text:
Union Pacific Railway v. Ryan

[Syllabus from page 516-517 intentionally omitted]

The bill in this case was filed by the Union Pacific Railway Company against the city of Cheyenne and its marshal, Ryan, to enjoin the collection of certain city taxes for the year 1880, which the railway company alleges were unlawfully assessed against it. The bill was demurred to by the defendants, and the district court for the First judicial district of Wyoming, in which the suit was brought, overruled the demurrer, and granted the injunction prayed for. The defendants adhered the their demurrer, and appealed to the supreme court of the territory, and the decree of the district court was reversed, and the bill ordered to be dismissed, and the case is now brought here by appeal.

The main question raised by the bill is whether the Union Pacific Railroad, which passes through the whole length of Wyoming territory, and in its course passes through the city of Cheyenne, with its accompanying telegraph, appurtenances, and rolling stock, is liable to be assessed and valued for the purposes of taxation in Cheyenne by the city authorities, or only by the territorial board of equalization, consisting of the governor, treasurer, and auditor of the territory; and this question depends on the further question whether such assessment and valuation are governed by the city charter of the city, or by the act entitled 'An act in relation to the assessment of railways and telegraph lines,' passed December 13, 1879. The city charter, which was last revised on the subject of taxation by an amendment passed on the twenty-sixth of November, 1879, (only 17 days prior to the railroad assessment act,) gives to the city power 'to levy and collect taxes for general revenue purposes, not exceeding six mills on the dollar in any one year on all real, personal, and mixed property within the limits of said city, taxable under the laws of the territory;' and it is provided that 'the assessment, levy, and collection of all taxes shall be made as may be provided by ordinance.' Authority is also given to the city to raise a further tax to pay interest on its bonds, and a tax for improvement of streets and alleys. The railroad assessment act, passed on the thirteenth of December, 1879, is a very carefully prepared statute, providing for a mode of assessing the value of railroad property, and distributing it among the counties and districts through which the railroad may run. Although general in its terms, it must have had particularly in view the Union Pacific Railroad, to which alone it would principally apply. This act is so important a factor in the decision of this case that we quote the first section entire. The title has already been quoted. The first section is as follows:

'Section 1. The president, secretary, superintendent, or other principal accounting officers of any railroad or telegraph company having property in thi territory, at the time of the assessment of every railroad and telegraph company, whether incorporated by any law of this territory or not, when any portion of the property of said railroad or telegraph company is situated in more than one county, shall list for assessment and taxation, verified by the oath or affirmation of the person so listing, all the following described property belonging to such corporation within the territory, viz.: Road-bed, superstructure, right of way, and all structures situated thereon, rolling stock, side track, telegraph lines, furniture, and fixtures, and personal property belonging to such corporation. Such list shall contain-First, the number of miles of such railroad or telegraph line in the territory of Wyoming, and the number of miles of the same in each organized county therein; second, and such return shall be made to the auditor of the territory on or before the first day of July, annually. If the return aforesaid be not received by said auditor by the third day of July, he shall thereupon proceed to obtain the facts and information aforesaid in any manner that may appear most likely to secure the same correctly, and for that purpose may address a written communication to the corporation, or to some officer of the corporation who has failed or refused to make the return aforesaid. As soon as practicable after the auditor has received said return, or procured the information required to be set forth in said return, a meeting of the territorial board of equalization, consisting of the governor, territorial treasurer, and auditor, shall be held at the office of said auditor, and the said board shall then value and assess the property of said corporation for each mile said road or line, the value of each mile to be determined by dividing the sum of the whole valuation by the number of miles of said road or line. In making up such valuation or assessment the said board shall examine and consider the return herein required to be made, or the information procured by the auditor in default of such return, together with such other reliable information relative thereto as they may be able to procure. Said board shall not assess the value of any machineshop, or repair-shop, or other buildings not situated on said right of way or grounds or other real estate of any corporation or company within this territory; but it shall be the duty of the assessor of the county or district in which said machine or repair shops, or other buildings, or grounds, or other real estate is situated, to assess the same and make return thereof in the manner now provided for the assessment and return of real estate. On or before the first Monday of August, or so soon thereafter as the said board, or any two thereof, shall have made and determined said valuation and assessment, the territorial auditor shall certify to the county clerks of the several counties in which property of the aforesaid corporation, or any part thereof, may be situated, the assessment per mile so made on the property of such corporation, specifying the number of miles and amount in each of such counties. The county commissioners shall thereupon divide and adjust the number of miles and the amounts falling within each precinct, township, or school-district in their respective counties, and cause such amounts to be entered and placed on the lists of taxable property returned by the several assessors. The auditor shall certify whether a return was made to him by such corporation, or proper officer thereof, or whether the information required in and by such retruns was procured by himself; and in case the return was not made as required by this act, or, being made, was not sworn to, it shall be the duty of the county commissioners to add any amount not exceeding 10 per cent. to the valuation thus brought before them.'

The fifth section of the act declares as follows:

'All acts and parts of acts providing for the assessment of the property of railroad and telegraph companies, and the equalization of assessments, inconsistent with the provisions of this act, are hereby repealed, so far as they provide for the assessment and equalization of the property of said railroad and telegraph companies.'

John F. Dillon, S. Shellabarger, and J. M. Wilson, for appellant.

Francis Miller, for appellee.

[Argument of Counsel from pages 520-521 intentionally omitted]

Mr. Justice Bradley delivered the opinion of the court. He recited the facts as above stated, and continued:

title: Union Pacific Railway v. Ryan


text: Talk:Union Pacific Railway v. Ryan

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

title: Talk:Union Pacific Railway v. Ryan


text:
Union Pacific Railway v. Ryan/Opinion of the Court

It requires only a casual reading of this act to discover its purpose and object. The difficulty of assessing the value of railroad property in separate parcels, located in distinct cities and townships, is almost insuperable. A railroad cannot be regarded as mere land, like farm land or building lots; its value depends upon the whole line as a unit, to be used as a thoroughfare and means of transportation. A separate mile or two of its length is almost valueless by itself. And then its rolling stock has no particular locality except a constructive one in the place where the principal office of the railroad company is situated; and it would be manifestly unequal to give to that place the benefit of taxing the whole of it. The plan adopted by the statute avoids these difficulties. It places the power of assessing the value of the whole line, (so far as it lies within the territory,) including the rolling stock, in the hands of the board of equalization; and after they have fixed such valuation, and ascertained what it amounts to per mile for the whole length within the territory, such valuation per mile is certified by the territorial auditor to the clerks of the several counties through which the road passes, specifying the number of miles in each county, so as to give to each its pro rata share, and then the county commissioners divide and adjust the number of miles, and the amounts, falling within each taxing precinct, township, and school-district, to be entered on their respective lists of taxable property. It seems hardly to admit of a doubt that the object of this scheme was to withdraw the difficult task of assessing fractional parts of a railroad and its property from the hands of local assessors, who could hardly be expected to proceed upon any uniform plan, and each of whom would naturally favor his own particular district.

This being the evident purpose and object of the act, it is difficult to see why it should not apply to the city of Cheyenne as well as to every other portion of the territory. But the counsel for the city raise several grounds of objection to this view which it is necessary for us to consider. They contend that the language of the city charter is very broad, authorizing the corporation to assess every kind of taxable property situated within the city bounds, and that this includes railroad property; and they insist that this law must stand until it can be shown to be repealed; that the railroad assessment law does not repeal it in express terms, and cannot be construed to repeal it by implication, because the city charter is a special law, intended for a particular locality, and will not be repealed by implication by any general law containing contrary provisions, unless the latter be expressed in such universal terms as necessarily to include every particular case; that such universal terms are not used in the law, but, on the contrary, while other subordinate territorial divisions are included by name, corporate cities and municipalities are not mentioned nor alluded to. This is a summary of the defendants' argument. It is certainly plausible and entitled to careful consideration.

First. As to the relative character of the two statutes: is it true that the one is a special statute and the other a general one, in the sense contended for? The city charter is special as it relates to a single district or municipality, but the railroad assessment act is quite as special, as relating to a single subject of taxation. The one gives general powers of assessment and taxation to the city, but the other directs that railroad property shall be assessed and valued by the board of equalization in a particular way. Is not the last law even more special in character than the first? Suppose  law had been passed declaring that every horse in the territory should be assessed for the purpose of taxation at the value of $200. Would not such a particular direction be binding on the city of Cheyenne as well as on the country districts? Do not the object and reason of the railroad assessment law apply to a city like Cheyenne as well as to counties and townships? Ought not the policy of the state with regard to special objects of taxation to be extended to every portion of the state, unless some defect in the laws themselves prevent its being done?

Second. Is it true that the language of the railroad assessment act does not include cities in the fair construction of its terms? Does it not fairly include every territorial district or division of Wyoming-cities as well as counties and townships? Note the following passage: 'Said boare shall not assess the value of any machine-shop or repair-shop, or other buildings not situated on said right of way or grounds, or other real estate of any corporations or company within this territory; but it shall be the duty of the assessor of the county or district in which said machine or repair shops, or other buildings, or grounds, or other real estate is situated, to assess the same, and make return thereof in the manner now provided for the assessment and return of real estate.' In using the words 'county or district,' in this clause, is not the latter word 'district' used in its largest sense, to signify any subordinate territorial division whatever less than a county? It seems to us that the language used is intended to cover every case. In connection with this, read again the direction given to the county commissioners, after the state auditor has certified to them the assessment per mile made by the board of equalization. It is as follows: 'The county commissioners shall thereupon divide and adjust the number of miles and the amounts falling within each precinct, township, or school-district in their respective counties, and cause such amounts to be entered and placed on the lists of taxable property returned by the several assessors.' Does not this enumeration of subordinate tax-districts (for clearly tax-districts are meant) embrace every kind of tax-district within the county? 'Precinct' is a general word and not a technical one in Wyoming, and indicates any district marked out and defined. In the connection in which it stands it signifies a district inferior to a county, for it is used to denote a portion of a county; and superior to a township, for the enumeration evidently proceeds from the greater to the less,-'precinct, township, school-district.' What tax-districts are there in Wyoming inferior to a county and superior to a township, if incorporated cities and towns are not such?

