Arthur Morgan Foley, Plaintiff In Error v. Samuel Harrison, Defendant and Louis Lesassier, Intervenor

• Decision Date: 01 December 1853
• Citation: 15 How. 433,14 L.Ed. 761,56 U.S. 433
• Parties: ARTHUR MORGAN FOLEY, PLAINTIFF IN ERROR, v. SAMUEL T. HARRISON, DEFENDANT, AND LOUIS LESASSIER, INTERVENOR
• Court: U.S. Supreme Court

56 U.S. 433

15 How. 433

14 L.Ed. 761

ARTHUR MORGAN FOLEY, PLAINTIFF IN ERROR, v. SAMUEL T. HARRISON, DEFENDANT, AND LOUIS

LESASSIER, INTERVENOR.

December Term, 1853

THIS case was brought up from the Supreme Court of the State of Louisiana, by a writ of error issued under the 25th section of the judiciary act.

It was a petitory action, commenced by Foley in the Fifth District Court of New Orleans, claiming lots No. 1 and 2 of section No. 3, the west half of section No. 10, and the northwest quarter of section No. 15, in township eleven, range thirteen east, containing in all 855 acres and nine hundredths.

By the act of 4th September, 1841, section 8, (5 Statues at Large, 455,) Congress granted to several of the States, of which Louisiana was one, five hundred thousand acres of land each, for purposes of internal improvement; 'the selections in all of said States to be made within their limits respectively, in such a manner as the legislatures thereof shall direct; and located, in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location, on any public land except such as is or may be reserved from sale by any law of Congress or proclamation of the President of the United States, which said locations may be made at any time after the lands of the United States, in said States respectively, shall have been surveyed according to existing laws.'

In 1844, the Legislature of Louisiana, in pursuance of the power with which it was invested by the above-cited act of Congress of directing the manner in which the selections of land thus granted should be made, passed an act establishing an office for the sale of the unlocated lands granted to the State, with a register, and the State treasurer as the receiver thereof. Session Acts of 1844, p. 61.

By the 7th section of that act, it was made the duty of the register and treasurer 'to issue warrants for the lands donated by Congress, and not as yet located, provided they shall not be issued for less than eighty nor more than six hundred and forty acres, which warrants shall be sold in the same manner as the lands located, provided they shall not be sold for less than three dollars per acre; and it shall be the duty of the governor to issue patents for all the lands that have been sold, and for the lands located by warrants, when contemplated to be sold by that act, whenever he shall be satisfied that the same have been properly located.'

Under the provisions of the above-recited act of Congress, granting the land, and the above provisions of the State legislature, directing the manner in which the selections should be made, Foley purchased two warrants from the State officers, and, on the 7th January, 1846, located them in the Land Office of the United States, at New Orleans, upon the lands now in controversy.

The defendants claimed title under five patents, issued from the General Land Office on the 1st September, 1847. These patents purported to be issued under an act of Congress of August 3, 1846, and were founded on certain floats, which were claimed under the second section of the pre emption act of 1830, (4 Stat. at Large, 421,) which was revived for two years by the act-of 19th June, 1834, (4 Stat. at Large, 678.)

In order to show more clearly the respective titles of the plaintiff and defendants, the reporter has arranged them in chronological order.

Plaintiff's Title.

1830, 1834,} Acts of Congress.

1836. ________

1841.

Sept. 4. Congress passed an act (5 Stat. at Large, 455) declaring that there shall be granted to each State, &c., (Louisiana being one,) 500,000 acres of land.

1844.

March 25. Louisiana passed an act authorizing the State Register to issue warrants for the above land.

1845.

Dec. 24. The Commissioner of the General Land Office wrote that the cancelled entries left the land public, and it could be entered by the State. Foley accordingly made his location. Harrison filed a caveat in the State Land Office.

1846.

January 7. Foley made his location at the Register's Office of the United States, upon the lands now in controversy.

March 9. Commissioner wrote to the Register and Receiver at New Orleans, suspending entries, either by State selection or otherwise.

April 20. Foley took out two patents from the Governor of Louisiana.

Feb. 5. Foley brought suit against Harrison in the fifth District Court of New Orleans (State court.)

1847.

1848.

January 7. Foley located two warrants upon the property in dispute, and entered them at the Land Office of the United States at New Orleans.

