text:
Niswanger v. Saunders

SAUNDERS filed a bill in chancery, in the State District Court of Madison County, Ohio, to quiet the title to a tract of land in that commonwealth, in what is called the Virginia Military District, a region north and west of the Ohio, and which, by the act of cession of that territory to the United States and several acts of Congress, was reserved for the Virginia troops upon the Continental establishment of our Revolutionary war. The case was thus: In 1784, in the Book of Entries, kept by the proper officer in the State of Virginia, an entry, No. 70, was made in the name of David Ross & Co., on several military warrants, of one thousand scres of land on the Ohio River, in that part of Virginia then called the Green River Country, and now making Kentucky. The entry was surveyed, the survey returned and recorded; and on the 15th June, 1786, a patent for one thousand acres of land was issued by the Governor of Virginia to Ross accordingly; the warrants themselves having apparently been returned into the land office in Virginia. The warrants had described no specific tracts, but were addressed to the surveyor, authorizing him 'to survey and lay off, in one or more surveys,' the quantity 'set apart for officers and soldiers of the Commonwealth of Virginia.'

It was afterwards ascertained that, in laying off and surveying this one thousand acres, a portion of the land, to wit, six hundred and forty acres of it, had been laid off within the bounds of a well-known body of lands that had been previously granted to Richard Henderson & Co.; and this being the older and better title, Ross lost, or rather never acquired so much of his promised land; that is to say, six hundred and forty acres. This fact being ascertained, a memorandum was subsequently made in the Book of Entries, opposite to entry No. 70, '640 withdrawn, and entered in 197.'

In 1790, Congress passed an act by which the soldiers of the Virginia line, on the Continental establishment, were authorized to obtain titles, on warrants issued to them, in what is now the State of Ohio; that is to say, in that region northwest of the Ohio River, between the rivers Little Miami and Scioto; and, in 1810, an entry was made in the office of the principal surveyor of the Virginia Military District in Ohio of six hundred and forty acres (the exact amount of Ross's patent covered by Henderson's prior grant), upon the same warrants upon which the patent issued in Virginia. On this entry a survey was made in 1817, which was returned and recorded; the Surveyor-General of the Virginia Military District within the State of Ohio certifying that the survey was founded on such and such warrants, which he specified by number and warrantee name, and adding, 'That said warrants were entered originally in a thousand acre entry, No. 70, in the State of Kentucky, &c., and patented to said David Ross, by the State of Virginia, on the 15th of June, 1786; that said survey No. 70, i. e., six hundred and forty acres of it, is withdrawn, by reason of its having been lost by interference with Henderson's grant, and entered and surveyed as above; that said warrants were never before satisfied; and that said patent on which this survey is founded is in my possession not satisfied.' Thus things remained from 1816 till 1837, when a certain Samuel Saunders, the complainant below, entered a portion, to wit, four hundred and twenty-eight acres of this same land, which had been surveyed to Ross; the entry being surveyed on the day it was made. On the 20th November, 1838, a patent was issued by the United States to this Saunders, complainant as above stated, and on the same day another patent to Niswanger, defendant below, in whom had become vested the entry and survey of Ross. This patent to Niswanger, following the surveyor's certificate already mentioned, stated the number of each one of the warrants; 'the same warrants,'-it went on to recite-'having been formerly located in the District of Kentucky, and patented by the Commonwealth of Virginia to the said David Ross, which has since been lost by interference with a prior claim, to wit, Henderson's grant, and the said warrants withdrawn and relocated in the Virginia Military District of Ohio, upon which the said survey is founded.'

A principal defence relied on to the bill below, was that even admitting some irregularity here, in the entry and survey of Ross of 1810, &c., yet as the case was one of great equity, and as an entry and survey had actually been made, the land thus entered and surveyed for Ross was protected from any subsequent entry and survey by others, in virtue of the proviso of an act of Congress passed March 2d, 1807, that Saunders's entry was accordingly void. This proviso enacted, 'that no locations within the above-mentioned tract [the tract in Ohio] shall, after the passage of this act, be made on tracts of land for which patents had previously issued, or which had been previously surveyed, and any patent which may nevertheless be obtained for land located, contrary to the provisions of this section, shall be considered as null and void.' The proviso originally for three years had been subsequently extended.

The case being taken from the court where it originated to the Supreme Court of Ohio, that court, in Saunders v. Niswanger, following the reasoning and argument is a case previously decided by it, Nisewanger v. Wallace, held that the warrants on which the entry of 1810, in Ohio, was made had been 'merged and satisfied' in the previous patent for the 1000 acres in Virginia, and that this being so, they were nullities. The act of the surveyor, the court thought, did not improve the matter. It was a case of want of power in the officer. His authority was limited to a particular subject-matter. He could dispose of lands only upon specified evidence, to wit, a military warrant. Here he had done it on a 'patent.' The return or renewal of a warrant once surrendered was within the power of the Virginia legislature alone. The surveyor had no power to return or to renew, however equitable a claim for such return or renewal might be. By whom or by what authority the memorandum in the Virginia Entry-book, '640 withdrawn, and entered in 197,' was made, did not appear. It was not certified as the official act of any officer in Virginia. If made by the surveyor in Ohio, the question of his power was to be settled. Had the entry of 1810 and the subsequent survey been a case of 'irregularity' only, or even of 'invalidity,' the act of Congress of 1807 might cure it; but is was the case of a proceeding wholly void, a proceeding not based on a subsisting warrant at all, and therefore past the healing power of the statute. The court accordingly decreed that all that was done on Ross's warrants in 1810 and afterwards was a nullity, and that the land should go to Saunders or his heirs. On this part of the decision, which held the act of Congress of 1807 on protection, error was taken to this court, under the 25th section of the Judiciary Act of 1789, which provides that a final judgment or decree in any suit in the highest court of law or equity of a State, where is drawn in question the construction of any clause of a statute of the United States, and the decision is against the title, right, &c., specially set up or claimed by either party under such statute, may be re-examined, &c., in this court.

The question in this court was, therefore,-as one question had been in the Supreme Court of Ohio-whether the entry of 1810 and the survey on it was or was not, under the facts of this case and the operation of the proviso of the act of 1807, to be treated as a nullity.

Mr. Stanberry, by brief, for the appellant: If this case were to be ruled by Ohio decisions and Ohio laws, we should have no standing in this court. But the case arises on a statute of the United States, and the decision below having been against the right set up under it, this court has final authority in the matter. The question rests on precedents here. In Jackson v. Clark, an entry was set up by the defendants, on the land in controversy, made July 19, 1796. The plaintiffs attempted to overcome this entry, by showing that two prior entries had been made upon the same warrants, both of which had been patented. There was no evidence of any withdrawal of the two prior entries, or of any surrender or cancellation of the patents. So that the case presented the question of a re-entry on a satisfied warrant, satisfied by prior entries carried into grant without withdrawal or cancellation. The court sanctions the last entry, and holds, that however irregular or unauthorized it may have been, yet the land covered by it was effectually withdrawn from entry by any other locator. Our entry of 1810 stands upon a better foundation than the entry there held valid, for it appears that the 640 acres were 'withdrawn' from the Kentucky entry; and that the 640 acres so withdrawn had been lost by interference with a prior claim.

The court below decided the case against us, on the ground that our entry of 1810 and the subsequent survey were nullities, and therefore not within the savings of the proviso. They are nullities, say the court, because warrants under which they were made, were satisfied by the original entry of 1784, and merged in the patent granted on that entry. Now, the first answer to this is, that to the extent of the 640 acres in Henderson's Grant, there was no satisfaction, and no merger. The matter may be plainly put thus: The State of Virginia granted to certain soldiers 1000 acres on warrants, to be satisfied by entry or location upon certain lands which the State then owned on the southwest side of the Ohio River. The warrants did not describe or grant any specific tracts. It happened that in laying off and surveying this 1000 acres, 640 acres were laid off within the bounds of a wellknown tract of country called Henderson's Grant. Not an acre of land within that grant belonged to Virginia in 1784. It had been, prior to that date, granted by Virginia to Henderson. Besides this, by the very act of Virginia, passed in May, 1799, authorizing entries under military warrants, it was provided, that 'no entry or location of land shall be admitted. . . on the lands granted by law to Richard Henderson & Company;' the lands first taken.

