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St. Augustine, tenth of November, one thou. . it was said to have been made in consideration Band eight hundred and seventeen; I accept of the royal order of 1815, which limits grants the retrocession which this party offers, of the to one hundred acres, and to persons of a parland which was granted to him on the twenty- | ticular regiment. The power in the governor sixth of June last past, for the reasons which to make a larger grant of land was not thought he exhibits in this petition, and in lieu thereof, to be restrained in making a grant to one who I grant him in lawful property, in conformity was not of the regiment designated in the to the royal order to which he refers, and as he order, and who applied for it on the ground of is entitled thereto, the square of four miles of services. The reasoning in that decision can: land on the north head of Indian River, which not be shaken. It applies with full force to he designates, and to this effect let the secre- the grant now under consideration; the decree tary's office issue to him a copy conforming to of the governor being alike in both cases. But this decree, to which will be annexed the copy this has an additional consideration, recited in of this petition, on which the decr te was ren. the memorial. The surrender of another grant dered. In testimony thereof, and in order that previously made for services; recognized by at all times it may serve as a title in form to the governor in his acceptance of the retrocesthe interested party.
Coppinger. sion offered by the memorialist. This is a Certificates of Aguilar.
grant in absolute property. Though it recites
the order of the 20th March, 1815, the induce1, Don Tomas de Aguilar, sub-lieutenant of the army and secretary of the government ments for making it are considerations which of this place, and of the Province thereof, for plainly show it was not intended by the gove His Majesty, do certify that the preceding copy limited by that order.
ernor to be restrained to the number of acres is faithfully drawn from the original, which exists in the secretary's office in my charge, will be affirmed; but as the survey given in
*The judgment of the court below (*23 2 and in obedience to order, I give the present evidence in this case was rejected by the court, in St. Angustine of Florida, on the eleventh of November, one thousand eight hundred and
as it should have been, this court will direct a seventeen.
Tomas De Aguilar.
survey to be made at the place designated in We, Don Francisco Fatio, and Don Juan the decree of the court below, for the number Huertas, members of this illustrious council of acres decreed, without prejudice to the rights
of third parties. constitutional, do certify that the signatures
This cause came on to be heard on the tranaffixed in this expedient are the same which the signers use, and in testimony thereof, we script of the record from the Superior Court sign this in St. Augustine, on the thirteenth of for the District of East Florida, and was June, one thousand eight hundred and twenty- argued by, counsel; on consideration whereof,
Francisco J. Fatio,
it is adjudged and decreed by this court, that Juan Huertas.
the decree of the said Superior Court in this St. Augustine, 16th May, 1832.- I certify cause, so far as it declares the claim of the pethat the preceding is a correct translation of titioners to be valid, be, and the same is here. the Spanish document annexed.
by affirmed in all respects; and that a survey
be made of the lands contained in the said con. A. Gay, Translator and Interpreter of the Supr. Court.
cession, according to the terms thereof, for the 231*) 'It is contended that the decree should number of acres, and at the place therein desig. be reversed, because the evidence is insufficient nated, provided it does not interfere with the to prove that the grant was made. The proof rights of third parties; and it is further or is a certificate of Aguilar, the secretary of the dered by the court, that a mandate be issued government, which has been ruled to be suf- to the surveyor of public lands, directing him ficient in the case of The United States v. Wig- to do, and cause to be done, all the acts and gins, 14 Peters; and again, at this term, in the things enjoined on him by law, and as required case of The United States v. Rodman.
by the decree and opinion of this court in this The second objection is, that if the grant is said 'Superior Court for further proceedings to
and that this case be remanded to the proved, it is not in conformity to the royal be had therein, in conformity to this decree, order of the 29th March, 1815, by virtue of and the opinion of this court, which must be which it is declared the grant was made.
