text:
Andromeda v. United States

ON the 20th of May, 1862, the schooner Andromeda, with a cargo of cotton and hides, was captured off the coast of Cuba by the Pursuit, a sloop-of-war of the United States. The schooner at the time was bound to Havana, on a voyage from the port of Sabine, in Texas, where she had received her cargo. Being brought into Key West, she was libelled by the District Attorney of the United States as 'lawful prize of war, and subject to condemnation and forfeiture as such;' the libel, however, not stating for what cause she was seized, or had become 'lawful prize of war' as set up in that document.

The manifest read thus:

EXPORT MANIFEST.

Manifest of the cargo on board the schooner Andromeda, of the burden of 229 8/100 tons, whereof J. H. Ashby is master, bound from Sabine Pass to Havana.

Name of Marks and Number of Packages or Contents or Names of    Value at the

Shippers. numbers. entries. articles in quantities. consignees. port of exportation bulk. of domestic

produce or

merchandise.

Andromeda &

Culmell. Various 597  597 bales cotton. 29,514 pounds. Chas. Caro & Co. $31,000 00

Do. F v C. 291 291 hides. 1,164 pounds. do. do. 58 20

Total amount,..................... $31,058 20

The bill of lading, described Edmonson and Culmell as shippers of all the items of the cargo.

AS TO THE OWNERSHIP OF THE CARGO libelled, as mentioned. The master of the vessel, Ashby, admitting that ninety bales of the cotton belonged to him, set up that one hundred belonged to a certain Culmell, 'a native citizen of Denmark,' and for ten years resident in Texas, where he was in trade as a partner of one Edmonson; and that the remainder of the cotton and all the hides belonged to Messrs. Caro & Co., merchants of Havana, to whom they were consigned. Caro & Co. were French subjects. Culmell made the same defence as to one hundred bales. Caro & Co. gave a power of attorney to the captain, to claim for them as theirs, all the hides and the whole cargo, with the exception of the one hundred and ninety bales; but, notwithstanding that an order for further proof was granted to allow them to exhibit proof of their ownership, they did not themselves appear at Key West, nor take any more active measures to protect their interests thus, by their answer, set up.

Ashby himself, was examined in preparatorio. His answers were, that 'he was born in New York,-now lives in Louisiana,-owes allegiance to Louisiana and the Confederate States,-is not a citizen of the United States,-is married, and has a family in Louisiana.' It appeared that he bought and took possession of the vessel in October, 1860, before the rebellion broke out; came soon afterwards to the Gulf and New Orleans, in which city he was when the war broke out, and which he left soon afterwards on the vessel (now, according to his account, sold), as master, and had been sailing since chiefly in those regions on her.

Just after the vessel hove to, and before the capturing officers from the Pursuit came on board, the steward, one Monsell, by order of Culmell, who was on board, and at the time with the captain, in the cabin, threw over a package of papers. The captain swore that he did not know what they were; the steward said, that he supposed they were newspapers. Culmell swore, that 'the invoice and bills of lading of the portion of the cargo owned by himself, were thrown over; he did not know who threw them overboard, but he gave them to the steward on the day of the capture, with orders to have them thrown overboard.'

The vessel had left Havana on the 8th of March, 1862, under the British flag, but with the American flag on board; her destination having apparently been Matamoras. Her cargo consisted of coffee, soap, oil, salt, candles, shoes, &c.; and running the blockade, legal or ineffective, then established by our Government, she arrived at Sabine, March 16th. This cargo was delivered to Messrs. Edmonson & Culmell, who received and sold it on account of the schooner Andromeda;' and their account showed a large balance 'due the schooner on the cargo.'

AS TO THE OWNERSHIP OF THE VESSEL. The vessel was American built. Prior to the rebellion she had belonged confessedly to Ashby, her now captain, who first saw her at Bridgeport, Connecticut, in 1860. Soon after the breaking out of the war he sold her, in May, 1861, at New Orleans, according to his own sworn statement, to a certain Richard Alleyn, described in the register as 'of Baltimore, in the county of Cork, Ireland, residing at the time in New Orleans,' a British subject; and documents, attested by the British consul at New Orleans, one Mure, showed that various forms, indicative of a bon a fide sale, had been gone through with great regularity. Alleyn sold her in March, 1862, according to the account, to a certain Gerald Thomas Watson, her now claimant. Watson was asserted to be a merchant of Havana, and, like Alleyn, a British subject. He was no doubt a British subject, but where he lived was not so plain. In one consular paper he was described as of 'No. 52 Cornhill, London.' Ashby remained all the time in command of the vessel. In reply to a question under an order allowing further proofs, he gave, under oath, a narrative, substantially as follows, showing the motives of the transfer, and the causes of his own continuing possession of her.

'To the fourth interrogatory the witness answers: At the time of the purchase by Alleyn, and her transfer to the English flag and register, a blockade of the port of New Orleans was expected to be laid in a few weeks. Alleyn resided in New Orleans. He intended to send the vessel to sea in order that she might not be useless property to him during the time the blockade should exist. This witness was appointed to her command by Alleyn, because he, the witness, was a person of some property, and would be responsible to Alleyn in case of a mismanagement of the vessel. On account of the blockade, no owner could expect to communicate with the vessel for a long term of time, and would have to suffer her earnings to accumulate and remain in the hands of her master. The witness, as master, sailed the schooner for Alleyn upon a contract, by which the witness was to have entire control and direction of the vessel; pay her entire expenses; engage her in the most profitable trade possible, and receive one-half of her earnings as a compensation,-a common rate of contract and compensation for masters sailing vessels of her class. Under this contract he sailed from New Orleans with a cargo to Matamoras, in Mexico; remained there about a month; discharged her cargo; and there being no freight for vessels there at that season he sailed in ballast to Havana, in Cuba, and endeavored to obtain freight there, but was unable to do so for three months, at the expiration of which time he obtained a cargo of sugar and molasses for New York, at low rates for freight, with which he proceeded to New York, where the schooner was seized by the Federal authorities under the allegation that she was liable to confiscation under the provisions of the act of Congress of July 18, 1861, but was soon afterwards released. The witness returned to Havana with a general cargo of merchandise, and was unable to procure another freight for a long time. The expenses of the vessel thus accumulating rapidly, and she earning nothing, induced the witness, on receiving an offer of purchase from the claimant Watson, to accept the same, which course he believed was for the interest of her owner, Alleyn. One of the conditions of the sale was, the witness should be retained in command until the new owner should find some person who would sail her at lower rates of compensation. This stipulation was attached because this witness was cut off from New Orleans by the blockade, and had no remunerative employment, and for no other reason. In accordance with the stipulation, the witness took command of the schooner, and was to receive for pay five per cent. of the entire and gross charges for freight upon cargo carried by said vessel while he remained in command.'

The log-book of the vessel was put in evidence, and the entries read from March 8, 1862, to the date of her sailing from Sabine, 10th of May, and indeed till the capture. Constantly throughout the log, with entries of 'the pumps now working well,' or the reverse of it; how the day 'came in;' and how ended 'these twenty-four hours;' that the ship 'kept the Sabbath' on Sundays, and 'took in cotton,' 'took in hides,' during the week;-'lower hold full,'-were entries like these during the time she was in the harbor of Sabine,-a port which commands a view of the ocean:

'No blockade in sight, fine weather.' 'No blockading vessel off.' 'No blockade off, clear weather.' 'No blockade off the bar, fine and pleasant day.' 'No vessel in sight, clear day, wind from south.' 'Day commences with fine weather, no blockading vessels in sight.' 'Saw no blockading vessels, clear, with breeze from south and southeast.' 'No blockade in sight, pleasant weather.'

And Culmell and Ashby, and the steward Monsell, alike swore that they saw no blockading vessels at any time; and that the vessel had not attempted, so far as they knew of, to go in or come out of any port when it was blockaded.

Noting that Caro & Co., though of Havana, had taken no further interest in the proceeding at Key West, near to them, than to sign a power of attorney to Ashby, the District Court considered that the claim set up by or for these persons to the bulk of the cargo, 'was an attempt to cover up hostile property by the use of neutral names;' and that the whole cargo, except the portions claimed by Culmell (plainly confiscable), belonged to Ashby; that Ashby, too, was owner of the vessel; of which 'his all along continuing in the command, notwithstanding the alleged sale by him to Alleyn, and by Alleyn afterwards to Gerald Thomas Watson,' was a pregnant proof. That court accordingly condemned vessel and cargo. The question before this court was, whether the condemnation was warranted.

Messrs. Gillet and Reverdy Johnson, for the claimants, contended that there was no sufficient evidence to condemn either cargo or vessel in total at all. A portion of the cargo is admitted to have belonged to Culmell, and some to Ashby; but the bulk of it stood on a different footing, and should not be condemned. Nothing could be argued from the destruction of papers beyond the fact that Culmell owned a portion (which fact is admitted), and was fearful about this, his part, hoping to save it. Caro & Co. are not touched. There is, therefore, as to the bulk of the property, no evidence of enemy's property at all.

