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a view to the settlement of the question, a negotiation has been progressing between the late executives of the aforesaid states, the result of which was an agreement to adopt the terminal points of the present recognized line as the true terminal points of the boundary line, to be resurveyed, corrected, and marked, provided it is shown by either party that the present line is incorrect, the agreement aforesaid being made subject to the ratification of the legislatures of the two states: resolved, (1) that we do hereby ratify the action of the late executive of this state in accepting the proposition of the governor of Florida to adopt the terminal points of the present recognized line as the true terminal points of the boundary line, and will regard, adopt, and act upon the present line, as run and recognized between those points, as the settled boundary of the two states, or will so recognize and adopt any other line between those points, which may be ascertained and established on a resurvey and re-marking of the boundary: provided, said boundary correction is made by virtue of law, and by joint action of the states aforesaid. (2) Be it further resolved by the authority aforesaid, that should it be deemed essential or important by either state to have the boundary line between the terminal points of the present recognized boundary resurveyed and re-marked, the governor of this state is hereby authorized to appoint a competent surveyor, to join any such surveyor appointed on the part of Florida, to run out and mark distinctly such a line from one to the other terminal point herein indicated, to be known as the line and settled boundary between the two states; the surveyor on the part of Georgia to be paid such compensation as may be determined on by the present or any future legislature. (3) And be it further resolved, that the governor of this state shall, so soon as the same shall have passed both branches of the present general assembly, transmit a certified copy to the governor of Florida.

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This resolution was responded to by the legislature of Florida on the twelfth of January, 1859, by passing a resolution in precisely the same terms, mutatis mutandis; and on the fifteenth of the same month an act was passed by the legislature of Florida for bringing into market, as soon as the line should be settled, all state lands bordering thereon, that had not been disposed of, giving to the occupants, whose right was not disputed, five months to purchase the lands occupied by them at their appraised valuation. As one or both of the parties desired to have a resurvey made between the terminal points, the state of Georgia appointed George F. Orr, and the state of Florida B. F. Whitner, surveyors, to run and mark the line accordingly. They commenced their work in 1859, and it is referred to in the subsequent acts and resolutions.

An act was passed by the legislature of Georgia on the sixteenth of December, 1859, referring to the fact that the joint surveyors were running their first trial line, and agreeing to adopt it as conclusive, if Florida would do the same: provided that, on the eastern terminus, it did not depart exceeding onefourth of a mile from Ellicott's mound; but that if it was not accepted by Florida, and if, therefore, a new line would have to be run so as to get a straight line from the mouth of Flint river to Ellicott's mound, then the line thus designated and marked by the surveyors should be the permanent boundary between the two states. The act also proposed the passage of laws to quiet the titles of bona fide holders of lands under grants of either Georgia or the United States. The response made by the legislature of Florida to this proposition was the passage of an act on the twenty-second of December, 1859, substantially adopting the proposition made by Georgia, declaring "that the line now being run by B. F. Whitner, Jr., on the part of Florida, and G. J. Orr, on the part of Georgia, be, and the same is hereby, recognized and declared to be the permanent boundary line between the two states, so soon as the same shall be permanently marked by said surveyors: provided, that said line, at its eastern terminus, does not depart from or miss Ellicott's mound

more than one-fourth of a mile, or 20 chains;" and declaring, secondly, "that the titles of bona fide holders of land under any grant from the state of Georgia, which land may fall within this state by the foregoing line, are hereby confirmed and conveyed to said holders, so far as any right may accrue to this state: provided, nothing herein shall apply to lands to which citizens of this state may claim title south of what is known as the 'McNeil line.'" It turned out that the line run by Orr and Whitner ran even further north than the McNeil line; but it came within the stipulated distance from Ellicott's mound, namely, within a quarter of a mile; in fact, within 37 links, or less than 25 feet, north of the mound. See Code Ga. 1868, § 19. This was more favorable to Georgia than the line agreed on by Ellicott and Minor, which was to run at least one mile north of the mound.

