source: Caselaw Access Project

author: Mr. Justice WAYNE

license: Public Domain

text:
    Evariste Blanc, Plaintiff in error, v. George W. Lafayette and John Hagan.
    In 1816 .the register and receiver of a land dee, acting under the authority of a law, reported as follows : “ We are of-opn n that all the claims included under the second species of the first class are already confirmed by the act of Congress of the 12th of April, 1814.”
    In 1820 Congress passed an act (3 Stat. at Large, 573) confirming all those claims which were recommended in the report for confirmation.
    But where the commissioners erred in placing a claim in the second species of the first class, and erred in supposing that such a claim was already confirmed by the act of 1814, these errors prevent the act of 1820 from confirming thé claim. It is consequently invalid.
    This case was brought up from the Supreme Court of Louisiana, by a writ of error issued under the twenty-fifth section of the Judiciary Act. ;
    By agreement of counsel in the State court, many .original documents were used in the trial in the Supreme'Court of Louisiana, which were left out of the record when it was transmitted to this court. . It did not, therefore, furnish all the facts necessary for a complete statement of the case, which, however, have been taken from other áuthentie sources.
    It was a conflict between a patent issued for some land near New Orleans to General Lafayette, in 1825, and a clam advanced by Blanc under an old Spanish alleged grant. If the latter was not good, the patent to Lafayette covered the land in dispute. Blanc claimed under Liotaud. v
    On the 23d of May,--4.801, Louis Liotaud presented a petition to the Intendant Morales, praying that a tract of public land be granted to him., having six arpents front on the left bank of Canal Carondelet, with the ordinary depth, if there should be such a depth vacant, being bounded on the one side by the land, of Carlos Guardiola, and on all the other sides by public land. He states as a reason which entitled him to the favorable notice of the Intendant, that his object was to establish a large garden and drain the land, which would be advantageous to the public, and contribute to the salubrity of the city. And he bound himself to conform to the regulations relating to grants of land.
    On this petition an order was made on February 11,1802, which is attested by Carlos Ximenes, the notary, in these words: “ Vistos: pásese este expediente al agrimensor gnl. Don Carlos Trudeau para qué en vista de el informe lo conbeniente.” “ Let this petition be referred to the Surveyor-General, Don Carlos Trudeau, in order that he may report his opinion thereon.”
    These appeared to be all the papers to support the claim. No survey was ever made, nor any report upon the petition.
    On the 12th of April, 1814, Congress passed an act (1 Land Laws, 242) confirming certain claims in Louisiana. The title of the act is, “ An Act for the final adjustment of land titles in the State of Louisiana and Territory of Missouri.” By it certain claims were confirmed which had been presented to the register or recorder of land titles in the mode pointed out by a preceding law. Liotaud had filed a claim in the land-office, stating in his application,This land is claimed by virtue • of proceedings had before the Spanish intendancy in 1801 and 1802, of which proceedings the accompanying document is a true copy, as taken from the original in the register’s office for' the eastern district of .Louisiana.”
    On the 20th of November, 1816, the commissioners made . their report, and noticed this claim as follows : —
    “ Louis Liotaud claims a tract of land situated in the county of Orleans, on the left bank of the Canal Carondelet, leading to the Bayou St. John, containing six arpents in front and ' forty in depth, and bounded on one side by lands grante.d by the Spanish government to Carlos Guardiola, and on the other side by vacant lands. This tract of land is claimed by virtue of ah order of survey dated in the year 1802.”
    The commissioners included this claim in the second species of. the first class of claims', oh which the board reported as follows : “ We are of opinion that all the claims included under the second species of the first class are already confirmed by the act of Congress of the 12th of April, 1814.
    On the 16th of January, 1817, the Commissioner of the General Land-Office transmitted this report to Congress, and on the 11th of May, 1820, Congress passed an act (3 Stat. at Large, 573), entitled “ An Act supplementary to the several acts for the adjustment of land claims in. the State of Louisiana.”

      The first section of this act was as follows: “ That the claims for lands within the eastern district of the State of Louisiana, described by the register and receiver of the said district in their report to the Commissioner of the General Land-Office bearing date on the 20th of November, 1816, and recommended in the said report for confirmation, be, and the same are hereby, confirmed against any claim on the part of the United States.”
    So the matter stood until the year 1825, when, as has been already mentioned, a patent was issued to General Lafayette, which included the land claimed by Liotaud.
    On the 1st of May, 1841, George Washington Lafayette, residing in France, and John Hagan, residing at New Orleans, brought a petitory action against Evariste Blanc, who claimed under Liotaud. The defendant alleged that he then was, and had been for more than a year before the commencement of the suit, in quiet possession of the land, and denied the plaintiffs’ possession or right of possession. He also pleaded the prescription of twenty and thirty years.
    In May, 1846, the cause came on for trial in the Parish Court in and for the parish and city of New Orleans, when there was a judgment for the defendant. The plaintiffs appealed to the Supreme Court'of Louisiana, by which, in January, 1848, tuc judgment of the Parish Court was reversed ; and to review this decision, upon the ground that his claim was confirmed by an act of Congress, Blanc sued out a ,writ of error, and brought the case up to this court.
    It was' argued by Mr. Bullard, for the plaintiff in error, and by Mr. Janin, in a printed argument, for the defendants in error.

      Mr. Bullard

    stated the case, and then proceeded.
    The only question, therefore, which this court is'called upon to solve is, whether the claim of Louis Liotaud was confirmed by the act of the 11th of May, 1820, and to that act and the report of the register and receiver to which it relates, I proceed to invite the attention of the court.
    The report of Harper and Lorrain was made in November, 1816, and was laid before Congress by the Secretary of the Treasury. It is to be found in extenso in the State Papers (Public Lands), Vol. III. pp. 254 et seq.

    The claim of Liotaud, numbered 409, is classed by the register and receiver ip the second species of the first class.
    The act of. the 11th of May, 1820, provides, that “ all claims described in this report and recommended for confirmation are confirmed.” See Laws, Instructions, and Opinions, 1st part, p. 330, Act of 11th May, 1820.

