United States v. Lawton (46 U.S. 10)/Opinion of the Court

by John Catron

United States Supreme Court

46 U.S. 10

United States  v.  Lawton

On the 13th of November, 1841, the evidence of Mauricio Sanchez, Joseph S. Sanchez, and John M. Fontane was filed, in addition to that of Antonio Alvarez, all of which is as follows:--

Testimony of Antonio Alvarez, a witness produced, sworn, and examined on the part of the claimants.

Witnesses says, 'I am keeper of the public archives of East Florida'; a certificate, with the name of Thomas de Aguilar signed to it, being shown to witness, he says, 'this document was transferred to my office by the land-commissioners. It is in the handwriting of Thomas de Aguilar, and is signed by him. The certified copy here produced and filed in this cause (by me certified) is a true copy of this paper. This certificate of Aguilar came into my office in 1829, or early in 1830. This claim of Darley was filed before the board of land-commissioners, 29th November, 1823. The plat and survey, it appears, were filed with the commissioners on that day. I was in the secretary's office here in 1817. The paper which we used was from Havana; we usually got our paper there; never got American paper that I remember. The inhabitants here were in the habit of using American, or English, or Spanish paper. Paper imported from the United States was common in those days.'

Being cross-examined, witness says, the paper on which the Aguilar certificate is written is Spanish paper. The survey is on American paper. Clarke did not do his business in the secretary's office.

Testimony of Mauricio Sanchez, Joseph S. Sanchez, and John M. Fontane, witnesses produced, sworn, and examined on the part of the claimants.

Mauricio Sanchez, sworn, says, 'I know the lake called Dunn's lake; have known it about fourteen years. It is on the east side of the St. John's river, and about fifty miles southwest of St. Augustine. I know of no other lake of that name; it empties into the St. John's. The lake is about fifteen miles long, and about three or four miles wide. I lived on the lake with my uncle, Ramon Sanchez, above six or eight years. This is Dunn's lake on the St. John's.'

Cross-examined by United States attorney.

Witness says, 'From the river St. John's you go about ten miles through a deep creek to the lake. It is about five miles to Lake George. The St. John's river makes a bend west of this lake, and leaves a deep strip between it and the river St. John's. This strip of land is sometimes called Cows-neck, and sometimes Dunn's lake neck. There is a swamp on the west side of the lake, continuing eight or nine miles up from the mouth of the outlet. The spots of hard land, and some swamps and sawgrass,' &c.

By the court.

'If I had a grant on Dunn's lake, I think I should have it lying on Dunn's lake. The strip, or Cows-neck, is from six to ten miles wide, perhaps more. The outlet of the lake, by the meanders, is about ten miles; in a straight line, perhaps six miles. This outlet is a narrow creek, very deep, sometimes an hundred yards wide, sometimes narrower.'

Joseph S. Sanchez, being duly sworn, says:--

'I have known Dunn's lake for fifteen years. I have resided there, and know it well. It empties into the St. John's by a creek called Dunn's creek. The lake is east of the St. John's; it is about five or six miles from the St. John's. The widest part of the strip of land is near the beginning of the creek.'

Cross-examined by counsel for the United States.

'I know of no place on the St. John's river called Dunn's lake, except this. The mouth of the outlet in the St. John's is about seven miles above Pilatka. From Hambly's store on the St. John's it is about seven or eight miles across to the lake; above there it is perhaps four or five. Dunn's creek is about twenty or thirty feet wide, and in going up into the lake, you go in a southeasterly direction, about ten miles by the meanders of the creek, and about seven miles in a straight line. The lake is about fifteen miles long, and about three miles wide on an average, and lies nearly north and south. A swamp extends up the lake about half way on the west side. Then there is some swamp, some hammock, and some hard land.

'The average width of the strip of land lying between the lake and river St. John's is about five miles. In some places, more. The widest part of the strip is at the north end of the lake. From the middle of the west side of the lake, I should think it would be about five and a half miles to the St. John's, and above that, the average width is about five miles between the lake and river St. John's.