On the fourteenth of December, 1860, the legislature of Georgia, probably considering that its last proposition was not fully accepted, passed a resolution directing the governor to reopen negotiations with the authorities of Florida in regard to the boundary line, and to urge its adjustment so as to protect the rights of citizenship, and the titles of lands held under grants from Georgia, and, if practicable, so as to retain and keep the fractional lots sold by Georgia within the jurisdiction of the state. In response to this resolution, the legislature of Florida, on the eighth of February, 1861, passed the following resolution, to-wit: "Whereas, [by] an act approved by the governor, twenty-second December, 1859, it was by the general assembly enacted that the line then being run by B. F. Whitner, Jr., on the part of Florida, [and] G. J. Orr, on the part of Georgia, should be, and was thereby, recognized and declared to be the permanent boundary line between the states of Georgia and Florida, as soon as the same should be permanently marked by said surveyors: provided, the said line at its eastern terminus did not depart from or miss Ellicott's mound more than one-fourth of a mile, or 20 chains; and whereas, the said line has been run and marked by said surveyors on the part of the two states, the eastern terminus of which, so run and marked, is within the distance prescribed in said proviso: therefore, resolved, that the line run and marked by B. F. Whitner, Jr., on the part of Florida, and G. J. Orr, on the part of Georgia, be, and the same is hereby declared to be, the permanent boundary line between the two states of Georgia and Florida, and that the governor be, and he is hereby, requested to issue his proclamation that the said line so run and marked has been and is declared to be the permanent boundary line between the two states: provided, the state of Georgia shall have on its part declared the said line to be the boundary between that state and Florida. Be it further resolved, that the governor be requested to forward a copy of these resolutions to the governor of Georgia, with a request that similar steps be taken by Georgia, so that the question of boundary may be finally settled." Bush Dig. 103; McClel. Dig. 952.

By a long and argumentative resolution, passed by the legislature of Georgia on the eleventh of December, 1861, after stating the respective positions taken by the two states, it was proposed as follows: "The general assembly, to avoid further dispute, proposes to her sister state, Florida, that what is denominated the Watson Line' (which will leave in the limits of this state the fractional lots of land heretofore sold under an act of her legislature) shall be adopted as the boundary line. The settlement upon this basis will not interfere with the rights of citizenship as claimed by the citizens of either state." Florida made no answer to this proposition.

Finally, by a resolution passed on the thirteenth of December, 1866, the legislature of Georgia, referring to the act of sixteenth December, 1859, and recognizing the fact that the Orr and Whitner line as run did not depart exceeding one-fourth of a mile from Ellicott's mound, and referring also to the action of the Florida legislature of February 8, 1861, adopted the Orr and Whitner line as "the permanent boundary line between the states of Georgia and Flor

ida."

And this agreement thus finally arrived at by the two states was recognized and confirmed by an act of congress approved April 9, 1872, entitled "An act to settle and quiet the title to lands along the line between the states of Georgia and Florida," by which it was declared "that the titles to all lands lying south of the line dividing the states of Georgia and Florida, known as theOrr and Whitner Line,' lately established as the true boundary between said states, and north of the line run by Georgia, known as the Watson Line,' being all the lands lying between said lines, be, and the same are hereby, confirmed, so far as the United States has title thereto, in the present owners deriving titles from the state of Georgia."

This historical review is sufficient, it seems to us, to show that the agreement come to by the two states was not in fact, and cannot be construed as, a cession of territory on the part of Georgia. It was simply the correction of the boundary line. Georgia had inadvertently extended her jurisdiction to a line run by her surveyor too far south. The agreement recited in the resolution of December 24, 1857, "to adopt the terminal points of the present recognized line as the true terminal points of the boundary line," carried out by a resurvey of such line from one of its terminal points to a point sufficiently near the other to satisfy both parties, must be construed to be the carrying out of an intent to settle and establish the true line between the two states, and not an intent to adopt a line different from the true one, with a cession of the territory cut off by it. Two lines had been contended for. Florida and the United States contended for the line established by the joint commission under the treaty with Spain; Georgia, for a different line, having a widely different terminus at its eastern extremity. Each claimed that its line was the true one. Georgia finally yielded the point, and accepted the commissioners' line. This was tantamount to an acknowledgment that it was the true line. We do not say that the result would have been different if the parties had adopted a compromise line; as, for example, the Watson line, which was proposed by Georgia. When a boundary is in dispute, the adoption of a line by compromise may be considered as an agreement that the adopted line is the true line, or that it shall be considered as the true line. Where territories are coterminous, they must have a common boundary. That boundary, whether ascertained by astronomical observations, or discovery of old monuments, or mutual agreement of the parties, is to be regarded and treated as if it had always been known as the true line. The present case, at all events, can only be regarded as one in which the boundary line finally agreed to was always the true line, even though and even when a different line (Watson's) was temporarily adopted by Georgia, and acquiesced in by Florida.