      In determining what particular claims were confirmed by this act, the court ought, I think, to look at the whole report together, and if it appears that the register and receiver regarded them as valid claims under the various acts of Congress, in whatever form of words that opinion was expressed, a liberal construction should be given to the act. It is true the register and receiver say in relation to the claims classed with this,-that in their opinion they are already confirmed by a previous act of Congress in 1814. In this they were perhaps mistaken; but surely it is a strong form of expression of an opinion that they ought to be confirmed. The- court below gave a very narrow and illiberal construction to the act, and, seizing upon this expression, declared that it was a mistake, and that the act did not confirm this claim. If they had looked further into the report they would have found that the commissioners make favorable mention of this claim, although they say they may have been mistaken in supposing that it had already been confirmed. The truth is, as it appears to me, all the claims thus classed, all that were not rejected by the register and receiver, were, according to a just and liberal construction of the act, treated as valid claims under the treaty, and confirmed by the act of 1820. They have always been so treated and regarded by the Land Department of the government., and-this very claim is laid down on the public surveys of the township in which it is situated.
    If, then, in 1820, the government relinquished its title to the. land in controversy in favor of a claimant under an inchoate Spanish grant, it seems quite clear that the same . land could not validly be patented to General Lafayette in 1825, as a donation, or in remuneration for eminent 'public services. It no longer belonged to the domain. It is true no patent ever issued to the confirmee, but the act of 1820 does not provide for patents in such cases, and I presume this court will hold that the act.itself is a legislative grant of land with specific bqundaries, and that the act of Congress, together with a location and survey approved by the Surveyor-General, is equivalent to a patent. Such is the view taken of it by the Department of the Interior. I admit the general rule to be, that the legal title is still in the domain until a patent issues, but that rule only applies to cases in which, by law, a patent is required for the perfection of the title of the confirmee or purchaser, or other grantee.
    The court of Louisiana further erred in looking behind the confirmation, and deciding that the primitive inchoate title was not valid according to the laws and usages of the government of Spain. They cite some old cases from the Louisiana Reports to that effect, but those were cases in which neither party had a legal title; both held under commissioners’ certificates, and had only equitable titles, and the court decided upon the comparative value of the primitive titles. When the register and receiver have recommended an ancient Spanish title for confirmation; and it has accordingly been confirmed by an act of Congress, I conceive that it is conclusive and cannot be opened. But even if the court had a right to look behind the confirmation, it was in error in supposing that the imperfect title of Liotaud was not valid under .the Spanish law. In 1798, the Governor-General was deprived by a royal cédula of the right of granting lands, and that authority was vested -in the intendancy. The forms of proceeding in the tribunal of the' intendant, with a view of obtaining a grant of land, are familiar to this court. The person who desired to obtain a concession of land presented his petition (requite) to the intendant. The intendant, through the medium of a notary, made a written order referring it to the surveyor-general, in order to ascertain whether the land was vacant. In the particular case now before the court this was done. It .doe's not appear that the surveyor-general made any particular .report, but it does appear that he noted on-a general plot of land near New Orleans, made by order of the government, the tract of land solicited by Liotaud. Here all further proceedings were arrested by the change of government in 1803. The papers were filed in the office of the intendant, and marked with others “ instancias pendientes,” or proceedings yet pending. The order, or auto, of the intendant must be regarded as a primero decreto, and equivalent to a warrant or order of survey under the preceding forms of proceeding while the- governor had the power to grant lands; although the land thus solicited did not become the property, strictly speaking, of the petitioner, yet under numerous decisions of this court I submit whether it did not confer such' a right as was protected by the treaty of cession. Be that, however, as ii may, the question now is, whether the claim founded on such a commencement of title has been recommended by the .commissioners for confirmation, and confirmed by act of Congress; if so, it clearly amounts to a relinquishment of title on the part of the United States from the date of the act of Congress, and in 1825, the dater of Lafayette’s patent, must "be regarded as a rightful claim, and .not embraced in the grant to Lafayette by his patent.

      Mr. Janin, for the defendants in error,
    made the following points: —

      1st. There never was a grant or ' order- of survey, or even a permission of settlement, in favor of Liotaud. There was a petition and an order to Trudeau to give his opinion on it, and that is all. The petition was of the 23d of May, 1801, the order was not made on it until the,11th of February, 1802. And we have a plan introduced by the defendant, dated the 1st of' March, 1802, purporting to bé a plan of the concessions in the neighborhood of New Orleans, executed by Trudeau by order of Morales. On this the land claimed by the defendant is designated as •“ Terreno solicitado per Don Louis Lioto (Liotaud).” ' Trudeau, therefore, knew of this claim, and if he did not report on it, it Wjas' not unintentionally. Possibly he knew that it conflicted with the claims of Castillon and Griffon (see Turner’s survey of 1825), possibly h§ thought that the land ought to be reserved for the commons of the city; but whatever might be his reason, certain it is that he did not'' report on it, still less survey it. Adjoining this is-.another tract, marked on that plan “ Terreno solicitado per Don Gilberto Guillemard.” That tract was no doubt claimed and petitioned for in the same manner and form as Liotaud’s. And yet it is included in the undisputed portion of General Lafayette’s grant. Very probably the-petition was, and perhaps still is, in the samé bundle of “instanciaspendienlés” in which Liotaud’s petition was found. And as Liotaud’s petition was No. 107, fol. 61 (see Lawson’s certificate) of the “ inslantias pendientes” we have the assurance that there are at least 106 other such claims which have the same merit as 'Liotaud’s. But he was the only one to claim a confirmation on 'an abandoned, neglected, or rejected, petition. And he did not (see his notice) pretend that he had an order of survey. ' His claim was based on “ proceedings.” It is thus he qualified, his petition and the order of reference. But no Spanish law or act of Congress is extant recognizing a claim to land merely because it was asked for.
    , 2d. This claim has never been confirmed. This case is identical with that of Orillon-i;. Slack, 11 La. Rep. 591. Reboul and Franchebois’s -claims, discussed in that case, are ' embraced in the same report as Liotaud’s, and separated,from it 'by only three claims. 3 Public Lands, 255, 256. The court held that'the report of the register and receiver of November 20, 1816, that these claims were already confirmed b.y the áct of April 12, 1814, was not a recommendation -that they should be confirmed, and as the act of May 11,1820, confirmed only such claims as were embraced in the- report and rec-' ommended for confirmation, it did not confirm the claims'1 in question. The register ■ and receiver did not recommend them for confirmation, because in their opinion they were already confirmed. Whether they were right or wrong in this opinion, they certainly did not recommend'them. They left them where they were. On such claims as were confirmed by the act of April 12,1814, they were not to make a report recommending them for a second confirmation, nor did they do so; but they were authorized, by the third section of that act, to issue at once certificates of confirmation, which the Commissioner of the General Land-Office was to examine, and which were to be followed by patents. The opinion expressed in the report of November 20, 1816, on these claims, is a disclaimer of jurisdiction, and no more. That opinion has never been taken into consideration or sanctioned by Congress; it is therefore of no weight with the court, who must examine for " themselves whether indeed the act of April 12,1814, did confirm Liotaud’s claim. And by examining that act it will appear beyond argument that the opinion of the register and receiver was erroneous.
    The confirmatory provisions of that act are contained m the first and second sections. They confirmed only claims which were embraced in previous reports of commissioners, or registers and receivers, and which Were based on incomplete French or Spanish grants or concessions, or warrants or order's of survey, which had been filed in the proper offices, and when it appeared by the report of the commissioners, or registers and receivers, that the concession, warrant, or order of survey contained a special location, or had been actually located or surveyed before the 20th of December, 1803. None of thevarious. kinds of claims confirmed by that act resembles Liotaud’s.
    3d. General Lafayette’s patent was issued in strict compliance with the aots of Congress relating to this subject. He was first to locate the land, then have it surveyed, and on the presentation of the suryey, together with the certificate of the register, stating that the land is nofe-rightfully claimed by any other person, the patent was to issue. On the survey in evidence in this claim, the land involved in this suit is represented as vacant.
    But the defendant contends that the register was mistaken, that the certificate should have shown that this land “ was rightfully claimed by Liotaud,” and that his rights could not be defeated by the register’s error.
    It is more than probable that the register, when he gave that certificate, discovered that his error was in having expressed, in 1816, the opinion that Liotaud’s claim was already confirmed. And having discovered this error, it was his duty to state that this land was vacant.

