MARTIN H. SULLIVAN, AS EXECUTOR, ET AL., APPELLANTS,
v.
WILLIAM RICHARDSON, AS TRUSTEE, APPELLEE
[NO NUMBER IN ORIGINAL]
Supreme Court of Florida
33 Fla. 1; 14 So. 692
January, 1894
STATEMENT.
This cause is an action of ejectment brought by the appellee against the appellants, and involves to a certain extent the Spanish grant familiarly known in Pensacola as the Pintado grant. The trial resulted in a verdict and judgment for the plaintiff.
The original grant or title, in the Spanish language, as translated, and excluding the accompanying plans of the premises granted, is as follows:
Sello Quarto, Un Quartillo: Years 1816 & 1817.
Don Vicente Sebastain Pintado, Captain of Infantry, Surveyor-General of West Florida acting in this city for the adjustment of royal lands of this Island of Cuba and the two Floridas by order of Senor Don Alexandro Ramirez, Intendant of the Army, Superintendent-General Sub-delegate of the same Island and Provinces by the condescension of the most excellent Captain-General of the same. Inasmuch as the Superintendent-General, Sub-delegate, has held it well to accede to my request of the 19th November last, and granted the favor under his Lordship by his superior decree of the 7th of that month, in conformity with that expressed in my favor the 1st day of the same by Senor Auditor and Honorary Fiscal of the royal property, granting me six of the lots which, in the year 1813, it was ordered to be drafted by the Avuntamiento, which sat in Pensacola, indicated by the numbers 11, 13, 14, 15, 16, 18; another parcel of land of 204 feet English, and 2 inches of front on the Plaza, which is named of Seville, and afterwards of Ferdinand VII., with the depth as far as the sea, and prolongation within the bay as far as the extreme of the place or bank of sand, conformably to the plan which I presented at the same date with my application, besides 10,000 arpents superficial of the royal lands of West Florida in the places which are designated and conform to the description which I shall make, and figurative plans which I shall present, commanding to be delivered to me the title of the lots and space referred to, according to the plan presented, and that of the 10,000 arpents, when I shall present those that I had offered. Forasmuch: For that, there should be delivered to me the title in form, according to the rule and precept and the tenor and effect of my petition, I show: That the aforesaid 10,000 arpents superficial are contained in six different tracts of land and water, conforming to the six plans which in duplicate accompany, whose situations, lines, boundaries, natural and artificial, extensions, and area of each terminus are as follows:
Eleven hundred and eighty-oue arpents superficial in the Western part of the Island of St. Rosa, beginning in the most Western part of the point on that side named Point Siguenza, at the entrance of the Port of Pensacola, and extending to the East four miles (statute) English, and terminating at the end of them by a line which crosses said island from sea to sea in the direction north and south of the globe, with all that is contained within that arid and sterile space bounded by the waters of the sea north, south and west; in all the aforesaid distance of four miles (statute) English, and with the small and variable breadth which the island has about the said part only, containing 1,181 arpents superficial without exactness, the limits being arcifinios or nearly arcifinios, the whole conforming to the annexed plan designated with the letter A.
Nineteen arpents superficial in another tract situated at the extreme west of the population or town of Pensacola, fronting on the bay of the same name by which it is bounded on the south, passing within the tract is the rivulet of the Aguada or of the Washerwomen, from its mouth in the sea as far as the land conceded or sold to Don Pedro Reggio, with which, and the others of the Messrs. Forbes & Co., the said land bounds on the north, on the west bounding with the lands of Senor Brigadier de Francisco Maximiliano San Maxent, and a portion of the second rivulet of the Aguada, which serves as the natural limit for a short distance from its inner mouth, and on the side which looks to the east, bounding with the aforesaid extreme western part of the town of Pensacola, leaving, however, between that and the land, the necessary passages and streets, as is now clearly shown by the plan accompanying, designated with the letter B, upon which will be seen figured the land mentioned, the dimensions of its sides in feet and inches English, being the measure used for the lots and streets of said town, the direction of its limits according to the compass, the declinations northeast of that, and all the other sides, boundaries, and confines, natural and artificial.
An extension or space of the Bay of Pensacola, whose superficies of water is equal to an area of 718 1/2 arpents superficial between the eastern point of the mouth of the Creek of Casa Blanca, commonly called Bayou Chico, and the western point of the mouth of the rivulet or creek of Texar, vulgarly called Bayou Texar, and a line drawn in the direction of southeast of the needle 95 perches of Paris within the sea from the aforesaid first point, and another line of 100 of said perches in length, beginning from the second point mentioned within the sea, also from the same point of southeast of the needle; the which includes all the front from one to the other mouth of the creeks of Casa Blanca and and Texar, between which is found the town of Pensacola, the whole conformably and according to the plan presented, designated by the letter C, formed for greater clearness and better understanding, in which is represented the figure which the said lands form in the water and the limits within the Bay of Pensacola, being those of the part of land and shore which makes between the said two points of the mouths of the two mentioned creeks, the curve which the edge of the water of the sea at the highest tide in calm weather makes, and with the depth from the surface of the water of the sea as far as ten feet English below the actual bottom or toward the center of the earth, in the whole, the space which the figure represented in said plan C embraces, considering it as a solid, since it has the three dimensions of latitude, longitude, and depth; but with exclusion of that part which was conceded to me by the title of the lots and which is figured in the annexed plan C; and that which the wharf of Messrs. Forbes & Co. occupies, also represented in the plan, and of which they have been in possession for many years; the whole in full property and for the purpose of constructing wharves and houses for bathing, reserving and saving not only the right of His Majesty, but also that of the public, whenever it becomes convenient, and it be designed to construct wharves with whatsoever funds, municipal or common, intending the exclusion alone with respect to particular individuals.
A parcel of land, 2,281 1/2 arpents superficial, situated upon the eastern margin of the River Escambia, or more certainly on its east branch, which forms the island named Antonio, granted formerly by the Sub-delegation of Pensacola to Don Francisco Bonal, and about sixteen miles from the mouth of said river, in the Bay of Escambia, a continuation of that of Pensacola, and twenty-two miles in a line north-northwest of the town Pensacola, bounded north and east by royal lands, south by lands recently conceded to Don Tomas Villaseca by the Senor Sub-delegate of that province, and on the west confined by the aforesaid arm of the River Escambia, as is more clearly shown by the foregoing plan D.
Another tract of land of 5,000 arpents superficial, situated on the western margin of the said River Escambia between it and the creek named Pine Barren, and about thirty-one miles in a line northwest, one-quarter north, of the town of Pensacola, bounded on one side with the same River Escambia, with 1,300 perches, Paris, front on said river, according to the course which it holds above or upward, reckoning from its confluence with the aforementioned creek, Pine Barren, with which it is bounded on the other side, and for the rest by the royal lands as will be more clearly shown by plan E, in which is figured the land, and with the exclusion of the part overflowed.
Another tract of land 800 arpents superficial, the complement of the 10,000 which has been conceded me, situated on the eastern margin of the aforesaid River Escambia, 36 to 38 miles, English, north-northwest of the town, fronting the lands which have been selected by Juan Malagoza to petition for, and which are at the place known as Turbin's Bluff.
The 10,000 arpents referred to are of those used until now in that province, and which will be until some other rule is established, and each arpent is composed of 100 square perches of plane superfices, and the lineal perch is eighteen feet of Paris, according to the field custom of the retroceded province of Louisiana; from thence it passed to West Florida, when it was conquered by the Spanish arms.
HAVANA, DECEMBER, 12, 1817.
VINCENTE SEBASTIAN PINTADO.
The foregoing plans and documents remain registered from the folio 2 and onward as far as turning of folio 5 of book M.M., used for that purpose, meanwhile it is installed in the office in a convenient place and declared of the archives.
VINCENTE SEBASTIAN PINTADO.
SELLO TERCERO.
Two Reals. Years of 1816 & 1817..
DON ALEXANDER RAMIREZ, INTENDANT OF THE ARMY AND SUPERINTENDENT-GENERAL, SUB-DELEGATE OF ROYAL EXCHEQUER OF THE ISLAND OF CUBA AND BOTH FLORIDAS, PRESIDENT OF THE TRIBUNAL OF ACCOUNTS AND OF THE BOARD OF TITHES, SUPERINTENDENT OF THE BRANCH OF THE CRUSADE, ETC.
WHEREAS, Don Vincente Sebastian Pintado, Captain of the Infantry and Surveyor-General of West Florida, has presented his petition to this Intendancy General Sub-delegate on the 19th November last, showing the considerable expenses which arose to him from his removal to this city, by my order with advice of the most excellent Captain-General, for matters of interest to the service of His Majesty, whom God preserve, and having to take his family from there, and sacrificing his property, prays, by way of indemnification, that there be conceded to him in full property six royal lots in the town of Pensacola of those which were drawn in the year 1813 by order of the Ayuntamiento, which was had there, situated between the Plazas, which in the general order which was delivered in the year 1808, were named, the one Ferdinand VII., and the other Seville, designated in the plan which was made with the numbers 11, 13, 14, 15, 16, 18, and the space of ground which measures between the said Plaza of Seville and the shore of the sea, marked by the high tide in calm weather; the corner of Beltran Souchet, Tomas Villaseca, and the lands reserved for a hospital; presenting to that effect the figurative plan with the necessary indications; besides 10,000 arpents superficial of vacant lands in West Florida in those plans which are to be marked out, and in conformity with the figurative plans which he has to present and the description which he may make of them, and having given examination of them to Senor the Auditor Fiscal of Royal Exchequer by decree of the 20th of said November, he satisfied of the certainty of that set forth by the said Surveyor, of his well-known merits and obligations which he contracted by his removal with his family to this city in which he expresses it to be impossible that he can subsist with the scanty salary he enjoys, gave his consent that his petition should be granted. In consequence of which, I made a decree on the 7th instant of the following tenor: "Visto. In conformity with the Senor Fiscal, and in consideration of the merits and good services of Captain Don Vicente Sebastian Pintado, I grant him the six lots and the 10,000 arpents royal lands which he seeks in West Florida, without prejudice to a third, and with the condition to build on the ones and cultivate or improve the others in the most convenient manner; according to the disposition of the matter for the peopling of that Province, which is given me in charge by His Majesty. Let title be delivered for the lots according to the plan presented and for the lands immediately that he presents the plan which he offers with its description, under his responsibility in that respect as Surveyor-General, which he is of the same Province, to the Sub-delegate and Minister of Royal Exchequer, and let there be delivered the orders necessary."
In consequence of which, on the 10th instant, there was dispatched to him the title for the six lots, and the space of land referred to; and with date of 12th instant he presented in duplicate the figurative plans of the 10,000 arpents superfices of land, with the corresponding description designated in six different portions, whose situations, lines, boundaries and confines, natural and artificial extensions, and area of each explain themselves after the manner following:
The first plan, designated with the letter A, embraces 1,181 arpents superfices of land, situated on the west part of the Island of Santa Rosa, beginning on the most western of its points, on the side named Point of Siguenza, at the entrance of the port of Pensacola, and extending toward the east four miles English, and terminating at the end of them by a line which traverses said island from sea to sea; from north, south, and west, in the whole, the aforesaid distance of four miles English, which with the small and variable width which the island has at that point, only contains the 1,181 arpents superficial, without precision, the limits being arcifinios, or nearly arcifinios.
The second, designated by the letter B, contains 19 arpents superficial in a tract, situated at the extreme west of the town of Pensacola, fronting on the bay of the same name, by which it is bounded on the south, passing through the tract is the rivulet of the Aguada, or of the Washerwomen, from its embouchure in the sea as far as the land granted or sold to Don Pedro Reggio, with which and others of the Messrs. Forbes & Co., the said lands are bounded on the north, on the west bounded by the lands of Senor Brigadier Don Francisco Maximiliano de Maxent, and a part of the second rivulet of the Aguada, which serves as the natural limits for a short distance from its inner mouth, and on the side which looks to the east it is bounded by the aforesaid extreme western part of the town of Pensacola, leaving, however, between that and the land the necessary passages and streets, as is more clearly shown by the plan referred to, and in which is shown the land, noting the dimensions of its sides in feet and inches English, by that measure used for the lots and streets of that town, the directions of the compass, the declination northeast, and all the other termini and boundaries, natural and artificial.
The lands designated by the letter C are an extension or tract of the Bay of Pensacola, whose superfices of water is equal to an area of 718 1/2 arpents superficial occupying between the eastern point of the mouth of the creek of Casa Blanca, commonly called Bayou Chico, and the western point of the mouth of the rivulet or creek of Texar, commonly called Bayou Texar, and a line drawn in the direction of southeast of the needle, 95 perches of Paris within the sea, from the aforesaid first point, and the other line of 100 of said perches in length, counted from the second point mentioned within the sea, also from the same point of southeast of the needle, which embraces the whole of the front from the one to the other mouth of the creeks of Casa Blanca and Texar, between which is the town of Pensacola, the whole conforming and according to the plan annexed, made for the greater clearness and understanding in which is represented the figure which the said land forms in the water and the limits within the Bay of Pensacola, being that part of the land and beach which is found between the said two points of the mouths of the mentioned creeks, the curve which the shore of the water of the sea at the highest tide in calm weather makes, and with the depth from the surface of the water as far as ten feet English below the actual bottom, or towards the centre of the earth, in the whole, the space which the figure represented in the said plan C embraces, considering it as a solid, since it has the three dimensions of longitude, latitude and depth; but with the exclusion of that part which was granted him by the same title as the said lots, which is figured in it, and that which is occupied by the wharf of Messrs. Forbes & Co., also represented in said plan, and of which they have been in possession for many years. The whole in full property and for the purpose of constructing wharves and houses for bathing, reserving and saving not only the right of His Majesty, but also that of the public, at all times whenever it becomes convenient, and it be designed to construct wharves with whatsoever funds, municipal or common, intending the exclusion only with respect to particular individuals.
The fourth, designated by the letter D, is a tract of 2,281 1/2 superficial arpents, situated upon the eastern margin of the River Escambia, or rather eastern branch, which forms the island named Antonio, granted formerly by the Sub-delegation of Pensacola to Don Francisco Bonal, about sixteen miles from the entrance of said river into the Bay of Escambia, a continuation of the Bay of Pensacola, and more than twenty-two miles toward the north-northwest of that place, bounded on the western and eastern front by royal lands, south with lands lately granted to Tomas Villaseca by the Sub-delegate of that Province, and on the west confined by the aforesaid arm of the River Escambia, as will be more clearly demonstrated in the indicated plan.
The fifth, marked by the letter E, is a tract of 5,000 superficial arpents situated upon the western margin of the said River Escambia, between it and the creek called Pine Barren, about 31 miles English toward the northwest quarter north of the town of Pensacola; bounded on one side with the same River Escambia, with 1,300 perches Paris of front upon it, according to the course which it holds, counting toward above from its confluence with the said creek (Pine Barren) which bounds the tract on the other side, with the exclusion of the worthless part, and for the rest by royal lands, as more clearly appears in said plan, in which are figured its limits, natural and artificial.
The sixth and last is other land, marked with the letter F, of 800 superficial arpents, situated on the eastern margin of the referred to River Escambia, about 36 or 38 miles English north-northwest of the town, in front of that which has been chosen by James Malagoza to solicit for it, being in the place known as Turbin's Bluff, with which he completes the 10,000 superficial arpents of land of which mention is made, measured by the lineal perch of Paris of 18 feet, and of 100 perches square to each arpent, according to the field custom of the retroceded province of Louisiana, and that of West Florida since its reconquest by the arms of His Majesty.
Therefore, in the exercise of the power which the King, Our Lord (whom God preserve), has conferred upon me, I grant, in his royal name, gratuitously, to the designated Captain and Surveyor-General, Don Vicente Sebastian Pintado, the 10,000 superficial arpents of land and water contained and marked in the six figurative plans which, in duplicate, he presented, and, under the lines, termini, and confines natural and artificial, which in them are denominated and set forth; and I transfer to him absolute dominion, for that as his own, he may hold to his own use, enjoy or alienate them at his own pleasure without prejudice to a third, who holds a better right, nor of the sovereign privileges according to what is provided in the annexed decree and the clauses expressed. In faith of which I have ordered the present title to be dispatched, signed with my hand, sealed with the escutcheon of the royal arms in the service of this Secretary, and counter-signed by the Senor Commissary of War, Honorary Don Pedro Carambot, Secretary of His Majesty, of this Intendancy of the Army and Superintendency-General Sub-delegate, in whose office let it remain registered and an annotation be taken; let there be affixed to this title, the duplicate of the six figurative plans and descriptions of the same.
Given in Havana, the 17th day of December, 1817.
[Seal.] ALEXANDER RAMIREZ,
PETER CARAMBOT.
This receipt taken of the foregoing title and registered in the book appointed for that purpose in the Secretary's office under my charge.
CARAMBOT.
Havana, Dec. 17, 1817.
UN QUARTILLO.
Sello Quarto, Un Quartillo: Years 1816 & 1817.
The plaintiff's offer in evidence of this original title in the Spanish language, and the six plans or maps there referred to, was accompanied by an offer also of a certified copy of an alleged power of attorney from Pintado to one John de la Rua, in the Spanish language, together with translations of the said title and power. The plaintiff also offered in connection with said grant the testimony of one Peter Knowles, who being sworn and examined said: That he knew from old records that John de la Rua had been the agent of V. S. Pintado, and that he must have had the grant to Pintado. He therefore appled to F. E. de la Rua for his father's papers, and obtained from him the trunk containing them. That he discovered the Spanish grant among the papers of John de la Rua which were found in an old trunk belonging to said de la Rua, an old fashioned round top trunk with the top broken in; that he got this trunk from Mr. F. E. de la Rua, about 1859 or 1861, and that the papers have been ever since in the custody of the witness. That the witness at that time had, and has ever since had, an interest in the property described in the grant. That quite a number of other papers were in the trunk with the grant. The witness, the bill of exceptions states, produced some other papers which he stated were so found; the other papers in the trunk were papers relating to the business of John de la Rua and others for whom he seemed to be agent, and that these papers were selected by counsel for the plaintiff.
The plaintiff then examined Mr. F. E. de la Rua who testified that John de la Rua, who was witness' father, died in 1832, his wife becoming his executor. She died in 1843, and witness and Benjamin D. Wright became her executors. That when witness' father died, his papers came into witness' mother's hands, and after she died they came to witness and Benjamin D. Wright, the other executor. Witness having been asked to say from whom he got the papers which Mr. Knowles had testified were in the trunk, stated that they were a lot of old papers belonging to his father's estate; that he never examined the papers very particularly, and could not tell what the trunk contained, excepting papers belonging to his father's estate, and papers and title grants belonging to the estates of others, for many of whom his father in his lifetime was agent. That he did not now have the trunk, and did not know whether he would recognize any of the papers in the trunk, but knows that they were his father's papers. That he did not know if all of his father's papers were there; that witness was quite young at the time, and did not consider the papers of any value. That he has no positive recollection of giving the trunk to Mr. Knowles. Mr. Knowles applied to him for the trunk before the war, but he can not recollect giving it to him, but he must have, for otherwise Knowles could not have got it. That he did not remember that anyone applied to him for the Pintado grant, or for anything connected with it. He did not know Pintado, who, though witness was an old man, was before his time.
Plaintiff then "offered in connection with said grant some of the other papers in said trunk." Each of the defendants objected to the admission of the said pretended grant upon the following grounds:
1st. It purported to be a copy and was not duly certified; and, 2nd. Because by its terms it did not purport to grant the locus in quo, or such property therein as would authorize an action of ejectment therefor; 3rd. That said grant, so called, as far as the locus in quo was concerned, was a mere license to said Pintado to use the property in a particular way; 4th. Because the reservation of said grant in favor of the soverign and the public for the erection andmaintenance of wharves, authorized the railroad company to occupy the same with a public wharf in connection with its business as a common carrier; 5th. The said grant contained conditions precedent which had not been complied with; 6th. That the said grant was not an exclusive grant of the property occupied by the defendants; 7th. That it was not one which was validated or recognized by the treaty between the United States and Spain; 8th. That the grant had not been perfected by a survey and location; 9th. That the document was not a duly certified copy made by the lawful custodian of the original. The translation was also objected to on the same ground. The court, however, overruled these objections, and permitted the grant to be read in evidence; to which ruling the defendants severally excepted.
It may be well to note here that the translation so offered of the grant is one of a certified copy of such grant made March 29th, 1875, by F. E. de la Rua, Keeper of the Public Archives of West Florida, at Pensacola, from Record Book A, pp. 209-217. This certified copy as translated contains three certificates, each made at Havana, one by Mauricio Porras Pito, Notary of War, and one of the same date by Jose Numo de Cueto, Santiago Jose de Tubieta and Miguel Garcia de Alayets, and one by John Mountain, Vice-Commercial Agent of the United States, at Havana, which, as stated by Mr. de la Rua, as such Keeper of the Archives, in a subsequent certificate of January 7th, 1887, do not appear on the original. Pito's certificate bears date October 18th, 1821, and is as follows: "This conforms to the original, which being rubricated, I return to the interested party, and to which I refer; and I certify that the six plans affixed at the head of those proceedings are conformable with their original, which I also rubricate and correct, and to them reference is made; and in compliance with the command of the most excellent Captain-General, in the decree of this day, I write the present." The certificate of Cueto, Tubieta and Alayets, is of the same date, and is to the official character and credit of Pito as "Notary and Proprietario of War of this city and province, as he styles himself." That of Mountain bears date October 20th, 1821, and is that full faith and credit are to be given in and out of court to the signatures and signets of the four other parties.
The power of attorney, in the Spanish language, appears as translated to be a copy of an original purporting to have been executed at Havana, Cuba, on August 9th, 1821, by Vicente Sebastain Pintado, Captain of Infantry of the National Army of this vicinity, and grants and confers "his power of attorney, ample, full, sufficient and as much as by law is required and is necessary, to Mr. John de la Rua, a citizen of Pensacola, in West Florida, special so that in his name and representing his proper person, rights and actions, he proceed to the sale of the properties belonging to the grantor in the said town of Pensacola and its vicinity, consisting in lots, land and water as per titles of domain, and the instructions that I may communicate by my letters, doing to that end such acts and formalities as may be necessary in the offices and tribunals of the government of the United States to whom now belongs that province;" authorizing Mr. de la Rua, for the "trades and sales he may make," to execute the necessary deeds and receipts. It also authorizes him to perform any other business or matter that Pintado may specially request him to do, including the power to submit to arbitration and to go to law. The original, it would seem, was executed in the presence of three "present neighbors," whose names are given, and before Mauricio de Porras Pito. Notary of War, the power, in the Spanish language, introduced in evidence, bearing a certificate from such Notary of War, dated at Havana, August 11th, 1821, and reading as follows: "It conforms with its original which remains in the archives of the office of war of my charge, and to which I refer, and at the request of the grantor I issue this." It also bears a certificate of three persons dated August 11th, 1821, that Mauricio de Porras Pito is Notary and Proprietario of War of this place and province, as he styles himself, and that to his acts are, and have always been, given full faith and credit in and out of law. As to this power of attorney the bill of exceptions states: That the plaintiff offered in evidence a certified copy of a power of attorney in the Spanish language, with translation, from Sebastian Vicente Pintado to John de la Rua, copied from records of Escambia county, Florida, Book "A" of papers recorded between 1822 and 1827; and that the defendants each objected to the introduction of said document as irrelevant and because the same was not properly authenticated. It does not appear that there was any ruling on this objection. The copy in Spanish offered in evidence, it may be remarked, is from such record book, and is certified by Mr. de la Rua, as Clerk of the Circuit Court of Escambia county.
The bill of exceptions then states that the plaintiffs offered in evidence certain papers found in the trunk, as stated by the witness Knowles, and translations of them, and the admission of each separate paper was objected to by each defendant as irrelevant, and because it did not refer, or have any relation to, the property described in the grant, or to the grant itself, but the court overruled the objection and allowed the papers to be read, the defendants severally excepting to such ruling. These papers, the originals of which are before us, purport upon their face to be as follows:
1st. Three papers purporting to be written by Vicente Sebastian Pintado, at Havana, to Senor Don Juan de la Rua, and dated respectively August 18th, 1821, June 28th, 1822, and March 9th, 1823.
The first letter acknowledges one of June 19th last from de la Rua, by the hands of Don Juan Morales, and thanks de la Rua, for accepting Pintado's power of attorney for the sale of his lands and waters, and purports to enclose an authentic copy of the power duly legalized, saying that this is all he can do by the present opportunity, which has taken him by surprise, he having just learned of the intended departure of Mr. Ciriaco Lopez "tomorrow in an unknown vessel" bound for Pensacola. That he does not dare or think it prudent to venture sending the original titles unless on some well-known and reliable vessel, and thinks of procuring such authenticated and legalized proof of all of them to transmit to him by some known vessel, trusting in the meantime some vessel of war may be despatched for the artillery or other pu pose, by which he may with confidence "forward the originals which you have seen and had in your hands." "In the meantime," it says, "I enclose the order for Balderas to deliver to you the copies of the plans annexed to the titles, which he has in his possession, that you may become familiar with them, and to enable you to begin to realize, as Balderas informs me that there are parties who desire some of the lots, and particularly the large one which enters the bay adjoining Villaseca, and that Innerarity wishes to purchase the 19 arpents of the Aquado, which are valuable; and in the interim I send instructions and my ideas respecting prices. Fix prudent prices yourself, as it is impossible for me to do so at the present moment for the want of time and health." It also states: "I have promised my friend Don Enrique Michelet, in consideration of friendship, and without any advantage whatever, a site for a wharf at the foot of Cevallus street of the same width of said street, and following the line of the same, of which I wish you to be advised." It also contains a message to the Father Curate to the effect that the writer is endeavoring to obtain a situation for Benito. That the lot reserved for the church has a front of 60, and depth of 120 feet, with a street on all sides, and that of the parsonage (or Curate House) No. 2, is 50 by 93, and No. 1, reserved for the public school, is of the same dimensions.
The second letter purports, at its outset, as being prepared in anticipation of an opportunity for its transmission, of which he hears rumors, and in reply to de la Rua's favor of the "20th April last" by Costa; and expresses thanks for the information given as to the Land Commissioners, "whose arrival was expected there in the early part of the present month, and who probably have already arrived." Speaks of seeing in a newspaper the names of appointees to other Florida offices, but nothing as to Land Commissioners. Asks to be informed if it is absolutely necessary that the original titles to his lands should be produced to prove his claim, and for what date; says that he would not like to expose them by any uncertain opportunity, but had rather wait a safe one by some well-known person to whom he could entrust them. Expresses confidence that de la Rua will, until the writer is advised of the amount, advance the fees which will have to be paid "for making proof and recording of titles," which he assures de la Rua he will promptly reimburse. It refers to what de la Rua says respecting "the small houses" belonging to the succession of Mr. Morales, and to two letters of March 16th of the same year, which Pintado had written de la Rua, via New Orleans, in charge of Don Vincente Igricis Remas, attorney of Don Bernardo Mariqay, one referring to the sale of the houses, and the other the amount due the estate by Don Eugenio Antonio Sierra, of that place, and asks for information as to the condition of these transactions. It also says: "When I attended to the business of Ramirez it was at the request of Ruiz, and fixed the place according to the instructions you gave him in your letter, and I hastened to complete it, knowing that it concerned yourself and required prompt attention. Consequently there was no special measurement, but only a sketch of the place in accordance with the general certificate of Collins made at the time stated, and which I doubt not was erroneous like many others of his operations to which I could not give attention, but as you have investigated the time, situation, conformation, distance, etc., of the true locality of their disagreement with the plans transmitted, and which certificate leaves soon [room] for correction, it would be important [imprudent] to expose one's self to difficulties which can now be easily corrected; for although it is certain that in some cases, as for example by the conclusive portion of Article 8 of the Ordinance adopted by the Intendency of Louisiana, the surveyor can add a [not] excessive portion [no exorbitante espacio] of impossible land, etc., which the local authority approves, but the surveyor can not concede if the transaction does not conform to local circumstances. Knowing that there is ample time to make all corrections, you can cause the request for the 400 arpents to be made in accordance with your desire and your satisfaction; and forward the result to me for correction and to be put in form, returning to me the plan and certificate which I gave to Ruiz to renovate it, you retaining the rest of the original expedient (official papers) in case it should be necessary to have it recorded before the other is forwarded from here; assuring you that so far as I am concerned you will be put to no expense. This will be the most advisable and prudent course saving your better judgment." To this letter there is a postscript which, in effect, tells de la Rua that in case he should sell any lots or lands and the party is made to pay cash for them, he, Pintado, will be willing to accept in payment a young and robust negress, who may be a fair washer, and free from defects, as he is in want of such a servant; provided there is no objection to her transportation "to this place" as the writer's property, as to which de la Rua must ascertain beforehand.
The third letter hastens to reply to de la Rua's four favors referred to in the writer's "letter of this date." It also says: "At last I forward to you my original titles which I have entrusted to Don Francisco Palmes, Jr., who has promised to deliver them to you in person. God grant that they may reach you safely. But for the urgency which you have expressed, I would have deferred their transmission to another opportunity less threatened by privateers. There they go, and after you have received them I will thank you to return me the proof, that I may have something in my possession to show. I have thought it advisable, and have been so advised by the Curate, to deliver them loose to Mr. Palmes, that is not under cover, that they may excite less curiosity in case the vessel should be overhauled, and I shall feel a little uneasy until I learn of his arrival, do not delay to inform me of it by the earliest opportunity." It also remarks: "Ramirez has been placed right in accordance with circumstances, in the Escambia, to avoid contradictions in the future and without further explanation. There has been no time yet to make a fair copy of this concession. Only the general outlines of lands, waters and lots sold in all the province from 1801 up to 1818, has been completed. That of the lots conceded gratuitously in all the province at the same time, and the right of donations of lands to the end of 1805, but there is still wanted all the rest referring to the other Florida. This is all that has been reported, but there is no statement of the houses sold in that place, nor of the grants of Senor Folch, but only such as are incidentally known are mentioned. It also expresses a wish that Don Eugenio Sierra should fulfill his promise, but doubts his doing so, and refers to a letter from "our friend Michelet," which it is impossible to answer by the present oportunity, and notes with pleasure de la Rua's "thoughtful way of thinking of the matter," expresses esteem and desire to serve him "when the matter is just," and regrets his (de la Rua's) failing circumstances. Speaks of Carrera's indebtedness of about $ 518 to him, and asks de la Rua's opinion of indulgence given him. Requests de la Rua to send him two bottles of good gombo, if at some time he should have a few reals of the writer. Says he has received from Madrid the special power of Don Lorenzo Vetrian for the sale, etc., of his lands, by which he confers on the writer full and ample authority, and expresses the wish that the power had been made directly to de la Rua, but says it will make no difference as the latter can proceed to act. Also says that Astracho has sent his power from Mueritas to claim the land from Rioboo, saying he had not sold it, and that Thomas Comyns also had forwarded his from Pensacola, claiming a portion of Jose's which belonged to Madam Carson. The last two pieces of news are "reserved," as the writer does not wish to be questioned.
2nd. Six petitions of Pintado to the Board of Commissioners for adjudicating land claims in the Territory of Florida, five being dated October 15th, 1822, and signed by Call & Easter, attorneys for petitioner, one as to the tract of 1181 arpents on the west end of Santa Rosa Island; one as to the 19 arpent tract west of Pensacola; one as to the 5,000 arpent tract on the western margin of the Escambia river; one as to lots 12, 13, 14, 15, 16 and 18 in Pensacola, purchased in A. D. 1813 from the Cabildo of Pensacola; one as to 2288 1/2 arpent tract, bounded on the west by the Escambia river, and evidently from descriptive words, the same as the 2281 1/2 arpent tract mentioned in the Pintado title, supra; and one dated October 9th, 1822, and signed by the same attorneys, and relating to a grant made November 8th, 1816, of 2180 arpents; each petition praying confirmation of favorable report upon his title, according to the provisions of the treaty; and the last petition being endorsed: "Examined. Recorded in Book A, proceedings, p. 471."
3rd. An open account of the secretary of the Commissioners against John de la Rua; it being for "recording claims." The first item is: "8 claims to lands and lots, $ 14.50." Then follow the names of 24 persons, and opposite each name is a charge, the first name being that of Vicente S. Pintado, opposite to which is an item of $ 12.21; the whole account amounting to $ 115.39, and being credited by $ 75, and stating a balance of $ 40.39 "due." Among the items is one against John de la Rua. Between the 14th and 15th names the date, "Jany., 1823," appears.
4th. An account of Richard K. Call against Don Vicente Sebastian Pintado, for professional services in presenting to the Board of Commissioners and attending to the adjudication of titles to seven lots in the city of Pensacola, at $ 5 each $ 35 And for filing an answer in chancery to the bill of
John Heindenburg against the said Pintado,
and for attending the same in court $ 25
$ 60
It is receipted as follows: "Received one-half payment of John de la Rua. R. K. Call."
5th. A receipted account of W. Hasel Hunt against John de la Rua, Agent for Don Vicente Sebastian Pintado, of $ 5 for writing deed with extra long description of property and conditions of mortgage to Sebastian Caro. It is dated November 29th, 1823.
