75 Va. 150 | Va. | 1881
delivered the opinion of the court.
There was an entry and survey, by virtue of land office treasury warrant, for Swepson Whitehead of 2,390 acres of land in the county of Princess Anne, made by the surveyor of said county, in April, 1803. A plat and certificate of said survey were duly returned to the general land office, and a patent dated June 20th, 1809, issued from the Commonwealth to the said Swepson Whitehead, who thereupon entered and took possession.
The plaintiff claims to be in possession of the said tract of land, and to be jointly invested with the ownership thereof with his sister Emily Mullins and her infant children, by successive conveyances of the title from the said Swepson Whitehead, the pantentee, to Joshua C. Garrison, the grandfather of the plaintiff, who purchased it for his son James S. Garrison, the father of plaintiff, and paid for it with his money, and dying without having conveyed the legal title to his said son, he continued in the possession after the death of his father, claiming the exclusive ownership of it
The defendants claim to have title to the land upon which they entered and right to the possession by virtue of a deed bearing date the 4th of February, 1869, executed by H. Wells, styling himself governor of Virginia, George Eye, styling himself treasurer ad interim, and William F. Taylor, styling himself auditor of public accounts State of Virginia, claiming to be the board of public works, whereby they granted, bargained and sold, with special warranty, to John M. Frazier and Thomas L. Hall, defendants below and appellees here, for and in consideration of $16,000 in old State bonds, all the right and title of the State of Virginia in and to a tract of land lying in the county of Princess Anne, on Chesapeake bay, Atlantic ocean, Linkhorn bay, Broad bay, and Long creek, and known as the “Desert Tract,” containing five thousand two hundred and fifty-four acres, more or less. The deed purports to have been executed under authority of the act of assembly passed February 28th, 1866 (Acts of 1865-66, p. 160, ch. 44).
There is not a doubt that the tract of 2,390 acres claimed by the plaintiff as the property of himself and his sister Mrs. Mullins and her children (the boundaries of which as contained in the Commonwealth’s grant of 1809 to Swepson Whitehead being clearly established by the survey made in this cause, and other evidence in the record), is included in the said grant of 5,254 acres of the 4th of February, 1869, to said Frazier and Hall. But they claim that the said tract of 2,390 acres embraces and consists of lands which were reserved from grant under land warrant by the act
There can be no question that the lands embraced in the grant to Swepson Whitehead were liable to location by the holder of a treasury warrant as waste and unappropriated lands, prior to the act aforesaid of May, 1780; and that they had never been patented prior to the grant to Whitehead; and the question is, were they excepted or reserved by that act or by any subsequent act of the general assembly prior to the emanation of the grant to Whitehead? This involves the construction of those acts.
It appears that the effect and operation of these acts were brought in question, in reference to the entry and survey made by Swepson Whitehead, in this identical case,, as early as 1804, and received a judicial construction. From a letter copied in the record it appears that the then register, William Price, was in doubt whether he could issue the patent under the said acts of assembly, and sought the-advice of the attorney-general; from whom he received the following letter, addressed to him:
“Richmond, October 22, 1804.
“ Sir—I duly received your favor of the 4th inst., with its inclosures. From what you represent to be the situation of the land surveyed by Mr. Whitehead, and from information received by me of others, it appears to me that these lands fall within the exception of the 6th section of the 86 th chapter of the acts of assembly, as published*155 by Pleasants and Price, and that the safest course will be not to issue a grant. Mr. Whitehead will not be injured by my construction of the law if wrong, because he can apply to our courts for an exposition of the act of assembly.”
Signed, “ Philip Norborne Nicholas.”
The difficulty, it seems, was as to the construction of the-act of assembly. And Mr. Nicholas seems to have been in doubt himself, but thought it safest not to issue the patent, as Mr. Whitehead could apply to the courts in that case, and have the act of assembly judicially expounded. The difficulty was not in reference to the facts. The register seems to have been in possession of them and to have been informed as to the situation of the land, which he communicated to the attorney-general; from which, and the information he had received from others, it appeared to him that these lands fell within the exception of the act. • It is a just and reasonable conclusion that he was informed as to the situation of the land and of all the facts, at least so far as they were adverse to the issuing of the grant, as fully as they are disclosed by this record; and the only doubt was upon the construction of the act, whether lands so situated were within the exception. It appeared to him that they were. But he was not confident that he was right in his construction of the act, and thought that the doubts should be resolved by a judicial construction, and to that end he advised the register not to issue the patent.
