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U.S. Supreme Court

Lessee of Pollard's Heirs v. Kibbe, 39 U.S. 14 Pet. 353 353 (1840)

Lessee of Pollard's Heirs v. Kibbe*

39 U.S. (14 Pet.) 353


Action of ejectment in the state court of Alabama for a lot of ground in the City of Mobile. The plaintiff claimed the title to the lot under an act of Congress, and the decision of the state court was against the right and title so set up and claimed. A writ of error was prosecuted to the Supreme Court of Alabama. It was held that this case was embraced by the twenty-fifth section of the Judiciary Act of 1789, which gives this Court jurisdiction to revise the judgment of the state court in such cases.

The act of Congress under which title was claimed being a private act and for the benefit of the City of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of individuals, and the situation of the land embraced in the law at the time it was passed.

A lot of ground was granted by the Spanish government of Florida in 1802 to Forbes & Company in the City of Mobile, which was afterwards confirmed by the commissioners of the United States. The lot granted was eighty feet in front and three hundred and four feet in depth, bounded an the east by Water Street. This, while the Spanish government had possession of the territory, was known as "a water lot." In front of the lot was a lot which, at the time of the grant of the lot to Forbes & Company, was covered by the water of the Bay and River of Mobile, the high tide flowing over it, and it was separated from Forbes & Company's lot by Water Street. It was afterwards in part reclaimed by Lewis, who had no title to it, and who was afterwards driven off by one of the firm of Forbes & Company. A blacksmith's shop was then put on the lot by him, and Lewis again, by proceedings at law, obtained possession of the blacksmith's shop, it not being his improvement. The improvement was first made in 1823. The Spanish governor, in 1809, after the Louisiana Treaty of 1803 and before the territory west of the Perdido was out of the possession of Spain, granted the lot in front of the lot owned by Forbes & Company to William Pollard, but the commissioners of the United States, appointed after the territory was in the full possession of the United States, refused to confirm the same "because of the want of improvement and occupation." In 1824, Congress passed an act the second section of which gives to those who have improved them the lots in Mobile known under the Spanish government as "water lots" except when the lot so improved had been alienated and except lots of which the Spanish government had made " new grants" or orders of survey during the time the Spanish government had "power" to

grant the same, in which case the lot is to belong to the alienee or the grantee. In 1836, Congress passed an act for the relief of William Pollard's heirs by which the lot granted by the Spanish government of 1809 was given to the heirs, saving the rights of third persons, and a patent for this lot was issued to the heirs of William Pollard by the United States on 2 July, 1836. Held that the lot lying east of the lot granted in 1802 by the Spanish government to Forbes & Company did not pass by that grant to Forbes & Company, that the Act of Congress of 1824, did not vest the title in the lot east of the lot granted in 1802 in Forbes & Company, and that the heirs of Pollard, under the second section of the act of 1824, which excepted from the grant to the City of Mobile, &c., lots held under "new grants" from the Spanish government, and under the Act of Congress of 1836 were entitled to the lot granted in 1809 by the Spanish governor to William Pollard.

The term "new grants," in its ordinary acceptation, when applied to the same subject or object, is the opposite of "old." But such cannot he its meaning in the Act of Congress of 1824. The term was doubtless used in relation to the existing condition of the territory in which such grants were made. The territory had been ceded to the United States by the Louisiana Treaty, but, in consequence of a dispute with Spain about the boundary line, had remained in the possession of Spain. During this time, Spain continued to issue evidences of titles to lands within the territory in dispute. The term chanroblesvirtualawlibrary

Page 39 U. S. 354

"new" was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession.

The time when the Spanish government had the "power" to grant lands in the territory, by every reasonable intendment of the Act of Congress of 1824 must have been so designated with reference to the existing state of the territory as between the United States and Spain, the right to the territory being in the United States and the possession in Spain. The language "during the time at which Spain had the power to grant the same" was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case if Spain had full dominion over the territory by the union of the right and the possession, and in this view it is no forced interpretation of the word "power" to consider it here used as importing an imperfect right, and distinguished from complete lawful authority.

The Act of Congress of 25 March, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the Mississippi and west side of the Perdido and falling within the cession of France, embraced all claims of this description. It extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever derived from the French, British, or Spanish governments, and the reports of the commissioners show that evidence of claims of various descriptions, issued by Spanish authority, down to 1810, come under their examination. And the legislation of Congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain at St. Ildefonso. Such claims are certainly not beyond the reach of Congress to confirm, although it may require a special act of Congress for that purpose. Such is the Act of Congress of 2 July, 1836, which confirms the title of William Pollard's heirs to the lot which is the subject of this suit. The judgment of the Supreme Court of the United States in a case brought by writ of error to a court of a state must be confined to the error alleged in the decision of the state court upon the construction of the act of Congress before the state court.

In the Circuit Court for the County of Mobile, State of Alabama, an action of ejectment for a lot of ground situated in the City of Mobile, was instituted by the plaintiffs in error and was afterwards removed, by change of venue, to the Circuit Court for the County of Baldwin. It was tried before a jury in that court, and on the trial the plaintiffs filed a bill of exceptions to the charge of the court. A verdict and judgment were given for the defendant. From this judgment of the circuit court the plaintiffs prosecuted a writ of error to the Supreme Court of the State of Alabama, and the judgment of the circuit court in favor of the defendant was affirmed by the supreme court.

The plaintiffs prosecuted this writ of error to the Supreme Court of the Uhe defendant was affirmed by the supreme court.

The plaintiffs prosecuted this writ of error to the Supreme Court of the Uhe defendant was affirmed by the supreme court.

