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Brig Collenberg/Opinion of the Court

Mr. Donohue, of New York, for appellant. The claimants are common carriers, and cannot discharge themselves from loss except by the act of God or the dangers of the seas. Angel on Carriers, § 87. They must prove the loss occurred by these perils. Angel, 193; 21 Wend., 190. The nature of the cargo being tender, extra care was required on the part of the carrier. Angel, §§ 5 and 6. The facts show that the delay at Lisbon was protracted unnecessarily, and the management of the fruit improper and ruinous to it. The rule is settled, that if any act of the captain is injurious to the cargo or goods of another he cannot say that other damages helped, or that something else would have injured the goods if he had not. If any distinction is to be made in the nature of the damage, he must clearly show what part of the damage occurred entirely without his fault. 18 How., 233.

All the excuses given for the great delay at Lisbon are insufficient and do not agree with the facts. The log-book of the ship shows that the weater was not unfavorable to work; and had it been stormy, the sails, spars and rigging could have been making ashore under cover. The other reasons for delay are no better founded. Add to this the fact that the fruit was placed in a damp strehouse, exposed to the weather, and picked and handled in a fashion certain to induce decay, and the whole case shows gross carelessness on all points.

Mr. Owen, of New York, for appellees. The decree dismissing the libel for loss and damage to the fruit should be affirmed. Beyond question the brig sustained such sea-damage as compelled her to bear away and put into Lisbon to repair. The evidence shows that the repairs were completed with reasonable diligence, considering the stormy weather, the holiday season, which kept mechanics from their work, and the fact that there was no dock in which a ship could lie up for repairs, but only an open roadstead.

If the repairs were not completed with despatch, and if some unnecessary delay occurred in making them, still that is not sufficient to render the vessel liable for the loss of the fruit. There is no allegation in the libel of any such delay, or that the fruit perished from it. McKinlay vs. Morrish, (21 How., 343). The fruit had a strong inherent tendency to decay, and, in the absence of positive proof, it may be inferred that it perished from such cause, and not from the delay. The bill of lading excepts tendency to decay. Wissman vs. The 'Howard,' (18 How., 231;) Angel on Carriers, § 210; Story on Bailments, 492 a. The acts of the master respecting the examination and re-assortment of the fruit were proper and within the line of his duty, which was to do all that he could to arrest decay as soon as he discovered it. Angel on Carriers, §§ 160, 210; Bird vs. Croswell, (1 Miss. R., 81;) Choteaux vs. Leech, (18 Pa. Rep., 224;) Lyn vs. Fisher, (12 Miss. R., 272.)

The survey called by the master was in accordance with usage and his legal duty. There is no question that he acted in perfect good faith, and in the exercise of his best judgment, and the vessel should not be held responsible for the damages. The master was the agent of all concerned in reference to the fruit as well as the vessel, and his acts were therefore binding on the owner of the cargo. Judson vs. ''Warren Ins. Co.'', (1 Story's C. C. R., 342;) Flanders on Shipping, § 173.

On the question of our claim for freight: Having performed the voyage and delivered the cargo according to the bill of lading, the respondent was entitled to his freight upon the portion delivered, notwithstanding some parts thereof were damaged. The items for general and particular average were properly allowed. The bill of lading expressly stipulates for the payment of freight with 'average accustomed,' by which it is supposed the parties meant the ordinary general and particular average to which the cargo might become subject in the course of the voyage. It is clear that the expenses of wages and provisions from the time of bearing away to Lisbon, at least for the time allowed by the District Court, were for the common benefit of all, which, by the well-settled law in the United States, were to be contributed for in general average. 2 Phil. on Ins., (2d ed.,) 120, 121; About, (5th Am. ed.,) 596, note; United States vs. Wilder, (3 Sumn. R., 308.) The expenses of unlading, storing, &c., the fruit were incurred for its special benefit, and was therefore a particular average; in other words, a special charge thereon, which was recoverable in this action. All these expenses were incurred by the master in good faith and in the exercise of his best judgment for the safety and preservation of the fruit, and the law gave him a lien for reimbursement. ''Mut. Safety Ins. Co. vs. Cargo Brig George'', (Olcott's Ad. Reps., 89;) 2 Arnould on Ins., p. 953.

Mr. Justice CLIFFORD.

These are appeals in admiralty from the respective decrees of the Circuit Court of the United States for the southern district of New York. Both of the suits were founded upon the same transaction, and depend substantially upon the same facts.

One was a suit in rem against the brig L. A. Collenberg, brought by the appellant, in which it was alleged that certain merchandise, consigned to the libellant, was shipped at the port of Palermo, on the twelfth day of December, 1855, on board the brig, in good order and condition, and that the master signed bills of lading, agreeing to deliver the same in like good order and condition to the libellant, at the port of New York; and the charge in the libel was, that he had failed to deliver seven hundred boxes of lemons, and two thousand one hundred and fifty boxes of oranges, constituting a large portion of the cargo.

Service of process was waived, and the claimant of the brig appeared, and, by consent, entered into stipulation, both for the costs of the suit and the value of the vessel. They also made answer to the suit, denying the allegations of the libel, and averring that the merchandise mentioned in the bill of lading, except four hundred and fourteen boxes of lemons and oranges, which perished from their own inherent tendency to decay, had been duly transported and delivered to the libellant in like good order and condition as when laden on board, saving, only, the damage occasioned by the perils of the seas, and such as resulted from the natural decay of the fruit.

On the second day of July, 1856, they also filed a cross-libel against the appellant, as consignee of the cargo, to recover the freight for the transportation of the same, in which they alleged that they had fully performed the contract set forth in the bill of lading, and were entitled to have and receive of the respondent, for the freight and primage, including charges, the sum of twenty-eight hundred and sixty-two dollars and forty-seven cents.

Most or all the testimony was taken in the first suit, but the same was also used, by stipulation, in the cross-libel; and, after a full hearing, the District Court dismissed the libel against the brig, and in the cross-action entered a decree in favor of the libellants for the freight, or so much of the same as was due for that portion of the cargo which had been transported and delivered. Both decrees, on appeal, were, in all things, affirmed in the Circuit Court; and thereupon the present appellant, who was the libellant in the first suit and the respondent in the second, appealed both cases to this court.

It appears, from the pleadings and evidence, that, on the twelfth day of December, 1855, seven hundred boxes of lemons, and two thousand one hundred and fifty boxes of oranges, together with other merchandise not necessary to be specified, were shipped on board the brig, then lying at Palermo, and bound for New York, and that the master signed bills of lading, undertaking to transport the same to New York, and there deliver the same to the appellant, or his assigns, on payment of the stipulated freight, the dangers of the seas and the liability of the fruit to decay excepted.

According to the testimony of the master, the brig, with her cargo on board, sailed from Palermo on the sixteenth day of the same month, but, while pursuing her voyage, she encountered heavy gales; and on the second day of January following the sea broke over the forward part of the vessel, and carried away the jib-boom, the flying jib-boom, and both topmasts, and they were obliged, in the emergency, to cut away the rigging, to clear the jib-boom from the vessel, and get rid of the broken spars. Both topmasts broke off about half-way between the caps and the cross-bars; and they lost in the disaster the mainsail, the two topsails, the gallant-sail, and the spanker. Crippled and disabled as the vessel was, she was obviously incapable of proceeding on her voyage; and, consequently, the master found it necessary to bear away and put into Lisbon for repairs, which was the nearest port. She arrived off the bar at that port on the fifteenth of the same month, and two days later was able to come to anchor in the roadstead, about a mile from the shore. Vessels arriving at that port are obliged, as the witnesses state, to anchor in the stream, because there are no docks or piers in the harbor to which, in rough weather, they can be moored. On the following day, the master applied to the consul for a survey of the vessel, to estimate damages and cost of repairs, and the survey was ordered on the same day the application was made, but four days elapsed before the persons appointed to make the survey were able to go on board, in consequence of the storm, and the roughness of the sea.

They made their report on the twenty-second day of the same month, specifying the nature of the repairs required, and estimating the cost; and on the same day the master of the brig, after consulting with the consul upon the subject, applied to him for an examination and survey of the fruit, and it was immediately ordered. Persons experienced in the business were accordingly appointed by the consul for that purpose, and, on the thirtieth day of the same month they went on board and made the necessary examination. By their report it appears that they found the boxes containing the fruit properly stowed in the vessel, and the place of stowage properly ventilated; but, upon opening a certain number of the boxes, they ascertained that some of the fruit was rotten, and other portions of it were beginning to decay. Under those circumstances, the surveyors directed that the boxes should be discharged and placed in a well-aired storehouse, until the vessel could be repaired and made ready to resume her voyage. That order was carried into effect, and on the ninth day of February following the surveyors made a second examination of the boxes, and, finding that the measures previously recommended and adopted were insufficient to accomplish the object, they directed that the boxes should be opened, and the unsound fruit entirely separated from that which was sound and fit for use. Competent and experienced persons were accordingly designated and employed for that purpose; and the testimony shows, that in executing the order, they condemned and threw away as worthless an amount of the fruit equal to four hundred and fourteen boxes. Those persons entered upon the performance of their duty on the day they were designated, and on the nineteenth day of the same month the surveyors by whom they were selected made a report, approving what they had done for the preservation of the fruit. Throughout this period the repairs upon the vessel were being executed, and, on the twenty-fifth day of the same month the surveyors appointed to examine the brig reported that the repairs were completed, and that she was in a condition to prosecute her voyage. Three days afterwards the master executed a bottomry bond to raise money to defray the expenses incurred in executing the repairs and in carrying out the measures recommended for the preservation of the cargo; and, on the fourth day of March, 1856, the brig sailed for New York, but in consequence of bad weather she did not arrive at her port of destination until the twentieth day of May following. Much of the fruit repacked at the port of distress, in the meantime, had deteriorated, and some of it had become worthless; but it is not pretended that there was any fault in the stowage, or any negligence or want of care on the part of the master during that part of the voyage. On the arrival of the vessel, all of the fruit, except what had been condemned and thrown away, as before sated, was duly tendered to the consignee, but he refused to receive it, claiming that the loss and deterioration were chargeable to the misconduct of the master at the port of distress.

