Majority — CATRON J.
p. 10The United States, Appellant, v. Joseph Lawton, Executor of Charles Lawton, Martha Pollard, Hannah Maria Kershaw, Wife of James Kershaw, et al.
Syllabus
A Spanish .grant of land id Florida, for six miles square, “at: the place called Dunn’s lake, upon the river St. John’s,” is too vague to be confirmed, even with' the additional • knowledge', that the object, of the grantee was to establish ■ ■■ machinery to he propelled by water-power.The river" St. John’s meanders so much that it is near Dunn’s .lake for. thirty-miles. The survey might therefore-commence at any point of this distance with ás much propriety as at any other point.
This concession, cannot be distinguished from various others which have been brought before this court. The land granted was not severed from fhe king’s domain. . It remained. a -floating grantj not recognized by .the government of Spain before the cession, nor by 'this government' since, as conferring an individual title to any specific parcel of land. .
Nór is the grant in this, case aided by ' tyro surveys, one purporting to have been made in December, 1817, and the. other in the spring of 1818.. The first must have been'fictitious, not actually made upón the ground, but merely, upon paper 5 and the second .was too imperfect to he be effectual.
Previous to the act of May 28, 1824, Congress alond could act upon these incipient titles. By that act power was given to the court'to pass a decree for the land, provided its locality, extent, and boundaries could be found. But, • in the ' present case, this cannot be done,
This wag an appeal from the Superior Court of East Florida, under thefollowing circumstances..
Ón the 10th of November, 1817, James Dárley presented the following petition ;to Governor Coppinger.
“ To his Excellency the Governor :
“ Don Jaméis Darfey, a native of Great Britain, with the respect due to your Excellency, says, that with .the view of settling himself
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in this province under the protection of his Catholic Majesty, knowing the'.very great advantages that would result to the commerce of :it from the article of lumber, if machinery for sawing is erected, for sawing for the consumption of the' province, as well as for exportation ; and wishing to'' dedicate h’is attention and funds to this, object, whenever he may be in possession of the necessary right, he asks and supplicates your Excellency. will be pleased to grant to him from this time, in.absolute property, six miles square of land, at the place called Dunn’s- lake, upon the river St. John’s, for the purpose áforesaid of establishing said machinery ; which favor he hopes to merit from the justice'of your .Excellency. St. Au-' gustine, Florida, 10th-of November, 1817.’-’
To which the following response, was given : —
Decree.
u'St. Jlugustine, 10th of November, 1817.
“ Taking into cbnsideration'the benefit and.utility which ought to result to the improvement of - this province by what the petitioner proposes, There are granted to him, in absolute property, the six miles square of land which he solicits for said water saw-mill, and that it may be effected let there be isSuéd to him, from the secretary’s office, a certified copy of tjhis petition and decree, which will serve him as title in form.
Coppinger.’?
On the 21st of'Decemberi-1817, George Clarke, the surveyor-general, gave the following certificate, of survey, accompanied by a plat.
“T, Don George Clarke, captain of -the Northern District of East Florida, and by the government .thereof appointed surveyor-general of said province, do'certify that I have surveyed and delineated for- Santiago-Dafley a square of six miles of land, equal to twentyrthrée. thousand and. four acres,-on the west part'of Dunn’s lake," contiguous to the waters thereof, in its upper part, which lands-were granted to him.by thé government on the ,10th of No-Vember of the present year. Said tract is conformable- to the following plat, and to the copy -thereof, which I keep. Northern District. 21st December; 1817.”
On the 22d of -May, 1819, the grantee filed his- petition, to the Superior Court, of Florida, praying confirmation.
On the Í 2th-of September, .1829, the District -Attorney of the United' States; Thomas Douglas, answered the above petition, denied generally the matters and'things stated in it, of which he required proof, averred that the grant, if made, was in violation of ■the laws of Spain, and. that the governor had no power to make it; that if made at all, it was made after the 24th of January, 1818,
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and antedated; that grafts' for speculation were contrary to the policy of Spain) and void; that the grant, if made, was- upon the condition that Darley would build a saw-mill) which he had not done ; ■ that the grant conferred no right to the soil, but only a right to cut pine-trees for the use of the mill, and averred that Darley was not a subject of the king of Spain at the dáte of the supposed grant, which circumstance, of itself, rendered' the grant null and void,.
On the 26th of May, 1830, Congress passed an act, the fourth section of which enacted as follows : —
“,That all the remaining claims which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled, upon the same conditions, restrictions, and limitations, in every respect, as are prescribed by the act of Congress approved 23d May, 1828,”
On'the 4th of January, 1834, the will of Darley was admitted to probate (he having died at some prior tíme whieh the record does not state), and letters testamentary were granted to Charles Law-ton .as executor.
■' Oh the 23d of July, 1834, the claimant’s death was suggested, and the cause ordered to proceed.in the name of Charles Lawton, executor.
On the 29th of July, 1834, Charles Lawton filed a bill of re-vivor on behalf of himself and the unknown heirs and devisees of the deceased. .
On the'26th of August, 1834, the Attorney of the United States-answered the bill of revivor, denying the right of Lawton to revive the suit, either for himself as executor, or on behalf of the unknown heirs and devisees.-
On the. 16th of June, 1841, a bill of revivor was filed on behalf of Joseph. .Lawton, executor of Martha Pollard, the widow of Jonathan Pollard, late of England, deceased ; of James Kershaw and Hannah Maria Pollard, his wife ; of Robert Mutrie and Sarah Pollard, his wife.; of William Póllard and James Pollard, all of England, children of Martha Pollard, and heirs and legatees of ¡James Darley, s deceased.
On the 10th of July,. 1841, the District Attorney of the. United States filed his-answer in the nátureof a general replication, and on •the 17th of July the cause came up for hearing.
