Sullivan v. Richardson, 33 Fla. 1

33 Fla. 1 | Fla. | 1894

Lead Opinion

Raeñtey, C. J.,

(after stating the facts):

1. The first point urged in behalf of appellants, defendants below, refers to the action of the Circuit Court in permitting the paper offered in evidence by the plaintiff as an original grant from Ramirez to Pintado to be read to the jury. This point goes to the authenticity of the paper and includes the action of the court in admitting other papers offered with it. It is to be borne in mind that of the several objections made on the trial to the introduction of this instrument, the second, third, fourth, fifth, sixth and eighth concern rather the legal effect of the terms of the grant than the question of the genuineness or authenticity of the paper presented as a grant. The same may also be said of the seventh objection, which is that the grant is not one that the treaty between the United States and Spain recognized or validated; and as these several objections may be more properly dealt with in connection with the question of the nature and effect of the grant purported to be made, and its validity, as an authoritative act, their consideration will be deferred till that feature of the case shall be reached. This course leaves but two of the objections, the first and ninth, made to the introduction of the paper to be considered now; the former of these being that it purports to be a copy, and is not duly certified, and the latter that it is not a duly certified copy made by the lawful custodian of the original. As to the first of these two objections it is sufficient to say that the paper does not purport to be a copy. It and other originals introduced in evidence are before us, they having been transmitted under an order of the Circuit Judge, and there is nothing about it that suggests that it is a copy or other than an original. The intimation, to be found in one of the- briefs, that leaves containing the consular and notarial certificates which appear on the certified copy introduced in evidence may have been •detached from this alleged original, finds no support in the appearance of the jmper, or otherwise. The certificate of registry by Carambot at the conclusion of the paper is not consistent with the idea that it is •other than an original, and the signatures of Pintado, Ramirez and Carambot have the appearance of originals, as does the seal; and there is nothing on the face •of the paper that tends to create a suspicion that it has been changed or mutilated in any way. The only fair construction that can be placed on Mr. Knowles’ testimony is that the paper when he offered it in evidence was in the same condition that he found it in when he ■obtained the trunk in 1859 from Mr. de la Rua. Admitting, in this connection, that this original was never before the Commissioners appointed under the act of Congress to ascertain claims and titles to lands in the district of West Florida, and conceding that the copy of which a record was made in the book of the clerk’s office at Pensacola, was before them, we still do not think it can be inferred from these facts that the paper before us does not purport to be or is not an original, or has been in any wise mutilated. If it -Jbe that the Spanish law did not permit Pintado to have the original, then the absence of a presentation of it to the Commissioners, was a circumstance to indicate either that this paper was not then in existence, or that it, if valid, was in the archives at Havana, where it purports to have been executed, and would, if the law was as assumed, naturally have been, unless it had been removed by the Spanish government to Florida. Of such removal by the government there is no evidence; and however all this may be it does not seem to us that either any or all of these considerations have any appreciable weight in establishing the conclusion that the paper before us purports to be a copy.

The remaining objection, that it is not a duly certified copy made by the lawful custodian of the original, involves more than the one just disposed of. It implies that such copy is the only legal evidence of title or due proof of the existence of the original, and the contention is that according to the Spanish law, the' original belonged to the official archives, and the grantee’s sole evidence of his title was a duly certified copy by the official custodian of such archives. If this be so, then the natural and proper custody of this original would have been the office of the archives at Havana, where it purports to have been executed, at least until a transmissal of it, for convenience, to a similar office at Pensacola, in the then Province of West Florida, had been made by the Spanish authorities; and, according to the theory of the objection, a duly certified copy from such office would have been the proper evidence to adduce before the Circuit Court on this trial. It is true that by the second article of the treaty by which the United States acquired Florida, entered into at Washington on October 22nd, 1819, between the representatives of Spain and the United States, which treaty was ratified by Ferdinand 7th, October 24th, 1820, and by the United States in February, 1821, the “archives and documents, which relate directly to the property and sovereignty of said provinces, are included” in the cession, and the same article provides that “the said archives and documents shall be left in possession of the commissaries or officers of the United States duly authorized to receive them.” Had this original been in the archives at Pensacola and been “left” there according to the treaty, the mode of proof would have been clear; but, as is quite evident, there is no room for assuming that it ever was there, nor is the inference that it was ever deposited for retention in a similar repository at Havana, consistent with the record before us. If, then, it be that the Spanish law required such deposit and that a duly certified copy was the sole legal evidence of a grant to Pintado, the action of the trial judge in overruling the objection was errroneous.

What was the law of Spain on this subject? The authorities relied on by counsel for appellants in support of their objection are: United States vs. Percheman, 7 Peters, 51, 85; United States vs. Delespine, 12 Peters, 654; United States vs. Delespine, 15 Peters, 226; United States vs. Wiggins, 14 Peters, 334; United States vs. Rodman, 15 Peters, 130; United States vs. Acosta, 1 How., 24. In the first of these cases, all of them being appeals from judgments of the Superior Court of the Eastern District of the Territory of Florida, it was decided that a paper writing making a grant by a royal officer of Spain in Florida, addressed to a public officer whose duty it was to keep the original and issue a copy, need not be produced, and that the copy issued by the proper officer is an original. The original decree or grant made by Governor Estrada, December 12th, 1815, and to which Percheman’s petition for the same was attached, reads, after certain recitals, as follows: “I do grant him the 2,000 acres of land which he solicits, in absolute property, in the indicated place, to which effect let a certified copy of this petiton and decree be issued to him from the secretary’s office, in order that it may be to him in all events an equivalent of a title in form.” Afterwards there was a petition to the governor for an order of survey, and a certificate of the surveyor that the survey had been made. On the trial in the Superior Court the petitioner offered in evidence a copy, from the office of the keeper of public archives, of the original grant, and to its introduction the United States objected on the ground that the original grant itself should be procured, and its execution proved, but the objection was overruled; and it was said by the Supreme Court, in sustaining the ruling, that it appeared from the words of the grant that the original was not in the possession of the grantee; that the decree, which constituted the title, appeared to be addressed to the officer of the government whose duty it was to keep the originals and to issue a copy; that its language, after granting in absolute property, is: “for the attainment of which let a certified, copy of this petition and decree be issued to him from the secretary’s office, in order that it may be to him in all events an equivalent of a title in form;” and it is then observed that “this copy is, in contemplation, of law, an original.” It is unquestionable-that this decision of the Supreme Court of the United States recognizes the mode of procedure adopted by Governor Estrada to to be consonant with Spanish law, and valid, but the court does not decide, nor does the opinion intimate, or the judgment, viewed with reference to the facts of the case, imply that the Spanish law did not recognize any other procedure in making grants of land. It does not decide what would be the custody of a title in form if it had been contemplated that one should issue. The opinion intimates that the original might, as suggested by the Superior Court Judge, have been brought into court upon subpoena duces tecum, if such course had been necessary to either of the parties; and it was also held that on general principles of law, and independent of legislation to that end, a copy given by a public officer whose duty it is to keep the «original ought to be received in evidence. In the second, or Delespine case, a translated copy, made by the secretary of the Board of Land Commissioners, of a •copy in Spanishfof an original Spanish grant, was received in evidence, the copy in Spanish having been lost, and it being shown that the original had been mutilated, and could not be found. Of the first copy it is said by the court that it ‘ ‘was made from the original filed in the proper office, from which the original could not be removed “for any purpose.” The other Delespine case isat least of no broader effect than the Wiggins case, now to be noticed. In the fourth, or Wiggins case the evidence received, against objection, in the lower court was a copy of the original petition for land, and of the decree or concession by the governor, such copy being duly certified by the government secretary at St. Augustine on August 6th, 1815, as being “faithfully drawn from the originals which exist in the secretary’s office under my charge.” Evidence was also received to prove the practice in the government secretary’s office; and by the testimony of witnesses, including one who had been a clerk in it from 1807 till the change of government in 1821, it was “established beyond controversy” that persons wishing .grants of land from the Spanish government presented •a memorial to the governor, and that he decreed on the memorial in the form pursued in this case, and that the decree was filed in the secretary’s office, “and constantly retained there unless in cases where a royal title was ordered to be issued, when the decree was transferred to the escribano’s office.” The papers in the former class, to which that of Mrs. Wiggins belonged, were not recorded in books, but kept in files vor bundles. It is said in the opinion that the evidence of title given to the grantee was a certified copy of the-decree, or of the memorial and decree, by the government secretary, and that it was one of the ordinary duties of the secretary to make such copies for the use of the parties, and generally the decree directed the copy to be made for his use, and such copies were received as evidence in the Spanish courts of justice, they being made immediately after the decree, and delivered to the party when he called for them; no seal being affixed to the secretary’s certificate, which was evidence of the facts to which it certified in a case like this. And the conclusion of the court was that ‘ ‘in this case, as in all others where the originals are confined to a public office and copies are introduced, the copy is. competent evidence by authority of the certificate of the proper officer, and that it proves, prima facie, the-original to be of file in the office when the copy was made.” In Rodman’s case certified copies were offered, the decree concluding with a similar direction to-the secretary’s office for a certified copy, “which in all events will serve to him as a title in form,” and it was held that the official certificate of the secretary was evidence of the title papers, the originals of which were, as. indicated, kept in the public archives; and in the last, or Acosta case where it does not appear that there was the usual direction in the decree for the delivery of a copy, and where the originals could not be found in the archives, a copy of the petition and decree with the usual certificate from the secretary, dated June-24th, 1816, was received in evidence in the lower court-after hearing testimony as to the manner in which muniments of title were kept in the archives at St. Augustine; and this action was affirmed on the authority of the Wiggins case. What we have said above of the Percheman decision is also true of the subsequently mentioned cases; yet that of Wiggins expressly indicates that there was another class of cases, namely, where a royal title was ordered to be issued; and that in such class the decree was transferred to the escribano’s office. What was done with the decree in the escribano’s office is not stated, yet the only reasonable inference, in the absence of further light on the subject, is that it remained there, as it certainly can not be inferred that they were not to remain there.

