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

The history of the relation of the government of the United States to the claims for lands asserted under rights derived from the Spanish and French governments, prior to the cessions of Louisiana and Florida to our government, as it is found in the treaties, the acts of Congress, and the judicial decisions of the American tribunals, is given very fully and with accuracy in the opinion of this court in the case of The United States v. Lynde (11 Wall. 632), and will be referred to now without repeating it. The necessity and the policy of the act of 1860 are there fully considered. It declares that the registers and receivers of the public land-offices in Florida and Louisiana, within their respective districts, and the recorder of land-titles for the State of Missouri, shall be commissioners to hear the evidence and make report to the Commissioner of the General Land-Office concerning this class of claims. They are directed in their reports to divide the cases into three classes, two of which were to be reported as valid and the third as invalid. The nature and character of these claims, and the evidence on which they are to be held valid or invalid, are fully set out in the statute. After the reports of these officers are filed with the Commissioner of the General Land-Office, they are to be subject to the examination of that officer, who is to report thereon directly to Congress. In all cases where he and the local commissioner concur in the rejection of the claim, that action is to be final; but where he concurs with these commissioners in holding a claim valid, he shall report the same to Congress for its action. And in cases where he disapproves the report of the commissioners, he shall in like manner report the whole matter to Congress for final action. It will thus be seen that in all cases brought before any of these officers, under this act, except when the Commissioner of the General Land-Office concurs with them in rejecting the claim, the whole proceeding amounts merely to a report to Congress, and the final action of confirming or rejecting the claim rests with that doby.

The eleventh section, however, enacts that in a much more limited class of cases, which it specifically defines, the claimants 'may at their option, instead of submitting their claims to the officer or officers hereinbefore mentioned, proceed by petition in any district court of the United States within whose jurisdiction the lands or any part of the lands claimed may lie, unless such claim comes within the purview of the third section of this act.' It declares that the United States may be made defendant to such a suit, and an appeal allowed prescribes the mode of executing a final decree in favor of the claimant, and provides for other matters. So much of it as excludes claims coming within the purview of the third section evidently has reference to the proviso of that section, that no case shall be reported favorably by the commissioners which has already been twice rejected on its merits by previous boards, or has been rejected as fraudulent, or as having been procured or maintained by fraudulent or improper means.

The difference in these two modes of procedure, and in the results which followed them, are obvious and important. The first, as already observed, is merely a mode of placing before Congress the result of an investigation by the local commissioner, and the Commissioner of the General Land-Office, with their opinion on the merits of the claim. On these reports Congress either rejects or confirms the claim, as it may think right. Until such action by Congress, nothing is concluded; and if it fails to act, the previous inquiry amounts to nothing.

The suit in the District Court, on the other hand, has all the elements of any other judicial proceeding, among which are the conclusiveness of the judgment on both parties, and the right to an appeal to this court for final decision. Considering the more valuable results which may be obtained in the courts, and the better-defined course of procedure there, it is not strange that parties who have faith in the validity of their claims should prefer that tribunal.

But Congress did not intend to refer all the cases embraced in the act to the courts, at the option of the claimant. It was only claims of a class defined by the eleventh section of the act, which the claimant might bring either before the court or before the commissioner, at his election. If the case before us does not belong to this class, the court did right in dismissing the petition, whatever may be its merits, and though it may be a case which, if brought before a commissioner, would be entitled to a favorable report.

We must, therefore, examine the case in the light of the provisions of the eleventh section, which defines this class in these words:--

'Any case of such a claim to lands as is hereinbefore in the first section of this act mentioned, where the lands claimed have not been in possession of and cultivated by the original claimant or claimants, or those holding title under him or them, for the period of twenty years aforesaid, and where such lands are claimed by complete grant or concession, or order of survey duly executed, or by other mode of investiture of the title thereto in the original claimant or claimants, by separation thereof from the mass of the public domain, either by actual survey or definition of fixed natural and ascertainable boundaries or initial points, courses, and distances, by the competent authority prior to the cession to the United States of the territory in which said lands were included, or where such title was created and perfected during the period while the foreign governments from which it emanated claimed sovereignty over, or had the actual possession of, such territory.'

A careful examination shows three distinguishing elements necessary to a suit in the court:-- 1. The claimant or those under whom he holds must have been out of possession for twenty years or more.

2. The land must be claimed by a complete grant or concession, or order of survey duly executed, or other mode of investiture of the title in the original claimant by separation from the mass of the public domains, either by actual survey or defined fixed natural boundaries or initial points and courses and distances, by the competent authority, prior to the cession to the United States.

3. Where such title was created and perfected during the period of the actual possession of the prior government under which the claim is asserted.

This is substantially an action of ejectment, with the bar of the Statute of Limitations removed, the United States having a constructive possession for the defendant.

The title must be complete under the foreign government. The land must have been identified by an actual survey with metes and bounds, or the description in the grant must be such that judgment can be rendered with precision by such metes and bounds, natural or otherwise.

There must be nothing left to doubt or discretion in its location. If there is no previous actual survey which a surveyor can follow and find each line and its length, there must be such a description of natural objects for boundaries that he can do the same thing de novo. The separation from the public domain must not be a new or conjectural separation, with any element of discretion or uncertainty.

The right to sue here given is not on an inchoate or imperfect title. It is not on a perfected grant for an unknown location, or for a given quantity within defined out-boundaries. All these are left to be pursued, if at all, before the commissioners appointed by the statute. They could pass upon the equities arising from imperfect or incomplete grants. An order of survey was sufficient before them, if otherwise sustained by proof. Permission to settle on the land, or any other written evidence of title emanating from the foreign government prior to the cession. This required no completed title, no actual survey, no twenty years out of possession, no prior segregation from the public domain. In all this class of cases, Congress, which reserved the right to decide, only required evidence of some equitable claim arising under the former government, on which it could make an intelligent decision.

But in the cases brought before the courts, while removing the bar of the lapse of time, and the want of a defendant in possession, and the defence of a better title by patent from the United States, the act still requires a title completed under the foreign government, evidenced by written grant, actual survey, or investiture of possession, and, in short, evidence of a title on which recovery of possession could be had when these defences were out of the way. This view is confirmed by the provision that the petitioner must have been out of possession for twenty years. The only reason that occurs to us for this is, that having the superior legal title, he could recover from any one in adverse possession without the aid of the statute, where he was not bound by twenty years' limitation.

Does the case before us come within this class?

There was no actual survey. The order of survey made by Governor Carondelet is very indefinite. It is thus translated in the record:--

'11th June, 1793, to Captain Don Joseph Valliere, in the District of Arkansas, a tract of land situated on the White River, extending from the rivers Norte Grande and Cibolos to the source of said White River, ten leagues in depth.

'BARON DE CARONDELET.'

On the strength of this order, Trudeau, the surveyor-general, proceeded to make what he calls in his certificate of survey 'a figurative plan' by conjecture, and from this gives a certificate of survey. It appears by the paper called a grant and signed by Carondelet that this plan was made by his order because it was impossible for the royal surveyor to make an actual survey at the time.

Based upon this figurative plan, the concession or grant makes an attempt to describe the land granted by certain natural objects, and some general but not specific directions as to the courses and distances. It does not appear that any actual survey has ever been made locating this grant. It does not appear that any attempt has ever been made to do it. We have in the record copies of Trudeau's sketch. We have a copy of the official map of the surveys of the land into congressional subdivisions, made for the purpose of selling these lands, which have been extended over all the area in which this grant could possibly be found; and we have a map of the State of Arkansas, with county and township subdivisions; and in both these latter the general course of the White River, its branches and affluents, are laid down.

On this latter map we have what Mr. Day, a civil engineer, swears to be a correct location of this grant according to boundaries given in Carondelet's cession. This was not made by any actual survey, but simply taking the sectional map of the State of Arkansas, Mr. Day has made lines on it, which he declares to be a location, on that map, of Valliere's grant. He does this by assuming a point in township 13 north, range 25 west, in Arkansas, to be the origin of the White River, and proceeding directly south from this point ten leagues, or 37 7/8 miles, he makes a series of arbitrary lines, with a corresponding number of angles and changes of course, tending first northwest, and then northeast, and then southeast, until he reaches the Great North Fork of said river. He then descends said fork until it intersects the river, descends the main river until he reaches Buffalo Fork, ascends Buffalo Fork until he comes near the initial point or source of White River, and then makes a straight and arbitrary line southwest to the beginning. As regards this survey, the straight lines and the changing courses and distances are wholly arbitrary and artificial, having no natural objects to establish them, and nothing in the descriptive language of the grant. They are intended to be the conjectural or average distances of ten leagues from the White River. That is to say, in a distance of nearly three hundred miles on one side of White River, in order to ascertain definitely what lands are within ten leagues of that river,-one of the most tortuous ever known,-the surveyor makes six new departures and courses, and, running these by straight lines, declares that he has solved the problem and made an accurate survey.

