Jacob Brown, Jacob Nisswaner, Fontaine Beckham, John Unseld, and George Moler, Plaintiffs In Error v. Benjamin Huger

• Citation: 21 How. 305,62 U.S. 305,16 L.Ed. 125
• Parties: JACOB B. BROWN, JACOB NISSWANER, FONTAINE BECKHAM, JOHN C. UNSELD, AND GEORGE W. MOLER, PLAINTIFFS IN ERROR, v. BENJAMIN HUGER
• Decision Date: 01 December 1858
• Court: United States Supreme Court

62 U.S. 305

21 How. 305

16 L.Ed. 125

JACOB B. BROWN, JACOB NISSWANER, FONTAINE BECKHAM, JOHN

C. UNSELD, AND GEORGE W. MOLER, PLAINTIFFS IN ERROR,

v. BENJAMIN HUGER.

December Term, 1858

THIS case was brought up by writ of error from the Circuit Court of the United States for the western district of Virginia.

The facts are stated in the opinion of the court.

It was argued by Mr. Davis and Mr. Johnson for the plaintiffs in error, and Mr. Hull and Mr. Mason for the defendant, on which side there was also a brief by Mr. Black, (Attorney General.)

The counsel for the plaintiffs in error made the following points:

1. That the court withdrew from the jury all questions touching the proof of the patent and the particular boundaries thereof, though the defendants' cases consisted in showing the boundaries in the only copy of the patent produced to be erroneous, and the patent itself appeared to have issued irregularly, and without a precedent survey for the patentee.

Barclay et al. v. Howell's Lessee, 6 Peters, 498, 508, 511.

2. That the court withdrew from the jury the question, whether the fourth point of the defendant's patent, being in fact near and not on the river, was, under all the circumstances of the locality and survey, on or only near the river; or, in a word, whether the point 18, or the point G, or a point on the river at the end of a line from either 18 or G, perpendicular to the river, were the true fourth point, and whether the river or the right lines mentioned in the patent were the true boundary?

Barclay v. Howell, 6 Peters, 498, 508, 511.

3. Though it be conceded that, in many cases, a call for a point on a river, and then up or down the river to another point on the river, will in law be a call for a line with the river, yet this case is not within the principle; but, calling for a point near the river, it must be a question of fact where the point is, and how far from the river, as the law cannot determine the length of what parties meant by near. It must be for the jury to say, whether near means on the river, or is only a general description of the locality of the point, which is itself the real point contemplated by the patent.

Connelly v. Bowie, 6 Harris and Johnson, 141.

Rogers v. Moore, 7 H. and J., 141.

Hammond v. Ridgely, 5 H. and J., 245, 255.

Howard v. Ingersoll., 13 Howard, 414, 418.

Mr. Mason made the following points:

First Point. The instruction asked for by the defendant assumes that the question of boundary at issue between the parties depends on the construction to be given to the calls of the senior patent, which, being a question of law, was properly referred to the court.

Second Point. The question of boundary was, whether, upon the evidence before the court, the boundaries set out in the senior patent were to be taken as the artificial lines there stated by course and distance, or the natural boundaries, the two rivers referred to in the patent.

The senior patent granted by Lord Fairfax to Robert Harper, and dated April 25th, 1751, corrected by the original survey of the 4th April, 1750, and having such correction established by other proofs, for the boundaries in question, calls as follows:

'Beginning at a sycamore standing on the edge of Shenandoah river, and extending thence down the said river south, fifty-five degrees east, forty-four poles, north, sixty-six degrees east, seventy-two poles, to a sycamore standing at the point; and thence up Potomack river north, forty-eight degrees west, two hundred poles, to a chestnut tree standing near Potomack, opposite to a small island.'

The deed under which defendant claims from the devisee and heirs of the patentee to George Whahington, President of the United States, dated June 15, 1796, calls the land conveyed the 'Harper's Ferry tract,' and describes the premises (as to the boundaries in question) as bounded 'by the river Potomack on the outside, by the river Shenandoah on another side.'

It is contended, on the part of defendant, that by the calls of this patent, in construction of law, (as well interpreted by the deed last referred to,) the two rivers, Potomac and Shenandoah, are to be taken as the boundaries in question.

If this be so, it is conclusive of the case.

On this point, the defendant cites——

New York: Starr v. Child, 20 Wendell, 156; Trustees of the town of Kingston v. Louw, 12 Johnson, 252.

Massachusetts: Mayhew v. Norton, 17 Pickering, 357.

North Carolina: Hammond v. McGlaughan, Taylor's Rep., 136; Rogers v. Mabe, 4 Devereaux, 180; Hartsfield v. Westbrook, Haywood's Rep., p. 297.

Kentucky: Cockerell v. McQuin, 4 Monroe's Rep., 61; Bruce v. Taylor, 2 J. J. Marshall's Rep., 160.

