text:
West v. Cochran

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Missouri.

It was an action of ejectment, brought by West, a citizen of the State of Illinois, against Cochran, a citizen of Missouri, for all that tract or parcel of land situated in the city and county of St. Louis, in said district, and which tract or parcel of land is described as follows: Lot number one hundred and three, (103,) in block number three hundred and twenty-one, as the said lot is laid down and numbered on the map of the said city, and is bounded on the east by Second-street, beginning at the southwest corner of Chambers and Second-street; thence along the west side of Second-street, eighty feet, more or less, from Chambers-street; thence westwardly on a line parallel with Chambersstreet, one hundred and fifty feet to an alley; thence northwardly eighty feet to Chambers-street; thence eastwardly along the south side of Chambers-street one hundred and fifty feet, to the place of beginning.

West claimed under the reservation made by Brazeau in his deed to Labeaume, and under the confirmation of Brazeau's title by the board of commissioners on the 22d of September, 1810.

Cochran claimed under a similar confirmation of the same date to La Beaume. The patent for Brazeau's claim did not include the land in dispute, whilst the patent for Labeaume's claim did include it; and the question was, whether West, claiming under Brazeau's title, could show that the patent had been erroneously located, and could claim under the confirmation.

The circuit court decided against West, and he brought the case up to this court by a writ of error. The case is particularly stated in the opinion of the court.

It was argued by Mr. Blair and Mr. Ewing, for the plaintiff in error, and by Mr. Hill and Mr. Cushing, (attorney-general,) for the defendant in error.

The following notice of the point upon which the decision of the court turned, is taken from the brief of Mr. Ewing, one of the counsel for the plaintiff in error:--

The court, on the trial of this cause below, instructed the jury that these surveys and patents were conclusive as to both the parties; that neither of them was at liberty to reject and set up a claim against them, or otherwise than under them. To this the plaintiff excepted.

We claim that the court erred in this instruction, and on this arises the first and most important question in the case.

Brazeau claims under a confirmation by the United States commissioners, pursuant to the act of March 3, 1807. Now, if that confirmation passes the legal title, or if it creates an equity or inchoate legal title to the land confirmed, the instruction of the court was wrong, and the judgment must be reversed; and we contend -

1. That the confirmation passes the absolute legal title; and though a patent may issue, it is merely evidence of a title already complete under the law. 2 Stats. at Large, 441, § 4.

The operative words of the statute are: 'Which decision of the commissioners, when in favor of the claimant, shall be final against the United States, any act of congress to the contrary notwithstanding.' Here the claimant had an imperfect title. The United States confirms it by her commissioners, and declares that this award of confirmation shall be final against her.

It seems to have been the intent, that the confirmation by the commissioners in this case should stand in the place of a confirmation by congress, under the act of 1805, ch. 26, (2 Stats. at Large, 324.)

The act of 1805 provides, (section 5,) that such 'decisions shall be laid before congress in the manner hereinafter directed, and be subject to their determination thereon.'

The act of 1807 does not submit the case to the action of congress, but declares that the decision of the commissioners, when in favor of the claimant, 'shall be final against the United States.'

The confirmation is complete, in the one case, with the action of congress on each particular claim; in the other, by the action of the commissioners without the action of congress. In both cases a patent is to issue; but in one of these cases the legal title passes without the patent. Doe v. Eslava, 9 How. 446, 447; Stoddard v. Chambers, 2 Ib. 307.

Why does it not pass in the other? The confirmation is complete, the act of the commissioners final. Why does not the legal title pass?

There can be no reason of policy or convenience against it, which does not apply equally to confirmations by congress; there is no technical difficulty, for the United States can as well pass titles by the act of commissioners as by the act of the President; by an entry in the books of commissioners, returned to and recorded in the general land-office, as by a patent so recorded.

The reasons of policy are, indeed, against a distinction between the two classes of cases, that the legal title should pass at once to the individual in the one case, and remain in the United States in the other.

It is exceedingly inconvenient in practice to treat titles derived from the sovereign as equities. There is no ordinary process by which a perfect title can be compelled, and the claimant is made a suitor to a ministerial or executive officer, and in cases of contest such officer may greatly influence, if he cannot control, the judicial determination of the rights of parties litigant.

It is entirely within the competence of congress to pass title by other modes than by patent, and by other officers than those of the general land-office. In this case, confusion is guarded against by the required report of the commissioners. On that, the general land-office must issue a patent, if required, precisely as they must in cases confirmed by direct act of congress, and for the same purpose. No more discretion is left it in the one case than in the other.

There is a dictum in Burgess v. Gray, 16 How. 63, opposed to our view on this point, which we respectfully ask the court to reconsider. The point to which the dictum applies, does not necessarily arise in the case. But if we are wrong as to the effect of the confirmation, and if the actual legal title have not passed to us, we may, under the statutes of Missouri, adopted in practice by the circuit court, maintain our action of ejectment under the confirmation.

We sue at law, instead of using in equity, and have the same relief in the one forum as in the other; and this suit was brought when neither party had a patent; and even if Labeaume had obtained a patent, we suppose a patent issued to him of our lands, to which he had no color of right, would be void as against us.

Now, whether our title be perfect or inchoate, such as it is, it is 'final' against the United States. It is conclusive and absolute,-subject to no conditions or contingencies. The land confirmed to Brazeau belongs to him; the United States could not take it from him, nor transfer it, in title, to another. The only question is as to locality. That may be agreed upon between the officers of the government and the claimant, and the agreement attested by the issuing and acceptance of a patent. But in case of controversy, the question, as to existing title, is not for the executive department, but for the courts. This was practically denied by the instructions. The court charged the jury that the surveys and patents made by order of the secretary were conclusive, as well in the case in which the patent was refused as that in which it was accepted.

Mr. B. A. Hill made the following points upon the propositions considered by the court:--

1. The act of the 3d of March 1807, under which Brazeau's representative claims title, through a confirmation by the first board of commissioners, did not proprio vigore, vest the title in Brazeau; it was subject to the action of congress, and to the condition of survey. Section 5 of the act of March 2, 1805, § 3, of the act of February 28, 1806, and §§ 6 and 8 of the said act of 1807, require reports of the board of commissioners, to the secretary of the treasury, and he was required to report the same to congress. These reports were to contain a description of each tract confirmed. § 6 of 1807. Congress never confirmed the reports made by the said board; for the reason that no description of the land confirmed was contained in the reports. See State Papers, Public Lands, vol. 2, p. 560. The reports were therefore to be perfected into grants of the fee, in accordance with other provisions of the act of 1807; there being no words of present grant in the said act.

2. By section 6 of said act of 1807, the title would pass by a survey mad e by the United States and a patent; and section 7 authorized a patent to issue upon a recorded Spanish survey. These are the only means by which a title could pass under said act of 1807. The fee remained in the United States until the performance of the said conditions; and congress so construed the said acts of 1805, 1806, and 1807, by expressly excepting the confirmation by the first board of commissioners from the operation of the act of 13th of June, 1812, which passed an absolute title by words of present grant, to certain claims possessed in Spanish times.

3. Brazeau's confirmation never having been confirmed by congress, and his tract never having been surveyed by the Spanish government, was subject to the condition of survey by the United States; which was the necessary foundation for a patent; and until that survey was made and the patent issued, the title did not pass. This is the form of the grant. It was a grant to be located by the United States, and no land was granted to him until the location. The survey by the United States was, therefore, a necessary part of the grant. It was so under the Spanish law. The orders of O'Reilly and Morales, in force when Brazeau's Spanish grant was made, required a Spanish survey by the proper officer, as the condition upon which the grant was to be made. The analogy between the Spanish law and the act of 1807 is complete. The one provides for an approved survey to be annexed to and to form a part of the grant; the other for a patent certificate to be issued upon an approved survey, as the foundation for a patent.

4. The United States acted in the capacity of a sovereign in the granting of lands claimed before the board under the said act of 1807. The claimants had no standing in court. They were required to procure a grant from the United States to perfect the title. The only right or title that plaintiff can claim, must be derived under the act of 1807. If it operate as a grant, it can only so operate in pursuance of the conditions annexed to it.

