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Ann Caroline/Opinion of the Court

This is an appeal in admiralty from the decree of the Circuit Court of the United States for the Southern District of New York, in a cause of collision, civil and maritime.

Damages are claimed in this case by the libellant on account of a collision which occurred on the 11th day of February, 1854, in Delaware Bay, between the schooner John C. Wells, bound on a voyage from New York to Philadelphia, and the schooner Ann Caroline, bound on a voyage from New York to Smyrna, in the State of Delaware, whereby the former was run down and sunk in the bay, and became a total loss. Libel was filed by the owner of the John C. Wells on the twenty-fourth day of February, 1854, and the owners of the Ann Caroline on the sixth day of December following appeared and filed their answer. Both parties took testimony in the District Court, and, after the hearing, a decree was entered dismissing the libel, and the libellant appealed to the Circuit Court. Additional testimony was taken in the Circuit Court and the parties were again heard, and, after the hearing, a decree was entered reversing the decree of the District Court, and a decree was entered in favor of the libellant. Whereupon both parties appealed to this court.

I. Libellant objects to the decree because, as he says, the damages allowed are less than he is entitled to recover; and the claimants object to it because, as they say, the libellant is not entitled to recover anything. Claimants' vessel was sailing in ballast, but the vessel of the libellant was deeply laden with a cargo of assorted merchandise. They both sailed from the port of New York on the day previous to the collision, and the evidence shows that they both came to anchor during the night, in company with some fifteen or twenty other schooners, at a well-known anchorage outside of Cape May. Evidence also shows that they both got under way on the following day about one or two o'clock in the afternoon, and at the time of collision were beating up the channel, between what is called Crow Shoals and the Jersey shore. Most or all of the other vessels got under way about the same time, and were also beating up the bay in the same general direction. Proofs show that the wind was north-northwest, blowing 'a full-sail breeze,' and that the tide was an hour flood setting up the bay. Course of the vessels when they first got under way at the anchorage was on the long tack towards the Jersey shore, and it appears that both the vessels were put upon the course. Beating out that tack they then came about and stood towards the buoy, near the lower end of the shore, on the western side of the channel. Master of the Wells testifies that his vessel went so near the shoal before tacking that she stirred the mud with her centre-board or keel. Vessel of the claimants was more to the leeward, and it appears that her course was changed before she approached so near to the shoal. Pathway of the libellant's vessel was near the shoal, but the vessel of the claimants was some distance to the leeward and somewhat astern. Having beat out that tack without any difficulty, and without anything have occurred to indicate that they were in danger of colliding, they both went about and were again put on the long tack towards the Jersey shore, and the proofs are full to the point that they were both sailing on about the same course. Claimants' vessel being to the leeward, and both vessels being closehauled on the wind, there could not be any danger that they would come together. They were both upon the larboard tack, and were heading about north-northeast. Remark should be made that most or all of the other vessels and tacked at the buoy and were beating up the channel on the same course. Weight of the evidence also shows that all of them, except one, was to the leeward, and most of them were astern of the vessel of the libellant. Such was the state of things when the Ann Caroline suddenly and unexpectedly, as alleged in the libel, went about and was put upon the starboard tack, on a course directly towards the injured vessel. Excuse for the sudden change in her course, as alleged in the answer, is, that a schooner ahead of her having tacked, it became necessary for the vessel of the claimants to go about before she had beat out her larboard tack. Reasons of the alleged necessity are not stated, and the proofs offered in support of the allegation are unsatisfactory; but it is not proposed to place the decision upon that ground, as it is not made certain that the allegation is untrue. Allegation of the libellant is, that the change was sudden and unexpected, and the evidence leads to the same conclusion. When the vessel of the claimants went about she was put upon a course heading west by north; and as the course of the libellant's vessel and not been changed, it must have been evident to every attentive observer that a collision was inevitable unless one or the other gave way. Sailing as they were in a clear day, with nothing to obstruct their view, although in a narrow channel less than a mile wide, it is clear that there can be no just excuse for the disaster, and consequently there is fault on one side or the other.

II. Theory of the claimants is that inasmuch as their vessel had come round on to the starboard tack, it was the duty of the vessel of the libellant to give way and pass to her right. General rule of navigation undoubtedly is that a vessel on the starboard tack, if closehauled, has a right to keep her course, and that one on the larboard tack, although she is also closehauled, must give way or be answerable for the consequences. But it is insisted by the libellant that the rule has no application to the relative position of the two vessels, as shown by the evidence in this case. His proposition in that behalf is that his vessel was to the windward of the vessel of the claimants, and so far ahead of her in the channel that if those on board his vessel had observed the general rule and ported her helm, a collision would necessarily have followed. Granting that the position of the two vessels was such as is assumed by the libellant, then it is clear that the rule of navigation under consideration cannot apply, and that the views of the libellant are correct. Proximity of the libellant's vessel to the shoal was such that it rendered it unsafe for those in charge of her to attempt to go about, because the danger was, if they should do so, she would be wrecked on the reef. She could not, therefore, starboard her helm and go about, and if, as assumed by the libellant, she was ahead of the claimants' vessel and to the windward, then it is clear that she could not be required to port her helm and attempt to go to the right, as in doing so she would have to cross the bows of the vessel astern, and must incur the imminent danger of colliding with the vessel of the claimants.

III. Principal question of fact therefore, is whether the theory assumed by the libellant is correct, because it is obvious that if the facts are so, the conclusion deduced from them must follow. Two controverted facts are assumed in the proposition of the libellant. 1. That his vessel was to the windward. 2. That she was ahead in the channel. Argument is not necessary to show that the libellant is right on the first point, as the whole current of the evidence when properly understood is that way, but there is much conflict in the testimony on the second point. Where the conflict of testimony in respect to a disputed fact is between the witnesses on board the respective vessels, and no others are examined in the case, it is sometimes difficult to form any satisfactory conclusion. No such embarrassment, however, arises in this case, as there were four witnesses examined who were on board the other vessels in the same company. Those witnesses concur in the statement, not only that the vessel of the libellant was to the windward of the claimants' vessel, but that she was above her in the channel; and in view of the whole case, we adopt that conclusion as the correct one from the evidence. The vessel of the claimants was also in fault because she had no lookout, and the evidence tends strongly to the conclusion that the disaster is mainly attributable to that cause. Testimony shows beyond controversy, that she had no lookout at the time of the collision, and that the master, after the vessel was put about and filled away on the starboard tack, went below, and when he came on deck just before the disaster occurred, he inquired, with evident displeasure, if no one had seen the vessel of the libellant, and it is clear that he had abundant reason for dissatisfaction. Usual precautions were then too late, and in a very short time the vessel of the claimants struck that of libellant, and the latter sunk in the channel. Plainly the vessel of the libellant could not avoid the collision, because if she had attempted to go about she would have gone on the reef, and if she had ported her helm, and attempted to go to the right, she would have collided with the vessel of the claimants. On the other hand, it is clear beyond doubt, that the vessel of the claimants might have avoided the disaster without any peril. She might have gone about, as she had ample room to do, or she might have starboarded her helm, and gone under the stern of the other vessel. For these reasons we think the conclusion of the Circuit Court was right upon the merits.

IV. The rule of damages adopted by the court is the subject of complaint on both sides, and as both parties have appealed, the whole matter is open to revision. Sum allowed was seven thousand two hundred and two dollars and fifty-one cents, and the court ordered a summary judgment against the stipulators for that amount. Interlocutory decree was that the libellant recover the amount of the loss and damages by him sustained by reason of the collision, and the cause was referred to a commissioner to ascertain the amount. Commissioner reported that the value of the vessel was five thousand dollars, and that the interest on the same to the date of the report, was two thousand three hundred and sixty-two dollars and fifty cents, and he accordingly reported the amount of those two sums as the damages in the cause. Exceptions were filed by the claimant to that report as follows:

1. That the sum reported as the value of the vessel was too much.

2. That the commissioner erred in allowing interest.

3. That the rule of damages adopted was erroneous: that the amount should not exceed the value of the claimants' vessel and freight pending.

4. That the commissioner erred in examining testimony as to the value of claimants' vessel.

Circuit judge sustained the third and fourth exceptions, and recommitted the report. Subsequently, the commissioner made a second report. In his second report he found:

1. That the value of the vessel of the libellant was five thousand dollars, and that by reason of the collision she was a total loss.

2. That the vessel of the claimants was worth the sum of thirty-five hundred dollars.

3. That the freight pending on the cargo of the claimants' vessel was five hundred and thirteen dollars.

4. That the interest on the freight and value of claimants' vessel was two thousand four hundred and thirty-one dollars and forty-three cents.

Accordingly he reported as due to the libellant the aggregate of those several sums. Both parties excepted to the report, but the court overruled their exceptions and confirmed the report, which was the foundation of the final decree, which is for the same amount.

