37 U.S.

476
12 Pet. 476
9 L.Ed. 1163

THE UNITED STATES

v.
ZEPHANIAH KINGSLEY.
January Term, 1838

ON appeal from the superior court of East Florida.

In the district court of East Florida, in April, 1829, Zephaniah Kingsley
presented a petition, claiming title to a tract of land situated on a creek
emptying into the river St. John; which he asserted was granted to him by
Governor Coppinger, on the 20th of November, 1816, while East Florida
was held by the crown of Spain.
The petition stated, that in virtue of the grant, the petitioner had, soon after
its date, entered and taken possession of the land, and was preparing to
build a water saw-mill thereon, according to the condition of the grant; but
was deterred therefrom by the disturbed state of that part of the province
of East Florida, and the occupancy of the land by some of the tribes of
Florida Indians, who were wandering in all directions over the country.
The grant referred to in the petition, was in the following terms:
'Considering the advantage and utility which is to accrue to the province,
if that is effected which Don Zephaniah Kingsley proposes to do, it is
hereby granted to him, that, without prejudice of a third party, he may
build a water saw-mill in that creek, of the river St. John called M'Girt's;
under the precise condition, however, that until he builds said mill, this
grant will be considered null and void; and when the event takes place,
then, in order that he may not suffer by the expensive preparations he is
making, he will have the faculty of using the pines comprehended within
the square of five miles, which he solicits for the supply of said saw-mill;
and no other person will have a right to take any thing from it. Let the
corresponding certificate be issued to him from the secretary's office.
'COPPINGER.'

The district attorney of the United States, for East Florida, filed, at May
term, 1829, an answer to the petition of Zephaniah Kingsley, requiring
from the court that due proof should be made by the petitioner, of the
matters set forth in the petition; and also that the grantee had prepared to
build a water saw-mill on the land, as stated in the grant.
The answer also asserts, that the grant was made on the express condition,
that, until the grantee built the mill, the grant was to be considered as null
and void; and that he had wholly and entirely failed to build the mill, and
still fails to build the same.
On the 6th July, 1833, an amended petition was filed, setting forth; that,
upon the state and condition of the province of East Florida, east of the St.
John's, being made known by the grantees of mill grants, and of the
impossibility of complying with the conditions of the grants; governor
Coppinger, by a verbal order or decree, made known that in consequence
of the continued unsettled and disturbed state of the province, and of the
impossibility of the grantees of mill grants complying with the conditions
of the same with safety to themselves or their property, that the grantees
should not, by a failure to erect their mills, thereby forfeit their title; but
that the same should remain valid, and be exonerated from the compliance
of the condition therein named, till the state of the country should be such
as that the grantees could, with safety, erect their works.
The amended petition alleged, that the country was in a disturbed and
dangerous state, from the date of the petitioner's grant, and for a long time
previous, till the transfer of the province from Spain to the United States;
and that your petitioner could not, with any safety to himself or his
property, have erected said mill west of the St. John's, between the time of
the date of his grant, and the transfer of the province as aforesaid.
To this amended petition the district attorney answered, and called for
proofs of the allegations therein; and he also submitted to the court, that if
the part of the province in which the land said to have been granted, had
continued in a disturbed situation from Indian hostilities, it had been in
that situation when the grant was made; and that this should not be an
excuse for the non-compliance with the conditions of the grant. The
answer alleged, that from 1821, part of the province has been entirely
tranquil, but no attempt to erect the mill has been made.
At July term, 1835, a second amendment to the petition was filed, stating
that soon after the issuing of the grant, the petitioner entered and took
possession of a tract of the land surveyed to him under the grant, and