5. The said act is peremptory. It provides that a survey shall be made by the United States, if a Spanish one is not already made and recorded; that a plat thereof, shall be made; that a patent certificate shall issue thereon, and a patent. The title was to pass in accordance with these forms. This construction is in accordance with the manifest intent of the statute. The United States had purchased a vast territory, portions of which, along the rivers and in the mineral regions, were covered by private claims and settlement rights, not perfected into grants under the Spanish government. The treaty with France, by which it was acquired, imposed the obligation upon us to protect the inhabitants of the territory in the enjoyment of their property. To do this it was necessary to ascertain the extent of that property. Where Spanish surveys were not made, official surveys by the United States were the means necessary to accomplish that object. The United States was in debt, and this newly-acquired domain was held in trust for the people, and the lands were to be used for sale and settlement. The public lands could not be subdivided and sold until the private claims were settled and located. The lawful power was vested in the United States to accomplish these objects, and the act of 1807 was designed to do so. The spirit and intent of the law is to separate the private claims from the public domain; but this has not been accomplished unless the United States reserved the power to survey the unsurveyed confirmations made by the old board, and fix their locality. It is for these reasons that this court has held that a confirmation by said board did not vest the legal title. Burgess v. Gray, 16 How. 63; 7 Pet. 85, 93; 2 How. 374; 16 Ib. 500, 1; 4 Pet. 342; 10 How. 373. If the legal title vested by the inherent force of the act, as it did under the act of 13th June, 1812, it could not be devested by a survey; but there was no title vested by the act of 1807 until a patent issued upon an approved survey. The United States survey for Brazeau is therefore conclusive, and the plaintiff cannot claim title to any land not embraced within it, and the land in controversy not being included within the survey of his confirmation, he cannot recover.

Mr. Justice CATRON delivered the opinion of the court.

title: West v. Cochran


text: Talk:West v. Cochran

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title: Talk:West v. Cochran


text:
West v. Cochran/Opinion of the Court

To understand the application of the instruction given to the jury which controlled the verdict in this case, a minute statement of the facts is necessary.

On the 1st June, 1794, Joseph Brazeau, by petition, requested the Lt. Governor of Upper Louisiana to grant to him a tract of land near to the then village of St. Louis, 'situated beyond the foot of the mound called the Grange de Terre, four arpens in width, which are to extend from the steep bank or beach of the Mississippi in the W. 1/4 S. W. by about twenty arpens of depth, that shall begin at the foot of the hill where stands the Grange de Terre, ascending in a N. N. W. course to the vicinity of the Stony Creek, so that the said tract hereby asked for be bounded on the east by the bank of the Mississippi, on the other side in part by the king's domain, and in part by land reunited to the said domain.'

The grant was made by the governor in the following terms: 'We do certify to have put Joseph Brazeau in possession of the parcel of land designated in his petition, of four arpens by twenty deep, which shall extend in a N. N. W. course from the foot of the hill where stands the Grange de Terre, ascending to the vicinity of the Stony Creek, bounded on one side by the bank of the Mississippi, and on the opposite side by lands not conceded or reunited to his Majesty's domain, and at the two ends bounded on the N. N. W. by the vicinity of the Rocky Creek, and at the other, in the S. S. E., shall be bounded by the land granted to the free mulattress Esther.' This concession was made June 10, 1794.

On the 25th of the same month, the governor amended his former concession, in which he declares that the four arpens front by twenty deep, 'shall begin beyond the mound called La Grange de Terre, extending N. N. W. to the vicinity of the Rocky Branch, bounded on one side by the banks of the Mississippi River, and on the opposite side by lands reunited to the king's domain, through which lands passes this present concession, of which one end is to be bounded by the concession of the free mulattress Esther.'

The application of Esther above referred to, was made October 2, 1793. She petitioned for a piece of land lying on the borders of the Mississippi; the northern portion of the concession to be situate between the small mound called the Grange de Terre and the beach of the Mississippi, having at its two extremities four arpens front, that shall bear about from E. N. E. to W. S. W., by twenty arpens in extent or depth, that shall run from about N. N. W. to S. S. E.

On the 3d October, 1793, the governor granted the land to Esther, in the terms of her petition, with this addition: That the land should descend the river, and be limited on three sides by the king's domain, and on the other side by the bank of the Mississippi, as shown by the plat on the back of the concession. This plat was a rude sketch, affording no material aid in locating the land.

On the 5th of October, 1793, the governor certifies that he had in person put Esther in possession of the land granted, the locality of which he again describes, in the terms as above set forth, except that he declares that the eastern boundary on the river shall be limited by the edge of the beach.

Esther's concession was not surveyed by the Spanish authorities.

On the 9th of May, 1798, Joseph Brazeau sold to Louis Labeaume part of the land granted to Brazeau in June, 1794, reserving for himself four arpens to be taken at the foot of the mound on the south part of the concession; Brazeau selling only sixteen arpens in depth to Labeaume, who accepted the sale with this reservation. In 1799, Labeaume applied to the governor to enlarge his tract acquired from Brazeau. 'He asks that you will be pleased to grant him 360 arpens of land, including the land which he the petitioner bought of M. Brazeau; that is, twenty arpens in depth from the Mississippi in ascending the Rocky Branch, West 1/4 S. by sixteen arpens in front along the Mississippi, to be taken from the descending road into the creek; which is the same front of the petitioner's land, the angle (triangle) formed by the perpendicular from the road to the river by the creek, and by the river shall complete, or about, the tract asked for.'

In February, 1799, the governor granted the land to Labeaume, with the boundaries asked for, and ordered that Soulard, the surveyor, should put Labeaume into possession, and execute a survey to serve the interested party, to obtain a complete the from the governor-general, which was wished for by the petitioner.

On the 20th March, 1799, Soulard proceeded to survey the land granted to Labeaume, from which the larger quantity of 374 arpens was found to be within the boundaries described in Labeaume's petition. The survey was regularly certified, April 10, 1799, and accompanied by a figurative plat.

The line marks of this survey have been retraced in the survey recently made by the United States, and the patent to Labeaume or his legal representatives, of the 25th of March, 1852, is founded on it. But it is insisted that the survey includes the sixteen arpens reserved by Brazeau in his deed of May, 1798, to Labeaume; and on the existence of this fact the title of the plaintiff in the present controversy depends, as the land demanded lies within the bounds of the patent. Labeaume filed his title papers with the recorder of land titles, to be registered in February, 1806; and in his notice of claim, the tract partly in dispute is thus described: 'Louis Labeaume, 374 arpens of land, conceded in part to Joseph Brazeau, the 20th June, 1794, and the other part to Louis Labeaume, the 15th February, 1779, settled and cultivated since both these dates.'

On the 3d of September, 1806, the board of commissioners appointed to adjudicate claims to lands under the act of 1805, passed on Labeaume's claim. The clerk of the board gives a description of it in these terms: 'Louis Labeaume claiming 374 arpens of land situate on the Mississippi, a distance of about two miles from the town of St. Louis, produces a concession (duly registered) from Zenon Trudeau, for four by twenty arpens, dated the 20th June, 1798, (25th June, 1794,) granted to one Joseph Brazeau, and another concession from said Zenon Trudeau to claimant, for the said 374 arpens, including the said four by twenty arpens, dated the 15th February, 1799; a survey of the same taken the 2d March, and certified the 10th April, 1799, together with a certificate by Zenon Trudeau of the sale of the said four by twenty arpens by said Joseph Brazeau, reserving to himself four arpens in superficies; said certificate dated the 12th May, 1798.'

This entry is so confused as to be unmeaning without reference to the title papers of record. The board at that time rejected the claim because the concession had not been duly registered.

On the 22d September, 1810, the board confirmed the claim in the following terms: 'Louis Labeaume claims three hundred and seventy-four arpens of land. See book No. 1, page 517. The board confirm to Louis Labeaume three hundred and fifty-six arpens, and four arpens to Joseph Brazeau, and order that the same be surveyed agreeably to a concession from Zenon Trudeau to Louis Labeaume, and, as respects the four arpens, agreeably to a reserve made in a sale from Joseph Brazeau to said Louis Labeaume, recorded in book C., page 339, in the recorder's office.'

On the 14th of June, 1811, the board ordered both tracts to be surveyed at the expense of the United States, and to this end gave the following certificates to the parties respectively:--

'Commissioners' Certificate, No. 982, June 14, 1811.

'We, the undersigned commissioners for adjusting the titles to lands in the territory of Louisiana, have decided that Louis Labeaume, original claimant, is entitled to a patent under the provisions of the fourth section of an act of congress of the United States, entitled 'An act respecting claims to lands in the territories of Orleans and Louisiana,' passed the third day of March, one thousand eight hundred and seven, for three hundred and fifty-six arpens of land, situate in the district of St. Louis, on the Mississippi, and order that the same be surveyed agreeably to a concession from Zenon Trudeau to Louis Labeaume, recorded in book C., page three hundred and thirty-nine of the recorder's office, by virtue of a concession or order of survey from Zenon Trudeau, lieutenant-governor.' Signed by the commissioners.

