Kennedy's Executors et al. v. Hunt's Lessee et al. JOSHUA KENNEDY'S EXECUTORS ET AL., PLAINTIFFS IN ERROR, v. LESSEE OF JONATHAN HUNT, JOHN HAGAN ET AL., DEFENDANTS IN ERROR. Forbes and Company obtained a grant of land in 1807 from Morales, Intendant-General under the Spanish government, which land was adjacent to Mobile, in West Florida. This grant purported to be, in part, the confirmation of a concession granted in 1796 and surveyed in 1802. The survey terminated at high-water-mark upon the river. The grant of 1807 included the land between the then bank of the river and the high-water-mark of 1802. This grant of 1807 was excepted from the operation of the act of Congress passed on the 26th of March, 1804, which annulled all Spanish grants made after the 1st of October, 1800, and was recognized as a valid grant by the act of 3d March, 1819. An act of March 2d, 1829, confirmed an incomplete Spanish concession which was alleged to draw after it, as a consequence, certain riparian rights conflicting with those claimed under the grant of 1807. A decision of a State court, giving the land covered by these riparian rights to the claimants under the grant of 1807, was only a construction of a perfected Spanish title, and cannot be reviewed by this court under the twentyfifth section of the Judiciary Act. It did not draw in question an act of Congress or any authority exercised under the Constitution or laws of the United States. 1 THIS case was brought up from the Supreme Court of the State of Alabama, by a writ of error, issued under the twentyfifth section of the Judiciary Act. The facts in the case are sufficiently set forth in the opinion of the court. It was argued by Mr. John O. Sargent and Mr. Johnson, for the plaintiffs in error, and by Mr. Underwood and Mr. Sargeant, for the defendants in error. The points made by the counsel for the plaintiffs in error were the following. [*587 *The action was ejectment brought by plaintiffs below in the Circuit Court for Mobile county, to recover a piece of ground and ground covered with water, on Mobile River. Plaintiffs gave in evidence the Spanish Orange Grove grant of 1807 to Forbes & Co., and the act of Congress entitled, "An act adjusting the claims to land, and establishing landoffices in the districts east of the island of New Orleans," passed 3d March, 1819. (3 Stat. at L., 528.) Defendants gave in evidence a Spanish concession of 1798 to Thomas Price, and an act of Congress of 2d March, 1829, ¡CITED. Moreland v. Puge, 20 How., 523. Kennedy's Executors et al. v. Hunt's Lessee et al. entitled, "An act confirming the reports of the register and receiver of the land-offices for the district of St. Stephens, in the State of Alabama, and for other purposes," confirming said title by United States with surveys, location, certificate, report, and patent by United States to Joshua Kennedy, and the mesne conveyances from Price to defendants. (4 Stat. at L., 358.) I. The right of the defendants to the land in controversy was asserted under the act of 1829, and the decision of the court below was against that right. This brings the case clearly within the twenty-fifth section of the Judiciary Act. In 1798, Price prayed Governor Gayoso to grant him a tract of twenty arpens by thirty, bounded on the east by the lots in the town of Mobile, and the river of said town. The donation was ordered accordingly, November 10, 1796. In 1806, it was confirmed by the commandant, according to a plan accompanying his petition, and the deputy surveyor was ordered to survey the tract and make the boundaries, according to a "copy from the surrounding survey.' This tract, thus bounded, was confirmed by the act of 1829. The patent, plan, survey, &c., all show that the confirmation contemplated the original boundaries; one of which, on the east, was the River Mobile. Defendants insist that they are still entitled to go to the river, as one of their eastern boundaries; that the act of 1829 operated to confirm the title of Price to the tract described in the concession of 1798. The decision of the court below was against the title or right set up under this act. II. The court below charged the jury that the construction of the plaintiffs' (Forbes & Co.) grant as confirmed would authorize them to go to the channel of the river; and that the boundaries of the plaintiffs' grant must be run and continued eastwardly till they reach the channel of the river. Defendants excepted. The grounds of exception are not specifically stated. It is *supposed that the exception lets in all legal objec*588] tions of which the defendants could have availed themselves below. They appear in the record certified from the Supreme Court, and are alluded to in the opinion of the court. They set up the act of March 2, 1819, entitled, "An act to enable the people of the Alabama Territory to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States," as a bar to the plaintiffs' claim, by establishing Kennedy's Executors et al. v. Hunt's Lessee et al. an outstanding title to the land in controversy in the State of Alabama. This is supposed to be a perfect defence. If the United States, on the 2d of March, 1819, dedicated the shore of Mobile River to Alabama, they could not grant it subsequently to an individual, or confirm an invalid Spanish grant to make it so operate. The court below decided, in effect, that the act in question did not vest the shore in Alabama, and that Congress could grant it to an individual. It is apparent on the record, that the construction of this statute was called in question, and that the judgment of the State. court would not have been what it is, if there had not been a misconstruction of this statute to the injury of the defendants below, or a decision against the validity of the right, title, privilege, or exception set up under it; or, in other words, the question is necessarily involved in the decision, and the State court could not have given the judgment or decree which they passed without deciding it. (3 Pet., 398; 16 Pet., 285.) III. The court below refused to charge, that, if the jury believed the line of division between the Forbes and Price grants was drawn by authority of the United States, and surveyed and patented to Price's assigns, and being a United States survey and location of both tracts, such survey was binding on the plaintiffs, and the said two titles