      4th. If it was true that'Liotaud’s claim was confirmed by the act of May 11', 1820, and had it been patented, it would yet have to give way to General Lafayette’s patent. Liotaud could only obtain a confirmation and a patent in defiance of law. “ If the patent has been fraudulently obtained, or issued against law, it is void.” Stoddard et al. v. Chambers, 2 Howard, 318. If a confirmation has been fraudulently obtained, no certificate of survey will be issued, and the patent will be withheld. Opinion of Attorney-General Wirt, of November 25,1824, Collection of Laws, Opinions, and Instructions relating to the Public Lands, Vol. II. p. 24. Opinion of Attorney-General B. F. Butler, of July 31, 1839, Ibid. p. 1040.' Such a confirmation, such a patent as are here hypothetically assumed to have taken place, could only be the result of fraud. It was a fraud on LioL.ad’s part to present his petition as giving him a claim to land, and to rely upon the register and receiver’s ignorance of the Spanish language. If'those officérs had recommended such a claim for confirmation, it would also on their part have been either fraud, or such gross.negligence as the law assimilates to fraud. ■ Intending not to act on this claim or recommend it for confirmation, they examined it perhaps very hastily, and allowed themselves the more easily to be misled by Liotaud’s misrepresentations.
    5th. Had Liotaud’s claim been confirmed, either by the act of April 12, 1814, or by that of May 11, 1820, it would yet not have severed the land from the domain, for the claim is indefinite and its location uncertain, it never was surveyed, and no plan was filed with it when the confirmation was claimed. It was a claim for six arpents front on the left bank of Canal Carondelet, with the ordinary depth, if that depth could be found, bounded on one side by the land of Carlos Guardiola, and on all the other sides by public land. “ Until a concession is located, it' can give no claim to any specific tract of land.” Bissell v. Penrose, 8 Howard, 341.
    The description in the claim would permit its location on one side of Guardiola’s land as well as on the.other. Guardiola owned two arpents front on Canal Carondelet, running back between parallel lines to Gravier’s plantation ; this strip of land is nearly parallel to. the real line of the city of New Orleans, and half a mile distant from it. If Liotaud’s claim was located on the city side of Guardiola’s land, .it would conflict with General Lafayette’s 114 acres; if located on the other side, no conflict would exist between those parties. The direction of the said lines and the extent of the claim are equally uncertain. Nor is the obscurity of the claim removed, by possession, for Liotaud never exercised any act of possession, and the plaintiff in error was the first to attempt equivocal acts of possession, the land being all swamp.
    This case falls under the principles discussed in Bissell v. Penrose, 8 Howard, 332. There a New Madrid patent was declared void, because it had been located- upon land duly-claimed under a Spanish concession, and therefore withheld from sale. And it was admitted that, if the Spanish concession had not heen located by a survey, the patent would have prevailed; in other words, the land would have been considered as public property not detached, from the domain. Whether the act of Congress, by which a claim is confirmed, requires the issuing of a patent or not, a definite designation by a survey is equally necessary to separate the land from the domain and deprive the United States of the right of disposing of it. Such has also always been .the doctrine of the Supreme Court of Louisiana. In the present case that court said (3 Annual Reports, 61): “ This, location, unsupported by any survey, or by actual possession, before the change of government, would be too indefinite and uncertain to prejudice the plaintiffs in •error [here the defendants]. We take the rule to be, that, in order that the confirmation may have the force and effect of a patent, the description in the inchoate title, or in the act of Congress, must be such as will identify the land. If it will fit another place better, or equally well, it is defective, and will not protect the holder who can show no original possession against a subsequent location, made under the authority of "Congress.” See also Lefebvre v. Comau, 11 La. Rep. 321.
   Mr. Justice WAYNE

delivered the opinion of the court.

The plaintiff in error having claimed the land in dispute under an act of Congress, and-t'he construction of that act by the Supreme Court of Louisiana having been against the claim, the case is brought here under the twenty-fifth section of the. judiciary act"of 1789, to have the opinion given in that court reviewed by this tribunal.

The question presented is, whether or not the claim of Louis Liotaud for a tract of land situated in the Eastern District of Louisiana was confirmed by the act of Congress of the 11th of May, 1820 (3 Stat. at Large, 573), against any claim to the land by the United States, so that an entry-could not be made upon it in favor of Major-General Lafayette.

The plaintiff in error claims under Liotaud. That claim will be found in 3 American State Papers, Public Lands, 224.

’ It is, “ that Louis Liotaud claims a tract of land, situated in the county of Orleans, on the left bank of the Canal Carondelet, leading to the Bayou St. John, containing six arpents in front, and forty in depth, and bounded on one side by lands granted by the Spanish government to Carlos Guardiola, and on the other side by vacant lands. This tract of land is claimed by virtue of an order of survey dated in the year 1802.” This memorandum is found in the report of the commissioners for ascertaining and adjusting claims to land in the eastern district of the State of Louisiana. It was transmitted to Congress on the 16th of January, 1817, by Josiah Meigs, the General Land Commissioner. 3 American State Papers, Public Lands, 222.

The claims were divided into three general classes: —

1. Such as stand confirmed by law.

2. Those which the register and receiver thought ought to be confirmed.

3. Such claims as in their opinion could not be connrmed under existing laws.

The first class comprehended three species of claims: — 1. Such as-were founded on complete titles, granted by the French or Spanish governments. 2. Claims resting upon incomplete French or Spanish grants or concessions, warrants, or orders of survey, granted prior to the 20th of December, 1803. 3. Claims rejected by a former board of commissioners, merely because the lands claimed were not inhabited on the 20th of December, 1803.

Liotaud’s claim is put by the register and receiver in the second species. 3 American State Papers, Public Lands, 224. ■

This report was acted upon by Congress. It declared that “ the claims for lands within the eastern district of the State of Louisiana, described by the register, and receiver of the ,said district, in their report to the Commissioner of the General Land-Office, bearing date the 20th of November, 1816, and recommended in the said report for confirmation, be, and the same are hereby, confirmed against any claim on the part of the United States.” Act of May 11, 1820, ch. 87, § 1 (3 Stat. at Large, 573).

The register and receiver had said in their report, that all the claims included under the second species of the first class were already confirmed by the act of Congress of the 12th of April, 1814. . In this they were certainly mistaken, as they were also in placing Liotaud’s claim in what was termed in their report the second species of the first class of claims.

