United States v. Forber/Opinion of the Court

by John Catron

United States Supreme Court

40 U.S. 173

United States  v.  Forber

John Forbes, by his memorial to Governor Kindelan (without date), sets forth, that in 1799, there had been granted to Panton, Leslie & Co., for the purpose of agriculture, and for grazing their cattle, 15,000 acres of land, in the district of St. Johns, which they were under the necessity of abandoning, as being of an inferior quality; that said John Forbes is one of the firm of John Forbes & Co., successor to Panton, Leslie & Co. And said John Forbes prays to be admitted to abandon the 15,000 acres to the king's domain; and in lieu thereof, to have granted to him an equivalent in the district of Nassau river, to wit: That 10,000 acres be granted to him in said district of Nassau river, the survey of which he will produce as soon as the tranquillity of the province enables him to execute it. The petition avers the object was to establish a rice plantation.

The petition was referred to the comptroller, Lopez, for a report thereon, to Governor Kindelan; the comptroller reports, that records of such grants were not made in his office, and of course, he could give no information on the subject; but gives it as his opinion, that the culture of rice should be promoted. On the 28th of July 1814, Governor Kindelan permitted the abandonment of the 15,000 acres granted in 1799; and in lieu thereof granted to John Forbes, for the object of cultivating rice, 10,000 acres, in the district or bank of the river Nassau, and ordered a certificate to issue in the ordinary form, from the secretary's office, to serve the party as a title in form; making the duty of said Forbes to produce the plat and demarcation in proper time. On the 23d of October 1816, George F. Clarke, the surveyor, returned, that he had, as surveyor-general of East Florida, surveyed and delineated for Don Juan Forbes, 7000 acres of land, at the head of the river Little St. Mary's, or St. Mary river; said land being the complement of 10,000 acres, which were granted to him in absolute property, conformable to the annexed plat. Previously, on the 20th of October 1816, said Clarke had surveyed for Forbes, 3000 acres in part of the 10,000 acres granted to him, conformable to the annexed plat. This survey was in Cabbage Swamp. But no other description of locality appears, either from the certificate or plat; nor is there any evidence appearing on the surveys, or by proof, that the lands surveyed lie in the district of the river Nassau, or on the bank of said river; on the contrary, the 7000 acre survey is on the river Little St. Mary's, which a woman, Mrs. Fleming, proves she had heard, was near to the Nassau. The situation of Cabbage Swamp does not appear from the record.

The decree of Governor Kindelan contemplated that the tract should be included in one survey; as did the petition of Forbes. Neither of the surveys corresponding with the concession, in regard to the district where the survey could alone be made; and being on lands not granted by the governor of Florida, the surveys, if confirmed, would be recognised as of themselves appropriations of the lands, independently of the concession on which they profess to be founded; making them the origin of title, and assuming that the surveyor had the power to grant. This court has, on all occasions, holden, when the question has been presented, that the survey must be for the land granted by the proper authority. United States v. Clarke, 8 Pet. 468; United States v. Huertas, 9 Ibid. 171.

The courts of justice can only adjudge what has been granted, and declare that the lands granted by the lawful authorities of Spain, are separated from the public domain; but where the land is expressly granted at one place, they have no power, by a decree, to grant an equivalent at another place, and thereby sanction an abandonment of the grant made by the Spanish authorities. All the public domain of Spain was ceded to this government, by the treaty of cession, and the title in fee to the same vested in the United States; from the lands thus acquired, was excepted individual property. First, the paper title to such private property it is our duty to investigate and ascertain, and by our decisions to establish; and secondly, it is our duty to ascertain, and cause to be surveyed and marked by definite boundaries, the lands granted; and here the duties of the courts end. They have no authority to divest the title of the United States, and vest in a claimant, however just his claim may be, an equivalent. These principles seem to be self-evident; and their assertion not called for, because of their undoubted character; yet the consequences flowing from them will be found to govern a class of cases of large magnitude, now in the course of adjudication. The one before us is of that class. The concession or grant (for the terms are synonymous, in regard to the Spanish titles of Florida) to Juan Forbes, was for 10,000 acres in the district or bank of the river Nassau, with an order, that the concession should serve him as a title in form; 'and it will be the duty of the party to produce the plat and demarcations, in the proper time,' says the decree of the Spanish governor. That this concession is founded on a past consideration; that is, on the surrender of other 15,000 acres previously granted to Panton, Leslie & Company, admits of no doubt; still, the question recurs, what spot of land was granted? Of the district of Nassau, we know nothing, as there is no proof of the existence of such a section of country, in the record; unless we infer that it is in the range of country through which the river Nassau runs. But the description is more precise, and authorizes the grantee to take the land on the bank of this river. That there is such a river as the Nassau, in East Florida, lying south of the St. Mary's river, we know from the general geography of the country; it is, however, a river of considerable length; the land might have been located on either bank, from its commencement as a river, to its mouth at the ocean. No survey of the land granted was ever made; the duty imposed upon the grantee to produce the plat and demarcations, in the proper time, was never performed. This was a condition he assumed upon himself; the execution and return of the survey to the proper office, in such case, could only sever the land granted from the public domain. Before, the grantee had an equal right to any lands on either bank of the river Nassau. The concession was made in 1814; and how long the party had the right to survey and make the demarcation, it is needless to inquire, as it has never been done. We apprehend, however, within six months after the ratification of the treaty, by the contracting parties, respectively, was the latest date at which the condition to survey could have been complied with; on this point, however, no definite and conclusive opinion is called for, and none is given.

