Burgess v. Gray et al.

Now the claims embraced in the second section of the same act, do not necessarily fall under this head; if they do, then the second section was superfluous; the board having full power, under the fourth section, to decide such claims as are described in the second. But that the subject-matter of the second section was not intended to be referred to the board, is made plain by the eighth section, which says that the commissioners shall report to the Secretary of the Treasury, their opinion on all the claims to land, which they shall not have finally confirmed by the fourth section of this act.

If the law had intended that they should act on claims in the second section, that section would have been included in the above clause, and it would read, "shall not have finally confirmed by the second and fourth section of this act." The report would be in these words: The commissioners would have confirmed such and such a claim, by virtue of the second section of the act of March, 1807, but for such and such defects. This was generally the style of their negative reports. But we see that the claims under the second section, were not subjects on which they were authorized to report adversely upon; of course they were not subjects on which they would act at all.

Again, the second section makes no allusion to the claims therein described, being recognized and valid by the laws and usages of the country; on the contrary, we are bound to infer that Congress did not consider them as so recognized, and therefore singled them out as the special objects of their bounty. There were but two classes of claims recognized by the Spanish; both were described by the first and second sections of the act of 2d of March, 1805. The first was some written evidence of title, a concession or warrant, or order of survey; the second was a mere verbal permission occupy and cultivate, hence it was called a "Settlement Right."

Now, the claims in the second section cannot come under the head of "Settlement Rights." A settlement right could not exceed eight hundred arpens, and required inhabitation and cultivation to give it validity. The claims under the second section largely exceed the quantity in a settlement right, and only required proof of possession, which does not necessarily involve inhabitation or cultivation. Hence, I conclude that the subject-matter of the second section, was not intended to be referred to the Board of Commissioners for their action.

Let us now examine the second section in its own terms. If the claimant was an inhabitant of the territory at the change of government, and was still in possession at that time, if the tract claimed had acknowledged and ascertained boundaries, not exceeding two thousand acres and not adversely claimed,

Burgess v. Gray et al.

his title shall be confirmed. If the second section stood by itself, no one would fail to construe these words into a present grant, being in all respects similar to the two cases above cited. If then, the words of the section are sufficient to create a present grant, it is a forced construction to prevent them from having that effect, and to throw the confirmation on the future decision of a Board of Commissioners for the reasons already given. First, if the board had power to act on the subject, the second section was superfluous. Second, the eighth section implies an exclusion of the second from the jurisdiction of the board. Third, the language of the second section, leads us to presume that the Legislature did not think that the claims therein embraced, were recognized by the Spanish laws and usages, or they would have left them to be decided by the commissioners under their general powers.

The proviso of the second section puts it beyond doubt, that the claims were intended to be confirmed by force of the act itself. The proviso says, that no claim to a lead mine or salt spring shall be confirmed merely by virtue of this section. The necessary inference is, that a tract of land, not containing a lead mine or salt spring, but in other respects complying with its terms, shall be confirmed merely by virtue of this section. It may be said, that this proviso was intended as an instruction. to the Board of Commissioners; but the fourth section, which confers the powers on the board, and imposes limitations on them, has this very same prohibition. This affords us good evidence of the meaning of the Legislature. They did not intend under any circumstances to confirm a lead mine or a salt spring; therefore, in the second section, where they intended to confirm certain claims, merely by force of the section, they introduced a proviso exempting lead mines and salt springs from its operation; and in the fourth section, where full powers are given to the board to decide all French and Spanish claims, they introduced a claim imposing the same restriction on them, in regard to lead mines and salt springs. This is the only way, in which we can give an independent existence to the second section and preserve it from being a mere superfluity.

There is nothing in the words of the section, that necessarily requires further action on the part of the Legislature or its ministerial agents. All that the claimant would have to do, when his right is brought in question, is to show that he comes within the provisions of the statutes, just as the claimants of village lots under the act of the 13th June, 1812. He will have to establish his title by showing a tract, not exceeding two thousand acres, with defined and ascertained limits; proving uninterrupted possession for ten consecutive years; residence in the

Burgess v. Gray et al.

province and possession at the time of the change of government. These facts would work a title in him, having relation back to the time of the passage of the act.

Second Proposition. The next statute on which we rely for a confirmation, is the second section of the act passed April 12, 1814, entitled "An act for the final adjustment of land titles in the State of Louisiana and Territory of Missouri."

(The argument of Mr. Garland, upon this proposition, is too long to be inserted.)

Third Proposition. If the court are not sat.sfied, that the claim of John Jarrott was confirmed by the acts we have been commenting on, there is another view of the case, to which I would now ask their attention.

By the facts set forth in the petition, and admitted to be true by the demurrer, it seems that Jarrott had been in possession of the land more than ten consecutive years prior to the 20th December, 1803; that it did not exceed in quantity two thousand acres, and that he was an inhabitant of the territory, and still in possession on that day. By the second section of the act 3d March, 1807, he was entitled to a confirmation from any tribunal authorized to act on the subject. The claim was presented to the Recorder of Land Titles, and by him rejected, it was reserved from sale by the act of 17th February, 1818, third section. It was afterwards surveyed and marked on the books of the Surveyor General and on the books of the Register, as reserved to fill the claim of John Jarrott. In 1824 an act was passed authorizing the representatives of certain French and Spanish claims to prosecute them before the District Court. Various other acts were subsequently passed on these claims which it is not necessary to mention. On the 17th June, 1844, an act was passed reviving for five years the act of 1824.

