# Lessee of Pollard's Heirs v. Kibbe/Opinion of the Court

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* Opinion of the Court
* Concurring Opinions McLean Baldwin
* Dissenting Opinions Barbour Catron
United States Supreme Court
39 U.S. 353
Lessee of Pollard's Heirs v. Kibbe
The writ of error in this case brings up the record of the final judgment of the Supreme Court of the state of Alabama. This case is brought here under the 25th section of the Judiciary Act of 1789; that Court being the highest Court of law in that state in which a decision could be had. It was an action of ejectment, brought to recover possession of a lot of land in the city of Mobile. Upon the trial of the cause, the plaintiff claimed title to the premises in question under an act of Congress, and the decision in the state Court was against the right and title so set up and claimed. It is, therefore, one of the cases embraced in this section of the Judiciary Act, which gives to this Court jurisdiction to revise the judgment of the state Court.
The act under which title was claimed, was passed on the 26th of May, 1824, (Land Laws, 885,) granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of that city. Although the judgment of this Court must be confined to the error alleged in the decision of the state Court, upon the construction of the act of Congress under which title was claimed, it becomes necessary, to the right understanding of the act which was drawn in question, to look at the state of facts appearing on the record. It being a private act, for the benefit of the city of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of such individuals, and the situation of the land embraced within the law at the time it was passed.
These facts, as they appear on the record, are briefly as follow. On the trial, the plaintiff gave in evidence an instrument signed by Cayetano Perez, dated at Mobile, the 12th day of December, in the year 1809, purporting to be a petition of William Pollard, for a certain lot of ground, which is described as vacant, at the river side, between the canal, which is called John Forbes and Company's, and the wharf of this place, corresponding in description with the location of the lot in question; and a grant accompanying the petition, in these words: 'I grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant:' which grant was rejected by the commissioners appointed by the government of the United States, to investigate and report upon such claims, because of the want of improvement and occupation of the lot. The defendant gave in evidence a Spanish grant, dated the 9th of June, in the year 1802, to John Forbes and Company, for a lot of ground eighty feet front on Royal street, with a depth of three hundred and four feet to the east, and bounded on the south by Government street; which grant was recognised by the commissioners as a perfect title, and so confirmed by Congress. A map or diagram is referred to in the record, by which it appears that the lot sued for is east of Water street, and immediately in front of the lot conveyed by the above mentioned grant to John Forbes and Company, and only separated from it by Water street. It appeared in evidence, that previous to the year 1819, and until filled up by Curtis Lewis, the lot in question was, at ordinary high tide, covered with water, and mainly so at all stages of the tide. That the ordinary high water flowed from the east, to about the middle of what is now Water street. It was proved that John Forbes and Company had been in possession of the lot granted to them since the year 1802; and that said lot was known under the Spanish government, as a water lot; no lots at that time existing between it and the water.
In the year 1823, no one being in possession of the lot in question and the same being under water, Curtis Lewis, without title, or claim under title, took possession of and filled up east of Water street, about thirty-six or forty feet wide, and eighty feet deep from Water street; the filling up being north of Government street, at the corner of that and Water street. Lewis remained in possession about nine months, when he was ousted in the night time by James Innerarity, one of the firm of John Forbes and company; who caused to be erected thereon a smith's shop. Lewis, some time after, regained the possession by legal process, and retained it until he conveyed away the same. When Lewis took possession, Water street, at that place, could be passed by carts, and was common. The defendant connected himself through conveyances for the premises in question, with the grant to John Forbes and Company, and also with Curtis Lewis, and the mayor and aldermen of the city of Mobile.
Such being the situation of the lot in question, and of the several claims to the same, the act of the 26th of May, 1824, was passed. The first section of this act can have no bearing upon the claim set up to the lot in question. It only vests in the city of Mobile all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favour of any individual, under this or any other act. If, therefore, the second section applies to the lot in question at all, it is excepted out of the first section. That the second section does apply to this lot, has not been and cannot be doubted. That section is as follows: 'That all the right and claim of the United States to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots, in the said city of Mobile, whereon improvements have been made, be, and the same are hereby, vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile; except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same, in which case, the right and claim of the United States shall be, and is hereby, vested in the person to whom such alienation, grant, or order of survey was made, or in his legal representatives. Provided, that nothing in this act contained, shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate.'
There are two facts to be collected from this description of the lots embraced in this section of the act, which must be kept in view in deciding this question, viz. that the lots on the west side of Water street were known under the Spanish government as water lots; and that the lots on the east side of Water street, are now known as water lots, and may properly be distinguished under the denomination of old water lots, and new water lots.
