The lands northwest of the River Ohio, between the Rivers Scioto
and Little Miami, lying west of Ludlow's Line, east of Roberts'
Line, and south of the Indian boundary, reserved by Virginia in her
deed of cession to the United States of March, 1784, for the
satisfaction of the military bounties Virginia had promised, were
not, prior to 1810, by any legislative acts of the government of
the United States withdrawn from appropriation under and by virtue
of Virginia military land warrants. A patent issued on 12 October,
1812, founded upon a military land warrant for land within the
reserved lands is valid against a claimant of the same land holding
under a sale made by the United States.
This was an action of ejectment brought originally in the Court
of Common Pleas for Champaign County in the State of Ohio, by
McArthur, the defendant in error, against Reynolds, the tenant in
possession. In that court, a verdict and judgment were rendered in
favor of the plaintiff below. The plaintiff in error appealed to
the Supreme Court of Ohio for that county.
On the trial in the latter court (being by the laws of Ohio a
trial
de novo), McArthur again obtained a verdict and
judgment in his favor. McArthur claimed the land in controversy
under a patent from the United States bearing date October 12,
1812, founded on entry and survey made in the year 1810 on a
warrant granted for services in the Virginia Line on continental
establishment during the War of the Revolution. Reynolds, the
defendant below, claimed as the assignee of one Henry Van Meter,
who in the year 1805 entered the land in controversy at the
Cincinnati land office. It reverted to the United States in the
year 1813 for nonpayment of the purchase money, and during the same
year it was entered again by Van Meter, and the certificate of
entry assigned by him to Reynolds.
The deed of cession of the country northwest of the Ohio River
from Virginia to the United States, dated in March, 1784, reserved
the country
between the Rivers Scioto
Page 27 U. S. 418
and Little Miami for the satisfaction of the military
bounties Virginia had promised to her officers and soldiers on
continental establishment. The sources of the two rivers are
between fifty and sixty miles apart, and the country between them
makes a part of the western boundary of the reservation. In 1802,
Israel Ludlow was directed by the then Surveyor General of the
United States to run the boundary line between these rivers, who in
that year accordingly ran a direct line from the source of the
Little Miami towards what he supposed to be the source of the
Scioto, to which river he did not extend his line, in consequence
of being arrested in his survey by the Indians at the Greenville
treaty line, that line being then the Indian boundary. The line run
by Ludlow is called Ludlow's Line.
In the year 1812, Congress passed an act authorizing the
appointment of three commissioners who, in conjunction with
commissioners to be appointed by Virginia, were directed to run the
boundary line between the sources of these rivers, with authority
to agree upon and establish the same. They proceeded to ascertain
the sources of these rivers, and employed a surveyor of the name of
Roberts to run a direct line between them. While he was running the
line, a misunderstanding arose among the commissioners as to the
principle on which the boundary should be settled. The Virginia
commissioners contended for a line from the source of the Scioto to
the
mouth of the Little Miami as the boundary. The United
States commissioners claimed the line then running between the
sources of the two rivers as the boundary.
The commissioners separated without agreeing upon a boundary.
This line is called Roberts' Line. It runs from nearly the same
point on the Little Miami at which Ludlow's Line commences to a
point on the Scioto several miles west of the termination of
Ludlow's Line when extended to the latter river. The two lines
include a triangular gore of country extending from one river to
the other. Shortly after Ludlow's Line was run, the surveyors in
the employment of the United States proceeded to survey the country
west of and bounding upon that line, as far as the Indian
boundary,
Page 27 U. S. 419
and the officers at the Cincinnati land office sold the whole or
part of the country lying between Ludlow's and Roberts' Lines as
the land of the United States, among which was the land in
controversy. The act of 1812 declared that Ludlow's Line should be
the boundary until otherwise established by the consent of Virginia
and the United States. By another act of Congress passed in 1818,
Ludlow's Line to the Greenville treaty line was made the boundary
until otherwise directed by law. And above the Greenville treaty
line to the Scioto, Roberts' Line was made by that act the
boundary.
The land in controversy was admitted by the parties to lie on
Buck Creek, a water of the Great Miami River, adjoining Ludlow's
Line, and south of the Indian boundary line. The plaintiff below,
McArthur, further agreed that if the land in controversy did not
lie between the Rivers Scioto and Little Miami, a verdict and
judgment should be rendered against him.
On the trial in the Supreme Court of Ohio, the counsel for the
plaintiff in error prayed the court to give the jury eight several
instructions, all of which that court refused to give.
To this refusal a bill of exceptions was tendered, upon which
the writ of error is founded.
The instructions prayed for by the counsel for the plaintiff in
the court below, were as follows:
1. That the lands west of Ludlow's Line, east of Roberts' Line,
and south of the Indian boundary line had been withdrawn from
appropriation under and by virtue of said military land warrants
prior to the year 1810, and that as the same had, pursuant to the
acts of Congress in such case made and provided, been directed to
be surveyed and sold, and that as the same had accordingly been
surveyed and sold to the defendant prior to the year 1810,
consequently that the plaintiff's patent is void, and its verdict
ought to be for the defendant.
