Doe ex dem. Pollard's heirs v. Greit, et al.

Land Laws, 509; but an act of Congress may operate as the grant of the soil, 2 How. Rep. 345, 372. A patent however is the supreme evidence of title, and cannot be defeated by evidence other than a patent by an elder date. [13 Pet. Rep. 448, 450, 515 to 518.] And a claim, when confirmed, relates back to the incipiency of the title. [1 Pet. Rep. 664; 6 Id. 713-14.]

9. A survey is necessary to the appropriation of the soil, and a survey made by a surveyor of the United States cannot be contradicted by parol, but must be taken to be true. [7 Por. Rep. 434.] To show the conclusiveness of the patent, and the survey recited in it, they cited 3 Pet. Rep. 96-7, 338, 341-2-4 ; 6 Id. 342-3-5-6, 367 to 371; 5 Wend. Rep. 146; 8 Id. 190; 14 Id. 695-7; 1 T. Rep. 701; 11 East's Rep. 312; 19 Johns. Rep. 100; 1 Caine's Rep. 358, 363; 2 Binn. Rep. 109; 4 Sergt. & R. Rep. 461; 2 Mass. Rep. 380; 5 Greenl. Rep. 503; 2 Dev. Rep. 415; 4 Wheat. Rep. 144; 4 H. & Munf. Rep. 130.]

10. The defendants have no title under the act of 1824, in virtue of improvements. [2 How. Rep.] Having no title, they must be regarded as mere intruders. [4 Johns. Rep. 202.]

J. A. CAMPBELL, for the defendant in error, said there was nothing to connect the proceedings in the land office which were reported to the Secretary of the Treasury, as shown by the State Papers, and relied on by the plaintiff at the trial, with the subsequent legislation of Congress in 1824 and 1836. And these were the only evidence of title produced by the plaintiff, save only the patent which professes to have issued pursuant to the latter enactment.

The defendant's title is proved by a Spanish concession to Antonio Espejo, dated in 1803, for a parcel of land on the river below the King's wharf and near it-a confirmation to his heirs in 1822-a survey and patent certificate. This lot was improved in Spanish times, was occupied by the family of Espejo, after his death, and is located at the south-west corner of Water and Government streets.

Every thing that is necessary to confer a title under the second section of the act of 1824, was proved by the defendants, viz: those under whom they claim had a lot west of Water street, which was a Spanish water lot, prior to 1813; they improved the ground in front of them to the east of Water street prior to

Doe ex dem. Pollard's heirs v. Greit, et al.

the 26th of May, 1824, and were in possession of the same on that day; and this property is between Church and North Boundary street. These facts entitle the defendants to the front property, (which is that now in controversy,) unless an opposing grant from the Spanish government is produced.

The act of Congress of 1836 makes no reference to any Spanish grant, nor to the claim in favor of Pollard, which is specified in the report; they cannot then be connected with each other. The report merely proves the fact that it was made, but does not establish the genuineness or contents of a paper of which it is only an abstract-to do this, it is essential that the proper proof should have been given of the loss of the original. [1 Ala. Rep. N. S. 660.]

By the act of 1836, the rights of third persons are carefully preserved. The defendants were previously invested by the government with land in front of their ground, and east of Water street, while the title of the lessors of the plaintiff were confirmed to the King's wharf. If the King's wharf had been in front of Espejo's claim, and a Spanish grant had been produced to Wm. Pollard, then the decision in the case of Pollard's heirs v. Kibbe, and Pollard's heirs v. Files, in the Supreme Court of the United States would be favorable to the plaintiff. But in this aspect, the plaintiff should have shown-1. A Spanish grant. 2. The location of the King's wharf.

A reference to the ruling of the Circuit Court, will show that the non-production of a Spanish grant was overlooked its existence and validity were assumed, and the jury were informed, "that if the King's wharf was south of Government street, the plaintiff was entitled to recover to it as his title in case of conflict was superior." The Court further charged, that the location in the patent was not conclusive, and that the location of the King's wharf was a question of fact for the jury; the jury have decided that it is not south of Government street, but that the property in question is bounded by this street.

The location by an agent of the government may be conclusive between the United States and the claimant, but as between third persons and the claimant it can have no effect, unless the former claim under the government subsequent to the location. The act of 1824, does not provide for surveys and locations, but

Doe, ex dem. Pollard's heirs v. Greit, et al.

transfers the right of the United States, leaving the parties interested to adjust them. [Mayor, &c. of Mobile v. Farmer's heirs, 6 Ala. Rep. 738; 7 Missouri Rep. 98; 2 How. Rep. 344; Id. 581.] If the patent on which the plaintiff relies, goes beyond the act of Congress under which it issued, the latter will restrain and control it.

No patent was necessary to consummate the title of the defendants under the act of 1824; they showed a legal title when they proved the facts necessary to confer it, according to the requirements of that enactment. This point was expreslly ruled in The Mayor, &c. of Mobile v. Eslava, 16 Pet. Rep. 254; see also, 12 Pet. Rep. 410; 9 Cranch's Rep. 43; 2 Wheat. Rep. 196; 3 Dall. Rep. 425; 2 How. Rep. (U. S.) 344; 6 Missouri Rep. 330; 7 Id. 98.]

