JOHNSON, J.—This is a petition filed by the heirs of Elisha Winter, under the act of congress of the 26th May, 1824, entitled "An Act enabling the claimants of lands within the limits of the State of Missouri and Territory of Arkansas to institute proceeding to try the validity of their claims," revived for five years by the act of 17th July, 1844; and the claim mentioned in the petition is for one million of arpens of land, in the State of Arkansas, based upon a Spanish concession, made by the Baron de Carondelet, governor-general of the Province of Louisiana, the 27th day of June, 1797, to Elisha Winter, the ancestor of the petitioners. 4 Stat. 52; 5 Ib. 676. The answer of the district attorney denies all the statements and allegations in the petition, and full proof is demanded thereof.
From the commencement of the case, every reasonable indulgence has been extended to the claimants, to enable them to procure all the proof within their reach, and doubtless we now have all that could be found, material to their rights.
The case has been thoroughly investigated by the counsel on both sides, and it gives me pleasure to add, that it has been argued by them with great zeal and uncommon ability, and which will the better enable me to form a correct opinion upon the questions which it is now my duty to decide.
Most of the testimony offered by the claimants has been excepted to by the district attomey; and these exceptions are on file in the case, as a part of the record. Some of them were decided by the court before the hearing; but finding that course of proceeding calculated to produce inconvenience and delay, and in a collateral manner bring about a decision upon the merits of the cause, the rule requiring exceptions to be filed was rescinded. But I will add, that as far as decisions have been made on exceptions, they are entirely satisfactory to my mind, and will be adhered to, and the principles therein con tained, applied upon the present occasion.
As to the exceptions filed by the district attorney, not yet expressly decided, I will merely remark, that it is not deemed necessary to the rights of either party that this court should decide specifically upon each exception, because it would be useless as far as it could have any effect here; and in case of appeal to the supreme court, all the testimony and the exceptions to it will appear of record, and thus each party there will derive the same advantage and benefit, as if there was a specific decision upon each exception; for the inquiry then will be, not how this court has decided, but whether the decision is sustained by the principles of law, and warranted by legal and competent evidence. Without taking upon myself, therefore, the unnecessary labor of deciding collateral questions, I will now proceed to the main and prominent points in the case.
The paper in the Spanish language, which is produced as the foundation of this claim, is really nothing more than an order or warrant of survey, and strictly speaking is not a concession; but for the sake of convenience I shall call it the latter. Several translations of it have been brought to the notice of the court, but I shall not undertake to determine how nearly these translations assimilate to each other, because, should this case be taken to the supreme court, that tribunal will have no difficulty in ascertaining the true meaning of the paper.
Without descending to particulars on this point, I will only observe that I regard this concession as authorizing Elisha Winter to select, within the then district of Arkansas, one million of arpens of land, which was to be severed from the royal domain, and occupied within one year from the date of the concession, or else the concession to be void; in other words, that he was to establish himself upon it in one year.
The genuineness of the signature of the Baron de Carondelet to the concession, has been, in my opinion, sufficiently proved by competent witnesses,—those who are acquainted with his handwriting,—so as to entitle it to be used as evidence in any court of justice.
The district attorney in his argument, insists that the Baron de Carondelet had no authority to make so extensive a grant, and that if he could rightfully do so, he might with the same propriety have conceded to any private individual, as a mere gratuity, a whole parish or district of the royal domain. Certainly no one can doubt that a concession so immense ought to be closely scrutinized; but at the same time I do not feel it incumbent upon me to inquire into the precise extent and nature of the powers vested in the governor-generals of Louisiana as it respects the quantity of land which could be granted. The supreme court of the United States has frequently decided in this kind of cases, that a grant or concession made by an officer who has by law authority to make it, carries with it primâ facie evidence that it is within his power, unless the contrary is shown; and it is, therefore, no longer a debatable question. United States v. Arredondo, 6 Peters, 691; 7 Ib. 51; 8 Ib. 436; 9 Ib. 134.
Without further inquiry, therefore, I shall assume that the Baron de Carondelet possessed the power to make this concession; that the extraordinary extent of it is no objection to its validity; and then comes the main question in the case, namely, whether the land mentioned in the concession, was separated from the royal domain, so as to vest a right of property in the grantee, and thus bring it within the purview of the treaty of Paris of the 30th April, 1803. It is almost superfluous to add, that the whole case must turn upon this solitary point, for however meritorious the claim may be, and however strong the considerations which may favorably recommend it to the political departments of the government, it is not competent for the judiciary, either to grant land, give an equivalent, or confirm a claim that is destitute of identity. Indeed, the act of the 26th May, 1824, confers the special and limited authority under which this court must act in these cases; and by reference to that law it will be seen that the locality of a claim must be ascertained to give the court jurisdiction. 4 Stat. 52.