The claim of John Jarrott did not come within the purview of these statutes. The act of 26th May, 1824, gave jurisdiction to the District Court over claims to lands, "by virtue of any French or Spanish grant, concession, warrant or order of survey legally made, granted, or issued before the 10th day of March, 1804," by the proper authorities. Jarrott's claim was neither a grant, a concession, a warrant, or order of survey; it was founded on verbal permission only, and was called a settlement right; as such it was filed, and as such it was acted on by the Recorder. That it did not come under the jurisdiction of the court, is put beyond question by a comparison of other statutes on the same subject. On the 9th of July, 1832, an act was passed creating a Board of Commissioners "to examine all the unconfirmed claims to land in that State, (Missouri,) heretofore filed in the office of the Recorder according to law, founded upon any incomplete

Burgess v. Gray, et al.

grant, concession, warrant, or order of survey, issued by the authority of France or Spain, prior to the 10th day of March, 1804." It will be perceived that the class of claims embraced in this statute is precisely the same as that in the act of 1824, over which the District Court took cognizance. They were claims originating in a grant, concession, warrant, or order of survey. Donation or settlement claims were not embraced; accordingly Congress passed a supplemental act embracing those claims.

On the 2d of March, 1833, it was enacted that the provisions of the act of the 9th of July, 1832, shall be extended to, and embrace in its operations every claim to a donation of land in the State of Missouri, held in virtue of settlement and cultivation. This supplement shows the understanding of the Legislature, and proves that Jarrott's claim, which was a "donation-right," was not embraced by the act of 9th of July, 1832, and consequently not by the act of 26th May, 1824, giving jurisdiction to the court, to precisely the same class of claims.

Since writing the above, I have seen the opinion of this court. in the case of the United States v. Rillieux, 14 Howard, 189, which fully sustains the conclusion that the District Court had no jurisdiction in this case.

After the act of 1818, reserving this tract from sale, there was no other statute operating on it till the supplemental act of March, 1833, extending the provisions of the act of 1832, to donation and settlement rights. It was made the duty of the Commissioners to examine all the unconfirmed claims heretofore filed in the office of the Recorder, to take additional testimony, if they thought proper, in regard to those claims, and then to class them so as to show, first, what claims, in their opinion, would in fact have been confirmed under former authorities, and, secondly, what claims, in their opinion, are destitute of merit. They were required to proceed, with or without any new application of the claimants, and to lay before the Commissioners of the General Land Office a report of the claims so classed, to be laid before Congress for their final decision upon the claims contained in the first class.

The third section then enacts, "that from and after the final report of the Recorder and Commissioners, the lands contained in the second class shall be subject to sale as other public lands, and the lands contained in the first class shall continue to be reserved from sale as heretofore, until the decision of Congress shall be made thereon." Jarrott's claim was not embraced in either class, it was not acted on at all. The law made it the duty of the Board to proceed without further application. The claim was regularly filed in the office of the Recorder; the Commissioners might take additional testimony if the case required it. The

Burgess v. Gray, et al.

representatives of Jarrott had nothing to do; they could only wait in silence the action of the board. Their claim was overlooked or not reached; the board made their final report, and dissolved. Now, it is a well settled principle of law that no person shall suffer in his rights in consequence of the delay or neglect of government officers. This tract of land stands reserved from sale, as heretofore, to fill the claim of John Jarrott's representatives.

In Menard v. Massey, 8 Howard, 309, this court have said: "That this provision (section 6th of act 3d March, 1811,) is an exception to the general powers conferred on the officers to sell, is not an open question; having been so adjudged by this court in the case of Stoddard's Heirs v. Chambers, reported in 2 Howard; and again, at the present term, in the case of Bissell v. Penrose. Nor is it an open question, that the act of February 17, 1818, folio 3, reënacts and continues in force the exception as respects such lands. This was also decided by the above cases; and that such was the opinion of Congress, is manifest from the third section of the act of 9th July, 1832, under which the last Board acted; for it declares that lands of the first class shall be reserved from sale as heretofore." Now it is manifest that lands not classed at all, not acted on by the Board, must continue reserved from sale as heretofore. We can come to no other conclusion without admitting that the neglect or delay of public officers can deprive a person of his rights, which is not consistent with law or justice.

The Supreme Court of Missouri, in a similar case, have held that the lands continue to be reserved as heretofore. In Perry v. O'Hanlon, 11 Mo. 596, they say: "What then was the condition of the land, the title to which is now in controversy, in 1847, when the patent issued? The act of July 9th, 1832, directed the Commissioners to divide the claims submitted to them into two classes. The first class was to embrace such claims as, in their opinion, were meritorious and ought to be confirmed; and the second class, to include such as were destitute of merit. The act declared that, after the final report of the Board, the lands embraced in the second class should be subject to sale as other public lands; that the lands contained in the first class should be reserved from sale until the final action of Congress thereon. Congress finally acted on this report in 1836; and the act, July 4, 1836, confirmed the claims recommended by the Commissioners, with certain exceptions specified in the act. Perry's claim was not in the second class, for it was never rejected by the Board; it was not in the first class, for it not reported for confirmation. How then has the reservation been removed? By the act of 1832, this land was expressly

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