In the case of
Stoddard v.
Chambers, 2 How. 284, this Court decided by
implication, and now decides expressly, that a general and
unlocated concession, granted by the Spanish governor prior to the
transfer of Louisiana, a private survey of which made after the
transfer was recognized by the commissioners appointed under the
act of 1805, before whom the claim was filed, was so designated and
located as to be reserved from sale by virtue of the act of 1811,
and consequently no New Madrid certificate could be located upon
it.
The act of 1804, forbidding private surveys upon the public
lands, was impliedly repealed by the act of 1805, which required
claimants to file a plat. The act of 1806 authorized the
commissioners to direct such surveys as they might deem necessary,
which gave them thereby the power to adopt any prior and private
surveys which they might deem just and proper for the purpose of
designation and location.
The effect of such private surveys was not to sever the land
from the public domain, but merely to indicate the tract which
Congress was to act upon at a subsequent period, in case it thought
proper to confirm the claim.
The act of 1836 confirmed the claims of assignees who had
prosecuted them as claimants, and did not intend to vest the title
in the assignor, the original holder. This Court has so decided in
former cases.
The confirmation by the act of 1836 is equally effectual in
favor of the claimant, whether the commissioners recommended that
the claim should be confirmed generally or confirmed "according to
the survey." The only difference is that in the latter case, the
survey on file is probably conclusive upon the government and
errors cannot be corrected, whilst in the former case they may
be.
The second section of the act of 1836 makes no provision for a
relocation of an unlocated claim confirmed on the report of the
commissioners, and further legislation will be necessary for such
cases.
The cases of
Mackay v.
Dillon, 4 How. 421,
Les Bois
v. Bramell, 4 How. 449, and
Jourdan v.
Barrett, 4 How. 169, examined and explained.
Upon the transfer of Louisiana, the United States succeeded to
all the powers of the intendant generals, and could give or
withhold the completion of all imperfect titles at their pleasure.
In order to exercise this power with discretion, boards of
commissioners were established in order to enlighten the judgment
of Congress, and special courts were organized in which claimants
might prosecute their claims.
But in all the legislation upon the subject, the claimants were
never considered as possessing a legal title until the final assent
of Congress was expressed in some mode or other to that effect.
Page 49 U. S. 294
The date of such legal title commences with the ratification by
Congress, and does not extend back to the date of the imperfect
title.
Therefore, the title of Cerre, being confirmed in 1836, must
give way to patents for the same land issued before that time
unless Congress had by some law protected the land from the
location of patents.
But the acts of Congress did not so protect it, because the
concession of Cerre called for no boundaries, and had never been
surveyed. Before land could be reserved from sale, it was necessary
to know where the land was.
The confirming act of 1836 declared that it should convey no
title to any part of the land which had previously been surveyed
and sold by the United States. This the United States had a right
to do, because, having the plenary power of confirmation, they
could annex such conditions to it as they chose.
Where claims were confirmed according to the concession, a
subsequent survey made in the mode pointed out by law is conclusive
upon the United States and the confirmee to show that the land
included in the survey was the land the title to which was
confirmed. But it does not follow that other persons who may
previously have purchased portions of the land from the United
States subsequent to the confirming act and before the survey are
equally concluded.
The form of a Spanish title given.
This was one of those cases arising from a conflict between an
old Spanish concession and a title otherwise acquired. The acts of
Congress passed from time to time to regulate these claims are all
set forth in the report of the case of
Stoddard v.
Chambers, 2 How. 317, and need not be repeated. It
is only necessary now to state the respective titles of the
plaintiffs and defendant as exhibited by themselves.
This was an action of ejectment brought by Amedee Menard, a
citizen of the State of Illinois, as assignee of Pascal L. Cerre,
against the defendant, Samuel Massey, a citizen of the State of
Missouri for the recovery of a piece of land situated in the County
of Crawford and State of Missouri, containing three thousand and
one acres and seventy-five hundredths of an acre, being survey
number three thousand one hundred and twenty, of three thousand
five hundred and twenty-eight arpens of land originally granted to
Pascal L. Cerre, in township thirty-eight north, of range five
west, and townships thirty-seven and thirty-eight north, of range
five west, of the fifth principal meridian. This tract of land was
confirmed by the Act of Congress of 4 July, 1836, to Pascal L.
Cerre, the grantee, or his legal representatives, who conveyed to
Amedee Menard, the plaintiff. Menard died during the pendency of
the suit, and his heirs at law were made parties to the suit, all
of whom were residents of the State of Illinois. A verdict and
judgment were rendered against the plaintiffs in the circuit court,
the case is brought to this Court by the plaintiffs in error.
The case, on each side, as it appears in the transcript, is as
follows:
Page 49 U. S. 295
On 5 November, 1799, one Pascal Leon Cerre presented his
petition to Don Carlos Dehault Delassus, Lieutenant Governor and
Commander-in-Chief of Upper Louisiana, for seven thousand and
fifty-six arpens of land, to be taken in two different places as
follows: the half of said quantity, or three thousand five hundred
and twenty-eight arpens, to be taken at the place commonly known by
the name of the Great Source of the River Maramee; the other half
on the head-waters of the Gasconade, and those of the Maramee,
known by the name of La Bourbeuse.
On 8 November, 1799, the Lieutenant Governor, Charles Dehault
Delassus, in pursuance of said petition, gave a concession for the
quantity of land asked for by the petitioner, reciting that he was
well convinced of the facts set forth and stated by the petitioner,
and stated further in the grant, that as it was situated in a
desert where there was no settlement, and at a considerable
distance from the Town of St. Louis, he was not compelled to have
it surveyed immediately, "but as soon as someone settles on said
place," in which case he was required to have it surveyed without
delay.