As respected the vessel, the narrative given by Captain Ashby, on oath, in answer to the fourth interrogatory, was remarkably clear, and had internal indications of truth.

Moreover the libel is defective in form. It ought to specify for what offence supposed to be committed the vessel is claimed as prize of war; whether for breaking blockade or as enemies' property, or for what else? This generality of accusation belongs to no good system of law. It is 'the sending of the prisoner, and not withal signifying the crime laid against him,'-a matter which we have high authority to declare 'unreasonable.' Besides, there was no properly maintained blockade at Sabine. No blockaders could be seen for days and days. No nation has set itself more forcibly against paper blockades than the United States. Our natural duty and permanent interests are to support the rights of neutrals. We need not enlarge on a topic which was enforced with eloquence by counsel at this term in the case of The Circassian. Our country has already given the world great lessons. In public law it remains for us to carry out the defence of neutral rights to their true dignity. This is the distinction which awaits us.

Lower views also would control this matter. We must not attempt to enforce doctrines against Great Britain and France that we are not willing to have applied to ourselves; nor while maintaining our present interest, teach instructions which will but return to plague the inventors.

Mr. Coffey, special counsel of the United States, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Andromeda v. United States


text: Talk:Andromeda v. United States

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

title: Talk:Andromeda v. United States


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

The CHIEF JUSTICE delivered the opinion of the court.

It is not disputed that the cargo consisted of Texan products. Prior to shipment, then, it was enemy property.

The manifest of the cargo, found on the schooner when captured, shows that five hundred and ninety-seven bales of cotton, valued at thirty-one thousand dollars, and two hundred and ninety-one hides, valued at fifty-eight dollars and twenty cents, were shipped at Sabine, in May, 1862, 'by the Andromeda, Culmell,' and consigned to Charles Caro & Co., at Havana. Of this cargo, Ashby, the master, says that ninety bales of cotton belonged to himself, and one hundred to Culmell, and that the remainder of the cotton, four hundred and seven bales, and all the hides, belonged to Caro & Co., who, he says, are neutral merchants, residing in Havana. Culmell says the same. Culmell was a rebel enemy, residing in Texas. Ashby left New Orleans in the Andromeda soon after the breaking out of the war, and from that time to the capture was in command of her, engaged in the Gulf trade, and the greater portion of the time with the rebel territory. He says of himself, that he was born in New York; lives in Louisiana; owes allegiance to Louisiana and to the Confederate States, and is not a citizen of the United States. His acts and declarations prove him a rebel enemy. There can be no question, therefore, that the cotton, when it became the property of Ashby or Culmell, or both, was enemy property. There is nothing in the record to support the statements of those persons, as to the ownership of Caro & Co. On the contrary, there is much to discredit them. There is nothing in the manifest which shows any distinction of ownership; and it is proved that a part belonged to Ashby and Culmell. The cotton and hides appear to have been purchased with the proceeds of the merchandise brought by the Andromeda to Sabine; and there is nothing before us, except the bare statement of Ashby, that the schooner was chartered by them for Matamoras, which affords the slightest indication that Caro & Co. had any interest whatever in that merchandise; while the account of sales is not with them, but with 'schooner Andromeda and owners.'

Besides these facts, another circumstance is of much weight. It appears from the record that Caro & Co., though residing at Havana, only a hundred miles from Key West, where the District Court was held, never appeared there during the proceedings in prize, never manifested any concern in the result beyond the mere signing of a power of attorney, authorizing Ashby to claim in their name. The court below very properly gave much consideration to this circumstance. In connection with the other facts mentioned, we think it fully warranted the conclusion, that no part of the cargo belonged to Caro & Co., and that the original enemy character of the whole of it remained unchanged at the time of capture.

The enemy character of the vessel is quite as clearly proved. She was originally the property of Ashby, a confessed rebel enemy, and, according to his statements, of others who, in the absence of any allegation to the contrary, must be presumed to have been, also, rebel enemies. By Ashby she was sold, as he asserts, to one Alleyn, said to have been a neutral residing in New Orleans. But there was no change of possession. Ashby remained in full and absolute control, both of her use and disposal, and afterwards sold her, under the asserted authority of Alleyn, to one Watson, alleged to have been a neutral residing in Havana. Still, however, there was no change of possession, control, or employment. There is not the slightest evidence that either of the alleged sales was real, except the unsupported statement of Ashby. That statement under the circumstances can carry no conviction with it.

The condemnation both of vessel and cargo seem to us, therefore, well warranted.

Were there any doubt, it would be removed by the destruction of papers proved to have been committed both by Ashby and Culmell, the real owners, as we think, of the schooner and her lading. Monsell, the steward, states that 'after the vessel was hove to, and before the officer came aboard from the Pursuit,' Culmell gave him a package of papers, which he believed to be newspapers, and told him to throw them overboard, which was done. He says, that Ashby and Culmell were in the cabin together when this direction was given. Ashby admits that the charter-party of the voyage was destroyed before the capture, and that some papers were thrown overboard, he did not know what. Culmell confesses that the invoices and bills of lading of the portion of the cargo owned by himself, were thrown overboard. Now, when it is remembered that the only bill of lading in the record describes all the cotton as shipped by Edmonson & Culmell, the significance of this confession becomes manifest; for if the bill of lading of destroyed was, as it must have been, one of three of like tenor and date with the one found by the captors, then, if this statement be true, all the cotton was owned by Culmell. If, on the other hand, the statement be false, and the papers destroyed were other than as represented, then their destruction and the destruction of the charter-party authorize, under the circumstances, an absolute inference of enemy property, against both vessel and cargo.

We think the proof that the Andromeda and her cargo were liable to capture and condemnation for breach of blockade, equally clear; but, as we do not place our decision on that ground, we refrain from any remarks upon that aspect of the case.

No objection was made in argument to the sufficiency of the libel in the District Court. It would be enough to say of this objection, that the libel shows a case of prize, and that is sufficient for jurisdiction. All other exceptions are too late here. But the libel is beyond all exception. The rule is, that a libel in prize must allege generally the fact of capture as prize of war, and the libel in the record is in conformity with this rule.

The decree of the District Court must be affirmed.

NELSON, J.

The proofs in the case, I think, fairly lead to the conclusion, that Ashby, the master of the Andromeda, was the real owner of the vessel, and that the sales by himself and others, in May, 1861, at New Orleans, to Alleyn, and by himself as attorney for Alleyn to Watson, at Havana, in March, 1862, were colorable; and, if Ashby was a resident and inhabitant of New Orleans, at the time of the capture of that port and city by our forces, on the last days of April, 1862, as seems to be assumed, there would be ground for claiming that he was entitled to the benefit and protection of General Butler's proclamation of the 1st of May following; and, also, to the effect of that capture upon the status and property of the inhabitants of the captured city.

The view I have taken of the proofs in the case, do not involve these questions.

Ashby left the city of New Orleans in this vessel soon after the breaking out of the war, and before the establishment of the blockade, and has never returned to it. During all this time and down to the seizure of the vessel, 26th of May, 1862, he has been in command of it, and engaged in the Gulf trade; and the greater portion of the time with the rebel territory. In answer to the first interrogatory, in preparatorio, he says, 'that he was born in New York; he now lives in Louisiana, and owes allegiance to Louisiana and the Confederate States; is not a citizen of the United States.' In answer to the fourth interrogatory, under an order allowing further proofs, he says that he left New Orleans with the vessel anticipating a blockade, that she might not become useless property, and that he did not expect to communicate with that city while the blockade continued. The proofs, as we have seen, show how he has been engaged during all this period.

On the above ground, I agree that the vessel was properly condemned in the court below, as enemy's property; and, also, the cargo, which the court have adjudged belonged to him.

DECREE AFFIRMED.


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


text:
Kutter v. Smith

LINK demised, on the 1st of May, 1857, to Sherman, a lot in Chicago, for twelve years from that date. The lessee covenanted to pay all the taxes and assessments levied on the premises during the term.

It was provided that, in case of a failure by the lessee to pay the rent when due, the lessor, his heirs or assigns, should have the right to enter into the demised premises, with or without process of law, and expel the lessee or any persons occupying them, 'and the said premises again to repossess and enjoy, as in his first and former estate;' and the lessee covenanted that, if the term should at any time, at the election of the lessor, or his assigns, be ended, he, and all those occupying the premises under him, would immediately and peaceably surrender the possession of the premises to the lessor or his assigns. Sherman contemplated making an erection upon the premises, which it was agreed he might do; and the lease contained the following covenant:

'It is agreed upon, by and between the parties, that at the expiration of ten years from the first day of May, one thousand eight hundred and fifty-nine, it shall be at the election of the first party either to purchase the buildings erected on said leased premises at the appraised value at that time, or renew the lease of the said demised premises for the term of ten years longer, and the value of the buildings as well as the value of the rent of the said demised premises, to be appraised by three disinterested persons, who are to decide the value of the buildings, as well as the value of the rent of the above-mentioned premises, as the case may be. And it is further agreed upon, by and between the parties, that at the expiration of each and every ten years from May first, one thousand eight hundred and sixty-nine, for and during the term of ninety-nine years from the date of this indenture, that the party of the first part is either to renew the lease or purchase the buildings as above stipulated.'

