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U.S. Supreme Court

Chouteau's Heirs v. United States, 34 U.S. 9 Pet. 137 137 (1835)

Chouteau's Heirs v. United States

34 U.S. (9 Pet.) 137


A concession of land was made by the Lieutenant Governor of Upper Louisiana at the time when the power of granting lands was vested in the governors of provinces. This power was, in 1799, after the concession, transferred to the intendant general, and after this transfer, in January, 1800, the order of survey of the land was made by the lieutenant governor. The validity of the order of survey depends on the authority of the lieutenant

governor to make it. The lieutenant governor was also a subdelegate, and as such was empowered to make inchoate grants. The grant was confirmed.

The transfer of the power to make concessions of lands belonging to the royal domain of Spain, from the governor general to the intendant general, did not affect the power of the subdelegate, who made this concession. The order in this case is the foundation of title, and is, according to the act of Congress on the subject of confirming titles to lands in Missouri, &c., and the general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property, capable of being alienated, of being subjected to debts, and is as such to be held as sacred and inviolate as other property.

On 18 May, 1829, the following petition, with the documents therein referred to, was presented by the appellants to the District Court of the United States for the District of Missouri.

"To the Honorable the District Court of the United States for the District of Missouri."

"The petition of Auguste A. Chouteau, Gabriel Care Chouteau, Henry Chouteau, Edward Chouteau, Eulalie Paul and Rene Paul, husband of said Eulalie, Louise Paul and Gabriel Paul, husband of said Louise, Emilie Smith and Thomas F. Smith, husband of said Emilie, respectfully showeth that in the year 1799, Auguste A. Chouteau, deceased, late of St. Louis, the father of your petitioners, applied to and obtained permission from the government then existing in Upper Louisiana, to establish a distillery in or near the Town of St. Louis, as will more fully appear by the petition and order thereon dated 5 November, 1799, and 3 January, 1800,

Page 34 U. S. 138

which are herewith shown to the court and prayed to be taken as part of this petition, marked No. 1; that on 5 January, 1800, said Auguste Chouteau presented his petition of that date to the Lieutenant Governor of the Province of Upper Louisiana, praying that a tract of land containing twelve hundred and eighty-one arpents, superficial measure of Paris, situated near the Town of St. Louis, bounded on the north by a tract granted to Doctor John Watkins, on the south and on the west by the lands of the third line of concessions, should be granted to the said Auguste Chouteau and his heirs, for the purpose of enabling said Auguste Chouteau to obtain a sufficient supply of fire wood for the distillery aforesaid; that on the same day, to-wit, 5 January, 1800, the said lieutenant governor made his decree conformably to the prayer of said petition whereby said lieutenant governor directed and ordered that the surveyor of the said province, Don Antonio Soulard, should put the said Auguste Chouteau in possession of the said tract of twelve hundred and eighty-one arpents, in the place indicated and demanded, to the end that said Auguste Chouteau might afterwards obtain the complete title thereto from the governor general, all which will appear by said petition and decree, now here produced, marked No. 2, and which petition and decree is prayed to be taken as part of this petition; that afterwards, in obedience to said decree, to-wit, on 5 March, 1801, the said surveyor, Don Antonio Soulard, delivered the possession of said tract to said Auguste, and executed a survey and plat of survey thereof, as will "


more fully appear by the said plat and certificate of survey, bearing date the 10th of April 1801, now here produced, marked No. 3, and which said plat and certificate were recorded in book A, 43, No. 82, in the office of said surveyor, as by reference to the said certificate and to said record in the office of the surveyor of this district will appear; that said decrees so made by said lieutenant governor, were made in pursuance of the special instruction given by the governor general of Louisiana, Don Manuel Gayoso De Lemos, to said lieutenant governor, to favor and forward the aforesaid undertakings of said Auguste Chouteau, as will appear by the letter of said governor general, addressed to said Auguste Chouteau, under date 20 May, 1799, in answer to an application made by said Auguste chanrobles.com-red

