Mr. Justice CATRON
delivered the opinion of the court.
In October, 181?, Coppinger, Governor of Florida, was applied to by Villalobos for leave to build a saw-mill on Trout Creek, at a proper site for a mill there existing; with a corresponding right to five miles square of land, or an equivalent, for a competent supply of timber; on which application the Governor decreed as follows : —
■ “ Taking into consideration the benefit and utility which would result to the Province in its improvement, if what Don José Argote Villalobos proposes should be accomplished, it is granted to him, without prejudice to a third person, that he may build a water saw-mill on the creek of the River St. John’s, named Trout Creek ; and also toúnake use of the pine-trees which are comprehended in' a square of five miles, which is granted to him, which advantage he shall enjoy for the said water saw-mill, without any other person having the right to diminish it in any respect. • And for his security, let the corresponding certificate be despatched to him from the secretary’s office.”
1. No mill was built on Trout Creek, nor any attempt made to do so; but sixteen thousand acres of land were surveyed for Villalobos by some deputy surveyor of the Surveyor-General, George F. Clarke, and certified' by. the latter, in three separate parcels; one on Black Creek, for six thousand acres ; one on Indian River, for six thousand acres; and the third in Alachua,for four thousand acres. The nearest .of said surveys to .Trout Creek is about thirty miles off, and the farthest is moré, than one hundred miles distant. The lands as surveyed aré claimed by Villalobos and the Marquis de Fougeres, to whom Villalobos conveyed a moiety of his claim in March, 1821. This latter survey lies within territory then-held by the Seminole Indians. A mill -was built by the Marquis on Black Greek, on the survey there made for six thousand acres, say in 1822 and 1823. Whether the surveys were regularly returned to the office of the public archives, or to the government secretary’s office, does not appear; there is no evidence that they were returned to either by the Surveyor-General, the proof being, that they were filed in the office of the. public archives as part of the evidences of claims that had been submitted to the- register and receiver when acting as commissioners on Florida claims.
.One thing, however, is certain, that the change of location, never received any direct sanction from the Governor of the Spanish province during the time his .powers existed to act in the matter. On this state of facts, the question is, whether the Surveyor-General had any authority to make the change, and thereby bind the Spanish government to complete the title; if he had such power, then the American government is equally bound.
By the eighth article of the treaty of 1819 it is stipulated, that “ all 'grants of land made before the 24th day of January, 1818, by his Catholic Majesty, or by his lawful authorities, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same would be valid if the territories had remained under the dominion of his’ Catholic Majesty.”
This court has uniformly held, that where the land was granted by a concession, and a survey had been made of it by the Surveyor-General, in reasonable conformity to the grant,, before the 24th of January, 1818, that such survéy should be. recognized as valid, and deemed to have severed the land, from the public domain.
That the surveys made for Villalobos were not in reasonable conformity to the grant made for 16,000 acres on Trout Creek, is not assumed on part of the claimants; they rest their right to a confirmation for the three tracts surveyed oh the ground, that-the Surveyor-General had power, by force of the grant, to change the location, and to iocate the land granted in as many parcels as he' saw proper to- designate. To show the existence of this power in the Surveyor-General, he was' examined as a witness in the present controversy, and proved that he had, in various instances, made similar changes, and that none of tfiem had been rejected, or objected to, by the Spanish governors. Antonio Alvarez, the keeper of the archives, was also examined on this point; he testifies, that there exist in the archives a few instances where changes of location had been made by the Surveyor-General without an order of the Governor for the .change; but this was done under peculiar circumstances, as where the land granted had been taken by a previous concession.
From the long experience this court has had in the investigation of Spanish titles, as claimed in Florida, as well as from the practice in regal'd to which the witnesses depose, we are of opinion,' that' the Surveyor-General had no authority to change the location ot the grant, and to split up the surveys, as was done in this instance. The question has been settled by this court in the cases of United States
v.
Huertas (9 Peters,
171) and United States
v.
Levy (13 Peters, 83). The surveys in this instance abandoned the grant; no aid is asked from it, but the sole act of the Surveyor-Gen eral is relied on for a decree completing the title, and, if confirmed by us, must be sanctioned as the origin of Villalobos’s title; and that no such power can be exercised by this court was held in the case of Forbes (15 Peters, 172).
