PRIVATE LAND CLAIM—ACT JUNE 2, 1858. claim to land in Florida and Louisiana, based upon occupation, habitation, and cultivation, under the former government in sovereignty over the country, is a private land claim, and included within the provisions of the third section of the act of June 2, 1858. A title resting on such basis is of the same validity and efficacy as one founded on a written permission to settle, or order of survey, or as any incomplete title. In the case of a private claim owned by different parties where the interests therein are separate, divisible, and determinate, scrip may issue to any one of the owners to the amount of his determined interest therein. Acting Secretary Muldrow to Commissioner Sparks, May 5, 1887. The narrow strip of country in Louisiana adjacent to Texas, known as the "neutral territory," having been finally ceded to the United States by the treaty with Spain, of date February 22, 1819 (8 Stat., 252), Congress, on the 3d of March, 1823 (3 Stat., 756), passed an act providing for the examination of the titles and claims to land in that territory. The first section of the act provided that said tract of country should be attached to the land district south of Red River; and the register and receiver of that district, among other things, were required: To receive and record all evidences of claim, founded on occupation, habitation and cultivation, designating particularly the time and manner in which each tract was occupied, inhabited, or cultivated prior to, and on, the 22d of February, 1819, and the continuation thereof subsequent to that time, with the extent of the improvement on each tract, etc. The second section provided: That the register and receiver as aforesaid shall transmit to the Secretary of the Treasury a complete record of all the claims presented to them under this act, and the evidence appertaining to each claim, and shall also make out and transmit to the Secretary of the Treasury an abstract containing the whole number of claims in four distinct classes, . . . . . the third class shall consist of claims founded on habitation, occupation, or cultivation, previous to the 22d of February, 1819, and the manner which would have entitled the claimants to a title under the government exercising the sovereign power over that tract of country, and which in their opinion ought to be confirmed, etc. The act of May 26, 1824 (4 Stat., 65), is supplementary to the first mentioned act, merely extending the territorial jurisdiction of the reg ister and receiver. In the report of the register and receiver of the Southwestern District of Louisiana, dated at Opelousas, November 1, 1824, the claim of Elias Blunt, 3d class, No. 253, among others, was recommended for confir mation in the following language: Elias Blunt, of the parish of St. Landry, assignee of Archibald Smith, filed his notice, claiming by virtue of inhabitation, occupation, and cul tivation, a tract of land situated on the west bank of the Quelqueshue river, at a place called Blunt's ferry, bounded below by William and George Smith, and containing six hundred and forty acres. : Then follows a resume of the evidence supporting the claim, and finally "We are of opinion this claim ought to be confirmed; and in the abstract have classed it with claims of third class." American State Papers, Green's Ed., Vol. 4, pp. 71, 2 & 4. By the act of Congress approved May 24, 1828 (6 Stat., 382), the claims in the third class above, (with a few express exceptions-that of Blunt not being among the exceptions,) were confirmed. This act was entitled "An act to confirm claims to land in the district between Rio Hondo and Sabine rivers, founded on habitation and cultivation;" and provided in the first section thereof: "That the claims to land founded on habitation and cultivation, . . contained in the third class of the report of said register and receiver be, and the same are hereby confirmed," etc. The second section provided: That the confirmations made by this act shall not be construed to extend farther than to a relinquishment of title on the part of the United States, and the claims hereby confirmed shall be located under the direction of the register and receiver of the proper land office in conformity with the legal subdivisions of the public surveys, so far as practicable, and shall include the improvements of the claimants respectively. In 1827, before the government surveys had been extended over the township in which this claim was situated, Elias Blunt sold his inchoate claim and land to the heirs of James Ashworth, deceased, for the sum of $500. On the 28th of December, 1852, the claim was located under the direction of the register, and embraced parts of sections 23, 24, 25, 26, 35 and 36 in T. 9 S., R. 9 W., Western District of Louisiana, aggregating according to the township survey then in existe nce nearly six hundred and forty acres. It appears, however, that a large part of this location had been approved May 5, 1852, to the State of Louisiana as swamp and overflowed land under the grant to that State by the act of 1849. Accordingly a relocation