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Slidell v. Grandjean/Opinion of the Court

On the argument of these cases the contention of the plaintiffs was that the grant of Governor Galvez to Maurice Conway, on the 21st of June, 1777, embraced all the land in the rear of the original grant to him and Latil by Governor Unzaga, in November, 1774, included within the boundary lines of that grant extended to the limits of the possessions of the Spanish Crown. In support of that contention, reliance was placed upon the report of the commissioners appointed under the act of Congress of 1805, the plats of the surveyor Lafon and the alleged confirmation by the act of June 2d, 1858. We held that the grant of Galvez derived no aid from these sources, but must depend for its extent upon the language of the concession and the proceedings of the adjutant Andry in establishing its northern and southern boundaries; and that it was therefore limited to two arpents in the rear of the original grant.

The plaintiffs ask a rehearing, contending that if they are not entitled to the land claimed under the report of the commissioners construed by reference to the plats of Lafon and the confirmatory act of June 2d, 1858, they are entitled by virtue of the concession and accompanying report of Andry construed in accordance with the usages of the country, having the force of law, to forty arpents, the quantity alleged to be the amount intended in the absence of specific designation to be ceded in cases of grants in the rear of the land of proprietors on the river, thus giving to the two grants an extent of eighty arpents from the river. And the plaintiffs have presented so may considerations in support of this view, that the court will receive arguments from counsel upon this point, to be in writing and filed within two weeks from date. The clerk will give to the counsel of the plaintiffs and to the Attorney-General a copy of this memorandum.

Mr. Willis Drummond and Mr. Robert H. Bradford on this point filed a brief for appellants and plaintiffs in error.

J. D. Rouse and ''Wm. Grant'', for other appellees

FIELD, J.

Of these suits the first three are in equity; the fourth is at law. They were argued together, as they are all founded upon the supposed validity of the plaintiffs' title to the Conway division of the Houmas grant in Louisiana beyond the depth of 80 arpents from the Mississippi river. If their title beyond that depth be sustained, other questions will arise for consideration, but if that fails those questions will be unimportant. The Houmas grant is famous in the history of land titles in Louisiana, from the protracted controversy in the land department to which it gave rise, and the discussion created in congress by the attempt made to secure its legislative confirmation. The documents to which our attention has been called as sustaining the pretensions of the plaintiffs, or in opposition to them, are scattered through many volumes. They consist of the original proceedings and concessions under the Spanish government; the orders of the territorial governor and certificates of a local surveyer after the cession of the country to the United States; the proceedings of the board of commissioners created by congress to examine into and report upon land claims in that territory; various petitions to the officers of the land department, and their reports thereon; the opinion of the secretary of the treasury and of the attorney general upon the nature and extent of the grant, and the proceedings of congress in passing an act of confirmation, and subsequently repealing it. We shall endeavor to condense the history of the grant, and of the various proceedings taken with reference to it, into as narrow a compass as possible.

On the fifth of October, 1774, while Louisiana was under the dominion of Spain, certain tribes of Indians, known as the Houmas and Bayou Goula tribes, had possession of certain land situated on the left bank of the Mississippi river, about 22 leagues above New Orleans, and claimed some interest in it, the extent and nature of which are not given. Whatever that interest may have been, the Indians sold it on that day to two persons by the name of Maurice Conway and Alexander Latil for the consideration of $150. A conveyance of that date, executed at New Orleans before a notary public by one Calazare, describing himself as chief of the tribes, appointed such by the governor of the province, recites that the tract had once belonged to a Frenchman, that he had sold it to another Frenchman, who had abandoned it, and that afterwards, being vacant, the two Indian tribes fixed their residence upon it by permission of the governor. The chief, on behalf of the Indians, renouncing whatever rights they possessed, ceded the land to the purchasers, and stipulated that after obtaining the permissin of the governor they might possess it as absolute owners; that a copy of the instrument should be presented to that officer for his approval, without which they could not be permitted to take possession. It would thus seem that the right of the tribes was one of mere occupancy at hias will, and that the title at the time was in the Spanish crown. On the same day Unzaga, the governor of the province, approved the instrument thus executed, and, in pursuance of the authority vested in him, granted the land to the purchasers, directing them, however, to apply to him in order that full title papers-a complete title, as the language used is translated-might be issued to them. The words translated 'a complete title' refer, however, only to the instruments which constitute evidence of title and not to the estate or interest thereby conveyed. De Haro v. U.S. 5 Wall. 599.

The land granted is described in the conveyance of the Indians as a tract 'measuring upwards of half a league, at the distance of twenty-two leagues from this city, on this side of the river, joining on the upper side lands belongto John the Blacksmith, and on the lower side the place where are erected the huts in which the said two nations of Indians now live; but when the said huts will be taken away, to be transported on the other side of the river, the true boundary on the lower side will be the lands belonging to an old Acadian named Peter; so by the measurement which the said purchasers will make of the said tract of land, according to the said beundaries, its exact contents will be ascertained.' It will be perceived from this description of the land that no depth is given. On the first of November following, the governor executed to the purchasers a formal grant, describing the tract as having 'the common depth of forty arpents.' The tract was thus rendered susceptible of identification and measurement. Its front bordered on the river; its side lines were determinable by adjoining tracts; and it was of the depth mentioned. When grants fronting on the river were made by the Spanish overnment, it was customary to reserve, to the depth of 40 additional arpents, the lands immediately in the rear, to be used by the front proprietros for pasturage, or to obtain timber for fences or for fuel. The law on this subject, which prevailed in the province, is very clearly and distinctly stated by Mr. Justice CATRON in delivering the opinion of this court in surgett v. Lapice, 8 How. 66. He says that 'the grants were not large, and fronted on the river only to the extent of from two to eight arpents as a general rule, and almost uniformly extended forty arpents back; to these front grants the Spanish government reserved the back lands to another depth of forty arpents; and although few, if any, grants were made of back lands in favor of front proprietors, still they were never granted by the Spanish government to any other proprietor, but used for the purpose of obtaining fuel and for pasturage by the front owners so that, for all practical purposes, they were the beneficial proprietors, subject to the policy of levees, and of guarded protection to front owners. We took possession of Lower Louisiana in 1804, [December, 1803;] in 1805 commissioners were appointed, according to an act of congress, to report on the French and Spanish claims in that section of country; and by the act of April 21, 1806, it was made a part of their duty 'to inquire into the nature and extent of the claims which may arise from a right, or supposed right, to a double or additional concession on the back of grants or concessions heretofore made,' previous to the transfer of government, 'and to make a special report thereon to the secretary of the treasury, which report shall be by him laid before congress at their next ensuing session. And the lands which may be embraced by such report shall not be otherwise disposed of, until a decision of congress shall have been had thereon.' The commissioners were engaged nearly six years in the various and complicated duties imposed on them, and then reported that, by the laws and usages of the Spanish government, no front proprietor by his own act could acquire a right to land further back than the ordinary depth of forty arpents, and although that government invariably refused to grant the second depth to any other than the front proprietor, yet nothing short of a grant or warrant of survey from the governor could confer a title or right to the land; wherefore they rejected claims for the second depth, as not having passed as private property to the front proprietor under the stipulations of the treaty by which Louisiana was acquired.'

On the ninth of September, 1776, nearly two years after obtaining the grant, Conway presented a petition to the governor stating that he was about to settle on the lands which he and Latil had purchased of the Indians; that he had acquired Latil's interest; that the lands were destitute of fences, and were cleared for upwards of a league in depth in 'such a manner' that the cypress trees might be 'about a league and a half from the river;' and that as the grant extended only 40 arpents, he could not have access to them to obtain timber for his fences, and other uses of his plantation. He, therefore, prayed the governor to grant him all the depth which might be vacant at the end of his forty arpents, and that Louis Andry, the governor's adjutant, might be appointed to put him in possession of the front and depth 'by fixing the needful boundaries,' and furnishing him 'with copies of the whole transaction' for his 'use and guidance.' Upon this petition the governor directed Andry to go upon the land and give the petitioner possession of that which might be vacant after the forty arpents in depth, and to make a report of his proceedings-a process verbal, as it is termed-in order that full title papers-'a complete title,' in the translation-might be issued to the claimant. In October following, this order was executed by Andry. He went upon the land and first measured its front u on the river and ascertained it to be 96 arpents. Owing to its situation on a bend of the Mississippi, the tract widened as it receded from the river. He then ran the upper line north 50 degrees west to the depth of 40 arpents from the river, 'opening for that purpose a road through the woods,' and placed there a stake of cypress. He then extended the line two arpents more, and placed another similar stake. He then proceeded to draw in the same way the southern lin of the grant, running it north 70 degrees east, going for that purpose a part of the distance through woods, and placing a boundary stake of cypress at the depth of 40 arpents, and also at the further depth of two arpents more, 'in order,' as he stated, 'to keep the course.' Of his proceedings on this survey Andry made a detailed report. On the twenty-first day of June of the following year Galvez, the successor of Unzaga as governor of the province, made to Conway a grant of the land thus surveyed. In the instrument executed by him he recites that he had seen the report of the proceedings of the adjutant of the town relating to the possession given to Conway, pursuant to the order of his predecessor, 'of all the vacant land lying behind and in the rear of the first forty arpents' which he then possessed 'by ninety-six arpents in front on the river,' and that the adjutant had followed the directions (lines extended) of the original concession, and that these conformed to the rules of survey and to the concessions of adjoining proprietors. He thereupon approved of the proceedings of the adjutant, and granted to Conway 'the aforesaid land behind or at the end of the forty arpents which contain his plantation.'