But let us compare this survey with the calls of the grant. The latter describes the land as 'situated on both banks of White River, ten leagues on both banks, beginning at the origin of the most western branch or source of the White River, and running southwest ten leagues, descending thence on the South by parallel line with White River, at the distance of ten leagues, until it intersects Buffalo River at a point ten leagues in a direct line with White River, from thence descending the Buffalo River to its confluence with White River; following this as far as the mouth of the Great North Fork of the White River, up the same to a point ten leagues in a direct line from its mouth, from thence ascending the White River to the north in a westerly direction, ten leagues from the same, as far as its source, which will better be seen on the figurative plan,' &c.

Assuming that Day's survey has located the original source of White River as the initial point correctly, the first call in the grant is southwest ten leagues. Mr. Day's line is ten leagues directly south; the next departure in the grant is descending thus on the south by parallel with the White River at the distance of ten leagues, until it intersects the Buffalo River at a point ten leagues in a direct line with White River. Here Mr. Day utterly disregards the call, makes a due west line, taking him directly away from the Buffalo River, and making his artificial courses and distances nearly three hundred miles, not on the south, but on the west and north, of White River, and never gets to Buffalo River until he has run the reverse course of the call, and meets it near the last of his survey at its junction with White River. The reason of this is obvious. The call in the grant is an impossible call. The Buffalo River is not in the direction supposed by Trudeau and Carondelet, and the source of White River is not where it is supposed to be.

The next call in the grant is to descend the Buffalo to its confluence with White River. But the Buffalo would never be reached by the call of the grant. In short, looking at the calls for material objects, courses of streams, and distances, that which might have been predicted occurred. In attempting to make a grant described by rivers of whose courses and location they were ignorant, by given distances which could not be made to conform to the natural objects, making a grant of over seven millions of acres of land by specific boundaries of which they knew nothing, they made a total failure, and gave no description by which any surveyor could, without the aid of a lively imagination, make any location.

This is clearly manifest by a comparison of Trudeau's plan with Day's location, and with the actual locality and course of the streams as they are now ascertained.

Trudeau's plan and the calls of the grant make the initial point and source of White River in the northeast corner of the plat; Day makes the source of the river and the initial point in the middle south part of his survey. Trudeau runs a waving line in a southeastern direction to Buffalo River, where he supposed it to be; Day runs in a reverse direction northwest, until he meets the North Fork, and comes down it.

Trudeau was mistaken if the source of the river is where Day locates it. But this destroys all Trudeau's plan, and locates the grant in a very different place from where he and Carondelet intended it to be, and where it can never be reached by any survey following the description of the grant.

But on what evidence Mr. Day ralies to fix the source of the river, the beginning point of his location, is unknown. He did not go on the ground or trace the stream. He merely takes the map of Arkansas, and says, here on this map I find the origin of the river to be a point in township 13 north, range 25 west, in Madison County.

Whether this map gave the origin of the most western branch of that river correctly is wholly uncertain. How far a surveyor must pursue such a branch or stream to find the fountain from which is flows is left in the dark. If Mr. Day had gone on the ground, ordered to make the survey under oath, he might have felt bound to locate this point many miles from where he finds it on the map. It is almost absurd to suppose that in an ordinary traveller's map of a State, made to be folded into a pocketcase, any reliance can be placed on its location of the source of a stream which would justify its acceptance as a warrant for locating with precision a grant of over seven millions of acres of land. The combined exhibits E and F, which are certified copies of the official surveys of the United States, call this most western branch Buffalo Fork, and do not locate the origin of this western branch within thirty miles of the point which the Arkansas map does, and where Mr. Day does.

We are of opinion that for want of any actual survey at the time the grant was made, or at any other time, by the Spanish government, for want of any other separation of the land granted from the mass of the public domain, and for want of any description of the land granted in the instrument of cession, or order of survey, by which the land can be surveyed and identiffed, the claim does not come within the eleventh section of the act of 1860, and that the District Court properly rejected it.

Decree affirmed.


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

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


text:
United States v. Baltimore

APPEAL from the District Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

The Solicitor-General for the United States.

Mr. Edward Janin, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: United States v. Baltimore


text: Talk:United States v. Baltimore

title: Talk:United States v. Baltimore


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

This is an appeal from a decree confirming as valid a claim of the cities of Baltimore and New Orleans to land in that part of the State of Louisiana which constituted the former Spanish province of West Florida.

The suit was brought under the eleventh section of the act of June 22, 1860, which we construed in Scull v. United States, supra, p. 410.

The foundation of the claim is a petition of Philip Robinson to the commandant Don Thomas Estevan, dated Jan. 20, 1804.

This petition recites that Robinson had, in the year 1797, by the permission of Estevan's predecessor, established himself on a tract of land, which he describes, and that he had unfortunately lost the permit by the burning of his house. Fearing lest some intruder might encroach upon his rights, he begs a renewal of the order or permit.

The reply to this is as follows:--

'GALVESTON, Jan. 20, 1804.

'This party may remain in the possession of the land settled by him under the permit of my predecessor, and he will apply to the intendant-general for his formal title.

'THOMAS ESTEVAN.'

No other title, grant, cession, survey, or order of survey was ever issued on this claim. It was a mere permit for possession and settlement, and no more. There was here no perfected title. There was no title at all, nor any thing which purported to give title. The title remained in the Spanish government until transferred to ours; and except the part which has been patented to others, it remains there now. There is nothing on which the claimant, under the eleventh section of the act, as we understand it, is entitled to recover in this suit.

If there is any just claim in this case, it belongs to the class of imperfect, incomplete, equitable rights over which Congress has reserved control, and which could only be confirmed in the mode pointed out before the commissioners under the act of 1860.

The decree of the District Court confirming the claim will be, therefore, reversed, with directions to dismiss the petition; and it is

So ordered.


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


text:
Foster v. Mora

ERROR to the Circuit Court of the United States for the District of California.

The facts are stated in the opinion of the court.

Mr. Edmond L. Goold for the plaintiffs in error.

Mr. John T. Doyle, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Foster v. Mora


text: Talk:Foster v. Mora

title: Talk:Foster v. Mora


text:
Foster v. Mora/Opinion of the Court

This is an action of ejectment brought originally in the Circuit Court for the District of California, by the defendant in error, in which he recovered judgment against the plaintiffs in error.

The parties waived a jury, and the court made a finding of the facts, on which its judgment was rendered. Those which set out plaintiff's title are as follows:--

'1. The lands in controversy are the ancient mission buildings and quadrangle, and the gardens and orchards, of the ancient Mission of San Juan Capistrano, as formerly occupied by the priests of the mission; area, forty-six acres and seventy-four hundredths of an acre (46 74/100).

'2. That on the nineteenth day of February, A.D. 1853, Joseph S. Alemany, Roman Catholic Bishop of Monterey, filed with the board of commissioners to ascertain and settle private land-claims in California, appointed under the act of Congress of March 3, 1851, his petition in writing, a copy of which (omitting the description of the several parcels of land herein described and claimed) is hereto annexed and made part hereof, and marked 'Schedule A;' and thereupon such proceedings were had before the said board, that the said board, on the 18th of December, A.D. 1855, made a decree confirming to said petitioner the lands described in his petition, to be held by him for the uses and purposes in said petition described. A copy of the decree (omitting the description of the several parcels of land) is hereto annexed and made part hereof, marked 'Schedule B.' That afterwards the United States appealed from the said decree to the District Court of the United States for the Southern District of the State of California, and thereafter the Attorney-General of the United States, having given notice that he would not prosecute such appeal, the same was thereupon, afterwards, on the fifteenth day of March, A.D. 1858, at a regular term of the said court, by its order duly entered, dismissed, and the said Joseph S. Alemany, bishop as aforesaid, was adjudged and decreed to have leave to proceed in the premises under the decree of the land commissioners as under final decree.

'3. That on the eighteenth day of March, A.D. 1865, letters-patent were duly issued by the United States of America to the said Reverend Joseph S. Alemany, bishop aforesaid, a copy whereof is annexed, and made a part hereof, marked 'Schedule C.'

'4. Afterwards, and before the commencement of this suit, the title of the said Joseph S. Alemany, Roman Catholic bishop as aforesaid, to the said premises became vested in the plaintiff herein, and that they are the same premises described in the complaint and here in controversy.'

It also appears that this land had been in possession of the mission ever since the year 1796.