What then was the effect of the entry of this 640 acres within Henderson's Grant? This court has characterized such an entry as void. The language of Mr. Justice Catron, delivering the opinion in that case, is as follows: 'If Clark's entry was made, however, on lands reserved from location by the act of 1799, then it is void, because the act did not open the land office for such purpose, nor extend to the excepted lands.' In so far, then, as the entry of 1784 covered land in Henderson's Grant, it did not satisfy the warrants. It did not quoad the land in Henderson's Grant, pay the debt which Virginia had assumed to pay to her soldiers, for Virginia could only pay her debt or bounty from her own lands, and not out of lands belonging to others. Neither the entry, the survey, nor the patent of this 640 acres gave to Ross any title. The land not belonging to Virginia, could not be touched by the warrants, nor be conveyed or granted by patent. The whole thing was void from beginning to end, and the original right to the 640 acres remained untouched by satisfaction or merger.

In this state of things, upon finding that 640 acres of the entry was in Henderson's Grant, Ross was certainly entitled to relief in some form. The case was the case of a contract by vendor to convey, and a surrender of the contract upon a conveyance made and received in good faith, but covering land not intended to be conveyed and belonging to another. Under such a mistake, the contract not having been satisfied or merged in the conveyance-certainly not in a court of equity-our right was to have 640 acres of some other land belonging to Virginia and subject to entry. How then were we to be relieved? There was some course fit to be pursued, and what course more fit than the one that was pursued. Ross appeared before the principal surveyor of the military district, and made proof to the satisfaction of that officer, that 640 acres of the entry of 1784, fell within Henderson's Grant. Thereupon the surveyor allowed him to withdraw or amend the entry of 1784 to the extent of the 640 acres, and to re-enter the same quantity on vacant lands subject to entry in the State of Ohio. This was our entry of 1810, which is called a nullity. It is too late to question the verity of the memorandum that the former entry was 'withdrawn.' We must take it as established, that the entry of 1810 was made upon warrants never before satisfied.

It has been shown already by the case of Porterfield v. Clark, that the entry on Henderson, which is the foundation of all this satisfaction and merger, was itself a nullity. When we begin with a void act, it is of no moment how much is done in the way of mere confirmation. The cases in this court go to that extent. In Stoddard v. Chambers, it is said: 'The issuing of a patent is a ministerial act which must be performed according to law. A patent is utterly void and inoperative which is issued for land that had been previously patented to another individual.' At the same time we may concede that the patent was good as to the 360 acres outside of Henderson; for a patent may be good in part and void in part.

2. The proviso in the act of 1807, was intended to have a curative operation; for no legislation was necessary to secure a valid entry and survey from a subsequent location. It was, therefore, intended to protect and save such entries and surveys as might otherwise be lost. But the range of the proviso was matter of doubt, and whether it should protect all surveys, or only such as had some equitable foundation, was soon made a question. Five leading cases in this court have settled all these doubts and fixed the construction. The case first in order of time, was Taylor v. Meyers. In that case the first survey had been withdrawn before the second location was made. The court held that, after the withdrawal, there was no survey upon which the proviso could operate. Jackson v. Clark, already noticed, was next in time. In this case an entry and survey had been made on warrants which had been satisfied by prior location, still unwithdrawn and subsisting. The court held that the survey was protected by the proviso, because, although the warrants were satisfied by the first location, yet it was in the power of the locator to withdraw them at any time from the first location, and so make good the second location. Marshall, C. J., says: 'If it be conceded that this proviso was not intended for the protection of surveys which were, in themselves, absolutely void, it must be admitted that it was intended to protect those which were defective, and which might be avoided for irregularity. If this effect be denied to the proviso, it becomes itself a nullity.' Again, 'A survey made by the proper officer, professing to be made on real warrants, bearing on its face every mark of regularity and validity, presented a barrier to the approach of the locator, which he was not permitted to pass, and which he was not at liberty to examine.' In our case, the entry and survey of 1810, were made by the proper officer, professedly on real warrants, and with every mark of regularity. If the entry and survey in Jackson v. Clark fell within the protection of the proviso, how can ours be excluded? Lindsey v. Miller comes next. In this case, indeed, it was held that the proviso was not protection for a survey made under a State line warrant. But our entry and survey were not made under State line warrants, nor without semblance of authority; and Ross was guilty of no fraud and was in the lawful pursuit of a valid title. In Galloway v. Finley, the next case, the court gave a larger operation to the proviso than had been stated in Lindsay v. Miller. Mr. Justice Catron, delivering the opinion, says: 'It is insisted for the appellant that the section had reference to imperfect and not void titles. The legislature merely affirmed a principle not open to question, if this be the true construction. Had an effective patent been issued, the government would not have had any title remaining, and a second grant would have been void of course. Something more, undoubtedly, was intended than the protection of defective, yet valid, surveys and patents. This is not denied, but the argument insists only irregularities were intended to be covered. . . .. The statute is general, including by name all grants, not distinguishing between void and valid, and the plainest rules of propriety and justice require that the courts should not introduce an exception, the legislature having made none.' The learned judge then refers to Lindsay v. Miller, and adds, in reference to that case: 'But had the claimant been entitled to the satisfaction of his warrant in the military district, in common with others for whom the government held as trustees, the case might have been very different, even had the entry and survey been invalid.' McArthur v. Dun follows, and affixes the enlarged operation of the proviso as declared in Galloway v. Finley, and says, an entry and survey in the name of a deceased person, is within the scope of the proviso, notwithstanding such an entry and survey had been repeatedly held to be void.

It was in reference to these decisions that the Supreme Court of Ohio held, in Stubblefield v. Boggs, 'that by the proviso to the act of 1807, re-enacted from time to time, it has withheld from location all lands previously patented or surveyed, whether the entries and surveys are valid or void, and has declared that any patent that may be obtained in virtue of a subsequent location of lands covered by a subsisting survey or patent, shall be null and void. Hence, it is of no consequence, whether the previous entry and survey have any validity or not. Admit that they are void, and that consequently the title both legal and equitable remains in the government, yet the subsequent location is a nullity, because Congress has so declared it.'

Mr. Ewing, by brief, contra: The patent recites that the same warrants upon which Ross's entry of 1810 and survey were made, had been previously located in the District of Kentucky, and patented by the Commonwealth of Virginia to said Ross, in trust, &c., and lost by interference with a prior grant to Henderson, and withdrawn and relocated upon the lands in question. The fact, therefore, that the warrants under which the entry and survey were made, had been previously located, surveyed, and patented in Kentucky, is not open to controversy, and the question turns upon the legal effect of the fact. This we claim was to render the warrants functi officio, and the entry and survey in question made under color of them, a nullity. But it is a part of the recital of the patent that the entry in Kentucky was withdrawn. This recital is legally untrue, being legally impossible after the entry was carried into grant, in such way as to restore vitality to the warrants and admit of their being afterwards located and patented in the Virginia military district, in Ohio. The State of Virginia has ever retained and exercised her sovereignty over the subject of entry, survey, and patent of lands south of the Ohio, in satisfaction of warrants for military services, and the warrants in question, according to the laws of that State, were satisfied and withdrawn from the existing claims against her. Virginia has passed no law reviving and setting up warrants in cases where the land patented is lost by interference, or from any other cause. It has never been held, in the courts of that State, that the holder could withdraw and relocate them elsewhere after survey and before patent. No one would contend that in that State there could be a revival of the warrants after patent, and a consequent relocation. In Kentucky it has been held that there cannot be a withdrawal and relocation after survey, even before patent. The language of Chief Justice Marshall in one case, is striking. He says, 'The military warrants to which these questions relate, originate in the land law of Virginia. The question whether a warrant completely executed by survey can be withdrawn and so revived by the withdrawal as to be located in another place, has never, so far as I know, been decided in the courts of that State. In Kentucky, where the same law governs, it has been determined that a warrant once carried into survey, with the consent of the owner, cannot be re-entered and surveyed in another place. In Ohio, it has not been understood that the question has been decided.'

