McMicken v. United States

delivered tbe opinion of tbe court.

Tbe claim to lands in this case originated as follows: On tbe 17th of December, 1798, William Coleman, an inhabitant of New Feliciana, within the bounds of the present State of Louisiana, east of tbe Mississippi River, applied to tbe Spanish governor-general for a grant of six hundred and ten arpents of land, for a plantation and settlement, in the district of Baton Rouge, three miles from tbe Mississippi. A certificate of tbe local surveyor was annexed to tbe application, certifying that there were vacant lands in the district of St. Helena, on tbe west bank of tbe Tangipahoa River, beginning at tbe thirty-first parallel of latitude (the boundary line of tbe United States), in which could be found the arpents front which the petitioner asked for, excluding whatever might be in the possession of actual settlers. The place thus indicated was about fifty miles east of the Mississippi. To this application Grandpré, the surveyor of the district, added a. further certificate, dated Dec.

“New Orleans, Jan. 2,1799.

“ The surveyor of this province, Don Carlos Trudeau, shall locate this interested party on four hundred and ten arpents of land, front, in the place indicated in the foregoing certificate, they being vacant, and thereby not causing injury to any one, with the express condition to make the high-road and do the usual clearing of timber in the absolutely fixed limit in one year; and that this concession is to remain null and void if at the expiration of the precise space of three years the land shall not be found settled upon, and to not be able to alienate it within the same three years, under which supposition there shall be carried out uninterruptedly the proceedings of •the survey, which he (the surveyor) shall transmit to me, so as to provide the interested party with the corresponding title-papers in due form.

(Signed) “Manuel Gayoso de Lemos.”

This is the only title presented, and neither survey nor settlement, nor improvement of any kind, appears ever to have been made on the part of the petitioner or any one claiming under him. The only thing done by him in that direction was to procure from Pintado, the local Spanish surveyor at Baton Rouge, on the 26th of February, 1806, after the country had been ceded to the United States, but before this pai-t had been surrendered by Spain, an authority to one Ira C. Kneeland, a deputy surveyor, to survey the tract according to certain general instructions (which do not appear), specifying, however, that it was understood that the warrant was for a certain number of arpents in front, and that the depth ought to be forty arpents, or four hundred perches of Paris; which would make the tract contain sixteen thousand four hundred arpents, the quantity now sought to be recovered of the United States. But nothing was ever done by Kneeland, and the prosecution of the grant seems to have been abandoned by Coleman and his assigns until long afterwards. Grandpré himself, in 1806 (hav

On the 16th of September, 1814, he assigned his right to the land to one Charles- McMicken, under whom the appellant’ claims as devisee. But neither did McMicken present any claim to the commissioner.

Under the various laws extending the time for presenting claims several other reports were subsequently made by the commissioners for the St. Helena district west of Pearl River; and finally, under an act passed May 26, 1824 ( 4 Stat. 59 ), additional claims were received in that year, and a report was made in the January following, in which the claim in question first comes to notice. The petition in this case states that it was presented to the commissioners on the 26th of December, 1824. With various others, it was rejected by them on the ground that “ the claimants had not complied with the requisitions of the law as regards either habitation or cultivation.” Amer. State Papers, Public Lands, vol. iv. pp. 438, 443. This report was confirmed by Congress by the act of May 4, 1826. 4 Stat. 159 . In 1846, McMicken instituted suit in the United States District Court of Louisiana,' against the United States, under the provisions of the act of June 17, 1844, for the confirmation of the grant; but this suit was not prosecuted when called up for trial, and was dismissed, and judgment entered for the United States. In March, 1873, the present suit was brought under the act of June 22, 1860, entitled “An Act for the final

Two questions arise in the case:, first, whether the petitioner has shown any derivation of title to himself; and, secondly, whether the claim is a valid one.