The said Pascal Leon Cerre, the grantee, produced a letter from
Manuel Gayoso de Lemos, Governor General at New Orleans, to
Monsieur Gabriel Cerre, the father of the petitioner, dated New
Orleans, 28 April, 1798, in which he acknowledged the many services
which the said Gabriel Cerre had rendered the government and his
claim to the generosity of the same, and that the said lieutenant
governor, seeing the letter of the Governor General Gayoso,
inquired of said Gabriel Cerre in what manner he might reward him,
and that said Cerre replied that he was then advanced in years, and
had a sufficiency of lands, and recommended his son, who was the
head of a family, said Pascal Leon Cerre, who had then received no
grant for any land, to the bounty of the government.
The concession was registered, by order of the lieutenant
governor, in the Book of Concession, and presented to the first
board of commissioners for confirmation by the grantee September
15, 1806, who reported against its confirmation September 28, 1810,
and the claim was again presented for confirmation 5 October, 1832,
supported by documentary and oral testimony, and was unanimously
recommended for confirmation by the board of commissioners October
31, 1833, and was confirmed by the Act of Congress of 4 July, 1836,
to the said Pascal L. Cerre, or his legal representatives.
The land as confirmed was surveyed under the authority of
Page 49 U. S. 296
the United States, by Deputy-Surveyor Joseph C. Brown, from 18
to 20 June, 1838, under instructions from the surveyor of the
public lands in the States of Illinois and Missouri, dated 6 June,
1838.
On 26 February, 1844, by deed of that date, Pascal L. Cerre
conveyed said lands, as granted, located, and surveyed, to Amedee
Menard, under whom the present plaintiffs claim as heirs at
law.
By the Act of Congress of 4 July, 1836, the above decision of
the Board of commissioners, under the acts of 1832 and 1833, was
affirmed, and thereby, the title under said grant was
confirmed.
The defendant admitted that he was, before and at the time of
the commencement of this suit, in possession of the whole of
section one, township thirty-seven north, range six west, except
the west half of the southwest quarter of said section, containing
eighty acres, which were the same premises on which "the Big
Spring," at the source of the Maramee, is located.
The heirs at law of Amedee Menard, deceased, were admitted, from
a statement made by Judge Pope, to be the present plaintiffs.
The plaintiffs gave in evidence a letter from the Secretary of
the Treasury of the United States to the Commissioner of the
General Land Office, dated 10 June, 1818, in which he was directed
and instructed to furnish the receiver and register of the land
office at St. Louis, Missouri, with a descriptive list of the land
claims which had been presented and registered under the different
acts of Congress for confirming the rights of individuals to lands
that had not been confirmed, situated within said land district,
with instructions to withhold from sale all such lands, until
otherwise directed.
The land confirmed to Pascal L. Cerre, and now sued for, was
then within the district of St. Louis. The letter of the Secretary
of the Treasury was the official copy, transmitted by the
Commissioner of the General Land Office to the register at St.
Louis and was produced by the said register, in whose possession
the same was.
The plaintiffs gave in evidence also a list of claims which had
been made out by Frederic Bates, former recorder of land titles at
St. Louis, and which had been presented for confirmation, but not
finally acted on by Congress, which list was also produced by the
register of the land office at St. Louis and taken from the files
in his office, and on said list was this claim, since confirmed to
Pascal L. Cerre.
Accompanying said list was a certificate made out by
Frederic
Page 49 U. S. 297
Bates, former recorder of land titles at St. Louis, under date
10 July, 1818, in which he states -- "The foregoing is a list of
claims regularly entered in this office," and which were supposed
to be situated and intended to be located within the County of St.
Louis, and which was no doubt made out, in pursuance of the
instructions and directions from the Commissioner of the General
Land Office, under the direction of the Secretary of the Treasury,
reserving said lands from sale.
The plaintiffs also gave in evidence a proclamation of the
President of the United States dated June, 1823, and published in
the summer and autumn of 1823, for the sale of public lands on the
third Monday of November in that year at St. Louis, which were
situate in the township and range in which the lands sued for in
this action are located, and in which the lands sued for and
contained in the list made out by the recorder of land titles, as
above stated, are reserved from sale.
The property in dispute was admitted by the defendant to be
worth more than two thousand dollars.
The plaintiffs also proved, by the testimony of Augustus H.
Evans, that this claim was located at "the Big Spring" on the
Maramee. And by the testimony of Henry A. Massey that between the
years 1826 and 1828, Samuel Massey, in speaking of the works at
"the Big Spring" on the Maramee, said there was an old claim on the
land, which he understood had not been allowed, and authorized
Major Biddle at that time to try and buy up that old claim.
The plaintiffs also established by the testimony of Joseph C.
Brown, the United States deputy surveyor, that he made the survey
of this claim, at "the Big Spring," "as the source of the
claim."
There was offered in evidence, on the part of the plaintiffs,
Plat No. 2 from the register's office and a copy of the original
diagram, as certified by F. R. Conway, Surveyor of the Public Lands
in the States of Illinois and Missouri, dated Surveyor's Office,
St. Louis, 11 April, 1846, which were objected to on the part of
the defendant, and the objection sustained by the court, to which
decision of the court plaintiffs' counsel excepted.
The above facts, and also a certified survey, under the act of
1836, constitute the title of the plaintiffs in error.
The evidence on the part of the plaintiffs was here closed.
