Page:United States Statutes at Large Volume 2.djvu/849



Where the act of an officer to pass the title to land according to the Spanish law, is done contrary to the written order of the king, is produced at the trial, without any explanation, it shall be presumed that the power has not been exceeded_ that the act was done on the motive set out therein; and according to some order known to the king and his officers, though not to his subjects: and courts ought to require very full proof, that he had transcended his powers, before they so determine it. Ibid.In favour of long possession and ancient appropriation, every thing which was done shall be presumed to have been rightfully done; and though it does not appear to have been done, the law will presume that whatever was necessary has been done. Ibid.The stipulations of the treaty ceding Louisiana to the United States, affording that protection or security to claims under the French or Spanish government to which the act of Congress refers, are in the first, second and third articles. They extended to all property until Louisiana became a member of the Union; into which the inhabitants were to be incorporated as soon as possible, “and admitted to all the rights, advantages and immunities of citizens of the United States.” The perfect inviolability and security of property is among these rights. Delassus v. The United States, 9 Peters, 117.The right of property is protected and secured by the treaty, and no principle is better settled in this country, than that an inchoate title to lands is property. This right would have been sacred, independent of the treaty. The sovereign who acquires an inhabited country, acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property. The language of the treaty ceding Louisiana, excludes any idea of interfering with private property. Ibid.On the 18th of April, 1802, the lieutenant-governor of Upper Louisiana granted sixteen hundred arpents of land near certain rivers named in the grant, with direction to survey the same in a vacant place of the royal domain; but no survey was made before the cession of Louisiana to the United States. By the Court—As the grant contained no description of the land granted, and was not located within the time prescribed by the, it comes directly within the point decided by the supreme court in the case of John Smith, T., and cannot be confirmed. Wherry v. The United States, 10 Peters, 338.In repeated decisions, the supreme court have affirmed the authority of local governors, under the crown of Spain, to grant land in Louisiana, before the same was ceded by Spain to France: and the court have also affirmed the validity of descriptive grants, though not surveyed before the 11th of March, 1804, in Missouri, and the 24th of January, 1818, in Florida. Mackey v. The United States, 10 Peters, 340.A grant or concession made by an officer who is by law authorized to make it, carries with it prima facie evidence that it is within his powers. No excess of them, or departure from them, is to be presumed. He violates his duty by such excess, and is responsible for it. He who alleges that an officer entrusted with an important duty has violated his instructions, must show it. Delassus v. The United States, 9 Peters, 117.The instructions of governor O’Reilly, relative to granting lands in Louisiana, were considered by the court, in 8 Peters, 455. These regulations were intended for the general government of subordinate officers, and not to control and limit the power of the person from whose will they emanated. The Baron De Carondelet must be supposed to have had all the powers which had been vested in Don O’Reilly; and a concession ordered by him is as valid as a similar concession directed by governor O’Reilly would have been. Ibid.A concession of land was made by the lieutenant-governor of Upper Louisiana, at the time when the power of granting lands was vested in the governors of provinces. This power was, in 1799, after the concession, transferred to the intendant-general; and after this transfer, in January, 1800, the order of survey of the land was made by the lieutenant-governor. The validity of the order of survey depends on the authority of the lieutenant-governor to make it. The lieutenant-governor was also a sub-delegate, and as such was empowered to make inchoate grants. The grant was confirmed. Chouteau’s heirs v. The United States, 9 Peters, 137.The transfer of the power to make concessions of lands belonging to the royal domain of Spain, from the governor-general to the intendant-general, did not affect the power of the sub-delegate, who made this concession. The order in this case is the foundation of title, and is, according to the act of Congress on the subject of confirming titles to lands in Missouri, &c., and the general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property, capable of being alienated, of being subjected to debts: and is, as such, to be held as sacred and inviolate as other property. Ibid.A concession of one league square of land, in Upper Louisiana, was made by Don Zenon Trudeau, the lieutenant-governor of that province, to Auguste Chouteau, and a decree made by him directing the surveyor-general of the province to put him in possession of the land, and to survey the same, in order to enable Chouteau to solicit a complete title thereto from the governor-general, who by the said decree was informed that the circumstances of Chouteau were such as entitled him to a grant of the land. The land was surveyed, and the grantee put in full possession of it on the 20th of December, 1803. He retained possession of it until his death. The objection to the validity of the concession was, that the petitioner had not as many tame cattle as the eighth regulation of governor O’Reilly, governor-general of Louisiana, required. That regulation required that the applicant for a grant of a league square of land should make it appear that he is possessed of one hundred head of tame cattle, some horses and sheep, and two slaves to look after them, a proportion which shall always be observed for the grants, &c. By the Court—In the spirit of the decisions which have been heretofore made by the supreme court, and of the acts of confirmation passed by Congress, the fact that the applicant possessed the requisite amount of property to entitle him to the land he solicited, was submitted to the officer who decided on the application; and he is not bound to prove it to the court, which passes on the validity of the grant. These incomplete titles were transferable, and the assignee might not possess the means of proving the exact number of cattle in possession of the petitioner when the concession was made. The grant was confirmed. Ibid. 147. who had filed a notice of claim to any tract of land lying within the district of Louisiana (now territory of Missouri) with the recorder of land titles, according to law, and have not exhibited any testimony or written evidence in support of the same, and whose claim has not already