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claims in that Territory; various petitions to the officers of the Land Department, and their reports thereon; the opinion of the Secretary of the Treasury and of the Attorney-General upon the nature and extent of the grant, and the proceedings of Congress in passing an act of confirmation, and subsequently repealing it. We shall endeavor to condense the history of the grant, and of the various proceedings taken with reference to it, into as narrow a compass as possible.

On the 5th of October, 1774, while Louisiana was under the dominion of Spain, tribes of Indians, known as the Houmas and Bayou Goula tribes, had possession of certain land situated on the left bank of the Mississippi River, about twenty-two leagues above New Orleans, and claimed some. interest in it, the extent and nature of which are not given. Whatever that interest may have been, the Indians sold it on that day to two persons by the name of Maurice Conway and Alexander Latil for the consideration of $150. A conveyance of that date executed at New Orleans before a notary public by one Calazare, describing himself as chief of the tribes, appointed such by the governor of the province, recites that the tract had once belonged to a Frenchman, that he had sold it to another Frenchman, who had abandoned it, and that afterwards, being vacant, the two Indian tribes fixed their residence upon it by permission of the governor. The chief, on behalf of the Indians, renouncing whatever rights they possessed, ceded the land to the purchasers, and stipulated that after obtaining the permission of the governor they might possess it as absolute owners; that a copy of the instrument should be presented to that officer for his approval, without which they could not be permitted to take possession. It would thus seem that the right of the tribes was one of mere occupancy at his will, and that the title at the time was in the Spanish crown. On the same day Unzaga, the governor of the prov ince, approved the instrument thus executed, and in pursuance of the authority vested in him granted the land to the purchasers, directing them, however, to apply to him in order that full title papers-a complete title, as the language used is translated-might be issued to them. The words translated "a

Opinion of the Court.

complete title" refer, however, only to the instruments which constitute evidence of title, and not to the estate or interest thereby conveyed. De Haro v. United States, 5 Wall. 599.

The land granted is described in the conveyance of the Indians as a tract "measuring upwards of half a league, at the distance of twenty-two leagues from this city on this side of the river, joining on the upper side lands belonging to John the blacksmith, and on the lower side the place where are erected the huts in which the said two nations of Indians now live; but when the said huts will be taken away, to be transported on the other side of the river, the true boundary on the lower side will be the lands belonging to an old Acadian named Peter; so by the measurement which the said purchasers will make of the said tract of land, according to the said boundaries, its exact contents will be ascertained."

It will be perceived from this description of the land that no depth is given. On the first of November following, the governor executed to the purchasers a formal grant, describing the tract as having "the common depth of forty arpents." The tract was thus rendered susceptible of identification and measurement. Its front bordered on the river; its side lines. were determinable by adjoining tracts, and it was of the depth: mentioned. When grants fronting on the river were made by the Spanish government, it was customary to reserve, to the depth of forty additional arpents, the lands immediately in the rear, to be used by the front proprietors for pasturage, or to obtain timber for fences or for fuel. The law on this subject, which prevailed in the province, is very clearly and distinctlystated by Mr. Justice Catron in delivering the opinion of this. court in Surgett v. Lapice, 8 How. 48, 66. He says that "the grants were not large, and fronted on the river only to the extent of from two to eight arpents as a general rule, and almost uniformly extended forty arpents back; to these front grants the Spanish government reserved the back lands to another depth of forty arpents; and although few, if any, grants were made of back lands in favor of front proprietors, still they were never granted by the Spanish government to any other proprietor, but used for the purpose of obtaining fuel and for

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pasturage by the front owners, so that, for all practical purposes, they were the beneficial proprietors-subject to the policy of levees, and of guarded protection to front owners. We took possession of Lower Louisiana in 1804 [December, 1803]; in 1805 commissioners were appointed, according to an act of Congress, to report on the French and Spanish claims in that section of country, and by the act of April 21st, 1806, it was made a part of their duty to inquire into the nature and extent of the claims which may arise from a right, or supposed right, to a double or additional concession on the back of grants or concessions heretofore made,' previous to the transfer of government, and to make a special report thereon to the Secretary of the Treasury, which report shall be by him laid before Congress, at their next ensuing session. And the lands which may be embraced by such report shall not be otherwise disposed of, until a decision of Congress shall have been had thereon.'

