Whitney v. Morrow

• Decision Date: 05 January 1885
• Parties: WHITNEY and another v. MORROW. 1
• Court: U.S. Supreme Court

112 U.S. 693

5 S.Ct. 333

28 L.Ed. 871

WHITNEY and another v. MORROW.¹

January 5, 1885.

Enoch Totten, for plaintiffs in error.

No appearance for defendant in error.

FIELD, J.

This case was before this court at the October term of 1877. 95 U. S. 551. It is an action of ejectment for the possession of a tract of land, consisting of 94 acres and a fraction of an acre, situated in the borough of Fort Howard, in Brown county, Wisconsin. The plaintiffs derived their title to the premises from one Pierre Grignon, to whom, on June 2, 1870, a patent was issued by the United States. The defendant, in his answer, sets up an adverse possession of the land in himself, and those through whom he derived his interest, for more than 40 years, under a claim of title, exclusive of any other right, founded upon a written instrument as a conveyance of the premises. It was admitted that he was in the possession of the land at the commencement of the action, and on the trial he relied, not only upon his adverse possession, but also upon a legislative confirmation of a claim to it, under the act of February 21, 1823, by Alexis Gardapier, from whom he traced his title. It appeared on that trial that commissioners under the act, which revived and continued in force certain previous acts for the adjustment of land claims in the territory of Michigan,— which then included Wisconsin,—had confirmed a claim to land presented by said Gardapier and one presented by Pierre Grignon. The confirmations were subject to the condition that the tracts confirmed did not interfere with certain previous confirmations. On April 17, 1828, congress confirmed the acts of the commissioners respecting these claims; that is, 'confirmed the confirmations,' with a proviso, however, that they 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 certificates, upon which patents were to be granted by the commissioner of the general land-office. But it did not appear on the trial that any patent had ever been issued to Gardapier. The court held that if, at the time of the confirmation, the land claimed by him was not occupied by the United States for military purposes, it operated to vest in him a perfect title to the land; a legislative confirmation always operating, unless accompanied with reservations, as a conveyance of the estate, or right of the government, to the party who is in possession of the premises or has an interest in them.

The tract confirmed appeared to have clearly defined boundaries, or, at least, such as were capable of identification. The question, therefore, whether the land was thus occupied was of the utmost consequence, and the defendant offered, in various forms, to prove, by witnesses produced for that purpose, that it was not thus occupied on the confirmation by congress, and had not been previously; and also that for a period of nearly 40 years the land had been in the actual, open, notorious, and...