Brown's Lessee v. Clements
44 U.S. 650

Annotate this Case

U.S. Supreme Court

Brown's Lessee v. Clements, 44 U.S. 3 How. 650 650 (1845)

Brown's Lessee v. Clements

44 U.S. (3 How.) 650

Syllabus

Under the acts of Congress providing for the subdivision of the public lands and the instructions of the Secretary of the Treasury, made under the Act of 24 April, 1820, entitled "An act, making further provision for the sale of the public lands," it is the duty of the Surveyor General to lay out a fractional section in such a manner that an entire quarter-section may be had if the fraction will admit of it.

The Surveyor General has no right to divide a fractional section by arbitrary lines so as to prevent a regular quarter-section from being taken up.

This was an ejectment brought by the plaintiffs in error to recover 2 40/100 acres of land in the possession of Clements as the tenant of Hunt. The plaintiff claimed title through a patent to James Etheridge, and the defendants through a patent to W. D. Stone. Both Etheridge and Stone claimed as preemptioners under the Act of Congress passed on 29 May, 1830.

The question depended upon the manner in which the fractional section twenty-two, in township four south of range one west in the district of lands subject to sale at St. Stephens, Alabama, should be laid out.

A reference to the annexed diagrams will make it more intelligible.

image:a

Nos. 1, 2, 3, 4 represent the whole section, but in consequence of prior claims or grants, only that part of it included within 1, 5, 6, 7, 8, 9, 10 was subject to entry, containing the entire southwest quarter-section and some additional land upon the east and north. The surveyor divided the whole of this into two parts by a line running from 11 to 12, one of which parts (marked A) contained 92.67 acres, and the other (marked B) contained 110.50. The

Page 44 U. S. 651

plaintiff claimed to extend the part A over the whole square which constituted the quarter-section, as represented by dotted lines.

On 28 January, 1831, Etheridge presented the following application and affidavit:

"To the Register and Receiver of the land office at St. Stephens: "

"You will please to take notice that I, James Etheridge, of Mobile County, Alabama, claim the right of preemption, under the Act of Congress of 29 May, 1830, to the southwest quarter-section 22, t. 4, r. 1 west."

"Affidavit. -- James Etheridge, being sworn, maketh oath that the above described tract of land was planted and cultivated by him in the year 1829, and remained in his possession from the year 1829 until after 29 May, 1830. That the said land was occupied and cultivated by him in his own right, and not as the tenant of any other person. That the said land was enclosed with his own fence, and that there was no person concerned with him in the occupation and cultivation of the said land, and that the present claim does not interfere with the right of any other person, and that he believes he is entitled to the same under the Act of Congress of 29 May, 1830, and that the said tract is within the corporate limits of the City of Mobile."

"J. ETHERIDGE"

The affidavit was sustained by the oaths of Daniel Robertson and John Carr.

On 25 March, 1831, Stone presented the following application and affidavit:

"To the Register and Receiver of the land office at St. Stephens, Alabama: "

"You will please to take notice that I, William D. Stone, of Mobile County, Alabama, claim the right of preemption, under the Act of Congress of 29 May, 1830, to the fraction situated in the west part of the southeast quarter of section 22 in township 4, range 1, west of 13."

"WILLIAM D. STONE"

"Affidavit. -- William D. Stone, being sworn, maketh oath that the above described tract of land was planted and cultivated by him in the year 1829 and remained in his possession from the year 1829 until 29 May, 1830, and that the said land was occupied and cultivated by him in his own right, and not as the tenant of any other person. That the said tract of land was enclosed with his own fence, and that there was no person concerned or connected with him in the cultivation of the said land, and that this present claim does not interfere with the rights of any other person, and further that the tract described is within the present corporate limits of the City of Mobile."

"WILLIAM D. STONE"

The affidavit was supported by the oaths of Samuel H. Garrow and James Dowell.

