1. Where a case is brought here by a writ of error to a state
court under the 25th section of the Judiciary Act, this Court can
only review the decision of the state court on the question or
questions mentioned in that section.
2. Therefore, if in addition to the decision of the state court
on such question or questions, that court has rested its judgment
on some point in the case not within the purview of that section,
and that point is broad enough to sustain the judgment, then,
although the ruling of the state court might be reversed on the
point which is of federal cognizance, this Court will not entertain
jurisdiction of the case.
Page 73 U. S. 143
3. In the present case, it appeared by the opinion of the
supreme court of a state that the statute of limitations was one of
the grounds on which the appellant's case had been dismissed. This,
if fairly in the record, was a sufficient ground for such
dismissal, and was not subject to review here.
4. But the opinions of the state courts (even though required by
a statute of the state to be filed among the papers of the case)
constituting no part of the record of the cause in which they are
given (as the Court here decided that they did not), nor being to
be looked to for the question decided by those courts, and neither
the pleadings in the case nor any other part of the record having
raised the question of the statute, this Court would not presume
that it was in the case.
5. An appellant's title having been dependent on an act of
Congress, and the judgment of the state court having been adverse
to the claim set up by him under that act, the case comes within
the purview of the section of the Judiciary Act before referred
to.
6. In perfecting a title to land located under the Act of
February 17, 1815, for the benefit of the inhabitants of New
Madrid, no vested interest in the land nor any appropriation of it
binding on the United States was effected until after the survey
was made and returned into the office of the recorder of land
titles.
Error to the Supreme Court of Arkansas, the question in the
court below being the validity of a title set up by Ashley's
executors on bill to a piece of land in that state, south of the
Arkansas River, near Little Rock, as against a title set up on the
other hand by Rector on cross-bill, each party seeking to have his
title quieted as against the other.
The title of the respective parties was thus:
Ashley claimed under a certain Act of Congress of June 23, 1836,
[
Footnote 1] granting to the
State of Arkansas, for the purpose of completing the public
buildings at Little Rock, a quantity of land, not exceeding five
sections, to be located under the authority of the general assembly
of that state, on any of the unappropriated lands of the United
States in Arkansas. Such proceedings were had under this act that
on the 8th day of June, 1838, the legal title to the land in
controversy became vested in Ashley unless it had been previously
appropriated by virtue of the proceedings under a certain Act of
Congress of February 17, 1815, through which
Page 73 U. S. 144
Rector set up a prior equitable ownership of the same land. This
last-mentioned act provided that any person owning lands in the
County of New Madrid, in Missouri, then recently visited by
earthquakes and whose lands had been materially injured by them,
should be authorized to locate the like quantity of land on any of
the public lands of the said territory the sale of which was
authorized by law, not exceeding six hundred and forty acres.
The material facts relating to the title of Rector thus set up,
as far as they were disclosed by the record, were these:
On the 30th November, 1815, there was issued to Henry Cockerham
by Frederick Bates, Recorder of Land Titles at St. Louis, a
certificate of the loss of six hundred and forty acres of land by
the earthquake, entitling him to locate the same quantity on any of
the public lands of the Territory of Missouri the sale of which was
authorized by law. Next in order was a paper signed by William
O'Hara, directed to the surveyor of the lands of the United States
for the States of Illinois and Missouri and the Territory of
Arkansas, referring to this certificate, and stating that the said
O'Hara, as the legal representative of Cockerham, located the said
six hundred and forty acres on the south side of the Arkansas River
near Little Rock, describing the location so as to enable the
surveyor to identify it, and praying an order of survey. This paper
was dated St. Louis, October 30, 1820, but no evidence was given
that it was ever filed in the surveyor's office, nor any to show
from whence it was produced, though for the purpose of the opinion
given by it, this Court considered that it might be conceded that
it was regularly filed in the surveyor's office at the time it bore
date, and that O'Hara had authority to act as the representative of
Cockerham in the matter.