The petitioner claims as devisee of Charles McMicken, under his will, bearing date in 1855, which is set out in full in the record.. An inspection of this will shows that the tract in question was not named in it, nor devised in any way. It mentions various other tracts in Louisiana belonging to the testator, but not this one. It would seem that McMicken had abandoned all idea of establishing the validity of the claim. As the appellant does not pretend to have any other title than that of devisee under this will, it is difficult to see how his petition can be sustained. If this were an action of ejectment, there could be no question on the subject. But it is contended on the part of the petitioner that whether his own title be properly deraigned or not, the court, if satisfied of the validity of McMieken’s title, might make a decree in favor of his legal representatives, for the benefit of whom it might concern. A decree in this form is often made against the government in these land cases, when a title is satisfactorily established, and the parties prosecuting it connect themselves in some way with it, so as to show some real interest to be protected. Castro v. Hendricks, 23 How. 438 ; Brown v. Brackett, 21 Wall. 387 . But a mere stranger to the title can hardly ask the court to go that length. It is not for every one who chooses to take up the prosecution of such claims, without any connection whatever with the title sought to be established.

But the more important question in this case is that relating to the validity of McMicken’s title to the land.

We do not understand that the act of 1860 was intended to make any claims valid which would not have been,so before, if the government making the grant had had the right to make it. The objection of want of title in the granting power was removed by the act, as to all grants made by a government in possession which were otherwise sustainable on the principles of

The question then arises, whether the decision of the commissioners in 1824, with regard to this claim, was not correct. The title was nothing but a warrant or permit to survey, occupy, and improve the land, with a view to a grant when this should be done, and with an express condition to be void if not done within three years. Such warrants or permits have invariably been respected by our government, whenever there has appeared any bona fide attempt to perform the conditions, or any plausible excuse for their non-performance. But where no such, attempt has been made, and no excuse is offered for not making it, the claim has been disallowed. Under such circumstances it would be simply asking the government for a gratuity, a donation without the slightest consideration, to seek a grant of the land. The government does not stand upon formal conditions. It does not demand that there should have been an actual survey,- if the land can be otherwise identified. The act of 1860 expressly gives relief not only in case of “ orders of survey duly executed,” but where there has been “ any other mode of investiture of title, by separation of the land from the mass of the public domain, either by actual survey, or definition of fixed natural and ascertainable boundaries, or initial points, courses, and distances, by the competent authority prior to the cession to the United States.” The present case may perhaps come within this category. The description in the warrant, aided by the usages of the Spanish government with regard to surveys in Louisiana, may admit of definite identification on

These propositions will be corroborated by a reference to the laws which have been passed and the proceedings which have been taken in relation to French and Spanish titles in Louisiana.

That province was acquired by the treaty with France of April 30, 1803.' Spain had ceded it to France by the treaty of St. Ildefonso, on the 1st of October, 1800; but did not deliver possession of it until after it was ceded to the United States. That portion of the territory west of the Mississippi, including New Orleans, was surrendered to our government on the 20th of December, 1803 ; but Spain retained possession of the remainder, east of the Mississippi, for several years longer, under the pretence that it belonged to West Florida, and made many grants of land in that time. The United States did not acquire entire possession of the country till 1813, though portions of it were occupied in 1810. Amer. State Papers, For. Belations, vol. ii. pp. 582, 575; vol. iii. p. 397; and Act of Congress, Feb. 12, 1813, 3 Stat. 472 . The treaty with France required that the inhabitants should be protected in their liberty, property, and religion. In carrying out this stipulation the United States repudiated the grants of land made by the Spanish government subsequent to the treaty of St. Ildefonso, except when made in accordance with the known laws, usages, and customs of that government; which laws, usages, and customs had special reference to the colonization and settlement of the lands, and not to a sale of them for the purposes of revenue or. speculation. Whilst repudiating the grants referred to, as of no binding obligation upon the United States, a liberal policy ivas adopted towards the grantees wherever they had actually set-

By the act of March 26, 1804, by which the ceded territory was organized into the territories of Orleans and Louisiana, whilst it was expressly declared that all grants made by the Spanish government, and all proceedings looking to a grant, made or taken after Oct. 1, 1800, should be deemed absolutely void, a provision was inserted for the confirmation, to the extent of one square mile, of all regular grants made to actual settlers, and of all Iona fide acts and proceedings done by them to obtain grants, if the settlements were actually made prior to Dec. 20, 1803.