The lessee did erect a brick structure or storehouse on the premises, valued at $2500 to $4000.

The rights of the lessee, Sherman, became afterwards vested in one Kutter, and those of Link, the lessor, in a certain Smith.

On the 1st of May, 1862, Smith, as assignee of Link, went upon the premises, and demanded the rent due that day on the lease, which was not paid, and the next day he gave notice that he had elected to forfeit the lease for non-payment of rent, due May 1, 1862.

In July, 1862, Kutter (assignee of Sherman) notified to the defendant that, owing to the forfeiture of the lease from Link to Sherman, for non-payment of rent, he (Kutter) was entitled to have the brick building on the demised premises appraised under the terms of the lease, and the value of it paid to him. Smith refusing to join in any effort to have it appraised, this suit, an action on the case, was brought in the Circuit Court for the Northern District of Illinois.

The declaration set out the lease by Link to Sherman; the subsequent vesting of the lessor's title in the defendant, Smith, and of the lessee's in the plaintiff, Kutter; and that the defendant had declared the lease forfeited, and taken possession of the demised premises, and refused to join the plaintiff in having an appraisement of the building standing on said premises, and also neglected and refused to pay plaintiff the value of that building; whereby he became liable to plaintiff for its value, and this action was brought to recover it.

On the trial, the court instructed the jury as follows:

'By the terms of the lease from Link to Sherman, it seemed to be contemplated that the lessee should have power to put improvements upon the land which might remain there on the 1st of May, 1869 ('ten years from the 1st day of May, 1859'), and it was by the terms of the lease then left optional with the lessor to purchase the buildings erected on the land at the appraised value, or renew the lease for ten years longer; but up to that time, that is to say, till May, 1869, the clause of forfeiture for the non-payment of rent was nevertheless in force and binding on the lessee; and notwithstanding improvements may have been in the mean time put upon the land, if the lessee did not pay the rent according to the terms of the lease, it was competent for the lessor to declare 'the term' ended, and to re-enter, and in case of a determination of the lease in that way prior to the time fixed (viz., May 1st, 1869), no provision seemed to be made by the lease for the payment by the lessor of any improvements put by the lessee upon the land; and in the case supposed, in the absence of such provision, the lessee could not recover for the improvements; and the plaintiff can be in no better position than Sherman. Consequently, if, on the 1st day of May, 1862, there was rent due and in arrear, unpaid, after demand made for the payment thereof, and the lessor or his assigns exercised the option given by the lease, and declared 'the term' ended, and re-entered and took possession of the premises, of which the lessee and his assignee had due notice, then the plaintiff cannot recover against the defendant in this action the value of the improvements made by Sherman or his assignee.'

Verdict and judgment went accordingly; and the plaintiff, Kutter, took a writ of error to reverse the judgment.

Mr. E. S. Smith, for Kutter, plaintiff in error.

The court below-we may remark in the outset-treated the case as if it had been an action of covenant,-a suit to enforce, as against defendant Smith, the provisions of the lease upon the covenants on the part of Link, as to the purchase of the building at the end of the term. This was a mistake. The law, which, in an action of covenant, would have governed the case, has no direct application here, except as to the construction of the provisions of the lease, and the rights of the parties as they stood at the time of the suit. The action is an action on the case; an action, that is to say, on the special facts of this case; a form of action which in the plastic hands of the pleader becomes pliant, and takes a form as various as the business of men.

Now, here the owner of the soil has got possession of and is enjoying a house built by us; he has come into the use of buildings erected by our money and labor. We set forth those circumstances; make, in other words, an action on the case; and show that, ex aequo et bono, the defendant should pay us for that which of our money and labor he is enjoying and chooses to enjoy. The law is well settled, that a lessor cannot take buildings and fixtures placed on a lot by express agreement that he place them there; and that the lessee has the right to remove those buildings, whether it be at the end of the term, or on declaration of forfeiture by the lessor, at the expiration of the lease. Time is given by law for the removal of such fixtures, and any interposition, on the part of the lessor, to prevent the removal, is, in law, a conversion and an injury resulting from the act of the lessor, for which he must respond in damages.

Since the great case of Elwes v. Mawes, given in Smith's Leading Cases, the rigor of the common law has been greatly relaxed, both in this country and in England, and courts of law have adopted the principle, that it is for the benefit of the public to encourage tenants to make improvements in trade, and to do what is advantageous for the estate during the term, with the certainty of their still being benefited by it at the end of the term. We hold that the rule is the same, and that it applies, whether the tenancy be for years or at will. It matters not whether the building is erected upon blocks or upon stone masonry; whether of wood, stone, or brick. It is the property of the tenant, and he has the right to remove it at the end of the term, and the landlord cannot interfere unless the tenant damages the freehold. The rule is founded upon a high principle of justice and right, and in this country, especially, should be maintained as tending everywhere to improvements.

title: Kutter v. Smith


text: Talk:Kutter v. Smith

title: Talk:Kutter v. Smith


text:
Kutter v. Smith/Opinion of the Court

This general principle has been applied, as the court knows, in a case where vats had been put up for the convenience of the trade of the tenant; also, in a case of a mill and furnace, steam engines, and copper stills, erected to carry on distilling, though fixed to the building; also, in a case where a building had been erected on the demised premises for the purposes of trade, and placed upon a foundation of brick masonry in the ground; also, in a case where a building had been erected upon stone posts set in the ground. Many other cases, equally decisive of the question, can be found in the books, even in the old ones. #fn-s-s

Concede that Smith became owner of the lot originally vested in Link, he holds it quatenus et quodam modo; he holds in subjection to the lease which Link had previously made. However viewed, the question comes to this: 'Does the lease provide, under any state of the case, or position of the parties, and for any cause, that Link, or any one, may at any time take the property in the building without paying for it?' We answer that it does not, in any way or manner, so provide, nor does the lease in any one sentence so intimate. How, then, can counsel justify the high-handed act of the defendant in forcibly taking and holding the building?

It will be observed that, by the express words of the contract, the right to re-enter and to declare the term ended for non-payment of rent at the time due, only gives the right to repossess Link's 'first and former estate.' It does not give the right to take anything but the land. This is an important consideration, and one which should interpret and settle the rights of the parties. If, therefore, the defendant preferred to re-enter in the name of Link, or to take possession of the property under the covenant, instead of trusting to the chances to collect the rent, then, if he did so, he was obliged to let the owner take off the buildings, and leave the property as it was, so that the defendant could enjoy it as in Link's first and former estate; that being all the lease gave, or which any one claiming under it could enjoy.

Mr. Fuller, contra.

Mr. Justice MILLER delivered the opinion of the court.

If we correctly understand plaintiff's counsel, one of the positions assumed by him in argument is, that the fact that under these circumstances defendant comes into the use and possession of the building, erected by the labor and money of plaintiff's assignor, entitles plaintiff to recover the value of that building, without aid from the contract on that subject in the lease, which we will consider hereafter. The authorities cited to support this position relate to remove fixtures in which tenants have been permitted to remove fixtures from the premises which they have placed there during the tenancy.

Without elaborating the argument, it may be remarked that none of these authorities are applicable, for two reasons.

1. The character of the building, in the present case, does not bring it within any of the principles upon which certain erections have been held removable as fixtures.

2. The doctrine concerning this class of fixtures, which is a strong innovation upon the common law rule that all buildings become a part of the freehold as soon as they are placed upon the soil, has extended no further than the right of removal while the tenant is in possession; and has never been held to give a right of action against the landlord for their value.

We can very well understand that if defendant wrongfully entered upon the building, and retains wrongful possession of it, he may be liable to plaintiff in action of trespass quare clausum fregit. But, as we understand the facts, there is no such wrongful entry; and plaintiff bases his right to recover upon a very different view of the matter.

There was in the contract of lease between Link and Sherman a covenant that, at the expiration of ten years from the first day of May, 1859, it should be at the election of the lessor to purchase the buildings erected on the leased premises at their appraised value at that time, or renew the lease of said premises for the term of ten years longer, at a rent to be appraised in like manner; and this election, on the part of the lessor, was to be exercised at the expiration of every ten years for the period of ninety-nine years. The plaintiff now contends,-because the defendant terminated the lease before the first ten years had expired, by virtue of a clause authorizing the lessor to do so for non-payment of debt,-that, therefore, defendant became liable to pay him the appraised value of the building. He accordingly gave a notice of his claim, and of his readiness to join in appointing appraisers, and then brought this suit.

