44 U.S. 650 | SCOTUS | 1845
Lead Opinion
delivered-the opini'on.of the court.
This case conies before this court on a writ of error to the Supreme Court of the state of Alabama..
! The plaintiffs brought an action of ejectment against the defendants, in the Circuit Court for the county of Mobile, in said state; and upon the trial, they read'in evidence the following claim and'entry: 44 To the register and receiver of the Land-office at St. Stephen’s: You will please'to take’notice, that I,. James jEtheridge, of Mobile county, Alabama, claim the right of pre-emption, under the -act of Congress, of the 29th qf May, ,1830, to- the’ south-west quarter-section 22, township 4,'-range 1 West ;” 'and that, on the 28th day of January, 1831, the said James Etheridge made the necessary proof that he . had planted and cultivated said quarter-section in the year 1829, and remained in possession until' after the 29th day of May, 1830. The plaintiff also read in evidence a patent from the United States, bearing date the 30th day of May, 1833, reciting that, “Whereas James Etheridge, of Mobile county, Alabama, has deposited in the General Land-office of the United States, a certificate of the register of the Land-office at St. Stephen’s, whereby-’it appears that payment has been;made by the. said James Etheridge, according to the provisions of the act of Congress of the 24th of April, 1820, entitled 4 An act making further provision for the sale of the public lands,’ for the south-west quarter-of section -22, in township 4, south of range 1 west, in the district of lands subject to sale at St. Stephen’s, Alabama,- containing ninety-two acres -and sixty-seven hundredths of an acre, according to the official plat of the survey of the said lands, returned to the General Land-office, by the surveyor-general, which said tract has been purchased by the said James Etheridge:
44 Now know ye, that the United States-of America, in consideration of the premises, and in conformity with the several acts, of Confress, in such case made and provided, have given and granted, and y.these presents do give and grant, unto the said .James Ethéridge, pad to his heirs, the said tract,' above described,” &c,
The/defenclants gave in evidence to the jury fee following claim -■•and-enjty, made by fee said William D. Stone.: “To fee register' -and receiver of fee Land-office at St. Stephen’s, Alabama: You will please to take notice, that I; William D. Stone, of. Mobile county, Alabama, claim the right of pre-emption,'under the act of Congress, of the 29th-of May, 1830, to the fraction situated in the west part of the south-east quarter of section 22, in toymship 4, range 1 west of 13.” And on fee 25th of March, 1831, he made the necessary affidavit and proof to show feat he had planted and cultivated the above described tract of land, according to said act of fee 29th of May, 1830. And they also gave in evidence, fee following patent: “ The United' States of America to all to whom these presents shqll come, greeting: Whereas William D. Stone, of Mobile, has deposited in fee General Land-office of the United States, a certificate of the .register of the Land-office at St. .Stephen’s, whereby it appears feat full payment has been made'by the said William Df Stone, according to fee act of Congress, of fee 24th Of April, 1820, entitled ‘.An act making further provision for the sale of fee public lands,’ for fee south-east subdivision of fractional section 22, in township 4 south, of range 1 west, in fee district of lands subject to sale at St. Stephen’s, Alabama, containing one hundred and ten acres and fifty-one hundredths of an acre, according to fee official plat of fee surveyor of. said land, returned to the General Land-office by fee surveyor-general; which said tract has been purchased by fee said William D. Stone: Now know ye, that fee United States of .America, in consideration of the premises-, and in conformity wife fee .several acts of Congress in such case made and provided, have given and granted, and by these presents do give and grant, unto fee said William D. Stone, and his heirs, the said tract above described,”
And the parties “ not wishing to encumber the record, by copying from the book entitled ‘ General Acts of Congress respecting the sale and disposition of the public lands, with instructions'issued, from time to time, by the secretary of the Treasury, and commissioner of the General Lánd-office,, and official opinions of the attorney-general, on questions arising under the land laws;’ and which instructions in the 2d vol., part the 2d, prepared and printed by the Senate, agree that said book may be used by either party, and any thing therein contained read as illustration of the practice' of the Land-office, and construction that the acts of Congress had received in that'branch of the government. The same work can be referred to', by either party, in the Supreme Court, for the purpose aforesaid. The parties further agree that the exhibit,' No. 2, being the official plat of the survey 'of the township described in the patents of both plaintiffs and defendants, between pages 134 and 135, shall be referred to as if the same was incorporated with, and formed