actually began to build a mill upon it; but was deterred, by the dangerous
situation of the country, from completing the same. The answer of the
district attorney denied the allegations in this petition, and called for
proofs of the same. No evidence was given to sustain the statement in the
second amended petition. The assertion, that the uncertainty as to titles to
the lands in the province since the transfer by Spain, is denied to be an
excuse for the laches or negligence of the grantee.
After the production of written evidence, and the examination of
witnesses, the district court gave a decree in favour of the petitioner;
confirming to him the quantity of land mentioned in the grant. From this
decree the United States prosecuted an appeal to this Court.
The case was argued by Mr. Butler, attorney general for the United States.
No counsel appeared for the appellee.
Mr. Butler contended that the grant to the appellee was on condition, and
the condition had not been complied with. The language of the grant is
explicit; and no title to the land could be derived under it, until the terms
were complied with: 'Until he builds said mill, this grant will be
considered null and void; and when that event takes place, then in order
that he may not suffer by the expensive preparations he is making, he will
have the faculty of using the pines comprehended within the square of
five miles, which he solicits for the supply of said saw-mill.'
It is admitted, that according to the decrees of this Court, giving the
timber on the land, gives the land; but in this case, the objection to this
confirmation of the appellee's grant, rests on other grounds. No attempt to
comply with the condition of the grant was made. It has been decided by
this Court, that although such grants were on conditions precedent, yet if a
party has commenced making the improvement, and is prevented by
circumstances beyond his control from completing it, the grant, under an
equitable view of it, will not be defeated.
The strongest case in favour of a grantee, is the case of Sibbald, 10 Peters,
313. In that case efforts were made to build the mill, and they were
defeated. But in the case before the Court no such efforts were made. The
condition is, that within six months the mill shall be built; and the
consideration for this grant is the advantage and utility which will accrue
to the province from the improvement. The allegation that the disturbed
situation of the province would not permit the improvement, is of no
value; when taken in connection with the circumstance, that when this
grant was asked for, the province was in that situation. No proof is in the

case of any attempt; and the second amended petition, in which this is
asserted, is altogether unsupported by evidence. The allegation was not
made until the decisions of this Court, making an attempt to comply with a
condition in a grant sufficient to make such grant valid.
But there is another view of this case, upon which the claim of the
petitioner to a confirmation of the grant should be refused.
Governor Coppinger, by a written order, declared that within six months
the condition in all grants should be complied with. White's Compilation
of the Spanish Land Laws, 250. The six months allowed by the order,
expired long before the Florida treaty of cession.
Mr. Justice WAYNE delivered the opinion of the Court:

This is an appeal by the United States from a decree of the superior court of the
eastern district of Florida, confirming a land claim.

It appears that Zephaniah Kingsley, on the 20th of November, 1816, being then
an inhabitant of the province of Florida, petitioned Governor Coppinger,
stating, 'that wishing to erect a water sawmill in that creek of the river St. John,
called M'Girt's, on a vacant place, and it being necessary for that purpose to
have a quantity of timber sufficient to supply said mill and establishment, he
supplicates your excellency to be pleased to favour him with your superior
permission to build the same on the place aforesaid, with its area of five miles
square of land as the equivalent thereof, for its continued supply of timber:
bounded south-east and south by lands granted to Ferguson and Doctor Lake;
south-west and west by vacant lands; north by Don Juan M'Intosh's land, and
east by lands of said Kingsley, and the river St. John.'

Upon this petition the governor made the following decree:

'Considering the advantage and utility which is to accrue to the province, if that
is effected which Don Zephaniah Kingsley proposes to do, it is hereby granted
to him, that without prejudice of a third party, he may build a water-mill on that
creek of the river St. John, called M'Girt's; under the precise, condition
however, that until he bilds said mill, this grant will be considered null and
void: and when the event takes place, then, in order that he may not suffer by
the expensive preparations he is making, he will have the faculty of using the
pines comprehended within the square of five miles, which he solicits for the
supply of said saw-mill; and no other person will have a right to take any thing

from it. Let the corresponding certificate be issued to him from the secretary's
office.
5

'St. Augustine, 2d Dec. 1816.'

'COPPINGER.

Upon this decree, the petitioner states, that soon after the date of it, he entered
upon and took possession of the land granted in the situation mentioned in said
grant, and was preparing to build a water saw-mill, agreeably to the condition
of the grant; but was deterred therefrom by the disturbed state of that part of the
province of East Florida, and the occupancy of the land by some of the tribes of
Florida Indians, who were then wandering in all directions over the country.
The appellee then insists that his right to the land is embraced by the treaty
between Spain and the United States; gives a narrative of his submission of his
claim to the board of commissioners, under the act of congress, entitled 'an act
amending and supplementary to an act for ascertaining claims and titles to land,
in the territory of Florida, and to provide for the survey and disposal of the
public lands in Florida,' passed 3d March, 1823; that the commissioners
reported unfavourably upon it, which he insists was contrary to the law and
evidence produced in the cause: and further, that the report of the
commissioners upon his claim was not final, as the tract of land claimed by
him, contains a larger quantity than the commissioners were authorized to
decide upon by any of the acts of congress.

