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facto, are valid and to be sustained, notwithstanding that, by a subsequent settlement of boundaries, the disputed territory is conceded to the other contesting sovereign. Georgia, undoubtedly, at the time of the grant to James Groover, exercised the powers of government de facto over the territory in which the land in controversy was situated; and it is assumed by the supreme court of Florida that the boundary line subsequently agreed upon, by which said land was conceded to lie in the state of Florida, was a mere arbitrary line, adopted by way of compromise, and was never acknowledged to be the true legal line established by previous treaties and laws. The argument is that, whatever may be the law with regard to grants made by a government clearly beyond its lawful boundaries and jurisdiction, it is certain that grants made within its jurisdiction, being lawful when made, are not invalidated by a subsequent cession of the territory to another sovereign; because, in such case, the rights of sovereignty only, and not those of private property, are changed. It is then assumed that, in cases of disputed boundary, where a line is finally fixed by compromise, the portions of territory previously possessed by either of the contracting parties, and conceded by the adopted line to the other, are to be regarded and treated as ceded territory, and not as territory that always really belonged to the sovereign who gets it by the compromise. The supreme court of Florida, speaking of the decision of the lower court, (which it affirmed,) says: "What they did decide was that grants by a government de facto of parts of a disputed territory in its possession are valid against the state which had the right, (Dela Croix v. Chamberlain, 12 Wheat. 600;) and that, when a territory is acquired by treaty, cession, or conquest, the rights of the inhabitants to property are respected and sacred. Rhode Island v. Massachusetts, 12 Pet. 657, 749, 4 How. 591, 639; U. S. v. Clarke, 8 Pet. 436, 445. And the principle applies to the states of this Union. Poole v. Fleeger, 11 Pet. 185, 209. In the latter case, the court says, (page 210:) Although, in the compact, Walker's line is agreed to be in future the boundary between the two states, it is not so established as having been for the past the true and rightful boundary.' We decided this to be the rule in the present case when it was before us on the former appeal, (19 Fla., supra,) and the cause was tried the second time under the influence of the opinion and judgment of this court. We find no reason for modifying that judgment, and the error assigned is not sustained." Coffee v. Groover, 20 Fla. 64, 81.
Whether the view of the case thus taken by the supreme court of Florida is the correct one, regard being had, not only to the facts found by the jury, but also to the treaties and acts of the federal government, as well as of Georgia, in regard to the line in question, and whether the rule of law relied on by the court is a sound one, and rightly applicable to the case in hand, are the questions to be determined.
It is no doubt the received doctrine that in cases of ceded or conquered territory the rights of private property in lands are respected. Grants made by the former government, being rightful when made, are not usually disturbed. Allegiance is transferred from one government to the other without any subversion of property. This doctrine has been laid down very broadly on several occasions by this court,-particularly in cases arising upon grants of land made by the Spanish and other governments in Louisiana and Florida before those countries were ceded to the United States. It is true that the property rights of the people, in those cases, were protected by stipulations in the treaties of cession, as is usual in such treaties; but the court took broader ground, and held, as a general principal of international law, that a mere cession of territory only operates upon the sovereignty and jurisdiction, including the right to the public domain, and not upon the private property of individuals which had been segregated from the public domain before the cession. This principle is asserted in the cases of U. S. v. Arredondo, 6 Pet. 691; U. S. v. Percheman, 7 Pet. 51, 86-89; Delassus v. U. S., 9 Pet. 117; Strother v. Lucas,
12 Pet. 428; Doe v. Eslava, 9 How. 421; Jones v. McMasters, 20 How. 17; and Leitensdorfer v. Webb, Id. 176. In U. S. v. Percheman, Chief Justice MARSHALL said: "It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign, and assume dominion over the country. The modern usage of nations, which has become law, would be violated, that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance, their relation to their ancient sovereign is dissolved, but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change." 7 Pet. 86, 87.