The defendant, as it appears from the transcript, gave in
evidence seven patents from the President of the United States, all
issued on 20 December, 1826, to Samuel Massey and Thomas James,
five for eighty acres of land each, and one for eighty-two and
ninety-six one hundreths acres, and one
Page 49 U. S. 298
other for eighty-one and twelve one hundreths acres of land, and
all of said patents covering a part of the same land included in
the survey of Pascal L. Cerre under the confirmation made to him at
the great source of the Maramee.
The evidence on both sides being closed, the counsel for the
defendant then prayed the court to direct the jury:
1. That the plaintiffs in this case cannot recover against the
defendant for any land embraced within the patents given in
evidence by the defendant.
2. That the plaintiffs cannot recover in this case against the
defendant on account of any land within the plaintiffs' survey
without proof that the defendant at the commencement of this suit
was in possession thereof, and the fact that the defendant had cut
wood upon such land is not sufficient to authorize a recovery for
the land upon which the wood was cut if these were merely temporary
trespasses and occupation of the land.
These instructions the court gave to the jury, whereupon the
counsel for the plaintiffs excepted, and upon this exception the
case came up to this Court.
Page 49 U. S. 301
MR. JUSTICE CATRON delivered the opinion of the Court.
On 5 November, 1799, Pascal L. Cerre petitioned the Lieutenant
Governor of Upper Louisiana for a concession of land, in two
parcels, in full property, one-half of which, or thirty-five
hundred and twenty-eight arpens, to be taken at a place known by
the name of the Great Source of the River Maramee, at about three
hundred miles from its mouth;
Page 49 U. S. 302
the other half, or thirty-five hundred and twenty-eight arpens,
at some distance from the first, at the upper part of the
headwaters of the Gasconade, and of those of the fork of the
Maramee known by the name of La Bourbeuse, or Muddy. To gratify
this petition, the lieutenant governor made the following
concession:
"
St Louis of Illinois, November 8, 1799"
"Whereas the petitioner is one of the most ancient inhabitants
of this country, whose known conduct and personal qualities are
recommendable, and being convinced of the truth of what he exposes
in his petition, I do grant the petitioner the land which he
solicits, and as it is situated in a desert where there is no
settlement, and at a considerable distance from this town, he is
not compelled to have it surveyed immediately, but as soon as
someone settles on said place, in which case he must have it
surveyed without delay; and Don Antonio Soulard, Surveyor General
of this Upper Louisiana, will take cognizance of this title for his
own intelligence and government in the part which concerns him, so
as to enable the interested, after the survey is executed, to
solicit the title in due form from the Intendant General of these
provinces of Louisiana."
"CARLOS DEHAULT DELASSUS"
"Registered by order of the lieutenant governor, pages 15 and 16
of Book No. I, Titles of Concessions -- SOULARD."
This claim was laid before the first board in the following
form:
"
September 15, 1806. Pascal L. Cerre, claiming a tract
of a league square, to be surveyed in two parts or halves, the one
on the Big Spring of the River Maramee, so as to include said
spring, and the other at the fall of the forks of the Gasconade and
those of the Maramee, called the Muddy, produces a concession from
Charles Dehault Delassus, dated 8 November, 1779."
That board (September 28, 1810) were of opinion that the claim
ought not to be confirmed; and so reported to Congress. And thus
the claim stood until October 31, 1833, when it was presented to
the second board, created by the act of 1832; and this board was of
opinion, and reported to Congress, "that the claim ought to be
confirmed to Pascal L. Cerre, or his legal representatives,
according to the concession." And by the Act of July 4, 1836,
Congress confirmed the claim according to the report, and
consequently according to the unsurveyed concession.
Page 49 U. S. 303
The township, including "the Big Spring of the River Maramee,"
was offered for sale on the third Monday of November, 1823,
pursuant to the proclamation of the President. Whether Massey and
James purchased at the public sale in 1823, or entered afterwards,
does not appear from the record; but in 1826 and 1827 they obtained
their different patents for the land in dispute, from the United
States; and these titles, the court below charged the jury, were
superior to Cerre's confirmed claim. And here the question arises,
whether Cerre's concession, on being confirmed by Congress in 1836,
related back to its date of 1799, and overreached the United States
title made to Massey and James. If it does so relate to the extent
of the survey made under the confirmation in 1838, and approved in
1840, then the controversy is at an end; and as on this assumption
the suit was brought, it becomes necessary to examine the question
of relation of title. The argument is that the concession was made
by an officer who and power to grant; and having done so, the land
granted was "property," and protected by the third article of the
treaty of 1803, which declares that the inhabitants of the ceded
territory shall be maintained and protected in the free enjoyment
of their liberty and property, and that the laws of nations,
equally with the stipulations of the treaty, secured the title of
such grantees.
That the lieutenant governor of Upper Louisiana had the
authority, as a subdelegate, under the Intendant General of the
provinces of Upper and Lower Louisiana and Florida, to make
concessions, is undeniable; he could and did deal with the public
domain of the province -- made concessions, directed the lands to
be surveyed, and caused grantees to be put into possession. This,
however, does not settle the question. It does not depend upon the
existence of power, or want of power, in the lieutenant governor,
but on the force and effect of the right his concession conferred.