'Commissioners' Certificate, No. 983, June 14, 1811.

'We, the undersigned commissioners for ascertaining and adjusting the titles and claims to lands in the territory of Louisiana, have decided that Joseph Brazeau, original claimant, is entitled to a patent under the provisions of the 4th section of an act of the congress of the United States, entitled. An act respecting claims to land in the territories of Orleans and Louisiana,' passed the third day of March, one thousand eight hundred and seven, for four arpens of land situate in the district of St. Louis, on the Mississippi, and order that the same be surveyed agreeably to a reserve made in a sale from Joseph Brazeau to Louis Labeaume, recorded in book C., page three hundred and thirty-nine of the recorder's office.'

'By virtue of a concession, or order of survey, from Zenon Trudeau, lieutenant-governor.' Signed by the commissioners.

Owing partly to a contest between the parties in this cause, before the department of public lands, the surveys were not executed and finally settled so that patents could be issued thereon, till the 26th of February, 1852; and the patents for both tracts were issued on the 26th of March following: that to Labeaume, or his legal representatives, embracing the land in Soulard's survey; and the survey and patent made for Joseph Brazeau, or his legal representatives, are located on the southern boundary of Labeaume's tract. This suit had been brought in the circuit court before the surveys were approved, or a patent issued to either party.

The representatives of Brazeau have refused to receive the patent issued to them, and protest against the binding force of the survey; insisting that the confirmation by the commissioners conferred a perfect title for different land from that covered by the patent. On this state of acts, the circuit court instructed the jury as follows:--

'We have been engaged in this cause for the last fifteen days, endeavoring to ascertain the fact whether the tract of land confirmed to Louis Labeaume, according to Soulard's survey of 1799, embraces the sixteen arpens confirmed to Joseph Brazeau. Brazeau got a concession for twenty arpens in front on the Mississippi by four arpens back, and sold the northern sixteen arpens front to Labeaume, reserving four by four, or sixteen arpens, at the southern end of the tract granted by the concession. In 1799, Labeaume got his tract enlarged by an additional concession, including the sixteen arpens front purchased from Brazeau. This latter concession was surveyed by Soulard, the proper Spanish surveyor, in 1799, and the survey was recorded.

'In 1810, the board of commissioners confirmed the grant to Labeaume, according to Soulard's survey. This being the effect of the confirmation; at the same time that the board confirmed Labeaume's claim, including the sixteen arpens front, the claim of Brazeau was also confirmed, and a survey in each case was ordered by the board.

'Recently, the surveys of these tracts were made according to the precise instructions as to their boundaries, coming from the general land-office at Washington, and pursuant to the order of the secretary of the interior; and on these surveys patents have issued, one to the legal representatives of Labeaume, and the other to the legal representatives of Brazeau; which tracts adjoin each other, on the southern boundary of Labeaume's tract, as described in the patent; and one question is, whether the plaintiff to this suit can claim land elsewhere than that described in his patent; in other words, whether he can abandon the land surveyed for him, and granted by patent, and go further north and recover land there which never had been surveyed in conformity to the concession. We are of opinion that the United States reserved the power to locate, by survey, the land confirmed to Brazeau, and by such survey to separate it from the public lands, and from the lands claimed by others, and to issue a patent therefor, as was done in this instance; that this reserved power was vested in the executive department, whose acts in this instance bound Brazeau, and those claiming under him; nor can they extend their claim and recover land beyond the boundaries described in the patent to Brazeau or his legal representatives. The jury are further informed, that all instructions heretofore given inconsistent with the foregoing the withdrawn from their consideration; this instruction having been given at the request of the jury, because they could not agree according to the instructions heretofore given them by the court.'

To the giving of which instruction to the jury, the plaintiff, by his counsel, at the time duly excepted. A verdict was of course returned for the defendant.

To comprehend the scope of the foregoing instruction to the jury, we must consider the condition of claims to land derived from France and Spain, before the United States acquired Louisiana; with but few exceptions they were possessed and cultivated in the upper province, at the date of the treaty, by virtue of concessions from lieutenant-governors and commandants of posts, in which no definite boundaries were prescribed by the concessions themselves, but the surveyor-general of the province was instructed to measure the land, and mark out the boundaries, and to put the interested party into possession. As a general rule, a survey was required before possession was given. Often, however, and probably in most instances, no survey had in fact been made when the United States acquired the country, in 1803; and of this unsurveyed class was the concession to Joseph Brazeau. As these unlocated claims were usually surrounded in part by public lands, and in other part by the vague and unlocated claims of others, it became necessary that definite boundaries should be established by legal surveys, so that the limits of the public domain might be known, and private adjoining owners be exempt from disturbance and litigation.

It has often been held by this court that the judicial tribunals, in the ordinary administration of justice, had no jurisdiction or power to deal with these incipient claims, either as to fixing boundaries by survey, or for any other purpose; but that claimants were compelled to rely upon congress, on which power was conferred by the constitution to dispose of, and make all needful rules and regulations respecting the territory and property of the United States. Among these needful regulations was that of providing that these unlocated claims should be surveyed by lawful authority; a consideration that has occupied a prominent place in, the legislation of congress from an early day.

The act of March 3, 1807, § 4, was the first that gave a board of commissioners power to adjudicate claims against the United States, and conclude the government as to the question of right in the claimant. The judgments of the board on all claims for less than a league square were to a large degree judicial, but as their powers and duties depended on the acts of 1805, 1806, and more especially on that of 1807, when they confirmed Brazeau's claim, we must ascertain from these laws whether more was to be done to conclude the United States as to any definite and distinct tract of land.

By the 6th section of the act of 1807, the commissioners were bound to transmit to the secretary of the treasury, and to the surveyor-general of the district where the land lay, transcripts of their final decisions, made in favor of each claimant, and were required to deliver to him a certificate stating the circumstances of the case, and that he was entitled to a patent for the tract therein designated; which certificate was to be filed with the recorder, if the land lay in the district of Louisiana, and with the register of the land-office, when the land lay in the Orleans territory.

In all cases where tracts of land were granted by the board, which had not been previously surveyed, the 7th section of the act of 1807, declared that they should be surveyed under the directions of the surveyor-general; and that he should transmit general and particular plats of the tracts thus surveyed, to the proper register or recorder, and also transmit copies to the secretary of the treasury. The certificate and plat being filed with the register or recorder, he was thereupon required to issue a patent certificate in favor of the claimant, which, being transmitted to the secretary of the treasury, entitled the party to a patent in like manner as patents were issued on lands sold by the United States.

By the act of April 29, 1816, a surveyor-general was appointed for the territories of Illinois and Missouri, with general powers to survey the public lands into sections; and also to survey all lands confirmed by acts of congress, and to perform the duties imposed on his predecessor, the principal deputy for Missouri territory, whose duty it was to survey the claims confirmed by commissioners, in all cases where they had not been previously surveyed according to law.

The commissioners having given Brazeau a certificate that he was entitled to a patent according to his confirmation, pursuant thereto, several surveys were made by deputy surveyors, under instructions from the surveyor-general, but they were rejected as improper and unlawful, either by him, or at the general land-office. Finally, in March, 1852, as above stated, the claim was surveyed according to the instructions of the secretary of the interior, and a patent issued conforming to this survey.

The circuit court charged the jury, in substance, that in this case of confirmation by the board sitting at St. Louis, in 1810, the claim being unlocated and vague, power was reserved to the United States to locate the tract by survey.

It was competent for congress to take up these titles or rights, and act on them either by legislating directly that each claimant should be confirmed, and have a perfect title to his actual possession lawfully acquired under France or Spain, without ascertaining, in the act of confirmation, or by any special means provided therein, the bounds of claims confirmed. But it was also competent for congress to provide, that before a title should be given to any possessor, the exact limits of his possession, and the title which the United States was to give, shoud be defined, and that this should be done by such agencies, and in such manner as might be fixed by congress. This is in entire accordance with the provisions of the treaty, which guarantees to the inhabitants the rights of property secured to them; but it was not intended to provide for the particular modes and instrumentalities by which such rights should be ascertained and enforced-these being left to the nation to whose powers they were confided; so that the question is, what has congress deemed expedient? Now the policy which is so obvious, and which has been acted on by the United States ever since they began to exercise power over the public lands, namely, to give defined limits to grants, may well be supposed to have actuated congress in 1807. The provisions of that act clearly show, that although congress intended that the commissioners should adjudge the existence of good titles to lands held under French and Spanish possessors, yet they did not intend that a final legal title, as against the United States, should be made to vague grants, until their bounds had been ascertained by the means there designated, and the particular tract defined by survey.

