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
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment rendered in the Court of
the United States for the Sixth Circuit and District of Georgia in
a case in which the plaintiff in error was
Page 27 U. S. 226
plaintiff in ejectment. The plaintiff derived title from a grant
dated in May, 1787, which was issued by the Governor of Georgia to
Bazil Jones. At the trial, the counsel for the plaintiff moved the
court to instruct the jury on several points on all which the
judges were divided, and therefore the instructions were refused,
to which refusal exceptions were taken. The verdict and judgment
were rendered in favor of the defendants, and the plaintiff has
sued out this writ of error, by which the record is removed into
this Court. The opinions refused by the court, and the exceptions
taken by counsel, will be severally considered.
The first is in these words.
"The plaintiff moreover 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 said 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 said state was a legal
and valid grant, which instruction the court, being divided in
opinion, refused to give."
This prayer is expressed in such terms that the court could not
with propriety have granted it without explanation, whatever
opinion on the law of the case might have been entertained. Without
stating a single fact or placing the prayer on the belief of the
jury that the evidence proved any fact, the court is asked to say
positively that the grant to Bazil Jones is legal and valid.
Undoubtedly the
Page 27 U. S. 227
presumption is in favor of the validity of every grant issued in
the forms prescribed by law, and it is incumbent on him who
controverts it to support his objections. The whole burden of proof
lies on him, but if his objections depend 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 on the fact, but cannot declare it on the
testimony. In this case, the prayer states that the plaintiff
offered testimony conducing to prove certain facts which were
deemed essential to the validity of the grant, and asked the court
to say not that if the testimony was believed or if those facts
were proved, the grant was valid, but positively that the grant was
valid. The court did not err in refusing to give this
instruction.
The second exception states 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.
This prayer is made on the admission of the testimony stated in
the first, and on its sufficiency to prove that the tract of land
granted to Bazil Jones was situated on the land in controversy lay
on the north and east side of that fork and within the territorial
limits of the State of Georgia as defined by the line 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.
From these facts the court is asked to draw the conclusion that
the tract of land was, at the time of the survey and grant thereof,
within the territorial limits of the State of Georgia and within
the limits of Franklin County as by law defined, and not within the
Indian boundary line.
This prayer requires the court to say what was the
Page 27 U. S. 228
boundary between that part of the State of Georgia to which its
jurisdiction was extended and the Indians, and also what were the
limits of Franklin County. As it requires an instruction respecting
the whole tract, the court was bound to inquire whether the whole
tract was within those limits. To ascertain these boundaries, the
laws of Georgia and the treaties of that state with the Creek and
Cherokee Indians must be examined.
On 31 May in the year 1783, a treaty was made at Augusta between
the State of Georgia and the Cherokee Indians describing the line
which should thereafter separate the settlements of the whites from
the hunting grounds of the Indians. This line commences on the
Savannah River, and is of no importance in this case until it
reaches the top of Currohee Mountain. It is to proceed
"thence to the head or source of the most southern branch of the
Oconee River including all the waters of the same, and thence down
the middle of the said branch to the Creek line."
On the first day of November in the same year, the State of
Georgia formed a treaty with the Creek Indians for the purpose of
drawing the line between the settlements of the whites and the
hunting grounds of the Indians. This line also commences on the
Savannah River, and runs as described in the treaty to the top of
Currohee Mountain. It proceeds
"thence to the head or source of the most southern branch of the
Oconee River, including all the waters of the same, thence down the
said river to the old line."
A subsequent treaty was held with the Creeks on 12 November,
1785, at Galphinton. The 4th article of this treaty declares that
"the present temporary line reserved to the Indians for their
hunting ground shall be agreeable to the treaty held at Augusta in
the year 1783."
On 28 November, 1785, the commissioners of the United States
held a treaty with the Cherokees at Hopewell in which it was agreed
that the boundary line should run from the top of Currohee Mountain
"to the head of the south fork of Oconee River."
The treaty at Shoulderbone, concluded in the year 1786,
Page 27 U. S. 229
confirmed the line as established in the Treaties of Augusta and
of Galphinton. All the treaties between Georgia and the Indians
stipulate that the lines shall be marked as soon as possible, but
it does not appear that they were ever marked. A treaty was
afterwards entered into at New York between the United States and
Creek Indians on 7 August in the year 1790 which fixes the boundary
line from the top of Currohee Mountain
"to the head or source of the main south branch of the Oconee
River, called the Appalachie, thence down the middle of the said
south branch to its confluence with the Oakmulgee."
