United States v. Delespine, 40 U.S. 319 (1841)

U.S. Supreme Court

United States v. Delespine, 40 U.S. 319 (1841) United States v. Delespine

40 U.S. 319

APPEAL FROM THE SUPERIOR COURT FOR

THE SOUTHERN DISTRICT OF FLORIDA

Page 40 U. S. 320

In November 1830, Joseph Delespine presented a petition to the Superior Court of East Florida asking for the confirmation of a grant by the Spanish government of Florida of a tract of land on Rio Neuvo of two leagues to each point of the compass, to contain 92,160 acres. The claim of the petitioner was founded on an alleged grant to Juan Xavier de Arrambide, a Spanish subject, by the Captain General of the Island of Cuba on 15 November, 1813, which was confirmed by the Governor and Corporation of East Florida 22 March, 1814.

The petition alleged, as the reason the claim was not before presented for confirmation, there was no person, during a great portion of the time, as the district attorney of the United States, on whom process could be served as is required by the act of Congress. The documents on which the claim was founded and which were referred to in the proceedings on the part of the petitioner are particularly referred to in the argument of the Attorney General of the United States and in the opinion of the Court.

The United States resisted the claim on the allegation that if there had been a grant, which was not admitted, and without condition, the present claimant holding under the alleged grant to Juan Xavier de Arrambide did not comply with the requisitions of the statute in such case made and provided, and also that the claim was not protected by the Florida treaty. The Superior Court of Florida made a decree in favor of the claimant, and the United States prosecuted this appeal.

Page 40 U. S. 328

CATRON, JUSTICE, delivered the opinion of the Court.

The first objection to the decree of the court below, made in behalf of the United States, is

"That the claim ought not to be sustained, because neither the claimant nor those under whom he claims ever came within the provisions of the act of Congress applicable to the said claim, nor filed any petition, memorial, or necessary documents within the term required by law."

1. By the act of 26 May, 1830, Congress declared that all claims to lands not settled by that act and which had been presented to the Commissioners of East Florida or to the register and receiver, acting as such, and which had not been "finally acted upon" should be adjudicated and settled as prescribed

Page 40 U. S. 329

by the act of 1828. The final action referred to in the act of 1830 was that of Congress. 32 U. S. 7 Pet. 94. So that the claim in controversy is of the description required, and within the jurisdiction of the courts, by the fourth section of the act of 1830; nor do we find anything in the act which precluded the court below from entertaining the petition for the establishment of the claim on the ground that it had not been filed in time. By the Act of 1828, ch. 70, § 12, it was declared that claims not brought before the courts within one year from the date of that act should be forever barred, and thus stood Delespine's claim when the act of 1830 was passed. This act has no direct limitation in it; nor is it open to inquiry in this case whether a limitation can be applied, because the petition was filed in November. 1830, within one year after the date of the act, and although the first petition was informal and defective in substance, still it would be too strict to say it was not the commencement of the proceeding, but that the amendment allowed by the superior court, in November 1833, should be taken as the date when the claim was first preferred. It had been filed before the commissioners for adjudicating the Florida claims as early as 1825, we are informed by the petition and reported to Congress with a recommendation that it be confirmed. This fact is not denied nor controverted, and which we take to be true.

2. It is insisted that the evidence in the cause is insufficient to prove that the alleged grant or concession was ever made. It appears that on 28 May, 1813, Arrambide applied to the provincial deputation at Havana for two leagues of land to each point of the compass, making 92,160 acres; that on 4 December, 1813, the deputation stated to the Council of St. Augustine that it granted the land to Arrambide and referred the grantee to the council with a command to the council to expedite to him the title. The ordinary modes of granting lands in Florida had been, directly, either by the Captain General of Cuba or the Governor of Florida, but owing to a recent call of the Cortes in Spain, and a reorganization of the Spanish government, existing at the date of the concession, and which state of things lasted only for

Page 40 U. S. 330

a short time, the mode of proceeding, in regard to granting the public domain, was changed, and the powers vested in the tribunals known as "the Provincial Deputations." This appears by the royal order of 4 January, 1813, found in the United States Land Laws, App'x, 1006. It was made the duty of the provincial deputations to devise the most convenient means of making grants, and through the secretaries of state to report the same to the Cortes for its recognition and adoption. The deputation at Havana assumed the power to grant, and nothing appearing to the contrary of the existence of the power in that body, and the concession made at Havana not being opposed to the royal order of January 1813, and there being no occasion in this case, to inquire into the powers of the provincial deputation, we have treated the testimonial as emanating from the proper authority, leaving the point open to future inquiry should an occasion call for it and positively require us to decide whether the deputation had the power assumed.

