# Lessee of Pollard's Heirs v. Kibbe

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## Concurring Opinions

    McLean
    Baldwin

## Dissenting Opinions

    Barbour
    Catron
United States Supreme Court
39 U.S. 353
Lessee of Pollard's Heirs v. Kibbe
IN error to the Supreme Court of the state of Alabama.
In the Circuit Court for the county of Mobile, state of Alabama, an action of ejectment for a lot of ground situated in the city of Mobile, was instituted by the plaintiffs in error, and was afterwards removed, by change of venue, to the Circuit Court for the county of Baldwin. It was tried before a jury in that Court, and on the trial, the plaintiffs filed a bill of exceptions to the charge of the Court. A verdict and judgment were given for the defendant. From this judgment of the Circuit Court, the plaintiffs prosecuted a writ of error to the Supreme Court of the state of Alabama; and the judgment of the Circuit Court, in favour of the defendant, was affirmed by the Supreme Court.
The plaintiffs prosecuted this writ of error to the Supreme Court of the United States, under the twenty-fifth section of the Judiciary Act of 1789.
'The following is the bill of exceptions filed by the plaintiffs, on the trial of the cause in the Circuit Court of the county of Baldwin.
On the trial of this cause at the above term, the plaintiffs, to maintain the issue on their part, gave in evidence an instrument signed by Cayetano Perez, written in the Spanish language, a translation of which is hereto annexed, as part of this bill of exceptions, but which instrument was shown to have been reported against, and rejected, by the commissioners appointed by the United States government to investigate and report on such matters, because of the want of improvement and occupancy.'[THE SPANISH GRANT, TRANSLATED.
'Mr. Commandant:
'William Pollard, an inhabitant of the district, before you, with all respect represents: That he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof; and that having found a vacant piece at the river side, between the channel which is called 'John Forbes and Company's,' and the wharf at this place, he petitions you to grant said lot on the river bank, to give more facility to his trading; a favour he hopes to obtain of you.
'Mobile, 11th December, 1809.
WILLIAM POLLARD.'
Mobile, 12th December, 1809.
I grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant.
CAYETANO PEREZ.]
They further gave in evidence, an act of Congress, passed on the 26th day of May, 1824, entitled an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city. They further gave in evidence an act of Congress, passed July 2d, 1836, entitled an act for the relief of William Pollard's heirs. They then gave in evidence a patent, dated the 14th day of March, 1837, issued in pursuance of said act of Congress of the 2d of July, 1836, which patent embraced the premises in question. The plaintiffs further proved that in the year 1813 or 1814, some wreck and drift wood was removed from the place where the premises in question now are, by the hands of William Pollard, the grantee. The defendant gave in evidence a Spanish grant, dated 9th of June, 1802, to John Forbes and Company, for a lot of ground, for 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 as a perfect title, and so confirmed by act of Congress. Attached to the original grant was a certificate signed by W. Barton, Register, Wm. Barnett, Receiver, P. M.; Attest, John Elliott, Clerk; a copy of which is the following:
Land Office, Jackson Court House.
Commissioners Report, No. 2; Certificate, No. 3.
In pursuance of the act of Congress, passed on the 3d of March, 1819, entitled 'an act for adjusting the claims to land, and establishing land offices in the district east of the island of Orleans,' we certify that the claim No. 3, in the report of the commissioners, numbered 2, (claimed by John Forbes and Company, original claimant, Panton Leslie and Company,) is recognised by the said act as valid against any claim on the part of the United States, or right derived from the United States; the said claim being for eighty feet in front, and three hundred and four in depth, area 24,320 feet, situate in the town of Mobile, and claimed by virtue of Spanish grant executed by J. V. Morales, and dated 9th of June, 1802.
Given under our hands this 8th day of January, 1820.
W. BARTON, Register.
WM. BARNETT, Receiver, P. M.
Attest, JOHN ELLIOTT, Clerk.]
A map, or diagram, indicating the property claimed, as well as that covered by the above grant, with other lots, streets, &c., was submitted to the jury, and is to make a part of the bill of exceptions, by agreement between the counsel of the parties.
According to that map and the proof, the lot sued for is east of Water street, and also 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. The proof showed that, previous to 1819, then, and until filled up, as after stated, the lot claimed by plaintiffs, was at ordinary high tide, covered with water, and mainly so at all stages of the water; that the ordinary high water flowed from the east to about the middle of what is now Water street, as indicated on the map referred to, between the lot claimed by plaintiffs, and that covered by the grant to John Forbes and Company. It was proved that John Forbes and Company had been in possession of the lot indicated by their deed 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.