The grant was for a tract comprehended in a square of five miles; and although an equivalent was solicited, none was granted except in case vacant land enough could not be found at Trout Creek to satisfy the grant in one body, and a square form; nor is there any evidence that such deficiency existed.
It' is proved that the lands on Trout Creek are poor, and of little or no value, and that those surveyed are of the best quality known in Florida; and manifestly, that the change of survey had in view the acquisition of valuable lands for the purposes of speculation, and not to secure pine-trees, out of which to saw lumber; so that these surveys have neither merit in fact nor the sanction of la.w to uphold them.
2. As the want of a survey does not defeat the grant, as this court held in the cases of Arredondo (13 Peters, 133) and of Buyck (15 Peters, 224), the next and remaining question is, whether the grant itself can be located! For although the petition proceeds on the surveys, yet this court having the case before it as on bill in chancery, we would be disinclined to bar the claim on a technical ground. If it had merits, and these could not be reached on the pleadings as they stand, the court on hearing could order amendments, so that the merits could be reached; and to this end the cause could be remanded to the court below; nor do we apprehend even this to be necessary in a case like the present.
The surveys being rejected, the grant may be resorted to, and a survey ordered, if the land granted can be identified. It is therefore necessary to examine the claim on the face of- the grant. For a description of the place where the land was solicited, and which is adopted by the Governor’s decree, we must look to the memorial of Villalobos. He says, “that he has fixed his intentions to establish a mill for sawing timber, on a creek of the River St.
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Mr. Justice CATRON
delivered the opinion of the court.
In October, 181?, Coppinger, Governor of Florida, was applied to by Villalobos for leave to build a saw-mill on Trout Creek, at a proper site for a mill there existing; with a corresponding right to five miles square of land, or an equivalent, for a competent supply of timber; on which application the Governor decreed as follows : —
■ “ Taking into consideration the benefit and utility which would result to the Province in its improvement, if what Don José Argote Villalobos proposes should be accomplished, it is granted to him, without prejudice to a third person, that he may build a water saw-mill on the creek of the River St. John’s, named Trout Creek ; and also toúnake use of the pine-trees which are comprehended in' a square of five miles, which is granted to him, which advantage he shall enjoy for the said water saw-mill, without any other person having the right to diminish it in any respect. • And for his security, let the corresponding certificate be despatched to him from the secretary’s office.”
1. No mill was built on Trout Creek, nor any attempt made to do so; but sixteen thousand acres of land were surveyed for Villalobos by some deputy surveyor of the Surveyor-General, George F. Clarke, and certified' by. the latter, in three separate parcels; one on Black Creek, for six thousand acres ; one on Indian River, for six thousand acres; and the third in Alachua,for four thousand acres. The nearest .of said surveys to .Trout Creek is about thirty miles off, and the farthest is moré, than one hundred miles distant. The lands as surveyed aré claimed by Villalobos and the Marquis de Fougeres, to whom Villalobos conveyed a moiety of his claim in March, 1821. This latter survey lies within territory then-held by the Seminole Indians. A mill -was built by the Marquis on Black Greek, on the survey there made for six thousand acres, say in 1822 and 1823. Whether the surveys were regularly returned to the office of the public archives, or to the government secretary’s office, does not appear; there is no evidence that they were returned to either by the Surveyor-General, the proof being, that they were filed in the office of the. public archives as part of the evidences of claims that had been submitted to the- register and receiver when acting as commissioners on Florida claims.
.One thing, however, is certain, that the change of location, never received any direct sanction from the Governor of the Spanish province during the time his .powers existed to act in the matter. On this state of facts, the question is, whether the Surveyor-General had any authority to make the change, and thereby bind the Spanish government to complete the title; if he had such power, then the American government is equally bound.
By the eighth article of the treaty of 1819 it is stipulated, that “ all 'grants of land made before the 24th day of January, 1818, by his Catholic Majesty, or by his lawful authorities, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same would be valid if the territories had remained under the dominion of his’ Catholic Majesty.”
