United States v. Grogg

• Decision Date: 12 December 1925
• Citation: 9 F.2d 424
• Parties: UNITED STATES v. GROGG et al.
• Court: U.S. District Court — Western District of Virginia

9 F.2d 424 (1925)

UNITED STATES v. GROGG et al.

District Court, W. D. Virginia.

December 12, 1925.

John T. Harris, of Harrisonburg, Va., and Harrison, Long & Williams, of Lynchburg, Va., for Grogg and others.

Edw. C. Martz, of Harrisonburg, Va., for Crary heirs.

McDOWELL, District Judge.

The questions to be considered have arisen in a condemnation proceeding brought by the government to expropriate for its Forest Reserve, inter alia, four tracts of land, each containing considerably less than 1,000 acres. The condemnation commissioners (section 4368, Code 1919) reported the amounts necessary as compensation and damages as to each tract separately, no exceptions to the report were filed, the report was confirmed, and the money was paid into court by the government. Thereupon (section 4374, Id.) a reference was made to a commissioner to report as to the proper distribution of the four funds. The only claimants who appeared before the commissioner were R. C. Grogg and E. B. Jones, who claimed all of the money under a patent issued to one James Swan, and Alexander P. Crary and other members of his family connection, to be referred to as the Crary heirs, who also claimed all of the money under the said Swan patent. The commissioner reported that Grogg and Jones were entitled to one-ninth, and the Crary heirs to eight-ninths, of each of the four funds. Grogg and Jones in due time filed exceptions to the commissioner's report.

The evidence adduced before the commissioner proved beyond doubt that each one of the four tracts, each of which is fully described by metes and bounds in the original petition to condemn, lies within the boundary set out in the above-mentioned Swan patent. This patent was issued by the commonwealth to James Swan in 1796. The patent describes a tract of land, lying then in Bath county, containing 17,000 acres, grants 16,000 acres thereof without description, and reserves 1,000 acres, also without description. The reservation in the patent reads as follows:

"But it is always to be understood that the survey upon which this grant is founded includes one thousand acres of prior claims (exclusive of the above quantity of sixteen thousand acres), which having a preference by law to the warrants and rights upon which this grant is founded, Liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants, and this grant shall be no bar in either Law or Equity to the confirmation of the title or titles to the same as before mentioned and reserved, with its appurtenances."

The habendum reads: "To have and to hold the said tract or parcel of land, with its appurtenances, to the said James Swan (except as before excepted) and his heirs forever."

The claimants made no attempt to prove title by possession, and no effort was made by any one to locate the reservation or any part thereof; and if it was necessary for the claimants under the Swan patent to locate the reservation of 1,000 acres of prior claims in order to show a right to any one of the four funds, it is obvious that they have not shown that they are entitled to any of the money. Inasmuch as the reservation may embrace any one of the four tracts in question, and as the title to any one of said tracts may now be in the commonwealth, or may have been in an infant or an insane defendant, or in some one, possibly not named as a party, and who has never heard of this proceeding, it seems to me an unavoidable duty that the court, of its own motion, shall take notice of this failure of proof, if it be such. At least a prima facie showing of right to a fund in court in cases of this character should be required before the court can properly order disbursement of the fund.

It is a familiar common-law rule that, where a right to relief is grounded on a negative assertion, or where a negative allegation is essential to the assertion of a right, the burden of proving the negative rests on the party asserting such right. 1 Greenleaf, Ev. (14th and 16th Ed.) § 78; 1 Wharton, Ev. (3d Ed.) §§ 356, 357; 1 Elliott, Ev. § 141; 5 Wigmore, Ev. § 2486, p. 440; 2 Ency, Ev. pp. 802, 803; 22 Corpus Juris, pp. 70, 71; 10 Ruling Case Law, p. 899. And this rule of the common law has been repeatedly enforced in this state. See Trotter v. Newton, 71 Va. (30 Gratt.) 582, 589, 590 (a caveat case); Nicholas v. Covey, 25 Va. (4 Rand.) 365; Carter v. Hagen, 75 Va. 557, 561, 562; Reusens v. Lawson, 91 Va. 226, 253, 254, 21 S. E. 347; Harman v. Stearns, 95 Va. 58, 67, 27 S. E. 601; Scott v. Ratcliffe, 5 Pet. 81, 86, 87, 8 L. Ed. 54; Armstrong v. Morrill, 14 Wall. 120, 143, 144, 20 L. Ed. 765 (ejectment cases); Boush v. Fidelity, etc., Co., 100 Va. 735, 739, 42 S. E. 877 (an action for malicious prosecution).