1. It is conceded that the injuries received by the brig on the second of January fully justified the master in bearing away and running into Lisbon as a port of distress to refit the vessel and rendering her capable of continuing and prosecuting the voyage. That concession was very properly made, as the evidence is full to the point and entirely satisfactory. Fault is not imputed prior to the disaster, either to the master or owners; and it would seem that the charge could not be sustained, if made, as the evidence shows that the vessel was staunch, the cargo properly stowed, and every reasonable precaution taken to give it sufficient ventilation.

None of these matters were drawn in question at the argument, but it was insisted by the appellant in the suit against the vessel, that the repairs were not executed with proper diligence, and that the discharge of that portion of the cargo in question, and the opening of the boxes and the taking out and repacking the fruit, were improper and injudicious, and had the effect to promote and increase the inherent tendency to decay. Much testimony was taken on the first point, and in some of its aspects it is conflicting, but when considered in connection with the circumstances, as explained by the witnesses who were present and saw the difficulties which occasioned the delay, it is quite obvious that the proposition cannot be sustained. Some twenty-five or thirty other vessels put into that port about the same time for the same purpose, which created an unusual demand for the labor of mechanics. According to the statements of the witnesses, the mechanics there were few in number, and not very efficient; and what added to the difficulty was, the circumstance that it was the carnival season, and consequently the mechanics refused to work during the festivals and holidays, which for a time included two or three days in the week, and on one occasion they 'struck' for higher wages, and refused to work at all for several days. Among the vessels that put into the port for repairs at that time were two bound to New York, and neither of them sailed till after the brig; and all the witnesses who were on the ground, and have any knowledge of the actual circumstances, agree substantially that the repairs were made as soon as they could be in that port at that time. Witnesses, residing in New York, express the opinion that the repairs might have been executed in much less time, and their testimony undoubtedly is correct as applied to any commercial port in the United States; but the master in this case was obliged to refit his vessel in the port of distress where she was anchored, and it must be assumed that those who witnessed his conduct have the best means of judging with what fidelity he performed his duty.

2. Two vessels only were in port bound to New York, and both of those were there for the purpose of repairs, and of course were not in a condition to bring forward the cargo of the brig. Unable, as the master was, to employ another vessel and send the cargo forward, it was certainly his duty to take all possible care to preserve it. Looking at the whole evidence, it is clear that he sought the best advice that he could obtain, and followed it faithfully; and, notwithstanding the opinion expressed by certain witnesses to the contrary, we are by no means prepared to admit that he did not pursue a judicious course to prevent the fruit from perishing. In view of all the facts and circumstances, we think the point is without merit, and it is accordingly overruled. 3. Having come to that conclusion, one or two remarks in regard to the suit brought by the owners of the vessel will be sufficient. They having established the fact that the loss and decay of the fruit were not occasioned by the fault of the master, were clearly entitled to recover for the freight on all that portion of the cargo that was duly transported and delivered. No question was made as to the amount in the Circuit Court, and it is not pretended that the question ought to be opened here in case the other decree should be affirmed. After a careful consideration of the evidence, we have come to the conclusion that the decision of the Circuit Court was correct, and the respective decrees are accordingly affirmed, with costs.

title: Brig Collenberg/Opinion of the Court


text: Talk:Brig Collenberg/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Carondelet v. Saint Louis

Writ of error to the Supreme Court of Missouri.

This proceeding was commenced by the city of Carondelet against the city of Saint Louis in the Saint Louis Land Court by a petition, in which the plaintiff (Carondelet) set forth that it was a Spanish town for more than thirty years prior to December 20, 1803, (the date when that country was ceded to the United States,) and the inhabitants of the town for several years before and after 1803 used and possessed a certain tract of land adjoining the town as commons; that between the years 1796 and 1800 the northern line of the Carondelet common was surveyed and marked by Don Antonio Soulard, the Spanish surveyor for the province of Upper Louisiana, pursuant to an order of the Governor, which was published at the church door of Saint Louis; that this line commenced on the bluff bank of the Mississippi at the Sugar Loaf Mound, four miles south of St. Louis, and two miles north of Carondelet, and running thence westwardly; that the line was distinctly marked; that the land south of it continued to be used as commons by the inhabitants of Carondelet until December 20, 1803, and was claimed by them as such until June 13, 1812, on which day it was confirmed to them as their absolute property by an act of Congress. The petition complains that Saint Louis, in fraud of the rights of Carondelet, procured in 1831 a survey to be made of the common lands of the former city, whose southern line is nearly a mile south of the Sugar Loaf Mound, whereas it should have followed the line established by the survey of Soulard, and the respective possessions of the parties in Spanish times. The petition further avers that Saint Louis is in the actual possession of the land covered by the two surveys, and prays judgment that the survey of 1831, so far as it interferes with the claim of Carondelet, be set aside, and the plaintiff be put in possession.

A verdict and judgment were rendered in the Land Court in favor of the defendant, and the cause was removed by writ of error to the Supreme Court of Missouri, where it was reversed and the record remitted, with an order for a venire facias de novo. On the second trial the verdict and judgment were again in favor of the defendant, and another writ of error was taken to the Supreme Court of the State, where the judgment was affirmed. A very full report of the case as it stood in the State court will be found in 29 Missouri Rep., 527.

The act of Congress of June 13, 1812, confirmed to the inhabitants of certain towns and villages (among others Saint Louis and Carondelet) 'the rights, titles, and claims to town or village lots, out-lots, common-field lots, and commons in, adjoining or belonging' to them, which were 'inhabited, cultivated, or possessed' prior to December 20, 1803, 'according to their several right or rights in common thereto.' The same act made it the duty of an officer to run an out-boundary line so as to include the commons of each village. In 1816 Congress provided for a survey of all claims confirmed by previous acts. Another act, similar in its tenor and object, is dated in 1824, and in 1831 the United States relinquished all their interest in these common lands to the inhabitants of the respective towns and villages, to be held by them in full property and for their own use, according to the laws of Missouri.

Saint Louis was incorporated in 1809, and Carondelet in 1832, both by the County Court. The limits of Saint Louis were described as extending southward to Sugar Loaf Mound. The bounds given to Carondelet extended 2,640 yards on the Mississippi, and west to Fourth street, but did not include the north common, or the fields, or the south commons.

In 1816, or 1817, a survey was made by Elias Rector, a deputy surveyor, under instructions from his superior, apparently in pursuance of the law passed in 1816. In 1834 Joseph C. Brown, another deputy, under similar instructions, retraced and marked the survey of Rector. Brown's work was approved by the Surveyor General. His survey ascertained and marked all the lines of the common land appurtenant to Carondelet, and found its contents to be 9,905 acres, or about 11,642 arpents. The authorities of Carondelet were present at the making of this survey by agents specially appointed for that purpose. They procured a copy of it and directed it to be framed for the benefit of the town. In 1839 they ordered all the commons north of the River des Peres to be leased. The lots on the extreme north were made fractional by Brown's line, and they were leased as fractions. A plot of these subdivisions, filed by themselves in the recorder's office, calls for the Saint Louis common on the north. In several suits between the town and other parties, Carondelet gave Brown's survey in evidence as the basis of her title. When an attempt was made in the War Department of the United States to annul the survey, Carondelet protested and petitioned Congress to confirm their right according to the survey. The city of Saint Louis in the mean time (1836) proceeded to subdivide her common lands into lots down to the line of Brown's survey and sold them, but not without a formal notice from a committee appointed by Carondelet that the lands were claimed by the latter corporation. This suit was brought in 1855.

The Supreme Court of Missouri held that the evidence given in the Land Court proved the acceptance of Brown's survey by the authorities of Carondelet; that it could not be accepted in part and rejected in part, and that such acceptance estopped Carondelet from claiming any land outside of the survey.

Mr. Hill, of Missouri, for plaintiff in error. The case involves the construction of the act of Congress of 1812, under which Carondelet claims. This act gives the land specifically and unconditionally to the inhabitants of Carondelet. Their title was perfect without a survey, and therefore it could not be divested by the survey of 1834. Bird vs. Montgomery, (6 Mo., 511;) Chouteau vs. Eckhart, (2 How, 421;) Guitard vs. Stoddard, (16 How., 494;) West vs. Cochran, (17 How., 416;) Carondelet vs. McPherson, (20 Mo., 192;) Carondelet vs. St. Louis, (25 Mo., 448;) Milburn vs. Hortez, (23 Mo., 532;) Staniford vs. Taylor, (18 Howard.) The out-boundary survey directed by the act of 1812 has been held by the Supreme Court of Missouri not to be conclusive against the claimant of a common-field lot outside of such survey. Gurno vs. Janis, (6 Mo., 330;) Page vs. Scheibel, (11 Mo., 167;) Schultz vs. Lindell, (24 Mo., 567.)

Whether Brown's survey was a survey of all the land confirmed to the inhabitants of Carondelet was a question of fact, but the State court decided it as matter of law, and defeated the act of Congress by giving to the survey an effect which it was not entitled to have. Moreover, Brown's survey was illega and fraudulent, because it was not made under instructions from the Commissioner of the General Land Office, as the act of 1824 requires. Besides, the survey of 1821 did include the land in dispute; there was never any appeal from it; it was duly made, and is conclusively binding on the United States. Minard's Heirs vs. Massey, (8 How., 294,) which is relied on as sustaining the view of the State court as to the effect of the acceptance of the survey of 1834, has no application to this case.