In pursuance of this treaty, the line from Currohee Mountain to
the head or source of the main south branch of the river Oconee was
run by Benjamin Hawkins.
Some ambiguity undoubtedly exists in the treaty made with the
Creeks at Augusta, which, in a contest between Georgia and the
Creeks, might claim a construction favorable to the pretension of
the less powerful and less intelligent or skillful party to the
compact. But in a controversy in which both parties claim title
under the State of Georgia, it would seem reasonable to give the
article that construction which Georgia herself has put upon it,
provided it be reconcilable to the words. The line is to run "to
the source of the most southern branch of the Oconee River,
including all the waters of the same." The source of the most
southern branch is the source of the main stream of that branch. It
is a point to which the line is to be run from the top of Currohee
Mountain. This line, if the treaty gave no directions respecting
its course, would be a straight line. But the treaty directs it to
be so run as "to include all the waters of the same" -- that is,
"all the waters" of the most southern branch. The line must
therefore be drawn from the one given point to the other in such
direction as to include all the waters of the most southern branch
of the Oconee. It must therefore, instead of being straight, pass
round the sources of all those streams which empty into the south
fork on its northern side and are between the points of
commencement and of termination. But it is obvious that no line
from the top of Currohee Mountain to the
Page 27 U. S. 230
source of the most southern branch of the Oconee River can
include the waters which empty into it on the southern side.
To obviate this difficulty, the defendants insist that the line
shall pass round the main branch of the south fork of the Oconee to
the source of the lowest stream which empties into it on the south
side and proceed down that stream.
This line would include all the waters of the south fork, but is
attended with other difficulties of no inconsiderable magnitude.
The words of the treaty seem to require that the line should stop
at the source of the main stream, not at the source of an
inconsiderable rivulet. From this source the line is to proceed
down the river. It is reasonable to suppose that it proceeds down
the river from the source of the river, not from the source of a
small branch. It is to include all the waters -- that is all the
tributary streams of that at whose source it stops. But this
construction requires it to stop at the source of a stream, which
is itself tributary to the very river which is spoken of as one of
its waters.
If this construction be admitted and the source of the lowest
stream on the south side be substituted for the source of the main
stream, still the line must run down that lowest watercourse to the
south fork, and down the south fork to the old line. The case does
not inform us that even this line would include the whole tract
granted to Bazil Jones. That tract is stated to lie on the waters
of the south fork, but not on the Georgia side of the most extreme
of those waters. So much of it as may be situated on the Indian
side of that watercourse would be within the Indian hunting
grounds.
The treaty made with the Cherokees at Augusta on 1 June, 1783,
is apparently intended to establish the same line which was
afterwards adopted in the treaty with the Creeks. The only variance
in the language is that in the treaty with the Cherokees, the line
from the source of the southern branch of the Oconee River, is to
run "down the middle of the said branch;" in the treaty with the
Creeks, it is to run "down the river." It is not probable that
different lines could have been intended.
If the State of Georgia has construed this treaty by any
subsequent
Page 27 U. S. 231
acts manifesting her understanding of it, we should not hesitate
to adopt that construction in this case. But the bill of exceptions
contains no fact showing that Georgia has adopted a construction of
her treaties with the Indians which would establish the boundary
claimed by the plaintiff. On the contrary, in February, 1787, an
act was passed "for the appointment of commissioners to run the
line designating the Indian hunting grounds." This act directs the
commissioners to proceed in conjunction with those to be appointed
by the Creek nation, to trace and mark
"the temporary boundary line, as heretofore established -- that
is to say, from Currohee Mountain, in the direction of the present
temporary line from Zugalo River till the same shall strike the
head or source of the main direct stream of the south branch of
Oconee River, called also Appalachie, by which is to be understood
the main fork of Oconee River, next above Little river."
This act seems to reject all claim, on the part of Georgia to
lands lying south of the main stream of the south branch of Oconee,
and to adopt the construction of the treaties at Augusta, which
appears to have been adopted by the commissioners of the United
States at the treaty at Hopewell in 1785.
The prayer we are considering also requested the court to
instruct the jury that the tract of land granted to Bazil Jones was
within the limits of Franklin County as by law defined.
In February, 1784, the legislature passed an act for laying off
two more counties to the westward. One of these was the County of
Franklin.
The first section declares
"That the present temporary line circumscribing the Indian
hunting ground shall be marked by a line drawn from that part of
the north branch of Savannah River, known by the name of the Owee,
which shall be intersected by a line north east from the Oconee
Mountains; thence in the same direction to Zugalo River; from
thence in a direct line to the top of Currohee Mountain; thence to
the head or source of the most southern stream of the Oconee River,
including all the waters of the
Page 27 U. S. 232
same; thence down the said river to the old line, thence along
the old line."
