TITLE VI.-PRIVATE LAND CLAIMS.

FRENCH, SPANISH AND MEXICAN GRANTS.

No. 469.

I. IN FLORIDA AND LOUISIANA.

DANIEL CLARK.

Patents for Private Land Claims issued to the confirmee, or his legal representatives, which term includes heirs, devisees and assignees.

Jurisdiction of the old Board of Commissioners in Louisiana under acts of 1805, 1806, and 1807 considered.

Perfect titles stand confirmed by the treaty of 1803. Spanish grants made after 1782 within the territory east of the Mississippi and north of 31° north latitude have no intrinsic validity.

A decree, order, or warrant of survey, even when executed, gave only an equitable or inchoate right, which right before cession was subject to descent, or transfer, and could be sold for debt. A confirmation inured to the benefit of an assignee, even where a sale was made before confirmation and subsequent to the appearance of the original claimant before the Board.

A titulo in forma, or complete title, was never issued by the King's deputy except upon an official survey.

DEPARTMENT OF THE INTERIOR,

Washington, D. C, January 5, 1871. SIR:-On taking charge of this Department I found among its unfinished business your communications, bearing date respectively the 18th day of August and the 21st day of October, transmitting reports from the surveyor general of Louisiana upon the survey of claim numbered 104. (American State Papers, Duff Green's edition, volume 2, page 265.)

In looking into the correspondence on the subject, I perceive by your letter of the 10th January last that, without expressing any opinion upon the survey, you presented for the approval of my predecessor the draught of a patent founded upon and conforming to it, conveying in fee to Daniel Clark or his representatives the lands included within its lines, amounting to 3,456.92 acres. You informed him that there were not on file in your office any papers relating to the claim save those which accompanied your letter. He, in writing to you on the 19th of that month, referred to this fact and to the statement in the proces verbal accompanying the survey. He considered, with evident propriety, that certain documentary evidence specifically mentioned should be produced, and he directed you to instruct the surveyor general not

only to obtain it, but also to report to what extent the survey covered tracts embraced by other claims, and to communicate such other information as would enable the Department to act with a full knowledge of all the facts essential to a just decision of the questions involved. Pursuant to this direction of the Secretary, you corresponded with the surveyor general, and the reports are now before me in connection with your letters, for my consideration and final action.

The following is the entry in No. 104, in said State papers:

Daniel Clark claims a piece of land in the city of New Orleans, containing nineteen hundred and twenty toises square, bounded on the upper side by vacant land, and on the lower by the city of New Orleans aforesaid.

It appearing to the board, from a royal order of the court of Spain, dated Madrid, 23d May, 1791, that said land was thereby granted to Elisha Winter; and it appearing to the board, from sundry deeds of conveyance, that said land has been transferred to the present claimant, the board do therefore confirm him in his claim aforesaid.

The papers transmitted and described by the surveyor general are as follows:

1. A copy of the official translation of the original grant of the governor general to Elisha Winter, including the proces verbal of the survey made by Trudeau, the surveyor of the province.

2. Copy of the original document from Don Francis Louis Hector, Baron of Carondelet, etc., making a grant to Winter, to indemnify him for taking for public uses a part of the land granted by Governor Miro in 1791. This consists of a patent, a proces verbal of the then surveyor of the province, and a plat distinctly representing the location and extent of the land surveyed. 3. Copy of the second indemnity grant to Winter, given to him for buildings removed to make way for the fortifications, the first having been given as indemnity for the land only.

4. Copy of a copy of claim No. 104, it appearing by the indorsements on the original that it was submitted to the board of commissioners, and confirmed and entered on "record No. 1, folio 506," which document clearly defines the limits of claim No. 104. (The original copy is on file in the surveyor-general's office.)

5. Copy of a page from book "D" of Surveyor General Lafon's surveys, showing the location of the commons which the city claimed at that date. 6. Another page from the same book.

7. A list of documents abstracted from the archives of the office of the surveyor general of Louisiana prior to their coming into his possession, and which have not been recovered, except the papers relating to the claim No. 104.

8. Certified copy of a map by Trudeau of the city of New Orleans as it was in 1793.

9. The pamphlet of Messrs. Bradford.

10. Copies of three letters written to the mayor and aldermen of New Orleans by Daniel Clark, while he was a delegate in Congress from the Territory of Louisiana.

11. Copy of a map of the city of New Orleans as it was in 1802, purporting to be made by the then surveyor general, the authenticity of which is certified by the present surveyor general.

