Page 147 U. S. 298
In the case cited from the Missouri Reports where the
legislature had authorized the appropriation of land for a public
park for the benefit of the inhabitants of St. Louis County,
situated in the eastern portion of the county near to and outside
of the corporate limits of the City of St. Louis, it was held that
this was a public use notwithstanding the fact that it would be
chiefly beneficial to the inhabitants of the city, and that the act
was not unconstitutional.
The adjudicated cases likewise establish the proposition that
while the courts have power to determine whether the use for which
private property is authorized by the legislature to be taken is in
fact a public use, yet if this question is decided in the
affirmative, the judicial function is exhausted; that the extent to
which such property shall be taken for such use rests wholly in the
legislative discretion, subject only to the restraint that just
compensation must be made.
A distinction, however, is attempted in behalf of the plaintiffs
in error between the constitutional powers of a state and those of
the United States in respect to the exercise of the power of
eminent domain, and this distinction is supposed to be found in a
restriction of such power in the United States to purposes of
political administration; that it must be limited in its exercise
to such objects as fall within the delegated and expressed
enumerated powers conferred by the Constitution upon the United
States such as are exemplified by the case of post offices,
customhouses, courthouses, forts, dockyards, etc.
We are not called upon by the duties of this investigation to
consider whether the alleged restriction on the power of eminent
domain in the general government, when exercised within the
territory of a state, does really exist, or the extent of such
restriction, for we are here dealing with an exercise of the power
within the District of Columbia, over whose territory the United
States possess not merely the political authority that belongs to
them as respects the states of the union, but likewise the power
"to exercise exclusive legislation in all cases whatsoever over
such District." Constitution, Art. I, Sec. 8, par. 17. It is
contended that notwithstanding this apparently unlimited grant of
power over
Page 147 U. S. 299
the District conferred in the Constitution itself, there was a
limitation on the legislative power of the general government
contained in the so-called "act of cession" by the State of
Maryland (Act of 1791, c. 45, § 2), a proviso to which is in the
words following:
"Provided that nothing herein contained shall be so construed to
vest in the United States any right of property in the soil as to
affect the rights of individuals therein otherwise than the same
shall or may be transferred by such individuals to the United
States."
It is said that the acceptance by the United States of the grant
constituted a contract between Maryland and the United States
whereby, in view of the foregoing language, the landowner was to be
protected against any exercise by the general government of the
sovereign power of eminent domain. It is sufficient to say that the
history of the transaction clearly shows that the language used in
the Maryland act referred to such persons as had not joined in the
execution of a certain agreement by which the principal proprietors
of the Maryland portion of the territory undertook to convey lands
for the use of the new city, and their individual rights were thus
thought to be secured. The provision had no reference to the power
of eminent domain, which belonged to the United States as the
grantee in the act of cession.
This position, contended for by the plaintiffs in error, was
raised in the case of
Chesapeake & Ohio Canal v. Union
Bank, in the Circuit Court of the United States for the
District of Columbia, and Cranch C.J., said:
"The eighth objection is that by the Maryland act of cession to
the United States of this part of the District of Columbia, (1791,
c. 45, sec. 2), Congress is restrained from affecting the rights of
individuals to the soil otherwise than as the same should be
transferred to the United States by such individuals, and it is
contended that this prohibits the United States from taking private
property in this District for public use, and that the right of
sovereignty which Maryland exercised was not transferred. We think
it is a sufficient answer to this objection to say that the United
States do not, by this acquisition or by the charter to the
Chesapeake & Ohio Canal Company,
Page 147 U. S. 300
claim any right of property in the soil. They only claim to
exercise the power, which belongs to every sovereign, to
appropriate, upon just compensation, private property to the making
of a highway, whenever the public good requires it."
4 Cranch C.C. 75, 80.
But this contention can scarcely have been seriously made in
view of the explicit language of the Maryland act in its second
section
"that all that part of said territory called 'Columbia,' which
lies within the limits of this state, shall be, and the same is
hereby, acknowledged to be forever ceded and relinquished to the
Congress and government of the United States in full and absolute
right and exclusive jurisdiction, as well of soil as of persons
residing or to reside thereon, pursuant to the tenor and effect of
the eighth section of the first article of the Constitution of
government of the United States."
Mattingly v. District of Columbia, 97 U. S.
687,
97 U. S. 690;
Gibbons v. District of Columbia, 116 U.
S. 404.
Proceeding upon the conclusion that the United States possess
full and unlimited jurisdiction, both of a political and municipal
nature, over the District of Columbia, we come to a consideration
of certain objections, taken in the court below and urged here, to
the validity of the statute itself and to the proceedings under
it.
There are several features that are pointed to as invalidating
the act. The first is found in the provision appointing two members
of the park commission, and the argument is that while Congress may
create an office, it cannot appoint the officer; that the officer
can only be appointed by the President with the approval of the
Senate, and that the act itself defines these park commissioners to
be "public officers," because it prescribes that three of them are
to be civilians, to be nominated by the President and confirmed by
the Senate. This, it is said, is equivalent to a declaration by
Congress that the three so sent to the Senate are "officers,"
because the Constitution provides only for the nomination of
officers to be sent to the Senate for confirmation, and that it
hence follows that the other two are likewise officers whose
appointment should have been made by the President and confirmed
by
Page 147 U. S. 301
the Senate. As, however, the two persons whose eligibility is
questioned were at the time of the passage of the act and of their
action under it officers of the United States who had been
theretofore appointed by the President and confirmed by the Senate,
we do not think that because additional duties, germane to the
offices already held by them, were devolved upon them by the act,
it was necessary that they should be again appointed by the
President and confirmed by the Senate. It cannot be doubted, and it
has frequently been the case, that Congress may increase the power
and duties of an existing office without thereby rendering it
necessary that the incumbent should be again nominated and
appointed.
It is true that it may be sometimes difficult to say whether a
given duty, devolved by statute upon a named officer, has regard to
the civil or military service of the United States.
Wales v.
Whitney, 114 U. S. 564,
114 U. S. 569;
Smith v. Whitney, 116 U. S. 167,
116 U. S. 179,
116 U. S. 181.
But in the present case, the duty which the military officers in
question were called upon to perform cannot fairly be said to have
been dissimilar to, or outside of the sphere of, their official
duties.