2. That as the third section of the Act of Congress of the
United States 11 April, 1818, declares
"That from the source of the Little Miami River to the Indian
boundary line established by the treaty of Greenville in 1795, the
line designated as the westerly boundary line of the Virginia
tract
Page 27 U. S. 420
by an Act of Congress passed on 23 March, 1804, entitled"
"An act to ascertain the boundary of the lands reserved by the
State of Virginia, northwest of the River Ohio for the satisfaction
of her officers and soldiers on continental establishment, and to
limit the period for locating the said lands"
"shall be considered and held as such until otherwise directed
by law,"
and as said boundary line was run by Ludlow under the directions
of the Surveyor General pursuant to an Act of Congress,
entitled
"An act to extend and continue in force the provisions of an act
entitled"
"An act giving a right of preemption to certain persons who have
contracted with John Cleves Symmes or his associates for lands
lying between the Miami Rivers in the territory northwest of the
Ohio and for other purposes,"
approved May 1, 1802, and offered for sale at public auction at
the Cincinnati land office pursuant to the act entitled "An act
making provision for the disposal of public lands in the Indiana
Territory, and for other purposes," approved March 26, 1804, must
be construed as having relation back to the above recited act,
entitled
"An act to ascertain the boundary of the lands reserved by the
State of Virginia northwest of the River Ohio for the satisfaction
of the officers and soldiers on continental establishment, and to
limit the period for locating said lands,"
approved 23 March, 1804, was passed and took effect, and as the
plaintiff's patent covers lands west of that line and south of the
Greenville treaty line and is based on an entry made in 1810 on a
Virginia continental land warrant, which land had been surveyed and
sold to the defendant pursuant to the act of Congress prior to the
year 1810, the plaintiff's patent is void and their verdict ought
to be for the defendant.
3. That according to the true intent and meaning of the act and
deed of cession from Virginia to the United States and the several
acts of Congress relative to the sale of the public lands of the
United States, the lands lying between the Rivers Scioto and Little
Miami are bounded by a line extending from the source or point of
land farthest removed from the mouths of these respective rivers,
from which the rain descending on the earth runs down into their
respective
Page 27 U. S. 421
channels, along the top of the ridges dividing the waters of the
Scioto from the waters of the Great Miami, which empty into the
Ohio below the mouth of the Little Miami as delineated on the
diagram returned by the county surveyor for the defendant in this
cause, and as the plaintiff's patent covers land west or without
the boundary of the district so bounded as aforesaid, and is based
on an entry on a Virginia continental land warrant, which entry was
made in the year 1810 and which said entry and patent cover lands
which had, pursuant to the acts of Congress, been surveyed and sold
to the defendant prior to the date of the plaintiff's said entry,
the plaintiff's patent is void, and their verdict ought to be for
the defendant.
4. That if the line connecting the Rivers Scioto and Little
Miami, cannot, according to the true intent and meaning of the said
act and deed of cession, and the several acts of Congress for the
sale of their public lands, be extended, as stated in instructions
last above asked, then that the line connecting the Rivers Scioto
and Little Miami, so as to include all the lands between the said
two rivers, must be extended from the source of the Little Miami,
parallel to the general course of the Ohio River, until it
intersect the river Scioto, and as the plaintiff's patent is based
on a Virginia continental land warrant, which warrant had been
located in 1810 on lands which had prior to the year 1810 been
surveyed and sold to the defendant pursuant to the acts of
Congress, the patent of the plaintiff is void, and their verdict
ought to be for the defendant.
5. That if the line connecting the Rivers Scioto and Little
Miami cannot, according to the true intent and meaning of the said
act and deed of cession, be extended, as stated in either of the
instructions asked for above, then that the sources of the said two
rivers must be at that point in their respective channels, at
which, from the union of several rivulets, brooks, or creeks,
sufficient water flows at an ordinary stage, on which to navigate
small vessels laden, and that the line connecting said rivers must
be a direct line from said sources so ascertained as aforesaid, and
if, from the evidence, the jury shall find that the lands covered
by
Page 27 U. S. 422
the plaintiff's patent are based on an entry covering lands
without the limits of said Virginia Military District, so-called,
which had, prior to the year 1810, pursuant to the acts of Congress
in such case made and provided, been surveyed and sold to the
defendant, the plaintiff's patent is void, and their verdict ought
to be for the defendant.
6. That if the line connecting the Rivers Scioto and Little
Miami according to the true intent and meaning of the said act and
deed of cession cannot be extended as stated in either of the
instructions asked for as above, then that the sources of the said
two rivers must be considered as commencing at that point in their
respective channels from which the water flows at all seasons of
the year, and that said rivers must be connected by a direct line
run from said sources, and if from the evidence the jury shall find
that the plaintiff's patent is based on an entry covering lands
without the limits of said Virginia Military District, so-called,
which had prior to the year 1810, pursuant to the acts of Congress
in such case made and provided, been surveyed and sold to the
defendant, the plaintiff's patent is void, and its verdict ought to
be for the defendant.