"The commissioners were engaged nearly six years in the various and complicated duties imposed on them, and then reported, that, by the laws and usages of the Spanish government, no front proprietor by his own act could acquire a right to land further back than the ordinary depth of forty arpents, and although that government invariably refused to grant the second depth to any other than the front proprietor, yet nothing short of a grant or warrant of survey from the governor could confer a title or right to the land; wherefore they rejected claims for the second depth, as not having passed as private property to the front proprietor under the stipulations of the treaty by which Louisiana was acquired."

On the 9th of September, 1776, nearly two years after obtaining the grant, Conway presented a petition to the governor stating that he was about to settle on the lands which he and Latil had purchased of the Indians; that he had acquired Latil's interest; that the lands were destitute of fences and were cleared for upwards of a league in depth in "such a manner" that the cypress trees might be "about a league and a half from the river," and that as the grant extended only forty arpents, he could not have access to them to obtain timber for

Opinion of the Court.

his fences, and other uses of his plantation. He, therefore, prayed the governor to grant him all the depth which might be vacant at the end of his forty arpents, and that Louis Andry, the governor's adjutant, might be appointed to put him in possession of the front and depth "by fixing the needful boundaries," and furnishing him "with copies of the whole transaction" for his "use and guidance." Upon this petition, the governor directed Andry to go upon the land and give the petitioner possession of that which might be vacant after the forty arpents in depth, and to make a report of his proceedings -a proces verbal as it is termed—in order that full title papers -" a complete title" in the translation-might be issued to the claimant.

In October following this order was executed by Andry. He went upon the land and first measured its front upon the river and ascertained it to be ninety-six arpents. Owing to its situation on a bend of the Mississippi, the tract widened as it receded from the river. He then ran the upper line north fifty degrees west to the depth of forty arpents from the river, "opening for that purpose a road through the woods," and placed there a stake of cypress. He then extended the line two arpents more, and placed another similar stake. He then proceeded to draw in the same way the southern line of the grant, running it north seventy degrees east, going for that purpose a part of the distance through woods, and placing a boundary stake of cypress at the depth of forty arpents, and also at the further depth of two arpents more, "in order," as he stated, "to keep the course." Of his proceedings on this survey Andry made a detailed report.

On the 21st day of June of the following year Galvez, the successor of Unzaga as governor of the province, made to Conway a grant of the land thus surveyed. In the instrument. executed by him he recites that he had seen the report of the proceedings of the adjutant of the town relating to the possession given to Conway, pursuant to the order of his predecessor, "of all the vacant land lying behind and in the rear of the first forty arpents" which he then possessed "by ninety-six arpents in front on the river," and that the adjutant had followed the

Opinion of the Court.

directions (lines extended) of the original concession; and that these conformed to the rules of survey and to the concessions of adjoining proprietors. He thereupon approved of the proceedings of the adjutant, and granted to Conway "the aforesaid land behind or at the end of the forty arpents which contain his plantation."

These are all the papers relating to the title to the Houmas grant executed by the authority of the governor of the province whilst it belonged to Spain.

As no back line is designated to the second grant its dimensions must be found, if at all, in the limitation to such grants imposed upon the authority of the governor by positive law or established usage. As seen from the opinion of the court in Surgett v. Lapice, it was the invariable custom of the Spanish government to reserve lands in the rear of grants on the river, to a depth of forty arpents, for the use of the front proprietors. They were always regarded as having a preference right to become the purchasers of those lands; they were never granted to other parties. So well established was this rule in the usages of the province, that it was deemed by our government, after the acquisition of the country, to create in the front proprietor an equitable right to such preference. Accordingly Congress, by the act of March 3d, 1811, provided that every person who owned "a tract of land bordering on any river, creek, bayou, or water course in the Territory of Orleans, and not exceeding in depth forty arpents French measure, should be "entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to and back of his own tract, not exceeding forty arpents French measure in depth, nor in quantity of land that which is contained in his own tract," at the price and on the terms and conditions prescribed for other lands in the Territory. The usage of the country determined the depth of these grants of land in the rear of the premises of the front proprietors. In Jourdan v. Barrett, this court, speaking of these concessions, said: "That back lands at all times meant those in the rear between the extended front lines in the rear, to the distance of forty arpents (each line being a straight one throughout), we