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U.S. Supreme Court

Kennedy's Executors v. Hunt's Lessee, 48 U.S. 7 How. 586 586 (1849)

Kennedy's Executors v. Hunt's Lessee

48 U.S. (7 How.) 586




Forbes and Company obtained a grant of land in 1807 from Morales, Intendant General under the Spanish government, which land was adjacent to Mobile, in West Florida. This grant purported to be, in part, the confirmation of a concession granted in 1796 and surveyed in 1802. The survey terminated at high water mark upon the river.

The grant of 1807 included the land between the then bank of the river and the high water mark of 1802.

This grant of 1807 was excepted from the operation of the act of Congress passed on 26 March, 1804, which annulled all Spanish grants made after 1 October, 1800, and was recognized as a valid grant by the Act of 3 March, 1819.

An Act of March 2, 1829, confirmed an incomplete Spanish concession which was alleged to draw after it, as a consequence, certain riparian rights conflicting with those claimed under the grant of 1807.

A decision of a state court giving the land covered by these riparian rights to the claimants under the grant of 1807 was only a construction of a perfected Spanish title, and cannot be reviewed by this Court under the twenty-fifth section of the Judiciary Act. It did not draw in question an act of Congress or any authority exercised under the Constitution or laws of the United States.

The facts in the case are sufficiently set forth in the opinion of the Court. chanrobles.com-red

Page 48 U. S. 590

MR. JUSTICE CATRON delivered the opinion of the Court.

This case comes here by writ of error to the Supreme Court of Alabama, under the twenty-fifth section of the Judiciary Act of 1789, and the first question made by the defendants in error is whether any matter presented by the record will authorize this Court to exercise jurisdiction under the twenty-fifth section. And to ascertain how far, if at all, the powers of this Court can be called into exercise, the facts and the laws bearing on them must be stated in something of detail, as in this case, in common with many others, it is found much more difficult to settle the question of jurisdiction and how far it extends than it would have been to decide the merits of the controversy had the cause been brought here by writ of error to a court of the United States.

Hunt, Hagan, and others sued in ejectment Kennedy's executors and other tenants in possession for about ten acres of land lying in the City of Mobile in the state circuit court. The plaintiffs claimed title to the premises sued for under a grant made to John Forbes & Co. in 1807, by Morales, Intendant General under the Spanish government in the Province of West Florida, Spain being then in possession of the province and exercising jurisdiction. The grant, by its recitals, purports to be, in part, the confirmation of a concession, and survey founded on it, of earlier dates, say 1796 and 1802, in favor of Panton, Leslie & Co., to which firm Forbes & Co. were successors. The concession was surveyed in 1802 by Collins, an authorized surveyor under the Spanish government, and its eastern boundary terminated on the bank of the Mobile River, at high water mark; the survey contained two hundred and sixty-three acres, equal to about three hundred arpens. To the extent of Collins' survey there is no controversy, but Forbes & Co. solicited the Intendant General in 1807 to grant them the flowed land lying east of the eastern boundary of the survey, and between the same and the channel of the river, and which the Intendant proceeded to do, in the following terms:

"And as the distance that is observed in the map from the river to the boundary lines of the land, which was left vacant at that time in consequence of its having been impassable, has since become of great use to the claimants, having constructed levels and the necessary drains, in consideration of which it has been granted to them as a compensation for their labor thereon invested, with the reserve such as necessary to allow a free passage along the bank of the river, without altering the figure of the tract on either of the other sides. Wherefore, using and exercising the powers which the King our lord -- God preserve him! -- has conferred on me, I do

Page 48 U. S. 591

in his royal name confirm and ratify to the aforesaid John Forbes & Co. the possession of the three hundred and ten arpens, seventy-seven perches and one eighth, already mentioned, and which are contained in the map (No. 1809), with the corrections made by the surveyor general, in order that they may own and possess the same, sell and alienate the land at their own and entire pleasure, without prejudice to any third person who may have a better right, on condition that they should observe and fulfill the requisitions of the land regulations formed and published by the intendancy on the seventeenth of July, 1799, as far as the local situation and quality of the land will permit."