The defendants were admitted to be in possession at the commencement of the action, and their claim of title is in substance founded on these facts, as stated by the court:--

A grant by Pio Pico, governor of California, of the premises in controversy, dated Dec. 6, 1845; a petition to the board of commissioners of private land-claims, dated Oct. 23, 1852; a decree of confirmation of that board, dated July 7, 1855; an appeal, which was dismissed; and a survey of the lands so confirmed by the surveyor-general of the United States.

No patent has been issued to the claimants under these proceedings.

It thus appears that plaintiff has the only title founded on a patent from the United States. The act of Congress of 1857, to ascertain and settle the private land-claims in California, required that every claim to land arising under the Mexican government should be presented to the board of commissioners appointed under it, and that they should reject or affirm the claim.

It also contemplated as the final evidence of title that a patent should issue to the claimant or his representatives when the claim was established, in whole or in part. This patent is declared by the statute to be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.

The patent to Bishop Alemany in this case and in this action is conclusive as against the United States that the bishop had a meritorious claim derived from the Mexican government to the land in question, and that the United States conveys to him the legal title to the land.

In actions of ejectment in the United States courts the strict legal title prevails. If there are equities which would show the right to be in another, these can only be considered on the equity side of the Federal courts.

This record shows that plaintiff holds the only legal title which the courts of the United States can recognize. The oldest claim, the oldest possession, the oldest legal title, and the only patent from the United States are with the plaintiff, and in this action these must prevail.

We are invited by plaintiffs in error into the discussion of the canon and civil laws of Mexico concerning the titles to lands held by missions and other ecclesiastical bodies. We must decline to follow this lead.

If there is any equitable reason why the only strict legal title and the older Mexican claim and possession should not prevail, it is not available in a court of law.

Judgment affirmed.

title: Foster v. Mora/Opinion of the Court


text: Talk:Foster v. Mora/Opinion of the Court


text:
United States v. Perot

APPEAL from the District Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

The Solicitor-General for the United States.

Mr. Thomas J. Durant and Mr. C. W. Hornor, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: United States v. Perot


text: Talk:United States v. Perot

title: Talk:United States v. Perot


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

The claim in this case is for four leagues of land granted by Bernardo Fernandez, commandant of the post of Nacogdoches, under the Spanish government, in the Province of Texas, to Pedro Dolet, on the 27th of December, 1795, and extended in possession on the 14th of January, 1796. The land was situated on the bayou of the Adoise, in the settlement of Bayou Pierre, and in what is known as the Neutral Ground, lying east of the Sabine River, and west of the arroyo Hondo, the Kisachey, and the Calcasieu. This territory was then claimed as belonging to Texas, and was occupied and settled by the Spanish authorities of that province, though claimed by the Province of Louisiana,-the Spanish settlements in Texas having been pushed forward easterly across the Sabine. After the cession of Louisiana to the United States, it became a subject of dispute between our government and Spain, and the Sabine was finally acquiesced in as the boundary line. But as Spain owned both provinces at the time of this grant, there can be no question as to its validity. Such a grant for a large tract of over 200,000 acres of land in the same district was confirmed by this court in United States v. Davenport's Heirs, 15 How. 1. The grant in that case was made in the same year as the grant in this case, 1795. The court, by Mr. Justice Campbell, said: 'The land comprehended in these grants at their respective dates was within the unquestioned dominions of the crown of Spain. The evidence clearly established that the commandants of the posts at Nacogdoches, before and subsequently, were accustomed to make concessions to lands in the neutral territory. This was not at all times an unquestioned jurisdiction, but between the years 1790 and 1800 it seems to have been generally acquiesced in.'

We think, therefore, that the grant must be sustained. The evidence produced to authenticate it is, under the circumstances, all that the claimants could be expected to produce.

But the grant is for four leagues only. The claimants obtained a decree below for four American or English leagues; and such leagues may have been inadvertently allowed in some previous cases. But it is evident that no such leagues were in the minds of the parties. The leagues intended were Spanish leagues, such as were used in land measures and grants in Mexico and Texas at that period. Now we are bound to take judicial notice that the Mexican league was not the same as the American league. The laws of Mexico, of force in Texas previous to the Texan revolution, were the laws not of a foreign, but of an antecedent government, to which the government of the United States, through the medium of the Republic of Texas, is the direct successor. Its laws are not deemed foreign laws; for as to that portion of our territory they are domestic laws; and we take judicial notice of them. Fremont v. United States, 17 How. 542, 557.

If any doubt existed as to the extent of the Mexican league, an inquiry might be necessary to ascertain it. But no such doubt exists. The old legal league, by the laws of Spain, and which was adopted in Mexico, consisted of 5,000 varas; and a vara in Texas has always been regarded as equivalent to 33 1/3 English inches, making the league equal to a little more than 2.63 miles, and the square league equal to 4,428 4/10 acres. This is perfectly well understood in Texas, where controversies respecting Spanish titles are constantly brought before the courts.

Strictly speaking, the standard vara of Mexico is somewhat less than 33 1/3 inches. Our engineers, at the close of the Mexican war, brought back with them a copy of that standard found in the Mexican archives, being one of a set prepared for distribution among the Mexican States. This standard is still preserved in the Coast Survey office, and by careful comparison with our standards by Professor Bache, was found to be only 32.9682 inches. This agrees very closely with the public reports of the government of Mexico on the subject, which make their vara 838 millimetres, which are equivalent to 32.9927 inches. Humboldt, in 1803, found it to be 839.16 millimetres, or a slight fraction over 33 inches. But it seems that a vara measure of somewhat larger dimensions obtained in Texas from an early period; and the result is, what has been stated above, 32 1/3 inches to the vara, and 4,428.4 acres to the league. The cordel, a cord of 50 varas, or about 137 1/2 feet in length, was the instrument generally used in measuring large tracts, one hundred of these making a league; and it is probable that the cordel originally employed in Texas had become somewhat lengthened by use. See the Constitution and Laws of the Republic of Mexico and of the States of Coahuila and Texas, New York, 1832; also Yoakum's History of Texas, vol. i. p. 217; Rockwell's Spanish and Mexican Laws, p. 664; Halleck's Report, Ex. Doc. No. 17, Ho. Rep. 1st Sess. 31st Cong. p. 145.

The standard Mexican vara is so near to 33 inches (wanting, according to the best measurements, less than a hundredth of an inch of that quantity), that a standard vara measure laid on an American yard would so nearly correspond with 33 inches, that the difference could not be perceived by the naked eye. Hence, in California, after its acquisition by the United States, a vara came to be considered as exactly equal to 33 inches; and this result was sanctioned by the General Land-Office as early as 1852. The United States surveyor-general of California, in a report to the land-office, dated at San Francisco, Nov. 14, 1851, said: 'All the grants, &c., of lots or lands in California, made either by the Spanish government, or that of Mexico, refer to the 'vara' of Mexico as the measure of length. By common consent here, that measure is considered as being exactly equivalent to thirty-three American inches.' He then refers to other estimates found in a recent publication, and adds: 'It is important that the relative proportions of their measures should be clearly settled. I, therefore, have to ask the aid of the department in doing so.' The commissioner, in an answer to this letter, dated Washington, March 5, 1852, said: 'You state that by common consent it [the Mexican vara] is considered in California as exactly equivalent to 33 American inches. I can see no reason why there should be any departure from this ratio, and agree with you that any important change in the length of the 'vara' recognized and acted upon in California would produce confusion.'

It is understood that the department has always, since that time, acted upon this standard of value of the vara in respect to surveys in California; which makes the square league of 5,000 varas to the side, equivalent to 4,340.278 acres. In a letter addressed by Mr. Wilson, Commissioner of the General Land-Office, to the late Mr. Justice Catron, of this court, on the 20th of February, 1855, he says that the practice of the land-office is to consider and allow the vara in California as equivalent to 33 inches, and the league as equivalent to 4,340.27 acres.

It is important that the uniform practice and usage of a country should be observed in the construction of all grants made therein whilst such usage prevailed.

For this reason, we think that in Texas, and in relation to grants emanating from the Mexican government in that province, before its separation from the parent State, the vara and league recognized in land measures there should be respected.

Allowing the claimant, therefore, at the rate of 4,428.4 acres to the league, according to the rate above referred to, he is entitled to a decree for 17,713 6/10 acres, instead of 23,040, as decreed by the court below, requiring a deduction of 5,326 4/10 acres. If the claimant will remit this excess, he will be entitled to an affirmance of the decree for the balance, namely, for 17,713 6/10.

On filing such remitter, a decree may be entered accordingly; and it is

So ordered.

NOTE.-The following table shows the different values given to the Mexican vara and league by different measurements and authorities:--

1 Mexican Vara    1 Sq.

= Metres. = Inches. = Miles. = Acres.

Humboldt (1803)  0.839,16  33.03839  2.6071966  4350.

Mexican Decree (1839)  .838,01  32.99311  2.6036236     4338.