Libellant insists that the first report of the commissioner was correct, that is, that he is entitled to recover the value of his vessel together with the interest on that amount from the time of the collision to the date of the decree. On the other side the claimants insist that the stipulation for value under the general rules of the admiralty, stands in the place of the vessel, and that the decree as against the stipulators cannot exceed the amount of the stipulation. Separate stipulations are usually filed for costs, and the same rule, it is admitted, applies to such a stipulation as to the one given for the value of the vessel. Stipulation for costs in the sum of two hundred and fifty dollars was regularly filed by the claimants in this case at the time they entered their appearance. Such a stipulation is properly required as a condition of the right to appear, unless the claimant, under the act of the third of March, 1847, had given the bond to the marshal therein mentioned for the discharge of the property arrested at the time of the service of the monition. Suit in this case was in rem, and consequently the vessel, when arrested, was in contemplation of law in the possession of the court. But the practice is where the claimant desires to regain the possession to allow the value of the same to be ascertained, and when that is done according to law, the claimant may file a stipulation for that amount in the place of the vessel. When the claimant desires to secure the possession of the vessel, he may apply to the court for an appraisement, or if the parties agree upon a sum as the value, the court may adopt that sum, and accept a stipulation for that amount. Parties in this case agreed that the value of the vessel was five thousand dollars, and thereupon the court accepted a stipulation for that amount, and the vessel was delivered to the claimants. Obligation of a stipulator is the same as that of a surety, and consequently his liability is limited by the terms of his contract. Whenever the obligation of the stipulator is for a definite sum named in the stipulation, the surety stipulating to pay that sum cannot be compelled to pay more than that amount. Same rule prevails whether the instrument is in form a bond or stipulation. Where a claimant in a suit in rum made application for a delivery of the property, and obtained it by an order of the court upon giving a bond to suspend the appraised value, Judge Story held that the bond was good as a stipulation, and having affirmed the decree condemning the vessel, ordered that judgment should be entered against the signers of the bond as stipulators for the appraised value of the vessel with costs. Mr. Benedict says, that where a party is entitled to have the property delivered on bail, he is bound to stipulate with sureties to pay the full value of the property. Such value, says the same author, may usually be fixed by consent and agreement of parties, but if not, then it is ascertained by an appraisement, and on final decree the stipulators are bound to pay into court the sum ascertained as the value.

Bail is taken, says Mr. Dunlap, for the value of the ship upon the delivery of the property, and it will not be reduced upon the ground that the property brought less upon a sale than the appraised value. Settled rule is, that where the value of the vessel condemned in a cause of damage is insufficient to pay the loss, it is not competent for the court to award damages against the owner beyond the value or proceeds of the ship. But it has been held that costs might be awarded against the owner where there was an appearance and hearing, although no stipulation to that effect had been given.

Rule in admiralty, however, is the same as at law, that sureties are only bound to the extent of the obligation expressed in their bond, but not beyond its plain and obvious meaning.

True measure of damages in this case was the loss which the libellant sustained by the sinking of his vessel, which, as the commissioner reported, was five thousand dollars. He lost that amount, and there is no proof in the case that he lost anything more, for which any claim is made in the libel. Stipulation for value filed by the claimants was for that sum, and consequently the libellant is entitled to a decree against the stipulators for that sum, as the value of the vessel and no more, because they never agreed to be bound for any greater sum.

Argument of the libellant is, that he is entitled to interest on that sum as against the stipulators for value, but it is a sufficient answer to the proposition to say that this court has expressly decided otherwise, and we adhere to that decision.

Separate stipulation was filed for costs, and, of course, the libellant is entitled to full costs in the District and Circuit Courts, unless the amount exceeds the sum specified in the stipulation. He is, also, entitled to a decree of affirmance upon the merits, but without costs in this court, and the decree of the Circuit Court must be modified as to the damages so as to conform to views expressed in this opinion.

THE DECREE AFFIRMED AS MODIFIED.

title: Ann Caroline/Opinion of the Court


text: Talk:Ann Caroline/Opinion of the Court

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title: Talk:Ann Caroline/Opinion of the Court


text:
Morning Light (69 U.S. 550)

APPEAL from the decree in admiralty of the Circuit Court of the United States for the Southern District of New York.

About the 6th of August, 1855, the brigs Jerry Fowler and Morning Light, in a dark and rainy night, were pursuing a voyage off the coast of Rhode Island through Buzzard's Bay and Martha's Vineyard, eastward, with the wind from the northeast, the Jerry Fowler being the head vessel and the Morning Light in her rear, both vessels running on their starboard tacks on about a common course. At 4 o'clock in the morning of that day a collision occurred between them, the stem or bows of the Morning Light breaking through the starboard side of the Jerry Fowler near her main rigging, so that the latter vessel, with her cargo, was, by the collision, sunk, and became a total loss.

The Alliance and other insurance companies, who had connectedly underwritten upon the Jerry Fowler in stated proportions, paid the amount of their policies, and unitedly filed their libel in the District Court for the Southern District of New York (Betts, J.), to recover from the Morning Light the sums so paid. The answer set up inevitable accident as a defence.

title: Morning Light (69 U.S. 550)


text: Talk:Morning Light (69 U.S. 550)

title: Talk:Morning Light (69 U.S. 550)


text:
Author:Antoine Augustin Cournot

Works

 * Recherches sur les principes mathématiques de la théorie des richesses), 1838 (Researches into the Mathematical Principles of the Theory of Wealth, 1897, English transl. by Nathaniel T. Bacon)
 * Traité élémentaire de la théorie des fonctions et du calcul infinitésimal, 1841
 * Exposition de la théorie des chances et des probabilités, 1843
 * De l'origine et des limites de la correspondence entre l'agèbre et la géométrie, 1847
 * Essai sur les fondements de nos connaissances et sur les caractères de la critique philosophique, 1851
 * Traité de l'enchainement des idées fondamentales dans les sciences et dans l'histoire, 1861
 * Principes de la théorie des richesses, 1863
 * Les institutions d'instruction publiques en France, 1864
 * Considérations sur la marche des ideées et des événements dans les temps modernes, 2 vols, 1872
 * Materialisme, vitalisme, rationalisme: Études des données de las science en philosophie, 1875
 * Revue sommaire des doctrines économiques, 1877
 * Souvenirs, 1760-1860, 1913

title: Author:Antoine Augustin Cournot


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User:AdamBMorgan/Books/Tarzan of the Apes

ERB's First Tarzan Novel

 * Chapter 1
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Morning Light (69 U.S. 550)/Opinion of the Court

The Jerry Fowler, at the time of the collision, was either in the act of completing her tack, or had just come round from the larboard to the starboard tack, and come underway on the last tack; the evidence as to her particular position when the two vessels came in contact not being exactly concurrent upon that fact on either side. She was tacked, not because of any actual necessity from the nearness of shoals or dangerous impediments, but because her master thought she had approached so near the Cutterhunk Shoals as to render it proper, in the darkness of the night, to change her course. It proved she was not, in reality, within five or six miles of the supposed reefs.

The wind was about a five or six knot breeze during the greater portion of the night, but it was not steady. There were fogs, and the rain came on in fog showers. Neither vessel had unusual sail up, and both appeared to have been well manned and navigated with care. There was no attempt to prove that the Morning Light had, at any time, shortened sail or lain to.

The witnesses on each vessel asserted that a light was suspended in a place for being easily seen from the other; and on each side it is asserted that neither discovered any light exhibited upon the other vessel. The witnesses on the Morning Light testified to a darkness so extreme as to disable them discerning objects distant less than her length off. Some on the Jerry Fowler state that they saw the other vessel coming upon them half a mile distant. But in their sworn protest, made directly after the accident, they represented the darkness to have been so extreme at the time of the collision as to prevent their seeing objects beyond a slight distance off. The protest, signed and attested by the crew of the Jerry Fowler, was made at Portland, Maine, on the arrival at that port of the Morning Light with those men, within three or four days after the collision; and the representation made by those men at that time of the thickness and darkness of the weather corresponds essentially with the evidence of the crew of the Morning Light on the final hearing.

The District Court held that the evidence showed a case of inevitable accident between the two vessels; or if there was, at the time of the collision between the two vessels, any culpable inattention or misconduct which conduced to produce the collision, the fault therein was a common one to both, arising from the obscure state of the weather, the want of extreme vigilance and precaution in making further signals on board both vessels, or even coming to anchor, and the uncertainty from that cause, to each vessel, what was the proper and prudent course for either to pursue in respect to the other vessel or its own individual navigation. That if it was imprudent and hazardous with the Morning Light, having knowledge that the Jerry Fowler was probably ahead in the direction she was steering, to continue a course which might have been concurrent in both vessels during the night, because the darkness had then become so dense and continuous as to prevent her position being seen by the vessel astern of her, it was no less faulty in the Jerry Fowler to put about in that state of darkness, when not impelled to depart from her previous course by any necessity of navigation, when such evolution might place and leave her in a helpless condition, in the probable path of the approaching vessel, until the latter should be so near her before she could be seen, to disable either one from escaping a collision. That upon the proofs no necessity was shown for the Jerry Fowler to make a tack for her own safety, or as an act of prudence or good seamanship, a distance of five or six miles off the reefs she intended to avoid, and that no higher necessity was shown for the Morning Light to come to in that state of the weather than for the Jerry Fowler to have done so also. That comparing the testimony given by the crew of the Morning Light with the statement in the protest made directly after the occurrence by the crew of the Jerry Fowler, the fair weight of evidence was that all hands aboard each vessel were bewildered and confused by finding themselves in sudden and dangerous proximity to each other in a thick fog, and that the collision consequent thereto was the result of accident common and unavoidable to both. That each party, under the circumstances, was accordingly bound to bear his own loss. The District Court accordingly dismissed the libel.

