delivered the opinion of the court.
The plaintiff alleges, that he is owner of a tract of land on the Mississippi, with a double concession, or eighty arpents in depth, under a complete Spanish patent, and his title has been confirmed by the land commissioners of the United States; and although he, and those under whom he claims, have been in possession for a very long time, the defendants have entered upon, and claimed the lower part of the double concession, on which they have committed great waste.
The defendant pleaded the general issue; that the part of the land which the plaintiff claims from him, was set apart and separated from the king’s domain, by the Spanish authorities, half a century ago; and was one of the first settlements made by the colonists, of the post or district of Valenzuela, on Bayou Lafourche, fronting on the same, and having the ordinary depth of forty arpents, and has been constantly in the peaceable, quiet, just and undisturbed possession of the defendant, or those under whom he holds, cultivating the same ever since ; within the knowledge of the plaintiff, for upwards of fifteen years. He claimed the value of his improvements, and called his vendor in warranty. By an amended answer, the defendant avers that he held the lands by a regular chain of titles from the original settlers of Valenzuela, in 1779. That his claim has been confirmed by the land commissioners of the United States: He also pleads prescription. He further avers, that the title of those under whom he claims has been frequently recognized by the plaintiff, and those under whom he claims.
There was verdict and judgment for the defendant, and after an unsuccessful attempt to obtain a new trial, the plaintiff appealed.
It appears that the plaintiff has title, by several conveyanees, to a tract of land, lying on the Mississippi, near Bayou Lafourche, originally granted to one Le Blanc, about the year *81775, with a depth of forty arpents. That in the year 1779, those under whom the defendants claim, being settlers, brought at the expense of the crown from the Canary Islands, had lots of ground allotted to them, by metes and bounds, and surveyed by the king’s surveyor general, fronting on the Bayou Lafourche, and extending therefrom to the back of the land granted to Le Blanc. That these settlers, being placed on the ground allotted to them, were at first furnished with rations, from the royal stores, until they wfere able to subsist on the produce of the land which they improved and cultivated. That in the year 1796, John Peychaux, who had succeeded to Le Blanc, in the ownership of the tract of land granted to him in 1775, obtained from the Spanish government the double concession of the said tract, to wit: the prolongation of its lateral lines, to the distance of forty arpents. And it is in evidence that, the locus in quo, claimed “ by both parties to this suit, is within the second concession of the original tract granted to Le Blanc.
The plaintiff claims a back concession of forty arpents under a Spanish grant made in 1796, which runs into the defendant’s tract fronting on Bayou Lafourche, * and which was set-off, by the king’s surveyor, in metes and boundsto certain settlers or colonists, without any regular grant, in 1779.Both plaintiff and defendant have obtained a confirmation of their title by the United States. Joseph Comes, under whom the plaintiff claims, purchased at the sale of the succession of Peychaux, the original tract granted to Le Blanc, with the second concession which Peychaux had obtained, and in his act of sale, the premises are sold without prejudice to the settlements on the Bayou Lafourche. Siempre que no perjudiques U los establecimientos de dendro de Lafourche.
It is, therefore, clear, that Comes did not acquire, and consequently could not convey, any land which made part of the settlements fronting on the Bayou Lafourche, and extending behind the tract originally granted to Le Blanc, the rear of which land, was within the forty arpents, composing the second concession, obtained by Peychaux in 1796, and seventeen years after the formation of the settlement of Valenzuela in 1797. The king of Spain, haying in that year parted with all his right to the lot of land on which Perera and Domingues, under whom the defendant claims, were settled, his governor could not, by a posterior grant, destroy the title vested in those settlers.
Held, that this title is superior, and will hold the land against the Spanish grant of subsequent date. The Spanish government recognizes verbal as well as written grants to land ; and a verbal grant, set off by the king’s surveyor, passes all the right of the king to the domain, which cannot be subsequently granted by any of his governors. After long and continued possession of land for nearly half a century,ifa written grant were necessary, the testimony of witnesses, after the loss of the archives and titles, will authorise the court to presume it.In the title of Stephen A. Hopkins, the vendee of Comes, the imperfection of the vendor’s right to the second concession, prevented an absolute conveyance of it, and nothing was sold but the pretensions of the vendor to this second concession. On these facts, we are of the opinion that, the plaintiff has failed to show a title in himself. Admitting that the defendant has shown no title under Perera and Domingues, it is clear that the land granted to these two settlers, was expressly excluded from'that sold to Joseph Comes, and by strong implication in the sale from Comes to Hopkins. This renders it unnecessary to examine whether the defendant has shown title in himself, under Perera and Domingues.
It has, lastly, been urged, that the defendant has failed to show an actual grant, in writing, to any of the colonists of Valenzuela.
The Spanish government recognized verbal, as well as written grants. Strother vs. Lucas, 12 Peters, 10, 447-450; Sanchez and Wife vs. Gonzales, 11 Martin 207; Le Blanc et al. vs. Victor et al.; 3 Louisiana Reports, 47. The authority of Laveau Trudeau, the king’s surveyor, is presumed, according to the decision of the Supreme Court of the United States, in the case above cited, of Strother vs. Lucas, 12 Peters, 437.
It is in evidence, that the colonists were placed on their respective lots by the officers of the king; that his surveyor general surveyed each lot, and marked its metes and bounds, the stakes whereof are, in many parts, still extant. That the archives of the province were partially destroyed in the conflagration of New-Orleans, in 1788, and whatever escaped from the flames was carried away on the transfer of the province. After such a long possession in the colonists, and those who claim under them, if a written grant were necessary, the evidence before us would authorize us to presume it. The jury have done so, and we believe they did not err.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.