By the act of March 2, 1805, actual settlers who had only incomplete titles from the French and Spanish governments', issued prior to Oct. 1, 1800, and who actually inhabited and cultivated their lands on that day, were confirmed in their titles thereto, provided that they were heads of families or of age, and had fulfilled the conditions and terms on which the completion of the grants was made to depend. The act went further, and declared that all who, prior to Dec. 20, 1803, with the permission of the proper Spanish officers, and in conformity with the laws and usages of the Spanish government, had made an actual settlement of any tract, and did then actually inhabit and cultivate the same, should have such lands to the extent of one mile square to each person, with the customary addition for a wife and family. By the act of April 21, 1806, permission to settle was to be presumed, if the party had commenced an actual settlement prior to Oct. 1, 1800, and had continued actually to inhabit and cultivate the land for three years prior to Dec. 20, 1803.

The act of March 23, 1807, further provided that any person who, on the 20th of December, 1803, had for ten consecutive years been in possession of a tract of land not exceeding two

By the act of April 25, 1812, that part of the ceded territory lying between the Mississippi and Perdido Rivers was divided into two land districts, one on the east, the other on the west side of Pearl River; and all persons claiming lands by virtue of grant, order- of survey, or other evidence of claim derived from the French, British, or Spanish governments were required to deliver the same to the commissioner of the proper district, to be examined and recorded. By the fifth section of this act the said commissioners were empowered to inquire into the justice and validity of the claims presented, and to this end to ascertain in each case whether the lands claimed had been inhabited and cultivated; when surveyed, and by whom and what authority; and into every other matter respecting the claims which might affect the justice and validity thereof: and all evidence thus obtained was to be recorded. These claims they were to arrange into classes, and report them to the Secretary of the Treasury; and they were also to report a list of all actual settlers on the lands not having any claims derived from

In pursuance of this act, and others in continuation of it, reports were made from time to time by commissioners appointed for the purpose. The first report from the St. Helena district, on the west of the Pearl River (where the lands in question are situated), was made in 1815. Amer. State Papers, Public Lands, vol. iii. pp. 39-76. Others were made Dec. 24, 1819, Nov. 18, 1820, July 24, 1821, Jan. 19, 1825, and Dec. 8, 1825. Id., vol. iii. pp. 436, 465, 505; vol. iv. pp. 538, 473. These reports presented classified lists or registers of the claims presented, as required by the act. In the report for 1815, for example, Register A exhibited a list of claims founded on complete grants derived from either the French, British, or Spanish governments, which, in the opinion of the commissioner, were valid agreeably to the laws, usages, or customs of such, governments. This list embraced not only grants made before Oct. 1, 1800, but also grants made after that date whilst Spain continued in possession of the country. But the latter were either based on an order of survey made prior to Oct. 1, 1800, or were followed up by inhabitation and cultivation according to the laws and usages of the Spanish government. Register B exhibited a list of claims founded on incomplete titles only, such as orders of survey, permits to settle, «fee., derived from either the French, British, or Spanish authorities, which, in the opinion of the commissioner, ought to be confirmed. The majority of these claims, the commissioner says, were originated by the Spanish authorities prior to the purchase of Louisiana by the United States, and, agreeably to the laws, usages, and customs of the then existing government, would have been completed by the same power which granted them. Some were issued subsequently to the purchase. In relation to these, the decision in their favor was not predicated upon the validity of the orders of survey, but simply upon the fact that the parties had occupied and cultivated their lands, and had complied with all the requisitions of the government which at that time exercised ownership over the soil. Amer. State Papers, Public Lands, vol. iii. p. 66. Registers C and D contained a list of grants and orders of survey made after the cession to the United States, and not

This report, with some qualifications, was confirmed by the act of March 3, 1819. 3 Stat. 528 . The claims founded on complete grants, and contained in Register A, were all confirmed. As to those founded on orders of survey, permission to settle, &c., which the commissioners reported in favor of, the act confirmed such' of them as were derived from the Spanish government prior to the .20th of December, 1803, and when the land was claimed to have been cultivated and inhabited on or before that day; and as to the remainder, declared that the claimants should be entitled to grants by way of donation, not to exceed twelve hundred and eighty acres to any one person. The act also made a donation of six hundred and forty acres to ¡each actual settler who had no written title. This provision included most of the persons who had settled on the tract in question in this case.