As before suggested, the railroad assessment law, considering its purpose and object, ought to be extended to every tax-district in the state, if its language admits of such a construction. We think that it not only admits, but fairly requires, such a construction. If, in addition to this, we take into consideration the fifth section of the act, which expressly repeals 'all acts and parts of acts providing for the assessment of the property of railroad and telegraph companies, and the equalization of assessments, inconsistent with the provisions of this act, * *  * so far as they provide for the assessment and equalization of the property of said railroad and telegraph companies,' we cannot doubt that the act was intended to reach every case of taxation of railroads in the territory when situated in more than one county. Surely the charter of the city of Cheyenne is embraced in this description of acts or parts of acts to be repealed; for, according to the appellees' own contention, that charter does provide for the assessment of the property of railroad and telegraph companies; and there can be no doubt that the mode of making such assessment under said charter is entirely inconsistent with that prescribed by t e act in question. We are of opinion, therefore, that the assessment complained of was illegal and unauthorized.

But it is contended that the complainant should have sought a remedy at law, and not in equity. It cannot be denied that bills in equity to restranin the collection of taxes illegally imposed have frequently been sustained. But it is well settled that there ought to be some equitable ground for relief besides the mere illegality of the tax; for it must be presumed that the law furnishes a remedy for illegal taxation. It often happens, however, that the case is such that the person illegally taxed would suffer irremediable damage, or be subject to vexatious litigation, if he were compelled to resort to his legal remedy alone. For example, if the legal remedy consisted only of an action to recover back the money after it has been collected by distress and sale of the tax-payer's lands, the loss of his freehold by means of a tax sale would be a mischief hard to be remedied. Even the cloud cast upon his title by a tax under which such a sale could be made, would be a grievance which would entitle him to go into a court of equity for relief. Judge COOLEY fairly sums up the law on this subject as follows: 'To entitle a party to relief in equity against an illegal tax, he must by his bill bring his case under some acknowledged head of equity jurisdiction. The illegality of the tax alone, or the threat to sell property for its satisfaction, cannot, of themselves, furnish any ground for equitable interposition. In ordinary cases a party must find his remedy in the courts of law, and it is not to be supposed he will fail to find one adequate to his proper relief. Cases of fraud, accident, or mistake, cases of clud upon the title to one's property, and cases where one is threatened with irremediable mischief, may demand other remedies than those the common law can give, and these, in proper cases, may be afforded in courts of equity.' This statement is in general accordance with the decisions of this court as well as of many state courts. Dows v. Chicago, 11 Wall. 109; Hannewinkle v. Georgetown, 15 Wall. 549; State Railroad Tax Cases, 92 U.S. 575, 612, 613, and cases there cited. In Cummings v. National Bank, 101 U.S. 153, 156, where the bank filed a bill to prevent the collection of a tax wrongfully assessed by the state against the shares of its stockholders, and which the bank was required to pay, we held that the fiduciary character in which the bank stood to its stockholders entitled it to come into a court of equity for relief. In the same case, the fact that a like remedy by injunction was given to parties in the state court was regarded as entitled to much weight; and it was further held that where a rule or system of valuation was adopted by the state board of assessment, calculated to operate unequally, and to violate the constitution of the state, and applicable to a large class of individuals or corporations, equity might properly interfere to restrain the operation of such unconstitutional exercise of power. And in Litchfield v. Webster Co. 101 U.S. 773, 779, we held that a court of equity might relieve against an excessive rate of interest on taxes in arrear, which was really in the nature of a penalty, and which the state could not fairly and equitably demand, having itself claimed title to the property taxed.

These authorities are sufficient to illustrate the rules by which courts of equity should be governed in assuming jurisdiction of suits brought to arrest the collection of illegal taxes. We think that the allegations of the bill in this case bring it fairly within the jurisdiction of the court. It shows that it would involve the plaintiff in a multiplicity of suits as to title of lots laid out and being sold; would prevent their sale; and would could the title to all its real estate. We think that these results are sufficiently apparent, and render it unnecessary to look further. The alleg tion of fraud has not been proven, and cannot, therefore, have any effect in the case. It is unnecessary to inquire into the sufficiency of other grounds for equitable relief which are alleged in the bill.

Another point raised by the defendants, not affecting the jurisdiction of the court but the propriety of its taking jurisdiction, is that the complainant ought to have paid the taxes which are conceded to be due to the city for the year 1880. As we understand the facts stated by the bill, (which, of course, the demurrer admits to be true,) the complainant did pay to the city all the taxes which would be due upon the assessment and valuation made by the board of equalization, including taxes due on outside property of the company in the city.

The decree of the supreme court of Wyoming must be reversed, and the cause remanded, with instructions to enter a decree in favor of the complainant in conformity with this opinion; and it is so ordered.


text: Talk:Union Pacific Railway v. Ryan/Opinion of the Court


text:
Erhardt Boaro

This is an action for the possession of a mining claim in Pioneer mining district, in the county of Dolores, and state of Colorado. The claim is designated by the plaintiff as 'The Hawk Lode' mining claim, and by the defendants as 'The Johnny Bull Lode' mining claim. The plaintiff is a citizen of New York, and the defendants are citizens of Colorado. The complaint is in the usual form in actions for mining claims under the practice in Colorado. It contains two counts. The first alleges, in addition to the citizenship of the parties as stated, the possession by the plaintiff on the seventeenth of June, 1880, of the claim, which is fully described, his right to its possession by virtue of its location pursuant to the laws of the United States and of the state, and the local rules and customs of miners in the district, and by virtue of priority of possession, the wrongful entry upon the premises by the defendants on the thirtieth of that month, their ousting the plaintiff therefrom, and unlawfully withholding the possession thereof from him, to his damage of $50,000. The second count, in addition to the citizenship of the parties, the possession of the claim by the plaintiff, and the subsequent wrongful entry of the defendants, and their ousting him, alleges that the defendants worked and mined in the claim, and dug out and removed from it large quantities of gold and silver bearing ore, of the value of $50,000, to the damage of the plaintiff in that amount. The plaintiff, therefore, prays judgment for the possession of the mining premises, and for damages of $100,000.

The answer of the defendants contains a specific denial of the several allegations of the complaint, except that of the citizenship of the plaintiff, and, as to that, it avers their want of information, and demands proof. And it sets up the discovery of the claim in controversy on the thirtieth of June, 1880, by the defendants Boaro and Hull, to which they gave the designation of 'The Johnny Bull Lode,' and its definite location and record within 90 days thereafter, and their subsequent relocation of the claim, September 8, 1880, to avoid a conflict with an adjoining claim. They pray, therefore, that they may be decreed its possession and ownership, in accordance with their rights.

On the trial the plaintiff produced evidence tending to show that on the seventeenth of June, 1880, one Thomas Carroll, a citizen of the United States, while searching, on behalf of himself and the plaintiff, also a citizen, for valuable deposits of mineral, discovered, on vacant unoccupied land of the public domain of the United States, in the Pioneer mining district mentioned, the outcrop of a vein or lode of quartz and other rock bearing gold and silver in valuable and paying quantities; that by an agreement between him and the plaintiff, pursuant to which the explorations were prosecuted, all lodes and veins discovered by him were to be located, one-fifth in his name and four-fifths in the name of the plaintiff; that on the day of his discovery Carroll designated the vein or lode as the 'Hawk Lode,' and posted at the point of discovery a plain sign, or notice in writing, as follows:

'HAWK LODE.

'We, the undersigned, claim 1,500 feet on this mineral-bearing lode, vein, or deposit.

'Dated June 17, 1880.

JOEL B. ERHARDT, 4-5ths.

'THOMAS CARROLL, 1-5th.'

-That on the same day, at the point of his discovery, Carroll commenced excavating a discovery shaft, and sunk the same to the depth of about eighteen inches or two feet on the vein; that on the thirtieth of the month, in the temporary absence of himself and the plaintiff, the defendant Boaro, with knowledge of the rights and claims of the plaintiff and Carroll, entered upon and took possession of their excavation, removed and threw away or concealed the stake upon which their written notice was posted, and, at the point of Carroll's discovery of the v in or lode, erected a stake and posted thereon a discovery and location notice as follows:

'JOHNNY BULL LODE.

'We, the undersigned, claim 1,500 feet on this mineral-bearing vein or lode, running six hundred feet north-east and nine hundred feet south-west, and 150 feet on each side of the same, with all its dips and spurs, angles, and variations.

'June 30, 1880.

ANTHONY BOARO.

'W. L. HULL.'

The evidence also tended to show that Boaro and Hull entered upon the premises thus described, about July 21, 1880, and remained thereafter continuously in possession; that threats of violence to the plaintiff and Carroll, if they should enter upon the premises, or attempt to take possession of them, were communicated to Carroll as having been made by Boaro early in August following; that in consequence of such threats, and the possession held by Boaro, Carroll was prevented from resuming work upon and completing the discovery shaft, and from entering upon any other part of the lode or vein, and performing the acts of location required by law within the time limited. The evidence also tended to show that within 90 days from the discovery of the lode by Carroll, one French, on behalf of the plaintiff and Carroll, secretly caused the boundaries of the claim to be marked by six substantial posts, so as to include the place of discovery and the premises in controversy, and filed in the office of the recorder of the county a location certificate setting forth the name of the lode, the date of the location, the names of the plaintiff and Carroll as locators, and the course of the lode or vein; and giving such a description of the claim, with reference to natural objects and permanent landmarks, as would suffice to identify the same with reasonable certainty.