7. That if the line connecting the Rivers Scioto and Little
Miami, according to the true intent and meaning of the said act and
deed of cession, cannot be extended as stated in either of the
instructions asked for above, then that the sources of the said two
rivers must be fixed at that point in their respective channels,
farthest removed from their respective mouths, at which water is
found at all seasons of the year, and that a direct line connecting
said rivers must be extended from said points, and if from the
evidence the jury shall be of opinion that the plaintiff's patent
covers land without said boundary so fixed as aforesaid, and which
is based on an entry covering said land, made in the year 1810,
which had pursuant to the acts of Congress of the United States
been surveyed and sold to the defendant by the United States prior
to the year 1810, the plaintiff's patent is void, and its verdict
ought to be for the defendant.
8. That if the line connecting the said Rivers Scioto and Little
Miami, according to the true intent and meaning of
Page 27 U. S. 423
the said act and deed of cession and the several acts of
Congress relative to the sale of the public lands of the United
States cannot be extended, as stated in either of the instructions
asked for above, then that the sources of these streams are at that
point, farthest removed from their respective mouths, from which
the rain descending on the earth runs down into their respective
channels, and that the lands lying between these rivers are limited
by a direct line run from those points, and if from the evidence
the jury shall be of opinion that the plaintiff's patent covers
land without the limits of said boundary so stated as aforesaid and
which is based on an entry made in the year 1810, which had,
pursuant to the acts of Congress of the United States prior to the
said year 1810 been surveyed and sold to the defendant by the
United States pursuant to the acts of Congress, the plaintiff's
patent is void, and its verdict ought to be for the defendant.
But the court declined giving the instructions asked for, to
which refusal of the court the defendant by his counsel excepted,
and prays the Court here to sign and seal this bill of exceptions,
which is done accordingly July 19, 1827.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment rendered by the Supreme
Court of Ohio for the country of Champaign in an ejectment in which
the lessee of Duncan McArthur was plaintiff and John Reynolds was
defendant. The plaintiff claimed the land in controversy under a
patent issued on 12 October, 1812, founded on an entry made in the
year 1810 on a military land warrant granted by the State of
Virginia for services during the war of the revolution in the
Virginia Line on continental establishment.
Page 27 U. S. 424
The title of the defendant is thus stated. The land was sold by
the United States at its land office in Cincinnati in the year 1805
to Henry Van Meter. It reverted to the United States in the year
1813 on account of the nonpayment of the purchase money, and was
again sold, during the same year at the same office, to Henry Van
Meter, to whom a certificate of sale was issued, which he
afterwards transferred to the defendant John Reynolds.
The verdict and judgment were in favor of the plaintiff in the
state court. At the trial, the counsel for the defendant moved the
court to instruct the jury on several points made in the cause, and
excepted to the refusal of the court to give these instructions.
The judgment of the state court, having been against a title set up
under several acts of Congress, is brought before this Court by
writ of error that the construction put on those acts by that court
may be reexamined. The inquiry will be whether the court ought to
have given any one of the instructions which were required. The
several prayers for this purpose will be considered in the order in
which they were made.
1. The first instruction asked is that the lands west of
Ludlow's Line, east of Roberts' Line, and south of the Indian
boundary line had been withdrawn from appropriation under and by
virtue of military land warrants prior to the year 1810, and that
as the same had, pursuant to the acts of Congress in such case made
and provided, been directed to be surveyed and sold, and had
accordingly been surveyed and sold to the defendant prior to the
year 1810, the plaintiff's patent is void and its verdict ought to
be for the defendant.
This motion does not question the bounds of the lands reserved
by Virginia for military bounties, but supposing the tract of
country west of Ludlow's Line, east of Roberts' Line, and south of
the Indian boundary line to be within that reserve, asks the court
to say that Congress had, prior to the year 1810, when McArthur's
entry was made, withdrawn it from appropriation under and by virtue
of military land warrants.
Page 27 U. S. 425
Before deciding on the propriety of refusing or granting this
prayer, it will be necessary to review the legislation of Congress
on this subject.
The Act of 9 June, 1794, 1 Stat. 394, taken in connection with
the reservation in favor of their officers and soldiers contained
in the deed of cession made by Virginia, unquestionably subjected
the whole of the military reserve to the satisfaction of those
warrants, for which the reserve was made. Had Congress, previous to
the year 1810, withdrawn that portion of this reserve which lies
between the line run by Ludlow and that run by Roberts from its
liability to be so appropriated?
So early as the year 1785, Congress passed "an ordinance for
ascertaining the mode of disposing of lands in the western
territory," 1 Laws U.S. 563, 569, in which, for the purpose of
securing to the officers and soldiers of the Virginia Line on
continental establishment the bounties granted them by that state,
it is ordained
"That no part of the land between the rivers called Little Miami
and Scioto on the northwest side of the River Ohio be sold or in
any manner alienated until there shall first have been laid off and
appropriated for the said officers and soldiers and persons
claiming under them the lands they are entitled to agreeably to the
said deed of cession and act of Congress accepting the same."
The scrupulous regard which this clause in the ordinance of May,
1785, manifests to this condition made by Virginia in her deed of
cession is the more worthy of remark because at that time, no
suspicion was entertained that the military warrants of Virginia
would cover the whole territory, and it was even doubted, as the
legislation of Congress shows, whether any part of that territory
would be required for them. Even under these circumstances,
Congress declared the determination not to sell or alienate any
land between the Scioto and the Little Miami.
