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Hot Springs Cases Rector v. United States/Opinion of the Court

The title to a well-known watering-place in the State of Arkansas, called the Hot Springs, now located in Hot Springs County, has been contested by a number of claimants for nearly half a century. These springs are situated in a narrow valley or ravine between two rocky ridges in one of the lateral ranges of the Ozark Mountains, about sixty miles to the westward of Little Rock. Though not easily accessible, and in a district of country claimed by h e Indians until after the treaty made with the Quapaws in 1818, they were considerably frequented by invalids and others as early as 1810 or 1812; but no permanent settlement was made at the place until a number of years afterwards. Temporary cabins were erected by visitors, and by those who resorted there to dispose of articles needed by visitors, but were only occupied during a portion of the year. The public surveys were not extended to that portion of the country until 1838.

In order to settle, if possible, the controversies which existed, and which seemed interminable, none of the parties having any regular government title, and it being doubtful whether any of them were entitled thereto, Congress, on the thirty-first day of May, 1870, passed the following act:--

'AN ACT in relation to the Hot Springs Reservation in Arkansas.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person claiming title, either legal or equitable, to the whole or any part of the four sections of land constituting what is known as the Hot Springs Reservation, in Hot Springs County, in the State of Arkansas, may institute against the United States in the Court of Claims, and prosecute to final decision, any suit that may be necessary to settle the same: Provided, that no such suits shall be brought at any time after the expiration of ninety days from the passage of this act, and all claims to any part of said reservation upon which suit shall not be brought under the provisions of this act within that time shall be for ever barred.

'SECT. 2. And be it further enacted, That all such suits shall be by petition in the nature of a bill in equity, and shall be conducted and determined in all respects, except as herein otherwise provided, according to the rules and principles of equity practice and jurisprudence in the other courts of the United States; and for the purposes of this act, the Court of Claims is hereby invested with the jurisdiction and powers exercised by courts of equity, so far as may be necessary to give full relief in any suit which may be instituted under the provisions of this act.

'SECT. 3. And be it further enacted, That notice of every suit authorized by this act shall be executed by the delivery of a true copy thereof, with a copy of the petition, to the Attorney-General, whose duty it shall be, for and in behalf of the United States, to demur to or answer the petition therein, within thirty days after the service of such process upon him, unless the court shall, for good cause shown, grant further time for filing the same.

'SECT. 4. And be it further enacted, That if two or more parties claiming the same lands under different titles shall institute separate suits under the provisions of this act, such suits shall be consolidated and tried together, and the court shall determine the question of title and grant all proper relief as between the respective claimants, as well as between each of them and the United States.

'SECT. 5. And be it further enacted, That if, upon the final hearing of any cause provided for in this act, the court shall decide in favor of the United States, it shall order such lands into the possession of a receiver to be appointed by the court, who shall take charge of and rent out the same for the United States, until Congress shall by law direct how the same shall be disposed of, which said receiver shall execute a sufficient bond to be approved by the court, conditioned for the faithful performance of his duties as such, render a strict account of the manner in which he shall have discharged said duties, and of all moneys received by him as a receiver as aforesaid, which shall be by said court approved or rejected accordingly as it may be found correct or not, and pay such moneys into the treasury of the United States; and he shall receive such reasonable compensation for his services as said court may allow; and in case of a failure of said receiver t discharge any duty devolving upon him as such, the court shall have power to enforce the performance of the same by rule and attachment. But if the court shall decide in favor of any claimant, both as against the United States and other claimants, it shall so decree, and proceed by proper process to put such successful claimant in possession of such portion thereof as he may be thus found to be entitled to; and upon the filing of a certified copy of such decree with the Secretary of the Interior, he shall cause a patent to be issued to the party in whose favor such decree shall be rendered for the lands therein adjudged to him: Provided, that either party may within ninety days after the rendition of any final judgment or decree in any suit authorized by this act, carry such suit by appeal to the Supreme Court of the United States, which court is hereby vested with full jurisdiction to hear and determine the same on such appeal, in the same manner and with the same effect as in cases of appeal in equity causes from the circuit courts of the United States: And provided further, that in case the judgment or decree of the Court of Claims in any such suit shall be adverse to the United States, the Attorney-General shall prosecute such appeal within the time above prescribed; and the taking of an appeal from any such judgment or decree shall operate as a supersedeas thereof until the final hearing and judgment of the Supreme Court thereon.

'J. G. BLAINE,

'Speaker of the House of Representatives.

'SCHUYLER COLFAX,

'Vice-President of the United States and President of the     Senate.

'Received by the President May 31, 1870.

'[NOTE BY THE DEPARTMENT OF STATE.-The foregoing act having been presented to the President of the United States for his approval, and not having been returned by him to the House of Congress in which it originated within the time prescribed by the Constitution of the United States, has become a law without his approval.]'

The various parties setting up a claim to the property having, in pursuance of the act, filed their respective petitions in the Court of Claims; and the cases having been consolidated, the court, after a very full investigation, rendered a decree in favor of the United States, and adverse to all the claimants. That decree is brought here by appeal.

Three different titles are set up against the United States; two of them under claims of pre-emption, and one under a New-Madrid location.

1. John C. Hale claims the south-west quarter of section 33, township 2 south, range 19 west, of the fifth principal meridian in Hot Springs County, Ark., embracing the hot springs, which are the object of contention. He claims as representative of John Percifull by right of pre-emption under the fifth section of the act of Congress, passed April 12, 1814, entitled 'An Act for the final adjustment of land-titles in the State of Louisiana and Territory of Missouri.' By this section it was provided, amongst other things, that every person, and the legal representatives of every person, who had actually inhabited and cultivated a tract of land lying in the Territory of Missouri, not rightfully claimed by any other person, and who should not have removed from the Territory, should be entitled to the right of pre-emption in the purchase thereof, under the same restrictions and regulations as directed in a similar act passed Feb. 5, 1813, in relation to Illinois. Those restrictions and regulations were, that the price should be the same as that of other public lands in the Territory; that only one quarter-section should be thus sold to one individual; that it should be bounded by the sectional and divisional lines of the public survey; and that the sale should not embrace lands reserved from sale by former acts, or directed to be sold in town-lots, &c. It was further required by the act of 1813, that every person claiming under the act must make known his claim by delivering a notice in writing to the register of the land-office for the district in which h e land should lie, designating his claim, and to be filed in the office. If it appeared to the satisfaction of the register and receiver that he was duly entitled, he was allowed to enter the land on payment of one-twentieth of the price; but the entry must be made at least two weeks before the time of the commencement of public sales in the district, or the right would be forfeited.

Hale sets forth in his petition that, at the time when the said act was passed,-namely, April 12, 1814,-John Percifull had actually inhabited and cultivated the tract of land embracing the hot springs, and forming a portion of the quarter-section claimed by him; that he had settled upon the same as early as 1809, and had continued to reside thereon and cultivate the same up to the time of the passage of the act; but that he could not comply with the act as to making entry, &c., because the land was not publicly surveyed until the year 1838. That as soon as practicable after the survey was made,-namely, on the 27th of September, 1838,-Sarah and David Percifull, the widow and heir-at-law of John Percifull (who was then deceased), gave notice of the said claim, verified by affidavits, to the register of the proper land-office at Washington, Ark., and applied to the register and receiver to enter the same; but that their application was rejected. That this decision of the register and receiver was subsequently confirmed by the Commissioner of the General Land-Office, on the ground that the hot springs, and four sections of land around the same, had been reserved for the future disposal of the United States by an act of Congress passed April 20, 1832.

The act of 1832, referred to, was an act authorizing the governor of Arkansas Territory to lease the salt springs therein. By the third section of the act, it was enacted that the hot springs in said Territory, together with four sections of land including said springs, as near the centre thereof as may be, shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.