-On the 13th of September, 1841, tlje court pronounced a decree, from Which the following is an extract. ■
Without recapitulating the other .proofs in the cause, it is sufficient for the present to say, that the claimants have made out a' case, which entitles them to a confirmation of the title of the land granted, provided the identity of the land specified in the grant is s.uch as to warrant a decree 'of confirmation ; or, .in other words, if
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the description; of the land, as .contained in the grant,, is such that the.- land, intended can be-identified, located, and laid down by actual survey, according to the calls, and manifest intention of the grant. .
The claimants have put in evidence a ¿Urvey óf a tract of land, made by. George J. F. Clarke (formerly the Spanish suryeyor-general of East Florida), bearing date-the. twenty-first day of December, 1817, and which, with the plat accompanying it, purports to be a survey and plat of the land it estion. But there aré objections to this survey of such a nature as to make it improper that an absolute decree should be made for the' land therein described.
“ First, it does not follow the calls of the grant, even if they can be followed at alb; the grant is for the place called Dunn’s lake, ‘ on the river St. John’s.’. There is as yet no proof that there is such a place ‘ on .the river St. John’s '’; but taking it for granted that there is such a place, which nay be found; this, survey does not appear to be at that place ; it is not 1 on the river St. John's ’ at all.
“ The location, it is true, ap. ears to be on the west side of Dunn’s Lake, and ‘ contiguous to the waters thereof in its upper part.-’ In the absence of any proof as to the' geography of. fhe- country, if it should be said that the court should take notice of the maps of the surveyed part of the territory, as published from the land-office, it will be remark, d that the maps of the country show that a lake, called. Dunn’s lake, does connect itself with the ’ St.’ John’s; but it will also appear that a square .of six miles, bounded- on the east by the upper end of the lake, will not extend to the river St.. John’sand if it was the intention of, the grant.that ;the lands should lie ‘ upon the river. St. John’s,’ such a- location as is set forth in the plat and survey must of course be rejected.-
“ Whether the point of junction between-the lake‘and the’, river is £ the place’ alluded to in the grant, it is not necessary now to determine (nor in fact can.that point-be . determined .without further proof) ;.but if it is there, clearly the survey offered, is not.a survey dr plat of the land granted.
“Secondly. The survey and plat are materially defective • in .other particulars.’ There, is no’ well-defined Corner,..or. permanent monument, mark, or boundary, which is -known and; established, or which can’be found as a starting-point. The plat.shows that the first corner is a stake in the swamp, near the márgin of the lake, but whereabouts in the swamp, or how far from the head or the foot of the .lake, does not appear ; and all the other .corners are represented to. be stakes, but without marks, and their location entirely undefined-; and-the ■ survey does not purport that the lines were ever run or marked ; and even if it was conceded that stakes were set at the four corners of .a tract .six miles square, in that part of the country, in 1817, it. could hardly be supposed that at thijs.time
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they would'furnish any aid to the person who should- attempt to find the tract; but the court cannot disregard the suggestion which has been, repeatedly made in'thesé land cases, with reference to Clarke’s surveys, viz. that they were- not made in fact upon the land, but merely.delineated on paper, particularly where that sug-: gestión is strengthened by the internal evidence afforded by the survey itself. This plat and survey bill might easily have been made by Mr. Clarke without his ever seeing the land, and .in the absence of any proof to show, that any one corner, line, or mark, or boundary of this tract'is now extant, or can be found, it would be very improper to confirm this • survey.
“'It must'not be overlooked in the decision of these land cases, thatialthough the equity and justice of the claim, or the .validity of the grant alleged, is of primary importance, and the first thing to be ascertained, yet the exact location and boundaries of the.tract in' question are equally important, not only to the United ■ States, but to the claimant; and it was one of the • principal objects that- the government had in view, in confiding the adjustment of these claims to this court, by the act-of 1828 and'1830, that the extent, location, , and boundaries of such grants as were found to. be valid plight be clearly ascertained,' and fully and finally adjusted between the claimants and the government,' so mat . the grants found to be valid might,; with precision and accuracy, be severed from the ré- ■ mainder of the public domain, and that the proper officers of the government-might know what lands belonged to the United Statesj . and what might and- could safely be sold by them.
11 This was áll-important to'the correct operations of the land-office, and of -deep concern to the - claimants, and by the act of Congress the decree of this court is made final and conclusive upon the .parties, unless appealed from. To make a decree, therefore, which-merely .settles the right of the. claimant to a certain quantity of land in a certain neighbourhood, or section of the country, .without clearly defining the locality, extent, and boundaries of such land, by proper and, known or permanent landmarks and monu-merits, would seem to be a very incomplete fulfilment of the pro-; visions of the statute, and to fall far short of the objects of the law. The surveys of these grants'should be accurate, and defined by permanent corners*. andthe-¡ intersection of the lines of the tract with the lines of die government surveys should be clearly and accurately shown ; or where this is not entirely-qxracticable, some one or more of the colters of,die tracfor grant-should be clearly defined by a permanent landmark or monument,' and its 'cdtirse and distance-from some comer of the public surveys accurately given, so that the lines of the tract may be seen therefrom without'any. difficulty;'
•e In this case, it may be tttat the survey was. actually made, and that further proofs may show, that the lines and. comers are now to
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be found, and that it is clearly within the calls of the grant'.; but if, bn the pther hand, it should appear that no survey was made, or that no comers or boundaries can be found, or, being found,' that they •are not within the calls of the grant, then it is a proper case for a survey before final décree, and one should be made ; provided, upon proofs to be made respecting the region of country-in which the grant is claimed, £ the place ’ designated in the .grant can be found and identified; but if,, on the contrary, it should appear that the place mentioned in the grant cannot be found, and that the. description is too indefinite for a survey to be- made,-that the description ' lacks identity, or ascertainable locality, then of course the grant must be declared void for want.of identity,- and -the claimants take nothing by-their concession. Forbes’s case, 15 Peters, 184, 185 ; Arredondo’s case, 6 Peters, 691 ; Bucyk’s cáse, 15 Peters, 223."
