BURDENS OF CLAIMANTS

[§ 133 been fatal to a claimant, when he had received an unconditional grant, valid according to the law of the former sovereign, and from which he might have obtained a legal title had not the transfer taken place. Where the former sovereign imposed a condition precedent which was not performed by the claimant either prior to the cession or thereafter, and no excuse for non-performance was shown, no equitable title has been deemed to survive the change of sovereignty and burden the grantee. The situation has been otherwise regarded, however, where the condition imposed by the grantor State was a condition subsequent, of which performance was rendered impossible by the act of the grantor (through its cession of territory) and was a matter of no importance to the grantee State.3

4

The United States has been unwilling to admit that the cession to itself of territory has served to lessen the duty of the grantee of land, or so to diminish the burdens of an individual claimant as to transform an equitable into a legal title. It has frequently been declared by the Supreme Court that the duty of providing a mode or system for the establishment of rights of private and immovable property, and of ascertaining thereby the extent of the obligation of the new sovereign, rests upon the political department

1 Delassus v. United States, 9 Pet. 117, 133-135. See, also, Mitchel v. United States, 9 Pet. 711, 734; United States v. Clarke, 9 Pet. 168; United States v. Heirs of Clarke, 16 Pet. 228, 231–232.

2 United States v. Kingsley, 12 Pet. 476, 485; also United States v. Mills's Heirs, 12 Pet. 215.

3 United States v. Arredondo, 6 Pet. 691, 745–746.

"The true rule of law would seem to be that the receiving State should have the right at the time of cession to declare that it will not allow under its jurisdiction and law the further completion of title by the performance of unfulfilled conditions, and will therefore grant titles only to such claimants as are at the time of cession substantially owners of the interest claimed. Where no such declaration is made, however, it would seem that the receiving State should be compelled to perfect the titles of claimants who have in good faith performed after cession the unfulfilled conditions of their grants before the expiration of the time allowed in the condition." Francis B. Sayre, "Change of Sovereignty and Private Ownership of Land", Am. J., XII, 475, 488.

4 Thus, it was said in De la Croix v. Chamberlain: "It may be admitted, that the United States were bound, in good faith, by the terms of the treaty of cession, by which they acquired the Floridas, to confirm such concessions as had been made by warrants of survey; yet, it would not follow, that the legal title would be perfected until confirmation. The Government of the United States has, throughout, acted upon a different principle in relation to these inchoate rights, in all its acquisitions of territory, whether from Spain or France. Whilst the Government has admitted its obligation to confirm such inchoate rights or concessions as had been fairly made, it has maintained, that the legal title remained in the United States, until, by some act of confirmation, it was passed, or relinquished to the claimants. It has maintained its right to prescribe the forms and manner of proceeding in order to obtain a confirmation, and its right to establish tribunals to investigate and pronounce upon their fairness and validity." 12 Wheat. 599, 601. See, also, Cessna v. United States, 169 U. S. 165, 186-187.

of the Government,' and that that department may reasonably demand that the validity of a title derived from a prior sovereign be judicially determined.2

The validity of any act attributable to the former sovereign as such must be obviously tested according to its laws.3 The new sovereign may, however, exercise its own judgment in determining what shall be required as proof of the validity of acts of its predecessor.4

The law of nations imposes no duty upon a State to permit nonresident aliens to retain title to immovable property within the national domain. The new sovereign may, therefore, not unreasonably demand that the retention of ownership of such property be dependent upon the continued residence of the owners therein, and upon the severing of any existing ties of allegiance to the former sovereign. Thus treaties of cession not infrequently provide that the existing owners of immovable property desirous of retaining their national character, be given reasonable opportunity to dispose of their holdings. The terms of a treaty may not,

5

1 De la Croix v. Chamberlain, supra; Astiazaran v. Santa Rita Land and Mining Co., 148 U. S. 80, 81; United States v. Santa Fé, 165 U. S. 675, 714; Ainsa v. New Mexico and Arizona Railroad Co., 175 U. S. 76, 79.

2 See Ainsa v. New Mexico and Arizona Railroad Co., supra. The opinion of the court by Mr. Justice Gray contains a summary of the several acts of Congress providing for the confirmation of titles of claimants to lands in Louisiana, the Floridas, California and New Mexico, granted by the former sovereigns of those territories. See, also, Florida v. Furman, 180 U. S. 402; Barker v. Harvey, 181 U. S. 481.