Then followed in the record a survey purporting to be made under
Cockerham's certificate, dated May 30, 1838, and this was certified
on the 16th day of June, 1838, to be then on file in his office, by
F. R. Conway, recorder of land titles at St. Louis, and he further
certified that by virtue thereof, the said Cockerham or his legal
representative
Page 73 U. S. 145
was entitled to a patent for the tract so surveyed, amounting to
six hundred and forty acres of land. This appeared to be a
transcript from the records of the General Land Office. There was
also, in another part of the record, a survey dated May 2, 1839,
purporting to be made under the same certificate, apparently not
identical with the former survey, and which was certified to be
copy from the records of the surveyor of public lands for the
District of Arkansas. There was nothing to show whether this survey
was ever filed in the office of the recorder of land titles or not.
It was understood that the description in the order of O'Hara to
the surveyor, and the first of these surveys, and probably the
second also, covered the land in dispute.
It was this title thus set up under the act of 1815 which Rector
sought to have quieted and confirmed by his cross-bill. In the
pleadings, the titles were rested on the two acts of Congress
respectively, though in the original bill in support of Ashley's
title, filed by his executrix and one Beebe, it was averred, after
a full statement of the title derived under the act of 1836 --
which title alone was set forth as the substantive ground of
Ashley's bill -- that Rector had "never had anything more than
temporary actual possession or occupation" of any part of the said
lands "alleged to have been located by virtue of the said pretended
New Madrid location, except," &c., while it was stated on the
other hand that Ashley and his representatives "have continuously
had actual and constructive possession of the same." Beyond this,
the pleadings showed no reference to possession and lapse of time
as an element of title.
The Supreme Court of Arkansas decided the case in favor of
Ashley, giving a learned opinion (which was now in print before
this Court, but forming no part of the record sent up), to the
effect that the land had not been "appropriated" until after
Ashley's title was fixed, and going also into an argument to show
that under the statute of limitations of the State of Arkansas,
Rector was barred by lapse of time. By a statute of Arkansas, the
opinions of the court are required to be filed among the papers of
the case. Judgment
Page 73 U. S. 146
was accordingly given in favor of Ashley's executors, and the
case was now here under the twenty-fifth section of the Judiciary
Act, which declares that a final decree of the highest court of a
state where is drawn in question the construction of any statute of
the United States and the decision is against the title, right or
privilege so set up may be reviewed here.
The two questions here were 1st, jurisdiction; 2d, the validity
of the claim of Rector.
Page 73 U. S. 147
MR. JUSTICE MILLER delivered the opinion of the Court.
The first question presented grows out of a denial of the
jurisdiction of this Court by defendants in error.
It is conceded that one of the points decided in the supreme
court of that state against the plaintiff in error would be a
sufficient ground for the jurisdiction if it were the only one on
which that court decided the case; but it is claimed that the
decree is also based on another and distinct ground, over which
this Court has no jurisdiction, and that therefore we cannot
examine the first point. If there is this second ground on which
the decree may still be supported although the first were decided
in favor of the plaintiff in error, it would be a useless labor to
inquire into the correctness of the point which is of federal
cognizance because, as the ruling of the state court must be
assumed to be correct on the other proposition, no reversal could
follow if that proposition was sufficiently broad to sustain the
decree.
It is claimed that the statute of limitations of the State of
Arkansas is made by the supreme court a distinct ground for
dismissing the cross-bill of Rector. If this be found by the record
to be true, it is undoubtedly sufficient in itself to sustain the
decree, and is beyond the revisory power of this Court. But a
careful examination of the pleadings in the case has not enabled us
to discover that any of the parties in whose favor the decree was
rendered has distinctly set up the bar of that statute as a defense
to the relief claimed by Rector. It is true that there is a casual
reference in the
Page 73 U. S. 148
original bill of Ashley's executrix and Beebe, to their actual
and constructive possession, but it seems used rather
argumentatively in favor of their title than as setting forth a
distinct ground of relief, and in their answer and in all the other
answers to Rector's cross-bill -- the bill which sets up the main
title in controversy -- nothing is said of the possession of
defendants.
We cannot see, then, either from the pleadings or from any
decree in the case, that this question was raised or considered by
the court.