The only question for this Court to decide is, whether the state Court misconstrued this act, by deciding against the right and title set up under it by Pollard's heirs. The record states, that the Court charged the jury, that if the lot conveyed as above to John Forbes and Company, by the deed aforesaid, was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs, had been improved at and previous to the 26th day of May, 1824, (the date of the law,) and was east of Water street, and immediately in front of the lot so conveyed to John Forbes and Company, then the lot claimed passed by the act of Congress of the 26th of May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes and Company.
The facts hypothetically put by the Court to the jury had been fully proved in the affirmative, and indeed were not at all denied; to wit, that the lot conveyed to John Forbes and Company was known under the Spanish government as a water lot; and that the lot claimed by the plaintiffs had been improved previous to the 26th of May, 1824, and was in front of the lot conveyed to John Forbes and Company.
The construction therefore of the Court was, substantially, that the act conveyed the lot in question to the owners and occupants of the lot conveyed to John Forbes and Company. That such was the construction of the act given by the Court, is conclusively shown by the subsequent part of the charge: that it was immaterial who made the improvements on the lot in dispute on the east side of Water street. That by the said act of Congress, the proprietor of the lot on the west side of Water street, was entitled to the lot on the east side of it.
If this construction of the act was erroneous, and against the right claimed by the plaintiffs, the judgment must be reversed. The act is, undoubtedly, very obscurely worded, and its construction, it must be admitted, is doubtful.
The principal difficulty arises upon the true understanding and reference of the words, 'whereon improvements have been made:' whether they refer to improvements on the lot on the west side of Water street, or on the lot in question on the east side of Water street. The grammatical construction would undoubtedly refer the improvements to the lot on the west side of the street, and would be carrying into effect what is believed to be the general course of policy in most of the United States, of giving a preference to the owner of land on the shore of navigable streams of water, to the right and privilege of the land under the water between high and low water mark. And on the other hand, it would seem unjust, where actual improvements had been made on the land below high water mark, to disregard and take away such improvements, and give them to the owner of the lot on the west side of the street.
The evidence as to the extent and value of the improvements on the lot in question is very loose, and affords but little information upon that point. They could probably have been but of little value. They were made by Curtis Lewis, he not having any title, or even claim of title. And it is not reasonable to suppose, that under such circumstances, and from the short time he was in possession before the passage of this act, that he would have made very valuable improvements. And if the intention of Congress had been to give the lots on the east side of Water street to those who had improved them, it would have required but a very plain and simple declaration to that effect; and might have been just and equitable, if such improvements were valuable. But it is difficult to conceive how the phraseology in the act could have been adopted to indicate such intention.
It is not, however, necessary to decide upon the construction of this act, as between the conflicting claims of the owner of the lot on the west side of Water street, and those who had made improvements on the lot on the east side of that street. For there is excepted out of the act, all cases where the Spanish government has made 'a new grant,' or order of survey for the same, during the time at which they had 'the power' to grant the same: in which cases the right and claim of the United States are vested in the person to whom such grant or order of survey was made, or his legal representatives. And if the plaintiffs bring themselves within this exception, the right is secured to them. And this presents the question as to the construction to be given to this exception.
Two points of inquiry seem to be presented: one relates to the description of the grant or order of survey therein mentioned; and the other as to the time when made. The exception describes these grants or orders of survey as 'new grants' or orders of survey. The term 'new,' in its ordinary acceptation, when applied to the same subject or object, is the opposite of old. But such cannot be its meaning as here used: for there is no pretence that two grants or orders of survey, had at any time been issued for the same lot. Some other meaning must, therefore, be given to it. And it, doubtless, was used in relation to the existing condition of that part of the territory, when grants or orders of survey like the one in question were made. The territory had been ceded to the United States by the Louisiana treaty: but in consequence of some dispute with Spain respecting the boundary line, this part of the territory remained in the possession of Spain. And it is a fact, established by the public documents, and laws of Congress, and cases which have come before this Court, that during the period between the cession by France, and the acquiring possession by the United States, Spain continued to issue evidences of title of various descriptions; some complete grants, and others, which were only inchoate rights or concessions. And the term 'new' was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession. And this construction is rendered certain, when the description of the grants is connected with the subsequent part of the sentence as to the time when made, to wit, during the time at which the Spanish government had 'the power' to grant the same. This time, according to every reasonable intendment, must have been so designated with reference to the existing state of the territory as between the United States and Spain: the right to the territory being in the United States, and the possession in Spain. The language, 'during the time at which Spain had the power to grant the same,' was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case, if Spain had full dominion over the territory, by the union of right and possession; and in this view it is no forced interpretation of the word power, to consider it here used, as importing an imperfect right, and distinguishable from complete lawful authority. And indeed no other sensible construction can be given to the language here used: and the course of the government of the United States, with respect to the claims originating during this period would seem necessarily to call for this construction. The act of Congress of the 25th of April, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the river Mississippi, and west of the river Perdido, and falling within the cession by France; embraced all claims of this description; it extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British, or Spanish governments. And the reports of the commissioners show that evidence of claims of various descriptions, issued by Spanish authority down to the year 1810, came under the examination of the commissioners: and the legislation of Congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain, at St. Ildefonso.