The register, pursuant to this advice, declined to issue the patent, and Swepson Whitehead filed his bill in the superior court of chancery for the Richmond district, against William Price, register of the land office, and Philip N. Nicholas, attorney-general for the Commonwealth, the object of which suit undoubtedly was to obtain a patent for his said survey. The papers in this cause were de
And in construing the acts of 1780 and 1796 and 1802, the ■chancelor in 1808 being cotemporary with the men of that .generation, who were conversant with the state of things in the country, which induced the enactment aforesaid, and especially were informed as to whether said lands had been used as a common to all the good people of this Commonwealth anterior to said act of 9th of May, 1780 (in reference
The superior court of chancery, on consideration of the case before it, as we have seen upon all the facts as to the situation and boundaries of the said survey, and as to whether the lands it embraced had been used as a common by the good people of the Commonwealth, which it is fair to presume were presented by the bill, answers and ex-exhibits, came deliberately to the conclusion that there was no evidence in the cause that said survey “ comprehends unappropriated lands on the bay of Chesapeake, or on the sea shore, or on the shore of any river or creek, which have remained ungranted by the former government, and which has been used by the good people of this Commonwealth.” We do not understand the court to say that there was no evidence on the subject before it; for the presumption is that the bill, answers and exhibits gave full and ample disclosure of all the facts that existed, and in all probability fuller and clearer and more reliable, especially as to the question whether the lands embraced in Whitehead’s survey had been used as a public common, than any evidence after the great lapse of years that can now be produced. We understand the court as holding, not that there was no evidence, but that there was no evidence that the lands excepted from entry, survey and grant by treasury warrant were embraced in Whitehead’s survey. To reach that conclusion the court had necessarily to construe the act of 1780, and which was inserted as section 6 in the act of 1796. The act of 1802 is in reference to lands on the western waters.
The chancellor assigned also a reason, which we do not mean to omit, though it seems to have no bearing upon the issue and throws no light upon it, nor even tending to support his conclusion which he had just decidedly announced, or to show that it was erroneous, but as an additional reason, as it seems (which was supererogatory), why his conclusion should be carried out in a decree. It is, “ that if the said survey do contain such lands, any grant issued thereon will be void as to such lands.” This opinion is not expressed with regard to the grant for the whole survey, but only as “to such parts as should be shown to lie on the bay, or which embraced the shores of the Atlantic ocean, or the shores of rivers or creeks; the opinion is expressed that for such parts the grant will be void, notwithstanding the decree directs the patent to be issued for the survey. But as the right of Whitehead to his patent, and whether it could be lawfully issued, was the question directly in issue, and which was decided by the court, it would seem to be a res adjudicata, ■and that whether the patent was lawfully issued is no longer an open question.
But if this is not so, the decision, we think, under all the ■circumstances, is entitled to great weight, for the reasons .already given, both as to the facts of this case and as to a
But when riparian rights had not been acquired by individuals, the public right of fishing existed, and was common to all the people of the State. But by the general act for establishing a land office, and granting waste and unappropriated lands, passed May, 1779, third year of the Commonwealth, 10 H. Stat. at Large, ch. 13, p. 54, any person holding a land warrant was authorized to locate it on any waste and unappropriated lands, and the shores of the Chesapeake bay, of the sea, or of the rivers and creeks, if located there, would be included in his grant down to ordinary low water mark, as they were not excepted by said act; and the remaining public right of fishery, common to all the people of the State, thereby restricted and taken away, the act of May, 1780, was passed in order to preserve that right of common to all the people of the Commonwealth, as plainly appears, we think, from the preamble to the act. It was a matter relating only to riparian rights,
The act of May, 1780 (10 Hen. Stat. at Large, p. 226), is as follows: All unappropriated lands on the bay of the Chesapeake, or the sea shore, or on the shores of any river or creek, in the eastern parts of this Commonwealth, which have remained ungranted by the former government, and which have been used as a common to all the good people thereof, shall be and the same are hereby excepted out of the said recited act (“the act for establishing a land office and granting waste and unappropriated lands”). “ And no grant issued by the register of the land office for the same,” &c., “ shall be valid or effectual in law to pass any estate or interest therein.”
“Lands on the bay” does not mean anything more than lands on the “shores,” and if they mean lands bordering on the bay or the shores of the sea, &c., what is the limit 7 'How far may they extend back and still be on the shores 7 May they extend back three or four miles from them and still be on the shores ? If so, why may they not extend back thirty or fifty miles and still be on the shores by which they are bounded? They are all unappropriated lands that are intended to be reserved from entry and grant, and although they have areas of hundreds of miles bounded by the shores, if that construction be right they would be exempt from location, and must be kept as a common for fishing, fowling and hunting. Such could not have been the intention of the legislature in 1780, or subsequently. It is in the face of what is known to' have been the public policy, to' have the country settled and the waste lands appropriated.
