ed unless particularly described to be such, and so granted. The defendants exhibited no grant specially describing the lot to be a water-lot.

The grant of the lot, by the Act of 1836, recognizes the lot for which the plaintiffs in error contend as a lot under a "new grant" of the Spanish government; and the lot is given to the heirs of Pollard, the lessors of the plaintiffs in error. The defendants claim under the Act of Congress of 1824; and the Act of 1836 is a legislative construction of that act.

There was a title in the heirs of Pollard under the grant, but the Supreme Court of Alabama decided upon the Act of Congress of 1824. The grants made after the treaty have been so often confirmed that the circumstance shows what was meant in the act of Congress under which the plaintiff in error claims by "new grants." "New grants" referred to the period of the treaty. The treaty was an epoch from which grants were characterized as new grants.

The jurisdiction of the court in this case de- The grant to Forbes & Company, under pends upon the question whether an act of which the claim of the plaintiffs in error is opCongress has been misconstrued by the Su-posed, is for three hundred and four feet. It preme Court of Alabama. Has this been so? is nowhere said to go to the river. Thus, if a riparian right is claimed, at the common law, it is negatived by the description of the lot. The grantees are limited to the feet and inches stated in the grant, and have no claim to say the grant extends to high water-mark.

It has been said that the original grant by the Governor of Florida has been treated with scorn, and is of no value. That grants of this description having been for lands within the territory claimed by the United States, under the Cession Treaty of Louisiana, have always been disregarded. This is not so. Congress have in more than a thousand instances respected and confirmed such titles.

In regard to the contest between the United States and Spain, under the Louisiana Treaty, relative to the lands lying west of the River Perdido, possession of those lands was not obtained until 1823. The condition of a country between the time it has been ceded, and the time when it is taken possession of, is determined by the law of nations. The rule of that law is that nothing is changed until possession is taken of the country.

The Act of Congress of 1824 shows that the grants by the Spanish government did not give riparian rights. If the grantees had such rights, why apply to Congress to allow them? The plaintiffs in error had an equitable title before 1824, which should have been protected. The subsequent act gave them a legal title.

The Courts of Alabama have misconstrued the acts of Congress. A construction has been given to the Act of 1824 which rides over the title of the lessors of the plaintiffs in error, and this court only can correct the judgment of the State court. By the Act of 1824, all the lots which belonged to no one were given to the city of Mobile; but the first section of the act takes no title, equitable or legal, from anyone.

It is not admitted that Congress could, before the United States took possession of the country, pass laws abrogating the established laws of Spain. Governments are of all others The construction of the 2d section of the Act the parties on which the laws of the country, of 1824, which is claimed for the defendant, is which may have acquired the country by trea- such as will take away the property of anty, do not operate before they are in possession. other person. That construction is: If you It has often been decided in this court that find an improved lot, give it to the person who the government which is in possession of a has an improved lot above it; thus giving the country may make grants. In the case of The lot to one who had no agency in the improveState of Rhode Island v. The State of Connec- ment. This is against the grammatical conticut, 12 Peters, 748, the court say: "When a struction of the law, and against the just interritory is acquired by cession, or even con- tentions of the national Legislature. This will quest, the rights of the inhabitants to prop-not be sustained by the court, unless they will erty are respected and sacred. Grants of land by a government de facto, of parts of a disputed territory in its possession, are valid against the State which had the right. 8 Wheat. 509; 12 Wheat. 535; 6 Peters, 712; 8 Peters, 445; 9 Peters, 139; 10 Peters, 330, 718.

The Act of Congress of 1804 speaks of and relates entirely to past cases. See Act of 26th March, 1804, sec. 14. It declares the titles referred to in it to have been, and to be, null and void. Land Laws, 500.

There is no objection to the title of the plaintiffs in error, on the ground that it was not confirmed by the commissioners of the United 359*] *States. Their decision does not disaffirm the title. After the refusal of the commissioners to allow it, an action may be brought upon it.

Was the grant refused by the commissioners because of the provisions of the treaty for the cession of Louisiana? The commissioners say it was refused "because of the want of proof of cultivation and occupation." Grants made after the treaty have been confirmed in many cases; among them a grant to Forbes & Company.

allow one person to take the property of another without compensation, and that the fair grammatical construction of the law shall be disregarded. The object of the law of 1824 was to give lots not granted by the Spanish government, after the Louisiana treaty, styling such concessions "new grants" to the persons mentioned in the acts. "New grants" were excepted, and were left to the legislation of Congress.

*Mr. Key, for the defendants.