This court has uniformly held, that where the land was granted by a concession, and a survey had been made of it by the Surveyor-General, in reasonable conformity to the grant,, before the 24th of January, 1818, that such survéy should be. recognized as valid, and deemed to have severed the land, from the public domain.
That the surveys made for Villalobos were not in reasonable conformity to the grant made for 16,000 acres on Trout Creek, is not assumed on part of the claimants; they rest their right to a confirmation for the three tracts surveyed oh the ground, that-the Surveyor-General had power, by force of the grant, to change the location, and to iocate the land granted in as many parcels as he' saw proper to- designate. To show the existence of this power in the Surveyor-General, he was' examined as a witness in the present controversy, and proved that he had, in various instances, made similar changes, and that none of tfiem had been rejected, or objected to, by the Spanish governors. Antonio Alvarez, the keeper of the archives, was also examined on this point; he testifies, that there exist in the archives a few instances where changes of location had been made by the Surveyor-General without an order of the Governor for the .change; but this was done under peculiar circumstances, as where the land granted had been taken by a previous concession.
From the long experience this court has had in the investigation of Spanish titles, as claimed in Florida, as well as from the practice in regal'd to which the witnesses depose, we are of opinion,' that' the Surveyor-General had no authority to change the location ot the grant, and to split up the surveys, as was done in this instance. The question has been settled by this court in the cases of United States
v.
Huertas (9 Peters,
171) and United States
v.
Levy (13 Peters, 83). The surveys in this instance abandoned the grant; no aid is asked from it, but the sole act of the Surveyor-Gen eral is relied on for a decree completing the title, and, if confirmed by us, must be sanctioned as the origin of Villalobos’s title; and that no such power can be exercised by this court was held in the case of Forbes (15 Peters, 172).
The grant was for a tract comprehended in a square of five miles; and although an equivalent was solicited, none was granted except in case vacant land enough could not be found at Trout Creek to satisfy the grant in one body, and a square form; nor is there any evidence that such deficiency existed.
It' is proved that the lands on Trout Creek are poor, and of little or no value, and that those surveyed are of the best quality known in Florida; and manifestly, that the change of survey had in view the acquisition of valuable lands for the purposes of speculation, and not to secure pine-trees, out of which to saw lumber; so that these surveys have neither merit in fact nor the sanction of la.w to uphold them.
2. As the want of a survey does not defeat the grant, as this court held in the cases of Arredondo (13 Peters, 133) and of Buyck (15 Peters, 224), the next and remaining question is, whether the grant itself can be located! For although the petition proceeds on the surveys, yet this court having the case before it as on bill in chancery, we would be disinclined to bar the claim on a technical ground. If it had merits, and these could not be reached on the pleadings as they stand, the court on hearing could order amendments, so that the merits could be reached; and to this end the cause could be remanded to the court below; nor do we apprehend even this to be necessary in a case like the present.
The surveys being rejected, the grant may be resorted to, and a survey ordered, if the land granted can be identified. It is therefore necessary to examine the claim on the face of- the grant. For a description of the place where the land was solicited, and which is adopted by the Governor’s decree, we must look to the memorial of Villalobos. He says, “that he has fixed his intentions to establish a mill for sawing timber, on a creek of the River St. John’s named Trout Creek, which affords a site fit for the purpose ”; and he supplicates the Governor to grant permission to build the mill at that place, with a corresponding right to five miles square of land for a competent supply of timber.
The grant refers to no one part of Trout Creek more than another, at which the site for the mill is, and where the land
should be surveyed; there is no identity of place, nor a possibility to locate the grant by survey. No claim has ever been before this court that is more vague;
In cases of a vague description, this court has uniformly held that no particular land was severed from the public domain by the grant, and that no survey could be ordered by the courts of justice. Buyck v. U. States, 15 Peters, 224; U. States
v.
Delespine, 15 Peters, 333; U. States
v.
Miranda, 16 Peters, 156, 157.
On all the grounds presented, we are of opinion that the court below decided correctly in rejecting this claim; and it is therefore ordered, that the decree of the District Court be affirmed.
Order.
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 now here ordered, adjudged, and decreed by this court, that the decree of the said Superior Court in this cause be, and the same is hereby, affirmed.