Page 34 U. S. 139

Chouteau to said governor general, as will appear by reference to said original letter herewith exhibited, marked No. 4, and prayed to be taken as part of this petition; that by virtue of said decrees, survey, and delivery of possession, said Auguste occupied and enjoyed said tract, so granted, as the lawful proprietor thereof, from the date of said delivery of possession until the decease of said Auguste Chouteau; that said Auguste, during his life, did, in conformity to the acts of Congress in that case made and provided, submit his claim to said tract, derived as aforesaid, to the board of commissioners heretofore created for the settlement and adjudication of French and Spanish land claims in Upper Louisiana; that said board rejected said claim on the sole ground that a tract of a league square having been already confirmed to said Auguste Chouteau, the board had not power under the law, as it then stood, to confirm to said Chouteau any greater quantity; and your petitioners show that said board, for the purpose, as it is supposed, of testifying their sense of the merits of said claim, did cause to be endorsed on the back of a document therein exhibited to them, the words "bona fide," as will appear, reference being had to said document No. 2, hereinbefore mentioned; your petitioners further show, that said Auguste Chouteau has departed this life, and that previous to his death he made his last will and testament, in due form of law, whereby he devised to your petitioners the said tract of twelve hundred and eighty-one arpents, besides other property, to your petitioners and their heirs, as tenants in common. Wherefore your petitioners pray that said title may be inquired into, and that the same be confirmed, as the same would have been confirmed had not the sovereignty of said province been transferred to the United States.

(Translation) No. 1.

"To Mr. Charles Dehault Delassus, lieutenant colonel attached to the regiment of Louisiana, and lieutenant governor of the upper part of same province, &c."

"Auguste Chouteau has the honor to expose, that he wishes to establish, in this town, a manufacture proper to distil the several kinds of grains raised in this dependency, [to] supply the wants of the consumption of the place, of which remote distance to the chief city renders the importation too expensive

Page 34 U. S. 140

to draw from it annually what is necessary for its use. Wherefore, sir, the supplicant, previous to subjecting himself to considerable expenses to form such an establishment, wishes to obtain the honor of your consent, in order that hereafter he may not be subject to any alteration hurtful to his interests; wherefore the supplicant will acknowledge your goodness, if you grant his request."


"St. Louis of Illinois, November 5, 1799"

"St. Louis of Illinois, January 3, 1800"

"Considering that the establishment which the supplicant proposes to form will be useful to the public and to commerce, because there does not exist any of this nature, and that he will procure liquors in a greater abundance, and at a less price than those which are imported, and in very little quantity, from New Orleans, we grant the request."


(Translation) No. 2.

"To Mr. Charles Dehault Delassus, lieutenant colonel, attached to the fixed regiment of Louisiana and lieutenant governor of the upper part of said province."

"Auguste Chouteau, merchant, of this town, has the honor to represent that the lands adjacent to this town being mostly conceded, and timber becoming daily very scarce, he is very much embarrassed in the carrying on of the considerable distillery which you have permitted him to establish by your decree, dated 5 November of last year; consequently, he hopes you will be pleased to assist him in his views, and have the goodness to grant him the concession of one thousand two hundred and eighty-one superficial arpents of this land, situated on the fourth concession in depth of the land adjoining this town; bounded north by the land of Dr John Watkins; south and west, by the lands of the third concession. The supplicant, besides having the intention to establish the said lands, hopes to obtain of your justice the favor which he solicits."


"St. Louis, January 5, 1800 "

Page 34 U. S. 141

"St. Louis of Illinois, January 5, 1800"

"Being satisfied that the supplicant has sufficient means to make available, in the term of the regulation of the governor general of this province, the lands which he demands, the surveyor of this Upper Louisiana, Mr. Anthony Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land in the place where he asks it, and afterwards the applicant will have to solicit the formal title of concessions of the intendant general of these provinces, to whom belongs, by order of his M___, the disposing and conceding every kind of vacant lands of the royal domains."


No. 3. The survey of the land was made by Antonio Soulard, Principal Deputy Surveyor of Upper Louisiana, on 5 March, and certified on 10 April, 1801.

(Translation) No. 4.

"New Orleans, May 20, 1799"

"My dear friend: Wishing to testify to you my esteem, by every opportunity, I merely assure you of my esteem, promising you to answer your letter by the boat that just arrived, and which will leave here next week."

"In my instructions to Mr. Delassus, I recommend him particularly to favor all your undertakings, &c."

"Adieu: I am in such a hurry that I have but the time to tell you that I am your sincere friend and most humble servant,"


The district attorney of the United States filed an answer to the petition, denying the claim of the petitioners, and requiring proof of the same.

At the January session of the district court in the year 1830, a decree was entered against the validity of the title and claim of the petitioners.

From this decree the petitioners prosecuted this appeal. chanrobles.com-red

Page 34 U. S. 142


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