Jourdan v. Barrett

13 La. 24 | La. | 1839

Bullard, J.,

delivered the opinion of the court.

The plaintiffs assert title to different portions of land possessed bjr the defendant, which they purchased of the United States, in virtue of the acts of congress granting to front proprietors the right of purchasing, public lands back of, and adjacent to their front tracts. The evidence of title which they exhibit, to wit, certificates of purchase, and an apportionment of the lands among conflicting claimants, under the same acts of congress, under the superintendence of 4he surveying department, appears to us sufficient to authorize a judgment in their favor, unless the title of the defendant be older or better, or the plea of prescription which he sets up should be sustained. Our attention, therefore, must be directed principally to the title of the defendant.

The latter claims under Bringier, by several mesne conveyances, and the record shows that Bringier was the proprietor of a tract of land on the river Mississippi, having a front of about twenty-seven arpents, with the ordinary depth of forty, and was clearly of that class of persons who had a right under the pre-emption laws, to purchase, to a greater or less extent, the adjacent public land in the rear of their plantations. Under the act of 1820, to which we shall hereafter allude more particularly, Bringier did purchase a quantity of land in his rear, not exceeding the superficies of his front tract. This purchase embraces the locus in quo. Neither party has a patent, and in this respect both parties stand upon the same footing. The question, therefore, presented for our consideration is, whether Bringier purchased- more land than he was entitled to under the act of 1820, in-relation to the plaintiffs, who were also front proprietors, and, in consequence of a bend in the river, were entitled to purchase a part of the same land entered by Bringier. This renders it necessary to examine critically the acts of congress-under which the parties claim.

The right of preference in question was first extended to the proprietors of front tracts by the 5th section of an act of congress p.assed in 1811, entitled “an act providing for the final adjustment of claims to lands, and for the sale of the public lands in the territories of Orleans and Louisaina, etc.” This part of the statute expired by its own limitation in three years, and was revived for two years by the act of May 11th, 1820, entitled “an act supplementary to the several acts for the adjustment of land claims in the state of Louisiana.” It was twice afterwards revived for limited periods, in 1832 and 1835. Bringier purchased under the act of 1820, and the plaintiffs under those of 1832 and 1835, after a lapse of many years, during which no such law existed.

The act of congress of the 5¡0th May, 1820, grants the right of pre-emption to front proprietors, to purchase an equal (piantily of land in their rear, and adjacent to their front tract, not exceeding the same, and extending notmore than forty ar-pents in depth; provided, notice is given and payment madewith-in three years; otherwise, the right of preemption shall cease and become void. Where back concessions or claimed byseve-propne°tors,fr0si-¡Jenaof driver6 the surveyor ge-v¡dé and appor-equitable manner among such front pro-prieto™ as avail SeS^priviiege ‡'8 a?l> converging of ther/'ínorthe ants.

That act of congress accords to every owner of a front tract of land, “ a preference in becoming purchaser of any vacant tract of land adjacent to and back of his own tract, not exceeding forty arpents in depth, nor in quantity of land that which is contained in his own tract.” it is made the duty of the principal deputy surveyor of each district, “under the superintendence of the surveyor of public lands south of the State of Tennessee, to cause to be surveyed the tracts claimed by virtue of this section ;” and it provides, that he shall “in all cases where by reason of bends in the rivers, etc., etc., bordering on the tract, and of adjacent claims of a similar nature, each claimant cannot obtain a tract equal in quantity to the adjacent part already owned by him, to divide the vacant land applicable to that object between the several claimants, in such way as may appear to him most equitable.” The same section, after providing for the manner of giving notice, and fixing the mode and time of payment, concludes by declaring, that “if any such person shall fail to deliver such notice within the said period of three years, or to make such payment or payments at the time above mentioned, the right of pre-emption shall cease, and become void, and the land may thereafter be purchased by any other person, in the same manner, and on the same terms, as are or may be provided by law for the sale of other public lands, etc.”