It will be observed that while the right thus claimed is one growing out of the contract, and, as would reasonably be supposed, is for the failure to perform some obligation which that contract imposed, the action is neither covenant nor assumpsit, nor any other form of action founded on contract, but is an action on the case. And the counsel who framed the declaration objects in this court, 'that the court below treated the case as one in an action of covenant, to enforce as against defendant Smith, the provision of the lease, upon the covenant on the part of Link as to the purchase of the building at the end of the term.'

One obvious reason why plaintiff does not wish to be considered as suing on the contract is, the difficulty of holding that the covenant to purchase is one which runs with the land, or which, in any other manner, binds Smith as assignee of Link. An action of covenant would also be liable to the objection that the contingency on which the lessor was bound either to renew the lease or purchase the building, had never arisen.

To avoid these difficulties, the plaintiff brings an action on the case, in which he sets out this covenant with the entire lease and the other facts of the case, and seems to suppose that by virtue of the flexibility of this form of action, it may be found to embrace some principle which will justify a recovery. We have already seen that the law imposes upon the defendant no obligation to pay for the building apart from the contract. If the contract, when examined in the light of the facts proved, imposes no such obligation, we are at a loss to perceive what other ground of liability can be asserted against defendant.

It is argued that the plaintiff's assignor became the owner, and had title or estate in the building as separated and distinguished from the land; and while the defendant had the right to enter, take possession, and hold for a failure to pay rent, that right was in some way subordinate to plaintiff's right to the house. But if we concede so singular a proposition as that the title to the soil was in defendant, while that of the building was in plaintiff, it by no means follows that defendant is bound to purchase plaintiff's building. The utmost that can be claimed on that subject is that Smith is bound by the covenant of Link, the lessor, to purchase at the end of ten years or renew the lease. He may always exercise his option in favor of the latter proposition, and by the contract may never be bound to purchase. So that if the title to the building is in plaintiff, and defendant has wrongful possession of it, we revert again to the proposition that trespass, or some form of action for use and occupation, is all the legal remedy which the plaintiff has.

But we cannot concede that plaintiff or his assignor had at any time the legal title to the building as distinct from the lot. The well-settled rule is, that such erections as this become a part of the land as each stone and brick are added to the structure. The only exceptions to this rule are the class of fixtures already adverted to, and such rights as may grow out of express contract. The contract before us was not intended to change this rule. The agreement to purchase means nothing more than that, in a certain event, the lessor will pay the lessee the value of such building, but there is no implication of any general title or ownership in the lessee apart from that event. This contingency has not occurred, and that it can never occur is the fault of the plaintiff and his assignor. This observation is also applicable to the supposed hardship of taking the building, the product of the plaintiff's money and labor, without compensation. It is from plaintiff's own default that the right to do this arises. He had his option to pay the rent due defendant, and retain the right to payment for his building when the time should arrive, or to give up his building, and with its loss relieve himself of the burden of paying rent. He chose the latter with full knowledge, and there is no injustice in holding him to the consequence of his choice.

The covenant for re-entry provides that, in default of payment of rent, the lessor may enter 'and the said premises repossess and enjoy, as in his first and former estate.'

The plaintiff insists that the building is no part of such former estate, and defendant, therefore, does not become its owner by virtue of the re-entry. We have already shown that the building does become a part of the land as it is built. No such meaning was ever before attached to the use of the word estate in a legal document. It is used in reference to the nature of defendant's interest in the property, and not to the extent of improvements on the soil. As if the lessor had a fee simple estate, it reverted to him again as a fee simple. If he had a term for years, he was in again as part of his term. But it had no relation to the question of whether that estate might be more or less valuable when repossessed, or might bring to him more or less buildings.

We hold, then,

1. That without the aid of a special contract, the law imposes no obligation on the landlord to pay his tenant for buildings erected on the demised premises.

2. That treating the parties to this suit as standing in the places of the original lessor and lessee, no obligation arises from the contract in this case, that the lessor shall purchase or pay for the building erected on said premises, except as an option, to be exercised at the end of each period of ten years.

3. That the act of defendant in re-entering and possessing himself of the premises for plaintiff's failure to pay rent, imposes upon him no obligation to pay plaintiff the value of the building.

As the ruling of the court, to which exception was taken, was in conformity to these principles, the judgment must be

AFFIRMED WITH COSTS.

title: Kutter v. Smith/Opinion of the Court


text: Talk:Kutter v. Smith/Opinion of the Court


text:
Levy Court v. Coroner

THE coroner of the County of Washington, D. C., brought assumpsit in the Circuit Court of the District against what is called the 'Levy Court' of Washington, for his fees; fees for 'viewing the body,' and fees which he had advanced to jurors and witnesses at inquests called by him for that purpose.

Three questions arose:

1. A preliminary one; namely, whether the 'Levy Court' was a body capable of being sued at all?

2. If it was, whether it was the Levy Court or the Federal Government which was bound to pay the fees of coroners and their inquests, &c.

3. If it was the Levy Court which was bound to pay them, whether the coroner could recover fees advanced to jurors and witnesses on occasions where the death, though sudden, had not occurred from other than natural causes; cases, for example, where the death came from apoplexy, fits, excessive and habitual intemperance, and other cases which the coroner considered had occurred from 'misadventure,' but which might not have fallen within that term as interpreted by the law.

AS RESPECTED THE FIRST QUESTION,-the preliminary one, of whether the Levy Court was a body capable of being sued,-it appeared that this body derived its powers from a statute of Maryland, passed A. D. 1794, entitled 'An act for the establishment and regulation of the Levy Courts in the several counties of this State.' This authorized them to adjust the expenses of the county, and to impose an assessment for their payment, and to appoint a collector, who shall give bond to the State. Suits were directed to be brought against the collector, and judgments entered in the name of the State. By other statutes they are charged with the expenses of the county relating to roads, bridges, the poor and poor-houses, the orphans' court, the jail, &c., and invested with power to levy such expenses by taxes. One of these statutes calls them Commissioners of the County, and some acts of Congress speak of them in the same terms.

AS RESPECTED THE SECOND QUESTION-that is to say, whether the fees of the coroner, his inquests and witnesses, were payable by the Federal Government, or by the Levy Court itself, it is necessary to state the history of the legislation under which the claim was made.

Prior to the year 1838, there was no compensation allowed in the District by law to jurors and witnesses for attending inquests on the coroner's summons. They were compelled to attend by due process for the public good. The coroner himself, however, by an old statute of Maryland, passed A. D. 1779, but in force in the District, had a fixed fee-two hundred and fifty pounds of tobacco for each inquest, without regard to the time which he might be required to give to it, or the trouble which it cost. This fee the statute made payable, in the first place, out of the estate of the decedent, and, in the absence of such estate, by the Levy Court.

On the 7th of July, 1838, Congress passed an act, the main purpose of which was to create a criminal court for Washington County, and transfer to it from the Circuit Court the jurisdiction of criminal causes. This Circuit Court had been in existence for many years, and, from the date of its establishment, the marshal of the District, and also jurors and witnesses, had been paid from the treasury of the United States.

The third section of the new act-the act, to wit, of 1838 provides that the district attorney, marshal, and clerk of the Circuit Court, shall attend the criminal court, and perform the same duties, in relation to criminal causes, which had been required of them in the Circuit Court; and shall receive the same compensation therefor. Like provision is made for witnesses and jurors.

Then came an eighth section in these words:

'There shall hereafter be allowed and paid to the coroners of the counties of Washington and Alexandria, in said District, and to the jurors and witnesses who may be lawfully summoned by them in any inquest, the same fees and compensation as are now paid to the marshal of said District, and the jurors and witnesses attending said Circuit Court in said county, for similar services.'

These fees were construed, by the parties concerned, to be such as the marshal received for summoning, swearing, and impanelling jurors, swearing witnesses, and returning inquisitions. But the statute did not say who was to pay either the fees given by the third section to the district attorney, marshal, and clerk of the Circuit Court, or those given by the eighth section to the coroner, his jurors and witnesses; the same with the former.

THE THIRD QUESTION depended upon the expression of this same section, that these fees were to be paid to jurors and witnesses who might be lawfully summoned' by coroners to any inquest; and on the fact, whether or not an inquest and witnesses, who received a summons, in form and on its face wholly regular, were lawfully summoned' to any inquest which the law, rightly interpreted, would not consider a proper case for the coroner's jurisdiction.

