THIS was an appeal from the Superior Court of East Florida, under the following circumstances.
On the 10th of November, 1817, James Darley presented the following petition to Governor Coppinger.
'To his Excellency the Governor:
'Don James Darley, a native of Great Britain, with the respect due to your Excellency, says, that with the view of settling himself in this province under the protection of his Catholic Majesty, knowing the very great advantages that would result to the commence 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 his 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 aforesaid of establishing said machinery; which favor he hopes to merit from the justice of your Excellency. St. Augustine, Florida, 10th of November, 1817.'
To which the following response was given:--
'St. Augustine, 10th of November, 1817.
'Taking into consideration 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 issued to him, from the secretary's office, a certified copy of this petition and decree, which will serve him as title in form.
On the 21st of December, 1817, George Clarke, the surveyor-general, gave the following certificate of survey, accompanied by a plat.
'I, 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 Darley a square of six miles of land, equal to twenty-three 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 the government on the 10th of November 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 12th of September, 1829, the District Attorney of the United States, Thomas Doughlas, 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, and antedated; that grants 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 date 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 time which the record does not state), and letters testamentary were granted to Charles Lawton as executor.
On 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 revivor 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 Pollard and James Pollard, all of England, children of Martha Pollard, and heirs and legatees of James Darley, deceased.
On the 10th of July, 1841, the District Attorney of the United States filed his answer in the nature of a general replication, and on the 17th of July the cause came up for hearing.
On the 13th of September, 1841, the 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 such as to warrant a decree of confirmation; or, in other words, if 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 survey of a tract of land, made by George J. F. Clarke (formerly the Spanish surveyor-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 in question. But there are 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 all; 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 may be found, this survey does not appear to be at that place; it is not 'on the river St. John's''' at all.
'The location, it is true, appears 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 the 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 remarked 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's; and 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 or 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 margin 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 this time 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 these 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 suggestion 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 extent, 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, that although 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 might be clearly ascertained, and fully and finally adjusted between the claimants and the government, so that the grants found to be valid might, with precision and accuracy, be severed from the remainder of the public domain, and that the proper officers of the government might know what lands belonged to the United States, and what might and could safely be sold by them.
'This was all-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 partis, 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 monuments, would seem to be a very incomplete fulfilment of the provisions 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, and the intersection of the lines of the tract with the lines of the government surveys should be clearly and accurately shown; or where this is not entirely practicable, some one or more of the corners of the tract or grant should be clearly defined by a permanent landmark or monument, and its course and distance from some corner of the public surveys accurately given, so that the lines of the tract may be seen therefrom without any difficulty.
'In this case, it may be that the survey was actually made, and that further proofs may show, that the lines and corners are now to be found, and that it is clearly within the calls of the grant; but if, on the other hand, it should appear that no survey was made, or that no corners 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 decree, 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 Pet., 184, 185; Arredondo's case, 6 Id., 691; Bucyk's case, 15 Id., 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.'