ON appeal from the superior court of East Florida.
In the district court of East Florida, in April, 1829, Zephaniah Kingsley presented a petition, claiming title to a tract of land situated on a creek emptying into the river St. John; which he asserted was granted to him by Governor Coppinger, on the 20th of November, 1816, while East Florida was held by the crown of Spain.
The petition stated, that in virtue of the grant, the petitioner had, soon after its date, entered and taken possession of the land, and was preparing to build a water saw-mill thereon, according to the condition of the grant; but was deterred therefrom by the disturbed state of that part of the province of East Florida, and the occupancy of the land by some of the tribes of Florida Indians, who were wandering in all directions over the country.
The grant referred to in the petition, was in the following terms:
'Considering the advantage and utility which is to accrue to the province, if that is effected which Don Zephaniah Kingsley proposes to do, it is hereby granted to him, that, without prejudice of a third party, he may build a water saw-mill in that creek, of the river St. John called M'Girt's; under the precise condition, however, that until he builds said mill, this grant will be considered null and void; and when the event takes place, then, in order that he may not suffer by the expensive preparations he is making, he will have the faculty of using the pines comprehended within the square of five miles, which he solicits for the supply of said saw-mill; and no other person will have a right to take any thing from it. Let the corresponding certificate be issued to him from the secretary's office.
The district attorney of the United States, for East Florida, filed, at May term, 1829, an answer to the petition of Zephaniah Kingsley, requiring from the court that due proof should be made by the petitioner, of the matters set forth in the petition; and also that the grantee had prepared to build a water saw-mill on the land, as stated in the grant.
The answer also asserts, that the grant was made on the express condition, that, until the grantee built the mill, the grant was to be considered as null and void; and that he had wholly and entirely failed to build the mill, and still fails to build the same.
On the 6th July, 1833, an amended petition was filed, setting forth; that, upon the state and condition of the province of East Florida, east of the St. John's, being made known by the grantees of mill grants, and of the impossibility of complying with the conditions of the grants; governor Coppinger, by a verbal order or decree, made known that in consequence of the continued unsettled and disturbed state of the province, and of the impossibility of the grantees of mill grants complying with the conditions of the same with safety to themselves or their property, that the grantees should not, by a failure to erect their mills, thereby forfeit their title; but that the same should remain valid, and be exonerated from the compliance of the condition therein named, till the state of the country should be such as that the grantees could, with safety, erect their works.
The amended petition alleged, that the country was in a disturbed and dangerous state, from the date of the petitioner's grant, and for a long time previous, till the transfer of the province from Spain to the United States; and that your petitioner could not, with any safety to himself or his property, have erected said mill west of the St. John's, between the time of the date of his grant, and the transfer of the province as aforesaid.
To this amended petition the district attorney answered, and called for proofs of the allegations therein; and he also submitted to the court, that if the part of the province in which the land said to have been granted, had continued in a disturbed situation from Indian hostilities, it had been in that situation when the grant was made; and that this should not be an excuse for the non-compliance with the conditions of the grant. The answer alleged, that from 1821, part of the province has been entirely tranquil, but no attempt to erect the mill has been made.
At July term, 1835, a second amendment to the petition was filed, stating that soon after the issuing of the grant, the petitioner entered and took possession of a tract of the land surveyed to him under the grant, and actually began to build a mill upon it; but was deterred, by the dangerous situation of the country, from completing the same. The answer of the district attorney denied the allegations in this petition, and called for proofs of the same. No evidence was given to sustain the statement in the second amended petition. The assertion, that the uncertainty as to titles to the lands in the province since the transfer by Spain, is denied to be an excuse for the laches or negligence of the grantee.
After the production of written evidence, and the examination of witnesses, the district court gave a decree in favour of the petitioner; confirming to him the quantity of land mentioned in the grant. From this decree the United States prosecuted an appeal to this Court.
The case was argued by Mr. Butler, attorney general for the United States. No counsel appeared for the appellee.
Mr. Butler contended that the grant to the appellee was on condition, and the condition had not been complied with. The language of the grant is explicit; and no title to the land could be derived under it, until the terms were complied with: 'Until he builds said mill, this grant will be considered null and void; and when that event takes place, then in order that he may not suffer by the expensive preparations he is making, he will have the faculty of using the pines comprehended within the square of five miles, which he solicits for the supply of said saw-mill.'
It is admitted, that according to the decrees of this Court, giving the timber on the land, gives the land; but in this case, the objection to this confirmation of the appellee's grant, rests on other grounds. No attempt to comply with the condition of the grant was made. It has been decided by this Court, that although such grants were on conditions precedent, yet if a party has commenced making the improvement, and is prevented by circumstances beyond his control from completing it, the grant, under an equitable view of it, will not be defeated.
The strongest case in favour of a grantee, is the case of Sibbald, 10 Peters, 313. In that case efforts were made to build the mill, and they were defeated. But in the case before the Court no such efforts were made. The condition is, that within six months the mill shall be built; and the consideration for this grant is the advantage and utility which will accrue to the province from the improvement. The allegation that the disturbed situation of the province would not permit the improvement, is of no value; when taken in connection with the circumstance, that when this grant was asked for, the province was in that situation. No proof is in the case of any attempt; and the second amended petition, in which this is asserted, is altogether unsupported by evidence. The allegation was not made until the decisions of this Court, making an attempt to comply with a condition in a grant sufficient to make such grant valid.
But there is another view of this case, upon which the claim of the petitioner to a confirmation of the grant should be refused.
Governor Coppinger, by a written order, declared that within six months the condition in all grants should be complied with. White's Compilation of the Spanish Land Laws, 250. The six months allowed by the order, expired long before the Florida treaty of cession.
Mr. Justice WAYNE delivered the opinion of the Court: