Doe ex dem. Kennedy's Ex'rs v. Jones

COLLIER, C. J. On the 19th April, 1798, Thomas Price, the English interpreter residing at Mobile, petitioned Manuel Gayoso de Lemos, the Spanish Governor of Louisiana, for a tract of land having twenty arpens in front, by thirty in depth, bounded on the north by lands anciently the property of Terry and Mazurie ; on the east by the granted lots in the town of Mobile, and by the river, and on the west and south by vacant lands. In aid of Price’s petition, Manuel de Lanzos, the then commandant of Mobile, informed the Governor that the land thus applied for was vacant, the petitioner was a useful person, had been for several years English interpreter, and that there was no obstacle to his having a grant of the land. Thereupon the Governor, by a decree dated at New Orleans, the 18th November, 1798, directed the commandant to put the petitioner in possession of the tract, and to forward the proceedings of survey, for the purpose of procuring the petitioner a title in due form. It is not shown that any further proceedings were had on — 78 — the petition. In 1806, Price, through his agent, Joshua Kennedy, presented to Morales, the Intendant of Pensacola, a petition for five hundred arpens of land, in and contiguous to and within the then town of Mobile. Sometime afterwards, Price discovering his agent was mistaken as to the particular land desired, as well as to the terms on which he wished a grant of it, addressed a memorial to the commandant at Mobile, stating in what the mistake consisted: Further, that the Intendancy had granted out of the six hundred arpens conceded to him by De Lemos, a tract of twenty arpens to Wm. McBoy, and had also granted to F. Collell part of another tract belonging to the memorialist. Thereupon Price prayed a confirmation of the concession of 1798, and that* five hundred arpens, lying to the south and west thereof, might be granted to him in payment of three years salary, due him as interpreter, and as compensation for the injury he had sustained by the grants to McBoy and Collell. The prayer of the petitioner was granted, on condition that he should never claim the lands held by McBoy and Collell, and his claim upon the treasury for his salary should be considered as extinguished. The Spanish surveyor general, Pin-tado, in his directions to the deputy at Mobile, recapitulates this latter concession to Price, approved the same, and ordered him to have a survey made, that a formal title might issue. [Am. State Pap. 5 Public Lands, 128.] These facts, with others not necessary to be noticed, are set forth in “ Special report No. 1,” of the register and receiver of the land office for the district of St. Stephens, to the secretary of the treasury, on the 23d February, 1828. By an act of Congress of the 2d March, 1830, all claims to lands and town lots contained in certain abstracts reported to the treasury department by that register and receiver, under the provisions of the act of Congress of 1827, are confirmed to the extent therein recommended: Further, “that all the claims contained in special reports, numbered one to four inclusive, and in a supplementary report of the said register and receiver, made as aforesaid, be, and the same are hereby confirmed.” The fourth section enacts, “that the confirmation of all claims provided for by this act, shall amount only to a relinquishment forever on the part of the United — 79 — States, of any claim whatever to the tracts of land and town lots so confirmed, and that nothing herein contained shall be construed to.affect the claim or claims of any individual, or body politic or corporate, if any such there be.” It is provided by the fifth section, that the register and receiver at St. Stephens shall direct the manner in which all claims to lands and town lots in their district confirmed by this and former acts of Congress, shall be located and surveyed, having regard to the laws, usages and customs of the Spanish government on that subject, and also the mode adopted by the government of the United States, in surveying the claims confirmed by virtue of the second and third sections of an act of Congress, entitled “ an act regulating the grant of lands, and providing for the disposal of the lands of the United States, south of the State of Tennessee,” approved the -3d of March, 1803; and that so much of the fourth section of the “ act supplementary to the several acts for adjusting the claims to land, and establishing land offices in the district east of the island of New Orleans,” approved the 8th of May,. 