That royal order has been under the consid- annexed to the mandate. eration of this court in Percheman's case, 7 Peters, 96. In that case, it will be seen that the petitioner refers in his memorial to the order of the 29th March, 1815; and that the *THE STATE OF RHODE ISLAND and [*238 governor in the giant for the land says: "In
Providence Plantations, Complainants, consideration of the provisions of the royal order, under date of 29th March last, which is THE COMMONWEALTH OF MASSACHU. referred to, I do grant to him in absolute prop
SETTS. erty,” etc.; but the court (referring to certificates which were annexed to the memorial for Action between States as to boundaries-pleadthe grant, which the grant refers to as certifi ing-subjects of demurrer-duty of court of cates annexed) said, "military service is the chancery to relieve against mistake-statuto foundation of the grant, and the royal order is of limitations, general rule does not apply to referred to only as showing that the favorable
States. attention of the king had been directed to the petitioner." 7 Peters, 96. The court bus
The State of Rhode Island filed a bill against tained the grant in that case; notwithstanding I that the boundary between the two states should
Commonwealth Massachusetts, clalming 10 La ed.
be settled by the Supreme Court, according to the the 16th of March, 1832, by the State of Rhode
Mr. Webster appeared for the Commonwealth
It is one of the most familiar duties of a court Massachusetts; and, at January Term. 1838, of chancery to relieve against mistake; especially | Mr. Webster, counsel for the Commonwealth of where it has been produced by the misrepresenta- Massachusetts, “moved to dismiss the bill, on tions of the adverse party.
The demurrer of the State of Massachusetts to the ground that the Supreme Court had no juthe bill of Rhode Island, admits the charter lines risdiction in the cause." A full report of the of both the States to have been three miles south of Charles River; that the place marked, and from
matters contained in the bill, and in the plea which the line was agreed to be run, was seven and answer, will be found in 12 Peters, 659-669. miles south of the river, instead of three miles,
The question of jurisdiction was argued by and was fixed on by mistake ; and that the com: missioners of Rhode Island were led into this error
Mr. Austin, Attorney-General of Massachuby confiding in the misrepresentations of the com setts, and Mr. Webster, on the part of the missioners of Massachusetts. Now, if this mistake Commonwealth of Massachusetts, and by Mr. had been discovered a few days after the agreement was made, and Rhode Island had immediate Hazard and Mr. Southard for the State of ly gone before a tribunal having competent juris-Rhode Island. diction to relieve against a mistake committed by The court ordered that the motion to dissuch parties, can there be any doubt that the agreement would have been set aside, and Rhode miss the bill of the complainants should be Island restored to the true charter line? Agree-overruled. ments thus obtained cannot deprive the complain. ant of territory which belonged to her, unlessesbe Mr. Webster, in behalf of the State of Massa
Afterwards, at the same term, 12 Peters, 755, has forfeited her title to relief by acquiescence or unreasonable delay.
chusetts, as her counsel and attorney in court, In the bill of Rhode Island, claiming to have an
moved for leave to withdraw the plea filed in adjustment of the boundary between her and the State of Massachusetts, allegations are made of
the case *on the part of the State of (*235 the interference of certain causes which prevented Massachusetts, and also the appearance which her resorting to measures for relief against a had been entered for the State. mistake as to the boundary line, alleged to have been established by the commissioners of Rhode The court, after argument, on the 24th Feb. Island and Massachusetts. The State of Massa- | 1838, 12 Peters, 761, ordered, "That if the counchusetts, by the demurrer, admits these facts as sel for the State of Massachusetts shall elect stated; and the facts asserted in the bill of Rhode Island must be taken as true. It is, therefore, not
to withdraw the appearance heretofore necessary to decide whether they are sufficient to tered, that leave for the same be and was excuse the delay. But when it is admitted by the given; and the State of Rhode Island may prohas from time to time made efforts to regain the ceed ex-parte. But that, if the appearance be territory by negotiations with Massachusetts, and not withdrawn, that then, as no testimony was prevented, by the circumstances she mentions: had been taken, the parties be allowed to with. her redress, the court cannot undertake to say the draw or amend the pleadings, under such order possession of Massachusetts has been such as to as the court should thereafter make in the give her a title by prescription; or that the laches premises. of Rhode Island has been such as to forfeit her right to the interposition of a court of equity.