“With a view, therefore, of enabling the. claimants to produce further proofs on these points, and to identify and locate the land claimed-by actual survey, • or otherwise, the decree must be suspended or postponed, and the cause continued.
J. H. Bronson, Judge.”
On the 13th of November, 1841, the evidence of Mauricio Sanchez, Joseph S. 'Sanchez, and John M. Fontane was filed, in addition' to that of Antonio Alvarez, all of which is as follows : —
Testimony of Antonio Alvarez, ,a witness produced, sworn, and examined on the part of the claimants.
Witness says, I am keeper of the public archives of East Florida; a certificate, with the name of Thomas de Aguilar signed to it, being shown to witness, he says, “ this document was transferred to my office by the land-commissioners. It is in the handwriting of .Thomas de Aguilar, and is- signed by him. The certified copy here produced and filed in.this cause, (by me- certified) is a true, copy of this paper.. ■ Thil certificate of Aguilar .came into my office-in. 1829, or early in 1830. This claim of parley was filed before .the board, of land-commissioners,- 29th November,' 1823» The plat and-survey, it appears, were filed with the commissioners on that day..- I was in the secretary’s office here, in 1817. The paper which we used was from Havana ; we usually got our paper there ; never got American, paper that I remember. .The in-, habitants here were in the habit of using American, or English, or Spanish papér. Paper imported froto the United States Was common in those days.”
Being cross-examined, witness says, the paper on which the Aguilar certificate is ■ written is Spanish' paper. The survey is on American paper. Clarke did not do his business in the secretary’s office.
Testimony of Mauricio Sanchez, Joseph S. Sanchez; and John
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M. Fontane, witnesses produced, sworn, and examined on the part of the claimants.
Mauricio Sanchez, sworn, says, “ I know th.e lake called Dunn’s lake ; have known it about fourteen years. It is on the east side of the St.- John’s river, and about fifty miles southwest of St. Augustine. I know of no other lake of that: name ; it empties into the St. -John’s. The lake is about fifteen miles, long, and about three or four miles wide- I lived on the lake with my uncle, Ramon Sanchez, above six or eight years.- This is Dunn’s lake on the St- John’s,”
Cross-examined by United Staies attorney.
Witness says, “ Froin the river St. John’s you- go about ten miles through a deep creek to the lake. It is about five miles to Lake George. The St. John’s river makes a bend west of this lake, and leaves a deep strip between it and.the river St.. John’s. This strip, of land is sometimes dalled Cows-neck, and sometimes Dunn’s láke neck. There is a swamp'on the west side of the lake, continuing eight or nine miles up from the mouth of the outlet. The spots of hard land, and some swamps and sawgrass,” &c.
By the court.
“ If I liad a grant on Dunn’s lake, I think I should have it lying on Dunn’s lake. The strip, or Cows-neck, is from six to ten miles wide, perhaps more. . The outlet of the lake, by the meanders, is about ten miles in a straight line, perhaps six miles. This outlet is a narrow creek, very deep, sometimes an hundred yards wide,’.sometimes narrower.” - '
Joseph S. Sanchez, being duly sworn, says : —
“ I have known Dunn’s lake for fifteen years. I have resided there, and know it well. It empties into the St. John’s by a creek called Dunn’s creek. The lake is east of the St. John’s ; it is about five or six miles-from the St. John’s. The widest part of the strip.ofland is near the beginning of the1 creek.”
Cross-examined by counsel for the United States;
“ I know of no place on the St. John’s river called Dunn’s lake* except this. Thé. mouth of the outlet in the St: John’s is about seven miles aboye Pilatka. From Hambly’s store bn the St. John’s it is about seven or eight miles across to the lake ; .above there -it is perhaps four or five. Dunn’s créek is about twenty or thirty feet wide, and in going up into the lake, you go in a southeasterly direction, about ten miles by the meanders of- the creek, and about seven miles in a straight line. The lake is about fifteen-miles long, and about three miles wide on an average, and lies nearly north and south. • A swamp extends up the lake’ about half way on the west side.. Then there is some, swamp, some hammock,-and some hard land.
.“ The average width of the strip of land lying'between the lake and river St. John’s is about five- .miles. In some places,- more.
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The widest part of the strip is at the north end of the lake. From the middle of the west side of the lake, I should think it would be about five and a half mile's to the St. John’s, and above that, the average width is about five miles, between the lake and river. St. John’s.
“ By Dunn’s lake on the river St. John’s, I understand, a Dunn’s lake on the St. John’s. But I know nothing about Dunn’s lake.”
John M. Fontane, being duly sworn, sáys : —
“ I have seen a survey made for James Darley, by Geo. J. F. Clarke. I received fifty dollars from Darley for Clarke, for making this survey, by an order from Clarke, about 1820. I understood it was for making this survey.
“ There is a Dunn’s lake which empties into the St. John’s. It is the only one that I know of. I have never been there.”
On the same day when this evidence was filed, viz. the 13th of November, 1841, the court passed.an order to have the land surveyed. Owing to various impediments; this survey was not made until the 1st of July, 1843, nor returned to the court until the 1st of December, 1843. It was made by James M; Gould, the county surveyor of St. John’s county, and upon its presentation, was objected to by the connsel for the United States, because it did not conform to the grant, or to the calls of the grant. It was, however, allowed to be received in evidence, subject to the objection, of the-counsel for the United States, and without, prejudice.
