US SUPREME COURT DECISIONS

Where the petition for a Spanish concession was for a tract of land without any definite boundaries, and the petition was referred to the solicitor general with instructions to put the petitioner in possession if in so doing no prejudice would result to third persons, this condition required some subsequent action of the government in order to make the grant absolute.

A part of the duty of the solicitor general was to supervise the severance of the object to be granted from the royal domain and apportion the extent of the grant to the means which the petitioner possessed towards carrying out the objects of the government.

The preceding decisions of this Court have established the doctrine that in order to constitute a valid grant, there must be a severance of the property claimed from the public domain, either by actual survey or by some ascertained limits or mode of separation recognized by a competent authority.

In the present case, the proof of occupation, settlement, or cultivation is insufficient.

Lecompte claimed under D'Artigau by a chain of title which it is not necessary to set forth.

On 31 July, 1797, D'Artigau presented the following petition to Jose Maria Guadiana, then lieutenant governor and civil and military commandant of the post of Nacogdoches:

"Don Juan Baptiste D'Artigau respectfully begs leave to state to your Excellency that he desires to establish a stock farm, to raise horses, mares, and horned cattle, at the place called Lianacoco, within this jurisdiction; for said object, he prays your Excellency will please grant him two leagues square of land at the above-mentioned place, so that in these two leagues be included or embraced the entire prairie of Lianacoco. The petitioner solicits this grant for himself, his children, and assigns, and, from your well known sense of justice, he hopes to obtain it."

"[Signed] J. B. D'ARTIGAU"

"Nacogdoches, 31 July, 1797"

And on the same day, the lieutenant governor issued the following order:

"Nacogdoches, 31 July, 1797"

"Let this petition be handed to the solicitor general of this place in order that the petitioner be placed in possession of the land therein mentioned if in so doing no prejudice can result to any third party."

"[Signed] GUADIANA"

The claimant alleged that possession was taken by the grantee, and continued by those who held under him until the commencement of the suit. chanrobles.com-red

Page 52 U. S. 116

This claim was twice reported upon by the commissioners appointed by acts of Congress, once in 1816 and again in 1824.

In January, 1816, the commissioners reported, 3 American State Papers 88, that Madame Louise Porter filed with the board of commissioners her claims as assignee of D'Artigau; also the testimony of Gaspard Boudin, taken before the board, that about thirteen or fourteen years ago, viz., about 1802 or 1803, Madame Monet had possession of this land in exchange for another tract with D'Artigau, and that she put Jaques, an Englishman, on it, and that it had been inhabited and cultivated ever since.

The board, at page 91, report that this tract is, with others emanating from the Spanish authorities at Nacogdoches, west of Rio Hondo in the disputed territory; that they have had no means of acquiring satisfactory information of the powers and authorities of the Spanish officers at that place, and therefore decline a decision upon those claims.

On 3 March, 1823, Congress passed an Act, 3 Stat. 756, ch. 30, relative to claims in this tract of country, between the Rio Hondo and Sabine River, called the "neutral territory."

The first section adds the country

"situated between the Rio Hondo and the Sabine River, within the State of Louisiana, and, previously to the treaty of 22 February, 1819, between the United States and Spain, called the 'neutral territory,'"

to the district south of Red River, requires the register and receiver to receive and record all written evidences of claims to land in that neutral country,

"derived from, and issued by, the Spanish government of Texas prior to 20 December, 1803, according to the regulations as to the granting of lands, the laws and ordinances of said government, and to receive and record all evidences of claim founded on occupation, habitation, and cultivation, designating particularly the time and manner in which each tract was occupied, inhabited, or cultivated, prior to and on 22 February, 1819, and the continuance thereof subsequent to that time, with the extent of the improvement on each tract, and to receive and record such evidence as may be produced touching the performance of the conditions required to be performed by any holder of any grant, concession, warrant, or order of survey, or other written evidence of claim, and on which the validity of such claim may have depended under the government from which it emanated, and to receive and record all evidence of fraud in obtaining or issuing the written evidence of such claims and of their abandonment or forfeiture. "

Page 52 U. S. 117

Section second required the register and receiver to transmit to the Secretary of the Treasury a record of all the claims presented, and the evidence appertaining to each claim, the claims to be arranged in four classes:

1. A specification of complete titles, transfers &c., where the conditions have been complied with.

2. All claims on written evidence not embraced in the first class, where the conditions on which the perfection into complete titles depended, according to the laws and ordinances of the Spanish government, are shown to have been complied with.

3. All claims founded on habitation, occupation, or cultivation, previously to 22 February, 1819, and in the manner which would have entitled the claimants to a title under the government exercising the sovereign power over that tract of country, and which in their opinion ought to be confirmed.

4. Those claims which, in the opinion of the register and receiver, ought not to be confirmed, "Provided, that nothing contained in this act shall be considered as a pledge on the part of Congress to confirm any claim thus reported."

By a Supplementary Act approved 26 of May, 1824, 4 Stat. 65, ch. 182, the powers given and duties required of the register and receiver of the land office south of Red River in the State of Louisiana by Act of 3 March, 1823, ch. 30, (the act above recited) be extend to all that tract of country called the neutral territory

"lying east of the present western boundary of Louisiana and west of the limits to which the land commissioners have heretofore examined claims to land in said state, and in the examination of claims to land within the aforesaid limits, the register and receiver shall in all respects be governed by the provisions of said act."

