U.S. Supreme Court
Mitchell v. Furman, 180 U.S. 402 (1901)
Mitchell v. Furman
Argued October 17-18, 1900
Decided March 11, 1901
180 U.S. 402
The record considered, it is held that the jurisdiction of this Court on a direct appeal from the circuit court may be maintained on the ground that the construction of a treaty made under authority of the United States was drawn in question.
This was a bill to remove clouds on title, and rested on appellees' alleged legal title under a Spanish grant, and cannot be sustained because the title set up was not absolutely complete and perfect prior to the treaty between the United States and Spain. As the grant needed confirmation, and had never received it, it could not be treated as constituting absolute legal title.
Even grants of land in Florida which were in fact complete and perfect prior to the ratification of the treaty might be required by Congress to have their genuineness and their extent established by proceedings in a particular manner before they could be held valid.
Under the various acts of Congress cited, the cause of action proceeded on in this suit was barred by failure to comply with their provisions.
This was an amended bill of complaint filed November 30, 1895, in the Circuit Court of the United States for the Southern District of Florida by Charles M. Furman in his own right, and as administrator of the estate of Charles M. Furman; Bolivar B. Furman, and Alester G. Furman, all citizens of the State of South Carolina, against Henry L. Mitchell, Governor, William D. Bloxham, Comptroller, Charles B. Collins, Treasurer, William B. Lamar, Attorney General, and Lucius B. Wombwell, Commissioner of Agriculture, of the State of Florida, and citizens thereof, as the Board of Trustees of the Internal Improvement Fund of the State of Florida, the Florida Coast Line Canal & Transportation Company, a corporation of Florida, having its principal place of business at St. Augustine; the St. Johns Railway Company, a corporation of Florida having chanroblesvirtualawlibrary
its principal place of business at Jacksonville, Horace S. Cummings, residing in the District of Columbia, and John A. Henderson, a citizen of the State of Florida, alleging:
"That they own and hold title in fee simple, as tenants in common, to all that tract, parcel, or piece of land lying, situate, and being in the County of St. Johns in the State of Florida, and within townships 7, 8, and 9, south of range 30 east, known as 'Anastasia,' or 'St. Anastasia,' Island, said to contain 10,000 acres, but which in fact contains about 7,500 acres, excepting therefrom what was known at the time of the Spanish grant hereinafter mentioned as the King's Quarries, the boundaries of which were marked by stakes, the same being about 200 acres, lying on and east of the old King's Road, between the same and the old lighthouse, which exception does not embrace the lands or any part thereof hereinafter alleged to be claimed by the defendants or any of them."
"That the said tract of land was granted by the government of Spain to Jose, or Joseph, Fish -- otherwise known as Jesse Fish -- (hereinafter designated as Joseph Fish) on or about the 19th day of June, A.D. 1795, which said grant was ratified and confirmed by the United States by the treaty with Spain ratified by the United States on the 19th day of February, A.D. 1821."
The bill then set up title to Anastasia Island as derived from Joseph Fish, through his mother Sarah Fish, her granddaughter, Jessie B. Perpall, who married Charles M. Furman, who became sole heir at law of his wife and their son, Gabriel, and left a will under which complainants claimed. It was averred that Joseph Fish died intestate in 1798; that his mother died intestate in 1825; that her granddaughter died intestate in 1827; that Mrs. Furman's son Gabriel died in infancy in 1836, and that Charles M. Furman died in 1872.
It was further alleged that Joseph Fish was placed in possession of the said land so granted, and resided thereon in his dwelling house, and cultivated an orange grove and fields, enclosed by a fence; that he used the woodlands on the island, and exercised such acts of possession of the whole of the island chanroblesvirtualawlibrary
as it was capable of, and that, from his death to the present time, those claiming under Fish have done the same.
The bill averred that the State of Florida claimed title under the Act of Congress of September 28, 1850, relating to swamp lands, of certain lands on Anastasia Island, which complainants asserted were part of the grant to Joseph Fish, and owned by them; these were described according to the public surveys and alleged to contain 1,465.15 acres, more or less, all in township 7, south of range 30 east, and that the United States on September 18, 1856, issued its patent to the State of Florida therefor.
