Kennedy's Executors et al. . Hunt's Lessee et al.

sess 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 fulfil 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 gov ernment 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 26th of that year, it was declared that all grants made by the Spanish authorities after the 1st day of 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 the 20th day of 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; but being reported on by the commis

*592] sioner 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

Kennedy's Executors et al. v. Hunt's Lessee et al.

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 wellestablished doctrine of this court, as will be seen by the cases of Chouteau v. Eckhart, 2 How., 344; Mackay v. Dillon, 4 Id., 421; and especially that of Les Bois v. Bramell, 4 Id., 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 for ever, 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 the 2d of 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, 69° 5' east, 15 chains 44 links, to the ancient margin of the River Mobile, being *34 links west of the south angle of St. Louis [*593 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

Kennedy's Executors et al. v. Hunt's Lessee et al.

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.

Tho 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's 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 *594] States. authority exercised under the laws, *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 Crowell v. Randell, 10 Pet., 391, 398; McKinney v. Carroll, 12 Pet., 68; and Armstrong v. Treasurer of Athens County, 16 Pet., 284. In this case, as in that

Hugg et al. v. Augusta Insurance and Banking Co.

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.

ORDER.

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.

JACOB HUGG AND JOHN M. BANDEL, PLAINTIFFS, v. THE AUGUSTA INSURANCE AND BANKING COMPANY OF THE CITY OF AUGUSTA.

[*595

In an insurance upon freight, there is no total loss of a memorandum article as long as the goods have not lost their original character, but remain in

Hugg et al. v. Augusta Insurance and Banking Co.

specie, and in that condition are capable of being shipped to their destined port, no matter what may be the extent of the damage.1

If, however, the articles are not capable of being carried, in specie, to the port of destination, arising from danger to the health of the crew or to the safety of the vessel; or the public authorities at the port of distress order the articles to be thrown overboard, from fear of disease, there would be a total loss.2

In construing the contract of insurance upon freight, the interest of the insured, or of the underwriters of the cargo, is not considered. Therefore, if the vessel is in a condition to carry on the cargo to the port of destination, or another vessel can be procured for that purpose, it is the duty of the owner of the vessel to carry it on, although it may be for the interest of the insured and insurers of the cargo to sell it at the port of distress. If so sold, the insured cannot recover for a total loss of freight. But although it is the duty of the owner of the vessel, either to repair his own or to procure another at the port of distress to carry on the cargo, yet, if it should be made to appear that the repairs or procurement of another vessel would necessarily produce such a retardation of the voyage as would, in all probability, occasion a destruction of the article, in specie, before it could arrive at the port of destination, or, from its damaged condition, it could not be reshipped in time, consistently with the health of the crew or safety of the vessel, or would not be in a fit condition, from pestilential effluvia or otherwise, to be carried on, it then became the duty of the master to sell the goods for the benefit of whom it might concern.

A policy of insurance upon "freight of the bark Margaret Hugg, at and from Baltimore to Rio Janeiro and back to Havana or Matanzas, or a port in the United States, to the amount of $5,000, upon all lawful goods, &c., beginning the adventure upon the said freight from and immediately following the lading thereof aforesaid at Baltimore, and continuing the same until the said goods, wares, and merchandise shall be safely landed at the port aforesaid," upon which a greater premium was paid than was usual for the outward voyage alone, must not be construed as a policy upon the round voyage.3

The insurers were, therefore, not entitled to a deduction for the outward freight.

THIS case came up, on a certificate of division, from the Circuit Court of the United States for the District of Maryland.

1 EXPLAINED. Insurance Co. v. Fogarty, 19 Wall., 643, 4. S. P. Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39; Moreau v. United States, 1 Wheat., 219; s. c., 3 Wash. C. C., 256; Hum phreys ▼. Union Ins. Co., 3 Mason, 429; Robinson v. Commonwealth Ins. Co., 3 Sumn., 220.

An actual total loss of freight arises only where the circumstances are such as to render the ultimate earning of freight absolutely impossible or practically hopeless. The mere loss of the vessel does not produce this result, as the master may still earn the freight by forwarding the cargo by other means of conveyance; and it is his duty to the insurer on freight so to do, if in his power. If the owner

neglect to do this, the insurer on freight is chargeable only in the same way and to the same extent as if the duty had been performed, and the loss will be partial or total according to the amount so adjusted. The question, therefore, whether the loss of freight is total, does not depend upon whether the ship is totally lost, but upon whether there is a chance of being able to earn the freight by forwarding the cargo. Hubbell v. Great Western Ins. Co., 74 N. Y., 246; reversing s. c., 10 Hun, 167.

2 CITED. Williams v. Hartford Ins. Co., 54 Cal., 451.

3 FOLLOWED. Insurance Co. v. Mor decai, 22 How., 118.