Ambrose Lecompte, Appellant, v. The United States, 11 How. 115

Mr. Justice DANIEL delivered the opinion of the court. • This'is an appeal from a decree of the District Court of. the United States for the District of Louisiana, pronounced on the 22d of November, 1847, dismissing the petition' of- the appellant, filed under authority of the act of Congress of June 17th, 1844, and by which was claimed of the United States a tract of land situated in Louisiana of four square superficial leagues, ' or about 23,705 American acres.

The appellant, as the heir of Marie Louise Lecompte (also styled Dame Porter and Madame Monet), and as heir of his late father, Jean Baptiste Lecompte, bases his claim upon the following statements. He asserts that on the 31st of July, 1797, one Jean Baptiste D’Artigau, then an inhabitant of Nacogdoches, presented his petition to José Maria Guadiana, then lieutenant-governor and military commandant of the post of.

Nacogdoches, asking for a grant of two leagues square, to include the: whole of the Prairie Lianacoco, which prairie should (as the. petition to the District Court represents) be the centre of the said grant; that on the same day Guadiana did grants and issue his order of survey to the proper officer to put the petitioner D’ Artigau in possession, without prejudice to third persons; and that D’Artigau took immediate possession of.the above-described lands, and continued to possess, inhabit, and cultivate the same, until he transferred them by

an act of exchange to Marie Louise Lecompte.. The petitioner next states, that,Marie Louise Lecompte transferred the above-der scribed tract of land to Jean Baptiste Lecompte, the father of the petitioner; that there is no one residing upon the land in question except one person, who holds under the petitioner; that ho person other than the petitioner claitqs any part of the land; and that .the United States have never to his knowledge sold any part thereof.

Such are substantially the averments on .which the plaintiff has placed his claim, and we will proceed, to examine how far, either intrinsically, or as sustained .by any .evidence adduced in their support, they entitled the -•plaihtiff to the establishment of that claim, In considering this petition of the appellant, the .circumstance which first strikes the attention is the extreme vagueness of its statements, and-indeed its entire omission of facts which on the slightest view would appear indispensable to. give validity to this claim. .

Thus, after setting forth the con- ■ cession, and an order to the proper officer to cause a survey in order to put the petitiófter in possession according to survey, and with due regard to the rights of others, omitting any and every fact or circumstance tending to show a compliance with these directions, and the security they were designed to extend either to the government or to individuals, it is said that D’Artigau took possession, and held the land until he transferred it to another.

This vagueness and this omission in the. statements in the petition are by no means immaterial,, inasmuch as, if permitted, they would in effect dispense, with.all compliance with the. express orders of the granting power, and the ■terms it had annexed to its bounty; would dispense also with what- has ever been deemed indispensable, — some act or recognition showing the separation of the subject granted from the royál domain.

And in truth the statement in the petition of the appellant is not consistent with, but in terms as well as in effect conflicts with the order of Guadianá, the Spanish commandant, as filed in support of the appellant’s claim.

The language of the Spanish commandant is as follows: “ Let this petition be handed to the solicitor-general of this, place, in order that the petitioner be placed i'n possession of the land therein mentioned, if in so doing no prejudice can result to. third persons.” Can- this language be correctly construed to signify an absolute, unconditional grant of any specific land or other thing, t— such a grant as put an end to, or denied, thé superior revising authority and duty of the government to take care both of the rights of the crown and of individuals ?

So far from it, the authority of the government in relation to both are here expressly reserved. There is nowhere in this record to be found a scintilla of proof, that this order, or the petition on which it was founded, was ever presented to the solicitor-’ general, or that any act was performed by any functionary of the government severing the land from the public domain, or putting the petitioner D’Artigau, or any other person, in possession of any specific land, so that a boundary or limit could be defined by possession.

There'is in fact no proof that D’Avtigau took possession of .any thing certain or specific, or had a right to possess himself of any thing specific. Again, there seems to be an attempt, by the statement in the petition to the District Court, to give a definiteness to-, the claim or the right by possession, which the language ox the concession by no means warrants. Thus it is said in the petition, that the application of D’Artigau prayed for a ■grant of which the .Prairie Lianacoco should be the centre. There is.no such language in the application presented to the Spanish commandant.

That application asked for a grant which might include the prairie above named, but in what part of the grant, whether in relation to t'he centre or to any of its exterior boundaries, neither in the prayer to the Spanish authorities, nor in the order which followed, can any reference whatsoever be found. The importance of the omission to aver and to prove a delivery of the order of Guadiana, the Spanish commandant, to the procurador del común, or solicitor-general, and the action of ■the latter upon that order, is shown in another point of view.

