State v. Dickinson

• Decision Date: 30 December 1901
• Citation: 129 Mich. 221,88 N.W. 621
• Court: Michigan Supreme Court
• Parties: STATE v. DICKINSON et al.

88 N.W. 621

129 Mich. 221

STATE v. DICKINSON et al.

Supreme Court of Michigan

December 30, 1901

Error to circuit court, St. Clair county; James B. Eldridge, Judge.

Ejectment by the state against Don M. Dickinson and another. From a judgment in favor of defendants, the state brings error. Affirmed.

Horace M. Oren, Atty. Gen. (Avery Bros. and Geer &amp Williams, of counsel), for the State.

Elliott G. Stevenson and Benjamin S. Warren, for appellees.

MOORE J.

This action is ejectment, brought by the state of Michigan against Don M. Dickinson and another, to recover certain lands situate on Stromness or Dickinson Island, being a part of St Clair Flats, in St. Clair county. There are two cases. While the title to only the lands described in the declaration can be settled in this case, the decision of the court will control as to the entire island, except the private claim, in all amounting to about 3,500 acres. From a judgment in favor of the defendants the case is brought here by the plaintiff by writ of error.

The cases were tried before the late Judge Eldridge. A large mass of testimony was taken. The learned judge filed carefully prepared and voluminous findings of fact and conclusions of law. It will not be necessary to state them all. He found That Stromness Island is the island mentioned in a deed from the chiefs of the Chippewa nation of Indians to James Thompson of the 22d of September, 1780. 'That the earliest settlements were made in the last century, as early as 1783, for farming purposes, upon Stromness Island, and were four in number, between which there were on and before 1850 recognized boundaries, to wit: First, the portion occupied by James Thompson; second, the portion occupied and improved by John Lawton; third, a settlement under one Eddy who claimed under James Thompson, under whom subsequently one Cartwright claimed (the same Thompson to whom the Chippewa Indian deed of the whole island ran as the same is in evidence), and which is also known as the Gage and Davenport tract, and on which was also settled at one time Angus McDonald; the fourth and last settlement was next below the Cartwright or Gage and Davenport tract, and was settlement under the same John Lawton. These settlements embraced the whole island within their channel boundaries.' The judge then discusses a controversy which arose between parties each of whom claimed under Cartwright, which was passed upon by a board of land commissioners created by act of congress. The findings then continue as follows: 'That previous land boards having jurisdiction in Michigan territory under acts of congress had declined to entertain applications for confirmation of titles or possessory rights under the acts of congress which created them for lands on this island because of the doubts existing as to whether these islands were within the dominion of his Britannic majesty or within the United States, as expressed in article sixth of the treaty of 1814.' 8 Stat. 218. 'That some of the records of the land commissions, covering the time when the settlers on Stromness Island might have entered their claims with the register in the time and manner provided by law (Act March 3, 1807; 2 Stat. 437), have been lost, and cannot be found. That the records of the land board under the act of 1820-1823 (3 Stat. 572, 724) show that claims were entered and presented on behalf of settlers on Stromness Island, or their grantees or heirs, before earlier land boards, and that some of the records of the proceedings of said earlier land boards, and as well the original papers and documentary evidence relative to claims entered, had passed into the hands of the enemy during the war of 1812-1814, and were reclaimed only partially and in fragments, and had not escaped mutilation. Therefore, because of these facts, and the long-continued and undisturbed possession of the settlers on Stromness Island, under the circumstances and conditions hereinafter stated, as a matter of fact, under a presumption in favor of such possession, the proper entries with the register in the time and manner provided by law were made by the several settlers on this island.' He found that the policy of the British government, which was especially enforced by the king's lawfully authorized officers along this boundary both before and after the War of Independence was to give notice to all persons contemplating settlement that they were strictly forbidden from settling under grants to individuals from the Indians or Indian tribes without permission or authority from the crown, or until the Indian title to the lands was merged in the crown, and the confirmation granted to bona fide settlers. 