United States v. Rodman

APPEAL from the Superior Court of East Florida. The appellee, as assignee of Robert McHardy, presented a petition to the judge of the superior court for the eastern district of Florida, claiming a tract of land containing 16,000 acres, situated in that district, on the west-side of the river St. Johns, at a place where there is a spring and stream of fresh water, formerly known by the name of 'Old Stores.' The claim was alleged to be founded on a grant, dated November 8th, 1814, by Governor Kindelan, the Spanish governor of East Florida. The claim was opposed by the United States.

The superior court of East Florida decided in favor of the claimant, and the United States prosecuted this appeal. The case is fully stated in the opinion of the court.

It was argued by Gilpin, Attorney-General, for the United States; Downing appeared as counsel for the appellee.

Gilpin contended, that the decision of the court below should be reversed, on the following grounds: 1. That the evidence in the case is insufficient to prove that the alleged grant or concession was ever made. 2. That if it be proved or admitted, that the alleged grant or concession was ever made, still, that the same was not in conformity to the royal order of 29th October 1790, by virtue of which it is declared that the concession was made. 3. That if it be proved or admitted, that the alleged grant or concession was ever made, and that it was in conformity to the royal order of 29th October 1790, still, that the same was granted or conceded, on the condition that the claimant should build a water saw-mill on the land so conceded, which condition never has been complied with. 4. That the concession, if ever made, being conditional, and the conditions unperformed, it was incumbent on the claimant to assign reasons sufficient for the non-performance; which he has not done.

Gilpin:-This is a claim for 16,000 acres of land, on the west side of the river St. Johns; founded on an alleged concession to Robert McHardy, by Governor Kindelan, dated 8th November 1814. The superior court of East Florida adjudged the claim to be valid. The correctness of this decree is contested by the United States, because there is not, as they allege, competent evidence to establish the concession to McHardy; and because, if the concession ever was made, a legal title to the land conceded never accrued to the grantee.

I. The original concession of Governor Kindelan never has been produced. The sole evidence of it is an alleged copy, certified by Aguilar, the governor's secretary. The circumstances under which copies, thus certified, will be admitted as evidence of a grant, have been declared by this court, in the cases of United States v. Percheman, 7 Pet. 84; United States v. Delespine, 12 Ibid. 656; and United States v. Wiggins, 14 Ibid. 348. In the first, the court held, that the original must be produced, if either party suggested its necessity; and in the second, there was direct evidence of the existence of the original. In the last case, the court admitted the copy, without any direct evidence to that effect; but on the express ground, that the presumptive testimony of the existence of the original was very strong: and also, that there was a survey proved in conformity with, and referring to, the original grant. It is admitted, that if the evidence brings the present case within the rules established in the case of the United States v. Wiggins, the concession is proved. But is such the fact? There was no survey made until 1819, nearly five years after the grant; and it was then made by a person other than the surveyor designated in the order of survey, and at a place different from that named in the grant. The proof that the order of survey was signed by Governor Kindelan, is far from direct; the signature is identified by a single witness only, and by him with some expressions of doubt.

II. But if the making of the concessions in 1814, by Governor Kindelan is established, had a title under it, valid by the Spanish law, accrued to McHardy, on the 24th January 1818; so as to be ratified and confirmed by the eighth article of the treaty? (8 U.S. Stat. 258.) 2 White's New Rec. 210. The concession is 'a square of five miles' granted, as it states, 'in consideration,' first, 'of the advantages which will result in favor of the home and foreign trade of the province;' and secondly, 'in conformity to the provisions of the royal order of 29th October 1790, in relation to the distribution of lands to the new inhabitants.' The first consideration, evidently, has allusion to the statement of McHardy, in his memorial, that 'he intended to invest his means in the erection of a water saw-mill, in consideration of the great scarcity of lumber in the province, both in regard to the home consumption and to the purposes of commerce;' the second consideration refers, undoubtedly, to the claim to remuneration arising from his merits and services, also stated in his memorial; that is, his fidelity to the government during the rebellious invasion of the province in 1812, and his loss of a crop in that year. It is admitted, that the saw-mill never was commenced; and that the land never was taken possession of, occupied or cultivated. This grant is a mere concession; it is not a complete and absolute grant; to make it so, further acts were necessary on the part of the Spanish government and of the grantee; these were, a compliance with the provisions of the royal order of 1790, and with the promise to erect a saw-mill; both of these were conditions annexed to the grant; and neither having been complied with, the grant is not valid.