The appearance of the State of MassachuIn cases between individuals where the statute setts was not withdrawn; and the case was ar. of limitations would be a bar at law, the same rule gued, on the sufficiency of the plea, at January where the fact appears on the face of the bini, and Term, 1840: the bill of the complainants having no circumstances are stated which take the case been amended. 14 Peters, 210. 234.] out of the operation of the act. the defend. On the 8th of January, 1841, the State of ant may, undoubtedly, take advantage of it by Massachusetts, by Mr. Austin, the Attorney. demurrer : and is not bound to plead or answer.
The time necessary to operate as a bar in equity. General of the Commonwealth, and Mr. Web18 fixed at twenty years by analogy to the statute ster, "for himself,” filed the following demur. of limitations. It would be impossible to adopt the same rule of
rer to the complainant's bill: limitations in the case before the court on these The defendant, by protestation, not confesspleadings. Here two political communities are | ing all or any of the matters and things in the concerned who cannot act with the same prompt: complainant's bill of complaint contained to be ness as individuals. case interpose objections. The boundary in ques
true, dotb demur to the said bill, and for cause tion was in a wild, unsettled country, and the er of demurrer, showethror in fixing the line not likely to be discovered until the lands were granted by the respective
"That no case is stated by the bill authoriz. colonies ; and the settlements approached the dis- ing this court to grant the relief sought, or any puted line. And the only tribunal that could re: other relief; lleve, after the mistake was discovered in 1740, was on the other side of the Atlantic, and was of the bill as is sufficient to set aside the awards.
"That no such fraud or mistake is a verred in bound to hear the cause and proceed to judgment, except when it suited its own convenience. same reasons that prevent the bar of limitations: stated, nor any other cause or reason sufficient
The and agreements between the parties therein tained and held by Massachusetts, under such cir. for that purpose; and that these awards and cumstances, cannot give a title by prescription. agreements conclude the question.
"That the bill states nothing which can do HIS case was before the court at January away the effect of the possession by Massachu.
Term, 1838, 12 Peters, 657; and again, at setts up to the line asserted by her to be the January Term, 1840, 14 Peters, 210.
true line, which possession the bill itself admits A bill was filed in the Supreme Court, on to have been continued for more than a cen
tury, and which possession is itself conclusive | merits of the plaintiff's case depend. If it be on the title.
not true, there is no pretense of right to dis"That the bill states no case for the interfer- turb the ancient and existing possession of the ence of this court, with the line of division respondent. actually existing between two independent Whether it be true or not, in point of fact, States, fixed by treaty, conipact, or agreement must depend on a legal construction of the between them, and acquiesced in for a century, words of the charter. As illustrative of that as is true of this case, according to the bill it. question, and not in the present aspect of the 236*) self. *"That this court has no power case, for any purpose of deciding it, the maps or jurisdiction to disturb or interfere with a and plans of the territory heretofore used, and boundary line actually existing between two now before the court, may be referred to. States, well known and defined, and resting on By universal admission, the Charles river has early compact and long continued acquiescence one main or principal stream, which is supplied and possession, upon any allegation of fraud by other streams or branches. If these latter or mistake in the original transaction. streams, which have also local names, are any
"Wherefore, and for divers other good causes part of Charles River within the meaning of the of demurrer appearing in the said bill, the de- charter, then the actual line of Massachusetts, fendant doth demur thereto, and asks the judg: which is within three miles of the principal ment of the court, whether said defendant branch (sometimes locally called Mill River, at ought to be ordered to make any further or others, Jack's Pasture Brook), is the true other answer to said bill; and prays to be hence boundary by her charter. If the main stream, dismissed with costs."
and not the head waters, is alone entitled to be The demurrer was argued by Mr. Austin and termed "Charles River, or any and every part Mr. Webster for the State of Massachusetts, thereof," then unquestionably the actual line of and by Mr. Randolph and Mr. Whipple for the Massachusetts is not in conformity with the State of Rhode Island and Providence Planta- charter; because, in ancient times, it was astions.
sumed, and now is believed to be true, that Mr. Austin, for the respondents, in support the true point of offset for the protraction, of the demurrer:
southwardly of the line of three miles from any The object of the plaintiff is, by a decree of part of Charles River, is from the most souththis court, to be confirmed and established in erly stream, branch, or head waters of the the title, jurisdiction, and sovereignty, which river, and it was accordingly so drawn. It is she sets up to a portion of territory, now and believed that such is and ever was the univerever heretofore, in the possession, jurisdiction, sal acceptance of the terms; and that wherever and sovereignty of the respondent.