of the claim was made by the register and receiver June 22, 1886, upon the former tracts not embraced in the State swamp selection, aggregating 221.23 acres, sit uated in sections 23, 24, 35, and 36, and August 21, 1886, patent was issued for such relocation under section 2447 of the U. S. Revised Statutes, and the same was subsequently delivered to the appellants in this case. On January 20, 1883, the whole claim as originally located (including the swamp selections) was sold at sheriff's sale in separate tracts as the result of a partition suit, Allen J. Perkins and William B. Norris purchasing the E. of the E. of Sec. 26, which contained 163.28 acres. This tract having been approved to the State as aforesaid, Perkins and Norris, August 16, 1886, applied to the surveyor-general of Louisiana for indemnity certificates of location under the act of June 2, 1858 (11 Stat., 294), who, on the 21st of that month, denied the application on the ground that it was contrary to office practice to issue scrip for only a portion of a claim, while any other portion also remained unsatisfied. Appeal was then taken, and you, by decision dated January 11, 1887, also rejected the application on two grounds: First, That the claim was not a private land claim within the meaning of the third section of the general scrip act of 1858, but only a donation; and Second, That even if it be a private land claim, indemnity certificates of location must be refused for the reason assigned by the surveyor-general. Appeal was then brought here and the case has been given a most careful consideration. Appellants have been heard orally and upon brief. This is a test case upon both points of objection raised by you against the issuance of scrip, and the decision herein will practically govern a number of other cases of like character. Exception is taken to both grounds upon which your decision is based. The third section of the act of 1858, under the provisions of which relief is asked, concludes as follows: That in all cases of confirmation by this act, or where any private land claim has been confirmed by Congress, and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation, or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor-general of the district in which such claim was situated, upon satisfactory proof that such claim has been confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the claimant or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and unsatisfied; which certificate may be located upon any of the public lands of the United States subject to sale at private entry, at a price not exceeding one dollar and twenty-five cents per acre: Provided, That such location shall conform to legal divisions and subdivisions. After quoting this part of the act of 1858 you say: "This claim can not be considered a private land claim," because "no claim to any written evidence of title or permission to settle is alleged. Therefore the confirmation. . . . . is a donation by the United States government for six hundred and forty acres of land," etc. That is to say, you hold that there can be no private land claim without written evidence alleged as the origin of the right. In this I think you err. The act of March 3, 1823 (supra), contemplates no such distinction. It treats all claims in the first, second and third classes as "claims to land," arranging them in the several classes merely as a matter of convenience. It is careful to say, however, that no claim shall be included in any one of said classes that, in the opinion of the Commissioners, could not have ripened into a perfect title under the former government in sovereignty over this country, had not that sovereignty been transferred to the United States. Therefore the measure of the validity of the title is the laws, usages, and customs of this country under the Spanish government. The standard of right fixed to determine the validity-the legality of the claims-is found in those laws, usages and customs with reference to this territory. Claim is defined as: "A demand as of right"-Worcester. The question for consideration thus becomes, had these claimants such a right under the foreign government as would have been recognized by it in case they had sought to perfect their titles. I think they had. It is well settled that the term grant in the Louisiana and Florida treaties comprehends not only those which are made in form, but also any concession, warrant, order or permission to survey, settle or possess, whether evidenced by writing or parol or presumed from possession. Strother v. Lucas (12 Pet., 410, Sanchez v. Gonzales (11 Martin, 207), Le Blanc v. Viator et al. (3 La. Con'd, 830), Landry v. Martin et al. (15 La., 1), and White's Recopilacion, Vol. 2, pp. 228, 244 and 691. It is likewise well settled that under the laws, usages and customs above referred to these imperfect titles-these claims-were suffered by the government to descend by inheritance, were transferrible by private bargain, either by written instrument or by parol, and when the case required were seized on execution and sold for the payment of debts. See