But while this is the acknowledged rule in cases of ceded, and even conquered, territory, with regard to titles acquired from a former sovereign who had undoubted right to create them, it does not apply (as we shall see) to cases of disputed boundary in relation to titles created by a sovereign in possession, but not rightfully so. In the latter case, when the true boundary is ascertained, or adjusted by agreement, grants made by either sovereign beyond the limits of his rightful territory, whether he had possession or not, (unless confirmed by proper stipulations,) fail for want of title in the grantor. This is the general rule. Circumstances may possibly exist which would make valid the grants of a government de facto; as, for example, where they contravene no other rights. Grants of public domain made by Napoleon, as sovereign de facto of France, may have had a more solid basis of legality than similar grants. made by him as sovereign de facto of a Prussian province, derogatory to the rights of the government and king of Prussia.
As the case before us depends upon a disputed boundary between two states, it cannot be properly understood or determined without adverting to the historical facts connected with that boundary. Some of these are referred to by the supreme court of Florida in its opinion, but several others are necessary to be stated in order to show the circumstances under which the boundary between Georgia and Florida was finally settled, and to determine whether the assumption of the court, that the territory containing the land in controversy was ceded by Georgia to Florida, is well founded. The case, if it can be avoided, ought not to be decided upon a narrow selection of facts which might determine the question one way, before one jury, to-day, and another way, before another jury, to-morrow; but upon a broad view of all the historical events which relate to this boundary line. We shall proceed, therefore, to review these events as far as they have come to our knowledge from public documents.
In early colonial times there were always mutual complaints of encroachment between the British provinces and the Spanish province of Florida, sometimes resulting in military conflicts; and no boundary was ever settled between them. The difficulty was finally removed by the treaty of 1763, by which Florida was ceded to Great Britain. See Treaty, arts. 7, 20, 1 Chalm. 473, 479. Soon after this event, on the seventh of October, 1763, King George III., by proclamation, erected governments in the newly-acquired territories of Canada and the Floridas, and established the boundaries of the latter as follows, to-wit: "The government of East Florida, bounded to the westward by the Gulf of Mexico and the Appalachicola river; to the northward, by a line drawn from that part of said river where the Chattahoochee and Flint rivers meet to the source of the St. Mary's river, and by the course of the said river to the Atlantic ocean." West Florida was bounded
north by the parallel of 31° north latitude, from the Mississippi to the Chattahoochee river. See Proclamation in Amer. St. P.; 1 Pub. Laws, 36; and 1 Bioren, Laws U. S. 443. On January 20, 1764, the province of Georgia was limited to the north of the line thus prescribed for Florida. 1 Bioren, Laws, 448, 449. The above-defined line, from the junction of the Chattahoochee and Flint rivers to the source of the St. Mary's, has from 1763 to the present time been the recognized boundary line between Georgia and Florida. The land in controversy is situated about midway between its extremities.
By the definitive treaty of peace with Great Britain in 1783, the line above described was adopted as the southern boundary line of the United States, and the Floridas were at the same time, by another treaty, ceded to Spain. See Treaties & Conventions, 315, 2 Chalm. 232, Treaties of 1783. By the treaty of October 27, 1795, between the United States and Spain, this boundary was confirmed, and it was provided that a commissioner and a surveyor should be appointed by each party to meet at Natchez within six months from the ratification of the treaty, and proceed to run and mark the boundary line, and make plats, and keep journals of their proceedings, which should be considered as part of the treaty Our government appointed Andrew Ellicott, Esq., as commissioner, in May, 1796, and a surveyor to assist him, and they proceeded to Natchez, and, after much procrastination on the part of the Spanish authorities, a Capt. Stephen Minor was appointed on the part of Spain; and the joint commissioners of the two countries, in 1798 and 1799, ran and marked the boundary line from the Mississippi to the Chattahoochee, and determined the geographical position of the junction of the Chattahoochee and Flint rivers to be in north latitude 30 deg. 42 min. 42.8 sec., and west longitude 84 deg. 53 min. 15 sec. The hostility of the Creek Indians prevented them from running the line east of the Chattahoochee; but they sailed around the coast of Florida, and up the river of St. Mary's, and fixed upon the eastern terminus of the straight line prescribed in the treaties, at the head of the St. Mary's, where it issues from the Okefenoke swamp, and erected a mound of earth to designate the spot. This was in February, 1800 The mound is still in existence, and is called "Ellicott's Mound," and appears on all the principal maps of that part of the country. The commissioners, supposing that the true head of the river was located in the swamp, agreed that it should be considered as distant two miles north-east from the mound, and that in running the boundary line from the Chattahoochee it should be run to the north of the mound, and not nearer to it than one mile. The point fixed upon as the head of the St. Mary's was determined by observations to be in north latitude 30 deg. 21 min. 39 sec.. west longitude 82 deg. 15 min. 45 sec. The distance by straight line or great circle, from the junction of the Chattahoochee and Flint rivers to the head of the St. Mary's, was calculated at 155.2 miles; and the initial course for running the line from each terminus was given, with the proper corrections to be made at intervals in order to follow the great circle. The commissioners signed a joint report of their proceedings, and transmitted the same to their respective governments. All these particulars are set forth in Mr. Ellicott's journal, and are matters of public history. See Ellicott's Journal, Phila. 1803.