These are all the papers relating to the title to the Houmas grant, executed by the authority of the governor of the province while it belonged to Spain,

As no back line is designated to the second grant, its dimensions must be found, if at all, in the limitation to such grants imposed upon the authority of the governor by positive law or established usage. As seen from the opinion of the court in Surgett v. Lapice, it was the invariable custom of the Spanish government to reserve lands in the rear of grants on the river, to a depth of 40 arpents, for the use of the front proprietors. They were always regarded as having a preference right to become the purchasers of those lands; they were never granted to other parties. So well established was this rule in the usages of the province that it was deemed by our government, after the acquisition of the country, to create in the front proprietor an equitable right to such preference. Accordingly congress, by the act of March 3, 1811, provided that every person who owned 'a tract of land bordering on any river, creek, bayou, or water-course' in the territory of Orleans, and not exceeding in depth 40 arpents, French measure, should be 'entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to and back of his own tract, not exceeding forty arpents, French measure, in depth, nor in quantity of land that which is contained in his own tract,' at the price and on the terms and conditions prescribed for other lands in the territory. The usage of the country determined the depth of these grants of land in the rear of the premises of the front proprietors. In Jourdan v. Barrett this court, speaking of these concessions, said: 'That back lands, at all times, meant those in the rear between the extended front lines in the rear, to the distances of forty arpents, (each line being a straight one throughout,) we * suppose to be undoubted, as a general rule, although there may have been exceptions to it.' 4 How. 182. By reason of this usage it was only deemed essential, in surveying the second concession, to mark the courses of the upper and lower lines of the tract, the other boundaries being readily ascertained, one by the rear line of the original grant, and the other by a line drawn at a distance of 8 arpents from the river. This practice of surveyors is abundantly established by the documents accompanying the proceedings of congress, or of its committees, with respect to the Houmas grant.

The usages and customs prevailing in the province of Louisiana, affecting the alienation of lands, are to be respected in considering the rights of grantees of the former government. Usages long established and followed have, to a great extent, the efficacy of law in all countries. They control the construction and qualify and limit the force of positive enactments. In Spain, and in her dependencies, great weight is given to such usages in the adjustment of rights of property. 'Legitimate custom,' says Escriche, 'acquires the force of law not only when there is no law to the contrary, but also when its effect is to abrogate any former law which may be opposed to it, as well as to explain that which is doubtful. Hence, it is said that there may be a custom without law, in opposition to law, and according to law.' Escriche's Derecho Espanol, 23, 24; Panaud v. Jones, 1 Cal. 499.

In U.S. v. Arredondo this court, in considering a grant of land in Florida made by the king of Spain, said: 'The court not only may, but are bound to, notice and respect general customs and usage as the law of the land equally with the written law, and, when clearly proved, they will control the general law.' 6 Pet. 715.

Looking at the grant of Galvez and the survey of Andry in the light of the usage prevailing in the province, we have no difficulty in fixing its limits. It was for an additional 40 arpents in the rear of the original concession, the lines of that concession being extended in the same course to the depth of 80 parents from the river. To that extent the grant was complete. Had the holders of it confined their claim to the land thus limited, there would not probably have been much, if any, controversy with the United States. But owing to the use of the words 'all the vacant land' lying in the rear of the 40 arpents, in the recital of the grant, a pretension was set up, after the cession of the country to the United States, that the grant covered all the vacant land within the lines of the original concession extended to the limits of the possessions of the Spanish crown. This pretension was so obviously preposterous that it would not merit consideration but for the bitter and protracted controversy to which it gave rise. The petition, by Conway, for a grant of the land in the rear of his 40 arpents, though asking for all the depth which might be vacant, was made simply to secure all such land to the ordinary and well-understood depth of 40 additional arpents, from which he might obtain timber for fuel, fences, and other uses of his plantation. The object of reserving from grant to others the land in the rear of proprietors on the river, according to the custom obtaining in the province, was, as before stated, simply to give facilities to them in the use and improvement of their river plantations. The original concession to Conway and Latil embraced less than 4,000 acres. The land claimed under the second grant to Conway exceeds 180,000 acres, an augmentation for a timber privilege which could never be allowed except upon the clearest language, admitting no other reasonable construction. The words of the recital in the grant are necessarily controlled by the usage of the country, which limited the extent of such second grant, as already mentioned. If not thus limited, no means existed for ascertaining its extent, and it was therefore void for uncertainty. The conjectural estimate of the distance of the cypress trees, stated to be, owing to the manner in which the lands were cleared, about a league and a helf from the river, is too vague to affect the boundaries of the grant against the force of the general usage. In the Spanish law, as at the common law, grants furnishing no available means of identifying the land were necessarily inoperative and void. If the instrument execu ed by the governor was intended to transfer all the lands between the boundary lines of the original grant, extended indefinitely whenever, as alleged in the complaint, it might 'suit the convenience or interests' of Conway, it was a void act. He possessed no such unlimited authority to alienate the public lands of Spain.

The territory of Louisana was ceded by Spain to France in October, 1800, and by France to the United States on the thirtieth of April, 1803. It was formally transferred on the twentieth of December following. It was stipulated by the treaty of cession that the inhabitants should be incorporated into the Union and admitted as such, as soon as possible, to the rights of citizenship, and that in the mean time they shoud be maintained and protected in the free enjoyment of their liberty, property, and religion. The stipulation as to property has been held to embrace all titles to lands, whether legal or equitable, perfect or imperfect. In Soulard v. U.S. this court said: It 'comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract,-those which are executory as well as those which are executed. In this respect the relation of the inhabtants to their government is not changed. The new government takes the place of that which has passed away.' 4 Pet. 512. See, also, Hornsby v. U.S. 10 Wall. 242.

After the cession in April, 1803, congress, in anticipation of the delivery of the territory, passed the act of October 31, 1803, to enable the president to take possession of it, and for its temporary government. The act provided among other things, that, until the expiration of the then existing session of congress, unless provision for the temporary government of the territory should be sooner made, the military, civil, and judicial powers, exercised by the officers of the existing government, should be vested in such person or persons, and should be exercised in such manner, as the president might direct for maintaining and protecting the inhabitants of Louisiana in the full enjoyment of their liberty, property, and religion. 2 st. 245. Under this law the president appointed William C.C. Claiborne, of Mississippi, governor of Louisiana. Soon afterwards a petition was presented to him by William Donaldson, William Marriner, and Patrick Conway for a survey of the land known as the Houmas, they representing themselves to be its owners, and stating that they were desirous of ascertaining its outlines and boundaries with such precision as to avoid any interference with the proprietors of neighboring grants, and thereby prevent disputes; and praying that he would permit William Marriner, or such other person as might be appointed for that purpose, to survey the tract and mark the boundaries; and that he would direct the proprietors of adjoining patents to show their boundaries to the surveyor, and the commander of the district to protect him from unlawful disturbance in the prosecution of his work. Upon this petition the governor made the following order: 'The proprietors of land adjoining the tract within mentioned are requested to show their respective boundaries, and the commandant of the district, if necessary, will extend to the surveyor his protection.' The petition and order are without date, and it does not appear what was done, if anything, under the order, except what may perhaps be inferred from a plat of a survey subsequently prepared by one Lafon in 1806, and filed with the register of the land-office with notice of the claims of Conway and others. Of this plat we shall presently speak. It is assumed in the bill of complaint and in the argument of counsel that the survey was made under the authority of the governor by persons appointed by him for that purpose, and that the tract was subdivided by them into three separate parcels, designated after those who at the time had become owners thereof, the first or northern one of which being called the Donaldson and Scott tract, the second or middle one the Daniel Clark tract, and the lower or southern one the William Conway tract.