The evidence offered by the defendants tended to rebut that of the plaintiff, and to show that on the thirtieth of June, 1880, when Boaro entered upon the ground in controversy, he found nothing on the surface to indicate a vein or lode, or that any excavation had been made or stake erected, as alleged by the plaintiff, or that any portion of the ground claimed by the defendants had ever been previously located or claimed; that their discovery cut was commenced at a point 35 feet distant from the point described and claimed by Carroll as the point at which he had begun to sink the discovery shaft of the 'Hawk Lode,' and erected his stake and posted his notice, and that the top of the vein was at least four feet below the surface; that Carroll had abandoned all claim to the premises in controversy, and that his omission to perform the required location work was due to such abandonment, and not to any threats of the defendants, or of any of them, nor to the occupation of the ground by Boaro and Hull, or either of them; that neither the plaintiff nor Carroll ever demanded possession of or asserted any title to the premises until the working of the claim by the defendants had shown it to be valuable.

The evidence of the defendants also tended to show that they had commenced work upon the claim about July 21, 1880, and sank and excavated an open cut, striking the vein or lode at the depth of 10 feet or more, and exposed therein a vein of rock in place bearing gold and silver; that no mineral nor any indications of a vein or lode were found until they reached the depth of seven or eight feet; and that subsequently, and within the time limited by law, they marked the bounds of their claim on said lode, called by them the 'Johnny Bull Lode,' and recorded a location certificate, describing their claim by reference to natural objects and permanent land-marks, and complying in all respects with the requirements of the law.

The evidence being closed, the court was, among other things, requested to instruct the jury that from and after the date of the discovery by a citizen of the United States, upon vacant, unoccupied mineral lands, of the outcrop of a vein or body of mineral-bearing rock, the discoverer is entitled to th possession of the point at which he made his discovery, and of such a reasonable amount of adjacent ground as is necessary or incidental to the proper prosecution of the work of opening up or exposing the vein or body of mineral-bearing rock to the depth and within the time required by law, and that to such extent he is protected by law in his possession for the period of 60 days from the date of his discovery. But the court refused to give this instruction, and the plaintiff excepted to the refusal. The court charged the jury, among other things, that it was in evidence, and seemed to be conceded, that the notice on the stake put up by Carroll contained no specification or description of the territory claimed by the locators, as that they claimed a number of feet on each side of the discovery, or in any direction therefrom, and 'in this respect,' said the court, 'the notice was deficient, and under it the locators could not claim more than the very place in which it was planted. Elsewhere on the same lode or vein, if it extended beyond the point in controversy, any other citizen could make a valid location; for this notice, specifying no bounds or limits, could not be said to have any extent beyond what would be necessary for sinking a shaft;' and also, that to entitle the plaintiff to recover, 'it should appear from the evidence that Boaro entered at the very place which had been taken by Carroll, because, as Carroll's notice failed to specify the territory he wished to take, it could not refer to or embrace any other place than that in which it was planted.' To the giving of these instructions the plaintiff also excepted. The defendant obtained a verdict, and to review the judgment entered thereon the plaintiff brings the case here on writ of error.

Elihu Root, for plaintiff in error.

T. M. Patterson and C. S. Thomas, for defendant in error.

FIELD, J.

title: Erhardt Boaro


text: Talk:Erhardt Boaro

title: Talk:Erhardt Boaro


text:
Erhardt Boaro/Opinion of the Court

As seen by the statement of the case, the court below, in its charge, assumed that the notice on the stake, placed by Carroll at the point of his discovery, contained no specification or description of the ground claimed by the locators, because it did not designate the number of feet claimed on each side of that point, or in any direction from it. The court accordingly instructed the jury that the notice was deficient, and under it the locators could not claim any more than the very place in which the stake was planted, and that elsewhere on the same lode beyond the point of discovery any other citizen could make a valid location. In this instruction we think the court erred. The statute allows the discoverer of a lode or vein to locate a claim thereon to the extent of 1,500 feet. The written notice posted on the stake at the point of discovery of the lode or vein in controversy, designated by the locators as 'Hawk Lode,' declares that they claim 1,500 feet on the 'lode, vein, or deposit.' It thus informed all persons, subsequently seeking to excavate and open the lode or vein, that the locators claimed the whole extent along its course which the law permitted them to take. It is, indeed, indefinite in not stating the number of feet claimed on each side of the discovery point; and must, therefore, be limited to an equal number on each side; that is, to 750 feet on the course of the lode or vein in each direction from that point. To that extent, as a notice of discovery and original location, it is sufficient. Greater particularity of description of a location of a mining claim on a lode or vein could seldom be given until subsequent excavations have disclosed the course of the latter. These excavations are to be made within 60 days after the discovery. Then the location must be distinctly marked on the ground, so that its boundaries can be readily traced, and, within one month thereafter, that is, within three months from the discovery, a certificate of the location must be filed for record in the county in which the lode is situated, containing the designation of the lode, the names of the locators, the date f the location, the number of feet claimed on each side of the center of the discovery shaft, the general course of the lode, and such a description of the claim, by reference to some natural object or permanent monument, as will identify it with reasonable certainty. Rev. St. § 2324; Gen. Laws Colo. §§ 1813, 1814.

But during the intermediate period, from the discovery of the lode or vein and its excavation, a general designation of the claim by notice, posted on a stake placed at the point of discovery, such as was posted by Carroll, stating the date of the location, the extent of the ground claimed, the designation of the lode, and the names of the locators, will entitle them to such possession as will enable them to make the necessary excavations and prepare the proper certificate for record. The statute of Colorado requires that the discoverer, before a certificate of location is filed for record, shall, in addition to posting the notice mentioned at the point of discovery, sink a shaft upon the lode to the depth of at least 10 feet from the lowest part of such shaft under the surface, or deeper, if necessary, to show a defined crevice and to mark the surface boundaries of the claim. Before this work could be done by the plaintiff and his co-locator, the ground claimed by them was taken possession of by the defendants, the stake at the point of discovery, upon which the notice was posted, was removed, and Carroll was thereby, and by threats of violence, prevented from re-entering upon the premises and completing the work required to perfect their location and prepare a certificate for record; at least, the evidence tended to establish these facts. If they existed,-and this was a question for the jury,-the plaintiff was entitled to recover possession of the premises. To the extent of 750 feet on the course of the lode on each side from the point of discovery, he and his co-locator were entitled to protection in the possession of their claim. They did not lose their right to perfect their location, and perform the necessary work for that purpose, by the wrongful intrusion upon the premises, and by threats of violence if they should attempt to resume possession. As against the defendants, they were entitled to be reinstated into the possession of their claim. They could not be deprived of their inchoate rights by the tortious acts of others; nor could the intruders and trespassers initiate any rights which would defeat those of the prior discoverers.

The government of the United States has opened the public mineral lands to exploration for the precious metals, and, as a reward to the successful explorer, grants to him the right to extract and possess the mineral within certain prescribed limits. Before 1866 mining claims upon the public lands were held under regulations adopted by the miners themselves in different localities. These regulations were framed with such just regard for the rights of all seekers of the precious metals, and afforded such complete protection, that they soon received the sanction of the local legislatures and tribunals; and, when not in conflict with the laws of the United States, or of the state or territory in which the mining ground was situated, were appealed to for the protection of miners in their respective claims, and the settlement of their controversies. And although since 1866 congress has to some extent legislated on the subject, prescribing the limits of location and appropriation, and the extent of mining ground which one may thus acquire, miners are still permitted, in their respective districts, to make rules and regulations not in conflict with the laws of the United States or of the state or territory, in which the districts are situated, governing the location, manner of recording, and amount of work necessary to hold possession of a claim. Rev. St. § 2324. In all legislation, whether of congress, or of the state or territory, and by all mining regulations and rules, discovery and appropriation are re ognized as the sources of title to mining claims, and development, by working, as the condition of continued ownership until a patent is obtained. And whenever preliminary work is required to define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and development can be made, so as to disclose whether a vein or deposit of such richness exists as to justify work to extract the metal. Otherwise, the whole purpose of allowing the free exploration of the public lands for the precious metals would in such cases be defeated, and force and violence in the struggle for possession, instead of previous discovery, would determine the rights of claimants.

It does not appear, in this case, that there were any mining regulations in the vicinity of the 'Hawk Lode' which affect in any respect the questions involved here. Had such regulations existed they should have been proved as facts in the case. We are therefore left entirely to the laws of the United States and the laws of Colorado on the subject. And the laws of the United States do not prescribe any time in which the excavations necessary to enable the locator to prepare and record a certificate shall be made. That is left to the legislation of the state, which, as we have stated, prescribes 60 days for the excavations upon the vein from the date of discovery, and 30 days afterwards for the preparation of the certificate and filing it for record. In the judgment of the legislature of that state this was reasonable time. This allowance of time for the development of the character of the lode or vein, does not, as intimated by counsel, give encouragement to mere speculative locations; that is, to locations made without any discovery or knowledge of the existence of metal in the ground claimed, with a view to obtain the benefit of a possible discovery of metal by others within that time. A mere posting of a notice on a ridge of rocks cropping out of the earth, or on other ground, that the poster has located thereon a mining claim, without any discovery or knowledge on his part of the existence of metal there, or in its immediate vicinity, would be justly treated as a mere speculative proceeding, and would not itself initiate any right. There must be something beyond a mere guess on the part of the miner to authorize him to make a location which will exclude others from the ground, such as the discovery of the precious metals in it, or in such proximity to it as to justify a reasonable belief in their existence. Then protection will be afforded to the locator to make the necessary excavations and prepare the proper certificate for record. It would be difficult to lay down any rules by which to distinguish a speculative location from one made in good faith with a purpose to make excavations and ascertain the character of the lode or vein, so as to determine whether it will justify the expenditures required to extract the metal; but a jury from the vicinity of the claim will seldom err in their conclusions on the subject.