The Spanish law was in force in Upper Louisiana when this right originated, and continued in force until 1816. By that law the commons could not be alienated without the consent of Congress. 5 Partidas Law, 5, tit. 5. And the same rule prevails under the common law. Cincinnati vs. White's Lessee, (6 Peters, 432.) The express authority, therefore, of the Missouri legislature was necessary to enable the trustees of the inhabitants of Carondelet to divest their title by accepting a survey.

Mr. Shepley and Mr. Gardenhire, of Missouri, for defendant in error. This court has no jurisdiction to revise the judgment of the State court in a case like the present. The validity of no treaty statute or authority, exercised under the United States, is drawn in question. Certainly there is no decision against the right asserted under the United States. The plaintiff claims title to certain lands by virtue of an act of Congress. The court says: 'True, the land was yours; your title under the law is not to be denied; but you are estopped to show that title against this party, because you have done acts which make its assertion inconsistent with equity and good conscience.' This is no more deciding against the right claimed under the statute than it would be to hold that the plaintiff's title was divested by a sale or barred by the statute of limitations. Montgomery vs. Herndez, (12 Wh., 129;) Matthew vs. Zane, (7 Wh., 164;) Harris vs. Denny, (3 Pet., 292;) Crowell vs. Randall, (10 Pet., 391;) Nelson vs. Lagow, (12 How., 98;) Moreland vs. Page, (20 How., 522.) These cases show that this court will not and ought not to revise the judgment of a State court on any but the questions of federal jurisdiction enumerated in the 25th section of the act of 1789.

The town of Carondelet had no title to the land in dispute by the act of 1812 without the survey, which the same act, as well as subsequent acts, authorized and required. Pasturing cattle or cutting wood were acts which the villagers might do upon lands not appurtenant to the town as commons. A survey was necessary, otherwise it must be supposed that Congress gave to the towns an absolute title to lands, the limits of which might be defined at any future time by parol evidence of the extent to which cattle grazed and men cut wood. Unless the right of Carondelet was defined by the survey, it is not defined at all, and the grant is void for uncertainty. The contradictory and uncertain testimony of the witnesses shows the value of this principle and the necessity of adhering to it.

But here was a survey not only unappealed from, but accepted by many acts of the party who now attempt to repudiate it. The binding effect of a survey of commons under the acts of 1812, 1824, and 1831, upon a party by whom it is accepted, has been established by many decisions of this court. Chouteau vs. Eckhart, (2 How., 344;) Le Bois vs. Brammell, (4 How., 456;) Minard vs. Massey, (8 How., 301;) Guitard vs. Stoddard, (16 How., 494;) Willet vs. Sandford, (19 How., 82;) and other cases. It is undoubtedly true, as decided in Guitard vs. Stoddard, that an individual may recover a common-field lot without a survey; but if he asks for a survey under the act of 1812, has it made by proper authority, assents to it, and accepts it, can he afterwards claim beyond it?

What is alleged to have been a survey of this common in 1821 was not a survey. But Rector's, in 1817, has all the marks of an authentic and approved survey that can be found on any survey of that time. Brown's, made in 1834, was regularly approved by the surveyor general; was adopted by the United States; was accepted by Carondelet, and the parties are mutually estopped to deny its legal validity.

The objection of the plaintiff in error that the court decided the facts connected with the survey as matters of law is not well founded. The jury found the facts, and the court applied the law by saying that the facts created an estoppel.

The survey having been made and accepted, it is a survey of the whole claim, conclusive and binding as a whole. The reasoning of the State court in this case and in that of Carondelet vs. McPherson, (20 Mo., 192,) exhausts the subject, and shows clearly how inequitable any other principle would be.

Mr. Ewing, of Ohio, in reply. The denial of jurisdiction in this court rests on no solid foundation. The whole case, in all its points, is made up of the construction of laws of the United States, and acts of Federal officers and of other parties having reference thereto. The Supreme Court of Missouri says in express terms that the case must be governed by the acts of Congress and the laws of Missouri. Both parties assert title under the same acts of Congress, and the actual title depends on the construction of those acts. This gives jurisdiction. Matthews vs. Lane, (4 Cr., 382;) Ross vs. Doe, (1 Pet., 664;) Buel vs. Van Ness, (8 Wh., 324;) Lytle vs. Arkansas, (22 How., 202.) In Mackay vs. Dillon, (2 How., 372,) this court reversed a judgment of the State court because it gave to a survey properly admitted an effect to which it was not entitled.

On the passage of the act of June 13, 1812, the title of Carondelet was perfect to all the land which she possessed prior to 1803 by well defined and undisputed boundaries, and that title was not defeasible by any subsequent survey of a Federal officer. Mackay vs. Dillon, (4 How., 446;) Guitard vs. Stoddard, (16 How., 508.)

But if a survey be necessary to make valid, or if it be effectual to destroy the title under the act of 1812, then the survey of Brown in 1821 is invoked in favor of Carondelet. Until that survey was set aside there could be none after it.

If titles resting on a survey are once defined thereby, such survey cannot, after a long time, be disregarded by the United States, and a new survey made, without considering it or setting it aside, and thus shake or destroy the titles which it had defined. If this process of demolition could be begun at the end of fourteen years, and consummated at the ene of thirty-five years, there is nothing to protect title thus acquired, and a cloud may hang over it forever; the process may be repeated without limit as to number or time.

But the court below held Carondelet estopped, under their construction of the laws of the United States, from asserting title to the land in controversy. This point assumes the title in Carondelet, and asserts that good faith or some rule of law forbids her to set it up. As between Carondelet and St. Louis the court below did not find an estoppel, except through the United States, by virtue of the survey of Brown in 1834, and the acts of Carondelet under it. Indeed, it was impossible that they should so find, for Carondelet resisted from first to last the seizure of her property as fully and efficiently as she was able to resist. And it is difficult to perceive a moment of time when the United States offered and Carondelet accepted the survey of 1834. It was not an approved survey until March, 1855-a month after this suit was brought. To say that Carondelet was estopped by the action of the Secretary of the Interior, on the matter then sub judice in our courts of law, is absurd. Carondelet, at the moment this action which is to estop her took place, was prosecuting her title before a court of justice, and she has not for a moment ceased or delayed its prosecution in consequence of the action of the Secretary of the Interior, but has continued, and still continues, to resist and repel it. If the United States has forever power over these titles, to enlarge, diminish, destroy, or transfer them, without the consent of the grantee, be it so. It is, in effect, so decided in this case by the court below; but let it not be called by a false name. It is the mere exercise of power, not estoppel; and such is the decision in deed, though not in name. It arises out of 'the statutes relating to this subject,' and not out of any principle of the common or civil law. The error of the court below is in making the survey of 1834 bar the title of Carondelet to lands within her well-defined boundaries, defined by lines and corner-stones, by fences, and by regular survey in 1821. Jourdan vs. Banalt, (4 How., 179.) No matter how the court held the title barred by the survey of 1834, whether by direct annulment or by the expedient of an estoppel, it is that survey which is to destroy the title, and it was irregular and illegal.

Mr. Justice CATRON.

title: Carondelet v. Saint Louis


text: Talk:Carondelet v. Saint Louis

title: Talk:Carondelet v. Saint Louis


text:
Carondelet v. Saint Louis/Opinion of the Court

This cause is brought here by writ of error to the final decision of the Supreme Court of Missouri. The proceeding in the court below was according to the State practice, being by petition partly in the nature of a common law action, and also corresponding in other parts to a bill in equity. One issue was presented by the pleadings which was submitted to a jury. The petition states, that, between the years 1796 and 1800, the northern line of the Carondelet common was surveyed and marked by Soulard, the proper Spanish surveyor for Upper Louisiana, pursuant to an order made by the Lieutenant Governor of the province; that the line was run and duly marked in presence of certain of the inhabitants of St. Louis and Carondelet, and published at the church door. It commenced at the bluff bank of the Mississippi river, at a mound called the Sugar Loaf, about four miles south of St. Louis, and two miles north of Carondelet, and run westwardly to the northeast corner of the common-fields of Carondelet; that monuments were established at each and of the line, and a temporary fence was made of brush-wood along the same; and that the inhabitants of Carondelet held and occupied as their northern boundary of the common up to said line, from 1796 until December 20th, 1803, and continued to claim to said line to the time of passing the act of June 13, 1812, by which act it is averred the petitioners took an absolute and fee simple title to the land bounded on the north by Soulard's line. This is the legal title set up, and a recovery of possession is claimed to that line.

The equity asked to be enforced against St. Louis is, that, in 1831, the Surveyor General of Missouri and Illinois caused a survey to be made of the supposed commons of St. Louis, locating the southern boundary of the St. Louis common about one mile south of the Sugar Loaf, and of Soulard's line above described; that, to this line St. Louis claims title and holds possession as part of its common, and which survey is declared to be in fraud of the rights of the inhabitants of Carondelet, and throws a cloud over their title as confirmed by the act of 1812, and they pray to have it set aside and held for naught, because it was made by the Surveyor General without any warrant or authority of law. Defence was made under the general issue.

A question has been raised whether this court has jurisdiction to re-examine the decision of the Supreme Court of Missouri.

The 25th section of the judiciary act provides, that where there is drawn in question the construction of any statute of the United States, and the decision is against the title set up and claimed under the statute, the case may be re-examined in this court, and the decision reversed or affirmed.

Here, title was set up and claimed by Carondelet to a part of its common, according to a true construction of the act of 1812. The claim depends solely on this act of Congress, taken in connection with Soulard's survey; and the decision being adverse to the claim, jurisdiction exists.

