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or about the 19th day of June, A. D. 1795, | railway company adversely to complainants; which said grant was ratified and confirmed by the United States by the treaty with Spain ratified by the United States on the 19th day of February, A. D. 1821."

that the board of trustees on July 30, 1892, executed a deed of conveyance to defendant Henderson of certain lots in township 7, containing 286.28 acres, which land was claimed The bill then set up title to Anastasia is by Henderson adversely to complainants. Its land as derived from Joseph Fish, through was further averred that the United States his mother Sarah Fish, her granddaughter, issued to the state of Florida on June 27, Jessie B. Perpall, who married Charles M. 1895, a patent for certain other lands, being Furman, who became sole heir at law of his part of Anastasia island, described by the wife and their son, Gabriel, and left a will public surveys, in township 7, containing under which complainants claimed. It was 393.30 acres; that the United States issued averred that Joseph Fish died intestate in to the state of Florida on April 8, 1895, a 1798; that his mother died intestate in 1825; patent for certain other lands described by that her granddaughter died intestate in the public surveys, in township 7, contain1827; that Mrs. Furman's son Gabriel dieding 120 acres; that these lands were selecin infancy in 1836; and that Charles M. Furman died in 1872.

It was further alleged that Joseph Fish was placed in possession of the said land so granted, and resided thereon in his dwelling house, and cultivated an orange grove and fields, inclosed by a fence; that he used the woodlands on the island, and exercised such acts of possession of the whole of the island as it was capable of; and that from his death to the present time those claiming under Fish have done the same.

The bill averred that the state of Florida claimed title under the act of Congress of September 28, 1850, relating to swamp lands, of certain lands on Anastasia island, which complainants asserted were part of the grant to Joseph Fish, and owned by them; these were described according to the public surveys and alleged to contain 1,465.15 acres, more or less, all in township 7, south of range 30 east; and that the United States on September 18, 1856, issued its patent to the state of Florida therefor.

tions made by the state under an act of Congress of June 9, 1880, entitled "An Act to Confirm Certain Entries and to Warrant Lo cations in the Former Palatka Military Reservation in Florida;" that in addition to the lands so patented the state had selected under said act certain lands on Anastasia island in township 7 containing 367.32 acres; that entries of these selections had been allowed by the Commissioner of the General Land Office of the United States, and the same were held to be patented to the state under the act of Congress of June 9, 1880; that the lands so patented to the state and those selected by the state for patent under the act aforesaid were in lieu of selections under the act of Congress of September 28, 1850, and were vested by the legislature of Florida, by the act of January 6, 1855, in said board of trustees, if the United States held the title thereto at the time of the issue of the patents, and that the board of trustees claimed title to the same adversely to complainants.

That the state of Florida by an act of The bill charged "that the said patents June 6, 1855, vested in the governor, the from the United States and the said deeds comptroller, the state treasurer, the attor- of those claiming thereunder, and said enney general, and the register of public lands, tries and selections of the state of Florida, now known as the commissioner of agricul- whereby the said defendants claim title, reture, of that state, and their successors in spectively, to the said lands as aforesaid, are office, as the board of trustees of the internal invalid, and do not vest a title in the said improvement fund of the state, the title to defendants to the lands so claimed by them, all lands granted to the state under the act respectively, as aforesaid, for the reason of Congress, with power to sell and transfer that the United States, under whom the dethe same; that defendants, Mitchell, govern- fendants claim, did not, at the time of issuor, and others, now constitute the board of ance of such patents or at any other time, trustees; that the board on May 13, 1885, have or hold title to the said lands, or any executed a deed of conveyance to the Florida part thereof, but that the title to the same Coast Line Canal & Transportation Com-is in your orators, holding and claiming unpany of certain lots and parts of sections, in township 7, containing in all 549 acres, being part of the lands patented to the state, which land, except that conveyed to Horace S. Cummings, was claimed by the transportation company adversely to complainants; that of these lands the transportation company executed a deed of conveyance to Cummings of 160 acres, which was claimed by Cummings adversely to complainants.

That the board of trustees September 21, 1886, executed a conveyance to the St. Johns Railway Company of certain lots and parts of sections in township 7, containing in all 328.10 acres, being part of the land patented to the state, which land was claimed by the

der the said grant of the government of Spain to the said Joseph Fish as aforesaid."