'By Dunn's lake on the river St. John's, I understand, a Dunn's lake on the St. John's. But I know nothing about Dunn's lake.'

John M. Fontane, being duly sworn, says:--

'I have seen a survey made for James Darley, by Geo. J. F. Clarke. I received fifty dollars from Darley for Clarke, for making this survey, by an order from Clarke, about 1820. I understood it was for making this survey.

'There is a Dunn's lake which empties into the St. John's. It is the only one that I know of. I have never been there.'

On the same day when this evidence was filed, viz. the 13th of November, 1841, the court passed an order to have the land surveyed. Owing to various impediments, this survey was not made until the 1st of July, 1843, nor returned to the court until the 1st of December, 1843. It was made by James M. Gould, the county surveyor of St. John's county, and upon its presentation was objected to by the counsel for the United States, because it did not conform to the grant, or to the calls of the grant. It was, however, allowed to be received in evidence, subject to the objection of the counsel for the United States, and without prejudice.

On the same day when the survey was returned, viz. the 1st of December, 1843, the counsel for the claimants offered the deposition of James Pellicier, taken under commission, which was read in evidence. The testimony and answers of the witness in this deposition were objected to by the counsel for the United States as being irrelevant and improper, and the whole evidence objected to as being incompetent. The counsel for claimants said, that he offered the deposition to show that there is such a tract of land, and to identify and locate it. The deposition was received, as tending to show that there is such a tract of land, &c., but subject to the objection of the counsel of the United States, as to its relevancy and effect.

The deposition was as follows:--

Interrogatories to be propounded to James Pellicier, a witness in the above-entitled cause, and to be taken before George R. Fairbanks, Esq., clerk, and to be used in evidence on the trial thereof.

First. Were you or not acquainted with James Darley in his lifetime? Where did he reside, previous to the year 1817, and was he or not a Spanish subject?

To the first interrogatory witness answers:-- I was acquainted with James Darley in his lifetime. He resided in the city of St. Augustine, previous to the year 1817; he was a merchant at that time; I believe that he was a Spanish subject, and have no doubt of it.'

Second. Have you or not any knowledge of a concession of land made by the Spanish government to the said James Darley, on Dunn's lake?

To the second interrogatory he replies:--

'I understood from the said James Darley, at that time, that he had received a grant of land from the Spanish government, situated on Dunn's lake. I think I so understood from him about the early part of 1817, or the early part of 1818, I am not sure which. The quantity I think was six miles square, granted for a mill-seat, I think. It was a fact generally known in the neighborhood where I lived, at Matanzas.'

Third. Do you or not know of the survey of a tract of land on Dunn's lake, in favor of James Darley? If you do, say in what year that survey was made, who was the surveyor, and who the chain-carriers? Were you, and who else were, present at this survey; and what was the number of acres to be surveyed, as near as you can recollect?

To the third interrogatory he answers:--

'In the year 1818, I think in the early part, between the middle of March and the middle of April in that year, I was employed by Mr. James Darley in assisting him to make a survey of a tract of land claimed by him on Dunn's lake. Robert McHardy was the surveyor employed. Two black men, one called George Bulger, belonging to Mr. Bulger of St. Augustine, and Peter Survel, a free black mulatto, were the chain-carriers. I sometimes carried the compass, and sometimes the chain, as Mr. McHardy directed me. Mr. Gibson of Charleston, and Mr. Alexander of Charleston, were both present at said survey, and I understand are neither of them living. I cannot recollect the number of acres to be surveyed; I think it was six miles square.'

Fourth. State where the surveyor commenced his survey, whether he made any marks, and what marks, and how far the survey extended, and what prevented the surveyor from extending his survey further. State all the particulars, and what marks, if any, you made on the line.