It was proved that, in the year 1823, no one being then in possession, and the same being under water, Curtis Lewis, without any title, or claim under title, took possession of, and filled up east of Water street, and from it eighty feet east, and thirty-six or forty feet wide, filling up north of Government street, and at the corner of the same, and Water street; that Lewis remained in possession about nine months, when he was ousted in the night by James Innerarity, one of the firm of John Forbes and Company; who caused to be erected a smith shop, and from whom Lewis, sometime after regained possession by legal process, and retained it till he conveyed the same. Proved, that when said 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 controversy, with the said grant to John Forbes and Company, also, with the said Curtis Lewis, also, with the mayor and aldermen of the city of Mobile: from each of which sources his title, if any, was derived by deed.
It was admitted by the parties to the suit, that the premises sued for were between Church street and North Boundary street; this was all the evidence introduced on the trial.
On this evidence, 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, 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 Court further charged the jury, it was immaterial who made the improvements on the lot on the east side of Water street, being the one in dispute; that by the said acts of Congress, the proprietor of the lot on the west side of Water street, known as above, was entitled to the lot on the east side of it. To which charges of the Court, the plaintiffs, by their counsel, excepted, and this was signed and sealed as a bill of exceptions.'
The case was argued by Mr. Test, and Mr. Webster, for the plaintiffs in error; and by Mr. Key, for the appellee.
For the plaintiff in error it was contended, that the charge in the Circuit Court of Baldwin county, was erroneous; and the judgment of the Superior Court of Alabama should be reversed:
1. Because plaintiff had a good title under his original grant, the confirmation thereof by the act of Congress of the 2d July, 1836, and the patent issued in pursuance thereof.
2. The construction put by the judge who tried the cause, on the act of May 26th, 1824, was not the true construction of that act.
3. The said charge to the jury was not warranted by the evidence set forth in the said bill of exceptions.
The counsel for the plaintiffs in error stated, that the question in the case was, whether the grant to Forbes and Company, dated 9th June, 1802, which had been confirmed by the commissioners of the United States on the 8th of January, 1820, conveyed the lot in front of the lot of Forbes and Company, which is now claimed by Pollard's heirs.
1. The plaintiffs had a good and valid title to this lot. They rely on the provisions of the act of Congress of 1826. They do not claim as riparian proprietors.
Pollard was in possession of the property, as is shown by the act of Congress of 1826; and the patent to him was granted under that law. The patent is the highest evidence of title, and the Court will not look beyond or behind it.
If the original grant by Governor Cayetano Perez was of no value, yet the act of 1836 gave it life, and made it a legal, valid, and indisputable title, against any equitable title; and the defendants have nothing but an equitable title. Cited, the act of Congress of the session of 1836, 1837.
The defendants claim under an act of Congress granting certain lots to the city of Mobile. 3 Story's Laws U.S. 2071. A proper construction of this law negatives this claim. The law gives a title to what is now called 'a water lot;' not to what were called 'water lots' by the Spanish law.
Under the Spanish laws, grants were extended into the river; and no water lots were granted unless particularly described to be such, and so granted. The defendants exhibited no grant, specially de scribing the lot to be a water lot.
The grant of the lot, by the act of 1836, recognises the lot for which the plaintiffs in error contend, as a lot under a 'new grant' of the Spanish government; and the lot is given to the heirs of Pollard, the lessors of the plaintiffs in error. The defendants claim under the act of Congress of 1824; and the act of 1836 is a legislative construction of that act.
The jurisdiction of the Court in this case depends upon the question, whether an act of Congress has been misconstrued by the Supreme Court of Alabama. Has this been so?
It has been said that the original grant by the governor of Florida has been treated with scorn, and is of no value. That grants of this description having been for lands within the territory claimed by the United States, under the cession treaty of Louisiana, have always been disregarded. This is not so. Congress have in more than a thousand instances respected and confirmed such titles.
In regard to the contest between the United States and Spain, under the Louisiana treaty, relative to the lands lying west of the river Perdido, possession of those lands was not obtained until 1823. The condition of a country between the time it has been ceded, and the time when it is taken possession of, is determined by the law of nations. The rule of that law is, that nothing is changed until possession is taken of the country.
It is not admitted that Congress could, before the United States took possession of the country, pass laws abrogating the established laws of Spain. Governments are of all others the parties on which the laws of the country which may have acquired the country by treaty, do not operate before they are in possession.
