Lessee of William Pollard Heirs Plaintiffs In Error v. Gaius Kibbe, Defendant In Error

• Decision Date: 01 January 1840
• Citation: 39 U.S. 353,10 L.Ed. 490,14 Pet. 353
• Parties: LESSEE OF WILLIAM POLLARD'S HEIRS, &C., PLAINTIFFS IN ERROR, v. GAIUS KIBBE, DEFENDANT IN ERROR. *
• Court: U.S. Supreme Court

39 U.S. 353

14 Pet. 353

10 L.Ed. 490

LESSEE OF WILLIAM POLLARD'S HEIRS, &C., PLAINTIFFS IN ERROR, v. GAIUS KIBBE, DEFENDANT IN ERROR.^*

January Term, 1840

IN error to the Supreme Court of the state of Alabama.

In the Circuit Court for the county of Mobile, state of Alabama, an action of ejectment for a lot of ground situated in the city of Mobile, was instituted by the plaintiffs in error, and was afterwards removed, by change of venue, to the Circuit Court for the county of Baldwin. It was tried before a jury in that Court, and on the trial, the plaintiffs filed a bill of exceptions to the charge of the Court. A verdict and judgment were given for the defendant. From this judgment of the Circuit Court, the plaintiffs prosecuted a writ of error to the Supreme Court of the state of Alabama; and the judgment of the Circuit Court, in favour of the defendant, was affirmed by the Supreme Court.

The plaintiffs prosecuted this writ of error to the Supreme Court of the United States, under the twenty-fifth section of the Judiciary Act of 1789.

'The following is the bill of exceptions filed by the plaintiffs, on the trial of the cause in the Circuit Court of the county of Baldwin.

On the trial of this cause at the above term, the plaintiffs, to maintain the issue on their part, gave in evidence an instrument signed by Cayetano Perez, written in the Spanish language, a translation of which is hereto annexed, as part of this bill of exceptions, but which instrument was shown to have been reported against, and rejected, by the commissioners appointed by the United States government to investigate and report on such matters, because of the want of improvement and occupancy.'-

[THE SPANISH GRANT, TRANSLATED.

'Mr. Commandant:

'William Pollard, an inhabitant of the district, before you, with all respect represents: That he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof; and that having found a vacant piece at the river side, between the channel which is called 'John Forbes and Company's,' and the wharf at this place, he petitions you to grant said lot on the river bank, to give more facility to his trading; a favour he hopes to obtain of you.

'Mobile, 11th December, 1809.

WILLIAM POLLARD.'

Mobile, 12th December, 1809.

I grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant.

CAYETANO PEREZ.]

They further gave in evidence, an act of Congress, passed on the 26th day of May, 1824, entitled an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city. They further gave in evidence an act of Congress, passed July 2d, 1836, entitled an act for the relief of William Pollard's heirs. They then gave in evidence a patent, dated the 14th day of March, 1837, issued in pursuance of said act of Congress of the 2d of July, 1836, which patent embraced the premises in question. The plaintiffs further proved that in the year 1813 or 1814, some wreck and drift wood was removed from the place where the premises in question now are, by the hands of William Pollard, the grantee. The defendant gave in evidence a Spanish grant, dated 9th of June, 1802, to John Forbes and Company, for a lot of ground, for eighty feet front on Royal street, with a depth of three hundred and four feet to the east, and bounded on the south by Government street; which grant was recognised as a perfect title, and so confirmed by act of Congress. Attached to the original grant was a certificate signed by W. Barton, Register, Wm. Barnett, Receiver, P. M.; Attest, John Elliott, Clerk; a copy of which is the following:

[PROCEEDINGS OF THE COMMISSIONERS.

Land Office, Jackson Court House.

Commissioners Report, No. 2; Certificate, No. 3.

In pursuance of the act of Congress, passed on the 3d of March, 1819, entitled 'an act for adjusting the claims to land, and establishing land offices in the district east of the island of Orleans,' we certify that the claim No. 3, in the report of the commissioners, numbered 2, (claimed by John Forbes and Company, original claimant, Panton Leslie and Company,) is recognised by the said act as valid against any claim on the part of the United States, or right derived from the United States; the said claim being for eighty feet in front, and three hundred and four in depth, area 24,320 feet, situate in the town of Mobile, and claimed by virtue of Spanish grant executed by J. V. Morales, and dated 9th of June, 1802.

