French v. Bankhead
| Decision Date | 17 May 1854 |
| Citation | 52 Va. 136 |
| Parties | FRENCH v. BANKHEAD. |
| Court | Virginia Supreme Court |
1. By statute, the general assembly of Virginia agree to cede to the United States the soil and jurisdiction to the extent of two hundred and fifty acres at Old Point Comfort, for the purpose of fortification and other objects of national defence, and authorize the governor to convey the land by deed to the United States. The land is a peninsula bounded by Chesapeake bay, Hampton roads and Mill creek. The governor directs a survey of the land to enable him to convey, and directs the surveyor to lay off the two hundred and fifty acres as the United States shall elect to take it. The surveyor returns a plat and report, in which he says that the United States elected to take by high water mark, and he gives the courses and distances, commencing at a point at high water mark, and running nearly coincident with high water mark except where it runs from Mill creek to the bay and in that course it stops on the bay at high water mark. The deed takes the description by course and distance from the report, but does not refer to it in terms. HELD:
1. That in determining the boundaries of the land ceded to the United States, the act, the report and the deed are all to be looked to in order to ascertain what boundary was intended.
2. Looking to the act, the report and the deed, the intention was to convey by the high water mark, and that is the boundary of the conveyance.
3. That under the act, 1 Rev. Code of 1819, ch. 87, p. 341, the conveyance by the high water mark boundary passed to the United States the soil and jurisdiction to the low water mark.
2. The land at Old Point Comfort had been appropriated by legislative enactments, to the public use; and it was not therefore subject to be appropriated by individuals as waste and unappropriated land, by entry and patent.
This was an action of ejectment in the Circuit court of Elizabeth City county, brought by James S. French against General James Bankhead, the officer of the United States in command at Fortress Monroe. The facts are stated in the opinion of the court delivered by Judge ALLEN.
It will be seen from the statement of facts that French's patent purports to commence at the southeast corner of Mill creek bridge, the beginning corner in the deed from the governor of the state of Virginia, conveying to the United States two hundred and fifty acres of land at Old Point Comfort; and it calls for the lines of the United States land from that point along Mill creek: And the great question in the cause was whether the United States held by a water boundary which gave them the land to low water mark, or whether their title was limited to the lines of their deed which were intended to be and were substantially conformable to high water mark? Another question was, whether the land covered by the patent of French was waste and unappropriated land subject to entry and survey?
After all the evidence had been introduced, the plaintiff asked the court to instruct the jury:
1st. That if the jury shall be of opinion that the deed executed by David Campbell, the governor of Virginia, to the United States, was actually executed by him, as the conveyance in writing which he was authorized by the act of March 1st 1821, to make, of soil and jurisdiction to the United States and was accepted and received by the United States as the conveyance in writing which was to be executed by the governor of Virginia to convey soil and jurisdiction under the said act of March 1st, 1821, then said deed is to be taken as the agreement of the commonwealth of Virginia and of the United States, of what should be the boundary of the territory so ceded; and in ascertaining what the boundaries are as so ceded, and in ascertaining what the boundaries are as made by the said deed, the jury are to construe the said deed by the words and terms to be found in the deed itself and cannot vary, alter or add to the words of the deed by any extrinsic evidence, or evidence without the deed itself.
2d. If in construing the deed and applying it to the land, the subject of the grant, by the descriptive calls of the deed, any ambiguity should arise, then the jury must be governed in solving such ambiguity, by the descriptive calls used in the deed itself; but evidence derived from matters without the deed, may be used to explain the terms or words used in the deed, and apply them to identify the land granted; but cannot be used to change the terms or words of the deed, or make an agreement for a boundary not called for in the descriptive words of the deed.
3d. That in law a distinction exists between a boundary by courses and distances and a high water mark. When courses and distances alone are called for in the deed, and high water mark is not called for therein, then as a matter of legal construction the deed is an agreement to make the boundary a boundary by courses and distances, and not by high water mark.
These instructions the court refused to give. There was a fourth instruction asked for by the plaintiff, which was given; and which it is not necessary to state.