The only difference between this legislative description of the
line circumscribing the Indian hunting ground and that in the
treaty is in the substitution of the word "stream" for the word
"branch." In the treaty, "the branch," and in the law, "the
stream," appear to be considered as "the river." The line is to run
from its source "down the said river." This language would seem to
indicate that a considerable or main branch or stream, one which
had acquired the name of river, not a small rivulet, was in the
mind of the legislature. The line which runs to it from the top of
Currohee Mountain is subject to all the uncertainty which attends
the same line as described in the Treaty of Augusta.
The 2d section of the act proceeds to define the exterior lines
of the County of Franklin. They run from the Savannah River to the
south branch of the Oconee River; thence up the said river to the
head or source of the most southern stream thereof; thence along
the temporary line separating the Indian hunting ground to the
northern branch of the Savannah, &c.
The southern boundary of Franklin County, from the place where
the line from the Savannah strikes the most southern branch of the
Oconee River, is up that river to the head or source of the most
southern stream thereof. You find the head or source of this most
southern stream by proceeding up the river.
It may well be doubted whether this description will admit of
leaving the river for any of its small rivulets. The words "the
most southern stream of the south branch of the Oconee whose source
is to be found by proceeding up the river" may be satisfied either
by pursuing the most southern stream which has acquired the name of
river or the most southern stream which empties into the river. It
can scarcely be imagined that Georgia has not settled practically
the limits of Franklin County, and any such settlement ought to
have been conclusive with the circuit court. But no such settlement
is stated in the record, and the court is required
Page 27 U. S. 233
to say in what manner its boundary lines are to be drawn in
pursuance of the act of assembly by which it was constituted. The
court is relieved from the difficulty by the same circumstance
which made it unnecessary to determine the line which circumscribed
the Indian hunting grounds. The statement of fact on which the
opinion of the court is asked does not affirm that the land lies on
the northern or Georgia side of the most southern stream, but that
it lies on the waters of the south branch of the Oconee River. For
this reason this instruction ought not to have been given as
asked.
The third exception states that the said 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 Court understands the words "including all the waters of the
same" to mean waters north and east of the south fork of the Oconee
River. This application, like the second, is supposed to be made on
the assumption that the facts stated in the first are true. If they
are, then all the land contained in the patent lying north and east
of the south branch of Oconee is on the Georgia side of the line
circumscribing the Indian hunting ground and within the County of
Franklin as described by law. The application supposed to be made
to the court is to instruct the jury that the grant is good for so
much land as lies within the County of Franklin, although part of
the tract may be without that county and within the Indian
boundary. The counsel for the defendants insist that under the laws
of Georgia, the whole patent is void if any part of the land it
purports to grant be within the Indian boundary. The counsel for
the plaintiff contend that the laws, so far as they have declared
patents to be void, are entirely retrospective, and that
prospectively, they only inflict penalties on persons who shall
make surveys in contravention of the statute.
Page 27 U. S. 234
In January, 1780, an act was passed "for the more speedy and
effectual settling of this state." The 19th section enacts
"That no warrant, survey, or plat made or laid out in the lands
yet within the lines of the Indians shall be held valid, and the
same is hereby declared null and void to all intents and purposes
whatever; nor shall any grant which may hereafter be
surreptitiously obtained be deemed legal or of any effect."
We do not think the language of this section entirely
retrospective. The words "made or laid out" may apply to the future
as well as the past and comprehend warrants and surveys which shall
be, as well as those which have been, made or laid out in the lands
yet within the lines of the Indians.
In February, 1783, Georgia passed an act for opening her land
office. The 11th section of this as is retrospective so far as it
annuls surveys and grants. Its prospective provisions only inflict
penalties on the persons who shall make surveys or attempt to
obtain a grant. But the 13th section, after describing the limits
of the state, provides,
"That nothing hereinbefore contained shall extend or be
construed to extend to authorize or empower any surveyor or other
person or persons whatsoever to survey, run, or make lines upon the
lands before described as being allowed to the Indians for hunting
ground, or any part or parcel thereof before or until permission
for that purpose shall be granted by the legislature and made known
by proclamation."
In consequence of this proviso, the land office could not be
considered as opened for lands within the Indian boundary.
The 5th section of the act of 1785, which has been relied on, is
retrospective.
