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already issued, conformably to the opinion” delivered by him. Under thi. note is an order of the same date, from the President, requesting the Commissioner to issue patents in conformity with the above recommendation and opinion of the Secretary of the Treasury.'
But Mr. Blake still deferred action on the case.
On the 12th May, 1845, another application for a patent was made by Mr. Isaac T. Preston, as counsel for the claimants, to Mr. Shields, the successor of Mr. Blake, who, on the 24th June following, submitted the same with a report to Mr. Secretary Walker, in which he states, that under the decisions of the Supreme Court he feels bound to regard the grant as within the scope of the authority of Galvez, and as lawfully ex. ecuted by him, but that the question still remains as to the extent of the grant. On this point, after stating the answer in behalf of the claiınants to the opinion of Mr. Birchard, he says: “It is then admitted that there was no actually defined rear boundary to the Houmas, but under the Spanish usages a navigable water course is claimed as that boundary. Mr. Graham was of opinion that the boundaries of the grant must be fixed by the courts, and in order to give scope for their discretion, limited the survey of the rear line to a league and a half, thereby giving upwards of 18,000 acres to the claim. *** Looking to the object for which the grant was asked, I feel constrained to say, that I cannot decide that the usages of the province authorized such an extension, or that Galvez contemplated a grant for such an extent of territory, but must agree with Commissioner Graham and Secretary Spencer, that the rear boundaries should be determined by the courts or by Congress.' He further states that he cannot satisfy himself that the act of 18th April, 1814, has reference to any cases except those on which confirmation certificates were authorized to be issued for claims to the extent of a league square; concurring on this point also with Secretary Spencer, and answering the question what was required of the executive officers under existing laws in regard to this claim, he states that under the provisions of the act of 3d March, 1811, the land to the extent claimed should have been reserved from sale until the final decision of Congress. The act referred to declares, “that till after the final decision of Congress thereon, no tract of land shall be offered for sale, the claim to which has been in due time, and according to law, presented to the register of the land office, and filed in his office for the purpose of being investigated by the commissioners appointed for the purpose of ascertaining the rights of persons." The report continues, that “ by this course the claimants would be left to their origival grant on which to rest and defend their rights under the supreme law of the land, and the Executive in any future proceedings would be governed by the decision of Congress and of the courts;'' and alluding to the directions of the former Secretary of the Treasury and the Presi. dent to issue a patent, he requests instructions on the subject.
The joint resolution directing the Attorney General to make this examination having subsequently passed, Mr. Secretary Walker has suspended the giving of the instructions requested.
On the 6th June, 1846, the Senate passed a resolution directing the Commissioner of the General Land Office to furnish certain information respecting the Donaldson and Scott and Clarke claims, the nature of which will appear from the answer of that officer. (Senate Journal, p. 329.) On the 10th June the Commissioner made his report, which, on the 12 h, was ordered to be printed. (Senate Doc. No. 389, 1st session 29th Congress.) It appears by that report that the number of acres in these two tracts, according to the claiın, is
82, 111.00 The aggregate of acres embraced in the two patents is 64, 699.79
The difference about
The seventeen thousand acres of the claim which was thus excluded from the patents, are represented to be situated on the Iberville, or Manchac, and Mississippi rivers, and to be embraced in other private claims; and the report refers to the blue color (on plat H) to exhibit their location. It states that the number of patents issued for lands purchased within the limits of this claim, as patented, was twenty, containing 2,736.48 aeres; that eleven of these patents had been surrendered to be cancelled, and that the amount of the purchase-inoney refunded thereon was $2,163 12; that the number of entries upon which application had been made to refund the purchase money, since the issuing of the patents, was one hun. dred and four, containing 17,002.83 acres; and that the amount refunded was $21,253 54. By a statement among the papers, it appears that the total number of acres entered under pre-emptions and otherwise, in the three tracts, and the purchase money received thereon, were as follows: Acres
$50, 327 32
I regret that I have not found it consistent with a proper understanding of the subject to abridge this narrative within narrower limits. Its length has much exceeded my expectations. It was, however, in some degree unavoidable, in order to present a clear view of the case to the President, on whom important duties are devolved by the joint resolution, in the event that my opinion should be adverse to the authority assumed in granting the patents. If any errors have occurred in selecting what appeared to be material, a reference to the source from which I have drawn will at once correct them.
I will now proceed to examine the legal questions on which I am di. rected to report my opinion.