Orbegozo (1844?)  .838,00  32.99272  2.6035924  4338.

U.S.C.oast Survey (1850)  .837,377  32.96820  2.6016572     4331.

Bustamente (1851)  .837,33  32.96634  2.6015112  4331.

Use in California  33.00000  2.6041667  4340.

Use in Texas      33.33333  2.6304714  4428.

Vide Diccionario Universel de Historia y de Geografia, article Medidas y Pesas, and authorities cited in opinion.


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


text:
Carr v. United States

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

The facts are stated in the opinion of the court.

Mr. William Matthews for the appellant.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Carr v. United States


text: Talk:Carr v. United States

title: Talk:Carr v. United States


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

This case arises upon a bill to quiet title, filed by the United States against the appellant, Carr, and various other persons, upon which a decree was rendered by the court below in favor of the plaintiff. Carr appealed from this decree. The controversy relates to certain lands at San Francisco, being two lots, each fifty varas square, on Rincon Point, which are claimed by the government as having, with other adjoining lands, been set apart and reserved for public use in 1847, and as having been conveyed to the United States by the city of San Francisco in 1852. The appellant claims the lots in question under one Thomas White, alleging that said White occupied the same in 1849, and that he and his grantees continued to occupy the same until June, 1855, when the Van Ness ordinance was passed.

It is conceded that the premises in question were once pueblo lands, belonging to the municipality of San Francisco; but as such lands, until conveyed to private parties, were subject to the public uses of the government, both before and after the conquest of the country by the United States, it is evident that the latter had the undoubted right to make such appropriation thereof for public use as it might see fit. It is denied, however, that any such appropriation was ever made by the proper authority. It appears from the pleadings and evidence in the case, that from the first occupation of San Francisco by the United States, in 1847, the military authorities of the government set apart Rincon Point (including the premises in question) for the use of the government; but that after the discovery of gold, in 1849, the officers had much ado to keep them clear of trespassers, who entered upon, and endeavored to appropriate the same. In November, 1849, a lease of this tract, with others, was given by the officer in command at San Francisco to one Thomas Shillaber, apparently for the purpose of keeping possession on behalf of the government. This lease was approved by the Secretary of the Interior. About 1852, a marine hospital was built by the government on the southeast half of the block on Rincon Point, bounded by Folsom, Harrison, Spear, and Main Streets. The whole block was 550 feet in length from Harrison to Folsom Street, and 275 feet in width from Main to Spear Street. The southeast half was 275 feet square, forming four lots, each fifty varas, or 137 1/2 feet, square, numbered 1, 2, 3, and 4. Numbers 1 and 2 adjoined Harrison Street, 3 and 4 adjoined 1 and 2. Lots 3 and 4 are the premises in controversy. The hospital building was actually constructed on lots 1 and 2, standing within four or five feet of lots 3 and 4; and the latter were occupied by buildings or for yard room, as accessory to the hospital.

As before stated, however, different parties attempted to possess themselves of portions of the property; and amongst others, White, under whom the appellant claims, made such an attempt in 1849, in reference to the whole block which includes the lots in question, but was ejected, as appears by the orders and correspondence set out in the complaint.

The consequence of White's attempt was that adverse claims to the property under him were afterwards preferred from time to time. For the purpose of quieting these claims, when the hospital was being erected, a conveyance to the government was procured from the city authorities. On the 10th of December, 1852, the common council of the city passed a resolution that the mayor be directed to convey to the United States all its right, title, and interest to six fifty-vara lots, bounded on the east by Spear Street, on the south by Harrison Street, on the west by Front Street, and on the north by the beach; which description includes the four lots above referred to. Such a conveyance was accordingly made by the mayor, by deed dated the 11th of December, 1852; and from thenceforward the United States claimed the property in question, as well by virtue of the said deed as by right of original appropriation for public uses.

The appellant, as before stated, claims the property by virtue of the Van Ness ordinance, passed June 20, 1855, by which, amongst other things, the city of San Francisco did relinquish and grant all the right and claim of the city to the lands within the corporate limits to the parties in the actual possession thereof, by themselves or tenants, on or before the first day of January, 1855, provided such possession was continued up to the time of the introduction of the ordinance in the common council.

Now, it is too evident to require discussion that the city of San Francisco could not, in 1855, make a valid grant of property which it had already granted in 1852; and which the grantee (in this case the United States) constantly claimed as part and parcel of premises which were in its undoubted possession. The weight of the evidence in the case is, that the government was in actual possession of lots 3 and 4 as appendant to the hospital, from 1852 to the passage of the ordinance. This would bring it within the terms of the ordinance itself. But we do not deem this material. It had a clear title from the city before, even if the action of the military authorities in 1847 and 1849 was not sufficient to effect an appropriation for public uses.

But the appellant relies on certain judgments rendered in the State courts in actions brought against the agents of the government having possession of the lands in question, which judgments he contends estop the government from claiming any title therein.

The first of these actions was an action for forcible entry and detainer brought in a justice's court in December, 1857, by one Edward Barry against one McDuffie and one Palmer, for ejecting him (Barry) from lot No. 4, which lies on Main Street. The defendants justified under an order of President Pierce, requiring the marshal of the district of California to remove all persons trespassing on said lot. The county court, to which the cause was appealed, found for the plaintiff, and reinstated him in the possession. The only question made in the case was whether the justification was sufficient for ousting a person who was in peaceable possession. This judgment would not have been decisive upon the title, even if the defendants themselves had been the true owners of the land, and had claimed to eject the plaintiff by virtue of said ownership.

The next action was an ejectment brought in the State District Court in February, 1865, by one Wakeman and others (under whom the appellant claims title), against one Hastings and others, to recover possession of the same lot No. 4. The defendants, basides the general issue, pleaded that the premises were the freehold of the United States, and that they, as its officers and employees, and by its authority, entered, &c. The question of title was gone into, and decided against the defendants. A similar action of ejectment was brought in the same court in April, 1865, by one Volney Cushing (under whom the appellant also claims), against the said Hastings and others, to recover possession of the lot numbered 3, situated on Spear Street. The defendants pleaded the general issue and the Statute of Limitations. The title was also contested in this case, and the judgment was for the plaintiff.

It is proved that the person who was district attorney of the United States for the district of California at the time when said actions were brought and tried, appeared as attorney for the defendants therein; and that Nathaniel Bennett, Esq., attended the trial of one of said causes as counsel for the defendants, being employed and paid by the Secretary of the Treasury of the United States; and, not being able to attend the trial of the other cause, he procured another person to attend in his place.

The appellant contends that this was sufficient to make the United States a virtual party to said actions, and to conclude them by the judgment therein; that by the law of California a judgment in ejectment is an estoppel; and that where a tenant, or other person in privity with the landlord, is sued, and notifies the landlord to defend, the landlord is bound by the judgment pronounced in the action; and to this point the counsel of the appellant cited Douglas v. Fulda, 45 Cal. 592; Russell v. Mallon, 38 id. 259; and Valentine v. Mahoney, 37 id. 389, as well as various cases decided in other States.

Whilst we concede that this may be the law of California as it regards private citizens who are landlords, we are not satisfied that the same law can be applied to the government of the United States. We consider it to be a fundamental principle that the government cannot be sued except by its own consent; and certainly no State can pass a law, which would have any validity, for making the government suable in its courts. It is conceded in The Siren (7 Wall. 152) and in The Davis (10 id. 15), that without an act of Congress no direct proceeding can be instituted against the government or its property. And in the latter case it is justly observed that 'the possession of the government can only exist through its officers; using that phrase in the sense of any person charged on behalf of the government with the control of the property, coupled with actual possession.' If a proceeding would lie against the officers as individuals in the case of a marine hospital, it might be instituted with equal facility and right in reference to a post-office or a custom-house, a prison or a fortification.

In some cases (perhaps it was so in the present case), it might not be apparent until after suit brought that the possession attempted to be assailed was that of the government; but when this is made apparent by the pleadings, or the proofs, the jurisdiction of the court ought to cease. Otherwise, the government could always be compelled to come into court and litigate with private parties in defence of its property.

It may be contended that the United States consented to have its title determined in these cases, and that such consent was manifested by the employment of the district attorney and additional counsel to aid in the defence. But we do not think that any such inference can be legally deduced from the action of the Secretary of the Treasury. He may have deemed it prudent to assist the officers who were sued, without intending to waive any of the rights of the government. And, in fact, he had no authority to waive those rights. In England it is usual, in the admiralty courts, in proceedings in rem, when it is made to appear that property of the government ought, in justice, to contribute to a general average, or to salvage, for the proper officer of the government to consent in court that it may take jurisdiction of the matter. As stated by this court in The Davis (supra), 'this consent is given by authority of the king, who thus submits to be sued in his own courts. The liberal exercise of this authority [there] removes the difficulty presented here, where no power to do this exists in any officer of the government, and prevents any apprehension of gross injustice in such cases in England.'