Bat these decisions do not throw any light upon the nature or disposition of the “Royal title” which, it must be assumed, followed, when issued, the decree or cession and survey thereunder. We are referred by counsel for appellee to authorities which will now be considered. The first is a report made by the same Pintado as Surveyor-General at Havana on September 9th, 1822, as to evidence to be found there of donations of lands in West Florida, he having been Surveyor-General of that province from about the year 1805, and previously deputy in the same since May, 1796, (2 Cal. L. L., 888 et seq.); which report seems to have been required by the Spanish authorities to the end of the “acknowledgment by the United States” of such donations. Of such donations it is here said, inter alia, that Ramirez, (who as Intendant from 1798, up to September, 1812, saving a period of about one year in 1504 and 1805, had the exclusive power to dispose of land in West Florida), declared on November 17th, 1817, after certain interruptions of this power, that he only had power to grant lands in the Floridas, and that “the records of the lands conceded, and of those asked for, were sent him from the reception of said advice and declaration, for the knowledge and approbation of said authority, and are probably to be found in the secretary, except those which may have been returned to the parties with the decrees they had petitioned for. The books in which were registered the formal titles, which had been dispatched by order of the same superintendent, and the original records which took place in order to obtain them of the concessions which his lordship made directly in both Floridas, and of these which he confirmed and ratified in the years 1817 and 1818, until he was apprised of the negotiations, about the cession of said province, are likewise to be' found in said ofiice, and of all of them I have taken note in my ofiice. ’ ’ Ramirez was the ‘ ‘superintendent’ ’ and ‘ ‘lordship’ ’ referred to. Again in the report of the Land Commissioners for West Florida, to the Secretary of the Treasury, dated November 12th, 1824, it is said: ‘Tt was the practice where a grant was made, to deposit, the original in the ofiice of finances, to be recorded; and the claimant was given a certified copy. These records were not permitted to remain in this province, but were-all removed to Havana several years since. Others were destroyed by the pirates, as is in proof before us, on their passage to that place. Some obtained possession of the originals, but others did not; and, the above causes combined, are alleged • by the claimants-as a reason to account for the absence of original title-papers. Where the ofiice of alcade has contained any important document connected with the claims, we have had it submitted to our inspection, or obtained certified extracts therefrom; but, except as to the mesne conveyances, we regret to say that we have been enabled to procure very little information from that quarter, as it was not the ofiice in which originals were recorded.” 4 Am. State Papers, 104. And besides, ten or more special cases in which it is claimed that the record of the proceedings of these Commissioners shows the originals to have been presented to the Commissioners, are cited by appellee. One of these is the Maria Garzón grant, claimed by Joseph Bonifay. 4 Am. State Papers, 99. The report says that this claim was founded on “a copy of a plat and certificate of survey by Pintado, Surveyor-General, dated Havana, May 7th, 1818, stating” that the former had petitioned in February, 1817, for the land described, and the proceedings taken thereon; also “an original grant or title in form made to Maria Garzón by the intendant, Alexander Ramirez, countersigned by' Pedro Carambot, Secretary of War, dated 16th of May, 1818, stating * * with the annexed authenticated copy of the proceedings instituted before Governor Masot in the year 1817 * * ;” also a copy of a mesne conveyance from Maria Garzón to Bonifay; and that in addition to the foregoing papers Bonifay proved by parol testimony “the signatures of the Spanish officers annexed to the grant.” The report of the Commissioners, which submits the claim to' the judgment of Congress, states that the former were “somewhat at a loss for an opinion,” and also uses this language: ‘ ‘The certified copy of a plat and certificate of the former Surveyor-General of West Florida, as well as the the grant of the intendant upon which this claim depends, are dated subsequent to 24th January, 1818. These officers in regard to Florida no longer existed.; Pintado and Ramirez were irresponsible persons; and the former presents us with a copy when we are entitled to the original under the solemn stipulations of the treaty between Spain and the United States. How far such documents are admissible must be decided by Congress.” Others of these claims, as shown by the report, are: Bonal’s, where an original grant or title inform by Masot,Governor and Sub-delegate,dated October 1st, 1817, under the seal of office and countersigned by two “assistant witnesses,” and an original grant or title in form by Ramirez, Intendant-General, and countersigned by Pedro Carambot, Secretary of War, dated May 2nd, 1818, Pablo Palmes proving the “signature of the intendant, escribano and subscribing witnesses;” Mesa’s concession, Grandpre’s and Sierra’s claims being, the first and original decree of concession by Morales, Intendant-General, countersigned by two witnesses, and dated May 21st, 1812, the authenticity of the title papers being-proved by parol testimony, and the second, Grandpre’s claim, including an original grant or title in form to him by Morales, countersigned by F. G. Arroyo, and dated March 24th, 1812, the signatures of the officers annexed to the grant being proved by parol testimony, and that of Sierra including an original grant by Morales to Cadet of March 24th, 1812, the signatures of the Spanish officers being likewise proved. An original grant to Orsino Bouligny, made May 2nd, 1811, by Morales, and countersigned by Arroyo, an original decree of concession of April 16th, 1804, by Governor Folch to Martin de Madrid, an original grant or title in form. December 6th, 1817, to Hinard by Governor Masot, countersigned by two witnesses, an original grant of May 9th, 1810, by Morales to Aleck, and countersigned by Arroyo, Secretary, and an original grant or title in form of April 14th, 1810, from same source to De Vegas, and the original grant of November 26th, 1811, from the same source, are shown in the other cases referred to here have been presented to the Commissioners, and the signatures of the Spanish officers proved by parol. 4 Am. State Papers, pp. 123, 124. 126, 129, 132. Appellee also refers to Mr. White’s California Land Laws, vol. 2, pp. 353, 354, where the decree of concession of January 10th, 1818, to Jno. Forbes &Co. uses the expression: “And the Commandant of the said city of Pensacola, in virtue of this resolution shall put them in quiet and peaceable possession of the aforesaid land; for which object his excellency orders to give to the said house of Forbes all- the ■documents necessary—-registering the original in the archives,” and where it also appears that Forbes & Co. having in July, 1819, at Havana, requested that Pintado, the surveyor, should draw a plat of the land, he, Pintado, on October 31st, 1823, at Havana, under an order of July, 1819, so directing, certified or reported that having accepted to form a topograghical plan of the land according to the data which he had, and not by actual measure, he accomphished it on the 15th of September of the said year, “annexing the ■graphic description or plat which I return in original to the person as it has been asked and ordered. After having taken due notice of it I despatched the plat under No. 1869, and I registered it with the same number which belonged to it in the series on the 17th of the •said September * *.” The case of United States vs. Arredondo, 6 Peters, 691, is also referred to in this ■connection. There the original title was held and offered in evidence by the grantee apd was received without objection as to its authenticity, or custody, or ■on the score of a certified copy being the proper evidence of title. There, as here, the title recites the concession and the order for survey and the presentation ■of the figurative plans by the Surveyor-General, and finally there follow the final words of the grant, stating that a copy of the plat or figu rative plan would be annexed to the title; Arredendo’s title being signed by Ramirez and countersigned by Peter Oarambot, the secretary, the execution of it taking place at Havana, December 22nd, 1817, and also being endorsed on the same day by Carambot as follows: “An account of the preceding title has been taken, and registered in the book prepared for that purpose in the secretary’s office under my charge.” We also find in the above mentioned report of the West. Florida Land Commissioners, -4 Am. State Papers, 84, the statement that “grants for land sold and those made gratuitously were required to be recorded in the-office of finances.” Again, in the general regulations for conceding lands in the provinces of Louisiana and West Florida, issued by the intendant, Morales, July 17th, 1799, to whose office the exclusive power of granting lands had been granted by royal decree made at Santa Lorenzo, October 22nd, 1798, the procedure to. be followed in granting lands had been prescribed, the 15th, 16th and 17th articles providing in effect as follows: All concessions were to be in the name of the King, by the Gfeneral Intendant of the Province, who should also order the Surveyor-Gfeneral or one named by him, to make the survey of the land asked for; the-survey to be done in the presence of the commandant, or syndic of the district and of two neighbors, and “these four shall sign the, proces verbal which shall be drawn up by the surveyor,” which proces verbal, with a certified copy of the same were to be “sent” to the intendant by the Surveyor to the end that on the original there be delivered, by the consent of the King’s, attorney, the necessary title paper, to which title paper such certified copy was to be annexed. The original proces verbal was to be deposited in the office of the Secretary of the Treasury, and care was to be taken to make annually a book of all which have been ‘ ‘sent’ ’ with an alphabetical list, to the end that at all times and against all accidents, the documents which should be wanted might be found. The surveyor was to have another book, mentioned, in which the procesverbal should be recorded; and both on the original deposited and on the copy annexed to the title he was. to note the folio of the book in which he “had registered the figurative plat of the survey.” In the office of the finances there was also to be kept books in which the titles of concession were to be recorded, and in these books also, mention was to be made of the-folio of the book in which they, the titles, “are transcribed;” or, in other words, as we understand, these-books were to be indexed. There was also to be taken-in the chamber of accounts of the army and finances,, note of such titles, “under the penalty of being void,” a which was to have a like book, and at the time of taking the note was to cite the folio of the book where the title was recorded. The 18th article states, in effect, that a great number of persons erroneously thought themselves to be owners of land, or invested with the title, by the mere order for survey and possession, or by such order and survey, and had neglected to apply for the title, and that the continuation of like abuses for a longer time would augment the-confusion and disorder necessarily to result; and then declares that those who have obtained such decrees, can not, notwithstanding that in virtue of them the-survey has taken place, and they have been put in possession, be regarded as owners of land until their “real titles are delivered completed with all the formalities before recited.” White’s Spanish Law (called also White’s Compilation), 208 et seq.; 2 California Land Laws, 234-44.

Notwithstanding the above statement of the Land Commisioners that it was ‘ ‘the practice where a grant was made to deposit the original in the office of finance-to be recorded, and the claimant was given a certified ■copy,” we do not think it can be said that an original title in form in possession of the grantee or a claimant was not legal evidence of title. Their report shows the fact to be that in numerous cases the original had not been kept in such office, nor did they make the presence of such original in the hands of the grantee •or claimant a ground for rejecting the claim. There is much in the quotations and citations we have given to suggest, and sustain the idea, that when a title inform was made that it was, after being registered and recorded, delivered to the grantee. Granting that the practice of making the decree or order making the grant—or, as it was technically called, the concession —and the survey, the means of investing title, a certified copy thereof proof of the same, was never prohibited in East Florida, as it was in West Florida at least for a time under the Intendancy of Morales, still there is evidence that the other practice of using a title in form was in vogue there; and when we see, as we do in Arredondo’s case, that such a formal title held by the original grantee is presented in a cause of immense moment for those days, and is received in evidence without •objection based on the fact of such possession, and further see that there were many cases of similar possession in West Florida, and find no specific regulation or law which interdicted such possession, we are not justified in presuming that the possession of - titles in form was unlawful. Again it cannot be denied that the mode of procedure in making title to land was in fact the subject of regulation by the Intendant, Morales, and there is no law presented that indicates that the power was not incident to the office; and in the absence of such law we may presume in favor of the power. There is, moreover, in view of the evidence of the possession by grantees of such original royal titles to lands in West Florida, not sufficient evidence to justify us in concluding that the regulations, of Morales were ever entirely superseded in that, province, or that Ramirez was not acting on them in executing this title to Pintado, nor do we feel justified to say that he as Intendant was without authority to use the form adopted, in the absence of formal regulations to that end. The language of such titles seems, to us to imply that it was intended that they should, be delivered to the grantees, and the presumption is. that the act of the officers in delivering was lawful and regular. Winn vs. Cole’s Heirs, Walker’s (Miss.) Reports, 119; Arredondo vs. United States, 6 Peters, 691; United States vs. Clarke, 8 Peters, 436; United States vs. Peralta, 19 Howard, 343; Trenier vs. Stewart, 55 Fla., 458; s. c., 101 U. S. 797. Vide Menard vs Massey, 8 Howard, 293, 314 et seq., for form of title under Regulations of Morales. That this is the presumption, will more fully appear hereafter in another part of this, opinion.

II. The next point to be discussed arises on the objection to the several ancient papers described in the statement, and found by Knowles in the same old trunk in which he found the formal title. The objection urged to the introduction of each is its irrelevancy, or not referring to or having any relation to the property described in the grant. This objection is untenable in so far as it relates to four of the petitions to the Land Commissioners for confirmation, or (2) to the letters of August 18th, 1821, June 28th, 1822, and March 9th, 1822, from Pintado to Mr. John de la Rua, or (3) to the open account of the Secretary of the Commissioners, for recording claims, or to the printed notice of the foreclosure suit, or to that signed alone by the same marshal and apparently relating to sales •of lands under a ft. fa. in favor of Henry Michelet. The petitions to the Commissioners, except that relating to the grant of November 8th, 1816, and that as to the six lots, relate obviously to lands covered by this grant and hence to the grant as an' evidence of title. ‘This fact and the reference in the first of the three letters to the 19 arpents on the Aguada, as well as other features of the communication, including that of the promise of the wharf site at the foot of a street in Pen•sacola; the reference in the second letter to Pintado’s original titles and to the payment of the costs of proceedings before the Land Commissioners,'and in the third to Pintado’s original titles; the item as to Pintado’s claims in the open account of the Secretary of such Commissioners for recording claims, which claims must, from the nature of the office of the Commissioners, be held to be claims for lands; the mention, in the notice of the Michelet foreclosure suit, of properties included in the title offered; the mention in the paper signed “William Sebree, Marshal,” and dated January 4th, 1827, of property which is evidently the same as ■ some of that described in the title papers offered, naturally, if not necessarily, produce the conviction that these several papers refer to more or less of the land ■covered by the title offered in evidence, and in view of the fact that the purpose for which they are offered is ■auxilliary to the admission of such title, they must be held to relate not merely “to property described in the grant,” but to that document as evidence of the grant of the water front, and in our judgment there was, as against the objection presented, no error in the ruling. Whether there was error in admitting the rest of such papers in evidence, we do not decide. It is rendered •at least unnecessary to do so by the conclusion we will -be found to reach as to the validity of the grant.