On the twenty-sixth of March, 1804, congress passed an act dividing Louisiana into two territories, one of which was called the territory of Orleans, the other the district of Louisiana. The former territory embraced the land covered by the Houmas grant. The act provided for a government for each of them. The fourth section prohibited the governor from interfering with the primary disposal of the soil, or with claims to land within it. 2 St. 283, 287. On the second of March, 1805, congress passed an act for ascertaining and adjusting the titles and claims to lands within the territories. Id. 324. It provided that the territory of Orleans should be divided into two districts, in such a manner as the president should direct, for each of which a register was to be appointed. The two districts into which the territory was accordingly divided were termed the Eastern and Western districts. The Houmas grant was in the Eastern district. The act permitted persons claiming lands in the territories 'by virtue of any legal French or Spanish grant made and completed before October 1, 1800, and during the time the government which made such grant had the actual possession of the territories,' and required persons claiming lands by virtue of a registered warrant or order of survey, or by any grant or incomplete title bearing date subsequent to October 1, 1800, to deliver before March 1, 1806, to the register or recorder of land titles of the district, a notice stating the nature and extent of their respective claims, together with a plat of the tract or tracts claimed, and to deliver to such officer for record the written evidence of their titles, which were to be recorded by him; except where lands were claimed under a complete French or Spanish grant; it was only necessary to record 'the orginal grant or patent, together with the warrant, or order of survey, and the plat.' Their evidence or deeds were to be deposited with the register or recorder, to be laid before the board of commissioners, for the creation of which the act also provided. It declared that two persons, to be appointed by the president for each district of the territory of Orleans should, together with the register or recorder of the district, be commissioners for the purpose of ascertaining, within their respective districts, the rights of persons claiming under any French or Spenish grant, or by the incomplete titles mentioned. The board, or a majority of its members, was authorized to hear and decide, in a summary manner, all matters respecting the claims presented to them; to administer oaths, compel the attendance of witnesses and the production of the public records in which grants of land, warrants, or orders of survey, or other evidences of claims to land, derived from the French or Spanish governments were recorded; to take transcripts of them or any part of them, and to have access to all other records of a public nature, relating to the granting, sale, or transfer of land; and to decide, in a summary way, according to justice and equity, on all claims filed with the register or recorder, in conformity with the act, and on all complete French or Spanish grants, the evidence of which, though not thus filed, might be found on the public records of such grants; and that their decisions should be laid before congress, and be subject to its determination.

For this latter purpose the clerk of the commissioners was required to prepare two transcripts of the decisions in favor of the claimants, each to be signed by a majority of the commissioners, one of which was to be transmitted to the surveyor general of the district, and the other to the secretary of the treasury. And the commissioners were required to make to the secretary a report of the claims rejected, with the evidence offered in their support; and he was required to lay the transcripts and reports before congr §§ at its next session. Under the act the claimants of the Houmas tract delivered to the register of the land-office at New Orleans notices of their respective claims to the land which they asserted was covered by the grant to Maurice Conway made by Gov. Galvez, June 21, 1777; Donaldson and Scott to the upper subdivision, Daniel Clark to the middle subdivision, and William Conway to the lower one. Each of these claimants deduced his title from Maurice Conway, and accompanied his notice with a plat of a survey by one Lafon, to whom reference is made above. These plats do not purport to have been prepared entirely from his own surveys, but chiefly by reliance upon the surveys of others. In the certificate given to Donaldson and Scott, which bears date December 28, 1804, he describes himself as a surveyor commissioned by Gov. Claiborne, though not for any particular survey, and certifies to the plat from a survey made by Marriner and from measurements by himself on the river Iberville. In the certificate given to Daniel Clark, which bears date September 25, 1805, he certifies from surveys of Marriner and measurements of his own on the river Amite and environs of Galveston, a village on that river. In the certificate to William Conway, which bears date February 20, 1806, he describes himself as deputized by one Isaac Briggs, surveyor general of lands south of Tennessee, and certifies to the plat from surveys executed by Andry in 1804, and by himself on the river Amite in 1803. These plats cover all the land embraced within the lines of the original purchase by Conway and Latil from the Indian tribes in 1774, extended back, not only so as include the additional arpents surveyed by Andry in 1776, and granted by Gov. Galvez in 1777, but all the lands beyond these to the limits of the Spanish possessions, several miles distant from the river, and embracing over 180,000 acres. They possess no official character, and have no greater effect as evidence than any private surveys made at the request of claimants. The notices of the claims thus delivered to the register of the land-office were by him laid before the board of commissioners. The board confirmed the claims, following in its decree the description of the land given by the claimants, but not referring to the plat of Lafon. The notice of the claim of William Conway was presented to the board February 28, 1806, and is as follows:

'Notice of the Claim of William Conway, of the County of     Acadia, in the Eastern District of the Territory of Orleans.

'William Conway claims a tract of land situated in the county     aforesaid, at the place called Houmas, on the left bank of      the Mississippi, containing twenty-two and a half arpents in      front on said river, with an opening towards the rear of 60      degrees and 45 minutes, the upper line running N. 9 deg. 15     E., three hundred and fifty-one arpents, and the lower line      directed N. 70 deg. E., and measuring four hundred and     fifty-five arpents; bounded on the upper side by Daniel      Clark, and on the lower by Simon Laneau, as more fully      described in the annexed plat, executed by Bartholomew Lafon,      deputy surveyor, dated February 20, 1806.

'Part of said land, that is to say, seventeen arpents front,     were originally granted with a greater quantity by the      Spanish government to Maurice Conway, by virtue of a complete      title issued on the twenty-first day of June, 1777, as per      document No. 1, and the same conveyed to the claimant by the grantee aforesaid on the      twenty-seventh day of October, 1786, as per document No. 2.

'And the five and a half arpents remaining to the complement     of the 22 1/2 aforesaid were transferred to the claimant on      the twenty-seventh day of March, 1781, by Pierre Part, who      had purchased the same at the public sale made before Louis      Joudice, commandant of the parish of La Fourche, of the      estate of the late Joachim Mire, (alias Belony,) on the      seventh day of December, 1788, 'as it evidently appears by      the authenticated document hereunto annexed, No. 3.'

'It is to be observed that, although the deed of conveyance     of Maurice Conway aforesaid contains 27 arpents front, the      claimant only possesses seventeen, having disposed of the      other ten in favor of Daniel Clark.

'WILLIAM CONWAY.'

The decree of confirmation was made by the board on the third of March, 1806, and is as follows:

'No. 125. W. CONWAY.

'MONDAY, March 3, 1806.

'William Conway, aforesaid, claims a tract of land situated     in the county of Acadia, aforesaid, at a place called Houmas,      on the left bank of the Mississippi, containing twenty-two      and a half arpents in front, with an opening towards the rear      of sixty degrees, froty-five minutes, the upper line running      N. 9 deg. 15 min. E., three hundred and fifty-one arpents,     and the lower line directed N. 70 deg. E., and measuring four     hundred and fifty-five arpents; bounded on the upper side by      Daniel Clark's land, and on the lower side by land of Simon      Laneau; it appearing to the board from a patent or complete      title exhibited that seventeen arpents of front were,      together with a greater quantity, granted by the Spanish      government to Maurice Conway, June 21, 1777; and it appearing      that the five and a half arpents of front remaining of the      land aforesaid were purchased by Pierre Part at the public      sale of the estate of the late Joachim Mire, (alias Belony,)      on the seventh day of December, 1788; and it further      appearing to the board from two several instruments of      conveyance offered in testimony that the two tracts of land,      aforesaid, have been conveyed to the present claimant, the      board do hereby confirm his claim, aforesaid.' The confirmation of the claims of Donaldson and Scott and of Daniel Clark was substantially in the same form, differing only as to the lines within which it was alleged the lands lay. The claims were respectively designated as No. 133 and No. 127. The decisions were made before one of the commissioners had become a member of the board, and as soon as he qualified he dissented from them. This fact will be important in considering the effect of legislative confirmation in 1858. As required by the act of 1805, a transcript of the favorable decisions rendered by the commissioners, including these three, was duly forwarded to the secretary, who, in January, 1812, transmitted the same to congress. The decisions themselves were merely an expression of opinion by the commissioners. They had no effect upon the title of the claimants until approved by congress. Until then they amounted only to a recommendation of their favorable consideration by the government. No recognition of them by congress was made until the passage of the act of June 2, 1858, of which we shall hereafter speak. In the mean time efforts were constantly made to procure a recognition of their validity by the officers of the land dapartment, but without success, except in one instance-that by Secretary Bibb, in 1844. With that exception, and the decision of the two land commissioners, no officer of the government has ever recognized the validity of the grant by Gov. Galvez to the extent claimed by Conway and parties deducing their interest from him.