a different construction was put on the like The bill describes this disputed territory with phraseology, it was the construction made by reasonable accuracy, so that it is seen to be in power in violation of right. cluded between the present actual southern But the case now stands before the court on boundary of Massachusetts, and a line nearly demurrer; and in this form of pleading the parallel thereto, drawn between three and four counsel for Massachusetts very well understand miles due north from it, along the whole border that this question of fact is not open to discusof Rhode Island, comprising an area of about sion. They are bound by the allega. (*238 one hundred square miles.
tions of the bill, and must proceed to a hearing The bill does not state that this territory is with this fact, pro hac vice, against them; and densely inhabited, and under a high state of with an admission that the line of actual posimprovement; but if the court could judicially session is not the true line of the charter. It is understand that it is occupied by seven thou- with full confidence in the opinion that the bill sand people, all of whom, as did their ancestors (even admitting this great and fundamental er. to remotest time, deem themselres to be citi-ror on the part of Rhode Island, to be received zens, and most of them native citizens of Mas. as she has stated it), does not set forth a suffisachusetts, and that there is upon it not less cient cause for the interposition of this court; than a million of dollars of taxable property, that Massachusetts has ventured to waive this the importance of the controversy could not be consideration for the present; and to deny that doubted.
even on this presumption Rhode Island has any The bill sets forth the alleged title of Rhode title, by her own showing, to the territorial Island to the territory in dispute, and claims it jurisdiction which she demands by her bill. We as included in the charter of Charles II. It de suppose, indeed, this is already settled by this scribes accurately the title of Massachusetts to court in effect, though not in form. The bill the territory secured to her by her colonial and incorporates the defense of Massachusetts, on provincial charters, the one granted in 1629, two other points; which, independent of the 237*) and the other in 1691; and alleges that original accuracy of the boundary, are each, by her southern boundary is by a line, “three Eng. itself, fatal to the plaintiff's demand. It admits lish myles on the south parte of the rivir the fact of an amicable settlement in 1710 and called Charles rivir, or of any or every parte 1718, and the further fact of an actual posses. thereof;" and further alleges that the southern sion on the part of Massachusetts, under and boundary of Massachusetts, and the northern boundary of Rhode Island, is by the same line; 1 by virtue of such agreements, for now nearly a the one being contiguous to the other. All this century and a half. is true.
It is again obvious that the question of right The bill avers that the actual line of posses- between these parties depends: sion on the part of Massachusetts is more than 1st. On the original correct location of the three miles, viz.: seven miles south of Charles boundary line. River, and of any and every part thereof. On 2d. On the effect of the agreements in estab this allegation it is obvious the whole assumed lishing a boundary.
3d. On the undisturbed possession for more taking the allegations to be true, the bill would than one hundred years.
be dismissed at the hearing, it may be dis. On the former hearing in this case the re- missed on demurrer. Utterron v. Mair, 2 Ves. spondent had filed a plea in bar, setting out, Jun. 05. The object of a hearing is only to in. more fully than the plaintiff had done, the quire whether the allegations are proved, and agreements of 1710, 1718, and relying upon the effect of them. When, therefore, if proved them as fair and perfect contracts, made fairly, or confessed, a decree must be had for defendwith full and equal knowledge, and accom-ant; the defendant may safely admit them, and panied and followed by an undisturbed posses. may therefore as safely demur to the whole sion from the time they were made.
bill. Kemp v. Prior, 7 Ves. Jun. 245; Brooke y We understood the court to overrule that Hewitt, 3 Ves. Jun. 253; Verplank v. Cacuis, 1 plea, because it contained two defenses instead N. Y. Cases in Chancery, 59. Unquestionably of one; upon a strict application of the severest the legal effect of the facts admitted by demurrules of chancery practice, which, with great rer or proof, may be a subject difficult to setrespect, we had contended could not apply to atle; but in a clear case of want of title, or case like the present, and were in no case ap-equity, the result of a demurrer must be in plicable to the plea in the form in which it was favor of the defendant. presented.
