
L. Bringier, a witness, states, "that he has been a surveyor for upwards of thirty years, and for more than twenty-five years Surveyor-General of the State of Louisiana, during which period he has had the records of Spanish surveys in his charge, and had frequent occasion to refer to them, and survey lands in conformity to them; that he understands the Spanish language; and he says that he agrees with Pintado as to the mode of running the lines of the survey. He thinks the description of the grant is sufficient to enable a surveyor to make an accurate survey of it," &c.
Elihu Carver, who says that he is a practical surveyor, on being asked how he would survey a Spanish concession which calls for two points as the front upon the sea-shore or a water-course, and calls to run in depth to another water-course for quantity, answers "that he would run from one of the first points back to the watercourse a distance equal to the front given, thence direct to the last point in the front." He says that he has surveyed many Spanish claims, and, except one, he never found the boundaries all round. That he does not pretend to be sufficiently acquainted with the Spanish customs and usages to pronounce upon the claim in question.
B.A. Ludlow states, that he is a practical surveyor, and has held the office of Surveyor-General for the district south of Tennessee. He has examined the survey of Boisdoré, and believes the survey to be practicable, provided the plantation of Philip Saucier and the Bayou of Mosquito Village can be identified. "The survey should be made," he says, "by finding a straight line between the above-mentioned points, and raising perpendiculars upon said line, at its extremities, extending back to Pearl River," &c. "Exceptions to this rule," he says, "sometimes occur by watercourses or the lines of other claims causing a deviation," &c. He says he is familiar with the sea-shore which constitutes the front of the Boisdoré claim. From his general knowledge of the country, he can see no material difficulty in making the survey of the claim, &c.
A. Downing has been many years a practical surveyor, and has held the office of Surveyor-General of the public lands for the State of Mississippi. He says, "the phrase in the grant to Boisdoré, `the front thereof to commence from the plantation of Philip Saucier,' and `running to the Bayou of Mosquito Village,' is not sufficiently definite to enable a surveyor to fix upon a beginning point or corner; both the beginning point and the front line seem to be left to the discretion of the surveyor, and it is questionable whether any two surveyors would settle upon the same point for a beginning. I certainly could not adopt the view of Pintado, the Spanish Surveyor-General, for in the diagram filed in the case, and to which he refers in his instructions, he places what should be the most easterly front corner on the back line of the Saucier plantation." And he says the side line "from the mouth of the Bayou of the Mosquito Village, at right angles from a base line between the front corners, would, apparently for several miles, range close along and parallel with the east margin of Pearl River, and consequently conflict with the uniform practice of the location and survey of grants upon all navigable streams and shores."
This is the substance of the evidence in the case in relation to the calls in the grant. And it must be remarked, that all the witnesses, with the exception of Downing, think that the calls of the grant are sufficient to enable a surveyor to mark out the boundaries. Downing supposes that no two surveyors would agree on the beginning corner, or as to the second point and lines called for. But in this he is mistaken. In the first place, the Spanish authorities who held the calls of the grant sufficient are Miro, the Governor-General who issued it, and Morales, the Intendant-General, Trudeau and Pintado, surveyors-general, and Lozado, the fiscal minister. These, when connected with the statements of the above witnesses, would seem to leave little doubt as to the sufficiency of the calls of the grant.
Upon this question we must not forget that we are acting upon a Spanish grant, and are governed by Spanish laws, usages, and customs. And if such a grant were valid under the Spanish government, and there has been no forfeiture of the right, we are bound by the plighted faith of our own government to sustain the grant. And in administering this foreign law, we must ascertain and regard the usages under it, in the acquisition of titles to land. This is a universal principle, respected by all courts, in the administration of justice. Parol evidence must be heard to establish those usages, in addition to what may appear from the action of the local tribunals. In the States of Virginia, Kentucky, Tennessee, North Carolina, Pennsylvania, and in a large district of country in Ohio, the usages in making entries and surveys of lands constitute the laws of the respective States, the usage of each State differing more or less from that of the others. One instance only will be named as peculiar, perhaps, to Kentucky and Ohio. The holder of a warrant for one thousand acres locates it, and in his survey includes fifteen hundred acres of land, more or less, and yet his survey is held valid. This, to one wholly unacquainted with such a rule of decision, would be thought unreasonable, and might be disregarded; and yet it is a rule of property which no court can reject.
