U.S. Supreme Court
Jourdan v. Barrett, 45 U.S. 4 How. 169 169 (1846)
Jourdan v. Barrett
45 U.S. (4 How.) 169
Under the former government of Louisiana, the regulations of O'Reilly, Gayoso, and Morales recognized the equitable claim of the owners of tracts of land fronting on rivers &c., to a portion of the public lands which were back of them, and after the cession, the United States did so also.
The Act of Congress passed 3 March, 1811, 2 Lit. & Brown's ed. 662, extended to the front owner a preference to enter the land behind him. That act also provided that where, owing to a bend in the river, each claimant could not obtain a tract equal in quantity to the tract already owned by him, the principal deputy surveyor of each district, under the superintendence of the Surveyor of the Public Lands South of the State of Tennessee should divide the vacant land amongst the claimants in such manner as to him might seem most equitable.
The Act of March 2, 1805, had extended the power of the surveyor of lands south of Tennessee over the Territory of Orleans, and the Act of April 27, 1806, had directed him to appoint two principal deputies, one for each district of the Territory of Orleans.
The Act of March 3, 1831, directed the appointment of a Surveyor General of Public Lands in Louisiana, after 1 May, 1831.
In March, 1832, therefore, the Surveyor of Public Lands South of Tennessee had no power to approve a survey.
The act of 1811 reserved for the public all such back lands as were not correctly taken up under that act by the proprietors of river fronts, and those who did not enter their claims in time did not lose whatever equity they may have had before the passage of the act.
An unauthorized survey by one of the claimants did not confer upon him any additional rights.
In executing the acts of 1820 and 1832, claimants were allowed to pay for the largest amount which they claimed, but the precise amount due on the exact quantity of land to which they were entitled could not appear until the final survey.
When the land was laid out into ranges, townships &c., the survey of township No. 11, approved by H. S Williams, Surveyor General of Louisiana, settled the rights of parties in that township.
A possession of any part of these back lands anterior to this survey cannot be set up as a defense under the laws of Louisiana, because the lands belonged to the United States, and those persons in possession were trespassers.
These were petitory actions, according to the practice of Louisiana, brought by the plaintiffs in error against Barrett to recover some land, and as they involved the same questions of law, they were consolidated in the courts of that state.
By referring to the diagram which will be found on the next page, it will be seen that Jourdan and Landry were the owners of land fronting on the Mississippi River and running back about forty arpents. There were nearly forty other proprietors similarly situated, between a and c, whose location it is not necessary to insert. Their lands were all bounded in the rear by a line running nearly parallel with the river, so as to include the quantity called for in their respective grants. chanrobles.com-red
The facts in the case were these.
On 3 March, 1811, Congress passed an act entitled
"An act providing for the final adjustment of claims to lands, and for the sale of the public lands, in the Territories of Orleans and Louisiana and to repeal the Act passed for the same purpose and approved February 16, 1811."
2 Lit. & Brown's ed. 662.
The fifth section was as follows:
"5th. That every person who, either by virtue of a French or Spanish grant recognized by the laws of the United States, or under a claim confirmed by the commissioners appointed for the purpose of ascertaining the rights of persons claiming lands in the Territory of Orleans, owns a tract of land, bordering on any river, creek, bayou, or watercourse in the said territory, and not exceeding in depth forty arpents, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to, and back of, his own tract, not exceeding forty arpents, French measure, in depth, nor in quantity of land that which is contained in his own tract, at the same price, and on the same terms and conditions, as are or may be provided by law for the other public lands in the said territory. And the principal deputy surveyor of each district, respectively, shall be, and he is, hereby authorized, under the superintendence of the Surveyor of the Public Lands South of the State of Tennessee, to cause to be surveyed the tracts claimed by virtue of this section, and in all cases where, by reason of bends in the river, lake, creek, bayou, or watercourse bordering on the tract, and of adjacent claims of a similar nature, each claimant cannot obtain a tract equal in quantity to the adjacent tract already owned by him, to divide the vacant land applicable to that object between the several claimants in such manner as to him may appear most equitable, provided, however, that the right of preemption granted by this section shall not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or watercourse. And every person entitled to the benefit of this section shall, within three years after the date of this act, deliver, to the register of the proper land office, a notice in writing, stating the situation and extent of the tract of land he wishes to purchase, and shall also make the payment and payments for the same at the time and times which are or may be prescribed by law for the disposal of the other public lands in the said territory; the time of his delivering the notice aforesaid being considered as the date of the purchase. And if any such person shall fail to deliver such notice within the said period of three years, or to make such payment or payments at the time above mentioned, his right of preemption shall cease and become void, and the land may thereafter be purchased by any other person in the same manner and on the same terms as are or may be provided by law for the sale of other public lands in the said territory."
On the 11th of May, 1820, Congress passed another act, 3 Lit. & Brown's ed. 573, entitled, "An act supplementary to the several acts for the adjustment of land claims in the State of Louisiana," the seventh section of which was as follows.
"That the fifth section of the Act of 3 March,
1811, entitled 'An act providing for the final adjustment,' &c., be, and the same is, hereby revived and continued for the term of two years from and after the passing of this act."