In the first place, I am of opinion that the grant by Galvez to Maurice Conway is a perfect and complete grant, duly made and consummated before the cession of Louisiana to the United States, protected by the treaty of cession, and, in the language of the Supreme Court in the case of the United States vs Wiggin, (1Ă Pet., 350,) is “intrinsically valid, and needs no sanction from the legislative or judicial departinent of this government."
The great question to be determined, however, as before remarked, is the extent of the lands which were severed from the domains of the crown of Spain by the terms of the grant; or, in other words, the limits and boundaries of the tract secured, and guarantied by the treaty.
The claimants contend that it includes not only the lands surveyed and severed, but all the rear lands above described, as far as the rivers Amite and Iberville, and Lake Maurepas. It must be admitted that the language of the petition is somewhat broader than the survey and location. But, if there were no other means of identifying the land, or of ascer
taining the limits, than are to be found in that source, I would be compelled to hold that the whole proceedings are so vague and indefinite that the grant must be considered void on that account. It is insisted that the words of the grant are so fully explained and qualified by the general expressions of the preamble, decree, and petition, as to avoid all such uncertainty, and manifestly to authorize such an interpretation of the terms of the grant, and of the description therein of the land granted, as will give to the grantee, and those claiming under him, all the domain in the rear of the first concession belonging at that time to the government of Louisiana. In furtherance of this view, it is insisted that the several papers, when considered together as parts of one transaction, will admit of no other limitation than the one assumed, which extends the depth to the boundaries of the province. This cannot be admitted, it seems to me, without overlooking entirely the first action of Unzaga upon the petition of Conway, in which he directs the setting and marking of the boundaries; nor without rejecting altogether the essential parts of the official survey, made in pursuance of that order, and constituting the most important element of the proceedings upon which the final decree or grant was based. After full consideration of the question, I dissent from the views of the claimants, and have come to the conclusion that, by the terms of the grant and preliminary proceedings upon which it is founded, a complete legal title vested in the said Conway only to the extent of the survey-making the side lines forty-two arpens in the depth, or half a league from the front, on the Mississippi river.
In forining this conclusion, I have not been unmindful of the importance of the suggestion, that the evidences of title, in this case, are not to be measured by the strict, though just and certain, rules of the common law, but should be considered in connexion with the usages and customs of the province prevailing at the time when the grant was made. The propriety of the suggestion is freely admitted, and has been fully weighed. It led me to examine whether there was any recognised usage or regulation, which could come in aid of the proceedings to expand the legal rights of the party beyond the survey and well defined location upon the land. No case has been cited disclosing any such custom, usage, or regulation; and it is presumed none can be found where the principle has been approved by the courts of the United States. Until that principle shall have been sanctioned by the courts of this country, I must hold that it is not competent for a judicial tribunal to enlarge the boundaries of a graut beyond the actual survey and location upon which it was made. It is even more certain that the principle cannot be sus. tained, where, as in this case, the description ot the land contained in the grant, and papers annexed to it, is too indefinite and uncertain to give it force and effect, without the survey and location upon which it is based. It is too well settled, I think, to be controverted, that, according to the laws, usages, and customs of the Spanish government, nothing short of an effective grant from the governor could confer a complete title either to a front or back concession. It is undoubtedly true that an incomplete right might be accquired under an order or warrant of survey. Back con. Cessions, it seems, were seldom made; and in no instance, of which there appears to be any authentic account, except to the proprietors of the front; and, where made, uniformly had a depth of forty arpens, reckoning from the rear line of the first concession. But the same forms of title appear
to have been required in the one as in the other; and in no case could a fee simple estate be acquired froin the government without the severince of a definite tract from the mass of the public lauds uuder the operation of a complete grant. Under these circumstances, I find myself obliged to decide, upon the facts before mø, that the complete title stops with the limits of the survey and location. The examination which I have made of the question has produced full conviction on my mind, that there is no principle of law, that has been recognised and approved, to justify the estension of the complete fee simple title beyond those liinits; and I can conceive of none which it would be safe to apply to the titles of real estate to expand them. Any other rule of interpretation of the legal rights of these parties, in this respect, would be controverted in every stage of the proceedings inder which they claim. It would be impeached even by the prayer of the petition of Conway, in which he asks to be put in pos. session of the front and depth, setting the boundaries. It would be in direct conflict with the order of Unzaga, addressed to the surveyor, in which he directs that the surveyor shall set and mark the boundaries. It would repudiate the whole survey upon which the front as well as depth, in a great measure, reposes under the grant; and it would be wholly unsupported by the final decree or grant, which merely approves the previous operations, and grants the land accordingly. In order to test the correctness of the couclusion, it
be proper to examine with more care the grounds upon which it rests, and to consider the objections that may be urged against it, and to compare both with some considerations not appearing upon the face of the papers.