But the opinion of the Supreme Court of Arkansas is produced,
and in that it is stated that the defendants are protected by the
statute, and this is given as one of the reasons for the decree
rendered.
We have of late been frequently urged in this class of cases to
look into the opinions delivered in the state courts to ascertain
on what grounds their judgments were based, and the point has been
one of some controversy. It is not, however, an open question. More
than forty years ago the same question arose in the case of
Williams v. Norris, reported in 12 Wheat. [
Footnote 2] The proposition was pressed upon
the Court for the same reason that it is in this case, namely that
by the statute of the state, the opinions of the court are required
to be filed in writing among the papers of the case. Marshall,
C.J., speaking for the Court, held that notwithstanding this act,
the opinion of the state court constituted no part of the record,
and could not be looked to as the foundation on which this Court
would take or refuse jurisdiction.
Leaving out the opinion of the state court, there is nothing in
the record before us to show that its decree decided any other
controverted proposition than the validity of the title set up by
complainant, Rector. This title was dependent upon the Act of
Congress of February 17, 1815, for the relief of the inhabitants of
New Madrid, who had suffered by earthquakes, and the decision was
against the claim set
Page 73 U. S. 149
up by him under that statute. It is therefore a proper case for
a writ of error under the twenty-fifth section of the Judiciary
Act.
2. As respects then the claim of Rector, who seeks to have his
title quieted by the cross-bill which he has filed. The validity of
this claim is the point to be decided by this Court.
[His Honor here stated the facts and proceedings on which the
claim of Rector rested, as already given, and proceeded:]
The questions to be considered on these facts are did these
proceedings establish a right in the parties who represent
Cockerham to the land covered by the survey, which would withdraw
it from the category of unappropriated lands on which the Arkansas
grant could be located? And if they did, at what point in the
proceeding did this right become fixed?
It seems to us that this Court has already settled these
questions in a manner which leaves nothing more to be said unless
we overrule its decisions.
In the case of
Bagnell v. Broderick, [
Footnote 3] which raised a question
concerning a title derived under the New Madrid act, the Court,
after describing the proceeding necessary to secure its benefit,
says:
"The United States never deemed the land appropriated until the
survey was returned [to the recorder of land titles] for the reason
that there were many titles and claims, perfect and incipient,
emanating from the provincial governments of France and Spain, and
others from the United States, in the land district where the New
Madrid claims were subject to be located. So there were lead mines
and salt springs excluded from entry."
Again, speaking of an act of the Legislature of Missouri which
authorized an action of ejectment on a New Madrid location, it is
further said:
"Our opinion is first that the location referred to in the act
is the plat and certificate of survey
returned to the recorder
of land titles, because by the laws of the United States this
is deemed the first appropriation of the land, and the Legislature
of Missouri had no power, had it made the attempt, to declare the
notice of location filed with the surveyor general
Page 73 U. S. 150
an appropriation contrary to the laws of the United States."
In
Barry v. Gamble, [
Footnote 4] the Court says:
"By the certificate of the recorder of land titles at St. Louis,
Lafleur was entitled to 640 acres of land in compensation for lands
of his injured by the earthquake in New Madrid County. On this the
survey of 1815 is founded.
Its return by the surveyor,
with a notice of location,
to the office of the recorder, was
the first appropriation of the land."
The case of
Lessieur v. Price [
Footnote 5] is not distinguishable from the one before
us. In that case, as in this, plaintiff claimed under a New Madrid
certificate and the defendant under an act granting to Missouri
four sections of land to aid in erecting public buildings, as the
defendant in this case claims under a similar act for the benefit
of the State of Arkansas. The case there, as it does here, turned
upon the question which party first made a valid appropriation of
the land in dispute. The Court there declares that for this
purpose, the location under the New Madrid act must be an
appropriation of the land and its acquisition by the locator, with
corresponding right to possess and enjoy it as against the United
States, and the inquiry arose what acts were required on the part
of the locator to divest the United States of title. After reciting
the language of the act on which this question is declared to
depend, the Court proceeds:
"The notice of location in this instance was delivered to the
surveyor general, June 2, 1821, for the land in dispute, and is
claimed as the inception of title, and location in fact, within the
meaning of the state law authorizing ejectments on New Madrid
locations. That it was the mere act of the party, not having the
assent of the government, must be admitted. The act of Congress
provides"
" That in every case where such location shall be made according
to the provisions of this act, the title of the person or persons
to the land injured shall revert to and become absolutely vested in
the United States."