According to Spanish usages and regulations, the grant to Forbes & Co. was a perfect title, and as such binding on the government of Spain, although made in 1807, after that government had parted with its power to grant, according to our construction of the treaty of 1803, the limits of which were claimed by this government to extend east to the River Perdido, and which claim has been upheld and established by the political and judicial departments of the United States. The first conclusive step was taken by Congress as early as 1804, when, by the act of March 26 of that year, it was declared that all grants made by the Spanish authorities after 1 October, 1800 (the date of the treaty of St. Ildefonso) should be held and deemed to be void. But the act excepted from its operation

"any bona fide grant made agreeably to the laws, usages, and customs of the Spanish government, to an actual settler on the lands so granted for himself and for his wife and family,"

and also excepted

"any bona fide act or proceeding done by an actual settler agreeably to the laws, usages, and customs of the Spanish government, to obtain a grant for lands actually settled on by the person or persons claiming title thereto, if such settlement, in either case, was actually made prior to 20 December, 1803."

Some restrictions were imposed on actual settlers in regard to quantity that have no application to the grant of Forbes & Co.

The Spanish grant recites that Forbes & Co. had been settled on the land granted, and that it had been occupied and cultivated by them since the year 1796, and up to the date of the grant, and such was the proof made before our commissioner, and therefore the "proceeding" by which the imperfect title of Forbes & Co. was completed was within the second exception of the act of 1804. That the grant made by the Intendant General Morales, in 1807, was in itself, unaided by the sanction of Congress, a valid title, we do not assert; chanrobles.com-red

Page 48 U. S. 592

but being reported on by the commissioner as a title complete in form, according to the usages and laws of Spain, and recognized and sanctioned by Congress as a perfect title by the act of 1819, the courts of justice are concluded by the action of the political department, and bound to pronounce the grant to Forbes & Co. a perfect title in substance as well as form, because the claim was within the exclusive jurisdiction of the political department in 1819, when Congress acted on it. Such is the well established doctrine of this Court, as will be seen by the cases of Chouteau v. Eckhart, 2 How. 344; Mackay v. Dillon, 4 How. 421, and especially that of Les Bois v. Bramell, 4 How. 461.

Nor did the grant of Forbes & Co. require any further step to perfect its boundary. This being the prima facie condition of Forbes & Co.'s grant, the next inquiry is whether those claiming under Kennedy's title were in a condition, on the trial in the state court, to call the plaintiffs' title in question.

The defendants below claimed by virtue of an Act of Congress, passed March 2, 1829, confirming an incomplete Spanish concession made to Thomas Price. By the fourth section of the confirming act of 1829, it is provided

"That the confirmations of all the claims provided for by this act shall amount only to a relinquishment forever, on the part of the United States, of any claim whatever to the tracts of land and town lots so confirmed, and that nothing herein contained shall be construed to affect the claim or claims of any individual or body politic or corporate, if any such there be."

And by the fifth section of said act, the register and receiver of the land office at St. Stephens were invested with power, within their district, to direct the manner in which all claims to lands and town lots which had been confirmed by that act should be located and surveyed, having reference to the laws, usages, and customs of the Spanish government on the subject, and also to the mode adopted by the government of the United States, pursuant to the Act of March 3, 1803. And by section sixth, certificates of confirmation and patents were ordered to be granted for all lands and town lots confirmed by the act.

According to the act, the claim of Joshua Kennedy (representative of Thomas Price) was duly surveyed on 2 February, 1836, and in May, 1837, a patent was taken out by Kennedy for the land described in the survey. The calls in the patent having any connection with the present controversy are as follows:

"Thence north, 695' east, 15 chains 44 links, to the ancient margin of the River Mobile, being

Page 48 U. S. 593

34 1/2 links west of the south angle of St. Louis and Water Streets; thence north, 66 west, nine chains and seventy-six links, to the southeast corner of the Orange Grove tract granted to John Forbes & Co."