On the same* day when the survey waa returned, viz. the 1st of December, 1843, the counsel for the claimants offered the deposition of James Pellicier, taken under commission, which was read in evidence. The testimony and answers of the witness in this .deposition were objected' to by the counsel for the United, States as being irrelevant and improper, and the whole evidence objected to as being incompetent. The counsel for. claimants said, that he offered the deposition to show that there is such a tract of land, and to identify and locate it. The deposition was received, as tending to show that there is such.a tract of land, &c.,.but subject to the objection of the counsel of the United States, as to its relevancy and effect.
The deposition was as follows : —
Interrogatories to be propounded to James Pellicier, a-witness in the above-entitled cause, and to be taken before George R. Fairbanks, Esq.,.clerk, and to be used in evidence on the trial thereof.
. First. Were you or ’ not acquainted, with James Darley -in his lifetime ? • Where did he reside, previous to the year.. 1817, and was he or not a Spanish subject ?
To the first interrogatory witness answers : —
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“ I was acquainted with James Darley in his lifetime. He resided in the city of St; Augustine, previous-to the year. 1817 ; he-was a merchant at that time ; Í believe that Be was a Spanish subject, and have no doubt of it.”
Second. Have you or not any knowledge of. a concession of land made by the Spanish government, to the said James Dárley, on Dunn’s lake ?
To the second interrogatory he replies : — .
“ I understood from the said James Darley, at that time, that he had .received a grant of land from the Spanish government, situated on Dunn’s lake. I think I so understood from him about the early part of 1817, or the early part of 1818,1 am not sure which. The quantity I think was six miles square, ■ granted for a mill-seat, I think. • It was a fact’ generally known in the neighbourhood where I lived, at Matanzas.”
Third. Do you or' not know of the survey of a tract of land on Dunn’s lake, in favor of James Darley ? If you do, say in what year that survey was made, who was the surveyor, and who the Chain-carriers ? Were you, and-who else were,, present at this survey; and what was the number of acres to be surveyed, as near as you can recollect ? . • .
To the third interrogatory he ansv/ers —
•u In. the year 1818,1 think in the early part, between the middle of. March and the. middle of April in that year, I was. employed by Mr. James Darley in assisting him to make a survey, of a tract of land claimed by him' on Dtmn’s lake. Robert McHardy was the surveyor employed. Two black men, one called George Bulger, belonging to Mr. Bulger- of St. Augustine, and Peter Survel, a iree black mulatto,, were-the chain-carriers,. I sometimes carried the compass,' apd sometimes the chain, as Mr. McHardy directed me. Mr. Gibson of Charleston', and Mr., Alexander of Charleston, weré both present at said survey, and I understand are neither of- them living. I cannot recollect the number of acres to be surveyed ; I think it was six miles square.”
Fourth. 'State, where* the survéyor commenced his survey, whether he made any. marks, and what marks, and how far the survey extended, and what prevented' the surveyor from extending his survey further. State all the particulars', and.what marks, if any, you made on the line.
To the fourth interrogatory, witness answers -—
“ The surveyor commenced his survey on the edge of Dunn’s lake, at the south end of Co.wen’s old field, as it was called by the guide, Peter Survel we run - the line from thence,, from three quarters of a mile to a mile and a half, west from the lake, and blazed the trees with one or two chops' above the blazes ; these marks.were made by me. And then, on account of some misunderstanding between Mr. Darley and Mr. McHardy, the surveyor,.
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the survey was stopped. The misunderstanding arose from Mr. - McHardy’s wishing to see the order’ of survéy, which Mr. Darley refused to exhibit to him, although he said he had it with hini; we then broke tip the survey, and went back to Mr. McHardy’s, on the Tomoka.”
Fifth. Say if it was the north or south, line' that McHardy surveyed'.
To the fifth.interrogátory witness répliés : —
“ The line surveyed, by Mr. McHardy was intended for the north line of the tract.”
Sixth. Were you or not with James M. Gould, esquire, at the time he made a recent survey of a tract of land as claimed by the heirs pf Dárley ? State whether or not.you pointed out the starting-point of this survey was it the' same at which McHardy commenced ; did you see any mark there, such as you judged to ..be the same that was made by McHardy, or not ?
To the sixth interrogatory witness .replies : —
“I was with James M. Gould, esquire, at. the time he made a recent survey of a tract of land as claimed by the heirs of Darley, I showed RJr. James M. Gould the same point at which we had. commenced the survey, when I was with Mr. -McHardy, I saw and pointed out to Mr; Gould the same marks which 1 had made when I was with Messrs.'Darley and McHardy. I showed him a blazed tree, as the starting-point.”
Seventh;- Did you or not see other marks ? State all the . particulars. •
To the seventh direct Interrogatory witness says : —
“I saw several blazes about the woods, but no other surveyor’s marks. I did nothing more than to show them thbse old marks which I had made.” ■
Eighth. State any other facts within your recollection.
To the eighth arid last direct interrogatory witness says : —
!C That I .do not know any other matter or thing.pertinent to, or relatirig to, the subject-matter .of these interrogatories.”
James Pellicier. ■
. Cross-interrogatories to be propounded on behalf of the United States to James Pellicier,.a witness for the petitioner in the above-entitled cause.
First. If you say that you know James Darley, please state whether he is now alive 'or dead, when and-where he died, and his ’age at the time of his'death, and your age now.
To the first cross-interrogatory witness replies : —
I know James, Darley. He died in St. Augustine,, in the summer of 1832. -I’.do not know of his age at the time he died ; he must have .been, between forty-five and fifty years of age, when he-died.- I am nearly forty-seven years of age now.”’
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Second. Where was said James Darley born ; -was he not ,bom in Scotland, or in some other foreign country ?
