Surgett v. Lapice
49 U.S. 48

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U.S. Supreme Court

Surgett v. Lapice, 49 U.S. 8 How. 48 48 (1850)

Surgett v. Lapice

49 U.S. (8 How.) 48

Syllabus

Where an "action of jactitation" or "slander of title" was brought in a state court of Louisiana and removed into the circuit court of the United States by the defendant, who was a citizen of Mississippi (the persons who brought the action being in possession of the land under a legal title), and the defendant pleaded in reconvention, setting up an equitable title, and the court below decreed against the defendant, it was proper for him to bring the case to this Court by appeal, and not by writ of error.

This case distinguished from that of United States v. King, 3 and 7 How. 44 U. S. 773 and 48 U. S. 844.

Before the transfer of Louisiana to the United States, the Spanish government was accustomed to grant lands fronting on the Mississippi River, and reserve the lands behind those thus granted for the use of the front proprietors, who had always a right of preemption to them.

After the transfer, Congress recognized this right of preemption by several laws.

In 1832, Congress passed an act, 4 Stat. 534, giving to the proprietors of any tracts bordering on a river, creek, bayou, or watercourse, the right of preference in the purchase of any vacant tract of land adjacent to and back of his own tract, provided that the right of preemption should not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or watercourse, and provided that all notices of claims shall be entered, and the money aid thereon, at least three weeks before such period as may be designated by the resident of the United States for the public sale of the lands in the township.

This last proviso cannot he construed to apply to a township where the lands had already been exposed to sale by order of the President in 1829. The act having been passed in 1832, a compliance with it was impossible, and it must, therefore, be construed as applying prospectively to those lands which had not been exposed to public sale.

The first proviso related only to a river, creek, bayou, or watercourse which was a navigable stream. The bayou in question was not so, as is shown by the evidence in the case, and also by the fact that the sections of land, as laid out by the public surveyor, cross it. When the surveyor comes to navigable streams, he bounds upon the shore, and makes fractional sections.

Page 49 U. S. 49

In order to bring land within the exception, it must be fit for cultivation, and also border on another river &c. The two circumstances are coupled together, and both must concur, or else the exception does not apply.

This was a possessory action in the sense of the Code of Practice of that state, originally commenced by Lapice and Whittlesey, in the Ninth District Court of the State of Louisiana in and for the Parish of Concordia, against Surgett, who was a citizen and resident of the State of Mississippi, and at whose request it was removed into the circuit court of the United States.

On 21 November, 1829, Surgett purchased several lots, from number 28 to number 35 inclusive, in township 5, range 9, east, in the Ouachita District in Louisiana, which lots fronted on the Mississippi River.

On the third Monday of November, 1829, the President of the United States issued a proclamation, offering the public lands in this township for sale.

On 15 June, 1832, Congress passed an act, 4 Stat. 534, entitled "An act to authorize the inhabitants of the State of Louisiana to enter the back lands." This act provided that

"Every person who, by virtue of any title derived from the United States, owns a tract of land bordering on any river, creek, bayou, or watercourse, in the said territory, and not exceeding in depth forty arpens, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to, and back of, his own tract, not exceeding forty arpens, French measure, in depth, nor in quantity of land that which is contained in his own tract, at the same price and on the same terms and conditions as are or may be provided by law for the other public lands in the said state &c., 1. provided, however, that the right of preemption granted by this section shall not extend so far in depth as to include lands fit for cultivation, bordering on another river, creek, bayou, or watercourse. And every person entitled to the benefit of this section shall, within three years after the date of this act, deliver to the register of the proper land office a notice, in writing, stating the situation and extent of the tract of land he wishes to purchase, and shall also make the payment or payments for the same, at the time and times which are or may be prescribed by law, for the disposal of the other public lands in the said state, at the time of his delivering the notice aforesaid being considered as the date of the purchase. 2. Provided also that all notices of claims shall be entered, and the money paid thereon, at least three weeks before such period as

Page 49 U. S. 50

may be designated by the President of the United States, for the public sale of the lands in the township in which such claims may be situated, and all claims not so entered shall be liable to be sold as other public lands &c., And if any such person shall fail to deliver such notice within the said period of three years, or to make such payment or payments at the time above mentioned, his right of preemption shall cease and become void, and the land may thereafter be purchased by any other person, in the same manner and on the same terms, as are or may be provided by law for the sale of other public lands in the said state."

