De La Fayette Wilcox, Plaintiff In Error v. John Jackson, On the Demise of Murray Connel, Defendant In Error

Citation13 Pet. 498,38 U.S. 498,10 L.Ed. 264
PartiesDE LA FAYETTE WILCOX, PLAINTIFF IN ERROR, v. JOHN JACKSON, ON THE DEMISE OF MURRAY M'CONNEL, DEFENDANT IN ERROR
Decision Date01 January 1839
CourtUnited States Supreme Court

ERROR to the Superior Court of the state of Illinois.

In the Circuit Court of Cook county, in the state of Illinois, an action of ejectment was commenced in February, 1836, by John Jackson, on the demise of Murray M'Connel, against De la Fayette Wilcox, for the recovery of a part of the military post of Fort Dearborn, at Chicago, in the state of Illinois; the defendant being then in possession of the premises as the commander of the post. The defendant appeared, and after the usual pleadings, the cause was brought to trial in October, 1836, and submitted to the Court on an agreed statement of facts, which was to be taken as if found as a special verdict.

The premises sued for are part of fractional section 10, in township 39, north of range 14, east of the third principal meridian, in the county of Cook, and state of Illinois; and embrace the military post called Fort Dearborn, of which post, at the time of the bringing of this suit, and the service of the declaration therein, the said defendant, De la Fayette Wilcox, was in the possession of the said premises, and was the commanding officer under the authority of the United States; which post was established by the United States in 1804, and was thereafter occupied by the troops of the United States till August 16, 1812, when the troops were massacred, and the post taken by the enemies of the country. It was reoccupied by the troops on the 4th of July, 1816; in which year the United States caused to be built upon the fractional section, No. 10, T. 39, N. R. 14 east, some factory houses for the use of the Indian department. The troops continued to occupy the post until the month of May, 1823, when it was evacuated by order of the government, and was left in possession of Dr. A. Wolcott, Indian agent at Chicago.

On the 19th of August, in the year 1828, the military post was again occupied by the troops of the government, acting under the order of the Secretary of War, as one of the military posts of the United States. The post was again evacuated by the troops of the government in the month of May, 1831, though the government never gave up the possession of the military post, called Fort Dearborn; but left the same in the possession of one Oliver Newberry, who authorized George Dole to take and keep the same in repair; which said Dole accordingly did. Said post was again occupied by the troops of the government in June, 1832, under the command of Major Whistler, an office in the army of the United States. At the time Major Whistler took possession, being at the time of the war with the Sock and Fox Indians, several hundred persons were in the fort for security against the Indians. The military post has been occupied by the troops, and was generally known at Chicago to be so occupied from that date up to the commencement of this suit, and is still used for that purpose.

When the military post was evacuated in 1831, the quartermaster at the post, acting under orders, sold a greater part of the movable property, in and about the garrison, belonging to the government, but sold none of the buildings belonging to the military post.

In the year 1817, John Baptiste Beaubean bought of one John Dean, who was an army contractor at the post, a house built upon said land, by the said Dean, and gave him therefor one thousand dollars; attached to the house was an enclosure used and occupied by said Dean, as a garden and field, and Mr. Beaubean then took possession of the house and enclosure, and continued in possession, cultivating a part of the enclosure every year, from the year 1817 to the 17th of June, 1836.

In 1823, the factory houses built at the post upon the tract of land, were by order of the Secretary of the Treasury sold, and Capt. Henry Whiting became the purchaser thereof. In the same year Whiting sold said improvements to the American Fur Company, and the company for the sum of five hundred dollars sold to said Beaubean, who took possession thereof, and continued to occupy the same, together with a part of the quarter section of land, to the date of the commencement of this suit. Mr. Beaubean continued to occupy said houses and enclosure upon the land, and to cultivate a part of the land unmolested and undisturbed by any person whatever, from the year 1817 up to the day of the commencement of this suit.

The land in question was surveyed by the government in the year 1821.

Since the military post was reoccupied by the United States troops in 1832, as before stated, to wit, before the first day of May, 1834, the United States built a lighthouse upon part of the land, and have kept constantly enclosed and cultivated for the use of the said garrison at least twenty acres of said land. The United States troops, by order and consent of the government, have also used and occupied various other government lands near and adjoining the quarter section of land.