a part of the record-in this cause.” This statement furnishes all the evidence deemed necessary and pertinent to the investigation of the questions involved in the principal' instruction of the Circuit Court, to the jury, on the trial of the cause; which instruction is as follows: “ The court further instructed the jury, that, if said fractional section, No. 22, was capable of being subdivided into an entire southwest. quarter-section, and -t\yo half-quarter-sections, leaving a residuum, as shown by said map and evidence of the county surveyor, still the surveyor-general was not required, under the acts of Congress, providing for the subdivisions of the public lands, and the instructions of the secretary of the Treasury, made under the act of the-24th of April, 1820, entitled .- An act, making further provision for the sale of the public lands,’ to make in his subdivision of. the same, either such quarter-section, or half-quarter-sections; but might • lawfully subdivide the same into two lots, A and B, as indicated by said plat of 1832; and that under said evidence, Etheridge’s title would not hold the whole south-west quarter of. said fractional section, but only lot A; and that Stone’s.title would.hold lot B, being, the balance of said fractional section.” To this instruction the plaintiffs excepted.
Upon the construction here given to the act of Congress,, and to the instructions of the secretary of the Treasury thereon, referred to in the above instruction of the court, depends the whole controversy between the parties to this suit.. The 1st section of the act of'Con? gress, above-referred to, is in these words: “That from and after
The settled .policy of Congress has been to survey the public lands in square figures, running the lines north and south, and east and west, and to extend the subdivisions authorized by law, as far as practicable, in square figures, to the lowest denomination.
The second section of the act of the 18th of May, 1796, chap: 29, directs, that the public lands “ shall be divided by north and south lines, run according to the true meridian, and by others crossing them at right angles, so as-to form townships six miles square, unless where the line of the late Indian purchase, or of tracts of land heretofore' surveyed or patented, or the course of navigable rivers may render it impracticable, and then this rule shalTnot be departed from further than such particular circumstances may. require.” After directing how townships should be divided into sections, it directs that “fractional townships shall be divided into sections in manner aforesaid, and the-fractions of sections shall be. annexed to, and sold with, the adjacent entire sections.” 1 Story’s Laws, 422. The lowest denomination authorized by this act, was sections; but the direction -to the surveyor was to divide the fractional townships ■ into as many sections as the particular circumstances-would permit. And so by the 1st section' of the act of the 24th of April, 1820, the surveyor is directed to subdivide fractional sections, containing one hundred-and sixty acres and upwards, into as many half-quarter-sections as practicable, by running the lines north and south. And .this statute conferred no' power on the secretary of the Treasury to make any regulation, by which a fractional section might be divided into any quarter, or other subdivision than half-quarter-sections. The only authority he acquired by the statute, was to make such rules and regulations as would enable the surveyor to make the greatest number of half-quarter-sections out of a-fractional section, by running the lines north and south, or east and west; and. this
Had the surveyor-general subdivided the fractional section 22, now in controversy, according to law, there would have been two half-quarter-sections in the south-west quarter, making that quarter complete, a fractional section .in the south-east quarter, and a fractional section in the north-east and north-west quarters, making four tracts or subdivisions instead of two, as returned by him to the Land-office of the district: None of the lines, subdividing sections, are required by law to be made by actual survey1, and marked on the land; but they are to be delineated on the township plats, according to the 2d section of the act of the 11th of May, 1805, chap. 74, referred to in the act of the 24th of April, . 1820, (2 Story’s Laws, 961.) When the township and section lines. are run,, and the comers marked according to law, the quarter-section lines are ascertained on the plat .by protracting lines across the section north and south, and east and west, equidistant from the section lines; and so of other subdivisions. And a surveyor going on the land to ascertain the boundary .of a quarter, or half-quarter-section, would do it with, as much ease and certainty as -if it had been delineated on the plat by the surveyor-general. Extending ■the subdividing lines on the township plats, is not* therefore, essentially necessary to enable the register to sell the land, or to give title to the purchaser. The register is as much bound to know what is a legal subdivision of á section, or fractional section, as is the sur-', veyor-general.
