# Davis v. Parish of Concordia

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United States Supreme Court
50 U.S. 280
Davis v. Parish of Concordia
THIS case was brought up from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
As the decision of the court turned upon the single point when the treaty of St. Ildefonso became operative, so far as to extinguish the right of the Spanish governor to grant a perpetual franchise, it is not necessary to give a detailed statement of the facts in this case, nor of the arguments of counsel upon the points which were not included in the decision of the court.
The following summary will sufficiently explain the case.
Davis, the plaintiff in error, filed his petition in the Ninth District Court of the State of Louisiana, in and for the Parish of Concordia, on the 7th of February, 1840, in which he sets forth, that the Marquis de Casa Calva, then Governor-General of the Province of Louisiana, on the 19th of February, 1801, granted to one Thomas Thompson, then of said parish, the privilege of a ferry at the post of Concordia, in said parish, opposite to the then town, now city, of Natchez, as a privilege to be attached to the plantation of said Thompson, which he then possessed, in order that from that place he might have and enjoy the exclusive privilege, &c., for reasonable and customary toll, as it might be established; and on condition that he, the said Thompson, would clear a certain public road or highway from the said post of Concordia to the Bayou Cocadelle (Cocodrillo), in said parish. That Thompson fully performed the said condition, as appears by the certificate of Joseph Vidal, the commandant at said post of Concordia. That Thompson entered upon the privilege aforesaid, and performed the duties, and enjoyed the profits of said ferry, until the 16th of October, 1803, when he conveyed to Joseph Vidal all his right, title, and interest in and to said ferry and said tract of land. That the tract of land to which the privilege was attached was sold by Thompson to Vidal for the sum of four thousand dollars; when the land without the ferry would not at the time had been worth more than eight hundred dollars. That said Vidal entered into possession of said ferry and plantation, and continued to keep and enjoy the same until the year 1817, when he sold and delivered the same to petitioner. That petitioner thus became the owner of the said tract of land, and the lawful proprietor of the exclusive privilege of keeping said ferry. That by the laws, usages, and customs of the Spanish government at the date of said grant, said grant operates to the exclusion of any other ferry, for the distance of one league above and one league below. That the title of petitioner, acquired from the Spanish government, has also a prescriptive right, founded on the possession and enjoyment thereof by himself and vendors since 1801.
The petitioner then set forth that the Police Jury of the Parish of Concordia, in April, 1839, established a ferry across the Mississippi, from the town of Vidalia, in the parish of Concordia, to the city of Natchez, which conflicted with his right.
The answer admitted the establishment of the ferry by the Police Jury, averred their right to do so, and contested the plaintiff's claim upon grounds which it is not necessary here to mention. Evidence was taken on both sides.
On the 14th of June, 1841, the Ninth District Court gave judgment for the defendants.
The case was carried to the Supreme Court of Louisiana, which, at October term, 1841, reversed the judgment of the District Court, upon matters of evidence. It is reported in 19 Louisiana Reports, 533.
Upon the second hearing before the Ninth District Court, judgment was rendered for the petitioner Davis, which, upon being again carried to the Supreme Court, was again reversed, and judgment rendered for the defendants. This last case is reported in 1 Louis. Ann. Rep. 288.
The petitioner, Davis, sued out a writ of error, and brought the case up to this court.
It was argued by Mr. Coxe and Mr. Gilpin, for the plaintiff in error, and Mr. Jones, for the defendant in error.
The counsel for the plaintiff in error contended,--
1. The plaintiff contends that the grant under which he claims originated in a contract by which the exclusive privilege of keeping a ferry in front of his plantation was given to Thomas Thompson, in consideration for making a road, which he did make.
2. That the words con exclusion, in the grant, mean that the sovereign or his agents shall not establish another ferry within a reasonable distance of his own.
3. That the ferry attempted to be established at Vidalia by the defendant is on the same line of travel, and in the immediate vicinity of his grant; and, if it goes into operation, the obligation of the contract which he holds will be impaired, and his benefit greatly diminished, contrary to the true intent and meaning of the grant.
Recognizing the supervising authority of this court, and yielding to the supposed exposition of law by this tribunal, the Supreme Court of Louisiana decided that the words con exclusion were susceptible of an interpretation different from that given to them by complainant's counsel; and therefore it was incumbent on that court to give to that expression this narrow and restricted meaning. On the part of the plaintiff in error, it will be contended that this court erred.
This case, on the same pleadings, has been twice before the Supreme Court of Louisiana; on the first occasion, reported in 19 Louisiana, 533, it came up on bill of exception taken on the trial on sundry rulings of the District Court as to the admission or rejection of testimony. The plaintiff's title was, however, then exhibited, as it now is, and sustained by the same documentary evidence which is now produced. The validity of this title was then denied by defendant, as it now is, and was then at issue. Yet, throughout the entire argument of counsel, and the opinion of the court, no doubt is breathed as to the extent of the privilege embraced in the grant. The cause was remanded, with instructions to the District Court as to the competency of testimony alone.
On the second trial, the District Court did conform to these directions, and a verdict was rendered for the plaintiff.
On a second appeal to the Supreme Court, every point which was decided in the District Court directly was affirmed; but a new point was gratuitously taken by that court, on which its decision was adverse to plaintiff; and this point is that which is alone presented on this writ of error. 1 Louisiana Ann. Rep. 288-292.