6th. An account of Call & Wright for $ 20, against Don Vicente Sebastian Pintado, for "attending to defense in the case of Henry Michelet against you." It is receipted as follows: "Received the above amount of Col. John de la Rua, Agent for Pintado, Pensacola, the 4th Feby., 1825," and signed "Call & Wright, Atty's.-at-Law."
7th. A printed notice, signed "John Lee Williams, Atty. for mortgagee," and dated "Pensacola, Feby. 28th, 1826,-1-2. a. m. 4 m.," of intention to institute suit in the Superior Court of the Western District of Florida, to be held in Pensacola on the first Monday in "May next," on a certain mortgage bearing date January 24th, 1824, given by "Vte. Sebastian Pintado, by his attorney in fact John de la Rua, to Henry Michelet for securing the payment of $ 2,000 principal, with interest due thereon; the property bound by such mortgage being one tract of land on the Escambia river, containing 2281 1-2 arpents; one tract on the Escambia river, containing 5000 arpents; one tract on the Bay of Pensacola, containing 2180 arpents; one lot on the public square opposite the Seville square; also the lots on the public square numbered 11, 14, 13, 15, 16 and 18." This notice is posted on a paper on which is written an affidavit made May 3rd, 1826, before N. Parmantier, J. P., by W. Hasel Hunt, "editor of the Pensacola Gazette and West Florida Advertiser, a public newspaper published in Pensacola," to the effect that the advertisement of which the annexed is a true copy, "hath been published in said paper twice a month for four months." On the same paper appears: "Printer's fee $ 24; affidavit .25-$ 24.25."
8th. A paper in the following words and figures: "In the case of John de la Rua vs. Guellemord. No account of such suit upon my docket. There are two cases by Hy. Michelet vs. V. S. Pintado. There has been a decree in both cases and the cost arranged. F. Bonal vs. the Heirs of Cazenare, Marshal's
cost $ 4.62 1/2
Margaretta Jordela vs. M. M. Serra, Ex., costs, $ 1.84 1/2
Bart Elderto vs. Anto. Baldaras, costs, $ 3.62 1/2
Austin vs. M. Lemon, costs, 62 1/2 cents
Greene Folck vs. T. Comyns not found.
Chalands vs. M. Baure, costs, .62 1/2
W. SEBREE,
W. HASEL HUNT, ESQ. Marshal."
9th. The following paper: Hy. Michelet vs. Fi. fa. V. S. Pintado
The undivided half of 19 arpents of land, at $ 150.
800 arpents on the Escambia 100.
1181 arpents on St. Rosa 100.
$ 350.
This property was bought by Hy. Michelet at $ 350,
he being the highest bidder.
Costs of suit $ 26 $ 26.
Leaving the sum of $ 324
Leaves the sum of 324 dollars to be credited on the
execution. WILLIAM SEBREE,
Marshal.
Jany. 4th, 1827.
Wm. A. Blount for Appellee.
BRIEF FOR APPELLEE.
The basis of the title of the Appellee, who was plaintiff below, and consequently in great part the foundation of the suit, is the grant from the King of Spain to V. S. Pintado, and I therefore consider it first, considering in order its authenticity, its validity, the estate created by it and its present efficiency, and the objections thereto. I will thereafter discuss the other questions involved in the cause.
The court below rejected evidence of
1. Judgment, Michelet vs. Pintado in 1826.
2. Deed from U. S. Marshal to Michelet under execution sale upon that judgment.
3. Deed from Michelet to United States.
4. Possession by the United States under said deed of the land (in Certificate A) as Fort Pickens from 1826 to the present time.
Inadvertently overlooking this rejection, I have founded a part of my argument upon the evidence and the court will eliminate such part.
As to its authenticity: There is no objection appearing in the record as having been made in the court below, because of want of proof of execution or authenticity, and of course such objection cannot be made here. I discuss it however, for the sake of completeness of my argument.
The grant is offered as an original ancient grant, it purporting to have been made on Dec. 17, 1817, by Alexander Ramirez, Intendant of Cuba to Vincente Sebastian Pintado.
In order to prove this authenticity it was necessary that
1. It should appear upon its face to be regular.
2. It should be proved to be thirty (30) years old.
3. It should be proved to have come from the proper custody.
According to the following authorities we might stop here and the proof of authenticity would be complete: 7 East, 291; 1 Esp., 275-278; Buller's N. P., 255; 1 Stark. Ev., 332, (6th Am. Ed.); Roscoe's Ev., 70, Gres. Eq. Ev., 124. By many and the best, authorities, however, it is incumbent to prove
4. Circumstances rendering the existence of such a grant probable. Jackson vs. Laroway, 3 John. Cases, 283; 7 Wend., 371; 4 Wheat., 213; 9 Pet., 674; 5 Cow., 221; 9 Pet., 62-72; 1 Green. Ev., 144, n. 3; 2 Phillips on Ev., n. 430; 117 U. S., 266. And this is all that it is incumbent to prove. Some few cases, however, hold that it is necessary
5. That proof be made of possession accompanying the deed.
See English authorities cited by Kent in Jackson vs. Laroway, 3 Johns. Cases, 283.
But even then, the possession need not be for thirty years, nor need it be of the whole premises described in the deed. Authorities supra. Applegate vs. Mining Co., 117 U. S.; 2 Phillips on Evidence, 476; 5 Cow., 122. And is required only when it is practicable to take possession. 3 Johns. Cases, 283. A few authorities go still further and seem to require
6. Proof of a possession under the deed for thirty years. Jackson vs. Blanshon, 3 John., 292. But these, as well as those under the preceding head (5), might well be disregarded for they are in conflict with the vast weight of authority and not consistent with reason. The object is to obtain evidence showing the probability that the deed is genuine, and no particular evidence can be essential for this purpose. For example, a continuous assertion openly of his title, a recognition of it by his acquaintances and adversaries and by officials, and acts done about it inconsistent with any other hypothesis than that of its genuineness, must be as good as taking possession of it, especially if there are circumstances explaining the want of possession.
This grant meets all of these tests.
We take them in their order.
1. It is upon its face regular, has the official seal of the Intendant, is in the form and executed with the solemnities usual with Spanish grants (4 American State papers p. 119), and is almost in the exact language of the Arredondo grant, which was made by the same Intendant, about the same time, and is recognized as authentic by the Supreme Court of the United States. U.S. vs. Arredondo, 6 Pet., 692-721 & 722. The court has the original of the grant before it and can judge of its apparent regularity and authenticity.
2. It is proved to be thirty years old. F. E. de la Rua and Peter Knowles establish the fact that it was in the custody of the former from 1843 to 1859 or 1860, and in the possession of the latter to the present time, the two periods aggregating forty-three years.
3. It comes from the proper custody. It is traced directly to the possession of John de la Rua the agent of Vicente S. Pintado. Peter Knowles obtained the possession of it from F. E. de la Rua, the son of John de la Rua and his wife, Margaretta de la Rua; F. E. de la Rua, the executor of his mother, obtained it from her in 1843; she, the executrix of her husband, obtained it from him in 1832; and he was the agent of V. S. Pintado. This was the proper custody. 8 Q. B., 158; 12 M. & W., 205; 1 Green. Ev., § 142. That he was such agent is established by:
1. The power of attorney from Pintado giving him general powers. This is in due form and recorded in the records of Escambia county, Florida, contemporaneously with the giving of it and with the necessity for its use. This power was admissible in evidence. 9 Pet., 663.
2. The possession by him of the receipt to him by W. Hasell Hunt for moneys paid by him as agent of Pintado.
3. The possession by him of letters of Pintado to him for years (from 1821 to 1824), about the affairs of the agency and directing him particularly about this land and speaking particularly of this grant.
4. The possession by him of the public advertisement in a suit against Pintado by Michelet, in which his agency is recited.
5. The possession by him of bills for professional services rendered to him as agent for V. S. Pintado.
6. The possession by him of applications on behalf of V. S. Pintado to the U.S. Land Commissioners for confirmation of many titles claimed by Pintado.
7. His action as agent of Pintado in compromising the claim of Michelet against Pintado.
8. His action in giving a mortgage to Michelet as agent of Pintado in effectuation of such compromise.
9. His possession of the bill from the Secretary of the Commissioners for recording the title of Pintado.
10. His keeping the above papers in the same box in which he kept his own private papers and the papers of other persons for whom he was agent.
This grant then, being regular on its face, being thirty years old and having been found in the proper custody, the further question is, are there
4. Circumstances showing the assertion of the title by the grantee, the recognition of it by others, acts done by him or others with reference to it, or any other circumstances which would probably be referable to a recognition of its authenticity. These circumstances are numerous, consisting of:
1. His own assertions made near the time of its execution and afterwards, but before any question was raised about its authenticity:
a. By his letters to John de la Rua, from 1821 to 1824, constantly referring to the grant and his title under it.
b. The power of attorney which mentions the lands embraced in the grants.
c. His assertion of title by presentation before the Commissioners of a duly authenticated copy of the grant. That the copy was duly formal and signed by the proper officers was not denied by the Commissioners.
2. The recognition by others of his title:
a. By Mitchelet in 1826, by levying upon and offering it for sale as the property of Pintado.
b. The confirmation by Congress of the title to part of the lands contained in the grant. Section 1, Act Congress May 23, 1828. (4 Stat. at Large, 284). Of course a confirmation of the title to any part of the property was an assertion of the authenticity of the entire grant.
c. The purchase by the United States of the land on which Fort Pickens stands, which was the 1181 arpents mentioned in the grant, and in certificate "A." (See also U.S. vs. Mitchel, 15 Pet., 61). The U.S. purchased from Mitchelet, who bought at an execution sale against Pintado.
3. The assertion of title by the heirs of Pintado.
a. In the suit by the City of Pensacola in 1867, in the U.S. Circuit Court against Eudaldo G. Pintado.
b. In the conveyance to A. C. Blount in 1867, and in the conveyance by him and his grantees, all depending on this title.
4. The recognition of the signature of Ramirez by Pablo Palmes, 4 Am. State Papers p. 119. This, of course, was not primary evidence (upon this trial) of the execution, but is entitled to weight. The oath of Palmes shows that the original was before the Commissioners and taken, in connection with the remarks of the Commissioners upon the copy, and the letters of Pintado to de la Rua, evidencing the fact that he had sent to him the copy and afterwards the original, demonstrates that de la Rua filed the copy with the Commissioners and they founded their opinion upon it, and that afterwards he filed the original, but for some reason they did not pass upon it. The first part of the report is the minutes of the Board and the last part is the opinion. The opinion has no date and was probably written before the original was procured from Pintado and filed with the Secretary and the execution proved by the witness Palmes, and no further action being taken upon it, afterwards it was withdrawn by de la Rua.