Soulard run a single short line from the mound to the east side of the common-fields, and did nothing further. He may have obtruded on the claim of common appertaining to St. Louis, and so the department of public lands must have adjudged, as a different line was adopted. At that early day the land was of too little value to attract attention to this proceeding.

The act of 1812 granted to the inhabitants at the place known as Carondelet their lands used in common, for the pasturage. But the power was reserved by Congress to the Executive authority to survey this common property, by including it in an out-boundary survey, reserving from the common property such portion as the Government saw proper to withhold for military purposes, which was done.

A tract of some nine thousand acres was claimed by this hamlet of people lying south of the village, as commune property, with a comparatively small exception. The southern portion was wholly undefined; it was in the condition of Cere's claim, investigated by this court in the case of Minard's Heirs vs. Massey.

Had the out-boundary line been run according to the reserved power in the act of 1812, the boundary of the common would have been established, there being no other claims to be included. Until a survey was made on the west and south, the villagers had no title to the common on which they could sue, because their grant attached to no land, nor could a court of equity establish a boundary. This court so held in the case of West vs. Cochran, (17 How., 416.) The case is different, under the act of 1812, as to town lots and out-lots, as there stated. Such lots, and the possession of them, could be shown and identified, as matter of evidence. Ib., p. 416. The proposition is, of necessity, true, as respects all grants of specific tracts of land. If there be no boundary, the grant is vague, and cannot be identified, and the grantee takes nothing. The survey here was the completion of of the title, although it succeeded the act of granting the land. It defined the grant.

In opposition to this doctrine, it is insisted that, by the act of 1812, a title in fee was taken, and that no public survey was necessary to give title. Such is the established doctrine of this court, as will be seen by the case of Chouteau vs. Eckhart, and Bissell vs. Penrose.

The first of these cases involved the St. Charles common; it had been officially and carefully surveyed, and the boundaries marked by Soulard, the Spanish surveyor. 2 How., 350. No question of boundary was involved in the controversy; and in the case of Bissell vs. Penrose, (8 How.,) there had been a private survey, which was filed with the board of commissioners, as descriptive of the land claimed, and which was held to have been reserved from location by a New Madrid certificate. It is, however, conceded, in the opinion of the court and in Mr. Justice McLean's dissenting opinion, that if no marked bound ary had existed, the confirmation would have been vague, and the opposing entry valid.

This being the condition of the Carondelet common south of the village, a survey and line-marks entered into the title, and were necessary to create one; as to the survey, the land granted must attach. To this end, Elias Rector, a deputy surveyor, in 1816 or 1817, under instructions from the Surveyor General at St. Louis, made a survey of the Carondelet common, fixing the upper corner at the west bank of the Mississippi river, about a mile below and south of the Sugar Loaf Mound; thence running westwardly to the common-fields, southwardly with them so far as they extended; and then completed his survey below the village and fields. On the west and south the lines adjoined public lands, and on the east the tract was bounded by the Mississippi river. It has many lines and corners. The public lands and private claims lying north, west, and south of Rector's survey had to be connected with it, for the purpose of ascertaining the fractions in the townships lying adjoining; and for this purpose, the Surveyor General, in 1834, ordered Joseph C. Brown, a deputy, to trace and remark the lines of Rector's survey, and connect them with the public lands and private claims. This was carefully done; the line marks of Rector's survey were found, and it was remarked. Under Rector's survey, thus identified by Brown's resurvey, Carondelet has claimed title, and now holds in fee a very large portion of its common lands. Its contestation has been as vigorous to uphold Rector's survey on the south as it has been to overthrow it on the north. It must be admitted, that if, when Rector was sent into the field to survey the village common, he had reported to the Surveyor General that, after beginning at a certain point on the river, he had run a mile west, and made a second corner at the fields, and there broke his compass, and did nothing more, that such a survey and return would have amounted to nothing. And this is all that Soulard did, acting under similar general instructions from the Spanish Lientenant Governor with those given to Rector by the Surveyor General. Both were directed to survey the common, and make due return of their work. No instructions were given where either should begin, or how he should proceed afterwards. The correctness of the survey was to be ascertained, and the work approved by higher authority.

It is objected that the field-notes of Rector's survey were not platted or recorded, and were found in an obscure box in the Surveyor General's office, and that, in fact, there never was an approved survey. Wm. Milburn, who was a clerk in the office as early as 1817, and had been Surveyor General, proves this objection to be groundless. But suppose it was true; then how does the title of the plaintiffs stand? Soulard never made a survey that any authority did or could recognise, as one of the common; if Rector's be a fiction, and Brown's remarking equally void with the survey he traced, then the Carondelet common has no boundary on the north, west, or south, and stands as the village title did when the act of 1812 was passed, which was a vague claim set up by the villagers for 6,000 acres before the board of commissioners; and to which quantity Mr. Secretary Steuart ordered them to be held, but gave no directions how the land should be laid off; and the matter having been brought to the consideration of Secretary McClelland, he adjudged, and properly, that Rector's survey and Brown's remarking of it concluded the Government, and bound the corporation of Carondelet to the whole extent of the survey.

This proceeding having the features of a suit in equity, and also of an action at law to ascertain the better title in one action, and the defendant having relied on the general issue to sustain the defence, offered Rector's survey in evidence, to prove the bounds of the land granted by the act of 1812. It was established as matter of fact, that the survey had been made, and the field-notes duly returned, and that Brown remarked the lines 1834. It also appeared, as matter of fact and of law, from the records of the General Land Office, by the decisions of the officers there, that the department administering the public lands had settled the question in regard to the regularity of Rector's survey, its due return, and approval. And the jury having found that the corporation of Carondelet had, in various modes, recognised, accepted, and held under Rector's survey, as identified by Brown in 1834, we are of opinion that the State court properly rejected the claim set up by the petition, and order the judgment below to be affirmed.

Judgment of the Supreme Court of Missouri affirmed.


text: Talk:Carondelet v. Saint Louis/Opinion of the Court


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Hodge v. Combs

Appeal from the Circuit Court of the United States for the District of Columbia.

Leslie Combs brought his bill in the Circuit Court against John L. Hodge, administrator of Andrew Hodge, deceased, William L. Hodge, and James Love, complaining that Love, having in his hands certain bonds of the Republic of Texas which belonged to the plaintiff, sold and transferred them for his own benefit, and without authority or consent of the plaintiff, and that he, the plaintiff, had since learned that they were in possession of and claimed by the other defendants. The bill prays that the defendants be restrained from receiving any money on the bonds, and that the bonds be surrendered to the plaintiff as the true owner, and for further relief.

The answer denies all the main facts set forth in the bill, asserts that Love had authority to make the transfer, and that the plaintiff has no title or just claim to the bonds.

When the cause was first heard the Circuit Court dismissed the bill, but that decree was reversed by the Supreme Court on appeal, and the record remanded for a further hearing. 21 How., 397. Afterwards a decree was made below that the bonds be surrendered to the plaintiff. From this decree the present appeal was taken by the defendants. At the last hearing the evidence was the same as on the first, except the paper embodied in the opinion of Mr. Justice Grier, which was not produced until after the cause had been remanded.

Mr. Reverdy Johnson, of Maryland, for the appellants. The power of attorney, dated the 13th February, 1840, takes the case out of the principle decided on the former appeal. It is a general power, and gave the attorney all the control over the bonds which the principal himself could have exercised.

Mr. Bradley, of Washington city, for the appellees. The instrument relied on is wholly insufficient to justify the tranfer of the plaintiff's stock. By the law of Texas it could be transferred only on the books of the stock commissioner. 1 Tenn. R., 334. A general authority like this is not sufficient for any special purpose. Paley on Agency, 2; 15 East., 408. If it were, it would authorize the attorney to sell all the property of his principal, or to apply for a divorce in the name of his principal if he had a wife living in Texas.

But even if the paper were sufficient, the defendants have failed to come within the requirements of the law in other respects. This court has decided that they must show the consideration paid to the attorney for the bonds; and they have not done so.

Mr. Justice GRIER.

title: Hodge v. Combs


text: Talk:Hodge v. Combs

title: Talk:Hodge v. Combs


text:
Hodge v. Combs/Opinion of the Court

This case was before this court at December term, 1858, and may be found reported in 21 Howard, 397. It was then remanded to the Circuit Court, with directions to allow the parties to amend their pleadings, and take further testimony.

The important question of the case was, whether Love had any authority to transfer the Texas bonds of Combs, and whether Hodge, who claimed them, had given value for them.

This court, in remanding the case, there say: 'It appears that the plaintiff did not direct the sale or transfer of the stock in question, and that they were not disposed of on his account; and if there had been a power of attorney containing an authority to sell, the circumstances would have imposed upon the defendant the necessity of showing there was no collusion with Love.'

The defendants were thus required to establish two facts in order to support his defence: first, a sufficient power of attorney to Love to convey the stock; and, secondly, payment of a bona fide consideration by Hodge.

Of the latter of these he has given no evidence at all; and of the former, a paper which, as a power of attorney, may be construed to confer almost any or no power. It is brief and comprehensive, and is as follows:

'I, Leslie Combs, do hereby constitute and appoint James Love, of Texas, my general and special agent to do and transact all manner of business in which I may be interested there, hereby ratifying and confirming the acts of my agent as fully as if done by myself.

'Witness my hand and seal, the 13th day of February, 1840.

'LESLIE COMBS. [SEAL.]'

It is clear, from the correspondence between the parties to it, that Combs, by this agency to 'transact all manner of business,' never supposed that he had authorized his agent to sell his property, and apply the proceeds to his own use. Nor did the agent-so construe it till it became necessary to find an excuse for his abuse of his trust.