Congress might have said, as was done in case of the St. Louis town lots and out-lots, by the act of 1812, that each man should own what he had lawfully possessed under the former government; and if congress had done so, then the question would have been, in this instance, a matter of fact, to be tried by a jury, as to what the plaintiff did formerly possess, and consequently own. But congress having said, by the act of 1807, that he shall be confirmed in what shall be designated by a survey made under the authority of the United States, according to the direction of the board of commissioners, and such direction to survey being a condition which the judgment of confirmation carried along with it, until the survey was made, the plaintiff's title attached to no land, nor could a court of justice ascertain its boundaries, as this power was reserved to the executive department of the federal government; it follows that the legal representative of Brazeau, who brings suit, had no title at the time it was brought that would support an action of ejectment.

It is ordered that the judgment of the circuit court be affirmed.

Mr. Justice McLEAN.

In this case I do not dissent, as it is the understanding of the judges that the equity of the case remains open for investigation.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Missouri, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court that the judgment of the said circuit could in this cause be and the same is hereby affirmed, with costs.

title: West v. Cochran/Opinion of the Court


text: Talk:West v. Cochran/Opinion of the Court


text:
Adams v. Law (58 U.S. 417)

THIS was an appeal from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The opinion of the court states the marriage articles between Thomas Law and Elizabeth Park Custis, and the further history of the matter, up to the death of Thomas Law, in 1834.

In 1832, Thomas Law executed a will, in which he bequeathed $5,000 each to Thomas Law and Edmund Law, the sons of the late John Law, Esq., of Washington. These parties were represented by Henry May, their administrator, and one of the appellants. James Adams was the executor of the will.

He also bequeathed to a lad named Joseph Edmund Law, the son of Mary Robinson, the sum of $1,000. This was the complainant below, and appellee in this court.

In 1838, the above-named Joseph E. Law filed his bill in the circuit court, by his next friend, Mary Robinson, against Adams, the executor, praying that he might be ordered to invest the sum of $1,000, and pay the interest thereof to the complainant; and by an amended bill, prayed that Edmund and Thomas Law, Edmund Rogers, Eliza Rogers, and Eleanor Rogers, and the other heirs of Eliza P. Custis, together with sundry other persons, might be made parties.

In order to understand the position of the respective parties, it is proper to mention that the only child of the marriage between Thomas Law and Eliza P. Custis, was a daughter named Eliza, who intermarried with Lloyd N. Rogers. Eliza Rogers died in the lifetime of her mother. At the time of these proceedings, Edmund Rogers and Eleanor Rogers were the only surviving children of Lloyd N. Rogers and Eliza, his wife.

On the 29th of December, 1832, during the lifetime of Thomas Law, Lloyd N. Rogers obtained from the orphans' court of Washington county, D. C., letters of administration upon the personal estate of Mrs. Elizabeth P. C. Law; and, as administrator, claimed the arrearages of the annuity of $1,500, payable to Mrs. Law, with interest thereon, from the periods respectively, when the said annuity became payable and was in arrears.

This claim arose in this way. On the 9th of August, 1804, Thomas and Eliza Law, being desirous of separating, owing to domestic differences, Law executed to George Calvert and Thomas Peters a deed of certain real estate, to secure, by way of mortgage, to his said wife, Eliza P. Law, an annuity during her life of $1,500, for her own separate use and benefit, the said real estate, at her death, to be reconveyed to Thomas Law and his heirs, clear of all incumbrances imposed by Calvert and Peters.

It should have been mentioned that, by a codicil to his will, Thomas Law bequeathed to his grandchildren, Edmund, Eliza, and Eleanor Rogers, five thousand dollars, with a provision, that it should be null and of no effect, if they should set up a claim under the marriage settlement.

All the parties being before the circuit court, an interlocutory decree was passed referring the case to the auditor, and James Adams was appointed trustee to sell the property, &c., &c.

The auditor made six reports, running from October, 1848, to September, 1852, on which day the last was filed. Exceptions were filed by Henry May, administrator of Thomas and Edmund Law, and also by Adams, the executor of the will. It is not material to state any other exceptions than those upon which the case came up to this court. These related to the two following claims:--

1. The claim of Lloyd N. Rogers, as administrator of Eliza P. Custis, the wife of the testator, amounting, in fact, to $29,249.33.

2. A claim of Edmund and Eleanor Rogers, grandchildren of Thomas Law and his wife Eliza P., $66,154.84.

If these claims should be admitted, the estate would be exhausted, and there would be nothing for the legatees.

In December, 1852, the circuit court passed a final decree, overruling the exceptions, and establishing, amongst other things, the two following orders:--1. That the defendants, Edmund Law and Eleanor A. Rogers, as grandchildren of Mr. Law and children of Mrs. Rogers, take under the words of the deeds of 1796, 1800, and 1802.

6. That the administrator of Mrs. Law is entitled to the arrears of the annuity of $1,500, from the 9th of August, 1804, to the death of Mrs. Law, with interest.

From this decree, May and Adams appealed to this court.

It was argued by Mr. Brent and Mr. May, for the appellants, and by Mr. Carlisle and Mr. Coxe, for the appellees.

The reader will find references to the authorities in the opinion of the court.

Mr. Justice GRIER delivered the opinion of the court.

title: Adams v. Law (58 U.S. 417)


text: Talk:Adams v. Law (58 U.S. 417)

title: Talk:Adams v. Law (58 U.S. 417)


text:
Adams v. Law (58 U.S. 417)/Opinion of the Court

James Adams, the appellant, whose account, as executor of Thomas Law, deceased, was the subject-matter of the decree below, excepts to it for the allowance of the two following items:--

1. The claim of Lloyd N. Rogers, as administrator of Eliza P. Custis, the wife of the testator, amounting to the sum of $29,249.33.

2. A claim of Edmund and Eleanor Rogers, grandchildren of Thomas Law and Eliza, amounting to $66,154.84.

1. As the court is equally divided as to the legality of the first item, the decree must stand affirmed as to that amount, without further remark.

2. The claim of the grandchildren will require more extended notice.

This claim is founded on certain marriage articles, executed between Thomas Law, of the first part, Elizabeth Park Custis, of the second part, and James Barry, of the third part, on the 19th day of March, 1796. They recite that a marriage is intended between said Thomas and Elizabeth, and that 'it is the wish and design of the parties that a jointure should be made to the said Elizabeth, in lieu and bar of all claim on the estate' of said Thomas, &c., &c. In consideration of the marriage portion-money, &c., the said Law conveys to James Barry certain real estate 'to the said James Barry, his heirs, and assigns, forever, upon the trusts and to and for the uses, intents, and purposes following, that is to say: for the use of the said Thomas Law, his heirs, and assigns, until the solemnization of the said intended marriage, and afterwards to permit and suffer him, the said Thomas Law, to receive all the issues and profits of the said lands and premises, during the term of his natural life, for his own use; and immediately after the decease of the said Thomas Law, in case the said Elizabeth Park Custis shall survive him, her intended husband, that she, the said Elizabeth Park Custis, shall have, accept, and receive the issues and profits of the said lands and premises, for and during the term of her natural life, to and for her own use and benefit; but in case the said Elizabeth shall depart this life in the lifetime of the said Thomas Law, leaving issue of the said marriage one or more children then living, then, from and immediately after the decease of the said Thomas Law, upon trust for the child or children of the said intended marriage, to be equally divided between them, if more than one; to have and to hold the same lands and premises, as tenants in common in fee-simple, share and share alike; and if only one child, then to such child, his or her heirs and assigns forever; but in case there shall be no issue of said marriage, then, upon the death of the said Thomas Law and Elizabeth Park Custis, and the survivor or survivors of them, to revert back to the said Thomas Law, his heirs, or assigns, or subject to be disposed of by him by last will and testament, or other deed, as he may judge proper.'

The marriage between the parties was solemnized in the same year. Afterwards, (in 1800,) Mr. and Mrs. Law joined in another deed, substituting Thomas Peters as trustee instead of Barry, and other property in place of that conveyed to Barry, but subject to the conditions and limitations of the marriage articles. And again, in 1802, another change was made in the property, subject to the same limitations. The daughter and only child of this marriage intermarried with Lloyd N. Rogers, and died before her mother, leaving children, the claimants, Edmund and Eleanor Rogers. Mrs. Law died in 1832, and the testator in 1834.