5. The circumstances existing at the time of the making of this grant rendering it probable that it was made.
a. It was customary for the Intendants and Governors of Spanish Provinces to make grants for meritorious services. This was so usual that they were recognized as a distinct class. U.S. vs. Clarke, 8 Pet., 454; Wiggins vs. U.S., 14 Pet., 340; U.S. vs. Rodman, 15 Pet., 139; U.S. vs. Segui, 10 Pet., 306; U.S. vs. Arredondo, 6 Pet., 692; U.S. vs. Levy, 13 Pet., 81; 2 Cal. L. L., 275-283.
b. Just before the cession it was usual to make grants of immense tracts of land, the Spanish authorities evidently caring but little, knowing that the cession would shortly be perfected and that large rewards to faithful servants might be made without injury to the Spanish Government. Of such grants were those to Arredondo (289,645 acres; Dec. 12, 1817) 6 Pet. 692; Levy (14,500 acres, March 24, 1817) 13 Pet. 81; Levi (25,000 acres, Feb. 23, 1817) 8 Pet. 479.
c. Pintado was a man of eminence, and had rendered large services, in surveying and plotting and regulating the town of Pensacola, and otherwise, 4 Am. St. Papers, 148 to 150; and it was intended by this grant to recompense him.
d. It also appears by his letters that he was a personal friend of Ramirez and attended to his business matters in Pensacola, and under the circumstances before related, it was natural that a munificent grant should be made to him.
Under the authorities before cited these facts establish the authenticity, but we have in addition to all of these:
5. Proof of possession under this grant for more than 30 years, for Michelet bought under an execution sale against Pintado in 1826 the land in Certificate "A," and sold it to the United States, which built Fort Pickens on it in 1829 and have ever since had possession of it. The possession of this part suffices. Applegate vs. Mining Co., 117 U.S.
Such are the facts upon which we rely to prove the authenticity. Nothing is opposed to this, even in argument, except the contention,
1. That the Land Commissioners decided against its authenticity.
2. That the United States refused to confirm certificate "C."
3. That no steps were taken by Pintado or his heirs about this property, and that therefore a suspicion attaches to the grant.
This is equivalent to an assertion that there is a suspicion of fraud, but such a suspicion cannot prevail against the settled rule that fraud must be proved and cannot be presumed. ( U.S. vs. Arredondo, 6 Pet., 716). Beyond this, however, the contention is not good. 1. The Commissioners did not decide upon this grant, but upon a copy and upon the fact that it was a copy, they laid great stress. Their inference that Ramirez would not attempt to grant the land in Certificate C, because he had no power to do so, and that therefore the grant was fraudulent, will be shown hereafter, when I show that he had the power, to be unwarranted. 2. There is no evidence anywhere that any confirmation was ever asked for. Joseph M. White, then a delegate to Congress, was the attorney for Michelet, and evidently asked for confirmation only of those portions which Michelet had purchased from Pintado at execution sale. Fort Pickens was not included because it had already become the property of the United States. But besides this, the Act of Congress, instead of being relied upon as a disaffirmance of the authenticity of the grant, is (as I have said before) the strongest affirmance, because it confirms the title to a part of the lands granted and they were all included in the same grant. 3. The absence of action by Pintado or his heirs as to the land embraced in Certificate "C," (which embraces the land in controversy) raises no reasonable argument against the existence of a title. (3 Johns. Cases, 387). V. S. Pintado was in Cuba, he died there, there is no evidence that he ever came to this country after the grant was made, the Land Commissioners had pronounced against the grant and there was an opinion existent that their decision was final (and such opinion has been shared by others at a latter period), Michelet had sold out all that was immediately valuable, and nothing remained but the waterfront, this was not of marketable value or capable of improvement without enormous expense, and thus it lay without improvement or active assertion of title until the growing commerce of the city made it valuable, and the ballast of the incoming vessels furnished the means of improvement, and then the claim was actively asserted.
I think that I have demonstrated beyond question the authenticity of the grant, and that brings me to the second inquiry, viz:
As to its validity, so far as the land and water contained in Certificate C are concerned. And this inquiry sub-divides itself: Was the land under water the subject of grant, i. e., did the King of Spain have the power to grant it to a subject? And if so, was Ramirez the Intendant authorized to represent the King in making such grants?
Can the land under tide water be granted by the King of Spain?
In all countries the title to land under tide water is in the sovereign.
It was and is in the King of England, within his domimions. Martin vs. Waddell, 16 Pet., 423 (dissenting opinion); McKenzie vs. Hewlet, N. C. Term Rep., 182; 8 Cushing, 347; 18 Wall., 66; 8 Mich., 18.
It was and is in the States of the American Union within their boundaries. 6 Wall., 436; 16 Pet., 259; MaCready vs. Virginia, 94 U.S., 391; Weber vs. Board &c., 18 Wall., 57.
And in Spain and its Provinces it was in the King of Spain. Mobile vs. Eslava, 9 Porter, 577; Hagan vs. Campbell, 8 Ib. 9; 2 Ib. 436; 18 Wall., 57; 3 How., 225; 2 Cal. L. L., p. 550.
Not only was the title thus vested, but in each case the sovereign had a right to convey and did convey that title to individuals. Unquestionably this right existed and was exercised in England up to Magna Charta. Martin vs. Waddell, 16 Pet., 410 & 423; 18 Wall., 57; 1 Pick., 182; 3 Kent. Com.,; Storer vs. Freeman, 6 Mass., 438; Ward vs. Willis, 6 Jones [Law] 183. And according to some authorities exists and is exercised up to the present time.
But whether it exists in England since Magna Charta is immaterial, for it did exist when the King was unfettered by the constitutional restriction of Magna Charta, and the King of Spain has never thus been fettered.
The power exists in and has been exercised by the States of the American Union, e. g: Massachusetts, which in 1641 granted the use of the flats on the sea shore for 100 rods below high water mark; (Tyler on Boundaries, p. 41); New York, which has granted to the cities of New York and Brooklyn the water fronts of each, (Ibid, p. 47); New Jersey, which has made similar grants, (Ibid, p. 48); and Florida, which by the Act of 1856, (Chap. 791,) granted all of her water front to individuals. If, as was contended in argument and in the Report of the Commissioners (4 American State Papers, p. 119), the King of Spain could not grant this, because he held it as a trustee of the public, then Florida could not grant it, because the property, of course, was vested in her, subject to the trust imposed upon it in the hands of the King of Spain, for not only were private rights protected by Art. VIII of the treaty of 1819, (Thompson's Digest, p. 572), but by the commonest principles of international law individual rights are always protected upon the transfer by cession of one country to the sovereignty of another.
But the power of Florida to do this has never been questioned, although the Act has several times been before this Court. Geiger vs. Filer, 8 Fla; Rivas vs. Koopman & Solary, 18 Fla; Sullivan vs. Moreno, 19 Fla.
And such questioning would be vain in face of the admitted law as to the powers of the States over their navigable waters. Sullivan vs. Moreno, 19 Fla.; MaCready Cready vs. Virginia, 94 U.S.; Weber vs. Board, &c., 18 Wall., 57.
The United States recognizes title in individuals to land between high water mark and the channel of navigable tide water, by Sections 1 and 2 of the Act of Congress of May 1, 1824, (4 Statutes at Large, p. 66).
But we are not left to analogy to determine the power of the King of Spain in this respect, for such power was exercised by the Spanish officials and directly sustained by the Courts. Mobile vs. Eslava, 9 Porter, 577; Hagan vs. Campbell, 8 Ib. 9. And impliedly sustained in the following cases, in which such grants were passed upon without question as to their validity, even by the learned counsel engaged, who, being contemporaneous, were better acquainted with the Spanish law than we. Mobile vs. Eslava, 16 Pet., 234. See also dissenting opinion, pp. 252 & 259; Pollard vs. Hagan, 3 How., 219; Pollard vs. Kibbe, 14 Pet., 253.
Opposed to all this the appellants quote the opinion of the Land Commissioners (Vol. 4 Am. St. Papers, p. 119), in which opinion they committed two grievous errors -- perverted a plain construction, and ignored fundamental principles of Spanish law.
The foundation of their opinion was the following from the Partidas. Tit. 5, 1. 15: "Public squares, roads, threshy grounds, rivers and other waters which belong to the King, or the commons of any city, cannot be sold or alienated," which they construed to mean that the "rivers" and "other waters" belonged to the commons of cities and were therefore inalienable by the King, whereas, it is perfectly obvious that the rivers and other waters are not to be inalienable because they belong to the commons of cities, but because they belong to the King, and that the true construction is that neither the commons of cities nor the rivers and other waters, &c., which belong to the King shall be alienable.
But, even conceding their construction to be correct, this Partida did not bind the King or his plenary deputies. He was not named in it and laws bind sovereigns only when named. And in Spain it bound him only so long as he chose to be bound. There was no such thing as law, in a constitutional sense, restricting the sovereign power to a given course of action. Spanish law was the expression of the will of the King as to the manner in which subjects should conduct themselves, but, of course had no application to himself. 2 Cal. Land Laws, 502-503; U.S. vs. Arredondo, 6 Pet., 714.
His power was absolute, and the Leyes de Indies, the Partidas and other compilations expressed his mere temporary will subject to change at any time. So that even if the construction of the Partidas given by the Commissioners were correct, the making of a grant inconsistent with it would be simply evidence of a change of will of the sovereign and, being the latest expression, would prevail.
Even if the King was the trustee of the public as to the use of the navigable waters, yet the title of the soil was in him and he could grant the soil subject to the use. 8 Porter, 33; 8 Cush., 347; 9 Ib., 591 & 2; 8 Mich., 18. And when the use should cease and the soil be reclaimed, the grantee would be entitled to the sole use and ejectment for the possession. Strong vs. City, 68 N.Y. Or to bring ejectment even while it is subject to the servitude. Wagner vs. Troy, etc., 25 N.Y., 520; Goodtitle vs. Alker, 1 Burr., 133; Cooper vs. Smith, 9 Ser. & R., 26; Wright vs. Carter, 3 Dutcher, 76; Stackpole vs. Healy, 16 Mass., 35.
The true doctrine is that the sovereign is the owner of the soil -- that the public has a right to the use of the water above the soil -- and that the sovereign is the trustee of such use and can regulate it in the manner which he conceives most beneficial of the cestui que trust, so that if the abridgment of the right to traverse every foot of water be thought necessary to accomplish a larger benefit in connection with the use of the remainder, such abridgment may be made -- through the medium of a power to erect wharves, etc., or of a grant to an individual of the soil for the same, or like purposes. Sullivan vs. Moreno, 19 Fla.; King vs. Montague, 4 B. & C., 598; Moor vs. Veazie, 32 Me., 343; Wilson vs. Blackbird Creek, etc., 2 Pet., 251; Lormer vs. Benson, 8 Mich., 18.
Even if the sovereign held the soil in trust, he would have the legal title and could transfer it. Then the grantee would hold subject to the trust of the use of the public. If he trespassed upon that use, no one but the cestui que trust could complain, by injunction, indictment for a nuisance or other appropriate legal proceedings. A trespasser upon the rights of both of them -- upon the use of the one and the legal title of the other -- could not object to a proceeding by either against him, and in a suit by the trustee -- holder of the legal title -- to obtain possession, he could not complain that the success of the trustee would prejudice the rights of the cestui que trust which he himself had violated.
Appellants insist, also, that the King had no power to grant this land, because it had been dedicated to the public, and the case of New Orleans vs. United States, 10 Pet., 663, is relied upon. To this contention we answer:
1. There was no dedication here.
2. That the decision that the King could not grant land which had been dedicated by him was obiter.
3. That in this case the fee could not have been dedicated to the city, because the city could not take it.
4. That if the fee could not have been dedicated to the city, any dedication of the use to the public, would have left the fee in the King grantable at his pleasure subject to the easement of the public.
