Page:Hempstead's Reports.pdf/396

Rh   The government contented itself, in the first instance, with giving the authority to survey, and then leaving it to the party to procure the execution of that authority. If he failed, he could not claim any right of private property in the grant, nor could he obtain any title without complying with this necessary condition.

There was no law, order, cedula regulation, usage, or custom of the province of Louisiana or Florida which authorized this condition to be dispensed with in any case, or under any circumstances.

It is also evident that a survey meant in these provinces what it means with us, the actual measurement of land, ascertaining the contents by running lines and angles, marking the same, and fixing corners and boundaries. 6 Jac. Law Diet. 157; Webster's Diet.

When the phrase is applied to land, no other meaning is attached to it by lexicographers; nor is it used in a different sense in the jurisprudence of any country with which I am acquainted.

This is no idle inquiry, because these kind of cases are not to be tried by common law rules, but by the laws, customs, and usages of the province of Louisiana; and hence the judges of the supreme court, in all the cases brought before them, have referred to these as guides.

In doing this it would have been impossible to overlook the fact that actual surveys were a uecessary ingredient to the validity of grants under the Spanish dominion, and it has consequently been directly or indirectly arrested in numerous cases decided by that tribunal to be equally necessary under the government. Wherry v. The United States, 15 Pet. 32710 Pet. 338 [sic]; United States v. ForbesForber [sic], Ib. 180; Buyck v. The United States, Ib. 220; O'Hara v. The United States, Ib. 297; United States v. Delespine, Ib. 328Ib. 228 [sic]; The United States v. Miranda, 16 Ib. 155; United States v. Low, Ib. 162; The United States v. HarrisonHanson [sic], Ib. 198; United States v. ClarkeGeorge [sic], Ib. 228; United States v. King, 3 Howard, 784.

The Spanish document adduced as the foundation of this claim is an open order of survey, and might have been located