US SUPREME COURT DECISIONS

A petition was presented to the Governor of Florida before the cession of the territory to the United States setting forth that the petitioner was desirous of erecting machinery for sawing, timber, &c., and asking

"permission for that purpose, with the corresponding survey of the grant of land of five miles square, sixteen thousand acres or its equivalent, in the event that this situation will not permit the said form, which land will insure the continued supply of timber. The permission was granted without injury to third persons under the express condition that until the establishment of the mill, the grant of the land, which will be a square of five miles, in order that he may use the timber, shall be of no effect."

A survey was made of ten thousand acres, but no more than that quantity could be had at the place described, and the residue of the grant, six thousand acres, was afterwards surveyed in other places at the distances of twenty and thirty miles. In 1819, the grantee commenced the erection of a mill which was afterwards carried away by floods. In 1827 another mill was commenced, which was destroyed by fire in July, 1828, and in October, 1828, another mill was commenced, which went into operation in 1929. The Superior Court of East Florida confirmed the survey of ten thousand acres and rejected the two surveys amounting to six thousand acres. Held that the grantee was entitled to the whole sixteen thousand acres.

By the eighth article of the treaty of cession of Spain to the United States, the same time is allowed to the owners of land granted under the authority of Spain to fulfill the conditions of their grants after the date of the treaty as was limited in the grants. It has been decided by this Court in the case of Arredondo that as to individual rights, the treaty is to be considered as dated at its ratification.

It has been decided in Arredondo's Case that that provision of the treaty as to the performance of the conditions in grants is not confined to owners of land by occupancy or residence, but extends to persons who have a legal seizin and possession of land in virtue of a grant, and that in the situation of the province and the claimants to land at the time of the cession, it was enough that they should show a performance of the condition cy pres.

This was a claim to land in East Florida, presented to the Superior Court of East Florida by the appellee, founded on a concession for sixteen thousand acres of land made by Don Jose Coppinger, Governor of the Province of East Florida, to Charles F. Sibbald, the claimant, on 2 August, 1816, for five miles square, or sixteen thousand acres of land.

On 16 July, 1816, the petitioner, Charles F. Sibbald, presented his petition to Governor Coppinger supplicating his permission to construct a water saw mill on the creek called Six Miles, chanrobles.com-red

Page 35 U. S. 314

alias Little Trout Creek, on the north side of the River St. John's and that of Nassau, the creeks of which empty their waters into the said St. John's River, with the corresponding surety for the grant of lands embraced in a line of two and a half miles to each wind, making a square of five miles or its equivalent in the event that this situation will not permit the same form, which land, he says, will insure the continued supply of timber.

On 2 August of the same year, the governor made his decree granting the permission solicited under the express condition that until the establishment of the mill, the grant of the land, which will be of two miles and a half to each wind, making a square of five miles, in order that he may use the timber, &c., shall be of no effect.

Ten thousand acres of this land were surveyed upon Little Trout Creek agreeably to the calls of the grant. Four thousand acres were surveyed by George J. F. Clarke, public surveyor, on 8 February, 1820, in Turnbull's Swamp, at Mosquito, more than one hundred miles to the southward from the first location, and between which and it there is no water communication except by the open sea, and the remaining two thousand acres were, on 20 February, 1820, surveyed by said Clarke, at Bow Legs Hammock, about the same distance to the west and from the first survey, between which and those two thousand acres, there is no water communication at all.

The petitioner alleges that in compliance with the condition of said grant, he, in the year 1819, expended six or eight thousand dollars in the erection of a water saw mill, which was nearly completed, but that, owing to various difficulties and the embarrassments of said province, the mill did not go into operation.

That since the cession of the Floridas to the United States, he has expended upwards of twenty thousand dollars in the erection of a steam saw mill on the tract of ten thousand acres, which was completed, and some time in full operation, but that in the month of July, 1828, it was entirely destroyed by fire, and that he has since commenced another upon a much more extensive scale. This last has been completed since the filing of the petition in this case.

The answer of the district attorney denies the power of the governor to make this grant and puts the claimant to the proof of all the allegations contained in his petition and insists that he has not complied with the condition of the concession. chanrobles.com-red

Page 35 U. S. 315

That by a decree of Governor Coppinger bearing date 29 October of the same year (White's Compilations), the term of six months was limited for the performance of the conditions of all grants of this nature, and that it was then especially decreed by said governor that all those grants the conditions of which were not performed at the expiration of said six months should be null and void and that the lands should be annexed to the class of public land, which decree was subsequently, to-wit on 18 January, 1819, by another decree of the same governor, fully affirmed, and that the said Charles F. Sibbald did not erect the said saw mill within the said term of six months, and that consequently said concession, at the expiration thereof, became null and void, and the lands were annexed to the class of public lands.

The original concession in this case was not to be found in the archives; but a copy certified by Thomas de Aguilar, late secretary of the government of the province, was produced and proved.

The proof in relation to the building of the mills is substantially as stated in the petition, and a duly certified copy of the survey was also produced. chanrobles.com-red

Page 35 U. S. 321