The bill also alleged that none of the defendants were in actual possession of the lands or any part thereof; that the lands ex-8 ceeded in value the sum of $2,000; and "that this cause arises under the said treaty be tween the United States and Spain, which ratified and confirmed the said grant to the said Joseph Fish, under whom your orators claim title. And the controversy involved in this case necessarily involves the construction of said treaty."

It was then charged "that the said patents, entries, and deeds by and under which the defendants respectively claim title to

said lands as aforesaid, are clouds upon the | the several tracts of land described in said title of your orators in the said lands, and tend to depreciate the value and sale there of, to the great damage and injury of your orators in the premises."

The prayer was "that the said patents, entries, and deeds by and under which the said defendants respectively claimed title to the lands so respectively claimed by them as aforesaid may be set aside and declared void as clouds upon the title of your orators, and that the defendants and each of them may be enjoined from entering upon or taking possession of said lands, or in any manner disturbing the possession of your orators there of, and that your orators may have such other and further relief in the premises as equity may require and as to your honors shall seem meet."

bill, and averred that before any patent could be issued for these lands, the state of Florida was required to establish before the Land Department of the United States that the lands were vacant and unappropriated public lands of the United States; that Furman in behalf of complainants appeared before that tribunal and contested the matter, and presented and urged their claim to the same under the same title set up in the bill, and that there was a final determination by said tribunal which was adverse to complainants' claim, and decided that the lands were not private lands.

Also that, in addition to the lands so patented to the state of Florida, the state had selected the lands set out in the bill, and that the entries had been allowed by the The defendants Mitchell and others, mem- land office, and were held to be patented; bers of the board of trustees, moved to dis- and said that such allowance and holding miss the bill for want of jurisdiction, which for patent was an adjudication of a compemotion was overruled. Defendant Cum- tent tribunal that the lands were public mings made a similar motion. The trustees lands of the United States, which adjudicaalso filed a demurrer for want of jurisdic- tion for the issue of the patent was subject tion, and a demurrer for want of equity. to review in the Land Department, and The defendants, the canal and transportation might be corrected if erroneous. They do company and the St. Johns Railway Com-nied that the patents, deeds, entries, and sepany, also demurred. All the demurrers were overruled.

lections whereby defendants claim title to the lands in controversy were invalid, and asserted that the United States had title to said lands, and that it was not in complainants.

The trustees and Cummings then filed their answer, denying that Anastasia island was granted by the government of Spain to José or Joseph Fish, June 19, 1795, or at any "They admit that this controversy involves other time, or that the title to the lands in the construction of the treaty between Spain controversy was ever granted by the King and the United States, and they aver that of Spain or by his lawful authorities, and complainants in their said bill have set out averring that the only part of Anastasia is- as their title an incipient and inchoate title land, the title to which was ever granted by under the 'government of Spain,' not cognizthe King of Spain or by his lawful authoriable in the courts of the government until ties, was a tract of about 300 acres granted recognized or confirmed by the Congress of to Lorenzo Rodriguez in 1793, and a tract of the United States; that by the rules estababout 20 acres granted to F. X. Sanchez in lished in the territory of Florida by the au1802, both of which tracts had been con- thority of the King of Spain for the grantfirmed by the United States and surveyed ing of lands, a grant from the government and platted as private grants upon the maps of Spain signified only the first concession and plats of the Land Department of the or right of occupancy of the royal domain; United States. They denied that the treaty that perfect or complete grants were recog with Spain ratified or confirmed any grant nized by the treaty with Spain, but incomplete of the lands in controversy in this suit to grants were ratified by the treaty, to the the ancestor of complainants or gave title same extent they would have been valid had thereto to any other person save only to the the territory remained under the King of United States; and denied that Joseph Fish Spain; that if there had been a complete was placed in possession of Anastasia island grant of Anastasia island at the date of the except the King's Quarries, as a grant there-treaty the owners thereof were authorized of to him by the King of Spain or his lawful authorities, or that he or his successors exercised such acts of possession of the whole of Anastasia island except the King's Quarries, as it was capable of, under claim of title, or that he claimed title as the owner of said island. But they said that the occupancy and acts of possession alleged, if true, applied to no other lands than those embraced in the Fish homestead, which was a point of land on the extreme west shore of Anastasia island, nearly surrounded by water, and cut off from the main island of Anastasia, embracing about 100 acres of land, well known by general reputation as "Fish's island." They admitted the patenting by the United States to the state of Florida of

under the laws of the United States to have the same surveyed without expenses as a private claim by the United States, but by the averments of their said bill complainants show that said lands have been surveyed as public lands."