The second objection made to the validity of the act is because
of certain functions to be performed by the President which the
objection characterizes as judicial, and hence beyond his legal
powers, and as incompatible with his official duties. The duties
prescribed to the President are the appointment of members of the
park commission, the approval of the price to be given for lands
where an agreement has been had between the owners and the
commission, and, if an agreement is not made and a value is put
upon lands by appraisers appointed under the act, the decision
whether such value is reasonable. The appointment of the commission
is plainly an executive duty, and the approval of the value or
price, whether fixed by agreement or appraisal, cannot be said to
be a judicial act. What the President decides is not whether the
value is reasonable as respects the property owner, but reasonable
as regards the United States. Similar provisions were contained in
the Act of June, 1890, condemning land for a city post office, and
in the Act of August 30, 1890,
Page 147 U. S. 302
authorizing the acquisition of land for the use of the
government printing office. The President has nothing to do with
fixing the price, but after that has been done, by agreement or by
appraisers, he must decide whether the United States will take the
land upon such terms -- or, in other words, whether such value is
reasonable.
The validity of the law is further challenged because the
aggregate amount to be expended in the purchase of land for the
park is limited to the amount of $1,200,000. It is said that this
is equivalent to condemning the lands and fixing their value by
arbitrary enactment. But a glance at the act shows that the
property holders are not affected by the limitation. The value of
the lands is to be agreed upon or, in the absence of agreement, is
to be found by appraisers to be appointed by the court. The
intention expressed by Congress not to go beyond a certain
aggregate expenditure cannot be deemed a direction to the
appraisers to keep within any given limit in valuing any particular
piece of property. It is not unusual for Congress, in making
appropriations for the erection of public buildings, including the
purchase of sites, to name a sum beyond which expenditures shall
not be made, but nobody ever thought that such a limitation had
anything to do with what the owners of property should have a right
to receive in case proceedings to condemn had to be resorted
to.
A further objection is made to the validity of the act by reason
of the sixth section, which provides for the assessment of benefits
resulting from "the location and improvement of said park" upon
lands so especially benefited.
The cases heretofore cited to show that the erection of parks in
cities is a public use in a constitutional sense were, most of
them, cases in which it was likewise held that it is competent for
the legislature, in providing for the cost of such parks, to assess
a proportionate part of the cost upon property specially benefited,
and we need not repeat the citations.
No special request, on the subject of the legal effect of the
provision in respect to special benefits, seems to have been made
to the court below, and there is no specific assignment of error as
to it; nor does it appear that any person having
Page 147 U. S. 303
property actually assessed for special benefits is a party as
plaintiff in error. We are therefore relieved from any extended
consideration of this feature of the act.
Certain questions arose during the trial of the case below which
are brought to our attention by bills of exception. One of these
was as to the form of the oath administered to the appraisers. The
defendants asked the court to administer an oath to
"appraise the value of the respective interests of all persons
concerned in the land within the Rock Creek Park upon the whole
evidence, guided by the rules of law as furnished by this
Court."
This the court declined to do, and prescribed an oath to
"faithfully, justly, and impartially appraise the value or
values of said parcels of land, and of the respective interests
therein, to the best of their skill and judgment."
As the statute did not prescribe any form for the oath, we do
not perceive that the court exercised its discretion wrongfully in
prescribing the form of oath that was used. The purpose of the
defendants in asking for the imposition of an oath in the form
presented by them would appear to have been to restrain the
appraisers from being influenced by their own inspection of the
lands and to restrict them to the evidence or estimates that should
be adduced before them. Whether this be so or not, the oath
actually administered did not, as we understand it, leave the
appraisers "at liberty at their discretion to disregard the
evidence altogether, and to make their appraisement without regard
to the evidence," that their duty was to view the lands, hear the
evidence, and fix the values.
Complaint is made in another exception of instructions given and
refused by the court in instructing the commission. We shall
briefly consider this objection. The instruction given was as
follows:
"The commissioners are instructed that they shall receive no
evidence tending to prove the prices actually paid on sales of
property similar to that included in said park, and so situated as
to adjoin it or to be within its immediate vicinity, when such
sales have taken place since the passage of the act of Congress of
the 27th of September, 1890, authorizing said park; but any recent
bona fide sales, made before the passage of said act, of
lots similarly situated and adapted to
Page 147 U. S. 304
similar uses, or recent
bona fide contracts made before
the passage of said act, with landowners, for other lands in the
vicinity similarly situated, may be considered by the
commissioners, looking at all the circumstances of these sales or
contracts in the determination of the ultimate question of
value."
A further instruction was given in the following terms:
"The commissioners are further instructed that they shall be
governed in their inquiry in making their valuations by the
following considerations: what are the lands within the park limits
now worth in cash, or in terms equivalent to cash, in the market,
if a market now exists for such lands? What would anyone needing
lands for residence, agriculture, or any other purpose pay for them
in cash? They are not at liberty to place a value upon these lands
upon the basis of what one might be willing to buy them on time for
purely speculative purposes, nor can they consider the value given
them by the establishing the park, and they are to make their
valuation without consideration of the fact that a specific amount
of money is appropriated by the act of Congress of 27th September,
1890."
The instructions asked for by the plaintiffs in error were as
follows:
"The commissioners shall estimate each parcel of land at its
market value, and are instructed that the market value of the land
includes its value for any use to which it may be put, and all the
uses to which it is adapted, and not merely the condition in which
it is at the present time, and the use to which it is now applied
by the owner; . . . that if, by reason of its location, its
surroundings, its natural advantages, its artificial improvement,
or its intrinsic character, it is peculiarly adapted to some
particular use --
e.g., to the use of a public park -- all
the circumstances which make up this adaptability may be shown, and
the fact of such adaptation may be taken into consideration in
estimating the compensation."
The theory of appraisement asked for by the plaintiffs in error
differed from the one adopted by the court chiefly in two
particulars -- first, it treats the case as if it were one before
an ordinary jury, whose action is determined by the evidence
adduced, and second that the evidence might have
Page 147 U. S. 305
reference to and include any supposed or speculative value given
to the property taken by reason of the act of Congress creating the
park project. Whereas the court regarded the functions of the
appraisers as including their own judgment and inspection of the
lands taken, as well as a consideration of the evidence adduced by
the parties.
We approve of the instructions given by the court in both of
these particulars.
The scope of action of the board of commissioners was plainly,
by the terms of the act and the nature of the inquiry, not
restricted to a mere consideration of the evidence and allegations
of the parties, but included the exercise of those powers of
judgment and observation which led to their selection as fit
persons for such a position.
While the board should be allowed a wide field in which to
extend their investigation, yet it has never been held that they
can go outside of the immediate duty before them,
viz., to
appraise the tracts of land proposed to be taken, by receiving
evidence of conjectural or speculative values, based upon the
anticipated effect of the proceedings under which the condemnation
is had.
