Lessee of Brown v. Clements/Dissent Catron

Mr. Justice CATRON.

I feel myself bound to dissent, from the foregoing opinion for the following reasons:

1. By the act of 29th May, 1830, a pre-emption right settler then in possession was entitled to enter with the register of the Land-office in the district where the land lay, by legal subdivisions, not more than one hundred and sixty acres.

The controversy before us turns, partly, on what was the true 'legal subdivision' of fractional section 22, containing two hundred and three acres: This must be ascertained from the laws on the subject existing in 1830. The lines of public surveys actually run and marked in the field, are township extensions, and section boundaries; the lines dividing sections into quarters, half-quarters, (and quarter-quarters since 1832,) being only indicated, or depicted upon the township plats returned and recorded in the office of the register.

The act of 26th March, 1804, provides for the first time for the sale of the public lands in quarter-sections; and also directs (sect. 9) that fractional sections shall be sold entire; or by uniting two or more together. The act of February 11th, 1805, directs with absolute precision, leaving no discretion on the subject, the manner in which full sections shall be divided into quarters: but makes no provision for the subdivision of fractional sections. It was not until the passing of the act of April 24, 1820, that these were authorized to be subdivided; and then only when they contained more than one hundred and sixty acres. The act of 1820, in directing the manner in which full sections shall be subdivided into half-quarters, or eighty acre lots, is as absolutely precise in its provisions as that of 1805; and, as in the former case, gives no discretionary power so far as these subdivisions are concerned-but in authorizing the subdivision of fractional sections containing one hundred and sixty acres and upwards, it directs that they shall in like manner, 'as nearly as practicable,' be subdivided into half-quarter sections, or eighty acre lots-'under such rules and regulations, as may be prescribed by the Secretary of the Treasury.' Under the discretionary power here given, rules and regulations were prescribed by Secretary Crawford, on the 10th of June, 1820, (2 Land Laws and Opinions, p. 820, No. 796.) A circular was addressed to the surveyors-general of that date, for their government in this respect, by the commissioner of the General Land-office: It orders that fractional sections, containing more than one hundred and sixty acres, shall be divided into half-quarter sections, by north and south, or east and west lines, so as to preserve the most compact and convenient forms. 'You will, therefore,' says the commissioner, 'be pleased to divide the fractional sections in your district, (which remain unsold,) in the manner above directed, and report to this office, and to the registers of the land-district in which those fractions respectively are situate, the subdivisions, together with the quantity in each. It is not intended to run the subdivisional lines, and mark them, but merely to make them upon your surveys, and calculate the quantity of land in each subdivision.'

In January, 1826, (2 Land Laws, p. 583, No. 841,) further instructions were given on this subject, to the surveyor-general at Washington, Mississippi. The commissioner says, among other things-'A fractional section is a tract of land not bounded by sectional lines on all sides, in consequence of the intervention of rivers, &c., and containing a less quantity than six hundred and forty acres.'

Speaking of the regulations, and the circular letter founded on them, the commissioner continues: 'The substance of the rule is, that fractional sections of one hundred and sixty acres and upwards are to be subdivided by east and west, or north and south lines, at the discretion of the surveyor, so as to preserve the most compact and convenient forms. Each lot to be, as nearly as practicable, a half-quarter-section, containing a quantity of eighty acres; sometimes rather more, sometimes less, as the locality demands.'

According to these instructions, fraction No. 22 was divided: two precise eighty-acre tracts could not be made out of it; half-quarters, or eighty acres, was the least quantity that could be sold by the act of 1820, if in regular form and part of a full section; but if in irregular form, and the fraction of a section, containing upwards of one hundred and sixty acres, then it was left to the Secretary to cause it to be subdivided according to his own regulations, into two or more tracts, approaching, 'as nearly as practicable,' to eighty acres each. He directed the subdivisions to be made in all cases so as to preserve the most compact and saleable forms, accommodating the tracts to the sides of rivers, or other legal intervening boundaries to subserve the best interests of the government. This practice has prevailed as the governing rule for nearly a quarter of a century, and is now in full operation-large quantities of land have been sold thus subdivided; and great quantities yet remain to be sold. I speak on information derived from the commissioner of the General Land-office. The idea of taking out of a fraction a quarter-section of one hundred and sixty acres, if found there, as if the section was entire, and leaving surrounding strips of a few acres each, unsaleable and of little or no value, as will be the case here, never has been entertained at that office, as the true construction of the act of 1820, from the date of Mr. Crawford's instructions, (June 10th, 1820,) up to this time. On mature consideration, I think the instructions given legitimately within the authority conferred on the Secretary. In this view of the law, as applicable to the present case, I am supported by the opinion of the attorney-general, given on Etheridge's claim in 1837, (2 Land Laws and Opinions, p. 136, No. 85.)