In May, 1796, Congress passed "an act providing for the sale of
the lands of the United States in the territory
Page 27 U. S. 426
northwest of the River Ohio and above the mouth of Kentucky
river."(1 Stat. 464).
The second section enacts that
"The part of the said land which has not been already conveyed .
. . or which has not been heretofore, and during the present
session of Congress may not be appropriated for satisfying military
land bounties, and for other purposes, shall be divided. . . ."
This law then, from which the whole power of the Surveyor
General is derived, excludes from his general authority all lands
previously appropriated for military land bounties and for other
purposes, and consequently excludes from it the lands between the
Scioto and the Little Miami.
In May, 1800, Congress passed an act to amend the act of 1796,
which enacts
"That for the disposal of the lands of the United States
directed to be sold by the original act, there shall be four land
offices established in the said territory."
2 Stat. 73. The places at which these land offices shall be
fixed are designated in the act, and the district of country
attached to each is described. One of these is Cincinnati, the
place at which the lands in controversy were sold, and the district
attached to it is that below the Little Miami.
It is perfectly clear from the language of this act that it
extends to those lands only which were comprehended in the Act of
May, 1796, and that no one of the districts established by it
comprehends the land in controversy. Any general phrases which may
be found in the law must, according to every rule of construction,
be limited in their application to those lands which the original
act authorized the Surveyor General to lay off for the purpose of
being sold. If he surveyed any lands to which that act does not
extend, he exceeded his authority, and the survey is not sanctioned
by the law. If land thus surveyed by mistake has been sold, the
sale was not authorized by the law under color of which it was
made.
The counsel for the plaintiff in error has pressed earnestly on
the court the grants made to John Cleves Symmes, and
Page 27 U. S. 427
to the purchasers under him. We are not sure that the argument
on this point has been clearly understood, and have therefore
examined that transaction in order to discover its influence, if it
can have any, on the question now under consideration.
In 1787, John Cleves Symmes applied to Congress for a grant to
himself and his associates of the lands lying within the following
limits,
viz.,
"beginning at the mouth of the Great Miami River, thence running
up the Ohio to the mouth of the Little Miami River, up the main
stream of the Little Miami River to the place where a due west
line, to be continued from the western termination of the northern
boundary line of the grant to Messrs. Sargent, Cutler & Co.
shall intersect the said Little Miami River, thence due west,
continuing the said western line to the place where the said line
shall intersect the main branch or stream of the Great Miami,
thence down the Great Miami to the place of beginning."
In consequence of this petition, a contract was entered into for
the sale of one million acres of land to begin on the bank of the
Ohio, twenty miles along its meanders above the mouth of the Great
Miami, thence to the mouth of the Great Miami, thence up that river
to a place whence a line drawn due east will intersect a line drawn
from the place of beginning, parallel with the general course of
the Great Miami, so as to include one million acres within these
lines and the said rivers, and from that place upon the said Great
Miami River, extending along such lines to the place of beginning,
containing as aforesaid one million acres.
The language of this contract does not indicate any intention on
the part of Congress to encroach on the military reserve, which the
ordinance of May, 1785, then in full force, had excepted from sale
or alienation.
In 1792, Congress, at the request of John C. Symmes, passed an
act to alter this contract in such manner that the land sold should
extend from the mouth of the Great Miami to the mouth of the Little
Miami, and be bounded by the
Page 27 U. S. 428
River Ohio on the south, by the Great Miami on the west, by the
Little Miami on the east, and by a parallel of latitude on the
north extending from the Great Miami to the Little Miami so as to
comprehend the proposed quantity of one million acres. 1 Stat.
266.
The lands then which might be granted to John C. Symmes in
pursuance of this act of Congress lay between the Great and Little
Miami and were to lie below the Little Miami. The Scioto is above
that river, so that Congress could not have intended that this
grant to Symmes should interfere with the military reserve.
On 36 September, 1794, a deed was executed in pursuance of the
act of 1792 conveying to John C. Symmes that tract of land
beginning at the mouth of the Great Miami River and extending from
thence along the River Ohio to the mouth of the Little Miami River,
bounded on the south by the River Ohio, on the west by the Great
Miami, on the east by the Little Miami, and on the north by a
parallel of latitude to be run from the Great Miami to the Little
Miami, so as to comprehend the quantity of 311,682 acres of
land.
It is obvious that this patent does not interfere with the
military reserve. But John C. Symmes had sold to several persons
who purchased in the confidence that he would comply with his
contract for one million acres and be enabled to convey the lands
sold to them.
In March, 1799, Congress passed an act declaring that any person
or persons who, before the first day of April in the year 1797, had
made any contract in writing with John C. Symmes for the purchase
of lands between the Great and Little Miami Rivers which are not
comprehended in his patent dated 39 September, 1794, shall be
entitled to a preference in purchasing of the United States all the
lands so contracted for at the price of two dollars per acre.
In March, 1801, Congress passed an act extending this right of
preemption to all persons who had, previous to the first day of
January, 1800, made any contract in writing with the said John C.
Symmes or with any of his associates for the purchase of lands
between the Miami Rivers within the
Page 27 U. S. 429
limits of a survey made by Israel Ludlow in conformity to an Act
of Congress of 12 April, 1792.