Upon the titles shown, the inquiry then was, the locality of the King's wharf. If this wharf had been found to be south of government and in front of the lot which the defendants claim through Espejo, the defendants' title would have been the oldest, inasmuch as the plaintiff produced no Spanish grant-in fact no title of an earlier date than 1836. The error then, if there be any, is in favor of the defendant-and the jury have found that the King's wharfis above the south line of Government street; consequently the defendants have not encroached on the plaintiff's property, and the location of the United States surveyor is not

correct.

The Montusa wharf, was upon the site of the King's wharf in 1818, and is shown by the map of Dinsmore to have been above the line of the Montusa buildings, as there laid down. This map is the most unsatisfactory evidence. True the larger wharf which was subsequently erected by Tankersly, was in a different position; this seems to have confused some of the witnesses, but the verdict of the jury was satisfactory to the Circuit Court.

COLLIER, C. J. -The report of the commissioner for the examination of land claims east of Pearl river, merely states that Wm. Pollard claimed as the original claimant a Spanish permit dated 11th December, 1809, for an unknown quantity of land, situate in Mobile, issued by Cayetano Perez, but of which there had been no survey, inhabitation, nor cultivation. In respect to which the commissioner remarked that the claim was forfeited

Doe ex dem. Pollard's heirs v. Greit, et al. under the Spanish law for the want of inhabitation and cultivation.

Thus stood the title of the lessors of the plaintiff, (assuming that they are the heirs of Wm. Pollard, the claimant,) when the act of 26th May, 1824, was passed. The second section of that act which is alone pertinent to the case before us, enacts, "that all the right and claim of the United States to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots in said city of Mobile, whereon improvements have been made, be, and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same ; in which case, the right and claim of the United States shall be, and is hereby vested in the person to whom such alienation, grant, or order of survey was made, or in his legal representative: Provided, that nothing in this act contained shall be construed to affect the claim, or claims if any such there be, of any individual, or individuals, or of any body politic or corporate." [Land Laws, ed. 1838, part 1.] This section relinquishes to the proprietors of what were known as water lots under the Spanish government, all the right and claim of the United States to so many of the lots of ground east of water street, within certain limits, and known as water lots in 1824, whereon improvements were then made, as are situated between the channel of the river and the front of those that were water lots in Spanish times, &c. It does not appear from the record that the lessors or their ancestor were the proprietors in 1824, of a lot lying on the west side of Water street, or elsewhere in the city of Mobile; so that they can only claim under the statute of 1824, in virtue of the retrospective effect of the act of 1836.

Let us briefly consider what was the predicament of the defendant's title at this latter period, and what influence the act of 1836 has upon it, even if it relates to the same property. That statute enacts, " that there shall be, and is hereby confirmed unto

Doe ex dem. Pollard's heirs v. Greit, et al.

the heirs of William Pollard, deceased, a certain lot of ground situated in the city of Mobile, and bounded as follows, to wit: on the north by what was formerly known as John Forbes and company's canal; on the west by Water street; on the south by the King's wharf; and on the east by the channel of the river; and that a patent shall issue in the usual form for the same: Provided, That this act shall only operate as a relinquishment on the part of the United States, of all their rights and claim to the above described lot of ground, and shall not interfere with or affect the claim or claims of third persons." [Laws U. S. 531.]

If Pollard had a claim to the lot confirmed to him, the confirmation would relate back to the time when the incipient title attached, if the fee was in the United States. But it is not competent for Congress, by a mere enactment to confer upon its grantee, a title which had already vested in a third person; and in the present case, such a purpose is expressly disavowed. The proviso to the act we are considering, declares that it shall only operate as a relinquishment on the part of the United States of all their right and claim, and shall not interfere with, or affect the claims of third persons. This is quite sufficient to show, that if the title to the lot described in the act, had passed out of the federal government, the act was itself inoperative.

The title under which the defendants claim, commenced in 1803, and was confirmed by an act of Congress of the 8th May, 1822, entitled "An act confirming claims to lots in the town of Mobile, and to land in the former province of West Florida, which claims have been reported favorably on by the commissioners appointed by the United States." [Land Laws, ed. 1838, part 1, p. 348; see also, Id. pp. 208-316.] This claim was founded on a "Spanish permit" to Anthony Espejo, of which the commissioner reported no survey had been made; consequently, under the eleventh section of the act of 1819, it was surveyed, and its boundaries ascertained. By a patent certificate issued by the register and receiver of the land office at St. Stephens, the lot in virtue of which the defendants claim the premises in question, is described " as a lot of ground within the city of Mobile, begining at the south west corner of Government and Water streets, and running thence with Government street, S. 76, W. 149 4-12 feet to a stake, thence S. 11, E. 64 feet to a post, thence N. 76, Ε. 149 4-12 feet to Water street, thence along said street N. 11, W.