Lessee of Pollard's Heirs v. Kibbe/Concurrence McLean

Mr. Justice M'LEAN.

I agree to the judgment of reversal in this case; and as my opinion is mainly founded on the construction of the second section of the act of 1824, without reference to the exceptions it contains, I will state, in a very few words, my views in regard to that section.

It declares 'that all the right and claim of the United States to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots, in the said city of Mobile, whereon improvements have been made, be, and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile; except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant,' &c.

The lots first named in this section are those to which the right of the United States is relinquished; and those lots are now denominated water lots, in contradistinction to those called water lots under the Spanish government.

'All the right and claim of the United States is relinquished to so many of the lots of ground'-then follows a description of the locality of these lots, lying 'east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots, in the said city of Mobile:' and here the description of the locality of these lots ends, and the words 'whereon improvements have been made,' follow. Now I entertain no doubt the improvements must be made on the lots first named, and to which the United States relinquish their right; and not on those lots named merely to show the local situation of the present water lots. And this is the construction given to the section by the Supreme Court of Alabama.

The improvements then must be made on the water lot; and the lot in controversy, in this case, is a water lot.

The Court instructed the jury that 'if the lot claimed by the plaintiffs had been improved at and previous to the 26th May, 1824, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes and Company, then the lot claimed, passed by the act of Congress, to those at that time owning and occupying the lot so as above conveyed to John Forbes and Company; and that it was immaterial who made the improvements on the disputed lot.'

The second section gives to the proprietor of the lot fronting the water lot, such water lot, provided it has been improved.

Now two things must concur to give a title under this act; and these are, proprietorship of the front lot, and improvements on the water lot. But, by whom must these improvements be made or owned, at the passage of the law?

The act does not specify; and the Court instructed the jury that if improvements were made, it was not material by whom they were made. Can this be the true construction of the act?

Congress did not intend to give to the proprietor of the front lot the water lot, unless it was improved; nor did they intend to give to the person who had improved the water lot, such lot, unless he was the proprietor of the front lot. The improvements of the water lot were as essential to the claim of title under this act, as the proprietorship of the front lot. And can it be supposed that Congress intended to give the water lot to the proprietor of the front lot, for the reason that the water lot had been improved by a stranger? In other words, that Congress, by a solemn act of legislation, would give a lot of ground to one man, because it had been improved by another? This is the principle asserted by this construction; and it is so unjust, and so directly opposed to the legislation of Congress, in regard to the pre-emptive rights, on the ground of improvements, that I am unwilling to sanction it. There is no instance in the entire history of legislation by Congress, where they have sanctioned such a principle. The policy has been to secure to the individual the benefits of his own labour and expenditure. And I am of the opinion that unless the proprietor of the front lot was, on the 26th May, 1824, also the proprietor of the improvements on the water lot, he can claim no title under the act.