This case, as appears by the record, is brought in the name of one of the locators, Erhardt, who owns only four-fifths of the claim. But, as a tenant in common with Carroll, he can maintain an action of ejectment for the possession of the premises, the recovery being not merely for his benefit, but for that of his co-tenant, who is equally entitled with him to the possession.

It follows from what we have said that the judgment of the court below must be reversed, and the case remanded for a new trial; and it is so ordered.

title: Erhardt Boaro/Opinion of the Court


text: Talk:Erhardt Boaro/Opinion of the Court

title: Talk:Erhardt Boaro/Opinion of the Court


text:
Erhardt v. Boaro

Elihu Root, for appellant.

T. M. Patterson and C. S. Thomas, for appellee.

FIELD, J.

title: Erhardt v. Boaro


text: Talk:Erhardt v. Boaro

title: Talk:Erhardt v. Boaro


text: Dictionary of National Biography, 1885-1900/Bowden, John William


text:
Erhardt v. Boaro/Opinion of the Court

This is a suit in equity ancillary to the action for the possession o the mining claim just decided. [Erhardt v. Boaro, ante, 560.] It is brought to restrain the commission of waste by the defendants pending the action. The bill sets forth the discovery by one Thomas Carroll, a citizen of the United States, while searching on behalf of himself and the plaintiff, also a citizen, for valuable deposits of mineral on vacant unoccupied land of the United States, of the outcrop of a vein or lode of quartz and other rock bearing gold and silver in valuable and paying quantities, the posting by him in his name and that of the plaintiff, at the point of discovery, of a notice that they claimed 1,500 feet on the lode, the intrusion of the defendants upon the claim, their ousting the locators, and other facts which are detailed by the record in the case decided, and the commencement of the action at law. It also alleges that the defendants were working the claim, and had extracted from it 150 tons, or thereabouts, of ore, containing gold and silver of the value of $25,000, and that about 100 tons remain in their possession on the premises. The bill prays for a writ of injunction restraining the defendants from mining on the claim, or extracting ore therefrom, or removing any ore already extracted, until the final determination of the action at law. The principal facts stated in the bill are supported by affidavits of third parties. The court granted a preliminary injunction, but, after the trial of the action at law, judgment being rendered therein in favor of the defendants, it dissolved the injunction and dismissed the bill. From the decree of the court the case is brought here by appeal.

It was formerly the doctrine of equity, in cases of alleged trespass on land, not to restrain the use and enjoyment of the premises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to the title was deemed sufficient to exclude the jurisdiction of the court. In Pillsworth v. Hopton, 6 Ves. 51, which was before Lord ELDON in 1801, he is reported to have said that he remembered being told in early life from the bench 'that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he stated himself out of court as to the injunction.' This doctrine has been greatly modified in modern times, and it is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title. Jerome v. Ross, 7 Johns. Ch. 315, 332; Le Roy v. Wright, 4 Sawy. C. C. 530, 535.

As the judgment in the action at law in favor of the defendants has been reversed, and a new trial ordered, the reason which originally existed for the injunction continues. The decree of the court below must therefore be reversed, and the cause remanded, with directions to restore the injunction until the final determination of that action; and it is so ordered.

title: Erhardt v. Boaro/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/208

190 I have not often enjoyed a place more deeply. I moved in an atmosphere of pleasure, and felt light and quiet and content. But perhaps it was not the place alone that so disposed my spirit. Perhaps some one was thinking of me in another country; or perhaps some thought of my own had come and gone unnoticed, and yet done me good. For some thoughts, which sure would be the most beautiful, vanish before we can rightly scan their features; as though a god, travelling by our green highways, should but ope the door, give one smiling look into the house, and go again for ever. Was it Apollo, or Mercury, or Love with folded wings? Who shall say? But we go the lighter about our business, and feel peace and pleasure in our hearts. I dined with a pair of Catholics. They agreed in the condemnation of a young man, a Catholic, who had married a Protestant girl and gone over to the religion of his wife. A Protestant born they could understand and respect; indeed, they seemed to be of the mind of an old Catholic woman, who told me that same day there was no difference


text: Talk:Erhardt v. Boaro/Opinion of the Court


text:
Richards v. Mackall (113 U.S. 539)

W. Willoughby, for motion.

W. B. Webb and Enoch Totten, in opposition.

WAITE, J.

The supreme court of the District of Columbia consists of one chief justice and five associate justices. Rev. St. D. C. § 750; 20 St. 320, c. 99, § 1. The law provides for both special and general terms of the court, and for an appeal from the special to the general term; but the judgments and decrees, when rendered, are, whether they be at general or special term, the judgments and decrees of the supreme court. Rev. St. D. C. §§ 753, 772. A general term is held by three justices, two, however, constituting a quorum, and a special term by one. Rev. St. D. C. §§ 754, 757; 20 St. 320, c. 99, § 2. By section 705 of the Revised Statutes of the United States, as amended February 25, 1879, (20 St. 320, c. 99, § 4,) the final judgments and decrees of the supreme court of the District of Columbia, in cases where the value of the matter in dispute exceeds $2,500, may be brought to this court for review 'upon writ of error or appeal, in the same manner and under the same regulations as are provided by law in cases of writs of error on judgments, or appeals from decrees rendered in a circuit court.' This is an appeal from a decree of the supreme court of the district at a general term held by Chief Justice CARTTER and Associate Justices HAGNER and COX, which began on the first Monday in April, 1884, and ended July 5, 1884. The transcript contains the following:

title: Richards v. Mackall (113 U.S. 539)


text: Talk:Richards v. Mackall (113 U.S. 539)

title: Talk:Richards v. Mackall (113 U.S. 539)


text:
Richards v. Mackall (113 U.S. 539)/Opinion of the Court

'[Filed July 8, 1884.]

'SUPREME COURT OF THE DISTRICT OF COLU BIA.

'Brooke Mackall, Jr., v. Alfred Richards et al. (8,118, Eq.)

'And now comes the said defendant, Alfred Richards, and     appeals to the supreme court of the United States from the      decree of the general term passed July 5, 1884, in the above      cause against him.

'WM. B. WEBB, for defendant, Richards.

'The above appeal is allowed this eighth day of July, 1884.

'(By the court.)

MCARTHUR, Justice.' Then follows a citation in proper form, signed by the chief justice of the court, bearing the same date as the order allowing the appeal. This citation was served October 7, 1884. Next in the transcript is the following:

'IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, THE TENTH     DAY OF JULY, 1884.

'Brooke Mackall, Jr., v. Alfred Richards et al. (No. 8,118,     Eq. In Error.)'

Then follows a supersedeas bond in due form, and at the foot these words:

'Approved July 11, 1884.

MCARTHUR, Justice.'

The appeal was docketed in this court on the fifteenth of October, 1884.

The grounds of the motion may be stated thus: (1) The citation was not signed by the justice who approved the bond; (2) the citation was not served in time; and (3) Mrs. Richards and Leonard Mackall, who were defendants below, have not joined in the appeal.

Sections 999, 1012, and 705 of the Revised Statutes, taken together, provide in effect that when there is an appeal from the supreme court of the District of Columbia to this court, the citation may be signed by any justice of that court. Such an appeal is to be taken under the same regulations as appeals from the circuit court. Section 705. On appeals from the circuit court a judge of that court may sign the citation. Section 999. Clearly, therefore, when the appeal is from the supreme court of the district, a justice of that court may do the same thing. The transcript in this case shows that the appeal was allowed by the court, undoubtedly sitting in special term. This, we think, may be done. An appeal in a proper case is a matter of right. The decree appealed from was the decree of the supreme court, and the court, while sitting in special term, was still the supreme court, and, as such, capable of allowing an appeal to this court from one of its final decrees, though rendered at general term. As the general term had closed, it was quite proper to apply to the court sitting in special term for the allowance of the appeal. The allowance by the court while in session at special term would not do away with the necessity of a citation, because the allowance would not have been made at the same term in which the decree was rendered. Yeaton v. Lenox, 7 Pet. 221; Railroad v. Blair, 100 U.S. 662. As the allowance was made by the court, it was quite regular for the chief justice to sign the citation. The transcript also shows that the bond was approved by the court. It seems to have been presented to the court on the tenth of July and approved the next day. What was done was, according to the transcript, 'In the Supreme Court of the District of Columbia.' Even if the citation was not served in time, which we do not decide, the failure to serve will not work a dismissal of the appeal. Doyton v. Lash, 94 U.S. 112.