Do the subsequent acts of Congress confer such right as is claimed? The first that throws any light on this subject is the recital in the first section of the act of August 10, 1790, which is as follows:

'And whereas, the agents for such of the troops of the State of Virginia, who served on the Continental establishment in the army of the United States during the late war, have reported to the executive of said State, that there is not a sufficiency of good land on the southeasterly side of the Ohio River, according to the act of cession from the said State to the United States, and within the limits assigned by the laws of said State, to satisfy the troops for the bounty lands due them in conformity to the said laws; to the intent, therefore, that the difference between what has already been located for said troops, on the southeasterly side of said river, and the aggregate of what is due to the whole of said troops, may be located on the northwesterly side of said river, and between the Scioto and Little Miami Rivers, and stipulated by the said State,' &c.

This recital shows the intent to provide for warrants which had not been located, not for warrants which had been located, surveyed, and patented. It excludes warrants which have been located, leaving the lands in Virginia and the laws of Virginia to provide for and take care of those warrants when lost by interference.

Next is the act of June 9, 1794, which provides that the person entitled to bounty lands in Ohio, 'shall, on producing the warrant, or a certified copy thereof, and a certificate under the seal of the office where the said warrants are legally kept, that the same, or a part thereof, remains unsatisfied, and on producing the survey, agreeably to the laws of Virginia, for the tract or tracts to which he or they may be entitled, as aforesaid, to the Secretary of the Department of War, such officer and soldier, his or their heirs or assigns, shall be entitled to and receive a patent for the same,' &c. This act excludes all warrants which have been merged in patents.

This party did not produce the warrant. He could not have done it, for the warrants were merged in a patent. Neither did he produce a certified copy, and a certificate under the seal of the office where the warrants were legally kept, that the same, or a part thereof, remained unsatisfied. Nor could he have done it. These warrants were legally kept in the office of the Register of Lands in Virginia, and were filed, we know, as satisfied warrants.

Next comes an act of May 13, 1800, the first section of which provides for the issuing of patents on surveys which have been made on warrants issued from military service; not on patents heretofore issued in Virginia on such warrants. The idea carried through the other acts cited is maintained in this. The patent of the United States issues on a survey made upon an unsatisfied warrant. The second section provides for interfering claims within the district:

'SEC. 2. That in every case of interfering claims, under military warrants, to lands within the territory so reserved by the State of Virginia, when either party to such claims shall lose, or be evicted from the land, every such party shall have a right, and hereby is authorized, to withdraw his, her, or their warrant, respectively to the amount of said loss or eviction, and to enter, survey, and patent the same on any vacant land within the bounds aforesaid, and in the same manner as other warrants may be entered, surveyed, and patented.'

It is limited in its terms to interfering claims under military warrants to lands within the territory so reserved; not to lands out of said territory. A conflict out of the territory did not fall within the cognizance of the United States; they had nothing to do with it; no jurisdiction over it; no means of ascertaining it. It was a matter for the States in which it occurred to settle in their own way. Consequently Congress has made no provision for it, but has provided for lands within the district for which they held the trust. The right to relocate where the land has been lost by interference is of statutory origin. This statute does not authorize the re-entry where the interference occurred out of the district. Such re-entry, therefore, is not sustained, but, on the contrary, is impliedly forbidden by this statute. You may re-enter it if your land is lost by interference in the district. You may not if lost out of it.

Is it not thus shown that the warrants upon which the Ross entry of 1810, and the subsequent survey and patent were founded were, at the time the entry was made, functi officio; satisfied in law and surrendered to the State of Virginia by a previous entry and survey fully carried into grant in the Kentucky district? In legal effect, were they not as effectually satisfied as they would have been if no interference with Henderson's Grant had ever happened, and the lands located in Kentucky remained in the possession and enjoyment of the assignees of Ross?

If this is so, the remaining question is: Was this survey of 1810, and the subsequent survey, predicated-as we assume it was upon defunct and satisfied warrants, a survey within the meaning of the proviso of the act of 1807, and one in virtue of which the lands included in it were withdrawn from the unappropriated residue, subject to entry in the district, and the entry and survey of the same lands in behalf of Saunders, rendered void? This question is so fully considered, on both principle and authority, in the opinion of the Supreme Court of the State of Ohio, in the present case, reported among the decisions of 1860, that we deem it unnecessary to do more than to request that reference be had to the Reports.

Mr. Justice CATRON delivered the opinion of the court; and after stating facts, and referring to Ross's entry of 1810, proceeded thus:

title: Niswanger v. Saunders


text: Talk:Niswanger v. Saunders

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

title: Talk:Niswanger v. Saunders


text:
Niswanger v. Saunders/Opinion of the Court

This entry was surveyed and the survey recorded in 1817. The entry and survey are regular, and free from objection on their face; they recite the warrants, and the boundaries of the survey are distinctly defined. It is not indicated on the records of the surveyor that the warrants had been merged in the first entry and the Virginia patents, nor that the warrants were absent when the entry and survey were made. In this condition Ross's title stood till 1837, when Samuel Saunders entered four hundred and twenty-eight acres of the land surveyed for Ross. Saunders's entry was surveyed on the same day it was made. On the 20th day of November, 1838, a patent was issued by the United States to Saunders, and on the same day a patent issued to Niswanger, the assignee of Ross's entry and survey. This patent recites the fact that a previous patent had been issued by the Commonwealth of Virginia, founded on warrants, in part, that were withdrawn because of the loss by the interference with Henderson's Grant in the Kentucky district.

A principal defence relied on by the respondents was, that the act of Congress of 1807 withheld the land surveyed for Ross from location by Saunders; that his entry was void, and that the bill should be dismissed for this reason. But the Supreme Court of Ohio held that the act of 1807 was no protection to Ross's survey, and decreed that the land should be conveyed to Saunders's heirs; and on this part of the case an appeal was prosecuted to this court, under the twenty-fifth section of the Judiciary Act.

The record shows that the act of Congress was drawn in question and relied on as a defence, and that the defence was rejected by the State court.

The act of 1807, which we are called on to construe and apply to the facts coming within our cognizance, gives the further time of three years for making locations of lands in the military district of Ohio, and five years for the return of surveys and warrants to the office of the War Department; and then provides, 'That no locations, as aforesaid, within the above-mentioned tract, shall, after the passage of this act, be made on tracts of land for which patents had previously issued, or which had been previously surveyed; and any patent which may, nevertheless, be obtained for land located contrary to the provisions of this section, shall be considered as null and void.'

By subsequent acts of Congress, further time was given to return surveys, so that Ross's survey is not open to objection for not having been made and recorded in time, nor was any objection made in the court below on this ground; but the decree proceeded on the assumption that the warrants on which the entry and survey of Ross purported to be founded, were merged in the previous patent of one thousand acres; and that there were no valid warrants to sustain the survey, which was made without authority, and void; and therefore could claim no protection by virtue of the act of 1807.

Ross's entry and survey were made by the proper officer and in the proper office, purporting to be made on real warrants, and bearing on their face every mark of regularity.

When a survey is void for circumstances not appearing of record on its face, and which must be proved by extrinsic evidence from different sources, then a second enterer cannot be heard to adduce such proof, because he is met by the statute, and not allowed to obtrude on the existing survey by a second location. He can obtain no interest in the land to give him a standing in court. The government can justly say to him, 'You are a stranger and must stand aside; this land is withdrawn from location; you cannot be heard.' If the grantee, Ross, lost part of his land by Henderson's grant, and his warrants were merged by this misfortune, equity required that Congress should declare his survey to be valid by a curative act. This is the principle governing the decisions in the cases of Galloway v. Finley (12 Peters, 294), and McArthur v. Dun (7 Howard, 264), where the entries, surveys, and patents had been made to dead men, and were void of course for want of a grantee; yet this court held that the act of 1807 applied, and that a second entry on the first survey was void. In the case of Stubblefield v. Boggs (2 Ohio State Reports, 216), the same doctrine is maintained.

We hold that the survey of Ross was protected, and that Saunders's entry, survey, and patent were void, and order that the judgment of the Supreme Court of Ohio be reversed, and that the cause be remanded to that court, to be proceeded with in conformity to this opinion.

