Muse v. Arlington Hotel Co.

• Decision Date: 01 June 1895
• Parties: MUSE et al. v. ARLINGTON HOTEL CO.
• Court: U.S. District Court — Eastern District of Arkansas

68 F. 637

MUSE et al. v. ARLINGTON HOTEL CO.

United States Circuit Court, E.D. Arkansas.

June 1, 1895

This is an action of ejectment, brought on the 25th day of July 1894, by the plaintiffs, as heirs of Juan Filhiol, against the defendant, for a tract of land including the hot springs in the city of Hot Springs, in this state. The plaintiffs rely for title on certain documents, copies of which are filed with the complaint, and are made exhibits hereto, and which are as follows:

1. A paper, made Exhibit A, purporting to be a Spanish grant translated from the Spanish language to the English, in the following words:

(From the Land Archives.)

'The governor intendent of the provinces of Louisiana and Florida West, inspector of troops, etc. Considering the anterior surveyors made by the surveyor of this province, Don Carlos Trudeau, concerning the possession given to Don Juan Filhiol, commandant of this post of the Ouachita, of a tract of land of one square league, situated in the district of Arcansas, on the north side of the River Ouachita, at about two leagues and one-half distant from said River Ouachita, and understanding that this land is to be measured so as to include the site or locality known by the name of 'Hot Waters,' as is besides expressed by the figurative plan and certificate of said surveyor, Trudeau, above named, and recognizing this mode of measurement, we approve of this survey, using the faculty which the king has placed in us, and assign in his royal name unto the said Juan Filhiol the said league of land, in order that he may dispose of the same and the usufruct thereof as his own. We give these presents under our own hand, sealed with the seal of our arms, and attested by the undersigned, secretary of his majesty in this government and intendants.

'In New Orleans, on the 22nd of February, 1788.

Estevan Miro.

'By mandate of his excellence.

'Andres Lopez Armesto.

'Registered.'

2. A paper purporting to be a survey, also translated from the Spanish language, marked 'Exhibit B', in the following words:

'Don Carlos Trudeau, land and particular surveyor of the province of Louisiana, in consequence of a memorial signed on the 12th of December of the year 1787 by Don Juan Filhiol, commandant of the post of Ouachita, and by order of his excellency, Don Estevan Miro, brigadier of the R. Ex. Gob., intendent of the province of Louisiana, West Florida, etc., dated the 22nd of February, 1788, directing me to give possession to the aforesaid commandant of a tract of land of one league square, situated in the district of Arkansas, to include that spot known by the name of the 'Warm Waters'; and in conformity with the aforesaid order I certify having measured in favor of the aforesaid commandant, Don Juan Filhiol, the league of land indicated in the memorial situated on the north side of Ouachita River, in the district of Arkansas, at about two leagues and a half distant from said river, to be verified by the figurative plan which accompanies, in conformity with-- of the 6th of the present month of December, and of the current year, 1788.

'(Signed) Carlos Trudeau.'

Exhibit C to the complaint appears to be a deed from John Filhiol to Narcisso Bourgeat, conveying 'a tract of land 84 arpents front and 42 in depth on each side of the stream called the source of the hot springs, about two leagues from where it flows into the Ouachita River, having the source of the hot springs as a center, the boundary lines on the east and west running parallel to their full depth, bounded on both sides by public lands, being the same property acquired by me from Stephen Miro, then governor of these provinces, under date of December 12th, 1787. ' This deed is not dated, but on it there is endorsed an acceptance of it, dated November 25, 1803.

Then follows Exhibit D, which purports to be a retrocession by Narcisso Bourgeat to John Filhiol of 'one league square, situated at the mouth of the Hot Springs creek, where it flows into the Ouachita, being the same property which he sold to me by act passed before Vincent Fernandez Texiero, then commandant of Ouachita post,' dated July 17, 1806, signed by Narcisso Bourgeat.

