The entry and survey of lands in the Virginia Military District
in Ohio, under which the plaintiff claims title, did not invest the
owners of the warrant, or their assignee, with an equitable
interest in the lands surveyed as against the United states for the
reason that the excess of the land surveyed beyond that covered by
the warrant was so great as to make the survey fraudulent and void,
and consequently Congress could, by the Act of February 18, 1871,
16 Stat. 416, grant the lands at its pleasure.
It was the purpose of the Act of February 18, 1871, to grant to
the State of Ohio all the lands in the Virginia Military District
in that state which had not at that time been legally surveyed and
sold by the United States, in that sense of the word "sold" which
conveys the idea of having parted with the beneficial title, and
the lands in controversy, having been surveyed by a survey invalid
against the United States, were within that description.
The fourth section of the Act of May 27, 1880, 21 Stat. 142,
recognized and ratified the title of the defendant in error to the
lands in controversy as a purchaser from the Ohio Agricultural and
Mechanical College for a valuable consideration.
Copies of official letters from the Commissioner of the General
Land Office to a person claiming title under a warrant and survey,
reciting the date of the filing of the survey in the office, being
verified by the oath of the person who was a clerk in that division
of the Land Office and at that time had charge of the matters
relating to this subject, and in whose letters
Page 123 U. S. 118
to the parties interested were contained all the decisions of
the Commissioner relating to it, are competent evidence to show the
time of the filing.
In equity in a state court in Ohio to quiet title and to
restrain waste. The answer set up title in respondent. Judgment for
complainant, which was affirmed by the supreme court of the state
on appeal. The defendant sued out this writ of error. The case is
stated in the opinion of the Court.
MR. JUDGMENT MATTHEWS delivered the opinion of the Court.
The judgment sought to be reviewed on the present writ of error
was rendered by the Supreme Court of the State of Ohio
Page 123 U. S. 119
in a proceeding begun by Flagg, the defendant in error, to quiet
his title and possession to a certain tract of land lying in Nile
Township, Scioto County, Ohio, within the Virginia Military
District, embraced within survey No. 15,882. The judgment of the
Supreme Court of Ohio in the case is reported as
Coan v.
Flagg, 38 Ohio St. 156.
On the 18th of February, 1871, Congress passed an act to cede to
the State of Ohio the unsurveyed and unsold land in the Virginia
Military District in said state, 16 Stat. 146, which reads as
follows:
"
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, that the
lands remaining unsurveyed and unsold in the Virginia Military
District in the State of Ohio be, and the same are hereby, ceded to
the State of Ohio upon the conditions following, to-wit, any person
who at the time of the passage of this act is a
bona fide
settler on any portion of said land may hold not exceeding one
hundred and sixty acres, so by him occupied, by his preempting the
same in such manner as the Legislature of the State of Ohio may
direct."
The lands thus ceded were granted by the State of Ohio to the
Ohio Agricultural and Mechanical College. The college, claiming the
lands in controversy to be embraced within this cession, for a
valuable consideration sold and conveyed the same to Flagg, who
entered into possession prior to the commencement of this suit.
Coan, the original defendant, claims title under:
1st. Exchange military warrant No. 494, issued by the State of
Virginia on the sixteenth day of June, 1840, to the children and
heirs of Francis Gordon, a child and heir of John Gordon, the only
heir of Thomas Gordon, who was a lieutenant of cavalry in the
continental line of Virginia troops in the Revolutionary war, for
500 acres of land, to be laid off in one or more surveys;
2d. An entry No. 15,882, purporting to cover 500 acres of land
under the foregoing warrant No. 494, made on December 18, 1849, by
the said heirs of Francis Gordon and one David F. Heaton, an
assignee of part of said warrant;
Page 123 U. S. 120
3d. A survey under said entry No. 15,882, purporting to contain
400 acres, 375 acres for the heirs of Francis Gordon, and 25 acres
for said Heaton, made by said D. F. Heaton, a deputy surveyor of
the district, on April 10, 1851, giving the metes and bounds of the
land surveyed, which was duly recorded on December 23, 1851, in the
district land office at Chillicothe;
4th. And mesne conveyances from the heirs of said Francis Gordon
and said Heaton to Coan.