The court below thought, on the first point, that the Levy Court was a body which could properly be sued; on the second, that it, and not the Federal Government, was the party to pay the coroner's fees. On the third,-while it thought that in no case of death from apoplexy, fits, or excessive and habitual intemperance, or of sudden death proceeding from natural causes and the visitation of God, it was proper to hold an inquest, and accordingly disallowed the coroner's claim in such cases to fees for himself,-it yet allowed him reimbursement of fees advanced by him to inquests and witnesses.

Judgment having been given accordingly, the correctness of the views taken below was now the matter in error here.

Mr. W. S.C.ox, for the Levy Court, plaintiff in error:

I. On the preliminary point. There is no act of Maryland or of Congress which makes the Levy Court a corporation, or endows it with the capacity of suing and being sued. Even if it could be considered a quasi corporation, it could not sue or be sued without an enactment to that effect. Accordingly, the only reported cases in this District, to which the Levy Court was a party, were cases of a special character; one the case of a rule to show cause, and the other a special and summary application, under an act of Congress. English cases indicate that the justices of the county in England exercise functions analogous to those of our Levy Court, and cannot be proceeded against by suit, but only by mandamus.

II. But the court below also erred in their construction of the act of 1838. In the third section, it directs that the district attorney, marshal, and clerk of the Circuit Court shall attend the Criminal Court, and perform all the duties by law required of them in relation to the criminal business of the Circuit Court, and shall receive the same fees and compensation therefor, and that the jurors and witnesses attending said court shall be entitled to the same compensation they now receive for their attendance in the Circuit Court. No one ever doubted that, under this section, the fees of jurors and witnesses in the Criminal Court were to be paid by the United States, although it is not so expressed. But the language of this section is not more pointed, in that direction, than that of the eighth section, referring to jurors and witnesses in cases of inquests. There shall be hereafter paid,' for services in cases of inquest, the same fees and compensation as are now paid' for similar services in the Circuit Court. Shall be paid by whom? Surely by the same paymaster as now pays those. If it had been intended otherwise, would not the act have said distinctly, 'there shall be hereafter paid by the Levy Court (or by some one else) the same fees as are now paid by the United States?' Looking at the acts of Congress alone, who can designate the Levy Court any more than the corporation of Washington or Georgetown, as the source of payment? There is, perhaps, scarcely an act of Congress fixing the compensation of any officer, which designates the Treasury of the United States as the source of payment more distinctly than this. In most cases the language is, that such officer's compensation shall be, or, that he shall receive, be entitled to, or paid, such and such amounts. It may, indeed, be asserted, generally, that when Congress directs money to be paid, it is to be paid out of the Federal Treasury, unless something different is expressed, particularly where the law containing the direction clearly contemplates such payment from the Treasury, in regard to its principal subject-matter.

It will be argued, perhaps, that when the law of 1838 passed, the coroner's fee on inquests was, under existing laws, chargeable to the county; and that a general enactment, adding to his fees, is to be construed as making them payable from the same quarter, and as re-enacting the existing law, with reference to the new fees.

But the fact that one sort of fee-a certain amount of tobacco was payable to the coroner by the county, does not justify the inference that the fees given to him by this act, and which, for similar services, were always paid to the marshal by the United States, were to be paid by the county also. On the contrary, the fact that these fees were not charged to the county under the old law, rather forces us to infer that they were not intended so to be under the new. The fees which the coroner was entitled to, under the act of 1838, were construed to be such as the marshal received for summoning, swearing, and impanelling jurors, and swearing witnesses, and returning inquisitions. And as the United States paid these to the marshal, the fair inference is, that they meant to pay them to the coroner for similar services, rendered in the interest of public justice in this seat of exclusive Congressional dominion. Especially will this be regarded as the case when we consider that the provision in question is found in a law, the main scope and object of which was to create a new tribunal, all the expenses of which are confessedly chargeable to the United States.

Again, the argument in question is inapplicable to the allowances to jurors and witnesses, which constitute the most important part of this claim. The county paid nothing to jurors and witnesses on inquests before the act of 1838, and to infer that Congress meant to impose the burden of their compensation on the county because a certain coroner's fee was theretofore chargeable to the county, is to draw a conclusion wider than the premises.

Again, if the existing law is referred to and adopted by the act of 1838, as to the new allowances to the coroner, it must be the whole and not a particular part of it. The act of 1779 does not make the coroner's fee payable directly by the Levy Court, but directs that it shall be paid out of the goods and chattels of the person dead, if any there be, otherwise to be levied by the commissioners of the county. Now, did Congress mean the new fees of the coroners, and the fees of jurors and witnesses, to be paid out of the estate of the deceased, and was each juror and witness to have a separate cause of action against the estate, and, that resource failing, a separate ground for a mandamus, or other proceeding, against the Levy Court? Congress would hardly have left all these questions thus uncertain, had they meant to incorporate the Maryland act of 1779 into their own act of 1838; and their silence shows that they had no reference to the act of 1779, but meant simply to refer to their own existing legislation, as to the fees and allowances in suits in court, and to extend the benefit of it to the cases of inquest.

III. The court below disallowed the coroner's claim for fees, in certain cases in which the inquests were illegally held, but allowed his disbursements to jurors and witnesses in the same cases. If the inquests were illegally held, so that the coroner could not claim compensation for his services, how could his disbursements upon these illegal inquests give him a legal claim for money laid out and expended? If his time and labor were given at the risk of losing them, so must his payments have been made at his own risk.

Mr. J. H. Bradley, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Levy Court v. Coroner


text: Talk:Levy Court v. Coroner

title: Talk:Levy Court v. Coroner


text:
Levy Court v. Coroner/Opinion of the Court

1. The first question which arises in this case, is whether the Levy Court of Washington County has a legal capacity to be sued in a court of justice.

The Levy Court is the body charged with the administration of the ministerial and financial duties of Washington County. It is charged with the duty of laying out and repairing roads, building bridges, and keeping them in good order, providing poor-houses, and the general care of the poor; and with laying and collecting the taxes which are necessary to enable it to discharge these and other duties, and to pay the other expeses of the county. It has the capacity to make contracts in reference to any of these matters, and to raise money to meet these contracts. It has perpetual succession. Its functions are those which, in the several States, are performed by 'county commissioners,' 'overseers of the poor,' 'county supervisors,' and similar bodies with other designations. Nearly all the functions of these various bodies, or of any of them, reside in the Levy Court of Washington. It is for all financial and ministerial purposes the County of Washington. If not a corporation in the full sense of the term, it is a quasi corporation, and can sue and be sued, in regard to any matter in which, by law, it has rights to be enforced, or is under obligations which it refuses to fulfil. This principle, a necessary one in the enlarged sphere of usefulness which such bodies are made to perform in modern times, is well supported by adjudged cases.

2. We are next called upon to determine, whether the fees of the coroner of Washington County, and of the jurors and witnesses who attend at his summons upon the inquests held in the county, and which cannot be made out of the estate of the decedent, are by law payable by the Treasury of the United States, or by the Levy Court of said county.

It is contended by counsel for plaintiff in error, that these fees are payable out of the public treasury. The main reason on which the claim is founded is, that the fees mentioned in the third section are confessedly paid from that source. Hence it is argued that all the fees embraced in the same act, are by necessary intendment, payable from the same source, unless a contrary intention is expressed. And in support of this view, counsel says: 'No one ever doubted that under this section' (the third) 'the fees of jurors and witnesses in the Criminal Court were to be paid by the United States, although it is not so expressed.'

It may be asked if the act does not express that these fees are to be paid out of the public treasury, upon what principle is it so universally conceded that they are to be thus paid? The answer is, because they were paid by the United States before the passage of that law; and while the law-makers found it necessary to provide that officers, witnesses, and jurors, rendering services in a new court, of the same kind which they had formerly rendered in the Circuit Court, should receive the same compensation, they took it for granted that the compensation would come from the same quarter as before.

An extension of this reasoning to the fees provided in the eighth section, where Congress desires to increase the compensation of the coroner, leads us to the conclusion that these fees were also to be paid from the same source they were formerly, namely, the Levy Court. It seems to us that the inference from the fact, that Congress made no mention of the source of payment for these fees, is that they did not intend to make any change in the rule on that subject. In regard to the fees payable to the coroner for his own services, there appears to be no room for doubt. And although the fees allowed to witnesses and jurors owe their existence to this act, and were therefore never before payable, either by the Levy Court, or by the United States Treasury, we cannot doubt that they must follow in that respect the fees of the coroner. They relate to the same kind of service, rendered in the same cases, and are provided for in the same sentence of the act which increases his fees. It would require positive language in the act to enable us to hold that while the coroner's fees for an inquest are payable by the Levy Court of the county, those of the jurors and witnesses summoned to serve on the same occasion, are to be paid by the Treasury of the United States.

We are, therefore, of opinion that the fees allowed by the eighth section of the act of 1838, which cannot be made out of the estate of the deceased, should be paid by the Levy Court of Washington County.