To the fourth interrogatory witness answers:--

'The surveyor commenced his survey on the edge of Dunn's lake, at the south end of Cowen's old field, as it was called by the guide, Peter Survel; we run the line from thence, from three quarters of a mile to a mile and a half, west from the lake, and blazed the trees with one or two chops above the blazes; these marks were made by me. And then, on account of some misunderstanding between Mr. Darley and Mr. McHardy, the surveyor, the survey was stopped. The misunderstanding arose from Mr. McHardy's wishing to see the order of survey, which Mr. Darley refused to exhibit to him, although he said he had it with him; we then broke up the survey, and went back to Mr. McHardy's, on the Tomoka.'

Fifth. Say if it was the north or south line that McHardy surveyed.

To the fifth interrogatory witness replies:--

'The line surveyed by Mr. McHardy was intended for the north line of the tract.'

Sixth. Were you or not with James M. Gould, esquire, at the time he made a recent survey of a tract of land as claimed by the heirs of Darley? State whether or not you pointed out the starting-point of this survey; was it the same at which McHardy commenced; did you see any mark there, such as you judged to be the same that was made by McHardy, or not?

To the sixth interrogatory witness replies:--

'I was with James M. Gould, esquire, at the time he made a recent survey of a tract of land as claimed by the heirs of Darley. I showed Mr. James M. Gould the same point at which we had commenced the survey, when I was with Mr. McHardy. I saw and pointed out to Mr. Gould the same marks which I had made when I was with Messrs. Darley and McHardy. I showed him a blazed tree, as the starting-point.'

Seventh. Did you or not see other marks? State all the particulars.

To the seventh direct interrogatory witness says:--

'I saw several blazes about the woods, but no other surveyor's marks. I did nothing more than to show them those old marks which I had made.'

Eighth. State any other facts within your recollection.

To the eighth and last direct interrogatory witness says:--

'That I do not know any other matter or thing pertinent to, or relating to, the subject-matter of these interrogatories.'

JAMES PELLICIER.

Cross-interrogatories to be propounded on behalf of the United States to James Pellicier, a witness for the petitioner in the above-entitled cause.

First. If you say that you know James Darley, please state whether he is now alive or dead, when and where he died, and his age at the time of his death, and your age now.

To the first cross-interrogatory witness replies:--

'I know James Darley. He died in St. Augustine, in the summer of 1832. I do not know of his age at the time he died; he must have been between forty-five and fifty years of age, when he died. I am nearly forty-seven years of age now.' Second. Where was said James Darley born; was he not born in Scotland, or in some other foreign country?

To the second cross-interrogatory witness answers:--

'I have heard Mr. Darley say that he was born in England; have often heard him say that he was of English birth.'

Third. If you say that said James Darley was a Spanish subject, state how you know that fact; do you know it of your own knowledge?

To the third cross-interrogatory, witness answers:--

'I have no other knowledge of James Darley being a Spanish subject, than from having so understood from himself, and from the fact of his enjoying liberties and privileges which only Spanish subjects were permitted by the laws of the province to enjoy; he was reputed to be a Spanish subject.'

Fourth. If you answer the second direct interrogatory in the affirmative, please state how you obtained such knowledge; was it not from report or hearsay, or the statements of said James Darley himself?

To the fourth cross-interrogatory, witness says:--

'My answer to the second direct interrogatory embraces all my knowledge on the subject, and is as full as I can make it.'

Fifth. If you answer the the third direct interrogatory in the affirmative, please state how you obtained your knowledge of said survey; was it from report or hearsay, or the statements of the said James Darley himself? Did you assist in making a survey for said James Darley, at Dunn's lake? If you did, state when and who was the surveyor, whether you know this of your own knowledge or from hearsay.

To the fifth cross-interrogatory, witness says:--

'I obtained my knowledge of the survey spoken of, by having been present at, and assisting in making, such survey at Dunn's lake as before spoken of. It was in the early part of 1818; it might have been in the early part of 1817; it strikes me that it was in the early part of 1818. Mr. McHardy I know of my own knowledge was the surveyor.'

Sixth. If you state who were the chain-carriers, state whether you know this fact; do you know it of your own knowledge, or only from hearsay, or the statements of said James Darley himself?