The record does not contain a copy of the order of survey in favor of Liotaud, mentioned by the register and receiver, dated as they say in the year 1802. Nor is there in it either of those documentary papers, uniformly given by the intendants-general of Spain when grants of land were' made. We have not before.us either a grant or order of survey in favor of Liotaud. Nothing to make the claim ah inchoate right, upon which a title could be enlarged, in favor of Liotaud. Indeed, we do not know any thing from the record about it, and all that we do know of the claim is the memorandum of the register and receiver already recited. That discloses that the order of survey mentioned had been given after the cession of Louisiana by his Majesty to the republic of France. Register Harper and Receiver Lawrence say in their report that Liotaud’s claim is founded on an order of survey dated in the year 1802. Apart from the consideration that thé order for a survey is dated after the time when Spain had parted with her political sovereignty .to grant land in Louisiana, there is no proof of any thing having been subsequently done by Liotaud, or by any official of Spain, to give to Liotaud even an inchoate equity to the land. The claim, then, could not be rightfully, nor was it understandingly, put by the register and receiver untler the second species of the first class of claims of incomplete French or Spanish grants or- concessions, warrants, or orders of survey granted prior to the 20th of December, 1803.

Liotaud’s claim, having been mistakenly put where we find it, it is neither witfiin the letter nor the intention of the act of the 11th of May, 1820, confirming titles to land described by the register and receiver. Congress meant to confirm claims to land under some documentary right from France or Spain, and not claims by persons without any such proof. Liotaud’s claim, then, under which the plaintiff in 'error asserts his right, does not interfere with the patent for the same land issued by the United States in favor of Major-General Lafayette.' It is admitted in the case, that the defendants in error have acquired the rights of General Lafayette to the lands in dispute. All of us think' that there was no error in the judgment of the Supreme Court of Louisiana, and its judgment is affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Justice DANIEL

text:
    Ambrose Lecompte, Appellant, v. The United States.
    Where the petition for’ a Spanish concession was for a tract of land without any definite boundaries, and the petition was referred to the solicitor-general, with instructions to put the petitioner in possession, if in so doing no prejudice would result to third persons, this condition required some subsequent action of the government in order to make the grant absolute.
    A part of the duty of the solicitor-general was to Supervise the severance of the object to be granted from the royal domain, and apportion the extent of the grant to the means which the petitioner possessed toward^ carrying out the objects of the government.
    The preceding decisions or this court have established the doctrine, that, in order to constitute a valid grant, there must be a severance of the property claimed from the public domain, either by actual survey or by some ascertained limits or mode of separation recognized by a competent authority.
    In the present case, the proof of occupation, settlement, or cultivation is insufficient.
    This was an appeal from the District Court of the United States for the District of Louisiana.
    Lecompte claimed under D’Artigau by'a chain of title which it is not necessary to set forth.
    On the 31st of July, 1797, D’Artigau presented the following petition to José Maria Guadiana, then lieutenant-governor and civil and military commandant of the' post of Nacogdoches : —

      “ Don Juan Baptiste D’Artigau respecfully begs leave to state to your Excellency that he desires to establish a stock farm, to raise horses, mares, and horned cattle, at the place called Lianacoco, within this jurisdiction ; for said object, he prays your Excellency will please grant him two leagues square of land at,the above-mentioned place, so that in these two leagues be included or embraced the entire prairie of Lianacoco. The. petitioner solicits this grant for himself, his children, and assigns, and, from your well-known sense of justice, he hopes to obtain it.
    (Signed,) J. B. D’Artigat?.
    “ Nadogdoches, 31si July, 1797.”
    And on the same day the lieutenant-governor issued the •following order: —
    “ Nacogdoches, 31si July, 1797.
    “ Let this petition be handed to the solicitor-general of this place, in order that the petitioner be placed in possession of the land therein mentioned, if in so doing, no prejudice can result to any third party.
    (Signed,) Guadiana.”
    The claimant alleged that possession was taken by the grantee, and continued by those .who held under him until the commencement of the suit.

      This claim was twice'reported upon by the commissioners ' appointed by acts of Congress, once in 1816, and again in 1824.
    In January,. 1816, the commissioners reported (3 American State Papers, 88) that Madame Louise Porter filed with the board of commissioners her claims, as assignee of D’Artigad; also the testimony of Gaspard Boudin, taken before the board, that, about thirteen or fourteen years ago, (viz. about 1802 or 1803,) Madame Monet had possession of this land in exchange for another tract with D’Artigau, and that she put Jaques, an Englishman, on it, and that it had been inhabited and cultivated ever since.
    The board, at page 91, report, that this tract is, with others emanating from the Spanish authorities at Nacogdoches, west of Rio Hondo, in the disputed territory ; that they have had no means of acquiring satisfactoryinform’atiojn of the powers and authorities of-the Spanish officers at that place, and therefore decline a decision upon those claims.
    On the 3d of March, 1823, Congress passed an act (3 Stat. at Large, 756, ch. 30), relative to claims in this tract of country, between the Rio Hondo and Sabine River, called the neutral territory.
    The first section adds the country “ situated > between the Rio Hondo and the Sabine River, within the State of Louisiana, and, previously to the treaty of the 22d of February, 1819, between the United States and Spain, called- the Neutral Territory,” to the district south of Red River, requires the register and receiver to receive and record all written evidences of claims to land in that neutral country, “ derived from, and issued by, the Spanish government of Texas, prior to the 20th of December, 1803, according to the regulations as to the granting of lands, the laws and ordinances of said government, and to -receive and record all evidences of claim founded on occupation, habitation, and cultivation, designating particularly the time and manner in which each tract was occupied, inhabited, or' cultivated, prior to, and on, the 22d day of February, 1819, and the continuance thereof subsequent to that time) with the extent of the improvement on each tract, and to receive and record such evidence as may be produced touching the performance of the conditions required to be performed by any holder of any grant, concession, warrant, or order of survey, or other written evidence of claim, and on which the validity of such claim may have depended under the government from which it emanated; and to receive and record all evidence of fraud in obtaining or issuing the written evidence of such claims, and, of their abandonment of forfeiture.”

      Section second required the register and receiver to transmit to the Secretary of the Treasury 'a record of all the claims presented, and the evidence appertaining to each claim ; the claims to be arranged in four classes : — -
    1. A specification of complete titles, transfers, &c., where the conditions have been complied with.
    2. All claims on written evidence not embraced in the first class, where the conditions on which the perfection into complete titles depended, according to the laws and ordinances of the Spanish government, are shown' to have been complied with.
    3. All claims founded on habitation, occupation, or cultivation, previously to the 22d of February, 1819, and in the manner which would have entitled the claimants to a title under the government exercising the sovereign power over .that tract of country, and which in their opinion ought to be confirmed.'
    4. Those claims which, in the opinion of the register and receiver, ought not to be confirmed :
    “ Provided, that nothing contained in this act ■ shall be considered as a pledge on the part, of Congress to confirm any clairmthus reported.”
    By a supplementary act, approved the 26th of May, 1824 (4 Stat. at Large, 65, ch. 182), the powers given, and duties required of, the register and receiver of the land-office, south of Red River, in the State of Louisiana, by act of the 3d of March, 1823, cb. 30 (the act above recited), be extended to all that tract of country called the Neutral Territory, “'lying east of the presént western boundary of Louisiana, and west of the limits to which the land commissioners have heretofore examined claims to land in said State; and in the examination of claims to land within the aforesaid limits, the register and receiver shall in all respects be governed by the provisions of said act.”
    In November, 1824, these commissioners made a report, which was communicated to the Senate by the Secretary of the.Treasury, on the 31st of January, 1825. (4 American State Papers, 69, claim 230.)
    ■ This report shows the powers, customs, and usages of the lieutenant-governors'and commandants of the Spanish Province of Texas to grant lands as far back as 1792; then special instructions came, which.were deposited among the public records ; they were not limited to any specific quantity, but it was- their duty to apportion the quantity to the circumstances of the individuals asking concessions; “ to proportion their grants to the property, force, stock, and merit of the individual asking the grant.”