Such claims are certainly not beyond the reach of Congress to confirm, although it may require a special act of Congress for that purpose; and the present claim being founded upon such act, distinguishes it from the doctrine of this Court in the cases of Foster and Elam vs. Neilson, 2 Peters, 253; and Garcia vs. Lee, 12 Peters, 511. And such claims have been recognised by this Court as existing claims, and not treated as being absolutely void. In the case of Delacroix vs. Chamberlain, 12 Wheat. 599, an order of survey issued during this period, came under the consideration of the Court. It bore date in the year 1806. The Court said, this order of survey was not sufficient to support an action of ejectment not having been recorded or passed upon by the board of commissioners so as to vest a legal title. But the Court observed, that this order of survey bears date at a time when the Spanish authorities were in the actual possession of Mobile, where the land lies, and it was claimed as a part of the Floridas, then belonging to the Spanish crown; and the United States claimed it as a part of Louisiana. That the United States, having since purchased the Floridas, without having previously settled the controverted boundary, rendered it unnecessary to examine these conflicting claims. And the Court add, if the United States and Spain had settled this dispute by treaty, before they extinguished the claim of Spain to the Floridas, the boundary fixed by such treaty would have bound all parties. But as that was not done, the United States have never, so far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory, while Spain was in the actual possession of it, from concessions of a similar character made by Spain, within the acknowledged limits. We will not, therefore, raise any question upon the ground of want of authority in the intendant to make such concession. Nothing more is to be understood from this case, than that the Court did not consider the circumstance that the concession being made whilst Spain was in the actual possession of the territory, had prevented Congress from acting on the subject of such concessions. And when Congress, in the act of 26th of May, 1824, excepts certain grants or orders of survey, made by Spain during the time at which they had the power to grant the same: the conclusion is irresistible, that it included grants like the one to William Pollard, now in question. This grant bears date on the 9th day of December, in the year 1809, and was rejected by the commissioners for want of improvement and occupation; and not because it was absolutely void. But suppose it had been void under the then existing laws in relation to these lands, it could not prevent Congress from afterwards confirming this grant. The act of the 26th of March, 1804, (2 Story, 939, sec. 14,) declaring certain grants void; could not affect the one to Pollard, which was made in the year 1809, after the passage of that law.
But if the construction of the act of the 26th of May, 1824, is doubtful, as it is admitted to be, the act of the 2d July, 1836, is entitled to great weight in aiding to remove that doubt. It is an act specially for the relief of William Pollard's heirs. It declares, that there shall be, and hereby is, confirmed unto the heirs of William Pollard, deceased, a certain lot of ground, situated in the city of Mobile, and bounded as follows, to wit: On the north by what was formerly known as John Forbes and Company's canal; on the west by Water street, on the south by the King's wharf, and on the east by the channel of the river; being the description of the lot now in question; and directing a patent to be issued in the usual form for the same. There is a proviso, declaring that this act shall not interfere with or affect the claims of third persons. But giving to this proviso its full force and effect, the enacting clause is a legislative construction of the act of 1824, and locates the patent thereby directed to be issued upon the lot now in question. They are acts in pari materia, and are to be construed together; and in such a manner, if the language will reasonably admit of it, as to permit both acts to stand together and remain in full force. It is not to be presumed, that Congress would grant or even simply release the right of the United States to land confessedly before granted. This would be only holding out inducements to litigation. And these two acts cannot stand together without considering the lot in question as coming within the exception of the act of 1824; and the act of 1836, as a confirmation, (as it purports to be,) of the title to the heirs of William Pollard.
The judgment of the Supreme Court of the state of Alabama is, accordingly, reversed.

## 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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