Besides this act which the claimant had to contend with, the Indian title to that portion of the country was not extinguished until Aug. 24, 1818, when it was ceded to the United States by the treaty made with the Quapaws. Attorney-General Butler, in 1836, being applied to for his opinion on the subject, held that none of the lands ceded by that treaty were, or ever had been, subject to pre-emption claims under the act of 1814; because no settlement or cultivation of the lands prior to that act could have been made consistently with the rightful claims of others,-namely, the Quapaw Indians. The land department always acted in conformity with this opinion. And it is difficult to see how a different result could have been reached. It was the declared policy of the government at an early day to prohibit any settlement of lands belonging to the Indians. A proclamation to this effect was issued by the old Congress, Sept. 22, 1783. Journals, vol. iv. p. 275; Land Laws, 1828, p. 388. An enactment of the same purport was made by Congress in 1802, in the act to regulate trade and commerce with the Indians, sect. 5. 2 Stat. 141, 142. After the acquisition of Louisiana, it was repeated in reference to that Territory. Act March 26, 1804 (2 Stat. 289).

But it is contended that this difficulty has been obviated by the act of March 1, 1843 (5 Stat. 603), passed to perfect the titles of land south of the Arkansas River, held under New-Madrid locations and pre-emption rights, especially in reference to the Indian title. By the third section of this act it was enacted that every settler on the public lands south of the Arkansas River should be entitled to the same benefits accruing under the act of 1814 as though they had resided north of said river. What does this mean? We know the fact that the lands north of the Arkansas had been ceded to the United States by the Great and Little Osages by the treaty of 1808, and that the n dian title, therefore, was extinguished in 1814. Does the act mean that the settlers south of the river should have the same benefit as if the Indian title had been extinguished in and prior to 1814? If it meant this, why did it not say it? But supposing that the act had this effect, so that the objection arising from the Indian title was removed, the act still left unshaken the reservation made by the act of 1832. This act is absolute in its terms. It contains no saving clause. It declares that the hot springs shall be reserved for the future disposal of the United States, and that they shall not be entered, located, or appropriated for any other purpose whatever. This positive prohibition would have prevented the representatives of Percifull from availing themselves of any benefit which the removal of the obstacle arising from the Indian title gave them. Entry and location were still necessary to give them title.

The counsel for Hale, however, strenuously contends that the act of 1843 was intended to validate the pre-emption claim of Percifull to the property in question, and that it must be construed to effect a repeal of the act of 1832 by implication. In favor of this view he alleges as a fact that this was the only case to which the act could apply. We cannot know this. There is nothing on the face of the act to indicate it. If it was intended to repeal the act of 1832, and to confirm Percifull's title, why was it not so expressed? A plain word or two would have done it. If such had been the legislative intent, we cannot believe that this intent would have been left in such deep obscurity, and dependent on so many implications. The act of 1832 expressed very clearly the intent of Congress to reserve the hot springs from private appropriation. If the act of 1843 was intended to revoke this reservation, it ought to have been expressed with like clearness.

But besides these legal obstacles in the way of this claim, it is not clear, from the evidence, that Percifull came within the description of the act of 1814. He resorted to the hot springs temporarily during the visiting season, to deal in such articles as the persons who frequented the place for their health needed. When they left he left. If he erected shanties or cabins, it was not for the purpose of permanent residence, but for temporary accommodation. His actual residence was several miles distant. There is no clear evidence of an intent on his part, at that time (1814), or previously, to make this retired spot in the Indian country his home.

We think this claim cannot be maintained either at law or in equity. Whatever hardship exists in the case must be submitted to the just consideration of the government.

2. William H. Gaines and wife and others, as heirs of one Ludovicus Belding, claim the same quarter-section as is claimed by Hale, by virtue of an alleged residence and settlement on the land in 1829 and 1830, under the pre-emption act of May 29, 1830 (4 Stat. 420). This was a general act, and declared that every settler or occupant of the public lands prior to its passage, who was then in possession, and cultivated any part thereof in the year 1829, might enter with the register of the land-office for the district in which such lands should lie, by legal subdivisions, any number of acres not more than one hundred and sixty, or a quarter-section, to include his improvements, upon paying to the United States the minimum price; with a proviso that no entry or sale of any land should be made under the act, which should have been reserved for the use of the United States, or either of the States. Other provisions of the act as well as that here recited demonstrate that it was only intended to apply to lands which had been publicly surveyed. By its very language it could apply to no other. It evidently did not apply to the lands in question. They were not surveyed until 1838. The act contained the further provision, that it should remain in force for one year. It ceased to have effect, therefore, on the 29th of May, 8 31. On the 20th of April, 1832, the act was passed reserving the hot springs. But the heirs of Belding rely on the act of July 14, 1832 (4 Stat. 603), by which it was declared, that all occupants and settlers upon the public lands of the United States, who were entitled to a pre-emption according to the act of 1830, and had not been able to make proof and enter the same within the time limited therein, in consequence of the public surveys not having been made and returned, or where the land was not attached to any land district, or where the same had been reserved from sale on account of a disputed boundary between any State and Territory, should be permitted to enter said lands on the same conditions, in every respect, as were prescribed in that act, within one year after the surveys were made, &c. It is difficult to see how this act can aid the claimants. The conditions of the act of 1830 are not only not waived, but they are expressly reimposed. One of those conditions, as seen above, was, that no entry or sale of any land should be made which should have been reserved for the use of the United States, or either of the States. This very thing had been done by the reservation of the hot springs by the act of 1832. No vested right had accrued to Belding before that reservation, for the pre-emption act of 1830 did not extend to the lands in question until the passage of the act of July, 1832, even if a vested right could be set up against the government before entry and location. The counsel for the claimants, however, bases an ingenious argument upon that phrase in the act reserving the hot springs, by which they are reserved 'for the future disposal of the United States.' He supposes that this differs from a reservation 'to the United States.' And as they are only reserved for future disposal, it may well be said that such disposal was made by the act of July 14, 1832, in subjecting them to the right of pre-emption given by the act of 1830. But this argument is too far-fetched and circuitous. In the first place, we think that a reservation for the future disposal of the United States was a reservation to the United States. And, in the next place, that Congress could hardly have entertained an intent to dispose of the Hot Springs Reservation by any such general phraseology as that which was employed in the act of July 14, 1832. Certain reservations are expressly referred to in the act as no longer to be in the way of pre-emption; and the express mention of these makes the omission of others more emphatic. The argument of the counsel would have the effect of defeating all governmental reservations made between April, 1830, and July, 1832; for the United States had the power of disposing of all of them, whether expressly retained or not.

Without referring, therefore, to the character of Belding's occupation, his want of title, either legal or equitable, is manifest upon the face of the statutes under which he claims, taken in connection with the act of April 20, 1832, reserving the property to the government. If it were necessary to examine his mode of occupation, it would be open to some very just criticism, for which it is sufficient to refer to the opinion of the court below.

3. The remaining title is that claimed by Henry M. Rector (and, under him, Russell), under a New-Madrid location, in right of Francis Langlois. The earthquake, or succession of earthquakes, which occurred along the Mississippi below the mouth of the Ohio in 1811 and 1812, was particularly disastrous to the county and village of New Madrid, in Missouri Territory (then the District of Louisiana), leaving a large portion of the land now known as the 'sunk country' under water. For the relief of the inhabitants, Congress, on the 17th of February, 1815, passed an act authorizing those whose lands had been materially injured by earthquakes to locate the like quantity of land on any of the public lands of the said Territory, the sale of which was authorized by law. It was provided, however, that no person should be permitted to locate a greater quantity than he had before, except where that was less than one hundred and sixty acres, and, in no case, a greater quantity than six hundred and forty acres; and that, in every case where such location should be made according to the provisions of the act, the title of the person or persons to the land injured should revert to and become absolutely vested in the United States. By the second section of the act, proof of the applicant's title to the lands injured was required to be made to the recorder of land-titles for the Territory of Missouri, who thereupon was to issue a certificate of the party's right. A location being selected, and the certificate being presented to the principal deputy-surveyor of the Territory, it became his duty to cause a survey thereof to be made, and to return a plat of the location made to the recorder, together with a notice in writing designating the tract thus located, and the name of the claimant, on whose behalf it was made, which notice and plat the recorder was required to have recorded in his office. By the third section, it was made the duty of the recorder to transmit a report of the claims allowed, and locations made under the act, to the Commissioner of the General Land-Office, and to deliver to the party a certificate stating the circumstances of the case, and that he was entitled to a patent for the tract designated. This certificate being presented to the land-office, a patent was issued for the land.