That the State of Florida by an Act of June 6, 1855, vested in the governor, the comptroller, the state treasurer, the attorney general, and the register of public lands, now known as the commissioner of agriculture, of that state, and their successors in office, as the board of trustees of the internal improvement fund of the state, the title to all lands granted to the state under the act of Congress, with power to sell and transfer the same; that defendants, Mitchell, governor, and others, now constitute the board of trustees; that the board on May 13, 1885, executed a deed of conveyance to the Florida Coast Line Canal and Transportation Company of certain lots and parts of sections, in township 7, containing in all 549 acres, which land, except that conveyed to Horace S. Cummings, was claimed by the transportation company adversely to complainants; that of these lands the transportation company executed a deed of conveyance to Cummings of 160 acres, which was claimed by Cummings adversely to complainants.
That the board of trustees September 21, 1886, executed a conveyance to the St. Johns Railway Company of certain lots and parts of sections in township 7, containing in all 328.10 acres, being part of the land patented to the state, which land was claimed by the railway company adversely to complainants; that the board of trustees on July 30, 1892, executed a deed of conveyance to defendant Henderson of certain lots in township 7, containing 286.28 acres, which land was claimed by Henderson adversely to complainants. It was further averred that chanroblesvirtualawlibrary
the United States issued to the State of Florida on June 27, 1895, a patent for certain other lands, being part of Anastasia Island, described by the public surveys, in township 7, containing 393.30 acres; that the United States issued to the State of Florida on April 8, 1895, a patent for certain other lands described by the public surveys, in township 7, containing 120 acres; that these lands were selections made by the state under an Act of Congress of June 9, 1880, entitled "An Act to Confirm Certain Entries and to Warrant Locations in the Former Palatka Military Reservation in Florida;" that in addition to the lands so patented the state had selected under said act certain lands on Anastasia Island in township 7 containing 367.32 acres; that entries of these selections had been allowed by the Commissioner of the General Land Office of the United States, and the same were held to be patented to the state under the act of Congress of June 9, 1880; that the lands so patented to the state and those selected by the state for patent under the act aforesaid were in lieu of selections under the Act of Congress of September 28, 1850, and were vested by the legislature of Florida, by the Act of January 6, 1855, in said board of trustees, if the United States held the title thereto at the time of the issue of the patents, and that the board of trustees claimed title to the same adversely to complainants.
The bill charged
"that the said patents from the United States and the said deeds of those claiming thereunder, and said entries and selections of the State of Florida, whereby the said defendants claim title, respectively, to the said lands as aforesaid, are invalid, and do not vest a title in the said defendants to the lands so claimed by them, respectively, as aforesaid, for the reason that the United States, under whom the defendants claim, did not at the time of issuance of such patents or at any other time, have or hold title to the said lands or any part thereof, but that the title to the same is in your orators, holding and claiming under the said grant of the government of Spain to the said Joseph Fish, as aforesaid."
The bill also alleged that none of the defendants were in actual possession of the lands or any part thereof; that the lands exceeded in value the sum of $2,000, and
cause arises under the said treaty between the United States and Spain, which ratified and confirmed the said grant to the said Joseph Fish, under whom your orators claim title. And the controversy involved in this case necessarily involves the construction of said treaty."
It was then charged
"that the said patents, entries, and deeds by and under which the defendants respectively claim title to said lands as aforesaid, are clouds upon the title of your orators in the said lands, and tend to depreciate the value and sale thereof, to the great damage and injury of your orators in the premises."
The prayer was
"that the said patents, entries, and deeds by and under which the said defendants respectively claimed title to the lands so respectively claimed by them as aforesaid may be set aside and declared void as clouds upon the title of your orators, and that the defendants and each of them may be enjoined from entering upon or taking possession of said lands, or in any manner disturbing the possession of your orators thereof, and that your orators may have such other and further relief in the premises as equity may require and as to your honors shall seem meet."
