Winter et al. v. United States.
for planting said stone without the direction and authority of the commandant can be conceived.
But it has been also urged that this is a general grant, which could only be so located as to sever the granted lands from the domain, and make them the property of the grantees, by an actual survey thereof, made by or under the authority of the Spanish surveyor-general. To this we reply, that the governorgeneral, as viceroy, possessed, in regard to the disposal of the public lands, all the powers of the king. White's New Recopilacion, vol. 1, p. 367–372; vol. 2, p. 31, sect. 23; p. 38, sect. 45; p. 41, sect. 50; fee-simple right acquired in four years, Ib. p. 49, sect. 75; grants not revoked without fault of grantee, Ib. 99; as to mode of grants, surveys, &c., Ib. 474. Morales's letter of Oct. 16, 1797; custom, vol. 1, p. 360, tit. 7; as to dominion, Ib. p. 85, c. 1–4; mode of acquiring, Ib. 91, c. 9, 10, 11; p. 154, sect. 1–3; p. 300, c. 7; p. 341–344; John Smith T. v. United States, 10 Pet. 326. He was neither restrained by any law or order of the king, nor could he be by any regulations of his predecessors, for his powers were equal to theirs, and he could limit or abrogate them in whole or in any particular.
In the present grant he expressly orders the commandant of the post to establish the boundaries, or cause the surveys to be made, as he had an unquestionable right to do. It is in proof that no surveyor was then in the district of Arkansas, nor any actual surveys made for years thereafter. That post was a frontier, remote from the capital and exposed to Indian depredations, and no actual survey of these lands could safely have been made; which facts were doubtless known to the governor, and fully account for the orders given by him to the commandant to establish the boundaries of the lands, or cause them to be surveyed, thus dispensing with a survey by the surveyor-general of these lands.
That no survey by actual admeasurement and running and marking the lines was then made, is admitted; but that a boundary was fixed by the commandant, we insist is established,
- By proof of the occupancy by the grantees.