[*360

The case presents but few points for the consideration of the court. It is admitted, on the part of the plaintiffs in error, that in 1824 the legal title to the lot in controversy was in the United States. If this was so, by the Act of Congress of 1824 it became vested in the defendants. Before 1824, the defendants had an equitable title, which was made a perfect legal title by that act.

By the decisions of this court, in Foster and Elam v. Neilson, 2 Peters, 253, and Garcia v. Lee, 12 Peters, 511, Spanish grants made for any part of the territory west of the Perdido, after the Treaty of 1803 with France, by which

Louisiana was ceded to the United States, are | location of the lot in question; and a grant declared void. No equitable title under the accompanying the petition, in these words: "i Spanish grant, made after 1803, could exist against the United States.

The whole question between the parties in this case depends on the Act of Congress of 1824. It is to be admitted that if this act is applicable to the title of the plaintiffs, the title is complete. If the title they claim is within the exception of that act, why ask or take a title under the Act of 1836?

The title of the defendants is under a Spanish grant of 1802, which has been confirmed by the United States. The grant was for ground to which the lot claimed by the plaintiffs in error was an accretion. After the Treaty of 1803, the riparian rights by the common law gave the right to this lot to Forbes & Comfirmed by Congress. A map or diagram is repany. Whatever was the Spanish law before the treaty, afterwards, the common law prevailed.

A just construction of this Act of 1824 gives the lot to the defendants, and the judgment of the Supreme Court of Alabama should be sustained by this court.

Mr. Justice Thompson delivered the opinion of the court:

The writ of error in this case brings up the record of the final judgment of the Supreme Court of the State of Alabama. This case is brought here under the 25th section of the Judiciary Act of 1789; that court being the highest court of law in that State in which a decision could be had. It was an action of ejectment, brought to recover possession of a lot of land in the city of Mobile. Upon the trial of the cause, the plaintiff claimed title to the premises in question under an act of Congress, and the decision in the State court was against the right and title so set up and claimed. It is, therefore, one of the cases embraced in this section of the Judiciary Act, which gives to this court jurisdiction to revise the judgment of the State court.

grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant;" which grant was rejected by the commissioners appointed by the government of the United States to investigate and report upon such claims, because of the want of im. provement and occupation of the lot. The defendant gave in evidence a Spanish grant, dated the 9th of June, in the year 1802, to John Forbes & Company, for a lot of ground eighty feet front on Royal Street, with a depth of three hundred and four feet to the east, and bounded on the south by Government Street; which grant was recognized by the commissioners as a perfect title, and so conferred to in the record, by which it appears that the lot sued for is east of Water Street, and immediately in front of the lot conveyed by the above-mentioned grant to John Forbes & Company, and only separated from it by Water Street. It appeared in evidence that previous to the year 1819, and until filled up by Curtis Lewis, the lot in question was, at ordinary high tide, covered with water, and mainly so at all stages of the tide. That the ordinary high water flowed from the east, to about the middle of what is now Water Street. It was proved that John Forbes & Company had been in possession of the lot granted to them since the year 1802; and that said lot was known under the Spanish government, as a water-lot; no lots at that time existing between it and the water.

In the year 1823, no one being in possession of the lot in question, and the same being under water, Curtis Lewis, without title, or claim under title, took possession of and filled up east of Water Street, about thirty-six or forty feet wide, and eighty feet deep from Water Street; the filling up being north of Government Street, at the corner of that and Water Street. Lewis remained in possession about The act under which title was claimed was nine months, when he was ousted in the night passed on the 26th of May, 1824 (Land Laws, time by James Innerarity, one of the firm of 885), granting certain lots of ground to the cor- John Forbes & Company, who caused to be poration of the city of Mobile, and to certain erected thereon a smith's shop. Lewis, some individuals of that city. Although the judg-time after, regained the possession by legal ment of this court must be confined to the error alleged in the decision of the State 361*] court, upon the construction of the act of Congress under which title was claimed, it becomes necessary, to the right understanding of the act which was drawn in question, to look at the state of facts appearing on the record. It being a private act, for the benefit of the city of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of such individuals, and the situation of the land embraced within the law at the time it was passed.

These facts, as they appear on the record, are briefly as follows: On the trial the plaintiff gave in evidence an instrument signed by Cayetano Perez, dated at Mobile, the 12th day of December, in the year 1809, purporting to be a petition of William Pollard, for a certain lot of ground, which is described as vacant, at the river side, between the canal, which is called John Forbes & Company, and the wharf of this place, corresponding in description with the

process, and retained it until he conveyed away the same. When Lewis took possession, Water *Street, at that place, could be passed [*362 by carts, and was common. The defendant connected himself through conveyances for the premises in question with the grant to John Forbes & Company, and also with Curtis Lewis, and the mayor and aldermen of the city of Mobile.