Mr. Bayard, Secy. of State, to Mr. Roberts, Mar. 20, 1886, MS. Inst, Chili, XVII, 196, 200, Moore, Dig., I, 421-422; United States v. Clarke, 8 Pet. 436, 450, with reference to Art. VIII of the treaty with Spain of Feb. 22, 1819, providing for the protection of certain Spanish grants of land in the territories ceded. Also Kealoha v. Castle, 210 U. S. 149.

4 Hayes v. United States, 170 U. S. 637, 647, with reference to the Act of Congress of March 3, 1891, creating a Court of Private Land Claims for the adjustment of land titles in Mexico and Arizona, as compared with certain earlier legislation of Congress; also Ely's Admr. v. United States, 171 U. S. 220, 224; United States v. Elder, 177 U. S. 104; Whitney v. United States, 181 U. S. 104, 114. Compare the statutes construed in United States v. Arredondo, 6 Pet. 691, with reference to grants by the Spanish Crown in Florida, and United States v. Peralta, 19 How. 343, with reference to prior grants in California.

In his paper on "Change of Sovereignty and Private Ownership of Land", Am. J., XII, 475, 495, Prof. Francis B. Sayre concludes: "There can be no question that United States courts will not allow a mere cession of territory to the United States to injure or abrogate vested rights of land ownership, legal or equitable, held by individuals at the time of cession. It is equally clear that United States courts will feel free to disregard mere expectant rights which could not have been enforced as of right in the courts of the ceding State. Grants which were unenforceable before cession either because of unperformed conditions, or because of the indefiniteness of the grant, or because of the want of power in the granting officer or imperfection in the grant itself, will clearly not be upheld by United States courts."

5

See, for example, Art. IX, treaty between the United States and Spain,

however, intimate that residence within the territory transferred and allegiance to the new sovereign thereof are essential to the retention of title.1

The territory of a State consists of the area, both land and water, confined by definite boundaries, and over which an exclusive right of sovereignty is claimed and enjoyed. The extent of the area is in a broad sense limited by the requirements of the law of nations. The extent of the control which the State is mitted to exercise therein is likewise so held in restraint or determined.3

per

The extent of both the right and the duty of a State to do justice within its own domain, as well as elsewhere, is also fixed by

Dec. 10, 1898, Malloy's Treaties, II, 1693. Cf. United States v. Repentigny, 5 Wall. 211.

1 According to Art. VI of the convention between the United States and Denmark of Aug. 4, 1916, providing for the cession of the Danish West Indies: "Danish citizens residing in said islands may remain therein or may remove therefrom at will, retaining in either event all their rights of property, including the right to sell or dispose of such property or its proceeds; in case they remain in the islands, they shall continue until otherwise provided, to enjoy all the private, municipal and religious rights and liberties secured to them by the laws now in force. If the present laws are altered, the said inhabitants shall not thereby be placed in a less favorable position in respect to the abovementioned rights and liberties than they now enjoy.

"Danish citizens not residing in the islands but owning property therein at the time of the cession, shall retain their rights of property, including the right to sell or dispose of such property, being placed in this regard on the same basis as the Danish citizens residing in the island and remaining therein or removing therefrom, to whom the first paragraph of this article relates." Treaty Series No. 629, Am. J., XI, Supp., 57-58.

In the treaty of peace with Germany of June 28, 1919, there was frequent provision that persons habitually resident in territory transferred, who elected to opt for the nationality of the transferor, and in consequence were obliged to transfer their residence to its domain, should still be entitled to retain their immovable property in the ceded territory. See, for example, Arts. 37 and 106.

Hall, 5 ed., 100, quoted in Moore, Dig., I, 615. See, also, Bonfils-Fauchille, 7 ed., §§ 483-489; Calvo, 5 ed., I, 382–384; Oppenheim, 2 ed., I, §§ 168-171; Rivier, I, 135-143; Pradier-Fodéré, II, 144-151; Martens, I, 451-459; Woolsey, 6 ed., 67-68; Beale's Cases on Conflict of Laws, III, Summary, § 19. Cf. Reg. v. Keyn, 13 Cox C. C. 403, 2 Ex. D. 63; Beale's Cases on Conflict of Laws, I, 1.

international law. Inasmuch, however, as the scope of what may be described as the privileges and obligations of jurisdiction is not always to be ascertained or measured by reference to the territorial limits of a State, or by the degree of control which it may lawfully exercise within those bounds, the subject is discussed elsewhere.1

(2)

Various Territorial Limits

$135. Artificial Lines.

(a)

A treaty may provide that the boundary between two States shall follow certain imaginary lines, such as a parallel of latitude or a meridian of longitude, or a straight line connecting two given points.2

§ 136. Mountains and Hills.