Page 44 U. S. 652

On 20 June, 1831, the register and receiver issued the following certificate:

image:b

The account of sales was entered in the book at some period which the record does not show, and was as follows:

Extract from account of land sold by register and receiver.

image:c

On 30 April, 1832, the register gave to Etheridge the following certificate:

"G. -- Certificate"

"Preemption No. 4,539, Act 29 May, 1830"

"Land Office, St. Stephens, Ala., April 30, 1832"

"It is hereby certified that in pursuance of law, James Etheridge, of Mobile County, Alabama, on this day purchased of the register of this office the lot or southwest quarter of section number twenty-two, of township No. 4 south, in range number one west, containing ninety-two 67/100 acres, at the rate of one dollar and twenty-five cents per acre, amounting to one hundred and fifteen 83/100 dollars,

Page 44 U. S. 653

for which the said James Etheridge has made payment in full, as required by law."

"Now therefore be it known that on presentation of this certificate to the Commissioner of the General Land Office, the said James Etheridge shall be entitled to receive a patent for the lot above described."

"JOHN B. HAZARD, Register"

On the same day, a certificate was issued to Stone, as appears from the following extract from the record of certificates issued for lands sold.

image:d

On 17 December, 1832, a patent was issued to Stone. It granted the land described in the following preamble:

"Preemption certificate, No. 4,549 -- The United States of America,"

"to all to whom these present shall come, greeting:"

"Whereas William D. Stone, of Mobile, has deposited in the General Land Office of the United States a certificate of the register of the land office at St. Stephens whereby it appears that full payment has been made by the said William D. Stone, according to the Act of Congress of 24 April, 1820, entitled 'An act making further provision for the sale of the public lands,' for the southeast subdivision of fractional section twenty-two, in township four, south of range one west, in the district of lands subject to sale at St. Stephens, Alabama, containing one hundred and ten acres and fifty one-hundredths of an acre, according to the official plat of the survey of said land returned to the General Land Office by the Surveyor General, which said tract has been purchased by the said William D. Stone."

"Now know ye,"

&c.

On 30 May, 1833, a patent was issued to Etheridge for the land described in the preamble.

"Preemption certificate, number 4,539"

"The United States of America, to all to whom these presents"

"shall come, greeting:"

"Whereas James Etheridge, of Mobile County, Alabama, has deposited in the General Land Office of the United States a certificate of the register of the land office at St. Stephens whereby it appears that payment has been made by the said James Etheridge,

Page 44 U. S. 654

according to the provisions of the Act of Congress of 24 April, 1820, entitled 'An act making further provisions for the sale of the public lands,' for the southwest quarter of section twenty-two, in township four, south of range one west, in the district of lands subject to sale at St. Stephens, Alabama, containing ninety-two acres and sixty-seven hundreths of an acre, according to the official plat of the survey of the said lands returned to the General Land Office by the Surveyor General, which said tract has been purchased by the said James Etheridge."

"Now know ye,"

&c.

In April, 1838, Brown and wife, claiming under the title of Etheridge, brought an ejectment against Clements for the east half of the southwest quarter of fractional section twenty-two. The case came on for trial at the April term, 1841, in the Circuit Court of the State of Alabama for the County of Mobile, in the course of which the following bill of exceptions and agreement were filed.

"Bill of Exceptions"

"Be it remembered that upon the trial of this cause, the plaintiffs gave in evidence the paper hereto annexed, marked A, being a duly certified copy of a patent from the United States government to James Etheridge, and thereupon it was admitted by the defendants that the plaintiffs had, at the date of the demise and time of trial, all the rights of said patentee Etheridge in the land described in the declaration. Plaintiffs also gave in evidence paper marked B, hereto annexed, being a plat of a survey made and returned, under an order of this Court, by the Surveyor for the County of Mobile, and proved by said surveyor that said survey was truly made according to said order and that the plat returned shows correctly the external lines and corners of said fractional section twenty-two. That he found the southwest corner of said fractional section as shown by the plat returned, and also found, on the section lines of said fractional section, the half-mile posts, each post being a half mile from the southwest corner of said fractional section. That these posts bore evidence of being those put down by the United States surveyor on running the section lines. That an entire southwest quarter exists in said fractional section, without interference with any private land claim and leaving a residuum both on the north and on the east of said quarter-section, as shown by the plat returned by him, and also that said fractional section contains two hundred and ten acres. The defendants admitted that they were in possession, at the time of service of the declaration, of sixteen acres of the land described in the declaration. The defendants gave in evidence, by consent of plaintiffs, a certified copy of a patent from the United States government to William D. Stone, hereto annexed, marked No. 1, and thereupon it was admitted by the plaintiffs that the defendants have all the rights of the said patentee, Stone, in

Page 44 U. S. 655

the land admitted to have been in their possession at the time of the service of the declaration."

