United States v. John W. Low

Mr. Justice Catron delivered the opinion of the Court. This was a mill grant of five miles square of land, or sixteeri thousand acres: that is, at Doctor’s Branch, where the mill was intended to be erected, six thousand acres; and ten thousand acres “on the north-west' side' of the head or lagoon of Indian river.” The concession was made (6th of April, 1816,) on the condition that the mill was built. The mill was erected. The first survey was made at Doctor’s Branch, in 1819, and is free from objection. . The second, for ten thousand acres, was made February, 1820, by the surveyor-general of East Florida, “ north-westwardly of the head of Indian river, and west of the prairies of. the stream called North Creek; which empties itself at the head or pond of said river.” Such, is the description in the certificate of the surveyor-general. The survey had been objected to, but the objection was withdrawn at the hearing below; and it is insisted that a waiver of its legality must be inferred. The objection extended to the competency of the paper as evidence, and not to its "effect when heard; so the Court held in Breward’s Case, at this term. The official return to the surveyor-general has accorded to it the force of .a deposition. So we held in the cases of Breward and Hanson; to which we refer. The land could oply be surveyed at the place granted; if elsewhere, it would have been a new appropriation, when the survey bears date in 181‘9, contrary to the eighth article of the treaty with Spain: and the question is, was it at the proper place. It was granted “on the north-west side of the head of Indian river, or lagoon.” *167 According to the strict ideas of conforming a survey to a location, in the United States, the survey would be located -adjoining the natural object called for, there being no other to aid and control the general call; and therefore the head of the lagoon would necessarily have formed one boundary. But it is obvious more latitude was allowed in the province of Florida. The object of the grant was timbered land, fit for the supply of lumber; and if the nearest vacant timbered land to the head of the lagoon was surveyed, the intentions of the government and of the grantee were complied with. This was the construction given by the surveyor-general to the words “north-west side.” He permitted the' general call to vary so far, and no farther, as to secure timbered land, excluding the prairies next the head of the lagoon. The legality of the survey depends on the fact. The description given in the certificate above recited, and that set- forth by the decree must be taken together; the lines and boundaries on other lands are given in the decree. The complaint is, that the land was surveyed too far west. On the north, it is bounded by the lands of Charles Sibbald; on the south, by those of John M‘In-tosh; on the west, by royal, or vacant lands; and on the east, by the prairies of .North Creek, which empties itself at the head of ■Indian lagoon. There is no evidence that North Creek is navigable. If there was such. evidence, as the survey includes the creek, we would reverse the decree, and order the survey only to front one-third part on the creek. The surveyor-general certifies that this ten thousand acres is the tract of land granted to the petitioner, on the 6th of April, 1816 : and, although no reliance would be placed on the assertion in the certificate, standing alone; still, taking the return that the survey was on the land granted, in connection, with all the facts and circumstances appearing in the record, and it tends to confirm the conclusion that the land was laid off on the next land to the head of the lagoon, covered with timber. One other consideration has weight. If it be untrue that the survey is at the proper place, the United States could have proved the fact to a certainty, with the slightest diligence ; and ought to have proved it. This consideration- is strengthened by the pleadings and evidence. The petition filed in 1829, alleges that the surveys were made for lands granted; and sets out the descriptions, courses, and distances, to which the *168 attorney of the United States niade no answer: the fact was not admitted for this reason, and necessary to be proved by the complainant, 6 Cranch, 51; yet it/ shows that the claim was not resisted on this ground; and such was clearly the case throughout, as George F. Clarke, the surveyor-general, was twice examined as a witness, on many interrogatories, without having been requested to state the locality of the ten, thousand acres survey. Upon all these facts and circumstances taken together, we. order the decree to be affirmed.