U.S. Supreme Court
Villalobos v. United States, 51 U.S. 10 How. 541 541 (1850)
Villalobos v. United States
51 U.S. (10 How.) 541
In October, 1817, Coppinger, the Governor of Florida, issued a grant giving the grantee permission to
"build a water saw mill on the creek of the River St. John's named Trout Creek, and also to make use of the pine trees which are comprehended in a square of five miles, which is granted to him,"
The deputy surveyor surveyed 16,000 acres of land in three different tracts, the nearest of which to Trout Creek was thirty miles off, and this change of location never received the sanction of the governor.
The decisions of this Court have uniformly been that the survey must be in reasonable conformity to the grant, whereas the one in question is not.
The Surveyor General had no authority to change the location of the grant and split up the surveys, as there was no authority in the grant to go elsewhere in case there should be a deficiency of vacant land at the place indicated by the grant.
The lands on Trout Creek were poor, and those which were surveyed were of the chanrobles.com-red
best quality. The surveys, therefore, have neither merit in fact nor the sanction of law to uphold them.
This was an appeal from the Superior Court of East Florida. It was argued at the December term, 1847, and dismissed for want of jurisdiction, and is reported in 47 U. S. 6 How. 81. It was afterwards reinstated on the docket of this Court by Act of Congress approved 20 July, 1848.
The appellants, who were the petitioners in the court below, on 28 May, 1829, filed their petition in the Superior court for the Eastern District of Florida under the Act of Congress dated 28 May, 1828, which gave authority to that court to adjudicate claims to land embraced by the Treaty of 22 February, 1819, between the United States and Spain.
The petition set forth, that, on 29 October, 1817, a grant for 16,000 acres of land was made by the Spanish governor, Coppinger, to Jose Argote Villalobos, for the purpose of erecting thereon a water saw mill; that the location thereof was to be on Trout Creek, in the Province of East Florida, but not being able to find an eligible situation for said mill and a sufficient quantity of land ungranted on Trout Creek, the Surveyor General, George J. F. Clarke, in virtue of the power with which he was invested by the Spanish government, located and surveyed 6,000 acres of said grant on Black Creek, within the same district; also 6,000 acres on Indian River, and the remaining 4000 acres in Alachua. The petition further sets forth, that one moiety of the two tracts of 6,000 acres was, on 14 March, 1821, conveyed to the Marquis de Fougeres, one of the petitioners, and that a water saw mill was built by the petitioners on the tract located on Black Creek; that the said claim for the two tracts of land was presented to the Board of Land commissioners for East Florida, who reported unfavorably to the petitioners on 12 December, 1827, though not on the ground that said grant was either antedated or forged.
The attorney for the United States, without admitting any of the facts stated in the petition, and calling for proof thereof, averred in his answer to the petition that if any such grant had been made by the Spanish authorities during the administration of Governor Coppinger, it was made contrary to the laws, ordinances, and royal regulations of the government of Spain, then in force in said Province of East Florida, and that it was never approved by the King of Spain. That no power was ever conferred on said Governor Coppinger to make grants of the magnitude and description of the one set forth in the petition. That if said grant were otherwise valid, it gave no right to locate on other lands than those at Trout Creek. That the chanrobles.com-red
tract on Indian River was more than one hundred miles distant from Black Creek, where the mill, if built at all, was erected, and that neither of said tracts was vacant land, but they were in possession of the Seminole Indians. That at the time of the alleged grant, Villalobos was a Spaniard, and under the laws of Spain could not locate said lands in prejudice of the rights of the Indians. That said grant, if made at all, was made since 24 January, 1818, and is void by the eighth article of the treaty. That the sale to the Marquis de Fougeres was void, and that the petitioners have forfeited all right to said land, if any they had, by failure to improve and cultivate or perform the conditions of said grant.
There was subsequently an amended answer, setting forth certain reports made by the "Senor Auditor of War," relative to grants and concessions of land made upon condition of the establishment of factories, saw mills &c., which had not been complied with, and recommending the term of six months from that date as the time limited for the performance of such condition; and that grants upon condition unperformed after that time should be null and void. Which report was averred to have been confirmed by governor Coppinger. And it was averred that the petitioners had not brought themselves within such limit.
There was a general replication.
The memorial and decree were as follows:
"Senor governor: Don Jose Argote Villalobos, with great respect, presents himself to your Excellency and says that he has fixed his intentions to establish a mill for sawing timber on a creek of the River St. John's named Trout Creek, which affords a site fit for the purpose, and as such an undertaking promises great advantages to the royal revenue in the exportation of this product of the province, and also the supply of the timber necessary for the inhabitants, he supplicates your Excellency to be pleased to grant him your superior permission that he may accomplish the said mill, with a corresponding right to five square miles of land, or an equivalent for a competent supply of timber, a favor which he hopes to obtain from the goodness of your Excellency."