The only question for our decision is, whether the grandchildren, Edmund and Eleanor Rogers, took any thing by the deed of settlement?

It is clear, from the face of this deed, that it is an executed marriage settlement, and that it must be expounded on legal principles applicable to other deeds. Limitations, either of legal or equitable estates, receive the same construction in a court of equity as in courts of law. 'In executed trusts, whether by deed or will, the rule of law must prevail, and the apparent intention must give way to those fundamental rules, which for ages have served as landmarks in the disposition of property.' 2 Spence's Equity, 131.

The trustee in this deed had no duty to perform; and as the estate is not limited to his own use, the trusts are but uses, and are executed as such by the statute. The object and purpose declared by the parties are, to secure a jointure to the intended wife in lieu and bar of dower, and to release the marital rights of the husband over the separate estate of the wife, in possession and expectancy. The settled property belonged entirely to the husband. The estate limited to the wife is contingent on her surviving her husband, in whom an estate for life is absolutely vested. If the life-estate of the wife should vest by the contingency of her survivorship, there is no provision for the children or issue of the marriage, and the fee reverts to the right heirs of the husband. The estate limited to the children of Mrs. Law is a contingent remainder, depending on the event that Mrs. Law shall 'depart this life in the lifetime of said Thomas Law, leaving issue of said marriage, one or more children then living,' &c.

Does this description include grandchildren? We think it does not.

The word 'issue' is a general term, which, if not qualified or explained, may be construed to include grandchildren as well as children. But the legal construction of the word 'children' accords with its popular signification, namely, as designating the immediate offspring. See Jarman on Wills, 51. It is true, in the construction of wills, where greater latitude is allowed, in order to effect the obvious intention of the testator, grandchildren have been allowed to take, under a devise 'to my surviving children.' But even in a will, this word will not be construed to mean grandchildren, unless a strong case of intention or necessary implication requires it. Hence it is decided, that a power of appointment to children will not authorize an appointment to grandchildren. Robinson v. Hardcastle, 2 Bro. Ch. 344; 4 Kent's Com. 345. In Reeves v. Brymer, it is said, by Lord Alvanley, that 'children may mean grandchildren when there can be no other construction, but not otherwise.' 4 Ves. 697.

The declared object of this deed is jointure, not a settlement for the issue of the intended marriage; for there is no provision made for them, in case the wife should survive the husband. The contingency, also, on which this remainder depends, is not the leaving issue generally of the marriage; but the 'issue' to whom the estate is limited are described and defined to be 'one or more children living,' to be equally divided between them if more than one, and, 'if only one child, to such child, his heirs,' &c. There is no provision for the issue of deceased children, or for grandchildren, under any circumstances. The parties have carefully defined what they mean by 'issue,' and the court, in construction of their solemn deed, have no right to distort its plain meaning, to meet contingencies not provided for. It is an ancient and well-settled rule of construction, that, 'where a deed speaks by general words and afterwards descends to special words, if the special words agree to the general words, the deed shall be intended according to the special words; for, if the general words should stand without any qualification, the special words would be altogether void, and of no effect.' 8 Rep. 307.

Hence, in the construction both of wills and deeds, where the instrument has not, so carefully as in the present case, limited the word 'issue' to children living, &c., but where the term is used without qualification, and is in another part of the same instrument supplied by the word child, or children, as a synonym, the courts have uniformly restrained its signification to children. Thus, in Carter v. Bentall, 2 Beav. 557, where the devise was a moiety to 'issue' of his daughter, and, if only one child, then to such one child, and the trustee was ordered to lay out the dividends in the maintenance of such 'issue,' Lord Langdale, M. R., held that the word issue was thus explained by the testator to mean 'children.'

In the case of Loveday v. Hopkins, Ambler, 273, it was held that grandchildren were not entitled under a bequest to 'heirs,' because the term appeared, by the context of the will, to be used in the sense of children.

In Swift v. Swift, 8 Sim. 168, by marriage articles the jointure property was limited, after the death of the survivor, on the 'issue' of the marriage living at the death, in equal share if more than one, and if but one, to go to such 'child.' The only child of the marriage died before the contingency, leaving a child. It was held that 'issue' was to be construed 'child,' and the legacy did not vest in the grandchild.

It would lead to too great prolixity to examine particularly the very numerous cases in which similar language has received the same construction. A reference to a few more directly in point will suffice. Fitzgerald v. Field, 1 Russell, 430; Needham v. Smith, 4 Ib. 318; Ridgeway v. Munkittrick, 1 Drury and Warren, 84; Peel v. Catlow, 9 Sim. 373; Jennings v. Newman, 10 Ib. 223; Tawney v. Ward, 1 Beav. 563; Winn v. Fenwick, 11 Ib. 438; Campbell v. Sandys, 1 Schoales and Lefory, 281.

Being of opinion, therefore, that the grandchildren took nothing under the limitations of the deed of marriage settlement, the decree of the court below is reversed, as to the allowance of $66,154.84, made to Edmund and Eleanor Rogers, and affirmed as to the residue; and the record remitted, with directions to make distribution accordingly.

This cause came on to be heard on the transcript of the record from the circuit court of the United States, for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is the opinion of this court that the grandchildren took nothing under the limitations of the deed of marriage settlement; whereupon it is now here ordered, adjudged, and decreed by this court, that so much of the decree of the said circuit court as allows $66,154 81/100 to Edmund and Eleanor Rogers be and the same is hereby reversed and annulled, and that the residue of the said decree be and the same is hereby affirmed, and that this cause be and the same is hereby remanded to the said circuit court, with directions to make distribution accordingly, and to proceed therein in conformity to the opinion of this court.

And it is further ordered and decreed by this court that the costs in this court be paid out of the fund by the trustee.

Messrs. Brent and May having, on a prior day of the present term, to wit: on Friday the 16th instant, filed a motion in the words and figures following, to wit:--

'The above appellants come here and move the honorable supreme court so to amend their decree and the mandate to be remanded thereon, as to declare that the grandchildren of the testator, Thomas Law, by reason of their election and renunciation as shown in the interlocutory decree of the circuit court, (see page 66 of the record,) are not entitled as legatees of said testator to participate in the distribution of the fund in controversy. And in making this motion, the appellants suggest that this question arises on the record in this court, and that it is the practice of this court to settle all questions apparent on the record, to prevent future appeals, and especially where, as in this case, the effect of the election and renunciation only becomes material in carrying out the decree of this court, disallowing the claim which the appellees elected to abide by; all of which is respectfully submitted.

ROBERT J. BRENT,

H. MAY, for appellants.'

And the court having duly considered the same, Mr. Justice M'LEAN announced the following decision thereupon, to wit:

'The court hold that the pleadings in the case do not embrace the point stated in the above motion. The heirs referred to, the children of Mrs. Rogers, having relinquished all claim under the will, and claimed under the deed of settlement, the court held they were not entitled to any part of the estate under the deed of settlement, on a construction of that instrument. Under these circumstances, whether they can claim as distributees of the general estate, is a question not considered by the court. The motion is therefore overruled.'


text: Talk:Adams v. Law (58 U.S. 417)/Opinion of the Court


text:
Herndon v. Ridgway

THIS was an appeal from the district court of the United States, for the northern district of Mississippi.

It was a bill filed by Herndon, under the circumstances stated in the opinion of the court, and which was dismissed by the court below.

The process against Davis was served upon Messrs. Dowd and Murphy, his attorneys. A motion was made to dismiss the bill for three reasons, the second of which was:--

'Because Henry Davis is not a citizen of the northern district of Mississippi, and Dowd and Murphy are not his attorneys of redord in any of the courts of the United States, and have not instituted proceedings or suit therein against said Herndon, but are attorneys of record of said Davis, in the circuit court of Monroe county, Mississippi, a state court, as per affidavit on file.' The affidavit was as follows:--

'In open court personally appeared Wm. F. Dowd, one of the firm of Dowd and Murphy, who made oath that Dowd and Murphy are not the attorneys of record of Henry Davis, and have not been, as such, to institute any suit in this court, or any one of the federal courts of the United States, against Edward Herndon, for the recovery of the property mentioned in the bill filed in this cause; but they, said Dowd and Murphy, are the attorneys of record of Henry Davis to prosecute a suit against said Herndon, is a State court, to wit: the circuit court of Monroe county, in the State of Mississippi.