"The defendants offered in evidence duly certified copies of the official township plats of 1832 and 1835 of the township in which the land sued for is situated, extracts from which are hereunto annexed, marked No. 2, to show the boundaries and contents of the land described in said patents to said Etheridge and to said Stone, without having offered or professing to have any other evidence than the plats themselves afford to prove that the subdivision, corners, and lines dividing said fractional section, as exhibited in the said plats, had been run and marked on the ground. To the admission of which evidence the plaintiffs objected, and their objection was overruled and said plats allowed to go to the jury. The plaintiffs admitted that if the line, as marked on said extract from plats (No. 2) dividing lots A and B, is a legal line, lot B, as exhibited, will cover the land sued for."

"The plaintiffs further gave in evidence that the said line and corners, as exhibited on the extract (No. 2), had never been run or marked on the ground, and also gave in evidence papers marked C, D, E, F, G, H, being duly certified transcripts of records from the land office at St. Stephens, Alabama."

"The defendants gave in evidence paper marked No. 3, being a duly certified copy of the instructions of the Secretary of the Treasury bearing date 10 of June, 1820, also 20 January, 1826."

"The plaintiffs gave in evidence paper marked I, being a duly certified copy of the circular of the Secretary of the Treasury of date 8 May, 1832."

"Upon the foregoing evidence the court instructed the jury that if they believed the same, they must find for the defendants. The court further instructed the jury that if said fractional section (No. 22) was capable of being subdivided into an entire southwest quarter-section and two half quarter-sections, leaving a residuum as shown by the said map and evidence of the county surveyor, still the Surveyor General was not required, under the acts of Congress providing for the subdivision of the public land and the instructions of the Secretary of the Treasury made under the Act of 24 April, 1820, entitled 'An act making further provision for the sale of the public lands,' to make, in his subdivision of the same, either such quarter-section or half quarter-sections, but might lawfully subdivide the same into two lots (A and B), as indicated by said plat of 1832, and that under said evidence, Etheridge's title would not hold the whole southwest quarter of said fractional section, but only lot A, and that Stone's title would hold lot B, being the balance of said fractional section."

"To which instructions and each and every of them the plaintiffs,

Page 44 U. S. 656

by their counsel, except, and pray the court to sign and seal this their bill of exceptions."

"E. L. DARGAN [SEAL]"

"Agreement of the parties:"

"The parties to this cause, not wishing to encumber the record by copying from the book entitled"

"General Public acts of Congress respecting the sale and disposition of the public lands, with instructions issued from time to time by the Secretary of the Treasury and Commissioner of the General Land Office, and official opinions of the Attorney General on questions arising under the land laws,"

"and which instructions are contained in the 2d volume, part 2d, prepared and printed by order of the Senate, agree that said book may be used by either party, and anything therein contained read as illustration of the practice of the land office, and construction that the acts of Congress had received in that branch of the government. The same work can be referred to by either party in the Supreme Court for the purpose aforesaid. The parties further agree that for exhibit No. 2, being the official map of the survey of the township described in the patents of both plaintiffs and defendants, the map contained in the same book above described, between pages 134 and 135, shall be referred to as if the same was incorporated with, and formed a part of the record in this cause."

"SHERMAN & CHAMBERS"

"Attorneys for plaintiffs"

"GORDON, CAMPBELL & CHANDLER"

"Attorneys for defendants"

The jury having found for the defendants under the above instructions, the case was carried to the Supreme Court of the State of Alabama, where the opinion of the court below was affirmed.

A writ of error brought it to this Court.

Page 44 U. S. 660

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