Morrow v. Whitney

• Decision Date: 01 October 1877
• Citation: 95 U.S. 551,24 L.Ed. 456
• Parties: MORROW v. WHITNEY
• Court: U.S. Supreme Court

95 U.S. 551

24 L.Ed. 456

MORROW v. WHITNEY.

October Term, 1877

ERROR to the Supreme Court of the States of Wisconsin.

This is an action of ejectment brought in the Brown County Circuit Court, Wisconsin, by Whitney and Baker, for the possession of a tract of land, consisting of ninety-four acres and a fraction of an acre, situated in the borough of Fort Howard, in that county and State. On the trial, the plaintiffs deraigned title to the premises from one Pierre Grignon, to whom a patent of the United States was issued June 2, 1870. The defendant Morrow set up an adverse possession of the premises in himself, and parties through whom he derived his interest, for more than forty years, under a claim of title founded upon a written instrument as a conveyance of the premises. On the trial he relied upon a legislative confirmation of a claim under the act of Congress of Feb. 21, 1823, of one Alexis Gardapier, from whom he traced his title.

Judgment was rendered in favor of the plaintiffs, and, it having been affirmed by the Supreme Court of the State, Morrow sued out this writ of error. The additional facts are stated in the opinion of the court.

Mr. Timothy O. Howe for the plaintiff in error.

Mr. Matt. H. Carpenter, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

The act of Feb. 21, 1823, 3 Stat. 724, after reviving and continuing in force certain previous acts for the adjustment of land claims in the Territory of Michigan, which them included Wisconsin, provided, in its fifth section, that every person who, on the 1st of July, 1812, was a resident at Green Bay, or at other places named, and had then occupied and cultivated a tract of land within either of those settlements, or had occupied a tract of land formerly cultivated by him, and had continued to submit to the authority of the United States, should be confirmed in the tract thus occupied and cultivated. The section did not in terms require the commissioners created under the previous acts, and continued in authority with reference to other claims, to report to Congress their action upon the new claims arising under this section; but we think it was the intention of Congress to place such claims on a similar footing with those to which the previous acts referred; and that with respect to them the commissioners should be invested with similar powers and be subject to similar duties. And upon that idea the commissioners acted. They considered the claims presented under the fifth section, and the evidence to bring the claims within its provisions, and they reported the result of their labors to the Secretary of the Treasury. The report stated what claims they had confirmed, and what claims they had rejected, with the evidence upon which their deci ion was based. Among the claims considered and confirmed by them was one presented by Alexis Gardapier, and one presented by Pierre Grignon. The claim of Gardapier was to a certain tract situated on the west bank of Fox River, at Green Bay, described 'as being a vacant strip lying between tract number one, confirmed to Jacques Porlier, on the north, and tract number two, confirmed to Louis Grignon, on the south, commencing at low-water mark and running west eighty arpents, and in width three arpents on the aforesaid river.' American State Papers, Public Lands, vol. iv. p. 272. The commissioners decided that the tract claimed be confirmed to Gardapier, provided it did not interfere with a previous confirmation.

The claim of Pierre Grignon was to a tract of land near Fort Howard, on the west side of Fox River, at Green Bay, immediately below the first creek that emptied into the river, being about fifteen acres in front on the river, and extending back indefinitely. The commissioners decided that this claim be confirmed, provided it did not interfere with the confirmation previously made to Jacques Porlier, or with the one made by them to Alexis Gardapier. The commissioners gave their decision upon both of these claims on the same day, Nov. 21, 1823. Their report was presented to the Secretary of the Treasury, and by him referred to Congress; and, on the 17th of April, 1828, Congress passed an act confirming the claims 'purporting to be confirmed, or recommended for confirmation,' by the commissioners. 4 Stat. 260. The act required the Secretary of the Treasury to adopt such measures as might be necessary to give full effect to the reports of the commissioners, but with a proviso, among other things, that the confirmations should not be so construed as to extend to any lands occupied by the United States for military purposes. The act, also, made it the duty of the register of the land-office at Detroit to issue to the claimants whose claims were confirmed patent certificates upon which patents were to be granted by the Commissioner of the General Land-Office.

If the land claimed by Gardapier were not occupied at the time by the United States for military purposes, there was no impediment to the immediate operation of the act upon his title. Whether there was any evidence of such occupation we shall presently consider. Assuming now that there was no such occupation, the effect of the act was not doubtful. It recognized...