The petition of the appellee, of which an abstract has been just given, was filed
on the 21st April, 1829. In the following month, the United States, by the
United States' attorney, filed an answer to this petition, denying, for sundry
causes and reasons, the entire existence and equity of the appellee's claim: and
in August of the ensuing year, the United States' attorney amended his answer,
referring to certain orders of governor Coppinger, dated the 27th October,
1818, and on the 19th January, 1819: the first of which limits the time to six
months from the 27th October, 1818, within which all grants and concessions
of land which had been made on condition for mechanical works, to wit,
factories, saw-mills, &c., were to revert to the class of public lands, and to be
declared vacant; unless the grantees, or concessioners, should comply with the
conditions of such grants or concessions; and the second of which declares all
such conditional grants or concessions null and of no effect, in those cases
where the persons in whose favour they were made, had remained inactive,
having done nothing to advance the establishment of those works. See White's
Compilation, 250, 253, 256, 257, for these orders.

The United States' attorney alleges the appellee to be one of those persons
whose supposed concession was null and void under the first order; and that it
was entirely annulled and set aside by the last, as he had not then, nor had not
since established or advanced, in any manner, the building of his mill, but had
wholly failed and neglected to do so. To this answer, the appellee put in a
general replication; and the cause came, by regular continuance, to the term of
the court in November, 1832, when permission was given to the appellee to
amend his petition. In July, 1833, he filed the amendment, stating that the
disturbed and dangerous condition of the province west of the St. John's river,
which continued from 1812 to the exchange of flags, had induced Governor
Coppinger to declare, by a verbal order and decree, that the unsettled and
disturbed state of the province, and the impossibility of the grantees of millgrants to comply with the conditions of the same, with safety to themselves and
their property, that the grantees should not, by a failure to erect their mills,
forfeit their titles.

10

Of the existence, however, of any such modification of the condition of such

grants, by any verbal order and decree, the appellee gave no proof on the trial
of this cause.

11

In the amendment of the appellee's petition, the United States' counsel replies,
denying the existence of any such verbal order and decree by Governor
Coppinger; and stating, that if there was any such danger from the disturbed
condition of the province, as the appellee had alleged, that it existed as well at
the time when he applied for the grant, and when he accepted the same, as at
any time afterwards. In this state of the pleadings, the cause was brought to
trial, as well upon the evidence on the part of the United States, as upon the
part of the appellee; but was not then decided. At the July term of 1835, the
appellee filed, by permission of the court, another amendment to his petition, in
which, after reciting the surveys made under the decrees of the governor upon
his petition, he further says, that soon after the grant was made to him, he took
possession of the land, and actually began to build a water saw-mill on M'Girt's
creek, pursuant to the condition of the grant; but that he was deterred and
prevented from completing the same by the disturbed and dangerous state of
the country, which continued until the cession of Florida by Spain to the United
States. And after that cession, he states he was deterred from proceeding to the
further performance of the conditions of said grant, by the great uncertainty in
which his right and title to said land was involved by said cession. To this
amendment of the petition the United States' attorney replied, repeating the
facts and objections to the claim of the appellee made in his previous answers;
and further insisting that the surveys, upon which the appellee relied, were
made after the 24th of January, 1818, and are not agreeable to the calls of the

said supposed grant: and that they are null and void by the provision of the
latter clause of the 8th article of the treaty between Spain and the United States,
of the 22d February, 1819.
12

Upon these pleadings and the evidence, the court has decreed the appellee's
claim to be valid; that it is in accordance with the laws and customs of Spain;
and under and by virtue of the late treaty with Spain; and under and by virtue of
the laws of nations, and of the United States.

