United States v. John Fitzgerald Hipolite Fitzgerald

• Citation: 10 L.Ed. 785,40 U.S. 407,15 Pet. 407
• Parties: UNITED STATES, Plaintiffs in error, v. JOHN FITZGERALD and HIPOLITE FITZGERALD, Defendants in error
• Decision Date: 01 January 1841
• Court: United States Supreme Court

40 U.S. 407

15 Pet. 407

10 L.Ed. 785

UNITED STATES, Plaintiffs in error, v. JOHN FITZGERALD and HIPOLITE FITZGERALD,

Defendants in error.

January Term, 1841

ERROR to the Circuit Court for the Eastern District of Louisiana. The United States, by petitory action in the circuit of Louisiana, claimed a tract of land, situated in the parish of Plaquemine, on the river Mississippi, below the port port of New Orleans. This land, 160 acres, had been entered by the defendants in error, under a pre-emption right alleged to be founded on the possession and cultivation of the tract, commencing in 1833. The entry had been regularly made in the office of the register of public lands, in Louisiana, under the act of congress of 1834, on the 18th of June 1836, and the purchase-money paid to the United States.

John Fitzgerald on the 6th of May 1833, had been appointed an inspector of the customs for the port of New Orleans, and was dispatched by the collector of that port to the south-west pass of the Mississippi river, in order to discharge the duties of boarding-officer. He was stationed at a proper point on the river, and himself and his wife took possession of a house which had been occupied by a former boarding-officer, on the public lands of the United States. The government had provided no place for the residence of the boarding-officer. The land was cultivated and improved by John Fitzgerald and Hipolite Fitzgerald, his wife, in the manner which, by the laws of the United States, gave them a pre-emption right to the same, unless there had been a previous appropriation, by the United States, of the tract for public purposes. Some months after the entry of the land and the payment of the purchase-money, the secretary of the treasury, through the acting commissioner of public lands, directed the tract to be reserved from sale for the use of the United States.

The United States proceeded, by this action in the circuit court to establish their right to the land; alleging that Fitzgerald and his wife had acquired no right or title to the land, but that the same continued a part of the public lands of the United States. They averred, that the possession which had been taken of the land by John Fitzgerald and his wife, had been for the use of the United States; John Fitzgerald being at the time an officer in the service of the United States.

The circuit court ordered the petition of the United States to be dismissed; and decreed that the defendants in error should be confirmed in their title to the land. The United States prosecuted this writ of error

The case was argued by Gilpin, Attorney-General, for the United States; and by Bell, for the defendants in error.

Gilpin, for the United States.—The mouth of the Mississippi river consists, as is well known, of five outlets or 'passes,' as they are called, which run through the narrow banks or tongues of alluvial land that stretch into the Gulf of Mexico. The principal of these, the south-west pass, extends for almost fifteen miles into the ocean, having on each side a narrow margin, chiefly of swamp. In some places, this bank between the river and the ocean, is not more than three or four hundred yards in width. In other places, it has greater breadth. On this narrow strip, on the west side of the river, a short distance above the Balize, or extreme mouth of the Mississippi, is a spot which afforded a small space sufficiently protected to enable the boarding-officer attached to the custom-house at New Orleans, to have a sort of land station. It was so occupied, as is in evidence in this cause, as early as the year 1830; and by common repute, and without doubt, it had been so occupied long before. On the 2d of March 1829, congress, by law, directed a survey of the passes of the Mississippi, with a view to the improvement of their navigation, and the building of light-houses (8 Laws U. S. 202); and on the 3d of March 1831, they passed, and another near $40,000 for building a light-house on the south-west pass, and another near the Balize. The boarding-station at the former place may be regarded as being, in the contemplation of congress, the spot for the former, it being, as the evidence in this case states, the only spot in that region where such a station could be made. In the year 1833, four years after the survey, and two years after the appropriation for building the light-house, the collector of the customs at New Orleans, employed the defendant, John Fitzgerald, as an inspector, and stationed him, as the boarding-officer, in the cruising vessel at the south-west pass. He was allowed to be occasionally on shore, at a convenient place on the pass, and the spot in question had always been used for that purpose. There was a house there; but by whom originally built does not appear. There is no evidence of its being built by the United States, nor any of its erection by the defendant. The collector says, that finding this place 'so used by the boarding-officer, he continued him there, without any special instruction from the president, or the secretary of the treasury.' On the 6th of March 1834, the legislature of Louisiana passed a law, ceding the civil and criminal jurisdiction over the land to the United States.