REMANDED ACCORDINGLY.


text: Talk:Niswanger v. Saunders/Opinion of the Court


text:
United States v. Halleck

Messrs. Justice CLIFFORD, MILLER, and SWAYNE, dissented in this case.

title: United States v. Halleck


text: Talk:United States v. Halleck

title: Talk:United States v. Halleck


text:
United States v. Halleck/Opinion of the Court

APPEAL by the United States from a decree of the District Court for the Northern District of California, approving the survey of a tract of land claimed under a Mexican grant, confirmed to Folsom, deceased. The case was thus:

In 1844, William A. Leidesdorff presented his petition to the then Governor of California, for the grant of a tract of land, the petition representing as follows:

That being owner of a great number of large cattle, and desirous of owning in fee a place to take care of them, he has found one vacant, bounded by the lands of Senor Sutter, as shown by the annexed map, which he duly transmits. Said place is on the bank of the American River, and consists of four leagues in length towards the east, and two in breadth towards the south

Accompanying this petition was a dise no or map of the land, and a certificate from Sutter, local magistrate, that the same was 'then unoccupied, and was that represented in the map.' The map, in this, as in most of the California cases, was but a rude sketch, showing but the general position and outline of the land asked for; and herein, that is to say, in its want of full and exact delineation-as will be seen hereafter-was one of the difficulties of the case. The petition, map, and certificate having been presented, Jimeno, Secretary of State, made report, October 1, 1844, to the governor, as follows:

'The land solicited is vacant, as shown by the annexed certificate; and it appears by the map, to be so well marked out, and so near to the place of Senor Sutter, that I think there is no difficulty to your excellency's granting to the person interested, the land petitioned for.'

The provisional concession of the governor, Micheltorena, dated October 8, 1844, was subsequently made. In this, the governor declares Leidesdorff 'owner in fee of the land which is situated on the banks of the river named 'the American,' bounded by the land granted to the colony of Senor Sutter, and by the hills (lomerias) on the east; in extent eight square leagues.'

The formal grant from the same governor, dated October 8, 1844, issued next. Reciting that Leidesdorff had 'petitioned for eight square leagues on the bank of the river called that of 'Los Americanos,' bounded by the land granted to the colony of Mr. Sutter, and by the ranges of hills ('lomerias') on the east,' and that 'the proper measures and examinations being previously made as required by laws and regulations,' the said governor granted him, Leidesdorff, 'the aforesaid land.'

This title of Leidesdorff became subsequently vested in Folsom, and a petition for a confirmation of title under the grant, having been presented in September, 1852, to the Board of Commissioners created under the act of March 3d, 1851, to ascertain and settle private land claims in California, Folsom produced before the board the original papers mentioned above. Testimony was also taken with reference to the line of Sutter on the west, and also with reference to the position and distance of the 'lomerias,' or range of hills, on the east. The board confirmed the claim, and entered a decree of confirmation. This decree read as follows:

'The land of which confirmation is made,. . . is the same which was granted to William A. Leidesdorff by Governor Micheltorena on the 8th day of October, 1844, and is bounded as follows, to wit: Beginning at an oak tree on the bank of the American River, marked as a boundary to the lands granted to John A. Sutter, and running thence south with the line of said Sutter two leagues; thence easterly, by lines parallel with the general direction of the said American River, and at the distance, as near as may be, of two leagues therefrom, four leagues, or so far as may be necessary to include in the tract the quantity of eight square leagues; thence northerly, by a line parallel to the one above-described, to the American River; thence along the southern bank of said river, and bending thereon to the point of beginning. For a more particular description, reference to be had to the original grant and to the petition and map contained in the espediente.'

The case was removed by appeal to the District Court of the United States for the Northern District of California. In March, 1857, the attorney-general gave notice that no further appeal would be prosecuted by the United States, and upon stipulation of the district attorney, pursuant to such notice, the court, April 30th, 1857, 'on motion of the district attorney, ordered, adjudged and decreed that the claimants have leave to proceed under the decree of the land commission heretofore rendered in their favor as under final decree.'

Previous to the entry of this order, Folsom died, and his executors, Halleck and others, being substituted in his place, the subsequent proceedings were carried on in their names.

In May, 1857, a survey was made of the tract confirmed, by directions of the Surveyor-General of California, and was approved by him. From the name of the officer this survey is called in the argument of counsel 'the Hays survey.' This survey was forwarded to the Commissioner of the Land Office at Washington, in order that a patent might be issued upon it. The Commissioner approved of it; but the Secretary of the Interior to whom the case was taken, disapproved it; and in September, 1858, the case was sent back to the surveyor-general for a new survey. So far as the Reporter understood a case which he did not hear, the objections to the Hays survey in the secretary's mind was, that it ran on the east far beyond that point where the lomerias, fixed in the original grant by Governor Micheltorena, were supposed to be; this range having, on the dise no or map attached to Leidesdorff's original petition, been indicated as being near a stream, not named, indeed, by Leidesdorff, but which was assumed by the secretary to be Alder Creek. The surveyor-general, accordingly, made and approved a new survey. From the name of the officer under whom this second survey was made it is distinguished as 'the Mandeville survey.' It was based apparently on instructions sent down from the Land Office on dissatisfaction with the former survey; these instructions saying, 'that the decree of confirmation resting upon the dise no and grant must be satisfied by the survey; first, by adhering to Sutter's line on the west, the American River on the north, and the foot-hills near the junction on the east of a creek distinctly laid down on the dise no; that the said creek is held to be identical with Alder Creek,. . . the said hills running near the junction of said creek, and in a southeasterly direction. That these are the natural features which must control the longitudinal extension of the grant. But,' the instructions went on to say, 'as quantity was petitioned for, granted, and confirmed, the said quantity may be taken by increasing the depth of the survey, so as to comprise the eight square leagues; thereby giving the location a more compact form.' The differences of the survey and the difficulties of the case will be exhibited by reference to the map inserted in the report.

On the 22d of November, 1859, the District Court, acting upon the impression that it had jurisdiction to supervise all surveys of confirmed claims under Mexican grants, under the decision of the Supreme Court, in the United States v. Fossatt, ordered the new survey made by Mandeville to be returned into court, and authorized the claimants to file exceptions to it. The survey was accordingly returned, and exceptions were filed by the claimants and purchasers under them.

After the passage of the act of June 14, 1860-by which new powers were given to the District Courts of California, with authority to order into court any survey, and to decide on it-a monition was issued for notice to all parties, claiming any interest in the survey and location, to appear before the court, on or before September 26, 1860, for the protection of such interests, or their defaults would be taken. On the return of the monition, counsel appeared in behalf of the United States, and also counsel for the claimants, and also counsel for the Natoma Water Company, a corporation created under the laws of California. The default of all other parties not appearing was entered. Folsom subsequently filed exceptions to the survey. Among the exceptions filed to it in his behalf were these:

'1. Because it does not conform to the description of the land confirmed as contained in the decree of final confirmation.

'2. Because the grant calls for four leagues in length upon the American River, and two leagues in width from north to south, and the said survey gives the said tract less than two and one-half leagues in length on said river, and makes the same more than three leagues in width from north to south; thereby entirely changing the form of said tract from the form in which it was granted.

'3. Because the claim was regularly surveyed, and the survey thereof approved by United States Surveyor-General Hays, in May, 1857, which survey was in conformity with the final decree of confirmation.

'4. The survey of Mandeville ought to be rejected, and the survey heretofore made by Hays ought to be adopted, because the latter locates said eastern boundary in pursuance of the final decree, and the former ignores the said decree altogether, and professes to follow the arbitrary and illegal instructions of the Secretary of the Interior, said instructions being in conflict with said final decree, and with the evidence in the case filed before the land commissioners before whom the said eastern boundary was a question litigated by both parties hereto, and settled by the said final decree.'

The United States also, by Mr. Williams, 'acting in this case as United States District Attorney, at the request of Mr. Blenham, who was once counsel for some of the claimants,' filed several objections, embracing in substance the following:1st. That the survey was not according to the final decree of confirmation entered in the above-entitled cause, or to the grant and other title-papers upon which that decree was founded, or to the evidence of the witnesses in the said cause, but in violation thereof is made to extend more than two leagues south of the American River, and thereby to embrace public lands of the United States not rightfully included within the limits of the said claim.

2d. That the survey wrongfully includes lands not at any time claimed by Folsom or his representatives, but, on the contrary expressly disclaimed.

3d. That it is erroneous, because the land granted and confirmed was a tract bounded on the west by Sutter's eastern line; on the north by the American River; on the east by Alder Creek and the neighboring low hills; and on the south by vacant lands; the southern line to be at a distance of two leagues from the river, as near as may be, and run on subdivision lines, so as to meet the meanderings of the river. Whereas the said survey does not regard these boundaries, but shows a southern line at right angles with the western line, disregards the meanderings of the river, and thereby includes within its lines a much larger quantity of land than was granted, and also includes many settlers under the United States, who have so settled and made improvements in good faith long before the said official survey was made.