"JOSE ARGOTE VILLALOBOS"
"River St. Mary's, 27th October, 1817"
"St. Augustine of Florida, 29 October, 1817"
"Taking into consideration the benefit and utility which
would result to the province in its improvement if what Don Jose Argote Villalobos proposes should be accomplished, it is granted to him, without prejudice to a third person, that he may build a water saw mill on the creek of the River St. John's named Trout Creek, and also to make use of the pine trees which are comprehended in a square of five miles, which is granted to him, which advantage he shall enjoy for the said water saw mill without any other person having the right to diminish it in any respect. And for his security, let the corresponding certificate be dispatched to him from the secretary's office."
"Don Thomas De Aguilar, Sub-Lieutenant of Infantry, and secretary of this government for his Majesty."
"I certify that the foregoing copy is faithfully taken from the original, which exists in the secretary's office in my charge, and in obedience to orders, I give these presents in St. Augustine of Florida, 39 October, 1817."
"THOMAS DE AGUILAR"
The act of sale by Villalobos to the Marquis de Fougeres was as follows:
"In the City of St. Augustine of Florida, on 12 May, 1821, I, the subscribed notary of the government, in virtue of the disposition made by his Excellency, Don Jose Coppinger, colonel of the national armies, military governor, and civil authority of this place, and of the province thereof, by a decree of the 10th instant, issued at the instance presented by Marquis de Fougeres, consul of his most Christian Majesty in Charleston and resident of this place, do proceed to register, in continuation of said instance, the document annexed to it, and it is a contract entered into under date of 15 March last, between the said Marquis and Don Jose Argote Villalobos, relating to the sale and transfer, which the second part has made in favor of the first part, of one moiety of a tract of land, comprehending six thousand acres on the Indian River, and another moiety of another tract of equal extent, in the place called Black Creek, which tracts are part of a square of five miles, which this government granted to the said Villalobos on 29 October, 1817, the said document containing divers articles of agreement between both parties."
"In testimony thereof and of the said contract been registered, translated in the Spanish language by Don Bernardo Sequi, appointed by the tribunal for the purpose, in the presence
of Don Pedro Miranda, Don Francisco Jose Fatio, and Don Domingo Reyes, witnesses."
"JUAN DE ENTRALGO"
"Notary of the government"
"South Carolina: "
"Be it known by these presents that we, Jose Argote Villalobos on one part, and Marie Rose, Francois Felix, Marquis de Fougeres on the other part, have entered into the following agreement:"
"Whereas, the said Jose possesses two tracts of land in East Florida, which tracts are part of a grant of a square of five miles, comprehending sixteen thousand acres, granted to him, the said Jose, by the Spanish government, on 29 October, 1817, as it is registered at large in the office of said government in the said East Florida, the condition of the grant being that the said Jose shall erect or cause to be erected on the tract, a water saw mill, and whereas a parcel of said grant, comprehending six thousand acres, is situated on Indian River, in the said East Florida, and another parcel, also containing six thousand acres, is situated on Black Creek, the said Jose has agreed to transfer one-half, or an equal part of each of the two parcels aforesaid, to the said Marquis de Fougeres, his heirs and assigns, under the terms and conditions which shall be expressed in continuation."
"Now this contract witnesseth that the said Jose, in virtue of the conditions and motives which will be mentioned, sells and transfers to the said Marquis, his heirs and assigns, one-half of the six thousand acres situated on Indian River, which half will be settled and indicated by a line drawn from the point on said river which divides the tract into two parts, running parallel with the boundaries which divide it from the lands of Juan H. McIntosh, and terminating at the extremity of the pine land corresponding to the said tract, as it is shown more at large in the plot thereof hereunto annexed, which parallel line will divide the said tract into two equal parts, and that part shall belong to the said Marquis which is bounded by the lands of the said McIntosh, and if at any time the Marquis would wish, within two years from this date, to sell his share of the said tract, he shall give previous notice thereof to the said Jose, his agent or attorney, who, or any of them, shall be entitled to the preference in regard to the mentioned share, on paying the same price which might be offered by any other person, if it were their wish to purchase; and in the same case will be placed Jose with respect to the Marquis, his agent or attorney, if the said Jose should think proper to dispose of
his moiety. At the same time, the said Jose agrees to sell and transfer to the said Marquis, his heirs and assigns, one-half, or an equal part, of six thousand acres of land mentioned above, situated on Black Creek in the said East Florida, which tract will be divided by the contracting parties themselves, and the division will not be made until the construction of a water saw mill be made and erected on the said place; and neither of the said contracting parties, without their mutual consent, will have the faculty to sell, alienate, or in any manner dispose of any part of the said tract, until after the division takes place. It is likewise agreed that the parties will give to each other notice of their intention to sell, each of them having in themselves, or in their attorneys, the same right and privilege which has been specified in regard to the Indian River tract. And the said Marquis, in consideration of the said sale and transfer made by said Jose, obligates himself to construct and erect, at his own charge and expense, on the said Black Creek, all its necessary machinery, dams and houses which ought to be built in such a manner that the conditions of the grant be fulfilled, and for the intent and purpose of this agreement, the works for the said mill shall have to be commenced on or before the 20th day of next April, the Marquis supplying all the means and funds necessary to obtain its perfection, in order that it may be in operation and in activity as soon as possible. The mill being completely finished will be considered as the common property of both parties in an equal share; consequently they shall be equally subject to all the expenses, repairs, and management which may take place, and they will equally participate in the profits."