It thus appears that, by authority of the United States and Spain the termini of the line in question were fixed and settled in February, 1800. It only remained for any competent surveyor to follow the directions of the commissioners in order to trace the actual boundary line on the ground. The country in the region traversed by this line was occupied, in the early part of the century, by the nation of Creek Indians, and there was no immediate demand for having it run and marked. And as, under the constitution, no state could enter into a treaty with the Indians, it became the interest of Georgia to make some arrangement with the government of the United States to take measures for the gradual removal of Indian occupancy. A convention was
accordingly entered into between Georgia and the United States on the twenty-fourth of April, 1802, by which the former ceded to the latter all her territory between the Chattahoochee and the Mississippi rivers, and the United States ceded to Georgia all their right to any public lands south of Tennessee and the Carolinas, and east of the Chattahoochee, not within the proper boundaries of any state; and agreed to extinguish the Indian title within the state of Georgia as early as could be peaceably done. See Agreement, 1 Bioren, Laws, 488. In pursuance of this agreement the title of the Creek Nation was extinguished throughout most of the southern part of the state by the treaties made with the nation in 1802, 1805, and 1814. 7 St. at Large, 68, 96, 120.
The state being now desirous of disposing of her lands, and introducing settlers thereon, naturally turned her attention to the question of the true location of the boundary line between her own territory and that of the Spanish province of Florida. Some person, professing to be better posted than others as to the topography of the country about the head of St. Mary's river, asserted that the commissioners, Ellicott and Minor, in seeking its source, had ascended the wrong branch, namely, the north branch; whereas, the true St. Mary's, or main stream, came from the west, and took its source many miles further south than the point fixed upon by them. The legislature of Georgia took up the matter, and in December, 1818, the senate passed a resolution requesting the governor to appoint proper persons to proceed, without delay, to ascertain the true head of St. Mary's river; and if it should appear that the mound thrown up by Ellicott and Minor was not at the place set forth in the treaty with Spain, that they make a special report of the facts, and that the governor communicate the same to the president of the United States, with a request that the lines might be run agreeably to the true intent and meaning of the treaty. Ex. Doc. No. 77, 1st Sess. 23d Cong. 11, 86. In pursuance of this request the governor appointed three eminent engineers, Gens. Floyd, Thompson, and Blackspear, to make the examination suggested; and immediately, by a letter dated February 17, 1819, communicated the fact to the executive government at Washington. The engineers made a careful reconnaissance of the country about the head streams of the St. Mary's, accompanied by the person who had made the supposed discovery, and became satisfied that his information was at fault, and reported that after a careful examination they found the head of the river to agree with the report made by Mr. Ellicott. This result was also communicated to the executive at Washington; and thus ended, for the time being, the claim on the part of Georgia to have the eastern terminus of the boundary line readjusted and changed. Soon after this proceeding, in 1819, the state employed one J. C. Watson to run and mark the line. This is the origin of the line called "Watson's Line;" and to this line the state laid out its counties and townships, surveyed its public lands, and made grants to settlers. But it nowhere appears that this line ran to Ellicott's mound, or near to it; on the contrary, it would seem, from other conceded facts, that it ran considerably south of it. As we have already seen, the lands in controversy in the present case adjoin this line, being situated on the north side of it.