On appeal to the Circuit Court, the same view was taken of the evidence, and the decree was affirmed. It was from this second decree that the case came here by appeal.

Mr. Benedict, for the appellants; Mr. W. Q. Morton, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

This case is brought here by appeal from a decree of the Circuit Court of the United States for the Southern District of New York, sitting in admiralty.

Appellants were the insurers of the brig Jeremiah Fowler, which was lost on the 24th day of August, 1855, while on a voyage from the port of Philadelphia to the port of Boston. Allegations of the libel are, that she was loaded with coal, and that after she had arrived in Block Island channel, and while she was beating in towards Vineyard Sound, she was negligently and wrongfully run into by the brig Morning Light and sunk, and that the vessel, together with the cargo, became a total loss. Libellants insured the vessel in the sum of thirteen thousand dollars; and having paid the whole amount, they instituted this suit against the Morning Light to recover the value of the vessel, upon the ground that the vessel of the respondents was in fault, and that the collision was occasioned by the negligence and want of proper care and precaution of those who had the charge and management of her deck at the time the collision occurred. Respondents allege that the Morning Light was bound on a voyage from Philadelphia to Portland, and that she was well manned, tackled, and provided. Collision occurred, as the respondents allege, about four o'clock in the morning; and they also allege, that at the time it occurred it was raining heavily, and that in consequence of a dense fog it was intensely dark.

Parties agree that the collision occurred at the time specified in the answer; and the respondents also allege that the wind, at the time, was from the eastward, say east by north, and that their vessel was heading about north by east. Undoubtedly she was on her starboard tack, closehauled on the wind, and like the vessel of the libellants was beating into Block Island channel. Such was the state of things when, as the respondents allege, the lookout on their vessel first discovered the vessel of the libellants, and the concurrent testimony of those on board their vessel is that the vessel so discovered appeared to be crossing the bows of the Morning Light. When the lookout made that discovery he immediately gave the order to the man at the wheel to put her helm hard up; but the allegation is that the two vessels were so near together that it was not possible to prevent the collision. Appellants also allege that their vessel had a competent lookout properly stationed on her deck, and that the vessel was discovered as soon as it was possible to discern her in the dense fog with which she was surrounded.

Suit was commenced in the District Court, and after a full hearing, the district judge entered a decree dismissing the libel, upon the ground that the collision was the result of inevitable accident. Appeal was taken by the libellants to the Circuit Court, and the respective parties were again heard in that court; and, after full consideration, the decree of the District Court was in all things affirmed, and upon the same ground as that assumed in the District Court. Whereupon the libellants appealed to this court, and now seek to reverse the decree, upon the ground that both the courts below were in error.

1. Appellants contend, in the first place, that their vessel was ahead, and that the other vessel, inasmuch as she was coming up, was bound to keep out of the way. Secondly, they contend that the vessel of the respondents was also in fault, because she did not have a competent lookout properly stationed on the vessel. Thirdly, that she was also in fault, because she did not shorten sail and diminish her headway. On the other hand, the defence is placed chiefly upon the ground set up in the answer, that the collision was the result of inevitable accident; but the respondents also contend that the vessel of the libellants was in fault, because she unnecessarily attempted to go about and change her course while she was under the bows of the Morning Light.

Beyond question the vessel of the libellants was ahead at nightfall before the collision occurred, as the evidence shows that she was seen at that time by the master of the Morning Light, ans he testifies that she was to the windward, and five or six miles ahead. The evidence also shows that she was at that time heading north-northeast, and the witnesses say that she was apparently sailing faster than the vessel of the respondents, and that both vessels were sailing on the same tack. Suggestion of the respondents is, that she had changed her course during the night, and some time before the collision, and that she was sailing, at the time it occurred, on the larboard or port tack; and it must be admitted that the position of the respective vessels at that time, and the attending circumstances, give some countenance to that theory. But the testimony of the witnesses for the libellants is directly the other way, and as there is nothing in the case of a positive character to contradict their statements, it must be assumed that they are correct, although it is very difficult to see how it happened that the two vessels came together as alleged, unless one of them had changed her course during the night. Theory of the libellants is that their vessel had just come about on to the larboard tack, and that her sails had not filled sufficiently to give her headway, and the theory is essential to the libellants' case, because if their vessel was fully under way on that tack, and in a situation to do so, it would have been her duty to port her helm and give way. Suffice it to say, however, the proof is clear that she was not under headway, and perhaps the better opinion from the evidence is that she had just come about, as is assumed by the libellants, and not that her sails were merely aback through the fault of the helmsman, as is assumed by the respondents.

II. Assuming the fact to be so, then it follows that the vessel of the libellants was not in fault, and the question of liability must chiefly depend upon the defence set up in the answer, that the collision was the result of inevitable accident. Examples are to be found in the reported cases where collisions have occurred exclusively from natural causes, and without any negligence or fault, either on the part of the owners of the respective vessels, or of those intrusted with their care and management, and where the facts are so, the rule of law is that the loss must rest where it fell, on the principle that no one is responsible for such an accident. Such was the ruling of the court in the case of the steamer Pennsylvania, and we have no doubt that the ruling was correct. Ruling of the court in the case of the John Frazer was to the same effect. Remarks of the court in that case were, that the mere fact that one vessel strikes and damages another does not of itself make her liable for the injury; but the collision must in some degree be occasioned by her fault. A ship properly secured may, by the violence of a storm, be driven from her moorings and forced against another vessel, in spite of her efforts to avoid it; yet, says the court, she certainly would not be liable for damages which it was not in her power to prevent. So, also, ships at sea may, from storm or darkness of the weather, come in collision with one another without fault on either side; and in that case, say the court, each must bear its own loss, although one is much more injured than the other. Where negligence or fault, however, is shown to have been committed by either party, the rule under consideration can have no application, for if the fault was one committed by the respondent alone, then the libellant is entitled to recover; or if by the libellant alone, then the libel must be dismissed; or if both vessels were in fault, then the damages, under the rule applied in this court, must be apportioned between the offending vessels.

III. Before considering the defence, therefore, it becomes necessary to inquire and determine whether it be true, as is supposed by the libellants, that the vessel of the respondents was in fault. Their theory is that their vessel was ahead, and that the vessel of the respondents was bound to keep out of the way. Granting the fact to be as assumed, still if it was so dark that the vessel ahead could not be seen, the vessel astern cannot be held to be in fault for not complying with that rule, unless she was improperly in that position, or was guilty of some negligence or want of care and precaution.

Charge of the libellants is, that she had no lookout, and the charge, under the circumstances, is one that deserves to be very carefully considered. Proofs are full to the point, that two of her company, the mate and a seaman, were assigned to that duty; but the question is whether they were properly stationed on the vessel. Burden of the vessel was two hundred and sixty-nine tons, and the ship's company consisted of the master, two mates, the cook, and four men before the mast. According to the evidence, the vessel was laden with lumber, and her deck load consisted of three tiers of spars about as high as the bulwarks. She had a good light in her forestays eight feet above the main deck, and she had an experienced seaman at the wheel. One lookout was stationed on the larboard side, eight or ten feet forward of the mainmast; and the mate, who was also on the lookout, was on the starboard side, just forward of the foremast; and it should be remembered that the vessel was upon the starboard tack. None of these facts are successfully controverted; but the argument is, that the lookouts were not properly stationed, and it is not to be denied that, in general, some position farther forward would be a better one to secure the object for which lookouts are required.

IV. Reference, however, must in all cases be had to the circumstances, and especially to the course of the respective vessels, and to their bearing in respect to each other. Considering the situation of the vessel of the libellants, assuming it to be such as the libellants suppose, it is by no means certain that the position of the lookout on the larboard side was not as favorable to discover the vessel of the libellants, when she went into stays and came about as could have been chosen, and it is quite clear that the position of the mate while his vessel had her starboard tacks aboard was one without objection. They both testify that they were attending to their duty, and there is no ground for doubt that they would have seen the other vessel in season to have avoided the collision, but for the intense darkness of the night.

V. Fault is also imputed to the Morning Light by the libellants, because she did not during the alleged intense darkness 'lie to,' or shorten sail and check her headway. Steamers navigating in thoroughfares are always required, whenever the darkness is such that it is impossible or difficult to see approaching vessels, 'to slow' their engines or even to stop or back, according to the circumstances, and no reason is perceived why the principle of the rule in that behalf may not be applied in a qualified sense to sail vessels where they are navigating in crowded thoroughfares, and when the darkness is so intense that vessels ahead cannot be sen. Decisions to that effect may be found, and no doubt they are correct, as for example, it was held in the case of the Virgil, that the defence of inevitable accident could not be maintained where it appeared that the vessel setting at up was sailing with a strong breeze and under a full press of canvas and with her studding-sails set, although it appeared that it was very dark and hazy at the time of the accident. But such a restriction can hardly be applied to sail vessels proceeding on their voyage in an open sea. On the contrary, the general rule is that they may proceed on their voyage although it is dark, observing all the ordinary rules of navigation, and with such additional care and precaution as experienced and prudent navigators usually employ under similar circumstances. They should never under such circumstances hazard an extraordinary press of sail, and in case of unusual darkness, it may be reasonable to require them when navigating in a narrow pathway, where they are liable to meet other vessels, to shorten sail if the wind and weather will permit.