These are the substantial provisions of the act. As apparent on its face, it required the following steps to be taken:--

1. Application to the recorder of land-titles, showing the party's claim, and praying a certificate of location.

2. Certificate of location issued by the recorder, showing the amount of land to which the applicant was entitled.

3. Application to the surveyor, presenting the certificate of location, and designating the lands which the party desired to appropriate.

4. Survey and plat made by the surveyor.

5. Return of the survey and plat to the recorder of land-titles to be filed and recorded, with a notice designating the tract located and the name of the claimant.

6. Certificate of the recorder, stating the facts, and that the party was entitled to a patent.

7. Transmission of this certificate to the General Land-Office.

8. The patent.

In addition to these requisites, the land thus appropriated must be located on the public lands of the Territory the sale of which was authorized by law.

It is shown by the claimant that Francis Langlois was the owner of a tract of two hundred arpents of land (about one hundred and seventy acres), in the county of New Madrid, which was materially injured by the earthquakes. It is also satisfactorily shown that application was made on his behalf on the 26th of November, 1818, to the recorder of land-titles at St. Louis, for a certificate of location of a like quantity of lands; and that the said recorder did, on that day, grant and issue to him a certificate accordingly (being certificate No. 467), stating that Langlois or his legal representatives were entitled to locate two hundred arpents of land on any of the public lands of the Territory of Missouri the sale of which was authorized by law. It also seems that Langlois, at the same time, by his attorney, executed a release to the United States of his said lands in New Madrid. As this, however, was not necessary, inasmuch as the New-Madrid land would revert to the United States on the completion of the substituted title to other lands of like amount, under the act, it could have no effect on the validity of Langlois's title to the lands which he sought in exchange therefor. The certificate of location thus procured from the recorder was subsequently assigned to other parties, and came to the hands of Samuel Hammond and Elias Rector, under whom the present claimant deraigns title. In January, 1819, Hammond and Rector made formal application to the surveyor-general (the officer who succeeded the principal deputy-surveyor) for the entry of two hundred arpents of land to satisfy certificate No. 467, to be surveyed in a square tract, with lines corresponding to the cardinal points of the compass so as to include the said hot springs, as near the centre of the square as circumstances would admit. This application was in writing, and was filed in the office of the surveyor-general, who directed James S.C.onway, a deputy-surveyor, to make the survey. Thereupon Conway made the survey as requested, and on the 16th of July, 1820, made out a plat and descriptive statement of the same, which he numbered 'Survey No. 2903, Certificate 467.' This survey was deposited by the deputy in the office of the surveyor-general at St. Louis; but it was not recognized or recorded by the surveyor-general, nor was it returned to the recorder of land-titles. Of course no patent was obtained upon it.

Subsequently, in 1838, when the public surveys were extended to that region, the then surveyor-general in his instructions to the deputy-surveyor who prosecuted the work, whether on Rector's application does not clearly appear, directed him to survey for Francis Langlois or his legal representatives a tract of two hundred arpents, having the main spring in the centre, according to the location of New-Madrid certificate No. 467, which would be furnished to him. The survey was made and returned accordingly, and duly returned to the office of the recorder of land-titles, who issued a patent certificate thereon. No patent, however, was ever issued on this location, as it was made subsequent to the act of April 20, 1832, reserving the hot springs and surrounding lands to the United States. This act clearly rendered void all subsequent appropriations of land, unless it was repealed by the act of 1843 before referred to. The first section of that act declared that the locations of warrants issued under the act of Feb. 17, 1815 (relating to sufferers at New Madrid), on the south side of the Arkansas River, if made in pursuance of the provisions of that act in other respects, should be perfected into grants in like manner as if the Indian title to the lands on the south side of said river had been completely extinguished at the time of the passage of said act.

Attorney-General Cushing, in an opinion on this title given in 1854, pertinently remarks that the only obstacle removed from the New-Madrid locations by this act was that of the existence of the Indian title at the time of the passage of the act of 1815. No such title existed when the survey was subsequently made; and if that were the only objection to the title in question, it would be entitled to recognition. But there stands the act of 1832 reserving the lands to the United States. Unless, therefore, the title of Rector, or those whose estate he represents, became fixed and vested, as against the government, before the passage of that act, so as to make the act obnoxious to the objection of taking private property without just compensation, it cannot be maintained. Hence it is all important to ascertain the effect of the survey made for Hammond and Rector in 1820.

As before observed, that survey was not recognized nor recorded in the surveyor-general's office, nor returned to, nor recorded in, the office of the recorder of land-titles. It is proper to consider the reasons why this was not done.

The difficulty was this: The act for the relief of the sufferers of New Madrid required that the lands to be given to them in exchange for their injured lands should be located on public lands of the Territory 'the sale of which was authorized by law.' Mr. Wirt, the then attorney-general, gave it as his opinion that no lands were authorized by law to be sold which had not been publicly surveyed, according to the general system of sections and townships; and as the region in which the hot springs were located was subject to the Indian title until 1818, and had never been publicly surveyed, no lands could be located there under a New-Madrid claim in 1820, whn the attempt was made by Hammond and Rector as above stated. This opinion of the Attorney-General was followed by the General Land-Office, and patents were refused for any lands thus attempted to be located. Hence the surveyor-general did not recognize the survey of Conway, and never returned it to the recorder. Vide Wirt's Opinions, 1 Opin. 361, 372.

But on the 26th of April, 1822, Congress passed an act, entitled 'An Act to perfect certain locations and sales of public lands in Missouri,' by which it was enacted that the locations theretofore made of warrants issued under the act of Feb. 15, 1815 (the act for the relief of the New-Madrid sufferers), if made in pursuance of the provisions of that act in other respects, should be perfected into grants in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys; and the sales of fractions of the public lands theretofore created by such locations should be as valid and binding on the United States as if such fractions had been made by rivers or other natural obstructions: and the second section of the act declared that thereafter the holders and locators of such warrants should be bound, in locating them, to conform to the sectional and quarter-sectional lines of the public surveys; and that all such warrants should be located within one year after the passage of the act.

In delivering the opinion of this court in Barry v. Gamble, 3 How. 52, where the construction and effect of this act were brought under review, Mr. Justice Catron considered that the act only had reference to lands which had not been surveyed when the imperfect locations were made and had been surveyed prior to the passage of the act; for, in making provision for the fractions created by such irregular surveys, reference is only made to fractions 'heretofore created.' If this view of the act is correct, it decides the case; for the public surveys were not extended to these lands until long after 1822,-namely, 1838. As this was not the point involved in that case, however, it is proper to look further in reference to the effect of the Hammond and Rector survey of 1820.

The petitioner's counsel insist that the act of 1822 removed the objection that the location did not conform to the public surveys, without reference to the time when those surveys were or might be made, whether before or after the date of the act.

Conceding for the sake of the argument that this may be the true construction of the act, what is it that the act saves? It is 'locations.' 'The location heretofore made, of warrants issued under the act, &c., if made in pursuance of the provisions of that act in other respects, shall be perfected into grants,' &c. By the second section, locations thereafter to be made were to conform to the sectional and quarter-sectional lines. It becomes important, therefore, to know what is meant by a location in the act of 1815. It evidently meant a completed location. When the land became located, the title of the applicant to his New-Madrid lands at once reverted to the government. The words of the act are,--

'In every case where such location shall be made according to the provisions of this act, the title of the person or persons to the land injured as aforesaid shall revert to, and become absolutely vested in, the United States.'