Florida was ceded to the United States in 1819, and possession of the territory was taken by Gen. Jackson in July, 1821. In 1825, the surveyor general of the government for the territory of Florida, preparatory to a survey of the public lands therein, caused the boundary line between Georgia and Florida to be run out and marked by D. F. McNeil, a deputy surveyor, and the line so run was called "McNeil's Line." At the point in controversy, which (as before said) is about midway between the two extremities of the straight line called for by the treaty, it ran, according to the testimony, 14 chains to the north of Watson's line; but how near it approached Ellicott's mound at the eastern extremity does not appear. The government surveys
in Florida were made to bound on this line, and, of course, overlapped, more or less, the Georgia surveys and grants extending to Watson's line.
The state of Georgia, about this period, perhaps in consequence of the location of McNeil's line, by a communication of her governor to the government of the United States, requested that joint measures should be undertaken for a mutual and final settlement of the boundary. The matter being referred to congress, an act was passed on the fourth of May, 1826, by which the president was authorized, in conjunction with the constituted authorities of the state of Georgia, to cause to be run and distinctly marked the line dividing the territory of Florida from the state of Georgia, from the junction of the rivers Chattahoochee and Flint, to the head of St. Mary's river; and for that purpose to appoint a commissioner or surveyor, or both: "provided, that the line so to be run and marked shall be run straight from the junction of said rivers Chattahoochee and Flint, to the point designated as the head of St. Mary's river by the commissioners appointed under the third article of the treaty [with Spain] made October 27, 1795." 4 St. 157. This act, it will be seen, adopted the eastern terminus of the line as settled by Ellicott and Minor. The president thereupon appointed Ex-Gov. Thomas M. Randolph, of Virginia, as commissioner under the act, and the executive of Georgia appointed Thomas Spaulding; and the commissioners entered upon their joint duties in February, 1827, and appointed John McBride as their common surveyor. They continued their operations for over two months; but the Georgia commissioner having, as he supposed, notwithstanding the report of the commissioners of 1819, discovered that the western branch of the St. Mary's river was the largest and longest stream, and therefore the true river, the governor of the state suddenly brought the survey to a close by recalling the assent of Georgia, and withdrawing the powers of her commissioner. Ex. Doc. 77, 1st Sess. 23d Cong. 31, 97. From this time onward, for many years, a controversy was carried on between Georgia, on the one side, and the United States and Florida, on the other, with regard to this boundary line; Georgia contending that the line should be run to Lake Randolph, the head of the western or southern branch of the St. Mary's, and the United States and Florida contending that it should run to the head of the northern branch, as settled and determined by the commissioners, Ellicott and Minor, under the treaty. Id. and Ex. Doc. 152, 1st Sess. 23d Cong.
In 1845, Florida was admitted into the Union as a state, embracing all the territories of East and West Florida, as ceded by Spain to the United States by the treaty of 1819. 5 St. 743. Renewed efforts were soon afterwards made by Florida and Georgia to effect a settlement of the boundary, but without success. In 1850 the state of Florida filed a bill in this court against the state of Georgia to procure a determination of the controversy. In December term, 1854, the attorney general was allowed to intervene on the part of the United States. Florida v. Georgia, 17 How. 478. Evidence was taken by the parties, but in consequence of the war, and the final settlement of the controversy by mutual agreement, the cause was never brought to a hearing. In 1857 the governors of the two states had a conference which resulted in an agreement by which Georgia relinquished her pretensions to have the eastern terminus of the line changed; and the termini fixed by the commissioners, Ellicott and Minor, were substantially adopted. The following resolutions and enactments of the legislatures of the two states will show the course of negotiation, and the terms of the arrangement finally concluded between them.
On the twenty-fourth of December, 1857, the following resolution was adopted by the legislature of Georgia, to-wit:
"Whereas, in the matter of controversy now pending in the supreme court of the United States between the state of Florida and the state of Georgia, touching the boundary line of the two states, we deem it of much importance that this protracted and expensive litigation should cease; and whereas, with