Pollard's Lessee v. Files. 2 H. now sued for was, in the year one thousand eight hundred and twentyfour, and is now, known as a water lot; that it lies on the east side of Water street; that what is now Water street was, under the Spanish government, and at the date of the grant to Forbes and Company, hereafter attached, a natural ridge, and that the ordinary tides did not overflow said ridge, and very high tides entirely covered said ridge; that to the north of the lots lying immediately west of the lot sued for, near Conti street, there was a depression in said ridge, where the water, at high tide, flowed around upon the eastern part of the lots lying, as before stated, immediately west of the lot sued for, and which were known as water lots under the Spanish government. The plaintiffs then gave in evidence that John Forbes and Company applied for and obtained permission from the Spanish government, to open or cut the canal which was called John Forbes and Company's canal, after they had obtained a grant for the lot lying immediately west of said canal. The defendant, in order to maintain the issue on his part, gave in evidence a Spanish grant to John Forbes and Company, for a lot of ground eighty feet front on Royal street, with a depth of three hundred and four feet to the east, which is hereto attached and marked A, together with the plat or survey thereto attached, which is made part of this bill of exceptions; and proved that the said lot was situated immediately west of the lot sued for, and was separated from it now only by Water street; but that Water street was not known at the date of this grant, and that said street was laid off in 1820 and 1821. The defendant further gave in evidence a certificate of confirmation for the said lot to John Forbes and Company, who were the successors of Panton, Leslie, and Company, the original grantees, which is also made a part of this bill of exceptions, and marked B, by which it will appear that three hundred and four feet were confirmed to Forbes and Company. The defendant also proved that one Curtis Lewis, some time in 1822 or 1823, sunk some flat boats in the canal called Forbes and Company's, and proceeded to fill up the lots now sued for; but that one James Inerarily, one of the firm of Forbes and Company, dispossessed him in the night, and erected a smith's shop, and continued in possession about nine months, when Curtis Lewis regained possession by writ of forcible entry and detainer. It further appeared in evidence that the ridge in Water [* 596 ] street was about fifteen or twenty feet in width, and that it was covered by the ordinary tides for about one third of its width, up to the year 1822, and that all the land east of Water street, as Pollard's Lessee v. Files. 2 H. at present laid out, up to 1813, was below the ordinary high-water mark. It further appeared that the firm of Forbes and Company entered upon the lot granted to them as aforesaid, and made valuable improvements on it, and fulfilled the conditions of the grant, and on the 25th of May, 1824, held the land to the west of Water street without dispute. It further appeared that the first improvements on the lot east of Water street were made by Curtis Lewis, except the canal and improvements along it, of John Forbes and Company; but it was also in evidence that, in 1811, a witness had seen the servants of William Pollard removing some drift wood and piling some lumber on the lot in question. The defendant then connected himself with the title of Curtis Lewis, Forbes, and Company, and the corporation of the city of Mobile, which claimed the same by virtue of the act of 1824, above referred to. Whereupon the plaintiffs, by their counsel, prayed the court to charge the jury, First, that the said Spanish grant made to William Pollard was ratified and confirmed by the 8th article [* 597 ] * of the treaty of amity, settlements, and limits, between the United States and his Catholic majesty, dated 22d February, 1819;' which charge the court refused to give; to which the plaintiffs, by their counsel excepted. The plaintiffs then, by their counsel, prayed the court to charge the jury that the act of congress of July 2, 1836, confirmed the said Spanish grant to Pollard, which charge the court refused to give, but on the contrary, charged the jury, if they believed the evidence to be true, the fee-simple to the premises sued for were vested in Forbes and Company, and that the acts of congress of 1824 and 1836, and the patent in pursuance thereof, were utterly void, so far as relates to the premises in question, and that no title vested in the lessors of plaintiff by virtue of said acts of congress and said patent, to which charge the plaintiffs excepted. This opinion of the court was affirmed by the supreme court of the State of Alabama. Coxe, for the plaintiff in error. Sergeant, for the defendant. [ *601 ] 'CATRON, J., delivered the opinion of the court. '8 Stats. at Large, 252. Pollard's Lessee v. Files. 2 H. For the facts of the case, we refer to the report of it. It presents the same titles, and, substantially, the same facts, [*602 ] that were before this court in Pollard's Heirs v. Kibbe, 14 Pet. 353. The first instruction asked by the plaintiff of the state circuit court is, that the Spanish grant made to William Pollard was ratified and confirmed by the 8th article of the treaty with Spain of 1819, by which the Floridas were acquired. This the court refused to give, and correctly. It is the settled doctrine of the judicial department of this government, that the treaty of 1819 ceded no territory west of the River Perdido, but only that east of it; and therefore all grants made by Spain after the United States acquired the country from France, in 1803, are void, if the lands granted lay west of that river; because made on territory acquired by the treaty of 1803, which extended to the Perdido east. It was thus held in Foster and Elam v. Neilson, 2 Pet. 253, and again in Garcia v. Lee, 12 Pet. 515, and is not now open to controversy in this court. 