      “ Thé. procurador del común was the officer appointed -to make inquiry, put the petitioner in possession, of the land prayed for, -and .execute .the lieutenant-governor’s and commandant’s orders relative to the premises.”
    The lieutenant-governors and commandants of Nacogdoches,' were “ not limited in the granting of lands to any specific’ quantity, but it was their duty to proportion the 'extent of the grants to the circumstances of the individual claiming them, and to that effect the procurador del corriun, named to put the party in possession, inquired info the merits and circumstances of the applicant; and if the grant, was for a stock farm, it was customary to extend the concession to two, three, and four leagues square, according to the wants’ and merits of the claimant.”
    “ All grants signed and confirmed by the lieutenant-governor or commandant, executed in due form, were, considered as vesting a completé title in the claimant, without any further process, and were recognized as such by the Governor of the Province, particularly by- Governor Salcedo in 1810, when at Nacogdoches making his provincial visit.”
    “ The limits of the late Neutral Territory, as considered by ancient authorities of Texas and Louisiana, comprehended all that country lying east of the Sabine, .west' of the branch of Red River called Old River, southwest of Arroyo Hondo, and south- of Red River, to the northwestern boundary of the State of- Louisiana.”
    “ The inhabitants'of the Neutral Territory were recognized as belonging to the jurisdiction of Nacogdoches ; and the Spanish authorities considered their right of civil jurisdiction not taken away by the arrangement between General Wilkinson and Governor Herrera in the year 1806; yet it was seldom exercised or enforced.”
    “ The public archives and records of the jurisdiction of Nacogdoches are not at that place at present; they were removed and carried off by John Jose Montero, in 1812, then commanding at Nacogdoches, when he abandoned that place,” — “ and were destroyed at San Antonio, where said Montero carried them.”
    Such is the substance of the testimony taken by the • commissioners, and reported more at large in that volume, pp. 34, 35, and 36. • ’
    At page 69. claim 230, the commissioners report the claim of John Baptiste Lecompte, lying in the Neutral Territory, founded on the concession to D’ Artigau, before set forth, containing, by the plat and survey by Joseph Irwin, a deputy surveyor of the United States in 1813, and filed with the claim, two leagues square, or 23,507 acres; which concession “ was signed by the commandant of Nacogdoches, dated 31st July, 1797, in favor of Jean Baptiste D’Artigau for the land claimed, transferred by said D’Artigau to Marie Louise Lecompte, Dame Porter, by act of exchange, dated-, and by said Dame Porter transferred to the claimant by act of-sale, dated the 19th of June, 1813; claimed also in virtue of habitation, occupation, and cultivation for more than thirty-three years.”
    The claim is further supportéd by the following testimony, taken before the board : —■
    “ Gaspard Boudin : That the land has been constantly and uninterruptedly inhabited,'occupied, and cultivated by those under whom the claimant, J. B. Lecompte, holds, by the claimant, and for his use by others, for more than thirty-three years preceding this date.” (That is, preceding this sitting of the commissioners.)

      “ We are of opinion this claim ought to be confirmed, and in the abstract have classed it with claims of second class.” (Viz. incomplete grants, “ where the conditions on which the perfection thereof into complete titles may have depended, according to the laws and ordinances of the Spanish government, are shown to have been complied with.”)
    In May, 1846, Lecompte filed his- petition in the District Court of the United States (under the act of Congress of 1844 so often spoken of), setting forth the grant, the- order of survey, possession under it, and" a deduction of title from D’Artigau to the petitioner. An answer was filed by Mr. Downe, District Attorney of the United States, denying generally all the facts and allegations of the petition. Afterwards, by leave of the court, the following supplemental petition was filed: —
    “ The supplemental petition of Ambrose Lecompte, the plaintiff in the above-entitled suit, with respect represents, that the warrant and order of survey and grant legally made and issued to J. B. D’Artigau as aforesaid, in the original petition, was such as might and could have been perfected into a complete title under the laws, usages, and customs of Spain, had not the sovereignty of the country been changed; that the same was secured by treaty stipulations, and was and is good and valid under the law of nations, and by the several acts of Congress.”
    Much testimony was taken, which cannot very well be condensed, and in November, 1847, the cause came on for trial, when the court pronounced the following judgment: —
    “ The court having taken this cause under advisement, and having maturely considered the sqme, and it appearing that the petitioner has not sustained, by the evidence offered, the validity of his claim against the United States to the land set forth in his petition, it is therefore ordered, adjudged, and decreed, that the suit be dismissed at the cost of the plaintiff.
    “Judgmentrendered 22d November, 1847.
    “ Judgment signed 15th December, 1847.
    (Signed,) Theo. H. McCaleb, [seal.]

      TJ. S. Judge."

    Lecompte appealed to this court.
    The case was argued by Mr.' Crittenden (Attorney-General), for the United States. No counsel appeared for the appellant, but the recpfd contained ,the following note of authorities filed by the counsel'for the petitioner in the District Court.

      Note of Authorities, filed October 26th, 1847.
    “ Ambrose Lecompte v. The United States.
    “ The plaintiff in this case claims four leagues of land at a place called Lianacoco, in the late Neutral Territory, by virtue of' a grant executed by Guadiana, commandant of the post of Nacogdoches, in favor,of J. B. D’Artigau, who transferred the same to Marie Louise Lecompte, Dame Porter, from whom plaintiff acquired titk.
    “ 1st. The original title of the plaintiff is inchoate, but is such as under the court of Spain would have ripened into' a perfect title, and should therefore be confirmed. Delassus v. United States, 9 Peters, 129, 134; Land Laws, ed. 1828, pp. 532, 548, 843.
    “ 2d. The grant in question has by its terms a special location, to wit, so as to include the whole of the Prairie Lianacoco. IQ Peters, 340. Query, Was not this claim confirmed to the extent of one league by the act of Congress of the 12th of April, 1814 (Land Laws, ed. 1828, p. 651), and the act of the 29th. of April, 1816 (p. 7Q1) ? 3 Howard, 788.
    “3d. Inchoate titles were transferable. Chouteau’/s Heirs v. United States, 9 Peters, 144. Transfers of land could be made by parol under the Spanish law, and parol proof of such transfer is therefore admissible. Sanchez v. Gonzales, 11 Martin, 207; Gonzales v. Sanchez, 4 Ibid. N. S. 657; Le Blanc v. Viator, 6 Ibid. N. S. 257; Maes v. Gillard’s Heirs, 7 Ibid. N. S. 317; Ducrest’s Heirs v. Bijeau’s Estate, 8 Ibid. N. S. 197; Sacket v. Hooper, 3 La. Rep. 107.
    “ See generally in this case ‘ extracts from the code of Spanish laws,’ Appendix Land Laws, ed.. 1828, p. 967; extract of the report of Valentine Ring & Co., Appendix Land Laws, 1039.
    (Signed,) • P. A. Morse,' Plaintiff's Attorney."