Kerr v. South Park Commissioners, 117
U. S. 380.
In connection with this part of the subject, we may
appropriately consider the objection made to the action of the
court below in declining to review and pass upon the evidence that
had been produced before the commissioners.
If, as we have said, the court below was right in refusing to
restrict the commissioners to a mere consideration of the evidence
adduced, then it would seem to follow that the court could not be
legitimately asked, in the absence of any exceptions based upon
charges of fraud, corruption, or plain mistake on the part of the
appraisers, to go into a consideration of the evidence. The court
cannot bring into review before it the various sources and grounds
of judgment upon which the appraisers have proceeded. The attempt
to do so would transfer the function of finding the values of the
lands from the appraisers to the court. Such a course would have
presented a much more serious allegations of error than we find in
the objection as made.
Page 147 U. S. 306
The rule on this subject is so well settled that we shall
content ourselves with repeating an apt quotation from Mills on
Eminent Domain, 246, made in the opinion of the court below:
"An appellate court will not interfere with the report of
commissioners to correct the amount of damages except in cases of
gross error, showing prejudice or corruption. The commissioners
hear the evidence, and frequently make their principal evidence out
of a view of the premises, and this evidence cannot be carried up
so as to correct the report as being against the weight of
evidence. Hence, for an error in the judgment of commissioners in
arriving at the amount of damages there can be no correction,
especially where the evidence is conflicting. Commissioners are not
bound by the opinions of experts or by the apparent weight of
evidence, but may give their own conclusions."
A number of exceptions were filed to the action and conduct of
the commissioners, but we think that they raised questions covered
by the observations already made, and were properly disposed of by
the court below.
Whether the plaintiffs in error were entitled to be allowed, in
the assessment of damages, for the value of prospective gold mines
in tract 39, designated on the map of the park, was a question
mooted at the trial, and the action of the court in striking out
the testimony offered to show such value and in holding that if
there are any deposits of gold in this ground, they are the
property of the United States, is complained of in the 7th, 8th,
and 9th assignments of errors. The history of the tract in question
was gone into at great length, and various patents of the province
and State of Maryland were put in evidence. The court below held
that, as by the grant of Charles I to Lord Baltimore,
"all veins, mines, and quarries, as well opened as hidden,
already found, or that shall be found, within the regions, islands,
or limits aforesaid, of gold, silver, gems, and precious
stones,"
passed to the grantee, he yielding unto the King, his heirs and
successors, "the one-fifth part of all gold and silver ore which
shall happen, from time to time, to be found," and as the
confiscation of the proprietary's title in 1780 vested the same in
the State of
Page 147 U. S. 307
Maryland, and as also the royalty of one fifth part of the gold
and silver reserved to the King had also become, by the Revolution,
vested in the state, consequently the United States succeeded to
the state's title by the act of cession of 1791.
The discussion by the court below was so elaborate and careful
that no useful purpose would be served by entering minutely into
the subject in this opinion. It is sufficient to say that our
examination of the evidence contained in the record fails to
disclose any error in the ruling of the court below respecting the
ownership of a supposed gold mine in tract 39, and we adopt its
opinion
* as presenting a
full and satisfactory treatment of the question.
Page 147 U. S. 308
The twelfth and thirteenth assignments allege error in the
court's action in confirming the report of the commissioners
Page 147 U. S. 309
of appraisement as to a portion of the land embraced in the map
of the proposed park, leaving other portions of that land
Page 147 U. S. 310
unacted upon. We understand this objection to refer to the
course of the park commissioners in securing the final action
Page 147 U. S. 311
of the President upon a portion only of the lands described in
the map as originally filed, and the contention is that the
Page 147 U. S. 312
map was a finality, so that, if it turned out that the sum
prescribed by the act of Congress would not suffice to pay for
all
Page 147 U. S. 313
the tracts mentioned in the map, or if, for any other reason,
the commissioners should exclude from their final selection
Page 147 U. S. 314
any tract originally included in the map, the whole proceeding
would be vitiated, and the purpose of the act defeated. We
Page 147 U. S. 315
are unable to see the force of this view. The function of the
map was not to finally commit the commissioners to taking
Page 147 U. S. 316
all the parts included in it, but was to facilitate their
proceedings in dealing with the owners. Congress could not have
Page 147 U. S. 317
meant that the validity of the whole scheme should depend upon
the accuracy with which the commission should define
Page 147 U. S. 318
in advance the several tracts with whose owners negotiations
were to be had. It seems to us that it was a sufficient and
Page 147 U. S. 319
reasonable compliance with the law if the map, as finally acted
upon by the President, showed the location, quantity
Page 147 U. S. 320
and character of the parcels of land to be taken, with the names
of their owners.
The fifteenth and sixteenth assignments, which complain of the
course of the court in adopting and acting upon the decision of the
President of the United States approving the appraised values of
part only of the land selected for the Rock Creek Park present the
same contention in another form,
viz., that the court and
commissioners were concluded by the enumeration of tracts contained
in the map when first prepared, and call for no further
remarks.
The fourteenth assignment charges the court with error in
Page 147 U. S. 321
refusing to allow interest on the amounts assessed as the values
for lands selected for the Rock Creek Park. The argument shows that
the interest claimed was for the time that elapsed between the
initiation of the proceedings and the payment of the money into
court. The vice of this contention is in the assumption that the
lands were actually condemned and withdrawn from the possession of
their owners by the mere filing of the map. Interest accrues either
by agreement of the debtor to allow it for the use of money or in
the nature of damages by reason of the failure of the debtor to pay
the principal when due. Of course, neither ground for such a demand
can be found in the present case. No agreement to pay the interest
demanded is pointed to, and no failure to pay the amount assessed
took place. That amount was not fixed and ascertained till the
confirmation of the report. Then some of those entitled to the
assessments accepted their money; the plaintiffs in error declined
to accept, and the amounts assessed in their favor were paid into
court, which must be deemed equivalent to payment.
It is true that, by the institution of proceedings to condemn,
the possession and enjoyment by the owner are to some extent
interfered with. He can put no permanent improvements on the land,
nor sell it except subject to the condemnation proceedings. But the
owner was in receipt of the rents, issues, and profits during the
time occupied in fixing the amount to which he was entitled, and
the inconveniences to which he was subjected by the delay are
presumed to be considered and allowed for in fixing the amount of
the compensation. Such is the rule laid down in cases of the
highest authority.
Reid v. Hanover Branch Railroad, 105
Mass. 303;
Kidder v. Oxford, 116 Mass. 165;
Hamersley
v New York City, 56 N.Y. 533;
Norris v. Philadelphia,
70 Penn.St. 332;
Chicago v. Palmer, 93 Ill. 125;
Phillips v. South Park Commissioners, 119 Ill. 626.
