The United States, appellants v. Charles F. Sibbald, appellee, 10 Pet. 313

Mr Justice Baldwin delivered the opinion of the Court. These are cross appeals from th§ decree of the judge of the superior court of East Florida, on the petition of Sibbald ; praying for a confirmation of his claim to sixteen thousand acres of land, pursuant to the acts of congress for adjusting land claims in Florida. The petition was in the form prescribed by law, presenting a case proper for the exercise of the jurisdiction of the court below.

On . the 16th of July 1816, the petitioner applied to the governor of East Florida, setting forth that he was desirous of erecting machinery for sawing timber on Little Trout creek, ,on the north side of the river St John’s and that of Nassau : “ he asks permission for that purpose, with the corresponding surety of the grant of land of five miles-square, or its equivalent, in the event that this'situalion will not permit the said form; which land will insure, the continued supply of timber.” On the 2d of August 1816, the governor decrees, “the permission solicited by this party is granted, without injury to third persons; under the express condition that until the establishment of the mill, the grant of the land, which will be a square of five miles, in order that he may use the timber, shall be of no effect,” &c.

Pursuant to this grant, a survey was made on the. 2d of May 1819, of ten thousand acres, at the place called for in the grant.

In February 1820, four thousand acres were surveyed in another place, called Turnbull’s Swamp, at the distance of thirty miles from the first survey; and afterwards, the residue, two-thousand acres, was surveyed, at a place called Bow Legs Hammock, at the distance oí twenty or thirty miles. i& 1819, Sibbald commenced the erection of a sawmill on the ten thpusand acre tract, and continued it till its completion, except the dam; which would have been completed had not the negroes and horses employed;beetr stolen: and while the millwright was absent in pursuit of them, the dam was carried away by a freshet.

The work was then abandoned, after an expenditure of more than 5000 dollars. In Séptember 1827, another mill was built and in operation; which was destroyed by fire in July 1828. Another was commenced in October 1828, which went into operation in. June 1829; and so continues to the present time; is of seventy horse power, and calculated to saw twenty thousand feet of. lumber a day.

By the decree of the court below, the claim of the petitioner was confirmed as to the ten thousand acre survey on Trout creek, and rejected as to the two remaining surveys of four thousand, and two thousand acres; from which decree both parties appealed. Various objections.to the claim were made on the hearing, but only two were. relied on here. 1.

That the grant was on a condition precedent, which was not begun to be performed till the grant became, forfeited by the order of the governor, made the 29th of October 1818, declaring all grants made in consideration of mechanical improvements to be made, to be void if the conditions were not performed in six months. It is unnecessary to decide on the effect of this order; or whether by the acts which authorize the courts of Missouri and Florida to decide on claims to lands therein, congress intended to assert a right by forfeiture for condition broken, to lands which had been once legally. granted.

The evidence in this and the other cases which have been decided, is very full and clear, that no grant has ever been annulled or revoked by the Spanish authorities for any cause; and that there is no instance of a governor having granted land which had been before granted on condition: and it may well be doubted, whether it would have been re-annexed to the royal domain had the province remained under the dominion of the king of Spain: nor is there any provision of any law of congress, which specially requires the court to inquire into the performance of conditions on which grants were made.

By the eighth ar‘ticJevof the treaty of cession by Spain to the United States, the same time is allowed to the owners of land so granted» to fulfil the conditions of their grants after the date of the treaty, as was limited in the grants. We have heretofore decided, in the case of Arredondo, that as to individual right's, the treaty is to be considered as dated at its ratification; 6 Peters 748, 749 : the erection of a mill in 1819 or 1830 would, therefore, be in time to save a forfeiture.

No time was limited in the grant; and no greater effect can be given to the governor’s order.fixing the time for the performance of conditions, than if the limitation had been contained in the grant. We have also decided, that this provision of the treaty is not confined to owners in possession of lands by occupancy or residence, but extends to :all persons who have a legal seisin and possession óf land in virtue of a grant; 6 Peters. 743 : and that in the situation of the province and the claimants to land at the time of the cession, it was enough if they would show a performance of the condition cy pres.