III. A careful consideration of the grounds of the ■objections made to the introduction of the title, as well as those made to the admission of the alleged ancient papers, will lead to the conclusion that the authenticity of the alleged title is not questioned by such objections. The record does not disclose that proof of the signatures of the officers who signed and countersigned it was called for by the defendants. The same ■also is true as to the signatures borne by other of the papers referred to above. It is true that the plaintiff ■seems to have assumed on the trial that the title from Ramirez was an ancient document, and entered upon the task of showing by parol proof the custody from which it was obtained. There are two witnesses on this point, Peter Knowles and P. E. de la Rua. The substance of the testimony of Mr. Knowles is that he found it in an old round top trunk whose top was broken in, which he obtained in the year 1859 or 1860 from P. E. de la Rua, on applying to him for his father’s papers, John de la Rua being such father, and quite a number of other papers being in the trunk with the grant, some of which being those considered above; and Knowles having had the custody of the papers ever since obtaining the trunk. Knowles was interested in the property described in the grant, when he obtained the trunk and at the time of testifying. The substance of Mr. de la Rua’s testimony is. that his father, John de la Rua, died in 1832; his wife, witness’ mother,, becoming his executor, and she died in 1843, and witness and another became her executors; and the father’s papers, on his death, came into the mother’s hands, and after her death, into the hands of witness and his co-executor. That the papers in the trunk were a lot of old papers belonging his father’s estate. Witness never examined them very particularly, and could not tell what the trunk contained, except papers belonging to his father’s estate, and papers and title grants belonging to the estates of others, for many of whom his father was agent in his lifetime. Witness did not at the time of testifying have the-trunk, and did not know whether he would recognize any of the papers in the trunk, but knows they were-his father’s papers, yet not that all of his father’s papers were there. Witness was quite young “at the-time,” and did not consider the papers of any value. That he had no positive recollection of giving the trunk to Knowles. Knowles applied to him for the trunk, before the war, but he could not recollect giving it to him, but said he must have, as otherwise Knowles, could not have got it. He did not recollect that any one applied to him for the Pintado grant, or for anything connected with it. He did not know Pintado,, who, though, witness was an old man, was before his time. However deficient this testimony might be, in the face of an objection that it was not sufficient to do-away with the necessity of proof of execution, and that therefore the title, its execution not having been, proved, should not be read in evidence, it was in fact-treated by the defendants as sufficient to the end indicated, or its insufficiency was waived by urging objections to another character of the title paper. In the-absence of proper objections in the lower court, the point can not be entertained here, and for the patent reason that had it been made in that court and sustained, the plaintiff might have cured the defect by other testimony. Coker and Scheiffer vs. Hayes, 16 Fla., 368; Willingham vs. State, 21 Fla., 760; Tuten vs. Gazen, 18 Fla., 751; Jenkins vs. Merritt, 17 Fla., 304; Logan vs. Slade & Etheredge, 28 Fla., 699, 10 South. Rep., 25; Summer vs. Mitchell, 29 Fla., 179, 10 South. Rep., 562; McSwain vs. Howell, 29 Fla., 248, 10 South. Rep., 588. The failure to object to the introduction of the title on the ground stated, was a waiver of any insufficiency in the testimony to excuse proof of its execution; and likewise the restriction of the objection to the other papers to irrelevancy was a waiver of all. other possible objections to their being admitted.

There having been no ruling upon the separate objections shown, by the bill of exceptions and preceding statement, to have been made to the admission in evidence of the power of attorney from Pintado to John, de la Rua, and the translation thereof, and the record failing to show that a ruling was insisted on, or a refusal to rule, the objections must be deemed to have been abandoned. Jenkins vs. Merritt, 17 Fla., 304; Ortiz vs. State, 30 Fla., 256, 11 South. Rep., 611.

The result of what has been said in this and the preceding subdivision of the opinion is that the alleged title from Ramirez to Pintado is before us for consideration. The effect upon the verdict and judgment of the error pointed out above in admitting certain of the ancient papers will be considered hereafter.

IY. It is urged by counsel for appellants that neither Ramirez, acting in the capacities indicated by the title-paper, nor even the King of Spain, had the right, to make the grant. The solution of this proposition; involves the necessity of ascertaining the meaning and purpose of the grant, for until we determine what was intended to be done, or was the effect of the paper, assuming it to be authoritative, we cannot decide upon the question of the power of the officer to do what-it imports. In the Report of the West Florida Land Commissioners, of January 20th, 1835 (4 Am. State-Papers, 119), it is said that the space described “in-■eludes almost the whole of the shoal water, etc., in the • hay immediately contiguous to the city of Pensacola,. ; and extending, about two miles, from the mouth of .Bayou Chico to that of Bayou Texar.” The map s shows that the space covered not only the entire front < of the city, but also reached beyond, east and west, to • the months of the .bayous named, and extended out- ■ ward southerly from the shore, 95 perches of Paris at 'the former bayou, and 100 at the latter; the exterior ¡•or south boundary, being of rectilinear lines conforming to the general trend of the shore, but not pretending to respond to all of its curves. A perch of Paris .islSfeet. Webster’s Dictionary ((xoodrich’s Edition): .'Ae.pe.nt. It is apparent that the grant in question, •unlike that of the other five grants included within ■the title, is not an ordinary grant of land including .private waters. The Civil law of Spain after dividing things into those of divine right, and those of human right, subdivides the former into things sacred and religious, and the Latter, or things human, into things common, things public, things of a corporation or a university,, and things private. Sacred things were those established for the service of Grod, and, as the consequence of such establishment, the dominion of them was not in man, and they could not be counted property. Burial places were religions. Religion was deemed to occupy churches and cemeteries upon their consecration, and could not be separated from them at any time. Turning to things human, we find things common to have been those which belonged to birds, beasts -and to all living creatures, as being able to make use of them, as well as to men; such were the air, the water from heaven, the sea and its shore. By the shore of the ■ sea was understood the part of it covered by water, whether in Winter or Summer. Any one might navigate -on the sea, and on its shore, where also he might build a cottage or house for shelter. Things public are those which belong only to mankind. Rivers, ports, harbors and highroads were among things public. Not ■only might the natives or inhabitants,, of a place make use of things public, but also strangers could do so. .No new mill, nor any other thing could be built on the part of the river by which its navigation might be impeded; and any old building obstructing the common use of things public could be destroyed or pulled •down; neither could any building or thing be erected by which the common use of high roads, squares or market places, threshing grounds for ■ corn, churches, •etc., would be obstructed. Things belonging to a corporation or a university were those belonging exclusively to the inhabitants of any city, town or castle, or ■any other place where men reside; and of these things some might be used by any inhabitant of that city, town or place; and others were for the particular use of the corporation, it being its duty to apply the fruits, produce or rents to the common benefit of the city or town. Fountains or springs, places for holding markets and fairs, and places for the meetings of the cor- ■ poration, sandy beaches or grounds on the banks of rivers, and commons or pasture ground belonged to the former class, and were for the use of any inhabitant; and flocks, fields and vineyards, also plant ations and lands producing fruit and rent were of the latter class. White’s Spanish Law, 61-68; California Land Laws (by White), Vol. 1, pp. 70-72; Partidas, Part III, Title 28, Law 1-10; Domat’s Civil Law, Title III, Section I, Articles 1, 2; Gould on Waters, Sections 3, 30, 168 note. Private things were those which belonged in particular to every individual, and of which he might acquire or lose the dominion. 1 Cal. L. L., 84. Things were divided into those which were corporeal and those which were incorporeal; the former being those which may be seen and touched, and they being either movable or immovable; and movables being those which can move naturally by themselves, or be-moved by man, and immovables being those which can neither move naturally themselves, nor be moved by men. Incorporeal things are those which can neither be seen nor touched, and of this kind are all species of rights of which the Spanish jurisprudence taught. A right was either in the thing or to the thing; a right in the thing was that which belonged to one over anything without respect to another person; a right to a thing was that which belongs to any one as against another person to oblige him to-give or to do something. Of the first kind are rights of dominion, of inheritance, services, and pledge and mortgage; possession as it is a momentaneous ’ right, and is lost by the loss of the-thing is not a right in the thing. Of the second kind were all species of obligations which arise from contract. Ibid. Again it is said in Domat’s Civil Law, Section 3, Article 1, that the heaven, the stars, the-light, the air and the sea, are all of them things belonging so much in common to the whole society of mankind that no one person can make himself master of them, nor deprive others of thé use of them; and the next article is to the effect that rivers, the banks of rivers, and highways are things public, the use of which is common to all particular persons, according-to the respective laws of countries, and these kinds of things do not appertain to any particular person, nor-do they enter into commerce; but it is the sovereign that regulates the use of them. The same author, in the next article, reckons among the number of public things and of such as are out of commerce those which. "belong in common to the inhabitants of a town or other place, and to which particular persons can have no right of property, instancing the walls and ditches of •a town, townhouses and public market places. In Angelí on Tidewaters, 18-20, after quoting from Justinian, to the effect that by natural right the air, running water and the sea, and hence the shores of the sea, are common to all, and nobody is therefore prohibited to come to the seashore, and that all rivers and ports are public, so that the right of fishing in a port and in rivers is common to all, and that by the law of nature the use of shore is also public, and in the same manner ■as the sea itself, it is said that it clearly appears from this passage of the civil law, that the waters of the sea and the shores of the same are subject to be used in common by people generally, every person being equally entitled to the benefits to be derived from fishing, drawing and drying nets and navigation; and it is also said: They were expressly denominated by the Roman jurists, res communes, and considered as res ■omnium, in respect to their use and benefit, but in respect to property as res nullius. * * By the ■common law, the waters of the sea and the shores of the same are as much subject to public use as they are by the civil law, but the essential difference between the two is in the above stated doctrine of the civilians, that such waters are the property of no one; but the policy of the common law, on the contrary, was to assign to everything capable of occupancy and susceptible of ■ownership a legal and certain proprietor, and accordingly it makes those things which from their nature can not be exclusively occupied and enjoyed, the property of the sovereign.

We of course take judicial notice of the laws which •obtained in or were applicable to the province of West Florida before we acquired it. United States vs. Turner, 11 How., 668; United States vs. Perot, 98 U. S., 430; Farmer vs. Eslava, 11 Ala., 1041; 22 Am. & Eng. Enc. of Law, 843, note 4, and 874-5.

