Lessee of Margaret Lattimer and Others, Plaintiffs In Error v. William Poteet, Defendant In Error

• Decision Date: 01 January 1840
• Parties: LESSEE OF MARGARET LATTIMER AND OTHERS, PLAINTIFFS IN ERROR, v. WILLIAM POTEET, DEFENDANT IN ERROR
• Court: U.S. Supreme Court

39 U.S. 4

14 Pet. 4

10 L.Ed. 328

LESSEE OF MARGARET LATTIMER AND OTHERS, PLAINTIFFS IN ERROR, v. WILLIAM POTEET, DEFENDANT IN ERROR.

January Term, 1840

IN error to the Circuit Court of the United States for the District of North Carolina.

This case was argued at January term, 1839, by Mr. Coxe for the plaintiffs in error; and by Mr. Webster for the defendant. It was held under advisement until this term.

The case is fully stated in the opinion of the Court.

Mr. Justice M'LEAN delivered the opinion.

This case comes before the Court on a writ of error to the Circuit Court of North Carolina.

The lessors of the plaintiff brought their action of ejectment, to recover the possession of forty-nine thousand nine hundred and twenty acres of land, in Haywood county, and described in the declaration by metes and bounds. On the trial, certain exceptions were taken by the plaintiff to the rulings of the Court; and the verdict being not guilty, a judgment in favour of the defendant was entered. To revise this judgment, this writ of error is prosecuted.

The lessors of the plaintiff, to sustain their action, offered in evidence a grant from North Carolina to William Cat cart, for the land described in the declaration, dated the 20th July, 1796, and founded on entries made in the entry-taker's office, of the county of Buncombe, in said state, in the year 1795, within the limits of said county. It was admitted that the title, if any, had descended to the lessors of the plaintiff, and that, at the commencement of the action, the defendant was in possession; and also, that the land was within the limits of the territory described in the fifth section of the act of North Carolina, 1783, entitled an act for opening the land office for the redemption of specie and other certificates, &c. And the great questions arising out of the instructions are, whether at the dates of the entry and grant, the land was within the Indian country; and if it was, whether the entry and grant were void.

The limits of the Indian country, within the state of North Carolina, were established by treaties made between the United States and the Cherokee tribe of Indians.

The first treaty was concluded at Hopewell, the 20th November, 1785. The fourth article of this treaty declared, 'that the boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States, &c., shall begin at the mouth of Duck river, on the Tennessee; thence running northeast to the ridge dividing the waters running into Cumberland from those running into the Tennessee, thence easterly along the said ridge to a northeast line, to be run, which shall strike the river Cumberland forty miles above Nashville; thence along the said line to the river; thence up the said river to the ford where the Kentucky road crosses the river; thence to Campbell's line, near Cumberland Gap; thence to the mouth of Cloud's creek on Holston, thence to the Chimney-top mountain; thence to Camp creek near the mouth of Big Limestone on Nalichuchey; thence a southerly course six miles to a mountain; thence south to the North Carolina line; thence to the South Carolina Indian boundary; and along the same southwest over the top of the Occunna mountain, till it shall strike Tugalo river; thence a direct line to the top of the Currahee mountain; thence to the head of the south fork of the Occunna river.'

The treaty of Holston, which was concluded the 2d July, 1791, altered the limits, as established by the Hopewell treaty, and declared that 'the line should begin at the top of the Currahee mountain, where the creek line passes it; thence a direct line to Tugalo river; thence northeast to the Occunna mountain, and over the same along the South Carolina Indian boundary to the North Carolina boundary; thence north to a point from which a line is to be extended to the river Clinch, that shall pass the Holston at the ridge which divides the waters running into Little river from those running into the Tennessee; thence up the river Clinch to Campbell's line, and along the same to the top of Cumberland mountain; thence a direct line to the Cumberland river, where the Kentucky road crosses it; thence down the Cumberland river to a point from which a southwest line will strike the ridge which divides the waters of Cumberland from those of Duck river, forty miles above Nashville thence down the said ridge to a point from whence a southwest line will strike the mouth of Duck river.'

'And in order to preclude forever all disputes relative to the said boundary, the same shall be ascertained and marked plainly, by three persons appointed on the part of the United States, and three Cherokees on the part of their nation.'

