MAGEE vs. DOE ex dem. HALLETT & WALKER et al., 22 Ala. 699

GrOLDTHWAITB, J. This was an ejectment by the defendants in error against the plaintiff in error, for a lot of land situated in the city of Mobile as shown by the diagram in the statement of the cause. The plaintiffs below claimed under two Spanish concessions to Alexander Baudain and Thomas Price; the first confirmed by act of Congress of May 8, 1822, (8 Statutes at Large 699;) and the other by act of Congress of March 2, 1829, (4 ib. 358.) Both these concessions were incomplete, and derive their validity entirely from the confirmatory acts referred to.

The defendant below/ relied upon a Spanish grant to John Forbes & Co. in 1807, commonly known as the “ Orange Grove Grant,” confirmed by act of Congress of March 3, 1819, (3 Statutes at Large 528.) This grant consists of two parts: 1. the certificate of the Surveyor General, and his accompanying map ; 2. the grant by the Intendant General. The recitals in it are to the following effect: 1. That the land was surveyed by Joseph Collins, the Spanish surveyor, in 1802; 2.

That the Fiscal Minister had reported that Panton, one of the partners of the house of Forbes & Co., had acquired these lands by purchase from William Richardson, who had obtained them from the British Government; that Forbes & Co. had possessed them, and were entitled to be confirmed in them, without molestation from the crown of Spain; 8. That the Surveyor General had corrected the map of Collins, and caused it to be recorded; ' 4.

That in addition to the lands included in the survey of Collins, the vacant lands between the river and the boundary lines of the land should be granted, without altering the figure of the tract on either of the other sides. This grant has twice been before this court; and in Hagan v.

Campbell et al., 8 Porter 9, it was held, that the plat or plan of survey which accompanied made part of the grant of 1807; and that the north and south lines of the original grant must be extended without variation, to the channel of the river; and that all the land lying east of said grant and the channel of the river, between such lines as extended, was conveyed by the Spanish grant to Forbes & Co. In Hallett & Walker v. Doe ex dem. Hunt, 7 Ala. 882, the decision on the last point was affirmed, and we are satisfied with its correctness.

It was also held in that case, that the Spanish grant, under the operation of the confirmatory act, was valid and complete by itself, requiring nothing to be done to perfect it; that the recognition of its validity by Congress operated as a regrant, to the full extent of the concession, and that it was superior to any incomplete grant from Spain.

Keeping in view the recitals of the Orange Grove grant, and the decisions referred to, we proceed to an examination of the legal questions which are presented by the admission of the evidence, which was received by the court below against the objection of the plaintiff in error. It appears from the bill of exceptions, that the plaintiffs on the trial below, after deducing title through William E. and Joshua Kennedy, offered evidence tending to show that the premises sued for were embraced by the Price and Baudain grants.

The defendant, in connection with the Orange Grove title, offered the survey of Henshaw, the United States surveyor, made in 1835, which was recognized in the land office; and to establish the south line of the Orange Grove grant to be according to that survey, he introduced evidence tending to prove that the south line, as run by Henshaw, was identical with the Spanish line marked upon the ground by Collins in 1802, wbicb was well defined and recognized as tbe line of that grant in Spanish times; that Forbes & Co. claimed to it; that the proprietors had sold by it; that the survey made for Joshua Kennedy had followed this line; that he had urged its adoption in the land office; that the line in the patent for the Price claim, which he had taken from the office and recorded in the County Court of Mobile, was the same line; that his claims in the land office recognized it, and that -he had used and fixed it in all his surveys.

In order to rebut this evidence, and for the purpose of impeaching the line run by Collins, the plaintiff offered testimony tending to show that the south line of the Orange Grove grant, as run by Collins in 1802, and by Henshaw in 1835, did not correspond with the lines in the British grant, referred to in the grant to Forbes & Co., but was run too far south. This evidence was objected to by the defendant; and the principal question presented upon the record, is involved in the action of the court in overruling the objection thus made, and admitting the testimony.

It has not been deemed necessary to refer to this evidence specifically, and in detail; its sole object was, to show that some other than the line run by Collins was the true southern boundary of the Orange Grove tract; the record shows that it was received for that purpose ; and the only inquiry upon this branch of the case is, whether any evidence of this character was admissible. As the construction of all written instruments belongs to the court, it follows, that when the boundary lines are fixed by the grant itself, the question as to what are these lines is purely one of law. Doe v.

Paine, 4 Hawks 64; Cockrell v. McQuinn, 4 Monroe, 63; Hunley v. Morgan, 1 Dev. & Bat. 425. In relation to the Orange Grove title, the plat or plan of survey made by Collins in 1802, and corrected by Pintado, the Surveyor General, accompanied and made part of the grant, (Hagan v.