1822, as interferes with the power here granted to the register and receiver of the land office at St. Stephens, is hereby repealed. [Public Lands, ed. 1838, Part 1, p. 455.] The proceedings upon Price’s petition, in 1798, merely direct the commandant of Mobile to put the petitioner into possession and to forward the survey, that the title may be’, consummated. It does not appear that the survey was ever made, or that any further steps were ever taken to perfect his title until 1806. These proceedings then, were wholly ineffectual in 1800, when Spain relinquished her claim to the country west of the Perdido, and when it was subsequently acquired by the United States, under the treaty of Paris. It may be added that the concession by the Governor of Louisiana, was a mere gratuitous assent to the prayer of the petition, and gave nothing more than a permission, to occupy the lands — the fee remaining in Spain, until the survey was made in due form, the fact communicated to the Governor, and the evidence of title furnished. Previous to 1806, the United States had become the proprietor of Mobile, when the concession of 1798 was professedly confirmed. But even this latter act, though founded). — 80 — avowedly upon a consideration, did not complete the title— it contemplated a survey as a prerequisite to its consummation, and it does not appear to have been made, or that the Spanish authorities acted further in the matter. In this condition of things, the United States become the owner of the fee in the lands in question, under the treaty of Paris charged with a political obligation to validate the inchoate acts of the Spanish government, so far as they were binding in conscience. Price had no rights which an American court could recognize, but was dependent upon the bounty and justice of Congress for the establishment of his claim. These principles have been so often asserted both by this and other courts, that it cannot be necessary now to sustain them by a reference to authority. If, in the interim, when Price’s petition was acted on by the'Governor of Louisiana, and the negotiation of the treaty of St. Ildefonso, in 1800, Spain had made a complete grant of the same land, it cannot be questioned but the grantee would have acquired a- title paramount to the concession to Price. The bounty which the representatives of his Catholic Majesty, had undertaken to bestow, could have been withdrawn before his purpose was consummated. This being the case, conceding that the evidence does not show a dedication of the soil of St. Louis street to the use of the city, prior to 1798, or that the circuit court did not refer that question to the jury, and it may be asked whether it was not competent, subsequent to that period, for the Spanish authorities to dedicate to public purposes any part of the land embraced by Price’s claim ? This question, we think, must receive an affirmative answer. If such a dedication was made previous to 1806, the confirmation of the commandant at Mobile, does not abrogate it in express terms, or by a reasonable construction, even if it had been within the competency of the local authorities of Spain to grant a public highway, or to divest easements in which the town had a common interest. But we have said that the concession of 1806 was inchoate, and not entitled to judicial recognition until it was confirmed by Congress. In the Mayor, &c. of New Orleans v. Metzinger, 3 Mart. Rep. 296, the defendant claimed a lot in the city of New Or — 81 — leans under a perfect Spanish grant which had been recognized by the United States, which the plaintiffs insisted was part of the public highway, and therefore could not have been granted for private use, even by the king himself. The court said, “ that public places, such as roads and streets cannot be appropriated to private use, is one of those principles of public law, which requires not the support of much argument. Nor is there any doubt, that if by a stretch of arbitrary power, the preceding government had given away such places to individuals, such grants might be declared void.” This decision is expressed in terms too expli-plicit to require comment, and was made by a court in which the civil law, as applied in Spain, is recognized. It has frequently been a question, both in England and this country, what is sufficient to constitute a dedication' of land to the public use. In Jarvis v. Dean, 3 Bing. R. 447, it appeared that persons had for four or five years been in the habit of passing up and down a new, unpaved and unfinished street, which terminated in fields, where other houses were built. The jury affirmed by their verdict a dedication of the street to the public, and a new trial was moved for on the ground that there was not sufficient evidence to support it. It was said by the court of common pleas, that as the street “ had been used for four or five years as a public road, the juryx were warranted in, presuming that it was used with the full assent of the owners of the soilconsequently the motion was denied. See also, Antones, et al. v. Heirs of Eslava, 9 Porter’s Rep. 527. In the President, &c. of the city of Cincinnati v. The Lessee of White, 6 Pet. Rep. 431, the proprietors of the land on which the city has been erected, made and approved a plan of a town, on which certain ground was designated as a common for the use and benefit of the town forever, reserving only the right of a ferry. It was held that the right of the public to use the common in Cincinnati, must rest on the same principles as the right to use the streets; and that the dedication made when the town was laid out, gave a valid and indefeasible title to the city of Cincinnati: Further, — 82 — there is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. It was said, that in such cases there may be instances where, contrary to the "general rule, a fee may remain in abeyance until there is a grantee capable of taking, when the object and purpose of the appropriation looks to the future grantee in which the fee is to vest. But the