Another treaty was made with the Cherokees, at Philadelphia, the 26th June, 1794, in which it was stated that the treaty of Holston had not been fully carried into effect; and in the second article it was 'stipulated that the boundaries mentioned in the fourth article of the said treaty shall be actually ascertained and marked in the manner prescribed by the said article, whenever the Cherokee nation shall have ninety days' notice of the time and place at which the commissioners of the United States intend to commence their operation.'

The whole extent of the line designated by this treaty, never appears to have been run and marked. Some parts of it were not run, because the country through which it passed was mountainous and uninhabitable. On the 7th October, 1792, (1 American State Papers, Indian Affairs, 630,) Governor Blount having given the notice to the Cherokees required by the treaty, under the directions of the Secretary of War, instructed David Campbell, Charles M'Clung, and John M'Kee, commissioners for extending the line between the United States and the Cherokees, according to the treaty of Holston, to meet the next day at Major Craig's, on Nine Mile creek, to extend the line. And they were instructed in case the commissioners appeared on the part of the Indians to run the line; but if the Indians did not attend, they were required to examine where the ridge which divides the waters running into Little river from those running into the Tennessee, strikes the Holston; and extend the line from thence to Clinch river; and again from the ridge to the Chilhowee mountain, paying strict regard to the treaty.

In their report, the 30th November ensuing, the commissioners say, that 'the commissioners on the part of the Cherokees did not attend; and we proceeded to examine with great attention for the ridge which divides the waters of the Tennessee from those of Little river, and tracing it, found it a plain leading ridge, and that it struck the Holston at the mouth; but, having heard it suggested that the Indians had in contemplation, at the time the treaty was made, a ridge which they supposed would strike the Holston higher up, we did not content ourselves, but retraced the ridge, and examined well the south bank of the Holston, and the result was, that we were perfectly convinced that the ridge which divides the waters of Tennessee and Little river, strikes the Holston at the mouth, and at no other part.'

'We then proceeded to run, but not to mark, a line of experiment, from the point of the ridge in a southeast direction to the Chilhowee mountain, distance seventeen and a half miles, and again from thence to the Clinch, in a northwest direction, distance nine miles, and found that line, continued to the southeast, would intersect the Tennessee, shortly after it crossed the Chilhowee mountain, consequently take away all the Indian towns lying along the south side of the Tennessee. This showed the necessity of turning the direction more to the east and west; and it is our opinion that a line extended from the point of the ridge aforesaid south sixty degrees east to Chilhowee mountain, again from the point north sixty degrees west, will form the true line from Chilhowee mountain to Clinch, between the United States and the Cherokees, according to the treaty of Holston. The more fully to elucidate this report, we present you with a map, which we believe is nearly correct, on which both the lines are laid down.'

This line left several white settlers within the Indian lands.

In transmitting this report to the War Department, Governor Blount remarks, 'As the geography of the country generally cannot be known to you, there being no correct map of it, I think it necessary to inform you that the country to the east or rather southeast of Chilhowee mountain, through which the line reported upon, if continued beyond it, will pass, for fifty or sixty miles is an entire bed or ledge after ledge of mountains, that is, until it intersects the line which is to be extended south from the north boundary of North Carolina, near which no settlements can be formed; hence I conclude it will not be essential to extend it. That which the line reported on will intersect, if continued, meaning that which runs south from the north boundary of North Carolina, I caused to be run, and marked about sixty miles from the mouth of M'Namee's creek to Rutherford's war trace, by Mr. Joseph Harden, in the course of last winter. Harden did not run north, as required by the treaty of Holston, but south, according to the treaty of Hopewell.' The writer then states certain parts of the line, which, in his opinion, need not be run.

In a letter from Governor Blount to the Secretary of War, (1 American State Papers, Indian Affairs, 629,) dated July 15th, 1791, in reference to the treaty of Holston, concluded the 2d of the same month, says, 'According to my instructions, I proposed that the ridge dividing the waters of Tennessee from those of Little river, should form a part of the boundary; but the Indians would not agree to it, but insisted on a straight line which should cross the Holston where that ridge should strike it; and were so firmly fixed in their determination,...