Assuming, for the present, that Ramirez had the-power to grant whatever estate the terms of the waterfront grant can be construed to create or convey, it is. entirely certain that it does not relate to a thing that it was the policy of the civil law, so long as that thing should remain in its natural state, should be held in severalty by any one person or set of persons. It is a kind of thing, or, assuming that the King, or Ramirez as his representative, had the power to grant to an individual a separate and exclusive interest in it,, it is a subject of property, as to which all citizens,, if not also strangers, had very material interests. There are in the nature of the thing special.reasons why the ordinary rule, of strict construction of government grants, shordd be applied to any grant of it. State vs. Black River Phosphate Co., 32 Fla., 82, 13, South. Rep., 640; Commonwealth vs. City of Roxbury, 9 Gray, 465. The rule of strict construction against the grantee is applicable to Spanish grants. 22 Am. & Eng. Enc. of Law, 843, citing Joseph vs. United States, 1 Ct. of Cl., 197. The most liberal construction that could be placed on this grant would be that it vested Pintado, and his heirs, or assigns, with full and absolute ownership of the land from the high-water mark on the shore between the two bayous out into the bay for the distance indicated in the title, and explained above, and with the water which might at any or all times cover the same; the depth to which the grant of the soil was intended to extend being, however, only ten feet from the bottom of the water; the superficial contents of the water surface being. 718£ arpents. The words: “Marea alfa en tempo sereno,” appearing along the shore-tracing of the survey, indicate that the grant was intended to extend to ordinary high water mark. This construction would also secure to the owner the absolute control of the land and water with power to exclude at all times any and all persons from the same, and to use it for all such purposes as might be agreeable to the owner. To. our minds such a construction is altogether untenable:,. It cannot be assumed that even a known willingness,, desire or purpose of the Spanish sovereign to dispose' of the province to our government made the King, or-his representatives, regardless of the welfare of his. western subjects. It is true that there had b°en for some years prior to February 22nd, 1819, the date of. the treaty, a manifestation at Madrid of a wish on our • part to acquire the Floridas (Curry’s Constitutional* Grovernment of Spain, Appendix D.), and it is further • true that the reason why all grants made on or after • January 24th, 1818, by the Spanish authorities were-declared null and void by the treaty, was that it was. on that day that the first proposal was made by Spain, to the United States for the cession; and subsequent-grants might justly have been regarded with suspicion,, particularly in view of the extensive donations, including almost all unceded lands, made to the Duke of Allegon, the Count of Punonrestro, and to Don Pedrode Vargas, the first and second having been made on February 6th, 1818, and the other on April 9th of the-same year; which date of January 24th, 1818, the-King in his ratification of the treaty on October 24th,. 1820, expressly declared was fixed in the positive understanding that the three grants were annulled by the-' tenor of the treaty. The fact, however, that the treaty-fixed a time terminating the power of the Spanish-authorities to make valid grants, is a recognition of a prima facie validity of all prior grants, which recognition concedes pro tanto the good purposes of that government as to the welfare of the inhabitants of the province. Construing the grant as vesting in the grantee the extensive rights indicated above, the result would have been that the population of Pensacola, and •of the lands east and west to the bayous, would have ■been deprived of the right of using for any purpose, ■or even entering upon the water within the described limits of the grant; they would have been entirely cut off from access to the sea over or through the stated space without the consent of Pintado and those who might hold under him. The commercial future of .Pensacola, and all the interests of the province and of the parent government dependent upon or incidental to the maintenance and development of that town’s maritime commerce would have been dependent upon the will of Pintado and his successors in title, in so far ■ as access from the sea to Pensacola, or to the territory ■between the two bayous was concerned. Surely a construction entailing such consequences will never be :given to a public grant in the absence of conclusive .proof of an intention that they shall result; such proof must be manifest by terms expressly stating or neces- ■ sarily implying the intention. In the absence of such manifestation the proof must be held not to exist. 'The purposes of any grant are to be ascertained from •the terms used, considering them with reference to the • subject-matter of the grant. The subject-matter of this grant can not be regarded as merely so much land •and water, as in the case of a part of the public domain belonging to the King, and held for the purposes ■of sale in severalty; but it must be considered as land ¿and water subject to the public uses which the law obtaining at the time of the grant attached to the same. These uses were as material elements of the subject of the grant as were the soil and water—in fact much more so—and to separate the land and water from the uses with which they were charged, is to change entirely the nature of the subject as to Avhich the grant speaks, and the official authority was acting. It must not be forgotten either that the Spanish authorities were fully apprised of such law and uses, or that they acted with reference to them when making the same. Moreover, no further encroachment upon the rights of the public in the land and water, and their ordinary use of the same can be held to have been intended by the government than the words of the grant, considered with reference to its subject-matter, expressly make or necessarily imply. Keeping in mind the fact that the uses of the shore between high and low water mark and of the water and of the ground under water in so far as the ground was necessary to the, use of the water, we can not reasonably impute to the Spanish authorities a purpose to impair those uses, or in any wise injure the public in their rights, unless such purpose is clearly shown by the words of the grant; on the contrary, in the absence of such showing made in express words or by clear intendment, we must hold that the purpose of the government was to promote the public interests and render the property more available to the uses and ends for which it was intended and held by the public. It is unquestionable that the interests of the people of Pensacola, and of the province of West Florida, and of the entire Spanish government, and even of the strangers of any and all friendly nations who might come to Pensacola, were that the water front covered by this grant, should he maintained in that condition which would best contribute to the maritime commerce of the port. Grand, and beneficent as is the gift which Providence has bestowed upon Florida in this noble harbor where the-, freighted navies of the world now come and go, deep as is its. channel, and ample and secure as is its haven, still there was need for human effort to render it more adaptable to commerce; the land sloped from its bordoers gradually to its channel, and the pages of the appeal transcript now before us, describe, in the language of aged citizens, the time in the early days of the present century when merchandise of other ports was transferred from the ship, whose draft constrained her to the channel, to the flat or small craft, and brought by the latter to the shore, or at least so near that drays- or other vehicles could be driven in the water and receive and convey the goods and wares to their consignees in the town. The necessity for the removal of this obstacle to commerce, one usually incident to harbors in their natural state, must have suggested itself to every intelligent citizen who was appreciative of the needs of the community. Wharves are now, as they were in the year 1817 when this grant was made, the ordinary means of overcoming the obstacle to navigation and commerce presented by the shoaler waters intervening between the shore and the channel of navigable waters. Their construction is for the benefit of the chief interest of the public in navigable waters. Their effect is the advancement of the public welfare in so far as that welfare is dependent upon the right of the public to use navigable waters. In construing-this grant we must ascertain whether it is one which shows simply an intention to authorize the doing of' only that which would naturally promote the public welfare and was necessary to the best uses of the-waters of the bay, or whether there is also in the grant evidence of an intention to give to Pintado rights which were a serious infringement of those of the public, and would entitle him to impair materially the interests and privileges of the citizen, and even the friendly stranger. In our judgment a fair consideration of the grant restrains us beyond doubt to the former conclusion, and excludes the latter.

It is apparent from the title that on December 7th, 1817, prior to the date of the first of the papers constituting this title, there had been a' concession of six lots of which the numbers are given, and of another lot of 204 feet and two inches front on the plaza called Seville, all in Pensacola, such concession directing "the immediate delivery of the titles for the same, which titles it seems were “dispatched” to Pintado on the 10th of the month; and that at the time the grant was made of the city property aforesaid there was a concession of 10,000 arpents of the royal lands of whieh plans were to be presented by Pintado, or, • in other words, a simple grant in quantity, the titles for the latter to be made immediately upon Pintado’s presenting the plans of the lands he should select to constitute the 10,000 arpents with a description of the same, which he was to do under his responsibility in that respect as Surveyor-General of the province. There is no evidence that there was any previous description or identification of the land which was to constitute the ten thousand arpents. The six' plans accompanying the stated first paper, of which plans copies were subsequently annexed to the title, represent the outlines of the locations made by Pintado of the stated concession in quantity; and after stating that the “aforesaid 10,000 arpents superficial are contained in six different tracts of land and water conforming t® the six plans which in duplicate accompany the sa mq whose situations, lines, boundaries natural and artificial, extensions .and area of each terminus are as follows,” that paper describes the several tracts represented by the plans A and B, and reaching the plan C, speaks of that which it represents as “an extension or space of the Bay of Pensacola, whose superfices of water is equal to an area of 718£ arpents superficial between” the 95-perch western boundary line at Bayou Chico and the 100-perch eastern boundary line at Bayou Texar, each of such lines running into the water in a southeast direction,, the plan representing the figure which the said lands forms in the water and the limits within the bay of Pensacola, “being those of the part of land and shore which makes between the said two points of the mouths of the two mentioned creeks, the curve which makes the edge of the water of the sea at the highest tide in calm weather, and with the depth from the surface of the water of the sea as far as ten feet English below the actual bottom, or toward the centre of the earth, in the whole, the space which the figure represented in said plan C embraces, considering it as a solid, since it has the three dimensions of longitude, latitude and depth.” It can not be reasonably claimed for this that it is anything more than a designation of the land and water included between the east and west boundaries and the adjoining-high tide line as a northerly boundary, and the southerly boundary line drawn, in the manner indicated by the plan, from the southern extremities of the eastern and western boundaries, such description including, however, no land below the depth of ten feet from the bottom or line of contact of water and earth. From this space there is then excepted that part of it then occupied by the wharf of Forbes & Co., which it says Jshey have been in possession of many years, and also the lot referred to above as fronting on the Plaza, and further described as having “a depth as far as the sea and prolongation within the bay as far as the extreme of the place or bank of sand.” The paper departing from the course pursued by it in its description of what is represented by the other five plans, does not stop with this mere description by boundaries and quantity, but continuing it says: “The whole in full property and for the purpose of constructing wharves and houses for bathing, reserving and saving not only the right of His Majesty, but also that of the public whenever it becomes convenient and it be designed to construct wharves with whatever funds, municipal or common, intending the exclusion only with respect to particular individuals.” That this paper of December 12th, 1817, was presented to Ramirez, and that the title of December 17th, 1817, whieh with the former and the plans constitute the entire document now before us, was executed by him with reference to it, is apparent from the statement of the paper of the latter date that “with the date of the 12th instant he,” meaning Pintado, “presented in duplicate the figurative plans of the 10,000 arpents superficial of land and water designated in six different portions, whose situations, lines, boundaries and confines natural and artificial extensions, and area of each explain themselves after the manner follow- > ing.” Reaching the property in question it says: “The lands designated by the letter C are an extension or tract of the Bay of Pensacola whose superficies of water is equal to an area of 718£ arpents superficial,” and then follows a description, the same in substance as that in the paper transmitting thé six plans, with the stated exceptions as to the Plaza lot and the Forbes & Company wharf, both of which excepted portions are stated in both, papers to be represented, as they in fact are, on the said plan 0, and afterwards are the words: “The whole in full property,” etc., the only difference between their appearance here and the other paper being that here they are introduced as a distinct sentence, instead of as a part of another sentence, and have the words “at all times” between the words “public” and “whenever.” Having set forth the six descriptions, Ramirez, professing to act under the power given him by the King, and in his royal name, uses the following language in the granting part of the title: “I grant, * * gratuitously,” to Pintado “the 10,000 superficial arpents of land and water contained and marked in the six figurative plans which, in duplicate, he presented, and, under the lines; termini and confines natural and artificial, which in them are denominated and set forth; and I transfer to him absolute dominion, for that as his own, he may hold to his own use, enjoy or alienate them at his own pleasure without jjrejudice to a third, who holds a better right, nor of the sovereign privileges according to what is provided in the annexed decree and the clauses expressed.” The paper of the 12th of December, 1817, was a description by Pintado of what he had selected under the concession and desired a formal title for. Had his purpose been to seek an absolute' title to the space or body of land and water described by him and outlined by the plan 0, he would as in the description of the tracts of land delineated by the other plans, have stopped upon giving the location and boundary lines, dimensions and quantity; but instead of doing this he proceeds to state the interest and estate which he desired in the locus described. He wishes the whole space . described “in full property,” not for all purposes, but in full property, “and for the purpose of -constructing wharves and houses for bathing.” The use of the word^ “in full property,” unaccompanied with others, after the preceding description of the 718£ arpents of land and water, would have been a frank exhibition by Pintado of a palpable purpose to ■exclude the public from all their rights in the space described, but the subsequent words show the sole purposes to which he desired to be permitted to appropriate or use the stated space. The word ‘‘and” can not be held to overcome the effect which the subsequent words quoted would have without it. Pausing even here, it must be conceded that Pintado declares that he desires the property for a purpose ■consistent with and promotive of the public interest in, and uses of, the space described, and not for purposes antagonistic to those interests. The remaining words: “reserving and saving not only the right of His Majesty, but also that of the public, whenever it becomes convenient and it be designed to construct wharves with whatever funds municipal or common, intending exclusion alone with respect to individuals,” manifests the further purpose that it was not his wish that the grant to him of the stated space for the purpose of building wharves and bath houses should be understood and intended or should have the effect to impair the right of His Majesty, or even of the public to build wharves whenever it should become convenient and be designed to do so with either municipal or common funds, but that ■only private individuals should be excluded from building wharves in the described limits. Viewing these words in the light of the known rights and privileges of the public in the shore and the water, rights of which both Pintado and Ramirez must be regarded to have been cognizant, it is not reasonable to hold that Pintado sought any exclusive privileges within, the described limits than that of building wharves and bath houses, and, as to the former, neither His Majesty, nor the public acting as a municipal or other body politic, was to be excluded, but only individuals. The substantial privilege and sole property right sought was that of building wharves and bath houses within the the space described, and this privilege was to be exclusive as against individuals, but not as to His Majesty, or any organized body politic as to wharves. The “exclusion,” to which it was desired that individuals should be subject was an exclusion from that, which Pintado was seeking the right to do, viz: to use the stated space for building wharves and bath houses, and from this right in so far as it included wharves he expressly disclaims any intent to exclude the King or the organized public. He was not seeking to use the space in any other manner than by building the stated structures, or claiming any privilege of excluding individuals from that space except in so far as the actual construction of wharves, and warehouses, or, in other words, such erections as constructed or the act of constructing them might do it.