The defendants Mitchell and others, members of the board of trustees, moved to dismiss the bill for want of jurisdiction, which motion was overruled. Defendant Cummings made a similar motion. The trustees also filed a demurrer for want of jurisdiction and a demurrer for want of equity. The defendants, the canal and transportation company and the St. Johns Railway Company, also demurred. All the demurrers were overruled.
The trustees and Cummings then filed their answer, denying that Anastasia Island was granted by the government of Spain to Jose or Joseph Fish, June 19, 1795, or at any other time, or that the title to the lands in controversy was ever granted by the King of Spain or by his lawful authorities, and averring that the only part of Anastasia Island the title to which was ever granted by the King of Spain or by his lawful authorities was a tract of about three hundred acres granted to Lorenzo Rodriguez in 1793, and a tract of about twenty acres granted to chanroblesvirtualawlibrary
F. X. Sanchez in 1802, both of which tracts had been confirmed by the United States and surveyed and platted as private grants upon the maps and plats of the Land Department of the United States. They denied that the treaty with Spain ratified or confirmed any grant of the lands in controversy in this suit to the ancestor of complainants or gave title thereto to any other person save only to the United States, and denied that Joseph Fish was placed in possession of Anastasia Island except the King's Quarries, as a grant thereof to him by the King of Spain or his lawful authorities, or that he or his successors exercised such acts of possession of the whole of Anastasia Island except the King's Quarries, as it was capable of, under claim of title, or that he claimed title as the owner of said island. But they said that the occupancy and acts of possession alleged, if true, applied to no other lands than those embraced in the Fish homestead, which was a point of land on the extreme west shore of Anastasia Island, nearly surrounded by water and cut off from the main island of Anastasia, embracing about one hundred acres of land, well known by general reputation as "Fish's Island." They admitted the patenting by the United States to the State of Florida of the several tracts of land described in said bill, and averred that before any patent could be issued for these lands, the State of Florida was required to establish before the Land Department of the United States that the lands were vacant and unappropriated public lands of the United States; that Furman, in behalf of complainants, appeared before that tribunal and contested the matter, and presented and urged their claim to the same under the same title set up in the bill, and that there was a final determination by said tribunal which was adverse to complainants' claim, and decided that the lands were not private lands.
Also that, in addition to the lands so patented to the State of Florida, the state had selected the lands set out in the bill, and that the entries had been allowed by the land office, and were held to be patented, and said that such allowance and holding for patent was an adjudication of a competent tribunal that the lands were public lands of the United States, which adjudication for the issue of the patent was subject to review in the Land chanroblesvirtualawlibrary
Department, and might be corrected if erroneous. They denied that the patents, deeds, entries, and selections whereby defendants claim title to the lands in controversy were invalid, and asserted that the United States had title to said lands, and that it was not in complainants.
"They admit that this controversy involves the construction of the treaty between Spain and the United States, and they aver that complainants in their said bill have set out as their title an incipient and inchoate title under the 'government of Spain,' not cognizable in the courts of the government until recognized or confirmed by the Congress of the United States; that, by the rules established in the Territory of Florida by the authority of the King of Spain for the granting of lands, a grant from the government of Spain signified only the first concession or right of occupancy of the royal domain; that perfect or complete grants were recognized by the treaty with Spain, but incomplete grants were ratified by the treaty, to the same extent they would have been valid had the territory remained under the King of Spain; that, if there had been a complete grant of Anastasia Island at the date of the treaty the owners thereof were authorized under the laws of the United States to have the same surveyed without expenses as a private claim by the United States, but by the averments of their said bill complainants show that said lands have been surveyed as public lands."