Such being the situation of the lot in question, and of the several claims to the same, the Act of the 26th of May, 1824, was passed. The first section of this act can have no bearing upon the claim set up to the lot in question. It only vests in the city of Mobile all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equi table title exists in favor of any individual, under this or any other act. If, therefore, the second section applies to the lot in question at all, it is excepted out of the first section. That the second section does apply to this lot, has

not been, and cannot be doubted. That section, of the lot on the west side of Water Street was is as follows: "That all the right and claim of entitled to the lot on the east side of it. the United States to so many of the lots of ground east of Water Street, and between Church Street and North Boundary Street, now known as water-lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water-lots, in the said city of Mobile, whereon improvements have been made, be, and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the River Mobile; except, in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water-lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same, in which case the right and claim of the United States Shall be, and is hereby vested in the person to whom such alienation, grant, or order of survey was made, or in his legal representatives. Provided, that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate."

There are two facts to be collected from this discription of the lots embraced in this section of the act, which must be kept in view in deciding this question, viz., that the lots on the west side of Water Street were known under the Spanish government as water-lots; and that the lots on the east side of Water Street are now known as water-lots, and may properly be distinguished under the denomination of old water-lots, and new water-lots.

If this construction of the act was erroneous, and against the right claimed by the plaintiffs, the judgment must be reversed. The act, is, undoubtedly, very obscurely worded, and its construction, it must be admitted, is doubtful. The principal difficulty arises upon the true understanding and reference of the words, "whereon improvements have been made:" whether they refer to improvements on the lot on the west side of Water Street, or on the lot in question on the east side of Water Street. The grammatical construction would undoubtedly refer the improvements to the lot on the west side of the street, and would be carrying into effect what is believed to be the general course of policy in most of the United States, of giving a preference to the owner of land on the shore of navigable streams of water, to the right and privilege of the land under the water between high and low water-mark. And on the other hand, it would seem unjust, where actual improvements had been made on the land below high water-mark, to disregard and take away such improvements, and give them to the owner of the lot on the west side of the

street.

dicate such intention.

The evidence as to the extent and value of the improvements on the lot in question is very loose, and affords but little information upon that point. They could probably have been but of little value. They were made by Curtis Lewis, he not having any title, or even claim of title. And it is not reasonable to suppose that under such circumstances, and from the short time he was in possession before the passage of this act, that he would have made very The only question for this court to decide is, valuable improvements. And if the intention whether the State court misconstrued this act, of Congress had been to give the lots on the by deciding against the right and title set up east side of Water Street to those who had under it by Pollard's heirs. The record states improved them, it would have required but a that the court charged the jury that if the lot very plain and simple declaration to that efconveyed as above to John Forbes & Company, fect, and might have been just and equitable, by the deed aforesaid, was known as a water- if such improvements were valuable. But it is lot under the Spanish government, and if the difficult to conceive how the phrase. [*364 lot claimed by the plaintiffs, had been im-ology in the act could have been adopted to inproved at and previous to the 26th day of May, 1824 (the date of the law), and was east of It is not, however, necessary to decide upon Water Street, and immediately in front of the the construction of this act, as between the lot so conveyed to John Forbes & Company, conflicting claims of the owner of the lot on 363*] *then the lot claimed passed, by the the west side of Water Street, and those who Act of Congress of the 26th of May, 1824, to those had made improvements on the lot on the east at that time owning and occupying the lot so side of that street. For there is excepted out as above conveyed to John Forbes & Company. of the act, all cases where the Spanish gov The facts hypothetically put by the court to ernment has made "a new grant," or order of the jury had been fully proved in the affirma- survey for the same, during the time at which tive, and, in deed, were not at all denied; to wit, they had "the power" to grant the same: in that the lot conveyed to John Forbes & Com- which cases the right and claim of the United pany was known under the Spanish govern-States are vested in the person to whom such ment as a water lot; and that the lot claimed grant or order of survey was made, or his by the plaintiffs had been improved previous legal representatives. And if the plaintiffs to the 26th of May, 1824, and was in front of the lot conveyed to John Forbes & Company. The construction, therefore, of the court was substantially, that the act conveyed the lot in question to the owners and occupants of the lot conveyed to John Forbes & Company. That such was the construction of the act given by the court is conclusively shown by the subsequent part of the charge; that it was immaterial who made the improvements on the lot in dispute on the east side of Water Street. That by the said act of Congress, the proprietor

bring themselves within this exception, the right is secured to them. And this presents the question as to the construction to be given to this exception.