If, therefore, it shall now appear to the court, 239*] *In pronouncing the opinion of the by the fair import of the plaintiff's admissions court, the Chief Justice said: “The defense set in his bill, that notwithstanding any departure up by the plea is twofold:
from the charter boundary, for good and suff"lst. That there was an accord and compro cient cause, the colonies of Massachusetts and mise of a disputed right.
Rhode Island, by their authorized agents, set. “2d. Prescription, or an unmolested posses- tled the location of boundary on this frontier, sion for more than one hundred years.
such settlement is valid; and the court must "These two defenses are entirely distinct, and dismiss the bill. depend upon different principles.”
Again, it appears to the counsel of MassaAnd after considering them separately the chusetts, that if without any regard to the unChief Justice further remarks: “Here, then, are ascertained line described on paper in the chartwo defenses in the same plea, contrary to the ter of King Charles I., or any regard to any established rules of pleading.”
claim or any settlement with her neighbors, And again, upon the form of pleading, the Massachusetts, in ancient times, entered on the opinion of the court is to the following effect: disputed territory, more than one hundred and
“A plea in general supposes that the bill con- thirty years ago, and has always possessed it,
"If the defendant supposes that a bill does the bill. The plaintiff, to recover, must depend not disclose a case which entitles Rhode Island on the strength of his own title, not on the to the relief she seeks, the whole subject can be weakness *of the defendant's. The (*241 brought to a hearing by a demurser to the bill. plaintiff's title is set forth in the bill. It main.
ly depends on the charter granted to Rhode The whole case is open, and upon the rule to Island by Charles II., on 8th July, 1663. answer which the court will lay upon the de- Now, if under the circumstances of the case fendant, Massachusetts is entirely at liberty set out in the bill, at the time the charter was to demur or answer, as she may deem best for granted, the disputed territory was not in law her interests."
created a part of the colony of Rhode Island It seemed to us that the court, having thus then established, the plaintiff must fail on de. decided, not, indeed, that we had the two valid murrer. defenses set forth in our plea, but that, if in That it never passed by guch charter to the truth we did possess them, either was in itself then new colony of Rhode Island, we think a bar, though both could not be joined in the could be made very clear by other records and then present form; permitted, if they did not proceedings, which history has preserved; but invite us to present them under such form as the question for this court to settle on the preswould authorize a joinder of both, and a con- ent state of the pleadings will be, how does the sideration of either, independent of the other. title of the plaintiff appear on her own allegeWe had hope, therefore, that the plaintiff, hav- tion in her bill? ing, as we think, admitted both in his own It is proposed, therefore, to sustain the fol240*] *declaration, would have been satisfied lowing propositions: that whenever they were considered they would 1. That, on the face of the bill, it sufficiently of necessity prevail.
appears that the colony of Rhode Island, and The demurrer now joined presents these de- Providence Plantations, never had any charter fenses, with all others growing out of the title to the territory demanded. plaintiff's own statement of the case.
It is a II. That this territory never was any part of familiar and well established principle, that if, I the State of Rhode Island.
III. That by the bill it sufficiently appears They established the boundary, to begin in that if her title, as now claimed, ever vested by latitude forty-one degrees, fifty-five minutes. charter, still it is lost by force of the agree- The monument, the supposed boundary, the ments of January, 1710, and October, 1718, and line thence to be drawn, became known and the proceedings of May, 1719, set forth therein. notorious.
IV. That there has been an adverse posses. Governor Dudley, of Massachusetts, on a sion of more than one hundred years, apparent solemn occasion, sixty-eight years after, proby the bill, which is conclusive against any claimed it. Governor Jenks, of Rhode Island, other claim of title.
*on the same occasion admitted it. All (*243 In considering the bill with reference to these this is apparent on the bill. propositions, two rules of law have an impor- This demarcation, and the notoriety of it, at tant bearing:
that ancient time, in the wilderness, when it 1. That although a demurrer admits all the was important to draw a line, but of no im. facts well pleaded, it admits facts only, and portance where it should be drawn, was a pracnot the conclusions of law. Ford v. Peering, tical construction of the charter, conclusive i Ves. Jun. 76, 78; 2 Madox Chanc. 224. against all the world, unless, indeed, the King
2. The plaintiff can have no better case on of England might be an exception. He never proof, and no remedy for any other case than objected, and his silence was consent. is stated in her bill.