Campbell, supra;) and by reference to this plat, which we understand to be before the court as part of the grant, it will be seen that the survey thus made can be identified, by artificial marks and monuments; and the grant itself, according to the decisions before referred to, is for all the lands included within these lines, extended without variation to tbe channel of tbe river, or low water mark. By tbe first

section of tbe act of Congress of March 3, 1819, it is provided, “that all claims to land, founded on complete grants from tbe Spanish government, reported to tbe Secretary of tbe Treasury by tbe commissioners from the districts east and west of Pearl river, which are contained in tbe several reports of tbe commissioners, and which are, in their opinion, valid, according to tbe laws, usages and customs of said government, be and are hereby recognized as valid and complete titles, against any claim on tbe part of, or right, or demand from tbe United States.” Tbe effect of this

section of tbe act was declared, in tbe case of Hallett & Walker v. Hunt, supra, to be an acknowledgment of tbe grant to Forbes & Co., as a valid and complete title against tbe United States and all claiming under them.

Conceding, for tbe sake of argument, that tbe lines of the grant to Forbes & Co. did not correspond with tbe lines of the grant to Eichardson, that the Spanish title was invalid or fraudulent; it was certainly within the power of tbe political department of our own government to impart to it validity; and having done so, by recognizing it as a perfect title, courts of justice are bound by that action, to tbe extent of tbe recognition, and are concluded from any inquiry, at least in a collateral proceeding, which might have tbe effect of avoiding or impairing any rights which accrued under tbe act just referred to.

The Spanish grant, in effect, called for all tbe lands included within tbe survey of Collins; its recognition by Congress appropriated to tbe grantees all tbe lands embraced by it.

The lines thus fixed are, when ascertained, obligatory on tbe United States and all claiming under them since tbe confirmatory act of 1819, and cannot be impeached or changed by any evidence tending to show that these lines were wrongly located, either by mistake or fraud on tbe part of the Spanish government or its officers, prior to the grant in 1807; and any evidence which was admitted with that object, and for that purpose, was inadmissible.

But even if tbe British grant to Eichardson controlled the ■ Spanish grant, and it were permissible to show that tbe boundaries of tbe former did not correspond with tbe lines run by Collins, tbe grant itself, as being tbe best evidence, should have been introduced; and not being introduced, tbe recitals in tbe Spanish grant became tbe best, and, indeed, tbe only evidence of tbe extent and boundaries of tbe British grant, and could not be disputed, except by those claiming by title paramount. Carver v. Jackson, 4 Peters 88; Crane v.

Morris et al., 6 ib. 598. ¥e are satisfied, however, that tbe operation of tbe act of Congress confirming tbe grant to Forbes & Co., cannot properly be construed as conferring upon tbe grantees a greater quantity than was contained within tbe lines as ascertained and fixed by tbe Spanish grant in 1807. By tbe first

section of tbe act, tbe Spanish title was recognized as complete; and although it operated virtually as a new grant, for all tbe lands included within tbe Spanish lines, it conferred a title to such only as would have been covered by that grant bad it been perfect without tbe action of Congress.

Its effect was, simply to confirm that title as a valid one, without conferring on tbe grantees any other or additional rights; and as, by tbe terms of tbe Spanish grant, tbe lines extended only to low water mark, as it was found at tbe date of tbe grant, tbe proprietors are entitled to riparian rights accordingly ; and upon authority, as well as upon principle, we think that tbe correct rule in relation to these rights, is tbe one insisted on by tbe defendants in error; that tbe lines should be drawn from tbe termination of tbe river lines, as they existed in 1807 at tbe date of tbe grant, perpendicularly to tbe channel of tbe river.

No other rule would do justice between tbe riparian proprietors, by giving to each bis proportionate front of tbe lands gained by alluvion. Deerfield v. Arms, 17 Pick. 41.

It results from these views, that tbe south boundary of tbe Orange Grove tract was tbe line marked by Collins as such in 1802, extended without variation or deflection to tbe channel of tbe river at tbe date of tbe grant in 1807; and that a line drawn from that point to low water mark at tbe time of the trial, at right angles with tbe channel, is tbe line to which tbe proprietors were entitled to claim riparian rights in that direction; that tbe only question for tbe jury, in relation to ihe boundary of this grant, was simply to locate this line, to ascertain where it ran; and that any evidence wbicb did not estop the defendant below from, claiming this line, and which was offered for the purpose of showing that some other than the line run by Collins was the true south line of the Orange Grove grant, was inadmissible, and should have been rejected.

It also follows, necessarily, that as the line marked by Collins was the true south line of the Orange Grove grant, the charge requested by the defendant below, which asserts this as a legal proposition, should have been given.