2. Suppose, however, it was doubtful whether they were or not authorized, is it admissible for the courts of justice, after such a lapse of time, to call in question the construction given to the act; to disturb so many titles taken under it-and to break up existing subdivisions? The sole authority to which the act referred for its exposition, and the prescribing of rules and regulations to carry it into execution, was the Secretary of the Treasury. His jurisdiction was subject to no supervision; he was constituted the only judge, from whose decision there was no appeal on part of purchasers; they were compelled to buy in the form, and quantity, the lands were offered for sale, or not be permitted to purchase at all. The Secretary having adjudged and settled the construction of the act according to his views of its true meaning, and this coeval with its passage-a strong circumstance: the government in its executive and political departments, and the community at large concerned in purchasing from the government, having acquiesced without complaint, recognizing the construction as the true one, through so great a lapse of years, it is now supposed by me, the duty of this court, on the question being presented here, and that for the first time, to acquiesce also. That these subdivisions are for the best interests of the United States is manifest; all others have abided by them, and so should the plaintiff.

If one of our own judgments made in 1820, coeval with the statute, had produced similar consequences; if many thousands, of titles rested on it, (as there surely do on Mr. Crawford's instructions,) I should feel myself wholly unauthorized, at this day, to overthrow the decision, however doubtful I might think it to be. The conservative rule of communis error facit jus, is universal in courts of justice, in regard to their own judgments, under such circumstances; and undoubted judicial propriety requires its adoption, as it seems to me, when dealing with the decision of the Secretary in the present instance. This course is peculiarly due to the repose of titles, and the stable maintenance of an established system in a great department; a system that cannot be changed in this respect without much expense, confusion, and delay, in the administration of that department.

3. But suppose the Secretary was mistaken, and the subdivision of fractional section 22 is illegal; what then is the plaintiff's case? His title is a patent; on his legal title he must recover, therefore he cannot be heard to say his patent is void because founded on an illegal subdivision: the question then is reduced to this; what does the patent cover? Etheridge had no peculiar rights by the act of 1830, save that he had a preference of entry; like others purchasing of the United States he was compelled to buy in legal subdivisions; before 1820 not less than an entire fractional section could be sold; nor after the act of that year, could one be sold in subdivisions until divided, under regulations by the Secretary of the Treasury. Further than this, the act of 1805 remained unchanged, as to fractions. Etheridge could not be permitted to treat a quarter-section in a fraction, although found there, as if it was found in an entire section. He did attempt it, in proving up his preference right, but when he applied to enter at the Land-office the register rejected his claim, and compelled him to take the land on which he resided in the form and quantity it had been laid off according to the instructions; and this he did take. The government is bound by its patent; is estopped to disavow the subdivision granted; and as estoppels are mutual, Etheridge is equally bound, by the grant. It recites the patent certificate; this says it is for ninety-two acres and sixty-seven hundredths, bounded 'according to the official plat of the survey of the said lands, returned to the General Land-office by the surveyor-general-which said tract, described in the plat returned, has been purchased by the said James Etheridge.' The plat is part of the patent certificate; is referred to in the patent, and is part of that also, just as much as if it was attached to the same paper. By the plats of public surveys, lands must be identified, and the boundaries ascertained, in all cases of the kind. The parties agree of record that exhibit No. 2 is the official map described in the patent of Etheridge; according to this, he purchased lot A for ninety-two acres and sixty-seven hundredths; his eastern boundary being the red line made by the surveyor-general, pursuant to the instructions. This was undoubtedly the land the government intended to sell, and, as I think, as certainly the same Etheridge intended to buy, and did buy; of course he can recover no land east of that line, and therefore the judgment ought to be affirmed, even if the instructions were illegal and void.

