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The United States v. Hughes.

the grantee to locate the same without the aid of a survey, the incipient grant, and possession thus taken, have always been regarded as such a severance of the tract from the public domain, as to entitle the grantee to a confirmation of the grant within the provisions of the act of 1824.

In such a case, there would be no discretion to be exercisec! by the public surveyor in putting the party in possession, which, under the Spanish usages, in disposing of the public land, was regarded as essential, in case of grants indefinite as to the location. The survey would be rather matter of form, than of substance, and might, therefore, very well be dispensed with.

In this case, the description in the grant is, perhaps, sufficiently specific to have enabled the grantee to take possession without the necessity of a survey; and, if possession had been taken in pursuance of the grant, he, or those claiming under him, would have presented a proper case for confirming the title under the act; and the decree of the court below in favor of the claim might well be sustained.

But no possession of the land was ever taken under this imperfect and incomplete grant, either during the existence of the Spanish government, or since the cesšion to the United States. Not only has no possession been taken, but, for aught that appears in the record, no action has been had, or claim set up, under the grant, during the whole of the period, from its date down to the institution of the suit, 16th of May, 1847.

Nor have we any proof of the actual existence of the grant, at all, until the 19th of April, 1835, when the grantee sold and quitclaimed his interest to Martin, under whom the plaintiff claims. No account has been given of it for the period of some thirty-six years. The plaintiff rests his claim exclusively upon the evidence of the signature of the governor to the concession, under date of 1st of February, 1779, and its production, 16th of May, 1846, before the court when the suit was commenced, together with the transfer from Guidry, the grantee, to Martin, in 1835, and from the latter to himself, in 1846; and this unconnected with any possession of the premises, or claim of right of possession to the same, in the mean time.

In view of this state of facts, it is impossible to deny, but that the claim comes before us under circumstances of very great suspicion; or to resist the conclusion that the grant, if made, had been abandoned. It is difficult to account for the neglect to take possession, or to set up any right or claim to the land for so long a period, upon any other supposition; especially, when we see that the description of the premises in the concession is sufficiently specific to have enabled the grantee to take possession under it without the aid of a previous survey.

The United States v. Hughes.

This conclusion is strengthened, when we take into view the regulations of Governor Gayoso himself, who made the grant in question, respecting the disposition of public lands, published at New Orleans, 9th of September, 1797, about a year and a half before it was made. According to the 14th article, it is declared, that the settler shall forfeit the lands, if he fails to establish himself upon them within one year; and shall have put under labor ten arpents in every hundred, within three years. And in the regulations of the Intendant, Morales, published at the same place, July 17, 1799, some six months after the date of this grant, possession and cultivation, within a limited time after the concession, are expressly enjoined, under the penalty of forfeiture.

The neglect to comply with these regulations, thus positively enjoined, within the three years that the Spanish government continued after the date of the grant, together with the absence of claim or assertion of right to the land, and absence even of any proof of the actual existence of the grant for the period of more than thirty-six years, we are of opinion, lay a foundation for the inference or presumption of abandonment of the original concession made by Gayoso, too strong to be resisted; at least, a presumption of abandonment that called for explanation on the part of the plaintiff, accounting for the neglect to take the possession, for the great delay in the assertion of the claim, and for the absence of any evidence of even the existence of the grant itself for so long a period of time.

On these grounds, we think, the decree of the court below erroneous, and should be reversed, proceedings remitted to the court below, and petition be dismissed.

Order.

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This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed and annulled; and that this cause be, and the same is hereby, remanded to the said District Court, with directions to dismişs the petition of the claimant.

The UNITED STATES, APPELLANTS, V. JOSEPH HUGHES.

The court again decides, as in the preceding case, that where a Spanish grant was

made in 1798, and no cvidence was offered that possession was taken under the

The United States v. Hughes.

grant, nor any claim of right or title made under it until 1837, nor any evidence given to account for the neglect, the presumption is that the claim had been aban

doned. In this case, also, there was no proof that the persons who purported to convey as

heirs, were actually the heirs of the party whom they professed to represent.

This was a land case, arising under the acts of 1824 and 1844, and came up by appeal from the District Court of the United States for Louisiana.

The parties were the same as in the preceding case:

The petition in this case was filed in the District Court, for the Eastern District of Louisiana, on the 16th of June, 1846.

The petitioner, Hughes, claims under a grant alleged to have been made by Governor Gayoso to Andre Martin, on the 10th of October, 1798, of a tract of land of twenty-eight arpents front, with a depth of one hundred arpents, situated on the west bank of the Atchafalaya, about one league above where the trace or road from Opelousas to Point Coupée crosses the said river. The petitioner alleges further, that said Martin took inmediate possession, &c., and that the board of commissioners made a favorable report on the claim in the year 1840, but that Congress never acted on it, and that he holds a title to one thousand arpents thereof, &c. He thereupon prays that his title may be decreed to be good.