13

We think differently from the court upon all the grounds stated in the decree.
They open a wide subject of remark; but we abstain from discussing any of
them, except the application of the treaty to this claim, or of the laws and
customs of Spain. These points we shall such very briefly. We first observe,
that no case of a land claim in Florida, confirmed by this Court under the treaty,
either in terms, or by necessary inference from what the Court has said, covers
this case. We view this claim under the decree of Governor Coppinger, as a
permission to enter upon the land designated in the petition and decree, in
which land the appellee did not and could not acquire property, or even
inchoate title, such as embraced in the 8th article of the treaty, or by this Court's
construction of it, until he had, in good faith, prepared to execute the condition
which the appellee held out as the inducement to obtain a grant: or in other
words, we think the decree of the governor contains a condition precedent, to
be performed by the appellee before the grant could take effect. In this case the
appellee never attempted to perform the condition: there is no proof of his
having done so in good faith, by the expenditure of money or application of
labour. On the contrary, there are, in the original petition of the appellee to the
court below, and in all the subsequent amendments of it, from 1829 to 1833, his
declarations that he had not done so, until the amendment made in 1835; when
he states, for the first time, that he actually began to build a water saw-mill,
according to the conditions of the grant a short time after it was made, but that
he was prevented from completing it by the disturbed and dangerous condition
of the country.

14

The only proof given by him of his having actually began to build, is very
equivocal, and should have been rejected by the court, on the ground of its
being hearsay; except so much of it as relates to the remains of some work or
mill-dam, which of itself could not be evidence, until, by other proof, the
appellee had established the fact of such work having been done by himself, as
the witness testifying, says expressly that it was only from hearsay that he had
said that work was done by the appellee. The witness says, he does not know of
his own knowledge that the appellee ever made any attempt or preparations for
building a saw-mill on said mill seat tract, but that he had seen timber on the

said tract; was told it was got by Kingsley for the purpose of building a sawmill; that he afterwards saw a dam had been erected on each side of the stream,
in the bottom of the stream saw timbers laid, as witness supposed, for the sills
of a saw-mill; that he only knows from hearsay, that said preparations were
made by Kingsley; that a part of the preparations are still remaining, and to be
seen on said tract; that he first saw the timber abovementioned, in the year
1817 or 1818, and shortly after saw the dam and sills aforesaid; that the said
timber was mostly destroyed by fire. And by the record we are left to conclude
that these works were made by Kingsley, without any, even probable proof that
he had at any time taken possession of the land. We cannot do so; and if we
could, it would be deemed by us no compliance with the condition contained in
the governor's decree or concession in his favour, as the work was discontinued
for an insufficient cause, that was, the disturbed and dangerous condition of the
country. All the witnesses concur in stating there was no more danger after the
appellee petitioned for the land, than there had been before and at the time of
his application. The appellee then cannot be permitted to urge as an excuse, in
fact or in law, for not complying with his undertaking, a danger which applies
as forcibly to repudiate the sincerity of his intention to build a mill when he
petitioned for land for that purpose, as it does to his inability from such danger
to execute it afterwards. Under the treaty, it is true, that grants of land made
before the 24th January, 1818, by his catholic majesty, or by his lawful
authorities, stand ratified and confirmed, to the same extent that the same grants
would be valid, if Florida had remained under the dominion of Spain; and the
owners of conditional grants, who have been prevented, by the circumstances
of the Spanish nation, from fulfilling all the conditions of their grants, have
time by the treaty extended to them to complete such conditions. That time, it
was determined by this Court, in Arredondo's case, 6 Peters, 748, 749, began to
run, in regard to individual rights, from the ratification of the treaty; and the
treaty declares, if the conditions are not complied with within the terms limited
in the grants, that the grants shall be null and void. It is admitted, that in the
construction of this article of the treaty the United States succeeds to all those
equitable obligations which we are to suppose would have influenced his
catholic majesty to secure to his subjects their property; and which would have
been applied by him in the construction of a conditional grant to make it
absolute. And further, in the construction of this article of the treaty, it must be
conceded that the United States must maintain the rights of property under it,
by applying the laws and customs by which those rights were secured before
Florida was ceded or by which an inchoate right of property would, by laws and
customs, have been adjudicated by Spanish authority, to have become a perfect
right; by applying, in the first instance, in such cases, as was said in
Arredondo's case, the principles of justice according to the rules of equity; and
in the second, all those laws and customs decisive of a right of property, whilst
the party claiming the right was a subject of Spain. Test then the case before us

by the most liberal equity, and it will appear that the claim of the appellee
cannot be sustained by any effort by him to perform the condition of the
governor's grant; either before the ratification of the treaty, or since. Indeed, in
the last amendment of his petition, in 1835, he states he was prevented from
proceeding to the further performance of the condition of said grant, by the
great uncertainty in which his right and title to the land was involved by the
cession.
15

These Florida grants, or concessions of land upon condition, have been

repeatedly confirmed by this Court; and it will apply the principles of its
adjudications to all cases of a like kind. It will, as it has done, liberally construe
a performance of conditions precedent or subsequent, in such grants. It has not,
nor will it apply in the construction of such conditions in such cases, the rules
of the common law. But this Court cannot say a condition wholly unperformed,
without strong proof of sufficient cause to prevent it, does not defeat all right of
property in land, under such a decree as the appellee in this case makes the
foundation of his claim.