To the second cross-interrogatory witness answers : —
. “ I have heard Mr. Darley say that he was bom in England ; have often heard him say that he was of English birth.” •
• Third, if you say'that said James Darley was a Spanish subject, state how you know that fact; do you know it'.of your- own knowlr edge ?
To the third cross-interrogatory, witness answers : —
“ I have no other knowledge of James Darley being a Spanish subject, than from having so understood from himself, and from the fact of his enjoying liberties and privileges which-only. Spanish subjects were-permitted by the laws of the province to enjoy ; he was reputed to be a Spanish subject.”
Fourth. If you answer the second direct interrogatory in the affirmative, please state how you obtained such knowledge; was it not from report or hearsay, or the statements of said James Darley himself ?
To the fourth cross-interrogatory, witness says : — •
“ My answer to the second direct interrogatory embraces all my knowledge on the subject, and is- as full as I can make it.”
’ Fifth. If you answer the third direct interrogatory in'the a£5rm-ative, please state how you obtained -your knowledge of said survey ; was it from report or hearsay, -or the statements of-the sáid James Darley himself ? Did you 'assist b maldng a' survey for said James Darley, at Dunn’s lake ?, If you did, state when- and .who was the'surveyor, whether you khow this of your own knowledge or from hearsay. .
To the fifth cross-mterrogatdry, witness says : — .
“ I obtabed my knowledge of the -survey spoken of, -by hating been present át,' and assisting b malting,, such survey at Dunn’s lake as before spoken of.. It was b the early part of-1818 ; it might have1 been' b 'the early part óf 1817''; it strikes me that it was in the early pár't of 1818. Mr. McHardy I know of my own knowledge Was the surveyor.”
Sixth. If you state who were the chain-carriers, state whether you know this fact ; do you know it of your own knowledge, or only from hearsay, or the statements of said James Darley himself?
To the sixth cross-interrogatory, witness says : —
“I know who were the chain-carriers of my own knowledge,"having been present at, and assisting in, the survey.”
• Seventh. If you state where the said surveyor commenced his survey, or testify as to other matters inquired of in the- fourth direct interrogatory, please state' how you know that fact; were you pres^ •ent at the making of the said survey ?
To the seventh cross-interrogatory, witnéss answers : —
“ I was present at the making of said survey, and know where tne
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survey commenced from my own knowledge ; the other portions of the fourth direct interrogatory are fully answered in the answer to that interrogatory.
Eighth. .How old were you at the time when you say the said survey wás made ? was said James Darley present at the making thereof ? who was present ? State the names., (and age as near as you can recollect) of all the persons who were present.
To the eighth cross-interrogatory,.witness says': —
“ I was about the age of twenty-one years when that survey was made; the said James Darley was present at the making of said survey, and also a Mr. Gibson, and a Mr. Alexander of Charleston, and the two chain-carriers, and myself, and Mr. McHardy, made up our party. Messrs. Gibson and Alexander took no part in the survey ; Mr. Gibson was about twenty-five years of age; Mr. Alexander must have been full fifty years of age, or upwards ; George Bulger must have been about forty years'of age, and Peter Survel, the other chain-carrier, must have been about thirty years of age ; Mr.. McHardy was. about forty years of age, and Mr. Dar-ley, from thirty to thirty-five years of age, .at that time.”
Ninth. If you answer the sixth direct interrogatory in the affirmative, please state what marks you pointed out to the said James Gould, Esq., and how you “judged any of said marks to be the same that were nade by the said McHardy.-
To the ninth cross^interrogatory, witness answers : —
I pointed out to Mr. James M: Gould the blazes, with one or two chops above ; I think two chops ; I know them to have been the sathe marks made by me, on occasion of the survey made by McHardy ; I judged them to be the same marks, from having made them, my self,, ami from the fact- of no other surveyor at that time using the same marks, besides McHardy ; these were the marks always made by McHardy in all his surveys-,
• Tenth. -What were said marks ? describe them, and also all the other marks that you there saw, particularly ; were .there any letters amongst them ? If there were, state what letters.
To the tenth cross-interrogatory, witness answers :—
■“ Said marks made on said survey were such as I have just described, a blaze with one or two chops about it; I think two chops; we made no other marks, except these blazes and chops. I saw. no surveyor’s marks other than these, at that time or since ; I never saw any letters at or about that place.”
Eleventh. Is there any other matter or thing Within your knowledge, material or pertinent to the issue in this case j if there is,' please' to answer the same as fully and particularly as though you weró- now thereto specially interrogated ?
To the eleventh cross-interrogatory, witness answers : —
“ There is no other paatter. or.thing within niy knowledge, material or pertinent to the issue in -this cause. ”
James Pellicier.
p. 22
The claimants also offered the evidence "of James M. Gould, who made the survey, which was as- follows : —
“ The survey made by me, and. now before me, is a correct survey, according to the certificate appended thereto. I'took with me the maps from the land-office.
“ I found 'the marks of the government surveys, the sections and township lines ; I took with me as' a guide Mr. James Pellicier ; I found trees marked, running nearly the same as the northerly line of the tract leading from the lake Out in the.woods ; they, were old' marks ; Mr. Pellicier pointed out to me a trée with old marks, and stated that within a hundred yards of that tree was -the line of the grant, that is, the beginning corner ; could not tell whether the marks on that tree were surveyor’s marks or not;. Pellicier represented it as. a starting-point, or as a tree which he recalled to mind as indicating about where the starting-point was. He did not state to me that it began at a stake; he.did not positively point out any tree as the starting-point; he said the tract was south of that tree. I then sought .for a line, and found the line spoken of; I did not find the line running from that tree, I found the line I suppose about a hundred yards south from th it tree ; the marked' line of trees pontinued for half a mile from the lake, until we -came to a pond ; I 'found no old marks beyond and westwardly of the pond ; my line .varies a little from that-line ; it varies, however, several degrees ; that old line was recognized by Mr. Pellicier as the line he had assisted in running; he stated that they were marked with a blaze and two chops, and I found trees marked with a blaze and two chops, which were .old marks ; I did not look for any other trees marked, after I had found the old line; I saw po other old marked trees ; they varied a little from the line I run-; it bore a little more northerly than mine ; I fan(the libe I did, because it was the course called for by G.eo. J. F. Clarke’s survey ; the line varied northerly per-, haps ten degrees ; I ran. as I did, moreover, because the order of court directed me as nearly as possible to conform to Clarke’s survey.”