The provisions of this act are supposed to contemplate the
survey and sale of the lands which had been sold to John C. Symmes
between the Miami Rivers in like manner as had been prescribed for
other lands lying above the mouth of Kentucky by the acts of 1796
and 1800. The right of preemption was limited to lands within
Israel Ludlow's survey; but that survey contained less than 600,000
acres, and the contract of Symmes was for one million acres;
Congress therefore resumed the consideration of this subject, and
in May, 1802, extended this right of preemption to all those who
had purchased from John C. Symmes lands lying between the Miami
Rivers, and without the limits of Ludlow's survey. It cannot be
doubted that this right of preemption allowed to the purchasers
under John C. Symmes was limited to lands lying between the Miami
Rivers and lying within his contract. Congress could never have
intended that this contract should interfere with the military
reserve. That reserve was of lands lying above the Little Miami.
The sale to Symmes was of lands lying below that river. It was made
while an ordinance was in full force, declaring the resolution of
Congress not to alienate any part of that reserve. Their contract
was made in subordination to that ordinance, and cannot have
intended to violate it. The terms of the contract do not purport to
violate it. The land sold to Symmes, and the preemption rights
allowed to the purchasers under him, are so described as to furnish
no ground for the opinion that Congress could have suspected them
to interfere with the military reserve. If the Scioto and the Great
Miami, contrary to all probability, should take such a direction as
to produce a possible interference between the lands sold to Symmes
and the reserve which Congress had declared its resolution not to
alienate, some difficulty might possibly arise in a case where one
of the parties claimed under a military warrant and the other under
a preemption certificate. But that is not this case. The title of
the plaintiff in error is under a purchase made at a sale of the
lands of the United States at Cincinnati by Henry Van Meter, who
is
Page 27 U. S. 430
not stated to have held a preemption certificate or to have been
a purchaser under Symmes.
The instruction which the court was asked to give is that the
land between the lines of Ludlow and Roberts had been withdrawn
from appropriation under and by virtue of military land warrants
previous to the year 1810. This withdrawal is not in express terms,
but is supposed to be implied from a direction to survey the lands
between the Great and Little Miami which had been exempted from the
operation of the acts of 1796 and 1800 under the idea that they
were comprehended in the contract with Symmes. Congress could not
suspect that the lands to be surveyed under this law could
interfere with the lands lying between the Little Miami and the
Scioto, and consequently cannot have intended by this act to vary
the boundary of the military reserve.
It has been very truly observed that all the laws on this
subject should be taken together. The condition inserted in the
deed of cession of Virginia which reserves the land lying between
the little Miami and the Scioto for the purpose of satisfying the
warrants granted to the officers and soldiers of that state, the
ordinance of May 1785, declaring that no part of that reserve
should be alienated, the contract with Symmes for the sale of lands
lying between the two Miami, the acts relative to preemptions, and
which direct the survey and sale of the lands lying between the
Miami without any allusion to the military district must be taken
into view at the same time.
It is, we think, impossible to believe that Congress supposed
itself, when directing the survey and sale of lands between the
Great and Little Miami, to be abridging or altering the bounds of a
district which Virginia had reserved in the deed of cession by
which the country northwest of the Ohio had been conveyed to the
United States.
When Congress designed to act on this subject, the purpose was
expressed and overtures were made to the other party to the compact
to obtain her cooperation.
In executing the Act of May, 1800, the Surveyor General had
caused a line to be run from what he supposed to be
Page 27 U. S. 431
the source of the Little Miami towards what he supposed to be
the source of the Scioto, which is the line denominated Ludlow's,
and surveyed the lands west of that line in the manner prescribed
by the act of Congress.
In March, 1804, Congress passed an act establishing that line as
the western boundary of the reserve, provided the State of Virginia
should, within two years after the passage of the act, accede to
it. 2 Stat. 274. Virginia did not accede to it.
In 1812, Congress made another effort to establish this line. 2
Stat. 764. The President was authorized to appoint commissioners to
meet others which should be appointed by Virginia, who were to
agree on the western line of the military reserve and cause the
same to be surveyed and marked out. These commissioners met, and
after ascertaining the sources of the two rivers, employed Mr.
Charles Roberts to survey and mark a line from the source of the
one to the source of the other. This line is called Roberts' Line.
The Virginia commissioners, however, refused to accede to this
line.
This act provided that until an agreement should take place
between the commissioners, the line designated in the act of 1804,
which is Ludlow's, should be considered and held as the proper
boundary line. This enactment is provisional and prospective.
In 1818, Congress passed an act declaring that from the source
of the Little Miami to the Indian boundary line, established by the
treaty of Greenville, Ludlow's Line should be considered as the
western boundary of the military reserve until otherwise directed
by law, and that from the said Indian boundary line to the source
of the Scioto River, the line run by Charles Roberts shall be so
considered. 3 Stat. 424.
When we review the whole legislation of Congress on this
subject, we think the conclusion inevitable that in the acts of
1801 and 1802, which have been cited, the legislature did not
consider itself as altering the bounds of the military district or
as withdrawing before the year 1820 any part of the territory lying
between the Little Miami and the Scioto
Page 27 U. S. 432
from being appropriated by the military land warrants granted by
the State of Virginia. If those acts have this effect, it is one
which was not intended.