On the first trial of this case the respondent did not produce this very vague and carelessly drawn instrument as his authority for selling the stock, but relied on a blank endorsement of the payee upon the bonds. No prudent man would accept a title to property executed by an attorney in fact, under a power in such very general and equivocal terms; a man may have 'a general and special agency to transact all manner of business,' without necessarily including therein a power to sell. If it had appeared that this paper had been presented to the treasurer of Texas as a power of attorney to Love to transfer the stock on the books, and if a transfer had been made on the faith of its sufficiency to Hodge, who had paid a valuable and full consideration, he would have presented a case which might have called for a liberal construction of this vague and indefinite instrument. But as none of these facts appear, we are not called upon to speculate on the possible constructions this paper might be constrained to yield under other circumstances. It is sufficient to say, that, by the previous decision of this court, the defendant was permitted to amend his pleadings in order to prove two facts, both of which were necessary to constitute a good defence. The testimony to support one of them, to say the best of it, is doubtful, and the other is wholly without proof.

Decree of the Circuit Court affirmed.

title: Hodge v. Combs/Opinion of the Court


text: Talk:Hodge v. Combs/Opinion of the Court


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Magwire v. Tyler

This case came up on writ of error to the Supreme Court of the State of Missouri. It was commenced in the St. Louis Land Court, (equity side,) by petition and summons, agreeably to the code of Missouri. The plaintiff, John Magwire, claimed four arpents by four of land lying in the county of St. Louis, of which the defendants, Mary L. Tyler and others, were wrongfully in possession. The petition prayed a decree for title in them-for possession-for an account of profits, and an injunction against waste. The defendants answered at length, denying the material facts set forth in the petition, and asserting that they were rightfully in possession. The Land Court heard the cause, found the facts specially, and made a decree in favor of the defendants, dismissing the petition, which was affirmed afterwards by the Supreme Court of the State, and the plaintiff took this writ of error. What the facts in dispute were, and how they were found by the court of original jurisdiction, will appear by reference to the opinion of Mr. Justice Catron. The defendants in error moved to dismiss the writ for want of jurisdiction, and the court heard the argument on that motion, and upon the errors assigned by the plaintiff in the judgment of the State court at the same time.

Mr. Ewing, of Ohio, for plaintiff in error. The two confirmations were connected in the same concession and included in one survey. That survey was recognised by the United States and acquiesced in by the parties for more than fifteen years. It vested an inchoate legal title in both according to their respective interests. It never was appealed from. Though the patent was irregular, yet, having issued, the legal title attends it. Kissell vs. St. Louis, (18 How., 22;) Elliott vs. Pierson, (1 Pet., 341.) But it did not affect the equitable rights of parties under the confirmation and survey. No appeal lay to the Secretary of the Interior. The Surveyor General is alone responsible for it, and he acts under no directions but those of the law and the judgment of the commissioners who confirmed the title. The survey of 1851, under which the patent issued, was a gross violation of right; it was made under the order of the Secretary, who had no authority against the expressed opinion of all the officers who had authority. This court has decided, and it is not denied, that the plaintiff cannot sustain ejectment against the patent. West vs. Cochran, (17 How., 416.) Wilcox vs. Jackson, (13 Pet., 517.) But the equity of the plaintiff (and that is what he now claims) was complete by the confirmation and survey.

This court has jurisdiction to review the State court in a case like the present.

Brazeau claims an equitable title to a specific tract of land, described in his bill. He claims it under a statute of the United States, and the acts of public officers under that statute; and the decision of the State court was against his title. This gives jurisdiction; and it is quite immaterial whether it was decided 'upon a question of fact or law.' Lytle vs. The State of Arkansas, (22 How., 202, 203;) Chouteau vs. Eckhart, (2 How., 372;) Mobile vs. Eslava, (16 Pet., 234;) Martin vs. Hunter's Lessee, (1 Wh., 357-8-9;) Smith vs. The State of Maryland, (6 Cr., 280.)

Mr. Hill, of Missouri, and Mr. Stanton, of Washington city, for defendants, claimed that the legal merits of the case were against the plaintiff on many grounds.

1. The confirmation to Brazeau was void, not being within the act of Congress.

2. If not void, Brazeau's representatives are concluded by the patent.

3d. The patent of 1852 was conclusive and regular, being founded on what was in fact a resurvey of Soulard's survey.

4. Brazeau's grant was unauthorized because it came from the Lieutenant Governor, who had no power to make it; it was not definitely located; there was no survey nor plat of it on record.

5. A court of equity, after this lapse of time, cannot change the rights recognised heretofore, and especially where it will disturb the possession of innocent purchasers after the lands have greatly risen in value.

6. The plaintiff, who claims under Pierre Chouteau, is estopped by the boundary line established between Labeaume and Chouteau in 1799.

7. This case is settled by the decision in West vs. Cochran, (17 How., 416.) The plaintiff has no right to go into equity and there claim that his land shall be located where the legal title cannot be located.

But this court has no jurisdiction. It must appear from the record, either expressly or by necessary intendment, that some question which this court has a right to re-examine has been decided by the State court, otherwise the writ must be dismissed. Medbury vs. Ohio, (24 How., 414;) Crowell vs. Randall, (10 Peters, 368;) McKenney vs. Carroll, (12 Peters, 66;) Ocean Insurance Company vs. Polly, (13 Peters, 157;) Coon's Lessee vs. Gallaher, (15 Peters, 19;) Armstrong vs. Treasurer, &c., (16 Peters, 281;) Fulton vs. McAfee, (16 Peters, 149;) Commercial Bank vs. Buckingham's Executors, (5 Howard, 317;) Smith vs. Hunter, (7 Howard, 738;) Lawler vs. Walker, (14 Howard, 149;) Robertson vs. Coulter, (16 Howard, 107.)

Mr. Justice CATRON.

title: Magwire v. Tyler


text: Talk:Magwire v. Tyler

title: Talk:Magwire v. Tyler


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Magwire v. Tyler/Opinion of the Court

In 1794, Joseph Brazeau had granted to him, by the Lieutenant Governor of Upper Louisiana, a tract of land, four arpents in front by twenty arpents deep, which extended in a N. N. west course, from the foot of the hill where stands the Grange de Terre, ascending to the vicinity of Stony creek, bounded on one side by the bank of the Mississippi; on the opposite side by the public domain; and on the southern side the tract was bounded by the concession to the free mulattress Esther, made in 1793.

In 1798, Brazeau sold and conveyed to Labeaume part of his concession. The deed includes four arpents, 'to be taken from the foot of the hill or mound commonly called the Grange de Terre, by twenty arpents in depth, bounded by the Rocky branch on the extremity opposite the said mound; reserving to myself (says Brazeau's deed) four arpents of land, to be taken at the foot of said mound, in the southern part of the aforesaid tract; selling only sixteen arpents in depth to the said Labeaume.'

In 1799, Labeaume applied to the Governor, and got his tract of 4 by 16 arpents enlarged, including the land conveyed to him by Brazeau, extending north to the Rocky Branch, calling for twenty arpents in depth. This enlarged tract the Governor ordered Soulard to survey for Labeaume, and to put him into possession; which the surveyor did, in April, 1799.

Labeaume applied to have his claim confirmed by the board of commissioners, and, in 1810, it was confirmed for 356 arpents; and at the same time, acting on Brazeau's concession of 1794, the board confirmed to him his 4 by 4 arpents, adjoining Labeaume's tract on the south.

The board ordered that Labeaume's concession should be surveyed, in conformity to the order of survey made by the Lieutenant Governor; and that Brazeau's tract of sixteen arpents 'should be surveyed, agreeably to a reserve made in a sale from Joseph Brazeau to Louis Labeaume.' This survey was to be made conformably to the reservation in the deed, and that reservation was at the foot of the mound.

Patents were ordered to be issued to the parties respectively; but, owing to litigation before the department of public lands and in the courts of justice, between the parties claiming the reservation, and the proper mode of surveying the tract, was not settled till 1852, when the surveys were approved, and patents issued to each of the parties, locating the southern boundary of Brazeau's claim at the foot of the mound, and the opposite line, adjoining the southern boundary of Labeaume, four arpents further north, at an old ditch. Brazeau's representatives refused to accept the patent for the sixteen arpents, and caused it to be recalled at the General Land Office. His claim, therefore, stands before the court as it existed in 1810, when the board of commissioners confirmed it as valid.

The assignees of Brazeau brought an action of ejectment, to recover possession of 4 by 4 arpents above Labeaume's southern line, and within his survey; but this court held, that the power to survey and fix definite boundaries, and issue a patent for Brazeau's tract, was a sovereign power, reserved to the executive branch of the Government, and that a court of justice had no jurisdiction to locate the claim. West vs. Cochran, (17 How.)

The unsuccessful party then filed his bill in a State Circuit Court, and insists that equity can do what was declared could not be done at law, on the assumption that the court only decided in the former case that Brazeau's incipient but equitable title would not sustain an action of ejectment.

In the year 1817, 'by authority of the United States and under the direction of the Surveyor General for the district of Illinois and Missouri,' the tract of land confirmed to Brazeau was surveyed by Joseph C. Brown, a deputy surveyor, conjointly with Labeaume's enlarged tract. The surveyor certifies that he had 'surveyed for Louis Labeaume two tracts in one: the one confirmed in his own name for 356 arpents; the other, under Joseph Brazeau, for four arpents;' together, 360 arpents equal to 306 1/4 acres.

The courses and distances of the lines are given. At one of the corners the call is for a stone at the mouth of an old ditch, the lower corner of the survey on the river. The next line runs westwardly with the ditch. This survey was returned to the Surveyor General's office, and duly approved shortly after it was made. It purported to include Brazeau's tract of sixteen arpents, and, of course, it was located in the southeast corner of the survey.