On the 28th of June, 1844, the court pronounced an opinion and decree, from which the following is an extráct.
“ It cannot be overlooked, in examining the papers thus far, that the evident intention of the Spanish governor was, that a.saw-mill should be erected on the lands thus granted, and that that was the sole and only consideration for the grant; and it is singular, that the governor "did not, as in all other cases of mill grants, make the building of a: mill, a condition.precedent to the giving of an absolute title ; for' I believe there is ño other case of a mill grant, by the' governor of East Florida,, where the absolute title was.not made to depend upon the building of the' mill, unless other considerations. entered into the grant; but it seems that for some■ reasons best
p. 23
known to himself, Governor Coppinger departed from the usual form,, and dispensed with the usual conditions, inserted in such grants., and gave the land in ‘ absolute property ’ to the petitioner, trusting to his good faith to build the mill, .which the governor himself sets forth as the sole consideration of the grant. If, therefore, the governor was willing to take that matter upon trust, and to make the grant absolute, and without condition, as it seems he did do,- it is not within the province of this court to say that the grant is void, because the condition was not complied with, or the consideration for which it was made was not in fact rendered.
According to the principles which hate heretofore governed this court in the adjudication, of these land cases, the. proofs seem to be sufficient to warrant a confirmation of the grant, and upon the testimony exhibited I consider the claimants entitled to a decree of confirmation ; and after a careful examination of the recent survey, made by James M. Gould, and the testimony connected therewith, I think that the location and boundaries of the tract, as defined in that survey, are according to the calls of- the grant; and all things considered, it is, perhaps, as fair and proper a location as can well be made.
“ It is manifest that Clarke’s survey or location,, or that which was pretendéd to have been made by him (and of which a plat has been given in evidence) , could not be found, and I presume for the obvious reason that no stirvey was in fact ever made by him. The recent survey, therefore, could not follow his old survey, but .the courses of the different lines of the tract, adopted by the surveyor recently,.are the [same] as Clarke’s ;.ahd on,an inspection of the map of the adjacent country,’ I think that the location and Survey, as made hy Gould, not only follows the calls-of the grant in all essential particulars, but corresponds, so far as it can, with Clarke’s pretended survey.
“ The grant is therefore confirmed,' according to the recent survey of Gould, and a decree will be entered accordingly.
“ June -28th, 1844. J. H. Bkonson, Judge.”
From this decree the United States appealed.
The cause was argued. at the preceding term by Mr. Mason (then Attorney-General), for the United States, and by Mr. Yulee, for the appellee, and held over to the present term under a curia.
Mr.. Mason, for the United States,
made four points.
1. That the petition should have been dismissed, because, from the neglect or delay of the claimant, ft was not prosecuted to a final decision within two years.
2. Because there is no pr.oof in the record that the plaintiffs are the devisees of Darley, the original .claimant.
p. 24
3. Because the claimant never complied, with the condition on which the concession was made, and the United States • is not bound, by the laws of nations, the treaty-, with Spain, or our own laws, to reeognize and confirm such an inchoate claim, without a performance of the condition upon which the grant was made..
4. If this obligation exists, the calls of the grant are so indefinite and uncertain, that a location cannot be made agreeably to such calls.-
(All. this argument is omitted except that, upon the fourth point, as the decision of the court rested entirely upon that.)
IY. But if the United States were bound to recognize and confirm the claim without the performance of the condition, and.with- . out any consideration, the .question recurs, Áre the calls of the grant so definite and certain that, a location can be made under it agreea- . bly to such calls ?. If they .are hot, the claim must be rejected.
The grant or concession is for the. six miles square of land which the petitioner had solicited. Darley, in his petition, asked foi “ six-miles square of land at the place called Dunn’s lake, upon the St. John’s river.” .
There, is no such, place ¿a Dunn’s lake upon the- St. John’s river. The land claimed was hot. surveyed before the transfer of the province to the United* States.-
. The survey of G. J. F. Glarke purports to have, been made on the 21st of December, 1817; but it does not follow, the calls of the concession, and is evidently what is called an office survey,-and not - an actual survey; and'so the court decided.
The one commenced by McHardy was not completed^ and for a reason which throws much .suspicion over that transaction viz. because Darley, the grantee, .would not show to McHardy, the surveyor, the order of the governor* for making the survey, although he ' said that he had it. • See Pellicier’s testimony.
McHardy was a‘private- surveyor, and.had.no right to survey public lands without a special order. And the refusal of Darley to show him such an order leads to the presumption, either that he had none, or that Darley had- taken Mr. McHardy to the wrong place. This proceeding, therefore, so far from aiding Gould’s late location, makes strongly against it.
• Dunn’s lake is fifteen miles long and three or four wide. It has, therefore, at least thirty-six miles c-f. border. It is not on the St. • John’s river, but from'seven.to ten miles, distant from it.
On which side should .this land be located, — east, west, north, or south ?. The concession does not- show.