1. There has been no dedication here.
In order that there should be a divestiture of any right connected with property, it must be by alienation voluntary or by operation of law. Dedication is but a method of divestiture, and must be either by a voluntary alienation or an alienation by estoppel. There is no question of estoppel here, so that only a voluntary alienation can be relied upon. It is well settled that there must be proof of an intention to dedicate, and that without such intention there can be no dedication (except in case of estoppel). State vs. Trask, 6 Vt.; 2 Smith's L. C., [201]. And such intention may be proved by an express grant or declaration, in which case there is no difficulty; or it may be presumed from circumstances, in which case the proof from the circumstances must be clear and unequivocal. 27 Am. Dec., 554 n., and authorities. And simple acquiescence in user without any act indicative of intention to appropriate would not, in the case of open, uninclosed property like this, be evidence of dedication. Gardnier vs. Tisdale, 2 Wis. 63; Warren vs. Jacksonville, 15 Ill., 236; Harding vs. Jasper, 14 Cal., 648; McWilliams vs. Morgan, 61 Ill., 91; Kyle vs. Town, &c., 87 Ib., 67; Stacey vs. Miller, 14 Mo., 478.
Now, here, there is absolutely no evidence of any intention on the part of the sovereign -- the owner -- to dedicate. In the case of New Orleans vs. U.S. relied upon, this essential was present. There was an unequivocal declaration of the owner -- the Western Co. -- by plotting the city and marking this "Quay," and the intention of the King was clearly deducible from the unequivocal acts set forth in the opinion of the Court.
But here no such circumstances exist. There is no grant or declaration by the sovereign shown, and there is nothing from which an intention to dedicate can be drawn. The property has remained from time immemorial in the same condition. The owner has done no act, but has left it vacant and unenclosed. The use of the public, if any, has never been inconsistent with his right to enclose and improve it. It was of no use to him, then, to enclose it; and it is simply a case of leaving unimproved property open, because not needed, and letting others use it.
Morever, the King allowed the use of it as he allowed the use of all navigable and tide waters, and by a parity of reasoning the appellants could equally contend that all other navigable waters have been dedicated, and, if so, then the right of the sovereign to hold and alienate the lands under water has been supplanted by this supposed right of the public. This, in direct opposition to the authorities which we have heretofore cited, and would prevent the States of the Union to-day from providing for the erection of wharves, or other structures in navigable waters, a power which has been exercised without question in all the States having seaboards and which is directly sustained in this State. Sullivan vs. Moreno, 19 Fla.
By natural law, the public had the use of the water though the sovereign had the title and the right to alienate it, so as to deprive them of this use, and the exercise of such use being therefore consistent with such right of title and alienation, cannot be evidence of any waiver of such right, nor can the use of the water, which they had a right to use, affect in any way the title to the soil, which they had no right to use.
The use must be referred to the always existing right of the sovereign to cause its cessation. The rule is that the right of the public continues until the owner of the soil shuts out the public by an exclusive appropriation of the soil, which he may make at any time. Austin vs. Carter, 1 Mass., 231; approved, Weston vs. Sampson, 6 Cush., 347. And it is by the application of the same rule, that the sovereign may grant the right to build wharves and piers, &c., in navigable waters, which have from time immemorial been used by the public. Sullivan vs. Moreno, 19 Fla.; Weston vs. Sampson, 6 Cush., 347. And it has never been contended that any dedication to the public prevented the exercise of such power.
2. The decision that the King could not grant land which he had dedicated was not necessary to the decision of the case because the court had already decided it upon the ground that the dedication had taken place while the property belonged to the Western Company, and the King could not divest vested rights.
3. The case holds, and stands alone in holding, that the fee is ever conveyed by an implied dedication, whatever might be done by an express or statutory dedication. But, for the sake of argument, admitting it to be good law, in this case the fee could not vest in the city, for the land was outside the limits of the city, and it could not hold land for public purposes beyond its own boundaries. Gard. Inst., 367-368; Riley vs Rochester, 5 Selden (N.Y.), 64-71.
4. If there was any dedication, then, it must have been to the general public of the use only, and the sovereign, retaining the soil, could grant it to an individual subject to that use, and such individual, upon the cessation or perversion of that use, could reclaim it by ejectment. See authorities supra and infra.
And this leads to the second subdivision of this branch, viz: Whether or not Ramirez had authority from the King to make this grant?
He was authorized to make grants. U.S. vs. Arredondo, 6 Peters, 691-734 & 746; U.S. vs. Clarke, 8 Pet., 451; 2 Cal. L. L., 185-186-245-478; White's Spanish Law, 157.
And being so authorized, his authority to make a particular grant cannot be questioned. U.S. vs. Arredondo, 6 Pet., 723; U.S. vs. Clarke, 8 Pet., 451; U.S. vs. Percheman, 7 Pet., 95; Strother vs. Lucas, 12 Pet., 409.
Or, if it can be questioned, the want of power must be clearly shown in that particular instance. Mobile vs. Eslava, 9 Porter, 577; authorities just cited.
Not by showing a general lack of power in the particular class of cases, for if inconsistent with his general powers, it will be presumed to be in accord with specific instructions from the King which are unknown to us, U.S. vs. Clarke, 8 Pet., 447-451 & 454; U.S. vs. Percheman, 7 Pet., 95; but by proof that the King not only had the power to disavow, but actually disavowed the grant, U.S. vs. Clarke, 8 Pet., 451; U.S. vs. Arredondo, 6 Pet., 728; and this presumption will be made and this proof required, even though the grant purport to be made under a power which did not authorize it, U.S. vs. Percheman, 7 Pet., 95; for no instance has ever been found in which the King repudiated grants made by his Governors or Intendants. U. vs. Sibbald, 10 Pet., 322; U.S. vs. Clarke, 8 Pet., 458.
The completion of the discussion as to its validity at the time it was made, naturally leads us to the inquiry as to its effect at that time, that is to the inquiry,
What estate was created by it? Appellants contend that a true construction of the instrument shows that there was conceded to V. S. Pintado only a license or privilege to use the land and water for the certain purpose of erecting wharves and bath houses, and did not convey a fee simple estate.
I submit that the terms of the grant itself and the surrounding circumstances emphatically negative any such conclusion.
First, The terms of the grant.
a. Of course a license or privilege necessarily implies a retention of the right or title of property and a concession of the use. In this case all the language of the grant shows a transfer of the title to Pintado.
In the decree itself, the words are: "I grant * * * "10,000 arpents royal lands" * * * "and that title be delivered for * * * the lands immediately."
In the description, the words are: "The lands designated by the letter "C." "That part of land and beach," "the whole in full property."
In the granting part the words are:
"I grant * * * the 10,000 superficial arpents of land and water," "and I transfer to him absolute dominion, for that as his own, he may hold to his own use, enjoy or alienate them at his own pleasure."
These things show a clear intention to transfer the land itself and not to concede the use of it, and the Supreme Court of the United States has said that a grant in form almost identical with this transferred the title in fee. U. S. vs. Arredondo, 6 Pet., 745.
It will be recollected in this connection that this is not an English, but a Spanish grant, and that there were never any words of perpetuity or heirship in Spanish grants, even when conveying absolute property.
b. Instead of the grantor in this case having retained the title and granted the use to Pintado he has reserved a right to himself -- the right to build wharves and bath houses -- so that instead of the title being in the King and the use in Pintado, the title is in Pintado and the use for a specific purpose in the King.
The very fact that the reservation is made, demonstrates that there was a need for it because the title had passed.
c. If it were a license or privilege merely it would have been revocable at any time, till executed, and even then except as to the part executed; 1 Cowen, 568; 15 Wend., 380; 24 Pick., 187; and there would have been no reason in making a reservation when the power to reclaim the whole was reserved.
d. The argument of the appellants which I shall notice hereafter, that this was a grant upon condition, is entirely inconsistent with the idea of its being a concession of a use, because a grant made with condition is a grant which shall not vest absolutely until the performance of a condition, or, having vested, may be divested upon the non-performance of the condition, neither of which can be predicated of a use.
e. The grant gives the power of alienation which is not applicable to a mere license or privilege. 1 Foster, 291; 1 Cow., 568.
The argument of appellants that this is a privilege or license is based upon,
1. The limit to a depth of ten English feet below the actual bottom.
2. That it was for the purpose of constructing wharves.
3. That the reservation of the rights of His Majesty, which included the ownership of the soil, was inconsistent with the vesting of that soil in another.
4. That it was "without prejudice to a third who holds a better right, nor of the sovereign privileges."
The first three of these are found only in the petition of Pintado and in the description therein, and in the recital of that description preceding the grant. In neither of these does it indicate the intent of the grantor as to the estate to be conveyed. In the petition it was merely a representation of what he wished the land to be granted to him for, and in the latter it was merely the recital of that representation. The reasons which the petition sets forth why land sought for should be given to him, and a statement of the use to which he intends to put it, differs greatly from a limitation to such use, expressed by the grantor himself, in a grant which, in form, is a conveyance of absolute title. There is no such limitation expressed by the grantor here.
1. The limit to ten feet below the bottom is to our minds merely an abundantly cautionary measure to indicate clearly that the land was to be conveyed as well as the water, and in order to further show this, it was directed that the property granted should be considered as a solid. The tract had been spoken of as lands having a "superficies of water," and in order to make more certain that the land itself was to be conveyed, the dimensions of the property, expressly including the soil, was given. Why this particularity if only a license or privilege was intended?
Whether such license or privilege, or a grant in fee simple, is extended over the whole surface and ten feet into the soil in either case, and nothing more was left to the King in one case than the other, and therefore no greater argument can be drawn from these expressions in favor of one construction than in favor of the other. The expressions simply fixed the quantity of property, and do not relate to the quantity of the estate. If the court is in doubt as to the purpose of the insertion of the limitation as to the depth, it will not allow that doubt to control the plain signification of the words granting the property absolutely. U. S. vs. Rodman, 15 Pet., 139.
2. It will be noticed that the grant is not made solely for the purpose of building the wharves, but "in full property and for the purpose," etc., Were it "in full property for the purpose," etc., it might be contended that the full property was limited by the purpose for which it was used. But in fact the estate is first vested in full property, and then the purpose for which the grantee intends to use it is indicated. An absolute grant will not be qualified by the recital of the purpose in making the grant or of the grantee in accepting it. U. S. v. Hanson, 16 Pet., 196.
3. The reservation was not of the rights of His Majesty and of those of the public, etc., but of "not only the right of His Majesty, also that of the public * * * to construct wharves," etc.
This, then, is the reservation of a single right of the King and the public the exercise of which, considering the area of the grant, would take but little of the space granted and would therefore not be inconsistent with the exercise of full dominion over the great portion of it. As to the right of the public, reference of course is had to the right as it then existed, (for this is a reservation and saving, and not a conferring of, a right upon persons not named as grantees), and the public had no right to build at will over this space. The rights of the public were the rights of transit and fishing, not of building wharves except at the termini of the streets. The public, considering it as composed of individuals, or as represented by the municipality, could not build a wharf or any thing else upon navigable waters without the permission of the King. The right of municipalities to build at the ends of streets so as to keep up access to navigable water, is a necessary exception, People vs. Lambier, 5 Denio; Udall vs. Trustees, 19 Johns; 1 Dill. Munic. Corp., § 497; and as this was the only right which the public had to build wharves with funds either municipal or common, the reservation must be referred to this right. This is the reservation which the King intended for himself, too. The town of Pensacola was then a military post, with a civil government subordinate to the military, who represented the sovereign power of the King, and this reservation was evidently intended to keep open access from the ends of the streets not only for the purposes of the King, but also for the purposes of the citizens of the town as represented by the town. If these things be so, then the reservation of the right to prolong the streets furnishes no argument against the intention to grant a fee simple title to the whole, subject to the servitude of the public in the prolongation of the streets.