These various contentions and objections did not escape the
attention of the court below, but were disposed of, as they arose
in the proceedings, in opinions of great research and ability which
appear in the record. We have briefly reviewed
Page 147 U. S. 322
them here, not to add to what was so well expressed in those
opinions, but to show that the questions so zealously and ably
pressed upon us have not been disregarded.
Our conclusion is that we find, in the legislation creating the
park and in the proceedings under it, no infringement of the
constitutional or legal rights of the plaintiffs in error, and the
judgment of the court below is accordingly
Affirmed.
* The opinion thus adopted by this Court will be found in the
record, pages 168 to 174 and 212 to 218, and is as follows:
"By Mr. Justice Cox. We have had under consideration the motion
made in this matter by the petitioners, and that motion is that the
court strike out all the evidence introduced by the defendants
Shoemaker and Truesdell relating to the existence of gold mines in
tracts 39 and 42 on the map filed by said petitioners on the ground
that if any gold mines exist therein, the title thereto is in the
United States. "
"In order to solve this question, we are compelled to go
somewhat into the history of titles in Maryland. All land titles in
the District are derived primarily from Maryland. We all know that
the history of the title to real estate in Maryland commenced with
the charter to Caecilius Calvert, Lord Baltimore, by Charles I in
the eighth year of his reign. That charter defines the limits of
the Province of Maryland and grants and confirms unto the said
Caecilius Calvert, Baron of Baltimore, his heirs and assigns, the
lands and waters included within those limits, and goes on to
say:"
"And moreover all veins, mines, and quarries, as well opened as
hidden, already found or that shall be found within the region,
islands, or limits aforesaid of gold, silver, gems, and precious
stones, and any other whatsoever, whether they be of stones or
metals or of any other thing or matter whatsoever."
"They were granted to him, his heirs and assigns, forever,"
"to hold of us, our heirs and successors, Kings of England, as
of our castle of Windsor, in our County of Berks, in free and
common socage, by fealty only for all services, and not in capite
knight's service, yielding therefor unto us, our heirs and
successors, two Indian arrows of those parts, to be delivered at
the said castle of Windsor every year, on Tuesday in Easter week,
and also the fifth part of all gold and silver ore, which shall
happen from time to time to be found within the aforesaid
limits."
"The right to mines of gold and silver was considered one of the
jura regalia under the common law of England. In this country, we
have no
jura regalia. Whoever owns the land owns
everything contained in it, including mines, unless they be
expressly reserved, and the same law is applicable to a transfer by
the federal government. "
"This matter of the ownership of mines was discussed in the case
of
Moore v. Smaw, 17 Cal. 199, where the court, in its
opinion as delivered by the Chief Justice, says:"
" In the great case of
The Queen v. The Earl of
Northumberland, 1 Plowden 310, which was argued before the
barons of the exchequer and all the justices of England, it was
held by their unanimous judgment 'that by the law all mines of gold
and silver within the realm, whether they be in the hands of the
queen or of the subjects, belong to the queen, by prerogatives,
with the liberty to dig and carry away the ores thereof, and with
other such incidents thereto as are necessary to be used for the
getting of the ore,' and also 'that a mine royal, either of base
metal containing gold or silver or of pure gold and silver only,
may, by the grant of the King, be severed from the Crown and be
granted to another, for it is not an incident inseparable to the
crown, but may be severed from it by apt and precise words.'"
"This case was decided in 1568, during the reign of Queen
Elizabeth, and continues until this day an authoritative exposition
of the doctrine of the common law. It is conclusive to the point
that the right to the mines was not regarded by that law as an
incident of sovereignty, but was regarded as a personal prerogative
of the King, which could be alienated at his pleasure."
"The title to mines in Maryland was vested by the charter in the
'lord proprietary,' as he was called, subject only to a royalty of
one-fifth part of them in favor of the crown. "
"In an exposition by Kilty of 'original titles as derived from
the proprietary government, and more recently from the State of
Maryland,' called the 'Landholder's Assistant,' and which has been
referred to by counsel on both sides in the argument as a work of
authority, it appears that the proprietary formulated from time to
time rules and regulations for the disposition of his land, called
'conditions of plantations, instructions, etc.' These 'conditions
of plantations, instructions,' etc., became matter of record, and,
so far as extant among the public records of the state in the year
1808, are printed in the work referred to, which was issued in that
year, and were originally carried into effect by some one or other
of his lordship's agents and chief officers in the province, such
as his 'lieutenant general,' his 'chief governor,' his 'lieutenant
governor,' and later by the governor and council, and others
charged with the management of land affairs. "
"Three steps were necessary for transferring the title from the
proprietary to the individual seeking the patent. The first was a
warrant issued by the proper officer, and which was the authority
to the surveyor of the county to survey and lay off the particular
quantity of land; the next step was the returning by the surveyor
of his certificate of survey, and the third step was the issue of
the patent. In the course of time, another form of warrant came to
be issued called the 'warrant of resurvey.' Parties having several
contiguous tracts by patent from the land office procured from it a
warrant of resurvey authorizing the surveyor to resurvey those
tracts, the grounds assigned for which were the uncertainty of
existing bounds, and the desire of the parties to connect several
adjoining tracts in one survey. At first, the privilege of taking
in adjoining vacancy over and above the quantities originally
granted did not attach to this kind of warrants, but this
subsequently became the main object of these resurveys. On
resurveys, lands included in elder surveys were excluded, and
allowance made for the deficiency either in contiguous vacancy or
elsewhere. On the other hand, where land had been included in
surveys beyond the quantity to which the party was entitled, the
excess, denominated 'surplus land,' was claimed by the proprietary,
and, as this surplusage was more common than vacancy, it gave rise
to numbers of warrants, sometimes demanded by parties when they
found that the excess of their grants could not be concealed, and
on other occasions issued by direction of the government where
information of surplusage was obtained. In 1735, it was determined
to grant warrants to the first discoverers, enabling them to make
resurveys on the lands of other persons, and to become purchasers
of the surplusage found therein."
"All the patents that were issued by the proprietary contained
an exception of royal mines, and we understand those terms to mean
mines of gold and silver, and the consequence was that they did not
pass by these grants, but remained in the proprietary as his
separate property. Notwithstanding the common law maxim as to the
ownership of property,
cujus est solum, ejus est usque and
caelum, there may be two separate owners of the same land. A
man may own the surface of the ground and underneath the surface
may be owned by another person, so that, as the patent issued with
that reservation, the proprietary remained the owner of the mines.