Given under our hands this 8th day of January, 1820.

W. BARTON, Register.

WM. BARNETT, Receiver, P. M.

Attest, JOHN ELLIOTT, Clerk.]

A map, or diagram, indicating the property claimed, as well as that covered by the above grant, with other lots, streets, &c., was submitted to the jury, and is to make a part of the bill of exceptions, by agreement between the counsel of the parties.

According to that map and the proof, the lot sued for is east of Water street, and also immediately in front of the lot conveyed by the above mentioned grant to John Forbes and Company, and only separated from it by Water street. The proof showed that, previous to 1819, then, and until filled up, as after stated, the lot claimed by plaintiffs, was at ordinary high tide, covered with water, and mainly so at all stages of the water; that the ordinary high water flowed from the east to about the middle of what is now Water street, as indicated on the map referred to, between the lot claimed by plaintiffs, and that covered by the grant to John Forbes and Company. It was proved that John Forbes and Company had been in possession of the lot indicated by their deed since the year 1802; and that said lot was known under the Spanish government as a water lot; no lots at that time existing between it and the water.

It was proved that, in the year 1823, no one being then in possession, and the same being under water, Curtis Lewis, without any title, or claim under title, took possession of, and filled up east of Water street, and from it eighty feet east, and thirty-six or forty feet wide, filling up north of Government street, and at the corner of the same, and Water street; that Lewis remained in possession about nine months, when he was ousted in the night by James Innerarity, one of the firm of John Forbes and Company; who caused to be erected a smith shop, and from whom Lewis, sometime after regained possession by legal process, and retained it till he conveyed the same. Proved, that when said Lewis took possession, Water street at that place could be passed by carts, and was common. The defendant connected himself, through conveyances for the premises in controversy, with the said grant to John Forbes and Company, also, with the said Curtis Lewis, also, with the mayor and aldermen of the city of Mobile: from each of which sources his title, if any, was derived by deed.

It was admitted by the parties to the suit, that the premises sued for were between Church street and North Boundary street; this was all the evidence introduced on the trial.

On this evidence, the Court charged the jury, that if the lot conveyed as above, to John Forbes and Company, by the deed aforesaid was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at, and previous to the 26th day of May, 1824, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes and Company, then the lot claimed, passed by the act of Congress of the 26th of May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes and Company.

'The Court further charged the jury, it was immaterial who made the improvements on the lot on the east side of Water street, being the one in dispute; that by the said acts of Congress, the proprietor of the lot on the west side of Water street, known as above, was entitled to the lot on the east side of it. To which charges of the Court, the plaintiffs, by their counsel, excepted, and this was signed and sealed as a bill of exceptions.'

The case was argued by Mr. Test, and Mr. Webster, for the plaintiffs in error; and by Mr. Key, for the appellee.

For the plaintiff in error it was contended, that the charge in the Circuit Court of Baldwin county, was erroneous; and the judgment of the Superior Court of Alabama should be reversed:

1. Because plaintiff had a good title under his original grant, the confirmation thereof by the act of Congress of the 2d July, 1836, and the patent issued in pursuance thereof.

2. The construction put by the judge who tried the cause, on the act of May 26th, 1824, was not the true construction of that act.

3. The said charge to the jury was not warranted by the evidence set forth in the said bill of exceptions.

The counsel for the plaintiffs in error stated, that the question in the case was, whether the grant to Forbes and Company, dated 9th June, 1802, which had been confirmed by the commissioners of the United States on the 8th of January, 1820, conveyed the lot in front of the lot of Forbes and Company, which is now claimed by Pollard's heirs.

1. The plaintiffs had a good and valid title to this lot. They rely on the provisions of the act of Congress of 1826. They do not claim as riparian proprietors.

Pollard was in possession of the property, as is shown by the act of Congress of 1826; and the patent to him was granted under that law. The patent is the highest evidence of title, and the Court will not look beyond or behind it.

If the original grant by Governor Cayetano Perez was of no value, yet the act of 1836 gave it life, and made it a legal, valid, and indisputable title, against any equitable title; and the defendants have nothing but an equitable title. Cited, the act of Congress of the session of 1836, 1837.

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