The answer of the United States is a general denial of the allegations of the petition.

The evidence of the original title is the petition of Andrè Martin to the governor for the said tract of land, and the governor's decree thereon, signed by him in these words: “Granted forever, that he may establish it," and dated “ New Orleans, October 10th, 1798."

Hughes claimed title under a deed from certain persons who represented themselves to be the heirs of Martin, dated 14th of. July, 1848.

I'he District Court decided in favor of the petitioner, and the United States appealed.

It was argued by Mr. Crittenden, (Attorney-General,) for the United States, and by Messrs. Janin and Taylor for the appellee.

Mr. Justice NELSON delivered the opinion of the court.

This is an appeal from a decree of the District Court for the Eastern District of Louisiana.

The plaintiff, Hughes, claimed in the court below 3800 arpents of land situate in Louisiana, on the west bank of the Atchafalaya river, about one league above where the road from Opelou. sas to Point Coupée crosses said river under a concession from

The United States v. Hughes.

Governor Gayoso to one Andrè Martin, 10th of October, 1798.

The petition was presented to the District Court on the 16th of June, 1846, under the act of 17th June, 1844, reviving the act of 26th May, 1824, praying for a confirmation of the grant in pursuance of the provisions of the act.

Evidence was given of the handwriting of Martin to the application to the governor for the grant of the tract in question and of the handwriting of the governor to the grant. The plaintiff

, also, gave in evidence a conveyance by notarizu act under date of 14th of July, 1848, purporting to be made by the heirs of Andrè Martin, the original grantee, to himself, conveying one thousand arpents, part of the tract of 3800 arpents, to be taken off the front part of the tract.

Evidence was also given of a notice to the registers and receivers of the land office at Opelousas, in Louisiana, of a claim on behalf of the heirs of Martin by their attorney, for confirmation of the claim under date 1st of February, 1837. What action took place before these officers on the application, if any, does not appear on the record, nor have we been referred to any proceedings therein.

There is no evidence that possession was ever taken of the land by the grantee, or any person claiming under him; nor of any claim of right to the possession; or of any right or title under the concession, or of the actual existence even of the concession itself, until the application to the register and receiver in 1837, a period of over thirty-eight years from its date.

Nor is there any evidence in the record accounting for the neşlect in take possession, or for the absence of evidence of an assertion of right under the grant, or of even the existence of the grant itself for so long a period of time.

The plaintiff rests his claim exclusively upon the production, and proof of this incomplete grant by Governor Gayoso in 1798, of his title as derived from the grantee in 1848, and of the application to the officers of the land-office at Opelousas in 1837,

We have already held, in a previous case of this plaintiff and the United States, that the neglect to take possession, and the absence of any claim under the grant, and of any evidence even of the existence of the grant itself, for so long a period of time, afford such a violent presumption of abandonment of the claim, that unless explained to the satisfaction of the court, it is impossible, consistent with any sound principles of law or of equity, to uphold it. We refer to the opinion given in that case on this point as decisive of the present one.

There is also an additional objection to a recovery in this case, that did not exist in the one referred to. The plaintiff

The United States v. Hughes.

shows no title to the land in question. There is no proof in the record that the persons joining in the conveyance to him of the premises in July, 1848, were the heirs of Martin, the original grantee. The recital in the instrument is no evidence of the fact. The proper proof should have been furnished of the heirship.

For these reasons we are of opinion that the decree of the court below is erroneous, and should be revensed, and remit the proceedings to the court below, with directions to dismiss the petition.

Order. This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said District Court, with directions to dismiss the petition of the claimant.

THE UNITED STATES, APPELLANTS, v. Joseph Hughes.

The decision in the two preceding cases again affirmed.

This was a land case arising under the acts of 1824 and 1844, and came up by appeal from the District Court of the United States for Louisiana.

The parties were the same as in the two preceding cases.

Joseph Hughes filed his petition on the 16th June, 1816, claiming 3200 arpents of land, as having been granted by the governor of Louisiana, Gayoso, on the 26th April, 1798, to Andre Martin. He alleges that said Martin took immediate possession, and held it till his death. That in the year 1840, the board of commissioners reported favorably on said claim, but that Congress had never acted upon it; and that he will, on the trial produce good and legal sales and transfers of the said tract of land from the heirs of the said Martin to hiinself.

The answer put in, on the part of the United States, consists of a general denial of the statements in the petition..

The evidences of title exhibited on the part of the petitioner were,

1st. The petition of Andre Martin to the governor for a grant of 3200 arpents, &c., dated March 28, 1798.

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