The last ground of the motion to dismiss was not relied upon in argument. The effect of what has been done was to allow a separate appeal by Alfred Richards. The motions are overruled.


text:
Page:Dictionary of National Biography volume 60.djvu/291

 came hither.’ He had long been on friendly terms with his namesake and distant kinsman, the Earl of Strafford (letters in the Strafford Letters, 24 Oct. 1632 and 31 Jan. 1633); and on 10 May 1641 was ordered by the lords to convey to Strafford the news of the royal assent to the bill of attainder; he also attended him to the scaffold. In 1642 he became colonel of a regiment of horse, was probably with Charles at Edgehill, and sat in the Oxford parliament from January 1644. During this year he was one of the most prominent royalist generals, being of a ‘plain and practical temper,’ and famous for ‘obliging the souldiery’. With 150 horse he successfully surprised Abingdon by night on 29 May 1644, but was forced to retreat and lost his prisoners (, viii. 45;, Hist. Disc. p. 32). On 29 June he led a charge of cavalry ‘with great fury’ against Waller on the west bank of the Cherwell at Cropredy Bridge; and, after ‘making a stand under a great ash,’ charged a second time and drove Waller back over the bridge (, viii. 44–6). His brigade was sent to Cornwall, and on 30 Aug. he attempted unsuccessfully to stop the flight of Essex's horse near Fowey; but on the next day pursued Sir William Balfour with five hundred men (, pp. 71–4;, Great Civil War, i. 466–7). He helped to relieve Portland Castle on 14 Oct. (, p. 104), and on 27 Oct. he commanded the cavalry on the left wing at the second battle of Newbury; he ‘charged through and through’ the enemy, and saved the king's guard; but his horse fell (, p. 113), and he was captured ‘by a lieutenant of Colonel Berkley's’ (, i. 323). An order for his exchange, 31 March 1645, did not take effect, and he remained a prisoner either in the Tower or on bail till 1648. He was permitted to stay at Bath with his son-in-law, Lord Lovelace, or elsewhere for long intervals; but it is difficult to understand how he came to be in Colchester during the siege in 1648; a proposal to exchange him ‘for one of the committee in Colchester’ on 19 Aug. (, ii. 384) seems to indicate that he was still on bail. He was allowed bail for three months in September 1648, and it is not known how his imprisonment terminated.

He next appears in April 1650 in attendance on Charles at Beauvais, where he threatened to cane any one who called him a presbyterian (Cal. Clarendon State Papers, ii. 54). He went with Charles to Scotland on 12 June 1650, and he and his son were required on 17 Oct. ‘to depart Scotland for refusing to take the covenant’ (, iii. 250). He commanded a regiment of cavalry at the battle of Worcester on 3 Sept. 1651, and by a charge in the street gave the prince time to escape; he himself was captured on 13 Sept. at Woodcote, Shropshire, and committed to the Tower, with Hamilton, Derby, and Lauderdale. An order was made on 17 Sept. that he should be tried with them on 29 Oct., but he escaped the death sentence by some accident. Lloyd says that one of the judges having left the room for a few minutes, Lord Mordaunt, influenced by the prayers of Lady Lovelace, gave a casting vote in his favour. The parliament (6 Nov.) refused to try him again; he was, however, kept a close prisoner in the Tower till about the middle of 1656. When released he may have retired to Lord Lovelace's house at Water Eaton, near Oxford. Nettlestead had been sold in 1643; his encumbered estates had been sequestrated at the commencement of the war, and his fine assessed at 2000l. He and his son were said to owe 100,000l., and the adjustment of the claims of the encumbrancers by the county committees of Bedfordshire and Middlesex was not completed till 1655, when practically the whole of his landed property was leased or sold to his creditors (see Cal. State Papers, Committee for Advance of Money i. 153, Committee for Compounding iii. 2156–68).

At the Restoration he reappeared, and on 29 May 1660 led a band of three hundred noblemen ‘in his plain gray suit’ (, l.c.). He was made captain of the gentlemen pensioners on 20 June, and received the command of a troop of horse on 1 Sept. 1662. Evelyn writes that at a review of four thousand guards in Hyde Park on 4 July 1663 ‘the old Earl of Cleveland trail'd a pike, and led the right-hand file in a foote company commanded by the Lord Wentworth his son, a worthy spectacle and example, being both of them old and valiant souldiers.’ An act to enable him to sell settled land for the benefit of his creditors was passed in 1660, and another granting extension of time on 18 Jan. 1667; these were revised in 1690, though his daughter-in-law had paid off large sums by careful management at Toddington. Cleveland died on 25 March 1667, and was buried at Toddington. Lloyd says that he attributed his strength of constitution to his habit of smoking a hundred pipes a day, ‘which he learnt in Leagures’ (i.e. camps). Clarendon describes him as ‘a man of signal courage and an excellent officer upon any bold


text: Talk:Richards v. Mackall (113 U.S. 539)/Opinion of the Court


text:
Peugh v. Davis (113 U.S. 542)

R. T. Merrick, M. F. Morris, T. T. Crittenden, and L. H. Pike, for appellant.

A. G. Riddle and H. E. Davis, for appellee.

MILLER, J.

title: Peugh v. Davis (113 U.S. 542)


text: Talk:Peugh v. Davis (113 U.S. 542)

title: Talk:Peugh v. Davis (113 U.S. 542)


text:
Peugh v. Davis (113 U.S. 542)/Opinion of the Court

This case was before us at the October term, 1877, and the question then was whether certain instruments of writing, made by Peugh to Davis, constituted an absolute conveyance of lots in the District of Columbia, or were in the nature of a mortgage security for loan of money. The court was of opinion that, on all the facts of the case, the latter was the true construction of the transaction between the parties. The court below was directed to permit the plaintiff Peugh to redeem the property by the payment of the loan, with interest at 6 per cent. per annum, and, as it appeared that the defendant had taken possession of the property, it was said in the opinion that he 'should be charged with a reasonable sum for the use and occupation of the premises from the time he took possession in 1865, and allowed for the taxes paid and other necessary expenses incurred by him.' 96 U.S. 332. Upon the return of the case to the supreme court of the District of Columbia it was referred to an auditor to ascertain the sum necessary to redeem on that basis. Two reports were made, neither of which were entirely acceptable to the parties or to the court, which finally, by a decree in general term, allowed nothing for use and occupation by defendant, but did make an allowance for a sum received from the United States for its use, after deducting from this latter sum the amount paid to an agent for its collection.

The appellant assigns for error that no allowance was made him for the use and occupation by defendant. The reply to this is that he never used and occupied it or received any rents, except the amount for which he is charged as received from the government. The lots were open, uninclosed, with no buildings on them, and no actual possession or use of them was had by the defendant. His possession was merely constructive under his interpretation of the contract, that the land was his own. The witnesses say it was worth nothing in its actual condition, and no evidence is given to the contrary. It is urged that a sum equal to the interest on the money borrowed by Peugh should be allowed as rent, or for occupation, from the time Davis asserted his ownership and possession. We can see no reason for this, and it would have been in conflict with the instruction contained in the opinion of this court that he 'should be charged a reasonable sum for the use and occupation.' If this was worth nothing, that was the end of that matter.

It is said that during the period in question the land rap dly rose in value and afterwards declined; that Peugh could have sold it, and probably was offered a sum for it which would have left him a large profit; and that he ought in this transaction to set off this loss against the amount he must pay to redeem. This is not allowance for use and occupation. It is damages for a tort. It cannot be recovered in this suit, if it could be recovered in any.

The short answer to all this is that Mr. Peugh owed the money he had borrowed from Davis. What he is now claiming in the original suit is the right to pay the money and have a reconveyance of the land. Nothing hindered during all this time that he should pay this money; and if, as he alleges, Davis denied his right to do so, then he should have made a regular and lawful tender of the amount due. If he had done so, the interest would have ceased to run against him, and the amount that he is now required to pay would have been diminished by more than one-half. A lame attempt is made to show that he did make this tender. Some evidence is offered that he told Davis that he was ready to account with him and pay what was due, and that he had the money with him. But in order to make a tender that would have caused the interest to cease, he should have ascertained for himself the sum due, or have fixed upon a sum which was sufficient, and then made a formal tender by counting out or offering that sum to Davis distinctly and directly as a tender. The fact that he did not do this is the answer to all that he now claims in this court. He has been permitted to redeem. His own assertion of that right has been allowed him; but if he ever had this money and was ready and willing to pay it, he did not do so. He did not produce or show it. He did not fix the amount he was ready to pay; but he took the money away with him, and used it himself, and there is no hardship in requiring him to pay 6 per cent. interest on it if he wishes to redeem the lots.

The decree of the supreme court of the district is affirmed.


text:
Page:Travels with a Donkey In The Cevennes.djvu/207

Rh off, like a timid sort of lion-hunters; and people turned round to have a second look, or came out of their houses, as I went by. My passage was the first event, you would have fancied, since the Camisards. There was nothing rude or forward in this observation; it was but a pleased and wondering scrutiny, like that of oxen or the human infant; yet it wearied my spirits, and soon drove me from the street. I took refuge on the terraces, which are here greenly carpeted with sward, and tried to imitate with a pencil the inimitable attitudes of the chestnuts as they bear up their canopy of leaves. Ever and again a little wind went by, and the nuts dropped all around me, with a light and dull sound, upon the sward. The noise was as of a thin fall of great hailstones; but there went with it a cheerful human sentiment of an approaching harvest and farmers rejoicing in their gains. Looking up, I could see the brown nut peering through the husk, which was already gaping; and between the stems the eye embraced an amphitheatre of hill, sunlit and green with leaves.


text: Talk:Peugh v. Davis (113 U.S. 542)/Opinion of the Court


text:
Fussell v. Gregg

Jeremiah Hall, for appellants.

''Wm. Lawrence'', for appellees.