The weight of the evidence in this case shows, that the wind during the greater portion of the night was perhaps a five or six knot breeze, but it is highly probable that it was much lighter during the fog showers and the period of the extreme darkness which immediately preceded the collision. Neither vessel had any studding-sails, nor any greater press of canvas than is usual in such a voyage, nor is it by any means certain that either had any more sail set than was reasonably necessary to keep the full control and proper management of the vessel. They both had competent officers on deck, good lights in the rigging, and as we think sufficient lookouts, and it appears that neither was guilty of any negligence or unskilfulness.

Some of the witnesses for the libellants deny that the night was as dark as is represented by the witnesses examined by the respondents, but those denials came chiefly from those who signed the protest shortly after the disaster, which in substance and effect confirms the respondents' witnesses, and fully justifies the finding in that behalf in the court below. Reasonable doubt cannot be entertained that it was intensely dark at the time of the collision. Both the courts below were of that opinion, and we fully concur in that view of the case, and think it sufficient under the circumstances to express that concurrence without reproducing the evidence.

VI. Reported cases where it has been held that collisions occurring in consequence of the darkness of the night, and without fault on the part of either party, are to be regarded as inevitable accidents are numerous, and inasmuch as there is no conflict in the adjudications, it is not thought necessary to do much more than to refer to some of the leading cases upon the subject. Where the loss is occasioned by a storm or any other vis major, the rule as established in this court is that each party must bear his own loss, and the same rule prevails in most other jurisdictions. Different definitions are given of what is called an inevitable accident, on account of the different circumstances attending the collision to which the rule is to be applied.

Such disasters sometimes occur when the respective vessels are each seen by the other. Under those circumstances, it is correct to say that inevitable accident, as applied to such a case, must be understood to mean a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. When applied to a collision, occasioned by the darkness of the night, perhaps a more general definition is allowable. Inevitable accident, says Dr. Lushington, in the case of The Europa, must be considered as a relative term, and must be construed not absolutely but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution, and maritime skill. Regarding these cases as sufficient to show that a collision resulting from the darkness of the night and without the fault of either party, is properly to be regarded as an inevitable accident, we forbear to pursue the investigation, and wish only to add that we have no doubt the case was correctly decided in the Circuit Court.

The decree of the Circuit Court is therefore,

AFFIRMED WITH COSTS.


text: Talk:Morning Light (69 U.S. 550)/Opinion of the Court


text: Gordon v. United States (69 U.S. 561)

title: Gordon v. United States (69 U.S. 561)


text: Talk:Gordon v. United States (69 U.S. 561)


text:
Gordon v. United States (69 U.S. 561)/Opinion of the Court

GORDON, administrator of Fisher, presented a petition in the Court of Claims of the United States, for damages done to him by troops of our Government, in the war of 1812 with Great Britain. The Court of Claims decided against him, and he appealed to this court. The case was argued in favor of the right of appeal by Messrs. Gooderich and Winter Davis; no counsel appearing on the other side. A majority of the court, however, finding itself constrained to the conclusion that, under the Constitution, no appellate jurisdiction over the Court of Claims could be exercised by this court, and intimating that the reasons which necessitated this view might be announced hereafter-the term being now at its close-the cause was simply.

DISMISSED FOR WANT OF JURISDICTION.

Miller and Field, JJ., dissenting.


text: Talk:Gordon v. United States (69 U.S. 561)/Opinion of the Court


text: The Sutter Case

title: The Sutter Case


text: Talk:The Sutter Case

title: Talk:The Sutter Case


text:
The Sutter Case/Opinion of the Court

THIS case, which involved immense interests in California, and questions greatly agitated in a particular portion of that State, was an appeal from the decree of the District Court of the United States for the Northern District of the same, approving and confirming the survey and location of a claim to land under a Mexican grant to a certain John A. Sutter; a name abundantly known in the valley of the Sacramento, and which has left traces of some depth in the history of land titles in that region.

Sutter himself, as described by another pen, was a native of Switzerland, who came to the Department of California about the year 1839; long, of course, befor the incorporation of that region with the United States. He was a man of a romantic cast of character, and having naturalized himself as a citizen of Mexico, formed, with the leave of its Government, a settlement near the junction of the Sacramento and American Rivers. In honor of his native country he designated it New Helvetia. The country, at that time, was uninhabited, except by bands of warlike Indians, who made frequent predatory incursions upon the undefended settlements to the south and east of this place. In two or three years after his arrival, Sutter was commissioned by the Governor of California to guard the northern frontier, and to represent the Government in affording security and protection to its inhabitants against the invasion of the Indians and marauding bands of hunters and trappers who occasionally visited the valley for plunder. In the year 1841 he commenced the erection of a fort at New Helvetia at his own expense. It was surrounded by a high wall, and was defended by cannon. Within this fort there were dwelling-houses for his servants and workmen, and workshops for the manufacture of various articles of necessity. There was a grist-mill, tannery, and distillery attached to the establishment. A number of Indians were domesticated by him, and contributed to cultivate his fields of grain, and to defend the settlement from more savage tribes. He was possessed of several thousands of horses and neat cattle, which were under the care of his servants. There were collected, at different times, from twenty to fifty families; and there were, in the course of years, some hundreds of persons connected with this settlement. He is described as having been hospitable and generous to strangers, and the Governors of California bear testimony to the vigor with which he performed the duties of his civil and military commission. Being a man of schemes, and of an adventurous turn, he sought, after a certain time, to extend his settlements and influence upward along the river; and did so, examining and fixing upon lands for miles up the Rio de las Plumas, a large tributary of the Sacramento. His ideas and acts were somewhat visionary; his habits of business not good; and, relying on titles possessed or to be obtained and confirmed from the Government, he made very unmerous grants to great numbers of persons; grants of vastly more land, as it turned out, than he owned. When, therefore, after the cession of California, our Government acknowledged his right, under Mexican grant, to a certain quantity of land,-the exact location of which remained to be practically fixed,-the fact that he had made deeds for much more than the quantity admitted as his, raised a great question among his various grantees as to where, exactly, his admitted land was situated. Each wished that which Sutter had granted to him to come within the limits, and the Government also had its interests in the location.

The matter, as in mode and form it now came before this court, was thus:

In 1852, Sutter presented to the Board of Commissioners, created by Congress under the act of March 3d, 1851, to ascertain and settle private land claims in California, a petition asking for the confirmation of a claim asserted by him to eleven square leagues of land under a grant alleged to have been issued to him on the 18th of June, 1841, by Juan B. Alvarado, then Governor of the Department of California. The grant gave the extent and boundaries of the land thus:

'It is of the extent of eleven square leagues, as exhibited in the sketch annexed to the expediente, without including the lands overflowed (las tierras senigadas) by the swelling and current of the rivers. It is bounded on the north by The Three Summits (Los Tres Picos) and 39°41'45" north latitude; on the east, by the borders [or margins] of the Feather River; on the south, by the parallel of 38°49'32" of north latitude; and on the west, by the river Sacramento.'

In 1853 he amended his petition, and claimed an additional quantity of twenty-two leagues under a grant alleged to have been issued to him and to his son on the 5th of February, 1845, by Micheltorena, at that time Governor of California; this quantity being the surplus (sobrante) embraced within the exterior limits from which the eleven leagues first granted were to be taken.

The board by its decree confirmed the claim under both grants. On appeal to the District Court of the United States, the decree of the board was affirmed. But on appeal to this court, the claim under the first grant alone was adjudged valid, it being held that the second grant, from the circumstances under which it was issued, was not entitled to recognition by the United States under the treaty of cession.

The decrees of the Board of Commissioners and of the District Court are substantially in the same language. In the description of the land they are identical. The description is as follows:

'The land of which confirmation is made is situated on the American, Sacramento, and Feather Rivers, and is known by the name of New Helvetia, being the same which was granted to the said John A. Sutter, by grant duly executed by Governor Juan B. Alvarado, on the 18th of June, 1841, and by a grant from Governor Manuel Micheltorena to the said John A. Sutter, and his son John A. Sutter, Jr., dated February 5th, 1845; the first for eleven square leagues of land, as exhibited on the sketch annexed to the proceedings, and the second for twenty-two square leagues of the sobrante, or surplus of land within his rancho, named New Helvetia, as laid down on the map which accompanies the grant; the said land to be located according to the calls of the respective grants, as described and explained in the depositions of John J. Vioget, filed in the case, and within the following limits, to wit: On the south, by a line drawn due east from the Sacramento River, so as to touch the most southerly point of a pond or laguna situated near said river, and about five miles south of the American River, as represented on the map filed in the case, and marked 'B. P. L.' (facing page 564), exhibit to deposition of Juan B. Alvarado, March 15th, 1855, which is also marked on said map Lindero latitud norte 38°49'3"; on the north by a line drawn due east from Sacramento River to the southern base of the mountains known as the Buttes, and represented on the said map by the name of Los Tres Picos; and from thence until it intersects the eastern boundary of the tract, as represented on said map, and described in the grant, and in the depositions of the said Vioget; on the west by the said river Sacramento, and on the east by the margins of Feather River, inclusive. For more particular description, reference to be had to the copies of the grants filed and proved in the case, bearing date the 18th of June, 1841, and the 5th of February, 1845, to the said map marked 'B. P. L.,' exhibit to deposition of Juan B. Alvarado, March 15th, 1855, and to the deposition of John J. Vioget and Juan B. Alvarado, all of which are filed among the papers in the case.'

