United States v. Levy (38 U.S. 81)/Opinion of the Court

by James Moore Wayne

United States Supreme Court

38 U.S. 81

United States  v.  Levy

This is an appeal from the Superior Court of East Florida.

The appellee, after alleging that he claims title to a certain tract or parcel of land, containing fourteen thousand five hundred acres, situated in East Florida, being a part of a large body consisting of thirty thousand acres, originally granted in full and absolute property, on the 24th day of March, 1817, to Fernando de la Maza Arrendondo-that he had purchased the same after the said fourteen thousand five hundred acres were located and surveyed; he further alleges, that a considerable portion of the land bought by him, is covered by water, and consists of marshes, and 'that by the custom, practice, and usage of the Spanish government, in East Florida, where it happened that at the place designated for the location of the land granted, there was found to be a part of that which would necessarily fall within the survey according to the calls of the grant, covered with water, or consisting of marshes, though included within the boundaries of the survey, it was excluded from the quantity surveyed for the party; and the whole of land clear of such water and marsh, called for by the grant, was surveyed and secured to the party entitled to the benefit thereof.' He then prays that such directions for the survey of the said 14,500 acres of land may be given by the Court, as he is entitled to, by the aforesaid concession, and the said usage, practice, and custom of the Spanish government in East Florida. And he concludes his petition with a prayer, that the validity of his title to the aforesaid tract of land, may be inquired into and decided by the Court.

The Court decides his claim to be good to the 14,500 acres, according to its survey, designating particularly the identity of the land by reference to the survey of Don Andrew Burgeon, who was the surveyor appointed to survey ther concession to Arredondo, and it decrees, that the prayer of appellee, to have the said fourteen thousand five hundred acres of land surveyed to him, excluding land covered with water and marshes-be rejected.

This Court affirms the decree of the Court below. It thinks that the claimant failed to establish by any evidence in the cause, the existence of any such custom or practice in the government of East Florida, in regard to land covered by water, and consisting of marshes; and if such a custom or practice can be proved to exist, it cannot be applied to any concession carried into an actual grant according to a survey made any returned by the officer, or person appointed to make such survey. Such are the facts in this case. The survey was made by Burgeon, the governor having appointed and qualified him for the purpose; and the grant is made by a recital of Burgeon's survey. It is this survey also, which the Court below decrees in favour of the claimant, and which it is to be particularly understood this Court affirms. But this Court thinks it necessary to say further, in affirming the decree of the Court below; rejecting the claim of the petitioner to have fourteen thousand five hundred acres of land surveyed to him, excluding land covered with water and marshes; that even though the survey had not been made, it would not be competent to the Court below, or to this Court, to designate a new location, varying from the original concession, as any such alteration on a concession would be equivalent to a new grant. See the case of the United State vs. Huertas, 9 Peters, 171.

The acts of Congress by which these cases are subjected to judicial investigation and judgment, give no such power to the Courts.

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 adjudged and decreed by this Court, that the decree of the said Superior Court in this cause be, and the same is hereby, in all respects, affirmed.

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