Two points of inquiry seem to be presented: one relates to the description of the grant or order of survey therein mentioned, and the other as to the time when made. The exception describes these grants or orders of survey as "new grants" or orders of survey. The term "new," in its ordinary acceptation, when applied to the same subject or object, is the

ficient to support an action of ejectment, not having been recorded or passed upon by the board of commissioners so as to vest a legal title. But the court observed that this order of survey bears date at a time when the Spanish authorities were in the actual possession of Mobile, where the land lies, and it was claimed as a part of the Floridas, then belonging to the Spanish crown; and the United States claimed it as a part of Louisiana. That the United States having since purchased the Floridas, without having previously settled the controverted boundary, rendered it unneces sary to examine these conflicting claims. And the court add, if the United States and Spain had settled this dispute by treaty, before they extinguished the claim of Spain to the Floridas, the boundary fixed by such treaty would have bound all parties. But as that was not done, the United States have never, so far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory, while Spain was in the actual possession of it, from concessions of a similar character made by Spain, within the acknowledged limits. We will not, therefore, raise any question upon the ground of want of authority in the intendant to make such concession. Nothing more *is to be under- [*366 stood from this case than that the court did not consider the circumstance that the concession being made whilst Spain was in the actual

opposite of old. But such cannot be its mean- require a special act of Congress for that pur ing as here used: for there is no pretense that pose; and the present claim being founded two grants or orders of survey had at any time upon such act, distinguishes it from the docbeen issued for the same lot. Some other trine of this court in the cases of Foster and meaning must, therefore, be given to it. And Elam v. Neilson, 2 Peters, 253, and Garcia v. it doubtless was used in relation to the exist-Lee, 12 Peters, 511. And such claims have been ing condition of that part of the territory, recognized by this court as existing claims, when grants or orders of survey like the one in and not treated as being absolutely void. In question were made. The territory had been the case of Delacroix v. Chamberlain, 12 Wheat. ceded to the United States by the Louisiana 599, an order of survey issued during this Treaty, but in consequence of some dispute period came under the consideration of the with Spain respecting the boundary line, this court. It bore date in the year 1806. The part of the territory remained in the posses-court said this order of survey was not sufsion of Spain. And it is a fact established by the public documents and laws of Congress and cases which have come before this court, that during the period between the cession by France and the acquiring possession by the United States, Spain continued to issue evidences of title of various descriptions; some complete grants, and others, which were only inchoate rights or concessions. And the term "new" was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession. And this construction is rendered certain when the description of the grants is connected with the subsequent part of the sentence as to the time when made, to wit, during the time at which the Spanish government had "the power" to grant the same. This time, according to every reasonable intendment, must have been so designated with reference to the existing state of the territory as between the United States and Spain: the right to the territory being in the United States, and the possession in Spain. The language, "during the time at which Spain had the power to grant the same," was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case if Spain had full dominion over the territory, by the union of 365*] right and possession; *and in this view it is no forced interpretation of the word "power," to consider it here used as import-possession of the territory, had prevented Coning an imperfect right, and distinguishable from complete lawful authority. And, indeed, no other sensible construction can be given to the language here used; and the course of the government of the United States, with respect to the claims originating during this period would seem necessarily to call for this construction. The Act of Congress of the 25th of April, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the River Mississippi, and west of the River Perdido, and falling within the cession by France, embraced all claims of this description; it extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British, or Spanish governments. And the reports of the commissioners show that evidence of claims of various descriptions, issued by Spanish authority down to the year 1810, came under the examination of the commissioners: and the legislation of Congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain at St. Ildefonso.

Such claims are certainly not beyond the reach of Congress to confirm, although it may

gress from acting on the subject of such concessions. And when Congress, in the Act of 28th of May, 1824, excepts certain grants or orders of survey, made by Spain during the time at which they had the power to grant the same; the conclusion is irresistible that it included grants like the one to William Pollard, now in question. This grant bears date on the 9th day of December, in the year 1809, and was rejected by the commissioners for want of improvement and occupation, and not because it was absolutely void. But suppose it had been void under the then existing laws in relation to these lands, it could not prevent Congress from afterwards confirming this grant. The Act of the 26th of March, 1804, 2 Story, 939, sec. 14, declaring certain grants void, could not affect the one to Pollard, which was made in the year 1809, after the passage of that law.