"And the said Marquis also obligates himself to pay to the said Jose the sum of one dollar before the execution and delivery of this instrument, and he obligates himself also that in case he should fail in any manner to fulfill the conditions of this agreement, to pay, himself, or through his assigns or attorney, by way of penalty, to the said Jose, his heirs and assigns, the sum of one thousand dollars, recoverable before any tribunal, it being understood nevertheless that the said Marquis will be in no wise responsible in case of prohibitions or impediments preventing him to fulfill his said engagements if said prohibitions or impediments proceed from the Indians of that territory or from the Spanish or American laws or governments, or if impeded by any other cause not originating in himself; but in case the said work be not carried into effect for default or negligence of the said Marquis, or in case of his demise before the said mill is commenced, then said Jose, or his assigns, will no longer be subjected to this transfer
or agreement, which will remain null and void. And the said Jose likewise obligates himself, his heirs, executors, and assigns, at any time -- that is to say, after the construction of the said mill in the terms and manner specified -- to execute or cause to be executed, in favor of the Marquis, his heirs and assigns the corresponding title and transfer of the two mentioned parcels of land, in conformity to the present or future laws and regulations of the Territory of Florida."
"In testimony whereof, the two mentioned parties respectively sign and seal the present this day, 15 March of the year of our Lord 1821."
"JOSE ARGOTE VILLALOBOS [SEAL]"
"MARQUIS DE FOUGERES [SEAL]"
"His Excellency the governor: I, the Marquis de Fougeres, consul of his most Christian Majesty in Charleston, with due respect, state to your Excellency that for the purposes and effects which may be convenient to me, I have to solicit from the justice of your Excellency that you may be pleased to order the protocol of the English document annexed, and the translation thereof, which document is an agreement which I have entered into with Don Jose Argote Villalobos, under date of 15 March last past, relative to the sale and transfer, which he has executed to me of one-half of a parcel of land containing six thousand acres of land situated on Indian River and another half of another parcel of the same extent on Black Creek, which parcels are part of a square of five miles, which was granted by this government to the said Villalobos on 29 October, 1817. Therefore I supplicate your Excellency to be pleased to provide, as I have at first solicited, and that afterwards such certified copies as I may want be given me, which favor I hope to receive from the justice of your Excellency."
"St. Augustine, on 10 May, 1821."
"As the party solicits."
"JUAN DE ENTRALGO"
"Notary of the government"
"In St. Augustine, on the same day, month, and year, I notified the preceding decree to the Marquis de Fougeres, which I certify."
"It is conformable to the originals thereof, which remain in the archives under my charge, to which I refer, and in obedience to superior order, and at the request of the party, I sign and seal the present certificate, in six leaves of common paper, as stamps are not used."
"St. Augustine of Florida, on 14 May, 1821."
"JUAN DE ENTRALGO"
"Notary of the government"
The record contained certificates of survey by George F. Clarke, accompanied with plats, one of which was as follows:
"Don George Clarke, Lieutenant of the Militia of St. Augustine of Florida, Captain of the District of St. Mary's and Surveyor General of the Province, by appointment of the government."
"I certify that I have measured and marked the boundaries for Don Jose Argote, of six thousand acres of land on the south branch of the creek named Black Creek, which discharges itself into the River St. John's, on the west side, in part of a larger quantity which was granted to him by the government for the construction of a mill to saw timber, which land agrees in its local circumstances with the annexed plat, and its copy kept in the book of surveys in my charge. district of St. Mary's, 1 December, 1817."
"G. J. F. CLARKE"
The others were of the same tenor.
There was evidence that a saw mill was built by Fougeres on Black Creek in 1822 or 1823, and Clarke, the surveyor, testified that he had always acted upon the rule, when requested, of changing the location of grants, and that it was the practice of his predecessor.
There was a large mass of documents in the record, consisting of grants, decrees, certificates of surveys relating to other land and other persons than those concerned in this case, and which were introduced for the purpose of showing the practice of departing from the calls of the concession in certain cases. There was evidence that the land on Trout Creek was poor, whilst the tracts surveyed in lieu thereof were of the best quality. It was in proof that Black Creek was some thirty miles from Trout Creek, and still further about one hundred miles from Black Creek, and still further from Trout Creek, and the survey in Alachua still more remote.
The court decreed that the claim of the petitioners was not valid, and that it be rejected, from which decree this appeal was taken. chanrobles.com-red