      Mr. Crittenden,. for the United States.
    This claim originated in 1797, when Spain held undisputéd domain and jurisdiction of the whole territory between the Rio Hondo and the Sabine River. The dispute about the domain and jurisdiction arose after the United States acquired Louisiana' from France, under the act. of retrocession of Louisiana by Spain to France. . Spain denied that Louisiana included the territory between the Rio Hondo and the Sabine River. The controversy about this territory was adjusted by the treaty between the United States and Sp(ain in 1819, which contained the provisions before mentioned m reference to private rights and interests derived from the lawful authorities of Spain before the 24th of January, 1818.
    The following objections to this claim are apparent: —
    I. It does not appear that D’Artigau ever' handed his petition, with the indorsement thereon by -Guadiana, to thé procurador del común, as required by the order of' Guadiana, and by the laws, customs, and usages of Spain; and the procurador del común never did inquire into “the property, force; stock, and merit” of D’Artigau, nor proportion nor apportion to him, ñor put him in possession of, any part of the land petitionéd for; which action by the procurador del común was a condition •precedent and indispensable to the validity of the claim..
    II. There is no proof that D’Artigau ever had possession'of a ,single arpent, or ever farmed, cultivated, or improved any part of the land petitioned for; or did, or caused to be done, any act whereby to acquire to. himself in private‘right, as severed from the public domain, any definite quantity, or any specific tract, of land.
    III. The Prairie Lianaeoco (as represented on the plot exhibited as document No. 10) is in length about twelve hundred and forty perches, and in. average width about two hundred and four perches, in. area not.exceeding sixteen hundred American, acres ; but the quantity claimed is to the anruunt of 23,705 American acres, equal to 27,777 superficial arpents of Spanish measure. Such being the area of the prairie, it was uncertain whether the procurador del común, upon an. examination as to “ the property, force, stock, and-merit” of D’Artigau, would have put him in possession of the whole of the. prairie, and if not of the. whole, of what part. And as.to the' quantity of two leagues square, including the prairie, the locality thereof was uncertain and vague, especially requiring the official act of the procurador del común to. give the claim a fixed locality, a precise certainty, so that the adjacent residuum might be known as subject to be granted to others.
    The surveys Which might be made of two leagues square aboqt and including this prairie are various and indefinite.Of squares, each side measuring four hundred and eighty-five chains (of four poles each), one might be made barely including-the east end of the prairie at the middle of that eastern boundary, and extending due west; a second might be made including, the west end of the prairie, at the middle of that western boundary, and extending due east; a third might be made including the points midway between the eastern and western ends of the prairie, within and at the middle of the southern ■boundary, and extending due north; a fourth might be made including the point midway between the eastern and western ends of the prairie, at and within the middle of the southern boundary, and extending due south; a fifth, as represented on plat exhibited, documerit 10, beginning at the point A, near the western .end of the prairie, thence south fifty degrees east, 204 four_-pole chains; thence , north forty degrees east, 484 chains; thence' north fifty degrees west, 485 chains ; thence south forty degrees west, 484 chains ; thence south fifty degrees east, 281 chains, to the beginning; all and every one to include the whole of the Prairie Lianaeoco, yet including very different lands outside of the prairie. ""Square figures, varying frpm the cardinal points of the compass, and'including the prairie nearer or more remote from this angle or that, might be multiplied at pleasure, each one answering as fully and as perfectly as any .other-to the-prayer of D’Artigau’s petition, “so that in these two leagues be included or embraced the entire prairie of Lianaeoco.”.
    This wandering uncertainty in the petition and order thereon made to the procurador del común would Iceep in suspense more than one hundred thousand acres around the prairie, as subject to be surveyed for D’Artigau, until the procurador del común had exercised his functions and performed his duty, in giving a precise quantity and definite locality by a survey of the land, and putting D’Artigau in possession according to the metes and bounds of the survey. This uncertainty illustrates ,the propriety of GuadianaTs order to the procurador del común., ‘ and the necessity, that he should Have performed his duty before D’Artigau could have had a valid right and- interest in any defined quantity, or in any fixed location of land.
    IV. The document No. 10, exhibited by complainant, which he has called a survéy made “by the proper authority under the government of the United States,” is no.t entitled to any such appellation, nor to any legal effect or consequence.
    The claimant at whose request Erwin made that survey and _ plat is not stated; it does not profess to have been, made, by ^Virtue of any warrant, order of survey, or legal authority; it is not an official paper; it was never’returned by him to any office as an official act done by one lawfully deputed to do the act; it has never been acknowledged by the government of the United States, or by Spain, as an official act or authorized survey. Erwin had no authority from or under the government of the United States to make the survey; it does not appear whose deputy Erwin was; it does not appear by any evidence in the cause that Erwin was even in the employ of the United States as a deputy surveyor; certainly he was not authorized to make surveys upon Spanish concessions.
    That documént-cannot be regarded in any'other light than as a. private, unofficial act, done by Erwin at the request of some private person, whose name he has not given, and, for what purpose he has not stated.
    V. There is no legal evidence to show that D’Artigau ever agreed to transfer, or did-transfer, his claim to Marie Louise Lecompte, Madame Monet, Dame Porter; the .proof relied on in that respect is totally defective as to time, place, circum- ■ stance, and. competency. ‘D’Artigau had not a transferable interest ; there is no evidence to prove that Marie Louise Lecompte, Dame Porter, ever was accepted or acknowledged by the authorities of Spain as the assignee of D’Artigau; the procurador del común never examined into her “ property, force, stock, and'merit,” nor proportioned the quantity of land which she should have as assignee of. D’Artigau, nor was she accepted in the place and ste.ad of D’Artigau.
    VI. How much land was improved, cultivated, fenced, and actually occupied by Marie Louise Lecompte, Dame Porter-, or by those claiming under her, does not appear; and mere possession cannot be allowed to give right !and title against the government of Spain or of the United States.
    Recopilación CWhite’s), - p. 83, “ Of the Capacity of the Thing,” and pp. 85,86, “Of Time Immemorial .as necessary, to prescribe.”
    VII. This claim is not valid by the laws of Spain, is not protected by the treaty of 1819, nor by the law of nations. The condition annexed by the laws of Spain to the order and concession of Guadiana was never fulfilled. This is an attempt by Marie Louise Lecompte and the complainant to set up the derelict abandoned claim of D’Artigau, who died in 1799 or 1800, without having presented the order of Guadiana to the procurador del común, without having acquired'any valid right or title to an acre of the land alluded to in his petition.
    VIII. This claim is invalid-according, to the principle settled by this court in the cases of U. States v. King, 3 Howard, 786, 787; U. States v. Forbes, 15 Peters, 183, 184; Buyck v. U. States, 15 Peters, 225; O’Hara v. U. States, 15 Peters, 281, 288; U. States v. Delespine, 15 Peters, 334, 335; U. States v. Miranda, 16 Peters, 160, 161.
    ThL court cannot' know what quantity of land the procurador del común would or ought to have assigned to D’Artigau if he had presented Guadiana’s order, nor the local identity which he would have given. The courts of the United States cannot relieve against such a palpable neglect of the claimant, • such a primitive uncertainty as to the quantity of land, and such a radical defect of specialty.
   Mr. Justice DANIEL

delivered the opinion of the court.

