Under the act of North Carolina of 1789 for the relief of the
officers and soldiers in the continental line, &c., the
commissioners having determined that the French Lick was within the
reservations of the statute as public property, and having surveyed
the said reservation in 1784, the same was protected from
individual survey and location, although it exceeded the quantity
of six hundred and forty acres.
The French Lick reservation has not been since subjected to
appropriation by entry and survey as vacant land by any subsequent
statute of North Carolina or Tennessee.
Page 25 U. S. 207
MR. JUSTICE TRIMBLE delivered the opinion of the Court.
The plaintiff prosecuted an action of ejectment in that court to
recover possession of a small tract of 20 or 30 acres of land which
had been laid out in lots and squares as part of the Town of
Nashville, the tenants in possession being the owners or occupiers
of such lots.
In the year 1818, Patrick H. Darby appropriated, by entry and
survey, all that part of the town from lot No. 141 to lot No. 165,
the latter inclusive; and having obtained a grant therefor from the
State of Tennessee, he, before the institution of the suit,
conveyed the land by deed to Edwards. This was the plaintiff's
title.
The Legislature of North Carolina, by an act passed in the year
1782, entitled, "An act for the relief of the officers and soldiers
in the continental line, and for other purposes therein mentioned,"
enacted that certain bounties in land should be granted to the
officers and soldiers in the line of that state on continental
establishment.
The seventh section of the act, after reciting that
"Whereas, in May, 1780, an act passed reserving a certain tract
of country to be appropriated to the aforesaid purposes, and that
it had been represented to the assembly that sundry families had,
before the passing of the said act, settled on the said tract of
country, enacts that 640 acres of land shall be granted to each
family or head of a family, and to every single man of 21 years or
upwards (to include their improvements), settled on said land
before the first day of June, 1780, for which they shall have the
right of preemption; provided no such grant shall include any salt
licks or salt springs, which are hereby declared to be reserved as
public property, together with 640 acres of the adjoining lands,
for the common use and benefit of the inhabitants of that country,
and not subject to future appropriations, and all the remainder of
the aforesaid tract of
Page 25 U. S. 208
country shall be considered as subject to partition as by this
act directed."
The eighth section appoints commissioners in behalf of the state
"to examine and superintend the laying off the land in one or more
tracts allotted to the officers and soldiers."
The eleventh section authorizes the commissioners to appoint one
or more surveyors for the more speedy and effectual laying off and
surveying said lands.
The commissioners, in the exercise of their powers in carrying
this act into effect, determined the French Lick to be within the
scope of its provisions and a proper object of such reservation,
and caused a survey to be made of said reservation as early as
1784, which turns out to include six hundred and sixty-seven and
three quarter acres, instead of six hundred and forty, and embraces
within its limits the whole of the lots laid off in the Town of
Nashville, and the land covered by the grant to Patrick H.
Darby.
In the year 1784, the Legislature of North Carolina, by its act,
appropriated 200 acres, part of said reservation, for the
establishment of the Town of Nashville, to be laid off at the bluff
on the Cumberland River nearest the French Lick, and commissioners
are designated in the act to lay out the proposed town in streets,
lots, and squares, to cause a plan thereof to be made out, and to
sell and dispose of the lots in the town when thus laid off.
Upon the trial of the general issue in the circuit court, after
the plaintiff had given in evidence the grant to Darby, and
conveyance from Darby to Edwards already recited, the defendants
gave evidence conducing to prove that the survey made of the
reservation around the French Lick by the commissioners as early as
1784 included the whole of the land granted to Darby and then in
controversy, and also that the commissioners or trustees, for
laying off the Town of Nashville, had in the year _____ laid off
and disposed of a part of the town lots and that afterwards the
commissioners had laid off and disposed of the additional lots, to
165 inclusive, about the year 1789, or 1790, but it appeared that
the quantity of 200 acres was thereby exceeded by 20 or 30 acres,
such excess covering the lots
Page 25 U. S. 209
from 141 to 165 inclusive, but the whole of which lay within the
French Lick reservation, as laid off by the commissioners about the
year 1784.
The court instructed the jury that if it found the land in
controversy, and within Darby's grant, was also within the boundary
of the town as actually laid off, although that boundary exceeded
the quantity of 200 acres, or if they found it was within the
actual survey of the French Lick reservation, as laid off in 1784,
although it exceeded the quantity of 640 acres, the land was
protected from individual appropriation by entry and survey, both
by being so within the town boundary as laid off, and within the
reservation as laid off, or if not by both, it was so protected by
being included within the latter, and that consequently the grant
to Darby was void.
To this opinion and instruction the plaintiff excepted, and his
exception was sealed and made part of the record.
It is not necessary to decide whether the land in controversy
would or would not have been protected from individual
appropriation by being actually laid off and disposed of as town
lots beyond the quantity of two hundred acres, as we are all of
opinion it was so protected by being within the French Lick
reservation as laid off.
It is argued that the commissioners appointed by the act of 1782
were not authorized to cause surveys to be made of the reservations
of 640 acres around the reserved salt licks and springs, that the
reservation was by quantity only, and that no legal effect can
therefore be attributed to the survey. We admit the statute does
not give the authority to survey the reservations, in express
terms, but do not admit that the authority may not and does not
result by necessary implication from the duties they were expressly
required to perform, and from the general provisions of the state.