There is in the grant of December 17th nothing to justify the conclusion that any greater right was intended to be given than we have found, from the other paper, it was the purpose of Pintado to request. The purpose of the government to grant no more, becomes apparent when we read the two papers, or even only the formal grant, in the light of the rule referred to above as governing the construction of public grants. The words of the granting part of the formal title do not show any contrary intent; they are general and were intended to vest, to the extent they indicate, the several properties represented by the plans and the descriptions of the same; and the property or subject of ownership represented by plan 0 and the descriptive-words relating thereto to be found in the two papers is. not the land and water within the stated limits, but it is the right to use the same for the purpose of constructing wharves and houses for bathing, such right of use being only to the exclusion of any similar right in any individuals, and being subordinate to the right, of the King and the public at all times to construct, wharves with municipal or common funds within such, limits. It is of this right to use the space described by plan C, and no other right of property therein, that the formal title executed by Ramirez “transfers”' to Pintado the “absolute dominion for that, as his own, he may hold to his own use, enjoy or alienate at his own pleasure, without prejudice to a third who holds a better right, nor of the sovereign privileges according-to what is expressed in the annexed decree and the clauses expressed.” That there is no such limitation to a right of use expressed in the descriptions of the subject-matter of any other plan, does not militate against this construction, but, on the contrary, supports it; and the fact that there is in the descriptions of the subjects-matter represented by such other plans, no reservation to which the above saving of the granting clause, in favor of the “sovereign privileges” can apply, does not render the other granting terms of the formal title less effective to pass to Pintado, as against, the King and public, full and several dominion of the lands represented by them. In our judgment the intent and purpose of the grant was to vest in Pintado- and his assigns the right to use the space for the purposes, and with the exceptions, indicated, such right to be exclusive of a similar right in any other individual, but subject to the saving expressed in favor of the .King and the publicas to wharves; and he was to have ;a property in the described land and water to the extent necessary to the full exercise of the stated rights, 'with the stated exceptions and savings, and no other •or greater property right therein. The grant is, more■over, not one of the entire soil, or any part thereof be■neath the water, subject to the use of the public in the water, but without the right in the grantee to convert ‘the water into land, or to build wharves on the land; •on the contrary, as indicated above, it is a grant which .gives no right of occupation or use of the land or water •except for the purposes stated, and except for use for •one or the other of the stated purposes there is no right to exclude even individuals from the ordinary uses which the general law gave them to make of the •shore and the waters and of the land under the water, at least in so far as such land was essential to the ordinary use of the waters. Until used for one or the ■other of the allowed purposes, whatever title was vested in Pintado was to be held by him, and any one claiming under him, subordinate to the ordinary public uses to which such land and water were subject.

This is the only construction which the grant will sustain, unless we eliminate from it language which can not be said to have either an accidental or meaningless presence. The suggestion that if the extension ■ of the grant downwards is to be limited to ten feet, it should be also construed to confine Pintado’s rights upwards to the surface of the water, is answered by the known nature of wharves and bath houses as extending above the surface of the water.

Having thus determined the nature and purpose of •■the grant, we must now inquire as to the power of the King, and of Ramirez as Ms representative, to make the same.

Counsel for appellee asserts that in all countries the title to land under tide water is in the sovereign, that it was and is in the King of England, and that that sovereign’s right to convey it existed unquestionably up to Magna Charta, and that it is in the States of the American Union, within their boundaries; and that in Spain and its provinces it was in the King of Spain. As to Spain and its provinces he cites Hagan vs. Campbell, 8 Peters, 9; Mobile vs. Eslava, 9 Porter, 577; Bullock vs. Wilson, 2 Porter, 436; Weber vs. Harbor Commissioners, 18 Wall., 57; Pollard’s Lessee vs. Hagan, 3 Howard, 212, 225, and 2 Cal. L. L., 550. The first of these cases was decided in 1838, and is one where, in 1767 the British authorities granted to Richardson a tract of land in the district of Mobile, in the then British province of West Florida, the eastern boundary of the land granted being the high water line of Mobile river. In 1774 the firm of Panton, Leslie & Co. purchased the tract of Richardson, and in September, 1807, the Intendant of the Spanish Province of West Florida, upon petition by John Forbes, a partner of said house, then continued under the name of John Forbes & Co., that the English grant should be confirmed, not only confirmed the same to the latter house, but also, on account of an error as to quantity, extended the grant, as its terms were construed by the Supreme Court of Alabama, so as to cover the space, not included in the original grant, between the said eastern boundary and the “channel” of the river and the north and south boundary lines extended to such channel, the Spanish grant reciting that this space had been “left unsurveyed at that period, being impassable, has since been rendered useful by the owners having ditched and drained the-same and which they are to receive .in compensation for the above mentioned error; with the reserve, however, of leaving a free passage on the bank of the river without altering the figure of said tract on the other side.” On the copy of the survey corresponding with the description in the grant, were traced lines showing the eastern boundary of the British grant, and from the points where the northern and southern lines strike this boundary such lines were continued without deflection to the channel of the river; and the marsh or flat lying between the channel and the high water mark in 1767 was clearly described in the plat. It was also shown by testimony that at the date of the Spanish grant the ground occupied by the defendant with a wharf, and for the recovery of which the action was brought, was covered by water of the river or bay of Mobile, and as to whether it had ever been uncovered by water, the testimony was contradictory. There was. also evidence to show that Forbes & Co. had reclaimed by ditching and otherwise a portion of the land uncovered with water, but it did not show that their reclamations extended to the wharf and land in possession of defendant. The lower court had instructed the jury that the land between high and low water mark, that is between the flow and ebb of the tide, belongs to the sovereign and does not pass by a grant unless specially given; and, in effect, that such lands-as the jury should find to have been drained and reclaimed by Forbes & Co. passed by the grant, and that the land below high water mark and not reclaimed did not pass. The Supreme Court holding, as indicated above, that the terms of the Spanish grant included all the marsh or land between the eastern boundary of the English grant and the “channel” of the river, meaning by “channel,” as we understand the opinion, the low water mark or water-line outside of the marshy ■land, said: “It was not essential to the plaintiffs’ title •to show that all the marsh was drained previous to 1807, or that it had been reclaimed since that period. It is true that all this is described in the Spanish grant ■as having been rendered useful by the owners having ditched and drained the same, and -which they are to receive in compensation for the deficit in the quantity intended to be conveyed by the British1 grant. That the Spanish authorities believed that the marsh, or the greater part of it, lying between the river on the east ■and the original tract on the west had been drained, we think probable from the terms employed. Yet an ignorance of fact in this particular can not be held to control the plain language of the grant, and limit its •operation to so much of the land as was actually drained—most certainly not in a controversy with a mere occupant who relies upon • no title subsequently .acquired from the authorities of Spain. The plat or plan of survey does not trace any ditch as having been •cut through the marshes; and the river having been ■declared to be the eastern boundary of the land covered* by the grant, there is no authority for stopping at any point between the channel and high water-mark. * * The instructions,, we have shown, can not be sustained, —the grant ascertains its own limits on the east which is not liable to be varied by showing a portion of the marsh, or even all of it, unreclaimed in 1807, or at any time since.” Of this decision it may be said that it assumes the power of the Spanish authorities to grant the shore, it being here marsh land, to low water mark; there was, however, no contention to the contrary, but rather a concession of the power by counsel for defendant, whose defense was upon .the theory that the terms of the grant did not include any unreclaimed land. It however can not be held that the Spanish authorities did not understand the land to be reclaimed when they granted it. Whatever may be said in the opinion as to the law in England and the United States, there is no discussion of the question as to the Spanish law. It is not to be forgotten either that the grant of 1807 was void, as to American courts, for the-reason that the territory west of the Perdido had been ceded to the United States by Prance by the treaty of April 30th, 1803, as claimed and asserted by us. Foster vs. Neilson, 2 Peters, 253 (decided in 1829); Garcia vs. Lee, 12 Peters, 511. Still, it can not be denied that in Mobile vs. Eslava (decided in 1839), where-counsel had questioned the correctness of Hagan vs. Campbell, as to the power referred to, the same court, constituted of the same judges and speaking through the same justice, expressly affirmed the power of the King’ of Spain to make such a grant. Without proposing “to consider the general power of the sovereign over the tide waters,” it held that the King of Spain, in virtue of the bulls of Pope Alexander VI, became the proprietor of the Spanish possessions-in America, and could grant the shore of the navigable waters in his American colonies, and that the-power possessed by the King in this particular, might be exercised by his viceroys and other subordinates' within their respective jurisdictions; and further1, that where a grant is made by a public and responsible officer claiming and exercising the right of disposing of the public domain, it will be i>resumed that he did it by the order and consent of the government he professes to represent and in whose name he acts; and in the absence of proof to the contrary, it will be intended that he disposed of no more property of his sovereign than the laws of Spain authorized. The-conclusions announced here as to the power of the King and his representatives were wholly unnecessary to a* decision of the Eslava case, and in so far as they relate* to the power of the sovereign are based upon Robinson’s Am. and Prescott’s Ferdinand & Isabella.. This conclusion adopts the theory that the colonies-were vested in the crown, rather than in the state, and that the monarch possessed an unlimited control over-the same, that he and not the state was the proprietor* of the territories acquired, and from him all grants; of land flowed, and being vested with the property it was competent for him to make such disposition of' those possessions as caprice or a sense of justice might-dictate; that the canons of the civil law or the legislative regulations of Spain were not recognized by the-monarch as operating to restrain him in making grants - of land in the new world; and it must therefore be immaterial whether according to the civil law, rivers, the sea and its shores are destined by nature to the common use of man and thus withdrawn from commerce;; it being also observed that it was true that “when towns -were built and formed into bodies corporate, the-citizens were allowed to elect their own magistrates,. Avho were authorized to adopt measures for the regulation of their own interior commerce and police. But; no political power originated from the people—all centered in the crown and the oflicers of its nomination. The viceroys who represented the sovereign possessed’ his regal prerogatives within the precincts of their own-governments in their utmost extent. Like him they-exercised supreme authority in every department of' the government, civil, military and criminal. And as; their dominions were too extensive for their personal) supervision, they, in turn, were represented by vari■ous orders of magistrates, some ajjpointed by the King ■■and others by the viceroys, all of whom were amenable to the jurisdiction of the latter, unless they were required to exercise their duties without the limits of •either of the viceroyalties.” The cases of Bullock vs. Wilson, Weber vs. Harbor Commissioners, and Pollard’s Lessee vs. Hagan, can not be considered authority as to the Spanish law on this point, neither of them deciding anything as to it, yet it is a fact that in the • second case there is an observation to the effect that ■ although the title to the soil under the tide waters of the bay of San Francisco was acquired by the United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future ■state, and upon the admission of California into the Union, it passed to the state upon the limitations therein expressed; and in the last of the three cases it appears that it was insisted by counsel that the United States had, under the treaty referred to in the preceding pages of this opinion, succeeded to all the rights and powers of the King of Spain, and that • as by the laws and usages of Spain, the King had the right to grant to a subject the soil under navigable 'waters, therefore the United States had the right to , grant the land in controversy, which was in Alabama, . and thereby the plaintiffs had acquired it. This contention was answered not only by a statement of the fact that the United States had never claimed any part ■ of Alabama under any treaty with Sjrain, but also by the statement that if it were true that the United ' States had acquired the w-hole of Alabama from Spain, no such consequence as was contended for would remult, that it could not be admitted that the King of ■Spain could impart to the United States any of his .royal prerogatives, and much less could it be claimed that they have capacity to receive or power to exercise them. Every nation acquiring territory, says the ■opinion, citing Vattel, b. 1, c. 19, Sections 210, 244, 245, and b. 2, c. 7, Section 80, by treaty or otherwise must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it.