Thus situated, the claim was presented to the superior court of Florida for confirmation. The court pronounced the claim valid, that is, that the concession had been made by the lawful authorities of Spain; and it was decreed, that the lands 'be confirmed at the place, as in the memorial of the said John Forbes, and the decree of the governor thereon set forth, to wit, 10,000 acres of land in the district or bank of the river Nassau.' From this decree, the United States appealed; and in the review of which decree, we are compelled to find the land granted, or to reject the claim, because we cannot identify the land. If this cannot be done, we have no power to decree an equivalent out of the lands of the United States; for the reason, that the courts have no authority to divest the title of the government, and to vest it in Forbes's heirs. No particular land having been severed from the public domain by John Forbes, his was the familiar case of one having a claim on a large section of country, unlocated; in its nature and effect, as it regards the government, not differing from the holder of a land-warrant in the American states, which might be located by survey at any spot that was not appropriated by an individual title, in a certain district of country. In such a case, the government has ever been deemed to hold the fee, unaffected by a vested equitable interest, until the location was made according to the laws of the particular country. So, here, Forbes acquired no title to any land that can be recognised by a court of justice, and his claim must be pronounced void for want of identity; and because it is impossible to settle the identity, and locate the land by a judicial decree.

Although this question has not been directly presented to the court for decision, yet it did arise, and received our careful consideration, in the case of the United States v. Arredondo, 13 Pet. 88. In that case, 30,000 acres had been granted to Arredondo, in 1817, designated to lie on Alligator creek, a branch of the Suwanee, to begin about seven miles west of Alligatortown; situated about forty miles north-westwardly from Paynestown, and about eighty miles from Buena Vista; which parts of the country are known under the name of Alachua. The court say-'the land must be taken, as near as may be, as it was granted, and cannot be taken elsewhere. It (the grant) gives no right to an equivalent or another location, if it cannot be found at, or near, the place designated; an equivalent is not secured by the concession, in terms, nor is it by the customs or usages of Spain, nor by any law or ordinance of Spain. And it is proper here to remark, that the acts of congress for ascertaining claims and titles to land in Florida, whilst they recognise the patents, grants, concessions or orders of survey, as evidence of title, when lawfully made, do not permit, in case of a deficiency in the quantity from any cause whatever, the survey to be extended on other lands.' Detailed and careful instructions are then given how the court below shall proceed to identify the land; and how it shall be surveyed when the identity is established: and then the court declare, 'if, however, neither Alligator creek can be found, nor any creek to the west of Alligatortown, entering into the Suwanee, within seven miles distance from the town, or a reasonable distance therefrom; and if Alligatortown cannot be found; then, it is the opinion of this court, that the remaining description in the petition, of the locality of the concession, is too indefinite to enable a survey to be made; and that the appellees can take nothing under the concession.' Subject to this opinion, and a mandate in conformity to it, the cause was remanded to the superior court of East Florida, for further proceedings, in execution of the decree and instructions of this court; and where it is probably now pending. We think the principle adopted unquestionably correct, and which rules this case.

The petition of Juan Forbes, and the concession of Governor Kindelan, are authenticated and were read in evidence by the following certificate:

'On the date, a copy of this expediente was given to the interested party above.

AGUILAR.'

We feel strongly impressed with the deficiency and unsatisfactory character of the foregoing certificate; but as no objection was made to the introduction of the title papers in the court below, on behalf of the United States, on the hearing; and as the cause has presented no difficulty on its merits; this preliminary point has been passed over, with this indication; so that in future, the objection may be taken below, should it be deemed desirable to present the question on part of the government, whether such authentication is sufficient to auehorize the evidences of title to be read. We order, the decree of the superior court to be reversed, and that the petition be dismissed.

THIS cause came on to be heard, on the transcript of the record from the superior court for the district of East Florida, and was argued by counsel: On consideration whereof, it is the opinion of this court, that the grant or concession is void for the want of identity; that it appropriates no land; that the said petitioner has acquired no right or title to any specific land. Whereupon, it is now here decreed and ordered by this court, that the decree of the said superior court in this cause be and the same is hereby reversed and annulled; and that this cause be and the same is hereby remanded to the said superior court, with directions to enter a decree in conformity to the opinion of this court.

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