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U.S. Supreme Court

United States v. Power's Heirs, 52 U.S. 11 How. 570 570 (1850)

United States v. Power's Heirs

52 U.S. (11 How.) 570


The twelfth section of the regulations of O'Reilly in 1770 required that there should be an order of survey, a proces verbal by the surveyor of the province, three copies of the plat made out by him, one of which should be deposited in the office of the scrivener of the government, and Cabildo, a second delivered to the governor, and the third to the proprietor, to be annexed to the titles of the grant.

Where a grant was alleged to have been issued by the Spanish Governor of Louisiana in 1781, and the only evidence of it was a copy taken from a notary's book, the title was invalid.

At the date of the grant, viz., 1 August, 1781, the Spanish Governor of Louisiana was only the military commandant of that part of West Florida in which the lands granted were situated. He held the country by right of conquest. The Spanish laws had not been introduced into the country, and it was not ceded to Spain by Great Britain until 1783. The governor had therefore no authority to grant land in 1781.

Under the acts of Congress of 1824 and 1844, the district court had no power to act upon evidence of mere naked possession, unaccompanied by written evidence, conferring or professing to confer a title of some description.

Under the various acts of Congress relating to land titles in that tract of country between the Iberville, the Perdido, and the thirty-first degree of north latitude, a complete title, unrecorded, is not barred against the United States, although it is barred against any private claim derived from the United States.

This was the case of a petition and amended petition presented by the heirs of Thomas Power to the District Court for the Southern District of Mississippi, the first on 15 June, 1846, and the latter on 11 November, 1846, under the act of 1824, as revived and reenacted by that of 1844, claiming two very valuable islands lying off the coast of the State of Mississippi opposite the Bay of Biloxi. chanrobles.com-red

Page 52 U. S. 571

The petition and amended petition in substance set forth that before the year 1760, Deer Island was occupied, with the verbal consent of the provincial authorities, by Pierre Laclede and Pierre Songy, who, on 11 September, 1760, sold all their rights to Andre Jung; that on 7 March, 1761, the said Jung made a similar sale to Ignace Brontin; and that, on 8 April, Brontin sold all his rights to Francisco Caminada.

That afterwards, on 1 August, 1781, Caminada received a grant of the said island called Deer Island and another called Ship Island from Bernardo de Galvez, then Spanish Governor of Louisiana, which, it is alleged, then extended to the east beyond the said islands, as follows, viz.:

"Don Bernardo de Galvez, Knight Pensioner of the Royal and Distinguished Spanish Order of Charles the Third, Colonel of the Royal Army, Governor, Intendant, and Inspector General of the Province of Louisiana &c."

"Considering the foregoing acts performed by Don Francisco Caminada, which establish the right of possession which he has to the two islands, Deer and Ship, situated in front of the coast of Biloxi, recognizing them to have been made out agreeably to the order of survey, without causing prejudice to the neighbors adjoining and without any opposition on their part, on the contrary, yielding, as it appears, their assistance to the said acts, approving them as we do approve them, therefor using the authority which the King has confided to us (otorgamos), we grant in his royal name to the said Don Francisco Caminada the possession of the aforesaid two islands, Deer and Ship, that as his own property he may dispose of them and enjoy them, governing himself by said acts and observing in everything that which has been ordered for the settlement of the subject matter."

"We give these presents, signed with our hand, sealed with the seal of our arms, and countersigned by the undersigned secretary of his Majesty for this government."

"In New Orleans, on 1 August, 1781."


"By order of his Excellency."


"Registered in book of records for said object, in the archives of my office, at folio 14. New Orleans, November 8, 1781."


The above, being a notarial copy, was the only evidence exhibited of the grant. The original was lost. chanrobles.com-red

Page 52 U. S. 572

The petition further stated that on 2 December, 1806, Prosper Prieur, acting as the testamentary executor of Caminada, sold the two islands to Thomas Power, to whom the petitioners are heirs.

The amended petition further stated that Caminada was an inhabitant of Louisiana, where he lived and died; that the Surveyor General of Mississippi, acting under instructions of the Treasury Department, was executing, by a deputy, a survey of the islands, which had not been completed, but Deer Island was estimated to contain about two thousand acres, and Ship Island three thousand acres; that the petitioners had no knowledge or information of any adverse claim of title save and except transient and temporary squatters who from time to time had occasionally occupied parts of each island, and that they had no knowledge or belief that the title was ever presented by their ancestor to any board of commissioners whatever.

To this petition the district attorney filed his answer on 13 January, 1847, and insisted that the original petition was not filed within the time limited by the act of 1824 and the act of 1828 amendatory thereto, and that, the amended petition not having been filed until 11 November, 1846, the petitioners were barred and precluded from the institution of any suit against the United States, who relied upon the act of Congress of 1828 as limiting the right to one year. But if it should be decided that the limitation was two years, as provided in the act of 1824, they still insisted that the claim was barred, the amended petition not having been filed within two years from the passage of the act of 1844. The answer further denied the grant to Caminada in 1781 and the sale by his testamentary executor to Power. But if ever such a sale was made, they denied the right of the executor to make it or to divest the rights of the heirs of Caminada or pass any title to Power. They know nothing of the sale from Laclede and Songy to Jung or of the sale to Caminada, and they required proof of the identity and rights of the parties claiming. They further denied that at the time of the alleged grant in 1781, Caminada was an inhabitant of Louisiana, or that he lived and died there, or that any order of survey was executed for Caminada previous to the date of said alleged grant. The answer further stated that the allegations in the petition and amendment were not sufficient, if true, to authorize a decree against the United States, and claimed the benefit of this objection in the same manner as if it had been relied upon by a demurrer.

Documents were filed and evidence was taken, but it is not material to state the substance of either. chanrobles.com-red

Page 52 U. S. 573

In November, 1848, the district court decreed

"That the claim and title of the petitioners to the two islands or parcels of land as before described be and the same are hereby confirmed to them in full property, the said original grant or title, in the opinion of said court, being good and valid in virtue of the patent therefor and in virtue of the Treaty of St. Ildefonso between Spain and France of date October, 1800, and of the Treaty of Paris of 1803 for the cession of Louisiana to the United States, and by the laws of nations, and by the acts of Congress hereinbefore referred to, under which this Court has cognizance of said case."

"And it is further adjudged and decreed that the two several islands aforesaid having each its natural boundary, a survey thereof is therefore dispensed with, and that the petitioners' title be confirmed to them in the whole extent of the natural boundaries of said islands respectively, and if on investigation it shall appear that the United States has heretofore made sale of all or any part of said islands, then as to such sales the title hereby confirmed shall stand qualified and inoperative as to the specific land so sold, and in place and stead of the land so sold the petitioners shall be permitted to enter a like quantity of land within the same land district, which may be subject to sale at private entry."

The United States appealed to this Court. chanrobles.com-red

Page 52 U. S. 576


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