344
DISTRICT COURT.
Winter et al. v. United States.
GABRIEL WINTER, WALTER H. OVERTON and HARRIET F. his wife, PETER PETERICK and HARRIET his wife, BLOUNT B. BRAZEALE and MARIETTE his wife, JOHN VIGNAUD and CAROLINE his wife, heirs and legal representatives of Elisha Winter, deceased, petitioners, vs. THE UNITED STATES, defendant.
- Hearsay and reputation are not admissible to prove particular facts in a contest as to private rights, and hence proof that a stone monument was reputed to have been put down to designate a private grant, cannot be received.
- By the laws and ordinances of Spain, and the regulations and usages of the province of Lonisiana, the survey of an open concession or grant was necessary to give it locality and to perfect the title in the grantee, and without which private was not separated from public property, nor was the grant valid as against the government which made it, and hence not valid against the United States.
- The regulations of Count O'Reilly, of 1770; those of Gayoso, of 1797; those of Morales, of 1797; the regulations existing in Florida as to the survey of lands, and decisions of the supreme court of the United States on that subject, referred to and commented on at large.
- A survey of lands under the Spanish government, as with us, meant and consisted in the actual measurement of land, ascertaining the contents by running lines and angles, with compass and chain; establishing corners and boundaries, and designating the same by marking trees, fixing monuments, or referring to existing objects of notoriety on the ground, giving bearings and distances, and making descriptive field notes and plots of the work. 10 Peters, 441; 16 Ib. 198.
- A warrant or order of survey could be executed by the surveyor-general of the province of Louisiana or by any deputy appointed by him, or by the district surveyor, or by the commandant of a post, or by a private person specially authorized by the governor-general or intendant; but Spain never permitted individuals to locate their grants by mere private survey.
- The supreme court of the United States has decided in various cases, that an actual survey of an open concession was a necessary ingredient to its validity, and that it must also have been an authorized survey to sever any land from the royal domain. These cases cited.
- A party is bound to abide by his own pleadings, and cannot therefore be permitted to prove any thing in opposition thereto.
- Therefore a petition which prays for the confirmation of an indefinite grant, and shows on its face by express averment, that the same was not surveyed, presents a case in which the claim must be rejected.
- Fixing a stone post or monument at any particular spot, with however much