The answer stated
"that Anastasia Island is a barrier of the sea, consisting chiefly of high sand hills blown in from the sea beach, covered with 'scrub,' a low growth of hard wood; that through the center of the northern part, in township 7 there runs north and south a ledge of coquina rock from one-half to three quarters of a mile wide; that all the lands are barren and wholly unfit for any purpose whatever save seashore residence, and of no value apart from their proximity to a city patronized as a winter resort; that, on the western shore of said island, nearly separated from the main island by a strip of low ground or 'swale,' is a neck of land called Fish's island, containing
an orange grove and cultivated fields of about thirty acres under enclosure, and houses and outbuildings."
It was further averred that complainants or their ancestor never had any title whatever to the lands described in the bill unless it were to a part of lots 2, 3, and 6 of section 29, township 7, range 30 east, which embraced the orange grove of "Vergel" plantation, alleged to have been sold by the Spanish government in probate proceedings upon the estate of Joseph Fish about March 21, 1792; that to this plantation the heirs of Fish might have had an equitable title, but this had been forfeited by failure to present or record such claim and have it surveyed.
That June 19, 1795, the Spanish law in force in the Floridas vesting in the Spanish governors the power to make grants of lands was the royal order of 1790, under which Governor Quesada, Spanish governor of East Florida in 1795, required ten years of continued and uninterrupted possession before full title was granted to claimants, who upon petition had received a grant or concession and had been put in possession of lands, etc., etc.
The answer further set forth that no person except the governor of the province was entitled to make grants of land under the Spanish law, and if any other person had authority to make grants the titles so granted were incipient until confirmed by the governor, etc., and alleged on information and belief that any proceedings purporting to be a concession for 10,000 acres, dated June 19, 1795, to Joseph Fish, found among the archives at the date of the cession, were either forgeries, or so irregular as to render their genuineness too doubtful to be accepted as evidence. chanroblesvirtualawlibrary
Defendants averred that any claim which Fish ever had would be found to be an alleged grant purporting to be signed by one Morales, the commandant of the third battalion of Cuba, and not by the governor, an unauthorized proceeding under Spanish law; that no authority existed in Morales to make the grant, and no other claim in East Florida is based on action by him; that the law required an official survey to be filed in the records and a certified copy delivered to claimants, but there was none in this instance; that the archives relating to property in Florida, both public and private, contain a complete list of all real titles or patents for lands granted by the lawful authorities of the King of Spain in East Florida, but that list contains none to Joseph Fish for the lands on Anastasia Island.
The answer restated that the lands claimed by complainants to have been granted to Joseph Fish were never segregated from the royal domain, and were not measured, bounded, or platted or otherwise located by official survey, and could not be identified by natural boundaries.
Defendants further averred that, by the Act of Congress of May 23, 1828, Congress confirmed all claims recommended for confirmation to the extent of a league square, and enacted that no more than a league square should be confirmed in any grant, and that no confirmation should be effectual until a full release by the claimant of all the lands claimed by any one grant in excess of a league square, but authorizing all claimants who were not willing to accept a league square to present their titles to the district court of the United States within one year from the date of the act or be barred; that claimants never released the excess of a league square, nor presented their claim to the district court of the United States, as did all others having claims in Florida in excess of that amount; that the legislative council of the Territory of Florida published the acts of May 23, 1828, May 26, 1830, and February 8, 1827, with the treaty with Spain, for circulation in Florida, and though often notified of the limitations in said acts, the claimants under Joseph Fish did not avail themselves of the acts, and abandoned and forfeited their claims to said land, so that the United States would have acquired title by prescription even if the lands were private chanroblesvirtualawlibrary
property; that in 1833, having given public notice that unless the private claims within the district were presented to the surveyor general, he would survey the same as public land of the United States, the claim of Fish not having been presented and having been abandoned, the United States extended the surveys over all of Anastasia Island except the grants to Rodriguez and Sanchez, and in 1839 advertised the lands for sale as public lands; that, on May 6, 1851, the maps and plats of said lands surveyed as public lands were formally approved by the surveyor general for Florida; that the United States patented to the State of Florida certain lands in 1866 as vacant lands, and in 1867, 1868, and 1869, a large area of lands on Anastasia Island were entered under the homestead laws of the United States and settled upon and improved, and wood was cut therefrom and sold; that some of the homestead settlers failed to make final proof of their entries, but final proof of homestead and settlement under the homestead laws for lands on the island was made and final certificates issued to several persons named in 1875, in 1876, and in 1882; that in 1867, the trustees executed a conveyance for lands on that island to Rogero for lots 2 and 3, section 29, to Hopking and Rogero for lot 6, section 29, and to Magruder and Logan for lots 2 and 3, section 32, all in township 7, range 30 east, being part of the lands patented to Florida; that September 16, 1868, Sanchez applied to the Land Department of the United States for the issue of a patent upon the Fish claim, and in 1870 Furman advised the Land Department that he claimed to be the owner of Anastasia Island under an alleged grant prior to 1763, and made application for the issue of a patent from the United States to him.