Woods, J.

title: Fussell v. Gregg


text: Talk:Fussell v. Gregg

title: Talk:Fussell v. Gregg


text:
Fussell v. Gregg/Opinion of the Court

This was a bill in equity, filed November 20, 1879, to establish the title of the plaintiff to, and recover the possession of, a certain tract of land in the county of Logan, in the state of Ohio, and for an account of rents and profits. Filling the many blanks left in the bill by resort to the evidence, the case made thereby was substantially as follows:

On July 19, 1822, warrant No. 6,508 for 200 acres of land was granted by the state of Virginia to the grandfather of the plaintiff, Archibald Gordon, late of Cecil county, Maryland, in consideration of his services as a private in the Virginia line on the continental establishment in the war of the revolution. On Junuary 21, 1823, he caused his warrant to be located by entry No. 12,017 in the Virginia military district in the state of Ohio, and the entry to be duly recorded. On March 25 1823, he caused the entry to be surveyed by Thomas J. McArthur, a deputy surveyor of said military district, and on November 5, 1824, he had the survey recorded in the office of the principal surveyor of the district. Archibald Gordon died intestate about the year 1829, leaving Archibald Gordon, Jr., late of Baltimore, Maryland, his only child and heir at law. Archibald Gordon, Jr., died intestate about the year 1833 or 1834, leaving the plaintiff and her sister, Sarah Priscilla Gordon, his only children and heirs at law. The plaintiff, on October 31, 1854, intermarried with Joseph B. Fussell, who died December 6, 1864, and the plaintiff's sister, Sarah Priscilla, having intermarried with one William H. Kelly, died intestate on May 12, 1853, leaving issue one daughter, her only child, Mary Elizabeth Kelly. William H. Kelly died at a date not mentioned, leaving his daughter, Mary Elizabeth, surviving him, who died at the age of nine years six months and three days without issue, leaving the plaintiff her sole heir at law. The plaintiff claimed that by direct inheritance from her father, Archibald Gordon, Jr., and collateral inheritance from her niece, Mary Elizabeth Kelly, she was seized of an equitable estate in fee in the lands covered by survey 12,017, and entitled to the immediate possession thereof.

It was further alleged that on October 4, 1851, Daniel Gregg, one of the defendants, made an entry on the records of the principal surveyor of the district, No. 16,070, of 130 acres on military warrant No. 442, and on December 20, 1851, he procured 100 acres of his entry to be so surveyed as to cover 100 acres of land appropriated by the entry and survey of Archibald Gordon, No. 12,017, and on November 2, 1855, he caused the survey to be recorded, and on November 20, 1855, obtained a patent of that date for the lands described in this survey. The bill further averred that the entry, survey, and patent of Gregg were all made and obtained in violation of the proviso of section 2 of the act of March 1, 1823, entitled. 'An act extending the time for locating Virginia military land-warrants, and returning surveys thereon to the general land-office,' (3 St. 772,) and were therefore null and void, and never appropriated any land or vested any title in Gregg as against the plaintiff, or those under whom she claimed.

It was further alleged that the defendant Eleazur P. Kendrick, being the principal surveyor of the Virginia military district, and in possession of the records of that office, did, subsequently to the entry and survey of Gregg, without the knowledge or consent of plaintiff, or of any person under whom she claimed title, write in the margin of the record of Archibald Gordon's entry the word 'withdrawn,' and in and across the plat and record of the survey thereof the words 'state line,' and that Kendrick refused to give the plaintiff a duplicate of said survey to enable her to obtain a patent for the land described therein.

Daniel Gregg, Eleazur P. Kendrick, William Swissgood, Emily Swissgood, Francis Higgins, John W. Higgins, Angeline Higgins, Matilda Higgins, James Eaton, W. G. Smithson, and Andrew Murdock were made defendants to the bill of complaint; the bill alleging that the defendants, except Gregg and Kendrick, wrongly kept the plaintiff out of possession of the premises sued for, claiming title under Gregg. The prayer of the bill was that the validity of the entry and survey of Gordon might be affirmed and established, and the entry, survey, and patent of Gregg declared void; that the words 'withdrawn' and 'state line' might be adjudged to have been written upon the record of the Gordon entry and survey without authority; that the plaintiff might be put in possession of the premises sued for, and have an account of rents and profits, and for general relief. Daniel Gregg, Francis Higgins, John W. Higgins, Angeline Higgins, and Matilda Higgins, by plea, and the other defendants, except Kendrick, by answer, denied the title of the plaintiff, and set up the l mitation of 21 years prescribed by the statute of Ohio, in bar of the relief prayed by the bill. Kendrick made no defense. Upon final hearing upon the pleadings and evidence, the circuit court dismissed the bill, and the plaintiff appealed.

We think that the averments of the bill do not entitle the plaintiff to relief. Her case, as alleged, is that she has an equitable estate in fee in the premises in dispute, and that the defendants, except Gregg and Kendrick, are in possession without title; in other words, are naked trespassers. The theory of her bill seems to be that, because she has an equitable title only, and for that reason could not recover in an action at law, a court of equity has jurisdiction of her case. But this is plainly an error. Mr. Justice BRADLEY, in Young v. Porter, 3 Woods, 342. To give a court of equity jurisdiction, the nature of the relief asked must be equitable, even when the suit is based on an equitable title. The plaintiff does not allege that the defendants, who are in possession of the premises, have the legal title, or that they obtained possession under any person who had it. Nor does she state any facts which connect them with her equity. They being mere naked trespassers in possession, she prays that they may be turned out of, and she, who has only an equitable title, may be put in, possession. The relief prayed for is such as a court of law is competent to grant, if the plaintiff's title would justify it. But the plaintiff does not seek by her bill to better her title. If all the relief asked for were granted, she would still have an equitable title only. The case is, therefore, an ejectment bill brought on an equitable title. In these respects it is similar to the bill in the case of Galt v. Golloway, 4 Pet. 332. That was a bill in equity brought by the heirs of James Galt for general and special relief against Galloway, Baker, Patterson, and others, setting up title to 1,000 acres of land in the Virginia military district in Ohio, based upon an entry and survey in the name of James Galt. Baker and Patterson were in possession of 600 acres of the land, claiming title in the name of Galt. The court found that Baker and Patterson had no title to the lands held by them, and, upon this state of case, said: 'These occupants can be considered in no other light by the court than intruders, and the remedy against them is at law and not in chancery. No decree could be made against them unless it be that they should deliver possession of the premises, and to obtain this the action of ejectment is the appropriate remedy.' This decision is in point, and shows the bill to be without equity as to those of the defendants who are in possession. Their possession is good against all the world except the true owner. As the bill asserts no equity against them, they have the right to stand on their possession until compelled to yield to the true title, and to demand a trial by jury of the question whether the plaintiff has the true title. The plaintiff cannot deprive them of that right by neglecting to acquire the legal title, and upon the ground of her equitable title ask the aid of a court of equity. She can turn the defendants out of possession only upon the strength of the legal title, which she must first acquire. Having done this, a court of law is the proper forum in which to bring her suit. Hipp v. Babin, 19 How. 271; Parker v. Winnipiseogee Manuf'g Co. 2 Black, 545; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466; Killian v. Ebbinghaus, 110 U.S. 568; S.C.. 4 SUP. CT. REP. 232.

As to the defendant Kendrick, it is clear that a court of the United States, sitting in equity, cannot control him in the discharge of his duties as principal surveyor, or take charge of the records of his office, or declare their effect to be other than what appears upon their face.

But we are also of opinion that, upon the issues raised by the pleas and answers, the plaintiff has failed to make good the case which she has stated in her bill. The pleas and answers denied that the plaintiff had, as she averred, an equitable estate in fee in the lands described in the bill. We think that this defense is established by the facts; that by reason of the failure of Archibald Gordon, or his legal representatives, to make return of the survey to the general land-office within the time prescribed by the several acts of congress on that subject, the entry and survey became vacated, annulled, and void, and the lands covered thereby became released from such entry and survey. So that the plaintiff, at the time of bringing her suit, was without any interest or estate in the lands described in her bill.

The lands in controversy are within what is known as the Virginia military district, in the state of Ohio. The state of Virginia claimed title to a large territory north-west as well as south-east of the Ohio river, by virtue of a grant to the colony of Virginia made by King James I. of Great Britain, on May 23, 1609. The Virginia military district is within the limits of this grant. The state of Virginia, by an act of its legislature, passed in October, 1779, (10 Hen. St. 159,) provided for bounty in lands to the officers and soldiers of Virginia in the revolutionary war, both in what was designated as the continental and state establishment, and prescribed the quantity to which they were respectively entitled. Other acts of the legislature provided for the issue of land-warrants to those entitled to them, (10 Hen. St. 50,) and prescribed how they might be located, (11 Hen. St. 353.) On March 1, 1784, the delegates of the state of Virginia to the congress of the United States, being authorized thereto by an act of the legislature, passed December 20, 1783, (11 Hen. St. 326,) conveyed to the United States all the lands which the state of Virginia owned or claimed north-west of the Ohio river. See deed of cession, 11 Hen. St. 571.

The cession was made subject to certain reservations and conditions, among which was the following: 'That in case the quantity of good land on the south-east side of the Ohio, upon the waters of the Cumberland river, and between the Green river and Tennessee, which has been reserved by law for the Virginia troops on the continental establishment, should, from the North Carolina line, bearing in further upon the Cumberland lands than was expected, prove insufficient for their legal bounties, the deficiency should be made up to the said troops in good lands to be laid off between the rivers Scioto and Little Miami on the north-west side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia.'

This court, in the case of Jackson v. Clark, 1 Pet. 628, speaking by Chief Justice MARSHALL, construed this reservation to be 'not a reservation of the whole tract of country between the Scioto and Little Miami rivers; it is a reservation of only so much of it as may be necessary to make up the deficiency of good lands in the country set apart for the officers and soldiers of the Virginia line in the continental establishment south-east of the Ohio,' and declared that the residue of the lands was ceded as a common property for the use and benefit of the members of the confederation; and this trust was to be executed by a faithful and bona fide disposition of the land for this purpose.

As an inference from these views, the court further held that it was within the power of congress to prescribe the time within which the lands to be appropriated by those holding the bounty warrants should be separated from the general mass, so as to enable the government to apply the residue, which it was then supposed would be considerable, to the other purposes of the trust, and if the time within which the warrants might be located was extended by congress, it had the right to annex conditions to the extension.