The answer stated "that Anastasia island is a barrier of the sea, consisting chiefly of high sand hills blown in from the sea beach, covered with 'scrub,' a low growth of hard wood; that through the center of the northern part, in township 7, there runs north and south a ledge of coquina rock from one half to three quarters of a mile wide; that all the lands are barren and wholly unfit for any purpose whatever save seashore residence, and of no value apart from their prox

ties of the King of Spain in East Florida, but that list contains none to Joseph Fish for the lands on Anastasia island.

imity to a city patronized as a winter re- | erty in Florida, both public and private, consort; that on the western shore of said is-tain a complete list of all real titles or pat land, nearly separated from the main island ents for lands granted by the lawful authori by a strip of low ground or 'swale,' is a neck of land called Fish's island, containing about 60 to 100 acres, which is arable land, and on this point was an orange grove and cultivated fields of about 30 acres under enclosure, and houses and outbuildings."

It was further averred that complainants or their ancestor never had any title whatever to the lands described in the bill unless it were to a part of lots 2, 3, and 6 of section 29, township 7, range 30 east, which embraced the orange grove of "Vergel" plantation, alleged to have been sold by the Spanish government in probate proceedings upon the estate of Joseph Fish about March 21, 1792; that to this plantation the heirs of Fish might have had an equitable title, but this had been forfeited by failure to present or record such claim and have it surveyed.

Defendants further said that Anastasia island was officially turned over in behalf of the King of Spain to the United States, in 1821, as one of the adjacent islands named in the treaty, and as a part of the royal domain, and the lands delivered as such by the lawful authorities of the King of Spain to the United States, whose authorities then went into actual occupancy of part, and the possession of the whole, of Anastasia island, save two Spanish grants, one to Rodriguez and the other to F. X. Sanchez.

That June 19, 1795, the Spanish law in force in the Floridas vesting in the Spanish governors the power to make grants of lands was the royal order of 1790, under which Governor Quesada, Spanish governor of East Florida in 1795, required ten years of continued and uninterrupted possession before full title was granted to claimants, who upon petition had received a grant or concession and had been put in possession of lands, etc., etc.

The answer restated that the lands claimed by complainants to have been granted to Joseph Fish were never segregated from the royal domain, and were not measured, bounded, or platted or otherwise located by official survey, and could not be identified by natural boundaries.

Defendants further averred that by the act of Congress of May 23, 1828, Congress confirmed all claims recommended for confirmation to the extent of a league square, and enacted that no more than a league square should be confirmed in any grant, and that no confirmation should be effectual until a full release by the claimant of all the lands claimed by any one grant in excess of a league square, but authorizing all claimants who were not willing to accept a league square to present their titles to the district court of the United States within one year from the date of the act or be barred; that claimants never released the excess of a league square, nor presented their claim to the district court of the United States, as did all others having claims in Florida in excess of that amount; that the legislative council of the territory of Florida published the acts of May 23, 1828, May 26, 1830, and February 8, 1827, with the treaty with Spain, for circulation in Florida, and though often notified of the limitations in said acts, the claimants under Joseph Fish did not avail themselves of the acts, and abandoned and forfeited their claims to said land, so that the United States would have acquired title by prescription even if the lands were private property; that in 1833, having giv en public notice that unless the private claims within the district were presented to the surveyor general he would survey the same as public land of the United States, the claim of Fish not having been presented and having been abandoned, the United States extended the surveys over all of Anastasia island except the grants to Rodriguez and Sanchez, and in 1839 advertised the lands for sale as public lands; that on May 6, 1851, the maps and plats of said lands surveyed as public lands were formally approved by the surveyor general for Florida; that the United States patented to the state of Florida certain lands in 1866 as vacant lands, and in 1867, 1868, and 1869 a *Defendants averred that any claim which large area of lands on Anastasia island were Fish ever had would be found to be an al- entered under the homestead laws of the leged grant purporting to be signed by one United States, and settled upon and imMorales, the commandant of the third bat- proved, and wood was cut therefrom and talion of Cuba, and not by the governor, an sold; that some of the homestead settlers unauthorized proceeding under Spanish failed to make final proof of their entries, law; that no authority existed in Morales to but final proof of homestead and settlement make the grant, and no other claim in East under the homestead laws for lands on the Florida is based on action by him; that the island was made and final certificates issued law required an official survey to be filed in to several persons named in 1875, in 1876, the records and a certified copy delivered to and in 1882; that in 1867 the trustees execlaimants, but there was none in this in-cuted a conveyance for lands on that island stance; that the archives relating to prop- to Rogero for lots 2 and 3, section 29, to