4. The phrase "without prejudice to a third who holds a better right," has no special signification here, as it occurs in all Spanish grants which I have ever seen; e.g., 16 Pet., 196; 15 Pet., 174; 10 Ib., 323; 16 Ib., 154; and was evidently intended to protect the honor of the King (as Don Luis de Onis said in negotiating the treaty) from allowing one deputy to unintentionally grant, without notice to the grantee, land which, perhaps, had been already granted to another by another deputy.
"Nor of the sovereign privileges" contains its meaning within itself, being designed to qualify the "asbolute dominion" which might embrace political as well as proprietary dominion, and is also a very usual phrase, with no special signification here.
If it had any other signification, that is fixed by the qualification "according to the annexed decree and the clauses expressed," to which we have already adverted.
Secondly. The surrounding circumstances (which are admissible in the construction of the grant -- Cavazos vs. Trevino, 8 Wall., 773), show that this was intended as a grant in fee simple. Pintado had been an able and faithful officer, and performed meritorious services, had become poor in the service and by a removal to Havana was in want of means of subsistence. To meet these needs, the grant was made. It would have been giving him a stone to give him a license to do an act which he was in no pecuniary condition to do, a license which was not transferable, and, if transferable, of little value, because revokable. Negotiations were even then upon the eve of commencement between Spain and the United States for the transfer of Florida to the latter, Pintado had been transferred to Havana and was domiciled there as an officer of the Spanish government, and it would have been a mockery to give him as a reward, that which he could not personally avail himself of because of his absence, and which he could not transfer to another -- which he could neither use nor sell, and which would be revoked by the then impending act of cession. 6 N.H., 9; 4 M. & W., 538.
Add to this, that the nearness of the cession would make the Spanish authorities less reluctant to part with this property in fee, and more willing to reward its own faithful servants liberally, and we think that the combined circumstances show that the intention was to grant in fee simple, and not to concede a privilege.
But the appellants say that, admitting the authenticity of the grant and its capacity in form to convey a fee simple title, yet it is not now efficacious as a foundation of title in this suit. And I thus reach the last question concerning the grant, which is:
Is the title to the land embraced in Certificate "C" now enforceable? Appellants say that it is not because the title never took effect, as
a. It was never completed by a survey; and
b. The building of bath houses and wharves was a condition precedent and was never fulfilled, and that if it did take effect, it has become inoperative, because
c. The building of bath houses and wharves was a condition subsequent and has never been fullfilled.
d. It was annulled by Act of Congress of May 23, 1828, (4 Stat. at Large, 284);
e. It was barred by the limitation contained in said act;
f. It was rejected by the Land Commissioners of West Florida;
g. The land has been dedicated to the public, and
h. It has been abandoned.
d. It is further contended that the said Act of Congress of May 23, 1828, was a distinct and affirmative annullment of the title to the land in Certificate "C," without reference to any condition subsequent or a breach thereof.
Beyond the answer already contained in our suggestion that no such intention is indicated in the act, another insuperable obstacle to giving the act any such effect is that Congress had no power to make such an annullment, and it will be presumed that it did not attempt to do so.
Lands in Florida held under Spanish titles at the time of the treaty, were two kinds, perfect and imperfect. U.S. vs. Arredondo, 6 Pet., 718; authorities infra.
In the former the title had passed to the grantee, in the latter he had a right to acquire a title by taking certain required steps. Both of these were provided for by the treaty, the provision as to the former being that they should remain ratified and confirmed, and therefore any grant in which the title had passed to the grantee before the cession was protected by the treaty, and Congress could not divest any such vested right. MaGuire vs. Tyler, 8 Wall., 65; U.S. vs. Arredondo, 6 Pet., 714; U.S. vs. Percheman, 7 Pet., 95; MaGee vs. Alba, 9 Fla., 392.
The same result would have obtained from the law of nations. Delassu vs. U.S., 9 Pet., 117; MaGee vs. Alba, 9 Fla., 392.
The only question then is, was this a perfect grant? It was a royal title, in form, and as such a perfect grant. U.S. vs. Constant, 12 How., 437; U.S. vs. Ducros, 15 How., 41; 4 Am. St. Papers, p. 118; U.S. vs. Pellerin, et al., 13 How., 10.
It conveyed the property absolutely, and even though there was a condition subsequent, yet it is the settled doctrine that this was a perfect title though subject to forfeiture for non-performance of the condition. U.S. vs. Pellerin, 13 How., 10.
e. For the reason given in the preceding sub-division, Congress could not prescribe that a title already vested should be divested by a failure to prosecute it in the courts, and it did not so intend by the Act of May 26, 1824, (4 Stat. at Large, p. 52), or by any of the subsequent Acts conferring jurisdiction upon the District Courts to hear claims for land titles, which Act of 1824 in its limitation of the jurisdiction of the District Judge is expressly adopted by the Act of May 23, 1824 (4 Statutes at Large, p. 284), in its sixth section. And, therefore, that Act has been construed to give the courts jurisdiction only over incipient or imperfect grants. U.S. vs. Lawton, 5 How., 26; U.S. vs. Dauterive, 15 How., 23; U.S. vs. Roselius, 15 How., 34; U.S. vs. Roselius, Ib., 37; U.S. vs. Ducros, Ib., 41; U.S. vs. Constant, 12 How., 437; U.S. vs. Reynes, 9 How., 143.
f. It was never rejected by the Land Commissioners for West Florida. They merely expressed their opinion (which we have shown to have been erroneous), and reported the grant to Congress. Moreover, they had no power to reject, for they were merely a board of inquiry and had no judicial powers. U.S. vs. Perchman, 7 Pet., 95; MaGee, et al. vs. Alba, 7 Fla., 382.
g. There is no evidence of any dedication to the public. (See argument upon dedication by the King.)
If there had been a dedication, it was for purposes of passage and navigation and a change or discontinuance of the use to which it was dedicated, would authorize the resumption of possession or the bringing of ejectment. Strong vs. City of Brooklyn, 68 N.Y., 1; Carpenter vs. Oswego, etc., 24 N.Y., 655; Weisbrod vs. C. & N., etc., 21 Wis., 602; Gardiner vs. Tisdale, 2 Wis., 153.
Or, the fee still being in the dedicator, he can bring ejectment for a wrongful occupancy, even though the dedication still continues. 65 N.Y., 134; 1 Burrow, 133; 25 N.Y., 526; 9 S. & R., 26; 15 Gratt., 528; 3 Vt., 279; 16 Mass., 35; 2 Smith's L.C., [213.]
And it does not lie in the mouth of a trespasser who appropriates to himself to the exclusion of the public to complain that the rights of the public are violated. Authorities supra.
h. There has been no abandonment. This is, as we have shown, a perfect and complete grant, under which title vested in Pintado and his heirs. Such a title cannot be divested by abandonment. 3 Wash. on Real Prop., Chap. 11.
If it could, who could it go to? It is entirely divested from the original grantor, and nobody else has a right to take it. The cases of U.S. vs. Hughes, 13 How., 1-4-7, cited by Appellants, are not analogous in the facts. The grants in those cases were incomplete grants. This is complete. In those the rights were inchoate, and the grantee took no steps to prefect them, and the court presumed an abandonment of his right to perfect the title. In this the title is already perfected, and there can be no presumption of the abandonment of absolute title. In those, manual possession was necessary to perfect the title; in this it was not. U.S. vs. Lawton, 5 How., 29; U.S. vs. Sibbald, 10 Pet., 313; U.S. vs. Arredondo, 6 Pet., 743.
Having thus, as I submit, established the efficacy of the Pintado grant as a basis of title to sustain this suit, I proceed to examine other questions applicable both to the appeal of Louisville & Nashville R. R. Co., and to that of D. F. Sullivan's executors.
Questions applicable to all the Appellants:
Assignments of error 4, 5, 6, 7, 8 and 9, raise questions identical, though relating to different deeds. Each deed was a link in plaintiff's title, and was therefore neither irrelevant nor incompetent. Each described a part of the locus in quo described in the declaration. The land described in each was, as we have shown, the subject of a grant, and the objection that when the deed was made the locus in quo was in adverse possession, was a point to be made by evidence and not by assertion, and to be passed upon by the jury under instructions from the court.
Assignment of error 10. In addition to foregoing grounds there are special ones urged against the admission of this conveyance from Pintado heirs to A. C. Blount. They are, however, not tenable.
It was offered as a copy of a conveyance valid according to the laws of Louisiana, and therefore, under Chapter 1930, §§ 1 & 4, of the laws of Florida, valid and efectual to convey title to land in Florida. The original differed from a deed valid when executed in Florida, only in that no seals were attached to the signatures of the grantors. But seals were not necessary either to an authentic act or a private act (either of which this was) under the laws of Louisiana. See Mallory's testimony -- Civil Code of Louisiana, Art. 2415-2231-2239-2242.
So it was validly executed in Louisiana, and therefore, valid in Florida.
It was perfectly competent for the Legislature to render the deed valid, though before the passage of the act it was not. Cooley on Cons. Lim., [376-7-8].
The copy was admissible either as a copy duly certified by an official whose duty it was under the law of Louisiana (See Mallory's testimony) to retain the original, U.S. vs. Percheman, 7 Pet., 52-85; 1 Greenl. Ev., § 485 n. 4, citing Bowman vs. Sanborn, 5 Foster (N.H.) 87; or as a copy of the original, which was proven to be beyond the custody and control of the plaintiffs, it being retained by a person out of the State, who refused to surrender it and who was amenable to no process by which he could be compelled to produce it. 2 Phillips on Evidence (4 Am. Ed.), p. 514, n. 446; Ib. p. 520, n. 448; 1 Greenl. Ev., § 82 & § 84.
Assignment of error 11. I have already discussed the Pintado grant. As to the bare right of introducing it and having it read, I have simply to add that the question of admissibility was for the court and only required a reasonable presumption of its authenticity. 1 Greenl. Ev., § 142.
The court could have permitted it to be read in the first place before any proof of its genuineness, because the contents would have to be known in order to determine the relevancy of the proofs offered as to its execution and authenticity. Doe vs. Passingham, 2 C. & P., 440, cited 1 Greenl. on Ev., § 144.
There was, moreover, no objection to its introduction because of want of proof of its execution or authenticity. If there had been, the determination of the objection lay with the jury, and they have determined in its favor. The objection that it was a copy and not properly proved is not a fact. It was the original. The word duplicate on Pintado's petition was placed there because he was required to present duplicates, and one of them was attached to the grant.