To establish entries under this system parol evidence is always heard, as to the calls made, and the objects called for, &c. And although the survey may deviate from the calls of the entry, it is held valid, if it interfere with no prior rights. This rule of decision, so firmly established in our own country, should be applied with an enlarged liberality when acting on land titles acquired under a foreign government, of whose language and usages we have comparatively but little knowledge. The act of Congress of the 26th of May, 1824, revived and applied to these titles by the act of the 17th of June, 1844, under which we exercise jurisdiction, provides that a claimant under "any French or Spanish grant, concession, warrant, or order of survey, legally made, granted, or issued before the 10th of March, 1804, by the proper authorities, to any person resident in the Province of Louisiana," &c., "which might have been perfected into a complete title, under and in conformity to the laws, usages, and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States, may file his petition," &c. And the proceeding is required "to be conducted according to the rules of a court of equity," &c.; and the court is authorized "by a final decree to settle and determine the question of the validity of the title, according to the law of nations, the stipulations of any treaty, and proceedings under the same, the several acts of Congress in relation thereto, and the laws and ordinances of the government from which it is alleged to have been derived," &c.
I will refer to some cases where grants similar to the one under consideration have been held valid by this court. In the United States v. Percheman, 7 Peters 54, the petitioner asked "two thousand acres of land in the place called Ockliwaha, situated on the margin of St. John's River." Governor Estrada says, "I do grant him the two thousand acres of land which he solicits, in absolute property, in the indicated place." The survey of this land was not executed until the 20th of August, 1819, after the treaty of cession. The title was confirmed by this court.
In the case of the United States v. Clarke, 8 Peters, 446, the petitioner solicited a grant of the quantity of land which the Governor of Florida had thought proper to assign to the water-mills, equivalent to five miles square; which lands he solicits "on the western part of St. John's River, above Black Creek, at a place entirely vacant, known by the name of White Spring." In the grant it is declared, "A title shall be issued comprehending the place and under the boundaries set forth in the petition." This was also confirmed.
In the case of the United States v. Levi, 8 Peters, 479, the grant was "for twenty-five thousand acres of land, south of the place known by the name of Spring Garden, in this form: twelve thousand acres of them, adjoining the lake or pond called Second, and known by the name of Valdes, and the remaining thirteen thousand acres on the pond farther above the preceding, known by the name of Long Pond, the whole west of the River St. John." The survey was executed on the 2d of August, 1819. This court confirmed the title. Another grant in the same case was for "seven thousand four hundred acres, lying on a stream running from the west, and entering the River St. John, and called in English the Big Spring, about twenty-five miles south of St. George's Lake, one of the fronts of the said tract to be on St. John's River, and to be divided in two parts by the stream aforesaid." This survey was made on the 5th of April, 1821. The title was confirmed.
In the same case another grant, which was confirmed by this court, was for eight thousand acres, being part of a larger parcel containing ten thousand acres, &c., "five thousand of them in a hammock to be found five or six miles east of Spring Garden, and the remaining five thousand west of the River St. John, contiguous to a creek called Black Creek, near Fleming's Island and the pond called Doctor's Lake."
Another grant in the same case was confirmed for "twenty thousand acres," described as lying "in the hammocks known under the names of Cuscowillo and Chachala, situate west of the place of the River St. John's where there was a store of the house of Panton, Leslie, & Co., and about thirty miles from it."
Similar citations might be made from any of our reports of the last fifteen or twenty years, but the above are sufficient to show the course of the Spanish authorities in granting lands, and the decision of this court upon such grants. Many of the surveys, it will be observed, were made under Spanish authority, after Florida was ceded to the United States.
The reader, if any one shall read the above citations and the grant of Boisdoré, will be struck with the much greater certainty in the calls of his grant, than in the calls of any one of the grants above stated. And yet they were confirmed, and his is rejected for want of certainty. By virtue of what law this greater certainty is now required in the calls of a grant I am not able to determine. In my own mind I am assured it cannot be under the Spanish law. And I am greatly mistaken if our decision on Spanish titles must not rest on Spanish law.
The tract claimed is said in the argument to be large. Of what importance is that to a court which deals with established principles? In this respect we can exercise no discretion. If the claim of Boisdoré was property under the Spanish government, it is protected by the treaty. That it was so considered under the usages and acts of the Spanish government, to my mind, is clear. I therefore dissent from the judgment of the court.
Mr. Justice WAYNE.
I dissent from the opinion of the majority of the court in the case, concurring with all the views expressed by my brother McLean, and dissenting from every position of fact or argument in the opinion of the court. In my opinion, the opinion of the court is a departure from all heretofore adjudged by the court in respect to the right of property secured by our treaties with France and Spain to the inhabitants of Louisiana and Florida.
Order.
This cause came on to be heard on the transcript of the record from the District Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the grant of petitioners had no identity, and cannot be surveyed so as to give it boundaries, And secondly, if it could be identified, that no occupation and inhabitation were ever taken according to the terms of the grant, and therefore the claim is without equity according to the laws of Spain.
Whereupon it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to dismiss the petition of the claimants in this cause.