In the report of the commissioners for the settlement of land claims in Louisiana, dated November, .1824 (4 American State Papers, 34, 35, and 69), the following regulations are given as those prescribed for the Spanish officers, and practised upon by them in making grants for lands in the district of Nacogdoches: “ The lieutenant-governors and commandants of Nacogdoches were not.limited, in the granting of lands, to any specific quantity, but it was their duty to proportion the extent of the grants to the circumstances of the individual claiming them, and to that effect the procurador del común named, to put the party in possession inquired into the merits and circumstances of the applicant; and if the grant was for a stock farm, it was customary to extend the concession to two, three, and. four leagues square, according to the wants and merits of the claimants.

The procurador del común was the officer appointed to make, inquiry, put the petitioner in possession of the land prayed for, and execute the lieutenant-governor’s and commandant’s orders relative to the premises.” Such, we are told, were-the functions, and duties of the procurador or solicitor-general relative to grants of land in this district.

It was he who was to supervise the severance of the object to be granted from the royal domain, to give- it -form and extent, either by designating ascertained and notorious limits' and boundaries, or. by directing an actual survey, and. by reporting the proceedings he may have directed, for the sanction of his superior. The applicability of the functions and duties of this officer to the case before us is evinced by reference to the character of this applicátion to the government.

This was not á prayer for an ordinary portion of land for cultivation, but an application for a wide extent of territory; such an extent as would be proper or requisite only upon the supposition of its necessity for the occupation of a large stock and a numerous force. The petitioner avows his intention of raising horses, mares, and horned cattle, a purpose requiring an extensive range, if carried into effect in good faith. .

It became, therefore, peculiarly proper to inquire into the means of the applicant, and into the probabilities of his executing his proffered inten-, tions; as it would be highly detrimental to the Province to permit an individual to retain a large and useless extent of unsettled land, and unjust to other settlers to permit such individual, under a ¡false suggestion, to acquire an extensive property for the mere purposes of speculation.

Hence it was, no doubt, that the order of the commandant of even date with the petition was issued, sending the petition to the officer who was to judge of its propriety, and without whose direction there could be neither a severance of the land from the royal dqmain, nor regular legitimate possession in any one. These conclusions are in strictaceordance with the numerous • decisions in this court, which insist on the necessity for the severance of the property claimed from the public domain, either by actual survey or by some ascertained limits or mode of separation recognized by a competent authority.

The decisions just referred to, it would be tedious tó cite in detail in this place ; their effect, howevér, may be seen in the following perspicuous

summary, made by the Chief Justice in the case of the United States v.

King et al., in 3 Howard, 786, 787, in which he says, speaking of the documentary evidence in that case : - “ The instruments themselves contain no lines or boundaries whereby any definite and specific parcel ef land was severed from the public domainand it has been settled by repeated decisions in this court, and in cases, too, where the instrument contained clear words of grant, that if the description was vague and indefinite, as in the ease béfore us, and there was no official-survey, to give a certain location, it could create no right of private property in any particular parcel of land, which-could be maintained in a court of justice.

It was so held in. the cases in 15 Peters, 184, 215, 275, 319, and in 16 Peters, 159,160. After, such repeated decisions upon the subject, all affirming the same doctrine, the question cannot be considered as an open one in this court.

The' land claimed was not severed from the public domain by the Spanish áuthOrities, and set apart as private property, and consequently it passed to the United States by the treaty, which ceded to them all the public and unappropriated lands.” They accord likewise with the decisions of the Supreme Court of Louisiana as reported in 8 Martin, 637, and in 5 Martin’s New Series, 110, in the former of which cases the court say:. “ There is no order of survey; no decree of any kind is given by the intendant or his representative. The application stands unanswered.

Now supposing the parties to be in the situation iri which they were before the relinquishment of the rights of the United States,-would the plaintiff be able to eject the possessor of the land with such a paper, — a paper which is the act of the party alone, and bears not the slightest intimation of the grantor’s pleasure ? ” And in the latter case the court held, “ that a permission to settle, obtained on a requite, but not followed by an actual settlement, did not give a right superior to that resulting from an actual settlement without permission, or, in. other words, from a naked possession.” And in the case of Blanc v.

Lafayette, decided during the present term, the person from whom the appellant deduced his title had upon a petition to the Spanish intendant obtained an order 'to the surveyor-general to lay off the land.