It is an undisputed fact appearing on the record that this
survey No. 15,882 embraces in fact 1,682 acres. The answer of Coan,
the defendant below, contains the averment that
"On the twenty-sixth of December, A.D. 1851, the said E. P.
Kendrick, surveyor for said district, duly certified said survey,
being numbered (the same as said entry) 15,882, to the General Land
Office at Washington, D.C., for patent, and that said survey has
ever since been on file in said office."
It is stated, however, in a letter addressed by the Acting
Commissioner of the General Land Office to L. C. Heaton, the
executor of David F. Heaton, then claiming title, dated June 18,
1873, and admitted in evidence, that survey No. 15,882 was filed in
that office for the purpose of obtaining a patent on the
twenty-sixth of April, 1852. The same fact is recited in a letter
from Wills Drummond, the Commissioner of the General Land Office,
dated October 26, 1871, also admitted in evidence, addressed to
David F. Heaton, then claiming title. No patent has ever been
issued on this entry and survey, for the reason, among others,
given in the correspondence between the officers of the Land
Department and Heaton, "that the same contained a large excess of
land over and above the amount stated therein, and actually due in
virtue of said warrant exchange No. 494," the amount of that excess
being stated at 1,282 acres. This was communicated in a letter from
the Commissioner of the General Land Office to L. C. Heaton, dated
June 18, 1873, in which it was said that
"his office will not, of course, recognize the validity of any
such survey as the foregoing, and must refuse, if there were no
other objections, to carry the same into grant and unless you deny
the facts as above stated, and wish to offer rebutting testimony
and be heard in reply,
Page 123 U. S. 121
you will understand that the claim for patent in the case of
said survey No. 15,882 is rejected. Should you, however, dispute
the correctness of the said resurvey, etc., and will at once advise
this office of the fact, every reasonable opportunity will be
afforded you to be heard in the case, with such evidence as you may
desire to present."
On July 11, 1873, the Commissioner of the General Land Office,
by a letter of that date addressed to L. C. Heaton, informed him,
in response to his application made in a letter of June 30th, that
ninety days from July 11th would be allowed to establish his claim
to a patent upon this survey.
On October 10, 1873, the Commissioner wrote to Heaton a letter
containing the following:
"You were advised on the 18th of June last of the rejection of
your application for a patent in the case, but at your request of
the 30th of the same month, the matter was held open for the period
above stated to afford you an opportunity to present rebutting
testimony, etc. The allotted time having expired and nothing
presented on your part to sustain the validity of the said survey,
you are hereby advised that the rejection of the case, as stated in
my said communication of the 18th June last, is now made definite
and final so far as this office is concerned."
No further action was taken in the Department on the
subject.
It also appears that for the 100 acres not embraced in this
survey, to make the 500 acres called for by warrant No. 494,
another survey was made containing 517.46 acres, so that the whole
amount of land embraced in the two surveys upon that warrant,
nominally for 500 acres, actually embraced an excess of 1,699.46
acres.
On the 27th of May, 1880, Congress passed an act to construe and
define the Act of February 18, 1871. The first and second sections
of this act are as follows:
"
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, that the
act ceding to the State of Ohio the lands remaining unsurveyed and
unsold in the Virginia Military District in the State of Ohio had
no reference to lands which were
Page 123 U. S. 122
included in any survey or entry within said district founded
upon military warrant or warrants upon continental establishment,
and the true intent and meaning of said act was to cede to the
State of Ohio only such lands as were unappropriated and not
included in any survey or entry within said district, which survey
or entry was founded upon military warrant or warrants upon
continental establishment."
"SEC. 2. That all legal surveys returned to the land office on
or before March 3, 1857, on entries made on or before January 1,
1852, and founded upon unsatisfied Virginia military continental
warrants, are hereby declared valid."