3. Certain fees paid by the coroner to witnesses and jurors were allowed by the court, in cases where the fees for his own services were disallowed on the ground that the inquests were held in cases not provided for by law.

It is alleged for error, that the sums paid by him to witnesses and jurors in these cases were allowed him.

The eighth section of the act already quoted says, that these fees shall be allowed 'to witnesse and jurors who may be lawfully summoned.' It would be a very forced construction of this provision, as well as unjust, to hold that this lawfulness depends upon any other fact than the regular service of the summons by a lawful officer. The jurors and witnesses are compelled, when thus summoned, to obey the writ. They have no right to consider whether the summons issued on a proper state of facts as they might appear to the coroner, nor the means of deciding it, if they had the right. When witnesses and jurors thus summoned actually attend, they are entitled to their fees. It can make no difference in the justice or legality of the claims whether they are presented by the witnesses and jurors to the Levy Court, or whether they are first paid by the coroner and presented by him. He loses enough by his mistake in judgment, when he is refused compensation for his own services, without being compelled to lose what he has advanced for the public service.

We discover no error in the record, and the judgment of the Circuit Court is, therefore,

AFFIRMED.


text: Talk:Levy Court v. Coroner/Opinion of the Court


text:
United States v. Stone (69 U.S. 525)

THE United States, by treaty with the Delaware Indians, in 1818, agreed to provide for them a country to reside in; and in 1829, by supplementary treaty, agreed that the country in the fork of the Kansas and Missouri Rivers, extending 'up the Missouri TO Camp Leavenworth,' should be conveyed and secured to them as their said home.

A Senate resolution of 29th May, 1830, ratifying this treaty, provided that the President should employ a surveyor to run the lines, to establish certain and notorious landmarks, and to distinguish the boundaries of the granted country, in the presence of an agent of the Delawares, and to report to the President his proceedings, with a map; and that, when the President was satisfied that the proceedings had been concurred in and approved by the agent of the Delawares, he should also approve of the same by his signature and seal of office, and cause a copy to be filed among the archives of the Government.

In 1827,-more than two years prior to this supplemental treaty,-Colonel Leavenworth, by orders of the Government, had selected a site for a 'permanent cantonment' on the same bank of the Missouri; which site has always since been in the occupancy of the United States as a military post, and is the 'Camp Leavenworth' referred to in the supplemental treaty above mentioned. The precise limits or extent of this cantonment, as originally fixed, if any were fixed, did not appear. The region at that time was wild; and the cantonment was one for shelter, rather than for defence.

Pursuant to the Senate resolution, one McCoy, a surveyor, made a survey in the summer of 1830, and made a report also of it, with a plat, in compliance with his instructions. His plat was now produced. In his report, McCoy says: 'In the treaty no provision was made for a military reserve at Cantonment Leavenworth. It has been thought desirable that a tract of six miles on the Missouri River, and four miles back, should be secured for this object. Accordingly, the survey about the garrison has been made with a view to such a reservation, as will be seen by reference to the plat. In this arrangement the Delaware chief, to whom the whole was fully explained on the ground, has cordially acquiesced.'

No copy, however, of this report, with any map approved by the agent of the Delawares, or with the signature and seal of the President as provided for in the Senate resolutions, was found in the War Office. It did not appear that search was made in the State Department. There was, however, a copy without the President's signature or seal of office found in the War Office, and filed among its documents, directed to the Secretary of War.

The next survey of the military tract about Fort Leavenworth was made by Captain A. R. Johnson, in 1839, under orders, and a map of the survey filed in the War Department. By this map, the southern boundary of the military tract appears as originally fixed by McCoy, in 1830, but the western boundary was somewhat changed by taking a natural boundary, instead of a geographical line run by McCoy.

In 1854, the Secretary of War ordered a survey to be made, and a reservation laid off for military purposes at the fort, which survey was made by Captain Hunt; and being approved by the Secretary of War, the land therein set off was directed by the President to be reserved for military purposes. This survey also followed the southern boundary line run by McCoy, in 1830; but Captain Hunt thought it proper to limit this line so as to exclude a part of the land embraced in the original reservation of 1830 and in the survey by Captain Johnson. In his report, Captain Hunt, after stating that the line is run with McCoy's southern boundary, says: 'But as the reserve, as formerly laid out, was much larger than I conceived necessary under my instructions, I only went out two and three quarter miles on this line, and thence along the top of 'The Bluffs' as near as I could, to make a good boundary to the Missouri River.'

This final survey made a camp of about three miles square; the usual size of our camps.

By treaty of the 6th of May, 1854, the Delaware Indians ceded to the United States all the land in the forks already mentioned, with the exception of a certain part reserved in the treaty,-no part of which reserved portion was north of McCoy's line as limited by Captain Hunt. This reserved part was to be still their 'permanent home.' The treaty provided that the United States would have the ceded country surveyed and offered for sale, and pay the Indians the moneys received therefrom. It provided, also, that, when the Delawares desired it, the President might cause the country reserved for their 'permanent home' to be surveyed in the same manner as the ceded country was to be surveyed, and might assign such uniform portions to each person or family as should be designated by the principal men of the tribe.

In making the surveys under this treaty of May 6, 1854, the lands between the western line of McCoy's survey of 1830 and the western line of Hunt's survey of 1854 were surveyed, and were afterwards sold, by order of the President, for the benefit of the Delawares. But in those surveys, the western line of Hunt and the southern line of both McCoy and Hunt, as far west as Hunt ran, were accepted as the true lines of the military reservation, and no surveys under the treaty were made therein.

By the next treaty with the Delawares (made May 30, 1860), it was agreed that, in consideration of long and faithful services, certain of their chiefs should 'have allotted to each a tract of land,' to be selected by themselves, and should receive 'a patent in fee therefor from the President of the United States.'

The Commissioner of Indian Affairs, in the year 1861, informed the Commissioner of the General Land Office that the Secretary of the Interior had decided that the land lying between the fort and the southern line of McCoy's survey belonged to the Delawares, and had ordered the same to be surveyed. And the chiefs, or one Stone, rather, to whom they had assigned their 'floats,' having made selections in this strip, and everything having gone through the usual forms, patents passed the great seals, and having been signed by the President, were delivered to the chiefs, or to their agent, and subsequently to Stone, who now held, by deed from them, the estates granted.

The patents all recited the promises of the treaty of 1860 to grant land to the chiefs, and went on to grant the particular tract, 'in conformity with the provisions, as above recited, of the aforesaid treaty.' In 1862, the Secretary of the Interior decided that the patents had been issued without legal authority, and he declared them void and revoked. However, to proceed rightly, the United States filed a bill in the Federal court of Kansas, against the Indian chiefs and Stone, to have them judicially decreed null, and the instruments themselves delivered up for cancellation. The court gave the decree asked for. Appeal here.

Messrs. Stinson and Browning, with whom were Messrs. Ewing and Carlisle, for the appellant Stone.

1. The recitals of the patent are conclusive, that the lands were within the class from which the chiefs might select. The language of the treaty of 1860 is, 'there shall be allotted' to the grantees, to be selected by themselves, so many acres of land. There are no words of limitation upon this power of selection. It is made the duty of the President to issue patents for the lands so selected. This duty is cast, by the laws of the United States, upon the Commissioner of the General Land Office, under the direction of the President. The selections having been made, it was the duty of the commissioner, of course, either to pass upon them, under the direction of the President, and by procuring the patent to issue, make the allotment complete, or else to refuse to approve and ratify the selection. The interests of the Delawares were under the supervision of the Commissioner of Indian Affairs. These selections were made; they received the approval of the Commissioner of Indian Affairs, and were sanctioned by the President and the Commissioner of the General Land Office, by the issuing the patents.

The principal case in which the jurisdiction of chancery is affirmed to annul patents, at the suit of the sovereign, is put upon the ground of fraud practised by the patentee. This is believed to be the only ground upon which the courts of chancery have heretofore taken jurisdiction in such cases. Admitting, however, that if the land were within the boundaries of any military reservation, a mere grant of it might be voidable, yet where the Commissioner of the General Land Office and the President declare, as they do here, that they are acting 'in conformity with the provisions of a treaty' which authorizes grants only of lands not in such reservation, then the Government is concluded. It is estopped to say that the land was in a military fort. The discretion of saying what portion of these lands was open to patent, is vested by the Government in its officers, and the discretion having been exercised honestly, the decision is conclusive upon the Government. When no wrong is done to an individual, 'it is supposed the acts of the executive, within the general scope of its powers and by virtue of law, cannot be removed, though to some extent the letter of the law may not have been followed. There is no court of errors in which executive decisions that do not affect individual rights can be reversed.' Any other doctrine would transfer the decision of every question of boundary and location which might arise in the sale of the public lands from the Land Office to the courts, and reduce letters patent under the great seal from the highest to the lowest grade of evidence of title. While the mere issuing of the patent has been treated by the courts as a purely ministerial act, yet the patent, when issued, becomes conclusive evidence of all the matters essential to the legality of its issue.

