Patterson v. Jenks
27 U.S. 216 (1829)

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U.S. Supreme Court

Patterson v. Jenks, 27 U.S. 2 Pet. 216 216 (1829)

Patterson v. Jenks

27 U.S. (2 Pet.) 216

Syllabus

Construction of the provisions of the treaties with the Indians made by the State of Georgia relative to boundaries and of the acts of the legislature of that state relative to grants of lands within its territorial limits and which were not within the Indian boundary line as defined by the treaties and as recognized by those acts.

Undoubtedly the presumption is in favor of the validity of every grant issued in the forms prescribed by law, and it is incumbent an him who controverts it to support his objections. The whole burden of proof lies on him. But if his objections depends on facts, those facts must be submitted to a jury. If opposing testimony be produced, that testimony also must be laid before the jury, and the court may declare the law upon the fact, but cannot declare it on the testimony.

If the State of Georgia has construed its treaty with the Cherokee Indiana by any subsequent acts manifesting an understanding of it, this Court would not hesitate to adopt that construction.

If the State of Georgia has practically settled the limits of Franklin County, such settlement ought to have been conclusive on the circuit court.

In the nature of things, we perceive no reason why the grant of the land in controversy should not be good for land which it might lawfully pass and void as to that part of the tract for the granting of which the office had not been open. It is every day's practice to make grants for lands which have in part

been granted to others. It has never been suggested that the whole grant is

void because a part of the land was not grantable.

The principle that a patent conveying lands lying partly within and partly without the territory retained by the Indians was void as to so much as lay within it and valid for the residue was settled by this Court in the case of Danforth v. Wear, 9 Wheat. 673. This decision was made on a patent depending on the statutes of North Carolina, which contain prohibitions at least as strong as those of Georgia.

This cause was tried in Milledgeville at May term, 1827. In the course of the trial, a number of questions were raised, on some of which the judges, being divided in opinion, refused to give the jury the instruction prayed by the plaintiff, and a verdict and judgment were rendered for the defendants. The present writ of error was brought to reverse this judgment.

In the court below, the plaintiff, to sustain his case, gave in evidence a grant from the State of Georgia to Bazil Jones

Page 27 U. S. 217

for 7,160 acres of land in Franklin County on the waters of the south fork of the Oconee River, since called the Appalachie, bearing date 24 May, 1787, and deduced his title to the disputed premises regularly from the grantee.

On the part of the defendants it was contended that this grant was void

1. Because the land attempted to be granted was without the temporary boundary line of the state and within the Indian hunting ground.

2. Because the survey wanted the line and station trees required by law, the surveyor had omitted to note on his plat the beginning corner, had laid down the watercourses inaccurately, and had been guilty, as was alleged, of various other acts of fraud, negligence, irregularity, or ignorance in making and platting the survey prior to the emanation of the grant.

Evidence was also given on behalf of the plaintiff to establish the lines, and to prove the possession of the defendants within them.

The first exception stated that the plaintiff gave evidence conducing to prove that the south fork of the Oconee River, known as the Appalachie, runs through the land described by the grant and plat aforesaid, under which the plaintiff derives title, and that all the lands within the said grant, which are in possession of the defendants in this action, are on the north and east side of the said south fork of the Oconee River, and within the territorial limits of the State of Georgia as defined by Hawkins' Line, which said line was run by Benjamin Hawkins under the authority of the United States to define the temporary boundary line between the State of Georgia and the Creek Indians, and that all the lands included within the aforesaid grant are situated on the waters of the said south fork of the Oconee River. And thereupon the counsel for the plaintiff moved the court to instruct the jury that the grant from the State of Georgia to Bazil Jones, under which the plaintiff derives title to 7,160 acres of land in Franklin County in the said state

Page 27 U. S. 218

was a legal and valid grant, which instruction the court, being divided in opinion, refused to give.

The second exception stated that the counsel for the plaintiff also moved the court to instruct the jury that upon the aforesaid evidence, taking the same as true, the said tract of land so granted to Bazil Jones was, at the time of the survey and grant thereof, within the territorial limits of the State of Georgia as ascertained by laws and treaties, within the limits of Franklin County as by law defined, and not within the Indian boundary line, which instruction the court, being divided in opinion, refused to give.

