De Villemont v. United States/Opinion of the Court

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De Villemont v. United States, Hempst. 389 (D. Ark. 1848)
Opinion of the Court by Benjamin Johnson

OPINION OF THE COURT.—The claim of the petitioners, as heirs and legal representatives of Don Carlos De Villemont, civil and military commandant of the post of Arkansas and its districts, is based on the request or petition of De Villemont, dated the 10th May, 1795, addressed to the Baron de Carondelet, governor-general of Louisiana, to grant to him a tract of land having a front of two leagues by a depth of one league, with parallel boundaries, situated in the place called the "Island del Chicot," distant twenty-five leagues below the mouth of the Arkansas River; the Cypress swamp of the Island del Chicot to be the upper boundary of the tract of land solicited. Upon which request, the Baron de Carondelet made a concession or order of survey, of which the following is a substantial translation, namely:—

"The surveyor-general of this province, or the private person appointed for that purpose, will locate and establish this tract of land which is petitioned for, upon the two leagues of land in front by one in depth in the place indicated in the preceding memorial; the said land being vacant, and the said location not operating to any one's prejudice; under the express conditions that a road and regular clearing be made in the peremptory space of one year; and this concession to become null at the precise expiration of three years' time, if the said land shall not be settled upon, and during which time it cannot be alienated; under which conditions a complete survey of the land must be made, which must be remitted to me, in order that a corresponding formal title may be supplied to the party interested.


The tract of land is to be situated twenty-five leagues below the mouth of the Arkansas River, and the Cypress swamp of the Island of Chicot is to be its upper boundary.

There is no proof in the case as to the existence of the "Island del Chicot;" but there is evidence proving the existence of a place on the Mississippi River known and called by the name of "Point Chicot," and it may be admitted that this is the place called for in the request and order or warrant of survey.

But the petitioners have wholly failed to show by testimony that there existed a Cypress swamp above the place called Island of, or Point, Chicot, which was to constitute the upper boundary of the tract of land intended to be granted. In the absence of this proof, it is manifest that no precise locality is given to the tract of land claimed by the petitioners. To give identity and locality to the tract of land intended to be granted, it is evident that an actual official survey, made by the surveyor-general of the province, one of his deputies, or a private person appointed for that purpose, was essential. This, however, was never done. The tract of land claimed by the petitioners has never been identified and severed from the royal domain, and upon this ground alone the claim is null and void.

For the reasons upon which this opinion is founded, I refer to, the decision at the present term in the case of The Heirs of Elisha Winter v. The United States, [ante, p. 344,] and the authorities there cited.

The petition must be dismissed, and the petitioners pay all costs.

Decreed accordingly.