United States v. Fitzgerald
40 U.S. 407 (1841)

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U.S. Supreme Court

United States v. Fitzgerald, 40 U.S. 15 Pet. 407 407 (1841)

United States v. Fitzgerald

40 U.S. (15 Pet.) 407

ERROR TO THE CIRCUIT COURT FOR

THE EASTERN DISTRICT OF LOUISIANA

Page 40 U. S. 408

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 of New Orleans. This land, 160 acres, had been entered by the defendants in error under a preemption 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 19 June, 1836, and the purchase money paid to the United States.

John Fitzgerald on 6 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 southwest 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 preemption 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,

Page 40 U. S. 409

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.

Page 40 U. S. 418

McKINLEY, JUSTICE, delivered the opinion of the Court.

This is a petitory action, brought by the plaintiffs, in the Circuit Court of the United States for the Eastern District of Louisiana, to recover 160 acres of land claimed by the defendants under the preemption law of 19 June, 1834. In their petition, the plaintiffs allege that the defendants, under the pretense that they were entitled to section No. 8, containing 160 acres in township 24, of range 30, by right of preemption, on 18 June, 1836, entered it with the register of the land office at New Orleans, that the defendant, John Fitzgerald, took possession of the land as an officer of the customs, by direction of the collector at New Orleans, and not as a settler, and that the land had, long previous to the entry, been appropriated to public purposes and attached to the custom house at New Orleans.

The defendants admit in their answer that John Fitzgerald was an officer of the customs, and discharged the duties of boarding officer at the southwest pass, where, finding no accommodations or dwelling provided for them by the United States, they were under the necessity of procuring one for themselves, in which they expended their own money. That having complied with all the requisitions of the laws of the United

Page 40 U. S. 419

States granting preemption rights, they entered the said tract of land, and insist that, by the laws of the United States, they are entitled to it.

It was proved on the trial that the defendant, John Fitzgerald, had been appointed by the Secretary of the Treasury inspector of customs for the District of Mississippi, and by the collector at New Orleans he had been appointed boarding officer at southwest pass on the Mississippi River and put into possession of the tract of land in controversy, which had been occupied by former boarding officers. The collector was not instructed by the Treasury Department to place the boarding officer on that tract of land, nor was he bound to reside there; but might reside at any other place convenient for the discharge of his duties. The collector had never requested that this land should be reserved for the use of the boarding officer. A letter from the Acting Commissioner of the General Land Office, dated 3 November, 1836, directed to the register of the land office, at New Orleans, stating that the Secretary of the Treasury had directed that this tract of land should be reserved from sale, for the use of the custom house at New Orleans, and requesting the register to note upon his plats, that it was so reserved from sale, and to give notice of the fact to the defendants, was also read as evidence.

The defendants proved that they had made proof of their possession and cultivation of the tract of land in controversy before the register and receiver according to law, and had entered it with the register and paid the purchase money. Whereupon, the court below, according to the usual form of rendering judgment in such cases in Louisiana, decreed that the defendants be quieted in their possession of the premises in dispute, and that the plaintiffs take nothing by their petition. To reverse this judgment, the United States has prosecuted this writ of error.

Two objections have been taken to the judgment.

1. The defendant, John Fitzgerald, being in the service of the United States, while residing on the public land, could not, by cultivation and possession, acquire a right of preemption, and if he could, this land was not subject to preemption, it having been appropriated to public use.

Page 40 U. S. 420

2. The court had no power to quiet the defendants in their possession of the premises in dispute, the fee in the land being in the United States.

No law has been produced to show that an officer of the United States is deprived of the benefit of the preemption laws; nor do we know of any law which deprives him of the right to acquire a portion of the public land, by any mode of purchase common to other citizens. Had this tract of land been severed from the public domain, by a legal appropriation of it, for any public purpose, Fitzgerald could have acquired no right to it by cultivation and possession; not because he was an officer of the United States, but because the land would not have been subject to the preemption law. Was this land so appropriated? The preemption law of 19 May, 1830, which was revived by the Act of 19 June, 1834, declares, that the right of preemption shall not extend to any land which is reserved from sale by act of Congress, or by order of the president, or which may have been appropriated for any purpose whatever. 4 Story's Laws 2213. The first section of the act of 19 June, 1834, gives to every settler or occupant of the public lands, prior to the passage of that act, who was then in possession and cultivated any part thereof, in the year 1833, all the benefits and privileges provided by the act, entitled an act to grant preemption rights to settlers on the public lands, approved 29 May, 1830, and which act was thereby revived. The reservation and appropriation mentioned in the Act of 29 May, 1830, must have been valid and subsisting at the date of the Act of 19 June, 1834, to deprive the defendants of their right of preemption. It cannot be pretended that the land in controversy was reserved from sale by any act of Congress, or by order of the president, unless the direction of the Secretary of the Treasury to reserve it from sale, several months after it had been actually sold and paid for, could amount to such an order. As no reservation or appropriation of the land made, after the right of the defendants accrued, under the Act of 19 June, 1834, could defeat that right, it is useless to inquire into the authority by which the Secretary of the Treasury attempted to make the reservation.

Page 40 U. S. 421

The remaining question under the first objection is whether there had been any appropriation of this land for any purpose whatever, prior to the passage of the Act of 19 June, 1834. No appropriation of public land can be made for any purpose but by authority of Congress. By the third section of the Fourth Article of the Constitution of the United States, power is given to Congress to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States. As no such authority has been shown, to authorize the collector at New Orleans to appropriate this land to any use whatever, it is wholly useless to inquire whether his acts, if they had been authorized by law, would have amounted to an appropriation.

But it has been contended, in argument, that the Act of 3 March, 1831, authorizing the erection of a lighthouse at the mouth of the southwest pass, was an appropriation of this land for that purpose. By the plat, found in the record, it appears that there are between forty and fifty tracts of land, containing 160 acres each, including the tract in controversy, all fronting on the southwest pass. If the act had directed that the lighthouse should be built on this particular tract according to the decision of this Court in the case of Wilcox v. Jackson, 13 Pet. 498, it would have been such an appropriation within the meaning of the Act of 20 May, 1830, as would have deprived the defendants of their right of preemption. But the same plat shows, that the lighthouse was built on Wagoner's Island, which appears to be at the mouth of the southwest pass, and not included or connected with this or either of the other tracts of land exhibited on the plat. From this examination of the case, it is clear that the land in controversy was neither reserved from sale nor appropriated to any purpose whatever.

As the United States have placed their right to recover in this case upon the single ground, that the land was not subject to the preemption right of the defendants, because it had been previously appropriated for the use of the officers attached to the custom house at New Orleans, that point being decided against them, they ought not to prevail upon the second objection urged against the judgment; even if the judgment

Page 40 U. S. 422

were technically defective; but it being in the usual form of judgments in the courts of Louisiana, and not inconsistent with the justice of the case, we think it ought not to be disturbed.

It has, however, been suggested that fraud has been practiced in some way by the defendants in obtaining the land in controversy. Everything on the face of the record appears to have been perfectly fair, and so far as we can perceive, the defendants are legally entitled to a patent for the land. But if fraud has been practiced upon the plaintiffs, the courts of chancery are open to them to seek a rescission of the contract. The judgment of the court below is

Affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana and was argued by counsel, on consideration whereof it is now here ordered and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby affirmed.

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