Because he is directed by law to offer the lands, when sold' at public sale, in half-quarter-sections. To enable him to perform this duty, he must know what a half-quarter-section is.- And before he can offer a fractional section for sale, he must see that it has been subdivided, so as to enable him to. offer ^as much of it in half-quarter-sections as practicable. When Etheridge applied to purchase the south-west quarter of this fractional section at private sede, as he had a right to do, under the act granting pre-emption rights, the register was bound to know whether such a subdivision could be obtained according to law. A bare inspéction of the township plat must have satisfied-him, in this case, that it was practicable to obtain an entire quarter-section in the south-west comer of the'fractional section 22; The 1st section of the act of the 24th of April, 1820, directed that this fractional section should be divided into as many half-quarter-sections as practicable, by lines north and south; and the instructions given by the secretary of the Treasury under this act, directed that it should be divided into half-quarter-sections, by north and south, or east and west lines, so as to preserve the most compact and convenient forms. .
T1 ;re is nothing in any of the acts of Congress, nor in the instruc■tions of the secretary of the Treasury, to authorize the division of
Thus it appears, that neither the claim of. Etheridge, filed with the register, ffie certificate of purchase issued by him, nor the patent issued to Etheridge by the commissioner of the General Land-office, is founded on the division of the fractional section made by thé surveyor-general ; but the whole appears to be founded on the subdivision of the fractional section into one quarter-section, and two fractional sections, made by actual survey on the land. It is true that, in undertaking to state the quantity of land contained in the quarter-section, reference is made to what is there called the official plat of the lands returned to the General Land-office by the sur
The act of the 29th of May, 1830, to grant pre-emption rights to settlers on the public lands, chap. 209, appropriated this quarter-section of land, on which Etheridge1 was then settled, to his claim, under the act, for one year, subject, however,-to be defeated byhis failure to comply with its provisions. During that time, this quarter-section was. not liable to any other claim, or to be sold-to any other person, except at public sale, under the proclamation of the President of the United States; and that Etheridge had a right to prevent, by paying for it as directed by the act. - And as he has complied with all the requisitions of the act, as far as the mistakes and illegal acts' of the miriisterial officers of the government would permit, he has acquired a good title by his patent, against the United States, for the whole of said south-west quarter-section. The remaining question is, whether Etheridge’s title is good against Stone’s patent? Stone claimed “the right of pre-emption, under the act of Congress of the 29th of May, 1830, to the fraction situated in the west part of the south-east quarter of section. 22, in township 4, range 1 west.” This claim confined his pre-emption right to-that specific fraction.' And although the act gave to every settler on the public lands the right of pre-emption of one hundred and sixty acres, yet if a settler, happened to be seated on a fractional section, containing less than that' quantity, there is no provision in the act by which he could make up the deficiency, out of the.adjacent lands, or any other lands. The only case provided for in the act, by which the pre-emptioner had the right to enter land outside of the quarter, or fractional section, on which he was settled at the passage of the act, is the case provided for in the 2d section. When two- or more persons were settled on the same quarter-section, it mi¿ht be divided between the two first settlers, and each be entitled to a ¡pre-emption of eighty acres of land elsewhere, in the same land-district. But, in this case, Stone was not only permitted to take
In the case of Lindsay and others v. Miller and others, 6 Peters, 674, the plaintiffs in ejectment claimed title under a patent, dated the 1st of December, 1824, founded on an entry and survey made in the" same year. The defendants claiméd title under an entry,, made in January, 1788, upon a military warrant, for services rendered in the Virginia state-line, and a survey made thereon, in the same month, and recorded on the 7th of April, of the same year, and a patent, issued by the state of Virginia, in March, 1789. This land lay in what is called the military district, between the rivers Scioto and Little Miama, in the state of Ohio. This district had been re-sérved, in the deed of cession, dated the 1st of March, 1784, made by Virginia to the United States, to satisfy the claims of the Virginia troops on continental establishment, in the event of there not being ■ sufficient good land for that purpose, in a reservation previously. made by Virginia, on the south-east side of the. Ohio river. A1--though die defendants proved possession, under this title, for upwards of thirty years, the entry, survey, and patent, were adjudged by the ' court to be void, on the ground that the land had been reserved for • the satisfaction of military warrants, granted for services of the Virginia troops on continental establishment,. and was -not, therefore, subject to entry upon warrants for services rendered in the Virginia state-line.
