Am. St. Papers, 99. The report says that this claim was founded on "a copy of a plat and certificate of survey by Pintado, surveyor general, dated Havana, May 7, 1818, stating" that the former had petitioned in February, 1817, for the land described, and the proceedings taken thereon; also, "an original grant or title in form made to Maria Garzon by the intendant, Alexander Ramirez, countersigned by Pedro Carambot, secretary of war, dated 16th of May, 1818, stating,

*

with the annexed authenticated copy of the proceedings instituted before Governor Masot in the year 1817; * "also, a copy of a mesne conveyance from Maria Garzon to Bonifay,—and that, in addition to the foregoing papers, Bonifay proved by parol testimony "the signatures of the Spanish officers annexed to the grant." The report of the commissioners, which submits the claim to the judgment of congress, states that the former were "somewhat at a loss for an opinion," and also uses this language: "The certified copy of a plat and certificate of the former surveyor general of West Florida, as well as the grant of the intendant upon which this claim depends, are dated subsequent to 24th January, 1818. These officers, in regard to Florida, no longer existed. Pintado and Ramirez were irresponsible persons; and the former presents us with a copy, when we are entitled to the original under the solemn stipulations of the treaty between Spain and the United States. How far such documents are admissible must be decided by congress." Others of these claims, as shown by the report, are: Bonal's, an original grant or title in form by Masot, governor and subdelegate, dated October 1, 1817, under the seal of office, and countersigned by two "assistant witnesses," and an original grant or title in form by Ramirez, intendant general, and countersigned by Pedro Carambot, secretary of war, dated May 2, 1818; Pablo Palmes proving the "signature of the intendant escribano and subscribing witnesses." Mesa's concession, Grandpre's and Sierra's claims, being the first and original decree of concession by Morales, intendant general, countersigned by two witnesses, and dated May 21, 1812, the authenticity of the title papers being proved by parol testimony, and the second (Grandpre's) claim including an original grant or title in form to him by Morales, countersigned by F. G. Arroyo, and dated March 24, 1812, the signatures of the officers annexed to the grant being proved by parol testimony, and that of Sierra including an original grant by Morales to Cadet of March 24, 1812, the signatures of the Spanish officers being likewise proved. An original grant to Orsino Bouligny, made May 2, 1811, by Morales, and countersigned by Arroyo, an original decree of concession of April 16, 1804, by Gov. Folch to Martin De Madrid; an original grant or title in form, of December 6, 1817, to Hinard by Gov. Masot, v.14so.no.13—45

countersigned by two witnesses; an original grant of May 9, 1810, by Morales to Aleck, and countersigned by Arroyo, secretary; and an original grant or title in form of April 14, 1810, from same source to De Vegas, and the original grant of November 26, 1811, from the same source,-are shown in the other cases referred to here, to have been presented to the commissioners, and the signatures of the Spanish officers proved by parol. 4 Am. St. Papers, pp. 123, 124, 126, 129, 132. Appellee also refers to Mr. White's California Land Laws, (volume 2, pp. 353, 354,) where the decree of concession of January 10, 1818, to John Forbes & Co. uses the expression: "And the commandant of the said city of Pensacola, in virtue of this resolution, shall put them in quiet and peaceable possession of the aforesaid land, for which object his excellency orders to give to the said house of Forbes all the documents necessary, registering the original in the archives,"-and where it also appears that Forbes & Co. having, in July, 1819, at Havana, requested that Pintado, the surveyor, should draw a plat of the land, he, (Pintado,) on October 31, 1823, at Havana, under an order of July, 1819, so directing, certified or reported that, having attempted to form a topographical plan of the land according to the data which he had, and not by actual measure, he accomplished it on the 15th of September of the said year, "annexing the graphic description or plat which I return in original to the person as it has been asked and ordered. After having taken due notice of it, I dispatched the plat under No. 1,869, and I registered it with the same number which belonged to it in the series on the 17th of the said September. The case of U. S. v. Arredondo, 6 Pet. 691, is also referred to in this connection. There the original title was held and offered in evidence by the grantee, and was received without objection as to its authenticity or custody, or on the score of a certified copy being the proper evidence of title. There, as here, the title recites the concession and the order for survey, and the presentation of the figurative plans by the surveyor general, and finally there follow the final words of the grant, stating that a copy of the plat or figurative plan would be annexed to the title; Arredondo's title being signed by Ramirez, and countersigned by Peter Carambot, the secretary, the execution of it taking place at Havana, December 22, 1817, and also being indorsed on the same day by Carambot as follows: "An account of the preceding title has been taken, and registered in the book prepared for that purpose in the secretary's office under my charge." We also find in the above-mentioned report of the West Florida land commissioners (4 Am. St. Papers, 84) the statement that "grants for land sold and those made gratuitously were required to be recorded in the office of finances." Again, in the general regulations for conceding lands in the prov