The third exception stated that the counsel for the plaintiff also moved the court to instruct the jury that the said grant to Bazil Jones, under which plaintiff derived title, was a legal and valid grant for all the lands exhibited on the plat as lying north and east of the south fork of the Oconee River, now called Appalachie, including all the waters of the same, which instruction the court, being divided in opinion, refused to give.

The fourth exception stated, that the counsel for the plaintiff moved the court to instruct the jury that the said grant to Bazil Jones, under which the plaintiff derives title, was a legal and valid grant for all the lands exhibited on the plats as lying north and east of the south fork of the Oconee River, called Appalachie, which instruction the said court, being divided in opinion, refused to give.

The fifth exception stated that the plaintiff moreover gave evidence conducing to identify and prove certain corner trees, station trees, and lines of the said tract of land granted to Bazil Jones aforesaid, before described, and including all the lands on the north and east side of the south fork of the Oconee River in the possession of the defendants. And thereupon the counsel for the said plaintiff moved the court to instruct the jury that neither the want of the line and station trees required by any law nor the omission of the surveyor to note on his plat the beginning corner nor any mistake in platting the watercourses nor any fraud, irregularity, negligence, or ignorance of the

Page 27 U. S. 219

officers of government prior to the issuing of the grant to Bazil Jones under which the plaintiff derives title did or could legally affect the right of the plaintiff to recover; that the existence of the grant is in itself a sufficient ground to infer that every prerequisite has been performed and that as to all irregularities, omissions, acts of fraud, negligence, or ignorance of the officers of government prior to the emanation of the grant, the government of Georgia, and not the plaintiff claiming under her grant, must bear the consequences resulting from them, which instruction the court, being divided in opinion, refused to give.

The sixth exception stated that the plaintiff moreover gave evidence conducing to prove that the title of Bazil Jones, the grantee of the said land, had been regularly and legally conveyed to the lessee of the plaintiff in this action before the commencement thereof, and that all the lands in the possession of the defendants and of each of them at the time of the service of the process in this action were within the lines described by the said grant to the said Bazil Jones and were on the north and east side of the said south fork of the Oconee River. And thereupon the said counsel for the plaintiff moved the court to instruct the jury that upon the aforesaid evidence, if the jury believed the same, the plaintiff was by law entitled to recover the premises in dispute, which instruction the court, being divided in opinion, refused to give.

On the part of the plaintiff in error, also plaintiff in the original action, two points were made:

1. That the grant to Bazil Jones is a good and valid grant in toto.

2. That if not good for the whole, it is so at least in part, including all the premises disputed in the present action.

To maintain these propositions, it was insisted,

1. That at the time of the emanation of the grant to Bazil Jones under which the plaintiff desires title, the lands lying on the south fork of the Oconee River, including all the waters of the same, were within the territorial limits of

Page 27 U. S. 220

the State of Georgia, within the limits of Franklin County, as by law defined, and not within the temporary Indian boundary line, and that the said grant to Bazil Jones was and is a good and valid grant for all the lands exhibited on the plat as lying north and east of the south fork of the Oconee River, now called Appalachie, including all the waters of the same.

2. That a large part of the land embraced in the said grant lies north and east of the south fork of the Oconee River, now called Appalachie, being the branch designated by the United States commissioner, Hawkins, as the temporary Indian boundary line, and was consequently, at the time of the issuing the said grant, within the acknowledged limits of the State of Georgia. As to so much of the said land, therefore, the grant is valid, and since this comprehends all that was in possession of the defendants at the commencement of the present action, the plaintiff is entitled to recover.

3. That neither the want of the line and station trees required by any law nor the omission of the surveyor to note on his plat the beginning corner nor any mistake in his platting the watercourses nor any fraud, irregularity, negligence, or ignorance of the officers of government prior to the issuing of the grant to Bazil Jones under which the plaintiff derives title did or could legally affect the right of the plaintiff to recover; that the existence of the grant is in itself a sufficient ground to infer that every prerequisite has been performed, and that as to all irregularities, omissions, acts of fraud, negligence, or ignorance of the officers of government prior to the emanation of the grant, the government of Georgia, and not the plaintiff claiming under her grant, must bear the consequences resulting from them.

Page 27 U. S. 225

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