Stephen Johnson Field

“ The Houmas grant is famous in the history of land titles in Louisiana, from the protracted controversy in the land department to which it gave rise, and the discussion created in congress by the attempt made to secure its legislative confirmation. The documents to which our attention has been called as sustaining the pretensions of the plaintiffs, or in opposition to them, are scattered through many volumes. They consist of the original proceedings and concessions under the Spanish government ”

“ On the ninth of September, 1776, nearly two years after obtaining the grant, Conway presented a petition to the governor stating that he was about to settle on the lands which he and Latil had purchased of the Indians; that he had acquired Latil's interest; that the lands were destitute of fences, and were cleared for upwards of a league in depth in 'such a manner' that the cypress trees might be 'about a league and a half from the river;' and that as the grant extended only 40 arpents, he could not have access to them to obtain timber for his fences, and other uses of his plantation. ”

“ This practice of surveyors is abundantly established by the documents accompanying the proceedings of congress, or of its committees, with respect to the Houmas grant.
The usages and customs prevailing in the province of Louisiana, affecting the alienation of lands, are to be respected in considering the rights of grantees of the former government. Usages long established and followed have, to a great extent, the efficacy of law in all countries. They control the construction and qualify and limit the force of positive enactments. ”

“ Under the act the claimants of the Houmas tract delivered to the register of the land-office at New Orleans notices of their respective claims to the land which they asserted was covered by the grant to Maurice Conway made by Gov. Galvez, June 21, 1777; Donaldson and Scott to the upper subdivision, Daniel Clark to the middle subdivision, and William Conway to the lower one. Each of these claimants deduced his title from Maurice Conway, and accompanied his notice with a plat of a survey by one Lafon, to whom reference is made above. ”

“ Accordingly congress, by the act of March 3, 1811, provided that every person who owned 'a tract of land bordering on any river, creek, bayou, or water-course' in the territory of Orleans, and not exceeding in depth 40 arpents, French measure, should be 'entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to and back of his own tract, not exceeding forty arpents, French measure, in depth, nor in quantity of land that which is contained in his own tract,' at the price and on the terms and conditions prescribed for other lands in the territory. ”

“ In any view, therefore, in which the case of the claimants is examined, we find nothing to sustain their pretensions. They have no title to the lands claimed under the grant in question, beyond the depth of 80 arpents from the Mississippi river, which the courts can recognize as a basis for action against parties in possession, holding under sales from the government. ”

“ No court can treat a claim as conferring a right to a specific tract until its boundaries are capable of ident fication or have been established by a survey. A mere claim to something without form and shape or means of segregation can have no judicial enforcement. ”

“ The act provided among other things, that, until the expiration of the then existing session of congress, unless provision for the temporary government of the territory should be sooner made, the military, civil, and judicial powers, exercised by the officers of the existing government, should be vested in such person or persons, and should be exercised in such manner, as the president might direct for maintaining and protecting the inhabitants of Louisiana in the full enjoyment of their liberty, property, and religion. ”

“ The position of the plaintiffs, that congress must have intended to include all reports made by the board because under the act of 1805 a majority of its members were authorized to act upon and determine the validity of claims presented, does not strike us as a logical conclusion. It would rather seem to strengthen our construction, for by naming decisions made by the three commissioners the act indicates that congress intended to refuse a confirmation of decisions made by two of them. ”

“ He then proceeded to draw in the same way the southern lin of the grant, running it north 70 degrees east, going for that purpose a part of the distance through woods, and placing a boundary stake of cypress at the depth of 40 arpents, and also at the further depth of two arpents more, 'in order,' as he stated, 'to keep the course.' Of his proceedings on this survey Andry made a detailed report. On the twenty-first day of June of the following year Galvez, the successor of Unzaga as governor of the province, made to Conway a grant of the land thus surveyed. ”

“ We held that the grant of Galvez derived no aid from these sources, but must depend for its extent upon the language of the concession and the proceedings of the adjutant Andry in establishing its northern and southern boundaries; and that it was therefore limited to two arpents in the rear of the original grant. ”

“ In the certificate given to Daniel Clark, which bears date September 25, 1805, he certifies from surveys of Marriner and measurements of his own on the river Amite and environs of Galveston, a village on that river. ”