It is too well known, I think, to be disputed, that the regulations of O'Reilly were in full force at the date of this grant, and the survey of Andry. By the twelfth article of those regulations it is declared, that "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 two adjoining settlers, who shall be present at the survey. The above mentioned four persons shall sign the procès-verbul 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 cabildo; another shall be delivered to the governor general; and the third to the proprietor, to be annexed to the titles of his grant." (1 Clarke's Land Laws, p. 979.
It has never been questioned, I believe, that these regulations, during the period they were in force, were of binding obligation upon subordinale officers; nor is there any pretence that Unzaga relaxed their operation in this case, or dispensed with their requirements. On the contrary, it is shown by his decree, that they were substantially reaffirmed and re enacted, in his order directing the surveyor to set and mark the boundaries. But suppose it were otherwise; they constitute the best known guide to the usages and customs of the province in regard to surveys. Iu this respect all will agree, I presume, that they should have considerable influence upon the question, as constituting the most authoritative exposition of the law making power of the province upon the general subject of surveys. They furnish, also, the best known criterion by which to judge what kind of a survey was required, when the terms of the grant were indefinite, to work a severance of the tract from the domains of the Crown, and to convert it, under the operaticn of the grant, into private property.
It cannot be admitted, at this day, that any other lands pass by a con: veyance or grant, than such as can be identified and defined by some of the modes authorized by law for ascertaining such facts. The Spanish regulation, it seems, required the bounds to be fixed in front and depth, in presence of the judge ordinary and two adjoining settlers. All the re. quirements of the article, so far as they are applicable to the duties of a surveyor, were obeyed and followed in this case. This appears by the official certificate aunexed to the title of Conway.. A slight examination of the order of survey issued upon the perition, and of the certificate of survey, will be sufficient to demonstrate that the twelfth article of these regulations constituted the guide at least in these proceedings. The order or deeree heretofore given in its exact language, bears date at New Orleans, 27th September, 1776. The proper officer is directed, in substance, to go to the land, and put the petitioner in possession of that which may be vacant in the rear of his plantation, provided it is not claimed by others, and the possession so to be given do not injure the adjoining occupants, "to the ffect of which,” according to the translation of the claimants, "he shall set and mark the boundarirs;" or, according to the version, 1 Clarke's Land Laws, p. 955, “to which effect he shall establish his boundaries and limits." The disagreement is only in the form of expression, and cannot atiect the merits of the question, both versions requiring the surveyor to mark or establish the boundaries of the tract to be surveyed. The regulations show what was intended by the order requiring the setting and marking of the boundaries; it was in the emphatic words of the twelfth article, to fix the boundaries thereof in front and in depth.
Assuming that the tract does not extend beyoud the forty two arpens in depih, then Audry obeyed the directions of the authority linder which he acied, performning his duty according to law, and his return is fully sus. tained. One class of the decided cases, ciied by the counsel, lays down a principle of much importance on this point. It is, that an act done in pursuance of a public authority is presumed to be correct, or that he who alleges that an officer intrusted with an important duty has violated his instructions must show it." Upon no just principle can those claiming under Conway be permitted to deuy either the accuracy or the complete. ness of the certificate of Andry, as it is a necessary part of the title papers to uphold their rights, and bears upou its face the signature of Conway, placed there by himself, in pursuance of the regulations aforesaid. It is essential to the validity of the grant itself ; and without it, in my judg. ment, these parties would take nothing by their clain,. The manner of the survey, and the extent of the operations in the field, are stated in the official certificate with great particularity, showing a strict and full compliance with the rules of survey prescribed in the regulations of O'Reilly. It is only necessary to advert to the actiou of the surveyor when he closed the survey on the side lines. The last monument planted by him on the upper line was at the distance of forty two arpens from the river. Did this close the survey on that line? The certificate so declares at the commencement of the next sentence: “This live being thus drawn, I went to the lower one, common with Michel Chiasson,” is the language in the translation of the claimants; and in Clarke's Land Laws it is still stronger: "This line being concluded, I went to the lower one.' The inquiry as to which of the translations is most literal, becomes immaterial, as each is