Assignment of error 12. The papers, the introduction of which is objected to, were introduced for the double purpose of showing that John de la Rua was the agent of V. S. Pintado, as tending to show the authenticity of the grant. I have already discussed their effect as showing both these things, and it is unnecessary to repeat the discussion. The only question is whether they were admissible to show them. The objections were that they were irrelevant and did not refer to the grant or the property embraced in the grant. In fact the letters, the petitions to the Commissioners, the bills for professional services, etc., did refer to the grant and the lands embraced in it, but it was not necessary that they should have done so. If anything connected with them, or the place in, or circumstances under, which they were found, tended to prove an issue of fact they were relevant. Upon their face they appeared to be papers of V. S. Pintado, or relating to his estate, and such as would naturally be in the possession of an agent of Pintado, and therefore tended to show that de la Rua was the agent of Pintado -- in fact several of them recited the agency. They were therefore admissible for this purpose. They were also admissible as tending to prove the authenticity of the grant. It was found among them and the presence of each was an additional argument for the authenticity of the others. An isolated paper might have been forged, but the improbability of forgery and the consequent probability of genuineness is increased with the discovery of each additional paper relating to the same matter, but made at different times and by different persons. These papers were in themselves admissible as ancient documents, being more than thirty years old and being found in the proper custody, for the rule as to ancient documents is not confined to any particular kind of paper -- 2 Phillips on Evidence, (4 Am. ed..) p. 481; and, tending to prove the authenticity of the grant itself, were admissible. Whether the papers among which a grant alleged to be an ancient grant, is found related to the business of the person claiming under the grant is always a material question, 7 East, 291; 1 Esp., 278; and the best evidence as to whether they related to such business, is the exhibition of their contents to the jury.
Assignment of error 13. The objections to Richardson's testimony were as follows:
1. That it is not shown that the lease testified to covered the locus in quo.
It is only necessary for the Court to read the interrogatories and answers to see that he is testifying all the time about "the property in controversy," as he speaks of it in the answer to the second interrogatory.
2. That the locus in quo was not the subject of private lease or ownership, such as would prevent the Railroad Co. from exercising its rights * * * in the maintenance of a public wharf.
We have already discussed the liability of the property to private appropriation by grant, and will hereafter discuss the alleged relation of the Railroad Company to the public.
3. That the making of the lease and the payment of the rent was not shown to be authorized by the Board of Directors or proper authorities of the Railroad Company.
But Richardson testified that the Pensacola & Louisville R.R. Company paid rent to him. The allegation is that the Company paid it, and, if the defendants had desired, they could have shown upon cross-examination, whom he meant by the "Company," or could have affirmatively shown that the Company did not do so. His allegation covered all requisite functionaries of the Company.
4. That it was an effort to establish plaintiff's title by parol. It was not an effort so to do; but merely to establish a recognition of it. Such recognition is always admissible.
5. That it was not shown that the defendants went into possession as tenants of plaintiff or his grantors. This could make no difference. If they went in as tenants, they would in the absence of fraud, be estopped, but even if they accepted a tenancy while in possession, the acceptance would, if not an estoppel, be evidence against them, to be met by evidence on their part destroying its effect. Bigelow on Estoppel, 469, et seq.
Outside of a question of tenancy, it was, in connection with the testimony of Walter Tate and A. C. Blount, admissible for the purpose of meeting the contention of defendants that the R. R. Co. was in adverse possession at the time of the several conveyances made, and that therefore the conveyances were void as to it. The testimony of these three witnesses covers the whole period and show that at no time was its holding adverse.
It was also contended below that, as the Pensacola & Louisville R. R. Co. had made a mortgage of this property prior to their admissions by lease and payment of rent, and as the defendant R. R. Co. held under a foreclosure of this mortgage, no act of the P. & L. R. R. Co. in connection with the property, made subsequent to the making of that mortgage, could be in derogation of the rights of any one claiming under the mortgage.
This is admitted, but this cause was tried against D. F. Sullivan's executors, and the R. R. Co., and any evidence which was admissible against either, would properly go to the jury. Now Sullivan's executors held directly under the P. & L. R. R. Co., without the interposition of the mortgage, and were bound by the acts of their grantors when in possession.
Moreover, even as to the defendant R. R. Co., this evidence in connection with that of the other witnesses, was admissible, not as binding it, but as showing the character of the possession of the P. & L. R. R. Co., after the mortgage, not to have been adverse, and thus to raise the presumption that it was not adverse before. (It may be remarked in passing that the admissions made to A. C. Blount and Walter Tate were before the making of the mortgage). Even if the possession of the P. & L. had been adverse in the beginning, there was no presumption that it continued to be, for it was incumbent upon the defendant to show its continuance. Gay vs. Moffitt, 5 Am. Dec., 633.
Assignment of error 14. Sullivan's proposition to purchase this property from Richardson was admissible, being an admission of the title of Richardson, by a person who had shown no title in himself. Field's Lawyer's Briefs, Title Estoppel.
And would even have been sufficient to base a verdict for the plaintiff upon. Ib.
If so, it was relevant, the property mentioned in it being fixed as the property in controversy by the answer of Richardson to the 7th interrogatory.
Assignments of error 15 and 16. Hyer and Cram were both the highest officers of the company, and were in possession and control of the property and their admissions with respect to the character of that possession were admissible. Dorsey vs. Dorsey, 21 Harris & J., 410; Norton vs. Pettibone, 7 Conn., 319.
Possibly, if the R. R. Co. had had a title it would not have been competent for them to divest the title of the Company by an admission inconsistent therewith, but in the absence of title, it was competent to prove the admissions respecting the character of the possession. If the Company went into possession by mistake and claimed no title it had nothing to divest. An officer without authority takes possession; the corporation has not acted and has acquired nothing; the same officer or one of the same grade can declare the character of the act of taking possession and it will bind the corporation. Suppose the officer had taken a lease without authority from the corporation; could it repudiate his act and claim the property as its own, and would not he, having taken possession and still having possession, bind the title as against himself or any one claiming through him, by his admission as to the manner of taking possession, and the consequent nature of that possession?
At any rate, being in possession and control of the property about which the admission was made and of which it was in evidence, the Company went into possession through mistake, their acts, not being inconsistent with the rights of the Company, would be presumed to be authorized by it, and the burden of showing that they were unauthorized would be upon the Company. It did not show it. On the contrary it was shown that these admissions were authorized by Richardson, who owned all the stock.
The equity being entirely with the plaintiff, it will be presumed, after the lapse of six years, during nearly every one of which the officers and directors admitted the title of plaintiff, and during two of which rent was paid, that the corporation was cognizant of the facts and ratified them. Morawetz on Corporations, §§ 628-629-631 & 633; cases cited, Abbott's Dig. Corp., §§ 7-9-10-21-27-30-33.
The retention of possession was beneficial to the corporation, as their wharf had been built over the land, and an acquiescence and ratification by which an ejectment was avoided can readily be presumed. Mor. on Corp., § 629.
Assignment of error 17. This assignment to the whole charge will not be considered by the court.
Assignment of error 18. The part of the charge objected to was correct. Hartley vs. Ferrell. 19 Fla., 374.
Assignment of error 20. I have discussed the questions raised by the assignment, in the argument upon the Pintado grant. If contended, as below, that the court assumed the authenticity, the answer is that no objection was made, when introduced, as to its authenticity, and that therefore the court had a right to assume it.
Assignment of error 21. This involves only questions concerning the Pintado grant and the deeds under which plaintiff claimed, and have already been discussed.
Assignment of error 22. The charge objected to was in exact accordance with the law.
Assignment of error 23. The judge below had already determined the validity within themselves of the deeds mentioned, and nothing remained as to them, except the question of adverse possession by the defendant when they were made. The instruction objected to is in effect that if there was no entry except in subordination to the true title, and that title was afterwards acknowledged, there was no adverse possession, and it was correct.
Assignment of error 24. This part of the charge was unobjectionable. Hart vs. Bostwick, 14 Fla., 178.
Assignment of error 25. As was also the part herein objected to. Ib. Sedgwick and Wait on Trial to Title of Land, § 749.
Assignment of error 28. The instruction urged herein was properly refused. L. &. N. R. R. Co. vs. Yniestra, 21 Fla.
Assignment of error 35. This has been covered in the argument heretofore made upon the subject of dedication.
Assignment of error 36. The law as we understand it is that the question involved upon an admission of title in another by a person in possession, is not whether the person in whom it was admitted had title or not, but whether the admission was obtained fraudulently or in derogation of the existing rights of the person making the admission. If the P. & L. R. R. Co. had no title, and Tate used no fraud in procuring the admission from Cram, whether Tate had perfect title himself is immaterial, and Cram's admission would be evidence of title in him against the R. R. Co. Bigelow on Estoppel, 419, et seq.
Assignment of error 39. I think of no question occurring under this head not already discussed, or hereafter to be discussed. This brings us to a consideration of the assignments of error applicable only to the L. & N. R. R. Co.
Assignment of error 1. The surrebutter was intended to set up a presumption of action upon the part of the Directors, and also a want of necessity for it, because of Richardson's ownership of the Company, and was good. Without further discussion of it, however, we go back to the foundation of all the pleadings resulting in it -- back to the equitable plea. This was fatally defective in failing to allege any equitable circumstances of estoppel as against A. C. Blount. The only allegations as to this are that the wharf of the Pensacola & Louisville R. R. Co., was built on and over the property in controversy, "with the knowledge and consent of said Alexander C. Blount and without any objection thereto," the said A. C. Blount being at that time the owner, and the plaintiff deriving through him. It is an equitable plea and should allege all facts sufficient to make out the equity, but it fails to allege any circumstances amounting to an estoppel.
1. It does not allege that A. C. Blount knew that the structures were being erected on his property. True, it is alleged that he knew that it was being erected and upon the property now in controversy, but there is no allegation that he knew that his property was being covered by the structure. In order to create an estoppel by an executed license, there must be a permission by the owner to go upon the property, he knowing that it is his property. (2 Smith's L. C., 740.) If there is any ignorance of his rights, there can of course be no estoppel. Perhaps, if, though ignorant of his rights, he, being President, had directed that the wharf be placed where it was, he might have been estopped, but no such case is made in the plea.
2. Nor is there any allegation that the circumstances under which the knowledge or want of objection existed and the consent was given, were otherwise such as to estop. All of these are perfectly consistent with a lease for a term or at will, or with a revokable license; and if so, then a bare allegation of them is not sufficient to stop the owner from asserting his title. This equitable plea is equivalent to a bill for injunction ( Walls vs. Endel, 20 Fla., 86), and can it be supposed for a moment that an injunction would be granted upon a bill which stated upon its face facts which were as consistent with a want of equity as with an equity?
Assignment of error 2. The plaintiff was properly allowed to amend his declaration at the trial. Robinson vs. Hartridge, 13 Fla., 520.
If the defendants had desired a continuance, or other terms, they could have applied therefor.
Assignments of error 27 and 29. The instructions asked contained an assumption of all the facts, and were properly refused. L. & N. R. R. Co. vs. Yniestra, 21 Fla.
Assignments of error 30, 31, 32 and 33. The instructions, the refusal of which is assigned as error, raise but one point other than those which have heretofore been discussed, viz: Whether the defendant R. R. Co. comes within the reservations of the grant to Pintado by virtue of its representation of the rights of the King, or of the public.
It does not represent the rights of the King.
This was a right personal to the K