Upon these exceptions, evidence was taken, and in November, 1861, the District Court set the survey aside, and ordered a new one to be made. A rehearing being granted, the original survey made by Hays was approved and confirmed by the court. The decree of approval was entered August 2d, 1862. From this decree the present appeal was taken.

Messrs. Della Torre and Wills, for the appellants: The question strictly before the court is as to the correctness of the location of the land as shown by the Hays survey; although the record also contains sufficient matter to enable the court to direct the correct manner of survey and location, if the United States succeed in showing that the Hays location is incorrect. We insist that the survey and location of the land, as shown by the Hays plat, are incorrect, and must be set aside.

It is the duty of the one who comes here for confirmation of a land claim, not only to establish the validity of his title to some land, but also to point out the land, and identify it with the tract conceded him by the former government of California. It is enough for us to show that the land claimed is not that which was in contemplation of the granting power. It is not for the government to show how the land should be located; that is a matter for the claimant to demonstrate.

The Mandeville survey was made in general conformity with the directions, mentioned, ante, on page 443, and sent down by the Land Office to the Surveyor-General of California, when the Hays survey was disapproved, and a glance at that and the Hays survey will show the chief difference of opinion in this matter between claimants and the government.

When Leidesdorff applied for land, and the reports thereon had been made, Governor Micheltorena made his provisional concession of a tract 'situated on the banks of the river named the American, bounded by the land granted to the colony of Senor Sutter, and by the hills on the east.' The initial point and two lines are here fixed, and have never been disputed, to wit: the point on the river where the Hays survey begins, the river in its extension, and the line running north and south from the initial point, which has always been treated on all sides as coterminous with the lands of Sutter's colony. It is evident that the location cannot be extended beyond these assigned boundaries. There is also a terminus towards the east, beyond which the location cannot be extended, because the titles made by the granting power went to further. This is the line of the 'lomerias.' It would not matter even if Leidesdorff had expressly asked for land beyond these bounds, for we are to seek not what he desired to get, but what the governor chose to give. In the documents of title which have been presented as emanating from that officer, the 'lomerias' are laid down by him as the extreme limits of the land towards the east. They are laid down in the same instruments and with the same particularity as are the American River and the lands of the colony of Sutter. We therefore contend that the concession can no more be stretched across the 'lomerias' than across any other of the particularized boundaries.

Then we have three of the inclosing lines of the granted tract,-the western, northern, and eastern. The fourth line is not fixed in the grant, and is dependent upon quantity for the place in which it shall run. It is therefore the discretionary line, all the others being fixed, and not to be moved, even if there should be difficulty in deciding upon the location of this southern line. By the express terms of the grant, then, it must be satisfied out of land lying southwardly on the American River, and between the lands of Sutter's colony and the 'lomerias' on the west and east, respectively, extending southwardly to make up the quantity which may be held to have been granted. For the present we will presume that to have been eight leagues.

Having settled what are the fixed boundaries of this land, we next inquire where those boundaries are.

There is no dispute about the northern and western lines, but we have to ascertain where are the 'lomerias' which are the eastern boundary, and here there is contention. We assert they are to be found in a row of hills arising a short distance from the mouth of Alder Creek, at its junction with the American River, and running thence in a southerly or southeasterly direction towards the Cosumnes River, the next stream which flows westward from the Sierra Nevada.

We shall be met with the objection that we have no right to look into this matter at all; that under the circumstances, we are confined to such description of the land as is given in the decree of the land commission, and that from its decree the Hays survey may be constructed. Now, it will be said, that this description is conclusive and exhaustive of the description of the land; that in its location we can only seek for such land as is therein described; and as the board excluded the 'lomerias' from contemplation in describing the tract, we are, in this proceeding, estopped from any examination as to what they are or where they are. This is a strange argument. We must presume, in the words of the judge below, when he rejected this survey, 'that neither in this case nor in any other did the board mean to confirm the claim for any other tract than that described in the grant, and delineated in the dise no.' Can we presume that the board deliberately excluded as one of the boundaries a natural landmark, called for by every one of the instruments of title produced by the claimants as issued to the original grantee? But in setting up this argument claimants have not quoted the whole of the decree, for immediately after the part above recited the decree goes on continuously to say, 'For a more particular description, reference to be had to the original grant, and to the petition and map contained in the espediente.' This must be conclusive. Is not this latter quotation as much a part of the decree as the former? Has not the reference to the description in the grant and espediente, &c., the same effect as if the words had been set out in the decree? And are we now, when in search of the 'more particular description,' to be estopped from reading the documents to which the commission has referred us? This would suit the claimants, because by disregarding the 'lomerias,' as unnamed by the decree, they might stretch their claim beyond the limit assigned by the grant. But the reference to the grant makes the decree, in law, precisely the same as if the boundary 'lomerias' was fully and particularly, and in words, inserted therein, for 'verba illata inesse videntur.' In truth, the board intended in this case, as in all others, to give a general description of the land, leaving it for after-proceedings by the surveyors or other proper authority to compare and assimilate the land as it exists in nature with its description in the title-papers.

[The counsel here proceeded to comment upon the evidence in the case. They noted particularly the call in the decree of the board for an 'easterly' course after the lines should leave Sutter's land; and argued that as this was to be 'parallel with the general direction of the said American River,' it was obvious that the exact course of that river was not well known to the board, for that the line could not run 'east' and be parallel to the river at all. Undeniably, the line was to be an 'easterly' one; and this being so, rendered necessary a change in the other lines east and west, so as to conform with the general intent of the board respecting the southern boundary. The counsel also argued from the evidence that the 'lomerias'-hills on the east were situated west of Alder Creek and the eastern line run by Hays; and that from the whole evidence, and especially from original title-papers and map, it was clear that the land granted to Leidesdorff, and described in the espediente, is contained within the bounds of the Mandeville survey. In reply to a question from the court, in what way they reconciled their apparent inconsistency in taking positions in support of the second or Mandeville survey in this argument, which were the reverse of the objections which had once been urged in the name of the United States in the court below, they answered, that the objections below were not those of the United States, but of individual claimants; that this form of proceeding was upheld by the district judge, who considered these proceedings upon surveys in the nature of proceedings in rem, and held that parties claiming interests in the subject-matter should be allowed to use the name of the United States to bring their claims to the notice of the court; that the objections, accordingly, though put forward in the name of the United States, were, in point of fact, urged in behalf of settlers claiming part of the tract surveyed as public land and open to settlement.]

A. P. Catlin and J. S. Black, for respondent:

1. The decree of the land commission in this case, by the dismissal of the appeal and the decree of the District Court of April 30, 1857, became final and conclusive as to all the questions decided by it. Under the act of 1860, the District Court did not acquire jurisdiction to open or reform the decree, but was confined to the duty of seeing that the surveyor ran the lines according to the decree.

2. The Hays survey is in conformity with the lines laid down in the decree. But the government contends that the said lines do not correspond with the original documentary title-papers; that the boundary lines laid down in the decree of confirmation, do not correspond with the boundaries named in the grant and other documentary title-papers, and consequently that a new decree, corresponding with such boundary, ought to be made.

I. If the descriptive portion of the decree can be disposed of upon such grounds, there would be nothing final in any branch of the case. The inquiry might be pushed still further, and the authority of the governor and all other vital questions upon which the commission passed, be laid bare for inspection and readjudication.