In November, 1824, these commissioners made a report which was communicated to the Senate by the Secretary of the Treasury on 31 January, 1825. 4 American State Papers 69, claim 230

This report shows the powers, customs, and usages of the lieutenant governors and commandants of the Spanish Province of Texas to grant lands as far back as 1792; then special instructions came which were deposited among the public records; they were not limited to any specific quantity, but it was their duty to apportion the quantity to the circumstances of the individuals asking concessions, "to proportion their grants to the property, force, stock, and merit of the individual asking the grant." chanrobles.com-red

Page 52 U. S. 118

"The procurador del comun was the officer appointed to make inquiry, put the petitioner in possession of the land prayed for, and execute the lieutenant governor's and commandant's orders relative to the premises."

The lieutenant governors and commandants of Nacogdoches were

"not limited in the granting of lands to any specific quantity, but it was their duty to proportion the extent of the grants to the circumstances of the individual claiming them, and to that effect the procurador del comun, named to put the party in possession, inquired into the merits and circumstances of the applicant, and if the grant was for a stock farm, it was customary to extend the concession to two, three, and four leagues square, according to the wants and merits of the claimant."

"All grants signed and confirmed by the lieutenant governor or commandant, executed in due form, were considered as vesting a complete title in the claimant, without any further process, and were recognized as such by the governor of the province, particularly by Governor Salcedo in 1810, when at Nacogdoches making his provincial visit."

"The limits of the late neutral territory, as considered by ancient authorities of Texas and Louisiana, comprehended all that country lying east of the Sabine, west of the branch of Red River called Old River, southwest of Arroyo Hondo, and south of Red River, to the northwestern boundary of the State of Louisiana."

"The inhabitants of the neutral territory were recognized as belonging to the jurisdiction of Nacogdoches, and the Spanish authorities considered their right of civil jurisdiction not taken away by the arrangement between General Wilkinson and Governor Herrera in the year 1806; yet it was seldom exercised or enforced."

"The public archives and records of the jurisdiction of Nacogdoches are not at that place at present; they were removed and carried off by John Jose Montero in 1812, then commanding at Nacogdoches, when he abandoned that place, and were destroyed at San Antonio, where said Montero carried them."

Such is the substance of the testimony taken by the commissioners and reported more at large in that volume, pp. 34, 35 and 36.

At page 69, claim 230, the commissioners report the claim of John Baptiste Lecompte, lying in the neutral territory, founded on the concession to D'Artigau, before set forth, containing, by the plat and survey by Joseph Irwin, a deputy surveyor of the United States in 1813, and filed with the claim, chanrobles.com-red

Page 52 U. S. 119

two leagues square, or 23,507 acres, which concession

"was signed by the commandant of Nacogdoches, dated 31 July, 1797, in favor of Jean Baptiste D'Artigau for the land claimed, transferred by said D'Artigau to Marie Louise Lecompte, Dame Porter by act of exchange, dated _____, and by said Dame Porter transferred to the claimant by act of sale, dated 19 June, 1813; claimed also in virtue of habitation, occupation, and cultivation for more than thirty-three years."

The claim is further supported by the following testimony, taken before the board:

"Gaspard Boudin: that the land has been constantly and uninterruptedly inhabited, occupied, and cultivated by those under whom the claimant, J. B. Lecompte, holds, by the claimant, and for his use by others, for more than thirty-three years preceding this date."

That is, preceding this sitting of the commissioners

"We are of opinion this claim ought to be confirmed, and in the abstract have classed it with claims of second class." (Viz. incomplete grants, "where the conditions on which the perfection thereof into complete titles may have depended, according to the laws and ordinances of the Spanish government, are shown to have been complied with.")

In May, 1846, Lecompte filed his petition in the district court of the United States under the act of Congress of 1844, so often spoken of, setting forth the grant, the order of survey, possession under it, and a deduction of title from D'Artigau to the petitioner. An answer was filed by Mr. Downe, district Attorney of the United States, denying generally all the facts and allegations of the petition. Afterwards, by leave of the court, the following supplemental petition was filed:

"The supplemental petition of Ambrose Lecompte, the plaintiff in the above-entitled suit, with respect represents, that the warrant and order of survey and grant legally made and issued to J. B. D'Artigau as aforesaid, in the original petition, was such as might and could have been perfected into a complete title under the laws, usages, and customs of Spain, had not the sovereignty of the country been changed; that the same was secured by treaty stipulations, and was and is good and valid under the law of nations and by the several acts of Congress."

Much testimony was taken, which cannot very well be condensed, and in November, 1847, the cause came on for trial, when the court pronounced the following judgment:

"The court having taken this cause under advisement, and having maturely considered the same, and it appearing that

Page 52 U. S. 120

the petitioner has not sustained by the evidence offered the validity of his claim against the United States to the land set forth in his petition, it is therefore ordered, adjudged, and decreed that the suit be dismissed at the cost of the plaintiff."

"Judgment rendered 22 November, 1847."

"Judgment signed 15 December, 1847."

"[Signed] THEO. H. McCALEB [SEAL.]U.S. Judge"

Lecompte appealed to this Court. chanrobles.com-red

Page 52 U. S. 124