That from 1831 to June 22, 1860, the claim was wholly barred; that June 22, 1860, Congress again authorized claimants to present their claims, if an imperfect grant, to commissioners for confirmation, but if a complete grant, to the District Court for the Northern District of Florida, but those claiming under Fish neglected to avail themselves of this right to have the validity of their claim determined, but did apply to the Land Department for further adjudication; that, after application to the Land Department for an adjudication by Furman chanroblesvirtualawlibrary
in 1870, Congress extended the Act of June 22, 1860, until June 10, 1875, by an act approved June 10, 1872, by the second section of which act no proof of title was required of claimants, provided they and those from whom they claimed had held continuous possession of the lands claimed; that, having submitted their claim to a tribunal of their own choice, they are now estopped to deny its jurisdiction.
That, in June and July, 1888, the State of Florida applied to the land office at Gainesville to enter certain portions of land at the north end of Anastasia Island under the Act of June 8, 1880, as vacant and public land, but because there was on file at the land office a letter from the Commissioner dated March 7, 1887, advising that the island was claimed by Furman, and that the claim had not been adjudicated by the Land Department, the register and receiver rejected the selections of Florida, and the state appealed to the Commissioner; that the claim of Furman was taken under advisement by the Commissioner on briefs submitted by the state, and by Furman and others claiming under Fish, and on August 2, 1890, the Commissioner rendered his decision that the lands were public lands of the United States, whereupon complainants took an appeal from the decision of the Commissioner to the Secretary of the Interior, and submitted arguments in support of their contention that the said lands were owned by them under a valid Spanish grant, and on June 22, 1893, the Secretary rendered his decision affirming the decision of the Commissioner, that said claim had no validity; that complainants failed to file any motion for review, and the decision became final, and is a complete and final adjudication of complainant's want of title, and that the lands were public lands subject to disposal by the United States; that complainants caused a bill to be introduced in the Fifty-third Congress for confirmation and release to them by the United States of the lands on Anastasia Island as claimed under Fish, but Congress refused to consider the same.
The answer denied that complainants were in possession of any part of the land on Anastasia Island, and set forth the possession of many persons claiming title under the United States. It averred that the St. Augustine and South Beach Railroad chanroblesvirtualawlibrary
Company was in possession of a roadbed and right of way across the island through sections 17, 21, 27, and 28 in township 7, range 30 east, under authority of an Act of Congress approved March 3, 1875, granting a right of way over the public lands of the United States; that lot 1 of section 21 was reserved for lighthouse purposes by order of the President dated June 22, 1869; that part of lot 2 of section 21 of township 7 was declared a reservation for lighthouse purposes by order of the President dated February 1, 1883, that, afterwards, by a like order, the remainder of said lot 2 was declared a United States reservation for lighthouse purposes, and that, by executive order dated May 4, 1893, the President reserved 700 acres of land in section 21, 22, and 28 of township 7 for military purposes.
That the requirement by Congress that all claimants under grants from the King of Spain in the Floridas should relinquish all in excess of a league square of the lands claimed in any one grant was a declaration of the policy of the political department of the United States as to the territory acquired from a foreign power and a determination by Congress of the extent of the obligations imposed on the United States by the treaty with Spain.
