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Cochran, 17 How. 403; Landes v. Brant, 10 How. 348; U. S. v. Halleck, 1 Wall. 439. In Stanford v. Taylor, 18 How. 412, the court said:
"The law is settled that, where there is a specific tract of land confirmed according to ascertained boundaries, the confirmee takes a title on which he may sue in ejectment. The case of Bissell v. Penrose, 8 How. 317, lays down the true rule. But where the claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed, and severed from the public domain and the lands of others, then it is not open to controversy that the title attaches to no land; nor has a court of justice any authority in law to ascertain and establish its boundaries, this being reserved to the executive department. The case of West v. Cochran, 17 How. 403, need only be referred to as settling this point. And the question here is whether the concession to Perry is indefinite and vague, and subject to be located at different places. It is to be forty by forty arpens in extent. It is to lie along the River Des Peres, from the north to the south; and to be bounded on the one side by the lands of Louis Robert, and on the other by the domain of the king. On which side of Roberts' land it is to lie we are not informed, further than that it is to lie along the river from north to south. The record shows that, if surveyed west of Roberts' tract, the forty by forty arpens includes the River Des Peres, but, if surveyed east of Roberts' land, it will not include the river. The uncertainty of out-boundary in this instance is too manifest, in our opinion, to require discussion to show that a public survey is required to attach the concession to any land."
To the same effect, see Lafayette v. Blanc, 3 La. Ann. 59.
The whole doctrine is summed up in what was said by Miller, J., in the Scull Case, supra:
“The title must be complete under the foreign government. The land must have been identified by an actual survey with metes and bounds, or the description in the grant must be such that judgment can be rendered with precision by such metes and bounds, natural or otherwise. There must be nothing left to doubt or discretion in its location. If there is no previous actual survey which a surveyor can follow, and find each line and its length, there must be such a description of natural objects for boundaries that he can do the same thing de novo. The separation from the public domain must not be a new or conjectural separation, with any element of discretion or uncertainty.”
Nor does the certificate of the surveyor Trudeau help the matter. This merely recites a survey "to be verified by the accompanying figurative plan,” but a recital in a grant that prerequisites had been complied with is not sufficient ground for a presumption that they have been observed. Fuentes v. U. S., 22 How. 443. The certificate of survey in this case is of no probative value whatever. It refers to no landmarks, natural or artificial, gives no lines of boundary, no
, metes, identifies nothing. It adds not a ray of light to the grant itself. In U. 8. v. Castant, 12 How. 439, the boundaries were described by Trudeau "with great precision,” and possession had been delivered by him to the grantee. Though the certificate of Trudeau in this case shows that he was directed by the governor in his grant to put Filhiol in possession of the land (which, however, is not true), it does not show that he had done so. The delivery of possession under the Spanish law was a formal and indispensable requisite. In U. 8. v. Davenport, 15 How. 5, it is shown how the ceremony was performed. The official went on the land in the presence of the grantee and of witnesses, and took the grantee "by the right hand, walked with him a number of paces from north to south, and the same from east to west, and, he letting go his hand, the grantee walked about at pleasure on the said territory of La Nana, pulling up weeds, and made holes in the ground, planted posts, cut down bushes, took up clods of earth and threw them on the ground, and did many other things in token of the possession in which he had been placed, in the name of his majesty, of said lands, with the boundaries and extension as prayed for.” Nothing of the sort seems to have been done in this case. The certificate of Trudeau refers to the petition or memorial upon which Filhiol's grant was based, and to an accompanying figurative plan. Neither of these is produced, nor is the loss of either shown, nor are the contents of either alleged. It is easy to account for the fact that Trudeau does not certify any actual survey, or any delivery of possession. In 1788 the nearest white settlements to the hot springs were insignificant and remote. The lands were occupied by the Indians. To reach them would require a journey of many days, involving privation and terror. The lands had then no commercial value. Hence there was a total noncompliance with the regulations of O'Reilly. The Spanish laws prevailing at that time in the territory of Louisiana in regard to the Indian tribes were far more humane than any laws that have ever existed in this country. 5 Am. St. Papers, pp. 226, 232, 234. Yet it has always been held that the Indian right of occupancy in the United States was sacred until extinguished by cession to the federal government. U. S. v. Cook, 19 Wall. 591; Leavenworth, etc., R. Co. v. U. S., 92 U. S. 742; Cherokee Nation v. Georgia, 5 Pet. 1. So all Spanish grants “were made subject to the rights of Indian occupancy. They did not take effect until that occupancy had ceased, and whilst it continued it was not in the power of the Spanish governor to authorize any one to interfere with it.” Chouteau v. Molony, 16 How. 239. Hence it is easy to account for the fact that in this case there was no survey, and no delivery of possession. The Indian title to the lands in controversy was not extinguished until the year 1818. At that time the pretended title of Filhiol had long since lapsed, because it was not possible to perfect it after the cession of Louisiana. The grant imposed “upon the United States no obligation to make a title to lands of which the grantee had neither an actual seisin nor a seisin in law.” U. S. v. Miranda, 16 Pet. 153. "No survey of the land was ever made. The duty imposed upon the grantee to produce the plat and demarkation in proper time was never performed. This was a condition he assumed upon himself. The execution and return of the survey to the proper office in such case could only sever the land granted from the public domain. No particular land having been severed from the public domain,
his was the familiar case of one having a claim on a large section of the country unlocated.
