Doe ex dem. Pollard's Heirs v. Greit , 8 Ala. 930 ( 1846 )

COLLIER, C. J.

The report of the commissioner for the examination of land claims east of Pearl river, merely states that Wm. Pollard claimed as the original claimant a Spanish permit dated 11th December, 1809, for an unknown quantity of land, situate in Mobile, issued by Cayetano Perez, but of which there had been no survey, inhabitation, nor cultivation. In respect to which the commissioner remarked that the claim was forfeited under the Spanish law for the want of inhabitation and cultivation.

Thus stood the title of the lessors of the plaintiff, (assuming that they are the heirs of Wm. Pollard, the claimant,) when the act of 28th May, 1824, was passed. The second section of that act which is alone pertinent to the case before us, enacts, “ that all the right and claim of the United States to so many of the lots of ground east of Water street, and'between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots in said city of Mobile, whereon improvements have been made, be, and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same; in which case, the right and claim of the United States shall be, and is hereby vested in the person to whom such alienation, grant, or order of survey was made, or in his legal representative: Provided, that nothing in this act contained shall be construed to affect the claim, or claims if any such there be, of any individual, or individuals, or of any body politic or corporate.” [Land Laws, ed. 1838, part 1.] This section relinquishes to the proprietors of what were known as water lots under the Spanish government, all the right and claim of the United States to so many of the lots of ground east of water street, within certain limits, and known as water lots in 1824, whereon improvements were then made, as are situated between the channel of the river and the front of those that were water lots in Spanish times, &c. It does not appear from the record that the lessors or their ancestor were the proprietors in 1824, of a lot lying on the west side of Water street, or elsewhere in the city of Mobile; so that they can only claim under the statute of 1824, in virtue of the retrospective effect of the act of 1836.

Let us briefly consider what was the predicament of the defendant’s title at this latter period, and what influence the act of 1838 has upon it, even if it relates to the same property. That statute enacts, «that there shall be, and is hereby confirmed unto the heirs of William Pollard, deceased, a certain lot of ground situated in the city of Mobile, and bounded as follows, to wit: on the north by what was formerly known as John Forbes and company’s canal; on the west by Water street; on the south by the King’s wharf; and on the east by the channel of the, river; and that a patent shall issue in the usual form for the same : Provided, That this act shall only operate as a relinquishment on the part of the United States, ofall their rights and claim to the above described lot of ground, and shall not interfere with or affect the claim or claims of third persons.” [Laws U. S. 531.]

f f Pollard had a claim to the lot confirmed to him, the confirmation wo.uld relate back to the time when the incipient title attached, if the fee was in the United States. But it is not competent for Congress, by a mere enactment to confer upon its grantee, a title which had already vested in a third person ; and in the present case, such a purpose is expressly disavowed. The proviso to the act we are considering, declares that it shall only operate as a relinquishment on the part of the United States of all their right and claim, and shall not interfere with, or affect the claims of third persons. This is quite sufficient to show, that if the title to the lot described in the act, had passed out of the federal government, the act was itself inoperative.

The title under which the defendants claim, commenced in 1803, and was confirmed by an act of Congress of the 8th May, 1822, entitled “ An act confirming claims to lots in the town of Mobile, and to land in the former province of West Florida, which claims have been reported favorably on by the commissioners appointed by the United States.” [Land Laws, ed. 1838, part 1, p. 348 ; see also, Id. pp. 208-316.] This claim was founded on a “ Spanish permit” to Anthony Espejo, of which the commissioner reported no survey had been made ; consequently, under the eleventh section of the act of 1819, it was surveyed, and its boundaries ascertained. By a patent certificate issued by the register and receiver of the land office at St. Stephens, the lot in virtue of which the defendants claim the premises in question, is described “ as a lot of ground within the city of Mobile, begining at the south west corner of Government and Water streets, and running thence with Government street, S. 76, W. 149 4-12 feet to a stake, thence S. 11, E. 64 feet to a post, thence N. 76, E. 149 4-12 feet to Water street, thence along said street N. 11, W. 64 feet to the begining, containing nine thousand five hundred and fifty-seven feet, English measure.”

The location of this lot shows a front on Water street of one hundred and forty-nine 4-12 feet-; and the proof very fully establishes that it was known under the Spanish government as a water lot; that it is situated between Church street and North Boundary street; that improvements w.ere made on the lot in front of it between Water street and the channel of the river, prior to May, 1824, by those under whom the defendants deduce title. This being the case, what title remained in the United States to relinquish by the act of 1836 to the lessors of the plaintiff? Did not the confirmation of Espejo’s claim in 1822, and the act of 1824 invest his heirs not only with the land embraced by the Spanish permit, but also with the reclaimed land lying east of Water street and west of the channel of the river ? Does not the act of 1824 operate as a grant in favor of the persons coming within the categories it prescribes, and thus estop Congress from making a valid disposition of the same property, by a subsequent enactment intended to operate either as a primary or secondary conveyance ; more especially if the second act be not sustained by a legal obligation resting oh the Federal Government ? And if it be a grant where is the necessity for issuing a patent in order to consummate the grantee’s title ? [See Hallett & Walker, et al. v. Doe, ex dem. Hunt, et al., 7 Ala. Rep. 882.]

But if these questions should all receive an answer unfavorable to the defendants, it might then be asked, whether, as the shore of $e Mobile river was vested in the Stale, in trust for the public, previous to reclamations made east of Water street, Congress could enact any law which would impair the right of the State by granting the soil of what was the shore when the State became the fiduciary proprietor? We think a negative response is furnished by the decision of the Supreme Court of the United States in Pollard’s lessee v. Hagan, et al. 3 How. Rep. 212. See also Doe, ex dem. Kennedy v. Bebee, ante 909.

If all these objections to the plaintiffs' title he untenable, then we would say, that there is no error in the charge to the jury prejudicial to his rights. It referred the location of the King’s wharf to the ascertainment of the jury, remarking that as this was the south boundary of the plaintiff’s confirmation, if they found it to be north of Government street, the defendants were not shown to be in possession of any part of it, and they should return a verdict for the plaintiffs. But if the King’s wharf lay south of Government street, the plaintiff was entitled to recover the land extending as far south as the wharf; because his title, in case of conflict, was superior to the defendants. This, it seems to us, conceded to the plaintiff quite as much as he could have asked.

What has been said of the effect of the acts of 1824 and 1836 almost covers the entire ground of the charges prayed and refused. If it is incompetent for Congress by a legislative enactment to grant to one person land which it has already granted to another, it is difficult to conceive why a patent issuing in virtue of such inoperative grant, should itself bo conclusive in a court of law, of the title of the patentee. We have not thought it necessary to scan with particularity the descriptive terms of the patent adduced by the plaintiff. If it describes the land by other metes and bounds than the act of 1836 designates, as to the excess it professes to convey it must be merely void not only in equity, but at law. This point was so ruled in Doe, ex dem. Pollard’s heirs v. Files, [3 Ala. Rep. 47.] This decision now receives our entire approbation; and is fully sustained by Stoddard, et al. v. Chambers, [2 How. Rep. (U. S.) 284.]

The consequence is, that the judgment of the Circuit Court is affirmed.