The fourth section is as follows:
"SEC. 4. This act shall not in any way affect or interfere with
the title to any lands sold for a valuable consideration by the
Ohio Agricultural and Mechanical College, grantee, under the Act of
February 18, 1871."
21 Stat. 142.
On the 7th of August, 1882, Congress passed an act in relation
to land titles in the Virginia Military District of Ohio, as
follows:
"
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, that any
person in the actual, open possession of any tract of land in the
Virginia Military District of the State of Ohio under claim and
color of title, made in good faith, based upon or deducible from
any entry to any tract of land within said district founded upon
military warrant upon continental establishment, and a record of
which entry was duly made in the office of the principal surveyor
of the Virginia Military District, either before or since its
removal to Chillicothe, Ohio, prior to January 1, 1852, such
possession having continued for twenty years last past under a
claim of title on the part of said party, either as entryman or of
his or her grantors or of parties by or under whom said party
claims by purchase or inheritance, and they by title based upon or
deducible from such entry by tax sale
Page 123 U. S. 123
or otherwise, shall be deemed and held to be the legal owner of
such land so included in such entry to the extent and according to
the purport of said entry, or of his or her paper titles based
thereon or deducible therefrom."
"SEC. 2. That so much of the Act approved February 18, 1871,
entitled 'An act to cede to the State of Ohio the unsold lands in
the Virginia Military District in said state,' and of an Act
approved May 27, 1880, construing said Act of February 18, 1871, as
conflicts with this act be, and the same is hereby, repealed."
22 Stat. 348.
The Supreme Court of Ohio, in sustaining Flagg's title, decided
--
1st. That the entry and survey under which Coan claimed title
did not invest the owners of the warrant or their assignee with an
equitable interest in the lands surveyed as against the United
States, for the reason that the excess of land surveyed beyond that
covered by the warrant was so great as to make the survey
fraudulent and void, and that consequently it was competent for
Congress at the date of the Act of February 18, 1871, to grant the
lands at its pleasure.
2d. That without deciding the question whether the lands were
granted to the Ohio Agricultural and Mechanical College by the
terms of the Act of February 18, 1871, the fourth section of the
Act of May 27, 1880, recognizes and ratifies Flagg's title as a
purchaser from the Ohio Agricultural and Mechanical College for a
valuable consideration.
These conclusions are contested by the plaintiff in error. In
support of his contention in regard to the first proposition, it is
argued that a survey cannot be deemed void and of no effect merely
on the ground of an excess beyond the amount called for in the
warrant, because a different effect is required to be given to it
by the provisions of the Act of Congress of July 7, 1838, 5 Stat.
262, the second section of which declares that
"No patent shall be issued by virtue of the preceding section
for a greater quantity of land than the rank or term
Page 123 U. S. 124
of service of the officer or soldier to whom or to whose heirs
or assigns such warrant has been granted would have entitled him to
under the laws of Virginia and of the United States regulating the
issuing of such warrants, and whenever it appears to the Secretary
of War that the survey made by any of the aforesaid warrants is for
a greater quantity of land than for officer or soldier is entitled
to for his services, the Secretary of War shall certify on each
survey the amount of such surplus quantity, and the officer or
soldier, his heirs or assigns, shall have leave to withdraw his
survey from the office of the Secretary of War and resurvey his
location, excluding such surplus quantity in one body from any part
of his resurvey, and a patent shall issue upon such resurvey as in
other cases,"
etc.
We agree, however, with the Supreme Court of Ohio in holding
that this provision of the law does not meet the difficulty.