On the 2d of September, 1824, Dr. A. Wolcott, Indian agent, then stationed at Chicago, wrote the following letter to the Secretary of War of the United States, to wit:

'Fort Dearborn, Chicago, Sept. 2, 1824.

'Sir: I have the honour to suggest to your consideration the propriety of making a reservation of this post and the fraction on which it is situated, for the use of this agency. It is very convenient for that purpose, as the quarters afford sufficient accommodation for all the persons in the employ of the agency, and the storehouses are safe and commodious places for the provisions and other property that may be in charge of the agent. The buildings and other property, by being in possession of a public officer, will be preserved for public use, should it ever be necessary to occupy them again with a military force.

As to the size of the fraction I am not certain, but I think it contains about sixty acres; a considerable greater tract than that is under fence; but that would be abundantly sufficient for the use of the agency, and contains all the buildings attached to the fort, such as a mill, barn, stable, &c. which it would be desirable to preserve.

I have the honour to be, &c.,

ALEXANDER WOLCOTT, Jun., HON. J. C. CALHOUN, Secretary of War.

Indian Agent.'

Which letter John C. Calhoun, then Secretary of War of the United States, on the 30th of September, 1824, enclosed with the following note to George Graham, Esq., Commissioner of the General Land Office of the United States.

'Department of War, 30th Sept. 1824.

'Sir: I enclose herewith a copy of a letter from Dr. Wolcott, Indian agent at Chicago, and request you will direct a reservation to be made for the use of the Indian department at that post, agreeably to his suggestions. I have the honour to be, &c.

GEORGE GRAHAM, Esq.,

J. C. CALHOUN.

Commissioner of the General Land Office, Treasury Department.'- And thereupon, on the first day of October, 1824, George Graham, then commissioner of the land office, addressed a letter in reply to the Secretary of War, at the same time subjoining to the letter of the said Secretary of War, this note, to wit: 'Answered the first of October, 1824, and the frac. Sec. 10, T. 39, N. R. 14 E. coloured and marked on the map, as reserved for military purposes.'

The letter in reply is as follows, to wit:

'General Land Office, 1st of October, 1824.

'Sir: In compliance with your request, I have directed that the fractional section 10, Township 39, N. R. 14 E., containing 57.50 acres and within which Fort Dearborn is situated, should be reserved from sale for military purposes. I am, &c.

GEORGE GRAHAM.

HON. J. C. CALHOUN, Secretary of War.'

Which fractional section, mentioned in the foregoing letter of George Graham, embraces the premises sued for, and Fort Dearborn, occupied by the United States as aforesaid.

After the writing and receipt of the letters aforesaid, to wit, on the 29th day of May, 1830, Congress passed a law granting the right of pre-emption upon the public lands to every person who cultivated any part of a quarter section of said land in 1829, and was in the actual possession thereof on the 29th day of May, 1830; but which pre-emption right does not 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 whatsoever, or for the use of the United States, or either of the states in which any of the public lands may be situated. Mr. Beaubean having cultivated a part of F section in 1829, and having been in possession of a part so cultivated on the 29th day of May, 1830; on the 7th day of May, 1831, made application to the Register and Receiver of the United States land office at Palestine, in Illinois, and offered to prove a pre-emption upon the land, and purchase the same at private sale, under the pre-emption law, which claim of pre-emption upon the land was not by the Register and Receiver at Palestine allowed to Mr. Beaubean.

One Robert Kenzie, on the 7th day of May, 1831, made application to the Register and Receiver of the land office, to be allowed to enter at private sale a part of the same fractional section 10; and the claim by the said Register and Receiver was then passed and allowed, and Robert Kenzie was then permitted to enter at private sale, under pre-emption law, the north fraction of fractional section ten.

After the application of Mr. Beaubean to the Register and Receiver at Palestine as aforesaid, to wit, on the 7th and 12th of May, 1831, Joseph Kitchell, then Register of the land office, addressed letters to Elijah Hayward, Esq., then Commissioner of the General Land Office of the United States, informing him of the application of the said Beaubean to enter said S. W. F section 10 town 39, north of range 14 east, under the pre-emption act; and on the 2d of November, 1831, Mr. Beaubean addressed a...

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