In grants of land with uncertain designations, to be made on a large district of country, they must have been severed from the public domain by survey, or be void for want of identity.” Id.; Carondelet v. St. Louis, 1 Black, 179. In Scull v. U. S., 98 U. S. 419, it was held that in suits brought to enforce rights growing out of Spanish claims the plaintiff must show “a title completed under the foreign governments, evidenced by written grant, actual survey, or investiture of possession." See, also, U. S. v. Hughes, 13 How. 1; U. S. v. Boisdore, 11 How. 92. Not only must there have been an actual survey by metes and bounds, but the grant itself, “with the memorials and other papers, whatsoever they might be, which had induced the governor to make the grant,” must have been registered in the land office. Chouteau V. Molony, 16 How. 240. This rule is necessary, so “as to make the antedating of any given grant irreconcilable with the proof; otherwise there can be no protection against imposition and fraud in these cases." U. S. v. Teschmaker, 22 How. 405; U. S. v. Pico, Id. 406; U. 8. v. Vallejo, Id. 416; U. S. v. Bolton, 23 How. 341; U. S. v. Power, 11 How. 577. The same doctrine has been applied to floating claims arising under the New Madrid acts. Hot Springs Cases, 92 U. S. 713, and cases there cited. In Fremont v. U. S., 17 How. 554, the court, in speaking of Spanish grants, said:
“These grants were almost uniformly made upon condition of settlement, or some other improvement, by which the interests of the colony, it was supposed, would be promoted. But until the survey was made, no interest, legal or equitable, passed in the land. The original concession granted on his petition was a naked authority or permission, and nothing more. But when he had incurred the expense and trouble of the survey, under the assurances contained in the concession, he had a just and equitable claim to the land thus marked out by lines, subject to the conditions upon which he had originally asked for the grant. But the examination of the surveyor, the actual survey, and the return of the plat were conditions precedent, and he had no equity against the government, and no just claim to a grant, until they were performed; for he had paid nothing, and done nothing, which gave him a claim upon the conscience and good faith of the government."
In order to avoid the force of these numerous cases, learned counsel for plaintiffs favored the court during the argument with plats purporting to indicate the land granted. These were made either by themselves or at their instance. They could only at best duplicate the plan or map to which Trudeau refers in his certificate, and which is not produced. For this effect they are not even persuasive in the most remote degree. They are based on four assumptions: First, that the hot springs are to be taken as the center of the tract; second, that the lines of the tract must have been contemplated as running east and west and north and south; third, that the tract must have been intended to be laid off in a square; and, fourth, that Trudeau must have intended to lay off the tract, and did lay it off, as thus indicated. Thus we have a conjectural reproduction of what was only a figurative survey. This is piling conjecture upon conjecture, neither of which is supported by any presumption of law or fact. It is needless to say that such vague speculations cannot be used as muniments of title.
We are referred by counsel for plaintiffs to Strother v. Lucas, 12 Pet. 438, where the court say:
"He who would controvert a grant executed by the lawful authority with all the solemnities required by law, takes on himself the burden of showing that the officer has transcended the powers conferred upon him, or that the transaction is tainted with fraud."
But in this case there is no showing that the acts required by law to be performed, viz. the making of an actual survey on the ground, the certification and approval of the same, the delivery of possession, were ever performed at all.
For the reasons stated, the court is of opinion that the grant and survey pleaded by the plaintiffs are not admissible in evidence in this cause, and hence the exceptions to them are sustained.
We are now called upon to consider the sufficiency of the demurrer to the complaint. Does the complaint state a prima facie cause of action? “When a complaint fails to state a fact which is essential to the cause of action, objection to it should be taken by demurrer.” Fagg v. Martin, 53 Ark. 453, 14 S. W. 647; Wilson v. Spring, 38 Ark. 181. The court is of the opinion that the demurrer should be sustained for the following reasons:
1. The claim is barred under the act of congress of May 26, 1824, entitled "An act enabling the claimants to lands within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims.” 4 Stat. 52. This act permitted all persons claiming under French and Spanish grants to file petitions in various courts therein designated in order to have their titles confirmed. The fifth section is as follows:
“And be it further enacted, that any claim to lands, tenements or hereditaments, within the purview of this act, which shall not be brought by petition before the said courts, within two years from the passing of this act, or which, after being brought before the said courts, shall, on account of the neglect or delay of the claimant, not be prosecuted to a final decision within three years, shall be forever barred, both at law and [in] equity, and no other action at common law, or proceeding in equity, shall ever thereafter be sustained in any court whatever, in relation to said claims."