They were not expressly required by the statute to determine what
licks and springs were proper objects for reservation and came
within the provisions of the statute, but they were required to lay
off and cause to be surveyed the lands granted to the officers and
soldiers, subject to and so as not to interfere with these
reservations. The right of preemption granted by law to the
settlers of 640 acres each, including
Page 25 U. S. 210
their settlements, were also to be avoided. It seems to result
necessarily from these provisions that the commissioners must first
determine what were the proper subjects of reservation, and having
determined that a given salt lick or spring came within the
provisions of the law, the power and duty of laying off by survey
the 640 acres reserved, and to be avoided around the lick, seems
necessarily and irresistibly to result to the commissioners in all
cases where they might deem it necessary to do so in order to
enable them to lay off the lands for the officers and soldiers so
as to avoid these reservations. The adjacency of preemption rights,
too, might render it both necessary and proper that they, as well
as the reservations, should be laid off, because both were to be
avoided. But more especially it was indispensable wherever the
commissioners were about to lay off lands for the officers and
soldiers adjacent to a salt lick or spring to have a survey made of
the reservation, to give it figure and fixed locality; otherwise,
the reservation being of quantity only, without boundary, one of
two consequences must have resulted, namely that it might lawfully
be encroached upon on one side, and if on one, on any other side,
or that, practically its uncertainty must have excluded a much
larger quantity than was intended by law to be reserved from the
satisfaction of the claims of the officers and soldiers.
In the construction of a doubtful and ambiguous law, the
cotemporaneous construction of those who were called upon to act
under the law and were appointed to carry its provisions into
effect is entitled to very great respect. The law was not only thus
construed by the commissioners, but that construction seems to have
received, very shortly after, the sanction of the legislature. By
the third section of an act passed by the Legislature of North
Carolina in 1789, entitled, "An act directing the sale of the salt
licks and springs, with the adjoining land, within the district of
Mero," it is enacted that the commissioners appointed to carry that
act into effect
"shall cause to be surveyed, where such surveys have not already
been made, all the said salt licks and springs, with the six
hundred and forty acres of adjoining land."
This provision must be construed as recognizing the validity
Page 25 U. S. 211
of and as ratifying the surveys which had been made by the
commissioners under the act of 1782.
The circumstance of the survey's containing a considerable
surplus we think immaterial. It was a public act, done by a public
authorized agent of the government and afterwards recognized by the
government itself. None but the government itself ought therefore
to be permitted to call it in question.
It is argued that however this may be, the legislature, by the
act of 1789 above recited, has declared the whole of the
reservation, not otherwise appropriated to the Davison academy, the
200 acres vested in the town, and the land granted to John McNairy,
to be vacant unappropriated land, subject to individual
appropriation by entry, survey, and grant in the ordinary mode, and
that as the land granted to Darby is not embraced by either of
these prior appropriations, his grant is valid.
We are not of that opinion. The second section of the act of
1789 directs the county courts to make out lists
"of all the salt licks and springs in their respective counties,
which said courts shall deem fit for the purpose of manufacturing
salt, including all such licks and springs as were set apart by
commissioners heretofore appointed for that purpose, as public
property,
viz., Heaton's Lick, Denton's Lick, the French
Lick, &c., which lists shall be entered on the records of said
courts and copies thereof delivered to the commissioners appointed
by this act, and all other salt licks and springs, with the
adjoining lands, not deemed by the court fit for the manufacturing
of salt be and they are hereby declared vacant land and liable to
be located and entered in the same manner as other vacant
land."
The act then proceeds to direct how the commissioners appointed
by that act shall proceed to sell the salt Licks and springs, with
the adjoining lands, listed as deemed fit for manufacturing salt.
From these provisions it was obviously the intention of the
legislature that all the salt Licks and springs deemed fit for the
manufacturing of salt, with the adjoining lands to each, shall be
sold in the manner specially directed by the act, and the French
Lick is, by the act itself, enumerated as one belonging to that
class.
Page 25 U. S. 212
It was only those not deemed fit for the manufacture of salt,
with the reserved lands adjoining them, that were declared vacant
land, subject to be appropriated by location and entry. We can
discover no other law of North Carolina or of Tennessee which
subjects the reservation about any of the Licks deemed fit for
manufacturing salt, to appropriation by entry and survey as vacant
land.
We therefore accord in opinion with the circuit court that the
grant to Patrick H. Darby is void.
The circuit court, as appears by the bill of exceptions,
permitted evidence to be given for the purpose of showing the court
had no jurisdiction, and instructed the jury that if it believed
the facts which this evidence conducted to prove, the court had no
jurisdiction over the cause. This was certainly irregular and
improper. The jury was sworn to try the general issue and the facts
involved in it, not to try facts involved in a question of
jurisdiction.
The instructions of the court were calculated to lead and divert
the attention of the jury from the subjects of inquiry properly
before it to others in no way connected with the issue. For this
error the judgment of the circuit court must be
Reversed, the cause remanded to the circuit court, with
directions to set aside the verdict, and for new proceedings to be
had therein not inconsistent with the judgment of this
Court.