II. The court must construe the decree upon its face, when it is clear and plain, and the matters upon which a decree are founded are not resorted to for the purposes of construction, unless in the terms of the decree there is some want of clearness or some difficulty in understanding it. Understanding it is construing it, and if we understand it, there is no need of groping back into the darkness out of which the light of the decree was created. When the decree is understood, then it is construed. But the construction for which the appellant's counsel contend, is the power to construe the meaning of the original parties to the grant, in other words, to exercise the same power which the Land Commissioners exercised, and to review as upon appeal the judgment of that tribunal, and to make a new decree, in so far as it becomes necessary to illustrate the difference of opinion which may exist between the District Court under the act of 1860, and the Land Commission under the act of 1851. There is no telling to what extent this mode of construction might be carried. It is equal to the power of making a new decree, and of reversing the judgment of a court, the meaning of which it pretends only to construe. It is said that the form of the tract produced by the lines of the decree show that the board, by the term 'easterly,' applied to the general course of the southern boundary, evidently intended that line should run more nearly east than it does in the Hays survey, and that the board must have supposed that the general course of the river was east, and that in order to carry out the meaning of the board we must change the course of the other lines on the east and west, in order to conform with the supposed intention of the board respecting the southern boundary. The assumption that the board did not understand the course of the river, is without foundation, and is contradicted by the terms of the decree itself. The peculiar manner in which the southern boundary lines are constructed, show that the board perfectly well understood that the course of the river was circuitous and irregular, and that its general course was not east. After first directing the starting-point to be the oak tree, and the first line to run from thence 'south' two leagues, it says, 'thence 'easterly,' by lines parallel with the general direction of the said American River, and at the distance, as near as may be, of two leagues therefrom.' The course provided by this language is the course of the river by its bends and turns, and so the line is to be divided in parts to accommodate itself to these bends and turns, otherwise the board, if it had supposed the course of the river to be east or near east, would have said, thence 'easterly in a line,' instead of 'easterly in lines.' The term 'easterly' is only necessary to indicate the way to turn when at the end of the first line, whether toward the west or toward the east. We understand the word easterly in its usual acceptation to mean to the east generally, in contradistinction to west, north, or south, and is correctly applied to any general direction to the east, as opposed to the west, which would not be better indicated by using the terms northerly or southerly. In this decree the term easterly has qualifying words attached to it, showing that it meant the direction of the American River from the oak tree.

Mr. Justice FIELD delivered the opinion of the court:

This case comes before us on appeal from a decree of the District Court of the United States for the Northern District of California, approving the survey of the tract confirmed to Folsom, the testator of the respondents. The grant to Leidesdorff, from whom the respondents deraign their title, was issued in October, 1844, by Micheltorena, then Governor of the Department of California. In September, 1852, the claim for the land granted was presented to the Board of Commissioners created by the act of March 3d, 1851, and by a decree of that body, rendered in June, 1855, the claim was adjudged valid and confirmed. The case being removed by appeal to the District Court, the attorney-general gave notice that the appeal would not be prosecuted by the United States, and upon the stipulation of the district attorney in pursuance of such notice, the claimants had leave to proceed upon the decree of the board as upon a final decree.

The grant describes the land as consisting of eight square leagues, and as situated on the bank of the American River, and bounded by land previously granted to the colony of Sutter, and by a range of hills-'lomerias'-on the east. The provisional concession preceding the issue of the formal title, gives a similar description. The petition of Leidesdorff, which the grant recites, represents the land as being 'four leagues in length towards the east, and two in breadth towards the south,' and refers to a map transmitted with it. This map is a rough sketch indicating the general locality and outline of the land solicited.

The original papers give the locality, the form, and the dimensions of the tract granted. It is situated on the southern bank of the American River; it is four leagues in length by two leagues in width; it embraces eight square leagues; and it is bounded by the land of Sutter on the west. From the data thus furnished, the boundaries, which are not designated, can be readily ascertained and declared. As a question was made before the board upon the location of some of the boundaries, and testimony was taken as to the line of the land of Sutter, and the position of the range of hills on the east, the case was a proper one for the board to fix with precision and declare the boundaries in its decree. As the appeal from the decree rendered was withdrawn by the United States, it is unnecessary to consider the character of the testimony produced or the weight to which it was entitled. The board acted upon it in connection with the title-papers, and in its decree, entered in April, 1857, declared the boundaries of the tract, running the same, except on the said of the river, by courses and distances.

In May following, a survey of the tract confirmed, was made under the directions of the Surveyor-General of California, and was approved and transmitted by him to the Commissioner of the General Land Office, at Washington, for examination and approval preliminary to the issue of a patent. In May, 1858, the commissioner appears to have approved the survey, and to have made preparations to carry the same into a patent, but was overruled by the Secretary of the Interior, who, in September following, disapproved of the survey, and sent the case back to the surveyor-general. At the subsequent December Term of this court, the decision of the case of the United States v. Charles Fossat (21 Howard, 445), was made, which was supposed by the District Court of California to recognize a jurisdiction in that court to supervise all surveys of confirmed claims under Mexican grants. Acting upon this view of the decision, the District Court, in November, 1859, ordered the new survey which had been made by the surveyor-general to be returned into court, and gave leave to the claimants to file exceptions to it. The new survey was accordingly returned, and exceptions to it were filed by the claimants and purchasers under them; and proceedings upon the exceptions were pending on the passage of the act of June 14th, 1860. Whatever question might be raised as to the jurisdiction of the District Court to supervise the survey previous to that act, there can be none since its passage. That act applies not merely to surveys subsequently made, but also to such surveys as had been previously made and approved by the surveyor-general, and returned into the District Court upon objections to their correctness. Under the act, a monition was issued, and on its return counsel appeared on behalf of the United States, and for the claimants, and for the Natoma Water Company, a purchaser under the claimants. No other party appeared, and the court ordered 'the default of all parties not appearing' to be entered. The United States subsequently filed their exceptions. All parties agreed in averring a want of conformity in the survey with the description of the land contained in the decree of final confirmation.

The District Court set the survey aside, and ordered a new one. Subsequently, upon a rehearing, it approved and confirmed the survey originally made. From its decree in this respect the United States appealed, and on the argument of the appeal took positions in support of the second survey, which are directly the reverse of the objections urged in their name in the court below. To the apparent inconsistency in their action in this respect the attention of counsel was called, and the explanation given was that objections in the District Court, though put forward in the name of the United States, were in fact urged on behalf of settlers claiming that part of the tract covered by the survey, was public land open to settlement. It is unnecessary to express any opinion upon the sufficiency of this explanation, or whether the United States are bound by objections on the record, which are advanced in their name, when presented for the protection of parties claiming interests under them by preemption, settlement, or other right or title. We refer to the matter, not because our judgment will be in any respect affected by it, but to indicate that it would be the better practice for the district attorney, when appearing for third parties in the name of the United States, to state the fact, and give the names of the real contestants in the exceptions filed.

The material question for determination is, whether the survey approved conforms to the decree of confirmation. There must exist a reasonable conformity between them, or the survey cannot be sustained. And such reasonable conformity we at once perceive when we take up the survey and trace its lines under the directions of the decree. Indeed, we do not think that such conformity will be seriously controverted by the learned counsel of the appellants, if the survey be restricted to the description contained in the decree. Their position is, that this description is to be controlled by the original grant and by the petition and map contained in the espediente, to which reference is made at the close of the decree; in other words, that the question of boundary is open for adjudication precisely as it would be if no description had been given. The position of the learned counsel in this respect cannot be maintained. The documents to which reference is made can only be resorted to in order to explain an ambiguity in the language of the description given; they cannot be resorted to in order to change the natural import of the language used, if there be no uncertainty therein. If reference to original title-papers, where no doubt arises upon the terms of the decree, would authorize an inquiry into a matter of boundary, it would with equal propriety authorize an inquiry into any other matter upon which the commission had acted; and every question affecting the decree might be opened anew to consideration and contestation.

The decree in this case is plain, and admits of only one construction: the object of the appellants is to change the meaning of its language, by showing that the commissioners were ignorant of the true course and direction of the American River, and therefore intended different lines from those they specifically declared, and that they could not have intended the eastern line to run as directed, in disregard of what is asserted to be the true position of the 'lomerias.'

The answer to all efforts of this kind is, that the decree is a finality, not only on the question of title, but as to the boundaries which it specifies. If erroneous in either particular, the remedy was by appeal; but the appeal having been withdrawn by the government, the question of its correctness is forever closed.

AFFIRMED.

Messrs. Justices CLIFFORD, MILLER, and SWAYNE, dissented.


text: Talk:United States v. Halleck/Opinion of the Court


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Insurance Companies v. Wright

THESE were actions brought by Wright against two insurance companies in New York-'The Orient Mutual' and 'The Sun'-on two policies of insurance, called open or running policies; a sort of policy which has been described in this court as one enabling the merchant to insure his goods shipped at a distant port, when it is impossible for him to be advised of the particular ship upon which they are laden, and which, therefore, cannot be named in the instrument of assurance. The insurer upon this class of policies, of course, has no opportunity to inquire into the character or condition of the vessel, and agrees that the policy shall attach if she be seaworthy, however low may be her relative capacity to perform the voyage; and, for the additional risks he may thus incur, he finds his compensation in an increase of premium.

