In an action of ejectment for the Hot Springs in Arkansas,
wherein one party claimed title through a preemption claim which
they were allowed to enter by the register and receiver, and the
other party through a New Madrid certificate, the title of the
United States not being drawn into question, the former party had
the better title.
There was no regular survey and location of the New Madrid
certificate until 1838, a prior application for a public survey in
1818 and certificate of a private survey in 1820 being
irregular.
The act of Congress of April, 1822, required these locations to
be made within one year from the date of its passage. Consequently,
the right to locate the New Madrid certificate expired in April,
1823.
Nor does the act of 1843 support the survey of 1838, because it
is not included within the provisions of the act.
Whether or not the title acquired under the preemption is valid
is a question not now before this Court, because the case is
brought up from the Supreme Court of Arkansas under the
twenty-fifth section of the Judiciary Act, and the decision of that
court was in favor of the validity of the action of the register
and receiver, and moreover the opposing party cannot set up an
outstanding title in the United States. In order to bring himself
within the rule of that section, he must have a personal interest
in the subject in litigation.
The claim set up under a prior preemption was of no value, the
land having been reserved from sale when an offer to locate the
preemption right was made.
Page 63 U. S. 145
This was an action of ejectment brought by William H. Gaines and
the other defendants in error against John C. Hale to recover the
southwest quarter of section thirty-three, in township two south,
of range nineteen west, containing one hundred and sixty acres.
This claim was under the Preemption Act of Congress of the 29th of
May, 1830, 4 Stat. 420, and the supplementary act of the 14th July,
1832, 4 Stat. 603
The defendant below Hale claimed to hold by virtue of the fifth
section of the Preemption Act of the 12th April, 1814, 3 Stat. 122,
together with the Act of 1 March, 1843, 5 Stat. 603.
The jurisdiction of this Court was therefore clear.
The action was brought in the Hot Springs Circuit Court (state
court), which, after a trial, gave the following judgment:
"It is therefore considered by the court that said plaintiffs.
William H. Gaines and Maria Gaines his wife, Albert Belding, Henry
Belding, and George Belding, do have and recover of and from the
said defendant, John C. Hale, as well the possession of the tract
or parcel of land described in their declaration in this behalf, as
all that part of a certain tract or parcel of land designated on
the public surveys as the southwest quarter of section
thirty-three, in township two south, of range nineteen west, which
lies between a dividing line sometimes called Mitchell's line,
heretofore established by one Milus H. Wood and said Hale, between
their respective possession on said quarter section and the
northern or upper line of a place in Hot Springs Valley, commonly
called Texas, and which part of said quarter section of land
includes and embraces all the buildings, houses, outhouses, bath
houses, lots, enclosures, and gardens, connected with or pertaining
to the tavern stand, sometimes and generally known as Hale's tavern
stand, immediately below and south of the premises used and
occupied by Warren & Stidham as a tavern stand during
Page 63 U. S. 146
the summer of the year 1851, and the said sum of five hundred
dollars for their damages sustained in this behalf, and so as
aforesaid assessed by the jury, as also all their costs in this
behalf expended to be taxed &c. And it is ordered by the court,
that said plaintiffs do have execution hereof, by writ of
possession for said land and premises, with command by levy and
collect the damages and cost aforesaid, as is by law in such cases
provided."
In the course of this trial, sundry bills of exceptions were
taken which, for the purpose of this report, it is not necessary to
state particularly. Under them, the case was carried to the Supreme
Court of Arkansas, which affirmed the judgment of the court below
except as to a question of damages, which need not be further
mentioned.
The case was brought up to this Court by a writ of error issued
under the twenty-fifth section of the Judiciary Act.
Page 63 U. S. 157
MR. JUSTICE CATRON delivered the opinion of the Court.
A contest for the ownership of the Hot Springs, in Arkansas, has
been pending for some years before the General Land
Page 63 U. S. 158
Office and in the courts of that state. One party derive their
title through a preemption claim as an occupant under the acts of
Congress of 1830 and 1832, and the other by the location of a New
Madrid warrant on the same land.
In December, 1851, the heirs of Belding were allowed to enter
the quarter section, including the springs. This entry was held to
be valid by the state courts, and to clothe them with a sufficient
legal title to sustain an action of ejectment according to the laws
of Arkansas. They held the decision of the register and receiver in
favor of the occupant claimants to be conclusive evidence of title
as against all persons who could not show a better opposing
claim.
As between the titles of the United States and Belding's heirs,
the state courts did not decide, but only that the outstanding
title in the United States could not be relied on by the defendant
in this action; nor is the validity of the entry of Belding's heirs
drawn in question in this Court.
The defendant relied on a survey made in June, 1838, founded on
a New Madrid certificate for 200 arpens.