Now this concession on the face of it is utterly indefinite, and does not appropriate any specific lands to the grantees; and hence it is material to inquire whether an actual survey of such a concession as this was necessary to vest a right to the property in the grantee? The district attorney maintains the affirmative; aud in my opinion he has successfully sustained that position, by referring to royal orders; to regulations of different governor-generals of the province of Louisiana, running through a period of nearly fifty years; to regulations in Florida, on the same subject; and lastly, to various adjudications of the supreme court of the United States.
It is perfectly obvious, that among civilized nations, where individual ownership of the soil is recognized as a right, some mode of designating every man's land must necessarily be adopted. Indeed, without any regulations at all upon that subject in Louisiana and Florida, the survey of lands would have followed as a natural consequence upon making grants; for without surveys, the confusion in land titles, and the disputes and litigation that must have ensued, would have been intolerable evils which no government would allow. In point of fact the survey of grants of land was common in the Province of Louisiana as early as 1754, because the sixth and seventh clauses of the royal order of that year, of date the 15th October, expressly require surveys to be made. 2 Land Laws, 52.
The most solemn and imposing regulations, however, upon the subject of surveying lands, are found in the twelfth clause of the general regulations of Count O'Reilly, civil and military governor of the Province of Louisiana, promulgated on the 18th of February, 1770. That clause is as follows: "12. All grants shall be made in the name of the king, by the governor-general of the province, who will at the same time appoint a surveyor to fix the bounds thereof, both in front and depth, in presence of the judge ordinary of the district, and of the adjoining settlers who shall be present at the survey; the above-named four persons shall sign the process verbal which shall be made thereof, and the surveyor shall make three copies of the same; one of which shall be deposited in the office of the scrivener of the government and cabeldo, another shall be delivered to the governor-general, and the third to the proprietor to be annexed to the title of his grant." 2 Land Laws, App. 206.
The regulations of O'Reilly probably stand upon higher ground than those of any of his successors, because they were expressly sanctioned by the king himself, on the 24th August, 1770, the same year they were promulgated; and the governorgenerals of Louisiana were specially required by the monarch to conform thereto, until it was his royal pleasure to change them. 2 Land Laws, App. 530.
There is no evidence that they were changed or modified at any subsequent period as far as surveys of grants were concerned. On the contrary, the instructions of Gayoso, dated the 9th September, 1797, and the regulations of Morales, intendant general of Louisiana, published 17th July, 1799, very clearly indicate that surveys were essential. In fact the fifteenth article of the regulations of Morales, is almost literally copied from the twelfth clause of O'Reilly's regulations already referred to, The general practice of the government conformed to these regulations; and it is known that there was a surveyor-general in upper, and another in lower Louisiana, each of whom had authority to constitute as many deputies as they pleased, with a view to execute surveys. Undoubtedly the Spanish regulations show, that when a concession was made, the duty was imposed on the grantee of having the order of survey executed at his own expense; and a return of the survey was to be made to the proper officer; and all this without cost to the royal treasury. In other words the concession was an authority to the surveyor-general and his deputies, to make the survey as a public trust; and it was the duty of the grantee to call upon him for that purpose, or procure authority for a private person to do it.
The government contented itself in the first instance with giving the authority to survey, and then leaving it to the party interested to procure the execution of that authority. No law or regulation existing in the Province of Louisiana, has been brought to the notice of the court, which dispensed with a survey in the case of an open floating concession, and it is presumed there was none.
It is also quite evident that a survey under the Spanish government meant, as with us, the actual measurement of land, ascertaining the contents by running lines and angles, marking the same, and fixing corners and boundaries. 1 Land Laws, App. 996–998, 1001, 1003, 1004, 1014, 1043; The United States v. Hanson, 16 Peters, 198; 6 Jac. Law Dictionary, 157.
"The survey," say the supreme court, in Ellicott v. Pearl, 10 Peters, 441, "made by a surveyor being under oath, is evidence as to all things which are properly within the line of his duty. But his duty is confined to describing and marking on the plot the lines, corners, trees, and other objects on the ground; and to subjoin such remarks as may explain them; but in all other respects, and as to all other facts he stands like any other witness, to be examined on oath, in the presence of the parties, and subject to cross-examination." This case is cited, because in pointing out the duty of a surveyor of land, it clearly shows the nature of a survey, and what must be understood by it; namely, running lines with compass and chain, establishing comers, marking trees and other objects on the ground, giving bearings and distances, and making descriptive field notes and plots of the works. These are the ingredients of an actual survey, as well as the evidences of it; for it is not the mere assertion of the surveyor that he had surveyed land that makes it so. The United States v. Hanson, 16 Peters, 200.
