O'Brien v. O'Brien

• Citation: 20 Mich. 304
• Parties: Dexter A. Ballou v. Michael W. O'Brien, John L. Walsh and Daniel Burns
• Decision Date: 03 May 1870
• Court: Michigan Supreme Court

20 Mich. 304

Dexter A. Ballou v. Michael W. O'Brien, John L. Walsh and Daniel Burns

Supreme Court of Michigan

May 3, 1870

Heard April 29, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case made from Bay Circuit.

This was an action of replevin, brought in the Circuit Court for the County of Bay, by Dexter A. Ballou, against Michael W. O'Brien, John L. Walsh and Daniel Burns, for the recovery of the possession of a lot of pine logs, being about six hundred in number, which were then lying in Culver Creek, and in or near the Kawkalin river, in Bay County, and were alleged to have been cut on the east half of the south-east quarter of section sixteen, township fourteen north, of range four east.

The defendants, O'Brien and Walsh, pleaded jointly, and the defendant Burns separately, the general issue.

On the trial of the cause, the plaintiff offered in evidence a power of attorney executed by Benjamin D. Pritchard, Commissioner of the Land Office of the State of Michigan, authorizing and empowering Edward L. Briggs, "as the agent of the State Land Office to enter upon any lands belonging to the State of Michigan, or on any lands for which the said State is acting as trustee, and seize and report the seizure of any timber, or property unlawfully cut upon any of said lands, and to seize and report the seizure of any timber or lumber or shingles manufactured from any timber so unlawfully cut or taken from any of said lands, where the same shall be found within the limits of this State, and can be identified; * * * * and dispose of the same at public or private sale as he shall deem best."

It appeared in evidence, that the defendant, Burns, entered upon the lands described in the declaration, and cut the logs in question, and caused them to be hauled to the mouth of Culver Creek, where they were afterwards seized by Briggs; and that Briggs, acting as agent of the State Land Office, in consideration of fifteen hundred dollars to him paid for the State, sold to the plaintiff all the right, title and interest of the State of Michigan in and to the logs and timber cut by Daniel Burns and others, &c.

It was also proved that the land upon which all of said logs were cut, and upon which they grew, was included in the forty thousand acre tract on the west side of the Saginaw river, in the County of Bay and State of Michigan, and was reserved to the Chippewa nation of Indians by the treaty made and concluded at Saginaw, in the Territory of Michigan, between the United States of America, by their Commissioner, Lewis Cass, and the Chippewa Nation of Indians, on September 24th, 1819. And that the said reservation of forty thousand acres was duly located according to said treaty in the year 1820; and the lands embraced in said reservation were surveyed and sub-divided by the Government of the United States, into townships, sections and quarter sections, in the usual manner, in the year 1843; and the lands in question are located and described according to the said Government survey. At the time of the execution and delivery of said bill of sale to plaintiff, all the logs in question were in the possession of the defendants, and plaintiff knew that fact; and said logs were not delivered to the plaintiff by said Briggs, or otherwise, and were never in the possession of the plaintiff. The plaintiff never demanded the logs of the defendants, or either of them, before the commencement of this suit, and before the seizure by said Briggs of said logs, all of said logs were sold and delivered to defendant's O'Brien and Walsh by defendant Burns; and in making said purchase said O'Brien and Walsh acted in good faith.

The cause was tried by the Circuit Judge without a jury, and he was requested, on behalf of the defendants, to adopt the following propositions as the law of the case:

"1. That the Commissioner of lands had no power to sell the logs in controversy in this suit to the plaintiff, and that the plaintiff acquired no title to said logs by the sale, or attempted sale made by Edward L. Briggs.

"2. That said Briggs had no legal authority to act for the State of Michigan, or for the Commissioner of lands, in selling the logs in controversy to the plaintiff, and the plaintiff by the bill of sale made by said Briggs acquired no title to said logs.

"3. That the State of Michigan was not, at the time of the cutting of the logs on the land described in plaintiff's declaration, the owner of said land.

"4. That at the time of the sale made by said Briggs to the plaintiff, the State of Michigan was not the owner of the logs in question, and could pass to the plaintiff no title to said logs.

