Reynolds v. McArthur

ERROR to the supreme court of Ohio.

This was an action of ejectment, brought originally in the court of common pleas for Champaign county in the state of Ohio, by M'Arthur, the defendant in error, against Reynolds, the tenant in possession. In that court a verdict and judgment were rendered, in favour of the plaintiff below. The plaintiff in error appealed to the supreme court of Ohio for that county.

On the trial in the latter court, (being by the laws of Ohio, a trial de novo,) M'Arthur again obtained a verdict and judgment in his favour. M'Arthur claimed the land in controversy under a patent from the United States, bearing date October the 12th, 1812, founded on entry and survey made in the year 1810, on a warrant granted for services in the Virginia line on continental establishment during the war of the revolution. Reynolds, the defendant below, claimed as the assignee of one Henry Van Meter, who in the year 1805 entered the land in controversy at the Cincinnati land office. It reverted to the United States in the year 1813, for non-payment of the purchase money, and during the same year it was entered again by Van Meter, and the certificate of entry assigned by him to Reynolds.

The deed of cession of the country north west of the Ohio river, from Virginia to the United States, dated in March 1784, reserved the country between the revers Scioto and Little Miami, for the satisfaction of the military bounties Virginia had promised to her officers and soldiers on continental establishment. The sources of the two rivers are between fifty and sixty miles apart, and the country between them makes a part of the western boundary of the reservation. In 1802, Israel Ludlow was directed by the then surveyor general of the United States, to run the boundary line between these rivers, who in that year accordingly ran a direct line from the source of the Little Miami towards what he supposed to be the source of the Scioto; to which river he did not extend his line, in consequence of being arrested in his survey by the Indians at the Greenville treaty line, that line being then the Indian boundary. The line run by Ludlow is called Ludlow's line.

In the year 1812 congress passed an act authorising the appointment of three commissioners, who, in conjunction with commissioners to be appointed by Virginia, were directed to run the boundary line between the sources of these rivers, with authority to agree upon and establish the same. They proceeded to ascertain the sources of these rivers, and employed a surveyor of the name of Roberts to run a direct line between them. While he was running the line, a misunderstanding arose among the commissioners as to the principle on which the boundary should be settled. The Virginia commissioners contended for a line from the source of the Scioto to the mouth of the Little Miami as the boundary. The United States commissioners claimed the line then running between the sources of the two rivers as the boundary.

The commissioners separated without agreeing upon a boundary. This line is called Roberts's line. It runs from nearly the same point on the Little Miami, at which Ludlow's line commences, to a point on the Scioto several miles west of the termination of Ludlow's line when extended to the latter river. The two lines include a triangular gore of country extending from one river to the other. Shortly after Ludlow's line was run, the surveyors in the employment of the United States proceeded to survey the country west of and bounding upon that line, as far as the Indian boundary, and the officers at the Cincinnati land office sold the whole or part of the country lying between Ludlow's and Roberts's lines, as the land of the United States; among which was the land in controversy. The act of 1812 declared that Ludlow's line should be the boundary, until otherwise established by the consent of Virginia and the United States. By another act of congress passed in 1818, Ludlow's line to the Greenville treaty line, was made the boundary until otherwise directed by law. And above the Greenville treaty line to the Scioto, Roberts's line was made by that act the boundary.

The land in controversy was admitted by the parties to lie on Buck creek, a water of the Great Miami river, adjoining Ludlow's line, and south of the Indian boundary line. The plaintiff below, M'Arthur, further agreed that if the land in controversy did not lie between the rivers Scioto and Little Miami, a verdict and judgment should be rendered against him.

On the trial in the supreme court of Ohio, the counsel for the plaintiff in error prayed the court to give the jury eight several instructions; all of which that court refused to give.

To this refusal a bill of exceptions was tendered, upon which the writ of error is founded.

The instructions prayed for by the counsel for the plaintiff in the court below, were as follows:

1. That the lands west of Ludlow's line, east of Roberts's line, and south of the Indian boundary line, had been withdrawn from appropriation, under and by virtue of said military land warrants, prior to the year 1810; and that as the same had, pursuant to the acts of congress in such case made and provided, been directed to be surveyed and sold; and that, as the same had accordingly been surveyed and sold to the defendant, prior to the year 1810; consequently that the plaintiff's patent is void: and their verdict ought to be for the defendant.

2. That as the third section of the act of congress of the United States of 11th April 1818, declares: 'that from the source of the Little Miami river to the Indian boundary line established by the treaty of Greenville in 1795, the line designated as the westerly boundary line of the Virginia tract, by an act of congress passed on the 23d day of March 1804, entitled 'an act to ascertain the boundary of the lands reserved by the state of Virginia, north west of the river Ohio, for the satisfaction of her officers and soldiers on continental establishment, and to limit the period for locating the said lands,' shall be considered and held as such until otherwise directed by law;' and as said boundary line was run by Ludlow, under the directions of the surveyor general, pursuant to an act of congress, entitled 'An act to extend and continue in force the provisions of an act entitled 'an act giving a right of pre-emption to certain persons who have contracted with John Cleves Symmes, or his associates, for lands lying between the Miami rivers, in the territory north west of the Ohio, and for other purposes," approved May 1st, 1802; and offered for sale at public auction, at the Cincinnati land office, pursuant to the act entitled, 'An act making provision for the disposal of public lands in the Indiana territory, and for other purposes,' approved March 26th, 1804, must be construed as having relation back to the above recited act, entitled 'An act to ascertain the boundary of the lands reserved by the state of Virginia, north west of the river Ohio, for the satisfaction of the officers and soldiers on continental establishment, and to limit the period for locating said lands,' approved 23d of March 1804, was passed, and took effect; and as the plaintiff's patent covers lands west of that line, and south of the Greenville treaty line, and is based on an entry made in 1810, on a Virginia continental land warrant, which land had been surveyed and sold to the defendant, pursuant to the act of congress prior to the year 1810, the plaintiff's patent is void: and their verdict ought to be for the defendant.