"
"The present owners of the land, deriving title by mesne
conveyances from the patents, claim that they are entitled to the
mines, but as the patentee did not take the mines of gold and
silver, I do not see how the last owner has acquired title thereto.
There can be no question here of adverse possession, or title by
adverse possession, in the position taken by the claimants to these
mines. The then proprietary was divested of his title by the
American Revolution. When the Revolution broke out, the British
subjects left this country, perhaps for their country's good, and
the effect of the Revolution, I might say, with regard to the
royalty that had been reserved by the King, was to transfer it to
the state, and the property of the proprietary was confiscated by
an act passed by the state in 1780, c. 45, of the session of that
year. When you contrast this act of confiscation with the act
passed by the Congress of the United States during the late Civil
War, it will be seen that the latter act subjected the property of
those in hostility to the government to seizure and condemnation by
judicial proceedings and sale, and directed that the proceeds of
the sale should be paid into the Treasury of the United States. If
any property was seized and such legal proceedings were not taken,
the title never was passed, but remained in the owner. The Act of
Maryland is much stricter in its terms."
"After a long recital of grievances committed by England, the
Act of Maryland declares:"
"And it is hereby enacted and declared that all property within
this state, debts only excepted, belonging to British subjects,
shall be seized, and is hereby confiscated to the use of this
state."
"In section 7, on the assumption that the title was at once
vested in the state by the preceding enactments, the act goes on,
and directs that certain property, being certain iron works, lands,
and stock therein mentioned,"
"shall be, and are hereby, appropriated and set apart as a fund
for making good and sinking certain bills of credit which had been
emitted by the state."
"The act further enacted"
"that all British property confiscated in virtue of this act,
and not thereby appropriated for the redemption of the bills of
credit lately emitted by this state, and for the payment of debts,
shall be subject to the disposal of the General Assembly. "
"To remove any doubt of the meaning of the law, in chapter 49 of
the same session it is enacted that certain commissioners shall be
appointed, 'for the purpose of preserving all British property
seized and confiscated by the act of the present session,' just
before referred to,"
"and that the said commissioners shall be, and are hereby
declared to be, in the full and actual seisin and possession of all
British property seized and confiscated by the said act, without
any office found, entry, or other act to be done, and the said
commissioners shall and may, as soon as may be, appoint proper
persons, in all cases that they may think necessary, to enter into
and take possession of any part of the said property,"
"etc. This was a complete divesting at once of the title to the
property owned by British subjects, and vesting it in the state or
in the commissioners to represent the state. Chapter 51 of the same
session goes on and appropriates the manors owned by the late lord
proprietary in several counties to certain purposes, and it
provides"
"that this state will forever warrant and secure to the
purchasers and their heirs any British property sold in pursuance
of this act, and will protect them in the peaceable possession
thereof."
"This was followed by another act, relating to forfeited estates
and sales of reversionary rights, where they were estates tail.
There was another act in relation to claims against forfeited
property by individuals, and section 2 of the latter act provided
for the confiscation of the property of British subjects which may
be in the possession of others without any proper claim upon them.
All of which shows the scope of the confiscation, and that these
acts were intended to reach every piece of property that belonged
to British subjects. This intent runs all through them, in fact,
and it is not necessary to refer to them in further detail. It is
sufficient to say that it was the effort of the state to
appropriate everything -- every species of property -- that
belonged to British subjects, and, of course, that would include
mines as well as anything else. Certain grace was given to the
owners of the property. They were allowed a certain time in which
to come forward and swear fealty to the state and in that way save
their property."
"During the argument, an inquiry was made whether the State of
Maryland had ever made any reservation, in her patents issued since
the Revolution, of mines and quarries, or whether its legislation
was silent on that subject, from which it might be inferred that
she never intended to confiscate that species of property. A
partial answer to that inquiry, at least, is found in chapter 20 of
the act of 1783, relating to the sale of confiscated property, by
which it is enacted"
"that in all sales of the said lands there shall be a
reservation of one fifth part of all mines of gold or silver found
thereon to this state, which reservation shall be expressed in the
deeds for the said lands."
"That showed that the subject of the ownership of mines was
brought to the attention of the legislature, and that the state
assumed itself to be the owner of the mines, as well as of the
surface of the land, and hence assumed that granting it would pass
the mines unless there was a reservation, and so the state reserved
one-fifth in all mines that might be found on this confiscated
property. Now it is true that there is no mention in the
legislation of the state in regard to mines or mineral lands except
in connection with the sale of the property, and the only object of
any legislation would be directed toward a sale of the property,
and it would have been useless to direct any sale of mines in the
state at that time, which would account for the absence of
legislation on that subject. It was not suspected at that time that
any mines existed in the state. If there had been any idea that
there were mines existing, there is no room for doubt at all, in
view of the spirit manifested in this legislation in the series of
acts running nearly twenty years, that the state would have been
prompt in declaring as forfeited the interests of British subjects
therein. It appears that nothing was ever done by the state that
amounted to a relinquishment of any rights that were vested in it
by confiscation. If there were any mines, however, they were the
property of the state, by another act of the state, which act
assumes that the state was the owner of the same by reason of the
action taken, which I have before referred to. In the case that I
have heretofore cited --
Moore v. Smaw -- there was no
hesitation at all upon the part of the justice, in delivering the
opinion of the court, in holding that,"
"at the date of the cession of California to the United States,
no minerals of gold or silver had been discovered in the land
embraced by the grant to the Fernandez or by the grant to Alavrada,
and, of course, no proceedings had been taken by which any
individual interest in them was acquired from the government. They
constituted, therefore, at that time the property of the Mexican
nation, and by the cession passed, with all other property of
Mexico within the limits of California, to the United States."
"Under the common law of England, there was an implied
reservation of mines of gold and silver. Looking at the terms of
the cession under the act of 1791, we will find that they are much
stronger than those employed in the act of cession of property in
California to the United States, because they contained absolute
words of cession, while the other does not. The language is"
"that all that part of the said territory called 'Columbia'
which lies within the limits of this state shall be, and the same
is hereby, acknowledged to be forever ceded and relinquished to the
Congress and government of the United States, in full and absolute
right and exclusive jurisdiction, as well as of soil as of persons
residing or to reside thereon, pursuant to the tenor and effect of
the eighth section of the first article of the Constitution of the
government of the United States."
"These words, of course, are to be taken distributively.
Congress and the government were given the full and absolute right
over persons, and they are given the full and absolute right to the
soil, and exclusive jurisdiction over both person and soil. It is
rather difficult to see how they could be more specific in
conveying whatever rights the state had in the land and soil. The
state, of course, could only transfer to the United States the
interest which it had, and to make the matter as clear as possible
and remove doubt, a proviso was added:"
"That nothing herein contained shall be so construed to vest in
the United States any right or property in the soil, so as to
affect the rights of individuals therein."