(b)

A range of mountains or hills may be the boundary between two States. In such case the line of demarcation follows the watershed. Professor Moore has observed that "this rule, while

1 Rights of Jurisdiction, infra, §§ 218-265; Duties of Jurisdiction, infra, §§ 266-269.

2 See, for example, Art. I of the treaty between the United States and Mexico, Dec. 30, 1853. This Article also provided for the survey and establishment of the boundary line by a mixed commission, and declared that "the dividing line thus established shall in all time be faithfully respected by the two Governments." Malloy's Treaties, I, 1121. Mr. Cushing, Attorney-General, was of opinion that in view of the language of the treaty, the monuments and other descriptions of the line as established by the Commission should be regarded as the true line of demarcation, even though it should afterwards appear that "by reason of error of astronomical observations or of calculation, it varied from the parallel of latitude where that was the line, or in the other part did not make exactly a straight line." 8 Ops. Attys.-Gen., 175-176, Moore, Dig., I, 615.

Concerning the error in the original demarcation of the Northeastern Boundary of the United States at Rouse's Point, see Moore, Dig., I, 615, note, citing Moore, Arbitrations, I, 70-71, 80, 112, 119, 129, 135-136, 149–153. See United States v. Texas, 162 U. S. 1; also Moore, Dig., I, 616, concerning the interpretation of Art. IV, of the treaty between the United States and Spain of Feb. 22, 1819. See treaty between the United States and Great Britain, April 11, 1908, providing for the more complete definition and demarcation of the international boundary between the United States and the Dominion of Canada, Malloy's Treaties, I, 815, Am. J., II, Supp., 306. Also Lord Curzon of Kedleston, "Frontiers", Roumanes Lecture, Oxford, 1907.

3 Mr. George Canning, British Foreign Secretary, wrote to Mr. S. Canning, Dec. 8, 1824, with reference to the establishment of a line of demarcation between British and Russian Possessions in Alaska: “It is quite obvious that the boundary of mountains, where they exist, is the most natural and effectual boundary." Proceedings, Alaskan Boundary Tribunal, Appendix

simple enough in principle, is often exceedingly difficult of application." 1

(c)

Rivers

(i)

§ 137. Preliminary.

In the Middle Ages, rivers which separated alien peoples or tribes were looked upon as neutral barriers rather than areas susceptible of nice division and capable of ownership.2 There gradually arose, however, a sense of the necessity for the assertion of control over such waters; but there was confusion of thought as to the nature and extent of that control. Rivers served as natural arteries of commerce as well as natural boundaries. The matter of navigation was of as great moment as that of territorial limits. For that reason, early writers announced the principle of co-dominion, which assigned to the opposite riverain proprietors rights of sovereignty over the entire stream.3 Men found it difficult to reconcile the claim of exclusive sovereignty asserted by one State over any portion of the stream, with the claim of another to exercise privileges of navigation therein. No doubt the latter claim had a marked effect upon the scope of the former. Nevertheless, the requirements of navigation were not decisive of the problem whether a line of division might be drawn through the waters of a river in recognition of sovereign rights of the States on either side of such a boundary. It came to be understood

to Case of the United States, Vol. II, 210. See line of demarcation between the Russian and British Possessions in North America, contained in the AngloRussian Convention of February 28 (16), 1825, and embodied in Art. I of the Convention between the United States and Russia of March 30, 1867, providing for the cession of Alaska, Malloy's Treaties, II, 1521.

1 Moore, Dig., I, 616, note. As evidence of the truth of his statement Professor Moore refers to the question as to the "Highlands" in the Northeastern Boundary dispute between the United States and Great Britain, citing Moore, Arbitrations, I, 65-68, 78, 100, 109, 114, 131, 158-161.

Concerning the controversy between Chile and the Argentine Republic, whether the boundary between their respective territories should, according to existing conventions, be determined by the watershed or by the highest peak of the Andes, and the agreement to adjust the difference by arbitration, see For. Rel. 1896, 32-34; also Moore, Arbitrations, V, 4854-4855.

See, also, award of the arbitrator January 30, 1897, in the Manica Arbitration between Great Britain and Portugal, where the boundary followed a plateau, the watershed of which was not, for reasons given, regarded as the true line of demarcation, Moore, Arbitrations, V, 4985-5015.

? See historical review by E. Nys, in his Droit International, 2 ed., I, 423–437, citing, at 424, H. Helmolt in Historisches Jahrbuch, 1896, pp. 235 et seq. ' Id., I, 425.