The cases like The Siren and The Davis, already referred to, and many others therein cited, in which the proceeds of government property, incidentally brought into the admiralty, have been subjected to the liens of claimants against the same, stand upon the principle that when the government itself seeks its rights at the hands of the court, equity requires that the rights of other parties interested in the subject-matter should be protected. The 'Siren' was brought into the port of Boston as prize, was libelled, condemned, and sold, and the proceeds paid into court. In distributing these proceeds amongst those who had claims against the vessel, an allowance was awarded for damages to the owner of another vessel which had been sunk by collision with the 'Siren' during her voyage subsequent to the capture. It was held that, inasmuch as the United States had resorted to the aid of the court to procure the condemnation of the 'Siren,' and had thus placed her proceeds in the course of judicial administration, any proper claims against the vessel itself, prior to that of the government, might well be satisfied out of such proceeds. At the same time, it was conceded that neither the government nor its property can be subjected to direct legal proceedings without its consent; and that whosoever would institute such proceedings must bring his case within the authority of some act of Congress. 7 Wall. 154. The 'Davis' and her cargo were seized for salvage services. Part of the cargo was cotton belonging to the United States, but not in its actual possession, it being in the possession of the master of the ship under a contract of affreightment. The government appeared as claimant; and it was held that the cotton, like other cargo, was justly liable to pay its proportion of the salvage services; the court, at the same time, as before stated, holding that even for salvage services the property of the government could not be taken out of its own possession by any direct proceeding.

Without discussing the matter further, we are clearly of opinion that the judgments in the cases relied on by the appellant constitute no estoppel against the United States. And being of opinion that the title of the United States to the premises in question is undoubted, our conclusion is that the decree of the Circuit Court must be affirmed; and it is

So ordered.


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


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The Abbotsford

APPEAL from the Circuit Court of the United States for the Eastern District of Pennsylvania.

The facts are stated in the opinion of the court.

Mr. Morton P. Henry for the 'Abbotsford.'

Mr. Henry Flanders and Mr. James B. Roney, contra.

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

title: The Abbotsford


text: Talk:The Abbotsford

title: Talk:The Abbotsford


text:
The Abbotsford/Opinion of the Court

This is an appeal from a decree of the Circuit Court for the Eastern District of Pennsylvania, in an admiralty cause on the instance side of the court, rendered April 13, 1876. The case was up for consideration once before at the present term, and remanded for a finding of the facts and the conclusions of law required by the 'act to facilitate the disposition of cases in the Supreme Court of the United States, and for other purposes' (18 Stat. 315), which went into effect May 1, 1875. The Circuit Court has since complied with the requirements of that statute, and made its return, stating the facts and the conclusions of law separately. Accompanying this return is a bill of exceptions, which is now a part of the record. This bill of exceptions shows that each of the parties presented to the court requests for findings of fact upon the evidence, and the exceptions are to the effect that the court neglected to find certain facts claimed by the appellant to have been proved. The evidence relied upon to prove what was claimed and not found is set out at length.

The first question to be determined is as to the operation and effect of the bill of exceptions. The act of 1875 provides 'that the circuit courts of the United States, in deciding causes of admiralty and maritime jurisdiction on the instance side of the court, shall find the facts and conclusions of law upon which it renders its judgments or decrees, and shall state the facts and conclusions of law separately. And in finding the facts, as before provided, said court may, upon the consent of the parties who shall have appeared and put any matter of fact in issue, and subject to such general rules in the premises as shall be made and provided from time to time, impanel a jury of not less than five and not more than twelve persons, to whom shall be submitted the issues of fact in such cause, under the direction of the court, as in cases at common law. And the finding of such jury, unless set aside for lawful cause, shall be entered of record, and stand as the finding of the court, upon which judgment shall be entered according to law. The review of the judgments and decrees entered upon such findings by the Supreme Court, upon appeal, shall be limited to a determination of the questions of law arising upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions, prepared as in actions at law.'

Under this statute we are clearly of the opinion that the finding of facts in the Circuit Court is conclusive, and that the only rulings which can be presented for review here by bill of exceptions are those made upon questions of law. Such has been the construction given by this court to statutes of a similar character in a long line of decisions, commencing soon after the court was organized. Thus, sect. 19 of the Judiciary Act of 1789 provided that it should 'be the duty of the Circuit Court, in causes in equity and of admiralty and maritime jurisdiction, to cause the facts on which they found their sentence or decree fully to appear upon the record, either from the pleadings and decree itself, or a state of the case agreed by the parties or their counsel, or if they disagree, by a stating of the case by the court.' 1 Stat. 83. In Wiscart v. Dauchy (3 Dall. 324), decided in 1796, Chief Justice Ellsworth, speaking for the court in reference to the proper practice under this act, said: 'If causes of equity or admiralty jurisdiction are removed hither, accompanied with a statement of facts, but without the evidence, it is well; and the statement is conclusive as to all the facts which it contains. This is unanimously the opinion of the court. If such causes are removed with a statement of the facts, and also with the evidence, still the statement is conclusive as to all the facts contained in it. This is the opinion of the court, but not unanimously.' Soon afterwards the act of 1803 (2 Stat. 244), allowing appeals, was passed, which directed that, upon an appeal, 'a transcript of the libel, bill, answer, depositions, and all other proceedings of what kind soever in the cause,' should be transmitted to this court, and consequently the question did not again come up for consideration until after the 'act to regulate the mode of practice in the courts of the United States for the district of Louisiana' (4 Stat. 62), passed May 26, 1824. Under the Louisiana practice, which was adopted by this act for the courts of the United States in that district, trials were allowed by the court without a jury, and almost immediately questions arose as to the manner in which such cases should be brought to this court for review by writ of error. There was much difficulty in reaching a settlement of the practice, but in United States v. King (7 How. 845), it was decided unanimously 'that the decision of the Circuit Court upon the questions of fact must, like the finding of a jury, be regarded as conclusive; that the writ of error can bring up nothing but questions of law.' Following this was the case of Bond v. Brown (12 id. 256), where Mr. Chief Justice Taney said: 'And whether the fact was rightly decided or not according to the evidence is not open to inquiry in this court. The decision of the court below in this respect is as conclusive as the verdict of a jury when the case is brought here by writ of error.' Other cases to the same effect may be found. Such is now the settled law with reference to trials of issues of fact in Louisiana, when a review is sought in this court by writ of error.

In 1865 an act of Congress was passed (13 Stat. 501), which is as follows:--

'That issues of fact in civil cases in any circuit court of the United States may be tried and determined by the court without the intervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk waiving a jury. The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the cause in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error, or upon appeal, provided the rulings be duly presented by bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.'

This statute has been reproduced in sects. 649 and 700 of the Revised Statutes, and under it we have universally held that a bill of exceptions cannot be used to bring up the evidence for a review of the findings of fact. The facts, as found and stated by the court below, are conclusive. The case stands here precisely the same as though they had been found by the verdict of a jury. Norris v. Jackson, 9 Wall. 125; Basset v. United States, id. 38; Copelin v. Insurance Company, id. 461; Coddington v. Richardson, 10 id. 516; Miller v. Insurance Company, 12 id. 295; Insurance Company v. Folsom, 18 id. 249; Insurance Company v. Sea, 21 id. 158; Jennisons v. Leonard, id. 302.

At the December Term, 1865, under the authority we have to prescribe rules by which appeals may be taken from the Court of Claims to this court, we provided that such appeals should be had on the transcript of the record, &c., below, and 'a finding of the facts in the case by the said Court of Claims, and the conclusions of law on said facts, on which the court founds its judgment or decree. The finding of facts and conclusions of law to be stated separately, and certified to this court as part of the record. The facts so found are to be the ultimate facts or propositions which the evidence shall establish, in the nature of a special verdict, and not the evidence on which these ultimate facts are founded.' 3 Wall. vii. This rule was changed somewhat in form but not in substance, Oct. 12, 1873. 17 id. xvii. In the case of DeGroot v. United States (5 id. 419), decided in 1866, we took occasion to say that the object of this rule was 'to present in a simple form the questions of law which arose in the progress of the case, and which were decided adversely to the appellant. Only such statement of facts is intended to be brought to this court as may be necessary to enable it to decide upon the correctness of the propositions of law ruled by the Court of Claims, and that is to be presented in the shape of facts found by that court, to be established by the evidence, in such form as to raise the legal question decided by the court. It should not include the evidence in detail.' This practice has always been strictly adhered to.