"In other words, the state did not undertake to grant away the
rights of individuals, but did undertake to give to the United
States all her rights, both as to soil and persons who resided in
the part of the state ceded. The state relinquished all rights
which she had, and at the same time provided that the United States
should not have any right in the soil that would affect the rights
of individuals. The history that I have given of this property
excludes all idea that the law did vest in the individuals the
right to the mines. Nobody can doubt that the public domain passed
to Congress, and that it has always acted upon that assumption in
granting patents to vacant land that it has sold, and we can see no
reason to doubt that the right of the state to any mines on the
land separate from it also passed, by this grant of the territory
'in full and absolute right, and exclusive jurisdiction, as well of
soil as of persons residing or to reside thereon.'"
"We cannot escape from the conclusion that all public property
of the State of Maryland within the District passed by the cession,
and that the legislature, by its act of cession, transferred all
interests in any possible gold mines in this District to the United
States."
"But a patent was introduced at the argument, of a later date,
from the State of Maryland to Robert Peter, under whom these
present owners claim title, and that patent has no reservation of
any gold or silver mines, and it was claimed that, for this reason,
whatever interest the state formerly had in these mines passed by
this patent. That patent was dated in 1803. It will be remembered
that the Congress of the United States assumed formal jurisdiction
over this District, and provides for its government, by the Act of
February 27, 1801, three years before the date of this patent. The
State of Maryland, of course, could not convey land that had
already been ceded to the United States. But this paper suggests
certain serious inquiries. The patent was a resurvey patent based
upon a warrant dated the 12th day of May, 1800, which was nine
months before the actual assumption of jurisdiction here by
Congress, and the first inquiry is whether that did or did not give
the parties equitable title, being prior to the time that the land
was actually taken possession of under the cession by the Congress
of the United States. That inquiry suggests one or two questions.
The first is: under the law of Maryland, did the land laws remain
in force in that part of the territory ceded until the removal of
the seat of government, and if so, did the issuing of this warrant
give an inchoate title, an equitable title which would prevail
against the subsequent acquisition of the same legal title by the
United States? The letter of the law seems to be that in all cases
of resurveys, no equitable title is created until the certificate
of survey is returned to the land office. Upon the issuing of the
warrants of resurvey, the party had two years under the law within
which to have the survey returned and pay the fees. It seems to me
that no equitable charge could be laid against this property by
reason of the issuing of the warrant of resurvey. The patent does
not say that that survey was returned to the surveyor's office. The
warrant was not issued until 1800, and the patent was not issued
until 1803, and the presumption would therefore be that the
certificate of survey was not returned until after 1801, so that
there is nothing upon the face of this patent which would justify
us in saying that there could be an equitable title acquired
through the warrant."
"There is a still more important question, and that is whether
the State of Maryland at that period could convey any interest,
legal or equitable, in the property. In the act of 1791, ceding
this property to the United States, there is this proviso:"
"That the jurisdiction of the laws of this state over the
persons and property of individuals residing within the limits of
the cession aforesaid shall not cease or determine until Congress
shall by law provide for the government thereof, under their
jurisdiction, in manner provided by the article of the Constitution
before recited."
"Now this continues in force the jurisdiction of the laws of the
State of Maryland over the persons and property of individuals
residing therein. To make that applicable to the present case, it
would be necessary to have extended it to the property held by the
state, but it seems to me that that extended no further than to say
that the laws that affected private rights should continue in force
until proper provision was made by Congress. See what the
consequence would be if another construction had been given to it.
The State of Maryland extended to the Virginia shore, and suppose
that after this cession, and before 1801, the State of Maryland had
undertaken to cede to the State of Virginia the whole bed or bottom
of the Potomac River, from its source to its mouth, including that
part in the District of Columbia. Doubtless Congress could have had
something to say about it after the cession had been made. We are
satisfied, therefore, that the proviso does not continue in
operation the land laws of the State of Maryland, and consequently
no title could be derived at the date of this survey and patent or
at the date when the warrant upon which it was based was taken out.
We are satisfied that the proviso does not continue in operation
the land laws of the State of Maryland as to the public lands owned
by the state within the said District, and that consequently no
title to such lands could be obtained by patent from the state
after the act of 1791."
"At a much later time, a citizen of Maryland who owned a tract
of land in this District died, making a will disposing of his land,
and appointing an executor, and, the executor having declined to
act, the chancellor appointed a trustee to carry out the trusts of
the will, and the title was declared vested in that trustee, and a
sale directed to be made, and the proceedings were in accordance
with the law of Maryland. But this court had no hesitation in
declaring the whole proceedings null and void, for want of
jurisdiction in the chancellor to give the relief asked for."
"Upon the whole case, therefore, we are of the opinion that if
there are any deposits of gold in this ground, they are the
property of the United States. This motion upon the part of the
government is granted."
Subsequently a motion was made to rescind the order granting the
motion on the part of the government upon the ground of newly
discovered evidence, the nature of which is shown in the second
opinion of the court, taken from pages 212 to 218 of the
record.
"BY MR. JUSTICE COX:"
"In this matter, a motion has been made to rescind the order
heretofore passed by this court directing the commissioners to
disregard the evidence as to the deposits of gold in two of the
tracts, numbered 39 and 42, the former being the property of
Shoemaker, and the latter that of Truesdell."
"It will be remembered that the conclusion announced by the
court was founded upon a patent which was introduced on the part of
the government, and dated in 1772, from the proprietor to one
White, by which the royal mines -- that is, the mines of gold and
silver -- were expressly reserved to the proprietor, and our
argument was that they were derived through confiscation by the
state and on behalf of the United States through the cession of
1791, and if such gold deposits existed there, they were the
property of the United States."
"The present motion is based upon additional evidence said to
have been discovered since the first order."
"The first patent granted to White affecting the premises was on
a resurvey in 1760, in which the land was granted without any
reservation of royal mines, and it is supposed that those claiming
under White were allowed to refer their title back to the first
muniments of title, and that it is not affected or vacated by the
subsequent patent of 1772, in which there was an express
reservation of all royal mines. As to the character of the tenure
of land in this country since the Revolution, it has been said that
it has become allodial. That is all true, but it must be remembered
that at the date of the commencement of these tenures, all land in
Maryland was held as essentially feudal. In the first place, the
charter of Lord Baltimore conveyed to him this land not to be held
by knight's service, but by fealty, and a certain proportion of the
precious metals that might be discovered on the land was reserved,
and if Lord Baltimore granted this land in fee simple afterwards,
the grantee held not of the Crown, but of him, the lord proprietor.