The mandate of this court, which, on its decision, was remitted to the District Court, to be there executed, recites the decree appealed from entire, and, after mentioning the argument of the case, proceeds as follows:

'On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that so much of the decree of the said District Court as confirms the claim of John A. Sutter to the eleven square leagues of land situated on the American, Sacramento, and Feather Rivers, known by the name of New Helvetia, and which was granted to the said John A. Sutter by Governor Juan B. Alvarado, on the 18th of June, 1841, as set forth and described in said decree, be, and the same is hereby affirmed. And it is further ordered, adjudged, and decreed by this court, that the residue of the said decree, in so far as it confirms a grant for twenty-two square leagues of land, purporting to have been made to the said John A. Sutter by Governor Manuel Micheltorena, on the 5th of February, 1845, be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said District Court, for further proceedings to be had therein, in conformity to the opinion of this court.'

Under this mandate a survey was made, in 1859, by one A. W. Von Schmidt, deputy surveyor, under J. W. Mandeville, the Surveyor-General of the United States for California. The survey was made under the instructions of the Surveyor-General, and was approved by him on the 18th of February, 1860, and a certified copy was filed in the District Court, on the 27th of the same month, under the order of the court. This survey includes two leagues of land, situated south of the American River (within the present county of Sacramento), and nine leagues, situated on the banks of Feather River, portions on each side commencing at a place formerly known as the Canadian Ford, and extending up the river. The two parcels were separated from each other several miles. Each parcel was located in a compact form, and in conformity with the lines of the public surveys. The location will appear by reference to the map on the next page, where it is indicated with sufficient correctness to give an idea, by the light dotted lines forming the top of the map, as to one part, and on the south of the American River, as distinguished from heavier dark ones in those same parts of the map, and all along the river between.

John J. Vioget, whose name is mentioned in the decree of the District Court, was an engineer and surveyor, and made a survey of the eleven square leagues in 1840 or 1841, and also the map referred to in the grant to Sutter; and in his depositions filed in the case he testified that in his survey two leagues were located, at the request of Sutter, south of the American River, and that the remaining nine leagues were located on the banks of the Feather River, on each side, commencing at the Canadian Ford and extending up the river. Von Schmidt testified that in making his survey he had with him the map referred to, and the depositions of Vioget; also another map marked 'A. P. L.,' which, except that it has not the dotted lines marked in the latter, is similar to the map facing page 564, and marked 'B. P. L.;' and that he found no difficulty in locating two leagues below the American River, and nine on the margins of the Feather River; and that he ran the lines so as to conform as near as practicable to Vioget's survey. The two surveys varied somewhat, as Von Schmidt was obliged to run the lines in accordance with the subdivision lines of the public surveys presented by the established regulations of the land department of the Government. TAI TABLE

This survey and location of Von Schmidt, the District Court set aside, and under its direction a new survey and location were made, and on the 11th of May, 1863, was approved by the Surveyor-General of California, and a plot of the same, duly certified, was returned into court. On the same day the District Court, by its decree, approved and confirmed the new survey and location, marking it, 'Approved, May 11, 1863; Ogden Hoffman, District Judge;' and from the decree the present appeal is taken.

By this new survey, the eleven leagues were located in a long line of tracts, several of them very narrow, all along the Feather River, above its junction with the Sacramento, and on the Sacramento afterwards to where it meets the American River, with a large tract, as before, south of the last-named stream. This broke up the eleven leagues into thirteen tracts of different dimensions and forms; but the cessation of the continuity was nowhere large. The matter will be explained, perhaps, by reference to the map opposite, where this location is indicated by a heavy continuous line all along the Sacramento and Feather Rivers, and south of the American River, as distinguished from the lighter dotted one on the same map, at its top and bottom only.

Sutter, as already mentioned, was a man of undefined ideas, with habits of business not the best. And having made grants of much more land than he had, it was plain that whatever decision was made as to their respective precedence, many persons would be losers, under circumstances of much hardship as respected some of them. The District Court, in directing a location in the manner just mentioned, intended that the several selections which Sutter himself was considered to have made by settlement, or by lease or sale, or other acts of ownership, should be adopted, and in the order in which they were made, until the whole quantity of eleven leagues was exhausted. His Honor, the District Judge, however, after a very able exposition of the grounds of the decree, acknowledged the difficulties of a 'most embarrassing case.' 'With no clear rules of law to guide me, unable to discern accurately what even equity and justice demanded, embarrassed by the careless improvidence which has led Sutter to convey away more land than he even supposed he possessed, and far more than the quantity to which by the unexpected decision of the Supreme Court, he has been restricted, with the external boundaries of the tract vague and undefined, and even the original papers, in some respects, ambiguous and contradictory, I have been compelled,' he said, 'to content myself with endeavoring to settle the case as fairly as was practicable, under the circumstances, and to renounce the hope of obviating every objection, or avoiding the infliction of much hardship. The case is one rather for the arbitrium boni viri than the subject of a judicial determination proceeding upon fixed and absolute rules.'

Numerous objections were taken in the court below, and were urged in this court, to the survey thus ordered by purchasers under Sutter, and by persons claiming rights by settlement under the United States. The objections were not all consistent with each other. One of the intervenors (Gelston), contended that a greater quantity than the amount given, two leagues or more, should have been located south of the American River.

The United States not objecting to the location south of the American River, contended that the eleven leagues could not be located in separate and distinct parcels, but should be located in one body, and in a compact form, and, therefore, that the nine leagues should be taken immediately adjoining the other two, and on the north of the American River, or that the two leagues should be selected from land adjoining the nine on Feather River.

The parties claiming an interest in the premises by settlement under the United States, contended that the whole quantity granted should be located between the Sacramento and Feather Rivers, that is to say, in the forks of these rivers, below the Three Buttes, and that the land upon which the city of Sacramento is situated should be excluded from location as overflowed land, reserved by the terms of the grant.

Two intervenors (Packard and Woodruff) contended that the survey made by A. W. Von Schmidt, and filed February 27th, 1860, was the correct survey of the eleven leagues.

A vast variety of testimony was taken in the case, and numerous documents of different kinds, including grants by Sutter, up and down the rivers and elsewhere, were offered in evidence, the whole bearing more or less directly upon the matters in controversy. The printed record contained nine hundred and eighty octavo pages, and there were maps! in number indefinite. It is sufficient for the proper understanding of the opinion of the court to state, generally, that the evidence showed,-the settlement and occupation by Sutter of the land below the American River, as already stated above; the settlement of colonists under Sutter, soon after he obtained his grant on the east bank of the Feather River (or as was asserted and contended in the argument, before); a subsequent selection and occupation by him of the tract known as Hock Farm, on the west bank of the Feather River; that the whole country embraced within the exterior limits of the grant, with the exception of small portions, insufficient to satisfy the eleven leagues granted, is sometimes, every two or three years, overflowed by water, and in many places to the depth of several feet; that the greater part of the tract embraced in the survey made by Von Schmidt, and also in the survey approved by the District Court, is thus sometimes overflowed; that within the exterior limits there are also immense tracts of marsh or tule lands, which are covered with water every year during the entire winter, and during the greater part of the summer months, and which were unfit for either cultivation or pasturage without draining; and that neither of the surveys mentioned include any portion of those marsh or tule lands.

This grant gives the extent and boundaries of the land, as already mentioned, that is to say, as follows:

'It is of the extent of eleven square leagues, as exhibited in the sketch annexed to the expediente, without including the lands overflowed (las tierras senigadas) by the swelling and current of the rivers. It is bounded on the north by (los Tres Picos) the Three Summits, and 39°41'45" north latitude; on the east by the borders (or margins) of the Feather River; on the south by the parallel of 38°49'32" of north latitude, and on the west by the river Sacramento.'

Alvarado, the governor, who issued the grant, testified that the Spanish words, las tierras senigadas in the original, which are translated the lands overflowed in the document in the record, mean swamp or tule lands overflown and unfit for cultivation.

The parallel of latitude (lindero latitud) given in the grant as the southern boundary, falls near the junction of the Sacramento and Feather Rivers, as appears by the map. Alvarado testified that he inserted in the grant the degrees of latitude as they were marked on the map. And Vioget testified that he drew the line across the map a few miles below the American River, and marked it as the southern boundary with the latitude designated; but that the observation taken of the latitude was not correct, owing to his inability to procure correct instruments, which he mentioned at the time to Sutter.