It has often been decided in this Court, that the government which is in possession of a country may make grants. In the case of The State of Rhode Island vs. The State of Connecticut, 12 Peters, 748, the Court say, 'When a territory is acquired by cession, or even conquest, the rights of the inhabitants to property are respected and sacred. Grants of land by a government de facto, of parts of a disputed territory in its possession, are valid against the state which had the right. 8 Wheat. 509. 12 Wheat. 535. 6 Peters, 712. 8 Peters, 445. 9 Peters, 139. 10 Peters, 330. 718.
The act of Congress of 1804, speaks of and relates entirely to past cases. See act of 26th March, 1804, sec. 14. It declares the titles referred to in it to have been, and to be, null and void. Land Laws, 500.
There is no objection to the title of the plaintiffs in error, on the ground that it was not confirmed by the commissioners of the United States. Their decision does not disaffirm the title. After the refusal of the commissioners to allow it, an action may be brought upon it.
Was the grant refused by the commissioners because of the provisions of the treaty for the cession of Louisiana? The commissioners say it was refused 'because of the want of proof of cultivation and occupation.' Grants made after the treaty have been confirmed in many cases: among them a grant to Forbes and Company.
There was a title in the heirs of Pollard under the grant, but the Supreme Court of Alabama decided upon the act of Congress of 1824. The grants made after the treaty have been so often confirmed, that the circumstance shows what was meant in the act of Congress under which the plaintiff in error claims, by 'new grants.' 'New grants' referred to the period of the treaty. The treaty was an epoch from which grants were characterized as new grants.
The grant to Forbes and Company, under which the claim of the plaintiffs in error is opposed, is for three hundred and four feet. It is nowhere said to go to the river. Thus, if a riparian right is claimed, at the common law, it is negatived by the description of the lot. The grantees are limited to the feet and inches stated in the grant, and have no claim to say the grant extends to high water mark.
The act of Congress of 1824, shows that the grants by the Spanish government did not give riparian rights. If the grantees had such rights, why apply to Congress to allow them? The plaintiffs in error had an equitable title before 1824, which should have been protected. The subsequent act gave them a legal title.
The Courts of Alabama have misconstrued the acts of Congress. A construction has been given to the act of 1824, which rides over the title of the lessors of the plaintiffs in error; and this Court only can correct the judgment of the state Court. By the act of 1824, all the lots which belonged to no one, were given to the city of Mobile; but the first section of the act takes no title, equitable or legal, from any one.
The construction of the second section of the act of 1824, which is claimed for the defendant, is such as will take away the property of another person. That construction is: If you find an improved lot, give it to the person who has an improved lot above it: thus giving the lot to one who had no agency in the improvement. This is against the grammatical construction of the law, and against the just intentions of the national legislature. This will not be sustained by the Court, unless they will allow one person to take the property of another without compensation, and that the fair grammatical construction of the law shall be disregarded. The object of the law of 1824 was to give lots not granted by the Spanish government, after the Louisiana treaty; styling such concessions 'new grants' to the persons mentioned in the acts. 'New grants' were excepted, and were left to the legislation of Congress.
Mr. Key, for the defendants.
The case presents but few points for the consideration of the Court. It is admitted on the part of the plaintiffs in error, that in 1824 the legal title to the lot in controversy was in the United States. If this was so, by the act of Congress of 1824 it became vested in the defendants. Before 1824, the defendants had an equitable title, which was made a perfect legal title by that act.
By the decisions of this Court, in Foster and Elam vs. Neilson, 2 Peters, 253; and Garcia vs. Lee, 12 Peters, 511, Spanish grants, made for any part of the territory west of the Perdido, after the treaty of 1803 with France, by which Louisiana was ceded to the United States, are declared void. No equitable title under the Spanish grant, made after 1803, could exist against the United States.
The whole question between the parties in this case depends on the act of Congress of 1824. It is to be admitted, that if this act is applicable to the title of the plaintiffs, the title is complete. If the title they claim is within the exception in that act, why ask or take a title under the act of 1836?
The title of the defendants is under a Spanish grant of 1802, which has been confirmed by the United States. The grant was for ground to which the lot claimed by the plaintiffs in error was an accretion. After the treaty of 1803, the riparian rights by the common law, gave the right to this lot to Forbes and Company. Whatever was the Spanish law before the treaty, afterwards, the common law prevailed.
A just construction of this act of Congress of 1824, gives the lot to the defendants; and the judgment of the Supreme Court of Alabama should be sustained by this Court.
Mr. Justice THOMPSON 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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