Before a court can be required to declare the law which would
arise between conflicting statutes of this character, the fact that
they do conflict ought to be clearly established. The counsel for
the plaintiff in error has argued this part of the case as if the
fact was established -- as if a line drawn from the source of the
Little Miami to the source of the Great Miami would include the
land between Ludlow's Line and that of Roberts -- and this Court
has thus far treated the question as it has been argued. But this
fact is not established in this case. It is not among the facts
agreed by the parties, nor was the state court required to instruct
the jury that if they should find the land west of Ludlow's, and
east of Roberts' Line to lie between the Little and Great Miami, or
within Symmes' purchase, "that it had been withdrawn from
appropriation, under and by virtue of said military land warrants,
prior to the year 1810," and that McArthur's patent was
consequently void. The court was not required to state the law
hypothetically, as being dependant on the fact, but to assume the
fact and to state the law positively upon that assumption. The
record, we think, did not authorize the court to consider this fact
as established and to withdraw it from the jury.
There is no error in refusing this instruction.
2. The counsel for the defendant then asked the court to
instruct the jury that as the third section of the Act of the
Congress of the United States of 11 April, 1818, declares
"That from the source of the Little Miami River to the Indian
boundary line, established by the Treaty of Greenville in 1795, the
line designated as the westerly boundary line of the Virginia
tract, by an act of Congress passed on 23 March, 1804,
entitled"
"An act to ascertain the boundary of the lands reserved by the
State of Virginia, northwest of the River Ohio, for the
satisfaction of her officers and soldiers on continental
establishment, and to limit the period for locating the said
lands"
"shall be considered and held as such until otherwise directed
by law,"
and as said
Page 27 U. S. 433
boundary line was run by Ludlow, under the directions of the
Surveyor General, pursuant to an act of Congress entitled
"An act to extend and continue in force the provisions of an act
entitled 'An act giving a right of preemption to certain persons
who have contracted with John Cleves Symmes, or his associates, for
lands lying between the Miami Rivers, in the territory northwest of
the Ohio, and for other purposes,'"
approved May 1, 1802, and offered for sale at public auction at
the Cincinnati land office pursuant to the act entitled "An act
making provision for the disposal of public lands in the Indiana
territory, and for other purposes," approved March 26, 1804, must
be construed as having relation back to the time the above recited
act, entitled
"An act to ascertain the boundary of the lands reserved by the
State of Virginia northwest of the River Ohio for the satisfaction
of the officers and soldiers on continental establishment, and to
limit the period for locating said lands,"
approved 23 March, 1804, was passed and took effect, and as the
plaintiff's patent covers lands west of that line and south of the
Greenville treaty line and is based on an entry made in 1810 on a
Virginia continental land warrant, which land had been surveyed and
sold to the defendant pursuant to the acts of Congress prior to the
year 1810, the plaintiff's patent is void, and its verdict ought to
be for the defendant.
The prayer for this instruction is founded on the assertion that
Ludlow's Line was run under the direction of the Surveyor General
pursuant to the Act of Congress of 1 May, 1802, granting preemption
rights to purchasers from John Cleves Symmes, and that the land in
controversy was sold pursuant to the Act of 26 March, 1804, making
provision for the disposal of public lands in the Indian territory
and for other purposes.
If by the words "pursuant to an act of Congress," as used in
this prayer, it is intended to say that the boundary line run by
Ludlow was correctly run as required by the act of May 1, 1802, and
that the sale of the land in controversy was authorized by the Act
of 26 March, 1804, then the court is required to decide facts not
admitted by the parties,
Page 27 U. S. 434
which are proper for the consideration of the jury, and then to
declare the law arising upon those facts. If those words mean no
more than that the line was actually run under the authority of the
Surveyor General, and that the land in controversy was actually
sold at the land office in Cincinnati by the officers of
government, the question fairly arises what influence have these
facts on the rights of the parties? Do they, taken in connection
with the Acts of 23 March, 1804, and of 11 April, 1818, justify the
inference which the court is asked to draw that the act of 1818
relates back to the act of 1804 and takes effect from its date so
as to avoid a patent issued in October 1812 on an entry and survey
made in 1810.
It has already been stated that the Act of 23 March, 1804
establishes Ludlow's Line not absolutely, but on condition that
Virginia should assent to it, and that Virginia never did assent to
it.
It has also been stated that in 1812, Congress authorized the
President to appoint commissioners who should proceed in concert
with such as might be appointed by Virginia to run a line which
should constitute the western boundary of the Virginia Military
Reserve. These commissioners did meet, and did cause a line to run
from the source of the Little Miami to the source of the Scioto.
This is called Roberts' Line. The commissioners of Virginia did not
assent to this line. Consequently it is of no operation.
The Act of April 11, 1818, declares that Ludlow's Line shall be
considered and held as the true western boundary of the Virginia
Military Reserve until otherwise directed by law. But from what
time shall it be so considered and held? The language of the law is
entirely prospective. It is a principle which has always been held
sacred in the United States that laws by which human action is to
be regulated look forwards, not backwards, and are never to be
construed retrospectively unless the language of the act shall
render such construction indispensable. No words are found in the
act of 1818 which render this odious construction indispensable.