On the 29th May 1830, an act of congress was passed (4 Story's Laws 2213), to grant pre-emption rights to settlers on the public lands. The provisions of that act were, that every 'settler or occupant' of the public lands, who was then in possession, and had cultivated it, in the year 1829, might enter at the land-office not more than 160 acres, to include his improvement, at the minimum price. If there were two or more persons settled on the same quarter section, it might be divided between them, and each enter eighty acres elsewhere. Before entry under the act, proof of settlement or improvement was to be made to the register and receiver, agreeable to the rules prescribed by the general land-office. No entry was to be made under the act, of any land which was either 'reserved for the use of the United States, or either of the several states, or reserved from sale by act of congress, or by order of the president, or which might have been appropriated for any purpose whatever.' This law was to expire in one year from its date. On the 10th June 1830, and the 14th September 1830, full rules were prescribed by the commissioners of the general land-office relative to the execution of this law, directing the precautions to be taken in regard to proof of occupancy and cultivation, what was the meaning of those terms, and requiring actual payment. 2 Birchard's Land Laws, 539, 545. On the 10th June 1834, an act was passed to revive the pre-emption act of 1830, which gave, for two years from its passage, al the privileges of that act to every settler or occupant of the public lands who was then in possession, and had cultivated any part thereof, in the year 1833. On the 22d of July 1834, full rules were issued by the commissioner of the general land-office (2 Birchard's Land Laws 589), as the law required, and directions were given as to the nature and mode of proof by which the pre-emptor's right was to be ascertained. On the 29th February 1836, additional rules (Ibid. 624) on the same subject were issued, as the period at which this privilege was about expiring approached; in this, the regulations as to proof were more fully set forth, especially, in the cases where floating rights were claimed by an alleged settlement of more than one person. On the 2d June 1836, John Fitzgerald and Hipolite Fitzgerald his wife, made an affidavit before W. B. G. Taylor, a justice of the peace in the parish of Plaquemines, annexed to an application to the register and receiver at New Orleans to become the purchasers of 160 acres of land, being section 8, of township 24, range 30 east, under the provisions of the act of 19th June 1834, and stated that they had cultivated the same and were in actual possession and occupancy thereof at the date of the law. On the 3d June, the day after, a deposition was made by two persons before the same justice, stating, generally, that the facts set forth in the application of Fitzgerald and his wife were true. On the 18th of June, the day on which the act expired, an application for a float for 160 acres in addition, appears to have been made, but is not signed by either Fitzgerald or his wife. On the same day is a certificate signed by the register at New Orleans, stating, 'that the foregoing lots contain 327 1/2 acres, as stated in the foregoing application, according to the returns of the surveyor-general, and that the price agreed upon is one dollar and twenty-five cents an acre.' On the 3d of November 1836, a letter was addressed to the register, by the commissioner of the general land-office, stating that the application of 'John Walker' to enter section 8 township 24, range 30 east, had been received from him, but that the secretary of the treasury has directed it to be reserved from sale, as important for the use of the custom-house, and he directs him to apprize Mr. Walker, and Messrs. John and Hipolite Fitzgerald, that no entry whatever can be permitted. Fitzgerald, however, subsequent to the termination of his office as an inspector, continued to assert his right to the property as pre-emptor, which had become valuable from the light-house being erected upon it; and on the 15th of January 1837, a petition was filed, by the district-attorney, in the circuit court of the United States, in Louisiana, setting forth this claim, denying its legality, and praying that they should be adjudged to deliver up possession of the land to the United States. On the 20th February 1837, the defendants filed their answer, in which John Fitzgerald admitted, that he was boarding-officer at the south-west pass, and stated, that he was under the necessity of 'procuring accommodations' there, the the same not being furnished by the United States; and...