
41 U.S. 228 (____)
16 Pet. 228
THE UNITED STATES, APPELLANTS,
v.
THE HEIRS OF GEORGE J.F. CLARKE, AND THE HEIRS OF GEORGE ATKINSON, APPELLEES
Supreme Court of United States.

*230 The case was argued by Mr. Legaré, the attorney-general, for the United States.
*231 Mr. Justice CATRON delivered the opinion of the Court.
In 1816, George Atkinson set forth to the Governor of East Florida, various important services, through a series of years, performed in behalf of the government, and also many losses; in consideration of which, he solicited a grant in property of fifteen thousand acres of land, in Cedar swamp, and on the west of upper Little Lake.
The governor granted the lands in property; and added: "Consequently the surveyor-general will run them for him in the places he mentions; or in others that are vacant and of equal convenience to the party."
Two places were designated where the lands were to lie by the petition. They were surveyed on four places: the first survey for four thousand acres near Dunn's creek: the second for three thousand acres on Haw creek: the third for two thousand acres, in Dupon's hammock: and six thousand acres on Darcey's creek. One bears date the 20th of January, 1818; and the other three in March, of that year. None of them are on the lands solicited in the petition. The Court below affirmed the surveys; and if this Court concurs in the decree, the United States will be bound to issue patents for the four tracts. That the complainants are entitled to the lands in two surveys, at the places described in the petition, is not questioned; the difficulty is, could the interested party elect to abandon his first locations, and then multiply the tracts?
By the 8th article of the Florida treaty no grants made after the 24th of January, 1818, were valid; nor could a survey be valid on lands other than those authorized by the grant: still, the power to survey in conformity to the concession existed up to the change of flags.
That Spain had the power to make grants, founded on any *232 consideration, and subject to any restrictions within her discretion, is a settled question. If the act was binding on that government, so it is on this; as the successor of Spain. All the grants of lands, made by the lawful authorities of the King of Spain, before the 24th of January, 1818, were by the treaty ratified and confirmed to the owners of the lands. Such is the construction given to the eighth article by this Court in Arredondo's Case, 6 Peters, 706, and in Percheman's Case, 7 Peters, 51; that is, imperfect titles were equally binding on this government after the cession, as they had been on the Spanish government before. The grant to Atkinson was for the lands he mentioned, or for any other lands that were vacant; and the surveyor-general was especially directed to lay them off in either way; the grant giving him an unrestricted discretion over the entire vacant lands of the province, to satisfy the highly meritorious claim of the petitioner: for however doubtful the merits of many claims may have been, as presented to us, of the justice of this there can be no question; it had in it peculiar equities, and therefore the party had conceded to him peculiar privileges in selecting the lands. The official, and well-defined duties of the surveyor-general, are set forth in Hanson's Case; and need not be repeated. He was acting for the government when making the survey, and bound to protect the public domain, within the restrictions imposed by the governor's decree; he did not exceed the decree by going to other places than those pointed out in the petition; and therefore did not exceed his authority, unless it was in making more surveys than two. This point was settled in Sibbald's Case, 10 Peters, 321. His was a mill grant for five miles square, on Trout creek; and in the event that situation would not permit the quantity of sixteen thousand acres, he asked, and had granted to him an equivalent of the deficiency, not at a particular place, but generally. In 1819, a tract of ten thousand acres was surveyed at Trout creek. In February, 1820, another of four thousand acres was surveyed thirty miles off at Turnbull's swamp  and the remaining two thousand acres at Bowleg's hammock, some thirty miles in a different direction. It was proved that no more than ten thousand acres could be had at Trout creek, because of interfering elder claims, and injury to third persons. The Court adjudged, in effect, that the equivalent referred to quantity rather than form *233 of survey; and that the six thousand acres deficient, could be surveyed on any vacant lands in the province, and in several surveys; the only authority for doing so, was that an equivalent was decreed in case of deficiency. The two last surveys were confirmed, on the precise ground that, as to the equivalent, the party was not restricted to any particular spot, nor to any form or number of surveys; and therefore might elect any vacant lands, and at different places.
Sibbald's was a weaker case than the present, the words of the grant being less explicit: the principles presented being precisely the same in both, we cannot reverse the decree below, without overruling the former decision  to which the Court below was bound to conform. We therefore order the decree to be affirmed.