When this survey was presented to the recorder of land titles to obtain a patent certificate, he refused to issue one, because both tracts were included in one survey; whereas, the recorder held that the confirmation certificates required separate surveys. Thus the matter stood till 1833, when Brown made another survey of Labeaume's tract, maintaining the ditch as the southern boundary, and throwing off on the west a surplus to reduce the tract to the quantity confirmed to Labeaume.

The representatives of Brazeau claimed to own the tract of four by four arpents north of the ditch, as indicated in Brown's survey of 1817, and a contest was carried on before the department of public lands as to the proper location of Brazeau's claim, according to his confirmation, for nearly twenty years. Finally, the Secretary of the Interior ordered that the tracts should be surveyed separately-set the surveys of Brown of 1817 and 1833 aside-and ordered that Brazeau's claim should be surveyed south of the ditch and next to the mound, and that Labeaume's tract should be located north of the ditch.

The representatives of Labeaume hold the land in the south-easterly corner of Brown's survey, and this is the land the bill prays may be decreed to the complainant-first, on the assumption that the confirmation certificate locates it there; and, secondly, that there was no authority in the Secretary of the Interior Department to set the survey of 1817 aside.

Labeaume's survey of 1833 was merely a reformation of the survey of 1817, excluding Brazeau's four by four arpents.

In 1847 the matter as regarded these surveys was reported by the Surveyor General to the General Land Office, where it was held that Brazeau was entitled to his four arpents square in the southeasterly part of Soulard's Spanish survey of 1799, which embraced both Labeaume's and Brazeau's tracts. This decision was overruled by Secretary Steuart in 1851, under whose order a survey was made for Brazeau outside of Labeaume's survey, as made by Brown.

This decision we are called on, in effect, to overthrow, by holding that Brazeau's land is covered by the patent to Labeaume, and the legal title vested in his representatives. And it is insisted that if it is, then a court of equity may decree that it shall be conveyed by the legal owner to him having the better equity. And this raises the question whether the Secretary was authorized by law to reject the survey of 1817, order another, and overthrow Brazeau's claim of title. That the General Land Office has, from its first establishment in 1812, exercised control over surveys generally, is not open to discussion at this day.

By the act of March 3, 1807, the board of commissioners was required to deliver to each party whose claim was confirmed a certificate that he was entitled to a patent for the tract of land designated. This certificate was to be presented to the Surveyor General, who proceeded to have the survey made and returned, with the certificate, to the recorder of land titles, whose duty it was to issue a patent certificate; which, being transmitted to the Secretary of the Treasury, entitled the party to a patent. Act of 1807, S. 6.

This duty of the Secretary of the Treasury, by the act of 1812, is transferred to the Commissioner of the General Land Office.

The act of April 18, 1814, S. 1, requires that accurate surveys shall be made, according to the description in the certificate of confirmation, and proper returns shall be made to the Commissioner of the certificate and survey, and all such other evidence as may be required by the Commissioner.

These acts show that the surveys and proceedings must be, in regard to their correctness, within the jurisdiction of the Commissioner; and such has been the practice. Of necessity, he must have power to adjudge the question of accuracy preliminary to the issue of a patent.

By the act of July 4, 1836, reorganizing the General Land Office, plenary powers are conferred on the Commissioner to supervise all surveys of public lands, 'and also such as relate to private claims of land and the issuing of patents.'

By the act of March 3, 1849, the Interior Department was established. The 3d section of the act vests the Secretary, in matters relating to the General Land Office, including the powers of supervision and appeal, with the same powers that were formerly discharged by the Secretary of the Treasury.

The jurisdiction to revise on the appeal was necessarily coextensive with the powers to adjudge by the Commissioner. We are, therefore, of the opinion that the Secretary had authority to set aside Brown's survey of Labeaume's tract, order another to be made, and to issue a patent to Labeaume, throwing off Brazeau's claim.

A preliminary motion was made to dismiss this cause for want of jurisdiction, which was brought on which the final hearing.

The survey made by Brown in 1817 for Labeaume included both the tracts confirmed to Labeaume and Brazeau. This survey was duly approved, and so continued for fifteen years. A patent might have been issued on it, either singly to Labeaume or jointly to the two owners, Brazeau's sixteen arpents being granted to him in the southeast corner of the survey.

Standing on the original concession, Brazeau's tract had no specific boundary, and attached to no land; but Brown's survey identified its locality and boundary, and vested a title to land, subject to be sued for and recovered by the local laws of Missouri, and the bill was filed to assert this title, on the ground that the Secretary of the Interior Department had no authority to set the survey aside, divest Brazeau's title, and locate the land elsewhere. The construction of the acts of Congress, conferring power on the Secretary to do the acts complained of, were prominently drawn in question, and the decision below rejected the title set up by maintaining the validity of the Secretary's decision.

The case falls within the principle declared in Lytle's case, 22 How., 202. The finding of the State court, and the decree founded on that finding, show that the question necessary to give this court jurisdiction was raised and decided. Craig vs. Missouri, (4 Peters, 425-6.)

Mr. Chief Justice TANEY.

I think the court has not jurisdiction in this case. The only point in dispute appears to be upon the true location of the land reserved by Brazeau in his deed to Labeaume. And that question depends altogether upon the description of it in the deed, and not upon the survey made by the Surveyor General of the United States, nor upon the judgment or decision of the Land Office. It is a judicial question, belonging exclusively to a court and jury of the State, and not embraced in any one of the provisions of the 25th section of the judiciary act of 1789, in which appellate power over a judgment of a State court is conferred upon this court. But as a majority of the court are of a contrary opinion, and have taken jurisdiction, I concur in affirming the judgment.

Mr. Justice GRIER.

I concur with the Chief Justice.

Decree of the Supreme Court of Missouri affirmed.

title: Magwire v. Tyler/Opinion of the Court


text: Talk:Magwire v. Tyler/Opinion of the Court


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Page:Devonshire Characters and Strange Events.djvu/465

Rh that after van Broeck's visit—if it ever took place—Avery may have made his way to England to dispose of his jewels, but we have no dates in the Dutchman's narrative, and no dates, and no authority quoted by Johnson for his account of the last days of Avery. No reliance whatever can be placed on Defoe's Life and Adventures of Captain John Avery, "the King" in Madagascar, 1720. Consequently the end of Avery remains, and probably will remain, a mystery unsolved. Andrew Brice in his Geographical Dictionary, published in 1759, under the heading of "Madagascar," says: "Pirates have had stations in these Harbours, among whom was Avery, so much talked of 40 or 50 years ago." Had Avery died at Bideford, Brice as a Devonshire man would most likely have heard of it. Salmon, in his Universal Traveller, 1759, says: "What became of Avery himself I could never learn; but it is probable he is dead, or remains concealed in the Island of Madagascar to this time; for he can expect no Mercy from any of the Powers of Europe, if he should fall into their hands, but as to being in such circumstances, as to lay the Foundation of a New State or Kingdom in this Island, this report possibly deserves little Credit. We should have heard more of him after so many years elapsed, if he had made any figure there."

According to Captain Johnson's account, as we have seen, a Captain Wood Rogers of the Delicia, a ship of forty guns, touched at Madagascar with a design of purchasing slaves, and came on the settlement of the crews of the two other vessels, but did not meet with Avery himself.


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Bates v. Illinois Central Railroad Company

Writ of error to the Circuit Court of the United States for the northern district of Illinois.

This was ejectment in the Circuit Court brought by George C. Bates against the Illinois Central Railroad Company for a parcel of land called the 'Sand Bar,' now covered with water, and which the plaintiff alleged in his declaration was a part of the north fraction of section 10, town 9, in the city of Chicago.

The plaintiff's title to the north fraction of section ten was not contested. The section was surveyed by public authority in 1821. This fraction was pre-empted in 1831 by Robert A. Kinzie, to whom a patent for it according to the survey was issued in 1837. The plaintiff held Kinzie's title.

But the defendant denied that the Sand Bar in dispute was within the proper limits of the plaintiff's fraction. The Chicago river is one of the boundaries called for by the survey and patent. Great changes have taken place in the bed and mouth of the river during thirty years. What these changes were, and when they took place, were subjects on which must evidence was given by both parties. If the bed and mouth of the river were at the place where they are laid down in the plat of the survey and mentioned in the field-notes, then the plaintiff's tract did not include the Sand Bar for which he brought suit. The Circuit Court left it to the jury to say, as matter of fact, what were the true boundaries of the tract, and whether the Sand Bar was or was not included by them.

Previous to the erection of the piers in Chicago harbor, (which commenced in 1833,) the land in controversy was dry, but afterwards the currents created by those piers washed it away, and it gradually sunk beneath the waters of the lake. The plaintiff asserted, as matter of law, that his title was not changed or divested by that fact. The court charged the jury that, assuming the plaintiff to be the owner of the land when it was above water, if he suffered it to be gradually washed away until it was entirely covered, and then permitted it to remain an open roadstead for more than seven years, the title became vested in the public, and he could not recover.

To these rulings of the Circuit Court exceptions were taken, and the verdict and judgment being for the defendant, the plaintiff brought the cause up to the Supreme Court by writ of error.

Upon the point last mentioned-namely, the destruction of the plaintiff's title by the action of the water and by his failure to reclaim it from the bottom of the lake for more than seven years the arguments here were very elaborate. But it will be seen by the opinion of Mr. Justice Catron that the cause turned entirely on the question of boundary, which was submitted to the jury, and found against the plaintiff on evidence regarded as conclusive.

Mr. Wills, of Illinois, for plaintiff in error.

Mr. Joy, of Michigan and Mr. Noyes, of Illinois, for defendant in error.