In the case'before the court, all the land in the south-west quarter of the fractional section had been appropriated, by law, to satisfy Etheridge’s claim, and no other land could be substituted in lieu of that quarter-section, for any part of it, Stone’s claim- arose under the same law, and by the same provisions was confined to the fraction in the west part of the south-east quarter of the same section, and gave no right to land elsewhere.' So much of the patent to Stone as purports to grant land within the south-west quarter .of the section, is, therefore, not only an appropriation of land to his claim, not subject to .if according to the act, but which,by the same act, had been appropriated to another Naim, arising under the same act, concurrent with and equal in all respects to Stone’s claim. How, then, could his patent give him title to land, that was not subject to his claim; land that he never had legally claimed; and to land.that, by law, had been appropriated to and claimed-by another? It seems to us, this case is clearly within the principles settled in the case above referred to, and that the patent granted to Stone is void, for so much of the land included in it as lies, within the said south-west .quarter of the fractional section, and for which Etheridge holds a patent.
It has been insisted, however, that as Etheridge only paid for the quantity of land mentioned in his patent, that he can have no right
Upon a full view of the whole case, it is the opinion of the court, that.the judgment of the Supreme Court of Alabama be reversed.
Dissenting Opinion
I feel myself bound to dissent, from the foregoing opinion — for the following reasons:
1. By the act of 29th May, 1830,.a. preemption right settler then in possession was • entitled to enter with' the register of the Land-office in the district where the land lay," by legal subdivisions, not more ffian one hundred, and sixty acres.
The controversy before us turns, partly, on what was the true “ legal subdivision” of fractic nal section 22, containing two hundred and three acres: This must be ascertained from the laws on the subject éxisting in 1830. The lines of public surveys actually run and marked in the field, are township extensions, and section boundaries; the'lines dividing sections mto quarters,, half-quarters, (and quarter-quarters since 1832,) being only indicated, or depicted upon the township plats returned and recorded in the office of the register.
The act .of 26th March, 1804, provides for the- first time for the sale of the public lands in qúarter-sections; and also directs (sect. 9) that fractional sections shall be sold entire; or by uniting two or more together. The act of February 11th, 1805, directs with absolute precision, leaving no discretion on the subject, the manner in which foil sections shall.be divided info quarters: but makes no. provision for thé subdivision of fractional sections. It was-not until the passing of the act of April 24, 1820, that these were authorized to be'subdivided; and then only when they contained more than one hundred and sixty acres. The act”of 1820, in directing the manner in which full sections shall be subdivided into half-quarters, or eighty acre' lots, is as absolutely.precise in its provisions as that-of 1805; and, as in the former case, gives no discretionary power so far as these subdivisions are' concerned — -but in authorizing the subdivision of fractional sections-containing one hundred and sixty acres and upwards, it directs that they shall in like manner, “ as nearly as practicable,” be subdivided into half-quarter-sections, or eighty-acre lots — '!C under such rules and regulations, as may be prescribed by the secretary of the Treasury.” Under the discretionary power here given, - rules 'and regulations were prescribed by Secretary Crawford, on the 10th of June, 1820, (2 Land Laws and Opinions,
In January, 1826, (2 Land Laws, p. 583, No. 841,) further instructions were given on this-subject, to the surveyor-general at Washr ington, Mississippi. . The commissioner says, among other things — • “ A fractional section is a tract of land not bounded by sectional lines on all sides, in consequence of the intervention of rivers, &c,, and containing a less quantity than six hundred and forty acres.”