Of very numerous documents offered in evidence, aside from the petition of Sutter and grant to him, and deeds to numerous under claimants, in nearly every place now the subject of claim, a grant to W. A. Leidesdorf, issued October 8th, 1844, a deed of Sutter to Robinson, Gillespie, and others, dated July 1st, 1850, and a map, made by John Bidwell, in 1844, were, perhaps, among the most important.

The grant to Leidesdorf, made more than three years after the date of the grant to Sutter, cedes land situated on the south bank of the American River, and describes it as 'bounded by the land granted to the colony of Senor Sutter.'

The deed of Sutter to Robinson, Gillespie, and others, conveys land described as follows:

'Commencing on the north of the Three Peaks, or what is commonly called Sutter's Buttes, at a point on the east bank of Sacramento River, in latitude 39°41'45"; thence running with the parallel of said latitude to the Rio de las Plumas, or Feather River; thence down and along the meanders of said Rio de las Plumas, or Feather River, to its junction with Sacramento River; thence up and along the eastern bank of said Sacramento River to the place or point of beginning; and which said land is embraced in a grant from the Mexican Government, bearing date, Monterey, 18th day of June, eighteen hundred and forty-one.'

The map made by John Bidwell, so far as it showed the land claimed by Sutter, was copied from the map accompanying the petition of Sutter in the archives of the country.

Mr. Wills, for the United States, appellants: The question before the court is, where shall the eleven leagues of land confirmed to Sutter be located? The question can be answered only by the application of established principles to the facts of the case.

I. The first principle which must be applied is this, that the rights of Sutter's vendees must be determined by the rights of Sutter himself, and the lands confirmed to him located in the same manner as if he were the only party before the court.

II. The second principle which must be applied is, the conclusiveness of the final decree of confirmation, precluding all inquiry into the original merits of the case. This principle was applied by this court in United States v. Halleck.

III. The third principle which must be applied is, that, subject to the previous principles and rules of location, the eleven leagues of land confirmed to Sutter, must be located 'according to the laws of the United States;' that is, according to the executive regulations established by the General Land Office for the location of private land claims in California. This is required by one clause of the mandate of the court. It is also required by the doctrine of this court in the first decision of United States v. Fossat.

The regulations require,--

1st. That the location and survey shall be made in a body, and in a compact form, according to the lines of the public surveys.

2d. That in cases of sales by the original grantee, they shall be treated as evidence of an election by him, to that extent, of location of the claim confirmed; provided compactness of form and conformity to the lines of the public surveys be preserved. These must be preserved, even to the exclusion, if necessary, of any of the sales, for the reason that the original claimants themselves are subject to such regulations for the location of their grants as may be prescribed under the laws of the United States, and their vendees, of course, hold in like manner.

These requirements apply to the location of the Sutter grant, wherever it may be attempted to be located, whether at the upper end, at the lower end, or in the middle of the tract of country indicated by the sketch accompanying the grant. They cannot be fulfilled by any attempt at a detached, or scattered, or long-drawn location of the grant, made in this case, for sixty miles along the river, in a spirit of compromise, partly at the upper end, partly at the lower end, and partly in the middle. The grant must be located in a compact body, wholly at whatever point of location may be made necessary by the decree and by the other facts controlling the location. If the location is include the north end of the tract, then it must begin there, and extend south in a compact body for quantity. If, on the contrary, the location is to include the south end of the tract, then it must begin there and go north in a compact body for quantity.

The survey approved by the District Court violates these regulations in every particular. It is an ingenious attempt to do the impossible.

Mr. Elihu Johnson, for the intervenor and appellant Gelston.

Mr. J. B. Williams, for intervenors and appellants Algier and others.

Mr. Black, for settlers under the United States: The grant and the confirmation were of lands lying between the Sacramento and the Feather Rivers, above the forks of those rivers and below the Three Peaks. The limits of the grant are precisely the boundaries of what, as is well known, now makes Sutter County. The claimants under Sutter are confined to those limits.

The decree of the Suprem Court was, that Sutter was entitled only to the eleven leagues granted by Alvarado, and that quantity should be taken within the limits set forth in his grant and the accompanying map. The accompanying map mentioned in the decree is of course identical with the accompanying sketch referred to in the grant. This accompanying sketch is part of the grant itself. No other map or sketch can possibly have any just influence in determining the boundaries of the title.

Sutter, it is true, had a place called his fort, which was on the south side of the American River; and there he had workshops and servants, a distillery, mill, tannery, and what not. He cultivated there a large quantity of land, and had many horses and cattle. But he did not ask for a title which would cover the land occupied by him there. On the contrary, he had made improvements on the Feather River many miles higher up the valley. He claimed all the land in that region, and exercised supreme dominion over it. The Hock Farm was the place he had destined for his future home. He did remove most of his stock there in 1841. For one of these places he needed a title as much as for the other; he had no grant for either. He felt secure of the fort as long as he chose to keep it. But the other land he could not hope to keep without a regular title. He could get a grant for only eleven leagues, and that was less than he wanted up the river. He certainly might have petitioned the governor successfully for eleven leagues on the American River. Perhaps, also, he might lawfully have asked for two different tracts to be conceded by the same grant, one on the American and another up at the Peaks. But he did not do so. He asked for only one tract, and that one he said was situated towards the north, according to the representation in the sketch, and he was careful to exclude the land overflowed in winter. He speaks of it as within New Helvetia. Helvetia is the old name of Switzerland. He was himself a Switzer, a romantic man; a man of great adventure, with vast ideas; a sort of feudal lord. The name of New Helvetia does not signify that the land which he wanted lies at the fort or near it. On the contrary, he called all the country about the fort New Helvetia.

The grant to Sutter is dated the 18th of June, 1841. It does not point to the cultivated and improved lands then occupied by Sutter himself. When the lines come to be specifically described they are given thus: North by the Three Peaks; east by the margins of the Feather River; south by the parallel of 38° 49' 32" (which runs a little above the mouth of the Feather), and west by the Sacramento River. If the grant is to be followed, the case is too clear for controversy. If the grant is to be disregarded, what becomes of the order of this court, that the location shall be made within the limits set forth in the grant?

The description given of the location and boundaries of the tract in the petition of Sutter, in the grant to him, and in several deeds executed by him, exclude all land lying south of the American River.

The 'margins of the Feather River,' as called for on the east, make the banks of the Feather the boundary there. 'MARGIN' means edge, rim, border, not a strip of land. Besides, the margins, whatever they may be, are excluded. The land granted goes to them and leaves them out, not over them, so as to take them in. The banks of the Feather River, on the western side of that stream, are, without doubt, the true eastern limits of the grant. The call for the east boundary would be nonsense if the south line were below the American River.

The south boundary is the parallel of latitude 38° 49' 32", which runs from the Sacramento to the Feather, about eight hundred yards above their confluence. This parallel of latitude is not only fixed as the southern limit of the grant by the express words which define it as such, but the other parts of the grant show conclusively that the true parallel of 38° 49' 32" was in the mind of the parties. It must have been meant by them to put the southern line somewhere above the forks of the rivers, which are the boundaries east and west. Otherwise, the lines would not inclose any land at all.

A large portion of the land included within this survey is overflowed land. The overflowed lands are excluded by the express words of the grant. The city of Sacramento is on ground thus excluded.

Mr. Edwards Woodruff, for intervenors Packard and Woodruff: The survey made by Von Schmidt, deputy surveyor, in 1859, which was approved by the Surveyor-General of California, February 18, 1860, and afterwards set aside by the District Court, was correct, and should be approved.

I. It conforms to the mandate of this court; it embraces two leagues of land south of the American River, and nine leagues on the margins of Feather River. In this respect it follows the deposition of Vioget, to which the mandate refers.

II. That the land south of the American River was properly included, follows from the language of the decree both of the District Court and of this court; the evidence showing that Sutter solicited this land in his petition, and that the same was granted to him, is briefly stated in the opinion of the court reported in 21 Howard, 170. Besides this, the grant issued to William A. Leidesdorf by the Mexican Governor of California on the 8th of October, 1844, shows the understanding as to the location of the land granted to Sutter of the highest public officer in California at the time, to whose charge the disposition of the public domain of the republic in the department was intrusted. The tract of land which that grant purports to transfer is situated on the south bank of the American River, and is described as 'bounded by the land granted to the colony of Senor Sutter.'

III. That land lying on both banks of the Feather River was also properly included, is manifest on inspection of the decree of the court below, and of the mandate of this court. They describe the eastern boundary of the eleven leagues 'as the margins of the Feather River inclusive.'

In Ferris v. Coover, the Supreme Court of California, in considering the boundaries of the grant to Sutter, and speaking of the eastern boundary, said:

'The language is peculiar. Feather River is not intended as the boundary, for it would be so designated. It is the margins of that river; land extending along the stream. The language was used to indicate the general limit and course of the eastern line. It does not necessarily mean that the eastern line must terminate with the length of the stream, and cease when the Feather River loses itself in the Sacramento.'