But if the construction of the Act of the 26th of May, 1824, is doubtful, as it is admitted to be, the Act of the 2d of July, 1836, is entitled to great weight in aiding to remove that doubt. It is an act specially for the relief of William Pollard's heirs. It declares that there shall be, and hereby is, confirmed unto the heirs of William Pollard, deceased, a certain lot of

ground situated in the city of Mobile, and bounded as follows, to wit: On the north by what was formerly known as John Forbes & Company's canal; on the west by Water Street, on the south by the King's Wharf, and on the east by the channel of the river; being the description of the lot now in question, and directing a patent to be issued in the usual form for the same. There is a proviso declaring that this act shall not interfere with or affect the claims of third persons. But giving to this proviso its full force and effect, the enacting clause is a legislative construction of the Act of 1824, and locates the patent thereby directed to be issued upon the lot now in question. They are acts in pari materia, and are to be construed together; and in such a manner, if the language will reasonably admit of it, as to permit both acts to stand together and remain in full force. It is not to be presumed that Congress would grant or even simply release the right of the United States to land confess edly before granted. This would be only holding out inducements to litigation. And these two acts cannot stand together without considering the lot in question as coming within the exception of the Act of 1824, and the Act of 1836, as a confirmation (as it purports to be) of the title to the heirs of William Pollard.

The judgment of the Supreme Court of the State of Alabama is, accordingly, reversed.

Mr. Justice M'Lean.

I agree to the judgment of reversal in this case, and as my opinion is mainly founded on the construction of the 2d section of the Act 367*] *of 1824, without reference to the exceptions it contains, I will state, in a very few words, my views in regard to that section.

be made on the lots first named, and to which the United States relinquish their right; and not on those lots named merely to show the local situation of the present water-lots. And this is the construction given to the section by the Supreme Court of Alabama.

The improvements, then, must be made on the water-lot; and the lot in controversy, in this case, is a water-lot.

The court instructed the jury that "if the lot claimed by the plaintiffs had been improved at and previous to the 26th May, 1824, and was east of Water Street, and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed, passed by the act of Congress to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company; and that it was immaterial who made the improvements on the disputed lot."

The second section gives to the proprietor of the lot fronting the water-lot, such water-lot, provided it has been improved.

Now, two things must concur to give a title under this act; and these are, proprietorship of the front lot, and improvements on the waterlot. But, by whom must these improvements be made or owned, at the passage of the law?

The act does not specify; and the court instructed the jury that if improvements were made, it was not material by whom they were made. Can this be the true construction of the act?

Congress did not intend to give to the proprietor of the front lot the water-lot, *368 unless it was improved; nor did they intend to give to the person who had improved the waterlot, such lot, unless he was the proprietor of the front lot. The improvements of the waterlot were as essential to the claim of title under this act, as the proprietorship of the front lot. And can it be supposed that Congress intended to give the water-lot to the proprietor of the front lot, for the reason that the water-lot had been improved by a stranger? In other words, that Congress, by a solmen act of legislation, would give a lot of ground to one man, because it had been improved by another? This is the principle asserted by this construction; and it is so unjust, and so directly opposed to the legislation of Congress, in regard to the pre

It declares "that all the right and claim of the United States to so many of the lots of ground east of Water Street, and between Church Street and North Boundary Street, now known as water-lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water-lots, in the said city of Mobile, whereon improvements have been made, be. and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the River Mobile; except in cases where such proprietor or occu-emptive rights, on the ground of improvements, pant has alienated his right to any such lot, now designated as a water-lot, or the Spanish government has made a new grant," etc.

The lots first named in this section are those to which the right of the United States is relinquished, and those lots are now denominated water-lots, in contradistinction to those called water-lots under the Spanish government.

"All the right and claim of the United States is relinquished to so many of the lots of ground" -then follows a description of the locality of these lots, lying "east of Water Street, and between Church Street and North Boundary Street, now known as water-lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water-lots, in the said city of Mobile:" and here the description of the locality of these lots ends, and the words "whereon improvements have been made," follow. Now, I entertain no doubt the improvements must

that I am unwilling to sanction it. There is no instance in the entire history of legislation by Congress, where they have sanctioned such a principle. The policy has been to secure to the individual the benefits of his own labor and expenditure. And I am of the opinion that unless the proprietor of the front lot was, on the 26th May, 1824, also the proprietor of the improvements on the water-lot, he can claim no title under the act.

Mr. Justice Baldwin.

I fully concur with the court on all the points embraced in their opinions, as well as the rea-. sons assigned; being fully satisfied with the construction given to the acts of Congress of 1804, 1824, and 1836. I have no desire to add anything to the conclusive views presented in the opinion. But there are other important considerations necessarily connected with the merits of the case, which induce me to notice