A return by the surveyor-general, embracing a description of a survey of land in legal form, was primâ facie competent evidence without further proof on which the granting power could act. Plots and certificates, on account of the official character of the surveyor-general, had accorded to them the force and character of a deposition. 16 Peters, 200, 201; 14 Ib. 346.
It is evident also, that a warrant or order of survey could be executed by the surveyor-general, or any deputy appointed by him; or the surveyor of the 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 these surveys formal and perfect titles were issued to the interested parties. 1 Land Laws, App. 1014, et seq.; 16 Peters, 198. In Smith v. The United States, (10 Peters, 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 of grantees. A grant might be directed to a private person, or a separate official order given to make the survey; but without either, it could not be a legal execution of the power." And in the same case it is further said, that, "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, or usage, which makes a private survey operate to sever any land from the royal domain. On the contrary, all surveys which have been exhibited in the cases decided were made by the surveyor-general of the province, or his deputies, or under the special order of the governor or intendant, or those who represent them.
"No government gives any validity to private surveys of its warrants or orders of surveys, and we have no reason to think that Spain was a solitary exception even as to the general domain, by grants in the ordinary mode, for a specific quantity to be located in one place."
The supreme court of the United States, in various cases, has either directly or indirectly decided, that an actual survey of an open floating concession is a necessary ingredient to its validity; and that it must also be an authorized survey to sever any land from the royal domain. I shall make no comment on these cases, but merely refer to them. Wherry v. The United States, 10 Peters, 338; Smith v. The United States, Ib. 327; United States v. Forbes, Ib. 180; Buyck v. The United States, Ib. 230; O'Hara v. The United States, Ib. 297; The United States v. Delespine, Ib. 328; The United States v. Miranda, 16 Ib. 155, 162; The United States v. Hanson, Ib. 198; The United States v. Clarke, Ib. 228; The United States v. King, 3 How. 784; The United States v. Lawton, 5 Ib. 26.
But upon this point I need not multiply authorities. Ordinances and regulations expressly sanctioned by the king, practice conforming to these regulations, the decisions of our courts of justice, all combine to establish it as a proposition beyond dispute, that a concession indefinite in itself, is void, without the aid of an official survey.
In most grants, even those of a descriptive character, which designated the place where the lands were to be located, a survey was required to be made and returned before a party could obtain a formal and perfect title. Non-interference with the rights of others was a condition which attached to all grants, and was generally expressed; but if not expressed, always implied. This, of itself, demanded an actual survey on the ground, as the only certain mode of observing that condition.
The actual demarcation of boundary lines by authorized persons, and the formal return of the proceeding were the only means of affording authentic official evidence of the location of grants and the separation of public from private property.
It is not pretended that the lands mentioned in this concession were surveyed within one year, nor before the 10th day of March, 1804. On the contrary, the fact is distinctly alleged in the petition, that there was no actual survey; and an excuse is offered for the omission, which, when scrutinized, will be found to be insufficient. According to a well-established rule, this averment cannot be controverted by proof on the part of the petitioners; they being bound to abide by their own pleadings. To obviate the want of a survey, it is said that a cornerstone was planted, under the direction of Don Carlos de Villemont, to designate the grant made to Elisha Winter, and that it was a proceeding of great solemnity. There is, in my judgment, no competent evidence adduced to show the planting of this stone by the authority, or under the direction and superintendence of Don Carlos de Villemont, as commandant of the post of Arkansas. But if there was, it has been shown to be a clear departure from the Spanish regulations respecting the location of grants; and hence a nugatory and idle act. Fixing a stone post or monument at any particular spot is no survey, nor equivalent to it; nor is it the slightest indication whether it is a northern, eastern, southern, or western corner; nor does it indicate how the boundary lines are to run. But to go further still, planting or erecting a stone to designate any particular corner with a contemporaneous assertion, as to how the lines are to run from it, is no identification of land, nor can these acts, in the very nature of things, give it any known or certain locality. I repeat, that if there was full proof of the act of planting a stone, or erecting a monument, it was an illegal act, and severed no land from the royal domain.
The concession required a survey, a process verbal of it and its return, not the planting of a stone; and therefore the proceedings of the commandant, said to have been adopted to designate the lands granted, were not only in violation of the plain requisitions of the concession itself, but were not sanctioned by any of the ordinances, orders, or regulations of the Spanish government.