validity of a dedication does not depend on this: it will preclude the party making the appropriation from reasserting any right over the land; at all events, so long as it remains in public use, although there may never arise any grantee capable of taking the fee. All public dedications must be considered with reference to the use for which they are made; and streets in a town or city may require a more enlarged use of the land, in order to carry into eifect the purposes intended, than may be necessary in an appropriation for a highway in the country. But the principle, so far as respects the right of the original owner to disturb the use, must rest on the same ground in both cases; and applies equally to the dedication of the common as to the streets. Property being thus set apart for public use, and enjoyed as such, and private rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. It is a violation of good faith to the public, and those who have acquired private property, with a view to the enjoyment of the use thus publicly granted. The same doctrine is reasserted in Barclay and others v. Howell’s Lessee, 6 Pet. Rep. 498, where it was also said, if the ground for which an action of ejectment is brought had been dedicated for a particular purpose in a city, and the corporate authorities appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery, to compel a specific execution of the trust, by restraining the corporation, or by causing the removal of obstructions. But even in such a case, the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the condition imposed — 83 — in the grant. Further, an unmolested possession for thirty years, would authorize the presumption of a grant; and under some circumstances, a grant has been presumed from a possession short of the number of years required to bar tlje action of ejectment, by the statute of limitations. In some cases, a dedication of property to public use, as, for instance, a street or a road, has been inferred from an undisturbed use of it by the public for six or seven years. See also, McConnell v. The Trustees of the Town of Lexington, 12 Wheat. Rep. 582. In Renthorp, et al. v. Bourg, et ux, 4 Mart. Rep. 97, it was conceded, that according to the common law, the owner of a tract of land over which a public road passes, retains the fee in the soil, the use of the road is in the public; but it was said, that the Roman law invested the public with a right to the ground itself, that this law is in force in France, was so in Louisiana, when the country passed under the dominion of Spain, and does not appear to have been modified by the latter monarchy. See also, 6 Pet. Rep. ut supra, 499. It has been held, that in order to dedicate property for public use in cities, towns, and other places, it is not essential that the right to use the same shall be vested in a corporate body — it may exist in the public, and have no other limitation than the wants of the community at large. If buildings have been erected on lands within the space dedicated for public use, or grants of part of the same have been made by the power which had authority to make, and had made, a dedication of the same to public use; the erection of the buildings, and the making of the grants, would not disprove the dedication, nor would the vested rights of the public be affected by the grants. It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of a right in the power which issued it. For any thing appearing to the contrary on its face, it may be valid; but if the thing granted was not in the grantor, no right passed to the grantee. [The Mayor, &c. of New Orleans v. The United States, 10 Pet. Rep. 662.] In the case before us, it does not appear whether St. Louis street was designated in the original plan of the Spanish town, Mobile, or whether it was dedicated by Spain, or some — 84 — individual proprietor of the land over which it passes, but it is descrihed in a petition of Joseph Collins, dated in January, 1803, addressed to Orsono, the then commandant at Mobile, praying a grant of a tract of land, as one of the streets of<»the town. And Orsono in answer to this petition gives permission to Collins to occupy land on the flat, of which “ St. Louis street” is described as the southern boundary. It is also recognized in a deed executed by Louis Baudin and others, and attested by Joshua Kennedy, in 1814; and again in 1820, by a deed attested by the same witness, and executed by Wm. E. Kennedy, as well as by the map prepared by Matthews, in 1817 or 1818, to say nothing of the testimony of witnesses in respect to its use by the public. The evidence is quite sufficient to warrant the inference of a dedication, not only in 1803, but if necessary, for an indefinite period previous to that time. In respect to the admissibility of the evidence to this point, it may be remarked, that it was not questioned in the court below, and if it had been objected to, we think its competency entirely defensible. [1 Greenl. Ev. 166; Antones, et al. v. Heirs of Eslava, 9 Porter’s Rep. 527 ; 6 Pet. Rep. 328; 7 Id. 554.] But if it were not permissible to intend a dedication previous to 1803, when Orsono gave to Collins a permission to occupy land bordering on “ St. Louis street,” we have seen that this act of the commandant, followed by a