inces of Louisiana and West Florida, issued by the intendant, Morales, July 17, 1799, to whose office the exclusive power of granting lands had been granted by royal decree made at Santa Lorenzo, October 22, 1798, the procedure to be followed in granting lands had been prescribed, the fifteenth, sixteenth, and seventeenth articles providing, in effect, as follows: All concessions were to be in the name of the king, by the general intendant of the province, who should also order the surveyor general, or one named by him, to make the survey of the land asked for, the survey to be done in the presence of the commandant or syndic of the district and of two neighbors, and "these four shall sign the proces verbal, which shall be drawn up by the surveyor," which proces verbal, with a certified copy of the same, were to be "sent" to the intendant by the surveyor, to the end that on the original there be delivered, by the consent of the king's attorney, the necessary title paper, to which title paper such certified copy was to be annexed. The original proces verbal was to be deposited in the office of the secretary of the treasury, and care was to be taken to make annually a book of all which had been "sent," with an alphabetical list, to the end that at all times, and against all accidents, the documents which should be wanted might be found. The surveyor was to have another book mentioned, in which the proces verbal should be recorded; and both on the original deposited and on the copy annexed to the title he was to note the folio of the book in which he "had registered the figurative plat of the survey." In the office of the finances there were also to be kept books in which the titles of concession were to be recorded, and in these books, also, mention was to be made of the folio of the book in which they (the titles) "are transcribed;" or, in other words, as we understand, these books were to be indexed. There was also to be taken, in the chamber of accounts of the army and finances, a note of such titles, under the penalty of being void, which was to have a like book, and at the time of taking the note was to cite the folio of the book where the title was recorded. The eighteenth article states, in effect, that a great number of persons erroneously thought themselves to be owners of land, or invested with the title, by the mere order for survey and possession, or by such order and survey, and had neglected to apply for the title, and that the continuation of like abuses for a longer time would augment the confusion and disorder necessarily to result; and then declares that those who have obtained such decrees cannot, notwithstanding that in virtue of them the survey has taken place, and they have been put in possession, be regarded as owners of land until their "real titles are delivered, completed with all the formalities before recited." White's Spanish Law, (called, also, "White's Compila

tion,") 208 et seq.; 2 Cal. Land. Laws, 234244.

Notwithstanding the above statement of the land commissioners that it was "the practice, where a grant was made, to deposit the original in the office of finance to be re corded, and the claimant was given a certified copy," we do not think it can be said that an original title in form, in possession of the grantee or a claimant, was not legal evidence of title. Their report shows the fact to be that in numerous cases the original had not been kept in such office, nor did they make the presence of such original in the hands of the grantee or claimant a ground for rejecting the claim. There is much in the quotations and citations we have given to suggest and sustain the idea that, when a title in form was made, it was, after being registered and recorded, delivered to the grantee. Granting that the practice of making the decree or order making the grant -or, as it was technically called, the "concession"-and the survey the means of investing title, and a certified copy thereof proof of the same, was never prohibited in East Florida, as it was in West Florida, at least for a time, under the intendancy of Morales, still there is evidence that the other practice of using a title in form was in vogue there; and when we see, as we do in Arredondo's case, that such a formal title held by the original grantee is presented in a cause of immense moment for those days, and is received in evidence without objection based on the fact of such possession, and further see that there were many cases of similar possession in West Florida, and find no specific regulation or law which interdicted such possession, we are not justified in presuming that the possession of titles in form was unlawful. Again, it cannot be denied that the mode of procedure in making title to land was in fact the subject of regulation by the intendant, Morales, and there is no law presented that indicates that the power was not incident to the office; and in the absence of such law we may presume in favor of the power. There is, moreover, in view of the evidence of the possession by grantees of such original royal titles to lands in West Florida, not sufficient evidence to justify us in concluding that the regulations of Morales were ever entirely superseded in that province, or that Ramirez was not acting on them in executing this title to Pintado; nor do we feel justified to say that he, as intendant, was without authority to use the form adopted, in the absence of formal regulations to that end. The language of such titles seems to us to imply that it was intended that they should be delivered to the grantees, and the presumption is that the act of the officers in delivering was lawful and regular. Winn v. Cole, Walk. (Miss.) 119; U. S. v. Arredondo, 6 Pet. 691; U. S. v. Clarke, 8 Pet. 436; U. S. v. Peralta, 19 How. 343; Trenier v. Stewart, 55 Ala. 58.