1 . ... . , The front tracts of all the parties to this suit are situated upon a point formed by a bend of the river, and the side lines converge in such a manner as that there is not sufficient land in the rear to give to each the quantity equal to that contained in his original tract. It is, therefore, clear that if all had purchased under the act of 1820, it would have become the duty of the surveying department to apportion the land among them. But in point of fact, Bringier alone delivered his notice and made his purchase, daring the existence o~ that act congress, of a tract not exceeding the quantity contained in his front tract: and the question is whether the 4 7 1 purchase of Bringier is to be curtailed, so as to allow to the plaintiffs their equitable proportion, they having given their notice and made payment, under a subsequent law, after an interval of more than ten years.

But where proprietor l°nt vliege underPthe act of congress land, in a bend con-ver^ing.Uneí, he is entitled to his full quantity, and the survey-boumintoaiay it off to him. This tingeni, and the qUim(ityiiabieto be reduced, so jong as {he aof was in force, but iute^nd^ested thePacT which could not revirai^of bthe ja"r subseqoent-operations of the ral.Ve)°l sene

We may premise, that, in our opinion, the absence of patents can have no influence upon the rights of the parties in this case, hut that those rights are to be determined by the rules which regulate the contract of sale. The sovereign having made an offer or proposition to sell, subject to certain conditions and restrictions, and that proposition having been accepted, and the terms as to pajunent of the price complied with, we have only to inquire whether the title thus acquired by Bringier became indefeasible and absolute, as soon as the law expired, when no other proprietor, whose pretensions might interfere with him, had thought proper to avail himself of the privilege proffered by the act of congress; and whether his title could be affected by the revival of the same law ten years afterwards. If Bringier’s front tract had been situated on a straight part of the river, and the side lines parallel to each other, and he had been the only purchaser or claimant, there can be no question but that he would have acquired a good title, and it would have been the duty of the surveying department to lay it out according to the directions of the statute. ■ Whatever may be the situation of the front tract, the owner has a right to purchase a quantity equal in suPei'ficies to his front tract, subject to the operations of the surveyor, if his neighbors, situated on the same point, avail themselves of the same privilege. When congress speaks of fr°nt tract, they speak of the owner; but the surveyor is to act only on the land claimed under the law, and those who ..... . , „ deliver a notice of their intention to accept the offer, are sP°^en °f as claimants. If there be but one claimant, it is equally the duty of the surveyor to lay off the land purchased by him. We, therefore, consider the right of Bringier, as a claimant under the act of congress, although contingent or defeasible during the existence of the law, while his neighbors had also a right to claim the privilege of the act, by complying with its conditions, as having become complete and vested by the expiration of the law. By suffering the law to expire without delivering their notice, the right on the part of the a 70 i plaintiffs to purchase was forfeited, by the express terms of the act, and it is difficult to conceive how it could be after-wards revived to the prejudice of the defendant by any legislative authority, much less by the operations of the surveying department. But it is contended, that the last clause of the section reserved the land not claimed under the law, to be sold like other public lands, which was not and could not have been done in this case. To this it may be answered, that by that part of the section, not only did those who had not purchased within the time limited, forfeit their right to buy, but those who had purchased according to the terms of credit then allowed, and had failed to pay, forfeited the land itself. The last words, therefore, amount, according to our understanding of them, to a declaration that the lands thus purchased and not paid for, shall not only revert to the domain, but that they shall so revert ipso facto, by the non-J J payment of the pnce, so.completely as to be liable to sale or private entry. If it had been the intention of congress merely to declare that the privilege should cease with the 4/1 i o law, and be forfeited, such expressions would have been unnecessary, if not absurd, because the land itself in the case supposed would never have ceased to belong to the domain, anda declaration that “the lands might thereafter be purchased by any other person in the same manner, and on the same terms as are or may be provided by law for the sale of other public lands,” would have been, to say the least of it, a very idle declaration, inasmuch as the lands were already liable to be sold according to law.

giected or failed back conees-exph-atfonofthe act, forfeited when "the law ^“ved^rdid n.ot revive their rights to the pre-juciice of the ^ho haTavaned. himself of the privilege.