• This'is an appeal from a decree of the District Court of. the United States for the District of Louisiana, pronounced on the 22d of November, 1847, dismissing the petition' of- the appellant, filed under authority of the act of Congress of June 17th, 1844, and by which was claimed of the United States a tract of land situated in Louisiana of four square superficial leagues, ' or about 23,705 American acres.

The appellant, as the heir of Marie Louise Lecompte (also styled Dame Porter and Madame Monet), and as heir of his late father, Jean Baptiste Lecompte, bases his claim upon the following statements. He asserts that on the 31st of July, 1797, one Jean Baptiste D’Artigau, then an inhabitant of Nacogdoches, presented his petition to José Maria Guadiana, then lieutenant-governor and military commandant of the post of. Nacogdoches, asking for a grant of two leagues square, to include the: whole of the Prairie Lianacoco, which prairie should (as the. petition to the District Court represents) be the centre of the said grant; that on the same day Guadiana did grants and issue his order of survey to the proper officer to put the petitioner D’ Artigau in possession, without prejudice to third persons; and that D’Artigau took immediate possession of.the above-described lands, and continued to possess, inhabit, and cultivate the same, until he transferred them by an act of exchange to Marie Louise Lecompte.. The petitioner next states, that,Marie Louise Lecompte transferred the above-der scribed tract of land to Jean Baptiste Lecompte, the father of the petitioner; that there is no one residing upon the land in question except one person, who holds under the petitioner; that ho person other than the petitioner claitqs any part of the land; and that .the United States have never to his knowledge sold any part thereof. Such are substantially the averments on .which the plaintiff has placed his claim, and we will proceed, to examine how far, either intrinsically, or as sustained .by any .evidence adduced in their support, they entitled the -•plaihtiff to the establishment of that claim,

In considering this petition of the appellant, the .circumstance which first strikes the attention is the extreme vagueness of its statements, and-indeed its entire omission of facts which on the slightest view would appear indispensable to. give validity to this claim. . Thus, after setting forth the con- ■ cession, and an order to the proper officer to cause a survey in order to put the petitiófter in possession according to survey, and with due regard to the rights of others, omitting any and every fact or circumstance tending to show a compliance with these directions, and the security they were designed to extend either to the government or to individuals, it is said that D’Artigau took possession, and held the land until he transferred it to another. This vagueness and this omission in the. statements in the petition are by no means immaterial,, inasmuch as, if permitted, they would in effect dispense, with.all compliance with the. express orders of the granting power, and the ■terms it had annexed to its bounty; would dispense also with what- has ever been deemed indispensable, — some act or recognition showing the separation of the subject granted from the royál domain. And in truth the statement in the petition of the appellant is not consistent with, but in terms as well as in effect conflicts with the order of Guadianá, the Spanish commandant, as filed in support of the appellant’s claim. The language of the Spanish commandant is as follows: “ Let this petition be handed to the solicitor-general of this, place, in order that the petitioner be placed i'n possession of the land therein mentioned, if in so doing no prejudice can result to. third persons.” Can- this language be correctly construed to signify an absolute, unconditional grant of any specific land or other thing, t— such a grant as put an end to, or denied, thé superior revising authority and duty of the government to take care both of the rights of the crown and of individuals ? So far from it, the authority of the government in relation to both are here expressly reserved. There is nowhere in this record to be found a scintilla of proof, that this order, or the petition on which it was founded, was ever presented to the solicitor-’ general, or that any act was performed by any functionary of the government severing the land from the public domain, or putting the petitioner D’Artigau, or any other person, in possession of any specific land, so that a boundary or limit could be defined by possession. There'is in fact no proof that D’Avtigau took possession of .any thing certain or specific, or had a right to possess himself of any thing specific.

Again, there seems to be an attempt, by the statement in the petition to the District Court, to give a definiteness to-, the claim or the right by possession, which the language ox the concession by no means warrants. Thus it is said in the petition, that the application of D’Artigau prayed for a ■grant of which the .Prairie Lianacoco should be the centre. There is.no such language in the application presented to the Spanish commandant. That application asked for a grant which might include the prairie above named, but in what part of the grant, whether in relation to t'he centre or to any of its exterior boundaries, neither in the prayer to the Spanish authorities, nor in the order which followed, can any reference whatsoever be found.

The importance of the omission to aver and to prove a delivery of the order of Guadiana, the Spanish commandant, to the procurador del común, or solicitor-general, and the action of ■the latter upon that order, is shown in another point of view. In the report of the commissioners for the settlement of land claims in Louisiana, dated November, .1824 (4 American State Papers, 34, 35, and 69), the following regulations are given as those prescribed for the Spanish officers, and practised upon by them in making grants for lands in the district of Nacogdoches: The lieutenant-governors and commandants of Nacogdoches were not.limited, in the granting of lands, to any specific quantity, but it was their duty to proportion the extent of the grants to the circumstances of the individual claiming them, and to that effect the procurador del común named, to put the party in possession inquired into the merits and circumstances of the applicant; and if the grant was for a stock farm, it was customary to extend the concession to two, three, and. four leagues square, according to the wants and merits of the claimants. The procurador del común was the officer appointed to make, inquiry, put the petitioner in possession of the land prayed for, and execute the lieutenant-governor’s and commandant’s orders relative to the premises.” Such, we are told, were-the functions, and duties of the procurador or solicitor-general relative to grants of land in this district. It was he who was to supervise the severance of the object to be granted from the royal domain, to give- it -form and extent, either by designating ascertained and notorious limits' and boundaries, or. by directing an actual survey, and. by reporting the proceedings he may have directed, for the sanction of his superior. The applicability of the functions and duties of this officer to the case before us is evinced by reference to the character of this applicátion to the government. This was not á prayer for an ordinary portion of land for cultivation, but an application for a wide extent of territory; such an extent as would be proper or requisite only upon the supposition of its necessity for the occupation of a large stock and a numerous force. The petitioner avows his intention of raising horses, mares, and horned cattle, a purpose requiring an extensive range, if carried into effect in good faith. . It became, therefore, peculiarly proper to inquire into the means of the applicant, and into the probabilities of his executing his proffered inten-, tions; as it would be highly detrimental to the Province to permit an individual to retain a large and useless extent of unsettled land, and unjust to other settlers to permit such individual, under a ¡false suggestion, to acquire an extensive property for the mere purposes of speculation. Hence it was, no doubt, that the order of the commandant of even date with the petition was issued, sending the petition to the officer who was to judge of its propriety, and without whose direction there could be neither a severance of the land from the royal dqmain, nor regular legitimate possession in any one.

