Winter et al. v. United States.
reports were found to be favorable, the sub-delegate made the concession, fixed the terms, and passed the decretal order of survey. After all which had been fulfilled and executed, it was forwarded to the office of intendancy for confirmation. Where any doubts existed as to the land being vacant and royal domain, the order of survey preceded the concession." 1 Land Laws, App. 1043.
Such a mass of evidence, running through a period of more than fifty years, and harmonizing in all its parts, must certainly be regarded as establishing the necessity of surveys. No exeptions are provided for, and if there were any, it is the duty of the claimant to prove them by the strongest testimony, inasmuch since the law and the uniform usage under it are against him.
It is evident that a warrant or order of survey could be executed by the surveyor-general or any of his deputies, or the surveyor of any district, or by the commandant of a post, or by a private person specially authorized by the governor-general or intendant.
It appears to have been at one period a common practice in Florida for private persons to execute warrants or orders of survey by the direction of the governor, and upon which surveys. formal and perfect titles were issued. 1 Land Laws, App. 1014, et seq.; United States v. Harrison, 16 Pet. 198, et seq.
In Smith v. The United States, 10 Pet. 334, it is said that "Spain never permitted individuals to locate their grants by mere private survey. The grants were an authority to the public surveyor or his deputy to make the survey as a public trust to protect the royal domain from being cut up at the pleasure ef the grantees. A grant might be directed to a private person, or a separate official order given to make the survey; but without either, it would not be a legal execution of the power."
Again. "But neither in this, nor the record of any of the cases which have been before us, have we seen any evidence of any law of Spain, local regulation, law, or usage, which makes a private survey operate to sever any land from the royal domain; on the contrary, all the surveys which have been exhibited in the cases decided were made by the surveyor-general of