The plaintiffs prosecuted this writ of error to the Supreme Court of the United States under the twenty-fifth section of the Judiciary Act of 1789.

The following is the bill of exceptions filed by the plaintiffs on the trial of the cause in the Circuit Court of the County of Baldwin.

"On the trial of this cause at the above term, the plaintiffs, to maintain the issue on their part, gave in evidence an instrument signed by Cayetano Perez, written in the Spanish language, a translation of which is hereto annexed as part of this bill of exceptions, but which instrument was shown to have been reported against and rejected by the commissioners appointed by the United States government to investigate and report on such matters because of the want of improvement and occupancy. "

Page 39 U. S. 355


"Mr. Commandant: "

" William Pollard, an inhabitant of the district, before you with all respect represents that he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof, and that, having found a vacant piece at the riverside between the channel which is called 'John Forbes & Company's' and the wharf at this place, he petitions you to grant said lot on the riverbank to give more facility to his trading, a favor he hopes to obtain of you."

" Mobile, 11 December, 1809 WILLIAM POLLARD"

"Mobile, 12 December, 1809"

" I grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant."


"They further gave in evidence an act of Congress passed 26 May, 1824, entitled an act granting certain lots of ground to the corporation of the City of Mobile and to certain individuals of said city. They further gave in evidence an Act of Congress passed July 2, 1836, entitled an act for the relief of William Pollard's heirs. They then gave in evidence a patent, dated 14 March, 1837, issued in pursuance of said act of Congress of 2 July, 1836, which patent embraced the premises in question. The plaintiffs further proved that in the year 1813 or 1814, some wreck and driftwood was removed from the place where the premises in question now are by the hands of William Pollard, the grantee. The defendant gave in evidence a Spanish grant dated 9 June, 1802, to John Forbes & Company for a lot of ground, for eighty feet front on Royal Street, with a depth of three hundred and four feet to the east and bounded on the south by Government Street, which grant was recognized as a perfect title, and so confirmed by act of Congress. Attached to the original grant was a certificate signed by W. Barton, Register, Wm. Barnet, Receiver, P.M.; Attest, John Elliott, Clerk, a copy of which is the following: "


"Land Office, Jackson Courthouse"

"Commissioners Report, No. 2; Certificate, No. 3"

" In pursuance of the Act of Congress passed on 3 March, 1819, entitled 'an act for adjusting the claims to land, and establishing land offices in the district east of the Island of Orleans,' we certify that the claim No. 3, in the report of the commissioners, numbered 2 (claimed by John Forbes & Company, original claimant, Panton Leslie and Company) is recognized by the said act as valid against any claim on the part of the United States or right derived

Page 39 U. S. 356

from the United States, the said claim being for eighty feet in front and three hundred and four in depth, area 24,320 feet, situate in the Town of Mobile and claimed by virtue of Spanish grant executed by J. V. Morales and dated 9 June, 1802."

" Given under our hands this 8 January, 1820."

"W. BARTON, Register"


WM. BARNETT, Receiver, P.M.

" Attest, JOHN ELLIOTT, Clerk"

"A map, or diagram, indicating the property claimed, as well as that covered by the above grant, with other lots, streets, &c., was submitted to the jury, and is to make a part of the bill of exceptions, by agreement between the counsel of the parties."

"According to that map and the proof, the lot sued for is east of Water Street, and also immediately in front of the lot conveyed by the above mentioned grant to John Forbes & Company, and only separated from it by Water Street. The proof showed that previous to 1819, then and until filled up, as after stated, the lot claimed by plaintiffs, was at ordinary high tide, covered with water, and mainly so at all stages of the water; that the ordinary high water flowed from the east to about the middle of what is now Water Street, as indicated on the map referred to, between the lot claimed by plaintiffs, and that covered by the grant to John Forbes & Company. It was proved that John Forbes & Company had been in possession of the lot indicated by their deed since the year 1802, and that said lot was known under the Spanish government as a water lot, no lots at that time existing between it and the water."

"It was proved that in the year 1823, no one being then in possession, and the same being under water, Curtis Lewis, without any title or claim under title, took possession of and filled up east of Water Street and from it eighty feet east, and thirty-six or forty feet wide, filling up north of Government Street, and at the corner of the same and Water Street; that Lewis remained in possession about nine months, when he was ousted in the night by James Innerarity, one of the firm of John Forbes & Company, who caused to be erected a smith shop and from whom Lewis sometime after regained possession by legal process and retained it till he conveyed the same. Proved that when said Lewis took possession, Water Street at that place could be passed by carts, and was common. The defendant connected himself, through conveyances for the premises in controversy, with the said grant to John Forbes & Company; also with the said Curtis Lewis, also, with the Mayor and Aldermen of the City of Mobile, from each of which sources his title, if any, was derived by deed."

"It was admitted by the parties to the suit that the premises sued for were between Church Street and North Boundary Street; this was all the evidence introduced on the trial."

"On this evidence, the court charged the jury that if the lot conveyed as above to John Forbes & Company by the deed aforesaid

Page 39 U. S. 357

was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at and previous to 26 May, 1824, and was east of Water Street and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed passed by the Act of Congress of 26 May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company."

"The court further charged the jury it was immaterial who made the improvements on the lot on the east side of Water Street, being the one in dispute; that by the said acts of Congress, the proprietor of the lot on the west side of Water Street, known as above, was entitled to the lot on the east side of it. To which charges of the court the plaintiffs by their counsel excepted, and this was signed and sealed as a bill of exceptions. "

Page 39 U. S. 360

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