To the sixth cross-interrogatory, witness says:--

'I know who were the chain-carriers of my own knowledge, having been present at, and assisting in, the survey.'

Seventh. If you state where the said surveyor commenced his survey, or testify as to other matters inquired of in the fourth direct interrogatory, please state how you know that fact; were you present at the making of the said survey?

To the seventh cross-interrogatory, witness answers:--

'I was present at the making of said survey, and know where the survey commenced from my own knowledge; the other portions of the fourth direct interrogatory are fully answered in the answer to that interrogatory.

Eighth. How old were you at the time when you say the said survey was made? was said James Darley present at the making thereof? who was present? State the names (and age as near as you can recollect) of all the persons who were present.

To the eighth cross-interrogatory, witness says:--

'I was about the age of twenty-one years when that survey was made; the said James Darley was present at the making of said survey, and also a Mr. Gibson, and a Mr. Alexander of Charleston, and the two chain-carriers, and myself, and Mr. McHardy, made up our party. Messrs. Gibson and Alexander took no part in the survey; Mr. Gibson was about twenty-five years of age; Mr. Alexander must have been full fifty years of age, or upwards; George Bulger must have been about forty years of age, and Peter Survel, the other chain-carrier, must have been about thirty years of age; Mr. McHardy was about forty years of age, and Mr. Darley, from thirty to thirty-five years of age, at that time.'

Ninth. If you answer the sixth direct interrogatory in the affirmative, please state what marks you pointed out to the said James Gould, Esq., and how you 'judged any of said marks to be the same that were made by the said McHardy.'

To the ninth cross-interrogatory, witness answers:--

I pointed out to Mr. James M. Gould the blazes, with one or two chops above; I think two chops; I know them to have been the same marks made by me, on occasion of the survey made by McHardy; I judged them to be the same marks, from having made them myself, and from the fact of no other surveyor at that time using the same marks, besides McHardy; these were the marks always made by McHardy in all his surveys.

Tenth. What were said marks? describe them, and also all the other marks that you there saw, particularly; were there any letters amongst them? If there were, state what letters.

To the tenth cross-interrogatory, witness answers:--

'Said marks made on said survey were such as I have just described, a blaze with one or two chops about it; I think two chops; we made no other marks, except these blazes and chops. I saw no surveyor's marks other than these, at that time or since; I never saw any letters at or about that place.'

Eleventh. Is there any other matter or thing within your knowledge, material or pertinent to the issue in this case; if there is, please to answer the same as fully and particularly as though you were now thereto specially interrogated?

To the eleventh cross-interrogatory, witness answers:--

'There is no other matter or thing within my knowledge, material or pertinent to the issue in this cause.'

JAMES PELLICIER.

The claimants also offered the evidence of James M. Gould, who made the survey, which was as follows:--

'The survey made by me, and now before me, is a correct survey, according to the certificate appended thereto. I took with me the maps from the land-office.

'I found the marks of the government surveys, the sections and township lines; I took with me as a guide Mr. James Pellicier; I found trees marked, running nearly the same as the northerly line of the tract leading from the lake out in the woods; they were old marks; Mr. Pellicier pointed out to me a tree with old marks, and stated that within a hundred yards of that tree was the line of the grant, that is, the beginning corner; could not tell whether the marks on that tree were surveyor's marks or not; Pellicier represented it as a starting-point, or as a tree which he recalled to mind as indicating about where the starting-point was. He did not state to me that it began at a stake; he did not positively point out any tree as the starting-point; he said the tract was south of that tree. I then sought for a line, and found the line spoken of; I did not find the line running from that tree, I found the line I suppose about a hundred yards south from that tree; the marked line of trees continued for half a mile from the lake, until we came to a pond; I found no old marks beyond and westwardly of the pond; my line varies a little from that line; it varies, however, several degrees; that old line was recognized by Mr. Pellicier as the line he had assisted in running; he stated that they were marked with a blaze and two chops, and I found trees marked with a blaze and two chops, which were old marks; I did not look for any other trees marked, after I had found the old line; I saw no other old marked trees; they varied a little from the line I run; it bore a little more northerly than mine; I ran the line I did, because it was the course called for by Geo. J. F. Clarke's survey; the line varied northerly perhaps ten degrees; I ran as I did, moreover, because the order of court directed me as nearly as possible to conform to Clarke's survey.'