In this charter it is expressly stated that notwithstanding the
statutes of
quia emptores, Lord Baltimore was authorized
to create minor court barons and grant patents to lands to be held
in fee simple, but upon the rendition of such services, customs,
and rents as he should think proper, to be laid by him, and not by
the Crown, and in all these patents issued by him in fee simple
there was that reservation and fealty at least generally, in place
of any other service, so that relation, as to the tenure by which
the land was holden, existed all through between the lord
proprietor and his grantees, just as it did under the feudal
system."
"Now to go back to the common law. A lessee for life or years
could surrender his estate and take a new estate from the
reversioner. Not only could that be done by the tenant, but the
acceptance of a new estate by the grantee was itself a surrender of
the old one, and that upon the principle that the two could not
consistently stand together and the acceptance of the latter one
necessarily involved a surrender of the first. For instance, if a
lessee for years should take a lease for his own life, or that of
another man, the acceptance of the latter would necessarily be a
surrender of the first; or if a lessee for forty years accept one
for twenty-five years, or if a lessee for life accept a lease for
years -- say a lease for twenty years -- the acceptance of the one
would involve a surrender of the other."
"Upon the question of what shall be considered in law a
surrender of lands, it is said in Sheppard's Touchstone, 302
(edition of 1826, with notes by Atherly):"
"If lessee for life or years take a new lease of him in
reversion of the same thing in particular contained in the former
lease for life or years, this a surrender in law of the first
lease. 14 H. 8, 15; Plow. 194; Dyer, 28; Co. 10, 67. As if lessee
for his own life or another's life, in possession or reversion,
take a new lease for years, or a lessee for forty years takes a new
lease for fifty years, the first lease in both these cases is
surrendered. And this rule holdeth albeit the second lease be for a
less time than the first, as if lessee for life accept a lease for
years, or lessee for twenty years accept a lease for two years.
Perk. § 617; Co. 5, 11; Fitz. Sur. 3; Co.Super.Lit. 218; 37 H. 6,
17. And albeit the second lease be avoidable, as being made upon
condition, as if lessee for twenty years take a new lease for
twenty years upon condition that, if such a thing happen, the
second lease shall be void, and the thing do after happen, in this
case both these leases are become void; as where the lessor doth
grant the reversion to the lessee upon condition, and, after, the
condition is broken. Or if the second lease be made by tenant
entail, or the like; as, if a man made a lease for years of land,
and then made a feoffment to another of the land, and then take
back an estate to him and his wife of the land, and then make a new
lease to the lessee for ten years, this is a surrender in law of
the first lease; but if the second lease be merely void, then it is
otherwise. Dyer 140-141; Dyer 272; Dyer 177-178; Co. 5, 54, 55;
Kely. 70. And therefore, if the lessor do, by words of covenant
only, promise to his lessee that he shall have a new lease, and do
never actually make it, this is no surrender in law. And this rule,
as it seems, holdeth also, albeit the second lease be to the lessee
and a stranger, or to the lessee and his wife, and albeit the
second lease be by word only, and the first lease be by deed, if so
be the thing granted by the lease be such a thing as may pass by
word without writing, and albeit the second lease be in another's
right, as if the husband have a lease for years in the right of his
wife, and then take a new lease to himself in his own name, and
albeit the first lease be to begin presently, and the second be to
begin at a day to come, or
e converso, and albeit there be
a mean estate between, as if the land be let to A for years, and
after let to B for years, to begin after the first term, and the
assignee of A doth take a new lease. Dyer 178, Pasc. 40 El;
Co.Super.Lit. 238; Co. 6, 69, 10, 53, 67, 5, 11; Dyer 280; Dyer 92,
112. So if one demise land for ten years to one, and after demise
it for ten years to another, to begin at Michaelmas, and, after the
first lessee, accept a new lease, in all these cases there is a
surrender in law of the first leases. Dyer 46; Co. 2, 60. And if
there be two lessees for life or years, and one of them take a new
lease for years, this is a surrender of his moiety. Whereby it doth
appear that a surrender in law may be made of some estates which
cannot be surrendered by a surrender in fait, for
fortior est
disposition legis quam hominis. And hence it is that a
corporation aggregate may take a surrender in law without deed,
although it cannot make an express surrender without deed. Co. 6,
69, 10, 67."
"Now, technically, there was no surrender of such a thing as a
fee simple estate at common law. The owner of the estate might
reconvey to his grantor or the latter's legal successor, and take a
new title. There may have been some particular object in doing
that, though, of course, he is supposed to have taken the whole
title in the first instance. I do not know that there are any
examples of this since the days of the Saxons surrendering their
estates to William the Conqueror and taking them back again under
the conditions of feudal tenure imposed by him. Still such a thing
could be done as the owner of a fee simple granting back his title,
and taking a new grant, if there was any object in doing it. Under
the rules promulgated by the proprietary of Maryland, that very
thing was permitted -- that is, the practice of surrendering the
original grant in fee simple, and taking a new title from the lord
proprietor. Under these rules, the owner of two contiguous estates
who might desire to have them resurveyed might surrender them, and
take a new title for the two consolidated into one, or the owner of
one estate might surrender his grant and take a new one and of the
contiguous vacant land as a new entirety. The rules above referred
to expressly provided that special warrants might be issued to
resurvey two or more contiguous tracts for the person owning the
same, and to lay them out in one entire tract."
"The third section of the instructions issued by the proprietary
May 5, 1684, to certain persons whom he, by commission of that
date, appointed a land council, and by which their powers and
authority were defined, reads as follows:"
"To any person or persons having two or three or more tracts of
land contiguous or adjoining one to the other, you may (upon suit
made) grant special warrant to resurvey and lay out the same into
one entire tract, with liberty of taking in or adding thereunto
what waste land shall be found contiguous, and grant patent for the
same upon such conditions and terms as you shall seem meet and
reasonable, the person suing for the same surrendering up the
several former grants thereof to our chancellor or chancellors for
the time being to be vacated upon record."
"Now here is an express provision that the grantee of the fee
simple might surrender his title to the lord proprietor, and take a
new title, and for the same reason that at common law prevailed in
reference to leases for life and for years; but in that case, the
provision was not necessary, because, when a new lease was made, it
necessarily involved a surrender of the original title -- the
original cession. Every one of these grants was a grant of the
entire thing, for the whole property right, and, when one grant was
surrendered, a new grant was taken for additional land. The second
grant was made upon an entire resurvey of the land. The two estates
were different, and the party could not hold both estates. They
were not consistent, and that is the result in this very case.