2. But, in point of fact, are these lands within the camp? Camp Leavenworth was located, in 1827, upon the public lands of the United States. There was no rule or usage which attached adjacent lands to such a camp. Mitchell v. United States will, perhaps, be relied on by the other side as an authority for a limit of three miles. But that curtilage established in that case was founded on a Spanish usage in regard to fortified places, and even then a purchase from or cession by the Indians was necessary.

The authority to appropriate a portion of the public domain, in the vicinity of military posts, to their use, is conceded to the President as an incident to his power to establish such posts; but some actual appropriation is necessary; the establishment of a camp does not propri a vigore also establish a military reservation about it. However, in this case there is no evidence even of a disposition by the President to have any part of this land; for it was provided by the treaty of 1829, that when the President is satisfied that the boundaries, as fixed by the surveyor, have been concurred in by such agent, he shall approve the proceedings under his signature and seal of office, and the boundaries so fixed shall be conclusive upon the parties to the treaty. There is no evidence that he ever did approve of anything. The non-production of the required map is rather proof that he did not. Whenever the United States have sought to reserve the right to establish military posts upon lands granted to an Indian tribe, the reservation has been distinctly made in the treaty containing the grant. In 1832, the United States, by treaty, ceded to the Kickapoo Indians a portion of country immediately north of the reservation of the Delawares; but prescribed the boundaries of the ceded country, so as to exclude a large area northwardly and westwardly, from Camp Leavenworth. This express reservation, in that case, is presumptive evidence that no such reservation was implied or intended in the treaty with the Delawares of 1829.

The faith and dignity of the Government forbid that any claim should be made on its behalf to the lands in controversy by reason of occupancy and possession. In no case can the United States acquire title by pre-emption. Here the Indians could not sue,-the Government could not be sued. The peculiarly fiduciary relations of the Government to the Indians, and their condition of absolute dependence, would in any event destroy the presumption of a grant which might in other cases arise from such possession unexplained.

Mr. Coffey, special counsel of the United States, contra.

1. This court has settled that the issuing of a patent for public lands is a ministerial act, which must be performed according to law; and that where it has been issued, whether fraudulently or not, without authority of law, it is void. The doctrine was strongly stated in The State of Minnesota v. Bachelder at the last term. And such patents have been repeatedly declared void, both at law and in equity, though, as Marshall, C. J., says, 'A court of equity is better adapted to the purpose than a court of law.' Ladiga v. Roland, where an act of the President, under a special authority by treaty in disposing of Indian lands, was declared void for not conforming to the treaty, is, in principle, not unlike the present case. In Jackson v. Lawton, Kent, C. J., says, that the general rule is, that letters patent can only be avoided in chancery by a writ of scire facias sued out on the part of the Government, or by some individual prosecuting in its name; but he admits the equitable remedy also as a true one. He thus speaks: 'The English practice of suing out a scire facias by the first patentee may have grown out of the rights of the prerogative, and it ceases to be applicable with us. In addition to the remedy by scire facias, &c., there is another by bill in the equity side of the Court of Chancery. Such a bill was sustained in the case of the Attorney-General v. Vernon, to set aside letters patent obtained by fraud, and they were set aside by a decree.'

Where the United States is the party injured, as in this case, these principles are equally available for her relief. The patents, it is true, were issued by her officer, but she is not bound by their unauthorized acts. Her officers can bind her only within the scope of their lawful authority.

Plainly, too, the appropriate remedy of the United States, to set aside and cancel patents issued by her officers, without due legal authority, is by bill in equity.

2. The question then remains, What was the southern boundary of the fort? The line we apprehend as run by the surveyor, McCoy. This person made his survey in substantial compliance with the terms of the Senate resolution, and with the approval of the agent of the tribe. He reported his proceedings to the Secretary of War, the minister then intrusted with that branch of executive duty; and the map of his survey, taken from the records of the Government, is in evidence. In the absence of specific proof, the formal approval of the President will be presumed, as well because the condition upon which that approval depended was performed, viz., the concurrence of the agent of the Delawares in the survey, as, moreover, because no other survey of the Delaware grant was ever made afterwards, but the tribe took possession and held under that survey without objection for twenty-five years. This long acquiescence by both parties, with actual possession by the Delawares on one side of the lines, and by the United States on the other, must be conclusive.

Its recognition and adoption by the Executive Department is shown by the survey of Johnson in 1839; by the survey of Hunt in 1854; and the subsequent reservation by the President of the land therein embraced for military purposes, and by other evidence in the case. And the fact that the Secretary of the Interior, in 1861, overruling the decision of his predecessors, ordered surveys to be made north of that line, does not weaken the significance of this recognition.

The line was to run up the Missouri to Camp Leavenworth; but the treaty did not attempt to designate the site of the camp. That was a question of fact to be ascertained and determined by the United States, which had the right as absolute owner to say how far its selected military camp should extend. The proper person to decide that question was the authorized surveyor, who, in the presence and with the sanction of the Indian agent, was marking on the ground the vague boundaries fixed by the treaty. After twenty-five years of acquiescence by both parties in that designation, it must be accepted as an authoritative construction of the treaty, having the force of the treaty itself. The land in question was therefore never a part of the grant to the Delawares.

No law, or even uniform practice, has ever fixed a method by which the limits of a military reservation out of the public lands must be ascertained and marked. Each reservation has been designated in its own way, and some of them, as that of Rock Island, have never been surveyed at all. The survey of the exterior lines of the reservation of Camp Leavenworth by McCoy, has more of legal form and authority, as a designation of the reserve, than that of many others. This court, in Mitchell et al. v. United States, directed that where the boundaries of land, ceded by the Indians to the King of Spain, in Florida, for the erection of a fort, could not be ascertained, the adjacent lands, which were considered and held by the Spanish government, or the commandant of the post, as annexed to the fortress for military purposes, should be reserved with the fortress for the use of the United States; that if no evidence could be obtained to designate the extent of the adjacent lands which were considered as annexed to the fortress, then so much land should be comprehended in the reservation as, according to the military usage, was generally attached to forts in Florida or the adjacent colonies. And if no such military usage could be proved, then it was ordered that the reservation consist of the land embraced within certain lines extending from the point of junction of two rivers three miles up both of said rivers.

Attorney-General Butler, who argued the case for the United States, suggests that the length of three miles was probably selected, because generally considered the extreme distance to which a cannon-shot can be thrown. In an official opinion of his he advises the application of the rule laid down by the court in that decree, in ascertaining the extent of other unsurveyed reservations out of the public lands for military purposes. If the rule be that the reservation should extend three miles around the fort, the line of McCoy, as altered by Johnson and Hunt, has kept within those limits. And whether three miles was fixed by the supposed length to which a cannon-shot could be thrown or not, it is clear that it was wisely adopted to protect military fortifications from encroachments like that in the present case, which actually, if I may here state a fact, takes part of the necessary buildings of the fort.

3. The treaty of 30th of May, 1860, conferred on the chiefs the right to select their respective portions of land from the body of land reserved to the tribe for its 'permanent home' by the treaty of May 6, 1854, and from that body of land only; and, therefore, any selection made, even by themselves in good faith, outside of that permanent home, on the lands granted to the tribe by the supplemental treaty of 1829, and afterwards ceded to the United States in trust for the tribe by the treaty of May 6, 1854, would be unauthorized and void.

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Stone (69 U.S. 525)


text: Talk:United States v. Stone (69 U.S. 525)


text:
United States v. Stone (69 U.S. 525)/Opinion of the Court

A patent is the highest evidence of title, and is conclusive as against the Government, and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England this was originally done by scire facias, but a bill in chancery is found a more convenient remedy.

Nor is fraud in the patentee the only ground upon which a bill will be sustained. Patents are sometimes issued unadvisedly or by mistake, where the officer has no authority in law to grant them, or where another party has a higher equity and should have received the patent. In such cases courts of law will pronounce them void. The patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale by law, such patent is void for want of authority. But one officer of the land office is not competent to cancel or annul the act of his predecessor. That is a judicial act, and requires the judgment of a court.

It is contended here, by the counsel of the United States, that the land for which a patent was granted to the appellant was reserved from sale for the use of the Government, and, consequently, that the patent is void. And although no fraud is charged in the bill, we have no doubt that such a proceeding in chancery is the proper remedy, and that if the allegations of the bill are supported, that the decree of the court below cancelling the patent should be affirmed.

The grant to the Delaware Indians in 1829 calls for Camp Leavenworth as a boundary; consequently, the camp and its appurtenances were not included in the grant. What lands properly belonged to this military post, and the proper curtilage necessary for the use and enjoyment of it not being fixed with precision in the general description of the land granted, could be ascertained only by a survey on the ground.