4. The case does not stop here: Stone's patent is elder than Etheridge's; the same plat is referred to in each; Stone's is for the one hundred and ten acres and fifty hundredths east of the red line. This is not disputed. To overcome it, Etheridge's patent must be supported by a legal entry for the same land, elder than Stone's patent. As already stated, until Etheridge paid his money, he could have no legal entry from which to date his title. There being no such subdivision existing in law as the south-west quarter of fractional section 22, when Etheridge presented his occupant claim, he could not be permitted to enter in that form, or for that quantity. Such was the express instruction of May 31, 1831, (2 Land Laws and Instructions, No. 497, and again in No. 521.) The first subdivision was created afterwards by the act of the surveyor-general, and is indicated by the red line. That it is denominated the south-west quarter in the patent, amounts, in my judgment, to very little; thus the department saw proper to call such subdivisions; the denomination was arbitrary and not precise, but we cannot discard the substance for the sake of correcting terms of description open to verbal criticism. The land contained in plat referred to in Etheridge's patent, is a technical quarter-section in the language of the General Land-office; and such subdivisions are known by no other name there, as will be seen by No. 483 and No. 486 in the volume of Instructions above referred to. Thus in No. 483, dated July 28th, 1830, the commissioner instructs the register at Mount Salus, that the pre-emption law of that year restricted the quantity to be located to one hundred and sixty acres, or a quarter-section; but that it did not intend that an excess over one hundred and sixty acres, 'in a tract of land technically known as a quarter-section,' should be cut off so as to restrict the quantity literally to one hundred and sixty acres. 'The law, (says he,) having taken it for granted that every quarter-section contains one hundred and sixty acres, which not being the fact, we must be guided by what we know to be the spirit and intention of the law.' He then instructs the register, in cases of fractional sections, to conform to the subdivisions as made by the surveyor-general, and to give the quantity as near as practicable.

No. 486 is a general circular, dated September 14, 1830, on the same subject in part. Instruction 8 directs: 'Although a quarter-section may be found to contain rather more than the ordinary quantity of one hundred and sixty acres, the right of pre-emption is extended to the full quantity of such quarter-section.' In the language, therefore, of the General land-office, the south-west quarter of fractional section 22, called for in Etheridge's patent, is as well known by its designation, as if the section was entire. This the Instruction No. 497 above, explains, where the subdivided quantity is less, to be a 'technical' quarter also, as well as if the quantity had been more. But if there be uncertainty, here, as in former cases, we must refer to the plat and quantity to explain the uncertainty. This course was pursued in the case of McIver v. Walker, 9 Cranch, 173, and again in 4 Wheat., 444. There the plat was held to control the face of the patent, and fixed a different locality, because Crow Creek was laid down on the plat, nearly through its centre; the location certificate copied in the patent, as in this case, called for a beginning, and for courses from that point, running off from the creek, which was not named as being crossed by the lines; yet this court diregarded the calls, and held the land lay on both sides of the creek, as indicated in the naked plat. It was a much weaker case than the present. In patents of the United States, from their earliest date down to this day, nothing is referred to but numbers on the public surveys. To hold that the surveys did not explain and control the patent as to identity, and side lines, would be an abandonment of both; as nothing else can establish either.

Much stress is laid on the fact that the half-mile post is found on the south boundary of section 22. The same line-marks are uniformly made on all sectional lines, regardless of fractions: so it would have been done had the fraction 22 been for less than one hundred and sixty acres, and not subjected to subdivision. The section south may have been entire, and the corner post necessary for the purposes of that section.

Another difficulty stands in the way of the plaintiff's recovery. Stone's patent is the elder; it is admitted it covers the land in dispute-the patent passed the perfect and consummate title; in an action of ejectment the patent is conclusive, as was held by this court in Wilcox v. Jackson, and Bagnell v. Broderick, 13 Pet., 516, 450. You can only go behind it, and give it earlier date, from a precise legal entry for the same land made by the grantee, to overreach an elder patent; as this court held in Ross v. Barland, 1 Pet., 655. We have seen Etheridge did not enter the land in dispute when he paid his money, and took his patent certificate. To overthrow Stone's patent, we must rely on the preference right to enter. At best, it is a remote and doubtful equity; Stone paid for the land, (and if the assumption be true,) has an equity attached to it for his purchase money; presenting a case of conflicting equities, with which a court of law cannot deal. In the language of this court in Bagnell v. Broderick, 'we are bound to presume for the purposes of this action, that all previous legal steps had been taken by Stone to entitle himself to the patent, and that he had the superior right to obtain it, notwithstanding the claim set up by Etheridge; and having obtained the patent, Stone had the best title known to a court of law, to wit, the fee.' There a much more imposing equity than Etheridge can pretend to, was set up. In no respect, therefore, is there any ground for reversing the decision of the Supreme Court of Alabama, as is supposed by me.

In the case of Brown et ux. v. Hunt, Mr. Justice DANIEL dissents from the opinion of the court, and concurs in opinion with Mr. Chief Justice and Mr. Justice CATRON.