It was necessary to state thus much of the case, and of the then state of the Spanish tribunals and history, preparatory to discussing the effect of the proofs intended to establish that the grant had in fact been made.

Jose Leal, representing himself as a notary at Havana, certifies that on 13 January, 1814, he had recorded the original memorial of Arrambide, and the documents accompanying the same, with the testimonial or concession -- a record of which he testified in presence of two witnesses. This record purports to have been made pursuant to the order of the captain general, on the petition of Arrambide. Thus authenticated, the testimonial of the grant appears to have been presented to the Council of East Florida, but none of the accompanying documents, so far as can be seen or inferred from the record before us, was presented. On 1 February, 1814, the council acted upon the testimonial, but granted lands at a different place from the one therein expressed. On 3 June 1814, Entralgo, the secretary, says, "This is a copy." And on 6 June following, Ygninez and

Page 40 U. S. 331

Lopez, styling themselves royal collector and treasurer, certify to the official character of Entralgo.

How far the forms of these certificates could have been called in question in the superior court it is difficult to say; no objection, however, on the hearing in that court was made to the introduction of the testimonial given the interested party at Havana, nor to the resolution taken thereon by the council at St. Augustine, and we therefore do not feel ourselves justified in rejecting them on this appeal because of the informality in the evidence adduced to the court below of their existence in the public archives of Florida. The claim had been presented to the American commissioners years before, without objection to the existence of the title by the board so far as we are informed. But we chiefly rely on this, that from the nature and great extent of the claim, if such an objection had been well founded or even suspected, it is fair to presume the counsel for the government of the United States would have interposed and demanded of the superior court, on the hearing, the rejection of the claim on the ground that the evidence did not establish its existence. From anything that appears to the contrary, the originals of the proceeding had before the council of St. Augustine in 1814 may have been before the court and admitted in evidence, without objection.

Furthermore, the authenticity of the testimonial made in Arrambide's behalf at Havana was sanctioned by the council of St. Augustine in March 1814; that was the tribunal to judge of its character as evidence, and having been treated as an existing and authentic act, this Court cannot with any propriety at this day hold otherwise, especially as not the slightest suspicion attaches to the authenticity of the title papers such as they are found in the record.

3. Having disposed of the exceptions taken to the existence of the title, we will next inquire what the effect of the testimonial was. We will take for granted that the papers on their face, considered in connection with the royal order of January 4, 1813, sufficiently establish the fact that the power to grant at the particular time when the grant was made was in the provincial deputation at Havana, and not in the Council of the City of St. Augustine. The council had imposed on it the duty

Page 40 U. S. 332

"to dispatch the corresponding title" to the lands granted by the deputation. And to this end and with this request by the petition of Arrambide was the testimonial laid before the council in the present instance. After the title in form was dispatched, the proceedings were to be returned to the provincial deputation, conforming in this respect to the 12th and 17th articles of the royal order. The resolution of the council must therefore found itself on the testimonial.

The provincial deputation stated to the council

"that they granted in property to Arrambide, two leagues square to each point of the compass, of the lands he may choose, from the mouth of New River, which discharges itself on the coast of East Florida, and through Puerta Largo, on the south part, following the same course to the sea-shore; conforming as near as possible to the said decree."

New River and the inlet through which it passes into the ocean are well known in the geography of East Florida, lying north of the twenty-sixth degree of latitude on the eastern coast, Fort Lauderdale being now established at the mouth of that river. From the mouth of this river the interested party was authorized to choose the land, and we apprehend it was to be taken on the south part of the river and was certainly to lie partly on the ocean.

On 1 February, 1814, Arrambide, by his petition, dated at Havana, solicited the Council of the City of St. Augustine to expedite to him the title in conformity to the grant of 4 December, 1813, in the territory of the Province of East Florida and on the south part thereof. "The testimonial leaving," says he,

"to my choice the place where I should settle myself, and desiring to possess two leagues to the north of the River Miamies, which is at the northwest side of Largo Byscayno, I pray your honors to be pleased to expedite to me the corresponding title of property for the two leagues of land to each point of the compass agreeably to this situation, reserving to myself to produce the plat of the said lands, as soon as I find myself prepared to take it out, to commence the establishment which I am to effect."