The defendant asked for five instructions to the jury, the first of which the court refused to give: The other four were as follows:
2d. If the jury believe from the evidence that the agent of the United States at the time of the survey in 1838, elected the line of high water as the boundary of the lands of the United States on the Chesapeake bay, Hampton roads and Mill creek, and that the lines run by the surveyor were designed to correspond generally with said high water line, and did so correspond generally; and that the courses and distances mentioned in the deed from the governor of Virginia to the United States, are the courses and distances of the lines so run, then the boundary of said lands is a water boundary, notwithstanding the courses and distances called for in said deed. And the water boundary so established extends, by virtue of the act of assembly then and still in force, to the ordinary low water mark; and consequently the plaintiff acquired no title by his patent, to any lands described therein which lie above the ordinary low water mark.
3d. The lands covered by Mill creek at ordinary high tide were not patentable at the time the plaintiff obtained the patent under which he claims in this case; and the said patent therefore gave the plaintiff no title to such lands; and as to all such lands embraced by the said patent, the jury should find for the defendant.
4th. The lands between high water mark and ordinary low water mark, were not subject to entry at the time of the entry on which the plaintiff's patent is founded. And if the jury believe from the evidence that any part of the lands covered by the said patent lie between ordinary high water mark and ordinary low water mark, then as to such lands the plaintiff acquired no title by said patent; and the jury as to such lands should find for the defendant.
5th. The lands at the Old Point Comfort, extending to low water mark on the Chesapeake bay, Hampton roads and Mill creek, were not liable to entry as waste and unappropriated lands at the date of the entry on which the plaintiff's patent is founded. And if the jury believe from the evidence that the lands covered by the said patent, or any part thereof, are part of the lands known as Old Point Comfort, then the plaintiff acquired by his patent no title to such lands or any part thereof, above the ordinary low water mark; and as to all such lands embraced by said patent, the jury should find for the defendant.
These instructions the court gave. And to the opinion of the court refusing to give the three first instructions asked for by him, and giving the four last instructions asked for by the defendant, the plaintiff excepted. There was a verdict and judgment for the defendant; whereupon French applied to this court for a supersedeas, which was allowed.
The case was most elaborately argued by Baxter and Cox, for the appellant, and Joynes and Lyons, for the appellee.
For the appellant, it was insisted:
1st. That the deed was the exponent of the agreement between the state of Virginia and the United States; and could alone be looked to, to ascertain what were the boundaries of the land thereby conveyed. As mediately or immediately bearing on this question, they referred to The People v. Godfrey, 17 John. R. 225; United States v. Bevans, 3 Wheat. R. 336; Broom's Maxims 266, 267, 50 Law Libr.; Dwarris on Statutes 22, 9 Law Libr.; 1 Philips' Evi. 538, 548; Miller v. Travers, 21 Eng. C. L. R. 288; McIver v. Walker, 9 Cranch's R. 173; S. C. 4 Wheat. R. 444; Chinoweth v. Haskell, 3 Peters' R. 92; Howard v. Ingersoll, 13 How. S. C. R. 381; Decatur v. Paulding, 14 Peters' R. 497; Foster v. Neilson, 2 Peters' R. 253.
2d. That the deed not calling for a water boundary, but a boundary by courses and distances, the United States is not entitled to claim by a water boundary, though in fact the courses and distances called for in the deed are coincident with the high water mark. On this question they referred to Rutherforth's Inst. 463-4-5; Schutz on Aquatic Rights 117, 122, 125, 24 Law Libr.; Hargrave's Law Tracts, 12, 14, 15, 25, 26, 31, 32, 35, 36; The King v. Ld. Yarborough, 3 Barn. & Cress. 91, 10 Eng. C. L. R. 19; Livingston's Argument in the Battuer Case; Houston v. Moore, 5 Wheat. R. 49; Commonwealth v. Clary, 8 Mass. 72; Harris v. Elliott, 10 Peters' R. 25.
3d. That if the deed was to be construed as conveying by the high water mark line, it did not operate to convey to low water mark. That whatever may be the general law of Virginia on the question, yet that the United States could only take, and did take, under a special act of the general...
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