Whatever application the section may have according to its terms,
it is expressly limited to cases arising under the preceding
section of the act, which expired by its own limitation on the 10th
of August, 1840, and although extended and revived by the first
section of the Act of August 19, 1841, 5 Stat. 449, it contained
the sole authority for making and returning entries and surveys
under Virginia military land warrants, and ceased for that purpose
to have any operation on the 3d of March, 1857, by force of the Act
of March 3, 1855, 10 Stat. 701. So that the right to relief against
excessive surveys granted by the second section of the Act of July
7, 1838, has not at all events, existed since 1857. In addition, it
is manifest that the second section of the Act of July 7, 1838,
relied on, does condemn and forbid the issuing of a patent upon a
survey calling for a greater quantity of land than the party is
entitled to by virtue of the warrant, and in such cases, it being
the duty of the department to refuse the patent, the right of the
applicant is merely to withdraw his survey and resurvey his
location, excluding such surplus quantity. In the present instance,
the patent was refused, and for that reason, but the applicant did
not ask leave to withdraw his survey and cause a resurvey
Page 123 U. S. 125
of the location, and so elected not to avail himself, if he had
such right, of the provisions of this section.
It was further contended, however, upon this point that Congress
has recognized the validity of surveys within the district,
notwithstanding the quantity embraced in them was excessive, by the
proviso in the Act of March 23, 1807, 2 Stat. 424, 425, which reads
as follows:
"
Provided that no locations as aforesaid within the
above-mentioned tract shall, after the passage of this act, be made
on tracts of land for which patents had previously issued, or which
had been previously surveyed, and any patent which may nevertheless
be obtained for land located contrary to the provisions of this
section shall be considered as null and void."
But it was rightly considered, as we think, by the Supreme Court
of Ohio that the effect of this proviso, which, it was admitted,
had been continued in force by subsequent enactments, was merely to
withdraw from subsequent entry and survey lands actually surveyed
until the previous survey should be withdrawn or set aside as
between locators seeking to appropriate the same tract, and that it
cannot have the effect of establishing excessive surveys, whether
by mistake or design, as binding upon the government so as to vest
an equitable estate in the holder of the warrant and entitle him to
a patent for the whole or a part of the survey.
Counsel for the plaintiff in error, however, claim in argument
that the Supreme Court of Ohio erred upon this point in consequence
of having overlooked the second section of the Act of May 20, 1826,
4 Stat. 189. This section, however, as far as it goes, is identical
with the second section of the Act of July 7, 1838, above quoted,
which is a reenactment of it, the Act of May 20, 1826, having
expired by its own limitation. The first section of this act
extends the time for obtaining warrants until June 1, 1829, to
complete locations thereon until June 1, 1832, and to return
surveys and warrants to the Commissioner of the General Land
Office, in order to obtain patents thereon, until June 1, 1833, and
the second section is limited in its operation to cases provided
for by the preceding section, and therefore ceased to operate after
the dates therein mentioned.
Page 123 U. S. 126
Counsel for the plaintiff in error also refer to the decisions
of this Court in
Taylor v.
Brown, 5 Cranch 249, and
Holmes v.
Trout, 7 Pet. 171, as supporting the proposition
that surplus land will not vitiate a survey, but those cases
applied that principle only as between prior and subsequent
locators, and do not sustain the proposition that upon such a
survey the applicant is entitled, as of right, to obtain a patent
from the United States.
The next question is whether the Act of February 18, 1871, taken
in connection with the Act of May 27, 1880, had the effect of
vesting a complete legal and equitable title to these lands in
Flagg. It is argued that the lands in question were not embraced
within the terms of the cession to the State of Ohio used in the
Act of February 18, 1871. The lands ceded to the state by virtue of
that act are described as those "remaining unsurveyed and unsold in
the Virginia Military District in the State of Ohio." The word
"unsold," as used in the act, is claimed, and may be admitted to
be, entirely inappropriate. No land within that district had ever
been sold in the literal sense of that word, nor was it subject to
sale. It was held in trust by the United States first for the
purpose of satisfying donations made by the State of Virginia to
her officers and soldiers in the Revolutionary war, to whom
warrants might be issued as a reward for services. The remainder,
after the satisfaction of those bounties, was held by the United
States for their own use. All of this military tract, therefore,
not appropriated according to law to the first of these uses,
belonged to the United States, to be disposed of in its discretion.