I have examined all the documents with as much care and attention as other imperative engagements permitted. I have considered the views and arguments of the counsel of Mrs. Myra Clark Gaines in support of the survey. I now proceed to give a statement of the facts, and an opinion upon the question submitted.

Before doing so I premise that is not my province to pass upon the asserted rights of Mrs. Gaines, as the heir or devisee of Daniel Clark, deceased. According to the settled practice of your office, sanctioned by a former Attorney General, the patent issues in the name of the orig

inal confirmee or "his legal representative." This formula embraces representatives by contract as well as by operation of law. (Hogan v. Page, 2 Wallace, 605.) The patent will inure to the benefit of heirs, devisees, or assignees, and all questions relating to the derivative title are left open to judicial inquiry.

It appears that on the 23d day of July, 1791, Charles Trudeau, surveyor of the province of Louisiana, surveyed and measured, pursuant to an order of Governor Miro, a tract of land in favor and in presence of Elisha Winter. It was one hundred feet in front and six hundred feet in depth, situate to the southeast corner of New Orleans, at sixty feet distance from the angle of the powder magazine, as indicated upon the plan by the lines A, B, C, D, and that Governor Miro issued a patent, bearing date 22d day of December, 1791, wherein, setting forth that, after examining the foregoing procedure, "concerning the possession given by him to the rope-maker Elisha Winter of a tract of land one hundred feet in front and six hundred in depth, situated in this capital, conformably to the royal order given the 23d of March of the present year," he granted the said tract to Elisha Winter. A portion of this land was afterward appropriated as a site for the fortifications of the city, and is distinctly shown on the certified copy of the plat. On a subsequent occasion, to indemnify Winter for the appropriation of these lands to public uses, and for buildings which were destroyed, a survey of additional lands was made, pursuant to a decree of the gov ernor general, dated April 30, 1794. The proces verbal recites that the surveyor proceeded to examine the land claimed by said Winter, being 200 toises in length and 50 in width, and also a piece of land on the corner of Royal and Custom-house streets, and having examined the lands formerly occupied by the rope-walk, we proceeded to measure and mark the limits of the rest of the lands occupying the distance between the curtain and the lands conceded to the individuals whose names appear upon the plan, having for this purpose established a parellel line and at thirty feet in distance from the palisade of the curtain of communication from Fort St. Louis to that of Burgundy, it being the line represented on the plan with the letters F, S, of 210 toises long, terminating in the point S, at thirty feet distance from the aforesaid palisade and above the upper prolongation of Dauphine street, while all the red lines represented by the letters F, E, H, J, V, T, N, O, P, Q, R, S, are equivalent to the fifty feet in width by the 200 toises in length, claimed by the rope-maker; the land V, L, M, T, can likewise be added to indemnify the proprietor for having demolished his buildings to move them from their original situation. The lands complete a total superficies of 1,920 square toises of superficies, (toisas quadradas de superficie;) that this may appear, the certificate was granted with the figurative plan annexed. The certificate is dated May 20, 1794, and on the plan are delineated the boundaries of the tract with the utmost precision, so that they can be identified with unmistakable certainty. Governor Carondelet gave a patent on the 23d of that month, as follows: In view of the foregoing proceedings performed by the surveyor of this province, Charles Trudeau, upon the possession which he gave to the rope maker, Elisha Winter, in conformity to the royal order of his Majesty, dated the twenty-third day of March, (May,) of the year 1791, of the quantity of nineteen hundred and twenty square toises of land, (toesas de tierra quadradas,) situated in the upper part of this city, at thirty feet distance from the palisade of the curtain of communication from the redoubt St. Louis to the redoubt of Burgundy, and bounded on the side of the city by different tracts

of the citizens thereof, as is fully laid down upon the annexed drawn plat, and observing the rules of the surveying system, as appears from the operations detailed in the said plat, approving them as we approve them, using the faculty which the king confers upon us, we give to the aforesaid Elisha Winter, in his royal name, the said nineteen hundred and twenty square toises of land (toesas de tierra quadradas), that he may make proper disposition of the same and render the same productive, governing himself by the abovementioned proceedings, and observing the conditions prescribed for the regulation of the business.

The patent is in the usual form where an absolute title is given, as distinguished from an order of survey or first concession.

The proces verbal and figurative plan and Carondelet's patent were, on the 28th February, 1806, entered upon the record by J. W. Gurley, register of the land office at New Orleans; and it further appears, by a certificate of J. Stelle, clerk of the board of commissioners, that they were examined and confirmed by the board, before whom also a deed from Richard Clark to Daniel Clark, with other conveyances, was presented.