101 U. S. 797. Vide Menard's Heirs v. Massey, 8 How. 293, 314, et seq., for form of title under regulations of Morales. That this is the presumption will more fully appear hereafter in another part of this opinion.

II. The next point to be discussed arises on the objection to the several ancient papers described in the statement, and found by Knowles in the same old trunk in which he found the formal title. The objection urged to the introduction of each is its ir relevancy, or not referring to, or having any relation to, the property described in the grant. This objection is untenable, in so far as it relates to four of the petitions to the land commissioners for confirmation; or (2) to the letters of August 18, 1821, June 28, 1822, and March 9, 1822, from Pintado to Mr. John De La Rua; or (3) to the open account of the secretary of the commissioners for recording claims, or to the printed notice of the foreclosure suit, or to that signed alone by the same marshal, and apparently relating to sales of lands under a fi. fa. in favor of Henry Michelet. The petitions to the commissioners, except that relating to the grant of November 8, 1816, and that as to the six lots, relate, obviously, to lands covered by this grant, and hence to the grant as an evidence of title. This fact, and the reference in the first of the three letters to the 19 arpents on the Aguada, as well as other features of the communication, including that of the promise of the wharf site at the foot of a street in Pensacola; the reference in the second letter to Pintado's original titles, and to the payment of the costs of proceedings before the land commissioners, and in the third to Pintado's original titles; the item as to Pintado's claims in the open account of the secretary of such commissioners for recording claims, which claims must, from the nature of the office of the commissioners, be held to be claims for lands; the mention in the notice of the Michelet foreclosure suit, of properties included in the title offered; the mention in the paper signed "William Sebree, Marshal," and dated January 4, 1827, of property which is evidently the same as some of that described in the title paper offered,-naturally, if not necessarily, produce the conviction that these sev eral papers refer to more or less of the land covered by the title offered in evidence, and, in view of the fact that the purpose for which they are offered is auxiliary to the admission of such title, they must be held to relate, not merely "to property described in the grant," but to that document as evidence of the grant of the water front; and in our judgment there was, as against the objection presented, no error in the ruling. Whether there was error in admitting the rest of such papers in evidence, we do not decide. It is rendered at least unnecessary to do so by the conclusion we will be found to reach as to the validity of the grant.

III. A careful consideration of the grounds

of the objections made to the introduction of the title, as well as those made to the admission of the alleged ancient papers, will lead to the conclusion that the authenticity of the alleged title is not questioned by such objections. The record does not disclose that proof of the signatures of the officers who signed and countersigned it was called for by the defendants. The same, also, is true as to the signatures borne by other of the papers referred to above. It is true that the plaintiff seems to have assumed on the trial that the title from Ramirez was an ancient document, and entered upon the task of showing by parol proof the custody from which it was obtained. There are two witnesses on this point,-Peter Knowles and F. E. De La Rua. The substance of the testimony of Mr. Knowles is that he found it in an old roundtop trunk, whose top was broken in, which he obtained in the year 1859 or 1860 from F. E. De La Rua, on applying to him for his father's papers,-John De La Rua being such father, and quite a number of other papers being in the trunk with the grant, some of which being those considered above, and Knowles having had the custody of the papers ever since obtaining the trunk. Knowles was interested in the property described in the grant, when he obtained the trunk, and at the time of testifying. The substance of Mr. De La Rua's testimony is: That his father. John De La Rua, died in 1832; his wife (witness' mother) becoming his executrix, and she died in 1843, and witness and another became her executors; and the father's papers, on his death, came into the mother's hands, and after her death into the hands of witness and his coexecutor. That the papers in the trunk were a lot of old papers belonging to his father's estate. Witness never examined them very particularly, and could not tell what the trunk contained, except papers belonging to his father's estate, and papers and title grants belonging to the estates of others, for many of whom his father was agent in his lifetime. Witness did not, at the time of testifying, have the trunk, and did not know whether he would recognize any of the papers in the trunk, but knows they were his father's papers, yet not that all of his father's papers were there. Witness was quite young "at the time," and did not consider the papers of any value. That he had no positive recollection of giving the trunk to Knowles. Knowles applied to him for the trunk before the war, but he could not recollect giving it to him, but said he must have, as otherwise Knowles could not have got it. He did not recollect that any one applied to him for the Pintado grant, or for anything connected with it. He did not know Pintado, who, though witness was an old man, was before his time. However deficient this testimony might be, in the face of an objection that it was not sufficient to do away with the necessity of proof of execution, and that, therefore, the title its execution not