The two suits brought on the two policies here, were tried together in the court below, and so argued and disposed of here; the principles in each case being confessedly, and so declared by the court, the same.

The policies professed to insure Wright against loss on one-fourth of five thousand bags of coffee, to be shipped on board of 'good vessel or vessels' from Rio de Janeiro to any port in the United States. Thus far the case was plain. The difficulty arose from certain clauses relating to the premium; of which clauses there were several scattered about the instrument. One such, just after the declaration of insurance made, was thus: 'To add an additional premium if by vessels lower than A 2, or by foreign vessels; to return 1/4 of 1 per cent. if direct to an Atlantic port.' The policies also contained this clause: 'Having been paid the consideration for this insurance by the assured at the rate of 1 1/2 per cent., the premiums on risks to be fixed at the time of the indorsement, and such clauses to apply as the company may insert, as the risks are successively reported.'

The companies here sued, though New York companies, had an agent in Baltimore, through whom they effected insurances there; and it was through this agent that the present insurances were made. His testimony went to prove that when applications were made to enter risks on running policies, the application was indorsed at once by him, and a report made to the company in New York, which named the premium, and that this was made known to the assured; that the premiums specified in the body of the policies are nominal, and the true premiums to be charged are fixed by increasing or reducing the nominal premiums; and that the nominal premiums taken on the delivery of a running policy, are returned if no risks are reported.

On the back of one or both the policies here, were entries as follows, which, it was argued, explained this alleged custom:

1855. Aug. 13. Bank Maine Law, from Rio to New Orleans, $15,750, at 1 1/2 per cent.

1855. Aug. 13. Brig Windward, from same place to Baltimore, $4750, at 1 1/4 per cent.

1855. Nov. 20. Brig T. Walters, from same place to Philadelphia, $2375, at 1 1/4 per cent.

In the present cases the plaintiff applied, in the latter part of August, 1856, to the agent in Baltimore, for an indorsement on the policy of the coffee in question, laden or to be laden on board a vessel called the 'Mary W.,' from Rio de Janeiro to New Orleans, which application was communicated to the company, in order that they might fix the premium. The company at first declined to acknowledge the vessel as coming within the description of a 'good' vessel, on account of her alleged inferior character; but the plaintiff, insisting on her seaworthiness and his right to insure within the terms of the policy, the company replied to his application: 'We shall charge the same rate as the Sun does, viz., 10 per cent., subject to average, or 2 1/2 per cent. free of average.' This the plaintiff refused to pay. The company thereupon claimed to be released from the risk. The plaintiff asserted that there was still a subsisting contract.

The coffee had been shipped on the Mary W. at Rio, for New Orleans, 12th July, 1856, when she started on her voyage. The vessel was lost on the 29th of the month upon rocks; the master being some seventy miles out of his course.

The cases had been already before this court, in 1859 (23 Howard, 401, 412), by writ of error from a former trial. On that trial it was conceded that the vessel rated below A 2: or that the testimony might lead the jury to this conclusion. And on review here, this court held, that if this were true, then, inasmuch as no rate of premium had been fixed by the agreement of the parties, and the plaintiff had refused to pay the additional premiums which the companies had demanded, there was in reality no contract of insurance consummated as to the goods on that vessel. As the instructions of the court below had assumed that the contract was complete, although the vessel might rate below A 2, and although no agreement had been made for the increased premium, the cases were reversed and a new trial ordered. On this second trial the plaintiff sought to establish, and contended that he had established, that the vessel was within the rate prescribed, and in fact was not a vessel lower than A 2.

On this second trial, the defendants having given testimony (much the same testimony as that above mentioned as given on the first), tending to establish a usage that the premium named in the policy was in all cases a nominal one, and that the insured had a right, when the risk was reported, to vary the rate of premium as he might wish-asked the court for eleven instructions; the material parts of the seventh, eighth, and ninth being as follows:

Seventh. That if they found from the testimony and course of dealing of the parties, that the premium specified in the body of the policy was a nominal premium only, to which no attention was paid in fixing the true premium to be paid, then the company had the right to fix the premium at the time of indorsement, whether the vessel rated A 2 or not.

Eighth. That by the true interpretation of the policy, in the custom referred to in the preceding prayer, the insurer had the right, in good faith, to fix the real premium above or below the nominal premium, where the vessel rated A 2 or above it.

Ninth. That by the true interpretation of the policy, the real or actual premiums on risks were to be fixed by the companies at the time of return or indorsement of the risk, and that the premiums so fixed by them in the case of the 'Mary W.' not having been assented to by the assured, the premiums in that case cannot now be fixed by the court or jury; and further, that by the true interpretation of the policies, the real premiums on risks are not fixed therein without action by the parties, whether the vessel rates A 2 or above or below that rate.

These instructions the court refused to give, and the only question submitted to the jury was, whether the vessel in which the loss occurred did or did not rate below A 2, within the meaning of the policy.

But another question here arose; the question, to wit, by what standard was this fact, whether the vessel did or did not rate below A 2, to be fixed? Was it by that of Rio, whence she sailed? Or by that of Baltimore, where the application for insurance was made? Or by that of New York, where the policy was issued? Or by the register of the company which made the insurance?-with a conclusion that if that were silent, the vessel was not A 2 within the meaning of the contract at all. It was proved that the standard of rating was different at Rio and Baltimore from what it was at New York, being higher in the last-named city than it is in either of the former ones; so much so, indeed, that a vessel might be rated A 2, at Rio and Baltimore, which would fall below that rate at New York. It was also proved that each of the marine companies of New York keeps constantly in its employment a salaried officer, whose business it is to examine and rate vessels, and that the rates of the vessels thus examined by him are reported to the company, and entered upon a book kept for that purpose. Mr. Swan, of the house of Grinnell, Minturn & Co., large shipping merchants of New York, testified that 'the business of rating is a special one; that the companies all have inspectors to ascertain the rating of vessels, and that when a policy speaks of the rate of vessels, it is the rate of the company, and refers to that standard.' There was other testimony to the same effect. Testimony was given also, however, showing that this rating differs materially on the registers of different companies, and that we have not yet established in this country any institution similar to that of the British Lloyds; though there is one in New York calling itself the American Lloyds, and now attempting to establish for itself here the same position as the one in England, which has its inspectors in all ports of the United Kingdom, whose reports are forwarded to a board in London, which fixes the rate of all vessels which are known to it, and whose owners are willing to have them examined. In fact, with regard to this particular vessel, it appeared that in 1849, she had three different ratings out of five which it was proved had been made of her; that she left New York in the year last mentioned for California, and has never been in the port of that Atlantic metropolis since; that 1849 was the last year in which she was rated on the books of the 'Sun Mutual' at all; while the 'Orient Mutual' had not been established until 1854, and of course had her not upon any register of theirs; and shown finally that a rating seven years old is regarded by all insurers as no rating at all.

The plaintiffs were allowed to give evidence that at Baltimore and at Rio she was rated A 2; and particularly to give in evidence a memorandum in writing, signed by the counsel of the insurance companies, and which they had given in order to expedite a trial, that the vessel in question, at the time she left Rio, 'was in a seaworthy condition, fit for any voyage, and especially for the transportation of coffee;' and by reason of thorough repairs at Rio, was 'entitled to rate, and did in fact rate, at A 2 there.' There was evidence also tending to prove that she so rated elsewhere, and ought to have so rated in New York; but much testimony also tending to prove the reverse.