We are therefore of opinion that the petitioner began the erection of the mill in time to save the forfeiture; and that he has shown the performance of such acts as amount to a compliance with the condition, according, to the rules of equity which governi these cases.' 3. It is objected that the terms of the grant do not authorize a survey of any part of the sixteen thousand acres, in any other than in the place called for.

The petition was for. a grant' of sixteen thousand acres, or its equivalent, if its situation would not admit of this form ; the permission solicited was granted, which by reference makes the petition a part of the grant.

It is. in full proof that the quantity could not be surveyed at the place designated without interfering with land which had been previously granted; which would have been contrary to the express words of the grant, “ without injuryjto third persons.” It is also in proofs without contradiction, that in order to obtain the ten thousand acres on Trout creek, it was necessary to go round one or two different tracts, and that no more could have, been obtained any where near it of any. value ; the shape of the survey'Is irregular, and not at all in conformity with the rules prescribed to .urveyors; which require the surveys to be in rectangular parallelograms, the front of which on rivers, creeks and roads not to exceed one third of the depth.

It was.certainly the intention of the petitioner and the governor, that there should be a grant of five miles square, which was the usual quantity granted in consideration of the erection of mills r and we think that taking the petition and grant, together with the manifest intention of both parties, the equivalent for any deficiency on .Trout creek may be referred to quantity rather than to the form of the survey. It would be a very rigid construction of the grant, to make the privilege .of altering the shape of the survey, an equivalent for the loss of six thousand acres of land.

That such was not the intention of the governor is evident from the evidence of Mr Fernandez ; who testifies, that on- ascertaining that part of the land had been previously granted, he informed the governor, who gave Sibbald the right to locate his-grant at any vacant place suitable for the erection of a saw-mill.

The surveyor-general of the province testified, that he filled that office in East Florida from 1811 to 1821, that he located grants by surveying any land which was designated by the grantee,-to which no objection was made by. any of the authorities under the Spanish government; and which was considered an inherent privilege of the grantee without any order from the government.

We are therefore of opinion, that the title of the petitioner to the whole quantity of land specified in the grant is valid .by the law of nations, of Spain, the United States, and the stipulations of the treaty between Spain and the United StatesAor the cession of the Floridas to the latter; and ought to be confirmed to him; according to the several surveys made as returned, with the record. We do therefore order, adjudge arid decree, that the decree of the court below, confirming the title of the petitioner to the ten thousand acres on Trout creek, be, and the same is hereby'affirmed.

And proceeding to render such decree as the court below ought to. have rendered, this court doth further order, adjudge and decree that the decree of the court below, rejecting the claim of the petitioners to the land embraced in the surveys of four thousand acres, and of two thousand.acres, as returned with the.record, be, and the same is hereby reversed and annulled.

That the claim of ‘the petitioner to the same be, and the same is hereby confirmed and declared valid; and that the surveyor of public lands in the eastern district of Florida be, and is hereby directed to do and cause to be done, all the acts and things enjoined on' him by law in relation to the lands within said surveys. 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 ordered, adjudged and decreed by this court,' that the decree of the said superior court confirming the title of the petitioner to the ten thousand acres on Trout creek be, and the same is hereby affirmed; and that the residue of the decree of the said superior court be, and the same is hereby reversed and annulled/ And this court, proceeding to render such decree as the said superior court ought to have rendered, doth order, adjudge and decree, that the claim of the petitioner to the land-embraced in.the surveys of four thousand acres, and of two'thousand acres, as returned with and contained in the record, is valid, and that the same be,- and is hereby confirmed.

And it is further ordered, adjudged and decreed by this court, that the surveyor of public lands in the eastern district of Florida, be, and he is hereby directed to do, and cause to be done, all the acts and things enjoined on him by law in relation to the,lands within said survey. And that the. said cause-be, and the same is hereby remanded to the said superior court to cause further to be done therein, what'of right and according to law and justice, and in conformity .to. the opinion and decree of this court, ought to be done. The same decree was given in the case of Sibbald, appellant v'. The United Slates.