There is an exception to the foregoing rule, often properly applied, as follows: Where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by the other party. See 1 Greenleaf, Ev. (14th and 16th Ed.) § 79; 1 Elliott, Ev. § 141; 10 Ruling Case Law, § 53, p. 902; 3 Ency. Ev. pp. 804, 805; 22 Corpus Juris, pp. 70, 71. Whether or not this exception to the general rule can be applicable in any case where the claim to a fund is based on a claim to land under a grant containing an undescribed exception need not now be considered. In the present case no one has made any claim to any one of the four funds as owner of land excepted from the Swan patent. The commonwealth is not, and could not have been made, a party to this proceeding, and the commonwealth may be the owner of the reservation. The "prior claims" mentioned in the patent may have been entries subsequently abandoned, or surveys not carried into grant, or grants subsequently forfeited to the commonwealth for failure either to enter the land on the land books or to pay the taxes thereon; and as the commonwealth may be the owner of the 1,000 acres, the reason for applying the exception to the general rule wholly fails. It would be highly unreasonable to say that the burden of proof rests on a sovereign who is not and who could not be made a party to the proceeding.

Again, it is impossible to hold that the commonwealth has peculiar knowledge of the location or bounds of unappropriated or of forfeited lands. There is no officer or agent of the state whose duty it is to know such facts.

In 1904 the Virginia Legislature enacted a statute, now section 5465, Code 1919, which (Acts 1902-04, p. 898) reads as follows:

"Chapter 566. — An act to establish a rule of evidence in actions of ejectment and unlawful entry, or detainer involving the location of reservations within the exterior boundaries of grants or other conveyances. Approved January 2, 1904.

"1. Be it enacted by the General Assembly of Virginia, that on the trial of any action of ejectment, or unlawful entry or detainer, where it appears from the evidence that the land in dispute, or any portion thereof, is embraced within the exterior boundaries of a grant or other conveyance under which the plaintiff claims his title, which grant or other conveyance reserves one or more parcels of land within said boundaries from the operation thereof, but without sufficient description of said reserved land on the face thereof, or by reference on the face thereof to other grants or conveyances of public record, containing such sufficient description, by courses and distances, natural boundaries or land marks, or otherwise of such reserved land, as will enable the same to be readily and accurately located by a competent surveyor, the plaintiff shall be entitled to recover so much of said land within said exterior lines, as does not appear by a preponderance of the evidence to be within the limits of any such reservation, and as he would otherwise be entitled to recover if such grant or other conveyance had contained no such reservation: provided, that this act shall not apply where it shall appear from the evidence that the defendant is in possession of such reserved land under claim of title thereto."

It has been earnestly insisted that this statute relieves the claimants under the Swan patent of the burden of locating the reservations. But the ultimate basis of every form of such insistence is a contention that the statute can properly be construed as embracing proceedings other than those expressly mentioned in the statute. While at first I thought otherwise, I now believe that this statute must be read as it was written. Whether the lawmakers intended to limit the benefit of the statute to the three cases expressly mentioned, or merely failed to think of other cases, may never be certainly known. But it is to be observed that there is not one word in the body of the statute or in the title which gives the slightest suggestion of an intent that the statute should apply to any case other than these expressly provided for both in the body of the statute and in its title. Indeed, if there had been a positive purpose to limit the operation of the statute to the three cases mentioned, the statute need not have been expressed otherwise than as it was written.

In Price v. Harrison, 72 Va. (31 Grat.) 114, 118, it is said:

"It was observed by Lord Tenterden that `there is always danger in giving effect to what is called the equity of a statute; it is much safer and better to rely on and abide by the plain words, although the Legislature might have provided for other cases, had their attention been directed to them.' 6 B. & C. 475."

In Saville v. Va. R. & P. Co., 114 Va. 444, 452, 453, 76 S. E. 954, 956, it is said:

"It is contended that the construction insisted upon by the plaintiff in error is violative of the spirit or reason of the law. The argument would seem to concede that the contention is within the letter of the law. We hear a great deal about the spirit of the law, but the duty of this court is not to make law, but to construe it; not...