The answer further averred that the failure to release the excess forfeited the entire claim, and that, without any release, the excess over a league square was subject to sale as public land; that the issue of the patents depended upon the existence of facts which the Land Department of the United States had determined existed; that, by the survey of the lands of Anastasia Island as public lands and their offer for sale by the proclamation of the President, and confirmation of portions thereof to the State of Florida by patent, the reservation of portions thereof by executive order, and the opening of all to homestead entry, the United States had become seised of the whole of said Anastasia Island by the equivalent of office found.
The St. Johns Railway Company and the Florida Canal and Transportation Company also filed an answer of similar purport. Numerous exceptions to these answers were filed, and some of them were sustained to certain paragraphs. Replication having been filed, the cause was referred to a master, who chanroblesvirtualawlibrary
subsequently made a report containing findings of facts, findings of mixed law and fact, and conclusions of law, to which numerous exceptions were filed by defendants, all of which were overruled by the court, and a decree was entered in accordance with the prayer of the bill and the recommendations of the report. A decree pro confesso was entered against John A. Henderson.
From this decree all the defendants except Henderson, in respect of whom an order of severance was entered, prosecuted this appeal.
The master also filed with his report an elaborate and careful opinion on the whole case.
Complainants introduced in evidence from the American State Papers, Public Lands, vol. IV. Duff Green Edition, 256, "Minutes of the proceedings of the commissioners appointed to ascertain claims and titles to land in East Florida for the year 1824."
Meeting of the board, March 29, 1824, pursuant to an act of Congress of February 19, 1824.
Meeting, September 13, 1824, when "Sarah Fish, 10,000 acres; same 500 acres," and three other "cases being called and not being prepared for trial," were "placed at the foot of the docket."
Minutes of meeting, March 28, 1825, pursuant to the Act of Congress of March 3, 1825. April 21, 1825: "Permission was given by the board to the executors of the estate of Sarah Fish, deceased, to amend the memorials in the claims of said Sarah Fish."
December 16, 1825: "The following claims were this day reported to Congress for confirmation, viz.: . . . Sarah Fish's heirs, for 10,000 acres. . . ."
Report of commissioners to the Secretary of the Treasury, January 31, 1826, transmitting claims and titles examined and disposed of, class 3 comprehending
"claims exceeding 3,500 acres, the titles to which were found among the public archives of the country, and are ascertained by the commissioners to be valid Spanish grants, and reported accordingly to Congress for confirmation."
4 Am. state Papers, Public chanroblesvirtualawlibrary
Lands, D. G. ed., p. 276. The Fish claim was included in class No. 3, as follows:
The petition of Mrs. Fish, dated August 31, 1823, asserted that she
"claims title to the island lying in front [i.e., to the east] of the City of St. Augustine, and running south about eighteen miles, more or less, along the east bank of the River Matanzas, known by the name of the Island of St. Anastasia, supposed to contain 10,000 acres, as belonging to the deceased husband, Jesse Fish, senior, in the year 1763. That, in the year 1792, this island was sold at public sale by order of the Spanish governor, Quesada, when her son, the late Jesse Fish, Jr., deceased, became the purchaser."
Accompanying this memorial were certain papers and proceedings as follows: a petition of Jose Fish (erroneously dated December 2, 1796), stating that, at the auction of his father's property for the payment of his creditors, he purchased the place called the Vergel for $1,605, which sum he gave only with a view to the fruit trees of said place, and the timber which is on the land belonging to it, as the land is entirely useless for planting; that several of the neighbors had been cutting the wood, and therefore he begs to be declared owner of the lands which his said father possessed, annexed chanroblesvirtualawlibrary
to the place of the Orange Grove, which, according to the deeds granted in the time of the British possession, amounted to 10,000 acres, whether as a new settler or by the right which his deceased father had to them. That if he does not obtain this favor, he will consider himself the loser of the greatest part of his purchase, because the lands will not produce crops of any kind and a great number of the fruit trees have dried up, which is likely to occur to the balance of them.