If a survey could have been dispensed with, it is reasonable to infer that it would have been done in the concession itself, and that planting a stone, or some such act, would have been substituted in its place. But this is not the case, and indeed so far from it, a survey and the return of it is clearly contemplated, and upon that the proper title was to be furnished to the grantees in form.
The Baron de Carondelet, plenary as his powers may have been, was subordinate to the king, and was obliged to observe his royal ordinances and orders. As governor-general, he had no dispensing power; and to say nothing of the insuperable difficulty of locating a tract of land of a million of arpens by the mere erection of a monument as a corner, it is sufficient to observe that he had not authority to dispense with a survey of the land in a case like this, and that it would have been illegal to do so; and there is perhaps no better proof of it than the fact that this proceeding, said to have been officially reported to the Baron de Carondelet, must, if so reported, have been regarded by him as illegal, and as a departure from the concession; for otherwise the presumption is almost irresistible, that the title in form promised in the concession would have been furnished to the grantees, and more especially as Elisha Winter was said to have been on terms of intimacy with the baron, and to have been in New Orleans much of his time between 1798 and 1800.
In my judgment, it was a condition that the grant should be surveyed, and without it the grantee could not be said to be established on any specific land; he could not be said to have the legal seizin or possession of any specific land, (The United States v. Lawson, 5 Howard, 29,) and therefore I disregard all the proof respecting the occupation by the Winters of a tract of land near the post of Arkansas, which they claimed as a grant from the Spanish government, as being entirely irrelevant.
But it is urged upon me that conditions were inserted in Spanish grants as a mere matter of form; that a compliance with them was not required; that there are no instances where grants have been declared forfeited for a non-compliance with conditions; that the hostility of the Indians would have prevented an actual survey, and that there was no surveyor at the post of Arkansas. As to danger from Indians, it may be replied, in the spirit of the decision of the supreme court in the case of The United States v. Kingsley, 12 Pet. 484, on a similar occasion, that a grantee cannot be permitted to urge as an excuse in fact or in law, for not complying with his undertaking, a danger which applies as forcibly to repudiate the sincerity of his intention in asking for the grant, as it does to his inability from such danger to execute it afterwards. And as to there being no surveyor at the post in the district of Arkansas at the time, it was a fact which he must be presumed to have known at the date of the concession, and cannot therefore be permitted to derive any advantage from that circumstance; nor was he confined to the district of Arkansas in obtaining a surveyor. It was imposing no extraordinary hardship, and was indeed asking but little at his hands, to require a survey of this enormous gratuity.
Now as to conditions being inserted in Spanish concessions as matters of form only, it seems to me to be a singular position to assume before a judicial tribunal, and not less singular that proof of it should be adduced. If I am at liberty to disregard certain parts of this concession as being formal and not requiring observance, may I not with the same propriety reject the whole? And is this to be a rule in this kind of cases, and to form a landmark in their adjudication? Judicial decisions would then depend upon the integrity and intelligence of witnesses, not on the written law, and would vary as often as the opinions of men. Such proof can have no weight with me, because of its uncertainty, and because it contravenes known regulations and laws which existed in the Province of Louisiana, and which I prefer as guides to the loose declarations of witnesses of whom we know nothing.
While upon this point, I will also add, that if it was the usage at the post of Arkansas to designate lands by merely fixing some corner thereto, it was a usage repugnant and contrary to express written law, and therefore void. 1 Bl. Com. 77; 3 Term Rep. 271. No usage or custom can prevail against an express act of the lawmaking power.
If the performance of conditions was not required, they would hardly have been inserted; and the fact that surveys and occupation were required by the terms of almost every concession, are conclusive proof that so far from being matters of form, they were really matters of the first consequence, and indicated the permanent establishment of the only certain system of separating private grants from the public domain. According to my recollection, the civil law used in Spain, and introduced into the Province of Louisiana, was equally as strict as the common law with regard to exacting a compliance with conditions, and as rigidly excluded parol proof, either to change, vary, modify, or annul, or in any manner affect such conditions. Code Napoleon, b. 3, c. 4, sect. 1. But what perhaps is more to the purpose, the supreme court has held that conditions could not be dispensed with, but must be performed. The United States v. Kingsley, 12 Pet. 486.
There are other points that might be noticed, but it is not necessary; and in closing this opinion, I will adopt the language of the supreme court in Lawton's case (5 Howard, 28), as applicable on the present occasion.
This concession, in its leading features, cannot be distinguished from various others, where no specific land was granted, or intended to be granted; but it was left to the grantee to have a survey made of the land in the district referred to by the concession by some person properly authorized, by which additional act the land granted would have been severed from the king's domain, and have become private property.
Let the claim be rejected, and the petition be dismissed, at the costs of the petitioners.