Did it give such a vested title in the soil, as that the Spanish
government could not legally disavow it? Or could the Intendant
General, representing the royal authority, lawfully refuse to
confirm the concession, and order the grantee to be turned out of
possession? If it be true that the title ended with the concession,
survey, and occupancy of the land granted, then it follows that the
title was completed and perfected under the Spanish laws, by these
acts, nor was a confirmation from any higher power than the
lieutenant governor at all necessary; the grantee having all the
title that the King could give. The assumption, that such was the
lieutenant governor's power, and the force and effect of the title,
sets out with the assertion, that neither the regulations
Page 49 U. S. 304
of Morales, nor any previous regulation of the Spanish
governors, were ever in force in Upper Louisiana, and that the act
of the lieutenant governor was conclusive as to law and fact when
making grants; that he could grant to anyone, for any quantity, and
for any reason, or without reasons, and on any condition, or
without conditions; and that no authority existed to supervise his
acts; and we are referred to various expressions and conjectures on
this subject.
In the cases of
Soulard and Smith v. United
States, 4 Pet. 511, this Court, after holding the
cases under advisement for a year, professed itself unable, from
want of information, to give any opinion in the matter, and for
this reason the cases were not then decided. This occurred in 1830.
In 1835 and 1836, in the cases of Clarke, Delassus, and two of
Chouteau's Heirs, found in 8 and 9 Peters, regulations for
the government of subdelegates are admitted to have existed, but
not to such an extent as to control the lieutenant governors in
regard to person, quantity, or reason, when making concessions and
orders of survey; and such has been the doctrine of this Court
since that time, so far as concessions made in Upper Louisiana have
been adjudged. These cases address themselves to a single
consideration; that is to say, whether the lieutenant governor's
powers were so limited that the concessions then before the court
were void for want of power; but they do not settle the question,
that the grant was a perfect title. It is said by the Court in the
case of
Chouteau's
Heirs, 9 Pet. 154,
"It is remarkable that if we may trust the best information we
have on the subject, neither the governor nor the Intendant General
has ever refused to perfect an incomplete title granted by a deputy
governor or subdelegate."
In point of fact, this is certainly true. No such refusals could
take place. From the parts of Upper Louisiana, where grants were
made, to New Orleans, where the intendant general and
governor-in-chief resided and kept their offices, the distances
were so great and the trackless wilderness between so infested with
hostile Indian tribes that few could apply, had they possessed the
means to pay for perfecting their titles. And in the next place,
the principal standard of value was skins in the upper province;
specie was hardly known there. And then again, land was of no
material value to such a population, who resided in villages, and
cultivated patches within a common fence, where each inhabitant had
his portion assigned by a syndic. But two instances are known to
exist in Upper Louisiana, where the intendant was applied to for a
complete title, and made the same; one case was that of Moses
Austin for a league square at Mine a Breton, a report on
Page 49 U. S. 305
which is found in 2 American State Papers, 678, and the other
perfected title was made to Mr. Reigh, in the neighborhood of St.
Louis.
The fact, therefore, that the intendant generals and governors
did not refuse to make perfect titles, is no evidence that they had
not the power to deal absolutely with concessions made by
subdelegates, and to give titles or refuse them, as the Congress of
the United States has done. Like Congress, they exercised the
sovereign power. The concession before us addresses itself to the
intendent general and refers the grantee to him, "to solicit the
title in due form," as do, uniformly, all the concessions and
orders of survey made by lieutenant governors, after the intendant
was restored to power. By the eighty-first article of the royal
ordinance providing for intendants of New Spain, 2 White's Recop.
69, 71, such intendants were made the peculiar judges of causes and
questions arising in their respective districts, relating to the
sale, distribution, and grant of royal lands, and, a dispute having
arisen in 1797, between Morales, intendant
ad interim, and
Don G. de Lemos, Governor of Louisiana, respecting the exclusive
right claimed by the former to control such grants,
see
id., 469,
et seq., the royal order of 22 October,
1798, was issued, reaffirming this eighty-first article, and
declaring the powers of the intendant to be plenary, and in
conclusion of all other authority, to divide and grant all kinds of
lands belonging to the Crown.
Id., 245, 477, acting under
and by virtue of these two royal orders, the intendant, Morales, on
17 July, 1799, published his regulations, addressed to the
lieutenant governors, subdelegates, and to the people of the
provinces of Lower and Upper Louisiana, and West Florida, so that
those who wished to obtain lands might know in what manner to ask
for them, and on what conditions they could be granted and sold:
"And especially," in his own language,
"that those who are in possession without the necessary titles
may know the steps they ought to take to come to an adjustment;
that the commandants and subdelegates of the intendancy may be
informed of what they ought to observe. He then states, that a
great number of those who have asked for land think themselves the
legal owners of it; those who have obtained the first degree, by
which a surveyor is ordered to measure and put them in possession;
others, after a survey has been made, have neglected to ask for a
title to the property;"
and as like abuses, continuing for a longer time, will augment
the confusion and disorder which will necessarily result,
"we declare, that no one of those who have obtained said
decrees, notwithstanding in virtue of
Page 49 U. S. 306
them the survey has taken place, and that they have been put in
possession, can be regarded as owners of the land, until their real
titles are delivered completed, with all the formalities before
recited."
The foregoing is an extract from the eighteenth article of the
regulations of July, 1799, which regulations had the force of
written law up to the time when a change of government took place.
The formalities for completing a real title are prescribed by the
three articles preceding the eighteenth; the surveyor was bound to
forward to the intendant a survey, and also a copy of the survey,
or rather a figurative plot, and a certificate called a
proces
verbal, signed by the commandant, or a syndic and two
neighbors, together with the surveyor, declaring that the survey
was made in their presence, and corresponded with the facts stated
in the
proces verbal, and on the concession, this
figurative plot, and the
proces verbal, the complete title
was founded; a copy of the plot and
proces verbal being
attached; and which evidence of title was recorded in several
departments. Such, in substance, was the real title completed. The
necessity of a further title than a mere loose order of survey,
given by commandants of posts and lieutenant governors, and placed
in the hands of the interested party, is too manifest for comment.