And, in the same case, commenting upon the case of McIver's Lessee v. Walker, the same court said: 'The patents called for land lying on Crow Creek, describing them by course and distance, and referring to a plat annexed. Neither the lines in the certificate of survey, nor the patents, called for crossing Crow Creek; and, if run according to the course and distance given, would not include the creek or any part of it, or the land in possession of the defendant. But the plat annexed represented Crow Creek as passing through the tract, and the plaintiff requested the court to instruct the jury that the lines ought to be run so as to include Crow Creek and the lands in possession of the defendants. The instruction was refused, and the defendants had judgment. The refusal of the instruction was assigned as error, and the Supreme Court, Mr. Chief Justice Marshall delivering the opinion, held that the lines should be so run as to include both sides of the creek, and conform, as near as possible, to the plat annexed to the patents; and the judgment was reversed.'

The Supreme Court of California held, in that case of Ferris v. Coover, that Sacramento City and the eastern margin of Feather River were both included within the grant to Sutter.

The early colonists introduced by Sutter, composing the families for whose benefit the grant was, in part, issued, were settled by him all along upon the east bank of Feather River.

IV. The lands which are reserved by the terms of the grant are tule or marsh lands. Such is the obvious meaning of the terms used. The Supreme Court of California has had occasion to consider this subject, and in Cornwall v. Calver it said:

'The language of the grant was probably intended as a compliance with the terms of the petition, and has, as we conceive, but one meaning, and that is, to exclude lands which are inundated during the winter, and does not apply to lands which are occasionally flooded upon a rise of the rivers, either from protracted rains in the winter, or the melting of the snows of the Sierra Nevada in the spring. The whole country within the exterior limits of the grant, with the exception of small portions entirely insufficient to meet the quantity specifically granted, is sometimes flooded in this way. The most valuable tracts, both for cultivation and pasturage, are the low lands bordering the streams, over which, every two or three years, the water rests for a few days at a time. It was these lands which, any one in the position of Sutter, at the time he presented his petition to the Government, would naturally have selected, and these lands the survey actually made by Vioget, both on the Sacramento and the Feather Rivers, included. As we read the petition of Sutter, he solicits the eleven leagues, excluding the land which is periodically in the winter inundated, that is, the lands which are regularly inundated during the winter, and refers only to what are known as tule lands. No other lands will meet the terms of the petition. These lands are regularly, periodically every winter, inundated. The low lands which are not tule lands, are not thus inundated every winter, but only occasionally-often at intervals of three and four years. The tule lands remain, too, inundated to a greater or less extent during the entire winter and spring-until the waters of the Sacramento and Feather Rivers subside to their lowest point. The least rise from the first rains of much length in the winter, covers them with water. They are unfit for cultivation without draining. Within the exterior limits of the grant to Sutter, there is an immense tract of these tule lands, and it is to them that the reservation applies.'

The land upon which the city of Sacramento is built, is sometimes overflowed to the depth of several feet, but the water only remains a few days. The land is not tule or marsh land.

V. The topographical character and formation of the country included within the description in the grant, and delineated upon the map accompanying the petition, is such that the location of the eleven leagues of land must necessarily be made as by the survey of Von Schmidt, that it is so as to embrace two leagues south of the American River, and the remaining nine leagues upon the margins of the Feather River, or else the whole eleven leagues must be located in one body upon the margins of the Feather River, as much upon the one side of said river as upon the other, and above the Canadian Ford. This is matter of common knowledge in California. No other location than the one or the other of the above can be made, so as to meet the requirements of the grant and map (which exclude tule and swamp lands), in consequence of the peculiar character and conformation of that region of country.

Any location of the whole eleven leagues between the Buttes and the Feather and Sacramento Rivers, which is what is asked for by Mr. Black, would be contrary to the express terms, intent and meaning of the grant, because it would necessarily include many thousand acres of tule and swamp land.

VI. All the courts of the State of California and of the United States, which have ever passed upon the grant to Sutter, have held, that it included land south of the American River, and also, on both sides of Feather River. The Board of Land Commissioners, the United States District Court, and this court, have so held. The Supreme Court of the State has so held in numerous cases. In Morton v. Folger, referred to below, the court said:

'Upon the land supposed to be contained within the grant to Sutter, two cities are built; one of them the second in population and wealth of the State; and it is a matter perfectly notorious, that residents of those cities, and occupiers of land lying between them, numbered by thousands, have taken conveyances under Sutter, and expended their money in buildings and other improvements, relying upon the survey and maps of Vioget, as evidence that their property was situated within the limits of the grant.'

Mr. Justice NELSON delivered the opinion of the court.

The appeal is from the decree or order of the court confirming a survey and location of the eleven square leagues of land granted to Sutter by Governor Alvarado, on the 18th June, 1841. This grant was confirmed by the Board of Commissioners to Sutter, together with twenty-two other square leagues granted to him by Governor Micheltorena, on the 5th February, 1845. The Board of Commissioners, in their decree, state that 'the land of which confirmation is made is situated on the American, Sacramento, and Feather Rivers, and is known as New Helvetia,' and to be located as described and explained in the depositions of John I. Vioget, filed in the cause: 'On the south by a line drawn due east from Sacramento River, so as to touch the most southerly point of a pond or laguna situated near said river, and about five miles south of the American River, as represented on the maps filed in the case, marked B. and B. P. L., exhibit to the deposition of Juan B. Alvarado, March 15, 1855, which line is also marked on said map, Lindero latitud norte 38° 49' 32"; on the north by a line drawn due east from the Sacramento River to the southern base of the mountains known as the Buttes, and represented on the said map by the name of Los Tres Picos; and from thence until it intersects the eastern boundary of the tract, as represented on said map and described in the grant, and in the depositions of said Vioget; on the west by said river Sacramento, and on the east by the margins of the Feather River inclusive.' 'For a more particular description, reference to be had to the copies of the grants A. and C., to the map marked B., and to the depositions of John J. Vioget and Juan B. Alvarado, all of which are filed among the papers in the case.' The United States appealed from this decree to the District Court, in which considerable additional testimony was taken on the title and boundaries; and, after argument, the court affirmed the decree of the Board of Commissioners substantially in the words of that decree. From this decree an appeal was taken to this court, and after argument the decree of the District Court was affirmed as to the grant of eleven square leagues, and reversed as to the twenty-two granted by Micheltorena.

The mandate of this court, sent down to the District Court to be executed, recites the decree of that court in hoec verba, and then proceeds: 'On consideration whereof, it is now ordered, adjudged and decreed by this court, that so much of the decree of the said District Court as confirms the claim of John A. Sutter to the eleven square leagues of land, situated on the American, Sacramento and Feather Rivers, known by the name of New Helvetia, and which was granted to the said John A. Sutter by Governor Juan B. Alvarado, on the 18th of June, 1841, as set forth and described in said decree, be and the same is hereby affirmed,' and the residue of the decree, in so far as it confirms the twenty-two square leagues to John A. Sutter by Micheltorena, be reversed, 'and that this cause be and the same is hereby remanded to the said District Court for further proceedings to be had therein in conformity to the opinion of this court.'

The first survey and location of the eleven leagues, in pursuance of the mandate, was made by A. W. Von Schmidt, in 1859, a deputy surveyor, under the instructions of J. W. Mandeville, the Surveyor-General of the United States. This survey was approved by this officer February 18th, 1860, and a copy filed in the District Court the 27th of the same month, in pursuance of an order of the court. Numerous objections were taken to this survey, by various persons interested in the location of the grant, and a volume of evidence produced before the court impeaching and supporting the correctness of the same; and the court, after argument, and a very full and elaborate examination, set aside the survey, and ordered another to be made by the Surveyor-General, in conformity with the opinion expressed.

This second survey was made and approved by this officer on the 11th May, 1863, and was confirmed by the District Court on the same day. From this decree or order of confirmation the United States, and several intervenors under the act of 1860, have appealed to this court.

The mandate of this court must be looked to for the description of the out-boundaries of the grant to Sutter, within which the eleven square leagues of land are to be located. They are given in the mandate as derived from the calls in the grant, the map B. P. L. annexed to the deposition of Juan B. Alvarado, of March 15th, 1855, and the depositions of John J. Vioget. Vioget was a practical engineer and surveyor, and made a survey of the eleven leagues, and also a map of the same in 1840 or 1841, and before the application by Sutter to Alvarado for the grant, and with a view to that application. The map accompanied it, and was referred to in the grant, and annexed to it. There were two depositions of Vioget taken, together with a cross-examination as to each at a different time, which were before the Board of Commissioners, and which are referred to in its decree of confirmation, as well as in the decree of the District Court, and in the mandate of this court, in respect to the location of the grant. According to this survey, two square leagues were located, at the request of Sutter, south of the American River; and the remaining nine were located on each side of the Feather River, extending from what was known as the Canadian Ford on that river up the same.

The survey of Von Schmidt, in 1859, and which was approved by the Surveyor-General, and filed in the District Court the 27th February, 1860, was made substantially in conformity with this survey of Vioget, the map of which is referred to in the grant by Alvarado. Von Schmidt had with him the map B. P. L., and also A. P. L., and the depositions of Vioget; and he found no great difficulty, with these evidences before him of the former survey, in locating the two square leagues below the American River, and the nine on the margins of the Feather River, above the Candian Ford, extending them up to the northern line, as laid down on the maps. The general outlines, the deputy surveyor states, as respects both parcels, were the same, and that he ran the lines so as to conform to Vioget's survey as near as practicable. They varied some, as it was necessary to run them on subdivision lines, according to the standing instructions of the Land Department.