On 14 July, 1834, a part of the land lying back of the lots owned by Surgett was entered at the land office by Whittlesey and one Sparrow, whose interest was afterwards purchased by Lapice.

On 24 February, 1835, Congress passed another Act, 4 Stat. 753, extending the time given by the former act to one year from 15 June next.

On 17 March, 1836, Whittlesey entered the remaining portion of the lands back of Surgett's lots.

On 20 May, 1836, Surgett made application to enter the lands in controversy, which had been taken up by Whittlesey and Sparrow, and by Whittlesey. At the same time, he made a tender of the purchase money, which was refused by the receiver, in consequence of the following endorsement upon the application by the register:

"By reference to the official township map, it will be seen that the land called for in the above application is such as is exempted from the right of back concession (so called) by the first proviso if the act under which the applicant claims, which reads ('meaning the right to the back land') shall not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or watercourse. Now from the evidence in this office, the land embraced in the rear of the above lots or fractional sections is fronting on another bayou, and that the same is fit for cultivation, the fact of a part being good land, above or during high water mark, is on file herewith. Under the circumstances of the case, the land called for in part has been entered by other persons as public land, subject to private entry, and the application is rejected, so far as the action of this office can decide, subject to the decision of the department."

On 10 April, 1840, Lapice and Whittlesey filed a petition in the Ninth District Court of the State of Louisiana, which is known by the laws of that state as an "action of

Page 49 U. S. 51

jactitation," or "slander of title." The petition

"shows, that one Francis Surgett, residing in Adams County, in the State of Mississippi, has heretofore, at various times, and on divers occasions, slandered the title of your petitioners to the aforesaid tracts of land, and still continues to do so, by giving out in speeches and otherwise, and public proclaiming, that he the said Surgett is the rightful and true owner of said tracts of land, and not your petitioners, alleging that the said Whittlesey and Sparrow acquired from the United States no legal and valid right thereto and threatening the said Sparrow and your petitioners with a suit to recover the same; that your petitioners and the said Sparrow, while part owners, have frequently requested said Surgett to desist from the slandering their title, or to bring suit to establish his own title thereto, if any he has; but he has refused, and still refuses, either to desist or to bring suit as requested; that said acts of the said Surgett have damaged your petitioners five hundred dollars."

The petition then prays

"That after due proceedings had, the said Surgett be ordered to set forth his title to the tracts of land described in the aforesaid petition, if any he has, and establish it contradictorily with your petitioners; that unless he produces a good title paramount to your petitioners, that judgment be rendered in their favor, quieting them in their title and possession of said land, and that the said Surgett may be forever enjoined from setting up any claim or pretensions to the same; that your petitioners recover five hundred dollars damages against the said Surgett, and the costs of suit to be taxed, and for general relief in the premises &c."

On 10 June, 1841, Surgett, being a citizen and resident of Mississippi, removed the cause to the Circuit Court of the United States for the District of Louisiana.

On 3 December, 1841, Surgett filed his answer, in which he denied altogether that the petitioners had any title to the lands, but claimed that the title was in himself. The answer then proceeds thus:

"Respondent pleads in reconvention that he himself is the true and lawful owner of so much of the said lands claimed by the plaintiffs, as are embraced in the aforesaid back concessions claimed by him, and prays that he may be decreed to be the legal owner thereof, that the certificates granted by the commissioners of the land office to Sparrow and Whittlesey, or either of them, may be avoided and annulled, and that if patents have already issued in their favor for said lands, the plaintiffs may be decreed to convey all their right, title, and interest, by virtue of said patents, to your respondent; that he may be quieted in his title and possession

Page 49 U. S. 52

thereof, and may recover judgment against said plaintiffs for the sum of one thousand dollars damages, sustained by him in consequence of their illegal pretensions, and for general relief in the premises."

Under commissions to take testimony, thirteen witnesses were examined, as to the nature and character of the bayou called Mill Bayou, in the rear of Surgett's lots. It is impossible to insert all this evidence.

On 7 April, 1845, the circuit court passed the following decree:

"The court, having duly considered the law and the evidence in this case, doth now order, adjudge, and decree, that the plaintiffs Lapice and Whittlesey be quieted in their title to, and possession of, the land set forth and described in their petition, and that the defendant, Francis Surgett, be forever enjoined from setting up any claims or pretensions to the same. It is further ordered, adjudged, and decreed, that the said defendant do pay the costs of this suit."

From this decree Surgett appealed to this Court.

Page 49 U. S. 64

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