On the 28th of June, 1844, the court pronounced an opinion and decree, from which the following is an extract.

'It cannot be overlooked, in examining the papers thus far, that the evident intention of the Spanish governor was, that a saw-mill should be erected on the lands thus granted, and that that was the sole and only consideration for the grant; and it is singular that the governor did not, as in all other cases of mill grants, make the building of a mill a condition precedent to the giving of an absolute title; for I believe there is no other case of a mill grant, by the governor of East Florida, where the absolute title was not made to depend upon the building of the mill, unless other considerations entered into the grant; but it seems that for some reasons best known to himself, Governor Coppinger departed from the usual form, and dispensed with the usual conditions, inserted in such grants, and gave the land in absolute property to the petitioner, trusting to his good faith to build the mill, which the governor himself sets forth as the sole consideration of the grant. If, therefore, the governor was willing to take that matter upon trust, and to make the grant absolute, and without condition, as it seems he did do, it is not within the province of this court to say that the grant is void, because the condition was not complied with, or the consideration for which it was made was not in fact rendered.

'According to the principles which have heretofore governed this court in the adjudication of these land cases, the proofs seem to be sufficient to warrant a confirmation of the grant, and upon the testimony exhibited I consider the claimants entitled to a decree of confirmation; and after a careful examination of the recent survey, made by James M. Gould, and the testimony connected therewith, I think that the location and boundaries of the tract, as defined in that survey, are according to the calls of the grant; and all things considered, it is, perhaps, as fair and proper a location as can well be made.

'It is manifest that Clarke's survey or location, or that which was pretended to have been made by him (and of which a plat has been given in evidence), could not be found, and I presume for the obvious reason that no survey was in fact ever made by him. The recent survey, therefore, could not follow his old survey, but the courses of the different lines of the tract, adopted by the surveyor recently, are the [same] as Clarke's; and on an inspection of the map of the adjacent country, I think that the location and survey, as made by Gould, not only follows the calls of the grant in all essential particulars, but corresponds, so far as it can, with Clarke's pretended survey.

'The grant is therefore confirmed, according to the recent survey of Gould, and a decree will be entered accordingly.

'June 28th, 1844.

J. H. BRONSON, Judge.'

From this decree the United States appealed.

The cause was argued at the preceding term by Mr. Mason (then Attorney-General), for the United States, and by Mr. Yulee, for the appellee, and held over to the present term under a curia.

Mr. Mason, for the United States, made four points.

1. That the petition should have been dismissed, because, from the neglect or delay of the claimant, it was not prosecuted to a final decision within two years.

2. Because there is no proof in the record that the plaintiffs are the devisees of Darley, the original claimant.

3. Because the claimant never complied with the condition on which the concession was made, and the United States is not bound, by the laws of nations, the treaty with Spain, or our own laws, to recognize and confirm such an inchoate claim, without a performance of the condition upon which the grant was made.

4. If this obligation exists, the calls of the grant are so indefinite and uncertain, that a location cannot be made agreeably to such calls.

(All this argument is omitted except that upon the fourth point, as the decision of the court rested entirely upon that.)

IV. But if the United States were bound to recognize and confirm the claim without the performance of the condition, and without any consideration, the question recurs, Are the calls of the grant so definite and certain that a location can be made under it agreeably to such calls? If they are not, the claim must be rejected.

The grant or concession is for the six miles square of land which the petitioner had solicited. Darley, in his petition, asked for 'six miles square of land at the place called Dunn's lake, upon the St. John's river.'

There is no such place as Dunn's lake upon the St. John's river. The land claimed was not surveyed before the transfer of the province to the United States.