It was competent for Congress to grant to the State of Ohio any of
these lands not subject to the trust, and at the date of the Act of
February 18, 1871, the time within which it was competent to
appropriate any of the lands to the satisfaction of warrants issued
by the State of Virginia had expired. The trust had been satisfied,
and may be regarded as having been extinguished. Whatever of these
lands therefore remained at that time, which had not been
appropriated in accordance with the terms of existing law, so as to
secure to the claimant a legal right to call for a patent, was
Page 123 U. S. 127
subject to the disposal of the United States for its own use and
according to its own pleasure. It is in view of this condition of
things that the cession contained in the Act of February 18, 1871,
must be considered and construed.
It is contended in argument by the plaintiff in error that the
lands embraced and conveyed by the cession contained in the Act of
February 18, 1871, and therein described as "unsurveyed and
unsold," must be understood to mean those which had not at that
time been appropriated under existing laws so as to prevent
subsequent locations by other entries and surveys upon Virginia
military land warrants. And as such appropriation was then
forbidden, as respects subsequent locators, by existing laws
wherever the land had been actually surveyed, although the survey
might have contained a surplus which would deprive the locator of
his right to call for a patent for the whole quantity from the
United States, the Ohio Agricultural and Mechanical College,
claiming as grantee under the State of Ohio, cannot be considered
as having any better or other rights than those of a subsequent
locator. And from this, the conclusion is deduced that the lands in
controversy could not have passed by the terms of the act of
February 18, 1871. But this conclusion is not admissible. The State
of Ohio, under the Act of February 18, 1871, was not in the
position of a subsequent locator under existing laws. It was a
grantee under the terms of a new law directly from Congress itself,
and was not in the attitude of an applicant to the officers of the
Land Department, under previous laws, asking to make a location
upon lands which had been already withdrawn from subsequent
location by an entry and an actual survey. Congress had dominion
and an absolute power of disposal of all the lands in the Virginia
military land district which at that time had not become legally
appropriated by entry and survey, so as to entitle the locator, by
virtue of his equitable estate actually vested under existing law,
to call upon the officers of the Land Department to complete his
legal title by the issue of a patent.
The meaning of the Act of February 18, 1871 therefore seems to
be to grant to the State of Ohio all the lands in the
Page 123 U. S. 128
Virginia Military District which had not at that time been
legally surveyed and sold by the United States in that sense of the
word which conveys the idea of having parted with a beneficial
title. The lands in controversy were within that description. They
had been surveyed, it is true, in point of fact, but the survey was
not lawful and valid as against the United States, although it
might operate to prevent a subsequent location under existing law.
In point of fact, the officers of the Land Department refused to
recognize the survey as binding, and rejected the application for
the issue of a patent upon it. Upon this construction of the Act of
February 18, 1871, the officers of the Land Department undoubtedly
acted, as is evident from the terms of the Act of May 27, 1880.
That Act was passed expressly for the purpose of construing and
defining the act of February 18, 1871, in order to change the
interpretation which had in fact been put upon it. It declared
that
"The lands remaining 'unsurveyed and unsold' in the Virginia
Military District in the State of Ohio had no reference to lands
which were included in any survey or entry within said district
founded upon military warrant or warrants upon continental
establishment,"
and that
"The true intent and meaning of said act was to cede to the
State of Ohio only such lands as were unappropriated and not
included in any survey or entry within said district, which survey
or entry was founded upon military warrant or warrants upon
continental establishment."
Supposing this legislative interpretation to mean that the
unappropriated lands referred to were such as had not been included
in any survey or entry founded upon a military warrant, whether
that survey was legal or illegal under previous laws, nevertheless
we are of the opinion, with the Supreme Court of Ohio, that the
fourth section of the act must be held to have the legal operation
and effect of confirming and ratifying previous titles made by the
Ohio Agricultural and Mechanical College, under the Act of February
18, 1871. The fourth section declares that
"This act shall not in any way affect or interfere with the
title to any land sold for a valuable consideration by the Ohio
Agricultural and Mechanical College,
Page 123 U. S. 129
grantee, under the Act of February 18, 1871."
