United States v. Delespine/Opinion of the Court

Appeal from the superior court of East Florida. The decree of the court declares the claim to be valid, to a square of four miles of land on a creek, issuing from the north head of Indian river, westwardly, and running to the north-west. The following is the memorial and grant offered by the appellees, to maintain the claim:

His Excellency, the Governor. Don Pablo Fontane, an inhabitant and merchant of this place, with due respect, represents your excellency, that in consequence of the orders of his majesty of the 29th of March 1815, in which he has been pleased to grant, gratuitously, to his faithful subjects of this province, lands in proportion to the services rendered by them, and as your petitioner considers himself included in the said royal favor, this government granted to him, under date of the 25th of June, of the present year, in absolute property, as it appears by the document duly annexed, a quantity of land comprehended in a square of four miles, on Trout creek, of the river St. John; and as it happened, that when he went to take possession of the said land, he found it in the possession of Dona Beig Bagely, widow, and this he represents to your excellency, in order that you be pleased to withdraw the said document of ownership which is annexed, and to grant him another in lieu thereof, for the same quantity of land on another creek, which, issuing from the north head of Indian river westwardly, runs to the north-west. Therefore, your petitioner supplicates your excellency to consider as returned the mentioned document for concession, and, in virtue of the said royal order, to grant him, in absolute property, the square of four miles of land, at the place which he has just designated, as the same is vacant, which favor he hopes to receive from the justice of your excellency.

St. Augustine of Florida, tenth of November 1817.

PABLO FONTANE.

St. Augustine, 10th of November 1817: I accept the retrocession which this party offers, of the land which was granted to him on the 26th of June last past, for the reasons which he exhibits in this petition, and in lieu thereof, I grant him in lawful property, in conformity to the royal order to which he refers, and as he is entitled thereto, the square of four miles of land on the north head of Indian river, which he designates, and to this effect let the secretary's office issue to him a copy conforming to this decree, to which will be annexed the copy of this petition, on which the decree was rendered. In testimony thereof, and in order that at all times it may serve as a title in form to the interested party.

COPPINGER.

CERTIFICATES OF AGUILAR.

I, Don Tomas de Aguilar, sub-lieutenant of the army, and secretary of the government of this place, and of the province thereof, for his majesty, do certify that the preceding copy is faithfully drawn from the original, which exists in the secretary's office in my charge, and in obedience to order, I give the present, in St. Augustine of Florida, on the 11th of November, 1817.

TOMAS DE AGUILAR.

We, Don Francisco Fatio and Don Juan Huertas, members of this illustrious council constitutional, do certify, that the signatures affixed in this expediente, are the same which the signers use, and in testimony thereof, we sign this, in St. Augustine, on the 13th of June 1821.

FRANCISCO J. FATIO,

JUAN HUERTAS.

St. Augustine, 16th May 1832.-I certify that the preceding is a correct translation of the Spanish document annexed.

A. GAY, Translator and Interpreter of the Sup'r Court.

It is contended, that the decree should be reversed, because the evidence is insufficient to prove that the grant was made. The proof is a certificate of Aguilar, the secretary of the government, which has been ruled to be sufficient, in the case of the United States v. Wiggins, 14 Pet. 334; and again, at this term, in the case of the United States v. Rodman (ante, p. 130).

The second objection is, that if the grant is proved, it is not in conformity to the royal order of the 29th March 1815, by virtue of which it is declared the grant was made. That royal order has been under the consideration of this court in Percheman's Case, 7 Pet. 96. In that case, it will be seen, that the petitioner refers in his memorial to the order of the 29th March 1815; and that the governor, in the grant for the land, says: 'In consideration of the provisions of the royal order, under date of 29th March last, which is referred to, I do grant to him in absolute property,' &c.; but the court (referring to certificates which were annexed to the memorial for the grant, which the grant refers to as certificates annexed) said, 'military service is the foundation of the grant, and the royal order is referred to only as showing that the favorable attention of the king had been directed to the petitioner.' 7 Pet. 96. The court sustained the grant in that case; notwithstanding it was said to have been made in consideration of the royal order of 1815, which limits grants to one hundred acres, and to persons of a particular regiment. The power in the governor to make a larger grant of land, was not thought to be restrained in making a grant to one, who was not of the regiment designated in the order, and who applied for it on the ground of services. The reasoning in that decision cannot be shaken. It applies with full force to the grant now under consideration; the decree of the governor being alike in both cases. But this has an additional consideration, recited in the memorial. The surrender of another grant previously made for services; recognised by the governor in his acceptance of the retrocession offered by the memorialist. This is a grant in absolute property. Though it recites the order of the 29th March 1815, the inducements for making it are considerations which plainly show it was not intended by the governor to be restrained to the number of acres limited by that order.

The judgment of the court below will be affirmed; but as the survey given in evidence in this case was rejected by the court, as it should have been, this court will direct a survey to be made at the place designated in the decree of the court below, for the number of acres decreed, without prejudice to the rights of third parties.

THIS cause came on to be heard, on the transcript of the record from the superior court for the district of East Florida, and was argued by counsel: On consideration whereof, it is adjudged and decreed by this court, that the decree of the said superior court in this cause, so far as it declares the claim of the petitioners to be valid, be and the same is hereby affirmed in all respects; and that a survey be made of the lands contained in the said concession, according to the terms thereof, for the number of acres, and at the place therein designated; provided, it does not interfere with the rights of third parties: And it is further ordered by the court, that a mandate be issued to the surveyor of public lands, directing him to do, and cause to be done, all the acts and things enjoined on him by law, and as required by the decree and opinion of this court in this case; and that this case be remanded to the said superior court for further proceedings to be had therein, in conformity to this decree, and the opinion of this court, which must be annexed to the mandate.