ERROR to the Supreme Court of Alabama. The plaintiffs in error instituted an action, called, in the language of the laws of Alabama, 'a plea of trespass to try titles,' against Miguel D. Eslava, the purpose of which was the recovery of possession, and damages for the detention, of a certain lot of ground, in the city of Mobile, bounded north by ground in the possession of Thomas Terry, east by Commerce street, south by Church street, west by Water street; and extending from the east side of Commerce street to the channel of the river.
The cause was tried in the circuit court, in November 1837, and a judgment on the verdict of a jury was rendered for the defendant. The plaintiffs took a bill of exceptions to the charge of the court, and afterwards, prosecuted a writ of error to the supreme court of Alabama; where the judgment of the circuit court was affirmed. The plaintiffs took out this writ of error to the supreme court of the United States.
The bill of exceptions stated, that the lot in controversy was held by the defendant, under the following circumstances: By an act of congress, passed in 1818, the lot of ground whereon Fort Charlotte, in the town of Mobile, had been situated, was directed to be surveyed and laid off into lots, with suitable streets and avenues, conforming as near as may be to the original plan of the town; and the lots thus laid off were directed to be sold, under the authority of the president of the United States. The lots were surveyed and laid off, and were afterwards sold. By an original plan of the town, a street known as Water street was run on the margin of Mobile river, continuous with and fronting the same. This street was run on part of the site of Fort Charlotte, where the lots are laid out; another street, known as Church street, was laid off on the site of the fort. The lots were sold by the United States, agreeable to the plan; no lots were laid off, and none were sold by the United States, east of Water street. Under the Spanish government, and while the United States held possession of Fort Charlotte, there was an open unobstructed space from high-water mark on the river to the channel, except a wharf used for the commerce of the fort.
The lot in dispute was situated on the east side of Water street, directly opposite to the lot sold by the United States, part of the site of the fort, within the open space between high and low-water mark, and part of it within the boundary of the picket fence that formerly surrounded the fort. After the purchase of the lots laid out on the site of Fort Charlotte, by 'the lot company,' a survey was made by the company, and a larger quantity of ground was included in the survey. The defendant held under a purchase from the lot company. There is a regular oceanic tide in the river Mobile, the ebb and flow of which is about eighteen inches. In 1822, Water street and the lot in dispute were between high and low-water mark. The city of Mobile, at the cost of the city, filled up Water street to some extent, and confined the water at high-tide to the eastern edge of Water street. No evidence was offered to prove the lots in front of Fort Charlotte were known under the Spanish government as water lots, on which improvements had been made.
The plaintiffs, in the circuit court, claimed title under the act of congress of 20th May 1824, entitled 'an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals in the said city.' Considerable sums of money were expended by the purchasers of the lots on the site of Fort Charlotte, to fill up the lots between Water street and low-water mark; and the passage along Water street could only be made, until it was filled up by the corporation of Mobile, by logs laid along the street. The lot in dispute had been filled up at a heavy expense, and the tenant of the defendant in error had, according to an entry on the books of the corporation, in 1823, filled up a stagnant pond at the end of Church street, which had been occasioned by the improvement on the lot. One witness testified, that the stakes in front of the lot, when sold by the United States, ran to the east of Water street, so that a portion of the property, when purchased from the United States, would have been within the staked lines of the lot. Evidence was offered by the defendant, to prove that in 1828, and for every year until 1836, taxes on the lot had been paid to the corporation of Mobile; tha tin 1833, the person in possession of the lot had been required by the mayor of Mobile, to fill up two places upon it with earth or shalls; and about the same time, the corporation had advertised the lot for sale, for unpaid taxes, which were afterwards paid.
The act of 20th May 1824, by its first section, declared, 'that the right and claim of the United States to the lots known as the Hospital and Bakehouse lots, containing about three-fourths of an acre of land, in the state of Alabama; and also all the right and claim of the United States, to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favor of any individual, either by this or any former act, between high-water mark and the channel of the river, and between Church street, and North Boundary street, in front of the said city, be and the same are hereby vested in the mayor and aldermen of the said city,' &c. The second section of the act declared, 'that all the right and claim of the United States to so many of the lots east of Water street, and between Church street and North Boundary street, and now known as water lots, as are situated between the channel of the river, and the front of the lots known under the Spanish government as water lots, in the said city of Mobile, whereon improvements had been made, be and the same are hereby vested in the several proprietors or occupants of each of the lots heretofore fronting on the river Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot now designated as a water lot,' &c.