'That during the enforcement of this policy there was recorded in the registry of conveyances of lands in Canadian territory, and kept under the authority of the officials of the British government, the deed bearing the date September 22, 1780, from the chiefs of the Chippewa Indians of the whole of Stromness Island to James Thompson, as shown by said records now transferred to and a part of the records of Wayne county, Michigan.' 'That there was a similar record kept of transfers and evidence of titles to lands from the British government, and that a record was kept of land titles of the character included in the proceedings of the land board for the district of Hesse from the year 1784 to the month of May, 1790, which has been lost, and of which no trace exists at the time of this hearing.' 'That records affecting Indian titles or the action of the British government in respect to claims of settlers upon lands claimed under Indian titles, including Stromness Island, are mixed, scattered, and incomplete; some probably having been lost. That of said records containing land grants for the same territory embraced in the province of Hesse and confirmations of Indian grants by the government some are in the crown land department at Toronto, others at Ottawa, Quebec, and Montreal, and some Indian documents have been taken to England. That such records in Montreal, Quebec, and Ottawa are unclassified, unindexed, and in such masses and confusion with other documents that such records as aforesaid of Indian titles are inaccessible to search.' 'That the island in question was embraced in the district of Hesse, a division of territory established by the British government through Lord Dorchester, captain general and commander in chief of the province of Quebec, by proclamation under and in the name of the crown, on July 24, 1788, and before this were embraced in the province of Quebec, in North America, by the imperial act 14 Geo. III. c. 83, in 1774.' 'That the possession of the said settlers, Dickinson's original grantors, was never disputed or disturbed by the British government, nor their title called in question by it, from before the close of the war, 1783, until the claim of jurisdiction of Great Britian ended by surrender of possession or evacuation in July, 1796.' 'That by the treaty of the United States with the Chippewas, known as the 'Treaty of Detroit,' the Indian title to all lands not vested in settlers within the boundary stated in the treaty which embraced Stromness Island was extinguished and vested in the United States, and that by act of congress approved April 25, 1808 (2 Stat. 502), it was provided that the lands to which the Indian titles were extinguished by the said treaty of Detroit should be made a part of the district of Detroit, and be offered for sale at that place; and the unsurveyed lands on Stromness or Dickinson Island were never offered for sale by the United States, either before 1822 or afterwards.' 'That from the acquirement of the possession and jurisdiction of the territory including this island in July, 1796, by the United States, to the present time, the possession of the Lawtons and Thompson, and of those under them and their grantees, has never been disturbed by the United States government, or any of its authorities.' 'That Brown, who conveyed to Morrison in 1830, and Morrison, who conveyed to Abram Smith in 1843, both of whom held possession under and through grants from John Lawton, made in 1817, and Angus McDonald, who lived and died upon the island, were all British subjects, and supposed they held possession under the British government.' 'That at the time of the passage of the 'swamp land act' (5 Stat. 519), so called, in 1850, the said defendant Dickinson, his ancestors and grantors, had been in continuous, undisputed, undisturbed, and unquestioned possession of the lands in suit for a period of nearly seventy years.' The judge also found that from 1847 to 1885 these lands were regularly assessed against the persons who claimed to be the owners thereof, and the taxes were paid thereon. He also reviews the correspondence which was had commencing about 1885 between the officers of the state land office and the officers in charge of the federal land office, which shows that the federal authorities declined to recognize any right upon the part of the state or of individuals to have these lands surveyed because of the claims made by Mr. Dickinson to be the owner. He also reviews at length the proceedings had before congressional committees in relation to these and similar lands. He then found as a conclusion of law that: 'In view of the provisions of article 2 of the treaty of 1794 (8 Stat. 117), the presumption arises as against the state and as against the United States of a valid grant by the British or Canadian government to the defendant's grantors, through whom he claims title, or a recognition by the said governments of their right of property in and right of possession to the then settlements on the mainland of Stromness Island, now claimed by defendant, and permission by...