From this it is apparent that when the act of 1875 was passed, words in a statute limiting the power of this court in the review of cases where the facts had been found below 'to a determination of the questions of law arising upon the record and to the rulings of the court excepted to,' had acquired, through judicial interpretation, a well-understood legislative meaning, and that they confined our jurisdiction to the re-examination of questions of law along. Having that meaning, therefore, it is to be presumed they were used in that sense in this instance, unless the contrary is in some way made to appear. So far from there being any manifestation of such a contrary intention, the reverse is very clearly indicated. Thus, the rulings of the court on which we are authorized to pass are such as may be presented by a bill of exceptions, prepared as in actions at law. It is an elementary principle in the common law that a bill of exceptions 'is founded on a matter of law or a point of law arising out of a fact not denied.' 1 Saund. Pl. and Evid. 640. 'The only modes known to the common law to re-examine the facts are the granting of a new trial by the court where the issue is tried, or to which the record is properly returnable, or the award of a venire de novo by an appellate court for some error of law which intervened in the proceedings.' Parsons v. Bedford, 3 Pet. 448. By the Constitution, Amend. VII., no fact tried by a jury can be otherwise re-examined in any court of the United States than according to the rules of the common law. It follows that had this case been tried by a jury it could not be re-examined on the facts in this court, because under the rules of the common law a bill of exceptions could not be used for that purpose. The decision of a court denying a new trial because the verdict of a jury is against the evidence is not reviewable upon error in the courts of the United States. Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592. Since, therefore, the bill of exceptions in this class of cases is to be taken as in actions at law, it follows most unmistakably that only such rulings are to be presented by it for our consideration as could properly be put into a bill of exceptions on the trial of an action at law.

This intention is still further manifested in that part of the act which provides for a trial by jury. The trial is to be had as at common law, and the finding of the jury on such a trial, unless set aside for lawful cause, is to stand as the finding of the court. No distinction is made in respect to our power of review between cases tried by a jury and those by the court; and if the trial is had by a jury, it is clear that the verdict was intended to be conclusive upon us.

Taking the whole statute together, we think it clearly manifests an intention on the part of Congress to relieve us from the great labor of weighing and considering the mass of conflicting evidence which usually filled the records in this class of cases. There is no real injustice in this. Parties to suits in admiralty have now the right to two trials on questions of fact,-once in the District Court, and again on appeal in the Circuit Court. There seems no good reason why they should be entitled to a third trial here. At law there is but one trial, except by leave of the court in the exercise of its supervisory power over verdicts, and in equity only one before an appeal to this court.

Upon the facts as found the decree of the Circuit Court was clearly right. The schooners 'Rosanna Rose' and 'Gov. Burton' were beating down the Delaware River under sail, and the 'Abbotsford' was following them under steam at half-speed by her engine, which, with the tide, gave her a speed of eight or nine miles an hour. When the steamer had approached near enough to the schooners to render it necessary to make calculations to keep out of their way, the schooners were sailing on parallel courses, not far apart, on their starboard tacks, and nearing the Jersey side of the river. The 'Rose' was to the eastward of the 'Burton,' and having run out her starboard tack by going as near as she could in safety to what is known as the Red Bank Shoal, she came about on her port tack. While on that tack, and before she had got under full headway, she was compelled to tack again to avoid a collision with the 'Burton,' still on the starboard tack and having the right of way. While engaged in this evolution, and being 'in stays,' she was run into by the steamer. The court finds that the tack of the 'Rose' on the shoal was entirely proper, both for her own safety and in regard to the 'Burton' and the steamer, as they were far enough away to allow her to do so with perfect safety. There was plenty of room for the steamer to pass to the westward of both the vessels, and if she had ported her wheel a point or half-point at any time within a distance of two miles, a collision would have been impossible. As it was, she undertook to pass between the schooners without any necessity for so doing, when it must have been apparent to any skilful navigator that the 'Rose' was nearing the shoal, and would be compelled to come about and cross the bow of the steamer before she could get by on the course she was steering. In addition to this, there was the complication growing out of the proximity of the 'Burton,' entitled to keep on her starboard tack after the 'Rose' must come about. Notwithstanding all these circumstances, the steamer held her course and speed until she had approached so close to the vessel that there was neither room nor time to overcome her momentum when she became involved in the necessary and proper movements of the 'Rose' to keep out of the way of the 'Burton.' A prudent navigator would have avoided this danger by a change of course or a slackening of speed long before. The collision occurred between nine and ten o'clock in the morning, and there is no pretence that both schooners were not in full view from the steamer for a sufficient time to enable her to make the necessary movement to keep out of their way. The collision was due alone to the fact that the steamer undertook to pass between the schooners when she should have gone outside of them.

Decree affirmed.

title: The Abbotsford/Opinion of the Court


text: Talk:The Abbotsford/Opinion of the Court


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United States v. Benecke

CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Western District of Missouri.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith for the United States.

Mr. Louis Benecke, in propria persona, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: United States v. Benecke


text: Talk:United States v. Benecke

title: Talk:United States v. Benecke


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

The defendant, Louis Benecke, was indicted in the District Court for the Western District of Missouri, and the sixth and tenth counts of the indictment charged him with unlawfully withholding arrearages of pay and bounty from persons for whom, as agent and attorney, he had collected the same from the United States.

In the one case, the date was alleged to be the sixteenth day of March, 1868, and in the other the 17th of the same month, and in both continuing thereafter.

On these counts the defendant was found guilty in the Circuit Court; and on motion for a new trial and arrest of judgment the judges of that court certified six questions of law to this court on which they differed, as applicable to the case.

The first of these is thus stated:--

Is wrongfully withholding back pay or bounty by an agent or attorney from a claimant an offence under sect. 13 of the act of July 4, 1864 (13 Stat. 389), or under sect. 31 of the act of March 3, 1873 (17 id. 575), sect. 5485, Rev. Stat.?

The act of 1864 is entitled 'An Act supplementary to an act entitled 'An Act granting pensions, approved July 14, 1862." It consists of fifteen sections, the twelfth of which is devoted to prescribing specifically the compensation of agents and attorneys for procuring the allowance of pensions and bounty, or other claims, under the act; and the thirteenth section, to prescribing a punishment for violation of the twelfth. It is as follows:--

'SECT. 13. And be it further enacted, that any agent or attorney who shall, directly or indirectly, demand or receive any greater compensation for his services under this act than is prescribed in the preceding section of this act, or who shall contract or agree to prosecute any claim for a pension, bounty, or other allowance under this act, on the condition that he shall receive a per centum upon [, or] any portion of the amount of such claim, or who shall wrongfully withhold from a pensioner or other claimant the whole or any part of the pension or claim allowed and due to such pensioner or claimant, shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall, for every such offence, be fined not exceeding $300, or imprisoned at hard labor not exceeding two years, or both, according to the circumstances and aggravations of the offence.'

There is here no provision in regard to services for procuring pay, nor any provision in the act regarding it. The pensions to soldiers, their widows and orphans, is not pay, and the provisions for paying them are not under that act. Arrearages of pay were not collected under any pension law, or through the pension office. What is meant by bounty here is said in the briefs to be also passed upon and paid in another bureau. The indictment is perhaps on this point a little obscure. In the sixth count the defendant is charged as guilty of withholding arrearages of pay and bounty, and in the tenth with withholding pay and bounty.

Since the act in which this offence is described makes no provision for pay or for bounty, and the fees regulated and the acts forbidden are those done in regard to that act, it seems a reasonable construction of the penal part of the statute that withholding pay and bounty, which are not mentioned there, are not intended to be punished by the act.

It is not in reference to pay that Congress was legislating. The persons described who may be guilty are those prosecuting claims for pensions or bounty before the pension office. The offence described is 'withholding from a pensioner or other claimant the whole or any part of the claim allowed and due said pensioner or claimant,' and it is but a just limitation of the word 'claimant' that he should be a claimant under that act, a claimant before the pension bureau. This part of the section is to be taken in connection with the taking of illegal fees, which manifestly refers to cases before the pension office, and which are described and punished in the same sentence and by the same penalty. The word 'bounty' is not used in this sentence, nor the word 'pay,' but the argument is that the word 'claim' includes them. We think this would be an unjustifiable extension of a penal statute beyond its terms and against its purpose.

The first question is, therefore, to be answered in the negative, and we need not inquire if the statute was repealed, since the offence described in the indictment is not within it.

The offences in this indictment are said to have been committed in 1868. The law then in existence did not make the act charged a crime. It is argued by counsel that withholding the money due is a continuous offence, and if the same money was withheld after the act of 1873 did make such withholding punishable, the indictment is good under that act. But without deciding here how far the withholding the money under a law which made that an offence when the wrongful withholding began, can be held to be a continuous offence, we are of opinion that it would be a forced construction of the act to hold that it was intended to apply to a case where the money had already been withheld five years when the statute was passed. The party might very well be criminally wrong in failing to pay when he received it; but Congress could hardly be supposed to intend to punish as a crime his failure to pay afterwards what was in law but a debt created five years before.