No report was alleged or proved to have been returned by the surveyor-general upon the petition ; and although this claim was favorably reported upon by the commissioners, and although it was insisted upon as having been confirmed by act of Congress of 1814, confirming a particular class of incomplete French and Spanish grants, concessions, warrants of survey, having a special and definite location, yet as this order to survey had not been executed, and as the claim was not sustained by certain and definite boundaries, nor by proof of certain and full possession, the Supreme Court-of Louisiana, decided, notwithstanding a recommendation by the commissioners and the act of Congress of 1814, that, there being no survey and no definite location or description by possession, such as could create a specific right or title under the Spanish authorities, the recommendation of the commissioners and the act of Congress did not cure these radical defects, nor confirm a title so wholly undefined, and deduced from so defective an origin. .The opinion of the court of Louisiana has met the approbation of this court, who have again ratified the principles of that decision in the case of the United States v.

Boisdoré’s Heirs, during the present term. ■ In the absence of documentary evidence showing any act of the Spanish authorities beyond the first order of the commandant, sundry witnesses have been examined, with the view to supply this deficiency, and to give certainty and definiteness to the claim by proof of occupation.

A proper analysis of the statements by the witnesses must exhibit them as coming signally short of the ends for which they have been introduced. ■ The witnesses Grenaux and Plaisance' knew nothing whatever of a grant to D’Artigau, nor of any exchange of .property between D’Artigau and Madame Lecompte. Gaspard La Cour knew D’Artigau.

Always understood that Madame Lecompte obtained the land "in exchange with B’Artigau, —*but does not know for what it was exchanged; never saw- any instrument or other document showing' a grant of survey to B’Artigau,. or any exchange., between the latter and Madame Lecompte; — witness is unable to write. The evidence most favorable to this claim is that of Prud’homme ; but this testimony should be taken subject to the admission of the witness that' he is a connection of the claimant.

Prud’homme states that he knew B’Artigau more than-fifty years ago, — knew that B’Artigau had a large concession (how large he does not state), including the Prairie Lianacoco ; knows that B’Artigau transferred this concession to Marie Louise Lecompte in exchange for another tract of land at the Tancock Prairie ; is sure that this exchange took place before the establishment of the United States government in Louisiana (the witness gives no date for this transaction).

Witness knows that, moré than fifty years ago, the plaintiff and those under whom he claimed had possession of the Prairie Lianacoco, as a vacherie, and has kept the same up to this time. Recurring now to' this testimony, so far as it is adduced to establish a title by showing specific limits by oecupation on the part of D’Artigau, not one of the witnesses proves actual occupation by D’Artigau of any thing.

La Cours understood that Madame Lecompte obtained the land (what land is not shown) in exchange with B’ Artigau, and even Prud’homme can say no more than that B’Artigau had a large concession,including the Prairie Lianacoco, and exchanged it with Madame Lecompte for the Tancock Prairie.

Limits,, specific quantity, certain descriptions, such as might constitute severance from the royal domain, are then wholly out of the question, so far as these or any of these requisites can be deduced from possession by B’Artigau; — for he never had possession, and could therefore transfer no right resulting from possession to Madame Leeompte, or to any other person. We have already considered how far such a severance could be deduced from the order of ' the commandant at Nacogdoches.

In the next place, with regard to the possession of Madame Lecompte, or of those claiming under her, relied-on as the foundation of title, it will be .seen that this evidence is utterly inadequate to any of the purposes for which it is adduced. The utmost that any witness has been able to staté 'on this point is a possession of the Prairie Lianacoco, forming, as is admitted on all sides, but a small portion of the claim insisted upon, and heneo not forming a description, either as to quánti-, ty, locality, or limits, to direct in ascertaining that claim.

And even with respect to this prairie itself, there is nothing to show its position, extent, - or limits, or the actual occupation of the whole or of any . specific part of it by the ancestor of the appellant. Upon this subject the record is singularly barren. The only fact we can gather, from it, as indicating the extent of the occupation, is one which seems strongly to militate against a right coextensive even with this fragment of the entire claim.

The fact here alluded to is the averment in the petition, that there is a single individual residing upon some portion of the land, who holds under the petitioner; but on what portion, or by what metes and bounds, whether within or without the limits of the Prairie Lianacoco, is left wholly to conjecture.

Upon the whole, therefore, we are of the opinion, that, neither upon the isolated order issued on the 31st of July, 1797, by the commandant at Nacogdoches, nor by virtue of any fact or testimony adduced for the purpose of showing a right to the land claimed as resulting from occupation, settlement, or cultivation, or from any act of the commissioners, or any law of the United States founded thereupon, has the claim of the appellant been sustained.

We therefore adjudge that the decree of the District Court of the United States for the District of Louisiana, dismissing the petition of the appellant, be, and the_. same is hereby, affirmed. Order. This cause came on to be heard on the transcript of the record from the District Court, of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause, dismissing the petition of the claimant,'be, and the same is hereby, affirmed.