The reference of counsel to page 550 of 2 California Land Laws, swpra, is a report, dated Havana, May 15th, 1830, to the Supreme Junta by commissioners ■appointed evidently some time before. Their duties included that of investigating and ascertaining the right of property on the margins of rivers which the royal factory considered as crown lands appropriated to the culture of tobacco. It seems from this report that on March 11th, 1798, there had been issued a royal cédula which declared that all the lands situated on the margins of rivers, to the extent which said rivers cover when they overflow, were to be considered the property of the crown, and not of the land owners. The conclusion of the report on this point is that the principle announced by the cédula was decided without the laud owners having a hearing, and by an incompetent authority, a minister, and not by the tribunals and councils of the King; and also against the ■clearest iminciples of Spanish jurisprudence, the law, which is cited, declaring positively that the margins of the rivers, as to dominion, belong to those whose possessions are adjacent thereto, and all the trees which are on the banks of the rivers belonging to those who ■own the possessions, and they can cut the same and do with them what they please, and it being observed that the laws .in speaking of rivers do not mean the interior, but the public and navigable streams. And in the connection that the cédula was against the clearest principles of Spanish jurisprudence, the report reads: ‘ ‘And we may say this without being accused of wanting the respect which is due to a royal order; because-there are cases like the present in which there is a presumption that such orders are not the will of the sovereign; for they have been considered possible and have been foreseen by the Spanish sovereigns, as they have declared by an express law that royal orders that may be given against any general or municipal law shall be obeyed but not executed. ’ ’ The report further finds that the cédula was'against the simplest notions of reason and justice, the inundations sometimes extending-over four or even six leagues from the river, and that it was repealed by a subsequent royal order of January 25th, 1801, and that it was also made under the false-impression that the grants of lands which it affected had been made under certain conditions rendering it proper, and that therefore it was null and void. It is-stated in this report as to the use of rivers and their banks being common to all: “Besides that the laws speak of public and navigable rivers which cross two different nations and separate their territories (as we have said before), we ask now what is the use meant by the law? Hone other but the common right to navigate and to fish in them, as it regards the rivers; and with regard to the banks, the laws mean the right to build a house, a cottage for shelter or any other kind of building; provided the use, common to all, is not interrupted; it also means the right of making nets and drying them thereon; the right of repairing the vessels and tying them to the trees; also the right to put-there the merchandise and fish and to sell the same with other things of their nature.”

The cases of Mobile vs. Eslava, 16 Peters, 234, and dissenting opinion, 252, 259, Pollard vs. Kibbe, 14 Peters, 253, as also Pollard vs. Hagan, supra, are also .referred to as impliedly sustaining the power, in that grants of land below high water mark were passed upon without question as to their validity, even by the learned counsel engaged in them, who being contemporaneous were better acquainted with the Spanish law than we are. There is nothing in the opinion of the court in the first of these cases, decided in 1842, that bears on the question at all, but in the separate opinion of Judge Catron it is said: “That the United States acquired the title to lands flowed by tides by the treaty with Spain, is of course admitted. That they had power to grant up to the adoption of the Constitution of Alabama, is also admitted in the opinion under review. That the Spanish King could grant lands under tide water, is free from doubt, and the United States acquired by cession all his powers over the vacant soil.” This opinion also holds that the ■United States had power to grant land in Alabama between high and low water mark of navigable waters, after the admission of that state into the Union, a position which is entirely overthrown by the subsequent decision of Pollard’s Lessee vs. Hagan, supra, the Supreme Court of Alabama having first in Mayor vs. Es-lava, supra, the same case as that now under discustion (it having been appealed to the United States Supreme Court), asserted the doctrine affirmed in Pollard’s Lessee vs. Hagan. The case of Pollard’s Lessee vs. Kibbe is one. of a grant in 1809 to Pollard by the Spanish authorities of a lot which was then subject to overflow by ordinary tides. The date of the grant, it will be perceived, intervened the purchase of Louisiana from France by the United States in 1803, and the purchase of the Floridas from Spain. The territory about Mobile, including the lot granted, lay in the disputed limits between the Iberville and the Perdido, and remained in the actual possession of Spain when * the grant was made. The lot was filled in 1823, and the decision of the court was, that certain acts of Congress of May 26th, 1824, and July 2nd, 1836, confirmed the grant to Pollard, its view being that even if the grant was originally void on account of the want of legal power in the Spanish authorities to make it, in view of our title to the territory under the purchase from Prance, still it had been confirmed by act of Congress. It is true that no question seems to have been raised as to want of authority to grant land subject to tidal overflow, but even if it had been, the act of Congress would have been held to be equally curative of any such defect in the grant. It is unnecessary to discuss the effect of Pollard’s Lessee vs. Hagan, supra. Of course where any lots falling within the terms of either of these acts was at the date of the same subject to tidal overflows, Congress was without power to grant the same, they being the property of the state ©f Alabama, whose admission into the Union was in the year 1819.

Referring to Law 15, Title 5, of the Partidas, wdúch says: “A free man, a thing religious, sacred or holy, a public place; as squares, roads, threshing grounds, rivers and other waters which belong to the King, or thecommonsof any city, can not be soldor alienated,” it is contended by counsel for appellee that this did not bind the King or his deputies, that he was not named in it, and that laws bind sovereigns only when named, and in Spain it bound him only so long as he ®hose to be bound, there being no such thing as law in a constitutional sense restricting sovereign power to a given course of action; Spanish law being the expression of the will of the King as to the manner in which subjects should conduct themselves, but having n© application to himself.

In support of this proposition, 2 Cal. Land Laws, 502, 503, and United States vs. Arredondo, 6 Peters, 714, are cited. The document referred to in the former of these citations is what is termed, A.n Exposition of the Florida Treaty, by the Hon. Joseph M. White, the learned compiler of such land laws, who in his day here, was among the most distinguished of Florida’s citizens. This “exposition” seems to be an argument, made subsequently to 1830 at least, in some cause involving the title to land which had been granted by the Spanish authorities. It is true that in answer to the assertion that the royal governors of the Spanish colonies had no power to make sales or donations of the public lands, except in very limited quantities andunder numerous restrictions, it is said, that every fair presumption is against these supposed limitations, and that legal or constitutional restrictions upon the power of the King or his officers, according to our ideas of them, are inconsistent with the character of the Spanish monarchy, and hardly comprehensible by a native of that country, and ‘‘have been rejected, together with the constitutional monarchy by the people of Spain;” and it is asked how it is possible to reconcile limitations of power with the fundamental maxim: The will of a prince has the force of a law. And it is also said that portions of the royal authority as arbitrary as that of the King himself, were entrusted to the several governors of provinces; each of whom within the limits of his own government was the image of his sovereign, and, in practice at least and in popular opinion also, absolute; and that the only restraint upon his acts were his instructions and accountability to the King, but that the royal instructions, and the resiclentia or account of his transactions, which the governor was obliged to give, were not properly legal limitations upon his power, but rather directions for the exercise of his discretion and securities for his good behavior; and, again, that even the laws of the Indies, obscured, perplexed and sometimes even unintelligible as they are, hardly reached across the ocean, and that the doctrine of the Spanish, like that of the Roman empire, was marked by the absolutism of the distant prefects. These assertions are very broad, but they are not authority; they are the free language of the advocate, and have no relation to the subject of a grant like that now under consideration. Moreover, the very paper in which they occur contains evidence that the Spanish government of the time of this grant was one of laws, and not of mere arbitrary discretion upon the part of the King or governor; it shows that in the opinion of Don Luis de Onis, who negotiated, on the part of Spain, the Florida treaty, which was signed February 22nd, 1819, the right of the King to annul the grants to the Duke of Allegon, to De Yargas, and Punonrestro, was upon the ground that they were made upon essential conditions which had not been complied with by the grantees, and were consequently not binding on the King according to the Spanish law; and further that the understanding and intent of the parties to the treaty were that all grants should have no other or further effect here than they would have had if there had been no cession of the territory, saving however to the grantees (other than the three named), who had Been prevented from perfecting the conditions of the same by the recited circumstances of Spain, the periods specified in the grants reckoned from the ratification (6 Peters, 315) of the treaty. The other citation, Ar-Tedondo’s case is, as already stated, a decision of the Supreme Court on a grant of land in East Florida. It is said in the opinion that “the laws of an absolute monarchy are not its legislative acts—-they are the will and pleasure of the monarch expressed in various ways, if expressed in any—it is a law; there is no -other law-making, law-repealing power, call it by whatever name; a royal order, and ordinance, a cédula, a decree of council, or an act of an authorized officer; if made or promulgated by the King, by his consent or authority, it becomes, as to the person or subject-matter as to which it relates, a law of the kingdom. It is •emphatically so in Spain and all its dominions. Such, too, is the law of a Spanish province conquered by England. The instructions of the King to his governors are the supreme law of the conquered colony; Magna Charta,'still less the common law, does not extend its principles to it. King vs. Picton, 30 St. Tr., •866. A royal order emanating from the King is a supreme law, superseding and repealing, all other preceding ones inconsistent pvitli it. The laws of the Indies have not their force as such, by any legislative •authority vested in the council; their authority is by the express or implied expression of the royal will and pleasure; they must necessarily yield to an order prescribing a new rule, conferring new powers, abrogating or modifying previous ones.” Observing that the principle, that the acts of a King are in subordination to the laws of the country, applies only where there is any law of higher obligation than his will, it is, however, expressly affirmed in this decision that there is another source of law. in all governments, viz: usage or •custom—which is always presumed to have been •adopted with the consent of those who may be affected fey if, and that a general custom is a general law and forms the law of a contract on the subject-matter, and though at variance with its terms, it enters into and controls its stipulations as an act of parliament or state legislature, and the court is bound to notice and respect general customs and usage as the law of the-land, equally with the written law, and when clearly proved they will control the general law; and it is held that under the acts of Congress as covering the grants there in question, such would be the duty of the court even if that act did not name usage and customs as a. part of the law or ordinances of Spain. “We might,” says the opinion “as well exclude a royal order because it was not called a law.” This decision in discussing the validity of the Arredondo grant, and after having referred to the fact that no objection was made to the admission of the title paper in evidence, and that its genuineness seemed not to have been contested, and that no attempt had been made to impeach it as antedated or forged, and having observed that it was therefore at least prima facie evidence of a grant of the land it describes to the complainant, the rules of of evidence and principles of law giving it this effect, observes that here the important question arises-whether the several acts of Congress relating to Spanish grants do not give all such grants that are perfect in their forms legally and fully executed, a greater and more conclusive effect as evidence of a grant by proper authority. In considering this question it is noted by the court that in all the laws of the United States on the subject of Spanish grants in the three territories acquired since 1802, no requirement has been made that the authority on which any grant has been made-under the Spanish government should be filed or proved by the claimant, but, on the contrary, Congress has been content that the rights of the United Stat?s should, be surrendered and confirmed by pátent to the claimant under a grant purporting to have emanated under all the official forms and sanctions of the local, government, this being “deemed evidence of their having been issued by lawful, proper and legitimate authority, when unimpeached by proof to the contrary.” In speaking in this connection of the legislation as to Spanish grants in the territory west of the Chattahoochee river, acquired by the United States, from Georgia, it is said: “The fact which gave to the recorded certificate of the commissioners the effect of' a patent, was the existence of a grant, the legality and fullness of its execution only was required to be made to appear. No inquiry was directed to be made-as to the authority by which it was required to be done;: the United States were too just to exact from the grantees of land under an absolute colonial government what no court requires from one who holds lands under the grant of the United States or of a state, fully executed; or, if inchoate, never compels a claimant to produce the authority of an officer who issues or executes a warrant or order of survey; it is always presumed to be-done regularly till the contrary appears, or such reasons., are offered for doubting its authenticity asare sufficient in law to rebut the legal presumption.” Reference is. also made to the fact of the express grant in at least some of the legislation of authority to inquire whether or not grants may have been antedated, as also evidencing the purpose of Congress that the claimants need not show the authority of the officers executing-the grants; and in conclusion it is said: “It is thus, clearly evidenced by the acts, the words and intentions, of the legislature that in considering these claims, by the special tribunals, the authority of the officer making the grant, or evidence of claim to lands formed no item in the title it conferred; that the United States never made that a point in issue between them and the claimants to be even considered, much less adjudicated. They have submitted to the principle which prevails as to all public grants of land, or acts of public officers,in issuing warrants, orders of survey, permission to cultivate or improve, as evidence of occupation and nascent-title, which is that the public acts of public officers purporting to be exercised in an official capacity and by public authority shall not be presumed to be an usurped, but a legitimate authority previously • given, or subsequently ratified, which is equivalent.” It is further said that it is true that a grant made with- ■ out authority is void under all governments, but in all the question is on whom the law throws the burden of proof, of its existence or non-existence; a grant is void unless the grantor has the power to make it, but it is not void because the grantee does not prove or produce the power; the law supplies the proof by legal presumption arising from the full, legal and complete ex-■eoution of the official grant under all the solemnities known or proved to exist or to be required by the law of the country where it is made and the land is situated.