1. The royal order of 1790 (2 White's New Rec. 365) did not authorize the governor of East Florida to make such a grant as the claimant contends for. That order was issued, as it declares, for the purpose of inviting foreigners into the province; but McHardy was not a foreigner. It limited the quantity of land that might be granted, to a fixed number of acres, proportioned to the number of workers actually employed; McHardy employed no workers. An absolute grant of 16,000 acres to a Spanish subject, who made no settlement, could not, therefore, be valid, under the authority of the royal order of 1790. This point is distinctly adjudged by this court, in the case of the United States v. Clarke, 8 Pet. 448. There, the grant recited the royal order of 1790, and also that Clarke 'had constructed, from his own ingenuity, a certain machine' of great value. This court, passing upon the grant, said that 'it was too plain for argument, that, if its validity depended on its being in conformity with the royal order of 1790, it could not be supported;' and they held it to be valid only because it did not depend upon that order, but on the other motives expressed in the grant. If the same rule be applied, as it must be, to the present case, then the claim of McHardy to 16,000 acres cannot be valid, under the royal order, but must depend on the other considerations stated by Governor Kindelan. But it is submitted, that the recital, in this grant, by Governor Kindelan, of the royal order of 1790, was not superfluous or incorrect. It is the inference drawn from that recital, by the claimant, which is erroneous. The grant does not purport to be made 'by virtue of' the royal order of 1790, which was applicable especially, if not exclusively, to foreigners; but it was made to a Spanish subject, 'in conformity to the provisions' of that order; that is, according to the regulations which required settlement and cultivation by a certain number of workers. Under the power which the governor possessed of making grants for services, he made this concession to McHardy, for those to which he had, in his memorial, called his attention; but as the grant was large, the governor required that he should either comply with the provisions of the royal order, which were recited in the concession, or erect a mill which would be 'favorable to the home and foreign trade of the province.' Had the claimant settled the tract, and placed upon it the proper number of workers, then he would have acted in conformity to the royal order of 1790-then the grant would have been valid, because one of its conditions would have been complied with.

2. It is, however, valid, although the provisions of the royal order of 1790 were not complied with, if the other condition was executed-if the water saw-mill was erected. Was this done? It is admitted, that it was not-and to obviate the want of all evidence to that effect, it is argued, that the terms of the grant do not imply that such erection as a necessary condition; and that, under the decisions of this court, such a grant is perfect, without any such proof. That the terms of the grant imply such a condition, is apparent from its face. It is stated to be made, 'in consideration' of the advantages that are to result from such an establishment; the allusion to the petitioner's merits is not adduced as one of 'the considerations' of the grant; they are not of a character to warrant any donation, much less one of such unusual magnitude; they are more than compensated by making him the grant, subject to the provisions of the royal order of 1790, in regard to settlement and cultivation; any other grant-any possession of the land, unattended with a compliance with these provisions-was intended to be coupled with this condition of building the saw-mill, which he proposed himself. In the cases of the United States v. Kingsley, 12 Pet. 476, and of the United States v. Burgevin, 13 Ibid. 85, it was distinctly held, that, where there was a condition in the grant, that a saw-mill should be erected, no title accrued, without proof of its having been built. It is true, that, in those cases, the condition was stated in the grant, in terms more explicit than in the present case; but this cannot affect the principle established by the court. If there be a condition in the grant itself, ascertained from its language, and evincing the intent of both parties, at the time the grant was made, the particular language in which the condition is couched is immaterial. The cases of the United States v. Clarke, 8 Pet. 448, and of the United States v. Segui, 10 Ibid. 306, do not conflict with these positions. In the former, the grant was not in consideration of a saw-mill to be erected; but in consideration of the applicant having already constructed, from his own ingenuity, a peculiar mill, of great value. In the case of the United States v. Segui, this court did, indeed, hold, that where a grant was made, in absolute property, they would not attach a condition, from the mere fact that the erection of a saw-mill had been stated as an inducement in the memorial; but it is evident, from the report of that case, that this statement was merely in the memorial, and not repeated as 'a consideration,' by the governor, in the grant itself. In the present case, it is otherwise; this consideration appears, not merely in the memorial, but in the grant; and besides, it is not, as Segui's was, a grant 'in absolute property.'

It is therefore submitted, that the concession, if ever made, was conditional; that the conditions are unperformed, and therefore, that the grant is not valid.

WAYNE, Justice, delivered the opinion of the court.