John Catron

“ We come in the next place to discuss the merits; and here some general considerations present themselves. On the first settlement of Lower Louisiana, the nature of the country imposed on the governments who successively held it a peculiar policy in granting land to individual proprietors; the Mississippi River overflowed its banks annually, and to overcome this impediment to cultivation, and to reclaim the back lands, heavy embankments had to be thrown up on the sides of the river, so as to keep the water at flood-tide within the channel ”

“ Surgett made application to enter the lands now in controversy, lying immediately back of his river lots, at the same time making tender of payment therefor; which application and tender were refused, on the ground that the land sought to be entered bordered on a bayou, and was fit for cultivation, was consequently subject to private entry, and had actually been entered by others. ”

“ Supposing the swamp or slough described in the evidence, and delineated on the plat, to be a 'bayou' within the meaning of the act of Congress, still the decree of the Circuit Court was wrong, because some of the tracts in controversy (lots No. 1 and 2 of sec. 61) did not border on this 'bayou,' taking them even to be entire tracts as they were surveyed and patented. ”

“ Before the lower levee was constructed, there had been a mill for grinding erected on the bayou, which gave it the name it bears; the flow of water was then from the Mississippi River through this outlet to the swamp, in times when the river was high. But it was never fit for any purpose, as a channel 13 Otto, 163; s. c. 2 Morr. Tr., 351. could be carried on by water. The ground of defence must therefore fail, that the lands entered by Sparrow and Whittlesey bordered on a bayou, and were within the exception of the act of 1832. ”

“ The character of Lapice and Whittlesey's title is not in controversy; both sides admit that it is a legal and valid title on its face, and as against the United States indisputable; but Surgett sets up a right of preference to entry of the same land at the time when the entries were made under which Lapice and Whittlesey claim, and the question is, how was the Circuit Court to deal with the matter when an appeal or writ of error was demanded, as the one or the other the judge was compelled to allow ”

“ The following acts of Congress were cited in reply to the twelfth point in the brief of the appellees, to show that, in those pre emption laws where the decision of the register and receiver has been treated as conclusive, the power of decision has been expressly given to the registers and receivers to determine the fact of occupancy and cultivation, without any appeal from their decision. ”

“ This cause came on to be heard on the transcript of the record of the Circuit Court of the United States, for the District of Louisiana, and was argued by counsel. On consideration whereof, it is ordered, that the decree of the Circuit Court be reversed, and that this cause be remanded to that court, with directions to enter a decree for the plaintiff in reconvention, Surgett; and that court shall cause a survey to be made under its direction, laying off the back land to lots Nos. 28, 29, 30, 31, 32, and 33, according to the practice in use in like cases in the surveyors' offices in Louisiana. ”

“ But we are not bound to treat them as entire tracts, as they have been surveyed and patented, because the law of the 15th June, 1832, (4 Stat. at L., 534,) itself makes provision for a re-survey of the back lands, in order to enable the front proprietors to avail themselves of the privilege of pre emption. ”

“ And it is further ordered, that said Surgett may be decreed to be the legal owner of said land, to the extent that the lands of said Peter M. Lapice and the heirs of Edward Whittlesey interfere with a survey legally made of said back lands, and that said Lapice and the representatives of said Whittlesey be decreed to convey to said Francis Surgett such parts of the lands included in the survey as are embraced by any of the entries or patents set forth in the original petition of said Lapice and Whittlesey ”

“ McDonogh v. Millaudon, 3 How., 693; U.S. v. King, 3 Id., 773; Code of Practice of La., p. 8, art. 30, p. 90, art. 374, 10, art. 41 and 43, p. 12, art. 44; Vidal v. Duplantier, 7 La., p. 45 (8 N. S., 105) ”