THIS was an appeal from the District Court of the United States, for the Eastern District of Louisiana.
The history of the claim is fully set forth in the opinion of the court.
It was argued by Mr. Cushing, (Attorney-General,) for the United States, and submitted on a printed argument, by Messrs. Janin and Taylor, for the appellees.
The points made on the part of the United States were the following:--
1. That the claim of the petitioners, founded on the alleged grant by the Western Company is not open for discussion, the petitioners having taken no appeal from the decree of the court below, confirming their claim to the extent only of the forty-four arpens of front, and excepting even out of this confirmation the forty in depth on the front granted to the Acadians. But if it were, then every thing relating to that grant and its extent and locality, and what interest D'Auterieve had in it, are so vague and uncertain that it would be impossible to identify and locate the land, and the grant would have to be declared void.
2. That D'Auterieve, by accepting the new concessions from the Spanish authorities, thereby waived all claims under the grant of the Western Company.
3. That the edict of 1728, and the alleged order of O'Reilly reducing the extent of the lands and the granting of them to others, subsequent to the alleged concessions, are acts for which the petitioners can have no relief against the United States, being the acts of competent French and Spanish authorities during the time these powers held the sovereignty of the country.
The property, in the enjoyment of which the treaty stipulates that the inhabitants of the ceded territory were to be maintained and protected, was such property as stood recognized by Spain at the date of the treaty, as the private property of the inhabitants. The United States are not bound to recognize what Spain had not recognized.
4. That the evidence in the case shows that this claim was voluntarily given up and surrendered to the Spanish authorities in 1780, and the long silence from that time until 1836, shows that it had been abandoned by the claimant's ancestors, and the grants made by the Spanish authorities within the limits of the land claimed, to the Acadians and others subsequent to the surrender, show how they regarded the matter.
5. That there was no sufficient evidence of the concessions made by O'Reilly and Unzaga such as to enable the court below to take jurisdiction of the claim. None were produced, and there was no evidence of loss or contents. The act of 1824 limits the jurisdiction to claims founded on any grant, warrant, or order of survey. The letter of Unzaga to D'Auterieve is not a concession, and the recital in the certificate of survey of Andry is not evidence of the existence of the concession or of its contents.
6. That there is nothing in the case to authorize the side lines to be run to the Atchafalaya river. It is alleged in the petition that O'Reilly, at the time of his visit to point Coupee in December, 1769, whilst he reduced the front of the grant, allowed the original depth to the river to remain. The first thing to be done is to show that this was the depth of the French grant. There is not a particle of evidence to show that this was the original depth, or to show that O'Reilly sanctioned it. A supposition, even that he could have sanctioned it, is put to flight by the first article of his regulations, made 18th February, 1770, on his return to New Orleans, from his visit, which declares that grants on the borders of the river (the Mississippi) shall be forty arpens in depth. That this was the depth allowed by O'Reilly to D'Auterieve, is corroborated by the sale made by the widow of the latter shortly after his death, which conveys only to the depth of forty arpens.
As to Andry's plan and certificate of survey, they say nothing as to the rear boundary being the Atchafalaya, neither do they profess to state that he measured and run the side lines to any distance whatever; he merely marks their direction, without saying how far they run; disregarding the twelfth article of O'Reilly's regulations. The rear boundary cannot be ascertained from either or both of the plan and certificate of survey, and the lands cannot, therefore, be located, and the alleged concessions of O'Reilly and Unzaga must therefore be declared void, as being vague and uncertain.