2. The plaintiffs then, by their counsel, prayed the court to charge the jury that the act of congress of July 2, 1836, confirmed the said Spanish grant to Pollard, which charge the court refused to give, but, on the contrary, charged the jury, if they believed the evidence to be true, the fee-simple to the premises sued for were vested in Forbes and Company, and that the act of congress of 1824 and 1836, and the patent issued in pursuance thereof, were utterly void, so far as relates to the premises in question, and that no title vested in the lessors of plaintiff by virtue of said acts of congress and said patent; to which charge the plaintiffs excepted. The questions raised by the instruction asked and refused; and by that given, will be examined so far only as to decide the present case. This court held, when Pollard's title was before it, formerly, that congress had the power to grant the land to him by the act of 1836; on this point there was no difference of opinion at that time among the judges. The difference to which the supreme court of Alabama, in the present case refers, (in its opinion in the record,) grew out of the construction given by a majority of the court to the act of 1824, by which the vacant lands east of Water street, were granted to the city of Mobile. That grant excepted out of it, all lots to which "the Spanish government had made a new grant, or order of survey for the same, during the time at which they had the power to grant the same." 18 Stats. at Large, 200. Pollard's Lessee v. Files. 2 H. If Pollard's was such "a new grant," then the land [ * 603 ] * covered by it was excepted, and did not pass to the city; and the act of 1836, and the patent founded on it, passed the title to Pollard. After the country west of the Perdido had been acquired by the treaty of 1803, the Spanish government continued to exercise jurisdiction over the country, including the city of Mobile, for some nine years; the United States not seeing proper to take possession, and Spain refusing to surrender it, on the assumption that the country had not been ceded by that kingdom to France in the treaty of 1800; and, of course, that it did not pass to this country by our treaty with France. That Spain had no power to grant the soil, during the time she thus wrongfully held the possession, is settled by the cases cited of Foster and Elam v. Neilson, and Garcia v. Lee. But the right necessarily incident to the exercise of jurisdiction over the country and people, rendered it proper that permits to settle and improve, by cultivation, or to authorize the erection of establishments for mechanical purposes, should be granted. And to this end the concession to Pollard, of December, 1809, was made. He set forth in his petition to the commandant, that he had a mill established on his plantation, and often came to Mobile with planks and property from it, and that he wished a place propitious and suitable for the landing and safety thereof; and, having found a vacant piece at the river side, between the canal of Forbes and Company and the public wharf, he solicits the commandant to grant him said lot on the river bank, to give more facility to his trading. This lot, the governor granted to Pollard for the purpose set forth by him. The use, for the purpose solicited, during the time the Spanish authorities were exercised, could be properly granted; of this there can be no doubt. Very many permits to settle on the public domain and cultivate were also granted about the same time; which were in form incipient concessions of the land, and intended by the governor to give title, and to receive confirmation afterwards from the king's deputy, so as to perfect them into a complete title. Pollard's was also of this description. Although the United States disavowed that any right to the soil passed by such concessions, still, they were not disregarded as giving no equity to the claimant; on the contrary, the first act of congress, passed (of April 25, 1812,1) after we got possession of the country, appointed a commissioner to report to congress on them in common with all others originating before the treaty of 1803 1 2 Stats. at Large, 713. Pollard's Lessee v. Files. 2 H. took effect. The 3d section orders all persons, claiming lands in the previously disputed territory "by virtue of any [* 604 ] grant, order of survey, or other evidence of claim, whatsoever derived from the French, British, or Spanish governments, to be laid before the commissioner, with a notice in writing, stating the nature, &c., of the claim." On these, (by sect. 5,) the commissioner had power given him to inquire into the justice and validity of the claims; and in every case it was his duty to ascertain whether the lands claimed had been inhabited and cultivated; at what time the inhabitation and cultivation commenced; when surveyed and by whom; and by what authority, and into every matter affecting their justice and validity. By sect. 6, abstracts were to be furnished to the secretary of the treasury, of the claims, arranged in classes, according to their respective merits, and these abstracts, &c., were to be laid before congress, for their determination thereon, &c. By sect. 8, the commissioner was ordered to report to congress at its next session, a list of all actual settlers on the land in his district, who had no claims derived from either the French, British, or Spanish governments, and the time such settlements were made. In January, 1816, the report of commissioner (Crawford) was laid before congress. 3 Am. State Papers, 6, " Public Lands." The 14th section of the act of March 26, 1804,1 declares all grants void if made for lands within the territories ceded by the French republic to the United States, by the treaty of the 13th of April, 1803, (and which had been acquired by France from Spain,) that had been made after the date above. Provided, that the law should not be construed to make void any bona fide grant made by the Spanish government, to an actual settler on the lands granted, for himself, and for his wife and family, &c. On Pollard's claim the commissioner reported unfavorably, because it had "not been inhabited nor cultivated." 3 State Papers, 18. The bill of exceptions refers to this report as it stands in the book, as part of the bill of exceptions, and as such it is treated by us. In April, 1818, by a resolution of the senate, it was referred to the secretary of the treasury to furnish a plan, for an adjustment of the claims reported on by the commissioners east and west of Pearl River; and on the 7th of December, 1818, the secretary made his report in the form of a bill. 3 State Papers, 391. On all the imperfect claims favorably reported on by the commissioners, derived from * the authorities of Spain before the 20th of December, 1803, [* 605] a confirmation was recommended. And the land that had 1 2 Stats. at Large, 287. |