Mr. Justice CATRON.


text: Talk:Bates v. Illinois Central Railroad Company


text:
Bates v. Illinois Central Railroad Company/Opinion of the Court

This cause comes here by writ of error to the Circuit Court of the United States for the northern district of Illinois. The railroad company is sued in ejectment by Kinzie's representatives for land lying under water at the city of Chicago; the end of the road running into Lake Michigan. The controversy depends on the following charge of the court to the jury:

'By the act of Congress of July 1, 1836, entries of the character of Kinzie's were confirmed, and patents were to be issued therefor, as in other cases. A patent accordingly issued to Kinzie on the 9th of March, 1837. There can be no reasonable doubt, I think, that this title, thus perfected, related back to the entry of Kinzie in May, 1831, and the law gave it effect from that date precisely as if it had been made in the proper land office.

'The land had been surveyed in 1821, and on the plat of the Government survey the north fraction of section 10 is represented as having the Chicago river on the south, and Lake Michigan on the east. The river is represented as flowing out in nearly a straight line into the lake. The fact seems to be, that from 1816 to 1821 the river, instead of flowing out, as represented on the survey, just before it entered the lake, made a sharp curve to the south, and thereby formed a sand-bar or spit of land between it and the lake, which has given rise to this controversy. This sand-bar existed in 1821, but it is not noticed in the plat of the survey. In 1821, the river seems to have run into the lake, according to the plat, but it is said this was in consequence of an artificial channel cut through the sand-bar. This channel was stopped up in the winter of 1821-2, but was opened again in the spring of 1822 by a freshet, and water continued to flow out there in the summer of 1822; but during 1821 and 1822 more or less water passed from what had been the mouth prior to 1821. After 1822, the direct channel was stopped up, and, with an occasional exception, caused by the act of man or by a freshet, the river flowed into the lake up to 1833 in its original and natural bed. In 1833 and in 1834 the Government constructed piers across the sand-bar, and the river from that time has flowed through those piers; the old channel south of the pier having ceased to bear the waters to the lake, because the south pier was run across it, as well as across the sand-bar. In the construction of the piers, the Government of the United States did not purchase or condemn the land, but Kinzie seems to have acquiesced in the act; and, indeed, as already stated, it was not till 1836 that Kinzie's title was confirmed.'

An exception was taken to the concluding part of the charge, which is as follows:

'Under this state of facts, the substantial truths of which are not denied, the land of Kinzie, covered by his entry and purchase, would be the tract within the following boundaries, as they existed at the time of the entry, (there being no question made, but that the Government plats, by which sales were made, show that the whole land north of the river and south of the north line of the fraction was sold as one parcel,) and are the north line and west line of fractional section 10, according to the public survey, and the Chicago river and Lake Michigan, as they existed; that is, it would include all the dry, firm land there was at that time between the west line of the section and the lake, and the north line of the section and the river. The river, the lake, and the two lines of the fractional section 10 constituted the boundaries. Whether the land in controversy was within these boundaries is a fact to be found by the jury, depending upon the evidence before them.'

The facts as recited were not disputed; nor is any exception taken to the statement made, preceding the court's conclusion on the law and facts of the case.

The land trespassed on and sued for, as described in the plaintiff's declaration, lies south of the south pier, is now covered with water, and a part of the bottom of the lake; on which land the end of the railroad is located. It was formerly overlaid with the sand-bar, which was swept away by the current the piers created. It is situated outside of fractional section ten, as its boundary was described by the judge to the jury. And this raises the question, by what rule is the public survey to which the patent refers for identity to be construed? The land granted is 102 29-100 acres, lying north of the Chicago river, bounded by it on the south, and by the lake on the east. The mouth of the river being found, establishes the southeast corner of the tract. The plat of the survey, and a call for the mouth of the river in the field-notes, show that the survey made in 1821 recognised the entrance of the river into the lake through the sand-bar in an almost direct line easterly, disregarding the channel west of the sand-bar, where the river most usually flowed before the piers were erected. It is immaterial where the most usual mouth of the river was in 1821; nor whether this northern mouth was occasional, or the flow of the water only temporary at particular times, and this flow produced to some extent by artificial means, by a cut through the bar, leaving the water to wash out an enlarged channel in seasons of freshets. The public had the option to declare the true mouth of the river, for the purposes of a survey and sale of the public land. And the court below properly left it to the jury to find whether land on which the railroad lies is within the boundary of the tract surveyed and granted. According to the judge's construction of the plat and calls, and the patent bounded on the survey, the jury was bound to find for the defendant, and therefore this ruling was conclusive of the controversy.

In regard to the matter so much and so ably discussed in the argument here, as to the rights of proprietors on the lake shore, where their fronts were swept away by currents, and to what extent they still owned the lands covered with water, undoubtedly theirs before the decrease took place, we do not feel ourselves called on to decide, because this plaintiff was not the owner of the land sued for before the decrease occurred, and could have no proprietary rights in the bottom of the lake. Before a proprietor can set up his claim to accretions and the like, he must first show that he owns the shore; and if he fail first to establish his ownership, judicial inquiry respecting his rights in or under the waters adjoining are abstractions and useless.

Judgment of the Circuit Court affirmed.


text: Talk:Bates v. Illinois Central Railroad Company/Opinion of the Court


text:
Johnston v. Jones

Writ of error to the Circuit Court of the United States for the northern district of Illinois.

William S. Johnston brought ejectment in the Circuit Court against John A. Jones and another for a part of the land formed by accretion on the shore of Lake Michigan, north of the north pier of the harbor of Chicago. The cause was tried in the Circuit Court, and a verdict and judgment were given for the plaintiff, when the defendant brought it up to this court by writ of error, where it was reversed, and a venire facias de novo awarded. The facts as they appeared upon the record at that time are fully stated in the opinion of Mr. Justice Nelson, 18 How., 150. On the second trial the same evidence was given, with no new additions, except the two documents pertaining to the plaintiff's title which are mentioned in the opinion of Mr. Justice Swayne. That opinion also contains a statement of the facts upon which the several rulings of the Circuit Court upon the admissibility of evidence were based, and quotes at sufficient length the instructions which were given to the jury. The verdict and judgment were in favor of the defendant, and the plaintiff took this writ of error.

Mr. Wills, of Illinois, for plaintiff in error, argued that the errors of the Circuit Court apparent on this record entitled the plaintiff to a reversal of the judgment on such radical grounds as would insure to him the ultimate recovery of the property in dispute.

The defendant has always insisted that lot 34 never had a lake shore front. This has been his favorite line of defence. It is the fundamental question in the case, and if the fact be as the defendant alleges, then the plaintiff had no right from the beginning to the land he claims. This, however, is a question of fact not to be argued here, except as it arises incidentally in the discussion of the points of law ruled by the court.

If it be established that the lot (34) had originally a lake front, was it not conveyed with the accretions to the plaintiff by the deed of October, 1835? Was it intended to reserve any part of the land which had become attached to its eastern border? The whole of the accretions passed by the description, 'Water lot 34, and the tenements and hereditaments thereunto belonging.' Such was the manifest intent of the parties.

But if the deed of October, 1835, does not bear on its face the evidence of the parties' intentions to pass the accretions, then the deed of July, 1857, was admissible as evidence of the original intention to do so, and it was error not to receive it for that purpose.

If the accretion did not pass by the deed of 1835, and the deed of 1857 is not admissible for the purpose mentioned, then in falling back upon the deed of 1835 just as it is, it becomes important to know when the title of the plaintiff under that deed commenced. It began not at the date of the deed, (October 22, 1835,) but at the date of the title-bond of June 10, 1835. This raises a new question of fact-raises it fairly-and the instruction which compelled the jury to exclude it from their consideration was erroneous. The jury should have been charged to inquire whether the lot had a lake front at the date of the title-bond; and if it had, to find a verdict for the plaintiff. The title which the plaintiff took under the deed related back to the date of the title-bond.

Even if all these points were against the plaintiff, he is entitled to recover against this defendant by virtue of his claim of title and his prior possession under his deed. The defendant is a mere intruder upon the previous possession of the plaintiff.

The court did not allow the proper value to be given to the maps and surveys. A map referred to in a deed is part of the deed, and as much to be considered as if expressly recited.

The court should not have refused to let the plaintiff's counsel ask the witness Jones (a brother of the defendant) whether the defendant had paid him anything for lot 35 when it was conveyed. The power of cross-examination is the great test for the discovery of truth. The plaintiff was deprived of a clear right.

The testimony of Greenwood was rebutting, and it was erroneously regarded by the court as evidence in chief. But aside from this the court erred in excluding it when there was no allegation of trick, surprise, or injury which the plaintiff could suffer by receiving it out of the regular order.

The rule given to the jury for dividing the accretions among the several owners of the lots having lake fronts was entirely wrong.

Mr. Fuller, of Illinois, and Mr. Carlisle, of Washington city, for defendants in error. This cause has been tried by a jury under instructions from the judge who presided in the court below, couched in the very words of the opinion delivered in this case by Mr. Justice Nelson, and upon the issue which this court there determined was the only proper issue for the consideration of the jury. On that trial a verdict was rendered for the defendants below.

The plaintiff brings the case here, and directly questions the former decision of this court in this very case. He likewise assigns seven specific errors in the rulings of the court on the trial below, in the course of the trial.

Except a deed made by John H. Kinzie to the plaintiff in 1857, the titles of the respective parties are precisely the same as they were on all the former trials; and the facts out of which the controversy arose having occurred twenty-five years ago, are, of course, unchanged.

In the opinion of the court, in 18 Howard, 150, is a full statement of the material facts in the case; and it will appear by examination of that opinion that the following propositions were stated and decided by this court as the law of the case:

FIRST. That both plaintiff's and defendant's lots were conveyed with express reference to the recorded plat of Kinzie's addition to the town of Chicago, which description was conclusive upon the parties until that reference was reformed. 18 Howard, 153.