The defendant demurred to the complaint because (1) it states no cause of action; (2) because, if plaintiffs have any remedy, it must be pursued in equity, and not at law. The defendant also filed exceptions to the documentary evidence as follows: 'Comes said defendant, and excepts to the so-called 'land grant,' made an exhibit of evidence marked 'Exhibit A' to complaint, because (1) the said instrument does not purport to be official, or to come from any official depository. And said defendant excepts also to the paper purporting to be a survey made by Don Carlos Trudeau, marked 'exhibit B,' to the complaint, because (1) it does not purport to be official; (2) it does not purport to come from any official depository; (3) because it shows no such survey as is required by law to sustain the pretended Spanish grant set up in said complaint. And the said defendant excepts to the instrument purporting to be a conveyance by John Filhiol, marked 'Exhibit C' to said complaint, because (1) the said deed does not purport to have been signed by the grantor therein; (2) because the same does not describe the land set forth in the complaint herein; (3) the said deed does not purport to come from any official source, or ever to have been filed in any office; (4) it is not authenticated as required by law. The defendant also excepts to the instrument purporting to be a retrocession by Narcisso Bourgeat, a copy of which is marked 'Exhibit D' to the complaint herein, because (1) it is not authenticated in a manner required by law; (2) it does not purport to come from any official source; (3) it does not purport to come from any official depository of conveyances of lands; (4) it does not describe the lands mentioned in the complaint.'

C. H. Boatner, E. W. Rector, Dan W. Jones, and Mr. McCain for plaintiffs.

Rose, Hemmingway & Rose, for defendant.

WILLIAMS District Judge.

By the statute of Arkansas the pleadings in the action of ejectment are very nearly assimilated to those of a suit in equity to quiet title. The pleading is special, and not general. In his complaint the plaintiff must set forth 'all deeds and other written evidences of title on which he relies for the maintenance of his suit, and shall file copies of the same, as far as the same can be obtained, as exhibits therewith, and shall state such facts as shall show a prima facie title in himself to the land in controversy. ' Sand. & H. Dig. Sec. 2578. All objections to exhibits must be made by exceptions to their admissibility before the trial. Id. Sec. 2579. The object of this statute is to prevent surprise to either party; also to prevent, as far as may be, the discussion of questions of evidence during the trial, so that trials may be rendered more expeditious, and that the attention of juries may not be diverted from their exclusive province. I do not find it necessary to notice the exceptions to the deed from Filhiol to Bourgeat, or the subsequent deed from the latter to the former. In the view of the case that I have taken, it is of no importance to consider whether the deed from Filhiol to Bourgeat, or the deed from Bourgeat to Filhiol, describes the same land referred to in the alleged grant, as contended for by the plaintiffs; for, if so, it is evident that the title of the plaintiffs is not affected by these conveyances, and that by the reconveyance Filhiol could only have acquired the same title that he held in the first instance. As the stream cannot rise higher than its source, and Filhiol could not grant any greater estate than he possessed, his title could not be improved by a conveyance to another and a reconveyance to himself. It is, however, necessary to consider the exceptions to the alleged grant by Gov. Miro, and the alleged survey of Trudeau. At the time that the alleged grant in this case was made, the regulations of Gov. O'Reilly of February 18, 1770, were in force in the province of Louisiana, the twelfth section of which reads as follows:

'All grants shall be made in the name of the king by the governor general of the province, who will at the same time appoint a surveyor to fix the bounds thereof, both in front and depth, in the presence of the judge ordinary of the district and of two adjoining settlers, who shall be present at the survey. The above-mentioned four persons shall sign the process verbal, which shall be made thereof. The surveyor shall make three copies of the same, one of which shall be deposited in the office of the scrivener of the government, another shall be directed to the governor general, and a third to the proprietor to be annexed to the title of his grant. ' Copied also in U.S. v. Boisdore, 11 How. 76. Also in volume 5, Am.St.Papers, pp. 289, 290.

These regulations were approved by the royal order of the king of Spain of August 24, 1770, after which they had the force of statutes which no official had the right to disregard. U.S. v. Moore, 12 How. 217. The Spaniards 'were a formal people, and their officials were usually careful in the administration of their public affairs. ' White v. U.S., 1 Wall. 680. Some degree of conformity with laws thus actually in force must be shown by the plaintiff 'otherwise there can be no protection against imposition and fraud in these cases. U.S. v. Teschmaker, 22 How. 405. The applicant for a Spanish grant presented to the governor a petition, or 'requete,' as it was called, accompanied by what was called a 'figurative' or 'conjectural' map or plan of the land desired. This map was not made from an actual survey, but served to indicate in a general way...