The survey of G. J. F. Clarke purports to have been made on the 21st of December, 1817; but it does not follow the calls of the concession, and is evidently what is called an office survey, and not an actual survey; and so the court decided.

The one commenced by McHardy was not completed, and for a reason which throws much suspicion over that transaction; viz. because Darley, the grantee, would not show to McHardy, the surveyor, the order of the governor for making the survey, although he said that he had it. See Pellicier's testimony.

McHardy was a private surveyor, and had no right to survey public lands without a special order. And the refusal of Darley to show him such an order leads to the presumption, either that he had done, or that Darley had taken Mr. McHardy to the wrong place. This proceeding, therefore, so far from aiding Gould's late location, makes strongly against it.

Dunn's lake is fifteen miles long and three or four wide. It has, therefore, at least thirty-six miles of border. It is not on the St. John's river, but from seven to ten miles distant from it.

On which side should this land be located,-east, west, north, or south? The concession does not show.

The settled doctrine in respect to these Florida grants is, that grants for lands, embracing a wide extent of country, or within a large area of natural or artificial boundaries, and which lands were not surveyed before the 24th January, 1818, and are without such designations as will give a place of beginning for a survey, are not lands withdrawn from the mass of vacant lands ceded to the United States in the Floridas, and are void as well on that account as for being so uncertain that locality cannot be given to them.

This doctrine was held in Buyck's case, 15 Pet., 215, which was for a grant of lands 'at Musquito,' south and north of said place. Also, in O'Hara's case, 15 Pet., 275.

And, again, in Delespine's case, 15 Pet., 319. And also in Forbes's case, 15 Pet., 182, 'which was for a grant of land in the district or bank of the river Nassau.'

And, again, in the case of the United States v. Miranda, 16 Pet., 159, 160, and 161, where all these cases are cited and affirmed.

It is believed, therefore, that this grant is void, for the reasons above stated.

It was not made in such a way as to distinguish it from things of a like kind; nor has the identity of the grant been shown by extraneous evidence. O'Hara and others v. the United States, 15 Pet., 283.

Mr. Yulee, for the appellees. (All of his argument is also omitted, except upon the 4th point made by the Attorney-General.)

2. It is next objected by the Attorney-General, that the grant must be rejected for indefiniteness in its location.

It is not half as indefinite as many of the cases of Florida grants confirmed by this court. But the fact that it was located prior to the 24th January, 1818, by Clarke, a public officer, whose province it was to make location of grants, gives it certainty and definiteness of locality, if even the terms of the grant were in themselves indefinite.

The survey adopted by the court below is stated by the court to conform 'to the calls of the grant in all essential particulars'; and Gould, the surveyor, states that, as directed by the court, he made the survey 'to conform, as nearly as possible, to Clarke's survey.'

The testimony of Joseph S. Sanchez, at the time United States marshal of East Florida, and that of Mauricio Sanchez, together with an inspection of the map, will show that there is no difficulty in making the location under the grant. Dunn's lake is a sort of adjunct of the St. John's river, between which lake and the river there lies a strip of land of an average width of about five miles, being in some places six, in others more or less. A location on this strip would be strictly and literally as described in the grant, 'at the place called Dunn's lake, on the river St. John's.'

The Attorney-General erroneously states Sanchez's testimony, in fixing the lake at from seven to ten miles' distance from the river. One of the Sanchez says it is from six to ten, the other (the best informed) says, 'the average width of the strip of land lying between the lake and the river St. John's is about five miles,' and the survey of Gould shows that the plat extends from the river on one line to the lake on the opposite.

It is unnecessary to refer to the authorities cited by the Attorney-General. The local court, familiar with the localities, decides that the survey is conformable with the calls of the grant; the surveyor of the county so also declares; the inspection of the map will confirm their judgment; and no person familiar with the topography of the vicinage will doubt for a moment that the grant is capable of ready location.

Mr. Justice CATRON delivered the opinion of the court.