On the fourteenth of January, 1829, the surveyor general of Mississippi, ex officio surveyor general of Louisiana addressed a communication to the commissioner of the general land-office, inclosing a rough plat of the Houmas grant, showing its locality, the extent of land claimed, and its interference with other grants of the Spanish government. In it he stated that previously and subsequently to the date of the grant the Spanish authorities had made other grants to a number of individuals within the limits alleged to be covered by the claim of Conway, and that he believed no pretension to the present limits was made until after the right to the land had vested in the United States. He also stated as another reason why the grant could not be extended to the Amite river, that neither the petition of Conway, the decree of the governor, r the proceedings of the surveyor called for or exhibited any such boundaries; and that it was well known to be the custom of the Spanish surveyors, in all cases where a grant called for specific boundaries, to exhibit them in a plat of survey. He then considered where the boundaries were to be established, and he suggested that if we were to be governed by the customs of the Spanish government, we should run off such a depth as would extend the upper line until it intercepted an older grant. This he was of opinion would strictly conform to the decree of the Spanish governor, although it would not give the claim a depth of 80 arpents, which he thought was designed, if the land was found to be vacant. He then asked instructions to guide him, as surveyors were engaged in the immediate vicinity of the grant. To this communication the commissioner of the general land-office replied, under date of February 17, 1829, expressing the opinion that the grant made by Galvez in 1777 was so vague in its terms, both as to boundary and quantity, that it would be indispensably necessary for courts of justice to interfere for the purpose of defining and designating both; that the claim set up to all the vacant land which might be embraced between the northern and southern boundary of the original grant, if it were extended in the course called for, led to such absurdities that he thought it impossible that the courts could sanction it; that the object for which the grant was asked and obtained would, therefore, be the leading consideration on which the courts would probably decide the question; and, in so deciding, they might possibly confine the grant either to the limits of the survey actually made by Andry, or to 80 arpents, the usual extent granted when the front grant was deficient in timber, or to the distance of one league and a half, as requested in the petition; and that, if this last limitation was adopted, full scope would be given to the court to exercise its discretion; and if the grant could be adjudged to exceed these limits, it must extend to the utmost boundary of Louisiana. He therefore decided that a league and a half should not be open to entry, and gave instructions accordingly. Lands beyond that depth were therefore treated as public lands, and numerous entries of them were made at the district land-office.

Before this correspondence between the surveyor general and the land commissioner, Gen. Wade Hampton, of South Carolina, had acquired title to the claim made by Donaldson and Scott, and to that of Clarke; and, he having died, his heirs, through J. S. Preston, one of them, in June, 1836, applied to the land-office for a patent, and requested, if it could not be granted, that the land within the claims should be withheld from sale, and that patents should not be issued for the parcels already sold. To this application the commissioner, Mr. Ethan A. Brown, replied, addressing his communication to a senator from Louisiana, through whom the application was presented, stating that, inasmuch as he did not consider the claims, to the extent insisted on before the board of commissioners, recognized by the United States, the office could not issue a patent therefor; but as the law did not authorize the sale of any lands, the claim to which was filed with the commissioners for investigation, until the final action of congress thereon, he had directed the register of the land-office at New Orleans to withhold from entry all the lands within the limits of that claim, as described in the reports of the commissioners, and to report a list of all the lands sold within those limits, in order that patents might not be issued therefor. Notwithstanding this direction of the commissioner, it would seem that the land-officers at New Orleans approved of pre-emption settlements on the land claimed, and floats located there; and, in the following year, (1837,) complaints of these proceedings were made to the general land-office by Mr. Preston, on behalf of the heirs of Hampton. A communic tion from him on their behalf was also laid before the sentate, in which he prayed that the commissioner should be directed to refuse titles to those who had purchased by pre-emption or otherwise, by refunding the money paid and taking up the certificates of entry as far as possible, and also that he should be directed forth with to issue a patent for the whole claim. The memorial was presented and referred to the committee on private land claims, but nothing came from it. In the following year (1838) another effort was made to obtain the action of congress on the subject, which also failed. And from year to year afterwards communications were made by the claimants, or persons acting for them, to the land department to secure favorable action and a recognition of the validity of their claims, but always without success until 1844. It would serve no useful purpose to state with particularity the nature and contents of these communications. They are referred to now merely to show the general notoriety given to the pretensions of the claimants, and the princely domain which, under a grant of less than 4,000 acres on the river, was claimed by the grantee to enable him to obtain timber for his fences and fuel, and for other uses of his plantation. The general knowledge of the extravagant character of the claims, which may be inferred from these proceedings, may have had something to do with the phraseology used in the attempted confirmation in 1858, which we shall hereafter consider.

Sometime in the year 1841 a new idea as to their rights seems to have occurred to the claimants, namely, that the claims were confirmed by the act of congress of April 18, 1814, (3 St. 139.) Accordingly, in August, 1841, application was made to the commissioner of the general land-office, on behalf of Conway, for a patent of his claim, and in May, 1844, a similar application was made on behalf of Hampton's heirs for a patent of their claims. That act provided that certificates of confirmation to land lying in the land districts of Louisiana which had been issued under the act of March 3, 1807, and directed to be filed with the proper register of the land-office within 12 months after date, and certificates on claims included in the transcript of decisions made in favor of claimants and transmitted to the secretary of the treasury, should be delivered where the lands had not been already previously surveyed, to the principal deputy surveyor of the district and be surveyed; and for the tracts surveyed patents should be issued by the commissioner of the general land-office. As the claims under the Houmas grant were included in the transcript of favorable decisions transmitted to the secretary of the treasury, and by him laid before congress, it was contended that they were thereby confirmed. Mr. Bibb, the secretary of the treasury, and head of the land department, under the then existing law, concurred in this view; and his opinion was presented in a communication to the commissioner of the general land-office under date of August 12, 1844. In accordance with his opinion patents were issued to the heirs of Hampton for the claims presented by Donaldson and Scott and by Daniel Clark. This action of the secretary and the issue of the patents gave rise to much unpleasant comment; and soon after the meeting of congress in December following a resolution was passed by the senate, calling upon the secretary to communicate a copy of his opinion directing such issue, and of opinions by other officers connected with the general land-office in relation to the claims, and of the surveys and transcripts of confirmation.

As application had also been made for a patent of the Conway claim, the house of representatives, on the seventh of January, 1845, passed a joint resolution prohibiting the issue of patents or other evidences of title upon the Houmas grant until the further action of congress. The resolution, having been sent to the senate, was there amended; but upon being returned to the house on the last day of the session it was not taken up, and thus failed to become a law. The commissioners of the land-office, in view of this resolution, treated the application for a patent of the Conway claim as a suspended case. After the adjournment of congress applications for a patent were renewed; but the commissioner declined to act upon them, in face of the resolution of the two houses, which failed to become a law only because of dis agreement as to its terms, but not as to its general purpose to suspend the issue of a patent. In June of the following year (1846) the two houses of congress, by a joint resolution, directed the attorney general to examine the evidences of title founded upon the Houmas claims, and to report to the president his conclusions; and requested him, if they were against the legality of the patent issued or to be issued, to bring suits to have the same judicially determined. In response to this resolution, the attorney general made an extended examination of the title, stating in his report all the various proceeedings that had been taken in respect to it, and giving as his conclusion that the Houmas grant passed a title only to a tract 42 arpents deep from the river, and that the claimants had no legal or equitable right to any land beyond that depth; and that the act of April 18, 1814, under which patents had been issued for two of the claims, authorized patents only in cases of conflrmation under the act of 1807, which did not embrace more than one league square. In thus construing the terms of the grant, and limiting its extent, it is evident that the attorney general was goverened by the rules of the common law, rather than by the usages of the Spanish government applicable to the case. Upon this report the president directed that suits in equity be brought in the circuit court of the United States to cancel the patents. In one of them a decree was rendered in 1856 declaring the patent upon the claim to David Clark void, on the ground that the case was not within the act of 1814, the court avoiding the expression of any opinion as to the validity or extent of the claim. By a decree rendered within the last few years the patent upon the claim of Donaldson and Scott was also adjudged invalid.

This narrative brings us to the act of the second of June, 1858, entitled 'An act to provide for the location of certain confirmed private land claims in the state of Missouri, and for other purposes.' Its second section enacted 'that the decisions in favor of land claimants made by P. Grimes, Joshua Lewis, and Thomas Robertson, commissioners, appointed to adjust private land claims in the Eastern district of the territory of Orleans, communicated to the house of representatives by the secretary of the treasury, on the ninth day of January, one thousand eight hundred and twelve, and which is [are] found in the American State Papers, Public Lands, (Duff Green's edition,) volume two, from page two hundred and twenty-four to three hundred and sixty-seven, inclusive, be, and the same are hereby, confirmed, saving and reserving, however, to all adverse claimants, the right to assert the validity of their claims in a court or courts of justice: provided, however, that any claim so recommended for confirmation, but which may have been rejected, in whole or in part, by any subsequent board of commissioners, be, and the same is hereby, specially excepted from confirmation.' Its third section enacted 'That the locations authorized by the preceding section shall be entered with the register of the proper land-office, who shall, on application for that purpose, make out for such claimant, or his legal representatives, (as the case may be,) a certificate of location, which shall be transmitted to the commissioner of the general land-office; and if it shall appear to the satisfaction of the said commissioner that said certificate has been fairly obtained, according to the true intent and meaning of this act, then, and in that case, patents shall be issued for the land so located, as in other cases.' The passage of this act at once excited great commotion among a large number of persons who occupied the land claimed under the Houmas grant, amounting, as stated by counsel, to nearly 5,000. Measures were at once taken to prevent its provisions being carried out. On the third of March, 1859, congress passed a joint resolution suspending the operation and effect of the second section until the end of the thirty-sixth congress, so that no patent, or patents, should be issued, nor any action be had by the executive branch or department of the government, or any officer or agent thereof, by virtue of it. And, on the twenty-first of June, 1860, congress passed an act repealing the second section, and declaring that it refused to confirm to the claimants under the Houmas grant the lands embraced in the certificates, No. 125 to William Conway, No. 127 to Daniel Clark, and No. 133 to Donaldson and Scott. The principal questions for our consideration arise upon the construction of the first of these acts, and the effect of its repeal upon the confirmation of the claims. In the first place, it is to be observed that the decisions which are confirmed by the second section of the act of 1858 are not described as those of the board of commissioners, nor of the commissioners generally, appointed to adjust private land claims in the Eastern district of the territory of Orleans, which designation might be taken as referring to the board as a special tribunal, but as those rendered in favor of the claimants by the three commissioners designated by name. There were good reasons for this. The three decisions which relate to the claims under the Houmas grant were made by only two of the commissioners. The third commissioner, who joined in the other decisions, was not a member of the board when these three were rendered; but, as soon as he became a member, he expressed his dissent from them. This dissent accompanies the report of the decisions made to the secretary of the treasury, and laid by him before the house of representatives, and is found in the volume to which reference is made, immediately following the three decisions, in these words: 'The three foregoing decisions were made before I became a member of the board. As far as I am authorized to do so, I dissent from the same. THOMAS B. ROBERTSON.'