The preamble shows that the act was intended to reserve to the poor and others their accustomed privilege of “fish-. ing.” It does not even include fowling and hunting, as some of the subsequent acts do. But they include what is
They regarded the rights of common so reserved as aquatic, rather than land rights. In their report to the legislature they placed them under the caption of “ water courses.” And in the table of contents which they prefixed to the chapter, as they were authorized to do by the law of their appointment, they specify, 1st. “ The shores of the bay and seas and beds of rivers ungranted, to remain in common.” And section 1, as embraced in their report under the above caption, retains the act of 1780, as modified by the act of 1802, and adds that “ any of the people of this State may fish, fowl and hunt on the said shores and beds.” As the said revisors were not authorized to propose new laws, though they were the discontinuance of such as were not useful and proper, but to collate the different statutes on the same subject and reduce them to one, to strip the statutes then in force of useless verbiage, and to abbreviate them as far as consistent with perspicuity, without altering their sense, they must have construed the reservation made by said acts to be only of such lands as constituted the shores of the bay and the sea, and the shores and beds of the creeks, as had been used as a common by the people of the State for fishing, fowling and hunting, which would, of course, embrace the lands bordering on the shore, which were necessary for the enj oyment of these privileges. Such was evidently the construction of the revisors, and their report was adopted by the legislature; so that such must also be regarded as the legislative construction.
And such seems to have been the judicial understanding of said acts. In French v. Bankhead, supra, 136, 139, Allen, J., delivering the opinion of the whole court, describes what
Mr. Whitehead, who appears to have been a man of high character and an intelligent lawyer, must have known of the existence of the acts of May, 1780, and the act of 1796 under which his location was made, and been familiar with its provisions, and he would have been naturally disposed to have his survey made so as not to embrace lands which were exempted from grant by the acts aforesaid. There is no verbal proof of his special directions to the surveyor as avowed in the bill, but the fact that he had the survey so made as that a sufficient space was left between the boundaries of his survey and the shores of the Chesapeake bay, of the sea and the rivers and creeks for fishing, fowling and hunting, shows more conclusively than words could, especially after this great lapse of time, that such were his instructions to the surveyor. George C. Garrison in his first deposition describes the public lands as consisting of the beaches and sand hills and bushy ground bordering the shores of the Chesapeake bay and the Atlantic ocean, beginning at the green hills on the Chesapeake bay and running around the light-house and along the Atlantic coast, the area of which he estimates from ten to fifteen hundred acres. Hooper C. Hicks, the general agent of the defendants, and their witness, states the precise area to be 1,404 acres 1 rood and 15 perches. Ho part of these lands seem to be embraced in Whitehead’s survey. Mr. Garrison, in a
We are of opinion that the object of the act was to reserve the right of fishing, and by a liberal construction, of fowling and hunting, being only coextensive therewith, as a common right to the people of the State, as an aquatic right on the public waters, which embraced the shores and the lands adjacent to them, so far as necessary for the enjoyment of those rights, and to that extent excepted them from location and grant by land office treasury warrant; and that it does not satisfactorily appear from the record that any such lands are comprehended by the Common
But the court below was of opinion that a court of equity had not jurisdiction of this case, and partly on that ground dismissed the plaintiff’s bills.
By section 64 of chapter 112 of the Code of 1860, p. 545, it is expressly provided that “the Commonwealth, or any other party, desiring to repeal in whole or in part any grant of land heretofore or hereafter issued, because it was obtained by fraud, or issued contrary to law or to the prejudice of such party’s equitable title, may file a bill in equity for that purpose.” And the proceedings are required to be as in other suits in equity, “ and on the final hearing the court shall make such decree as law and equity may require.”
We do not mean to say that every grant of the Commonwealth of lands which had been previously patented, is issued contrary to law, in the sense here used. But the grant to the defendants was made by the board of public works for the Commonwealth, and who had no power or authority except by the act of February 26th, 1866. That act only authorized them to grant the Commonwealth’s title to unappropriated lands on the bay of the Chesapeake, the shore of the sea, &c., which remained ungranted according
We deem it unnecessary to protract this opinion by the consideration of the interesting question as to the general jurisdiction of a court of equity, to interpose by injunction to stay waste or the destruction of the substance of an estate, whilst the question of title is undecided, which has been argued with ability and learning or both sides, as we think the jurisdiction is clearly maintainable upon the ground oil which we have placed it.
The plaintiff, and his sister, and her children have the legal title to only one-third of the land in dispute, but have an equitable title to the remaining two-thirds, the legal title to which remains in the other heirs of Joshua C. Gar
We are of opinion that the plaintiff’s bill as amended is not liable to the objection of multifariousness, and the demurrer cannot be sustained on that ground, and that the decree of the court below dismissing the plaintiff’s bills, whether upon the demurrer, or on the merits, is erroneous; and we are of opinion that the same be reversed, and that the cause be remanded with instructions to reinstate the plaintiff’s bills and the injunction, and for further proceedings to be had therein in conformity with the principles declared in this opinion.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that it was error to dismiss the plaintiff’s bills either upon the demurrer or upon the merits, or to sustain the demurrer to the said bills upon the grounds of multifariousness. It is therefore ordered and decreed that the decree of the circuit court of the city of Norfolk, sustaining the demurrers to the bills of plaintiff, and dismissing said bills, be reversed and admitted; and that the
Decree reversed.