Petitions were written by the party asking the land, or someone for
him; the governor consented, usually by endorsement on the
petition, and ordered that the petitioner should have the land, and
directed that it should be surveyed; the paper was handed to the
petitioner, who might deliver it to the surveyor, or omit it; if he
presented it, and the land was laid off, then it was the surveyor's
duty to record both the concession and plat, together with the
proces verbal. But this did not make the party owner;
without the further act of the King's deputy -- the intendant
general -- the title still continued in the Crown.
As assumed in argument (and truly) by the third article of the
treaty by which Louisiana was acquired, and by the laws of nations,
the inhabitants of the ceded territory were entitled to be
maintained and protected in the free enjoyment of their property.
But in what property? To such an interest in it, if land, as they
had when the country changed owners, and that interest being of a
character requiring royal sanction before the Spanish government
would recognize it as divesting the public title, our government,
as the successor of Spain to the public lands, gave the same
construction and effect to concessions and orders of survey,
holding, that the title of the King's domain passed by treaty to
the United States, notwithstanding the existence of such
concessions. Yet, to the full extent of any equity
Page 49 U. S. 307
in the claimants, the government adopted means to satisfy the
claims; and, as the sovereign power could not be sued as legal
owner, Boards of commissioners were created, with liberal powers,
to investigate every description of claims, and report on them to
Congress, for the sanction of sovereign authority, and by this
means many claims were confirmed, the legal title added, and
incipient concessions completed into perfect and conclusive titles
against the government. Then, again, Congress provided that special
courts should be organized, in which the government might be sued,
in a prescribed form, and decrees be made for or against claimants;
but no suit could be maintained in an ordinary action of ejectment,
or for title of any kind, on a concession and an order of survey,
for want of legal title to sustain it. Such claimants "were not
regarded as owners of land, until the real title was delivered
completed," in the language of the Spanish regulation No. 18.
Had the courts of justice been allowed to hold otherwise, and to
interfere in the matter, and to decree titles to claimants in
equity, or to enforce their claims at law, and oust the United
States indirectly by suing persons found on the land, little or no
occasion would have existed for boards, or special courts, to
adjudge respecting the validity of claims; as the ordinary
tribunals could have settled all controversies under state laws
declaring such claims cognizable in the state courts. It was
therefore manifest, that claims resting on the first incipient
steps must depend for their sanction and completion upon the
sovereign power; and to this course claimants had no just cause to
object, as their condition was the same under the Spanish
government. No standing, therefore, in an ordinary judicial
tribunal has ever been allowed to these claims, until Congress has
confirmed them and vested the legal title in the claimant. Such,
undoubtedly, is the doctrine assumed by our legislation. To go no
further, the Act of May 26, 1824, allowing claimants a right to
present their claims in a court of justice, pronounces on their
true character. It declares that the claim presented for
adjudication must be such a one as 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 the
sovereignty of the country not been transferred to the United
States, and, by the sixth section, when a decree is had favorable
to the claim, a survey of the land shall be ordered, and a patent
shall issue therefor; and by section eleventh,
"if the decree shall be in the claimant's favor, and the land
has been sold by the United States, or otherwise disposed of, the
interested party shall be allowed to enter an equal quantity of
land elsewhere."
So again, the act
Page 49 U. S. 308
of July 9, 1832, creating the last board, directs the
commissioners to inquire into and examine all unconfirmed claims
previously filed, founded on any incomplete grant, concession,
warrant, or order of survey, issued by the authority of France or
Spain, and to class the same so as to show, first, what claims, in
their opinion, would in fact have been confirmed according to the
laws, usages, and customs of the Spanish government and the
practice of the Spanish authorities under them "at New Orleans," if
the government under which said claims originated had continued in
Missouri, and secondly, what claims, in their opinion, are
destitute of merit under such laws, usages, and customs. And by
section third it is declared, that from and after the final report
of the commissioners, the lands of the second class shall be
subject to sale, the same as other public lands; and that those of
the first class shall continue to be reserved from sale, as
heretofore. From the first act, passed in 1805, up to the present
time, Congress has never allowed to these claims any standing other
than that of mere orders of survey and promises to give title; and
which promises addressed themselves to the sovereign power in its
political and legislative capacity, and which must act, before the
courts of justice could interfere and protect the claim. And so
this Court has uniformly held. The title of Cerre having no
standing in court before it was confirmed, it must of necessity
take date from the confirmation, and cannot relate back so as to
overreach the patents made in 1826 and 1827.
The next ground relied on to reverse the decision of the circuit
court is that Cerre's claim was reserved from entry and grant by
the act of March 3, 1811, providing for the sale of public lands
and the final adjustment of land claims. The fifth section declares
that back lands to front grants on the Mississippi River &c.,
are reserved from sale, and by section sixth it is provided that,
until after the decision of Congress thereon, no tract of land
shall be offered for sale, the claim to which has been, in due
time, and according to law, presented to the register of the land
office for the purpose of being investigated by the commissioners
appointed for ascertaining the rights of persons claiming lands in
the Territory of Orleans. The eighth section declares, that the
Surveyor General shall cause such lands in the Louisiana Territory
as the President shall direct to be surveyed, like other public
lands; offices are established for their disposal, and it is
directed that they shall be sold by order of the President. But
from this power to sell are excepted section number sixteen, salt
springs, and lead mines, with such lands adjoining thereto as the
President shall direct, and
Page 49 U. S. 309
then comes the exception relied on for the protection of Cerre's
claim, to-wit --
"That, till after the decision of Congress thereon, no tract of
land shall be offered for sale, the claim to which has been, in due
time, and according to law, presented to the recorder of land
titles in the District of Louisiana, and filed in his office, for
the purpose of being investigated by the commissioners appointed
for ascertaining the rights of persons claiming lands in the
Territory of Louisiana."