having been proved-should not be read in evidence, it was in fact treated by the defendants as sufficient to the end indicated, or its insufficiency was waived by urging objections of another character to the title paper. In the absence of proper objections in the lower court, the point cannot be entertained here, and for the patent reason that had it been made in that court, and sustained, the plaintiff might have cured the defect by other testimony. Coker v. Hayes, 16 Fla. 368; Willingham v. State, 21 Fla. 761; Tuten v. Gazan, 18 Fla. 751; Jenkins v. Merritt, 17 Fla. 304; Logan v. Slade, 28 Fla. 699, 10 South. 25; Summer v. Mitchell, 29 Fla. 179, 10 South. 562; McSwain v. Howell, 29 Fla. 248, 10 South. 588. The failure to object to the introduction of the title on the ground stated was a waiver of any insufficiency in the testimony to excuse proof of its execution, and likewise the restriction of the objection to the other papers to irrelevancy was a waiver of all other possible objection to their being admitted.

There having been no ruling upon the separate objections shown by the bill of exceptions and preceding statement to have been made to the admission in evidence of the power of attorney from Pintado to John De La Rua, and the translation thereof, and the record failing to show that a ruling was insisted on, or å refusal to rule, the objections must be deemed to have been abandoned. Jenkins v. Merritt, 17 Fla. 304; Ortiz v. State, 30 Fla. 256, 11 South. 611.

The result of what has been said in this and the preceding subdivision of the opinion is that the alleged title from Ramirez to Pintado is before us for consideration. The effect upon the verdict and judgment of the error pointed out above in admitting certain of the ancient papers will be considered hereafter.

IV. It is urged by counsel for appellants that neither Ramirez, acting in the capacities indicated by the title paper, nor even the king of Spain, had the right to make the grant. The solution of this proposition involves the necessity of ascertaining the meaning and purpose of the grant, for until we determine what was intended to be done, or what was the effect of the paper, assuming it to be authoritative, we cannot decide upon the question of the power of the officer to do what it imports. In the report of the West Florida land commissioners of January 20, 1835, (4 Am. St. Papers, 119,) it is said that the space described "includes almost the whole of the shoal water, &c., in the bay immediately contiguous to the city of Pensacola, and extending, about two miles, from the mouth of Bayou Chico to that of Bayou Texar." The map shows that the space covered, not only the entire front of the city, but also reached beyond, east and west, to the mouths of the bayous named, and extended outward southerly from the shore, 95 perches of Paris at the former bayou, and

100 at the latter; the exterior or south boundary being of rectilinear lines conforming to the general trend of the shore, but not pretending to respond to all of its curves. A perch of Paris is 18 feet. Webst. Dict. (Goodrich's Ed.) "Arpent." It is apparent that the grant in question, unlike that of the other five grants included within the title, is not an ordinary grant of land including private waters. The civil law of Spain, after dividing things into those of divine right and those of human right, subdivides the former into things sacred and religious, and the lat ter, or things human, into things common, things public, things of a corporation or a university, and things private. Sacred things were those established for the service of God, and, as the consequence of such establishment, the dominion of them was not in man, and they could not be counted property. Burial places were religious. Religion was deemed to occupy churches and cemeteries upon their consecration, and could not be separated from them at any time. Turning to things human, we find things common to have been those which belonged to birds, beasts, and to all living creatures, as being able to make use of them, as well as to men. Such were the air, the waters from heaven, the sea, and its shore. By the "shore of the sea" was understood the part of it covered by water, whether in winter or summer. Any one might navigate on the sea, and on its shore, where also he might build a cottage or house for shelter. Things public are those which belong only to mankind. Rivers, ports, harbors, and high roads were among things public. Not only might the natives or inhabitants of a place make use of things public, but also strangers could do so. No new mill nor any other thing could be built on any part of the river, by which its navigation might be impeded, and any old building obstructing the common use of things public could be destroyed or pulled down. Neither could any building or thing be erected, by which the common use of high roads, squares, or market places, threshing grounds for corn, churches, etc., would be obstructed. Things belonging to a corporation or a university were those belonging exclusively to the inhabitants of any city, town, or castle, or any other place where men reside; and of these things some might be used by any inhabitant of that city, town, or place; and others were for the particular use of the corporation, it being its duty to apply the fruits, produce, or rents to the common benefit of the city or town. Fountains or springs, places for holding markets and fairs, and places for the meetings of the corporation, sandy beaches or grounds on the banks of rivers, and commons or pasture ground, belonged to the former class, and were for the use of any inhabitant; and flocks, fields, and vineyards, also plantations and lands producing fruit and rent, were of the latter