The Miamies is a river also well known in the geography of East Florida, and lies about one degree of latitude south of the New River, and at the mouth of which is now Fort Dallas.

Page 40 U. S. 333

The grant made at Havana was "with the object of establishing on it mills for sawing timber;" such was the representation made by Arrambide to the deputation, as we are bound to infer from the papers adduced, although the representation does not appear in the record. No survey has ever been made at the mouth of New River, nor could any be made unless ordered by the Council of St. Augustine; nor has the proposed establishment been made at that or any other place. On applying to the local council of East Florida, Arrambide abandoned his first location, and claimed to select another in the neighborhood of a river lying sixty or seventy miles further south. Of the abandonment there can be no doubt. No claim is set up in the petition for the land at the mouth of New River as granted by the provincial deputation.

To the grant at Havana the rule applies which was laid down by Saavedra, at the command of Governor Coppinger in answer to the inquiries of the agent of the Duke of Alagon, and recited in the case of United States v. Clarke, 8 Pet. 461, that

"the assignments of extensive portions of territory, which have been made for the establishment of factories, to persons who did not then comply, nor have since presented themselves to establish their mechanical works, ought also to be considered without any right or value, and said lands perfectly free, that they may revert into the class of public lands."

The opinion and report from which the foregoing is an extract was recognized as authority by this Court in the case of the United States v. Wiggins, 14 Pet. 351, and we imagine its accuracy is indisputable. We therefore think, from the facts presented by the record as also by the laws of Spain, the grant made at the mouth of New River by the provincial deputation imposed no obligation on the government of Spain at the date of the treaty of 1819 to confirm the title to Arrambide, and that none rests on the government of the United States as the successor to the rights and obligations of Spain.

4. Did the concession made by the Council at St. Augustine confer any title? It was professedly made in conformity to the authority of the testimonial and decree of the provincial deputation of Cuba, and could only be intended to expedite the formal title. The council neither had nor professed to have in

Page 40 U. S. 334

itself the power to make a new and independent grant to Arrambide, thereby disregarding the commands of its superiors and of the laws and regulations recently adopted for the government of the provincial authorities when granting lands. The concession was therefore void for want of power in the tribunal that assumed to make it. This Court said, in the case of United States v. Clarke, 8 Pet. 454-455, that the royal order of 4 January, 1813, founded on the decree of the Cortes, seems to have been repealed on 22 August, 1834. That it was annulled by the King about that time there can be no doubt, and it may be the title of Arrambide would not have been recognized by Spain after the repeal. So it may have been impossible for him to make the survey or return the proceedings to the deputation of Havana according to any known law after the repeal; that he had no time to do so, between 22 March, 1814, when the council made the concession, and 22 August of that year, when the repeal took place, may be safely assumed, yet, with the very slight information we have on this subject and of those times in the history of Spain, it has been deemed proper not to institute an inquiry into the effect of the repeal of the royal order of 1813.

The decree below is for a square of land of twelve English miles, the center of the tract to be two leagues northward from the mouth of the Miamies and two leagues from the seacoast, the lines of the survey to be to the cardinal points of the compass. The petition of Arrambide, asked of the council of East Florida, two leagues to each point of the compass, "to the north of the River Miamies." That the land was to have been selected in the neighborhood of some part of the river and north of it is sufficiently plain, but whether near the ocean or near what other port of the river does not appear, and for an obvious reason the grantee reserved to himself

"the right to produce the plat of the said lands as soon as he found himself prepared to take it out and to commence the establishment which he was to effect."

This was never done, and no particular lands could have been decreed to Arrambide, had the Council at St. Augustine possessed the power to grant. The

Page 40 U. S. 335

doctrine on this subject is stated in several cases decided at the present term and which need not be repeated. It was not possible for the superior court to locate any land, as no particular spot was granted; lands not previously granted were, by the treaty, vested in the United States as part of the public domain; the public domain cannot be granted by the courts; this the decree below attempted to effect, and on this ground, was there no other objection to the decree, it should be

Reversed, which is ordered, and that the petition be dismissed.

This cause came on to be heard on the transcript of the record from the Superior Court for the Southern Judicial District of Florida, and was argued by counsel, on consideration whereof it is ordered and decreed 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 dismiss the petition of the claimant.