The court below allowed the above-mentioned memorandum to go in along with other evidence, both evidence in favor of the plaintiff and evidence against him; including, in the former, evidence of this vessel having been newly and thoroughly repaired, and the testimony of seamen long engaged in the trade of this part of South America, and including the testimony of marine experts, and proof of the mode in which the vessel had been rated more than seven years before the policy issued. And disregarding the prayers of the defendants presented in some five or six different forms, and praying instructions that the standard of rate was to be determined by the books of the defendants and of other insurance companies in New York, charged them essentially as follows:

'If the jury should find that the rating of vessels on the registers of companies in New York, was always from personal examination by inspectors of the different companies, and should further find, that by the long absence of the said vessel from New York, she had, in the understanding and usage of underwriters in New York, no fixed rating on the registers of any of the insurance companies of that city in 1856 (the date of the contract); but would have been rated there not lower than A 2 owing to her thorough repair, had she been there for examination then the plaintiff is entitled to recover, although the jury may find that the said vessel was rated in 1848 or 1849, on the books of the defendant, below A 2; and that it was the general usage and understanding of underwriters and commercial men in New York, that the words in their policies 'not rating below A 2,' refer to the rate of vessels on the register of the company making the insurance.'

The rejection by the court of the defendant's seventh, eighth, and ninth prayers, given on pp. 459-60, and its refusal to submit, in interpretation of the contract, the practice and course of dealing between the insurance companies and its customers, as shown by the Baltimore agent, in regard to the nominal premiums, were the errors relied on in the first part of the case; as were the instructions as to the evidence of rating, and the admission of the memorandum and other evidence at Rio, those relied on in the second.

Messrs. Alexander Hamilton, Jr., Evarts, and Cutting, for the Insurance Companies, plaintiffs in error:

1. An open or running policy is issued when the shipments to be protected thereby, the time of making them, the vessel or vessels to carry them, the ports of destination, and the value or amount of the cargo, and other circumstances material to the risks to be borne by the underwriter, have no present existence, or are unknown to either of the parties. The contract is necessarily incomplete, though binding upon the underwriter, to the extent of the agreement. It contemplates that if the assured shall desire to avail himself of his right to be protected under it, he shall, when the risks to be insured are known to him, or within a reasonable time thereafter, make a declaration, return, or report of them to the underwriter, with all essential particulars, in order that the premium to be charged may be estimated by the insurer; and, if agreed to, may be entered with the particulars upon the policy, which is 'open' to receive them. The indorsements on these very policies furnish examples by way of illustration. The indorsements specify the successive cargoes insured, the different vessels by which each was to be carried, the port of departure, the several ports of destination, the value of each different shipment, and the rate of premium charged by the insurer, and agreed to by the assured, on each risk.

Until the return, by the merchant, of risks not known at the time of making the agreement to insure, no basis exists upon which the consideration or premium for assuming the hazards can be estimated or named by the underwriter. Consequently, an open or running contract to insure separate sums upon unascertained, future, successive, and distinct shipments, to be thereafter declared or reported by the merchant, is an agreement that the underwriter will assume the risk as to them, at and from the lading thereof, in consideration that the assured will pay or agree to pay such premium as shall be in good faith named by the insurer as an adequate compensation for the risks to be assumed by him.

As the premium or consideration to be paid must, of course, vary according to the degree of hazard of each shipment, and as this cannot be ascertained until each shipment has been made or is known, and a declaration or return thereof has been reported by the merchant to the underwriter, it is the practice to specify in these agreements to insure, a nominal or average rate of premium, which is subject to such addition or deduction as shall make the premiums conform to the established rate at the time the return is made to the company; and, sometimes, as in the present case, a further stipulation is introduced, that if the shipments shall be made by foreign vessels, or by vessels rating lower than A 2, an additional premium shall be charged. In practice no attention is paid by either party to the nominal or average consideration, specified in the agreement to insure. The premium is calculated on each shipment, separately, each case being distinct, and the rate being dependent upon the character of the vessel, the port or ports of destination, the season of the year, and other circumstances calculated to increase or to diminish the hazards. A premium note for the nominal or average premiums upon the amount subscribed, is taken at the time the open policy is issued, and is returned to the merchant in case he should not avail himself of the protection of the contract, with the exception of one-half per cent., which the underwriters, in accordance with a very ancient custom, have the right to retain, although in practice this right is seldom enforced, it being now usual to return the whole amount. The reason for this right to retain one-half per cent. is that, as the assured may never choose to avail himself of the contract, or may put a stop to any adventures under it whenever he may think proper, while, on the other hand, the insurer can never by his own act discharge himself from the agreement, is is but reasonable that the merchant should make some compensation to the insurer for his trouble and disappointment.

The rates of premium at which underwriters can afford to take hazards is the basis upon which the whole business of insurance rests. Great discrimination and accuracy of judgment is necessary in estimating the degrees of risks. In the practical conduct of his affairs, therefore, it is vital that the insurer should have the power to determine his rate of charge, leaving it, of course, optional with the merchant to accept or to reject it. Hence, under the agreement contained in the policy in controversy, as the risks to be insured at the time when it was effected, were not known, and did not exist, it was impossible to estimate the premiums to be paid, and therefore the agreement being necessarily incomplete, various reservations were made, and amongst others, the essential one, the premiums to be fixed at the time of the indorsement, and such clauses to apply as the company may insert as the risks are successively reported.

In open or running policies, where the agreement is to insure cargo that is afterwards to be reported, and where the shipments are to be successive and independent, of distinct quantities, to be shipped at various and unforeseen times, by unknown vessels, of different classes, and of different nations, on different voyages, there must necessarily exist, as the risks are returned to the company, and the rates of premium are named by it and assented to by the assured, as many different contracts of insurance as there are different subjects to insure, and these contracts are as distinct as if each was made the subject of a separate policy. The rate of premium on each risk reported, must depend upon the particulars of each. When the company has in good faith estimated and determined the rate of premium which it deems to be commensurate with the risk reported to it, and the merchant considers it too high, and refuses to agree to it, the contract, as to that shipment, has not become complete. The merchant has the right to be protected by the policy, at and from the lading of the cargo, if he chooses to agree to pay the premium demanded by the company therefor. But if he prefers, he may decline to pay it, in which case, as the whole consideration fails, the company may refuse to enter the risk, or if an entry has been made, may strike it from their books.

The court, therefore, erred in refusing to let the practice about these policies be shown. No instruments are so loosely drawn as policies of insurance. None depend so much, or are so frequently explained by usage, and without resort to it, it is sometimes impossible to interpret them at all.

2. The proofs admit of no dispute as to the 'rating' of the policy, referring to the 'rating' on the books of the company issuing the policy. The loosest interpretation of this word in the policy, under the evidence, cannot carry it beyond a reference to a 'rating' upon the books of the marine insurance companies in the city of New York. There is no evidence that, in 1856, the vessel in question was not a vessel 'rating lower than A 2' on the books of the Sun Mutual Insurance Company, the defendant below. Nor evidence that, in 1856, she was not one 'rating lower than A 2' on the books of the marine insurance companies in the city of New York, or of any of them. There is evidence, that in that year, she was a vessel 'rating lower than A 2' on the books of the defendant below, and of the other marine insurance companies of the city of New York; for, it is manifest that any evidence to the effect that she had, in 1856, come to be disrated, or fallen below any insurable rate, is emphatic evidence that she was a vessel 'rating lower than A 2' on such books.

II. The instructions were erroneous in their whole scope and effect. Instead of submitting to the jury the question of fact as to what was the actual rate of the vessel on the register of the defendant or other insurance companies in New York, they instructed and authorized the jury, as experts, to determine what would be the rate in New York from the actual rating on the companies' registers, in connection with other elements submitted to them. They thus took away from the companies the determination of a technical and difficult question, which, under the policy as well as usage, they had a right to decide, and substituted the rude and necessarily imperfect conclusions of a jury in its place, and permitted the jury to ascertain and determine what would be her rate, in their opinion, as against her actual rating on the registers of the insurance companies in New York.

III. So, too, it was erroneous to submit to the jury the evidence that when the vessel left Rio she was seaworthy, and in good condition, and had just been thoroughly repaired, and was specially fit for the transportation of coffee, and then rated there at A 2. Such evidence was irrelative; for no question was raised as to the seaworthiness of the vessel. Moreover, it confounded two distinct questions, the questions, to wit, of seaworthiness and of rating; and probably misled the jury. Finally, it did not tend to show her rating in New York (the only matter we assume important to be shown), as against the fact that she was actually rated there.

Messrs. Brent and May, contra:

Mr. Justice MILLER delivered the opinion of the court, and after stating principal facts, proceeded as follows:

title: Insurance Companies v. Wright


text: Talk:Insurance Companies v. Wright

title: Talk:Insurance Companies v. Wright