This answers the fifth question, namely, 'Can the defendant be punished under sect. 31 of the act of March 3, 1873?' These answers also render unnecessary a reply to the others.

It is, therefore, ordered to be certified to the Circuit Court that the first and fifth questions are answered in the negative, and that answers to the others are thereby rendered unnecessary.

So ordered.


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


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United States v. Irvine

CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Western District of Missouri.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith for the United States.

No counsel appeared for Irvine.

MR. JUSTICE MILLER delivered the opinion of the court.

title: United States v. Irvine


text: Talk:United States v. Irvine

title: Talk:United States v. Irvine


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

The defendant, Clark Irvine, is charged in the indictment in this case, that on the twenty-fourth day of December, 1870, as the agent and attorney of Mrs. Berkely, he wrongfully withheld from her the amount of her pension, to wit, $525, allowed her under the pension laws, and continuously withheld it until the time of finding the indictment in September, 1875.

The indictment comes within the terms of the act of 1864, which we have considered in United States v. Benecke, supra, p. 447.

But the judges have certified to us, among other questions, whether the act of July 8, 1870, does not repeal the thirteenth section of the act of 1864.

By the third section of the later act, pensions are forbidden to be paid to attorneys and agents any more, and are required to be paid directly to the pensioner. It is not easy to see, therefore, how the attorney is to get possession of the money, and how he can withhold it, or why there should be any longer a law for punishing him for such withholding.

The statute revises the act of 1864 as regards fees of such attorneys, and increases the punishment for exacting more fees than the law allows, but totally omits any penalty for withholding. Sects. 7 and 8, act of July 8, 1870, 16 Stat. 195.

It is argued that this omission was intentional, for the reason above stated; and as the statute repeals all acts in conflict with its provisions, it was intended to repeal the penalty for withholding prescribed by the act of 1864. The argument is not without force; but without deciding that point, we prefer to answer another question, which will decide the present case.

The defendant pleaded the Statute of Limitations of two years as a bar to the indictment, and the court, having refused him the benefit of the bar on trial, now certify other questions on that subject, namely: 2. Is the crime a continuous one down to the time of finding the indictment? 3. Does the Statute of Limitations constitute a bar to this prosecution, the indictment having been found Sept. 15, 1875?

It is not very easy to define for all purposes what constitutes under the statute a withholding of the pension. It cannot commence, of course, until the money is received by the party charged. Nor can it commence then, unless there is a duty of immediate payment to the pensioner. A reasonable time must certainly be allowed for this. What that is must depend in each case on its own circumstances. A refusal to pay on demand without just excuse would constitute withholding at once. Such delay as would show an intention to evade payment would constitute a withholding. If there is nothing but careless delay, the party might hold the money for some time without incurring this severe penalty of two years imprisonment. In short, there must be such unreasonable delay, some refusal to pay on demand, or some such intent to keep the money wrongfully from the pensioner, as would constitute an unlawful withholding in the meaning of the law.

But whatever this may be which constitutes the criminal act of withholding, it is a thing which must be capable of proof to a jury, and which, when it once exists, renders the party liable to indictment.

There is in this but one offence. When it is committed, the party is guilty and is subject to criminal prosecution, and from that time, also, the Statute of Limitations applicable to the offence begins to run.

It is unreasonable to hold that twenty years after this he can be indicted for wrongfully withholding the money, and be put to prove his innocence after his receipt is lost, and when perhaps the pensioner is dead; but the fact of his receipt of the money is matter of record in the pension office.

He pleads the statute of two years, a statute which was made for such a case as this; but the reply is, You received the money. You have continued to withhold it these twenty years; every year, every month, every day, was a withholding, within the meaning of the statute.

We do not so construe the act. Whenever the act or series of acts necessary to constitute a criminal withholding of the money have transpired, the crime is complete, and from that day the Statute of Limitations begins to run against the prosecution.

In the case before us, the judges certify that it appeared on the trial that the pensioner demanded her money of defendant on the 24th of December, 1870, and he refused to pay her, and had never paid her up to the finding of the indictment, Sept. 15, 1875; that he requested the judge to instruct the jury to acquit him, because the offence was barred by the Statute of Limitations, which the court refused to do.

We think the statute (Rev. Stat., sect. 1044) was a bar; and we say in answer to the second question, that the crime, as shown in this case, was not a continuous one to the time of the indictment; and to the third, that the Statute of Limitations constitutes a bar to this prosecution.

The answers to these two questions dispose of the case, and will be certified to the Circuit Court, and it is

So ordered.


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


text:
Jennison v. Kirk

ERROR to the Supreme Court of California.

The facts are stated in the opinion of the court.

Mr. B. F. Myres for the plaintiff in error.

No one appearing for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Jennison v. Kirk


text: Talk:Jennison v. Kirk

title: Talk:Jennison v. Kirk


text:
Jennison v. Kirk/Opinion of the Court

In 1873, the plaintiff's testator constructed a ditch or canal in Placer County, California, to convey the waters of a ca non and of tributary and intermediate streams to a mining locality known as Georgia Hill, distant about seventeen miles, for mining, milling, and agricultural purposes, and for sale. The ditch was completed in December of that year, and immediately thereafter the waters of the ca non were turned into it. The ditch had a capacity to carry a thousand inches of water, and it is alleged that during the rainy season of the year in California, which extends from about the 1st of November to the 1st of April, the ca non, tributaries, and intermediate streams would supply that quantity, and during the dry season not less than one hundred inches. The intention of the testator, as declared on taking the initiatory steps for their appropriation, was to divert two thousand inches of the waters, by means of a flume and ditch.

In its course to Georgia Hill, the ditch crossed a gulch or ca non in the mountains known as Fulweiler's Gulch, the waters of which had been appropriated some years before by the defendant, who had constructed ditches to receive and convey them to a reservoir, to be used as needed. One of these ditches in the gulch was intersected by the ditch of the testator, and the waters which otherwise would have flowed in it were diverted to his ditch. The defendant thereupon repaired and reopened his own ditch, turning into it the waters which had previously flowed in it, and in so doing cut and washed away a portion of the ditch of the testator, as to let out the waters brought down from the ca non above and the intermediate streams. It is for alleged damages thus caused to the testator, and to restrain the continuance of the alleged injury to his ditch, and any interference with its use, that the present action was brought.

The defendant not only justified the cutting of the testator's ditch in the manner stated, because necessary for the repair and reopening of his own ditch, and to retain the waters of the gulch previously appropriated and used by him, but on the further ground that the ditch of the testator traversed mining claims owned many years before by him, or those through whom he derived his interest, and would prevent their being successfully worked.

It appears from the answer, which the court finds to be correct in this particular, that for many years prior to this action the defendant, or his grantors and predecessors in interest, had been in the possession of a portion of Fulweiler's Gulch, extending from a point about twelve hundred feet below the crossing of the testator's ditch to a point about twelve hundred feet above it, including the bed of the gulch and fifty feet of its banks, on each side; that during this period the ground was continuously held and worked for mining purposes, and as a mining claim, in accordance with the usages, customs, and laws of miners in force in the district; that in working the claim and extracting the gold the method employed was what is termed 'the hydraulic process,' by which a large volume of water is thrown with great force through a pipe or hose upon the sides of the hills, and the gold-bearing earth and gravel are washed down, and the gold so loosened that it can be readily separated; and that the ditch of the testator traversed the immediate front and margin of this gold-bearing earth and gravel, rendering the same inaccessible from the outlets of the gulch, down which they would be washed, thus practically destroying, if allowed to remain, the working of the mining ground.

On the argument, it was admitted that the defendant's right of way for his ditch was superior to the testator's right of way for the one owned by him, being earlier in construction, and the waters of the gulch being first appropriated; and, therefore, that the duty rested upon the testator, and since his death upon his executor, to so adjust the crossings of the ditches as not to interfere with the full use and enjoyment, by the defendant, of his prior right. It was contended that such crossings had been so adjusted by the testator, but were destroyed by the defendant.

It was also admitted that the extension of the testator's ditch, at the place where it was constructed across the claim of the defendant, prevented the successful working of the claim; but as the land over which the ditch passed, and on which the claim is situated, is a portion of the public domain of the United States, it was contended that the right of way for the ditch was superior to the right to work the claim; and that such superior right was conferred by the ninth section of the act of Congress of July 26, 1866. That section enacted,--

'That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and confirmed: Provided, however, that whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.' 14 Stat., 253.

There are some verbal changes in the section as re-enacted in the Revised Statutes, but none affecting its substance and meaning. Rev. Stat., sect. 2339.