continuous use for such a number of years, would itself indicate a dedication, not inhibited by the concession of the Governor of Louisiana to Price, in 1798, and not annulled by the confirmation of the commandant at Mobile, in 1806. In respect to the accretions at the eastern end of St. Louis street, or the reclamations by human effort, we think that they become a part of the street, as the city extended its limits eastward, across the marsh, towards the river; quite as much as much as if the extension had. been embraced by the original dedication. The location of Mobile, the extensive flat between the channel and the bank of the river, over which the tide flowed, the deleterious effect upon health, and the hindrance to trade; doubtless suggested the idea at a very early day, of making reclamations from the shore, as the commerce of the city furnished inducements tp such improve85 merits. This is but a reasonable and natural assumption, and authorizes the conclusion, that by dedicating the streets running east to the use of the town, and the public, to the margin of the shore, the marsh between the shore and the river was in like manner yielded up, as the wants of the community required its use. The cases cited from 6th and 10th Peters, are in harmony with this view, and we think is a necessary sequence from them. The transfer of the possession, of Mobile and the adjacent country from Spain to the United States in 1813 did not interfere with the rights of property, the plan of the town, or the right of its inhabitants to use the public streets as they previously had done. The right of use continued in the public and individuals in the same manner as it was enjoyed prior to the change of national flags — and we have seen that to perpetuate the dedication, it was not necessary that there should have been a continuous corporate existence of the town. If, however, the law were otherwise, it would be worthy of inquiry whether the dedication is not inferrible from the use of the street with the assent of the parties interested since 1814, when the town of Mobile was incorporated by the Mississippi Territory? We say with the assent of the parties, because their dissent is not shown or pretended. But conceding that the fee of the soil appropriated to the street, is vested in the plaintiffs, and it may be asked if it was not competent for the corporate authorities of Mobile to have erected a wharf or other convenience for the mooring or anchorage of vessels at the eastern terminus of the street ? If the corporation could have done this, and demanded wharf-age or other kindred charges, what inhibition is there either in law or reason to prevent it from leasing to an individual the privilege of erecting a wharf with a license to receive these charges upon the payment of a yearly rent to'the corporation ? The view we have taken of the evidence of dedication relieves us from the necessity of answering these questions. * Again: If the ground has been used for a purpose not contemplated by the dedication, will such an abuse of the right invest the plaintiff with the right to the possession of the part thus diverted from the purpose to which it was des — 86 — tined; or must not a court of equity be resorted to, “ to compel a specific execution of the trust by restraining the corporation, or by-causing the removal of obstructions ?” In the City of Cincinnati v. White’s lessees supra it was said that the mere naked fee will not entitle the plaintiff in ejectment to recover the possession of land. This is a possessory action, and to authorize the plaintiff to recover, he must have the right of possession. Whatever takes away this righf of possession, will deprive him of the remedy by ejectment. It is abundantly shown by what has been said, that there is no error in the first charge given — certainly none that could have prejudiced the plaintiff. The second and third charges we think are alike unexceptionable. If it could have availed any thing in the defence, it was permissible for the defendant to have shown that the grant to Price was made by Joshua Kennedy or some one else not authorized to grant the land embraced by it. [Polk’s Lessee v. Wendal, et al. 9 Cranch’s Rep. 87; Patterson’s Lessees v. Winn, 11 Wheat. R. 380; United States v. King, et al. 3 How. Rep. 773.] If the grant was made without the authority of Spain acting through its officers, it was certainly void, and the plaintiff could only claim under the act of Congress and the consequent proceedings. The act merely confirm's the special report in respect to the Price claim; but neither the act nor the report designate its limits or boundaries. In this posture of the case, reference must be had to the.survey made under the authority of the fifth section, or to the patent in which it is recited. If the survey ascertains limits which do not embrace St. Louis street, or the shore east of it, we cannot see how the plaintiff can claim the pro^perty in question as a riparian proprietor. But if the court fhad misapprehended the law in the second and third charges, jt may be asked if the plaintiff could have been prejudiced, ■as he failed to make out a title on which he could recover. The view taken is decisive of the cause — and we have ¿only to add, that the judgment of the circuit court is affirmed.