Now, when did this take place? Certainly not on the mere application to the surveyor-general to survey the tract which the party desired to appropriate; nor when the surveyor had planted his last stake or heap of stones on the ground; nor when he had returned home with his notes in his pocket; nor when he had made out his survey and plat. This survey and plat did not belong, the instant they were finished, to the applicant; neither did the land, until something more was done. What was that something more? The act tells us that the surveyor must return the survey and plat, and the notice as to the party for whom the survey was made, to the office of the recorde of land-titles, to be by him filed and recorded. Then, and not till then, the applicant was entitled to a patent. Then the land first became appropriated. It then first appeared on the records of the country as his. This point has been repeatedly adjudged by this court, and has become part of the established land-law of the country, and we should do a great wrong at this late day to shake it. Bagnell v. Broderick, 13 Pet. 436; Stoddard v. Chambers, 2 How. 284; Barry v. Gamble, 3 id. 32; Lessieur v. Price, 12 id. 60; Hale v. Gaines, 22 Id. 144; Rector v. Ashley, 6 Wall. 142; Mackay v. Easton, 19 id. 633. In the last case, the court, Mr. Justice Field delivering the opinion, says as follows:--

'The act of Congress. . . declared that when a location was made under its provisions, the title of the person to the land injured should vest in the United States. It contemplated that there should be a concurrent investiture of title; that the title of the owners of the land injured in New-Madrid County should pass to the United States, and that at the same time the title to the land located in lieu thereof should pass to the claimant, or rather the right of the title, for the strict legal title did not pass until the patent issued; and that this exchange of titles should take place when the claimant obtained his patent certificate, or the right to such certificate, and that he could not acquire until the plat of the survey was returned to the recorder of land-titles. Until the plat was placed in the public depository in the Territory, of evidences of title issuing from the United States, there was no official recognition of the proceedings taken by the claimant which bound the government.'

A brief reference to the history of land-titles in the Louisiana country will show the ground and reason for the importance attached to a return of the survey to the office of the recorder of land-titles. It is well known that the Territory purchased of the French government in 1803 was, in the following session of Congress, divided into two Territories: one called the Territory of Orleans, comprising West Florida and the present State of Louisiana; and the other, called the District of Louisiana, and comprising the whole region west of the Mississippi and north of that State. Act March 26, 1804 (2 Stat. 283). The treaty by which this Territory was acquired, guaranteed, on the part of the United States, to the inhabitants the free enjoyment of their liberty, property, and religion. The land-titles which had been perfected and located by surveys offered no difficulties; but there were many inchoate titles which had never been perfected, which by the laws of France and Spain the claimants had a right to perfect. In order that the government of the United States might know what claims it was bound in good faith to respect, measures were taken to have all outstanding claims brought in and recorded, and located by surveys where these should be necessary. By the act of March 2, 1805 (2 Stat. 324), the Territory of Orleans was divided into two land-districts, for each of which a register was appointed; but for the District of Louisiana an officer was created, called the Recorder of Land-Titles, who continued for many years to exercise important functions in regard to the public lands in the District, even after the appointment of a surveyor, and of registers and receivers, under the general land-laws. The act referred to required every person claiming lands, whether by complete or incomplete title, within a limited time, to deliver to the registers of Orleans, or to the recorder of land-titles of the District of Louisiana, a notice of his claim, with a plat of the tract claimed, and also his grant, order of survey, or other written evidence of his claim; which documents the said registers and recorder respectively were to record in proper books. Claims not so presented and recorded within the proper time were to be barred as against grants from the United States. The act u rther provided for the appointment of two additional persons in each district, to act with the register or recorder as a board of commissioners to examine and decide upon the claims which should be presented; whose duty it was, after deciding, to report their decisions to Congress, and to deposit the same, with all the evidence and documents, in the offices of the register and recorder respectively within whose district the lands lay. At a later period the additional commissioners were dispensed with, and the powers of the board were vested in the register and recorder respectively. The reports of these commissioners, and the acts of Congress confirmatory thereof, formed the basis of the titles derived from the French and Spanish authorities. And this constitution of the office and duty of the recorder of land-titles in the District of Louisiana led to the importance subsequently attached to the return and registration of other surveys in the same office. It was there that the officers of the government looked, or were supposed to look, for all authentic claims to land in the District. No lands were supposed to be appropriated or segregated from the public domain, unless recorded or registered there.

Now the difficulty in this case is, that the survey of 1820 was never returned to the recorder's office, and, therefore, this land never became located within the meaning of the act of 1815, or the act of 1822. It never became segregated from the public domain. It never became so appropriated to the claimants as to give them a vested right, and prevent the operation of the act of April 20, 1832, by which it was reserved to the United States.

But the claimant insists that this was not the fault of Hammond and Rector; that they did all they could do; and that the surveyor-general could not, by neglecting his duty,-namely, that of recording the survey and returning it to the recorder of land-titles,-deprive them of their just rights. But, when the survey was made, the act of 1822 was not in existence: the laws then were, as the Attorney-General held them to be, that unsurveyed lands were not lands the sale of which were authorized by law; and as this doctrine was received and acted upon by the land department of the government, we should not feel authorized at this late day to reverse it. And it is not shown that any further efforts were made to have the location perfected until after the passage of the act of 1832. If at any subsequent time it became the duty of the surveyor-general to return the survey to the recorder's office, no application for that purpose seems to have been made. A clear duty on his part could have been enforced by mandamus, had he refused to perform it. But it is unnecessary to speculate. Nothing further was done; and no vested right accrued under the claim.

In conclusion, we feel bound to decide that none of the claimants are entitled to the lands in question. The claims advanced all depend on one or other of the titles which we have considered; and all are equally untenable. Whatever hardship, if any, may ensue from this declaration of the law of the case, we have no doubt will be duly taken into consideration by the legislative department of the government in dealing with the subject of the future disposition of those lands.

It is just to say that we have been much aided in the investigation of this case by the able arguments of the counsel on both sides, and by the elaborate opinion of the Court of Claims, which supersedes the necessity of our going more into detail in the discussion of the various questions involved.

Decree affirmed.


text: Talk:Hot Springs Cases Rector v. United States/Opinion of the Court

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


text:
Burdell v. Denig

ERROR to the Circuit Court of the United States for the Southern District of Ohio.

Mr. William Lawrence for the plaintiffs in error.

Mr. George Gifford, contra.

The facts are stated in the opinion of the court. The paper therein referred to as having been introduced by the defendant is as follows:--

'Article of agreement made and entered into, this thirteenth day of March, 1860, between Sarah Burdell, of the county of Franklin, in the State of Ohio, and H. Crary, of the same county, witnesseth:--

'That said Sarah Burdell does hereby authorize and empower the said Crary, for the full term of four years and eight months, or from the date hereof until the twelfth day of November, 1864, as fully and completely as she might herself, had not this agreement been entered into, to sell and use, and grant to others the right to use, in the said county of Franklin, A. B. Wilson's sewing-machines, as known and denominated for sewing cloth and other fabrics, patented Nov. 12, 1850, and reissued Jan. 22 and Dec. 9, 1856, and also, the sewing-machine patented by J. M. Singer, together with all the improvements which have been made already, or shall hereafter be made in the same, without additional costs, and also all other sewing-machines of every name and description to which the said Sarah may have power to exercise any control whatever; and the said Sarah hereby covenants and agrees with the said Crary, that during the said term of four years and eight months she will not sell or use, or grant to others the right to sell or use, in the said county of Franklin, the sewing-machines above specified, or any other of any name or kind or description, without the consent of said Crary.

'2. That the said Crary agrees to make out and deliver to the said Sarah Burdell, or her authorized agent or attorney, on the first day of each and every month, a full and accurate report of all sales of sewing-machines of every name, kind, and quality made by him or his agents during the preceding month, stating the first cost of each such machine in the purchase of the same from the manufacturers or their agents until ready for shipping, exclusive of freight and other incidental charges; also, the price at which such machine was sold by said Crary or his agents; and stating, also, the difference between the said first cost of the said machines and the price at which the same were sold, and which difference for the preceding month, on the first day of each month when the said report is delivered, as aforesaid, the said Crary agrees to pay the said Sarah Burdell, or her authorized agent or attorney, thirty-five per centum during the first six months from the date hereof, and forty per centum thereafter, or until the 12th of November, 1864: Provided, however, if the said percentage for any one month during the first four months from the date hereof should not amount to the sum of seventy-five dollars, the said Crary agrees to make it up to the full sum of seventy-five dollars, and the said Sarah agrees that for any such deficiency or difference between the said percentage and the sum of seventy-five dollars the said Crary may reimburse himself out of the first excess of said percentage over one hundred dollars after the expiration of the said four months from the date hereof.

