# Lessee of Pollard's Heirs v. Kibbe/Dissent Catron

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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
Mr. Justice CATRON, dissenting.
The town of Mobile was first settled and governed by France; and by the treaty of 1763, ceded to Great Britain, and attached to Florida: by the treaty of 1783, Florida was ceded by Great Britain to Spain. Florida proper, previous to the treaty of 1763, extended to the river Perdido, and only included the country east of it; which river was the boundary between France and Spain, from the first settlement of the country up to 1763. 2 Peters, 300. After 1783, and up to 1800, Spain owned Florida and Louisiana; that power then retroceded to France Louisiana to the same extent it had when France owned it; that is, all west of the Perdido; disregarding the fact that Great Britain had attached the country west of the Perdido to Florida, and that for the purposes of government, Spain, after 1783, had continued to recognise and govern as Florida, all the country east of the Mississippi, north of the Iberville, and south of our boundary in the 30° of latitude. But that the country passed to France as far east as the Perdido, by the treaty of St. Ildefonso of 1800, is the established doctrine of this government, and which is fully recognised by this Court. And by the treaty of cession of 1803, the French Republic ceded Louisiana to the United States, in full sovereignty, with 'all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices, which are not private property.'
Owing to the confusion growing out of the circumstance, that Great Britain, after 1763, had attached the country west of the Perdido to Florida, and Spain had, after 1783, treated and governed it as part of Florida; it was assumed by Spain, that no part of the province passed to France by the treaty of 1800, or to the United States, by the cession of France of 1803. And Spain, for some nine years after the cession, continued to hold and govern the country, and until we took forcible possession of it.
All title to the vacant lots and squares in the town of Mobile, having been vested in France, by the treaty of 1800, and in the United States, by the cession of 1803, no interest in the soil afterwards remained in the king and government of Spain; and all attempts to grant lands by that power were merely void. Such is the settled doctrine of this Court, as holden in Foster and Elam vs. Neilson, 2 Peters, and re-affirmed in Garcia vs. Lee, 12 Peters. So Congress has uniformly, from 1804, regarded our title, and the assumptions of Spain. 2 Peters, 304.
The rapid growth and extensive commerce of the city of Mobile, in 1824, rendered it expedient that the city should improve its facilities in regard to navigation; the bay in its front being shallow, extensive wharves and other improvements were indispensable. To accommodate the city, Congress passed an act (ch. 415) of that year, vesting in the mayor and aldermen, and their successors, 'for the sole use and benefit of the city, forever, the Hospital and Bakehouse lots; and also all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by that act, or any former act of Congress, and to which no equitable title existed in favour of any individual, under that act, or any former act.' The grant to extend to all public lots lying in front of the city, and between high-water mark and the channel of the river, and between Church and North Boundary streets. Such is the first section of the act; and if nothing more was found in it, there can be no doubt the city took the title to the square, a part of which is in controversy; as the only exceptions in favour of outstanding claims are those conferred by acts of Congress.
The plaintiffs' claim is founded on a concession made by the Spanish Governor of Florida, in 1809; and was a permit to William Pollard, to use and occupy, for the purpose of depositing lumber from his sawmill, the space between Forbes and Company's canal and the king's wharf. As the concession made in 1809 was wholly void, it is useless to inquire into its character; or the nature of the title intended to be conferred.
But it is insisted the claim is excepted from the first section of the act of 1824, by the second; which provides, that in case of any lot, &c., 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 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.'
The concession of 1809 was made in the face of the act of 1804, (ch. 38, sec. 14. 2 Story's Laws, 939,) pronouncing all grants by the Spanish authorities after the cession, void; Spain certainly had no power to make it, and therefore the act of 1824 does not cover the claim. If it had, a title in fee by force of that act would have vested in Pollard's heirs; and the special act of 1836, in their favour, been superfluous. But neither the parties interested, nor Congress, seem to have supposed the title confirmed by the act of 1824.
The statute also provides, that where improvements had been made on the new water lots east of Water street, that then the title should vest in the proprietor of the old water lot opposite, on the west side of said street; and on this provision, the charge of the Court below turned; that Court holding the title to the part of the premises in controversy to have vested in Forbes and Company, because it was improved at the date of the act of 1824; and that it was immaterial by whom the improvement has been made.
The the improvements referred to by the act must have existed on the new and eastern water lots, is, as I think, free from doubt: but that Forbes and Company could acquire a benefit from the improvement made by Lewis is somewhat doubtful: as, however, no critical construction of the act on this point is called for, none has been made. The act of 1824 passed the title to the property covered by the patent issued by virtue of the act of 1836, unless it was excepted from the first act, and this is the only question in the cause: for as the plaintiff must recover by the strength of his own title, it is immaterial whether the city of Mobile, or Forbes and Company, took by the act of 1824. The charge of the Court, in substance, held the patent on which the lessors rely to be void. On the admitted facts, I think it clearly was so; and that the reasons for the judgment, if proper on the whole case, are immaterial.
Such is the uniform rule in actions of ejectment, where a charge of an inferior Court is re-examined on a writ of error.
The defendant, however, shows himself clothed with the titles of the city of Mobile, of Forbes and Company, and of Lewis, on which, the Court pronounced him to have the better right; and, for the reasons above stated, I think, correctly.
This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Alabama, and was argued by counsel. On consideration whereof, if it ordered and adjudged by this Court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, reversed with costs; and that this cause be, and the same is hereby, remanded to the said Supreme Court, that such further proceedings may be had therein as to law and justice may appertain.
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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