39 Ala. 9 | Ala. | 1863
The plaintiffs’ claim originally belonged to the class of incomplete Spanish concessions, which, after the acquisition of the territory by the United States, were addressed to the liberality and justice of the political department of this government. No title vested until the concession was confirmed by congress. — Menard’s Heirs v. Massey, 8 How. 806; Les Bois v. Bramell, 4 ib. 464; Doe, ex dem. Chastang v. Dilt, 19 Ala. 421. "Whatever right the plaintiff may have, cognizable in a judicial tribunal, is derived from the act of congress, acting upon the Spanish concession, and the subsequent proceedings of the executive officers under the authority of law.—Willot v. Bandford, 19 How. 79.
By the first section of an act of congress approved March 2d, 1829, a claim in favor of the plaintiffs was confirmed. — 4 U. S. Satutes at large, 358. If the plaintiffs have a title to the particular land in controversy, it must either be bestowed by that act of congress, or result from that act and the subsequent proceedings of the proper officers of the general government. Whether, in either of those modes, a title to the loans in quo has vested in the plaintiffs, we proceed to inquire.
3. Does the act of congress, by its own intrinsic force, clothe the plaintiffs with a title to the particular area in litigation? The section of the act of congress above cited enacts, that certain claims, described in a report of the register and receiver at St. Stephen’s, “ be confirmed to
Congress has confirmed - the title to that land embraced in the concession. The land for which Samuel Mims, the plaintiffs’ ancestor, petitioned on the 22d July, 1796, and which was granted by the governor-general, Baron de Ca-rondelet, on the 12th August, 1796, was described as one of the vacant lots towards the north on Boyal street, “ with the accustomed dimensions, the first of the vacant ones there is going up the said Boyal street, which is bounded on the south by a new street, and on the north by the lands of the dominion.” The petition of Benjamin F. Smoot in behalf of the plaintiffs, on the 27th May, 1827, to the commissioners for the adjustment of land claims, is not more specific in its description than the petition of Mims above stated. ' In the description found in the concession, neither the location, boundaries, nor quantity is defined; there is no designation of the particular land.
It is an established doctrine, in reference to confirmations of claims without identification and specification of boundaries, that the confirmation does not vest a title to any particular land, and does not clothe the claimant with any right cognizable in a judicial tribunal, but leaves him to obtain from the executive department of the government, through its officers, the location and identification of the
It must be conceded, that an act of congress might confirm a concession, in itself containing no identification, and yet might so supply the description as to completely identify and specify tbe particular land upon wbicb tbe confirmation was designed to operate ; and this, it is contended, was done in reference to the claim of Mims. As we have seen, there is nothing in the terms of tbe act of congress, wbicb refers to a more definite location and description than is afforded by tbe concession. Tbe same thing is true in reference to tbe recommendation of tbe register and receiver. That recommendation simply states, that Samuel Mims was tbe original claimant; that tbe nature of tbe claim was a Spanish permit; that its date was August 12th, 1796; that it was granted by Baron de Ca-rondelet; that its quantity was four hundred and thirty-eight by two hundred and twenty-two feet; that it was situated upon Boyal street in Mobile; that there was no survey, and that it was built upon in 1797. — 5 Am. State Papers, 122. Conceding, then, that tbe confirmation by congress bad reference to tbe recommendation and its specifications, it contributes nothing to relieve tbe claim of its indefiniteness and want of certainty as to location and boundaries.
It is said, however, that before tbe recommendation of tbe register and receiver was reported, and pending their investigation of tbe claim, a survey and plat of tbe land was made, under their direction, by "William Boberts, deputy-surveyor; and that although that survey, being unapproved, bad of itself no force, tbe recommendation, and also tbe act of congress based upon tbe recommendation,
The question, in reference to this survey of Roberts, is not at all analogous to that decided in the case of Bissdl v. Penrose, 8 Howard, 317. In that case, the claim was made in writing, accompanied with a survey, under an act requiring the survey to be filed. The survey was thus a part of the claim. The report upon which congress acted, contained the survey. The commissioners decided, that the claim ought to be confirmed; and congress enacted that the decision of the commissioners should be confirmed. — 5 U. S. Statutes at large, 126; 5 American State Papers, 735. The decision predicated upon such a case is obviously inapplicable here. The claim asserted was according to the survey, and in like manner it was confirmed. The confirmation of the plaintiffs’ claim by congress, we are compelled to conclude, had no reference to any tract of ascertained and defined location and boundaries, and, therefore, did not vest a title, as against the general government, in any particular land.
2. The second question is, whether the act of congress, and the subsequent proceedings of the officers of the government, have vested a title in the plaintiffs. By the confirmation, as has. already been said, the heirs of Mims
The first section of the act of congress of 4th July, 1836, entitled “An act to re-organize the general land-office,” is as follows: “From and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents under the authority of the government of the United States,
But the survey here was made and approved, and one of the patent certificates was issued, before the passage of the act of 1836; and it is contended that, under that act, there can be no power of revision over acts done before its adoption. "We are therefore called upon to inquire, whether the commissioner of the general land-office did not have, before 1836, the revising power which he has exercised. The 5th section of the act of 1829, which confirms the plaintiffs’ claim, confers upon the register and receiver authority to direct the manner in which all claims to lands and town lots, confirmed by that or any former act of congress, should be located and surveyed. The 6th section directs, “that certificates of confirmation, and patents, shall be granted in the same manner as patents are granted for lands and town lots under former acts of congress.” — 4 U. S. Statutes at large, 358. The certificates of confirmation are evidently the same which we have heretofore in this opinion denominated “patent certificates.” Upon recurring to the “ former acts of congress,” to ascertain the manner in which patent certificates and patents were granted under them, we find that the act of 1822 contains a similar provision, and that the 12 th section of the act of 1819, upon the same subject, points out the manner. — 3 U. S. Statutes at large, 532, and 707. That section provides, that the registers shall examine the claims confirmed, and shall make out a certificate, under such instructions as they
In this case, the commissioner decided, rightfully as we think, that the act of congress was never designed to confirm a claim to the lands specified in the patent certificates— 'that the certificates were not obtained according to the true intent and meaning of the act; and he had authority so to decide. He thereupon, in the exercise of an unquestionable authority, refused a patent. Now, this authority to decide and withhold a patent is altogether worthless and vain, if, notwithstanding, the plaintiffs have a complete title. The theory of the entire law, in reference to the public lands, is, that he who acquires a title to any part of the public domain, is entitled to a patent. But, if the acts of the commissioner in reference to the patent certificates in this case do not annul them, we have a case, where a party has a title as against the government of the United States,
We conclude, that the location and survey, and patent certificates obtained by the plaintiffs, have been annulled, and that the plaintiffs have no title to any particular piece of land, and no right cognizable in this case.
It is unnecessary for us to look farther into the points of the case. There was no error in the charges given, nor in the refusals to charge as requested; and if there was any error in the admission or rejection of testimony, the plaintiffs have not been injured thereby, because they have no title to the locus in quo.
Judgment affirmed.