'3. It is agreed by the said Sarah Burdell and the Said Crary that in the prosecution of an injunction to restrain or prevent the sale or use of any sewing-machine in said county of Franklin, in violation of the right, power, and authority hereby vested in the said Crary to sell or use such machine in said county, and in the prosecution of any suit at law for the recovery of damages for the sale hereafter, or for the use of any such sewing-machine hereafter sold, the costs and expense of any such suit at law or in equity shall be equally borne by the said Sarah and the said Crary, each paying one-half of such costs and expenses, and each sharing equally, that is, each being entitled to one-half of the net amount received in any such proceedings, at law or in equity: Provided, that no such injunction shall be applied for, or any such suit at law instituted, without the consent of both parties to this agreement: Provided also, that for the purpose of prosecuting any such suit at law that may be agreed upon by the parties heret, the power and authority herein vested in the said Crary shall remain and continue in full force and effect after the expiration of said term of four years and eight months: Provided also, that in any suits or proceedings at law or in equity which the said Sarah may see fit to institute on account of the use hereafter of any sewing-machines hereafter sold, the said Crary shall not be required to defray any portion of the costs and expenses, or be entitled to any share of the amount so recovered in any suit or proceedings so instituted, as last aforesaid, by said Sarah.

'4. It is agreed that the first report of sales herein provided for shall be made on the first day of May next, and shall include all sales of sewing-machines from this date until the said first day of May.

'Witness our hands and seals this thirteenth day of March, 1860.

(Signed) 'SARAH BURDELL. [SEAL.]

'H. CRARY. [SEAL.]

'In presence of:

'FRANKLIN GALE.'

Mr. JUSTICE MILLER delivered the opinion of the court.

title: Burdell v. Denig


text: Talk:Burdell v. Denig

title: Talk:Burdell v. Denig


text:
Burdell v. Denig/Opinion of the Court

The plaintiffs in error were plaintiffs in the Circuit Court in an action for an infringement of the patent of A. B. Wilson, for a deeding device in sewing-machines. They recovered a judgment for one hundred and twenty-five dollars, but insist that they were entitled to a much larger judgment, of which they were deprived by the rulings of the court in the progress of the trial.

The objections to these rulings will be considered by us under three heads, to which all the assignments of error relate.

1. As to the measure of damages.

Evidence was given tending to prove that plaintiff had advertised to sell their machines, and had actually sold a shopright to use one of them for twelve dollars and fifty cents, and had given a verbal license to another person to use an old machine in his house for five dollars, but afterwards refused to sell or license for Franklin County, and told defendants they desired to retain the use of the machine as a close monopoly. Evidence had also been given as to profits made by defendants. On this testimony they asked the court to instruct the jury that 'this testimony was not sufficient to change the rule of damages from the profits which plaintiffs would have made if they had not been embarrassed by the interference of the defendants, to a mere license-price, because they do not establish a customary charge for the right to use the invention in Franklin County,' which the court refused.

There are two sufficient objections to this prayer:--

First, In cases where profits are the proper measure, it is the profits which the infringer makes, or ought to make, which govern, and not the profits which plaintiff can show that he might have made.

Second, Profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies eminently and mainly to cases in equiry, and is based upon the idea that the infringer shall be converted into a trustee, as to those profits, for the owner of the patent which he infringes,-a principle which it is very difficult to apply in a trial before a jury, but quite appropriate on a reference to a master, who can examine defendant's books and papers, and examine him on oath, as well as all his clerks and employees.

On the other hand, we have repeatedly held that sales of licenses of machines, or of a royalty established, constitute the primary and true criterion of damages in the action at law.

No doubt, in the absence of satisfactory evidence of either class in the forum to which it is most appropriate, the other may be resorted to as one of the elements on which the damages or the compensation may be asertained; but it cannot be admitted, as the prayer which was refused implies, that in an action at law the profits which the other party might have made is the primary or controlling measure of damages. Packet Company v. Sickles, 19 Wall. 617.

2. A paper was introduced in evidence by defendants, signed Sarah Burdell, authorizing H Crary, for the full term of four years, to sell, use, and grant to others the right to use, in said county of Franklin, A. B. Wilson's sewing-machines. It was agreed that the paper should have the same effect as if signed by William Burdell and the other plaintiffs in whom the title was when it was executed. It is too long a paper to insert here, but will be given verbatim by the reporter; and its true construction is the foundation of the alleged error of the court in admitted it, and also in admitting a receipt given to the defendants by said Crary for the use of four of the machines for which they were sued.

It is claimed that the instrument is but a power of attorney revocable at the pleasure of the maker, and that it was so revoked before the receipt given in evidence was executed by Crary.

But we are of a different opinion. We think the instrument is a contract. That Crary acquired rights under it for four years, which, whether he may have so acted or not as to enable plaintiffs to have it rescinded or set aside in a suit in chancery, could not be revoked at their mere volition; and that these rights were such that his receipt for the use of the four machines mentioned in it was a valid acquittance of any claim for the same thing by plaintiffs in this suit.

It is said that the court erred in admitting the receipt in bar of the action, because it was executed after the suit was brought, and could not be so used without a special plea setting it up.

The fallacy of this argument consists in assuming that it was introduced as a bar to the action. It was only used to reduce the amount of the recovery, and not as a complete bar; and as it excluded from the computation of damages only four machines out of a larger number, it was admissible under the general issue, or any other form of plea which left the amount of the recovery in dispute.

We see no error in this branch of the case.

3. The defendants introduced also the following paper, and gave evidence of an assignment by Lowe to Singer & Co., and of a license from Singer & Co. to defendants:--

'In consideration of the sum of eighty dollars, to me paid by J. Payne Lowe, the receipt whereof is acknowledged, I do hereby assign, transfer, and set over unto the said Lowe, his representatives and assigns, the exclusive right to use, and sell to others to be used, in the county of Franklin, in the State of Ohio, Singer's patent sewing-machines, as mentioned in the patent granted to Isaac M. Singer, dated Aug. 12, 1851, together with the right to have the said machines delivered to be used, or sold to be used, in the said county of Franklin, in the State of Ohio.

'And I hereby covenant that I have good right to make the assignment aforesaid.

'In witness whereof I have hereunto set my hand and seal, this fourth day of February, A.D. 1857.

'WM. BURDELL. [SEAL.]'

Evidence was also given tending to show that the machines called Singer machines, used by the defendants, were made as Singer machines had always been made.

And after all the testimony was closed, the plaintiff asked the court to instruct the jury that the license of Burdell to J. Payne Lowe, of the 4th of February, 1857, did not authorize him, and those deriving rights under that license, to use, in the machine known and called Singer machine, in said county of Franklin, the feeding devise patented to A. B. Wilson, which the court refused to give; but did charge the jury that the said license authorized the said Lowe, and all claiming title from him, to use in Franklin County the Singer machine, with a feeding device operating upon the principle and plan of that patented to Wilson: to which refusal of the court to charge as asked, and to the said charge as given, the plaintiffs then and there excepted.

In defence of this ruling, it is said that Burdell never had any interest in the Singer patent; that the instrument called the Singer machine, which was in use when Burdell made the above assignment to Loe, was a Singer machine with the Wilson feeding device; and that, as Burdell did own the patent for this device, what he intended to assign was the right to use the Singer machine with that device. It is certainly true, that, in construing a written instrument, it is necessary and admissible to look to all the surrounding circumstances of the transaction which are necessary to discover its meaning. And it may be admitted, that, if the facts above stated were conceded to be true, it would follow that the reasonable construction of the contract would be such as the court held it to be. The refusal of the court to give the instruction asked by counsel for plaintiffs was, therefore, justifiable.

But these facts were not conceded by plaintiffs. Nor does the bill of exceptions say that they were proved. It says nothing at all about Burdell's interest or want of interest in the Singer patent; and in regard to use of the Wilson feeding device in the Singer machine, it says no more than that there was evidence tending to prove that it had always been so used in all these machines.