Governor Quesada, who described himself as
"brigadier of the infantry of the royal armies, governor, commander in chief, vice royal patron, and subdelegate of the royal domain of this City of St. Augustine, Florida, and its province, for His Majesty,"
referred the petition December 15, 1794, to the assessor general, who, on the same day, reported that, if Fish had asked to prevent trespassing or to recover possession, he would render an opinion, but as Fish asked to be declared owner, it was for the governor to determine judicially the extent of Fish's purchase or his right as a new settler.
Thereupon Governor Quesada directed Fish to make proof of the facts on which he based his right or claim to favor.
Sundry depositions were then taken, and the governor, on the 12th of February, 1795, referred the petition and proof to the collector of the exchequer, that as fiscal of it he may represent him in the discharge of his functions. February 27, the fiscal reported that, at the sale of the orange grove to Joseph, that Fish was not entitled to anything more taken into consideration, and only the valuation of the trees within the orchard was made, without including the 10,000 acres of land annexed to it. And he was of opinion that Fish was not entitled to anything more than he could prove by the inventory, valuation, and sale, and that, after this land had been laid off, the remainder ought to be sold as belonging to his deceased father and for the benefit of the creditors of his estate; that the inventory, valuation, and sale of the orchard should be annexed, and that, in case Fish had occasion for the use of more public land, and without injury to a third person, the fiscal minister did not find any objection to granting them to him as a new settler "according to what His Majesty has commanded of this particular." chanroblesvirtualawlibrary
The governor then directed, March 6, 1795, that the testimony indicated
"be placed in continuation and with it those proceedings returned to the assessor general, that he may consult with me as to what is proper as respects the other points to which the foregoing fiscal representation refers."
The inventory, valuation, and sale of the orange grove in 1792 was accompanied by the commission of the governor dated January 18, 1792, appointing the appraisers, and specifying the "9th item" thus: "The place called El Vergel,' which belongs to the deceased, although the title under which he enjoyed it does not appear in the proceedings."
March 26, 1795, this entry was made by the governor:
"Seen: Passed over to Don Jose Fish: Thus, decrees and orders Senor Don Juan Nepomuceno de Quesada, Brigadier of the Infantry of the Royal Armies, Governor, Commander General, Vice Royal Patron, and Subdelegate of the Royal Domain of this City of St. Augustine, Florida, and its province, for His Majesty, who signs it, with the opinion of Senor the Assessor General, the twenty-sixth of March, one thousand seven hundred and ninety-five."
There then appears a new petition by Fish, without date, setting out that he is a new settler in the province; that the above-mentioned documents have been given him, and he, being advised of their contents as also of the sale at auction of the Vergel, considers that the fiscal was in error when he reported adversely on the first petition; that he has produced proof that his father had ancient possession of "El Vergel," for which he paid an excessive price, and prays that a grant of "said island" be made to him, and that a copy of the writing which he presented to the notary after the sale, asking for the island at a valuation, be placed in continuation.
On April 17, 1795, the assessor general, Ortega, who recites that he is
"advocate of the royal council, lieutenant governor, auditor of war, and assessor general of the City of Saint Augustine, Florida, and its province, for His Majesty, who signs it in consequence of the illness of the governor and commander in chief,"
directed that the copy be put in continuation, and the whole passed over to the representation fiscal. The writing chanroblesvirtualawlibrary
referred to is dated March 22, 1792, and Fish states therein that at the public sale, the day before, of the property of his father, there was no person who would bid "for the Island del Vergel;" that he obligated himself to pay $1,605, and "he prays your excellency to have the kindness to order that he be placed in possession of it." On May 4, 1795, the first officer of the chief comptroller's department,
"and who is charged with the administration and court of justice of the royal treasury on account of the illness of his excellency, the governor, and as attorney fiscal of the royal treasury,"
reviewed the papers and concluded that, under the circumstances, the governor might "order the boundaries of the Vergel to be marked off to the number of 10,000 acres." This was followed by this entry:
"Having examined the proceedings, it was thus decreed and ordered by Senor Don Bartolome Morales, colonel of the infantry of the royal armies, commandant of the third battalion of Cuba which garrisons this City of Saint Augustine, Florida, and political and military governor of it and its province from the indisposition of the governor, who signed it on the sixteenth of May, 1795; which I attest."
