Page:Hempstead's Reports.pdf/397

372   in any part of the then district of Arkansas. It had no locality, no definite description of any particular land. There are two substantial conditions in it: 1st, that the lands conceded should be surveyed in one year, which the commandant of the post should cause to be executed; and 2d, that the grantees should settle upon and occupy their respective surveys within that period.

These two conditions are fairly deducible from this paper, which, for the sake of convenience, will be called a grant; and it may be observed that it was undoubtedly competent for the governor-general to order the commandant to cause the survey to be executed. Smith v. The United States, 10 Pet. 327.

It is not pretended that the lands mentioned in the grant were ever surveyed under the Spanish government; indeed that they were not, is shown in the petition itself. But it is said that as to the lands granted to Elisha and Wm. Winter, a stone or stones were planted, and that this gave locality and identity to the tracts, and severed them from the royal domain. The bare statement of the proposition is its refutation. Fixing a stone or post is no survey, nor is it equivalent to a survey. It does not of itself indicate whether it is the corner of a north, east, south, or west line; nor does it indicate that the lines are to run from it to the cardinal points of the compass. But to go further: planting a stone to designate any particular corner, with a contemporaneous assertion that a parallel line is to be run a certain distance and direction, and thence in other directions, so as to form a square, is no identification of the land by any mode known to the Spanish government; nor is it so in fact. There are no visible Jines, no visible boundaries, nothing to apprise our neighbor how far he may go without trespassing upon our soil, and nothing to indicate the lines of separation between public and private property.

The idea of giving identity to a million and a half of arpens of land without measurement, and without actually running and marking a single line, is really too absurd to merit consideration.

If it were not gravely insisted on, it might well be thought to be an experiment on human credulity.