To the volume of state papers mentioned every one would be obliged to look in order to learn what claims were confirmed; and there this statement would confront him. When we consider the notoriety given to the extravagant claims under the Houmas grant; the continued opposition of all the officers of the government, with one exception, to a recognition of them; the failure of repeated efforts to secure favorable action from congress; the pendency of legal proceedings authorized by congress to vacate patents issued upon two of them; the large number of persons in possession, who claimed under sales of the government, a fact which had been repeatedly brought to the attention of congress,-we are forced to the conclusion that the limitation of the act to favorable decisions made by the three commissioners was intentional, and that they were named, ex industria, to exclude from confirmation the claims under the Houmas grant, which had given rise to so much controversy and litigation, and had been so uniformly denounced and repudiated.

The position of the plaintiffs, that congress must have intended to include all reports made by the board because under the act of 1805 a majority of its members were authorized to act upon and determine the validity of claims presented, does not strike us as a logical conclusion. It would rather seem to strengthen our construction, for by naming decisions made by the three commissioners the act indicates that congress intended to refuse a confirmation of decisions made by two of them. If it had intended to confirm all favorable decisions of the board, whether made by  majority of its members or by them all, its intention could have been expressed by simply mentioning the board, without designating its members, as had been usual where the decisions of similar boards were confirmed. The present instance is the only one, it is believed, where, in the legislation of congress confirming grants, the names of the commissioners whose favorable action was approved have been mentioned. This departure from the ordinary language in such cases was, we think, for a special purpose. We must assume that the members, by whose vote the act became a law, fully weighed its meaning and intended what it expressed. It is also a familiar rule of construction that where a statute operates as a grant of public property to an individual, or the relinquishment of a public interest, and there is a doubt as to the meaning of its terms, or as to its general purpose, that construction should be adopted which will support the claim of the government rather than that of the individual. Nothing can be inferred against the state. As a reason for this rule it is often stated that such acts are usually drawn by interested parties; and they are presumed to claim all they are entitled to. The rule has been adopted and followed by this court in many instances in the construction of statutes of this description. Charles River Bridge Co. v. Warren Bridge, 11 Pet. 536; Dubuque R. Co. v. Litchfield, 23 How. 88; Delaware Railroad tax, 18 Wall. 206. The rule is a wise one; it serves to defeat any purpose concealed by the skillful use of terms, to accomplish something not apparent on the face of the act, and thus sanctions only open dealing with legislative bodies.

If the construction we thus give is sound there is an end of the plaintiffs' case, and their extravagant pretensions are dissipated. The subsequent repeal of the section affected no rights, and was justified by the fact that what was never intended by the section was claimed under it. But if we are wrong in this construction, and we should hold that the purpose of the second section of the act of 1858 was to confirm the decisions of the three claims under the Houmas grant, though made by only two of the three commissioners instead of the three named, the case of the plaintiffs would not be advanced. The decisions confirmed the claims,-that is, recognized them as founded in justice and equity, in accordance with which the commissioners were directed to proceed; and the act of 1858 approves of those decisions. What then were the claims? The plat of Lafon, as already mentioned, had no official character, and was prepared by him after the cession of the country to the United States. It was not evidence of any kind. The commissioners could pass only upon evidence of title existing before the cession. If the plat, which accompanied the notice of the claims delivered to the register of the land-office, was laid before the commissioners with that notice, they do not appear to have followed it, nor to have paid any attention to it in their decisions. They only confirm the claims as described in the application of the claimants, that of Conway, for a tract on the left bank of the Mississippi, having a front of 22 1/2 arpents, with its northern line running N. 9 deg. 15 min. E., 351 arpents, and the lower line directed N. 70 deg. E., and measuring 455 arpents, and bounded on the upper and lower sides by the lands of certain proprietors. If the established usages of the country, limiting the extent of the grant upon which the claims are founded, are regarded, then the confirmation is only of a tract to which the claimants have a perfect title without it. If, however, those usages are disregarded, the claims are for land of which no quantity is given and no boundary stated, ans for their ascertainment no rule is furnished. The confirmation in that case would be void for uncertainty. No court can treat a claim as conferring a right to a specific tract until its boundaries are capable of ident fication or have been established by a survey. A mere claim to something without form and shape or means of segregation can have no judicial enforcement.

It is not necessary to call in question or to qualify any of the adjudications cited by counsel as to the efficacy of a legislative confirmation of a claim to land. We had occasion to speak upon that subject in Langdeau v. Hanes, 21 Wall. 521. We there said that such a confirmation was a recognition of the validity of the claim, and operated as effectually as a grant or quitclaim from the government; that if the claim was to land with defined boundaries, or capable of identification, the legislative confirmation perfected the title to the tract; but if the claim was to quantity, and not a specific tract capable of identification, a segregation by survey would be required, and the confirmation would then attach the title to the land segregated. Necessarily the legislative action cannot go beyond that which is claimed. If only something without form and shape is claimed, a confirmation of the claim will amount only to a declaration that the claimant is entitled to that something, but it will not give him a standing in court against occupants of specific tracts under color of title. Here the claim confirmed, upon the theory of the plaintiff, that the grant is not limited in depth to the additional 40 arpents, is neither to a specific tract, nor to a specific quantity; and until both are ascertained by action of the executive officers of the government, under a law authorizing such action, the court is powerless in the matter. The confirmation, therefore, by the second section of the act of 1858, assuming that it covers the claims under the Houmas grant for an indefinite quantity back of the first concession, did not operate to vest a title to any particular land in the claimants. It amounted only to a declaration that they were entitled to something to which, when ascertained, the government would grant them a title. As stated by counsel, the position of the government upon that theory of the grant is like that of a donor who has promised to one a gift of land when he shall make a selection of it. In such case the gift is executory until the selection is made; and until then the title remains with the donor, whom the courts cannot compel to make a conveyance. So, upon that theory, the act of 1860, repealing the second section of the act of 1858, is not to be regarded as the revocation of a grant, but as a declaration that the promised donation will not be made. In any view, therefore, in which the case of the claimants is examined, we find nothing to sustain their pretensions. They have no title to the lands claimed under the grant in question, beyond the depth of 80 arpents from the Mississippi river, which the courts can recognize as a basis for action against parties in possession, holding under sales from the government. This result renders it unnecessary to notice other questions which would arise for consideration were our conclusions different.

Judgments affirmed.


text: Talk:Slidell v. Grandjean/Opinion of the Court

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


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Corn Exchange National Bank v. Scheppers

N. H. Sharpless and John C. Bullett, for plaintiff in error.

C. E. Morgan, Jr., for defendant in error.

MILLER, J.


text: Talk:Corn Exchange National Bank v. Scheppers


text:
Corn Exchange National Bank v. Scheppers/Opinion of the Court

The plaintiff in error (who was plaintiff below) brought its suit against the defendants on five promissory notes held by the bank, made by the defendants in their partnership name of Scheppers Bros., payable to their own order and indorsed by them in blank. Defendants pleaded nonassumpsit, and, on trial by jury, a verdict and a judgment on it was rendered in favor of defendants. A bill of exceptions was taken, on which arises the only question in the case for our consideration. From this it appears that the notes sued on were the last of several renewals of two notes of $5,000 each, which had been delivered by defendants to the business firm of Benjamin Bullock's Sons, wool brokers, and by them delivered to the bank. No question arises, as these notes were negotiable, that if the bank received them, as it alleges, as collateral security for a debt of Benjamin Bullock's Sons to it, that plaintiff must recover in this action. On the other hand, if the two notes were merely left in the office of the bank for safe-keeping, temporarily, as sworn to by Joseph Bullock, a partner in the firm of Benjamin Bullock's Sons, then plaintiff should not recover. This was the only question finally submitted to the jury.