The, settled doctrine in respect to these ■ Florida grants is,' that grants for lands, embracing a wide extent of country, or within a large area of natural or artificial boundaries, and which lands were not surveyed befora the 24th January, 1818, and are. without such designations as will' give a. place of beginning for a survey,- arejiot lands withdrawn from the mass of vacant lands ceded to the .United
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States in the Floridas, and are void as well on. that account as for being so uncertain- that locality cannot be given to them.
This doctrine was held in Buyck’s case, 15 Peters,'215,, which was for a grant Of lands <c attylusquito,” south and north of said place. Also, in O’Hara’s case, 15 Peters, 275.
And, again, in Delespine’s case, 15 Peters, 319. And also in Forbes’s case, 15 Peters, .182, “which was for a grant-of land in the district or bank of the river Nassau.”
And, again,, in' the case of thé- United States v. Miranda, 16 Peters, 159, 160, and 161, where, all these cases are cited and affirmed.
It is. believed,-therefore, that this grant is void, for the reasons above stated.
It was not made in such a way as to distinguish it from things of a like kind ; nor has the identity of the grant been shown by extraneous evidence. O’Hara and others v. the United States, 15 Peters, 283.
Mr..Yulee, for the ■ appellees.
(All of his argument is also omitted, except upon the 4th point made by the Attorney-General.)
2. It is next objected by the Attorney-General, that the grant miist be. rejected for indefiniteness in its location.
. It is not half as indefinite as many .of the cases of Florida grants confirmed by this court. - But the fact that it was locatéd prior to the 24th January, 1818, by Clarke, a public officer, whose province it was to make location of. grants, gives it certainty and definiteness of locality, if even the terms of .the grant were in themselves indefinite.
The survey adopted by the court below is stated by the court to conform u to the calls of the grant in all essential particulars ” .; apd Gould, the' surveyor, states that, as directed by the court, he made the survey' “ to conform, as nearly as.possible, to Clarke’s survey.”
The testimony of Joseph S. Sanchez, at' the time United States marshal of East Florida* and that of “Mauricio Sanchez, togethertwith an inspection of the-map, will show that there is no difficulty in 'making the location under the grant. Dunn’s lake is a sort, of adjunct of the St. John’s'river, between which lake-ahd the river there lies a strip of. land of an average width of about five miles, being in some places six, in others more of less. A location on this strip would- be strictly and literally as described in the grant,at the place called Dunn’s lake,,on the river St. John’s.”
The Attorney-General erroneously states Sanchez’s testimony, in fixing/the lake at from.seven to ten miles’ distance.from.the river. One of the Sanchez says it is from- six to ten, the other fthe bést informed) says, “ the average width of the strip of. land lying between the lake and the river St. John’s is about five miles,’’ and the survey of Gould shows that the plat extends from the river on One line to the lake on the. opposite.
p. 26
It is unnecessary to refer to the authorities cited by the Attorney-General. The.local court, familiar with the localities, decides that the survey is. conformable with the calls of the giant; the surveyor of the county so also declares; the inspection- of the map will confirm their judgment; and no person familiar with the topography of the vicinage will doubt for a moment that the grant is capable of ready location.
delivered the opinion of the court.
We are called on. to ascertain .thé correctness of an opinion and decree pronounced by the Superior Court of East Florida, by which there was confirmed to certain claimants,- through James Darley, a tract of land containing 23,040 acres. The only question proposed to be examined, regards a location of the land by the decree. Darley solicited the governor of East Florida, in 1817, to grant to him in absolute'property six miles square of land, u at the place called Dunn’s lake, upon the river St. John’s” ; and the grant was. made as solicited. This is the entire description. The river .St. John’s is one of the principal waters of East Florida; and a principal object in its geography, and may therefore be judicially noticed, ás -minor objects have been, in our decisions affecting Spanish claims in the same section of country. • The river is of considerable length, and runs through several lakes ; there is no place on the. river, however, known as Dunn’s lake, so far as we are informed, by the proofs or otherwise ; but there is a considerable lake, well known as “ Dunn’s lake,” lybg near the St. John’s ; it is proved to lie east of the river, nearly parallel with it', and about five miles from the river on an average. The lake iá about fifteen miles long, and three or four miles widé. From the description of the. land solicited, it is difficult to say whether the petitioner asked to have it laid off on the river or on the lake, but the purpose for which the grant was made decides the ambiguity of expression. The object was the erection-of machinery for the sawing of lumber, and the advancement of commerce in the province, from the article of lumber ; and therefore the land was solicited to be laid' dff on the river, for the purpose of establishing machinery, to be propelled by water power. Giving the most favorable intendment to the locality described in the petition and grant, still we can only say, .that the grant was for land on the river, opposite tó the Jake ;. and by further indulging a fayor-able construction, *> as. to limit the territory referréd to'within narrower bounds, hold that the' survey should be made on that side of' the; river next the lakh, and between the lake and the river.This-was obviously the view-tafeen, of the matter by the experienced judge of the Superior Court,' and in.which we concur.