If these things were not proved, then there was no ground for the construction of the contract given by the court; and whether they were proved or not, was a matter for the jury and not for the court to decide. The jury may not have believed the witnesses; or, if believed, may not have found that their testimony established what the bill of exceptions declares it tended to prove. The court, therefore, in telling the jury peremptorily, on this testimony, that the license to Lowe did authorize him to use the Singer machine with a feeding device operating upon the principle and plan of that patented by Wilson, took away from the jury the right to weigh that testimony. If the judge had said, that, if they believed these facts to be established, then the license to Lowe authorized the use of the Wilson device in the Singer machine, we would affirm the judgment; but because he, in this respect, assumed a function which belonged to the jury, and for that reason alone, the

Judgment must be reversed and a new trial awarded.

title: Burdell v. Denig/Opinion of the Court


text: Talk:Burdell v. Denig/Opinion of the Court


text:
McStay v. Friedman

MOTION to dismiss a writ of error to the Supreme Court of the State of California.

Mr. Aaron A. Sargent for the defendant in error, in support of the motion.

Mr. W. Irvine, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: McStay v. Friedman


text: Talk:McStay v. Friedman

title: Talk:McStay v. Friedman


text:
McStay v. Friedman/Opinion of the Court

This was an action of ejectment brought by Friedman to recover the possession of a certain parcel of the Pueblo lands confirmed to the city of San Francisco by the act of Congress passed March 8, 1866 (14 Stat. 4). He did not attempt to connect himself with the city title, but relied entirely upon his alleged prior possession and that of his grantors.

The defendants, who are the plaintiffs in error, set up in their answer, as defences, (1) adverse possession, with specifications to bring themselves within the operation of the Statute of Limitations; and (2) the title of the city of San Francisco under the act of Congress, and an assignment of that title to themselves, pursuant to the provisions of an ordinance of the city and an act of the legislature of California.

At the trial no question was raised as to the validity or operative effect of the act of Congress. The effort on the part of the plaintiffs in error seems to have been (1) to establish their defence under the Statute of Limitations; and (2) to prove such possession as would, according to their claim, transfer the city title to them under the operation of the city ordinance and the act of the legislature.

No Federal question was involved in the decision of the Supreme Court. The city title was not drawn in question. The real controversy was as to the transfer of that title to the plaintiffs in error; and this did not depend upon the 'Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States.' The cs e is, therefore, in all essential particulars, like that of Romie et al. v. Casanova, 91 U.S. 379; and the writ must be

Dismissed for want of jurisdiction.

title: McStay v. Friedman/Opinion of the Court


text: Talk:McStay v. Friedman/Opinion of the Court


text:
Hammond v. Mason and Hamlin Organ Company

APPEAL from the Circuit Court of the United States for the District of Massachusetts.

Mr. B. E. Valentine for the appellants.

Mr. Frederick H. Betts, contra.

MR. JUSTICE MILLER delivered the opinion of the court.


text: Talk:Hammond v. Mason and Hamlin Organ Company


text:
Hammond v. Mason and Hamlin Organ Company/Opinion of the Court

On the eighteenth day of November, 1856, a patent issued to Lafayette Louis for an invention which produced a tremolo in the musical notes of melodeons or reed instruments, and which has since become known as the tremolo attachment. Louis surrendered and obtained reissues of this patent on the twenty-sixth day of February, 1867, and again on the twenty-sixth day of May, 1868; and after his death his wife, who was his administratrix, obtained in July, 1871, what appears to have been both a reissue and a renewal for seven years of the same patent, the whole right in which she assigned to plaintiffs May 30, 1872.

Whereupon the present suit, which is a bill in chancery, is brought against the defendants, as infringers, for an injunction and for an account of profits, and other relief.

The defendants, not denying the allegation of the use of the invention, interpose a plea; and on this plea the case was heard and a decree rendered dismissing the bill.

The plea sets up the right to use the invention described in the reissued patent of 1872, in defendants, as shown by five several written instruments, signed by Louis in his lifetime, which were made parts of the plea as exhibits A, B, C, D, and E.

The first of these is a contract between said Louis and Henry Mason and Emmons Hamlin, for the use by the latter in their melodeons, of the original invention of Louis, and is dated April 10, 1861. Exhibit B is a copy of an application by Louis for a patent for an improvement in his tremolo attachment, with the accompanying specifications, and is dated Sept. 25, 1868. Exhibits C, D, and E are all dated the same day as this application, and are contracts between said Louis and the Mason and Hamlin Organ Company for the sale of this improvement, and its use in connection with the invention already patented in 1856, and reissued in 1867 and 1868.

Exhibit A is a contract by which Louis agrees to furnish to Mason and Hamlin his patent tremolo attachment in such numbers and as they may order them, at one dollar for each attachment; and if he fails to furnish them as ordered, Mason and Hamlin are licensed to make, use, and sell the same in connection with all musical instruments manufactured by them anywhere in the United States. The closing paragraph of this contract declares that 'the said parties mutually bind themselves and their legal representatives to the covenants and agreements herein contained, to continue in force until the full expiration of the term for which said letters-patent have been granted, and during such period as the same may be hereafter renewed or extended.'

It is not alleged that any of the subsequent contracts abogated this one. It cannot be denied that this contract extends to the renewal of the patent which was assigned to plaintiffs. The only question on this branch of the plea is, whether the Mason and Hamlin Organ Company are entitled to the rights of Mason and Hamlin.

As the case was decided on the sufficiency of the plea, its allegations must be taken as true; and all that can be reasonably inferred from those allegations, and from the various exhibits which it makes, must also be held to be true. The plea does allege that the defendants are 'the legal representatives, and successors, and assignees in business and interest, of said Mason and Hamlin.' This allegation seems to be full and specific; and the only doubt of its sufficiency arises as to whether the legal representatives spoken of in the agreement are or can be others than exc utors, administrators, or heirs. Whatever doubt might be entertained on this point, we think is solved by the fact that Louis, in the subsequent contracts of 1868, seems throughout to treat with the corporation as successors of Mason and Hamlin in the contract of 1861. For in exhibit E he sells and assigns to the company the exclusive right to use his supposed improvement under the patent of 1856 and all the subsequent reissues, and as this new improvement required the use of the old, he seems here to recognize the right of the company to control the license he had previously granted to Mason and Hamlin.

We are of opinion, therefore, that the defendant corporation is entitled to the benefit of the contract between Mason and Hamlin, covered by exhibit A, and that this gives them the right to use the attachment under the extention of the original patent now assigned to plaintiffs.

It is said that defendants never demanded these attachments, and, therefore, they had no right to make them.

But the allegation is full that Louis at all times refused to manufacture and furnish the attachment to defendants, and we think under the contract this authorized them to make them for themselves.

The court below, however, rested its decision on another ground, which we think equally conclusive.

As we have already said, Louis signed these contracts with the defendant company on the same day that he made his application for a patent for his improvement in the tremolo. The supposed improvement consisted in a different construction of the parts already patented by him. By the first contract (exhibit C) he sold to the defendant this invention wholly, and authorized the patent to issue to the company. By the second (exhibit D), he licensed them to use this new invention or improvement in connection with his former patents, and in connection with a patent of his of 1862 for an improvement in pianos with melodeon attachments; and the company agreed to pay him a royalty of one dollar each for his new tremolo attachment, at an average of forty attachments per month. The third contract (exhibit E) provides that if the company fail in securing a patent for the improvement sold to them, referring to his original patent and reissues, and to his sale of the later invention, and his claim to use it in connection with the old patents, he grants to the defendants the exclusive right, under the letters-patent already granted, and under any and all reissues thereof, to make, use, and sell the specific mechanism described and set forth in the application for the new patent.

Without elaborating this matter, we concur in the opinion of the Circuit Court, that Louis, having sold this invention, and doubt existing whether the purchasers would obtain a patent for it, intended by this contract and by exhibit D to secure to them the benefit of the exclusive use of that invention, in connection with his first mechanism, so long as the latter was protected by any patent founded on his right an inventor. It was this use for which defendants are sued in this case.

While it is, perhaps, not necessary to decide whether in any case a sale of an invention which is never patented carries with it any thing of value, we are of opinion that the rights growing out of an invention may be sold, and that in the present case the sale, with the right to use it in connection with the existing patent and its reissues or renewals, protects defendants from liability as infringers.

Decree affirmed.


text: Talk:Hammond v. Mason and Hamlin Organ Company/Opinion of the Court


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Page:Triangles of life, and other stories.djvu/32

 behind them, and before the reflections several times, but not the ghost of a ghost of a sign of a smile on either of their screamingly distorted features—their sweet counterfeits. So I concluded there was no frivolity here (though I wondered if these were of the people for whom my agent advised me to write humorous stuff), and I tapped the youth and inquired the way to the Strand.