Massachusetts, as the bill shows, being thus This principle, however familiar, is in its ex. for twenty-one years without a neighbor, setact application exceedingly important in this tled up to, and, in the language of that day, case. "It has recent!y received the attention of planted towards the line. Then the charter of this court. Boon v. Childs, 10 Peters, 209; see, Rhode Island was granted by Charles II., also, 4 Madd. R. 21, 29; 3 Wheaton, 527; 6 bounding the colony of Rhode Island on the Wheaton, 418; 2 Wheaton, 380; 2 Peters, 612; southerly line of the “Massachusetts colony or 11 Wheaton, 103; 6 Johns. R. 559, 563; 7 Pe plantation,” making no mention of the Massaters, 274.
chusetts charter; but assuming, by this new 242*] *To the first point, then. How does word “Plantation," for the first time applied to Rhode Island claim the premises? Her title to Massachusetts, that her actual occupation was anything rests on her charter from Charles II., her charter limits. The Colony of Massachudated 8th July, 1663. In this charter she has setts was established by the royal charter, the no northern boundary, by natural objects or Plantation by the act of the people. The char. line of latitude. She is bounded on the south- ter of Rhode Island recognizes the existence of erly line of the Massachusetts colony or planta. Massachusetts as, at that time, she existed in tion. Where that line was must be ascertained fact. by examining the colony and plantation of Mas- If the grant to Rhode Island was intended to sachusetts; and in this position of the cause include the space north of Woodward and Safit is admitted that the bill furnishes the only frey's station, which is nowhere so declared in evidence. But it is well enough there stated. the bill, and cannot be supposed, it would not The colony of Massachusetts is the elder by convey any title from a grantor out of possesthirty-five years. All the charters are set out sion; and could therefore give, in this disputed in the bill.
territory, no claim to the colony. It is fairly First, is the grant of King James to the to be inferred, that when a new colony was to Council of Plymouth, in 1621, in which the be erected at the south of Massachusetts, and southern boundary is described as "lying with was bounded on the said colony or plantation, in the space of three English miles on the south all the facts of the case were known; and that part of the said Charles River, or of any, or of the boundary was intended to conform to an every part thereof."
existing state of things, which had so long been Next, is the deed of the Council of Plymouth possessed under a demand of right. to Sir Henry Rosewell and others, 19th of For forty-three years the Colony of Rhode March, 1628, with the same boundary. Again Island submitted and acquiesced in this locafollows the confirmation deed of Charles I., tion. Now, although the title by possession dated 4th of March, 1629, with the same de- forms a distinct subject of inquiry, yet, here it scription. Boston was settled in 1630, and the may be invoked, to show that Rhode Island mouth of Charles River is on the west side of took no part of this territory by her colonial the city. Three miles south of it, would ex charter. A charter, without possession under tend to Brookline, about thirty miles more it, can form no evidence of title after the revonortherly than the present claim of Rhode Is- cation of that charter, on the 4th of July, 1776. land. It is not from the mouth of the river, It is believed that the great respect paid by then, that the offset of three miles is to be this court, in repeated cases, to the va- [*244 drawn. At that period, and for many years lidity of crown grants has not extended to give after the river was unexplored. The ancient validity to any grant of which actual possesmaps if it was proper to examine them, are all sion was not taken in a reasonable time; and marvelously inaccurate. In 1646, two per that an adverse possession submitted to for sons called Woodward and Saffrey, and denom. furty-three years is conclusive evidence that inated "skillful approved artists," with or with the territory in such adverse possession was not out authority, went into the interior to explore included in the terms of any other grant. the country, make a map of it (the map is be- II. If this territory never passed to the colo. fore us, and has been lithographically copied by ny, the State never had title to it; the claim of the counsel of plaintiff); find the south branch the State being only as successor to the col. of Charles River, measure three miles, and ony. erect a monument in perpetual remembrance of III. It appears on the face of the bill, that a the thing. All this they did. The bill shows it. dispute arose between the two colonies in 1710,