LESSEE OF JOHN POLLARD, WILLIAM POLLARD, JOHN FOWLER AND HARRIET HIS WIFE, HENRY P. ENSIGN AND PHEBE HIS WIFE, GEORGE HUGGINS AND LOUISA HIS WIFE, JOSEPH CASE AND ELIZA HIS WIFE, PLAINTIFF IN ERROR,
v.
JOSEPH F. FILES, DEFENDANT.
Supreme Court of United States.
*598 Coxe, for the plaintiff in error.
Sergeant, for the defendant.
*599 Coxe contended.
*601 Mr. Justice CATRON delivered the opinion of the court.
For the facts of the case, we refer to the report of it. It presents *602 the same titles, and, substantially, the same facts, that were before this court in Pollard's heirs v. Kibbie, 14 Peters, 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 eight article of the treaty with Spain of 1819, by which the Florida's 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 Peters, 254, and again in Garcia v. Lee, 12 Peters, 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 26th May, 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 Co., and that the act 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.
The questions raised by the instruction asked and refused; and 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." 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 Co. 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) 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 took effect. The third section orders all persons, claiming lands, in *604 the previously disputed territory "by virtue of any 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 sec. 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 sec. 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 sec. 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 sec. of the act of March 26th, 1804, 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 *605 from the authorities of Spain before the 20th of December, 1803, a confirmation was recommended: And the land that had been cultivated on or before that day, should be confirmed also, as if the titles had been completed. And as to all the other claims favourably recommended to Congress by the commissioners, the claimant should be entitled to a grant therefor, as a donation not to exceed to any one person more than six hundred and forty acres: That all settlers before the 15th of April, 1813, shall receive a grant for the land claimed, not exceeding six hundred and forty acres, if actually inhabited and cultivated.
On this report the act of March 3d, 1819, was founded and by sec. 2, each settler with title-papers, had confirmed to him his habitation as a donation, not to exceed one thousand two hundred and eighty acres; and this irrespective of the time when the settlement was made, if previous to the 15th of April, 1813; but the grant not to exceed six hundred and forty acres to such settlers as had presented no written evidences of title.
By the 7th, 8th, and 9th sections, those who had filed their notices of claim before the commissioner, and which had not been recommended for confirmation, were allowed to the 1st of July, 1820, to file additional evidence in support of the claim with the register and receiver, of the land-offices respectively established by that act, in the country divided by Pearl river; who had the same powers conferred on them that the commissioner previously had. New claims might also be filed. On these the register and receiver were to report; of course, after the 20th of July, 1820. The land-office for the country including Mobile was at Jackson court-house. Thus the matter stood for eight years.
By the act of March 3d, 1827, further time was given to the first of September, 1827, to claimants whose evidences of claim had been previously filed with the commissioner, to produce further evidence and "to present their titles and claims, and the evidence in support of the same, to the register and receiver of the land-office at St. Stevens." By sec. 2, they were ordered to hold their sessions at the city of Mobile, and there examine the suspended claims on the same principles the commissioner had done.
Thus suspended and protected, stood the title of Pollard when the act of 1824 was passed granting to the city of Mobile the river front. And from any thing appearing to the contrary, it stood equally *606 protected until confirmed by the act of 1836. It was for the sovereign power to judge of its merits; it had never been rejected, and was awaiting the final action of Congress. Furthermore; it was from its situation as a city lot not subject to entry in a land-office, being in no survey of the public lands: and it is a fair construction of the exception to the act of 1824, to hold Pollard's claim was intended to be within the following exception; as well as the one commented on in Pollard v. Kibbie: That is "Provided, that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual, or of any body politic or corporate."
We think Pollard's was a claim of an individual within the exception, and was so deemed by Congress; as the United States, by the first section, only profess to grant their right to the city front: and except all lots confirmed by Congress by that, or any previous act and also such "to which an equitable title existed in favor of any individual under this, or any former act." Then in the second section, the provision examined in the case of Pollard v. Kibbie has direct reference to protection by excepting lots "to which the Spanish government had made a new grant or order of survey," &c. It is obvious the previous obscurity and confusion were intended to be explained by the proviso: simply expressed, that nothing which preceded should affect any individual claim regardless of the fact whether it was good or bad, so it was a recognised claim by the United States. That Pollard's was so, is most apparent by the protection afforded to it: and such is the unanimous opinion of this court, for the reasons formerly and now given, taken together.
Pollard's patent is therefore valid, unless the second instruction given be true that the act of Congress of 1836, and the patent founded on it be void, as relates to the subject in controversy; and therefore the lessors of the plaintiff derived no title from these sources, because the fee-simple of the premises was in John Forbes and Co., when Pollard took his title.
It was held in the City of Mobile v. Elava, 16 Peters, 247, that the improvements referred to in the act of 1824, by virtue of which a title was given to the owner of the old water-lot west of Water street, to the lot immediately east of it, must have been made on the new, and eastern water-lot: second, that such improvement must have been made by the proprietor of the old lot.
*607 Forbes and Co. had none such, and therefore took no benefit under the act of 1824.
If the instruction intended to maintain that Forbes and Co., as riparian proprietors of the lot west of Water street, could claim all the land east of it, to the channel of the river, then we think the court erred: and we take it for granted the court so intended; as by no other means could the land sued for be claimed by Forbes and Co. from any evidence in the record. Their lot was a grant of 1802, for 80 feet front, by 304 feet deep, west of what is now Water street; and bounded on the east by the street as it now exists. High tide formerly reached it; low tide did not: But we deem this an immaterial circumstance. Forbes and Co.'s grant was a specific town lot bounded by streets, then existing or expected to exist; it fronted to the east on a contemplated street, reserved to the public use, as ungranted property; and it never was contemplated by the grant to give any right to the soil beyond its fixed boundary east, as actually surveyed. It does conform, and must conform, to the city arrangement of lots: if it was held otherwise, then every other proprietor of an old front lot could claim over the mud-flat to the channel of the river, as a riparian owner; sweeping through the city property as it now exists by filling up, and raising the flat, to the extent east of probably a thousand feet, or more. We deem such an assumption entirely inadmissible: and therefore think the court also erred in the second instruction given, as well as in refusing that asked on part of the plaintiffs.
With the third instruction this court cannot interfere: and the jury having found for the defendant, no question arises on the fourth instruction.
For the reasons assigned, we order the judgment of the Supreme Court of Alabama to be reversed.
ORDER.
This cause came on to be heard on the transcript of the record from the Supreme Court of the state of Alabama, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court that the judgment of the said Supreme Court of the state of Alabama be, and the same is hereby reversed with costs; and that this cause be, and the same is hereby remanded to the said Supreme Court, that further proceedings may be had therein, in conformity to the opinion of this court, and as to law and justice shall appertain.