We fail to find in these citations evidence that the Partidas (Title 5, L. 16), referred to should not be held binding on the colonial authorities. Granting that the partida was subject to repeal or modification by royal •order or other authentic action of the King, there is nothing to justify the conclusion that it was not applicable to his representatives in the colonies, or that any such question as that now before us was in the mind of either Mr. White or the Supreme Court. It . should not be forgotten that both were dealing with something that was the ordinary subject of grant by such authorities, and as to which nothing negativing the power of the King’s authorities is to be found in the Partidas or elsewhere in the Spanish laws; and it is true not only that the opinion of the court expressly recognizes the laws of the Indies, including Spanish usages and customs, as having been operative here, but also that Mr. White, in addition to a similar recognition in his Spanish Law, and his Land Laws of California, had expressly decided against the validity of this identical grant in the report on the same by the Land Commissioners for West Florida (4 Am. St. Papers, 118, 120), which report will be noticed more fully hereafter.

If it be that the colonial government was not one of law, prescribed by the King, but rather one of the mere occasional will of the sovereign, and of which will the only necessary evidence was to be found in any formal act of his official representatives here, then of course the law is to be found in the act, and proof of the latter establishes the former. We do not find that such was the nature of the colonial government, ■or the character of the King’s disposition towards or interest in his western subjects. We think that other authorities at hand also show this.

In 1828 the Attorney-General of the United States became convinced of its being indispensable to a just decision by the Supreme Court of the land claim cases under the act of May 23rd, 1828, that a complete collection of all the “Spanish and French ordinances, etc.,” affecting- the land titles in Florida and the other territories which had belonged to France and Spain; and Mr. White was selected to prepare the compilation. In his communication of February 4th, 1829, to the Secretary of State, submitting- his work, that referred to above as White’s Spanish Law, he speaks of it as a collection of laws, ordinances, and local regulations adopted from time to time by the government-of Spain, touching the disposition of her public lands, in her colonies, and makes, among others, the observation: That for the period from the appointment of the first Viceroy of ISTew Spain to the year 1701, he had found no specification of that officer’s powers, or authentic detail' of his subordinate authorities, nor any code of laws or systems of regulations relative to concessions of the royal domain, and says that in Cuba there are a Captain-General, Intendant, and Superintendent-General, and eighteen governors of districts, all authorized in some form and to some extent to make grants or allotments of land, their powers in many cases depending on instructions, official letters and decrees of the King, Captain-General, or Intend-ant-General, addressed to these respectivesubordinatedepartments. In this work of Mr. White we find that as early as September, 1571, the King, expressing himself as desirous to devise suitable means by which his western dominions, the Indies, should be governed in a proper manner, provided by royal order, that the-Council of the Indies, whose function it was to assist the King in the government of these provinces, should to that end reside in the court and near the person of' the King; and that in 1682, he, by'another order declared that a stated and recent compilation of the laws applicable to such provinces or dominions should be obeyed, fulfilled and executed as such, and that they should regulate and determinate all suits and differences which might arise, such order also referring to-former compilations of a similar character, pp. 18-17. There were also subsequent Compilations extending-up to the end of the year 1816, pp. 82, 126-7,. 131. In the compilation of 1682 it is ordained: ■“And as regards what is not determined by the laws contained in this compilation, with respect to the decisions of canses, the laws in the compilation and Partidas of the Kingdom of Castile shall be observed in the manner set forth in the following law.” Snch “following law,” providing that “the laws of the Kingdom of Castile shall be observed conformably to the laws of Toro, with respect as well to the substance, determination and decision of cases, transactions and suits, as to the form of proceedings.”

In this work of Mr. White, we not only find the law as to things common, and things public as set out above, but there is in it, nor in his more enlarged compilation, made ten years subsequently, of the laws, charters and local ordinances of the governments of Great Britain, France and Spain, relating to the concession of land in their respective colonies, which compilation is referred to above as the Land Laws of California, nothing sustaining the idea that the laws therein contained were not to be binding on the King’s representatives here, or that waters, like that which is the subject of this grant, or the land beneath it, were intended to be the subject of grant like the vacant or crown lands. On the contrary, we find it expressly-declared: “We have ordained that pastures, mountains and waters shall be common in the Indies (Spanish Law 44); and further, that no one can establish or publish the law but the King, and that the Prince ought to obey the law, although he can not be compelled to do so (Ibid, 59, 60). The first of these declarations seems to have been necessitated not by any deficiency in the law as it stood at the time, but by the fact that persons without any title had occupied extensive tracts of land and would not permit any one to-establish, pens and herdmen’s huts thereon and to-drive their cattle thither, and it is accompanied by a present “command that all pastures, mountains and waters in the provinces of the Indies be common to all the inhabitants thereof, present and to come, and that they may freely enjoy and use them and construct their huts near their pens, drive thereon their cattle either in herds or separately at their option, all ordidinances to the contrary notwithstanding; which, if necessary for this object are hereby so far repealed and declared tobe of no force or value.” It is true that there is in this compilation mention of waters in connection with private titles, but nowhere is the conclusion justified that it refers to what may be deemed public waters, like the subject of this grant. A careful consideration of the many laws, ordinances and regulations as -to the disposition of lands satisfies us that wherever there is mention of waters in them the-meaning is those waters which pass as part of the land, and not those which the general law made public or common. There is nothing in the entire system of laws that countenances the idea that the reduction of waters of the character covered by this grant to permanent ownership in severalty was intended or even contemplated. There is much evidence of the unlawful interference by officials with the commons of towns, and of the royal disapprobation of such invasions of the rights of those communities, and it can not be doubted that the equal evidence would be extant of disapproval of trespassing upon the public waters had official usurpation been equally held as to them.

In New Orleans vs. United States, 10 Peters, 662, decided by the United States Supreme Court in the-year 1836, a case involving the right of the Spanish governors to alienate the quay of the mentioned city, it being a space lying between the front row of houses and the Mississippi river, and held to to have been dedicated to the public at that place, it is said that “the fundamental laws of the Spanish nation, and which are understood to be alike binding on the King and the people, are found in the Partidas and the Recopilación;” and the decision in Arredondo’s case-having been invoked by counsel as sanctioning the principle that a grant issued by a Spanish functionary is not only evidence of title but also that the officer had the power to issue it, it is also said: “In that case this court did hold, and the same principle has been sanctioned in numerous cases since, that a grant should be considered as prima facie evidence that it was rightfully issued, but that it might be impeached by any one who sets up an adverse claim. * * From a careful examination of the jurisdiction exercised over this common by the governments of France- and Spain, and the laws which regulated this description of property in both countries, the conclusion-seems not to be authorized that it was considered as apart- of the public domain or crown lands which the King could sell and convey. This power was not exercised by the King of France, and the exercise of the power by the Spanish governor, in the instances stated,, was in violation of the laws of Spain and equally against its usages. The land having been dedicated' to public use was withdrawn from commerce, and so* long as it continued to be thus used could not become-the property of any individual. So careful was the-King of Spain to guard against the alienation of property which had been dedicated to public use that in a law cited all such conveyances are declared to be void-It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive -and can not be controverted; but if the thing granted was not in the grantor no right passes to the grantee.” It is also observed in the same case that a faithful observance of the laws mentioned would have preserved the rights of the city as to the common, free from invasion, and that no law that showed the power of the King of Spain to alienate land which had been dedicated to the public use had been cited in the argument, .and that it was clear that the exercise of such a power would have violated the public law which was understood to have limited the exercise of the sovereign power in this respect. In this case the Spanish law was held to control in determining the extent of the right of the public as to the New Orleans quay, parts •of which had been granted in fee by Spanish officials, •and the opinion shows that such grants were contrary to that law, as contained in the Partidas and the Recopilación, the former of which compilations was promulgated about the year 1343, though perhaps not going into full operation till 1505, and the latter about 1567. Vide Preface to.Morean & Carleton’s Partidas. Spain had in September, 1769, established the Spanish laws ■over the territory of Louisiana, and there was never .-any suspension of these laws there until the United •States acquired the country, not even during the brief period of Napoleon’s title. The opinion shows that •by the Spanish law the things which belong separately •or severally to the commons of cities or towns are places where the fairs or other mentioned things, including the alluvions or sand deposits on the banks of rivers and all other uncultivated lands immediately contiguous to cities, and race grounds and forests and pastures and ‘ ‘all such other places which are established for the common use” (Partida 3, Law 9, Tit. 20); :and that no one ought to erect a house or other building or works in the squares or commons, nor in roads which belong to the commons of cities or towns or other places, nor take possession of them for his own particular benefit, these things being for the advantage or convenience and common use of all, and that .such works must be pulled down and destroyed, unless the corporation or place see fit to retain them for its own use, and use the revenue from the same/ it being declared that no man who has erected such works nan acquire a right thereto by prescription (Partida 3, Law 23, Tit. 32); and further, that ‘ ‘our pleasure and will is to preserve their rights, rents and property to •our cities, towns and places, and not to make any gift •of anything of them, wherefore we command that the gift or gifts which we may make, or any part of them, to any person whatsoever, are not valid.” N. Rec., 6, 7, Tit. 16, Law 1. It was, however, held that the King of Spain, like the King of Prance, had the power to give permission to construct buildings on grounds dedicated to public use, without injury to the public rights, the buildings to be so constructed that no one ■should be injured in his right thereby (Partida 3, Law .8, Tit. 32; Rodriquez, 15 16); this Partida reading: ‘‘If a man begin to erect a new edifice, in the public places or street, or common threshing grounds (exidos) of .any place, without the permission of the King, or of the council, upon whose ground he builds it, then any •one of the inhabitants may forbid him to continue the work; unless the person forbidding be an orphan, a minor of fourteen years of age, or a woman, for they nan not do it, except where some new work is constructing upon their own property.” And it is observed by the court that as the power was given to the King, by law, to grant permission to build on public places, it would seem to follow that such places were not only withdrawn from commerce, but that the King could not alien them, for if he had the power to do so in an unlimited manner as .over the crown lands, it would include the exercise of every minor authority over them ; and further, that the permission to build on the quay, specified in the opinion, given by the Gfovernor and Intendant, under the law cited, was not considered inconsistent with the public use as the power was not to be exercised to the prejudice of third parties, but as to the three lots, to which grants were issued, it must be admitted they were such a final disposition of the property as was wholly incompatible with the public right, both the fee and the use being granted. That there was no difference in principle between ground dedicated as a quay to public use, and streets and alleys of a town, and that as to streets it would not be pretended by any one that the King could have rightfully granted them, and it was believed that a public right to a common was equally beyond the power of the sovereign unless he disposed of it under the power to appropriate property to the natural use and then compensation must be paid. It is. also declared that the Kings of France and Spain could exercise a jurisdiction in the nature of police regulation over this common and other places similarly situated, but it was rightfully exercised in such manner as not to encroach upon the public use, and there is instanced the fact that in 1770 the Spanish governor, O’Reilly, established a regulation, “fo continued/u/ring the pleasure of IBs Majesty, requiring a payment of six dollars by each boat of two hundred tons for right of anchorage, established and destined to the keeping-in repair of the levee or dyke which does contain the river within its limits in the whole front of the city * * >;