'W. F. DOWD.'

The district court dismissed the bill, and Herndon appealed to this court.

The case was argued by Mr. Adams, for the appellant, who contended that service upon the attorneys was sufficient; and by Mr. Phillips, for the appellees, who contended that it was not, and referred to 3 Bro. C. C. 521; 2 Cox. 389.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Herndon v. Ridgway


text: Talk:Herndon v. Ridgway

title: Talk:Herndon v. Ridgway


text:
Herndon v. Ridgway/Opinion of the Court

The plaintiff complains that, in 1849, he purchased from James C. Ridgway a number of slaves, for whom he gave his bond to the vendor; that this was transferred to E. T. Ridgway for the use of Wm. H. Gasque, and that a suit is pending in the district court of the United States for that district, to collect the sum due; that the slaves are in the possession of Wm. P. Givan, to whom he sold them with a warranty of the title. That one Davis claims the slaves under a title paramount to that deriver from Ridgway, and had brought a suit for them in the stat court, which had proved ineffective, and now threatens to renew it. The object of the bill is to require the two Ridgways and Gasque, on the one part, and Davis, on the other, to interplead in the district court of the United States, to settle their right to the slaves, so that he may pay the purchase-money to the proper person. He alleges that the vendor, Ridgway, is insolvent.

The four defendants are citizens of Alabama. Notice of the motion for injunction was served on the attorneys for the plaintiff, in the suit in the district court, and upon the attorneys who prosecuted the suit against Givan for Davis in the state court. The attorneys for Davis disclaim any connection with him in this controversy, and move to dismiss the bill for want of jurisdiction. Gasque appears and demurs to the bill for the same cause, and no notice or appearance exists in the record for the vendor, Ridgway. The district court retained the bill twelve months, and then dismissed it on these motions.

The jurisdiction of the district court over parties is acquired only by a service of process, or their voluntary appearance. It has no authority to issue process to another State. In the present case, the absent defendants decline to appear, and process cannot be served, so that the court is without any jurisdiction over the essential parties to the bill. There was no course open to it, except to dismiss it for the want of jurisdiction, upon the motions submitted for that object. Toland v. Sprague, 12 Pet. 300.

There is no error in the record, and the decree is affirmed.

This cause came on to be heard on the transcript of the record from the district court of the United States for the northern district of Mississippi, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court that the decree of the said district court in this cause be and the same is hereby affirmed, with costs.

title: Herndon v. Ridgway/Opinion of the Court


text: Talk:Herndon v. Ridgway/Opinion of the Court


text: City of Boston v. Lecraw

title: City of Boston v. Lecraw


text: Talk:City of Boston v. Lecraw

title: Talk:City of Boston v. Lecraw


text:
City of Boston v. Lecraw/Opinion of the Court

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Rhode Island.

It was a suit originally commenced in the circuit court of the United States for the district of Massachusetts, and removed into the circuit court of Rhode Island, upon the ground that Mr. Justice Curtis was so connected with the plaintiff as to render it, in his opinion, improper for him to sit in the trial of the suit; and that Judge Sprague was an inhabitant of Boston, and concerned in interest in this cause, so as to render it, in his opinion, improper for him to sit in the trial thereof. It was therefore ordered, (both judges concurring,) that an authenticated copy of the record and all proceedings in the suit, should be certified to the circuit court of Rhode Island.

Lecraw, a citizen of New Hampshire, as surviving partner of the firm of Lecraw and Perkins, brought an action on the case against the city of Boston, for erecting a public nuisance, which was specially injurious to the plaintiff.

Lecraw was in possession of a wharf estate, situated in the southerly side of Boston. His wharf extended to the sea, and was entirely unobstructed at the end seaward. Along the southerly side of the wharf there was a dock about thirty feet wide, extending from the end of Summer-street to the sea. In July, 1849, the board of health ordered a drain, or sewer, to be constructed, from one end of the dock to the other, so as to carry the drainage out to deep water. It was constructed as follows: The obstruction complained of, as appeared by the evidence, was a drain composed of plank and timber, 460 feet long, eight feet wide, and eleven feet high to top of piles, and resting upon the surface of the mud in the dock, which extended from the head of the dock to within _____ feet of the foot of the same, and at the end of said drain was seventeen feet from the plaintiff's wharf, on the north, and thirty-two feet from the other wharf, on the south.

For this obstruction to the approach of vessels to his wharf, Lecraw brought his action, and upon the trial of the cause the jury found a verdict in his favor, assessing the damages at $9,280.

The bill of exceptions taken by the defendant included all the evidence and the numerous prayers offered to the court, which are sufficiently noticed in the opinion of this court.

The case was argued by Mr. Ames and Mr. Chandler, for the plaintiff in error, and by Mr. Tilton and Mr. Durant, for the defendant.

The briefs on both sides were very voluminous, and it is not possible to do more than state the positions assumed by the counsel respectively.

The counsel for the plaintiff in error endeavored to establish these positions as matters of law, or matters of fact deduced from the evidence. Each one of them was sustained by numerous references.

1. The whole territory of Boston was originally granted to and held by the town, which made grants thereof from time to time to such persons and on such conditions as it deemed expedient.

2. The city of Boston as successor of the town, now owns the fee in this dock, and the title to the estates on each side of it is derived from the town.

The wharf in possession of the plaintiff as lessee, is known as the Bull wharf.

The wharf on the other side of the dock is known as the Price wharf.

The title of both wharves is derived from the town of Boston.

3. It thus appears, that the dock between these wharves has been recognized by all parties, including the plaintiff's lessor, as the property of, and under the control of, the city of Boston.

4. This place has been used for the purposes of drainage beyond the memory of man, the common sewer in Summerstreet entering at the head of it, and emptying its contents therein.

5. The town has always exercised control over this dock.

Upon these positions the counsel for the plaintiff in error made the following points:--

1. It was error in the court below, to rule that the plaintiff was entitled to recover of the city of Boston, damage for the act of the board of health of said eity. The action was not properly brought, and cannot be maintained against the defendant corporation.

2. The structure, which the plaintiff alleges to be a public nuisance in a public dock, was erected by the board of health in the performance of a duty imposed upon them by law. The act was performed in good faith, for the preservation and protection of the public health, without negligence, and was lawful in itself. Such proceeding, if prejudicial to the interest or use which any individual may have before enjoyed in said dock, affords no ground of action, but is damnum absque injuria, and the judgment and decree of the board of health, not being impeached, are conclusive of the necessity of the structure.

3. If the locus was a public dock, slip, or way, which all the public had a right to use as a public dock, this fact did not vest in the owners of the adjoining wharves or flats any right whatsoever to use it for any other purpose than as a passage-way in boats or vessels to and from other portions of Summer-street, in common with other citizens of the commonwealth; and the plaintiff having no peculiar right, easement, or privilege therein, has no claim for damages in a civil suit, for any obstruction thereof.

4. Inasmuch as the plaintiff below set up a dedication of the locus as a public dock, the nature of the dedication, if any, and the character of the dock thence derived, were questions of fact for the jury, and they should have been cautioned, that, considering 'the rights of the owners of flats in the same as long as the owner leaves such flats open and uninclosed, under the law of Massachusetts, there must be some plain and explicit declaration by the owner of flats that he doth dedicate the same to public use, as a public dock, quay, or waterway, in order that the jury should find that the same were thus dedicated, and that the use of the same for passage or laying of vessels is no evidence of claim of such flats, as a public dock, quay, or way, by the public, and is no evidence of their acceptance of such dedication.'

5. The selectmen of Boston, acting under the express authority of law, as early as 1710, authorized the construction of a common sewer in Summer-street. In 1728, they authorized Vassall, and the deacons of the old church, to lay a drain through this street, 'down to the sea.' In 1804, the sewer was relaid 'through Summer-street to the sea,' and the expense was apportioned upon the inhabitants benefited, by the selectmen, according to law.

At various periods between 1710 and the present time, the existence of this drain has been recognized, and its repair ordered, and, in 1840, it was relaid by the city authorities.

The counsel for the defendant in error made the following points, each one of which, together with its numerous subdivisions, was sustained by a great number of authorities, which there is not room to transcribe:--

I. The first point made by the plaintiffs in error, namely, that the city are not liable, as a corporation, for the acts complained of, is not open to them upon this record. No such point was raised or exception taken before the circuit court; on the contrary, it was admitted that the city were responsible if the acts were illegal.