. • The St: John’s river in its genéral course of. northeast makes a large bend ,to the west, opposite to the,upper end of the lake, and there passes;through Lake' St. George, and.by.its meanders lies op
p. 27
posite to each end and one side of Dunn’s lake. A copy of the plat filed in die land-office, representing the township surveys of that locality, is in the Record as evidence, from which these facts appear ; and also, that the St. John’s lies opposite. Dunn’s lake, by its various bends, for a distance of some thirty miles. This is ■ the base line, on which the survey might front. Then, again, by the Spanish ordinances existing in Florida and governing such surveys, the front on the river could not exceed one-third of . the longitudinal extension back; nor does the description- of “ six miles square” alter the rule' prescribed by the general law. Sibbald’s case, 10 Peters, 313; United States v. Hanson, 16 Peters, 201. Governed by these rules, .and with this extent of territory before it, the. Superior Court was called on to identify the land granted, and render, a decree. The difficulty lay in finding a point at which to commence the survey : from .the face of the grant this could not be done, and therefore the court sought aid from the following additional circumstances. Ip December, 1817, Geo. Clarke, the surveyor-general of the province, filed a plat and certificate of survey in his office, purporting to have been made of this grant; but no proof was offered to show that any such survey had ever been made by Clarke on the ground, and the Superior Court expresséd its apprehensions that the survey was fictitious, as appears by the opinion found in the1 record ; yet, as it mignt turn out otherwise on search being made on the ground, and aS the survey might reasonably conform to the calls of-the concession, should landmarks be found, a search and resurvey was ordered, and one was, made and returned to the court by Gould, corresponding as near as might be, in the judgment of the surveyor, to the lines laid down on Clarke’s plat, at the upper end of Dunn’s lake. But no line-marks were'found that had been made by Clarke, and his. plat and certificate^ proved to be merely fictitious ; his work not extending beyond what he had done on paper. As no aid could be derived from this source to direct .the surveyor, Gould, when in the field, he resorted to another; it was this. In the spring of 1818, Darley had-employed McHardy, a private surveyor, to lay off the six miles square of land, with the. aid of Darley, and where he was present. They commenced at the head of Dunn’s lake, and run and marked a line about a mile, and then disagreed4 as to the propriety of making the survey as proposed by Darley; for what particular reason does not appear. - This was all that was ever done in the field previous to the time Gould went on the ground, in July, 1843. Gould took with him Pellicier, who assisted McHardy in marking the line in 1818, for the distance of the mile above spoken of; and finding the marks at that point, Gould commenced the survey on which the decree is founded, and laid off the grant in a square form of six miles to each side, fronting on Dunn’s lake, and extending to St. George’s lake, through, which the river St. John’s passes. The survey has no connection with the St. John’s river, further than that
p. 28
at its southwest corner it reaches, to the extent of about one mile, the margin of Late St. George..
In the first place, we are of opinion, that the fictitious plat and-certificate of Clarke can have no influence in fixing the identity of the land granted; nor, secondly, can any consideration be accorded to the line-marks made by McHardy in 1818 ; and, therefore, we are compelled to resort to the.face of the concession for a description that will identify the land granted. .And here, some legal principles interpose themselves for our government; the first of which is, that the. powers of the United States courts are conferred'by acts of Congress, and cannot extend beyond the powers conferred. Previous to the passing of the act of May 26, 1824, conferring the jurisdiction Jon the courts to adjudge incipient titles, such as the. present is, the1,political power could alone finally pass on them, and Congress uniformly did. so. By that act the courts were invested with’the jurisdiction that Congress had previously exercised ; but’ to an extent considerably' limited. The governing rules of adjudication, as • prescribed, aré found in the second section of that act; first, — “ The courts shall.have full power and authority to hear and determine all questions in said cause relative to the title of the claimant.. Second, the extent, locality, and boundaries of the said claim,” &c. And by the sixth section, on a decree being had; and a copy thereof being served on the surveyor-general of the district, he shall survey the land decreed, for ■ which a patent shall be issued by the President to the claimant.' The “ locality, extent, and boundaries,” the court must find, before it can make an effective decree ; and if these cannot be found, no de'cree can be made: for any specific piece or parcel of land. The Superior Court had no power to grant land ; nor Had it any'- power to' decree an equivalent for land that could not He identified ; so this court has at. various times held ; as in the cases of Forbes (15 Peters, 184),'of Buyck (ibid. 223), and in several other cases.
The court, not b.eing enabled, in this instance, to derive any assistance from public acts; beyond the face of the grant, nor authorized to grant an- equivalent, has presented to it a territory some thirty miles long, on.the margin of the river St; John’s, at any one point in. .which distance the survey, might - be commenced with equal propriety that it might be at any other point; it follows, that the description, when applied to' the facts, is too vague .and indefinite for any survey to be made,-and that, therefore^ the claimants can take nothing under the concession ; and that i't is our duty to order ihé decree of 'the Superior Court of East Florida- to be reversed, and the petition to. be dismissed.
.We.would remark, in.addition, that this concession in its leading features cannot be distinguished from' y.arioüs others that have heretofore .been brought before this court for. adjudication, where no specific land was granted, or intended tó be granted ; but it was left
p. 29
to the petitioner to have .a survey made of the land in the distript referred to by the concession, by the surveyor-general of the province, in dub form, on the ground, and to cause the plat and certificate of such survey to be recorded, by the surveyor-general, by which additional public act the .land granted was severed from the king’s domain, but remained part of it until the survey was made and recorded. Until this was done, the warrant was a floating, warrant of survey, not recognized by the government of Spain before the céssion, nor by this government since, as conferring an individual title to any specific parcel of land on the petitioner; so this court in effect held in the case of Wiggins (14 Peters, 351). From the time that such claims first came before this court, .they have not. been deemed as coming within the cognizance of the courts of Florida, because the 8th article of the treaty'of 1819 did not embrace them ; it only provided, “ That grants of land tríade" by his Catholic Majesty, or hy his lawful authorities, should be ratified and confirmed to the persons in possession of them, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty.” Actual manual possession has never been required to give title, but such identity must be established as to enable the courts tp ascertain with reasonable cer.tainty where the land lies ; as wás held in . Hanson’s casé (15 Peters) and others. And this may be shown either from the face of the grant, or by a legal survey made by the surveyor-general in conformity to the grant, during the time hé had power to make such .surveys.
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 the opinion of this court, that the claimants can take nothing under tfie concession in this case; whereupon, it is now here ordéred and decreed by this court, that the decree of the said Superior Court in this case be andthé same is hereby reversed and annulled ; and that this cause be and-thé same is hereby remanded to the said Superior Court, with directions to dismiss the petition of the claimants.