"The Strained? Oh, yes—the Strained. Take the first turn round that there half-corner, where you see them green buses going round. That Chawnchery Lane. Foller them green buses—they'll take yer right into the Strained. Don't take no notice of them there courts."

I thanked him and went on, but felt that he had hesitated. Then he was at my shoulders again, rather vaguely in the rush and rattle, but with the air of a man who had, on second thought, decided to tell me of something, of no particular importance, but which might be worth my while to know, which had happened, or occurred to him, since we last met.

"That's right. Go on as I tell yer. Foller them green buses, and don't take no notice of them bloody courts."

As if there was a deadly feud of long standing between his tribe and the courts. It must have been deadly, and of considerable previousness, for they don't, as a rule, hint of private or family quarrels to outsiders in England. They say that such and such is " no class " in North London—and that's about all. And, by the way, it was the " Strained " at that time


text:
Hall v. Weare

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Emery A. Storrs for the plaintiffs in error.

Mr. W. Penn Clarke, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Hall v. Weare


text: Talk:Hall v. Weare

title: Talk:Hall v. Weare


text:
Hall v. Weare/Opinion of the Court

This record has been brought up in a shape of which we can hardly speak in too strong termso f disapproval. The bill of exceptions spreads out at length the testimony of numerous witnesses, in regard to which no question arises that we can consider; and exception appears to have been taken to almost every paragraph in the charge. The whole is like a drag-net, bringing up in shapeless mass a portion of what occurred at the trial, apparently in the hope that something might somewhere be found that would justify a reversal of the judgment. The purpose in thus making up the record seems to have been to treat the case here both as a motion for a new trial and as a writ of error, and much of the argument has been directed to showing that the evidence did not justify the verdict that was rendered. Eighteen errors have been assigned, some of them to matters not reviewable in this court, as has often been decided, and others to matters that were quite immaterial, and that could have had no possible effect upon the judgment in the court below. We shall not consider in detail these assignments. It is not necessary to a correct decision of the case. Those that have any apparent soundness only will be noticed.

The plaintiff sued upon two acceptances, together amounting to $4,500, and the defendants pleaded as a set-off a draft for $4,500, drawn by the First National Bank of Cedar Rapids, of which the plaintiff was cashier, upon the First National Bank of Chicago, and protested for non-payment. The draft was dated March 16, 1869. It was drawn in favor of Charles H. Hall, and by him indorsed to the defendants. To these pleas the plaintiff replied that the draft offered to be set off had been obtained from the bank by false and fraudulent representations of Charles H. Hall, the payee, and that the consideration for it had wholly failed; and, further, that the defendants, when they received it, had knowledge of the fraud, and of the failure or consideration. Following the replications, there were rejoinders and surrejoinders; but the replications tendered the only material issues between the parties, and to the maintenance of one side or the other of these issues the evidence was directed. Thus the case was put to the jury by the Circuit Court. The learned judge instructed them as follows:--

'The issues under the pleadings are these: First, that the consideration for the said draft has wholly failed, of which the defendants had notice at the time they received the same, and that it is not now a valid demand against the plaintiff in the hands of the defendants. Second, that the said draft was obtained from the said bank by certain fraudulent acts of the said Charles H. Hall, of which the defendants were cognizant at the time they took the same, and that the said draft is void in the defendants' hands, by reason of said fraud. If either of these issues is found for the plaintiff, he will be entitled to recover.'

This instruction is the first error assigned to the charge. That the issues raised by the pleadings were correctly stated is perfectly plain. In our examination of the voluminous pleas, replications, rejoinders, and surrejoinders, we have been unable to find any other, either tendered or accepted. But it is said the court erred in the instruction, that, if either of the issues was found for the plaintiff, he was entitled to recover. The argument is, that, even if there was a failure of consideration for the $4,500 draft, if the bank did not get for it all it was agreed it should have, the evidence was that the bank subsequently obtained $4,000 as fruits of Charles H. Hall's draft for $5,000 of even date therewith, a part of the proceeds of the discount whereof was the draft attempted to be set off. To understand this, it is necessary to look at the evidence. The $4,500 draft was given as part of the proceeds of a discount of Charles H. Hall's draft for $5,000. Both were dated March 16, 1869. The evidence tended to show, that, when the $5,000 draft was offered for discount, Hall stated falsely that former drafts drawn by him upon the defendants, amounting to $12,000 or $13,000, had been ace pted, and that collaterals had been put up to secure their payment; that he had grain in value equal to or exceeding $20,000, and that he engaged the $5,000 draft would be accepted and secured by collaterals; that such was his arrangement with the defendants. On the faith of these representations and assurances the $5,000 draft was discounted, and the bank's draft for $4,500 was given on account. The former drafts had in fact not been accepted. Collaterals for acceptance had not been put up. Charles H. Hall had the day previous sold his grain, much less in value than he had stated, and the $5,000 draft was dishonored. It was not accepted, and collaterals were not put up for it. Had these been all the facts in evidence, the charge would have been strictly correct. What the bank gave its $4,500 draft for was not the draft it got, but that draft to be accepted and secured by collaterals; and when the defendants refused to accept the $5,000 draft, and put up collaterals, the consideration for the bank's draft failed. This would appear very plainly if Hall had himself sued the bank as drawer of the $4,500 bill. It cannot be pretended for a moment that he could maintain such a suit in the face of such a state of facts. And why not? Obviously for the reason that he failed to give the consideration for the bank's contract which he agreed to give. In other words, because, as between him and the bank, the consideration of the latter's contract had failed or been withheld. And if he could not enforce the bank's contract, certainly the defendants cannot, if at the time they took the draft they knew of the agreement between the drawer and the payee, and knew of the stipulated consideration, or knew of the fraud. And such was substantially the charge to the jury. But the judge overlooked, or did not notice, the subsequent recovery by the bank of $4,000, by suit upon the $5,000 draft, of which there was some evidence. It is true, no point was made of this in the court below. The circuit judge was not asked to instruct the jury as to the effect of a subsequent recovery of a part of the $5,000 draft, if there ever was such a recovery, and there was no averment in the pleadings that the bank or the plaintiff had ever obtained any thing in virtue of that draft. And even if the bank did obtain $4,000 by suit upon Hall's draft, some time after it was discounted, there was still a failure of consideration for the bank's draft to the extent of $1,000; and for this reason the plaintiff, if either of the issues was found in his favor, was entitled to a verdict, so far as the consideration had failed. The instruction complained of, therefore, so far as it was given, was correct. If the defendants desired further instruction respecting the extent of the recovery, it was their duty to ask it. We think, however, the general effect of the charge must have been misleading. It tended to withdraw from the notice of the jury the evidence that the failure of consideration for the bank's draft was only partial. Had the bank made no use of the $5,000 draft, had there been no suit upon it, and no collection of any part of the sum mentioned in it, the jury would have been justified in finding a total failure of consideration for the instrument which the defendant sought to set off. But if Hall's draft has yielded $4,000 to the bank, though that was not the consideration stipulated for, it cannot be said that the consideration of the $4,500 draft has wholly failed. The bank cannot derive a benefit from Hall's draft, and at the same time insist that it got nothing for its own draft. This view of the case, we think, should have been presented to the jury, as bearing upon the amount which the plaintiff was entitled to recover, if the issues, or either of them, were found for him.

We find no other error in the charge. Nor was there any material error in the admission of evidence. There was evidence from which the jury might have inferred that Hall, the defendants, and McAfee were acting in concert, having a common purpose to obti n drafts from the bank, and to cover up Hall's property so that the bank could not reach it. If such was the fact, the acts and declarations of Hall and McAfee in furtherance of the common design were evidence against the defendants. And if that was not so, Hall's declarations and acts were evidence to show his fraud in obtaining the bank draft, and McAfee's declarations were evidence of his fraudulent concert with Hall. Proof of Hall's fraud was legitimate; for it was a protection to the plaintiff, if knowledge of it was brought home to the defendants. The objection to the proof of the contents of the letter from the defendants to Charles H. Hall would be serious, if the letter as proved by the witness could have had any injurious effect upon the defendants' case. But we do not perceive that it could have had any injurious bearing.

