Joshua Kennedy Executors Et Al Plaintiffs In Error v. Lessee of Jonathan Hunt, John Hagan Et Al Defendants In Error

• Decision Date: 01 January 1849
• Citation: Joshua Kennedy Executors Et Al Plaintiffs In Error v. Lessee of Jonathan Hunt, John Hagan Et Al Defendants In Error, 48 U.S. 586, 7 How. 586, 12 L.Ed. 829 (1849)
• Parties: JOSHUA KENNEDY'S EXECUTORS ET AL., PLAINTIFFS IN ERROR, v. LESSEE OF JONATHAN HUNT, JOHN HAGAN ET AL., DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

48 U.S. 586

7 How. 586

12 L.Ed. 829

JOSHUA KENNEDY'S EXECUTORS ET AL., PLAINTIFFS IN ERROR, v. LESSEE OF JONATHAN HUNT, JOHN HAGAN ET AL.,

DEFENDANTS IN ERROR.

January Term, 1849

THIS case was brought up from the Supreme Court of the State of Alabama, by a writ of error, issued under the twenty-fifth section of the Judiciary Act.

The facts in the case are sufficiently set forth in the opinion of the court.

It was argued by Mr. John O. Sargent and Mr. Johnson, for the plaintiffs in error, and by Mr. Underwood and Mr. Sargeant, for the defendants in error.

The points made by the counsel for the plaintiffs in error were the following.

The action was ejectment brought by plaintiffs below in the Circuit Court for Mobile county, to recover a piece of ground and ground covered with water, on Mobile River.

Plaintiffs gave in evidence the Spanish Orange Grove grant of 1807 to Forbes & Co., and the act of Congress entitled, 'An act adjusting the claims to land, and establishing land-offices in the districts east of the island of New Orleans,' passed 3d March, 1819. (3 Stat. at Large, 528.)

Defendants gave in evidence a Spanish concession of 1798 to Thomas Price, and an act of Congress of 2d March, 1829, entitled, 'An act confirming the reports of the register and receiver of the land-offices for the district of St. Stephens, in the State of Alabama, and for other purposes,' confirming said title by United States with surveys, location, certificate, report, and patent by United States to Joshua Kennedy, and the mesne conveyances from Price to defendants. (4 Stat. at Large, 358.)

I. The right of the defendants to the land in controversy was asserted under the act of 1829, and the decision of the court below was against that right. This brings the case clearly within the twenty-fifth section of the Judiciary Act.

In 1798, Price prayed Governor Gayoso to grant him a tract of twenty arpens by thirty, bounded on the east by the lots in the town of Mobile, and the river of said town. The donation was ordered accordingly, November 10, 1796.

In 1806, it was confirmed by the commandant, according to a plan accompanying his petition, and the deputy surveyor was ordered to survey the tract and make the boundaries, according to a 'copy from the surrounding survey.'

This tract, thus bounded, was confirmed by the act of 1829.

The patent, plan, survey, &c., all show that the confirmation contemplated the original boundaries; one of which, on the east, was the River Mobile.

Defendants insist that they are still entitled to go to the river, as one of their eastern boundaries; that the act of 1829 operated to confirm the title of Price to the tract described in the concession of 1798.

The decision of the court below was against the title or right set up under this act.

II. The court below charged the jury that the construction of the plaintiffs' (Forbes & Co.) grant as confirmed would authorize them to go to the channel of the river; and that the boundaries of the plaintiffs grant must be run and continued eastwardly till they reach the channel of the river.

Defendants excepted.

The grounds of exception are not specifically stated. It is

supposed that the exception lets in all legal objections of which the defendants could have availed themselves below. They appear in the record certified from the Supreme Court, and are alluded to in the opinion of the court. They set up the act of March 2, 1819, entitled, 'An act to enable the people of the Alabama Territory to form a constitution and State government, an for the admission of such State into the Union on an equal footing with the original States,' as a bar to the plaintiffs' claim, by establishing an outstanding title to the land in controversy in the State of Alabama. This is supposed to be a perfect defence. If the United States, on the 2d of March, 1819, dedicated the shore of Mobile River to Alabama, they could not grant it subsequently to an individual, or confirm an invalid Spanish grant to make it so operate. The court below decided, in effect, that the act in question did not vest the shore in Alabama, and that Congress could grant it to an individual. It is apparent on the record, that the construction of this statute was called in question, and that the judgment of the State court would not have been what it is, if there had not been a misconstruction of this statute to the injury of the defendants below, or a decision against the validity of the right, title, privilege, or exception set up under it; or, in other words, the question is necessarily involved in the decision, and the State court could not have given the judgment or decree which they passed without deciding it. (3 Pet. 398; 16 Pet. 285.)

III. The court below refused to charge, that, if the jury believed the line of division between the Forbes and Price grants was drawn by authority of the United States, and surveyed and patented to Price's assigns, and being a United States survey and location of both tracts, such survey was binding on the plaintiffs, and the said two titles would cease where such survey ceased to the east, and the riparious rights would commence where such survey ceased, according to the front of each.

Defendants excepted.

The court below charged that the grant of the plaintiffs, being confirmed by the act of 1819 as a complete title, it could not be affected or limited by any survey made by the authority of the United States, and that the jury should find without any regard to any such survey.

Defendants excepted.

Defendants insist that the surveys in evidence were made by authority of the United States, under the acts of 1819 and 1829, and of other acts providing for the survey and location of claims to land in the township of Mobile.

They further insist, that, by their charge, and their refusal to charge as requested, and their rejection of the United States surveys, the court ruled against the...