On 12 April, 1822, Bringier, under whom Barrett, the defendant claimed, filed the following application.
"To the Register of the Land Office for the Eastern District of Louisiana, at New Orleans."
"SIR -- In virtue of an Act of Congress, dated 11 May, 1820, I apply to become the purchaser of a tract of land adjacent to and back of a front tract already owned by me, which said front tract contains 27 arpents 13 toises and 2 feet front, and forty arpents in depth, bounded as follows, viz., front on the left bank of the Mississippi, on the upper side by land of Baptiste Loviere, and below by lands of Paul Le Blanc. This land, composed of four tracts, confirmed in the name of Alexis Cesar Bonremy and in the name of James Melancon. Two arpents, on the lower side, have been sold. The said back land, now claimed by right of preemption, extends in depth _____ arpents, beginning at the rear of the said front tract, and contains five hundred and ten superficial acres, not being a greater quantity than is contained in my front tract, and does not extend so far back as to include any land fit for cultivation, bordering on any river, creek, bayou, or watercourse."
"[Signed] ML. DORADON BRINGIER"
"New Orleans, April 12, 1822"
On 13 April, 1822, Bringier paid to the receiver $637.50, as the price of the land.
On 17 May, 1822, Harper, the register, issued the following certificate.
"I certify, that from the records in my office, expressing the quantity of land contained in the applicant's front tract (the surveys in this district not having been executed), and in virtue of the laws in this case made and provided, it appears the said applicant is entitled to the quantity of land for which he has applied, viz., five hundred and ten superficial acres, on paying the price of one dollar and twenty-five cents per acre."
"[Signed] SAMUEL H. HARPER, Register"
On 17 December, 1822, John Wilson, subscribing himself principal deputy surveyor for that district, surveyed the tract of land at the request of Bringier, who took possession of it. It is unnecessary to state the mesne conveyances by which the title was passed, through sundry persons, from Bringier to Barrett, who was in possession at the institution of the present suits.
In 1829, the township and sectional lines were run for the first chanrobles.com-red
time over this district in the mode pursued in running out other public lands of the United States.
On 10 June, 1830, a survey was completed under the authority and with the approbation of A. T. Rightor, principal deputy surveyor of the exterior boundaries of the township and of the lands in question, together with others, which survey was reexamined and approved by Gideon Fitz, Surveyor of Public Lands South of Tennessee, on 9 March, 1832. This survey differed in some degree from the one previously made by Wilson, although agreeing with it in substance, and being adopted by Bringier and his grantees as the basis of their title, has been followed in the preceding diagram.
On 15 June, 1832, Congress passed another act, 4 Lit. & Brown's ed. 539, entitled "An act to authorize the inhabitants of the State of Louisiana to enter the back lands." It did not refer to either of the two preceding acts, but in substance and nearly in the same words reenacted the fifth section of the act of 1811, limiting the time of making application to three years from the date of the act.
On 9 August, 1834, Jourdan, one of the plaintiffs in error, obtained from the receiver the following certificate.
"RECEIVER'S OFFICE, SO. EAST. DIST. LA."
"New Orleans, August 9, 1834"
"Received from Noel Jourdan, of the Parish of St. James, the sum of three hundred and thirty-six 80/100 dollars, being in full of the purchase money of his preemption right by virtue of an act of Congress authorizing the inhabitants of Louisiana to enter their back lands, approved 15 June, 1832, to a tract of land adjacent to and back of his front tract, situate in township No. 11, range No. 3 east, and containing two hundred and sixty-nine 44/100 superficial acres, at one dollar and twenty-five cents, as per register's certificate, numbered No. 9."
"[Signed] MAURICE CANNON, Receiver of Public Moneys"
On 8 March, 1836, Landry, the other plaintiff in error, obtained the following certificate.
"No. 520. RECEIVER'S OFFICE, SO. EAST. DIST. LA."
"New Orleans, 8 March, 1836"
"Received from Joseph Landry, of the Parish of St. James, the sum of one hundred and ninety-two 76/100 dollars, being in full of the purchase money of his preemption rights, by virtue of an act of Congress, authorizing the inhabitants of Louisiana to enter their back lands, approved 15 June, 1832, to a tract of land adjacent to and back of his front tract, situate in township No. 11, range
No. 3 east, and containing one hundred and fifty-four 21/100 superficial acres, at one dollar and twenty-five cents, as per register's certificate, numbered 520, and being described as section No. 19."
"[Signed] MAURICE CANNON, Receiver of Public Moneys"
In February, 1838, Jourdan and Landry filed separate petitions in the District Court for the First Judicial district of the State of Louisiana, claiming their respective back lands. Barrett, who was then in possession of the tract surveyed for Bringier, answered the petition and called in warranty, according to the Louisiana practice, all the intermediate grantors between Bringier and himself and Bringier also. They all responded to the call, and various evidence was taken and filed in the causes, which, as has been already mentioned, were consolidated and prosecuted together.
On 22 March, 1838, the court adjudged and decreed that judgment should be entered for Barrett, the defendant; an appeal being made to the Supreme Court of Louisiana, that court, on 21 January, 1839, affirmed the judgment, to review which a writ of error brought the case up to this Court. chanrobles.com-red