These conclusions are in strictaceordance with the numerous • decisions in this court, which insist on the necessity for the severance of the property claimed from the public domain, either by actual survey or by some ascertained limits or mode of separation recognized by a competent authority. The decisions just referred to, it would be tedious tó cite in detail in this place ; their effect, howevér, may be seen in the following perspicuous summary, made by the Chief Justice in the case of the United States v. King et al., in 3 Howard, 786, 787, in which he says, speaking of the documentary evidence in that case : - The instruments themselves contain no lines or boundaries whereby any definite and specific parcel ef land was severed from the public domainand it has been settled by repeated decisions in this court, and in cases, too, where the instrument contained clear words of grant, that if the description was vague and indefinite, as in the ease béfore us, and there was no official-survey, to give a certain location, it could create no right of private property in any particular parcel of land, which-could be maintained in a court of justice. It was so held in. the cases in 15 Peters, 184, 215, 275, 319, and in 16 Peters, 159,160. After, such repeated decisions upon the subject, all affirming the same doctrine, the question cannot be considered as an open one in this court. The' land claimed was not severed from the public domain by the Spanish áuthOrities, and set apart as private property, and consequently it passed to the United States by the treaty, which ceded to them all the public and unappropriated lands.”

They accord likewise with the decisions of the Supreme Court of Louisiana as reported in 8 Martin, 637, and in 5 Martin’s New Series, 110, in the former of which cases the court say:. “ There is no order of survey; no decree of any kind is given by the intendant or his representative. The application stands unanswered. Now supposing the parties to be in the situation iri which they were before the relinquishment of the rights of the United States,-would the plaintiff be able to eject the possessor of the land with such a paper, — a paper which is the act of the party alone, and bears not the slightest intimation of the grantor’s pleasure ? ” And in the latter case the court held, “ that a permission to settle, obtained on a requite, but not followed by an actual settlement, did not give a right superior to that resulting from an actual settlement without permission, or, in. other words, from a naked possession.” And in the case of Blanc v. Lafayette, decided during the present term, the person from whom the appellant deduced his title had upon a petition to the Spanish intendant obtained an order 'to the surveyor-general to lay off the land. No report was alleged or proved to have been returned by the surveyor-general upon the petition ; and although this claim was favorably reported upon by the commissioners, and although it was insisted upon as having been confirmed by act of Congress of 1814, confirming a particular class of incomplete French and Spanish grants, concessions, warrants of survey, having a special and definite location, yet as this order to survey had not been executed, and as the claim was not sustained by certain and definite boundaries, nor by proof of certain and full possession, the Supreme Court-of Louisiana, decided, notwithstanding a recommendation by the commissioners and the act of Congress of 1814, that, there being no survey and no definite location or description by possession, such as could create a specific right or title under the Spanish authorities, the recommendation of the commissioners and the act of Congress did not cure these radical defects, nor confirm a title so wholly undefined, and deduced from so defective an origin. .The opinion of the court of Louisiana has met the approbation of this court, who have again ratified the principles of that decision in the case of the United States v. Boisdoré’s Heirs, during the present term.

■ In the absence of documentary evidence showing any act of the Spanish authorities beyond the first order of the commandant, sundry witnesses have been examined, with the view to supply this deficiency, and to give certainty and definiteness to the claim by proof of occupation. A proper analysis of the statements by the witnesses must exhibit them as coming signally short of the ends for which they have been introduced.

■ The witnesses Grenaux and Plaisance' knew nothing whatever of a grant to D’Artigau, nor of any exchange of .property between D’Artigau and Madame Lecompte.

Gaspard La Cour knew D’Artigau. Always understood that Madame Lecompte obtained the land "in exchange with B’Artigau, —*but does not know for what it was exchanged; never saw- any instrument or other document showing' a grant of survey to B’Artigau,. or any exchange., between the latter and Madame Lecompte; — witness is unable to write.

The evidence most favorable to this claim is that of Prud’homme ; but this testimony should be taken subject to the admission of the witness that' he is a connection of the claimant. Prud’homme states that he knew B’Artigau more than-fifty years ago, — knew that B’Artigau had a large concession (how large he does not state), including the Prairie Lianacoco ; knows that B’Artigau transferred this concession to Marie Louise Lecompte in exchange for another tract of land at the Tancock Prairie ; is sure that this exchange took place before the establishment of the United States government in Louisiana (the witness gives no date for this transaction). Witness knows that, moré than fifty years ago, the plaintiff and those under whom he claimed had possession of the Prairie Lianacoco, as a vacherie, and has kept the same up to this time.

Recurring now to' this testimony, so far as it is adduced to establish a title by showing specific limits by oecupation on the part of D’Artigau, not one of the witnesses proves actual occupation by D’Artigau of any thing. La Cours understood that Madame Lecompte obtained the land (what land is not shown) in exchange with B’ Artigau, and even Prud’homme can say no more than that B’Artigau had a large concession,including the Prairie Lianacoco, and exchanged it with Madame Lecompte for the Tancock Prairie. Limits,, specific quantity, certain descriptions, such as might constitute severance from the royal domain, are then wholly out of the question, so far as these or any of these requisites can be deduced from possession by B’Artigau; — for he never had possession, and could therefore transfer no right resulting from possession to Madame Leeompte, or to any other person. We have already considered how far such a severance could be deduced from the order of ' the commandant at Nacogdoches.

In the next place, with regard to the possession of Madame Lecompte, or of those claiming under her, relied-on as the foundation of title, it will be .seen that this evidence is utterly inadequate to any of the purposes for which it is adduced. The utmost that any witness has been able to staté 'on this point is a possession of the Prairie Lianacoco, forming, as is admitted on all sides, but a small portion of the claim insisted upon, and heneo not forming a description, either as to quánti-, ty, locality, or limits, to direct in ascertaining that claim. And even with respect to this prairie itself, there is nothing to show its position, extent, - or limits, or the actual occupation of the whole or of any . specific part of it by the ancestor of the appellant. Upon this subject the record is singularly barren. The only fact we can gather, from it, as indicating the extent of the occupation, is one which seems strongly to militate against a right coextensive even with this fragment of the entire claim. The fact here alluded to is the averment in the petition, that there is a single individual residing upon some portion of the land, who holds under the petitioner; but on what portion, or by what metes and bounds, whether within or without the limits of the Prairie Lianacoco, is left wholly to conjecture.

Upon the whole, therefore, we are of the opinion, that, neither upon the isolated order issued on the 31st of July, 1797, by the commandant at Nacogdoches, nor by virtue of any fact or testimony adduced for the purpose of showing a right to the land claimed as resulting from occupation, settlement, or cultivation, or from any act of the commissioners, or any law of the United States founded thereupon, has the claim of the appellant been sustained. We therefore adjudge that the decree of the District Court of the United States for the District of Louisiana, dismissing the petition of the appellant, be, and the_. same is hereby, affirmed.

Order.

This cause came on to be heard on the transcript of the record from the District Court, of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause, dismissing the petition of the claimant,'be, and the same is hereby, affirmed.