Here, in the first place, in 1760, was a patent for six hundred and
eighty-one acres granted upon a warrant of resurvey. Upon a
resurvey of said patent in 1772, it was discovered that the land
embraced in it was covered in part by patents of several prior
patentees; that it contained portions of several older grants,
which had been improperly properly included in it, by the lines of
one of which older grants it was divided into two distinct and
unconnected parts. The surveyor thereupon, in his return of the
resurvey, included the one of said parts nearest the beginning,
which contained one hundred and fifteen acres, to which he added
thirty-six acres of contiguous vacancy, making in all one hundred
and fifty-one acres, and for this the patent of 1772 was granted.
The patent for the rest of the land is not produced before us, but
we may assume that there were two several patents issued, one of
which embraced this land, and of course it is held under the
conditions imposed by the grant. It won't do to say that that part
of the land embraced in this patent of one hundred and fifty-one
acres is held by the title acquired in 1760, because it is held as
a part of a new and entire tract, and upon different terms, and for
a different rental, and therefore there is an inconsistency in his
claiming to hold the land both under the patent of 1760 and that of
1772. The original entry of six hundred and eighty-one one acres
has disappeared entirely, and that land is now held under two
different patents. Any acceptance of a new lease, providing
different terms of rental and for a different period, involves the
surrender of the old lease, and so acceptance of a new grant from
the lord proprietor, embracing part of that which was formerly held
under the old grant, necessarily involved a surrender of the
original title. The requirement that the original patentee shall
formally surrender the title to be affected by the new grant has
never been rescinded, as far as we are advised. In point of fact,
however, the practice has fallen into disuse. It appears from Mr.
Kilty's statement that the practice was simply to enter on this
certificate of resurvey an order for the patent to be surrendered,
but finally the practice of surrendering the old certificate or
patent seems to have been abandoned entirely. Now there were two
very good reasons for that -- first, it was not necessary because
of the very fact that an acceptance of a new title inconsistent
with the former operated as a surrender of the former; and next
because of the doubt that seems to have been raised of the effect
of the claims in the matter of priority of some other individual
who might in the interim between the old and the new patent have
obtained a patent covering the same land, and as between several
parties holding under different patents the one who held the old
title would be regarded as retaining whatever interest he acquired
under it for the purpose of preserving priorities; but that is
altogether a different question from the relation of the tenant and
the old proprietor, and, as between them, it seems to be very plain
that the acceptance of a new title or a new grant was conceded to
supersede the old title, and therefore we think that the new title
must stand. There has been "
brk:
something also presented to us to affect our judgment in that
particular. As another item of evidence, it seems that James White
originally conveyed his estate to Robert Peter and Adam Stewart, as
tenants in common. By an act of the Assembly of Maryland, the
property of all British subjects was confiscated, and under that
act, Adam Stewart's was confiscated, and certain commissioners were
appointed to take charge of the confiscated property and dispose of
it. Adam Stewart's interest in this property was sold by these
commissioners. I do not remember the date of the sale, but that is
quite immaterial -- somewhere about 1785. Afterwards, in 1792, the
Chancellor made a conveyance of the property which Adam Stewart had
thus forfeited to Robert Peter. The deed from the state to Robert
Peter contained no reservation of the mines, and it is claimed that
this last deed from the commissioners to Robert Peter of the
interest of Stewart vested in Peter all interest in whatever mines
might be on the property. An inspection of that instrument will
show that it purports to do nothing of the sort. The deed recites
that about two hundred and fifty acres of land, which it does not
locate anywhere -- the property of Adam Stewart -- were confiscated
and sold to Robert Peter, and the deed professes to convey the
property of Adam Stewart, and nothing else. The property that Adam
Stewart had was an undivided moiety in the land, and nothing more,
and the deed from the Chancellor does not on its face purport to
convey anything else than exactly the property that was owned by
Adam Stewart in conjunction with Robert Peter. The construction of
the deed therefore does not bear out the claim on the part of the
present holders. If it did, however, the result would have to be
the same, because the deed from the state was not made until 1792,
after the cession of the District to the United States, and the
cession passed to the United States all the public domain within
the limits of the District -- that is, that part of it that had
been a part of the State of Maryland -- because it is said that all
of the territory "is hereby acknowledged to be forever ceded and
relinquished to the Congress and government of the United States in
full and absolute right and exclusive jurisdiction, as well of soil
as of persons residing or to reside thereon." If this does not
convey all the territory to the United States, then the United
States never did acquire it, because that is the only cession by
which a conveyance was made of the title to this property to the
United States, and its title to it depends upon this cession, and
nothing else. All this property in the District that had formerly
belonged to Maryland was ceded by this act in 1791, and, that
having been done, the State of Maryland could not thereafter have
vested in anyone the title to any part of the property. We do not
find anything, however, in this circumstances referred to which
affects this case. A point was made in argument which had not been
made before, and not founded upon any new facts in reference to the
character of these proceedings before the chancellor upon the
application for a repatent. Robert Peter had a resurvey patent in
1803 signed by the Chancellor, and founded upon a warrant of
resurvey issued in 1800, about six or eight months before Congress
had passed its law assuming jurisdiction over the District, and we
held that that could not pass title to land in the District; but it
is claimed that the proceeding before the Chancellor, as a judge of
the land court, was in its nature a judicial proceeding, and that
all such proceedings, and the result of them, are saved by the act
of Congress which assumed jurisdiction over this District. That is
entirely a misconception, we think, of the act of Congress. All
that it says is this:
"That in all cases where judgments or decrees have been
obtained, or hereafter shall be obtained, on suits now pending in
any of the courts of the Commonwealth of Virginia or of the State
of Maryland where the defendant resides, or has property within the
District of Columbia, it shall be lawful for the plaintiff in such
cases, upon filing an exemplification of the record and proceedings
in such suit with the clerk of the court of the county where the
defendant resides or his property may be found, to sue out writs of
execution thereon returnable to the said court, which shall be
proceeded on in the same manner as if the judgment or decree had
originally been obtained in said court."
"Now this applies only to contests between private parties in
which execution may issue, and does not provide for a proceeding in
which the state may be a party. The language is exclusively
applicable to private parties."
"We think, therefore, upon the whole, that none of the new
considerations which have been presented to us shake our former
conclusion, and the motion to rescind the order is overruled. What
I have said applies to the Shoemaker tract with more force than to
the Truesdell tract, because that is admitted to be a new grant, or
at least, taken under the patent in 1772, and not derived from a
patent in 1760 at all."