It appears by the bill of exceptions, and it is so stated in the charge of the court to the jury, that the 'testimony of Mr. Bullock and Mr. Schetky (the cashier of the bank) is in direct conflict, and the question involved in the case depends mainly upon the credit which you shall attach to what the one or the other of these witnesses says. The claim and right of the bank as set up rests on a receipt of the notes fro Joseph Bullock, as collateral security for the $50,000 loan. Joseph Bullock testifies that the bank did not so receive them, while Mr. Schetky testifies that it did; which of these witnesses will you believe?' To aid the jury in the solution of this question, the judge, at three different points in his charge, told them, without qualification, that Mr. Bullock had received these notes of defendants to be used for the purchase of wool for them, and for no other purpose, and that it would have been a breach of faith on his part to use them as security for this loan. 'Is it probable,' he says, 'that Mr. Bullock would voluntarily have made such a disposition of collaterals for a debt already in existence, especially as he would have to break his faith with Scheppers Bros., by misapplying their property to his own use? I do not [he says] suggest that it is or is not probable that he would do this, but simply submit the consideration to you as one that properly arises in passing upon the question involved.' The plaintiff excepted to this part of the charge, not on the ground that if these notes were in the possession of Bullock, with no other right than to use them for the benefit of defendants in purchasing wool, the inference suggested was not justified, but that the court erred in assuming the fact to be that the notes were held by Bullock for that purpose alone. Whether the judge was correct in this assumption is mainly to be ascertained from the written contract between defendants and Bullock's Sons, and the language of certain receipts given by the latter for notes received from Scheppers Bros. The first of these is as follows:

'PHILADELPHIA, May 29, 1873.

'Benjamin Bullock's Sons, Philadelphia-GENTLEMEN: We wish you     to purchase for us 300,000 pounds of fleece, washed,      tub-washed, and unwashed wool, in Pennsylvania and Ohio, at      first cost, not exceeding 42 and a half cents for washed wool      and 30 cents for unwashed; said wool to be purchased with a      specialty for the combing and delaine qualities. It is     distinctly understood you will charge, in addition to the      above prices, a commission of two cents per pound, which is      the commission you pay your agents. We also agree to pay     freight, drayage, storage, and insurance on same, and allow      you 5 per cent, commission on the actual cost of the above      wool. We will issue our notes from time to time, as you may     require, and at such dates as we can mutually agree on; said      paper to be converted into money for our account at the market rate. We agree, should we desire to sell any portion     of the wool,-that is, clothing,-we will allow you 5 per cent. commission for selling, grading, and guarantying the sale.

[Signed]

'SCHEPPERS BROTHERS.

'PHILADELPHIA, May 29, 1873.

'The above order we accept, and shall endeavor to fill to the     best of our ability.

Very truly,

'BENJAMIN BULLOCK'S SONS.'

Another order, of July the 3d, enlarged the amount of wool to be purchased 500,000 pounds, making 800,000 pounds in all. In the course of this business, and between May 29th and August 1st, inclusive, many notes of defendants were delivered to Bullock's Sons, and by them negotiated. Receipts were given for these notes, which are produced, to the number of six or seven. Some express on their face that the notes are received for wool purchased. Others say on account of wool purchased or to be purchased. One dated June 23d acknowledges the receipt of 20 notes of $5,000 each, amounting to $100,000, the concluding words of which are: 'These notes being issued for our benefit, to be protected by us at maturity. BENJAMIN BULLOCK'S SONS.' It was fully proved that these latter notes were understood to be accommodation paper. The last of these receipts, the one which embraces the two notes in question, reads thus:

'Received, Philadelphia, August 1, 1873, of Scheppers     Brothers their 30 promissory notes, each for $5,000, maturing      as follows: 1 January 2-5, 1 January 5-8, 1 January 7-10, 1      Janua y 14-17, 1 January 18-21, 1 January 21-24, 1 January      25-28, 2 January 28-31, 2 February 4-7, 2 February 8-11, 2      February 11-14, 3 February 15-18, 2 February 18-21, 3      February 22-25, 4 February 25-28, aggregating in amount      $150,000, for purchase of wool, or to be protected by us at      maturity.

BENJAMIN BULLOCK'S SONS.'

We have, then, three classes of receipts given by Bullock's Sons for notes received of Scheppers Bros. during this two months' dealing. One class, the most numerous, expresses that the notes were received for wool purchased or for wool to be purchased, and having reference, no doubt, to the contract on that subject. Another acknowledges the receipt of notes to the amount of $100,000, to be used as accomodation paper, to be protected, at maturity, by Bullock's Sons. The third,-the one which was given for the two notes in question, and twenty-eight others,-which are said to be 'for purchase of wool, or to be protected by us (Bullock's Sons) at maturity.' We do not think, in the light of all the circumstances, and the other receipts, and the admitted fact that Scheppers Bros. had, only a few weeks before, issued them the accommodation notes for $100,000, this receipt can mean anything but this: 'So far as we use these notes for the purchase of wool for Scheppers Bros. they will pay them at maturity, and so far as we may use them for our own benefit, as accommodation paper, they are to be protected by us,' There is no inconsistency in the idea that Scheppers Bros. so trusted them. They had done so to the extent of $100,000. They were still buying wool for them under the contract. Of this large sum of $150,000, Bullock's Sons could be trusted to use some of the notes for their own benefit on their promise to protect the notes so used, while they would probably use some of them, possibly all of them, in purchase of wool under the contract, in which case Scheppers Bros. must pay them as they matured. In no other way can any meaning be given to the alternative words at the close of the receipt, 'or to be protected by us at maturity.'

This view is not varied by the oral testimony of two witnesses, who state that the notes in this receipt were given to be used for the purchase of wool, as they understood it, but neither of these is the person who signed the receipt, and neither of them say that there was no permission to use some of the notes for the accommodation of Bullock's Sons. To say they were to be used for purchase of wool is to repeat what the receipt says, and is in accord with it. To deny that some of them might be used for the benefit of Bullock's Sons is to contradict the receipt, and no one does deny it in express terms. If, however, any witness had so sworn who was present when the receipt was signed and the notes were delivered, it was a question for the jury whether his statement or the writing produced was the most credible, and this question the judge took from them by his peremptory instruction, three times repeated, that there was no right in Bullock's Sons to pledge the notes as collateral for their own debt, and to do so was to break faith with Scheppers Bros. For this error, important in the narrow point in issue, the judgment of the circuit court is reversed, and the case remanded for a new trial.


text: Talk:Corn Exchange National Bank v. Scheppers/Opinion of the Court


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Page:Copyright, Its History And Its Law (1912).djvu/256

 artistic element distinct from that of the original work of art which has been reproduced.

"14. (i) Drawings or plastic works of a scientific or technical character. — This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc.

"15 (j) Photographs. — This term covers all positive prints from photographic negatives, including those from moving-picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings.

"16. (k) Prints and pictorial illustrations. — This term comprises all printed pictures not included in the various other classes enumerated above.

"Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles.

"Postal cards cannot be copyrighted as such. The pictures thereon may be registered as ' prints or pictorial illustrations' or as 'photographs.' Text matter on a postal card may be of such a character that it may be registered as a ' book.'

"Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation 'prints and pictorial illustrations.' Trademarks cannot be copyrighted nor registered in the Copyright Office."

The new law does not specifically make clear the relation between the exhibition of works of art and publication, or define whether or not exhibition may constitute dedication to the public and thus prevent the protection of the copyright thereafter. But in


text:
Quinn v. Chapman

S. W. Holladay and

Barclay Henley, for plaintiff in error.

''Geo. A. Nourse'', for defendant in error.