II. As the case was submitted to the jury, three facts were to be found by them, and are now to be taken as established.

1. The dock was a public dock.

2. The structure complained of was a public nuisance.

3. The defendant in error suffered peculiar and special damages, not common to, and much greater than the public in general suffered.

The case of the defendant in error rests upon this foundation. The dock was a public dock, which he had the right to use; the city destroyed that right by a public nuisance.

The city now set up the justification that their own common sewer, which was exclusively under their own control, created a nuisance in this dock, and that, by way of abating the nuisance, they built a drain through the dock, which destroyed it.

For this act they say there is no redress.

To this justification the following objections are made:--

1. It was not in the power of the State to authorize any city to do the acts complained of, without making compensation.

2. The powers given to the city, (Rev. Stat. ch. 21, § 9,) are 'to destroy, remove, or prevent nuisances.' Under this delegated authority to exercise the sovereign right of the State to regulate by health and police measures the use of property, the city seek to exercise another sovereign right of the State, namely, the power to authorize erections within navigable waters.

3. No such power as is claimed was ever intended to be given to the board of health, or to be exercised in the manner in which it was exercised.

The power given is to 'remove, abate, and prevent nuisances.' Under this power, the general right is claimed to destroy property and erect and maintain permanent structures, without making compensation, and in this particular case, the right to erect and maintain a public nuisance in the harbor of Boston.

4. The extraordinary powers claimed for the board of health would be contrary to the provisions of the constitution of Massachusetts.

5. But if the act of laying the drain were not unlawful, or the subject of an indictment, still the city must make compensation, because the damages were not consequential merely, but were directly occasioned by the destruction of a legal right.

III. The court properly ruled that the action could be sustained if he dock was a public dock, and the use of it was destroyed by a public nuisance, which cut off all access to the sea, and occasioned to the defendant in error peculiar and special damages, not common to and much greater than the public in general suffered.

IV. The court did rule that the use of the flats for passage or dockage was not sufficient evidence of dedication.

The fact of dedication may be proved in various ways; no particular declaration of the owner is requisite, and no particular form is necessary. Godfrey v. City of Alton, 12 Illinois, 29, 35; Kennedy's Executors v. Jones, 11 Ala. 63, 82; Le Clercq v. Gallipolis, 6 Hammond, 354; Best on Presumptions, § 101.

V. The plaintiffs in error apparently claim the right to create the public nuisance in question, upon two other distinct grounds of private right or title.

1. That they had the right to place a drain there, because the dock had been dedicated to the city as a place for drainage.

2. That the dock had been laid out as a street, and the city, therefore, had right to put a drain there, although they had never made the street.

Upon the question of a right to place a drain in the dock.

1. The rights of drainage claimed by the city cannot be maintained, because, if any right of drainage into the dock existed before 1834, it was a right of individuals, not of the town or city. Before 1834, the town or city had no rights in, or control over, the sewers and drains. They were wholly built and owned by individuals. For the history of the legislation upon this subject, see Boston v. Shaw, 1 Met 130.

2. If the city had any right to use the dock for an ancient drain, they had no right to enlarge and change the character and structure of the drain. Cotton v. Pocasset Manufacturing Co. 13 Met. 429.

3. If the dock had been dedicated as a place for the discharge of a drain, that would not justify taking the dock as a place for the drain inself, nor creating a public nuisance in it.

Upon the rights claimed to place a drain in the dock, on the ground that it was a street.

1. The defence now set up by the city, that the place in dispute was a street, and that the city, therefore, had a right to construct a drain, cannot be custained, because the jury have found it to be a public dock.

2. Nor could the city, in the court below, defend themselves upon this ground.

3. By the laws of Massachusetts, a highway or street cannot be laid out over the flats between high-water mark and low-water mark. Commonwealth v. Coombs, 2 Mass. 489; Hood v. Dighton Bridge, 3 Ib. 263; Arundel v. McCulloch, 10 lb. 70; Kean v. Stetson, 5 Pick. 492; Commonwealth v. Charlestown, 1 Ib. 180; Charlestown v. Middlesex, 3 Met. 202; Henshaw v. Hunting, 9 Cush. 203.

This was conceded by the counsel for the plaintiffs in error to be the law of Massachusetts, and they even sought to extend it to the case of a dock. Ruling 1, p. 78.

4. As the structure was a public nuisance, such a use of the flats can in no view of the case be justified. By Parker, C. J., Commonwealth v. Charlestown, 1 Pick. 180, 184; Brower v. The Mayor, &c. of New York, 3 Barb. 254, 258.

5. As the structure cut off all access to the sea, it cannot be justified under a right to make a street or any other right. Frink v. Lawrence, 20 Conn. 117; Shaw et al. v. Crawford, 10 Johns. 236; Cox v. The State, 3 Blackford, 193.

6. If a street had been made to the water, that very act gave the public the right to use the water and the dock beyond the street. Godfrey v. City of Alton, 12 Illinois, 29, 36, 37; Rowan's Executors v. Portland, 8 B. Monroe, 232, 242; Kennedy's Heirs v. Covington, 8 Dana, 50, 61; City of Louisville v. Bank of the United States, 3 B. Monroe, 138, 144, 157.

7. If the city had the right to build a street, it would be because the public convenience and necessity required a public street for travel.

The orders of the mayor and aldermen to make a drain through the dock, cannot be justified on the ground that the city had the right to make a different structure, namely, a street.

Mr. Justice GRIER delivered the opinion of the court.

The defendant in error, a citizen of New Hampshire, instituted this suit against the city of Boston, charging it with the erection of a public nuisance which was specially injurious to the plaintiff. The declaration contains seven counts. As the jury, under the instructions given by the court, gave a verdict for the plaintiff below on the last two only, it will be unnecessary to notice the others, or the points of law applicable to them.

These counts set forth, in substance, that in the year 1849 the plaintiff and a partner, since deceased, carried on the business of buying and selling wood and coal in Boston, and were in possession of a wharf known as the Bull wharf; that the dock forming the southerly boundary of said wharf, and extending from Summer-street wharf, was a part of the harbor of Boston, and a public dock, slip, or way, navigable by vessels, and over which the waters of the sea ebbed and flowed, and by reason thereof the plaintiff ought to have been allowed to pass and repass as over a navigable highway with boats vessels, over and through said dock from the wharf by him possessed to the channel of the sea; that defendant had erected piles and a drain in the dock, to the destruction of the navigation therein, and the special injury of the plaintiff.

A congeries of points or prayers of instruction, exceeding thirty in number, and covering nearly as many folios, were submitted to the court, some of which were given as prayed for, some with 'qualifications,' and many refused.

If a judge, in answering such a mass of hypothetical and verbose propositions, should occasionally contradict himself, or fall into an error; or if the jury, instead of being instructed in law, should be confused and misled, it may be considered the legitimate result of such a practice. We do not think it necessary therefore, to examine particularly each one of this labyrinth of propositions; but, after a brief history of the title of the parties, and the admitted facts of the case bearing on its merits, we will state the law as applicable to them, and thus be enabled to test the correctness of the charge of the court in the instructions given or refused.

The original charters to the Plymouth company of that part of the territory which afterwards constituted the colony of Massachusetts, conferred on them not only the property in the land, but all the 'franchises, loyalties, liberties, & c., and the requisite civil and political powers for the government of the colony.'

By the common law of England, the right of littoral proprietors, bounding on public navigable waters, extended to high-water mark only. But by an ancient ordinance, usually denominated the ordinance of 1641, § 3, it is declared, 'that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low-water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further: Provided, that such proprietors shall not by this liberty have power to stop or hinder the passage of boats or other vessels in or through any sea, creeks, or coves, to other men's houses or lands.'

This is the foundation of what may be called the common law of Massachusetts on this subject. By it the grantee of land bounding on navigable waters where the tide ebbs and flows, acquires a legal right and a vested interest in the soil of the shore between high and low-water mark, and not a mere indulgence or gratuitous license, given without consideration, and revocable at the pleasure of the grantor. See Austin v. Carter, 1 Mass. Rep. 231, and Commonwealth v. Alger, 7 Cush. 71.

As a consequence of such ownership, it is ruled that the proprietor of the land bounding on tide-waters has such a propriety in the flats to low-water mark, that he may maintain trespass, quare clausum fregit, against one who shall enter and cut down piles placed there by the owner, with a view to build a wharf or otherwise inclose the flats. But the right of the littoral proprietor under the ordinance has always been subject to this rule: that until he shall build upon his flats or inclose them, and whilst they are covered with the sea, all other persons have the right to use them for the ordinary purposes of navigation; so long as the owner of the flats permits the sea to flow over them, the individual right of property in the soil beneath does not restrain or abridge the public right. 7 Cush. 75. This property is also subject to certain restrictions in its use, so that the State, in the exercise of its sovereign power of public for the protection of public harbors, and to prevent encroachments therein, may establish lines, and restrain and limit this power of the owner over his own property.

