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It appears that on the 230 June, 1809, the board of commissioners met, and the claim we are now considering was brought before it, and the following decision was made by the board, viz: "It appears that an order of survey for said land was duly issued by the Baron de Carondelet in favor of Anthony de St. Maxent, from whom the claimants derive their title, dated the 14th January, 1795. which the board do hereby confirm agreeable to the terms and conditions specified in the petition, reserving to the United States the grounds within 200 toises of Fort Bourbon.”
Referring to the petition which De St. Maxent presented to the Baron de Carondelet, we find the terms and conditions therein specified to be as follows: That the petitioner would clear all the ground which the governor general should describe as the boundaries of Fort Bourbon, and would carry the levee behind the fort, so as to protect it from high water. The petitioner also obliged himself to clear the land and comply with the ordinance.
When the commissioners confirmed this claim, it was the property of James Smith and Harriss Hooe, who were the assignees of Anthony de St. Maxent. Smith and Hooe subsequently assigned it to Judah Touro, late of New Orleans, deceased, and the memorialists are the legal representatives of said Touro.
It does not appear that application was ever made for a patent for these lands until 1847, when Smith and Hooe applied, and a patent issued, which they refused to accept, upon the ground that it contained a reservation to the United States of the area within the distance of one thousand five hundred Castilian varas, from the most salient points of the extreme outworks of Fort Jackson. Fort Jackson was established in 1842. Such are the facts of the case; and upon these the memorialists ask that Congress will indemnify them for the use which the government has made of their private property, appropriated to public uses in the construction of Fort Jackson, and the reservation of 1,500 Castilian varas around it, and also for any consequential damages which they may have sustained by reason of the injury done to the whole tract of land by the erection of Fort Jackson upon it.
The government claims the right to make the reservation referred to for Fort Jackson, upon the ground that the third coudition of the grant of the Baron de Carondelet to Anthony de St. Maxent secured that right to the King of Spain; and succeeding the government of Spain in the sovereignty of the Territory of Orleans, the United States have the same rights that the King of Spain possessed in respect to the land.
It may well be questioned whether the King of Spain, by virtue of the condition contained in the grant from Carondelet, had any such right as is contended for by our government. The grant, upon its face, purports to be a grant to De St. Maxent and his heirs, and the estate created by it, therefore, is, by the rules of common law, a fee simple; the land was granted for agricultural purposes, and it is not to be supposed that it ever was the intent of the parties to create such an interest only as a mere tenantry at the will of the sovereign; such a condition is
repugnant to the nature of the grant and the views and aims of the parties. Upon this point it has been very well argued, first, that there is no express declaration in this grant that the holder of the lands she'l
not be entitled to indemnity whenever the King shall extend his fortifications beyond the lines of Fort Bourbon; and secondly, that the express exception of the site of Fort Bourbon from the terms of the grant would have been idle and unnecessary if the King and his grantee both intended that the whole or any part of the land might at any time thereafter be used gratuitously for military purposes. Therefore the particular exception to the King of the site of Fort Bourbon, shows very clearly that all the rest of the land was to pass as the private property of De St. Maxent, and to be held by him as sacredly as the property of any other subject, subject only to the stipulated power at any time to erect other fortifications thereon, and leaving the question of compensation to stand upon the general laws of Spain, as well as on general principles of justice and equity.
But waiving entirely this view of the case, it seems clear to the committee that after the confirmation of this grant by the commissioners of the United States, the third condition of the grant from Carondelet was annulled, and the title confirmed to Smith and Hooe upon the terms mentioned in the order of confirmation alone. We have seen that these terms are the conditions mentioned in the petition of De St. Maxent to the Baron Carondelet, namely, that he should clear the land and erect a levee behind the Fort Bourbon, &c.
The act of Congress of 1807 creating the board of commissioners, empowered them to adjudicate all such claims as this according to the established laws, customs, and usages of France and Spain, and made their decisions final and conclusive when favorable to claimants. Doubtless the commissioners, with all proper care and diligence, investigated the laws of Spain touching the right of the sovereign to take private property for public use, and touching, also, the construction of grants from the crown or the ministers of the crown; and the result of their labors in this respect, as we have seen, was to place upon the grant in question a construction different from that now insisted on by our government.
The decision being favorable to the claimants, is final; and it follows that the memorialists have a fee simple estate in the lands in question upon which Fort Jackson is erected; and as the government has appropriated private property for public use, it is bound to make just compensation for it.
The committee therefore report a bill for the relief of the memorialists.
2d Session. 3
[To accompany bill H. R. No. 741.]
FEBRUARY 8, 1855.
Mr. May, from the Committee on the Judiciary, made the following
The Committee on the Judiciary, to whom was referred the memorial of
Thomas Plumsill, report:
The memorialist states that he has for ten years been a faithful bailiff, attending the courts of the District of Columbia; that while he has been paid for his services at the rate of two dollars a day, his said compensation has, by existing laws, been limited to the number of days that the court have been actually in session, while his duties have required his services for many days and weeks both before and after the sessions of the courts, and during such intervals as have occurred in lerm time; that these duties have been very constant and laborious, and have required him to keep a horse to aid in performing them. They concerned the serving of process for jurors, witnesses, &c., in all parts of the District of Columbia; and this at all times of the day, and often at night.
His memorial is sustained by the certificate of a large number of the grand jurors of said district, and the greater number of the respectable members of the local bar-all of whom have had opportunities of knowing the truth of the facts stated by him. They strongly certify to his integrity and fidelity in serving the public interests in his said
He prays for compensation upon three distinct grounds, as exhibited in his account presented with his memorial.
1st. For said services while the courts were not in session.
2d. For the same services during the terms of the courts, rendered in intervals of their sessions.
3d. For the expense of keeping his horse.
The committee think that the first item of his claim is well founded, and reject the others.
In settling the amount to be paid under this item, they have considered the expense of keeping his horse, and allow for himself and horse for the whole period of his services out of term time, at the rate of two dollars a day, and report herewith a bill for his relief on these principles.