3. That according to the true intent and meaning of the act and deed of cession from Virginia to the United States, and the several acts of congress relative to the sale of the public lands of the United States, the lands lying between the rivers Scioto and Little Miami are bounded by a line extending from the source or point of land farthest removed from the mouths of these respective rivers, from which the rain descending on the earth, runs down into their respective channels, along the top of the ridges dividing the waters of the Scioto from the waters of the Great Miami, which empty into the Ohio below the mouth of the Little Miami, as delineated on the diagram returned by the county surveyor for the defendant in this cause; and as the plaintiff's patent covers land west or without the boundary of the district so bounded as aforesaid, and is based on an entry on a Virginia continental land warrant, which entry was made in the year 1810, and which said entry and patent cover lands which had, pursuant to the acts of congress, been surveyed and sold to the defendant, prior to the date of the plaintiff's said entry, the plaintiff's patent is void: and their verdict ought to be for the defendant.

4. That if the line connecting the rivers Scioto and Little Miami, cannot, according to the true intent and meaning of the said act and deed of cession, and the several acts of congress for the sale of their public lands, be extended, as stated in instructions last above asked, then that the line connecting the rivers Scioto and Little Miami, so as to include all the lands between the said two rivers, must be extended from the source of the Little Miami, parallel to the general course of the Ohio river, until it intersect the river Scioto; and as the plaintiff's patent is based on a Virginia continental land warrant, which warrant had been located in 1810 on lands which had prior to the year 1810 been surveyed and sold to the defendant pursuant to the acts of congress, the patent of the plaintiff is void: and their verdict ought to be for the defendant.

5. That if the line connecting the rivers Scioto and Little Miami, cannot, according to the true intent and meaning of the said act and deed of cession, be extended, as stated in either of the instructions asked for above, then that the sources of the said two rivers must be at that point in their respective channels, at which, from the union of several rivulets, brooks, or creeks, sufficient water flows at an ordinary stage, on which to navigate small vessels laden; and that the line connecting said rivers, must be a direct line from said sources so ascertained as aforesaid; and if, from the evidence, the jury shall find that the lands covered by the plaintiff's patent, are based on an entry covering lands without the limits of said Virginia military district, so called, which had, prior to the year 1810, pursuant to the acts of congress in such case made and provided, been surveyed and sold to the defendant, the plaintiff's patent is void: and their verdict ought to be for the defendant.

6. That if the line connecting the rivers Scioto and Little Miami, according to the true intent and meaning of the said act and deed of cession, cannot be extended, as stated in either of the instructions asked for as above, then that the sources of the said two rivers must be considered as commencing at that point in their respective channels, from which the water flows at all seasons of the year; and that said rivers must be connected by a direct line, run from said sources; and if, from the evidence, the jury shall find that the plaintiff's patent is based on an entry, covering lands without the limits of said Virginia military district, so called, which had prior to the year 1810 pursuant to the acts of congress in such case made and provided been surveyed and sold to the defendant, the plaintiff's patent is void: and their verdict ought to be for the defendant.

7. That if the line connecting the rivers Scioto and Little Miami, according to the true intent and meaning of the said act and deed of cession, cannot be extended, as stated in either of the instructions asked for above, then that the sources of the said two rivers must be fixed at that point in their respective channels, farthest removed from their respective mouths, at which water is found at all seasons of the year, and that a direct line, connecting said rivers, must be extended from said points; and if, from the evidence, the jury shall be of opinion that the plaintiff's patent covers land without said boundary, so fixed as aforesaid, and which is based on an entry covering said land, made in the year 1810, which had pursuant to the acts of congress of the United States been surveyed and sold to the defendant by the United States prior to the year 1810, the plaintiff's patent is void: and their verdict ought to be for the defendant.

8. That if the line connecting the said rivers Scioto and Little Miami, according to the true intent and meaning of the said act and deed of cession, and the several acts of congress relative to the sale of the public lands of the United States, cannot be extended, as stated in either of the instructions asked for above, then that the sources of these streams are at that point, farthest removed from their respective mouths, from which the rain descending on the earth, runs down into their respective channels; and that the lands lying between these rivers are limited by a direct line run from those points; and if, from the evidence, the jury shall be of opinion that the plaintiff's patent covers land without the limits of said boundary, so stated as aforesaid, and which is based on an entry made in the year 1810, which had, pursuant to the acts of congress of the United States, prior to the said year 1810, been surveyed and sold to the defendant by the United States, pursuant to the acts of congress, the plaintiff's patent is void: and their verdict ought to be for the defendant.

But the court declined giving the instructions asked for: to which refusal of the court the defendant, by his counsel, excepted, and prays the court here to sign and seal this bill of exceptions, which is done accordingly, July 19th, 1827.

This case was argued by Mr Scott for the plaintiff in error, and by Mr Mason and Mr Vinton for the defendant. Mr Wirt, attorney general, appeared for the plaintiff by order of the government of the United States, but was prevented taking part in the argument by indisposition.

Mr Chief Justice MARSHALL delivered the opinion of the Court.