If the title of the Ohio Agricultural and Mechanical College,
under the Act of February 18, 1871, was valid, the Act of May 27,
1880, giving for the future a new interpretation to that act, could
not have the effect of divesting its title. If, on the other hand,
the title to lands sold by the Ohio Agricultural and Mechanical
College, under claim of title by virtue of the act of February 18,
1871, was unsupported by the terms of that act, then section 4 of
the Act of May 27, 1880, can have effect only as operating to
confirm that title. This it was competent for Congress to do -- no
vested rights intervening -- and this, in our opinion, is what they
have done by the Act of May 27, 1880.
By the Act of August 7, 1882, 22 Stat. 348, which, however, does
not affect the present case, Congress found it necessary to go
still further, and quiet the title of all persons claiming lands in
the Virginia Military District who had been in actual and open
possession thereof for twenty years under claim and color of title
made in good faith based upon or deducible from any entry founded
upon a military warrant upon continental establishment, recorded in
the office of the principal surveyor within the district prior to
January 1, 1852.
We are therefore of opinion that the Supreme Court of Ohio did
not err in either of the propositions on which its judgment was
based.
There is another view which confirms this conclusion. It was
decided by this Court in the case of
Fussell v. Gregg,
113 U. S. 550,
upon a careful and detailed review of all the legislation on the
subject, that it was essential to the vesting of any interest under
an entry and survey within the Virginia military land district,
made prior to January 1, 1852, that the survey should be returned
to the Commissioner of the General Land Office at Washington on or
before that date, and that the failure to do so discharged "the
land from any claim founded on such location and survey," and
extinguished "all right, title, and estate previously acquired
thereby." Such lands might therefore very properly be considered,
in contemplation of law, as "unsurveyed." This continued to be
the
Page 123 U. S. 130
law until the passage of the Act of May 27, 1880, by the second
section of which it was declared
"That all legal surveys returned to the land office on or before
March 3, 1857, on entries made on or before January 1, 1852, and
founded upon unsatisfied Virginia military continental warrants are
hereby declared valid."
The survey under which Coan claims title in the present case was
not filed, as appears from evidence in the record, in the General
Land Office until April 26, 1852. It is contended by the plaintiff
in error that it is otherwise admitted in the pleadings, on the
ground that the answer of Coan averred that,
"On the 26th of December, A.D. 1851, the said E. P. Kendrick,
surveyor for said district, duly certified said survey, being
numbered (the same as said entry) 15,882, to the General Land
Office at Washington, D.C., for patent, and that said survey has
ever since been on file in said office."
This is not a distinct and unequivocal averment of the fact that
the survey had been filed in the General Land Office on or before
January 1, 1852, but only that it had been duly certified by the
district surveyor prior to that date. But, construing it as
claimed, it nevertheless was not admitted in the pleadings, the
reply of the plaintiff expressly denying the validity of the entry
and survey.
Objection is also made and was taken in the court below to the
admission of the evidence on which the fact rests, that the survey
was not filed until April 26, 1852, in the General Land Office.
This proof consists in copies of official letters written by the
Commissioner of the General Land Office to Heaton, then claiming
title under the warrant and survey, reciting the fact, which copies
were sworn to by a witness, formerly a clerk in the General Land
Office, and acquainted with the facts, he having, as such clerk, in
fact written the originals himself for the Commissioner of the
General Land Office, by whom they were signed. We are not referred
by counsel in argument to any authority in support of the
objection, and we do not see upon what principle it can be
maintained. The witness testified that at the time the letters were
written, he was the clerk in charge of the division relating to the
Virginia Military District, and that all of the decisions of
Page 123 U. S. 131
the Commissioner of the General Land Office were contained in
letters written by him to the parties interested. We think the
evidence was competent, and in fact it was uncontroverted.
We find no error in the judgment of the Supreme Court of Ohio.
It is therefore
Affirmed.