Then, what becomes of the titles granted by Georgia outside of that line, or south of it? She had no title there herself. Could she confer title by the mere exercise de facto of jurisdiction and government there,-such exercise being in derogation of the successive rights of Spain, the United States, and Florida? What authority can be found to justify such a pretension? It is the common usage, it is true, in mutual adjustments of disputed boundaries, to stipulate that private titles shall not be disturbed. Such stipulations are dictated by a humane consideration for those who have innocently invested their fortunes on the faith of the good title of their government. In the present case, as we have seen, the titles granted by Georgia were confirmed both by Florida and by the United States, so far as either had any right or title to be affected. But those confirmations cannot avail the plaintiffs in the present case; for the United States had parted with all their interest in the lands in controversy by a grant to Florida in July, 1857; and Florida had disposed of all her interest therein by a regular sale in September of the same year. Neither the United States nor Florida, therefore, had any interest remaining, when the confirmatory acts were passed, which they could transfer

by release or confirmation, or in any other mode. The case, then, stands upon the original validity of the Georgia grants; and the question may well be asked, how does a land-holder, who obtains title from a sovereign that has none, stand in any better position than one who obtains title from an individual that has none? Georgia had no title to the land. Previous and subsequent historical events abundantly show this. Her grants have nothing to rest on but her actual possession of the disputed territory, and her exercise of government de facto therein. The question is whether this is sufficient.

The general subject is not a new one in the jurisprudence of this court. Before the treaty of amity and limits made with Spain in 1795, that government had claimed and occupied, as a part of West Florida, a large extent of country on the east side of the Mississippi, to the north of north latitude 31 deg., including a large portion of the present state of Mississippi. This claim was based on an extension of the province of West Florida to the northward by the government of Great Britain prior to the Revolutionary war.1 It was abandoned by the treaty referred to, and the parallel of 31 deg. was adopted as the boundary line between the territories of the United States and those of Spain. But prior to that treaty the Spanish authorities had made grants of land in the territory referred to. This court invariably held those grants, not confirmed by our government, to be invalid, on the ground that the territory did not belong to Spain, though she occupied it, and claimed to own it. This point is decided in Henderson v. Poindexter's Lessee, 12 Wheat. 530; followed by Hickey v. Stewart, 3 How. 750; Robinson v. Minor, 10 How. 627; and other cases. In Henderson v. Poindexter's Lessee, Chief Justice MARSHALL carefully examined the question of the right of Spain to the territory, and showed that it was untenable, and strenuously argued that the treaty of 1795 was an acknowledgment on the part of Spain that she had no such right; or why did she give it up? The idea of a grant deriving any validity from national occupancy, and government de facto over the territory, was not even hinted at, although Mr. Webster and Mr. Coxe argued the cause for the party claiming under the Spanish grant. The view taken by this court on the subject was accurately expressed by Mr. Justice MCLEAN, in delivering the opinion in Robinson v. Minor, 10 How. 643, where he says: "The treaty with Spain established [i. e., settled] a disputed boundary; there was no session of territory. The jurisdiction exercised by Spain over the country north of the thirty-first degree of north latitude was not claimed or occupied by force of arms against an adversary power, but it was a naked possession under a misapprehension of right. In such a case, Georgia, within whose sovereignty the country was situated, was not bound to recognize the grants or other evidence of title by the Spanish government."