SECOND. That the true issue to be tried by the jury was, whether or not, at the time of the deed to the plaintiff, lot 34 (plaintiff's) had a water line upon the lake north of the north pier of the Chicago harbor. 18 Howard, 157.

THIRD. That in dividing the accretion, the pier front of the accretion should be take into account. 18 Howard, 157-8.

With these points decided by this court as the law of this case, the parties again went to trial, and the court below gave the instructions to the jury which are found in the record.

The issue of fact, indicated by this court as the only important question to be tried by the jury, was distinctly presented to the jury, who found the defendants not guilty; or, in other words, that the plaintiff's water lot 34, Kinzie's addition to Chicago, had not a water line on the east side north of the north pier of the Chicago harbor at the date of his deed, October, 1835.

This finding of the jury is conclusive upon the parties as to the question of fact, and leaves the plaintiff without any right or interest to question the rule of division of the accretion laid down by the court.

It is immaterial to him what that rule is; for he has nothing to be divided, and he should not trouble this court or these defendants to review the former decision upon this point, for a merely abstract and speculative purpose.

He is not harmed or helped by any decision of any question that does not, when decided, apply to his interests in this case; and for this, as well as other obvious reasons, we shall not discuss the former decision of this court upon this part of the case, holding it to be settled law.

The facts being unchanged, the law of the case, once declared, remains the law.

With the exception of the deed made since the commencement of this suit, every link in the chain of title, every deed of either party to the record, and every fact, remain the same.

Yet the plaintiff's counsel insists, in a voluminous printed argument of about one hundred pages, that this court should review and change its opinion upon these identical facts and deeds, already fully considered and solemnly pronounced.

This will not be allowed. In the language of Mr. Justice Grier: 'It has been settled by the decisions of this court, that after a case has been brought here, and decided, and a mandate issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate.' Roberts vs. Cooper, (20 Howard, 481,) where several similar decisions of this court upon this point are referred to, all to the same effect.

So much for the general question; now examine the points peculiar to the last trial below.

1. It is an inflexible rule that the plaintiff in ejectment must recover, if at all, upon his legal title, as it stood at the commencement of the suit, or, at least, at the date of the demise laid in the declaration. Goodlitle vs. Herbert, (4 Term., 680;) Wood vs. Martin, (11 Illinois, 547;) Pitkin vs. Yaw, (13 Illinois, 251;) Binney's Lessee vs. The Canal Co., (8 Peters, 218.)

If, therefore, the deed from Kinzie of 1857 was necessary to give the plaintiff the legal title to the premises sued for, it could not help him in this suit, because it was made since the action was brought. It was, however, offered as a volunteer reformation of the deed from John H. Kinzie to Robert A. Kinzie, made in 1835-not as conveying a title of itself, but as an enlargement of the estate and premises conveyed by that deed-to get rid of the decision of this court that the parties were bound by the references in their respective deeds to the recorded plat, until that reference was reformed, if it needed and was susceptible of reformation.

Instead of going into chancery to reform the deeds, where the mistake would be alleged and proven if it could be, and all parties in interest brought before the court, the plaintiff went to a person who, twenty-two or three years before, had made a deed to defendant, Jones, of lot 35 and all 'his interest east thereof,' and under which deed Jones had ever since occupied and claimed to own the premises in dispute, and who had, at a subsequent date, conveyed to Robert A. Kinzie lot 34, according to the 'recorded plat of Kinzie's addition,' and from whom (Robert A. Kinzie) plaintiff had acquired his title, by the same description, and gets from him an instrument reciting that he intended to convey to said Robert A. Kinzie 'all the accretions formed on the water line of lot 34,' and that 'disputes had arisen about the title to those accretions;' therefore, 'to settle the same,' he conveys them all for twenty-five dollars to the plaintiff, who then seeks to recover them by virtue of this deed made without notice to the defendants, or any one in interest with them, by means of an action of ejectment begun eight years before the deed was made.

2. Another exception arises upon the ruling of the court below, that it was incompetent for the witness Greeley to compute the rate and amount of growth of the accretion in 1834 and 1835, by his own calculations, based on Lieutenant Allen's maps and diagrams.

There was no error in this, because it was not alleged that there was any ambiguity in those maps themselves; and being admitted in evidence, it was for the jury to say what light they threw upon the issue on trial, and not for the witness. And besides, the maps themselves, not being positive, original evidence, could not properly be made the foundation of such evidence from the witness, which, at most, could only be matter of opinion based on hearsay testimony, or, res inter alios acta. The witness had no personal knowledge of either Lieutenant Allen, his maps, or of the accretion; and his opinion upon these matters was not competent testimony to go to the jury, who alone should draw any proper influences from the maps and reports which were in evidence.

3. The court refused to allow Capital J. D. Webster to testify what were his duties as superintendent of the harbor in 1841 and 1842, with a view of proving what were Lieutenant Allen's duties as such officer in 1834-5, and thus adding to the weight, as evidence of Lieutenant Allen's reports and maps. In this the court below was right. It was not the proper way of proving what were the official duties of an officer of the Government, nor would it tend to prove what were Lieutenant Allen's duties eight years before, while superintending the building of the piers, or in any degree to prove whether plaintiff's lot had or had not a water line north of the north pier at the date of his deed.

4. The court below did not err in refusing to allow plaintiff's counsel to cross-examine Benjamin Jones in the manner proposed. Jones had testified in chief for the defendants; and plaintiff's counsel on cross-examination put the questions objected to, not to show that he was an incompetent witness, but to affect his credibility with the jury. This was wholly within the discretion of the judge who tried the cause. It is always within his discretion to control the cross-examination of witnesses, designed to affect their credibility. Ample opportunity was afforded plaintiff's counsel in this case; but whether or not a certain question should be put, and if answered, what its effect might be, was solely for the judge who tried the case to decide; and having exercised his undoubted authority to direct and control the cross-examination, his decision is not subject to revision here. Teese et al. vs. Huntington et al., (23 Howard, 2.)

5. The court refused to allow the plaintiff to examine S. S. Greenwood upon anything not rebutting to the proof made by defendants. Plaintiff had closed his case, except the right specially reserved to examine G. S. Hubbard, as appears on page 194, printed record. But when it became his turn to offer rebutting evidence to defendant's proof, he proposed to accumulate testimony upon the main issue, by asking the witness Greenwood where the water line was, east of or upon lot 34. The court refused this, because it was not rebutting testimony; it related to the very point the plaintiff was bound to prove in the first instance, and having proved it as far as he desired, except as to the introduction of Hubbard, he rested, and, according to all rules, the door was closed against cumulative proof from him on the points at issue, unless the court saw fit to open it. 'The mode of conducting trials, the order of introducing evidence, and the time when it shall be introduced, are properly matters belonging to the practice of the Circuit Courts, with which this court ought not to interfere.' The P. & T. R. R. Co. vs. Simpson, (per Story, J., 14 Peters, 448.) If the plaintiff wanted Greenwood's testimony on this point, he should have called him at first, or reserved the right to have done so later in the trial. Not having done this, he has no right to complain that the court applied to him the ordinary rules of practice in all common law courts.

6. The only remaining exception which we propose to consider, is the objection to the charges of the court relating to the weight which the various maps and plats were entitled to, as instruments of evidence. Except Lieutenant Allen's maps or diagrams, every map and plat offered and admitted in evidence was made by a living witness, present on the stand at the trial of the case; and every fact in controversy was within the memory and knowledge of a cloud of living witnesses. Manifestly the maps would only properly admitted in evidence to explain, illustrate, and apply the testimony of the witnesses. Where was the water line, with reference to the east line of plaintiff's lot, at date of his deed? was the issue on trial. A witness could not make a map that would determine that issue more effectually than his statement on oath; and a map made anywhere, or at any time, was only valuable as proved to have been made by one competent to do so, and present to verify his work. It had no inherent, intrinsic weight as evidence. This disposes of all the maps allowed to go to the jury for any purpose except certain diagrams made by Lieutenant Allen in the years following 1834 down to 1839; and of these it seems sufficient to say, that it does not appear that his reports of soundings were within the sphere of his official duty, for what his official duty was nowhere appears in the case; and so they were not evidence according to the decision of this court, in Ellicott et al. vs. Pearl, (10 Peters, 412;) and, even if done officially, his acts could not bind or affect the rights of the parties to this suit.

But the issue was, where was the water line with reference to the east line of plaintiff's lot 34 at the date of his deed, and not how deep the water of Lake Michigan was somewhere else; and neither the soundings nor reports of soundings at other places tended to determine the issue on trial. Besides, the maps were before the jury, to be judged of by them, if connection with the other evidence in the case. 1 Phillips on Evidence, Cowen & Hill's Notes, 236, 282, and 283; 1 Greenleaf on Evidence, sec. 139; 7 Carrington & Payne, 483; Morris et al. vs. The Lessee of Hamus Neils, (7 Peters, 554.) In the last case the court said that an ancient plat of the city of Cincinnati, though the only one in existence, and the only recognised plat of the city, was not conclusive upon the questions of boundary of lots in that city. This part of the case may be dismissed with the remark that when the exact and single issue of fact before the jury is kept in view, it becomes apparent that maps and plats of other places, and points relating to other dates and periods of time, could not, in the very nature of them, throw any light on that issue, and could only serve to apply the testimony of the witnesses to the premises in question. Not a single one of the maps or plats offered in evidence was referred to, as in any way connected with the titles of the parties, except the recorded plat of Kinzie's addition, and by that this court decided the parties are bound until it is changed. 18 Howard, 153.

Mr. Justice SWAYNE.

title: Johnston v. Jones


text: Talk:Johnston v. Jones

title: Talk:Johnston v. Jones