In respect hereof our attention is invited by counsel for the plaintiffs to the case of U. S. v. Percheman, 7 Pet. 90. But in that case the commissioners haď no power save to report to congress. They were not, as the court declared, "a court exercising judicial power and deciding finally on titles.” This act was several times extended; the last time for five years, by act of June 17, 1844 (5 Stat. 676). It does not appear from the complaint that Filhiol or any of his heirs or grantees ever complied with the terms of this act. But counsel for plaintiffs say that the act in question can have no application to perfect titles. Conceding that to be so, we cannot find that the claim sued upon was at any time a perfect title. In fact it lacked almost every essential element of perfection. We can only use the words of the supreme court:
“Claimant calls this a grant, and it is his privilege to do so; but it is in vain for him to expect that this court can give its sanction to any such manifest error.” U. S. v. Castillero, 2 Black, 163.
2. The claim is barred by the act of congress known as the "Piot, Springs Act.” Under the provision of the act of June 11, 1870 (16 Stat. 149), all persons claiming title, either legal or equitable, "to the whole or any part of the four sections of land constituting what is known as the 'Hot Springs Reservation,' in Hot Springs county, in the state of Arkansas," had an opportunity to institute suit, in the nature of a bill in equity, against the United States in the court of claims, "and prosecute to final decision any suit that may be necessary to settle the same; provided, that no such suits shall be brought at any time after the expiration of ninety days from the passage of this act, and all claims to any part of said reservation upon which suit shall be not brought under the provision of this act within that time shall be forever barred." No valid reason can be shown why this statute did not apply to the Filhiol claim as well as to other claims. There is an alleged loss of the grant and survey, but that would not suspend or change the effect of the statute. In no case is the running of a statute of limitation suspended by causes not mentioned in the act itself. Braun v. Saurwein, 10 Wall. 218; Montgomery v. Hernandez, 12 Wheat. 129; Erwin v. Turner, 6 Ark. 14; Bank v. Morris, 13 Ark. 291; Pryor v. Ryburn, 16 Ark. 671; Smith v. Macon, 20 Ark. 18; Railway Co. v. B'Shears, 59 Ark. 244, 27 S. W. 2.
3. After so great a lapse of time, the claim, if originally valid, must be considered as having been abandoned. In U. S. v. Hughes, 13 How. 3, a delay of 40 years to bring suit to enforce a Spanish claim was held to be fatal. In U. S. v. Philadelphia, 11 How. 652, a delay of 40 years was held to be a constructive abandonment. In Fuentes v. U. S., 22 How. 460, the court came to the same conclusion, though the delay could not have been for more than 50 years. In U. S. v. Repentigney, 5 Wall. 211, an abandonment was presumed from a delay to bring suit for more than 100 years, during which time the claimants had been in possession for more than 4 years. In U. S. v. Moore, 12 How. 222, the same presumption was raised where the plaintiffs had delayed to sue for nearly 50 years. In Valliere v. U. S., Hempst. 338, Fed. Cas. No. 16,822, the same presumption was indulged where the delay was for more than 50 years. It does, indeed, appear that the heirs of Filhiol brought a suit for confirmation in the name of James Ball, as assignee, in the superior court of Arkansas territory, under the act of May 26, 1824, which was pending at the time that the various suits on the forged grants mentioned in U. S. v. Samperyac, supra, were also pending; that a question of forgery in the Ball Case was also raised, and that, on a rule being made by the court for the production of the original papers, and on noncompliance therewith, the suit was dismissed (Frauds in Land Titles in Arkansas, 5 Ann. St. Papers, 364, 365, 366, 430, 338); but this is certainly no adequate showing of diligence. The American State Papers, having been published under authority of law, are evidence of whatever they contain. Watkins v. Holman, 16 Pet. 50, 55; Bryan v. Forsythe, 19 How. 334. I could not be more or less impressed, in passing on the exceptions, with the circumstances that both the survey and the grant are apparently written by the same hand, on the same kind of paper, and with the same ink; that both contain words badly spelled, and ungrammatical phrases, showing that they were gotten up by illiterate persons; and that, though the grant purports to be attested by the armorial seal of the governor, yet there is no impression of a seal of any kind, but merely a seal of
wax, evidently made to adhere to the paper by the application of