Upon which, the judge charged the jury, that if the lots specified in the patents 10, 11, 12, &c., were proved to have been bounded by high-water mark, at the time purchased, then they came within the terms of 'lots known under the Spanish government as water lots, as used in the act of congress;' and if proved that the lot claimed was east of Water street, and in front of the lots covered by the patents, and that it had been improved before the passage of the act; it was vested in the proprietors and occupants of the lots held under the patents: and this, although Water street did intervenue between the lots claimed and those held under the patents.
The case was arged by Test, for the plaintiffs in error; and by Johnson and Sergeant, for the defendant. The decision of the court was given upon the construction of the act of congress of 1824, entirely. The arguments of the counsel on all the other questions which were discussed, are, therefore, necessarily omitted.
Test said, the act of congres of 1824 is the foundation of the title set up by the plaintiffs; and if they are not entitled to hold or recover under that act, they have no title whatever. The act was a pure commercial regulation, having in view the promotion of the commercial branch of the national industry. It is a part of the history of the country, that Mobile was once one of the most sickly places on the globe. It was surrounded by islands and marshes, and the banks of the river were flat and swampy; and from this cause, it was frequently visited by the most fatal diseases. Thus it remained for years after the country was acquired by the United States.
One of the regulations of the Spanish government was, that the lands granted to individuals never extended into the river, or even to it; but the grantee was bound to leave a bank or ridgeway along the river margin. Wharfs or landing-places were always established by public authority; and the ground, part of which is now in dispute, had remained unimproved, until the act of 1824 was passed. The growing population of the city of Mobile, and the fact, that it was the outlet of the great and increasing productions of the state of Alabama, made it an object of particular interest with the government of the United States. As no grants of land had been made beyond high-water mark, and the improvement of the low grounds between high and low-water mark was essential to the health of the city, congress passed the act of 1824, giving to the owners of lots running to the river, the ground in front of the same, on which improvements had been made. The lots between Church street and North Boundary street, intended as the most northern street of the city, were those comprehended in the provisions of the act of congress. It was clearly intended by the act of congress, to give to the city, for the purpose of improving and erecting wharves and landing places, all the land on the shores of the river, from Church street to the northern boundary of the city; and not to confine the city to the width or location of Water street, nor to that part of the city where streets had been laid out; for that would not have provided a remedy commensurate with the evil. To the city was given, by the act, all the land below high-water mark, on which no improvements had been made, so that not a remnant should be left from one end of the city to the other. The lot in controversy in this case lies, without doubt, in the part of the city to which by any construction of the terms of the statutes describing the property granted, applies. In other cases, it may be necessary to ascertain what was meant by North Boundary street; but it is not in this.
Thus, the title of the plaintiffs in error is clearly made out, unless the defendant has a better title, under the second section of the act of 1824, or by the act of 1818, under which the lots laid out on the site of Fort Charlotte were sold. One of the counsel for the defendant has maintained, that the defendant was the riparian owner of this lot. This question need not now be discussed, as the title under the act of 1824 is alone under exemination. The defendants counsel also say, that having purchased the lot under the act of 1818, which extended to the river; and having improved the lot to low-water mark, the provisions of the second section of the act apply to and give title to the property. This is denied. It was expressly proved, that the lots on which Fort Charlotte stood were not known as water lots, under the Spanish government, on which improvements had been made. Fort Charlotte, and the ground appurtenant to it, under the Spanish government, were bounded by the margin of the river. The object of congress was, to give to the owners of lots in the old town of Mobile, who had improved them, the ground to low-water mark, for river purposes, and to promote the health of the city; but it was not intended to extend the grant beyond those lots held under Spanish concessions, else why confine the grant to the owners of lots known under the Spanish government as water lots, whereon improvements had been made? If the lots laid out on the site of Fort Charlotte, and which had been sold, were intended to be included in the donation, why did not congress so declare in apt words to express that purpose?
Mr. Test also contended, that by a reference to a map exbibited, some of the lots laid out on Fort Charlotte were clearly shown to be out of the lines of the ground included in the act of 1824; and he said, none of the Fort Charlotte lots could be considered within the letter or spirit of the act, as all had the same claims. To apply them to this lot, and not to all, was inconsistent.
