Scull v. United States

APPEAL from the District Court of the United States for the Western District of Missouri.

This is an appeal from a decree dismissing, on demurrer, the bill of the complainants, who, with the exception of one, their alienee, claim to be the heirs-at-law of Captain Don Joseph Valliere, who died intestate in the city of New Orleans in the year 1799. The suit was brought under the act entitled 'An Act for the final adjustment of private land-claims in the States of Florida, Louisiana, and Missouri, and for other purposes,' approved June 22, 1860. 12 Stat. 85.

The claim in this case is founded on three instruments of writing, of which translations are given in the record.

1. An order of Baron de Carondelet, Spanish governor of Louisiana:--

'11th June, 1793, to Captain Don Joseph Valliere, in the District of Arkansas, a tract of land, situated on the White River, extending from the rivers Norte Grande and Cibolos to the source of the said White River, ten leagues in depth.

'BARON DE CARONDELET.'2. A certificate of survey by Charles Trudeau:--

'DON CARLOS TRUDEAU, Royal and Private Surveyor of the Province of Louisiana.

'I certify having measured, in favor and in presence of Don Joseph Valliere, captain of the stationary regiment of Louisiana, a portion of land situated in the jurisdiction of Arkansas, on the north and south banks of Rio Blanco; bounded on the east, or on the inferior limit, by the Rio Norte Grande, the Rio Blanco, and the Rio Cibolos; on the west, or superior limit, by the fountain-head or origin of the most western branch of the said Rio Blanco and by vacant lands of his majesty; separated from said vacant lands by a line beginning at the said fountain-head of the most western branch of Rio Blanco, running southwest ten leagues in depth; on the north by the lands of his majesty, separated from these by a drawn line, beginning at the Rio Norte Grande, commencing at a point ten leagues distant in a direct line from its mouth or confluence with the Rio Blanco, running in a course nearly west until it meets the fountain-head or origin of the most western branch of the Rio Blanco, and on the south side by vacant lands of his majesty, separated from these by a line drawn apart, beginning at a point where ends the southwest limit, ten leagues from the fountain-head or origin of the most western branch of the Rio Blanco, running on a parallel line with said Rio Blanco descending, ten leagues in depth, until it meets Rio Cibolos, at a distance of ten leagues in a direct line from Rio Blanco. All of which is now fully demonstrated in the figurative plan which precedes,-in which are shown the dimensions and courses of the boundaries, the trees and monuments serving as artificial and natural boundaries. The lines and limits have been made at the request of the grantee and in compliance with the order of the governor-general, Baron de Carondelet, of the ___ of June of the present year. All of which I certify that it may be everywhere valid. I give these presents, together with the figurative plan which precedes, on the 24th of October, 1793.

'CARLOS TRUDEAU, Surveyor-General.'

The figurative plan is the form following:-- 3. A cession or grant by Carondelet:--

'For the benefit of the public, and for the greater encouragement of agriculture and industry of the country, I have judged it expedient to take steps for the surveying and granting the royal lands of the provinces:

Therefore, I grant to Don Joseph Valliere, captain of the regiment stationed in Louisiana, a portion of land in the jurisdiction of Arkansas, situate on both banks of the White River, ten leagues on both banks, beginning at the origin of the most western branch or source of the White River, and running southwest ten leagues, descending from thence on the south by parallel line with White River, at the distance of ten leagues, until it intersects the Buffalo River at a point ten leagues in a direct line with White River, from thence descending the Buffalo River to its confluence with the White River; following this as far as the mouth of the Great North Fork of the White River, up the same to a point ten leagues in a direct line from its mouth, from thence ascending the White River to the north in a westerly direction ten leagues from the same as far as its source, which will be better seen on the figurative plan made by my order by the surveyor-general, Don Carlos Trudeau, of this province, 24th of October last (it being impossible for the royal surveyor to make an actual survey at this time), and in virtue of my order in June, of the current year, by which I made him a grant and ordered the surveyor-general to put him in possession, according to the usual form, in consequence of the power which has been conferred on me by our lord the king (God preserve), I grant, in his royal name, to the said Don Joseph Valliere, captain of the regiment of infantry of Louisiana, the said portion described above, in order that he may dispose of it, he and his legitimate successors, as property belonging to him. Done in New Orleans, 22d of December, 1793.

'EL BARON DE CARONDELET.'

A diagram, made in 1876, is filed with the bill as an exhibit, accompanied by an affidavit of Mr. George H. Day, 'a practical city surveyor, duly appointed as such by the city of Brooklyn,' that it is a true and faithful diagram description and extent of the lands covered by the grant. The description as therein set forth is that the tract is 'situated on both sides of White River (or Rio Blanco), in the States of Missouri and Arkansas, extending from the north fork of White River (or Rio Norte Grande) westerly to its source 37 7/8 miles in depth on both sides (or ten leagues).

'Beginning at the origin or terminal of main fork of White River in Madison County, Arkansas, in township 13 north, range 25 west, from thence south 37 7/8 miles (or ten leagues) to a point in township 7 north, range 25 west; thence continuing on a line drawn parallel with the main courses of the said White River and at a distance of 37 7/8 miles therefrom (or ten leagues) on a line drawn north of west 33 1/2 miles to a point in township 8 north and range 31 west; thence northwesterly 52 7/10 miles to a point in the Indian Territory or Cherokee County near Flint Creek; thence north by east 46 7/10 miles to a point in tonwship 23 north, range 34 west, in McDonald County, Missouri; thence northeasterly 60 8/10 miles to a point in township 28 north, range 26 west, in Lawrence County, Missouri; thence easterly 48 miles to a point in township 29 north, and range 18 west, and distant from a point on White River 37 7/8 miles (or ten leagues); thence southeasterly 45 6/10 miles to a point on the Big North Fork of White River in township 24 north, and range 12 west, distant 37 7/8 miles (or ten leagues) northerly in a direct line from the mouth of the north fork of said White River; thence southerly down the north fork of White River (or Rio Norte Grande) to its mouth in township 18 north, range 12 west; thence southwesterly up the White River to the mouth of Buffalo Fork of White River; thence westerly, following said Buffalo Fork (or Rio Cibolos), to its source in township 14 north, range 24 west; thence southwesterly to the terminal or source of White River, the place of beginning, as more full shown on the map annexed, containing 11,370 square miles.'

The complainants allege that 'Rio Blanco' is the White River of the State of Arkansas, having its source in the most westerly part thereof, running through the southwesterly portion of the State of Missouri, and thence through the said State of Arkansas, and emptying into the Mississippi River; that Rio Cibolos is the Buffalo River, a branch of the said White River; that Rio Norte Grande is the Great North Fork River of the State of Arkansas, and a branch of the said White River; that neither they nor any parties holding title under the original claimant have possessed and cultivated any of said lands for the period of twenty years prior to the filing of the petition; that the lands are partly situated in the counties of Ozark, Douglass, Taney, Christian, Stone, and Barry of the State of Missouri, and are within the jurisdiction of the court below; and that all or nearly all of them have been disposed of by the United States. The complainants pray that they may be allowed upon the trial to show by competent evidence what portion of the lands now remains undisposed of and claimed by the United States; that a patent may be issued therefor; and that warrants or scrip be awarded to them and their legal representatives, as an equivalent for the lands, portion of the said grant, which have been disposed of by the United States; and for such other decree as to the court may seem just.

Mr. William H. Duryea and Mr. J. Warren Greene for the appellants.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE MILLER delivered the opinion of the court.