authorities last cited. And the confirmatory act of 1828 relinquishes the Federal title, not solely because the claims were "founded on habitation and cultiva tion," but because also such "habitation and cultivation," as reported in the particular case, evidenced the fact that the claimant, had the sovereignty of Spain continued, "would have been entitled to a title under" that government, because such "habitation and cultivation" gave him under the laws, usages and customs of Spain an inchoate title, which was protected by the treaty of cession and the laws of nations. A legislative confirmation of a claim to land is a recognition of the validity of such claim, and operates as effectually as a grant or quitclaim from the government. Langdeau v. Hanes (21 Wall., 521), Slidell v. Grandjean (111 U. S., 412). The acts of 1823 and of 1828 (supra) speak of these claims as "claims to land"—that is, "a demand as of right" to land; and they have always been so considered in the Land Department. To hold then that they are not "land claims" seems merely a play upon words and should not enter into judicial consideration. If "land claims," they must of necessity be "private land claims." Your definition of a "private land claim" would seem to embrace any claim founded on written evidence of title. But I think it clearly es tablished by the authorities heretofore cited that a title based on "occupation, habitation and cultivation," under the former government in sovereignty over this tract of country, was as valid and of as much efficacy as one based upon a written permission to settle, an order of survey, or as any incomplete title. I think it also clearly established by those same authorities that these claims were considered and treated as private property. Hence, when confirmed, they were not donations from this government, as that term is properly understood and applied. For a donation is in the nature of a gift, and is never predicated of any right to demand existing in the donee. It emanates in the generosity of the donor simply, and proceeds purely from bounty or gratitude. It is "A transfer of the title to property to one who receives it without paying for it." (1 Bouv., 501). Again, the whole legislation of Congress upon the subject of land claims in the Louisiana and Florida countries recognized and treated claims of the nature of these Rio Hondo claims as "private land claims," and considered them on the same footing as other claims based on written evidence of title. See the Missouri acts of July 9, 1832 (4 Stat., 565), March 2, 1833 (id., 661), July 4, 1836 (5 id., 136); June 2, 1858, 2d Sec. (supra), March 2, 1805 (2 id., 324), April 21, 1806 (id., 390), and March 3, 1807 (id., 440). Further, the records of your office and of this Department abundantly show that claims of this class have been universally considered as "private land claims" within the meaning of the general scrip act of 1858. They have never been considered as anything else. See particularly letter of Commissioner Drummond, of August 26, 1872 (Land Office Report for 1873, p. 41), in which, after an exhaustive review of the subject, he concluded that the settlement claims in the Greensburg district of Louisiana-claims inferior to the class here under consideration-were within the purview of said act of 1858. The records of your office also show that a number of Rio Hondo claims have been satisfied with indemnity scrip under the act of 1858. Even so late as September 17th last, the Department in the case of Lettrieus Alrio (5 L. D., 158), considered a claim precisely like the one now under consideration in this particular as a "private land claim" within the meaning of the general scrip act. This question was then considered as so well settled that nothing more than a mere statement of the fact was deemed necessary to carry its conclusiveness. "Whenever an act of Congress has, by actual decision, or by continued usage and practice, received a construction at the proper department, and that construction has been acted on for a succession of years, it must be a strong and palpable case of error and injustice that would justify a change in the interpretation to be given to it." 2 Opin., 558; 4 id., 470; 10 id., 55; Barnard v. Ashley (18 How., 43); United States v. Philbrick (120 U. S., 52, and cases cited therein). For the foregoing reasons, your decision upon the first question raised by the appeal is reversed. This brings me to the consideration of the second exception to your decision, which is thus assigned : You erred in denying to Allen J. Perkins and William B. Norris indemnity lands under the act of June 2, 1858, for a determinate and determined part of a located private land claim, which part had been adversely disposed of by the United States prior to June 2, 1858, on the ground that the owners of the other determinate and determined parts had not joined in the application for relief. Your language on this branch of the case is as follows: Persons who hold under the confirmee as assignees, devisees, or by operation of law, are legal representatives, and as such have an un |