The Act of February, 1787, for the appointment of commissioners
to run the line designating the Indian hunting ground inflicts
additional penalties on those who shall thereafter survey or cause
to be surveyed or obtain grants for any lands beyond the temporary
line designating the Indian hunting ground. The 3d section is in
these words,
"Whereas, notwithstanding the most positive laws to the
Page 27 U. S. 235
contrary, many persons, from design or accident, have run large
quantities of land and obtained grants for the same southward of
the present temporary line between the good citizens of this state
and the Indians, and expect to hold the same when a cession of said
land can be obtained. Be it therefore enacted that the surveys or
grants for such land be considered and they are hereby declared to
be null and void and of no effect whatever."
This enactment is undoubtedly retrospective. It manifests,
however, unequivocally the opinion of the legislature that all the
surveys and grants which are declared void had been made and issued
contrary to the most positive laws. However these laws may be
construed, it is, we think, obvious that the office was not opened
for lands situated within the Indian hunting grounds and that
grants for them were not authorized.
But is the whole grant a nullity because it contains some land
not grantable?
In the nature of the thing, we perceive no reason why the grant
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 opened. It is every day's practice to make grants for
lands which have in fact 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 Act of February, 1807, after stating
"that many persons had run large quantities of land, and
obtained grants for the same southward of the present temporary
line between the good citizens of this state and the Indians,"
enacts "that the surveys or grants for such lands shall be
considered null and void," and the survey in this case was made in
September, 1786.
This enactment might with as much propriety be construed to
apply to those surveys only which were made entirely within the
Indian boundary as to that part of a survey which lies on the
Georgia side of that boundary. Neither construction would probably
pursue the real intent of the legislature. Georgia was willing to
grant all the lands as
Page 27 U. S. 236
far as the Indian boundary, but unwilling to pass that line. The
sole object of the enactment was to restrain her citizens from
passing it by making void all surveys and grants of lands beyond
it. It is therefore a reasonable construction of the act to
consider it as applying to surveys and grants, so far only as they
were contrary to law. There is a plain difference between a grant
comprehending lands which may with lands which may not be granted,
and one made on a fraudulent misrepresentation or illegal
consideration which extends to and vitiates the whole instrument.
Understanding this prayer as involving the validity of the grant so
far only as respects its extending in part into the Indian country,
we think it ought to have been granted.
The 4th prayer, if not a repetition of the 3d, varies from it
only by omitting the words "including all the waters of the same;"
consequently the opinion which has been expressed on the third is
applicable to this.
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
Darnforth
v. Wear, 9 Wheat. 673 That decision was made on a
patent depending on the statutes of North Carolina, which contain
prohibitions at least as strong as those of Georgia.
The 5th prayer states 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 officers of
government, prior to the issuing of the grant to Bazil Jones, under
which
Page 27 U. S. 237
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.
This prayer is in some of its parts unexceptionable. In others,
it is expressed in such vague and general terms as to make it
unsafe for any court to grant it. In the case of
Polk's
Lessee v. Wendle, 9 Cranch 87;
18 U. S. 5 Wheat.
293, this Court decided that a grant raises a presumption that
every prerequisite has been performed; consequently that no
negligence or omission of the officers of government anterior to
its emanation can affect it. The part of the prayer which respects
the defects supposed to be in the plat speaks of the want of the
line and station trees required by any law, without specifying the
laws alluded to, and the omission of the surveyor to note on his
plat the beginning, and of any mistake in platting the
watercourses.
The act for opening the land office contains no particular rules
respecting plats, and the act which requires surveyors to note the
beginning corner of their surveys, passed in December, 1789, long
after the emanation of this patent. It would seem that the officer
by whom the patent was issued was the proper judge of all things
apparent on the face of the plat, and that the patent itself
presupposes that the plat was sufficient in law as to those
requisites of which he could judge by inspection. This part of the
instruction might have been given. But it is connected with a
request that the court would instruct the jury that no fraud on the
part of the officers of government could affect the plaintiff's
title. It is not easy to perceive the extent of this instruction,
and it could not, we think, have been safely given.
Page 27 U. S. 238
The 6th exception states that the said 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 lessor 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.
This prayer states more explicitly the facts contained in the 3d
and 4th, and is understood to come completely within the opinion of
the Court on them.
It is the opinion of this Court that the circuit court erred in
not instructing the jury that the grant under which the plaintiff
made title was valid as to the lands in possession of the
defendants, and that for refusing to give this instruction the
judgment of the said circuit court ought to be
Reversed and the cause remanded that a venire facias de novo
may be awarded.