MILLER, J.

title: Quinn v. Chapman


text: Talk:Quinn v. Chapman

title: Talk:Quinn v. Chapman


text:
Quinn v. Chapman/Opinion of the Court

This is a writ of error to the supreme court of California. The foundation of the writ is that the court, in a controversy which involved the ownership of land, decided, adversely to plaintiff in error, a right or claim set up by him under the laws of the United States concerning the sale and pre-emption of public lands. The facts on which this question arises are not much controverted in the record, nor are they very complicated; and they are these: G orge Hollingsworth made a settlement on the land in question in 1853, and built a house thereon, and died in possession, and was buried there in 1854. His wife and children, all of whom were minors, were then in Missouri, where she died, two years later. At that time the land in question was claimed as part of a Mexican grant to Joseph De Haro. The final survey of the confirmed grant of De Haro was made and filed in the local land-office, March 19, 1868, by which it was ascertained that the land in question was not a part of that grant, and, under the decisions of this court in the cases of Newhall v. Sanger, 92 U.S. 761, and Von Reynegan v. Bolton, 95 U.S. 33, it then became subject to entry and pre-emption for the first time. Chapman, defendant in error, having been appointed administrator of Hollings worth, for the purpose of perfecting the title of Hollingsworth's heirs to the land, filed in their name the declaratory statement, which the law requires for pre-emption, on the eighth day of April, just 20 days after the filing of the maps of the survey in the local office, and the next day after his appointment as administrator. He prosecuted this claim vigorously, his right being contested before the land department by a man named Bepler, who claimed a superior right as pre-emptor, and by the state of California, which claimed it as part of the school-section grant by act of congress. He was successful, and by order of the secretary of the interior, to whom this case had been appealed, a patent for the land was issued, May 20, 1872, to the heirs of Hollingsworth. By a conveyance from part of these heirs Chapman became owner of one undivided half of this property, on which he recovered judgment against Quinn in the present action of ejectment. In that suit, Quinn, by way of defense and cross-complaint, set up that he had a superior equity to the land, and prayed a conveyance from Chapman of the legal title. Several matters are set forth as grounds of this equity which are not proved, such as frauds practiced by Chapman on the land department, and that Hollingsworth made his settlement and improvement for his brother, and not for himself. But the point on which his case turns is his own settlement, and efforts to secure a pre-emption right to the same land. It appears that he was a foreigner, and a few days after he had filed his declaration of intention to become a citizen he went upon the land in question, on February 5, 1869, which is about 10 months after Chapman's declaratory statement was filed, and built a house and made other improvements, and within three months thereafter tendered to the register of the land-office his declaratory statement to pre-empt the land. This officer refused to receive it, because the contest for the land between Chapman, Bepler, and the state of California, for the right to it, was then far advanced before the register and receiver. On appeal by him to the commissioner, and thence to the secretary of the interior, this action of the register was confirmed.

The only reason given by the department for refusing to permit Quinn to file his declaratory statement was the existence of a rule of its own establishment forbidding the filing of a declaratory statement, based upon an alleged right, having its origin subsequent to the commencement of a contest between other parties for the same land; and the supreme and inferior courts of California seem to have held that this was a sufficient answer in this case to the claim of plaintiff in error. We are not prepared to say, however, that if Quinn had a right to make a pre-emption of this land, othrwise valid, the existence of this rule, or its enforcement against him, would defeat that right. The rule, we are told by counsel, has been rescinded, and is of no further consequence except as to its effect upon the present case; and if Quinn had been able to show a superior equity to that which arises out of the patent in this case, we should not feel inclined to reject it because of the rule referred to. But he has had a hearing before the court in regard to that equity, in which he has been permitted to prove, or, at least, to offer all the evidence he has of such equity, and taking everything he has proved, or offered to prove, we are not able to see any equity in him superior to that of the heirs of Hollingsworth. Unless he has shown this, the legal title must prevail. The claimants under the patent are prior to him in every point. Hollingsworth settled on the land, built a house on it, lived on it, and was buried on it, while Quinn was yet a foreigner and incapable of making a valid claim. It is true that, the land not being then open to pre-emption, Hollingsworth gained no legal right to it; but he had a right to believe that if, when the De Haro claim was surveyed, it was found that the land on which he lived was open to pre-emption, he would have the prior right if he came in time. He died in that belief, and the lawful representative of his minor children, at the earliest moment after the land became subject to pre-emption, asserted their right, paid the price of the land, and, after an expensive contest with others, received the title from the United States. We do not think their equity in the matter can be disputed.

What is Mr. Quinn's equity? He has never paid a dollar for the land; has received no title nor any recognition of his claim from the government or any one else. Perceiving that no one was in the actual occupancy of the land, but knowing that the claim of the heirs had been recognized at the land-office months before, he hastily prepared himself by declaration of intention to become a citizen, went boldly upon land on which Hollingsworth lived and died, and because there was no one there to defend the possession, built his cabin and asserted a right superior to the heirs of Hollingsworth. In this also he was a year later than Chapman, representing the heirs of Hollingsworth. His claim has been denied by the land-office from the beginning; he has paid nothing, received no recognition, acquired no vested right. We see no equity in him equal to that of the heirs of Hollingsworth. There is no justice in taking the title which they had fairly acquired and vesting it in him; and the judgment of the supreme court of California is accordingly affirmed.

title: Quinn v. Chapman/Opinion of the Court


text: Talk:Quinn v. Chapman/Opinion of the Court


text:
Ames v. State of Kansas Johnston Kansas Pacific Railway Company

John F. Dillon, Wager Swayne, and A. L. Williams, for plaintiffs in error.

W. A. Johnston, W. H. Rossington, and C. A. Seward, for defendants in error.

Each of these writs of error brings up for review an order of the circuit court remanding a case to the state court from which it had been removed, and the two cases may properly be considered together. The material facts are these:

The Leavenworth, Pawnee & Western Railroad Company was incorporated by the legislature of the territory of Kansas in 1855, to build a railroad from the west bank of the Mississippi river, in the town of Leavenworth, to or near Fort Riley, and from thence to the western boundary of the territory, which was the east boundary of Utah, on the summit of the Rocky mountains. 10 St. 283, c. 59, § 19. In 1857 this act was amended so as to authorize the construction of a branch from some favorable point on the main line to some point on the southern boundary of the territory. Where an easy connection could be made with a line of road extending to the Gulf of Mexico, and also of a branch to the northern boundary of the territory. The company was organized under these acts in 1857, and before January 1, 1862, had located its line from Leavenworth to Fort Riley, and had, to a large extent, secured its right of way and depot grounds.

On the first of July, 1862, the first Pacific Railroad act was passed by congress, gress, incorporating the Union Pacific Railroad Company, and providing for government aid in the construction of the several roads brought into the system, the Atlantic and Pacific coasts. 12 St. 489, c. 120. By section 9 of this act the Atlantic and Paciflc coasts. 12 St. 489, c. 120. By section 9 of this act the Leavenworth, Pawnee & Western Railroad Company of Kansas was authorized to construct a railroad and telegraph line from the Missouri river, at the mouth of the Kansas river, on the south side thereof, so as to connect with the Pacific Railroad of Missouri, to the point in the territory of Nebraska then established as the eastern terminus of the Union Pacific road. Provision was made for government aid to this company in all respects like that to the Union Pacific. Section 16 is as follows: 'That at any time after the passage of this act all of the railroad companies named herein, and assenting hereto, or any two or more of them, are authorized to form themselves into one consolidated company. Notice of such consolidation, in writing, shall be filed in the department of the interior, and such consolidated company shall thereafter proceed to construct said railroad and branches, and telegraph line, upon the terms and conditions provided in this act.' The Leavenworth, Pawnee & Western Company accepted the provisions of this act, and was thereafter designated as the Union Pacific Railroad Company, Eastern Division. By the act of July 2, 1864, c. 216, § 12, (13 St. 361,) the company was required to build its railroad from the mouth of the Kansas by way of Leavenworth, or, if that was not deemed the best route, to build a branch from Leavenworth to the main stem at or near Lawrence. This act also made provision, by section 16, for the consolidation of any two or more corporations embraced in the system, upon such terms and conditions as they might agree upon, not incompatible with the laws of the states in which the roads of the companies might be.

On the third of July 1866, c. 169, (14 St. 80,) the company was permitted to make its connection with the Union Pacific at any point not more than 50 miles westerly from the meridian of Denver. By another act passed March 3, 1869, c. 324, (15 St. 324,) the company was authorized to extend its road to Denver, in the territory of Colorado, and from there to make its connection with the Union Pacific at Cheyenne, over the road of the Denver Pacific Railway & Telegraph Company, a Colorado corporation; power being given to contract with the last-named company for that purpose. On the same day a joint resolution was passed by congress, (No. 23, 15 St. 348,) authorizing the Union Pacific Railroad Company, Eastern Division, by a resolution of its directors, filed in the office of the secretary of the interior, to change its name to the Kansas Pacific Railway Company. Under this authority the road was built from its junction with the Missouri Pacific Railroad in Kansas City, Missouri, through Fort Riley, in Kansas, to Denver, in Colorado, and government aid was furnished it under the acts of congress. From Denver it formed its connection with the Union Pacific road at Cheyenne, over the road of the Denver Pacific Company. It also built a branch from Leavenworth to Lawrence, but the road from Fort Riley to the original eastern terminus of the Union Pacific was never constructed.

