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35 U.S. 31310 Pet. 3139 L.Ed. 437
THE UNITED STATES, APPELLANTSv.CHARLES F. SIBBALD, APPELLEE.
 January Term, 1836 
1APPEAL from the superior court of East Florida.2This was a claim to land in East Florida, presented to the superior court of EastFlorida, by the appellee, founded on a concession for sixteen thousand acres of land, made by Don Jose Coppinger, governor of the province of East Florida,to Charles F. Sibbald, the claimant, on the 2d day of August 1816; for fivemiles square, or sixteen thousand acres of land.3On the 16th day of July 1816, the petitioner, Charles F. Sibbald, presented his petition to governor Coppinger, supplicating his permission to construct a water saw-mill on the creek called Six Miles, alias Little Trout creek, on the northside of the river St John's and that of Nassau, the creeks of which empty their waters into the said St John's river; with the corresponding surety for the grantof lands embraced in a line of two and a half miles to each wind, making asquare of five miles, or its equivalent, in the event that this situation will not permit the same form; which land, he says, will insure the continued supply of timber.4On the 2d of August of the same year, the governor made his decree, grantingthe permission solicited; under the express condition that, until theestablishment of the mill, the grant of the land, which will be of two miles anda half to each wind, making a square of five miles, in order that he may use thetimber, &c., shall be of no effect.5Ten thousand acres of this land were surveyed upon Little Trout creek,agreeably to the calls of the grant. Four thousand acres were surveyed byGeorge J. F. Clarke, public surveyor, on the 8th day of February 1820, inTurnbull's swamp, at Mosquito, more than one hundred miles to the southwardfrom the first location, and between which and it there is no water communication except by the open sea; and the remaining two thousand acres
 
were, on the 20th of February 1820, surveyed by said Clarke, at Bow Legshammock, about the same distance to the west, and from the first survey, between which and those two thousand acres, there is no water communicationat all.6The petitioner alleges, that in compliance with the condition of said grant, he, inthe year 1819, expended six or eight thousand dollars in the erection of a water saw-mill, which was nearly completed; but that, owing to various difficulties,and the embarrassments of said province, the mill did not go into operation.7That, since the cession of the Floridas to the United States, he has expendedupwards of twenty thousand dollars in the erection of a steam saw-mill on thetract of ten thousand acres, which was completed, and some time in fulloperation; but that in the month of July 1828, it was entirely destroyed by fire,and that he has since commenced another, upon a much more extensive scale.This last has been completed since the filing of the petition in this case.8The answer of the district attorney denies the power of the governor to makethis grant; and puts the claimant to the proof of all the allegations contained inhis petition, and insists that he has not complied with the condition of theconcession.9That by a decree of governor Coppinger, bearing date the 29th of October of the same year (White's Compilations), the term of six months was limited for the performance of the conditions of all grants of this nature; and that it wasthen especially decreed by said governor, that all those grants, the conditions of which were not performed at the expiration of said six months, should be nulland void, and that the lands should be annexed to the class of public land;which decree was subsequently, to wit on the 18th day of January 1819, byanother decree of the same governor, fully affirmed: and that the said CharlesF. Sibbald did not erect the said saw-mill within the said term of six months,and that consequently said concession, at the expiration thereof, became nulland void, and the lands were annexed to the class of public lands.10The original concession in this case was not to be found in the archives; but acopy certified by Thomas de Aguilar, late secretary of the government of the province, was produced and proved.11The proof in relation to the building of the mills, is substantially as stated in the petition, and a duly certified copy of the survey was also produced.
 
12Points submitted on the part of the United States in the court below:131. As to the power of the governor to make the grant.14This question is considered by the court below, as settled by the severaldecisions of the court.152. As to the validity of the surveys of four thousand and two thousand acres.16This was also considered as settled against the claimant by the decision of thiscourt; and the claimant has appealed as to this part of the decree.173. Did Sibbald, the grantee, perform the condition of this concession, either literally or substantially?18The superior court decided in favour of the petitioner, for ten thousand acres;and against the claim of the petitioner to the six thousand acres.19Both parties appealed to this court.20Mr White, for appellee.21This is what is called a mill grant; a grant of a prescribed quantity of land, onthe express condition of establishing a water saw-mill on the river St John, andCone's, or watercourse, called Six Mile or Trout creek. No specific time islimited in the decree within which the mill was to be erected and put inoperation. The governor contented himself with declaring that, until thememorialist should 'settle (establish) the said mill, this grant shall be of noeffect.'22The evidence in the record is ample to show that this condition was fullycomplied with. The first mill was built in 1819, and carried away by a freshet.The second was built in 1827, and was in operation until 1828, when it wasdestroyed by fire, in July 1828. The third, and last, was built and went intooperation in 1829.23United States v. Richard, 8 Peters 470. This is a case of a similar grant made bythe same governor, which was confirmed by the supreme court, of a later datethan this. In that case, as in this, the condition was not complied with until after 

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