"5. That, as at the time of said sale to said plaintiff, said logs were in the actual adverse possession of other parties, and not in the possession of the State, no title passed to the plaintiff.

"6. That the land described in said writ, at the time of the cutting of said logs, was the land of the United States, and not the land of the State of Michigan.

"7. That the Commissioner of the State Land Office had no lawful authority to delegate to said Briggs the power to sell the logs in question, and therefore the power of attorney executed by said Commissioner to said Briggs gave him no power to sell said logs to the plaintiff.

"8. That said Commissioner had no power to sell the timber of the State lands separate from the lands themselves.

"9. That the defendants having been in the peaceful possession of the logs at the time of executing the bill of sale to the plaintiff, the plaintiff cannot recover in this action without proof that a demand was made in his behalf of the defendants for said logs.

"10. That the plaintiff cannot recover in this action against said O'Brien and Walsh, without proof that a demand was made in behalf of the plaintiff for said logs after his purchase from the State.

"11. That the logs, if they were the property of the State, had been converted by the defendants before the purchase by the plaintiff, and the plaintiff acquired no lawful right to recover the value of the logs from the defendants.

"12. That the said power of attorney is void for the reason that it is contrary to public policy, and the statutes and policy of this State.

"13. That the act of 1836, granting section sixteen to the State, is not of itself sufficient evidence that the State acquired the title to the land on which said logs were cut."

All of which he refused, and found the plaintiff entitled to recover the value of the logs, at the sum of $ 1,601.08. To each of which findings and conclusions of law the defendants excepted.

A judgment was rendered in the usual form for the plaintiff; which is brought into this Court for review upon case made.

Judgment for the plaintiff affirmed with costs.

Marston & Hatch, for plaintiff.

The most important questions in this case are:

First,--Was the State of Michigan "at the time of the cutting of the logs on the land described in plaintiff's declaration the owner of said land?" and--

Secondly,--Did the Commissioner of the State Land Office have the authority to delegate to Edward L. Briggs the power to seize and sell the logs in question to the plaintiff?

I. The State of Michigan was owner of the land at the time the logs were cut, by virtue of the first subdivision of section one of "An ordinance relative to certain propositions made by the Congress of the United States to the Legislature of the State of Michigan," approved July 25th, 1836.--1 Comp. Laws p. 37.--This grant was accepted by the State, December 15th, 1836.--Id. pp. 41-2.--This provision, when thus accepted, operated as a grant or conveyance to the State of section sixteen in every township, not sold or otherwise disposed of, and it was not necessary that a patent should be issued by the United States to the State in order to give effect to the grant.--Stockton v. Williams, 1 Doug. 547; Godfrey v. Beardsley, 2 McLean 412; Gains v. Nicholson, 9 How. 361; Cooper v. Roberts, 18 How. 173; Maiden v. Ingersoll, 6 Mich. 373.--The lands upon which the logs in question were cut were surveyed and sub-divided by the Government of the United States, in the usual manner in the year 1843.

It may, however, be claimed by the defense, that the section upon which the logs in question were cut, was at the time of the grant in 1836, "dispose of" by virtue of the treaty between the United States and the Chippewa Nation of Indians, made September 24th, 1818, and therefore did not pass to the State under that grant.--7 U.S., Stat. at large, 203.--This treaty gave the Indians no greater right to the territory thus reserved than they had before. If this reservation is in the nature of a grant then it is to receive a strict construction, and nothing would pass under it by application.--La P. B. H. Co. v. Monooe, Walker's Ch., 155.

The fee of all the unsold land in the United States is either in the United States or in the States within which such lands are situated. The Indian title, or that interest which originally belonged to the native tribes, was one of use or occupation only.--3 Washburn on R. Pr., 168; Doe v. Beardsley, 2 McLean 412; Stockton v. Williams, 1 Doug. 546; Johnson v. McIntosh, 8 Wheat. 543; Mitchell v. United States, 9 Peters 711.--And the United States, as owner of the fee, may grant that, subject to such occupancy, but no possession can be taken until such right of occupancy is extinguished.--3 Wash. 168, Doe v. Beardsley; Fletcher v. Peck, 6 Cranch 87.

The treaty of January 14th, 1837, 7 U. S. Stat., 528, in which the Saginaw tribe of the Chippewas cede this forty thousand...