Congress, in the exercise of these powers which, in the case just cited, it was subsequently decided it possessed, on March 23, 1804, passed an act entitled 'An act to ascertain the boundary of the lands reserved by the state of Virginia, north-west of the river Ohio, for the satisfaction of her officers and soldiers on continental establishment, and to limit the period for locating the said lands.' 2 St. 274. Section 1 of this act defined the boundary of the Virginia military district in Ohio.

Section 2 provided: 'That the officers and soldiers, or their legal representatives, who are entitled to bounty lands within the above-mentioned reserved territory, shall complete their locations within three years after the passing of this act; and every such officer and soldier, or his legal representatives, whose bounty land has or shall have been located within that part of the said territory to which the Indian title has been extinguished, shall make return of his or their surveys to the secretary of the department of war within five years after the passing of this act, and shall also exhibit and file with the said secretary, and within the same time, the original warrant or warrants under which he claims, or a certified copy thereof, under the seal of the office where the said warrants are legally kept, which warrant, or certified copy thereof, shall be sufficient evidence that the grantee therein named, or the person under whom such grantee claims, was originally entitled to such bounty land; and every person entitled to said lands, and thus applying, shall thereupon be entitled to receive a patent in the manner prescribed by law.'

The third and last section provided: 'That such part of the above-mentioned reserved territory as shall not have been located, and those tracts of land within that part of said territory to which the Indian title has been extinguished, the surveys whereof shall not have been returned to the secretary of war within the time and times prescribed by this act, shall thenceforth be released from any claim or claims for such bounty lands.'

The plain meaning of the act is that a failure within five years after its passage to make return to the secretary of was of the survey of any tract of land located within said territory, made previous to the expiration of said five years, should discharge the land from any claim founded on such location and survey, and extinguish all right, title, and estate previously acquired thereby; and that all lands within said district not located within the same period, should be released and discharged from the right of any person to locate a military warrant thereon. The survey of the entry of Archibald Gordon has, to this day, never been returned to the secretary of war; or, as provided by subsequent acts, to the general land-office of the United States. His right to the lands covered by his entry and survey was therefor cut off by the act of March 23, 1804, unless it has been saved by subsequent legislation of congress. Counsel for plaintiff, not denying that such was the effect of the act of March 23, 1804, insists that the period limited for returning the survey has been, from time to time, so prolonged that the entry and survey of Gordon are now valid and subsistin, and vest in the plaintiff, as the sole heir of Gordon, an equitable estate in the lands covered by the survey.

This legislation will not be noticed. The act which first followed the law of 1804 was that approved March 2, 1807, (2 St. 424.) It allowed the officers and soldiers who were entitled to bounty lands in the Virginia military district a further time of three years from March 23, 1807, to complete their locations, and five years from the same date to return their surveys and warrants to the office of the secretary of war. The act also contained the following proviso: 'that no location, as aforesaid, within the above-mentioned tract shall, after the passage of this act, be made on tracts of land for which patents had previously been issued, or which had been previously surveyed, nd any patent which may nevertheless be obtained for land located contrary to the provisions of this section, shall be considered as null and void.'

The period of limitation prescribed by the act of March 23, 1804, for making locations and returning surveys was subsequently, from time to time, extended by successive acts of congress. Act of Movember 3, 1814, (3 St. 143;) act of February 22, 1815, (3 St. 212;) act of April 11, 1818, (3 St. 423;) act of February 9, 1821, (3 St. 612;) act of March 1, 1823, (3 St. 772;) act of May 20, 1826, (4 St. 189.) These acts, except that of February 22, 1815, (3 St. 212,) all contained and repeated the proviso above recited of the act of March 2, 1807.

Congress having established by the act of April 25, 1812, (2 St. 716,) a general land-office, the act of November 3, 1814, provided for the return of the surveys and warrants to that office instead of to the secretary of war, and in this respect was followed by the subsequent statutes, except the act of February 22, 1815, which contained no direction in respect to the return of surveys and warrants. The act of May 20, 1826, extended the time for making locations to June 1, 1829, for making surveys to June 1, 1832, and for returning surveys to June 1, 1833. After the expiration of the term limited by this act, an interval of five years occurred, during which no authority existed for making locations, surveys, or returns of surveys. The act of July 7, 1838, (5 St. 262,) extended the time for making locations and surveys, and the return of surveys to the general land-office, to August 10, 1840, and provided as follows: 'That all entries and surveys which may have heretofore been made within the said reservation in satisfaction of any such warrants on lands not previously entered or surveyed, or on lands not prohibited from entry and survey, shall be held to be good and valid; any omission heretofore to extend the time for making of such entries and surveys to the contrary notwithstanding.' It also contained the proviso of the act of March 2, 1807, above recited. By an act approved August 19, 1841, (5 St. 449,) the act of July 7, 1838, was 'revived and continued in force' until January 1, 1844, and by an act approved July 29, 1846, (9 St. 41,) the act of August 19, 1841, was 'revived and continued in force' until the first day of January, 1848. On July 5, 1848, (9 St. 244,) a like act was passed, by which the act of August 19, 1841, was 'revived and continued in force until January 1, 1850.' And by an act passed February 20, 1850, (9 St. 421,) the same act of July 5, 1848, was revived and continued in force until January 1, 1852.

The effect of the series of acts, beginning with the act approved August 19, 1841, and ending with the act of February 20, 1850, was to continue in force the act of July 7, 1838, till January 1, 1852. The whole series, beginning with the act of March 23, 1804, and ending with the act of July 7, 1838, as revived and continued in force by the later acts just referred to, relates to the same subject and is to be construed together. U.S. v. Freeman, 3 How. 556; Rex v. Loxdale, 1 Burr. 447. It appears, even from a cursory reading, that section 3 of the act of March 23, 1804, was not repealed or modified, either directly or indirectly, by any of the subsequent acts above mentioned. There was no direct repeal of the section. Neither was there any repeal by implication. McCool v. Smith, 1 Black, 459; U.S. v. Tynen, 11 Wall. 88; Henderson's Tobacco, Id. 652; Murdock v. Memphis, 20 Wall. 590; Red Rock v. Henry, 106 U.S. 596; S.C.. 1 SUP. CT. REP. 434. It was allowed to remain unaltered on the statute-book; the effect of the subsequent legislation being only to suspend its operation until the first day of January, 1852. The interpretation must, therefore, be the same as if the third section of the act of March 23, 1804, had been repeated in every subsequent statute of the series. As neither Archibald Gordon, nor any o his heirs or representatives, ever made a return of the survey of the land in dispute, either to the secretary of war or the commissioner of the general land-office, either before or after the first day of January, 1852, the third section of the act of March 23, 1804, cuts up by the roots all the right and title derived from the location and survey of Archibald Gordon.

Under the acts of congress, Gordon, by by his entry and survey, acquired title depending on his performance of certain prescribed conditions. His failure to perform the conditions stripped him of all interest or estate in the lands covered by his entry and survey. That such is the effect of the third section of the act of March 23, 1804, is made manifest by the proviso above quoted of the act of July 7, 1838, which declared all entries and surveys theretofore made to be good and valid, notwithstanding any omission by congress to extend the time for making such entries and surveys. This is equivalent to a declaration by congress that section 3 of the act of 1804 was still in force, and legislation was necessary to relieve from its operation entries and surveys not made within the time limited by that or the subsequent enactments.

Since the act of February 20, 1850, congress has passed two acts, on both of which the plaintiff relies as making good his title. The first of these is the act of March 3, 1855, (10 St. 701,) entitled 'An act allowing the further time of two years to those holding land by entries in the Virginia military district in Ohio which were made prior to the first of January, 1852, to have the same surveyed and patented.' This act provided 'that the officers and soldiers of the Virginia line of continental establishment, their heirs or assigns, entitled to bounty lands which have, prior to the first day of January, 1852, been entered within the tract reserved by Virginia between the Little Miami and Scioto rivers for satisfying the legal bounties to her officers and soldiers upon continental establishment, should be allowed the further time of two years from and after the passage of this act to make and return their surveys and warrants, or certified copies of warrants, to the general land-office.'

This act is, by its terms, confined to lands entered and not surveyed prior to January 1, 1852. The policy of the act is clear. The acts passed prior to the act of July 7, 1838, fixed one period for locating entries, and a longer time for making and returning surveys, plainly because the surveys could not be made until the entries were made. But the act of July 7, 1838, as revlved and continued in force by subsequent statutes, fixed the first day of January, 1852, as the limit allowed both for making entries and making and returning surveys. It therefore doubtless happened that laggard warrant holders procrastinated the making of their entries until it was too late to make and return their surveys before the first of January, 1852. Therefore the act of March 3, 1855, was passed, allowing the holders of warrants who had made their entries before Janury 1, 1852, two years further time after the passage of the act to make and return their surveys. Those who, before January 1, 1852, had made both their entries and surveys were not within the words or spirit of the act.

The next act on which the plaintiff relies is the act of May 27, 1880, (21 St. 142.) This act is entitled 'An act to construe and define 'An act to cede to the state of Ohio the unsold lands in the Virginia military district in said state,' approved February 18, 1871, and for other purposes.' The act which was to be construed and defined, provided 'that lands remaining unsurveyed and unsold in the Virginia military district, in the state of Ohio, be, and the same are hereby, ceded to the state of Ohio,' and saved to any bona fide settler not exceeding 160 acres by him occupied, by his pre-empting the same in such manner as the state of Ohio might direct. 16 St. 416.

