The United States, Appellants v. Charles Sibbald, Appellee

• Decision Date: 01 January 1836
• Citation: 9 L.Ed. 437,35 U.S. 313,10 Pet. 313
• Parties: THE UNITED STATES, APPELLANTS v. CHARLES F. SIBBALD, APPELLEE
• Court: U.S. Supreme Court

35 U.S. 313

10 Pet. 313

9 L.Ed. 437

THE UNITED STATES, APPELLANTS v. CHARLES F. SIBBALD, APPELLEE.

January Term, 1836

APPEAL from the superior court of East Florida.

This was a claim to land in East Florida, presented to the superior court of East Florida, by the appellee, founded on a concession for sixteen thousand acres of land, made by Don Jose Coppinger, governor of the province of East Florida, to Charles F. Sibbald, the claimant, on the 2d day of August 1816; for five miles square, or sixteen thousand acres of land.

On the 16th day of July 1816, the petitioner, Charles F. Sibbald, presented his petition to governor Coppinger, supplicating his permission to construct a water saw-mill on the creek called Six Miles alias Little Trout creek, on the north side of the river St John's and that of Nassau, the creeks of which empty their waters into the said St John's river; with the corresponding surety for the grant of lands embraced in a line of two and a half miles to each wind, making a square of five miles, or its equivalent, in the event that this situation will not permit the same form; which land, he says, will insure the continued supply of timber.

On the 2d of August of the same year, the governor made his decree, granting the permission solicited; under the express condition that, until the establishment of the mill, the grant of the land, which will be of two miles and a half to each wind, making a square of five miles, in order that he may use the timber, &c., shall be of no effect.

Ten thousand acres of this land were surveyed upon Little Trout creek, agreeably to the calls of the grant. Four thousand acres were surveyed by George J. F. Clarke, public surveyor, on the 8th day of February 1820, in Turnbull's swamp, at Mosquito, more than one hundred miles to the southward from the first location, and between which and it there is no water communication except by the open sea; and the remaining two thousand acres were, on the 20th of February 1820, surveyed by said Clarke, at Bow Legs hammock, about the same distance to the west, and from the first survey, between which and those two thousand acres, there is no water communication at all.

The petitioner alleges, that in compliance with the condition of said grant, he, in the year 1819, expended six or eight thousand dollars in the erection of a water saw-mill, which was nearly completed; but that, owing to various difficulties, and the embarrassments of said province, the mill did not go into operation.

That, since the cession of the Floridas to the United States, he has expended upwards of twenty thousand dollars in the erection of a steam saw-mill on the tract of ten thousand acres, which was completed, and some time in full operation; but that in the month of July 1828, it was entirely destroyed by fire, and that he has since commenced another, upon a much more extensive scale. This last has been completed since the filing of the petition in this case.

The answer of the district attorney denies the power of the governor to make this grant; and puts the claimant to the proof of all the allegations contained in his petition, and insists that he has not complied with the condition of the concession.

That by a decree of governor Coppinger, bearing date the 29th of October of the same year (White's Compilations), the term of six months was limited for the performance of the conditions of all grants of this nature; and that it was then especially decreed by said governor, that all those grants, the conditions of which were not performed at the expiration of said six months, should be null and void, and that the lands should be annexed to the class of public land; which decree was subsequently, to wit on the 18th day of January 1819, by another decree of the same governor, fully affirmed: and that the said Charles F. Sibbald did not erect the said saw-mill within the said term of six months, and that consequently said concession, at the expiration thereof, became null and void, and the lands were annexed to the class of public lands.

The original concession in this case was not to be found in the archives; but a copy certified by Thomas de Aguilar, late secretary of the government of the province, was produced and proved.

The proof in relation to the building of the mills, is substantially as stated in the petition, and a duly certified copy of the survey was also produced.

Points submitted on the part of the United States in the court below:

1. As to the power of the governor to make the grant.

This question is considered by the court below, as settled by the several decisions of the court.