Speaking of'the regulations, and the circular letter founded on them, the commissioner continues: “ The substance of the rule is, that fractional sections of one -hundred and sixty acres and upwards are to be subdivided by east and.west, or north and south lines,-at the discretion of the surveyor, so ás to preserve the most compact and convenient forms. Each lot to be, as nearly as practicable, a half-quarter-section, containing a quantity of eighty acres; sometimes rather more, sometimes less, as the locality demands.”
According to these instructions, fraction No. 22 was divided: two precise eighty-acre tracts could not be made out of it; half-quarters, or eighty.acres, was the least quantity that could be sold by the act of 1820, if in regular form and part of a full section ; but if in irregular fornq and the fraction of a section, containing upwards of one hundred and sixty acres, then it was left to the secretary to cause it to be subdivided according to his own regulations, into two or mpre tracts, ■ approaching, “ as nearly as practicable,” to eighty acres each. lie directed the subdivisions to be made in all cases so as to preserve the most compact and saleable forms, accommodating the' tracts to the sides of rivers, or other legal intervening boundaries to subserve the best interests of the government. This practice has prevailed as the governing rule for nearly a quarter of a century, and is now in full operation — large quantities of land have been sold thus subdivided; and great- quantities yet remain to be sold. I speak on information derived from the commissioner of the General Land-office. The idea of taking out of a fraction a quarter-section of one hundred and sixty acres, if found there, as if the section was entire, and leaving surrounding strips of a few acres each, unsaleable
2. Suppose, however, it was doubtful whether they were or not authorized, is it admissible for the courts of justice, after such a lapse of time, to call in question the construction given to the act; to disturb so many titles taken under it — and to break up existing subdivisions? The sole authority to which the act referred for its exposition, and the prescribing of rules- and regulations to carry it into execution, was the secretary of the Treasury. His jurisdiction was subject to no supervision-; he was constituted the only judge, from whose decision there was no appeal on part of purchasers; they were .compelled to buy in the form; and quantity, the lands were offered for sale, or not be permitted to purchase at all. The secretary having adjudged and settled the construction of the act according to his views of its true meaning, and this coeval with its passage — a strong circumstance: the government in its executive and political departments, and the community at large concerned in purchasing from the government, having acquiesced without complaint, recognising the construction as the tru.e one, through' so. great a lapse of years, it is'now supposed by me,-the duty of this court, on the question being presented here, and. that for the first time, to acquiesce also. That these subdivisions are for the best interests of the United Statés is manifest; all others have abided by them, ¿nd so should the plaintiff.
If one of our own judgments made in 1820, coeval with the statute, had produced similar consequences; if many thousands of titles rested on it, (as there surely'do on Mr.'Crawford’s instructions,) I should feel myself wholly unauthorized, at this day, to overthrow the decision, however doubtful I might think it to be. The conservative . rule of communis error fadt jus, is universal in courts of justice, in regard to their own judgments, under such circumstances; and'undoubted' judicial propriety requires its adoption, as it seems to. me, when dealing with the decision of the secretary in the present instance. This course is peculiarly due to the repose of titles, and the stable maintenance of an established system in a great department; a system that cannot be changed in this respect without much expense,. confusion, and delay, in the'administration of that de--partment.