See Land Laws 194.
That this provision is an exception to the general powers
conferred on the officers to sell, is not an open question; having
been so adjudged by this Court in the case of
Stoddard's
Heirs v. Chambers, 2 How. 284; and again at the
present term, in the case of
Bissell v.
Penrose, 8 How. 317. Nor is it an open question,
that the Act of February 17, 1818, § 3, reenacts and continues
in force the exception as respects such lands. This was also
decided by the above cases, and that such was the opinion of
Congress is manifest from the third section of the Act of July 9,
1832, under which the last board acted, for it declares that lands
of the first class shall be reserved from sale "as heretofore."
All these acts of Congress, with their exceptions, address
themselves especially to the Department of Public Lands, as by them
that department must be guided. In reserving lands from sale, it
was necessary to know where they were situated, and how far they
interfered with the public surveys. Either the President or some
other officer must have had the power to designate the lands as
those adjoining to salt springs and lead mines, or it must have
appeared in some public office appertaining to the Land Department
what the boundaries of reserved lands were, and if it did not
appear, no notice of the claim could be taken by the surveyors, nor
by the registers and receivers when making sales. This was a
conclusion that has from necessity been acted on at the land
offices, and as Cerre's claim was not surveyed before the
confirmation took place, no boundaries of his tract could be
recognized when the public surveys were made and the lands sold. He
claimed no "tract of land." The laws refer to specific tracts that
are claimed; it is not material whether the boundaries are proper,
and according to the concession, or the claim be just or otherwise,
so that the tract claimed be certain. This was also decided in the
cases just cited. Certainly a mere floating claim, founded on a
concession that was ordered to be located by survey, and where no
survey or location had been made, was not protected by the act of
1811. An actual survey is not indispensable, but boundaries must
appear in some form from the notice of claim and
Page 49 U. S. 310
the accompanying evidences filed with the recorder. If from
these the tracts could not be laid down on the township surveys,
then the land could not be reserved from sale, although, by the
concession and by the notice, a particular spot (as the Big Spring
of the Maramee) was referred to in general terms as the place where
the land should lie.
But there is another ground of defense that would have been
conclusive even had Cerre's claim been surveyed and the survey
filed with the recorder in 1806, accompanying the notice of claim.
By the second section of the confirming act of July 4, 1836, it is
provided that
"if it shall be found that any tract confirmed by this act, or
any part thereof, had been surveyed and sold by the United States,
this act shall confer no title to such lands, in opposition to the
rights acquired by such location or purchase, and the party whose
claim is confirmed by this act shall be authorized to enter a
quantity of land equal to the interference elsewhere."
Having seen that the United States might confirm the claim of
Cerre, or might refuse to do so, and that it took date as a title
recognized in the judicial tribunals from the confirming act, it
follows that the claim might be confirmed in such part, and on such
conditions, as Congress saw proper to prescribe, and having refused
to confirm it for lands lying within its boundaries which had been
previously sold, and the patents to Massey and James being of this
description, they are the only legal title to the land, and
therefore the charge of the circuit court was proper.
The survey of Cerre's tract, founded on the confirmation, was
given in evidence, and recognized as part of his title by the
circuit court, which circumstance we deem it proper not to pass
without notice. By the Act of April 26, 1816, it was provided that
a surveyor should be appointed of the public lands for the
Territories of Illinois and Missouri, whose duty it should be to
cause so much of the lands in said territories as the President
should direct to be surveyed and divided as were the public lands
lying northwest of the River Ohio, and the act declares that
"it shall also be the duty of the surveyor to cause to be
surveyed the lands in said territories, the claims to which have
been, or hereafter may be, confirmed by any act of Congress, which
have not already been surveyed according to law; and he shall
transmit to the registers of the land offices in said territories,
general and particular plats of all the lands surveyed or to be
surveyed, and shall also forward copies of said plats to the
Commissioner of the General Land Office, and all the plats of
surveys, and all other papers and documents pertaining,
Page 49 U. S. 311
or which did pertain, to the office of Surveyor General under
the Spanish government within the limits of the Territory of
Missouri &c., shall be delivered to the surveyor appointed
under this act. . . . And any plat of survey, duly certified by
said surveyor, shall be admitted as evidence in any of the courts
of the United States, or the territories thereof."
Under this authority, Cerre's claim was surveyed, as will better
appear by the following certificate, preceding the description of
the lines:
"Plat and description of the survey of a tract of 3,528 French
arpens, equal to 3,001 and twenty-five hundredths English acres of
land, situated in township thirty-eight north, range five west; and
townships thirty-seven and thirty-eight north of the base line,
range six west of the fifth principal meridian, in the State of
Missouri; executed from 18 to 20 June, 1838, by Joseph C. Brown,
deputy surveyor, under instructions from the surveyor of the public
lands in the States of Illinois and Missouri, dated 6 June, 1838;
it being the one-half of 7,056 arpens, or a league square, granted
in two tracts of equal quantity, on 8 November, 1799, to Pascal L.