The language is that Ludlow's Line
shall be considered and
held -- that is, shall in future be considered and held as the
Page 27 U. S. 435
true western boundary of that reserve. That this was the
understanding of the legislature is rendered the more probable from
the clause which relates to patents. It does not annul patents
already issued, but declares that no patent shall be granted on any
location and survey that has been or may be made west of this line.
Patents which have been granted are not affected directly by the
words of this law, and must depend on the preexisting act of
Congress.
The argument is that this act declaring that Ludlow's Line shall
be considered and held as the westerly boundary line of the reserve
until otherwise directed by law, proves that, according to the true
construction of the deed of cession, this line is in reality the
true boundary, and therefore that all titles previously acquired to
lands lying west of this line are invalid.
We cannot admit the correctness of this argument.
That in the state of things which existed in 1812 and 1818,
Congress might establish the western boundary of the military
reserve, so as to affect titles thereafter to be acquired, is not
questioned. Congress might fix a reasonable time within which
titles should be asserted, and might annex conditions to the
extension of this time. But to look back to titles already
acquired, to declare by a law what was the meaning of the compact
under which those titles were acquired, is to construe that compact
and to adjudicate in the form of legislation. It would be the
exercise of a judicial, not of a legislative, power. This
construction can never be admitted by the court unless it be
rendered indispensable by the language of the act. We do not think
that the language of this act does require it.
If the language of the statute does not require this
construction, neither do the facts that Ludlow's Line was run by
order of the Surveyor General, and that the land in controversy was
sold by the regular agents of government. These facts cannot we
think carry back the act of 1818 to 1804, and give it a
retrospective operation.
We do not inquire into the power of Congress to pass such an
act. There is undoubtedly much force in the argument suggested at
the bar, that the general power of legislation,
Page 27 U. S. 436
which Congress could exercise over the territory northwest of
the Ohio, passed to the new government when the territory was
erected into a state, and that Congress retained only the power of
a proprietor with a capacity "to dispose of and make all needful
rules and regulations respecting the property." But it is
unnecessary to pursue this inquiry, because we are of opinion that
this construction is inadmissible.
The court therefore did right in rejecting this prayer.
The third instruction asked by the defendant is in these words:
that according to the true intent and meaning of the act and deed
of cession from Virginia to the United States, the land lying
between the Rivers Scioto and Little Miami, is bounded by a line
extending from the source or point of land farthest removed from
the mouths of these rivers, from which the rain descending on the
earth runs down into their respective channels, along the tops of
the ridges, dividing the waters of the Scioto from the waters of
the Great Miami, which empties into the Ohio below the mouth of the
Little Miami, as delineated on the diagram returned by the county
surveyor for the defendant in this case, and as the plaintiff's
patent covers land west or without the boundary of the district so
bounded as aforesaid, and is based on an entry on a Virginia
continental land warrant, which entry was made in the year 1810,
and which said entry and patent cover land which had, pursuant to
the acts of Congress, been surveyed and sold to the defendant prior
to the date of the plaintiff's said entry, the plaintiff's patent
is void, and their verdict ought to be for the defendant.
In the case of
Doddridge v.
Thompson, 9 Wheat. 469, this Court said that the
territory lying between two rivers is the whole country from their
sources to their mouths, and a straight line drawn from the source
of one river to the source of the other was considered, in that
case, as furnishing the western boundary of the lands lying between
them. One or both of the rivers may pursue such a course that a
straight line from the source of one to the source of the other may
cross one or both of them. Such a case may form an exception to the
universal application of the straight line,
Page 27 U. S. 437
and may go far in showing that no general rule can be laid down
which will fit every possible case. But this obvious and reasonable
rule has been adopted by Congress as well as by this Court. The act
of 1804 adopts the straight line. The act of 1812 obviously
contemplates a straight line, and the act of 1818 adopts Ludlow's
Line, from the source of the Little Miami to the Indian boundary
line established at the treaty of Greenville, and the line run by
Roberts from the Indian boundary to the source of the Scioto.
The counsel for the defendant in the state court abandoned the
rule adopted by Congress and by this Court, by taking for his
commencement
"that point of land which is farthest removed from the mouths of
the respective rivers, and from which the rain descending on the
earth runs down into their respective channels,"
and to draw a line from that point along the top of the ridges
dividing the waters of the Scioto from the waters of the Great
Miami.
We feel some difficulty in comprehending the principle which has
suggested and can sustain this rule. Why should a line drawn along
the top of the ridges which divide the waters of the Scioto from
those of the Great Miami, constitute the true boundary of the
country lying between the Great and Little Miami? Would such a line
certainly lead to the source of the Scioto or to that of the Little
Miami? We can give no satisfactory answer to these inquiries. It is
some objection too to this instruction, that the jury would be much
and unnecessarily perplexed in finding the point of land farthest
removed from the mouth of each river, and from which the rain
descending on the earth runs down into their respective channels.
If any point exists which would fit all parts of the description,
and could be found by the jury, it is by no means certain that such
point would be in a line which would mark the boundary of the
country between the two rivers.
The rule which the court was asked to lay down appears to us to
be entirely arbitrary, and this prayer was properly rejected.
4. The fourth instruction has been abandoned by the plaintiff in
error.
