THE UNITED STATES, APPELLANT,
v.
JOHN BREWARD, APPELLEE.
Supreme Court of United States.
*145 The case was argued by Mr. Legare, the attorney-general, for the appellants; and by Mr. Wilde, for the appellee.
Mr. Justice CATRON delivered the opinion of the Court.
The petitioner asked five miles square of land, being sixteen thousand acres, on Little Cedar Creek, of St. John's river; he intending to establish a mill to saw lumber. Ten thousand acres were asked for in the neighbourhood of the place; and the remaining six thousand acres, in Cedar Swamp, on the west side of St. John's river, and in Cabbage Hammock, on the east side of that river.
On the 20th of August, 1816, the Governor of Florida decreed the same, on the condition the mill was built. The condition was complied with.
1. On the 27th of May, 1817, George F. Clark, the surveyor-general of the province, surveyed for Breward seven thousand *146 acres, including Little Cedar Creek; and bounded on three sides by Big Cedar Creek and Dunn's Creek; and which includes the mill. This survey is valid.
2. There were laid off three thousand acres on the northern part of the river St. John's, and east of the Royal Road, leading from the river to St. Mary's. This survey is proved to lie four or five miles from the first survey, and is on Front Creek. It was made the 28th of August, 1819.
By the eighth article of the Florida Treaty, all grants of land made before the 24th of January, 1818, by his Catholic Majesty, were confirmed. But all grants made since the 24th of January, 1818, when the first proposal by his majesty was made for the cession of the country, are declared and agreed by the treaty to be null and void. This survey having been made at a different place from the land granted, would, if confirmed, be a new appropriation of so much land; and void, if it had been ordered by the Governor of Florida, and, of course, it is void, having nothing to uphold it but the act of the surveyor-general. So this Court held in Seton's case, 10 Peters, 309. The party, however, is entitled to his entire ten thousand acres in the neighbourhood of Little Cedar Creek. The decree confirming the three thousand acre survey, is therefore reversed; and this quantity of land will be ordered by the Superior Court of East Florida, to be surveyed adjoining the seven thousand acre survey, on vacant land; the addition to conform to the fourth article of the instructions to the surveyor-general, of the 10th of June, 1811, (Land Laws United States, 1004.) The seven thousand acres, and the three thousand acres, will be laid down in connection, as one ten thousand acre survey. Not more than one-third can be bounded in front on the river St. John's, should the claimant choose to add the three thousand acres next to either side of the seven thousand acre tract adjoining the river. The seven thousand acre survey being three hundred and sixty chains deep, the ten thousand acres can only front one hundred and twenty chains.
A motion was made to the Court below, on the part of the petitioner, to be permitted to introduce testimony in regard to the survey of three thousand acres; when offered, the counsel for the United States withdrew the objections to the introduction of the paper.
*147 It is now insisted for complainant, that the validity and legality of the survey was admitted; and Richard's Case, 8 Peters, 470; Sibbald's Case, 10 Peters, 323; and Seton's Case, 10 Peters, 309, are relied upon.
These authorities, we think, do not sustain the argument. It being necessary to establish that such a survey had been made by the surveyor-general, proof of his signature was primâ facie sufficient to authorize the reading of the paper; and if the attorney of the United States was satisfied that the plat and certificate had been made by that officer, (about which he could hardly be mistaken.) to require proof of the fact would have been useless.
The contests on Aguilar's certificates have been numerous. Nothing was required but proof of the secretary's signature to admit in evidence the copy of the concession; so this Court held in Mrs. Wiggin's Case, 14 Peters, 346: but when the concession was admitted, its legality was not conceded by the defendant: no such ground has been, to our recollection, assumed, nor do we think it can be assumed in regard to the survey. To test its legality by the laws and regulations of Spain, it was necessary the Court should have the survey in evidence. It was the common case of the competency of a title paper, wanting legal effect: the Court, therefore, properly admitted the paper, but improperly adjudged it gave title to the land.
3. The next survey (dated in 1819) is for two thousand acres in Cedar Swamp, west of the river St. John's, at a place known under the name of Sugar Town. Had this last designation been left out, no difficulty could be raised in regard to the fact that the survey had been located at the place granted; nor do we think this makes any difference, although a witness proves he knew nothing of such a town.
The surveyor having described the land as laid off within the description of the grant, we take the fact to be primâ facie, as he certifies it; nor do we think the certificate discredited by the further description, even should the object called for not be found. This survey is therefore confirmed.
4. The survey for four thousand acres, (dated in April, 1819,) is in Cabbage Hammock, and within the grant, taking the certificate of the surveyor-general to be primâ facie true. And this, we think, is the credit that lawfully attaches to it. His duties *148 were prescribed by the instructions to him, in 1811, (Land Laws, 1034;) and if his plot and certificate are lawful on their face, they must be accredited, until the United States disprove them; which they have the right to do, if the survey on the ground does not, in fact, correspond to the land granted; although the certificate may declare it to be at the proper place. This survey is also confirmed.
The cause is, however, remanded to the Court below, to be further proceeded in, as regards the rejected survey of three thousand acres.