Ohio: McCulloch v. Aton, 2 Ohio Supr. Court Rep., 308; Newsom v. Pryor, 7 Wheaton, 7 and 10.

Mr. Justice DANIEL delivered the opinion of the court.

This was an action of ejectment instituted by the plaintiffs in error against the defendant, in the Circuit Court of the county of Jefferson, in the State of Virginia.

The locus in quo being held and occupied by the defendant as an officer of the United States, and in virtue of their right and authority, the suit was, under the act of Congress of 1789, removed, upon petition, to the Circuit Court of the United States for the western district of Virginia, within which district the property in dispute is situated. The claim of the plaintiffs is founded on a patent from the Lieutenant Governor of Virginia, granted to Jacob Brown and Jacob Nisswaner, dated July 29, 1851, and granted in virtue of a land office Treasury warrant for the location of waste and unappropriated lands. This patent, according to the various courses and distances therein set forth, purports to grant the quantity of thirty-nine acres and two roods. Beckham, Unseld, and Moler, three of the plaintiffs, derived their title directly from the patentees above named, as was shown by conveyances from the latter, which were read in evidence. The plaintiffs also introduced a survey plot and report, made by A. Trotter, surveyor, in pursuance of an order of court in this cause; and relied upon the same, with other evidence, to show that the land granted by the patent of 1851 was correctly laid down and described in the survey, and that the defendant was in the possession of the land claimed at the commencement of the plaintiff's action.

The defendant, holding the premises as the agent and under the authority of the United States, defended the right to the possession, as held by him, upon the following proofs, being certified copies from the records of the land office of the State of Virginia, by S. A. Parker, the register of that office. 1st. An entry in the office of the Lord Proprietor of the Northern Neck of the State of Virginia, (within which portion of the State the land in contest is situated,) in the following words, viz: '1750, April 4. Surveyed. James Nickols, of Frederick county, Virginia, entered about two hundred acres of waste and ungranted land at the mouth of the Shanandoah river.' And an order from Lord Fairfax to Guy Broadwater, in the words and figures following, viz:

'To Mr. Guy Broadwater:

'Whereas James Nickols hath informed that there are about two hundred acres of waste and ungranted land where he now lives, and desiring a warrant to survey ye same, in order to obtain a deed, being ready to pay ye composition and office charges: These are therefore to empower you, ye said _____, to survey ye said waste land, provided this be ye first warrant that hath issued for ye land; and you are to make a just and accurate survey thereof, describing the course and distance per pole; also ye cuttings and boundings of the several persons' lands adjoining; and where you cannot join to any known lines, you are to make ye breadth of ye tract to bear at least ye proportion of one-third of ye length, as ye law of Virginia directs; you are also to insert ye name of ye pilote and chain carryers made use of and employed; a plat of which said survey, with this warrant, you are to give into this office any time before ___ day of _____, next ensuing. Given under my hand and seal of ye proprietor's office, this ___ day of _____, in ye twenty _____ year of his majesty King George ye second reign.

FAIRFAX.'

2d. And a plat and certificate of survey by said Broadwater, in the words and figures following, viz:

'By virtue of a warrant from ye proprietor's office, dated the 4th of April, 1750, granted to James Nickols one certain parcel or tract of land situated and lying in Frederick county: Beginning at A, a sickamore standing upon ye edge of Shenandoah, extending down ye said river S. 55 E. 44 poles to B; thence N. 66 E. 72 poles to C, a sickamore standing upon ye pitch of ye point of Shenandoah; thence up Potomac N. 48 W. 200 poles to D, a chestnutt tree standing near Potomac river, side oppositt to a small isleland; thence west 105 poles to E, a white oak; thence S. 140 poles to F, a red oak; thence east 150 poles to ye beginning, containing 125 acres, surveyed by me.

'GUY BROADWATER.

'JOSEPH CANTNELL,

'JOSEPH NICKOLS,

Chain-carriers.'

Endorsed: 'Deed issued 25th April, 1751.'

An official certificate from S. H. Parker, register of the Virginia land office, dated Richmond, June 27th, 1854, in the following words:

'I, S. H. Parker, register of the land office of Virginia, do hereby certify, that it does not appear that any grant has been issued on the survey made by James Nickols for 125 acres of land in Frederick county to any person except Robert Harper, to whom a grant issued on the 25th day of April, 1751, which date agrees with the date on Nickols' survey. And I further certify that I can find no survey of Robert Harper for 125 acres on file in this office.' 3d. A grant from the Lord Proprietor of the Northern Neck, in the following words:

'The Right Honorable Thomas Lord Fairfax, Baron of Cameron, in that part of Great Britain called Scotland, proprietor of the Northern Neck of Virginia:

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