would cease where such survey ceased to the east, and the riparious rights would commence where such survey ceased, according to the front of each. Defendants excepted. The court below charged that the grant of the plaintiffs, being confirmed by the act of 1819 as a complete title, it could not be affected or limited by any survey made by the authority of the United States, and that the jury should find without any regard to any such survey. Defendants excepted. Defendants insist that the surveys in evidence were made by authority of the United States, under the acts of 1819 and 1829, and of other acts providing for the survey and location of claims to land in the township of Mobile. *They further insist, that, by their charge, and their refusal to charge as requested, and their rejection of [*589 the United States surveys, the court ruled against the validity of an authority exercised under the United States. IV. Both parties claim under acts of Congress; the defendants below under that of 1829, confirming the concession to Price; the plaintiffs under that of 1819, confirming the invalid Spanish grant to Forbes & Co. The decision could not but Kennedy's Executors et al. v. Hunt's Lessee et al. be against the right set up by the defendants under the one statute, if it was in favor of the right set up by the plaintiffs under the other. The record sets out the title on each side, together with the facts and the charge of the court; from which it appears, that the decision of the State court of Alabama was opposed to the right of the plaintiffs in error, the judgment of the Circuit Court having been affirmed. The construction and application are called for of the acts of Congress on which the controversy depends. In the City of Mobile v. Eslava, 16 Pet., 249, Mr. Justice Catron cites Matthews v. Zane, 4 Cranch, 382; Ross v. Barland, 1 Pet., 664; Wilcox v. Jackson, 13 Pet., 509; Pollard's Lessee v. Kibbe, 14 Pet., 353, as establishing the doctrine, that where both sides claim under acts of Congress, and come to this court under the twenty-fifth section for their construction, the court proceed upon the whole case, and for either side. On the whole, it is manifest from the record that the judg ment of the court below could not have been what it is, if there had not been a decision against the right and title set up by the defendants below under the act of 1829; or against the defence they set up under the act of the 2d of March, 1819; or against the validity of an authority exercised under the laws providing for the survey and location of claims in the township where the land in controversy lies. The counsel cited the following authorities in support of the jurisdiction of the court. Pollard's Lessee v. Kibbe, 14 Pet., 360; Wallace v. Parker, 6 Pet., 687; Owings v. Norwood's Lessee, 5 Cranch, 344; Harris v. Dennie, 3 Pet., 298; Davis v. Packard, 6 Pet., 48; Wilson v. Blackbird Creek Marsh Co, 2 Pet., 250; Martin v. Hunter's Lessee, 1 Wheat., 355; Miller v. Nicholls, 4 Wheat., 311; Williams v. Norris, 12 Wheat., 117; Mobile v. Eslava. 16 Pet., 249; Craig v. State of Missouri, 4 Pet., 427; Chouteau v. Eckhart, 2 How., 372; Matthews v. Zane, 4 Cranch, 382; Ross v. Barland, 1 Pet., 664; Wilcox v. Jackson, 13 Pet., 509. 590*] *Mr. Justice CATRON delivered the opinion of the court.. This case comes here by writ of error to the Supreme Court of Alabama, under the twenty-fifth section of the Judiciary Act of 1789, and the first question made by the defendants in error is, whether any matter presented by the record will authorize this court to exercise jurisdiction under the Kennedy's Executors et al. v. Hunt's Lessee et al. twenty-fifth section. And to ascertain how far, if at all, the powers of this court can be called into exercise, the facts and the laws bearing on them must be stated in something of detail; as in this case, in common with many others, it is found much more difficult to settle the question of jurisdiction, and how far it extends, than it would have been to decide the merits of the controversy had the cause been brought here by writ of error to a court of the United States. Hunt, Hagan, and others, sued in ejectment Kennedy's executors and other tenants in possession, for about ten acres of land lying in the city of Mobile, in the State Circuit Court. The plaintiffs claimed title to the premises sued for under a grant made to John Forbes & Co. in 1807, by Morales, Intendant-General under the Spanish government in the province of West Florida, Spain being then in possession of the province and exercising jurisdiction. The grant, by its recitals, purports to be, in part, the confirmation of a concession, and survey founded on it, of earlier dates; say 1796 and 1802, in favor of Panton, Leslie, & Co., to which firm Forbes & Co. were successors. The concession was surveyed in 1802 by Collins, an authorized surveyor under the Spanish government, and its eastern boundary terminated on the bank of the Mobile River, at high-water-mark; the survey contained two hundred and sixty-three acres, equal to about three hundred arpens. To the extent of Collins's survey there is no controversy, but Forbes & Co. solicited the Intendant-General in 1807 to grant them the flowed land lying east of the eastern boundary of the survey, and between the same and the channel of the river, and which the Intendant proceeded to do, in the following terms:-"And as the distance that is observed in the map from the river to the boundary-lines of the land, which was left vacant at that time in consequence of its having been impassable, has since become of great use to the claimants, having constructed levels and the necessary drains, in consideration of which it has been granted to them as a compensation for their labor thereon invested, with the reserve such as necessary to allow a free passage along the bank of the river, without altering the figure of the tract on either of the other sides. Wherefore, using and exercising the powers which the king our lord-God preserve him!has conferred on me, I do *in his royal name confirm [*591 and ratify to the aforesaid John Forbes & Co. the possession of the three hundred and ten arpens, seventy-seven perches and one eighth, already mentioned, and which are contained in the map (No. 1809), with the corrections made by the surveyor-general, in order that they may own and pos |