On the twenty-fourth of January, 1880, the Union Pacific Railroad Company, the Kansas Pacific Railway Company, and the Denver Pacific Railway & Telegraph Company, acting under the authority of section 16 of the Pacific Railroad act of July 1, 1862, and section 16 of the act of July 2, 1864, entered into an agreement for the consolidation of the three corporations into one, by the name of the Union Pacific Railway Company, and from that time the road of the Kansas Pacific Company, including that portion which lies in Kansas, has been operated and managed as the Kansas Division of the Union Pacific Railway Company. At the first session of the legislature of Kansas after this consolidation was effected, a resolution was passed directing the attorney general to inquire into its legality, and to report whether, in his opinion, the consolidated company was amenable to the laws of the state, whether the Union Pacific Railroad Company had usurped or was exercising rights and franchises within the state not authorized by law, or had in any manner failed to comply with or had violated any of the laws of the state, whether the Kansas Pacific Company was in law an existing corporation of the state; and whether the state had lost jurisdiction over the property of the corporation. At the next session another resolution was passed, directing the attorney general to institute proper proceedings in the supreme court of the state, 'in the nature of quo warranto, against the Kansas Pacific Railway relinquishment, and surrender of its relinquishment, and surrender of its powers as a corporation to such consolidated company, and also to institute like proceedings against the consolidated company, the Union Pacific Railway Company, for usurping, seizing, holding, possessing, and using the franchise and privileges, powers and immunities, of the Kansas Pacific Railway Company in the state of Kansas.'

Under these instructions the present suits were brought in the supreme the Kansas Pacific Company sets the Kansas Pacific Company sets forth the acts of the territorial legislature of Kansas incorporating the company and extending its powers, passed in 1855 and 1857; the organization of the company under its charter; the acts of congress, passed July 1, 1862, and July 2, 1864, granting aid to the company; and the construction of the road. It then avers 'that on the twenty-fourth of January, 1880, the said Kansas Pacific Railway Company wrongfully and unlawfully attempted to consolidate its said corporation with the Union Pacific Railroad Company, a corporation chartered under the said acts of congress of 1862 and 1864, whose line runs from the Missouri river at or near Omaha, Nebraska, to Ogden, in Utah territory, and the Denver Pacific Railway & Telegraph Company, whose line begins at the city of Denver, in the state of Colorado, and runs in a westward direction to a junction with the Union Pacific Railroad Company, at a place called Cheyenne, in the territory of Wyoming. And the said Kansas Pacific Railway Company unlawfully and wrongfully attempted to confer upon the said consolidated company all of its franchises, immunities, liberties, and privileges granted by virtue of its charter aforesaid, and to merge the same into a pretended corporation, not created by the laws of the territory or state of Kansas, nor owing any duty to the territory or state of Kansas, but a pretended corporation, created, if at all, by acts of congress, and amenable only to federal control, and subject only, as to its rights and the causes of action which might thereafter exist against it, to the jurisdiction of the federal tribunals. And the said attorney general gives the court further to understand and be informed that the said Kansas Pacific Railway Company unlawfully and wrongfully entered into articles of consolidation with said Union Pacific Railroad Company and the said Denver and Pacific Railroad & Telegraph Company, which were expressly in violation of its charter, and in conflict with the duties and obligations owing by it to the state of Kansas under the provisions and terms of its charter aforesaid; and further, that said articles were in conflict with the laws of the state of Kansas respecting railroad corporations and the right of railroad companies to consolidate, and were not compatible with such laws.' The bill then sets forth a copy of the articles of consolidation, from which it appears that the sole and only authority relied on for the consolidation was that contained in the several acts of congress, and that the intent of the parties was to organize the company thereby formed 'under the said acts of congress, and to make the said acts of congress the charter or constituent acts of this company, as fully as if the same were incorporated herein at large.' The contract then appointed directors of the new company, and the place for holding the annual meeting of stockholders, until otherwise ordered, was fixed at the company's office in the city of New York. The then existing by-laws of the Union Pacific Railroad Company were also provisionally adopted and made applicable to the new company. It is then averred that it was the duty of the Kansas Pacific Company to make certain reports to the secretary of state of Kansas, which it had wholly failed to do, and that it held 'its general offices and all accounts of its operations at the general offices of said pretended consolidated company, at the city of Omaha, in the state of Nebraska, and alleges and pretends that the said corporation, the Kansas Pacific Railway Company, no longer owes any duty under its charter as aforesaid to the state of Kansas, but that it is controlled as to its chartered obligations by the acts of congress creating the Union Pacific Railroad Company, and by the unlawful articles of consolidation aforesaid.' It is then charged that the company has violated the laws of the state by failing to keep its general offices for the transaction of business within the state, and removing them to Omaha and placing 'the same under the absolute order, control, and disposal of the said pretended consolidated company.' Then it is alleged that the road of the Kansas Pacific Company is run as the 'Union Pacific Railway Company, Kansas Division,' and managed by the new corporation; that 'since the pretended consolidation as aforesaid the said Kansas Pacific Company has wholly failed and neglected to designate some person residing in each county into which its said line of railroad runs, or in which its said business is transacted, on whom all process and notices issued by any court of record, or justices of the peace of such county, may or might be served,' and that it has also failed from the same time 'to file a certificate of the appointment or designation of such person in the office of the clerk of the district court of the county in which such person resides.'

The consolidation is afterwards attacked because the roads were originally competing roads, and did not connect at the state line so as to form a complete and continuous line of railway. The next allegation is that the Kansas charter was forfeited by the diversion of the road 'to the use of a foreign corporation, outside of the jurisdiction of the state of Kansas, and beyond the reach of her authorities, with the declared intent that it shall be operated and used and worked, not according to the laws of Kansas, made or to be made to protect the rights of her people, but under and according to the provisions of other laws, alleged to have been enacted by the legislature of another government, for the regulation of another railroad, lying in another state.'

The prayer is that the 'Kansas Pacific Railway Company * * * be made to answer to the state of Kansas by what warrant it claims to have, use, and enjoy the liberties, privileges, and franchises aforesaid; and, further, by what warrant it claims and has exercised the right to put said railroad and its appurtenances into the possession and under the control of the above-mentioned foreign railroad company, and by what right it claims to maintain such foreign corporation in such possession, or in the enjoyment and exercise of the franchises and privileges bestowed by the state of Kansas exclusively on said Kansas Pacific Railway Company; and that * * * the said respondent company be adjudged to have forfeited all its rights, liberties, and franchises, and to be ousted from the same, and that the corporation be thereupon dissolved; and that it be further adjudged that the said franchises granted to the defendant by the state have become relinquished, abandoned, and forfeited to the state of Kansas, and that the same be resumed to the state, and that the state take possession of the said railroad, with all its appurtenances and fixtures, as public property, and make such disposition thereof as may be thought necessary to secure the rights of the state, saving the just interests of creditors and other third parties guiltless of the frauds, wrongs, and injuries herein charged against the corporation and the members thereof.'

The answer of the defendant, which, for the purposes of the suit, appeared in the name of the Kansas Pacific Railway Company, admits the consolidation and sets up the authority for that purpose under the laws of congress. All violations of the laws of Kansas are denied, and the position is distinctly assumed that the Kansas Pacific Company became, under the legislation of Congress, a corporation of the United States, and as such had full authority to enter into the agreement of consolidation which is complained of.

The petition against the individuals who, as is alleged, call themselves the board of directors of the Union Pacific Railway Company, charges them with using, without warrant, charter, or grant, the liberties, privileges, and franchises of being a railroad company to use and occupy the railroad of the Kansas Pacific Company, and averring that the road was built under the Kansas charter of the Leavenworth, Pawnee & Western Company. The prayer is that they may be made 'to answer to the state by what warrant they claim to have, use, and enjoy the liberties, privileges, and franchises aforesaid; and that upon a due hearing hereof the said defendants and said pretended railroad company be adjudged to have unlawfully and wrongfully usurped and appropriated the rights, liberties, privileges, and franchises aforesaid, and to be wrongfully and unlawfully using, enjoying, and exercising the same, and that they be ousted therefrom.'

The answer of the defendants sets up the legislation of congress affecting the original Kansas corporation, and the consolidation of that company with the Union Pacific & Denver Pacific Companies under this authority. They assert their right and that of the Union Pacific Railway Company, whose directors they are, to exercise within the state of Kansas all the powers, and to enjoy all the franchises and privileges, of the old Kansas Pacific Company, and this by reason of the consolidation of that company, under the authority of congress, with the other two companies.

The directors are all citizens of states other than Kansas.

As soon as the answers were put in, petitions were filed by the defendant in each case for the removal of the suit against them, respectively, to the circuit court of the United States for the district of Kansas. The petition of the railroad company alleged as grounds for removal: (1) That the suit was one arising under the constitution and laws of the United States; and (2) that the defendant was a corporation, other than a banking association, organized under a law of the United States, and that it had a defense arising under the laws of the United States. That of the directors was also put on the grounds (1) that the suit was one arising under the constitution and laws of the United States; and (2) that the directors were sued as members of a corporation, organized under an act of congress, for an alleged liability of the corporation, and that their defense arose under and by virtue of the laws of the United States.

Each suit was duly docketed in the circuit court of the United States, and, on motion of the state, remanded to the supreme court of the state.

From these orders to remand, the railway company and the directors, respectively, took a writ of error to this court.

[Argument of Counsel from pages 457-459 intentionally omitted]

WAITE, C. J.


text: Talk:Ames v. State of Kansas Johnston Kansas Pacific Railway Company