The next line runs north, 82 west, with the southern boundary of Forbes & Co.'s tract.

The southeast corner of the Orange Grove tract is an iron-bound stake, well known, and from which the Spanish survey made by Collins runs due north, and from that line east to the channel of the river the land was added by the grant of the Intendant General Morales in 1807.

The line of Kennedy's grant fronting towards the river runs 66 west of north, and it is contended that Kennedy, as a front proprietor, is entitled to claim a riparian right to the channel of the river, according to lines drawn at right angles to the front line and from each terminus thereof, unless some other claim shall interfere, and it is insisted that the addition made to Forbes & Co.'s grant in 1807 cannot hinder the assertion of Kennedy's riparian right, because the addition was made after Spanish authority ceased, and for so much the grant of 1807 is void, and being out of the way, Forbes & Co. can only claim as front proprietors, riparian rights in like manner that Kennedy himself claims; and to extend Forbes' southern line east, and Kennedy's lines at right angles, as above stated, would produce a conflict of riparian rights incident to the respective grants, the lines crossing each other at the iron-bound stake, forming an acute angle at the stake, and widening towards the channel of the river; and this angle, it is assumed by those claiming under Kennedy's grant, should be divided between the two grants, but in what proportions we are not informed. This assumption the state court rejected, and held that Forbes & Co.'s grant took all the land to the channel of the river north of a direct extension of its southern boundary, and thereby cut off the pretension of Kennedy to the incident of alluvion.

Suppose it to be true that the addition made to Forbes & Co.'s grant in 1807 was void for want of authority in the Spanish government or for any other reason, and that Kennedy's grant was entitled to divide the alluvion as an incident to it, and that the state court improperly rejected his claim, and wrongfully adjudged the land to Forbes & Co. -- conceding all these assumptions, can this Court revise and reverse the decision of the state court? The controversy respecting the alluvion drew in question no act of Congress, nor any authority exercised under the Constitution or laws of the United States, and therefore the decision of the state court could not be opposed either to the laws or to any authority exercised under the laws chanrobles.com-red

Page 48 U. S. 594

of the United States. For the established construction and application of the twenty-fifth section of the Judiciary Act we refer to the cases of @ 35 U. S. 398; McKinney v. Carroll, 12 Pet. 68; and Armstrong v. Treasurer of Athens County, 16 Pet. 284. In this case, as in that of McDonogh v. Millaudon, 3 How. 693, the state courts were called on to construe a perfected Spanish title, and to settle its limits by applying the local law, and having done so, this Court has no authority to revise the judgment; nor can we see how the case would have been different had Forbes & Co.'s grant been an elder patent emanating from the United States directly, as in such a case a controversy concerning the incidents of alluvion would not have drawn in question an act of Congress or a survey made according to an act of Congress.

We deem it useless to examine in detail the instructions proposed by the defendants below, and rejected by the court. The only one worthy of notice was that which rejected Weakly's survey of Forbes & Co.'s grant, made and approved in 1835. It could not change the grant, nor affect its validity in any degree, and could only be read to establish boundary as a matter of fact, and neither its admission nor rejection, when offered for such purpose, could give this Court jurisdiction, no matter which side should be injured, and so this Court in effect held in the case of Mackay v. Dillon, 4 How. 447. The survey was an ex parte proceeding for the purposes of the land office, and immaterial to Forbes & Co.'s title.

On careful examination, we are of opinion that no one question was raised and decided in the state courts that gives this Court jurisdiction to revise such decision, and that therefore the case must be

Dismissed for want of jurisdiction.


This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Alabama and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this Court that this cause be and the same is hereby dismissed for want of jurisdiction.


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