2. As to the validity of the surveys of four thousand and two thousand acres.

This was also considered as settled against the claimant by the decision of this court; and the claimant has appealed as to this part of the decree.

3. Did Sibbald, the grantee, perform the condition of this concession, either literally or substantially?

The superior court decided in favour of the petitioner, for ten thousand acres; and against the claim of the petitioner to the six thousand acres.

Both parties appealed to this court.

Mr White, for appellee.

This is what is called a mill grant; a grant of a prescribed quantity of land, on the express condition of establishing a water saw-mill on the river St John, and Cone's, or watercourse, called Six Mile or Trout creek. No specific time is limited in the decree within which the mill was to be erected and put in operation. The governor contented himself with declaring that, until the memorialist should 'settle (establish) the said mill, this grant shall be of no effect.'

The evidence in the record is ample to show that this condition was fully complied with. The first mill was built in 1819, and carried away by a freshet. The second was built in 1827, and was in operation until 1828, when it was destroyed by fire, in July 1828. The third, and last, was built and went into operation in 1829.

United States v. Richard, 8 Peters 470. This is a case of a similar grant made by the same governor, which was confirmed by the supreme court, of a later date than this. In that case, as in this, the condition was not complied with until after the 24th of January 1818. That case also decides that these grants conveyed the lands, and not the timber merely. The grant to the claimant was made on the 2d of August 1816; and the certificate of the secretary bears date on the succeeding day.

The memorial asks for an order of survey, 'together with suitable warrants to survey the ground;' and this is granted by the decree, 'concedo su permisso.' Under this authority, the surveyor-general surveyed the prescribed quantity of lands in detached parcels, on the 2d of May 1819, and on the 8th and 20th of February 1820.

In Richard's case, above referred to, the surveys were made in detached parcels, and at a later period than this. United States v. Clarke, 8 Peters 436. This, and the other cases decided at the same term, all affirm the authority of the governors of East Florida to make these grants.

Where the grants had issued before the 24th of January 1818, they recognise the authority of the governors to make orders of survey for the lands granted; and of the surveyor-general to execute them after that date. But the court, in that case, rejected a claim to land, taken up under an order of survey, changing, as to a part of the land, the location specified in the original grant, which order was made on the 25th of January 1819; considering it as equivalent to a new grant: and the supposed analogy between the case and the one now under consideration presents the only question which can arise here.

A brief examination of that case, in its application to the one at bar, will show the want of analogy between them.

On the 3d of April 1816, George F. Clarke obtained a grant of five miles square, with a specific location, 'on the west said of St John's river, above Black creek, at a place called White Spring.' It was an absolute title for so much land at a specified place, with the usual proviso, 'without prejudice to others.' But Mr Clarke was not satisfied with the land granted to him. Although there was sufficient vacant or public land at the specified place to make up the quantity granted, yet it 'did not answer his expectation;' and stating this fact in his petition to the governor, on the 25th of January 1819, he asked that the surveyor might be authorized to survey the one half of the quantity specified in the first grant at another place, viz. 'on the Hammock, called Lang's and Cone's, on Mizzel's lake.' And the governor so ordered it. This raised the question in that case.

The court held that this change of location could not be authorized by the governor after the 24th of January 1818; that the grant to Clarke conveyed the land described in it, and no other; and that a permit to survey other lands was, in effect, a new order of survey, which the governor had not power to make on the 25th of January 1819. The principle is not questioned; but that is not the case of the present claimant.

The memorialist, Charles Sibbald, applied for a situation on which to erect his mill, which he specified, and for a grant of land of five miles square, 'together with suitable warrants for the survey of ground, which occupies two and a half miles on every side, making a square of five miles, or an equivalent quantity, in case this situation may not allow of the said figure.' And 'the same is granted' by the governor—Concedo su permisso.

The reference in the decree to the memorial makes the latter instrument part of the decree itself. Then it is a grant or concession of a tract of land two and a half miles on every side, making a square of five miles, on Trout creek, or an equivalent quantity elsewhere; in case that situation may not allow of the said figure. In other words, the grant, quoad the location, was alternative. It was to be...