It has been assigned for error that the court gave to the plaintiff the opening and close of the argument to the jury. The assignment cannot be sustained. Under the pleadings, the affirmative of the issues framed was upon the plaintiff. He was therefore entitled to the conclusion. But if he was not, the decision of the court awarding it to him is not a subject that will be reviewed here.

The motion for an arrest of judgment was properly overruled. It rested upon no substantial basis, and the refusal to grant a new trial is not assignable in error, as we have often said heretofore.

But, for the error in the charge which we have noticed, the judgment must be reversed.

Judgment reversed, and new trial ordered.

MR. JUSTICE DAVIS did not sit in this case.

title: Hall v. Weare/Opinion of the Court


text: Talk:Hall v. Weare/Opinion of the Court

title: Talk:Hall v. Weare/Opinion of the Court


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Leavenworth Lawrence and Galveston Railroad Company v. United States

APPEAL from the Circuit Court of the United States for the District of Kansas.

This is a bill, filed by the United States against the Leavenworth, Lawrence, and Galveston Railroad Company, to establish its title to certain tracts of land lying within the Osage country in Kansas, which were certified to the Governor of Kansas as forming part of the grant made by Congress to that State, to aid in the construction of certain railroads. The court granted the prayer of the bill, and the company appealed.

The treaty with the Great and Little Osage tribes of Indians of June 2, 1825 (7 Stat. 240), contains the following provision:--

ARTICLE II. 'Within the limits of the country above ceded and relinquished, there shall be reserved to and for the Great and Little Osage tribe or nation aforesaid, so long as they may choose to occupy the same, the following described tract of land.'

The land embraces, with other tracts, that mentioned in the first article of a treaty with those Indians, which was concluded Sept. 29, 1865 (14 Stat. 687). That article is as follows:--

'The tribe of the Great and Little Osage Indians, having now more lands than are necessary for their occupation, and all payments from the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the United States the lands contained within the following boundaries. . . . And, in consideration of the grant and sale to them of the above-described lands, the United States agree to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians in the treasury of the United States; and interest thereon at the rate of five per centum per annum shall be paid to said tribe semi annually, in money, clothing, provisions, or such articles of utility as the Secretary of the Interior may from time to time direct. Said lands shall be surveyed and sold under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws [including any act granting lands to the State of Kansas, in aid of the construction of a railroad through said lands] but no pre-emption claim or homestead settlement shall be recognized; and, after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States, to the credit of the 'civilization fund,' to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States.'

The words in brackets are an amendment adopted by the senate, 26th June, 1866, which the Indians accepted Sept. 21 of that year. The treaty was proclaimed Jan. 21, 1867.

On the 3d of March, 1863, Congress passed 'An Act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of certain railroads and telegraphs in said State' (12 Stat. 772); the first section of which is as follows:--

'That there be, and is hereby, granted to the State of Kansas, for the purpose of aiding in the construction: First, of a railroad and telegraph from the city of Leavenworth, by way of the town of Lawrence, and via the Ohio City crossing of the Osage River, to the southern line of the State in the direction of Galveston Bay, in Texas; with a branch from Lawrence by the valley of the Wakarusa River, to the point on the Atchison, Topeka, and Santa Fe Railroad where said road intersects the Neosho River. Second, of a railroad from the city of Atchison, via Topeka, the capital of said State, to the western line of the State, in the direction of Fort Union and Santa Fe, New Mexico; with a branch from where this last-named road crosses the Neosho, down said Neosho Valley to the point where the said first-named road enters the said Neosho Valley; every alternate section of land, designated by odd numbers, for ten sections in width on each side of said road and each of its branches. But in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purpose aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of pre-emption or homestead settlements have attached as aforesaid; which lands, thus indicated by odd numbers and selected by the direction of the Secretary of the Interior as aforesaid, shall be held by the State of Kansas for the use and purpose aforesaid: Provided, that the land to be so selected shall in no case be located further than twenty miles from the lines of said road and branches: Provided further, that the lands hereby granted for and on account of said road and branches, severally, shall be exclusively applied in the construction of the same, and for no other purpose whatever; and shall be disposed of only as the work progresses through the same, as in this act hereinafter provided: Provided, also, that no part of the land granted by this act shall be applied to aid in the construction of any railroad or part thereof, for the construction of which any previous grant of land or bonds may have been made by Congress: And provided further, that any and all lands heretofore reserved to the United States, by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it mayb e found necessary to locate the routes of said road and branches through such reserved lands; in which case the right of way only shall be granted, subject to the approval of the President of the United States.'The legislature of Kansas, on the 9th of February, 1864, passed an act accepting the grant; and designated the appellant to build the road from Leavenworth to the southern line of the State, and to receive the grant of land upon the prescribed terms and conditions. Its authorized route passed through the Osage lands whereof mention is made in the first article of the treaty of 1865, and a map of the definite location of the road was filed in the General Land-Office, Jan. 2, 1868.

The Commissioner of the General Land-Office, by letter bearing date Jan. 21, 1868, directed the register and receiver of the proper office to withdraw from sale the odd-numbered sections within ten miles of the line of the road.

The fourth section of the law making appropriations for the Indian Department, approved March 3, 1863 (12 Stat. 793), is as follows:--

'That the President of the United States be, and is hereby, authorized to enter into treaties with the several tribes of Indians, respectively, now residing in the State of Kansas, for the extinction of their titles to lands held in common within said State, and for the removal of such Indians of said tribes as hold their lands in common to suitable localities elsewhere within the territorial limits of the United States, and outside the limits of any State.'

On the 10th of April, 1869, Congress passed the following joint resolution (16 Stat. 55):--

'Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, That any bona fide settler residing upon any portion of the lands sold to the United States by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September twenty-ninth, eighteen hundred and sixty-five, and proclaimed January twenty-first, eighteen hundred and sixty-seven, who is a citizen of the United States, or shall have declared his intention to become a citizen of the United States, shall be, and hereby is, entitled to purchase the same, in quantity not exceeding one hundred and sixty acres, at the price of one dollar and twenty-five cents per acres, within two years from the passage of this act, under such rules and regulations as may be prescribed by the Secretary of the Interior: Provided, however, that both the odd and even numbered sections of said lands shall be subject to settlement and sale as above provided: And provided further, that the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for State school purposes, in accordance with the provisions of the act of admission of the State of Kansas: Provided, however, that nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties.'

Settlers made entries lying within the odd-numbered sections, which were set aside and vacated, Jan. 16, 1872, by the Secretary of the Interior, who decided that the appellant had a grant within those lands.

The appellant having constructed its road from its initial point to Thayer, within the ceded territory, and about twenty miles south of its northern boundary; and, desiring to charge its previously located route south of that town, the legislature of Kansas, in January, 1871, asked Congress to allow a relocation of the road.

Congress passed an act, approved April 19, 1871, as follows (17 Stat. 5):--

'An Act to enable the Leavenworth, Lawrence, and Galveston Railroad Company to relocate a portion of its road.

'Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Leavenworth, Lawrence, and Galveston Railroad Company, for the purpose of improving its route and accommodating the country, may relocate ay portion of its road south of the town of Thayer, within the limits of its grant, as prescribed by the act of Congress entitled 'An Act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of certain railroads and telegraphs in said State,' approved March third, eighteen hundred and sixty-three; but not thereby to charge, enlarge, or diminish said land grant.'

Sept. 21, 1871, the Governor of Kansas certified to the Secretary of the Interior that the road of the appellant had been constructed and equipped as required by the act of Congress of March 3, 1863, and that a map of the road had been duly filed, whereupon certified lists of the odd-numbered sections of lands within the railroad limits were made by the proper authority at Washington, and the governor, April 8, 1872, and March 21, 1873, issued to the appellant patents for the lands mentioned in the bill of complaint.

The case was argued by Mr. George F. Edmunds and Mr. P. Phillips for the appellant, and by Mr. Solicitor-General Phillips, Mr. Jeremiah S. Black, and Mr. William Lawrence, for the appellee.

MR. JUSTICE DAVIS delivered the opinion of the court.


text: Talk:Leavenworth Lawrence and Galveston Railroad Company v. United States