To support this survey, an application was produced, dated 27th
January, 1819, signed by S. Hammond and Elias Rector, addressed to
William Rector, surveyor of the public lands &c., asking to
have surveyed and to be allowed to enter the recorder's certificate
for 200 arpens, granted by him to Francis Langlois, or his legal
representatives, and dated the 26th November, 1818, No. 467. The
survey to be made in a square tract, the lines to correspond to the
cardinal points, and to include the Hot Springs in the center. In
1818, the spring was in the Indian country, to which, of course, no
public surveys extended. And as the act of 1815, providing for the
New Madrid sufferers, only allowed them to enter their warrants on
lands "the sale of which was authorized by law," the unsurveyed
lands could not be legally appropriated, and of necessity the
Surveyor General disregarded the application to have a survey made
for Langlois. And thus the claim stood from 1818 to 1838.
The defendant offered in evidence the certificate of a private
survey of the claim of Langlois, made by James S. Conway,
Page 63 U. S. 159
D.S., dated July 16th, 1820, which includes the spring. This
paper the court also rejected.
Until the survey on Langlois' claim was presented to the
recorder of land titles at St. Louis, and recognized by him as
proper and valid, it could have no force, as this was the only mode
of location contemplated by the act of 1815. So it has been
uniformly held.
Bagnell v.
Broderick, 13 Pet. 436;
Lessure v.
Price, 12 How. 9.
The Act of April 26th, 1822, validated locations of New Madrid
certificates then existing and which had been made in advance of
the public surveys, but the second section of the act declared that
future locations should conform to the public surveys, and that all
such warrants should be located within one year after the passage
of that act.
As the public surveys then existing in Missouri and Arkansas
Territory were open to satisfy these claims, there was no
difficulty in complying with the act of 1822.
Reliance is placed on the act of Congress of March, 1843, to
maintain the survey of 1838, of the New Madrid certificate. That
act provides that locations before that time made on New Madrid
warrants, on the south side of Arkansas River, if made in pursuance
of the act of 1815 in other respects, shall be perfected into
grants in like manner as if the Indian title to the lands on the
south side of the river had been completely extinguished at the
time of the passage of said act of 1815. The act of 1843 does not
apply to the survey and location of Langlois made in 1838, for
several reasons:
1. The sale of the land thus surveyed was not authorized by law;
the Act of April 20, 1832, having reserved from location or sale
the Hot Springs, and four sections of land including them as their
center.
2. The attempted location was void because barred by the Act of
26 April, 1822, which act was not repealed or modified by the act
of 1843. This act referred to locations made on the south of the
River Arkansas, of lands regularly surveyed and subject to sale,
and which locations had been made on or before the 26th April,
1823, when the bar was interposed.
We are of the opinion that the New Madrid survey of 1838
Page 63 U. S. 160
was altogether invalid, and properly rejected by the state
courts.
It has been earnestly pressed on our consideration that the
entry of Belding's heirs is also void because the land it covers
was not subject to entry by an occupant claimant, or anyone else,
after the Act of April 20, 1832, had reserved it from sale.
Admitting it to be true that the act of April, 1832, was passed
when no individual claimant had a vested right to enter the land in
dispute, still the 25th section of the Judiciary Act only gives
jurisdiction to this Court in cases where the decision of the state
court draws in question the validity of an authority exercised
under the United States and the decision is against its validity.
Here, however, the decision was in favor of the defendant's entry,
and sustained the authority exercised by the department of public
lands, in allowing Belding's heirs to purchase. Moreover, the
plaintiff in error is not in a condition to draw in question the
validity of Belding's entry. He relies on an outstanding title in
the United States to defeat the action. Being a trespasser, without
title in himself, he cannot be heard to set up such title. "To give
jurisdiction to this Court, the party must claim for himself, and
not for a third person, in whose title he has no interest."
Henderson v.
Tennessee, 10 How. 323. The plaintiff in error must
claim for himself some title, right, privilege, or exemption, under
an act of Congress &c., and the decision must be against his
claim, to give this Court jurisdiction. Setting up a title in the
United States by way of defense is not claiming a personal interest
affecting the subject in litigation. This is the established
construction of the 25th section of the Judiciary Act.
Montgomery v.
Hernandis, 12 Wheat. 132.
If it was allowed to rely on the United States' title in this
instance, the right might be decided against the government, where
it was no party, and had not been heard.
A claim is set up in defense that John Percifull was entitled to
a preference of entry under the act of 1814, which act, it is
insisted, was revived by that of 1843, section 3. Suppose
Page 63 U. S. 161
that Percifull's right to appropriate the land in dispute was
undoubted and that the register and receiver had allowed the heirs
of Belding to enter wrongfully, still the courts of Arkansas, in
this action of ejectment, had no right to interfere and set up
Percifull's rejected claim.
But this is of little consequence, as when the act of April,
1832, was passed reserving the Hot Springs from sale, Percifull had
no vested interest in the land that a court of justice could
recognize. Then the United States government was the legal owner,
and had the power to reserve it from sale, so that the offer to
purchase in 1851, under the assumed preference to entry claimed for
Percifull, was inadmissible. Had the entry been allowed in face of
the act of Congress, such proceeding would have been merely
void.
These being the only questions within our jurisdiction worthy of
consideration in the causes Nos. 15, 16, 17, 18, and 19, it is
ordered that the respective judgments rendered there in by the
supreme court of Arkansas be
Affirmed.