Page 435-Continued

Defendant's Title.

1830, 1834.

Acts granting pre emption rights—settlements included within the Houmas claim—floats issued—a large part of the claim having been decided to be public land by Commissioner Graham, in 1829, upon which settlements were made. Barrett and Bell located these floats upon the land now in dispute.

1836.

Commissioner of the General Land Office directed the Register and Receiver at New Orleans to withhold from sale all the lands within the claimed limits of the Houmas grant.

May 17. Sale by Barrett to Bell.

1844.

The Houmas claim confirmed in its whole extent by the Secretary of the Treasury. Entries made of locations from floats arising within it ordered to be cancelled. Patents were ordered to be issued for the whole of the Houmas claim.

May 3. Sale by Widow Bell to Harrison.

1846.

August 3. Congress passed an act providing for the adjustment of all suspended preemption land claims. The Commissioner of the Land Office, the Attorney-General, and Secretary of the Treasury were to decide.

1847.

June 28. The Secretary of the Treasury decided that he would approve the locations made under the floating claims, held by the actual settlers and improved by them, in preference to the State locations, made sub sequently, and covering these improvements.

July 9. The Commissioner,

August 2. The Acting Secretary of the Treasury.

August 27. The Attorney-General; all sanctioned this decision.

Sept. 1. Five patents issued from the United States to Harrison.

The District Court decided that Foley should recover the lot No. 1, of section 3, township eleven, range 13 east, containing 211 99/100 acres, and that the plea of prescription pleaded by defendant be sustained as to lot No. 2, of section 3, township eleven, range 13 east, and the west half of section 10 of the same township and range.

The Supreme Court of Louisiana reversed this decree, and ordered judgment for the defendant for the land in controversy.

Foley sued out a writ of error under the 25th section of the judiciary act, and brought the case up to this court.

It was argued by Mr. Lawrence, for the plaintiff in error, and by Mr. Benjamin, for the defendant in error.

Mr. Lawrence. The 1st section of the act of 1830 gave to any settler on public land, &c., the right of pre emption to the quarter section settled on. The 2d section provided that where two or more persons were settled on the same quarter section, the first two settlers should each take one half of said quarter section, if by a north and south or east and west line it could be so divided as to include the settlement and improvement of each in a half quarter section; and in such case the said settlers shall be entitled to a pre emption of eighty acres of land elsewhere in the same district. This latter privilege was called a 'floating right,' or 'float.'

Now, without being so hypercritical as to contend that this section only intended to confer a floating right when the quarter section could be divided in half by a north and south or east and west line, so as to include in separate parts the improvements of each settler, it is very clearly the intention of Congress not to confer the right of pre emption to eighty acres 'elsewhere,' unless the parties had under the same act the right of a pre emption to the quarter-section settled on. If the latter were not public land, were reserved land, were not the subject of a pre emption right, then no settlement on such land could give a floating privilege elsewhere. And so it has been universally held in the land department. In fact, the 4th section of the act expressly declares, 'nor shall the right of pre emption contemplated by this act extend to any land which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatever.' 19 Louis. Rep. 399; 2 Laws Ins. and Op. 632.

Now it is especially to be observed that the settlement, out of which these floats are supposed to arise, was within the claimed limits of the Houmas grant. This is not disputed.

By agreement of parties the report of the Secretary of the Treasury on the Houmas claim is made evidence in this cause.

I do not intend to trouble the court with any argument as to the validity or invalidity of the Houmas claim in its whole extent, or in any part of its extent. It has been a matter of controversy in the Treasury Department from the time of the acquisition of Louisiana to this day. All that is necessary to be known in this cause is, that its limits were claimed to be from the Mississippi to the Amit e, and so the claim was filed. See Report of Secretary of Treasury, pp. 96, 97.

The 6th section of the act of 3d March, 1811, which authorizes the sale of the public lands in the territory of Louisiana, has the following proviso: 'That, till after the decision of Congress thereon, no tract of land shall be offered for sale the claim to which has been in due time and according to law presented to the Register of the Land Office, and filed in his office for the purpose of being investigated by the commissioners appointed for ascertaining the rights of persons claiming lands in the territory of Orleans.' 2 Stat. 665.

If, then, this claim has not been acted on by the decision of Congress, neither a pre emption right to...