Page 27 U. S. 438
5. The proposition on which the fifth prayer depends is
"that the sources of the two rivers must be at that point in
their respective channels at which, from the union of several
streams, sufficient water flows at an ordinary stage on which to
navigate small vessels laden."
This rule for ascertaining the source of a river is entirely new
in this country. A stream may acquire the name of a river which is
not navigable in any part. A river which is navigable may retain
that name above the highest navigable point. The meaning of words
as commonly used must be changed before the source of a river can
be confounded with its highest navigable point.
The court did not err in rejecting this prayer.
6. The proposition on which the sixth prayer depends is
"that the sources of the two rivers must be considered as
commencing at that point in their respective channels from which
the water flows at all seasons of the year."
Is this proposition so invariably true as to become a principle
of law? We think it is not. A stream may acquire the name of a
river, in the channel of which, at some seasons of extreme drought,
no water flows. For a great portion of the year parts of a stream
may flow in great abundance, in which, during a very dry season, we
may find only standing pools. It would be against all usage to say
that the general source of the river was at that point in its
channel from which the water always flows.
This prayer we think ought not to have been granted.
7. The seventh prayer depends on the proposition that the
sources of the two rivers must be fixed at that point in their
respective channels, farthest removed from their respective mouths,
at which water is found at all seasons of the year.
If the terms of this proposition be taken according to their
most obvious import, it would seem to vary from the sixth only in
this, that the sixth fixes the source of a river at the point in
the channel from which water flows at all seasons in the year,
while the seventh fixes it at that point which is farthest removed
from its mouth, at which water is found at all seasons.
Understanding it in this sense, the
Page 27 U. S. 439
proposition would not raise the question, which of several was
the main branch, but at what point the source of that main branch
was to be found. The remarks made on the sixth prayer would apply
with equal propriety to this, and the court would come to the same
conclusion on both. But we understand from the argument that the
counsel for the plaintiff in error intended by this prayer to
furnish a rule by which the main branch might be designated. That
rule is that the branch in whose channel water might be found
furthest removed from the mouth of the river is its main
branch.
Is this proposition universally true? That branch of a river
which is entitled to the appellation given to the main river is a
conclusion of fact to be drawn from the evidence in the cause.
Consequently no general rule can be laid down which will in all
cases guide us to a correct conclusion. One of the forks may have
retained the name of the main river in exclusion of the others. The
Scioto and Miami are both Indian names, and if any one branch of
either had received from the natives and retained exclusively the
name given to the main river, that would have been the stream
referred to in the reserve, contained in the deed of cession,
although water might have been found in a dry season of the year,
in the channel of some other, at a greater distance from the mouth
of the river, or the white men, who explored the country before the
deed of cession was executed, may have fixed the name on someone of
the branches of the respective rivers.
When France ceded to Great Britain all her pretensions to the
country lying east of the Mississippi "from its source to the river
Iberville," no man could have been so extravagant as to assert that
the source of the Mississippi was to be looked for through all its
branches and fixed at that point in the channel of either in which
water might be found farthest removed from the mouth of the
river.
The size of the rivers and the notoriety of the names by which
they were designated place the unreasonableness of such a
pretension in so strong a point of view that we can scarcely bring
ourselves to suppose that there is any
Page 27 U. S. 440
resemblance between the case put by way of illustration, and
that under consideration. And yet what is the real difference in
principle? If one branch of a small river has by consent retained
the name of the main river, in exclusion of the others, that branch
must be considered, in the absence of other circumstances, as the
true boundary intended by the parties in a deed which calls for the
stream by its name. The fact may be less certain and less
notorious, but if it exists, it must be followed by the same
consequences.
If neither branch had notoriously retained the name of the
river, the main branch is entitled to it. But the main branch is
not necessarily that in whose channel water might be found at all
seasons of the year at the point farthest removed from its mouth.
The largest volume of water is certainly one indication of the main
stream, which does not necessarily accompany that which the counsel
for the plaintiff in error has selected as the sole criterion by
which it is to be determined. The length of the stream is another.
It is obvious that two branches may pursue such a course that the
source of the longest may be nearer the mouth of the river than
that of the shortest.
We think the rule proposed in this prayer does not furnish a
certain guide to conduct us to the source of the river, and
therefore the instruction ought not to have been given.
8. The eighth prayer requires the court to instruct the jury
that the source of each river is at that point farthest removed
from its mouth from which the rain runs down into its channel.
We cannot perceive in the rule which this instruction proposes
any principle which will conduct us to the source of the main
stream. Every objection to granting the seventh prayer applies with
equal force to this. They need not be repeated.
The court did not err in rejecting it.
The instructions to the jury for which the plaintiff applied to
the state court are some of them mixed questions, involving fact
with law and requiring the court to decide the fact, and then to
declare the law upon that fact. Others propose a rule, as of
universal application, to ascertain the main
Page 27 U. S. 441
branch of a river, and the source of that main branch, which
would unquestionably in many cases mislead us. They propose one
single circumstance, in exclusion of all others, as being the
infallible evidence of a complex fact depending on a number of
varying circumstances.
The court very properly refused to give any of these
instructions.
This Court is of opinion that there is no error in the
judgment of the state court, and that it ought to be affirmed with
costs.