This was signed by Morales, and attested by Ortega, assessor general, before the notary.
June 12, 1795, Morales and Ortega directed notice to be given to the defender of the estate of Fish, and that the proceedings be returned.
June 17, 1795, the defender of the estate reported that the 10,000 acres might be granted.
Then follow the alleged grant and delivery of possession, namely:
"Having examined those proceedings and seen the proof adduced in them by Don Jose Fish, it appears not only his father of the same name possessed since the time of the old Spaniards and in that of the British dominion the 10,000 acres of land, possession of which he claims at the place called the Orange Grove, which he purchased at public auction, but also that he made a bid for the said land, under which his purchase ought to be understood, which defect in not explaining it thus at that time should not be prejudicial to him, and has given cause to
this litigation. His excellency said that declaring it, as he declared now, he ordered in consequence that whether by the right which the burdensome acquisition of the said land gives Fish, which cost him 1,605 dollars, which it appears he paid for the purchase of the Orange Grove, or by the right which the ancient possession of his father gives him to the said 10,000 acres of land, or finally in consequence of the petition of Fish, that they should be granted to him as a new settler, he be placed in possession of the said land which it appears his said father possessed, and is already laid off, with the reserve of the quarries, and the remainder, which was not granted to his said father, and which the King has reserved, renewing, in case of necessity at the cost of the interested, the boundaries by said appraisers, Don Manuel Solana, who at the time of the old Spaniards and at the new possession by them of the province laid off by order of the government, the aforesaid quarries, to give possession, as is proven, to the father of the memoralist of the land which he claims, and let them be granted to him on the terms above set forth, the present notary, who is commissioned for the purpose, when with the said appraisers, and any other workman that may be necessary, he shall assist at marking the boundary at which also shall assist, to represent the royal treasury, the person whom the minister of the royal domain may depute for the purpose. All of which shall be made appear on the proceedings with which, and the taxation of the costs, which the interested shall satisfy, this proceeding shall be held as concluded. It was thus decreed and ordered by Senor Don Bartolome Morales, colonel of infantry of the royal armies, commandant of the third battalion of Cuba, which garrisons this City of St. Augustine, Florida, and political and military governor, who signs this, with the opinion of his honor the assessor general, on the 19th June, 1795, which I attest."
"Licentiate Josef de Ortega"
"Proof of boundary and possession"
"Being at the plantation called the Orange Grove, in the Island of St. Anastasia, on the tenth of July, 1795, in conformity
with what is provided in the foregoing decree, we proceeded to the marking the boundaries of the land comprised in these proceedings. Don Manuel Solano, the appraiser appointed for the purpose, passing from said place to where the quarries of the King and if individuals are situated, who, passing along the ancient boundaries with Don Jose Lorente, chief master of the royal works, who accompanied him to inform himself, Don Tadeo Arribas, officer of the royal comptroller's office, from the employment of the collector, for his fiscal cognizance, and I, the present notary, went fixing up stakes to point out said boundaries across the island, and separated the said quarries, saying that all besides them was what corresponded to Don Jose Fish, to whom, being also present, I, the said notary, in discharge of the commission which was conferred upon me, put him in possession of the land pointed out, leading him into it by hand, and riding together on horseback by various places, until arriving at the dwelling house; all of which I did as a token of said possession, which he took quietly, peaceably, and without contradiction. In testimony of which and for the due proof, I have extended the present proceedings, which all signed with the exception of Solano, who said he did not know how."
Signed by Arribas, Lorente, and Fish.
The Secretary of the Treasury transmitted the report of the commissioners, with the evidence and decisions, to Congress, February 21, 1826.