We are called on to ascertain the correctness of an opinion and decree pronounced by the Superior Court of East Florida, by which there was confirmed to certain claimants, through James Darley, a tract of land containing 23,040 acres. The only question proposed to be examined regards a location of the land by the decree. Darley solicited the governor of East Florida, in 1817, to grant to him in absolute property six miles square of land, 'at the place called Dunn's lake, upon the river St. John's'; and the grant was made as solicited. This is the entire description. The river St. John's is one of the principal waters of East Florida, and a principal object in its geography, and may therefore be judicially noticed, as minor objects have been, in our decisions affecting Spanish claims in the same section of country. The river is of considerable length, and runs through several lakes; there is no place on the river, however, known as Dunn's lake, so far as we are informed, by the proofs or otherwise; but there is a considerable lake, well known as 'Dunn's lake,' lying near the St. John's; it is preved to lie east of the river, nearly parallel with it, and about five miles from the river on an average. The lake is about fifteen miles long, and three or four miles wide. From the description of the land solicited, it is difficult to say whether the petitioner asked to have it laid off on the river or on the lake, but the purpose for which the grant was made decides the ambiguity of expression. The object was the erection of machinery for the sawing of lumber, and the advancement of commerce in the province, from the article of lumber; and therefore the land was solicited to be laid off on the river, for the purpose of establishing machinery, to be propelled by water power. Giving the most favorable intendment to the locality described in the petition and grant, still we can only say, that the grant was for land on the river, opposite to the lake; and by further indulging a favorable construction, so as to limit the territory referred to within narrower bounds, hold that the survey should be made on that side of the river next the lake, and between the lake and the river. This was obviously the view taken of the matter by the experienced judge of the Superior Court, and in which we concur.

The St. John's river in its general course of northeast makes a large bend to the west, opposite to the upper end of the lake, and there passes through Lake St. George, and by its meanders lies opposite to each end and one side of Dunn's lake. A copy of the plat filed in the land-office, representing the township surveys of that locality, is in the record as evidence, from which these facts appear; and also, that the St. John's lies opposite Dunn's lake, by its various bends, for a distance of some thirty miles. This is the base line, on which the survey might front. Then, again, by the Spanish ordinances existing in Florida and governing such surveys, the front on the river could not exceed one-third of the longitudinal extention back; nor does the description of 'six miles square' alter the rule prescribed by the general law. Sibbald's case, 10 Pet., 313; United States v. Hanson, 16 Pet., Id., 201. Governed by these rules, and with this extent of territory before it, the Superior Court was called on to identify the land granted, and render a decree. The difficulty lay in finding a point at which to commence the survey; from the face of the grant this could not be done, and therefore the court sought aid from the following additional circumstances. In December, 1817, Geo. Clarke, the surveyor-general of the province, filed a plat and certificate of survey in his office, purporting to have been made of this grant; but no proof was offered to show that any such survey had ever been made by Clarke on the ground, and the Superior Court expressed its apprehensions that the survey was fictitious, as appears by the opinion found in the record; yet, as it might turn out otherwise on search being made on the ground, and as the survey might reasonably conform to the calls of the concession, should landmarks be found, a search and resurvey was ordered, and one was made and returned to the court by Gould, corresponding as near as might be, in the judgment of the surveyor, to the lines laid down on Clarke's plat, at the upper end of Dunn's lake. But no linemarks were found that had been made by Clarke, and his plat and certificate proved to be merely fictitious; his work not extending beyond what he had done on paper. As no aid could be derived from this source to direct the surveyor, Gould, when in the field, he resorted to another; it was this. In the spring of 1818, Darley had employed McHardy, a private surveyor, to lay off the six miles square of land, with the aid of Darley, and where he was present. They commenced at the head of Dunn's lake, and run and marked a line about a mile, and then disagreed as to the propriety of making the survey as proposed by Darley, for what particular reason does not appear. This was all that was ever done in the field previous to the time Gould went on the ground, in July, 1843. Gould took with him Pellicier, who assisted McHardy in marking the line in 1818, for the distance of the mile above spoken of; and finding the marks at that point, Gould commenced the survey on which the decree is founded, and laid off the grant in a square form of six miles to each side, fronting on Dunn's lake, and extending to St. George's lake, through which the river St. John's passes. The survey has no connection with the St. John's river, further than that at its southwest corner it reaches, to the extent of about one mile, the margin of Lake St. George.