The position of the plaintiff's counsel is, that of the two rights mentioned in this section, only the right to the use of water on the public lands, acquired by priority of possession, is dependent upon local customs, laws, and decisions of the courts; and that the right of way over such lands for the construction of ditches and canals is conferred absolutely upon those who have acquired the water-right, and is not subject in its enjoyment to the local customs, laws, and decisions. This position, we think, cannot be sustained. The object of the section was to give the sanction of the United States, the proprietor of the lands, to possessory rights, which had previously rested solely upon the local customs, laws, and decisions of the courts, and to prevent such rights from being lost on a sale of the lands. The section is to be read in connection with other provisions of the act of which it is a part, and in the light of matters of public history relating to the mineral lands of the United States. The discovery of gold in California was followed, as is well known, by an immense immigration into the State, which increased its population within three or four years from a few thousand to several hundred thousand. The lands in which the precious metals were found belonged to the United States, and were unsurveyed, and not open, by law, to occupation and settlement. Little was known of them further than that they were situated in the Sierra Nevada mountains. Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches, and ca nons, and probing the earth in all directions for the precious metals. Wherever they went, they carried with them that love of order and system and of fair dealing which are the prominent characteristics of our people. In every district which they occupied they framed certain rules for their government, by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines; distinct provisions being made for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. They all recognized discovery, followed by appropriation, as the foundation of the possessor's title, and development by working as the condition of its retention. And they were so framed as to secure to all comers, within practicable limits, absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the law-makers, as respects mining, upon the public lands in the State. The first appropriator was everywhere held to have, within certain well-defined limits, a better right than others to the claims taken up; and in all controversies, except as against the government, he was regarded as the original owner, from whom title was to be traced. But the mines could not be worked without water. Without water the gold would remain for ever buried in the earth or rock. To carry water to mining localities, when they were not on the banks of a stream or lake, became, therefore, an important and necessary business in carrying on mining. Here, also, the first appropriator of water to be conveyed to such localities for mining or other beneficial purposes, was recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the condition of miners in the mountains. The waters of rivers and lakes were consequently carried great distances in ditches and flumes, constructed with vast labor and enormous expenditures of money, along the sides of mountains and through ca nons and ravines, to supply communities engaged in mining, as well as for agriculturists and ordinary consumption. Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of these ditches and flumes, and the protection of rights to water, not only between different appropriators, but between them and the holders of mining claims. These regulations and customs were appealed to in controversies in the State courts, and received their sanction; and properties to the value of many millions rested upon them. For eighteen years-from 1848 to 1866-the regulations and customs of miners, as enforced and mouled by the courts and sanctioned by the legislation of the State, constituted the law governing property in mines and in water on the public mineral lands. Until 1866, no legislation was had looking to a sale of the mineral lands. The policy of the country had previously been, as shown by the legislation of Congress, to exempt such lands from sale. In that year the act, the ninth section of which we have quoted, was passed. In the first section it was declared that the mineral lands of the United States were free and open to exploration and occupation by citizens of the United States, and those who had declared their intention to become citizens, subject to such regulations as might be prescribed by law and the local customs or rules of miners in the several mining districts, so far as the same were not in conflict with the laws of the United States. In other sections it provided for acquiring the title of the United States to claims in veins or lodes of quartz bearing gold, silver, cinnabar, or copper, the possessory right to which had been previously acquired under the customs and rules of miners. In no provision of the act was any intention manifested to interfere with the possessory rights previously acquired, or which might be afterwards acquired; the intention expressed was to secure them by a patent from the government. The senator of Nevada, Hon. William M. Stewart, the author of the act, in advocating its passage in the Senate, spoke in high praise of the regulations and customs of miners, and portrayed in glowing language the wonderful results that had followed the system of free mining which had prevailed with the tacit consent of the government. The legislature of California, he said, had wisely declared that the rules and regulations of miners should be received in evidence in all controversies respecting mining claims, and, when not in conflict with the Constitution or laws of the State or of the United States, should govern their determination; and a series of wise judicial decisions had moulded these regulations and customs into 'a comprehensive system of common law, embracing not only mining law, properly speaking, but also regulating the use of water for mining purposes.' The miner's law, he added, was a part of the miner's nature. He had made it, and he trusted it and obeyed it. He had given the honest toil of his life to discover wealth, which, when found, was protected by no higher law than that enacted by himself, under the implied sanction of a just and generous government. And the act proposed continued the system of free mining, holding the mineral lands open to exploration and occupation, subject to legislation by Congress and to local rules. It merely recognized the obligation of the government to respect private rights which had grown up under its tacit consent and approval. It proposed no new system, but sanctioned, regulated, and confirmed a system already established, to which the people were attached. Cong. Globe, 1st Sess., 39th Cong., part iv., pp. 3225-3228.

These statements of the author of the act in advocating its adoption cannot, of course, control its construction, where there is doubt as to its meaning; but they show the condition of mining property on the public lands of the United States, and the tenure by which it was held by miners in the absence of legislation on the subject, and thus serve to indicate the probable intention of Congress in the passage of the act.

Whilst acknowledging the general wisdom of the regulations of miners, as sanctioned by the State and moulded by its courts, and seeking to give title to possessions acquired under them, it must have occurred to the author, as it did to others, that if the title of the United States was conveyed to the holders of mining claims, the right of way of owners of ditches and canals across the claims, although then recognized by the local customs, laws, and decisions, would be thereby destroyed, unless secured by the act. And it was for the purpose of securing rights to water, and rights of way over the public lands to convey it, which were thus recognized, that the ninth section was adopted, and not to grant rights of way where they were not previously recognized by the customary law of miners. The section purported in its first clause only to protect rights to the use of water for mining, manufacturing, or other beneficial purposes, acquired by priority of possession, when recognized by the local customs, laws, and decisions of the courts; and the second clause, declaring that the right of way for the construction of ditches and canals to carry water for those purposes 'is acknowledged and confirmed,' cannot be construed as conferring a right of way independent of such customary law, but only as acknowledging and confirming such right as that law gave. The proviso to the section conferred no additional rights upon the owners of ditches subsequently constructed: it simply rendered them liable to parties on the public domain whose possessions might be injured by such construction. In other words, the United States by the section said, that whenever rights to the use of water by priority of possession had become vested, and were recognized by the local customs, laws, and decisions of the courts, the owners and possessors should be protected in them; and that the right of way for ditches and canals incident to such water-rights, being recognized in the same manner, should be 'acknowledged and confirmed;' but where ditches subsequently constructed injured by their construction the possessions of others on the public domain, the owners of such ditches should be liable for the injuries sustained. Any other construction would be inconsistent with the general purpose of the act, which, as already stated, was to give the sanction of the government to possessory right acquired under the local customs, laws, and decisions of the courts.

This view of the object and meaning of the ninth section was substantially taken by the Supreme Court of California in the present case; it was adopted at an early day by the Land Department of the government, and the subsequent legislation of Congress respecting the mineral lands is in harmoney with it. Letter of Commissioner Wilson of Nov. 23, 1869; Copp's U.S. Mining Decisions, 24; Acts of Congress of July 9, 1870, and May 10, 1872, Rev. Stat., tit. 32, c. 6.

By the customary law of miners in California, as we understand it, the owner of a mining claim and the owner of a water-right enjoy their respective properties from the dates of their appropriation, the first in time being the first in right; but where both rights can be enjoyed without interference with or material impairment of each other, the enjoyment of both is allowed. In the present case, the plaintiff admits that it was incumbent upon the testator or himself to so adjust the crossing of the two ditches that the use of the testator's ditch should not interfere with the prior right of the defendant to the use of the water of the gulch; and it would seem that, so far as the flow of the water was concerned, this was done. Had there been nothing further in the case, the claim of the plaintiff would have been entitled to consideration. But there was much more in the case. The chief value of the water of the gulch was to enable the defendant to work his mining claim by the hydraulic process. The position of the testator's ditch prevented this working, and thus deprived him of this value of the water, and practically destroyed his mining claim. No system of law with which we are acquainted tolerates the use of one's property in this way so as to destroy the property of another. The cutting and washing away of a portion of the testator's ditch by the defendant, this having been done 'in the exercise, use, and enjoyment of his own water-rights, in the usual and in a reasonable manner,' as found by the court, and in order that his claim might be worked as before, was not, therefore, an injury for which damages could be recovered.

Judgment affirmed.

title: Jennison v. Kirk/Opinion of the Court


text: Talk:Jennison v. Kirk/Opinion of the Court


text:
Mining Company v. Tarbet

ERROR to the Supreme Court of the Territory of Utah.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. J. M. Woolworth for the plaintiff in error, and by Mr. Charles W. Bennett for the defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Mining Company v. Tarbet


text: Talk:Mining Company v. Tarbet

title: Talk:Mining Company v. Tarbet