3. But suppose the secretary was mistaken, and the subdivision, of fractional section 22 is illegal; what then is the plaintiff’s case ? His title is a patent; on his legal title he must recover, therefore he
4. The case does not stop here: Stone’s patent is elder than Efheridge’s; the same plat is referred to.in each; Stone’s is for the one hundred and ten acres and fifty hundredths east of the red line., This is not disputed. To overcome it, Etheridge’s patent must be supported by a legal entry for’ the same land, elder than Stone’s patent. As already stated, until Etheridge paid his money, he could have no legal entry from which to date his title. There being no such subdivision existing in law -as the south-west quarter of fractional section 22, when Etheridge'presented his occupant claim, he could not be permitted to enter in .that form, or for that quantity. Such was the express instruction of May 31, 1831, (2 Land Laws
_ No. 486 is a-general circular, dated September 14, 1830, on the same subject in part. * Instruction 8 directs :• “ Although a quartersectiori may be found to contain rather more than the ordinary quantity of one 'hundred and sixty acres, the right of pre-emption is extended to the full quantity of such quarter-section.” In the language, therefore, pf -the General Land-office, the south-west-quarter of fractional section 22, called for in Etheridge’s patent, is as well known by its designation, as if the section was entire. This the Instruction No. 497 above, explains, where the subdivided quantity is less, to be a “ technical” quarter also, as well as'if .the quantity had been more. But if there be uncertainty, here, as in former cases, We must refer to the plat and quantity to explain the uncertainty. This course was pursued in the case of McIver v. Walker, 9 Cranch, 173, and again in 4 Wheaton, 444. There the plat was held to control the face of. the patent, and-fixed a different locality, because Crow creek -was laid down on the plat, nearly through its .centre; the location certificate copied in the patent, as in this case, called for-a beginning, and for courses from that point, running off .from -the creek, which was not named as being crossed by the lines;' yet this court disregarded the calls, and held the land .lay on both sides of the creek, as indicated in the naked plat. It was a much weaker case than the present. In patents of the United States, from their-earliest date down to this day, nothing is referred to but num
Much stress is laid on the fact that the half-mile post is found on the.south boundary, of section22. The- same line-marks are. uniformly made. on all1, sectional lines,, regardless'of fractions': so it would have been done had thé fraction 22 been for less than .one hundred,-and sixty acres, and- not subjected to subdivision. The section south may . have been, entire; and the corner post necessary for the purposes^ of that section. •
■ Another difficulty stands in the way of the plaintiff’s recovery. Stone’s .patent is the elder; it is admitted .it covers the land in dispute — -the patent passed the-perfect and • consummate title-; in an action.‘of ejectmentthe patent is'conclusive, as was held by this court in Wilcox v. Jackson, and Bagnell v. Broderick, 13 Peters, 516, 450. You can only go behind it, and give it earlier date, from a" precise legal entry for the same land made by the grantee, to overreach an elder .patent; as this court held in Ross v. Barland, 1 Peters, 655. We have seen Ethértdge did not enter the land in dispute when he paid -his money, and took -his patent certificate. To overthrow Stone’s patent, we must rely on the preference right to enter. At best,-it is. á remote and doubtful equity; Stone paid for the land, (and.if the assumption be. true,) has an equity attached to it for his purchase m’oney; presenting arcase of conflicting equities,s with which a court of law cannot deal.. In the language of'this court in Baghell v. Broderick, "we are bound to presume for the purposes of this action; that all previous legal steps had been taken by Stone to entitle himself to the patent, and.that he had the. superior right to obtain, it, notwithstanding the claim set up by Etheridge; and having obtained the'patent, Stone ¿áti the best title known to a court of law, to wit, the fee.” 'There a much more imposing equity than .Etheridge can pretend to, was set up. In no respect, therefore, is there .any ground for. reversing, the decision of the Supreme Court of Alabama, a*, is. supposed by me.
In.,the case of Brown et ux. v. Hunt,. Mr. Justice Daniel dissents, from the opinion of the court, and concurs in opinion with Mr. Chief Justice and, Mr. Justice CatroN.