Subsequent reports and confirmations were made; but the above is a fair sample of all, and evinces the principles upon which the government proceeded in confirming titles derived from the French and Spanish governments. They are cited for the purpose of showing, and we think they conclusively show, the fact that the government of the United States has always regarded the condition of inhabitancy and cultivation, annexed to imperfect titles derived from the Spanish government in the Louisiana territory, as material and essential, and as having this character by the laws and usages of that government.

We might have rested for the conclusion thus reached upon a line of cases decided 'by this court, and concisely summed up by Mr. Chief Justice Taney, in the able opinion delivered by

We have been referred to some cases decided by this court •which are supposed to treat the conditions contained in these titles as of no importance, and as not necessary to be performed. But it will be found that these cases relate to perfected grants, or that they are otherwise distinguishable from cases like that now under consideration.

The first is Chouteau’s Heirs v. United States, 9 Pet. 147 . The condition in that case related to the number of cattle which the grantee ought to have, according to Governor O’Reilly’s regulations, in order to be entitled to the lands claimed by him. The grant had, in fact, been made; and the court rightly held that this was a preliminary condition, and that the fact that the applicant possessed the requisite amount

The- next case is United States v. Aredondo and Others (6 id. 691), in which there was a complete grant of title, with a condition subsequent that the grantee should establish on the lands granted two hundred Spanish families, and begin the establishment within three years, no time being fixed for its completion. It was begun in the prescribed time, but its completion was prevented by the change of government. The court held that, in equity, the doctrine of ey fres would be applied to relieve the grantees from that strict performance which a court of law would require. The performance was held to have become impossible by the act of the grantor. '

The next case is United States v. Sibbald, 10 id. 313. A concession had been made by the governor of East Florida of a right to build a saw-mill, and of sixteen thousand acres of land to supply the same with timber, with a condition that the grant for the land should not take effect until the mill was erected. The land was duly surveyed, and various attempts were made to complete the mill, which were frustrated by floods and other accidents. It was not completed until 1827, some time after the United States had acquired possession of the country. The court sustained the grant, holding that there was no time limited for erecting the mill, that it was completed in sufficient time, and that, in equity, it would have been sufficient to show a performance cy fres. Doubts were, indeed, expressed whether the court was authorized to give effect to a condition of forfeiture where the land had been legally granted; but that point was not necessarily involved in the case.

Hornsby v. United States, a California case ( 10 Wall. 224 ), is also referred to. There a decree for a concession had been duly made, with direction for a grant to issue, and the formal grant had issued accordingly, containing the usual conditions, that the grant should be approved by the departmental assembly, and that the grantees should solicit the proper judge to

' There is nothing in any of these cases inconsistent with the assertion' of the forfeiture in the case before us. Here no title was granted: nothing but a permit to inhabit and cultivate as preliminary to a grant. It might have ripened into an equitable title had the conditions been fulfilled, or even if a fair effort had been made to fulfil them, or if any plausible excuse could be offered for their non-fulfilment. But no attempt even appears ever to have been made to fulfil them; and the government proceeded to make other dispositions of the land. There is no need of any more formal assertion by the government of its right to resume the proprietorship. This court has in several cases maintained the doctrine that an actual entry or office found is not necessary to enable the government to take advantage of a condition broken, and to resume the possession

In the case before us, if any act of the government- was necessary to indicate a resumption of the grant for a non-compliance with its essential conditions, nearly all the volumes of the Statutes at Large, and of the State Papers relating to public lands for a period of twenty years, could be cited to show it.

We think that the claim was properly rejected, both by the commissioners in 1825, and by the court below, and that there is nothing in the act of 1860 which can be justly relied on for sustaining it.

Recree affirmed.