Cerre, by Zenon Trudeau, Lieutenant Governor of the Spanish
Province of Upper Louisiana; this tract"
"to be taken at the place commonly known by the name of the
Great Source of the River Maramee, at about three hundred miles
from its mouth, so as to include the said sources,"
"and confirmed to Pascal L. Cerre by the Act of Congress of the
United States approved on 4 July, 1836, entitled, 'An act
confirming claims to land in the State of Missouri, and for other
purposes,' according to the decision No. 2 of the report of the
Board of commissioners appointed by the act of Congress, approved
on 9 July, 1832, entitled, 'An act for the final adjustment of
private land claims in Missouri,' and the Act of Congress approved
2 March, 1833, supplemental thereto."
The Surveyor General approved the survey June 26, 1840. In
having the land laid off, and in approving the survey, he acted
under the authority of Congress, expressly conferred by the act of
1816. Joseph C. Brown testified that he made this survey, being the
same offered in evidence above; that the survey was made at the
time stated on its face, and was made by the witness at the place
known and called "the Big Spring of the Maramee;" that the said
spring was on section one, as marked and designated on the plat
before him. The Big Spring was a very large body of water breaking
out of a high bluff, and made a stream from the spring itself of
about one hundred feet wide, and a foot in depth; that witness made
the survey by direction, and under the authority given to him
by
Page 49 U. S. 312
the Surveyor General of the United States at St. Louis. Witness
further stated that the survey was made according to Mr. Cerre's
directions, and in obedience to the instructions given to him by
the Surveyor General; Mr. Cerre made no particular reconnaissance
of the ground, although personally present, but took the land as it
came; and it was made by the surveyor at the particular place
indicated, the Big Spring, as the source of his claim. Witness
stated further, that the instructions from the Surveyor General
were printed instructions, of which a copy is set out. Among
numerous and detailed instructions referred to by the witness,
there are the following:
"Information given to you by a claimant or his agent relating to
the situation of a claim will govern your operations, provided you
believe, from all the circumstances which come to your knowledge,
that such information is correct; and provided also that it does
not contradict the papers with which you may be furnished. The
position of any point or place called for in a concession, and also
of the settlement or improvement in virtue of which a settlement
claim is confirmed, must be stated in your field notes. The survey
of claims which are confirmed unconditionally, according to a
former survey, will conform thereto, regardless of any excess or
deficiency in quantity, provided the old lines and corners can be
found and properly identified; in which event, the old corners will
be run to, and the true courses and lengths of the several lines,
according to your operations, will be correctly stated in your
field notes; and if the old lines and corners cannot all be found,
you will conform to the old survey, as near as practicable, by
running the courses and distances called for, or to the
intersection of the proper lines, as may be required, making the
necessary allowance for the difference in the variation of the
needle."
"2. The resurveys of claims which are confirmed according to an
old survey, but are restricted in quantity, will be surveyed as
above directed for those not restricted, except that, if there is
any excess or deficiency, it will be thrown off or taken in a line
parallel to that old line of the survey, which the claimant may
direct; or if he fails or declines to give directions, throw off
the excess or take in the deficient quantity on the side which you
think will best promote his interest, being careful to note all the
particulars relating thereto in your field book, and give the
position of the old lines and corners which may be abandoned
because of the excess or deficiency in quantity."
"3. Claims which are confirmed according to the concession,
Page 49 U. S. 313
and have been legally surveyed in conformity therewith, except
as to exactness in quantity, will be resurveyed as the class of
cases last above mentioned."
"4. If the survey heretofore executed of a claim which is
confirmed according to a concession, whether the concession is, or
is not,
special as to locality, but is special as to the
direction of the lines, the proportional length of the different
sides, or the figure of the survey to be made in virtue thereof,
does not conform to these requirements of the concession, the said
survey will be altogether disregarded, except so far as it may be
useful, in cases where the concession is not
special as to
locality, in identifying the situation of the intended
concession to be confirmed, unless the survey was executed and
approved by the proper Spanish officer prior to the transfer of the
country to the United States; in which event, the survey will be
considered as evidence of the changed intention of the authority
making the concession, and will be taken as a part and parcel
thereof."
"5. Claims which are confirmed according to special concessions,
and which have not been surveyed, you will survey in strict
accordance with the terms of the concessions, always bearing in
mind, that where there are no special requirements in the
concession, it was the general practice of the government with
which the claims originated to run them either in squares, or in
right-angled parallelograms of one, five, ten, or some intermediate
or greater number of arpens, by forty or eighty, according to the
size of the tract, or double as long as wide, unless some other
survey or grant intervened and rendered a departure from this rule
unavoidable; in which case, the rule was only so far departed from
as was necessary to get rid of the interference with prior
surveys."
Cerre's claim was of the last class. The land was directed to be
surveyed according to his directions, the surveyor having regard to
the last (and fifth) instruction, with the exception, that the
special spot called for in the concession was required to be laid
down and noted in some part of the survey. When it was made, and
the field notes returned to the Surveyor General's office, and the
description and plat made out in form and approved by the Surveyor
General, it was conclusive evidence, as against the United States,
that the land granted by the confirmation of Congress was the same
described and bounded by the survey; unless an appeal was taken by
either party, or an opposing claimant, to the Commissioner of the
General Land Office. This consideration depends on the fact, that
the claimant and the United States were parties to the
Page 49 U. S. 314
selection of the land, for, as they agreed to the survey, they
are mutually bound and respectively estopped by it. But private
claimants of lands within its boundaries, who were no parties to
the survey, are not estopped, and may controvert its
conclusiveness, so far as their claims interfere with the lands
thus selected by the party, and which were laid off to him by the
United States. We are not called upon to say, nor do we wish to be
understood as intimating, to what retrospective date the
confirmation by Congress of land thus surveyed relates so as to
overreach a claim by purchase from the United States, further than
the case before us requires, which is that lands purchased before
the act of July 4, 1836, was passed, are protected against the
confirmation made by that act.