The answer further set forth that no person except the governor of the province was entitled to make grants of land under the Spanish law, and if any other person had authority to make grants the titles so granted were incipient until confirmed by the governor, etc.; and alleged on information and belief that any proceedings purporting to be a concession for 10,000 acres, dated June 19, 1795, to Joseph Fish, found among the archives at the date of the cession, were either forgeries, or so irregular as to render their genuineness too doubtful to be accepted as evidence.

21 S. C.-28.

Hopkins and Rogero for lot 6, section 29, | and to Magruder and Logan for lots 2 and 3, section 32, all in township 7, range 30 east, being part of the lands patented to Florida; that September 16, 1868, Sanchez applied to the Land Department of the United States for the issue of a patent upon the Fish claim, and in 1870 Furman advised the Land De partment that he claimed to be the owner of Anastasia island under an alleged grant prior to 1763, and made application for the issue of a patent from the United States to him.

States of the lands on Anastasia island as claimed under Fish, but Congress refused to consider the same.

The answer denied that complainants were in possession of any part of the land on Anastasia island, and set forth the possession of many persons claiming title underes the United States. It averred that the St. Augustine & South Beach Railroad Company was in possession of a roadbed and right of way across the island through sections 17, 21, 27, and 28 in township 7, range 30 east, under authority of an act of Congress apThat from 1831 to June 22, 1860, the claim proved March 3, 1875, granting a right of was wholly barred; that June 22, 1860, Con- way over the public lands of the United gress again authorized claimants to present States; that lot 1 of section 21 was reserved their claims, if an imperfect grant, to com- for lighthouse purposes by order of the missioners for confirmation, but if a com- President dated June 22, 1869; that part of plete grant, to the district court for the lot 2 of section 21 of township 7 was denorthern district of Florida, but those claim-clared a reservation for lighthouse purposes ing under Fish neglected to avail themselves by order of the President dated February 1, of this right to have the validity of their 1883, that afterwards by a like order the reclaim determined, but did apply to the Land mainder of said lot 2 was declared a United Department for further adjudication; that States reservation for lighthouse purposes; after application to the Land Department and that by executive order dated May 4, for an adjudication by Furman in 1870, 1893, the President reserved 700 acres of Congress extended the act of June 22, 1860, land in sections 21, 22, and 28 of township 7 until June 10, 1875, by an act approved for military purposes. June 10, 1872, by the 2d section of which act no proof of title was required of claimants, provided they and those from whom they claimed had held continuous possession of the lands claimed; that having submitted their claim to a tribunal of their own choice they are now estopped to deny its jurisdic

tion.

That in June and July, 1888, the state of Florida applied to the land office at Gainesville to enter certain portions of land at the north end of Anastasia island under the act of June 8, 1880, as vacant and public land, but because there was on file at the land office a letter from the Commissioner dated March 7, 1887, advising that the island was claimed by Furman, and that the claim had not been adjudicated by the Land Department, the register and receiver rejected the selections of Florida, and the state appealed to the Commissioner; that the claim of Furman was taken under advisement by the Commissioner on briefs submitted by the state, and by Furman and others claiming under Fish, and on August 2, 1890, the Comlands were public lands of the United States, whereupon complainants took an appeal from the decision of the Commissioner to the Secretary of the Interior, and submitted arguments in support of their contention that the said lands were owned by them under a valid Spanish grant, and on June 22, 1893, the Secretary rendered his decision affirming the decision of the Commissioner, that said claim had no validity; that complainants failed to file any motion for review, and the decision became final, and is a complete and final adjudication of complainant's want of title, and that the lands were public lands subject to disposal by the United States; that complainants caused a bill to be introduced in the Fifty-third Congress for confirmation and release to them by the United

missioner rendered his decision that the

That the requirement by Congress that all claimants under grants from the King of Spain in the Floridas should relinquish all in excess of a league square of the lands claimed in any one grant, was a declaration of the policy of the political department of the United States as to the territory ac quired from a foreign power and a determination by Congress of the extent of the obligations imposed on the United States by the treaty with Spain.