The plaintiff relies on the fir t three sections of the act of May 27, 1880. The first section declares that the true intent and meaning of the act of February 18, 1871, just mentioned, was to cede to the state of Ohio only such lands as were unappropriated and not included in any entry or survey within said district founded on military warrants upon continental establishment. The second section is as follows: 'That all legal surveys returned to the land-office on or before March 3, 1857, on entries made on or before January 1, 1852, and founded on unsatisfied Virginia military continental warrants, are hereby declared valid.' The third section provided that the officers and soldiers of the Virginia line on continental establishment, their heirs or assigns, 'entitled to bounty lands which have, on or before January 1, 1852, been entered' in the Virginia military district in Ohio, should 'be allowed three years after the passage of the act to make and return their surveys for record to the office of the principal surveyor of said district, and might file their plats, certificates, and warrants in the general land-office, and receive patents for the same.

The provisions of the third section are based on the same policy, and are similar to those of the act of March 3, 1855, ubi supra, and must receive the same construction, namely, that three years' further time was allowed for the return of the surveys of the lands which had been entered but not surveyed before January 1, 1852. The section does not, therefore, help the plaintiff's title. But the plaintiff relies confidently on the second section, and her contention is that the 'land-office' referred to in this section is the same as the 'office of the principal surveyor of said,' the Virginia military, 'district' mentioned in the third section of the act, and that, as on November 25, 1824, Archibald Gordon had recorded his survey in the latter office, kept at Chillicothe, Ohio, the section above quoted makes the survey valid.

In construing the second section of the act of 1880, the rule already referred to must be applied, namely, that all acts in relation to the same subject are to be construed together as if one act. The act of 1880 is part of the system of legislation relating to the Virginia military district in the state of Ohio, beginning with the act of March 23, 1804, and continued in the 14 other acts heretofore referred to. The acts of March 23, 1804, and of March 2, 1807, passed before the establishment of the general land-office, required surveys to be returned to the secretary of war. All the subsequent acts, except the act of February 22, 1815, which omitted any direction for the return of surveys, 14 in number, either directly or by reference to other acts, required surveys to be returned to the general land-office. When, therefore, the second section of the act of May 27, 1880, provides that all legal surveys returned to the 'land-office' before March 3, 1857, shall be valid, it is not open to question that the land-office referred to is the general land-office. In all the legislation on the subject, found in 13 acts of congress, extending over a period of 68 years, no other land-office had been mentioned. The theory that the words 'land-office,' in the act of May 27, 1880, meant the office of the principal surveyor of the district of Chillicothe, which, in all the previous legislation, had never been named or alluded to, is without any support in any rule of construction, and is inconsistent with the system for the disposition of the lands adopted and maintained by congress for more than three-quarters of a century. That system, as we have seen, required the surveys and warrants to be returned to the city of Washington, at first to the secretary of war, and afterwards to the general land-office. It required that patents should be issued by the president upon surveys so returned, and no patent could issue on any survey not so returned. It cannot be conceived that congress, by the omission of the word 'general' before the words 'land-office,' intended to reverse this policy which it had persistingly adhered to through 15 different statutes and for nearly three generations, and thus to unsettle the titles to land in a large and densely peopled territory.

Nor can we impute to congress the incongruity of using the words 'land-office,' and the words 'the office of the principal surveyor of said district,' in contiguous sections of the same act, to mean the same thing. But all doubt, if any existed, of the true meaning of the words 'land-office' in the section under consideration is removed by the fact that the section is plainly in substance and effect a re-enactment of the act of March 3, 1855, which provided in terms for the return of surveys to the general land-office.

The plaintiff further insists that the first and second sections of the act of May 27, 1880, repeal by implication the third section of the act of March 23, 1804. There is no ground for such a contention. It is most unreasonable to suppose that congress intended, by doubtful inference, to repeal the salutary provision of section 4 of the act of 1804, which, in numerous enactments, it had cautiously preserved for a period of 76 years, and on which the titles to a vast domain rested.

The object of the first and second sections of the act of May 27, 1880, was not to confer new rights, but to preserve rights already vested from impairment by any construction which might be placed on the act of February 18, 1871, by which the unsurveyed and unsold lands in the Virginia military district were ceded to the state of Ohio. But it is enough to say that there is no inconsistency between the two enactments, one of which is said to repeal the other. There can, therefore, be no repeal by implication.

It follows that the plaintiff can derive no aid from any act of congress passed since the first day of January, 1852. On that day all interest and estate of the heirs of Archibald Gordon in the lands covered by his entry recorded on January 1, 1823, and his survey recorded on November 6, 1824, ceased and determined. The plaintiff, therefore, has failed to make good her averment that she has an equitable estate in fee-simple to the premises in controversy. She has therefore shown no right to the relief prayed by her bill. It is immaterial whether the patent of Gregg, under which the defendants claim, was valid or void. The plaintiff, having no title, can have no relief against them. The defendants, being in possession, are entitled to retain possession until ousted by one who has the title. The decree of the circuit court, by which the bill was dismissed, was therefore right, and is affirmed.

title: Fussell v. Gregg/Opinion of the Court


text: Talk:Fussell v. Gregg/Opinion of the Court


text: Fussell v. Hughes

title: Fussell v. Hughes


text: Talk:Fussell v. Hughes

title: Talk:Fussell v. Hughes


text:
Fussell v. Hughes/Opinion of the Court

The bill in this case was also filed November 20, 1879. It was based on the same alleged title as that in Fussell v. Gregg, ante, 631, and was brought for a part of the lands covered by the same entry and survey, and prayed for the same relief. The same defenses were pleaded. It follows, from what has been said in Fussell v. Gregg, supra, that this suit is not within the jurisdiction of a court of equity, and that the plaintiff has no right whatever to the lands to which she seeks to establish title, and of which she prays to be put in possession. The decree of the circuit court by which the bill was dismissed was therefore right. Decree affirmed.

title: Fussell v. Hughes/Opinion of the Court


text: Talk:Fussell v. Hughes/Opinion of the Court


text:
City of St Louis v. Myers

''Nathl. Myers'', for the motion.

Leverett Bell, in opposition.

WAITE, C. J.

title: City of St Louis v. Myers


text: Talk:City of St Louis v. Myers

title: Talk:City of St Louis v. Myers


text:
City of St Louis v. Myers/Opinion of the Court

The question on which this case turned below was whether Myers, the lessee of the property situated on the bank of the Mississippi river, within the city of St. Louis, which had been improved with a view to its use, and was used in connection with the navigation of the river, could maintain an actio against the city for extending one of its streets into the river so as to divert the natural course of the water and destroy the water privileges which were appurtenant to the property. The supreme court of the state decided that he could; and to reverse that decision this writ of error was brought.

We are unable to discover that any federal right was denied the city by the decision which has been rendered. The act of congress providing for the admission of Missouri into the Union, March 6, 1820, c. 22, (3 St. 545),-and which declares that the Mississippi river shall be 'a common high way, and forever free,' has been referred to in the argument here, but the rights of riparian owners are nowhere mentioned in that act. They are left to be settled according to the principles of state law. Certainly there is nothing in the provisions of the act from which a right can be claimed by the city of St. Louis, even though it be the owner of the bed of the river, to change the course of the water as it flows to the injury of those who own lands on the banks. This act was not mentioned in the pleadings, and, so far as we can discover, it was not alluded to in the opinions of either of the courts below, except for the purpose of showing that the Mississippi river was in law a navigable stream.

By an act passed June 12, 1866, c. 116, § 9, (14 St. 63,) congress relinquished to the city of St. Louis all the right, title, and interest of the United States 'in and to all wharves, streets, lanes, avenues, alleys, and of the other public thoroughfares' within the corporate limits; but this did not, any more than the act providing for the admission of Missouri into the Union, purport to authorize the city to impair the rights of other riparian proprietors by extending streets into the river, and neither in the court below nor here was there been any provision referred to which it is claimed has that effect.

The case of Railway Co. v. Renwick, 102 U.S. 182, was entirely different from this. There the question was whether the owner of a saw-mill on the bank of the Mississippi river, who had improved his property by erecting piers and cribs in the river under the authority of a statute of Iowa, but without complying with the provisions of section 5254 of the Revised Statutes of the United States, could claim compensation from the railroad company for taking his property in the river for the construction of its road. The company claimed that, as congress, in the exercise of its jurisdiction over the navigable waters of the United States, had prescribed certain conditions on which the owner of saw-mills on the Mississippi river might erect piers and cribs in front of their property, the statute of Iowa, under which Renwick had made his improvements, was void. This we held presented a federal question and gave us jurisdiction; but nothing of that kind appears in this record.

On the whole we are satisfied that no case has been made for our jurisdiction, and the motion to dismiss is consequently granted.


text: Talk:City of St Louis v. Myers/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Bowden, Samuel


text:
Page:Travels with a Donkey In The Cevennes.djvu/107

Rh of those circumstances which strike the Protestant as childish or as tawdry in the public offices of Rome. A stern simplicity, heightened by the romance of the surroundings, spoke directly to the heart. I recall the whitewashed chapel, the hooded figures in the choir, the lights alternately occluded and revealed, the strong manly singing, the silence that ensued, the sight of cowled heads bowed in prayer, and then the clear trenchant beating of the bell, breaking in to show that the last office was over and the hour of sleep had come; and when I remember, I am not surprised that I made my escape into the court with somewhat whirling fancies, and stood like a man bewildered in the windy starry night. But I was weary; and when I had quieted my spirits with Elizabeth Seton's memoirs—a dull work—the cold and the raving of the wind among the pines—for my room was on that side of the monastery which adjoins the woods—disposed me readily to slumber. I was wakened at black midnight, as it seemed, though it was really two in the morning, by the first stroke upon the