class. White, Span. Law, 61-63; 1 White, Cal. Land Laws, pp. 70-72; Partidas, pt. 3, tit. 28, laws 1-10; Domat, Civ. Law, tit. 3, § 1, arts. 1, 2; Gould, Waters, §§ 3, 30, 168, note. Private things were those which belonged in particular to every individual, and of which he might acquire or lose the dominion. 1 Cal. Land Laws, 84. Things were divided into those which were corporeal and those which were incorporeal; the former being those which may be seen and touched, and they being either movable or immovable, and movables being those which can move naturally by themselves, or be moved by man, and immovables being those which can neither move naturally themselves, nor be moved by man. Incorporeal things are those which can neither be seen nor touched, and of this kind are all species of rights of which the Spanish jurisprudence taught. A right was either in the thing or to the thing. A right in the thing was that which belonged to one over anything, without respect to another person. A right to a thing was that which belonged to any one as against another person, to oblige him to give or to do something. Of the first kind are rights of dominion, of inheritance, services, and pledge and mortgage. Possession, as it is a momentaneous right, and is lost by the loss of the thing, is not a right in the thing. Of the second kind were all species of obligations which arise from contract. Id. Again, it is said in Domat's Civil Law, (section 1, art. 1,) that the heaven, the stars, the light, the air, and the sea are all of them things belonging so much in common to the whole society of mankind that no one person can make himself master of them, nor deprive others of the use of them; and the next article is to the effect that rivers, the banks of rivers, and highways are things public, the use of which is common to all particular persons, according to the respective laws of countries, and these kinds of things do not appertain to any particular person, nor do they enter into commerce, but it is the sovereign that regulates the use of them. The same author, in the next article, reckons among the number of public things, and of such as are out of commerce, those which belong in common to the inhabitants of a town or other place, and to which particular persons can have no right of property, instancing the walls and ditches of a town, townhouses, and public market places. In Angell on Tidewaters, (pages 18-20,) after quoting from Justinian to the effect that by natural right the air, running water, and the sea, and hence the shores of the sea, are common to all, and nobody is therefore prohibited to come to the seashore, and that all rivers and ports are public, so that the right of fishing in a port and in rivers is common to all, and that by the law of nature the use of shore is also public, and in the same manner as the sea itself, it is said that it clearly appears from this passage of the civil law

that the waters of the sea, and the shores of the same, are subject to be used in common by people generally, every person being equally entitled to the benefits to be derived from fishing, drawing and drying nets, and navigation; and it is also said: They were expressly denominated by the Roman jurists "res communes," and considered as res omnium, in respect to their use and benefit, but in respect to property as res nullius. By the common law, the waters of the sea and the shores of the same are as much subject to public use as they are by the civil law, but the essential difference between the two is in the above-stated doctrine of the civilians, that such waters are the property of no one; but the policy of the common law, on the contrary, was to assign to everything capable of occupancy and susceptible of ownership a legal and certain proprietor, and accordingly it makes those things which, from their nature, cannot be exclusively occupied and enjoyed, the property of the sovereign.

We, of course, take judicial notice of the laws which obtained in, or were applicable to, the province of West Florida before we acquired it. U. S. v. Turner, 11 How. 668; U. S. v. Perot, 98 U. S. 430; Farmer v. Eslava, 11 Ala. 1028; 22 Am. & Eng. Enc. Law, 843, note 4; Id. 874, 875.

Assuming, for the present, that Ramirez had the power to grant whatever estate the terms of the water-front grant can be construed to create or convey, it is entirely certain that it does not relate to a thing that it was the policy of the civil law, so long as that thing should remain in its natural state, should be held in severalty by any one person or set of persons. It is a kind of thing, or assuming that the king, or Ramirez as his representative, had the power to grant to an individual a separate and exclusive interest in it, it is a subject of property, as to which all citizens, if not also strangers, had very material interests. There are, in the nature of the thing, special reasons why the ordinary rule of strict construction of government grants should be applied to any grant of it. State v. Black River Phosphate Co., 32 Fla. 82, 13 South. 640; Com. v. City of Roxbury, 9 Gray, 465. The rule of strict construction against the grantee is applicable to Spanish grants. 22 Am. & Eng. Enc. Law, 843, citing Josephs v. U. S., 1 Ct. Cl. 197. The most liberal construction that could be placed on this grant would be that it vested Pintado and his heirs or assigns with full and absolute ownership of the land from the high-water mark on the shore between the two bayous out into the bay for the distance indicated in the title, and explained above, and with the water which might at any or all times cover the same; the depth to which the grant of the soil was intended to extend being, however, only 10 feet from the bottom of the water, the superficial contents of the water surface being