"A concurrent vestiture of title must have occurred. The injured
land must have vested in the United States at the
Page 73 U. S. 151
same time that the title was taken by the new location. It was
intended to be an exchange between the parties, and the question
arises when did the United States take title?"
After further consideration of the relative duties of the
recorder of land titles and of the surveyor under the act of 1815,
the Court again rules that the return of the survey to the office
of the recorder is essential to the appropriation of the land.
We are much pressed in the present case with the argument that
the title here spoken of by the Court is the legal, and not the
equitable, title, and that inasmuch as the applicant has done all
that he can do to make good his claim to the land when he has
deposited with the surveyor his certificate of loss, with a
description of the land desired in exchange, he has thus acquired
an equitable interest in the land so described which the United
States cannot divest by giving it to another.
But the rights of claimant are to be measured by the act of
Congress, and not exclusively by what he may or may not be able to
do, and if a sound construction of that act shows that he acquires
no vested interest in the land until the officers of the government
have surveyed the land and until that survey is filed in the office
of the recorder and approved by him, then as claimant's rights are
created by that statute, they must be governed by its provisions,
whether they be hard or lenient. It seems to us clear from the
foregoing cases that the Court intended to decide that until this
was done, the claimant acquired no vested right to the land -- no
title, legal or equitable. It is evident that in the case of
Lessieur v. Price, the Court is not speaking of the legal
title. The statute of 1815 required a patent to be issued on the
return of the survey to the recorder's office. The strict legal
title remained in the United States until the patent issued, and
the Court could not have referred to that.
On the contrary, it is obvious that the Court was endeavoring to
fix the point in the proceedings when the right of the claimant
became vested, when his equity became a fixed fact, when the land
he sought was appropriated to him, and
Page 73 U. S. 152
when his injured land became the property of the United States,
and by each of the three decisions we have cited this is held to be
when the survey is returned to the office of the recorder of land
titles. The legal title conveyed by the patent may not issue for
years afterward, but by the act of the Legislature of Missouri, an
action of ejectment could be maintained on the equitable title thus
acquired. In the federal courts, however, according to repeated
decisions, this could not be done for want of the legal title.
These views must dispose of the present case. The title of
Ashley became a full vested legal title on the 8th day of June,
1838.
The earliest evidence we have of the return of the survey under
Cockerham's certificate to the recorder of land titles is the
certificate of that officer of the 16th of June, 1838. The land
therefore was
unappropriated within the meaning of the act
for the benefit of the State of Arkansas when Ashley acquired title
according to its provisions.
It is said that the Congressional surveys had been extended over
the land in dispute when they were claimed by O'Hara and described
in his application to the surveyor, and that therefore no other
survey was necessary. It is not important to decide here whether
this would obviate the necessity of a survey or of some equivalent
return to the recorder's office to show what land was intended to
be appropriated under the certificate of loss which emanated from
that officer. for the description of O'Hara, while it refers to
certain legal subdivisions of the public lands, refers also to
other claims located in the same subdivisions in such a manner that
it can be ascertained only by a survey how much and what parts of
these legal subdivisions are necessary to make up his six hundred
and forty acres. Such seems to have been his own opinion when he
prayed for an order of survey. It was undoubtedly necessary to an
identification of the land.
The decree of the Supreme Court of Arkansas, having been made in
conformity to these principles, is
Affirmed.
[
Footnote 1]
5 Stat. at Large 58.
[
Footnote 2]
Page
25 U. S. 117.
[
Footnote 3]
38 U. S. 13 Pet.
436.
[
Footnote 4]
44 U. S. 3 How.
32.
[
Footnote 5]
53 U. S. 12 How.
60.