It appears from the bill of exceptions, that evidence was offered tending to show that the land embraced by the Bau-dain concession was claimed by the proprietors under the Price grant; that the survey of that claim was made by James, the United States surveyor, by the procurement of Joshua Kennedy; that its adoption in the land office was' urged by him; that it was recognized by the government; that the patent certificate, and the patent for the Price claim which was taken out and recorded by Kennedy, fixed the Collins and Henshaw south line as the north line of the Price tract; and that this line was recognized by the Kennedys, in their maps, surveys, &c.

If these facts were established to the satisfaction of the jury, we consider that both the United States and the Kennedys were imperatively bound by the line which they had thus adopted and recognized. The Price claim was inchoate and incomplete, and its location and survey were provided for by the acts of 1822 and 1829 (3 U. S.

Statutes at large 700; 4 ib. 359;) and as by this survey the south line of the Orange Grove tract, as run by Collins and Henshaw, was adopted as the north boundary of the Price grant, and the United States and the Kennedys having agreed to this survey, they must be regarded as parties to the selection of the land according to it, and are mutually bound and respectively estopped by it. Menard v. Massey, 8 How. 293-313. It is supposed by the counsel for the defendants in error, that this view is in opposition to the decision of this court in the case of Hallett & Walker v.

Hunt, supra; but on examination, a clear distinction will be found to exist between the two cases. In the case referred to, the plaintiff below claimed title under the Orange Grove grant, and the controversy there was in relation to its boundaries. It was contended, that the boundaries of that grant were limited by the Weakley survey, made under the authority of the government. The court held, that as the Orange Grove claim had been acknowledged by Congress as a perfect grant, it took all that the grant called for, and was not limited by any survey made by the United States.

Here, the controversy, in the aspect in which we are now considering it, is in relation to the location and boundary of the Price and Baudain claims, both of which are incomplete, and the location and survey of which are required by the act of Congress. There, no survey or location was necessary, and no act of recognition or acknowledgment on the part of the grantees to the limits of the Weakley lines established.

In the present case, the United States and the grantees have made their location and survey in conformity with the requisitions of the act estab* lishing the claims; it has been recognized by both parties, and they cannot, after this, be permitted to dispute it. We hold, therefore, that if the Price and Baudain claims were surveyed and located by their proprietors, and the survey recognized by the government and the Kennedys, these acts are conclusive evidence of the location of these claims, and both parties are bound by the lines which such surveys adopt.

If these surveys recognized the line run by Collins, and Henshaw, as the north line of the Price and Baudain claims, it was, under such circumstances, conclusive evidence of the location of these tracts, as to their proprietors and the United States.

The charge of the court below in reply to the charges requested, was erroneous, as, instead of laying down the Collins line as the southern boundary of the Orange Grove grant, and instrueting the jury to follow that line as marked by him, it left the question as to what was the boundary to be determined by the jury ; and it also asserted an erroneous proposition, in relation to the line of the plaintiffs below.

Both the Baudain and Price grants were confirmed subsequently to the admission of Alabama into the Union; and if the river was the eastern boundary of these grants, the lines could not, under the decisions of this court, as well as those of the Supreme Court of the United States, extend beyond bigb water mark at tbat time. Pollard’s Heirs v. Hagan, 3 Ala. 291; 3 Howard’s S. C. R 212; Abbot v. Kennedy, 5 Ala. 393; Pollard’s Heirs v. Kibbe, 9 How. 471. The charge of the court was, in effect, that the line of the plaintiffs would go to low water mark at the date of the grant, and in this respect it was incorrect.

In rejecting the testimony of Innerarity, under the circumstances disclosed by the record, the court did not err. Inner-arity was dead; and the witness by whom his evidence was sought to be established, while he states that he has no doubt that the whole of his testimony, in relation to the title of the premises sued for, was contained in the bill of exceptions from which it was offered to be read, also admits that there were other portions of his testimony, irrelevant to the title, which were not noted in the bill, and the substance of which he did not remember.

The rule is, that where the evidence of a deceased witness is offered, the substance of his whole testimony must be proved. Gildersleeve v. Caraway, 10 Ala. 260; Tharp v. The State, 15 ib. 749. Such parts of it as are irrelevant, and have no bearing on the case, may doubtless be rejected by the court; but the party against whom the evidence is offered, is entitled to the substance of the whole testimony; and it is not for the witness who is offered to establish it, to determine upon the relevancy of the portions which he omits to prove.

Such, in effect, would have been the decision of the court in admitting this evidence ; the witness would have been substituted in the place of the judge, in determining that the portions of the evidence which he omitted to prove, were irrelevant to the title. For the errors we have noticed, the judgment must be reversed, and the cause remanded.