16

Arredondo's grant, confirmed by this Court, 6 Peters, was a clear case of a grant
in fee for past services and commendable loyalty to his sovereign, with a
condition subsequent, of a nature the performance of which must have been a
matter of indifference as well to the king of Spain as to the United States, after a
cession of Florida was made. The condition was, that the grantees should
establish on the land two hundred Spanish families, and that they were to begin
to carry into effect the establishment within three years from the date of the
grant: and there was no time limited for its completion. This Court said, in that
case, 6 Peters, 745: 'From the evidence returned with the record, we are
abundantly satisfied that the establishment was commenced within the time
required, (which appears to have been extended for one year beyond that
limited in the grant;) and in a manner which, considering the state of that
country, as appears by the evidence, we must consider as a performance of that
part of the condition.'

17

The case of Segui, 10 Peters, 306, was a grant in consideration of services to the
Spanish government, and for erecting machinery for the purpose of sawing
timber. That grant was confirmed by this Court, upon the ground that the
governor considered the services of Segui a sufficient consideration, and made
the grant absolute. Seton's case, 9 Peters, 311, was a decree or permission of
the governor, in all particulars like that now before us; and Seton's right to the
survey which has been made, and to the equivalent quantity to make up the
extent of the original concession, was confirmed by this Court; upon the
positive proof that Seton had built his mill in a year after the date of the decree

upon which he claimed. Sibbald's case, 9 Peters, 313, another like Seton's and
that before the Court, were confirmed by this Court, upon the ground that
Sibbald had performed the condition according to the rules of equity which
govern these cases. Sibbald, in good faith, and within a reasonable time after
the decree in his favour, began to build his mill; expended five thousand dollars
towards it; had his horses and negroes stolen while the mill was building; his
mill-dam carried away by a freshet, in the absence of his millwright, who was
in pursuit of the stolen property; rebuilt his mill in 1827, which was destroyed
by fire the same year; and the year after, built again another mill of twenty
horse power, which could saw twenty thousand feet of lumber a day.
18

It remains only for us to say a word concerning the laws and customs of Spain,
supposed by the learned judge in the court below, applicable to the
confirmation of this claim under the treaty. The fact that no instance is known
of land so decreed having reverted to the class of public lands, for the nonperformance of the condition, does not prove a custom; unless a current of cases
can be shown in which claimants have held the land without performance.
Besides, the existence of any such custom is disproved by the decree for the
land itself; by the subsequent decrees of the Spanish governor, declaring lands
granted upon condition would be null and void within a certain time, if the
conditions were not performed; and by the treaty itself, which stipulates for the
performance of conditions within terms after the treaty was made, contained in
the grants, and which is recognised by this Court by its decision, that the time
given only begins to run against individual rights, from the date of the
ratification. As to the laws of Spain, supposed to aid the case, we remark, it
being conceded that the governor had authority to make grants and concessions,
and to give permission to persons to enter upon lands upon conditions; nothing
less than a law dispensing with the performance of them, or a release of the
performance of them by the governor, sanctioned by the general royal authority
under which he acted; or a release by royal authority, after grants were made
general in its application, or applicable to some particular case or class of cases,
can be admitted, proprio vigore, as a release of the obligations upon grantees to
perform the conditions of these grants. It is not pretended that any such law or
release exists.

19

Mr. Justice BALDWIN dissented.

20

This cause came on to be heard on the transcript of the record from the superior
court for the eastern district of Florida; and was argued by counsel. On
consideration whereof, it is the opinion of this Court, that the petitioner having
failed to fulful the condition of the grant, that the said grant or concession is
null and void; and that the said petitioner has no right or title to the land.

Whereupon, it is now here decreed and ordered by this Court, that the decree of
the said superior court in this cause be, and the same is hereby reversed and
annulled; and that this cause be, and the same is hereby remanded to the said
superior court, with directions to enter a decree in conformity to the opinion of
this Court.