The resolution of the Senate of May 29th, 1830, provides that the President should employ a surveyor 'to run the lines, and to establish certain and notorious landmarks accurately and permanently, to distinguish the boundaries of the country granted, in the presence of an agent to be designated by the Delaware nation, the surveyor to make report with a map or draft of the said granted country,' &c. The Secretary of War, by the authority of the President, referred the execution of this duty to a surveyor (McCoy), instructing him 'to be governed in every particular by the treaty and the resolution of the Senate.'

No copy of this report, with the map approved by the agent of the Delawares, and with the signature and seal of the President, as provided for in the Senate resolution, is found in the War Office, and it does not appear that search was made in the State Department. There is, however, a copy found in the War Office, directed to the Secretary of War, and filed among its documents.

This survey was made in the presence of the agent of the Delawares. It marked the usual quantity of about three miles square, as appurtenant to the post and necessary for its use and subsistence, making the lines thereof the boundary of the grant to the Delawares, with the concurrence and consent of the agent of the nation. It was made in the year 1830, and since that time both parties have held possession and claimed up to the lines then established by the survey. In the case of private persons, a boundary surveyed by the parties and acquiesced in for more than thirty years, could not be made the subject of dispute by reference to courses and distances called for in the patents under which the parties claimed, or on some newly discovered construction of their title deeds. We see no reason why the same principle should not apply in the present case, notwithstanding the absence or loss of the document required by the resolution of the Senate.

The authority of the President, acting through the Secretary of War and his officers, to have posts and forts established, with a proper quantity of ground appropriated for the use of each reserved from sale, is fully discussed and decided in Wilcox v. Jackson.

In 1854, a survey was made under orders of the Secretary of War, 'including the buildings and improvements, and so much land as may be necessary for military purposes, at Fort Leavenworth.' This survey adopted the southern boundary as run by McCoy, and commenced at the same point. It did not include all the land reserved by that survey, but the land now claimed is embraced within its limits. This survey was approved by the President, and the land contained in it formally reserved for military purposes. The survey made of the Delaware lands, under the treaty of 1854, adopted the McCoy line.

The Secretary of the Interior, in 1861, transcended his authority when he attempted to overrule the acts of his predecessors, and ordered surveys to be made north of that line to include the land now in question.

We are of opinion, therefore,

1st. That the land claimed by appellant never was within the tract allotted to the Delaware Indians in 1829 and surveyed in 1830.

2d. That it is within the limits of a reservation legally made by the President for military purposes.

Consequently, the patents issued to the appellant were without authority and void.

The question on the construction of the treaty of 1860, as to whether the grants to the chiefs and interpreter were to be located within that portion of these lands which was reserved for their 'permanent home,' or in that portion which was to be sold for their use, would be also fatal to the claim of appellant. But the decision of the other points in the case make this one only hypothetical, and, as it is a question not likely to ever arise again, we think it unnecessary to vindicate our opinion by arguments.

DECREE AFFIRMED.


text: Talk:United States v. Stone (69 U.S. 525)/Opinion of the Court


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Ann Caroline

THIS was an appeal in admiralty from the decree of the Circuit Court for the Southern District of New York, in a case of collision at sea,-the case being thus:

The owner of the schooner J. C. Wells filed a libel in admiralty in the Southern District of New York against the schooner Ann Caroline, to recover damages for a collision occurring on the eastern shore of the Delaware Bay. The two vessels were beating up the bay of a fine morning in February, 1854, in company with several other vessels, and were just now between 'Crow Shoal' and the Jersey shore, a passage in the bay where the channel is about a mile wide. The wind was N. N. W., a five or six knot breeze, 'a fullsail breeze,' the tide, flood, setting up the bay. The day being clear, nothing obstructed observation up and down the bay, except the transit of the various vessels across it. The Wells was closehauled on her larboard tack, which was a long tack from Crow Shoal to the Jersey shore. The Ann Caroline closehauled on her starboard tack on the opposite course from the Jersey shore to Crow Shoal. The Wells was heavily laden; the Ann Caroline in ballast. The two vessels had tacked at the Crow Shoal, upon the long tack, nearly at the same time; the Caroline at the time being to the leeward of the Wells and somewhat astern of her. The Ann Caroline ran out but one-half or two-thirds of her course when she suddenly came round on her starboard tack in consequence of a vessel ahead suddenly tacking and obstructing her course. While on this course she came in collision with the Wells, striking her on her starboard side, about ten or fifteen feet from her taffrail, opening her side so that she sank to the bottom of the channel in a few minutes, and was totally lost.

The main ground upon which the defence of the Ann Caroline rested was, that she was on the starboard or privileged tack, and that it was the duty of the Wells to give way and pass to her right. This rule of navigation was admitted on the other side; but it was insisted that it had no application to a case where the relative position of the two vessels was such as was here made out. It was contended for the owner of the Wells that she was to the windward of the Caroline, and ahead or above her in the channel, and that if this rule had been observed and the Wells had ported her helm, a collision would have been inevitable; that the change of course would have brought her head against the starboard side of the Caroline, and that a proper manoeuvre in the emergency was to starboard her helm, which she did, and which would have avoided the other vessel if she had not ported her helm at or about the same time, and so done that which caused her to strike the Wells on her starboard side, but a few feet from her stern.

One controlling question in the case therefore was, whether or not the Wells was to the windward, and so far above the course of the Ann Caroline, before the two vessels came together, as to forbid the application of the settled rule of navigation, that when two vessels are approaching each other on opposite tacks, both having the wind free, the one on the larboard tack shall give way and pass to the right.

The proof were voluminous, and the testimony of the master and hands on board the respective vessels as usual in this class of cases was contradictory-those of the Wells contending that the course of the Caroline was to the leeward and southerly of that of their vessel, while those on the Caroline insisted that her course was to the windward of the Wells. But, in addition to the witnesses on the two vessels themselves, it so happened that four other witnesses (masters and hands upon two other vessels engaged at the same time in beating up this channel, and who were on the same tack with the Wells, but to the leeward and a little to her stern,) witnessed the collision and the course of the vessels previous to the accident. These confirmed the testimony of the master and hands of the Wells as to the course and relative position of the two vessels. The Circuit Court accordingly made an interlocutory decree that the libellant recover 'the loss and damages by him sustained by reason of this collision;' and it was referred to a commissioner 'to ascertain the amount of such loss or damage.'

The commissioner reported that the damages sustained by the libellant were:

1. The loss of his vessel, the Wells, whose value he fixed at   $5000 00

2. Interest from the day of the collision and loss to that of filing

the report, November 12, 1860,. 2362 50

$7362 50

This being excepted to, the Circuit Court recommitted the report. The commissioner now made a second report, in which, finding, as before, the value of the Wells to be $5000, he took another basis of damages and gave the libellant:

1. The value of the Ann Caroline, which was estimated by the

commissioner at...................... $3500 00

2. The freight pending on her cargo,.... 513 00

3. Interest on the freight and value of the Caroline to the date of

the second report, October 7, 1862,... 2431 43

$6444 43

It is necessary here to state that, after the marshal of the United States attached the Ann Caroline, her claimants and the owner of the Wells, by agreement, filed of record, fixed her value at $5000, and that stipulators entered into stipulations reciting the attachment, value fixed, 'as appears from said consent, now on file in said court;' and 'agreeing that, in case of default or contumacy on the part of the claimants or their sureties, execution for the above amount may issue against their goods, chattels, and lands:' on which the vessel was discharged. A stipulation was also filed for costs, to the extent, however, of but $250.

The Circuit Court entered a decree on the basis of the second report. The decree

ORDERED, that the libellants recover against the schooner Ann Caroline and claimants (the sum awarded by the commissioner), $6444 43

With interest from the date of the commissioner's report, 26 31-$6470 74

Together with their taxed costs, 731 77

In all, $7102 51

And that 'a summary judgment be, and the same is hereby entered, for the amount aforesaid against the stipulators, &c.;' and, unless an appeal was entered, that execution issue against the claimants and them.

From this decree both parties appealed. The libellant objecting because, as he said, the damages allowed were less than he was entitled to recover, the Ann Caroline having been valued by the commissioner but at $3500, instead of at $5000, as it ought to have been, that having been the value agreed on by the claimants themselves. And the claimants objecting because, as they said, the Wells was in fault and nothing was due; or if she was not, and anything was due, it could not possibly exceed $5000, the amount fixed by consent as the value of the Ann Caroline; and for which sum, and no greater, the stipulators had agreed to be contingently bound. The libellants asserted, moreover, that the first report of the commissioner, which gave them the value of their own vessel, the Wells-which, by the fault of the claimants' vessel, had been sunk-and interest from the date of that loss, was the true rule.

Mr. Benedict for the libellants; Mr. Donohue, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Ann Caroline


text: Talk:Ann Caroline

title: Talk:Ann Caroline