Mr. Justice Campbell, in delivering the opinion of the court in this case, when here before, says:

'An engineer and surveyor (Vioget), who prepared maps for the claimant, testifies that, in January, 1841, he made duplicate maps for the claimant of the establishment of New Helvetia, and surveyed eleven leagues at that place; and that in 1843 he traced a copy from one of these, and that copy is produced and filed with the petition. It is a fair conclusion,' he observes, 'from all the evidence, that these maps of Vioget were presented to the Governor, and form the basis of the grant, and make part of it.' The survey here alluded to, we have seen, located two square leagues of the land south of the American River, and the remaining nine on the Feathere River. Again, speaking of the error of the line of latitude marked on the map, he says: 'But the map shows that the line of the southern boundary is south of New Helvetia, and is so related to natural objects represented on it as to be easily determined. Vioget accounts for the error in the designation of the line by the imperfection of the instruments, and proves that a staring corner was fixed and the line traced on the ground. This is better evidence of the true location of the southern line, and conforms to the probability of the case. Upon the whole evidence,' he observes, 'we find that the grant and map filed with the petition in 1852, before the Board of Commissioners, have been proved.'

An objection has been made, that this tract of eleven square legagues has been located in two separate parcels, who leagues below the American, and nine on the Feather River. One answer is, that the original grant with the map accompanying it, thus located it, and which location, as we have seen, has been confirmed by the decree of this court. In the second place, the grant was made of the tract with general out-boundaries, excluding from it lands overflown by the swelling and currents of the rivers, in other words, tule or swamp. According to the evidence of both Vioget and Von Schmidt, the quantity for agricultural or fast land, to be contained in the grant, could not be obtained within the out-boundaries without making the location in two different parcels. The location, by the survey of Von Schmidt, in the two parcels, appears to have been made in as compact a form as was practicable, regard being had to the condition of the grant, to the quantity of land granted, and to the character of the district of country or territory in which it was to be located.

Without pursuing the examination of the case further, we are satisfied that this survey and location by Von Schmidt of the eleven square leagues of land granted to Sutter, is in conformity with the decree and mandate of this court, and should have been accepted and confirmed by the court below. We do not say that it is entirely free from objections, and from our examination of the evidence, we are satisfied that no survey or location of the tract, under the circumstances attending and surrounding the case, could be made that would be free from objection. We refer to the numerous grants made by Sutter of parcels of land, far exceeding the quantity ultimately awarded to him, which, of course, could not be covered by any location that might be made; and also to the case of pre-emption settlers, whose possessions may be included, and would be included, to a greater or less extent, by any possible location consistent with the original decree of confirmation by this court. We fully appreciate the difficulties and embarrassments that surrounded the case upon the evidence in the court below; and the opinions of the learned judge upon the various questions, as they arose, and which appear in the record, furnish abundant evidence of the labor and earnestness with which he endeavored to arrive at right and justice between all parties concerned.

The survey and location, however, which we have felt constrained to adopt, we are inclined to think, will be less disturbing and prejudicial to innocent and bon a fide occupants under grants from Sutter, or on what was supposed to be public lands, than any other that could be made, from the fact that Sutter's possessions, from his first settlement in the country, were south of the American River, and north on the Feather River. These possessions must have been well known to purchasers under him, and also to settlers on what they supposed to be public lands; and in addition to this, the early survey by Vioget, which was made the latter part of 1840, or beginning of 1841, must also have been well known to the settlers in that section of country.

THE DECREE of the court below, confirming the survey and location of the eleven square leagues to Sutter, approved by the Surveyor-General, May 11, 1863, and filed in court the same day as recited in the said decree, and marked, 'Approved, May 11, 1863, Ogden Hoffman, District Judge,' must be REVERSED AND SET ASIDE; and the survey and location of the grant by A. W. Von Schmidt, United States Deputy Surveyor, approved by the Surveyor-General, J. W. Mandeville, February 18th, 1860, and a certified copy filed in the District Court, 27th of the same month, be substituted in its stead; and that the case be remitted to the court below, with directions to confirm this survey as the location of the said grant.

Mr. Justice FIELD did not sit in the case, nor take part in its decision.

title: The Sutter Case/Opinion of the Court


text: Talk:The Sutter Case/Opinion of the Court


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United States v. Pacheco (69 U.S. 587)

APPEAL from the decree of the District Court of the United States for the Northern District of California, confirming the survey and location of a grant made by the Mexican Government of California to Pacheco and another, March 23d, 1844, for three leagues of land, situated on the east side of the Bay of San Francisco.

The decree of the District Court confirming the claim of the grantees under the grant, described the land as 'known by the name of Potrero de los Cerritos, and bounded on the side of the Mission of San Jos e by the Sanjon de los Alisos (Ravine of the Willows), on the north by the creek of the Alameda (Arroyo de la Alameda), and on the west by the bay, containing about three square leagues.' The ravine and the creek here referred to as boundaries connect with each other, and with the bay inclose a tract of greater quantity than the three leagues confirmed. On the side of the bay there is salt or marsh land of about two leagues in extent. The whole of this land is covered by the monthly tides, at the new and full moon, and a part of it is covered by the daily tides.

The decree of the District Court was affirmed on appeal by the Supreme Court. Subsequently, a survey was made of the quantity confirmed, under the act of June 14th, 1860, and approved by the District Court. The survey embraced the greater part of the marsh land which is covered by the monthly tides, and excluded that part or the greater portion of it which is covered by the daily tides. From the decree of approval the United States took the present appeal in the interest of settlers on the upland, and the question before the court was as to the correctness of the survey.

The Government contended that the boundary designated as the bay, should be so run as to include all the marsh land; in other words, that by the bay as a boundary in this case was meant the line of low-water mark; and assuming that the boundaries given in the decree do not close, also contended that a fourth line must be determined by the quantity confirmed, and so drawn as to exactly include it. The respondents insisted that they had the right to locate the quantity granted to them anywhere within the exterior boundaries named in the decree of confirmation, subject only to the condition, that the location be made in one body and in a compact form; which condition was followed in the present case.

The grant referred to a map; but that included both marsh land and upland, and did not indicate that one should be taken before the other.

Mr. Wills, for the United States; Mr. Crane, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: United States v. Pacheco (69 U.S. 587)


text: Talk:United States v. Pacheco (69 U.S. 587)


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United States v. Pacheco (69 U.S. 587)/Opinion of the Court

The decree of the District Court confirms the claim of the respondents to the extent of three square leagues, and describes the land as bounded, on the side of the Mission of San Jos e, by the Sanjon de los Alisos (or Ravine of the Willows); on the north by the Arroyo de la Alameda (creek of the Alameda); and on the west by the Bay of San Francisco. As the ravine and creek connect with each other, the boundaries given inclose on all sides the tract, from which the three leagues are to be taken. On the side of the bay there are about two leagues of salt or marsh land. The whole of this land is covered by the monthly tides at the new and full moon, and a part of the land is covered by the daily tides. And the objection taken to the survey approved by the District Court, is that it does not include this marsh land as part of the tract confirmed. The objection is made on the supposition that the lines given by the decree do not close; that a fourth line is necessary to complete the boundaries, and that this fourth line must be determined by the quantity confirmed, and so drawn as to include it; and that by the bay as a boundary in this case is meant the line of low-water mark.

The position that the lines given do not close, rests upon a mistake as to the fact, and of course requires no other answer than this statement. Within the boundaries given, the respondents had the right to select the location of the quantity confirmed to them, subject only to the restriction that the selection be made in one body and in a compact form. This right of location, possessed by Mexican grantees when a specific quantity is confirmed lying within exterior boundaries embracing a greater quantity, is, in many cases, controlled by their previous residence, or by sales or other disposition made by them of portions of the general tract. The parcels occupied for a residence, or disposed of, are treated as selections already made, from which the parties cannot recede. But in the present case there were no considerations of this kind to control the election of the respondents: and it is not denied that the land embraced by the survey is in one body, and in a compact form.

The position, that by the bay as a boundary is meant, in this case, the line of low-water mark, is equally unfounded. By the common law, the shore of the sea, and, of course, of arms of the sea, is the land between ordinary high and low-water mark, the land over which the daily tides ebb and flow. When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails. And there is nothing in the language of the decree which requires the adoption of any other rule in the present case.

If reference be had to the rule of the civil law, because the bay is given as a boundary in the grant from the Mexican Government, the result will be equally against the position of the appellants.

The map, to which the grant refers, does not determine the point; it includes both marsh land and upland, and does not indicate that either shall be taken by the grantees before the other. The greater part of the marsh land which is covered by the monthly tides is in fact embraced by the survey, and that part which is excluded, or the greator portion of it, is covered by the daily tides. If the grantees were also entitled to the portion excluded, they could have asserted their right by an appeal from the decree approving the survey. It does not lie with the Government to complain of the decree in this particular.

DECREE AFFIRMED.


text: Talk:United States v. Pacheco (69 U.S. 587)/Opinion of the Court