The deed is as follows, bearing date March 28, 1800:

Be it known to all men by these presents, That I, Richard Clark, a resident of this city, stipulate to sell to Daniel Clark, of this community and city, the moiety of a ropewalk, composed of a thousand nine hundred and twenty square toises of land, (compuesta de mil nuevecientas y viente toesas de tierra quaddradas,) situate in the upper part of this city, at thirty feet of distance from the palisade of the curtain of communication extending from St. Louis redoubt to that of Burgundy, bounded on the side of this city by lands of different individuals of the city, with the moiety of the buildings within it, and also four negroes, Tom, Sammy, Sam and Adam, all of which being lawfully my property, I having purchased the moiety of the ropewalk and the three first named slaves from John Turnbull, executor and partner of the deceased John Joyce, as appears by a deed recorded in these archives on the 12th of March of last year, and the last slave through my having purchased him in the island of Jamaica in the year 1789, I sell the aforesaid moiety of the ropewalk, buildings and all other things found in it, with all its ingresses and egresses, uses and customs, rights and servitudes, and the captives as slaves to serve as they are, and all free from mortgage, as the present notary certi fies, valued in the sum of seven thousand dollars, fuertes, that I have received from the vendee in ready money to my satisfaction.

The remainder of the deed is not material. The proces verbal and figurative plan of Trudeau's survey, recorded by the proper officer and considered by the board, constitutes a part of the record of their ceedings in case No. 104, and threw an important light upon the matters presented.

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Counsel referred very fully to the treaty by which the United States acquired the then province of Louisiana, and to several of the acts of Congress in execution of its provisions. Differing in several essential particulars from the views which he urged with his characteristic ability and zeal, I think it proper to state my own deliberate and carefully considered opinion upon the questions which he discusses.

The province of Louisiana was ceded by the King of Spain to the Republic of France by the treaty of St. Ildefonso, concluded on the 1st of October, 1800, and by the latter power to the United States by the treaty concluded at Paris, 30th April, 1803. France did not, however, take, possession of the province until the 30th day of November of that year and on the 20th of the following month she formally delivered it to the United States.

The first article of the treaty makes the cession. By the second it is provided that "in the cession made by the preceding article are in

cluded the adjacent islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifications, barracks and other edifices which are not private property;" and the third article stipulates that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

Congress, the 20th of March, 1804, erected the ceded province into two territories. The territory of Orleans now constitutes the State of Louisiana. The remainder of the province was called the district of Louisiana. Congress, on the 2d of March, 1805, initiated legislation for ascertaining and adjusting claims to lands within that territory and that district.

The first section of that act provides that any person or persons who, on the first day of October, 1800, were resident within the territories ceded by the French Republic to the United States, by the treaty of 30th April, 1803, and who had, prior to the said 1st day of October, 1800, obtained from the French or Spanish governments, respectively, during the time either of the said governments had the actual possession of said territories, any duly registered warrant or order of survey for lands lying within the said territories to which the Indian title had been extinguished, and which were, on that day, actually inhabited and cultivated by such person or persons, or for his or their use, should be confirmed in their claims to such lands in the same manner as if their title had been completed. The second section provided that to every person who, being either the head of a family or 21 years of age, had, prior to the 20th day of December, 1803, with the permission of the proper Spanish officer, and in conformity with the laws, usages and customs of the Spanish government, made an actual settlement on a tract of land within the said territories, not claimed by virtue of the first section or of any Spanish or French grant made and completed before the said 1st day of October, and during the time the government which made the grant had the actual possession of the territories, and who did, on the said 20th day of December, actually inhabit and cultivate the said tract of land, the tract thus inhabited and cultivated should be granted. The two provisos are not material in this connection. The third section provides that, for the purpose of more conveniently ascertaining the titles and claims to lands in the territory ceded as aforesaid, the territory of Orleans should be laid off in two districts, in each of which should be appointed a register. The fourth section provides that every person claiming lands in the above-mentioned territories by virtue of any legal French or Spanish grant, made and completed before the 1st day of October, 1800, and during the time the government which made such grant had the actual possession of the territories, may, and every person claiming lands in the said territories by virtue of the two first sectiens, or by virtue of any grant, or incomplete title bearing date subsequent to the 1st day of October, 1800, shall, before the 1st day of March, 1806, deliver to the register of the land-office within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with a plat of the tract claimed; and shall also, on or before that day, deliver to the register, for the purpose of being