That the King of Spain in the exercise of his great power might have made a grant of this kind, is not denied, nor need it be. That such a grant by him would have been contrary to his laws then in force here, and have been, pro taoitg, a repeal of the same, or a case of special exception from their effect, is clear; and evidence, to be sufficient to show authority in another for such a departure from the fundamental law, recognized by him as operative here, must, in the presence of such fundamental law, establish his action in the premises. Surely an isolated act of a subordinate, that is in conflict with a general rule representing the expressed will of the superior, can not be held to be evidence of a change of that will. There is in the many authorities in which the power of Intendants to make grants of land is discussed, nothing- inconsistent with this view. In none of them is the exact question, presented here, involved. It is true that in them there is assertion that the King and his Governor and Intendants had power to grant the shore or land which was land subject to tidal overflow, yet there is not to be found anywhere anything that justifies the conclusion that it was the purpose of the King to confer upon Intendants the power to make a grant like this not of land subject to the public use of the waters above, but a permanent monopoly of the right to build wharves over the entire front of his only city on the Gulf of Mexico east of the Perdido, and covering-what, under the most favorable conditions for growth, might be deemed its possible prospective growth for many years. As stated above, a careful review of the-royal ordinances and the regulations as to the sale and ■other disposition, of land (of the more modern of which •ordinances an instructive statement'by Judge Marshall will be found in the case of the United States vs. Clarke, 8 Pet., 436, the ordinances and regulations themselves being in White’s Spanish Law and his .Land Laws of California), will satisfy any one that they were not intended to authorize a grant like this or the reduction of public waters, or even the land under them, into several ownership, or to confer upon Intendants the power to do so. There can be found in these ordinances and regulations nothing that can reasonably be construed to indicate an intent upon the part of the King in making such ordinances to modify the'general law applicable to public waters, nor a purpose upon the part of the colonial officials promulgating the regulations to extend them beyond those lands which were intended to be reduced to individual ownership and constituted the crown lands or royal domain. The purposes of settlement, cultivation and pasture are prominent in all these ordinances and regulations, and they are altogether inapplicable as a system for improving a port by granting rights to build wharves or promoting the health and comfort of the inhabitants through bath houses, or even to a system for the reduction of public waters and the lands covered by them, into several ownership and exclusive individual property. Such improvement of a port and promotion of the health and comfort of the population would have called for regulations protective of commerce and navigation, in addition to dealing with a domain of an entirely different character from that to which the ordinances and regulations referred to relate. We fail to find a line in any American adjudication that has-been formulated with reference to, or can be regarded as an authority in favor of the exercise of the power asserted here by Ramirez, or a provision of Spanish law general or special that supports his exercise of the power. It is a power which, in its nature, is not incident to mere authority to dispose of crown lands, or that part of the royal domain, which under the Spanish law were well understood to-be intended for reduction to several ownership, and which such ordinances show an earnest desire upon the part of the King to settle and dispose of. Conceding that the King had the power to regulate the use of such waters, yet there is nothing which has been brought to our attention that tends to prove -that he-had confided this • power of regulation to the Intendant. Had it been the purpose of the King that-such important rights as are attempted here to be conferred upon Pintado should be at the disposal of the Intendant or other subordinate, it seems reasonable, if not certain, that some ordinance or other law regulating the subject would have been made, and be extant-with the many others made specially applicable to the provinces. Their absence is strong evidence that it was the royal purpose to keep so important a function as that of granting away to individuals the right to build wharves and bath houses and interfering with well understood public rights guaranteed by the general law within his own immediate control. In the absence sf some ordinance changing the general law, that-law, as it is set forth above, defined the rights of the public in the shore and such waters, and was binding on the Intendant as it was on the citizen. In those cases in which the power of officials to make larger-grants of land have been sustained (as they have been even where the title recited inaptly royal orders which authorized only more limited grants), the courts have been able to resort to the general power given them to dispose of the crown lands, and the frequent or usual exercise' of the same, but here there is no grant of general authority, nor any instance of an exercise of it, nor any special authorization of the kind. That this grant, taking from the King, as it did, the right to avail himself of the capital or enterprise of any citizen at any time to improve the port in this manner, if His Majesty should deem it wise to change the law to that end, would have been binding on the King, we find nothing to support; nor anything to encourage a belief that it could have received his royal sanction as an act of grace; on the contrary, everything having any application to the subject, that has fallen under our view tends to the conclusion that it was not only without authority of law, but contrary to the public welfare, the rights of the King, and to the consideratian which his laws and ordinances evince for his subjects.

In addition to this absence of any law or rule authorizing such a grant by the Intendant or other local officer, the solitary character of this grant is strong evidence of its illegality. The labors of counsel and the investigations of the court have failed to find in the pretensions of numerous claimants developed by the acquisition of Louisiana, Florida and California, any claim like this. Though we see that the old mercantile house of Jno. Forbes & Co. kept a wharf at Pensacola, which was excepted from the calls of this grant, yet there is no evidence that there was ever any such grant of a wharf right by the Spanish authorities. If it be said that the absence of similar grants finds explanation in the absence of a necessity for wharfs, then the absence of such necessity also explains the want of any special law or rule changing the .general law as to the public right in and use of the shore and the waters. The natural conclusion resulting from such absence is that the conditions existing here dictated that the use of the shores and waters secured to the public by the general law .should be maintained. No such grant or exercise of authority is to be found elsewhere in the history of the colonies referred to, ,and that it was made without authority, we do not feel any doubt. We do not think that Law 3 of Title 32 of the 3rd Partida, quoted above, authorized this grant. It was not the purpose of that law to permit subordinates to take from- the King for all time the right to permit persons to build houses in public places, or to grant to one individual a perpetual monopoly like this; nor are we satisfied that it applies to public waters or shores as to which the general law gave the rights indicated in the previous pages of this opinion, including that of building huts on the shore.

There is moreover in the history of this grant nothing that favors its validity. We find that it was rejected by the Commissioners appointed under the act of Congress to investigate land claims in West Florida (3 Am. St. Papers, 118-120); their conclusion being that the grant was invalid, both on account of the rights of commerce appertaining to the city, and the property rights incident to riparian ownership whether of urban or rural lands, and the rights of the public in the use of the waters. A further conclusion of the Commissioners also was that there had never been any actual survey of any of the premises granted or represented by either of the accompanying plans. The rejection by the Commissioners of this water grant was sustained by the Congress of the United States, which •excepted it, and the grant of the western end of Santa Rosa island, from its confirmation in the act of May 23rd, 1828, 4 U. S. Stats, at Large, 284, of the grants, represented by the other plans. It may be here observed that of plan A, the report of the Commissioners says: It ‘‘embraces the point on which Port Arruinado stood, on the western side of the island, opposite to Port Carlos de Barrancas, and upon which it is believed, the Spanish government always had batteries erected for the defense of the entrance into the-bay of Pensacola. This position seems to have been an indispensable auxilliary to that of Barrancas, and could not be appropriated to any other purposes but those of defense. It is an ‘arid and barren space,’ as-described in the certificate, and entirely unfit for cultivation; under such circumstances, it is difficult to believe that the Spanish authorities would make such a grant as long as they expected to retain possession of' the country.”

The confirmation by Congress was necessarily a recognition by the United States of the authenticity or genuineness of the paper title held by Pintado; and an explanation of such recognition, in the absence of any from the opinion of the Commissioners, is doubtless to be found in the fact of the production of the original, which evidently had not been seen by the Commissioners when they prepared their opinion, though it is not improbable, in view of what appears in their statement of the evidence adduced before them, that it was subsequently presented to them, and that there-was an unintentional omission to correct the stated feature of their opinion. It is certain, however, that-both Commissioners and Congress concurred in the view that this water grant was invalid, and although no judicial effect can be given to the finding of either body as concluding the claimant, it must be taken as-the expression of their best judgment carefully formed, when these matters were fresh, under a sense of great-responsibility, and we have yet to find anything that, to our judgment, seems to render their rejection of the-grant questionable.

In the absence of the reasons upon which the District'. Judge of the United States Court for the Northern! District of Florida based his judgment in favor of the-defendant in the ejectment suit between the city of' Pensacola vs. Eudaldo Pintado, we can not assent that' it was upon grounds inconsistent with the views we-have advanced in this opinion.

It is unnecessary to review specially the rulings of the Circuit Judge as to the effect and validity of this, grant, or to pass upon any qustion not already disposed of. These rulings are irreconcilable to the conclusions we have reached; and the judgment must be-reversed, a new trial granted, and the cause remanded: for proceedings consistent herewith. There will be-judgment accordingly.

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Concurrence Opinion

Mabry, J.

(concurring):

That Ramirez, the Intendant, had no authority to-mate the grant, as construed by the opinion filed, of the land and water involved in this suit, and that to this extent his act was contrary to all Spanish law and. the rules for the government of the King’s subjects, known to us and in force in the Floridas at the time, I" am satisfied are correct conclusions.

I do not feel satisfied that the grant did not undertake to vest in Pintado a greater estate than that shown by the construction adopted, but I am satisfied that the-.'■.grant did invest Mm with, the estate to the extent the construction gives, and that Ramirez had no au■..thority to make it.