The whole territory now occupied by the city of Boston was originally granted to and held by the town, which made grants thereof from time to time, to such persons, and on such conditions as it deemed expedient; and the city of Boston, as successor to the town, continues to own such portions of the original territory as have not been sold or otherwise disposed of. But, while it acknowledged the rights of its vendees of lands adjoining the shore to wharf out opposite their respective lots, by virtue of the police power exercised by it over the harbor, it superintended and defined the limits within which the owner should exercise his rights.

In 1683, 'the selectmen of Boston staked out a highway for the town's use, on the southerly side of the land belonging to John Gill, deceased, (under whom the plaintiff claims,) being thirty feet in width, from the town corner of said Gill's wharf, next the sea.' This is the street since called Summer-street. They laid also another street, 'near the shore, on the proprietor's land, fifty feet towards the sea-shore.' But they ordered, at the same time, 'that the flats and lands between the said highway and the sea be granted to the proprietors of the land, which are abutters on the way, in equal portion to their fronts.'

Summer-street, as laid out, ended at high-water mark, and has not yet been extended, nor have the city made any erections on their land between high and low water, previous to 1850; but the public right of navigation over it has been exercised up to the foot of Summer-street. The drains and sewers from that street, and others connected with it, have hitherto been made to discharge their contents at that point. In course of time, however, as the city increased, this drainage increased also, to such an extent as to become pestilential, and a very great nuisance to the neighborhood. In consequence thereof, the city of Boston has been twice (in 1848 and 1849) indicted for the nuisance, and sentenced to pay a fine. Since that time, the mayor and aldermen, acting as the board of health, have directed the drains or sewers to be continued out, on the land of the city opposite Summer-street, to low-water mark. This is the first attempt by the city to reclaim this land from the sea, and use it for their own benefit, and constitutes the erection which is now the subject of complaint. The sewers are not made to discharge their contents on the plaintiff's land, but into the sea. No property of the plaintiff has been taken for the public use; nor does he in these counts, on which the verdict was obtained, claim any private right of way over the land of defendants, but states his damage to have accrued by a public nuisance, specially injurious to his public right of navigable way over the lands of the defendant.

That the plaintiff had, in common with the rest of the world, a right to navigate over the land belonging to the city, on which the erections complained of were made, is not disputed. Nor is the title of the city to the land so used, unless they have granted it away, or otherwise disposed of it, a subject of dispute in the case. Those under whom the plaintiff claims, as owners of the property adjoining Summer-street, have exercised their right of dominion over the land to low-water mark by covering it with a wharf, many years ago, which is called Bull's wharf. And those who adjoin the street on the other side, have in the same manner exercised their right by erecting a wharf called Price's wharf. The property of the city being but thirty feet wide, and lying between these two wharves, was thus, by the accidents of its form and position, converted into a dock or receptacle for vessels, without any act of the owners of the land. A dock is defined by philologists, according to the American use of the term, to be 'the space between wharves.' No dock or slip has been made by the city or people of Boston their land, either for their own use, or that of any other extraneous or indefinite public. So long as they did not elect to exercise their dominion over this part of the shore, the public right of navigation continued. It was a right defeasible at the will of the owner of the subjacent land. It was a natural right, not derived from any grant, real or presumed, originating with the owner of the soil. But the adjoiners, by the use of this right of navigation in connection with their wharves, claim a right to enjoy the benefit of defendant's property as a dock for their wharves, and thus convert it to their private use, under color of a public right.

In order to effect this, it is contended that the people of Boston, by not exercising their right of reclamation, and by using their property according to their own pleasure, have dedicated it to the public, or world in general, as distinguished from the public, or people of Boston, and have abandoned the full dominion which they once might have exercised over it.

The people of Boston, who owned this land as their common and private property, acted through a corporation, whose corporate grants and licenses are matters of record. Their own use of their own property for their own benefit cannot be called a dedication of it to any other public of wider extent. Whether it was called 'town dock' or 'public dock,' (which were used as synonymous terms,) it would furnish no ground to presume that they had parted with their right to govern and use it in the manner most beneficial to the people or public of the town or city.

The principles of law on which a presumption of the dedication of private property to public use are founded, are correctly stated (3 Stark. Ev. 1203) to be: 'That the law will not presume any man's acts to be illegal, and will therefore attribute to long continued use and enjoyment, by the public, of a right of way or other privilege in or over the lands of another, to a legal rather than an illegal origin; and will ascribe long possession which cannot otherwise be accounted for, to a legal title: upon a reasonable principle and very forcible presumption, that the acquiescence in such enjoyment, for a long period, by those whose interest it was to interrupt it, arose from the knowledge and consciousness on their part that the enjoyment was rightful, and could not be disturbed; and also on consideration of the hardship which would accrue to parties, if after long possession, and when time had robbed them of the means of proof, their titles were to be subjected to a rigorous examination.'

It is evidence that these principles can have no application to the present case. The exercise of the public right of navigation over the soil of defendant is fully accounted for without any presumption or grant or dedication by the owners. The public enjoyed this highway of nature by a title reaching far before the advent of the Pilgrims, and paramount to any grant to them or by them, but by the law the enjoyment of this public right was made defeasible by the owner of the land. Till he reclaimed his land, the public needed no grant or dedication by him, in order to their enjoyment of the right of navigation over it. The owner was not bound to exercise his right within a given time, or forfeit it. A man cannot lose the title to his lands by leaving them in their natural state without improvement, or forfeit them by non-user. See Butz v. Ihrie, 1 Rawle, 218.

So long as the city chose to leave their land unreclaimed from the sea, they could not hinder the public navigation over it when covered with water, and could not, therefore, be properly said to acquiesce in that which they could not hinder. Nor could a grant or dedication of a right of way over their land be presumed in favor of the public, who enjoyed it under a different and paramount tenure. The public right has existed and been exercised for thousands of years, but is not hostile to the defendants, though defeasible at their will. It reasonables the case of Rex v. Hudson, 2 Strange, 909, where a dedication of land as a public highway was claimed by proof of sixty years' use; but the defendant produced a lease of the way for fifty-six years, and the court decided that no presumption of a dedication could arise during the lease, for the owner could not deny their right to use it, and there could be no presumption from his acquiescence.

It is true that the presumption of a dedication is one of fact, and not an artificial inference of mere law, to be made by the court, yet it is an inference which the court advise the jury to make upon proof of certain facts. It is the duty of the court to state what facts, if proved, will justify such a presumption. To instruct the jury that certain facts are not 'sufficient' evidence on which to presume a dedication, without informing them what facts would constitute sufficient evidence for that purpose, is devolving on them the decision of both law and fact, and permitting them to dispose of men's property at their discretion, by presuming grants without a particle of evidence to authorize such presumption.

The counts on which the jury have assessed the damages in this case claim no other right of highway over the lands of the defendant, save the public right of navigation, nor has the evidence shown that he is entitled to any other. The title of the defendants to the land was not disputed. The court ought, therefore, to have instructed the jury that the public right of navigation over the land of defendant was defeasible; that the owners had a right to reclaim their land by wharfing out or making erections thereon beneficial to themselves; that there was no evidence in the case whatever by which the jury could presume that the city or people of Boston had dedicated their land to the use of some other public besides themselves; that it was, consequently, not only the right but the duty of the authorities of the city to extend their sewers to low-water mark, for the purpose of removing a nuisance injurious to the health of the citizens; and having done so on their own land, the damage to the plaintiff, if any, was damnum absque injuria, and he was not entitled to recover. The record shows that these or equivalent instructions were prayed by the counsel of defendant, and refused by the court.

The judgment of the circuit court is therefore reversed, and a venire de novo awarded.

Mr. Justice DANIEL dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Rhode Island, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court with directions to award a venire facias de novo.


text: Talk:City of Boston v. Lecraw/Opinion of the Court


text:
Bruce v. United States

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Missouri.

The facts in the case are stated in the opinion of the court.

It was argued by Mr. Vinton, for the plaintiffs in error, and by Mr. Cushing, (attorney-general,) for the United States.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Bruce v. United States


text: Talk:Bruce v. United States

title: Talk:Bruce v. United States