Slidell v. Grandjean Same v. Richardson Same v. Emler Same v. Tschirn

• Citation: 4 S.Ct. 475,111 U.S. 412,28 L.Ed. 321
• Parties: SLIDELL and others v. GRANDJEAN. SAME v. RICHARDSON. SAME v. EMLER and others. SAME v. TSCHIRN
• Decision Date: 03 March 1884
• Court: United States Supreme Court

111 U.S. 412

4 S.Ct. 475

28 L.Ed. 321

SLIDELL and others v. GRANDJEAN.

SAME

v. RICHARDSON.

SAME

v. EMLER and others.

SAME

v. TSCHIRN.

March 3, 1884.

[Syllabus from pages 412-413 intentionally omitted]

[Statement of Case on pages 413-414 intentionally omitted] James L. Bradford, Willis Drummond, and R. H. Bradford, for appellees.

Sol. Gen. Phillips, for Grandjean and as amicus curiae.

Mr. William Grant (Mr. J. D. Rouse was with him) for appellee Richardson, and defendant Tschirn.

The case was argued on the 2d January, and a decision announced on the 3d March, 1884. On the 24th March, 1884,

Mr. JUSTICE FIELD announced the following order:

On the argument of these cases the contention of the plaintiffs was that the grant of Governor Galvez to Maurice Conway, on the 21st of June, 1777, embraced all the land in the rear of the original grant to him and Latil by Governor Unzaga, in November, 1774, included within the boundary lines of that grant extended to the limits of the possessions of the Spanish Crown. In support of that contention, reliance was placed upon the report of the commissioners appointed under the act of Congress of 1805, the plats of the surveyor Lafon and the alleged confirmation by the act of June 2d, 1858. We held that the grant of Galvez derived no aid from these sources, but must depend for its extent upon the language of the concession and the proceedings of the adjutant Andry in establishing its northern and southern boundaries; and that it was therefore limited to two arpents in the rear of the original grant.

The plaintiffs ask a rehearing, contending that if they are not entitled to the land claimed under the report of the commissioners construed by reference to the plats of Lafon and the confirmatory act of June 2d, 1858, they are entitled by virtue of the concession and accompanying report of Andry construed in accordance with the usages of the country, having the force of law, to forty arpents, the quantity alleged to be the amount intended in the absence of specific designation to be ceded in cases of grants in the rear of the land of proprietors on the river, thus giving to the two grants an extent of eighty arpents from the river. And the plaintiffs have presented so may considerations in support of this view, that the court will receive arguments from counsel upon this point, to be in writing and filed within two weeks from date. The clerk will give to the counsel of the plaintiffs and to the Attorney-General a copy of this memorandum.

Mr. Willis Drummond and Mr. Robert H. Bradford on this point filed a brief for appellants and plaintiffs in error.

J. D. Rouse and Wm. Grant, for other appellees

FIELD, J.

Of these suits the first three are in equity; the fourth is at law. They were argued together, as they are all founded upon the supposed validity of the plaintiffs' title to the Conway division of the Houmas grant in Louisiana beyond the depth of 80 arpents from the Mississippi river. If their title beyond that depth be sustained, other questions will arise for consideration, but if that fails those questions will be unimportant. The Houmas grant is famous in the history of land titles in Louisiana, from the protracted controversy in the land department to which it gave rise, and the discussion created in congress by the attempt made to secure its legislative confirmation. The documents to which our attention has been called as sustaining the pretensions of the plaintiffs, or in opposition to them, are scattered through many volumes. They consist of the original proceedings and concessions under the Spanish government; the orders of the territorial governor and certificates of a local surveyer after the cession of the country to the United States; the proceedings of the board of commissioners created by congress to examine into and report upon land 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 fifth of October, 1774, while Louisiana was under the dominion of Spain, certain 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 22 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 permissin 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 hias will, and that the title at the time was in the Spanish crown. On the same day Unzaga, the governor of the province, 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 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. U. S. 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 belongto 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 beundaries, 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 overnment, it was customary to reserve, to the depth of 40 additional arpents, the lands immediately in the rear, to be used by the front proprietros 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 distinctly stated by Mr. Justice CATRON in delivering the opinion of this court in surgett v. Lapice, 8 How. 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 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 21, 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,...