For the reasons stated, we order the judgment of the circuit
court to be
Affirmed.
For a more perfect understanding of the manner in which a
complete title under the Spanish government was executed, the form
of such a title, translated from the Spanish, is hereto
annexed.
"
Don Joan Ventura Morales, Principal Comptroller of the
Armies, intendant ad interim of the Royal Finances of the Provinces
of Louisiana and West Florida, Superintendent, Subdelegate, Judge
of the Admiralty of the Royal Lands and Domain &c.:"
"Whereas (D. M. D) an officer of the militia, residing in this
city, has appeared before this tribunal, petitioning the grant and
title of one hundred and twenty-six arpens of land, with that front
to the Bayou de los Lobos and the depth of forty, bounded by (Don
F. S.) and vacant lands on the Bay St. Louis, provided they be of
the royal domains, to establish there a plantation and cow pens,
stating that he has taken the proper steps and showing that he has
made the necessary provisions for establishments of that kind; and
having presented the plat of the royal surveyor (Don C. T.),
indicative and figurative of the said one hundred and twenty-six
arpens in front by forty in depth situated in the above-mentioned
place; and having submitted the whole to the fiscal of the royal
finances, and he having made no objection to the demand of the said
(D. M. D.) but, on the contrary, having given an opinion in his
favor, by an act, with the advice of his assessor, dated the 26th
instant; I have conceded the said grant, and I do order that the
title be made. Accordingly, using the power given to this
intendancy, in the name of the King our lord, (whom God protect!) I
do grant to the above-said (D.
Page 49 U. S. 315
M. D.) the above-mentioned tract of land, containing one hundred
and twenty-six arpens in front and forty in depth, situated at the
place called the Bay St. Louis, fronting to the Bayou de los Lobos,
and bounded by the lands of (Don F. S.) and vacant lands, in
conformity to the points and distances marked on the plat and its
certificate, in which is recited the measure appearing in the
docket of said matter for record; out of good-will, and without any
pecuniary consideration in favor of the royal financier, I give him
the whole and direct ownership to the said granted land, for him
and his successors in said lands, with power to him, the said
grantee, to dispose of the same at his will; with power to take
possession of the same, and claim it from this intendancy if there
is any obstacle; and in said land forthwith I place and put him
without any damage to the rights of third persons who may have a
better right to it; with the qualification and condition that he,
the said (D. M. D), to whom we do this favor, and his successors,
shall, as regards such tract of land, fulfill the obligations
imposed upon him by the regulations and instructions made and
published by this intendancy on the 17th of July, 1799, to-wit, the
third, fourth, sixth, seventh, and ninth of said instructions,
conformably to the location, place, quality, and circumstances of
the said granted land; whereof we advise him, that he may know it
and not pretend to be ignorant of it, under the penalties
contemplated in said instructions, with which he shall acquaint
himself. In virtue of which I have ordered these presents to be
drawn under my hand, and sealed with the seal of my arms, and
countersigned by the undersigned notary of the royal finances; who,
as well as the principal Comptroller's office, will register
it."
"Given at New Orleans, 29 May, 1802."
"[L.S.] [Signed] JUAN VENTURA MORALES"
"By order of the intendant."
"[Signed] CARLOS XIMENES"
"Registered the foregoing title from page 41 to 43 of the book
assigned for that purpose. New Orleans, 29 May, 1802."
"[Signed] XIMENES"
"In the principal Comptroller's office the foregoing title has
been registered in the book assigned for that purpose, at folio 10.
New Orleans, 9 of June, 1802."
"[Signed] ARMIDEZ"
"I, Don Carlos Trudeau, Surveyor Royal and Particular of the
Province of Louisiana &c., do certify, that in favor of, and
in
Page 49 U. S. 316
presence of (D. M. D.) and with the assistance of the syndic,
Don Philip Sancier, and the adjoining neighbor, has been verified,
bounded, and limited, a tract of land of one hundred and twenty-six
arpens in front to the Bayou de los Lobos, with the ordinary depth
of forty arpens, measured with the perche of the City of Paris, of
eighteen feet long, measure of the said city; which tract of land
is situated at the place called the Bay of St. Louis, on the
southern bank of the Bayou de los Lobos; joining on the north part
the bank of said bayou; on the south, land granted to Don F. S.;
and on the other sides, by vacant lands of the domain of his
Majesty, by parallel lines running southeast by south. On each
limit has been planted a stake made of pine, driven into the ground
to a depth of two feet; the first implanted upon the bank of the
bayou, and the other at the foot of the high land; at the extremity
of the ordinary forty arpens, I have planted no boundary, the soil
being covered with water and impracticable, as it appears on the
plan on the other side, which exhibits the extent and direction of
the limits &c. This survey has been made pursuant to a decree
of his Lordship the intendant General, dated 15 March last past. In
testimony whereof, I have delivered these presents, with the
foregoing figurative plan, 15 April, 1802. Signed, I the present
surveyor, and registered in the Book C, No. 3, fol. 62, at No.
1514, of the operations of survey."
"I do certify that the present copy conforms to the original.
Given to the interested party to enable him to proceed so as to
obtain the corresponding title of grant in due form."
"[Signed] CARLOS TRUDEAU,
Surveyor Royal"
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Missouri, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court, that the judgment
of the said circuit court in this cause be and the same is hereby
affirmed with costs.