But it is further urged, on the part of the appellants, that the public lands cannot be. sold without a previous survey, and that the officers of the government are not authorized to sell to any individual at private sale, until he produces to the register a memorandum describing the tract he wishes to purchase, by its legal subdivisions, and that no title can vest until this mode has been pursued. They cite the act oí 1810, in support of this position. ' i i 1

Such is undoubtedly the general law which regulates the sale of the public lands. But the statute in question creates clearly an exception to that rule, by authorizing the sale of the back lands in tracts of different quantities, and irregular shapes, and which require to be surveyed and laid off after the sale. The act declares that the date of the purchase shall be the date of the notice, thereby clearly indicating that the title of the purchaser shall vest independently of any survey ; and at the time of filing the notice, subject as we have already observed, to a reduction in quantity, in cases of other claimants, and an insufficiency of land for all.

It is again urged, that Bringier’s application contained no legal statement or description of the situation and extent of land which he wished to purchase; that there was no plat of survey of the tracts which the front proprietors were entitled to purchase. In support of this position, .we are referred to a decision of the Supreme Court of the United States, relative to the location or laying of land warrants in Kentucky, in which it was held that the calls must be so specific and precise, as to enable others to locate the adjacent vacant lands. In deciding in the case now before us, upon the sufficiency of Bringier’s notice or application, we cannot look beyond the statute under which it was made, and by which it must be governed. No particular form is prescribed, much less does it require the exhibition of a survey. Any description which would show that the applicant or claimant is a front proprietor, and entitled to the benefit of the act, would in our opinion suffice.

It is lastly contended, that the decision of the surveyor general, whose duty it is to apportion the public lands among the different claimants under the pre-emption laws, approved by the public functionaries to whom he is responsible, cannot be inquired into in courts of justice, and is final between the parties; and it is shown that the operations of the surveyor general, by which the purchase of Bringier has been restricted and curtailed, in order to give a portion of the land to the plaintiffs, lias been approved by the secretary of the treasury, and the previous survey and location of his purchase by Righter, a principal deputy surveyor, has been disregarded. Such pretensions do not appear to have been entertained by the treasury department; for in the report of the commissioner of the general land office, which is approved by the secretary, it is expressly conceded, that a decision of the treasury department, adverse to Bringier, would not preclude him from seeking a remedy in the courts. Indeed it appears to us manifest, that the authority of the surveyor general to apportion the lands under the statute, is confined to the cases of a conflict between different claimants under the same law, and that he, as well as the treasury department itself, is incompetent to decide upon the validity of a title acquired by purchase, or upon the only question which this case presents, to wit: whether the plaintiffs, by neglecting to avail themselves of the privilege offered by the act of congress, did not forfeit all pretensions to the land, lying back of, and adjacent to the plantation of Bringier, to an extent not exceeding that of his front tract, and extending back forty arpents from his back line. Congress itself is incompetent, under the constitution, to destroy the vested right and title of a purchaser of the public land; and how can the surveyor general, under an authority to apportion the land applicable to that object, among several claimants under the same law, while the extent of their purchase is yet doubtful and contingent, assume to take any part of the land, purchased by Bringier, under the act of 1820, and give it to the plaintiffs, who purchased under the acts of 1832 and 1835? In the case of Boatner vs. Ventris, upon which the appellants rely, it is true, this court held, that the decision of the register and receiver relative to the conflictions of certain donation claims in Florida was conclusive, because the act of congress constituted them a tribunal for such purposes, with the power to decide between the parties according to the circumstances of the case, and the principles of justice. But in relation to that class of claims, the title did not vest until the patent issued, and the donees under the government, were bound to take with all the conditions and limitations, which the donor thought proper to impose. But in cases of sale, it is totally different. If Bringier was a fair purchaser, under the act of congress, his right does not depend upon the operations of a surveyor, or the opinion of the treasury department, and cannot be modified or affected by any act of the vendor, although that vendor may be the sovereign.

The decision of the secretary of the treasury approving the operations of ihe surveyor general in making the apportionment among different claimants is not conclusive upon the legal rights of the parties in a court of justice. The authority of the surveyor general to make tins apportionment is confined to cases of conflict between different claimants under the same act.

These views of the rights of the parties render it unnecessary to consider the question, whether Righter’s survey was properly sanctioned by the surveyor of the public lands south of Tennessee, and whether the plea of prescription ought to prevail.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.