The same view was taken by the court with regard to the grants made by Spain in the disputed territory of West Florida after the cession of Louisiana to the United States in 1803. Spain had held possession of Louisiana and the Floridas; but, by the secret treaty of St. Ildefonso, made in 1800, had ceded Louisiana to France, "with the same extent that it now has in the hands of Spain, and that it had when France possessed it;" and, in 1803, France ceded it to the United States in the same terms. But, as formerly possessed by France, Louisiana included West Florida as far as to the river Perdido, and our government claimed to the same extent. Spain, with a good deal of plausibility, contended that West Florida, extending from the Mississippi to the Perdido, was held as a distinct province by Great Britain prior to 1783, and was not embraced in the cession, and refused to surrender it, and kept possession of it, in the exercise of full sovereignty, until 1810, when the United States took forcible possession of it. Here was another case of disputed boundary. The United States claimed the river Perdido; Spain, the

1See 1 Bioren, Laws U. S. 449-453; 2 Pitkin, Hist. U. S. 434-436.

rivers Mississippi and Iberville,-as the true boundary between Louisiana and the Floridas; and the latter was in possession of the disputed territory, exercising all the powers of government therein, from 1803 to 1810. During this period the Spanish governors made many grants of land in the territory, which often came before this court for adjudication, and the decision was invariably against their validity.

The first case in which the question arose was that of Foster v. Neilson, 2 Pet. 253, in which the grant was made in 1804 for land in the district of Feliciana, east of the Mississippi. The principal questions argued wereFirst, the true interpretation of the treaties of 1800 and 1803 as to what territory was ceded to the United States; and, secondly, the effect of the confirmation of Spanish grants contained in the treaty of 1819. Mr. Coxe, it is true, took the ground that the acts of a sovereign power over territory it has ceded are lawful until possession has been transferred, and therefore that the grants of Spain, while still in possession, and exercising the powers of government de facto, should be held to be valid. Mr. Webster, who was on the same side with Mr. Coxe, did not allude to this argument, and the court took no notice of it, but placed its decision on the ground that, by the true construction of the treaties, Louisiana included West Florida to the Perdido, and therefore that the territory in question did not belong to Spain when the grant was made, and so the grant was invalid; but that, if this were not a clear proposition, (and the court admitted that it was a question of doubtful construction,) the judiciary would nevertheless follow the action of the politcal department of the government charged with the management of its foreign affairs, which had always contended for the line of the Perdido, and had finally taken full possession of the country.

The case of Foster v. Neilson was followed in the subsequent cases of Garcia v. Lee, 12 Pet. 511; U. S. v. Reynes, 9 How. 127; U. S. v. D'Auterive, 10 How. 609; U. S. v. Philadelphia, 11 How. 609; Montault v. U. S., 12 How. 47; U. S. v. Castant, Id. 437; all of which are referred to, and the history of the controversy is given, in U. S. v. Lynde, 11 Wall. 632. It may, however, be said that the decision in these cases was controlled by the act of congress approved March 26, 1804, (2 St. 287,) the fourteenth section of which declared void all grants for lands within the territories ceded by the French republic to the United States by the treaty of thirtieth April, 1803, the title whereof was at the date of the treaty of St. Ildefonso in the crown, government, or nation of Spain; saving, however, the titles of actual settlers acquired before December 20, 1803. It is doubtless true that this act did have a controlling influence in the cases referred to; but the court discussed the question upon general principles also, and no hint is dropped that the existence of a government de facto would have any influence on the decision.

In Garcia v. Lee, Chief Justice TANEY expressly argues that, in a case of disputed boundary, titles must stand or fall with the right of the government creating them. His language is: "Indeed, when it is once admitted that the boundary line, according to the American construction of the treaty, is to be treated as the true one in the courts of the United States, it would seem to follow as a necessary consequence that the grant now before the court, which was made by the Spanish authorities within the limit of the territory which then belonged to the United States, must be null and void, unless it has been confirmed by the United States by treaty or otherwise. It is obvious that one nation cannot grant away the territory of another; and, if a proposition so evident needed confirmation, it will be found in the case of Poole v. Fleeger, 11 Pet. 210. In that case there had been a disputed boundary between two states, and the parties claimed the same land under grants from different states. The boundary line had been ascertained by compact between the states after the grants were made. And in deciding between the claimants in that case the court said: In this view of the matter it is perfectly clear

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