In the first place, we are of opinion, that the fictitious plat and certificate of Clarke can have no influence in fixing the identity of the land granted; nor, secondly, can any consideration be accorded to the line-marks made by McHardy in 1818; and, therefore, we are compelled to resort to the face of the concession for a description that will identify the land granted. And here, some legal principles interpose themselves for our government; the first of which is, that the powers of the United States courts are conferred by acts of Congress, and cannot extend beyond the powers conferred. Previous to the passing of the act of May 26, 1824, conferring the jurisdiction on the courts to adjudge incipient titles, such as the present is, the political power could alone finally pass on them, and Congress uniformly did so. By that act the courts were invested with the jurisdiction that Congress had previously exercised; but to an extent considerably limited. The governing rules of adjudication, as prescribed, are found in the second section of that act; first,-'The courts shall have full power and authority to hear and determine all questions in said cause relative to the title of the claimant. Second, the extent, locality, and boundaries of the said claim,' &c. And by the sixth section, on a decree being had, and a copy thereof being served on the surveyor-general of the district, he shall survey the land decreed, for which a patent shall be issued by the President to the claimant. The 'locality, extent, and boundaries,' the court must find, before it can make an effective decree; and if these cannot be found, no decree can be made for any specific piece or parcel of land. The Superior Court had no power to grant land; nor had it any power to decree an equivalent for land that could not be identified; so this court has at various times held; as in the cases of Forbes (15 Pet., 184), of Buyck (Id., 223), and in several other cases. ^[1]

The court, not being enabled, in this instance, to derive any assistance from public acts, beyond the face of the grant, nor authorized to grant an equivalent, has presented to it a territory some thirty miles long, on the margin of the river St. John's, at any one point in which distance the survey might be commenced with equal propriety that it might be at any other point; it follows, that the description, when applied to the facts, is too vague and indefinite for any survey to be made, and that, therefore, the claimants can take nothing under the concession; and that it is our duty to order the decree of the Superior Court of East Florida to be reversed, and the petition to be dismissed.

We would remark, in addition, that this concession in its leading features cannot be distinguished from various others that have heretofore been brought before this court for adjudication, where no specific land was granted, or intended to be granted; but it was left to the petitioner to have a survey made of the land in the district referred to by the concession, by the surveyor-general of the province, in due form, on the ground, and to cause the plat and certificate of such survey to be recorded, by the surveyor-general, by which additional public act the land granted was severed from the king's domain, but remained part of it until the survey was made and recorded. Until this was done, the warrant was a floating warrant of survey, not recognized by the government of Spain before the cession, nor by this government since, as conferring an individual title to any specific parcel of land on the petitioner; so this court in effect held in the case of Wiggins (14 Pet., 351). From the time that such claims first came before this court, they have not been deemed as coming within the cognizance of the courts of Florida, because the 8th article of the treaty of 1819 did not embrace them; it only provided, 'That grants of land made by his Catholic Majesty, or by his lawful authorities, should be ratified and confirmed to the persons in possession of them, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty.' Actual manual possession has never been required to give title, but such identity must be established as to enable the courts to ascertain with reasonable certainty where the land lies; as was held in Hanson's case (16 Pet., 196), and others. And this may be shown either from the face of the grant, or by a legal survey made by the surveyor-general in conformity to the grant, during the time he had power to make such surveys.

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 claimants can take nothing under the concession in this case; whereupon, it is now here ordered and decreed by this court, that the decree of the said Superior Court in this case 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 dismiss the petition of the claimants.

Notes

1. See United States v. DeRodrigues, 7 Sawy., 636.