24 Ala. 521 | Ala. | 1854
By the act of the 11th of February, 1848 (Pamphlet Acts 36), the City Court of Mobile was invested with the same jurisdiction as the County Court as to civil actions. By the act of 1801 (Clay’s Digest 291 § 5), jurisdiction was given to the County Court, of all actions of a civil nature, excepting real actions, actions of ejectment, and trespass quare clausum fregit; and by the act of 1819 it was provided, that the County Court should have concurrent jurisdiction with the Circuit Court in all actions of assumpsit, case, &c, (Clay's Dig. 291 § 1). The
Neither do we think that the court committed any error, which is available here, in sustaining the demurrers to the several pleas as shown by the record. The fourth plea i-s bad, as the use of water for nine years confers no right.
The fifth pica is also bad, upon the doctrine laid down by this court at the present term, in the case of Stein v. Burden, in which it was held, that the several acts of the Legislature referred to in this plea, conferred no right to the use of the Avater.
The facts pleaded in the other pleas, could all have been given in evidence under the general issue; and it is the rule in this court, that when that is the case, the sustaining of a demurrer to it is not an error for which this court will reverse.—Shehan v. Hampton, 8 Ala. 943.
It is urged, however, that the declaration is defective, in not showing hoAv the defendant, Stein, diverted the Avater from the creek ; and also, because the injury alleged Avas to the mill privileges, without averring the existence of a mill. The first objection avc do not think can be sustained. There may be cases, in which a statement of the injury in general terms has been held bad (3 Leon. 13); but the correctness of this decision is evidently doubted by Mr. Chitty (2 Chit. Pl. (6 Amer, ed.) 190, n. n) : and LeBlanc, J., in The Mersey & Irwell Nav. Co. v. Douglass, 2 East 490, says : “It Avould have been sufficient to have stated, that they diverted the water aboA'e the navigation of the plaintiffs; by means of
Neither is there anything in the other objection. The gist of the action is, the invasion of the right; and whenever the act complained of is shown by the evidence to be of such a character as would admit, by its repetition or continuance, of the foundation of an adverse right, there need be no actual damage.—Parker v. Griswold, 17 Gonn. 288; Stein v. Burden, at the present term.
On the trial, plaintiff below claimed under a patent from the U. States, which recited, that whereas George W. Ashby had deposited in the General Land Office of the United States a certificate of the register at the land office at St. Stephens, “ whereby it appears that full payment has been made by said Ashby, according to the provisions of the act of Congress of 24th of April, 1820, entitled an ‘act making further provisions for the sale of the public lands,’ for sub-division north of Chatauque Creek, of the south-east quarter of section twelve, township south, of range two west, containing seventy-two r20°0 acres according to the official plat of the survey of said lands, returned to the General Land Office by the Surveyor General; which said tract has been purchased by the said George W. Ashby. Now know ye, that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress in such case made and provided, have given and granted, and by these presents do give and grant, unto the said George W. Ashby, and to his heirs, the said tract above described; to have and to hold the same, together with all the rights, privileges, immunities and appurtenances, of whatever
Evidence was offered showing that the south-east quarter section, referred to in the patent, had been divided into two irregular subdivisions, making Chatauque Creek the dividing line; that the creek did not run through the quarter section, as is laid down in the map of the Surveyor General,. but crossed the dividing line between sections twelve and thirteen, as shown by the diagram in the statement of the case.
The charge of the court was, that if the jury believed that the United States intended, by its patent, to grant to the plaintiff all the land lying on the north side of the creek, in the south-east quarter of section twelve, and that it extended to the whole of the lands on such north side, then Ashby was entitled to all the lands north of the creek down to the section line.
Regarding this charge as equivalent, under the circumstances, to instructions that the patent conveyed all the land in the quarter section north of the creek, we proceed to an examination of its correctness in that aspect.
It is insisted by the plaintiff in error, that the division of the quarter section, as made by the Surveyor General, was void, as being in contravention of the acts of Congress in relation to the survey of the public lands; and that the patent, calling for a sub-division thus made, was illegal and void.
The act of Congress referred to in the patent, is that of 24th April, 1820 ; and its provisions require, that fractional sections, containing upwards of one hundred and sixty acres, should be divided, as nearly as practicable, into half quarter sections, by running the lines north and south (2 Statutes at Large 566), and east and west, according to the instructions of the Secretary of the Treasury, — Public Land Laws, 2 Part 810-
Section twelve was a fractional section, containing more than one hundred and sixty acres ; and whether the creek run through the south-east quarter, as is laid down in the plat of the Surveyor General, or as claimed by the plaintiff below, is entirely immaterial, so far as the present inquiry is concerned, as, in either event, that quarter section could
As to what the plaintiff took under his patent, that is equally clear. He had purchased the sub-division north of Chatauque Creek. The reference in the patent, as to the number of acres, was not intended to govern as to the land actually conveyed, but simply to inform the land officers as to the amount of purchase money to be paid by the buyer. The true rule, in relation to the construction of deeds and patents, is, that where a subject-matter is found which may satisfy either part of a repugnant or contradictory description, but not the whole, that part of the description must prevail which is presumed to express, with most certainty, the intention of the parties. — 3 Cowen & Hill’s Notes to Phil. £v., 1378, and cases there cited. In designating lands, certain boundaries are of more importance than quantity (Wing v. Burgis, 1 Shep. (13 Maine) 111); and indeed, in the construction of grants, quantity is rarely material except where the boundaries are doubtful. — 15 Johns. 472; 5 Mass. 355; 19 Wend. 175. Upon these principles, therefore, the plaintiff was entitled to all the land in the quarter section north of the creek ; and if the charge was not substantially correct, it was not more favorable for the defendant in error than the law authorized.
The reasons we have given to sustain the first charge, are equally applicable to the second, and in that there was no error.
The legal questions involved in the other charges given and refused, are settled by the opinion of this court at the present term, in the case of Stein v. Burden; and the fourth and fifth charges assert principles whose correctness are so generally conceded and well settled, that it is deemed unnecessary to discuss them.
The only remaining question presented upon the record, is, as to the action of the court below in admitting the map made by Charles Delage. It does not appear that this map was