Sergeant, for the defendant, upon the title claimed under the act of congress of 1824, contended, that the act 1824 granted the lot in controversy to those under whom defendant claimed, and not to the city of Mobile. The plaintiffs claimed, he remarked, entirely and exclusively, under the act of 1824, which operated as a gift, without any consideration whatever. They were not purchasers. Neither were they to take for the public, but for themselves, for their own use and benefit. It was incumbent upon them, therefore, to make out their case, clearly, and without reasonable doubt. The defendants, on the contrary, had an equity, before the act, from possession with claim of right, improvement, and, in fact, creation of the property by redeeming it from the water.
In construing this act, the whole of it must be taken together; and further, any construction should be very cautiously admitted, that would overturn a received construction long acted upon. The act has a twofold operation: it operates by way of grant, and it operates by way of confirmation or release. For the city of Mobile, it operates by way of grant only, and that grant is entirely gratuitous, being without consideration. First, it gives, specifically, the Bakehouse lot and the Hospital lot, both of them defined public property of Spain, and passed as such to the United States by treaty. They passed from the United States to the city of Mobile, by their appropriate boundaries, as the Fort Charlotte lot passed to the purchasers; with only this difference, that the latter paid for what they got. As to all the rest, the grant to the city of Mobile is of what is not otherwise granted, confirmed, released or excepted. The language of the first section is 'not sold or confirmed to individuals, either by this or any other act;' and 'to which no equitable title exists in favor of any individual,' &c. And then there is the general proviso to the whole act, 'that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate.' The city of Mobile, though first in the order of the act, is last in the order of grant. All the other grants, confirmations, releases, exceptions and provisoes are to be satisfied; and then the city is to take what 'right and claim' there may be of the United States-not asserting that there will be any.
Now, in the first place, the defendant had a right, by the sale under the act of 1818, as has already been stated; which is confirmed, if necessary, by the act of 1824. In the next place, he had an 'equitable title,' by possession, improvement, expenditure of money and labor in redeeming the land, contributions in taxes, and the like, repeatedly recognised by the United States as the ground of a pre-emption right. He has, especially, an equitable title against the city of Mobile, who not only looked on while he was expending money and labor as owner; but compelled him to pay taxes as owner, for the public use, and to contribute to the public gratification and convenience, by adorning the streets in the neighborhood of his property; and finally, by resolution, ordered him to be prosecuted as owner, for an alleged nuisance on his lot.
Again, he is within the very words of the second section of the act of 1824, and within the decision of this court, in Pollard's Heirs v. Kibb e, 14 Pet. 353. In the bill of exceptions, the facts were submitted to the jury by the judge, with instructions precisely conformable to the act. The facts have been found, and upon those facts, the judgment is right. With the state of facts, judicially settled, as the record shows, the defendant was clearly entitled under the act; and it would have been palpable error, to give judgment against him. There was no 'right or claim' remaining in the United States; and therefore, there was none granted to the city of Mobile. It is of no importance, that other questions arose and were discussed in that court, or in the supreme court of Alabama; nor whether the opinion upon them was right or wrong. If the defendant was entitled to judgment, those questions are immaterial, and this court will affirm the judgment upon its proper grounds. The defendant has a perfect title under the act of 1824, whether he had a right before or not; and no one can gain-say it, who claims by virtue of a residuary grant of the same act, as the city of Mobile does.
It is needless to add, finally, that the defendant clearly had a 'claim,' within the proviso of the act. He was in actual possession, notoriously claiming a right. The United States never meant to convey to the city of Mobile a capacity to disturb possessions, and carry on law-suits. Neither did they mean to destroy the power of congress to hear applications for relief, from persons whose claims, though imperfect, were entitled to equitable consideration and allowance. Where the land was vacant, and no claim was made to it, it was granted; such a grant was consistent with the ordinary method of proceeding; but to part, by grant (and especially without consideration or equivalent), with the power of doing liberal justice to claimants in actual possession, in the usual way, would seem to be against precedent, policy and reason, and in derogation of the accustomed privileges of the citizen. This court has not so interpreted the act of 1824. Pollard's Heirs v. Kibb e, 14 Pet. 365. The claim was, at least, such an one as might be presented to congress; and such an one, therefore, as to be within the proviso, according to the decision of this court.
McLEAN, Justice, delivered the opinion of the court.--
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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