APPEAL from the Superior Court of East Florida. In the superior court of East Florida, Oliver O'Hara, for himself and for the other heirs of Daniel O'Hara, presented a petition, praying for the confirmation of a grant of 15,000 acres of land, made by Henry White, then the Spanish governor of East Florida, on the 5th of September 1803, to Daniel O'Hara, the father of the petitioners; which was alleged to have been confirmed on the 3d of September 1818, by the Spanish governor, Coppinger. The grant, and the proceedings on the same, are fully stated in the opinion of the court.
Downing appeared as counsel for the appellants.
Gilpin, for the United States, contended:-The evidence of this grant is a certificate of Tomas de Aguilar, in the form of that commented upon in the case of the United States v. Wiggins, 14 Pet. 345. If this document be regarded as sufficient to establish the fact, that such a concession was actually made by Governor White; still there is no proof either of possession or survey, or citizenship of the claimant; all of which were necessary to perfect a grant in Florida, to any quantity of land whatever.
The memorial of the claimant to Governor White is dated the 3d September 1803. He says, that he has but lately beome an inhabitant of the province, and that he 'intends to settle' there. Two days afterwards, he receives this grant, and on the same day, leaves the province, to which, so far as the record shows, he never returned. Early in June 1804, nine months subsequent to the concession, an agent, at St. Augustine, writes to him, as the record shows, urging him to 'take possession of his lands,' which he had not then done. On the 20th of June, in the same year, we have the decree of the district court of the United States at Savannah, in an admiralty proceeding, where the claimant is a party. This shows, that the brig Chance, being bound on a regular voyage from Jamaica to South Carolina, with some negroes on board, had been captured by a French privateer, and re-captured by a British cruiser, and subsequently ransomed by the claimant. It is alleged, that these negroes were the property of the claimant, who intended to place them on the tract lately granted to him in Florida; but no evidence of such intention is given; and if it existed, it never was carried into effect, although the decree of the court of admiralty was in his favor. A witness, Francis Marien, was produced, to prove, that soon after the grant, the claimant attempted a settlement; but it appears from his cross-examination, that he knew only, 'from general information, that lands were grauted to the claimant in East Florida; that the claimant informed him, he had engaged a carpenter; and that the carpenter told him he was employed for the purpose of building a house;' there is no evidence whatever of such a house being commenced or built. From this time, until August 1821, after the actual cession of the Floridas, there is no evidence of an attempt by the claimant at settlement and possession; in a letter then written to him from St. Augustine, it is said, that 'endeavors will be used to put a family on his lands at Nassau, to begin a settlement and take possession, which is very necessary should be done.' That it was done, then or subsequently, is neither asserted nor proved. It is clear, therefore, that at no time did the claimant occupy or settle on the land alleged to be granted to him.
Nor was it ever surveyed, so as to perfect the grant. The survey, by the authorized public surveyor, was an essential requisite to every grant under the Spanish land laws. 2 White's New Rec. 230, 238, 278. The order of survey accompanied or shortly followed the concession. None such is produced with this grant. Parol testimony, taken after this suit began, was introduced, to establish, if possible, a survey in 1811; but the survey, if made, is not produced, nor is there any evidence that it was so made by the direction of any competent authority. In March 1819, after the date of the treaty ceding the Floridas to the United States, a survey was made. It is that now relied on by the claimant. It was not only made without any authority, but when an order for a survey was solicited from Governor Coppinger, it was refused. Had the order been then granted, the survey would have been illegal, as was ruled by this court, in the case of the United States v. Clarke, 8 Pet. 468; but so far from being granted, it was explicitly refused.
Spanish citizenship was an indispensable requisite to the validity of a grant. The oath of allegiance was required as a primary condition. 2 White's New Rec. 232, 277. In a despatch of Governor White to the Marquis of Someruelos (2 White's New Rec. 258, 582), he comments, in strong language, on the course pursued by persons who came into the province, hastily took the oath of allegiance, and immediately left it. He declares such a proceeding to be an abandonment of the land granted to them. The evidence in this case shows such a proceeding on the part of the claimant. In the admiralty suit at Savannah, he declared himself to be, in June 1804, a citizen of the United States. He always resided there; never in Florida. Was not this clearly an abandonment of any privileges he might have obtained by a short and temporary residence in Florida in 1803?
But if the grant had been perfected by survey and possession, what was its character? The claimant urges, that it was a grant to him of 15,000 acres of land, and he asks to be confirmed in such a grant. But what says the concession of Governor White, on which he relies? It permits him to occupy lands, at the place indicated, 'until the time when, in conformity to the number of workmen whom he may have to cultivate them, the corresponding number of acres may be surveyed to him;' and it requires, that he shall 'take possession of the said land, within the term of six months from the date' of the concession. The grant was thus conditional, altogether, on the fact of possession within six months; the evidence is clear, that there was no possession whatever, at any time. But had he taken possession, the quantity granted still remained conditional; it depended on the number of workers, according to the regulations which were freely discussed and passed upon by this court, in the case of the United States v. Wiggins, 14 Pet. 341, 351. Where there were no workers, there could not be 'a corresponding number of acres surveyed' to the grantee. By his failure to introduce them, he abandoned his grant; it became 'of no value or effect, and should be considered as not made.' 2 White's New Rec. 284.
The argument, that it was revived by Governor Coppinger, in 1819, cannot be maintained. If it had been so revived, it would be subject to the original terms of settlement and cultivation by a proportionate number of workers, which have never been complied with to this day. But it was not so revived, and could not be. When the claimant applied to Governor Coppinger for an order of survey, under the original grant, the indorsement of the Governor was, 'not admitted.' Had it been admitted, it would have been a violation of the eighth article of the treaty (8 U.S. Stat. 258; 2 White's New Rec. 210), which declared all grants made since the 24th January 1818, void; for such an act of Governor Coppinger would have been clearly a new grant, subsequent to that day, the former one, of 1803, having become totally void by the conduct of the grantee himself.
WAYNE, Justice, delivered the opinion of the court.