Powell v. Field

• Decision Date: 13 November 1930
• Citation: 155 S.E. 819
• Parties: POWELL et al. v. FIELD et al.
• Court: Virginia Supreme Court

155 S.E. 819

POWELL et al.

v.FIELD et al.

Supreme Court of Appeals of Virginia.

Nov. 13, 1930.

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Before applicant made affidavit required by Code 1919, § 459, and filed his proof with his application with register of land office, the General Assembly passed Acts 1887-88, c. 219, providing that all unappropriated marsh or meadow lands lying on eastern shore of Virginia, remaining ungranted, and used as common, should remain ungranted, and this statute included land which state subsequently granted to applicant.

Appeal from Circuit Court, Accomack County.

Suit by James T. Powell and another against Samuel B. Field and another. From a decree dismissing the bill, plaintiffs appeal.'

Reversed, and injunction granted.

George L. Doughty, Jr., of Accomac, and John E. Nottingham, of Franktown, for appellants.

Gunter & Gunter, of Accomac, and James E. Heath, of Norfolk, for appellees.

HUDGINS, J.

This controversy is over 23.35 acres of land, a part of "Horse Marsh, " near Assateague Island, in Accomack county. The appellants claim the land by virtue of a lease, or assignment, bearing date September 4, 1923, from the commonwealth, through the oyster inspector of that district.

The appellees, through their predecessors in title, claim the same land by virtue of a patent, bearing date April 12, 1897, from the register of the land office, wherein the commonwealth granted to Samuel M. Field 114.56 acres, described by metes and bounds, of which the 23.35 acres in dispute is a part. The appellants filed a bill in equity, alleging that the grant from the commonwealth was invalid, and stating that, by virtue of their lease from the oyster inspector, they took possession of the land, planted oysters, paid taxes, etc., and remained in peaceful possession until some time in 1928, when one of the appellees attempted to take the same, planted oysters and clams thereon, and built a watch-house on the marsh adjacent to the land. The appellee, Joseph S. Pruitt, is lessee of Samuel B. Field, who is the immediate grantee from Samuel M. Field. The prayer for injunction was denied, the bill dismissed, and thereupon the complainants obtained an appeal to this court.

It appears that on November 28, 1887, Samuel M. Field made entry on the 114.56 acres of land, pursuant to a land office treasury warrant; the county surveyor on December 9, 1887, made the necessary legal survey, and on January 6, 1888, the affidavit required by section 2341 of the Code of 1887 (section 459, Code of 1919), which is as follows:

"The said Register [referring to the Register of the Land Office] shall not issue any grant for land upon any survey heretofore made and not yet carried into grant (other than an inclusive survey), or made hereafter, unless there be indorsed on such survey an affidavit of the person applying for the grant, as well as that of the surveyor making the survey, that they verily believe that the land embraced in the survey has not been previously appropriated, or that it was, at the time of the entry thereof, liable to entry, " etc.

The above section requires not only the affidavit of the surveyor, but also the affidavit of the holder of the warrant, to be attached to the survey. The two affidavits, the plat, and the certificate of survey must accompany the application and be filed with the register of the land office before the applicant is entitled to a grant from the commonwealth. Before Samuel M. Field made the required affidavit and filed his proof with his application with the register of the land office, the General Assembly passed the following act, which became effective on February 24, 1888:

"Be it enacted by the General Assembly of Virginia, that all unappropriated marsh or meadow lands lying on the eastern shore of Virginia, which have remained ungranted, and which have been used as a common by the people of this State, shall continue as such common, shall remain ungranted, and no land warrant located upon the same. That any of the people of this State may fish, fowl, or hunt on any such marsh or meadow lands. This act shall be in force from its passage." Acts 1887-88, p. 273, c. 219.

It is admitted that the 114.56 acres of land, or so much thereof as is not embraced within the term "shores of the sea, " was unappropriated marsh or meadow land lying on the eastern shore of Virginia, and had been used as a common by the people of the state.

Chapter 104 of the Code of 1887 (section 2299 et seq.) prescribed the necessary steps to be taken by a person desiring to purchase any public lands authorized by law to be sold, which steps may be briefly summarized as follows: First, he pays into the treasury 10 cents for each acre of land desired; thereupon the treasurer gives him a receipt for the money paid, specifying the purpose for which the payment is made; this receipt is delivered to the auditor of public accounts, who then gives to the purchaser a certificate stating the quantity of land to which he is entitled. This certificate is delivered to the register of the land office, and on it he issues a warrant specifying the quantity of land that may be taken. This warrant is then delivered to the county surveyor in any county in the state in which the holder desires to locate. The holder of the warrant is required to make his location known to the surveyor and to have the land surveyed. Within three months the surveyor shall deliver to the holder of the warrant a plat and certificate of survey, showing the quantity of land and its boundaries. This plat and certificate, with the affidavits and application for patent, shall be returned to the register of the land office within a year after the survey is made. Then, and not until then, is the purchaser entitled to a patent.

The question before the court is, Just when, in the various steps enumerated above, does the right of a purchaser become a vested in terest in the particular tract? The warrant issued by the register of the land office simply sets out that the purchaser has paid a certain amount of money and in consideration therefor is entitled to a certain number of acres of the public lands. The purchaser has a right at any time until demand for a grant is made to change his location, but once his location and survey is made he has a right, if he pursues the same, to obtain a grant from the commonwealth for the particular land embraced in the survey.

The appellees contend that the inchoate right of Samuel M. Field, at the time the act in question became effective, was a vested interest, and cite the case of Morrison v. Campbell, 2 Rand. (23 Va.) 206, as authority in support thereof, in which case the facts were as follows: David Duncan, pursuant to a land office treasury warrant, made entry and surveys of 21, 000 acres of land in Greenbrier county, and died in 1791 before obtaining a patent therefor. Wallace and Kirk-patrick were named as his executors and authorized to sell and dispose of his real estate and personal property. James Morrison, in 1806, purchased the surveys and warrant from the executors.

James Welch claimed this land by virtue of an assignment of the entries from David Duncan in 1796, five years after Duncan's death. Welch executed a deed of trust on the land to secure a debt which was not paid, and the property was sold by the trustees under the deed of trust; the purchaser at the deed of trust sale later obtained a patent therefor.

James Morrison filed a bill claiming that the patent issued by the commonwealth was fraudulently obtained, and that he, as an assignee of the executors of James Duncan, was entitled to the land. It was held that warrants and surveys of land may be assigned, but that a mere entry is not subject to assignment, and that David Duncan, at the time of his death, had an inchoate right In the land, which was real, and not personal estate, that the assignment of the executors was valid and the patent to James Welch's assignees was fraudulently obtained and conveyed no interest, and that they held the legal title as trustees for Morrison.

Here the right of the commonwealth was not involved. The controversy was between a patentee, who had obtained his patent on a forged assignment of the entry, and the assignee of the executors of a party who had made entry, location, and survey.

In the case of Johnson v. Brown, 3 Call (7 Va.) 259, at page 267, it is said: "An entry is the first legal step towards acquiring waste land and gives the person making it, If properly pursued, a preference to a grant, the true definition of an equitable interest. Thesurvey is a progressive legal step, but it is the grant, only, which passes the legal title."

In the case of French v. Successors of Loyal Co., 5 Leigh (32 Va.) 627, at page 649, it was held: "Before the revolution; all the lands in the country belonged to the king, until granted out by him. There were then, as now, various and successive steps necessary to be taken for the purpose of getting a grant for lands; such as locations or entries, surveys &c. &c. These various steps gave incipient rights, or equitable interests in the land; and he who took the first legal step,...