The Louisiana court appeared to think this case closed by the Charles River Bridge case, in 11 Peters, 423, and understood it as asserting, 'that, if any other meaning can be given to a grant besides that which would surrender for ever a franchise, and a part of the sovereign power, that meaning must be preferred.' We contend that the language and meaning of this court in the case cited have been misunderstood; and that no such doctrine ought to govern the present case.
We shall further contend,--
1. That the mere grant of a ferry privilege across the Mississippi, by competent authority, implies, ex vi termini, an exclusion of all other ferry rights, not only by private unlicensed individuals, but operates to exclude the sovereign from making a similar grant, or one which will conflict with it, and impair or destroy its value to another.
2. That the grant in this case, con exclusion, is such an express recognition of such exclusive right.
3. That this is a case of express contract, by which, for a valuable consideration, Thompson became the purchaser of an exclusive ferry privilege.
4. That the uninterrupted and uncontested right thus claimed, having been exercised and enjoyed by himself, and those under whom he claims title, for a period of thirty-eight years, furnished the most conclusive evidence of title against defendants.
The authorities relied upon to sustain these positions are those referred to in the cases already cited from the Louisiana Reports, and 11 Peters; with the opinion of this court, pronounced during the present term, in the Illinois Ferry case,-confirming the views here taken of the Charles River Bridge case. West River Bridge v. Dix, 6 How. 507; 25 Wend. 631; 12 Pet. 435; 1 How. 194; Partidas, 3, 18, 28, 37, 39, 5, 7, 20; Just. Dig., 8, 1, 20, 42, 9, 1; 1 Louis. Dig. 448, 476; 2 ib. 241; 2 White's New Rec. 190, 194, 516; 2 Martin's Treat. 329; 2 Stat. at Large, 245, 283, 324; 8 ib. 202; Louis. Code of Practice, 6, 296.
The sovereignty of Spain existed in full force at the time of the grant, and the property derived under it was protected by the treaty with France. Treaty of St. Ildefonso of 1st October, 1800, 2 White's New Rec. 516. Treaty of Madrid, 21st March, 1801, 2 Martin's Treat. Sup. 329. Royal Order of Delivery, 15th October, 1802, 2 White's New Rec. 190. Treaty of Paris, 30th April, 1803, 8 Stat. at Large, 202.
The second point made by Mr. Jones, for the defendant in error, was as follows:--
II. The grant in question, whatever the nature or extent of the interest intended to be conveyed by it, never, for an instant, had any validity, as against the United States or the State of Louisiana.
1st. Because it was not one of those complete and consummate grants, the validity, force, and effect of which were left by Congress to be determined by the general principles and rules of international law, but was executory in its nature, as being dependent, for it consummate force and effect, upon the performance of a condition by the grantee, and therefore within the purview of the laws of the United States making it necessary for all but consummate grants to pass through the regular process to confirmation by Congress, or to adjudication under the authority of Congress. (Laws of United States and judgments of this court in execution of them, hereinafter cited to other points, and passim.)
2d. Because the treaty of St. Ildefonso, as between the parties to it, operated from its date; and instantly transferred to France all the rights of municipal sovereignty and eminent domain then appertaining to the territorial sovereign; which Spain was bound to transmit undiminished and intact to France. During the time that Spain occupied the province, between the date of the treaty (1st October, 1800) and the delivery of the province over to France (30th November, 1803), the possession and the dominion, remaining with her, were held in trust for France. The authority resulting from such possession and dominion was limited to the ordinary acts of local administration, the preservation of order and the due execution of the laws, and extended not even to the granting away of royal demesnes or crown lands, far less to the irrevocable alienation of any portion of the eminent domain, or to the diminution of any of the rights of ultimate sovereignty then enjoyed by the territorial sovereign.
Even the United States are held to have taken the dominion of all the territories ceded to them, including whatever was ceded either by particular States or by France, under a strict trust for the new States intended to be carved out of such territories; and, as such trustees, bound to transmit all the rights of municipal sovereignty and eminent domain unimpaired to the new States; and were therefore incompetent to grant away from the new States any navigable waters, or the soils under them, or the shores, or, in short, any land below the ordinary high-water mark. Pollard v. Hogan, 3 How. 221 et seq.
But all question of the disabling effect of the treaty of St. Ildefonso, from its date, upon Spanish authority to grant, or in any way to diminish, either the crown lands or any rights of territorial sovereignty, was completely closed in three months after the delivery of Louisiana to the United States, by an act of Congress positively repudiating all Spanish grants made after the 1st of October, 1800, with an exception of actual settlers before that date; and this court, conforming to the rule so repeatedly laid down in its own adjudications, which binds the judicial department to follow the lead of the political department of the government in the practical construction, assertion, and execution of all such national rights as are acquired, and of all such national obligations as are incurred, by treaty stipulation, has repeatedly adjudged Spanish grants to be void, because made after that date. Act of Congress, 26th March, 1804, erecting Louisiana into two territories, 2 Stat. at Large, 283; Foster and Elam v. Neilson, 2 Pet. 253; Garcia v. Lee, 12 Pet. 515; Pollard v. Kibbe, 14 Pet. 63.
If, therefore, the grant now in question be taken as going to vest a perpetual and irrevocable franchise in the grantee, it bound neither France nor the United States. The utmost extent of jurisdiction then remaining in any Spanish authority over ferries, was to license and regulate them; so as that the term of no license should go beyond the duration of the temporary possession and dominion held by Spain.
Mr. Justice WAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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