The answer further averred that the failure to release the excess forfeited the entire claim, and that, without any release, the excess over a league square was subject to sale as public land; that the issue of the patents depended upon the existence of facts which the Land Department of the United States had determined existed; that by the survey of the lands of Anastasia island as public lands and their offer for sale by the procla mation of the President, and confirmation of portions thereof to the state of Florida by patent, the reservation of portions thereof by executive order, and the opening of all to homestead entry, the United States had be come seised of the whole of said Anastasia

island by the equivalent of office found. Florida Canal & Transportation Company alThe St. Johns Railway Company and the so filed an answer of similar purport. Numerous exceptions to these answers were filed, and some of them were sustained to certain paragraphs. Replication having, been filed, the cause was referred to a master, who subsequently made a report containing findings of facts, findings of mixed law and fact, and conclusions of law, to which numerous exceptions were filed by defendants, all of which were overruled by the court, and a decree was entered in accordance with the prayer of the bill and the reoommendations of the report. A decree pro

confesso was entered against John A. Henderson.

From this decree all the defendants except Henderson, in respect of whom an order of severance was entered, prosecuted this appeal.

The master also filed with his report an elaborate and careful opinion on the whole

case.

Complainants introduced in evidence from the American State Papers, Public Lands, vol. IV. Duff Green Edition, 256, "Minutes of the proceedings of the commissioners appointed to ascertain claims and titles to land in East Florida for the year 1824." Meeting of the board, March 29, 1824, pursuant to an act of Congress of February 19,

1824.

Meeting, September 13, 1824, when "Sarah Fish, 10,000 acres; same 500 acres," and three other "cases being called and not being prepared for trial," were "placed at the foot of the docket."

Minutes of meeting, March 28, 1825, pursuant to the act of Congress of March 3, 1825. April 21, 1825: "Permission was given by the board to the executors of the estate of Sarah Fish, deceased, to amend the memorials in the claims of said Sarah Fish." December 16, 1825: "The following claims were this day reported to Congress for confirmation, viz.: Sarah Fish's heirs, for 10,000 acres;

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of the Treasury, January 31, 1826, transReport of commissioners to the Secretary mitting claims and titles examined and disposed of, class 3 comprehending "claims exceeding 3,500 acres, the titles to which were found among the public archives of the country, and are ascertained by the commissioners to be valid Spanish grants, and reported accordingly to Congress for confirmation." 4 Am. State Papers, Public Lands, D. G. ed., p. 276. The Fish claim was included in class No. 3, as follows:

Register of claims to land exceeding 3,500 acres in East Florida, which are founded on patents or royal titles derived from the Spanish Government, and which in the opin ion of the commissioners are valid.

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The petition of Mrs. Fish, dated August 31, 1823, asserted that she "claims title to the island lying in front [i. e., to the east] of the city of St. Augustine, and running south about 18 miles, more or less, along the east bank of the river Matanzas, known by the name of the island of St. Anastasia, supposed to contain 10,000 acres, as belonging to the deceased husband, Jesse Fish, senior, in the year 1763. That in the year 1792 this island was sold at public sale by order of the Spanish governor, Quesada, when her son, the late Jesse Fish, Jr., deceased, became the purchaser."

Accompanying this memorial were certain papers and proceedings as follows: A petition of José Fish (erroneously dated December 2, 1796), stating that at the auction of his father's property for the payment of his creditors, he purchased the place called the Vergel for $1,605, which sum he gave only with a view to the fruit trees of said place,

and the timber which is on the land belonging to it, as the land is entirely useless for planting; that several of the neighbors had been cutting the wood, and therefore he begs to be declared owner of the lands which his said father possessed, annexed to the place of the Orange Grove, which, according to the deeds granted in the time of the British possession, amounted to 10,000 acres, whether as a new settler or by the right which his deceased father had to them. That if he does not obtain this favor he will consider himself the loser of the greatest part of his purchase, because the lands will not produce crops of any kind and a great number of the fruit trees have dried up, which is likely to occur to the balance of them.

Governor Quesada, who described himself as "brigadier of the infantry of the royal armies, governor, commander in chief, vice royal patron, and subdelegate of the royal domain of this city of St. Augustine, Flori

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