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WILLIAM PATTERSON, PLAINTIFF IN ERROR v. THE REV. WILLIS JENKS ET AL. DEFENDANTS IN ERROR.

January 1, 1829

WILLIAM PATTERSON, PLAINTIFF IN ERROR
v.
THE REV. WILLIS JENKS ET AL. DEFENDANTS IN ERROR.



THIS cause came up on a writ of error to the sixth cir cuit court of the United States for the district of Georgia. It was tried in Milledgeville at May term 1827. In the course of the trial, a number of questions were raised, on some of which, the judges, being divided in opinion, refused to give the jury the instruction prayed by the plaintiff; and a verdict and judgment were rendered for the defendants. The present writ of error was brought to reverse this judgment.

In the court below, the plaintiff, to sustain his case, gave in evidence a grant from the state of Georgia to Bazil Jones, for 7160 acres of land, in Franklin county, on the waters of the south fork of the Oconee river, since called the Appalachie, bearing date the 24th day of May 1787, and deduced his title to the disputed premises regularly from the grantee.

On the part of the defendants, it was contended that this grant was void.

1. Because the land attempted to be granted was without the temporary boundary line of the state, and within the Indian hunting ground.

2. Because the survey wanted the line and station trees required by law; the surveyor had omitted to note on his plat the beginning corner; had laid down the water courses inaccurately; and had been guilty, as was alleged, of various other acts of fraud, negligence, irregularity, or ignorance, in making and platting the survey, prior to the emanation of the grant.

Evidence was also given on behalf of the plaintiff, to establish the lines, and to prove the possession of the defendants within them.

The first exception stated, that the plaintiff gave evidence conducing to prove that the south fork of the Oconee river, known as the Appalachie, runs through the land described by the grant and plat aforesaid, under which the plaintiff derives title; and that all the lands within the said grant, which are in possession of the defendants in this action, are on the north and east side of the said south fork of the Oconee river, and within the territorial limits of the state of Georgia, as defined by Hawkins's line, which said line was run by Benjamin Hawkins, under the authority of the United States, to define the temporary boundary line between the state of Georgia and the Creek Indians: and that all the lands included within the aforesaid grant are situated on the waters of the said south fork of the Oconee river. And thereupon, the counsel for the plaintiff moved the court to instruct the jury, that the grant from the state of Georgia to Bazil Jones, under which the plaintiff derives title to 7160 acres of land in Franklin county, in the said state, was a legal and valid grant; which instruction the court, being divided in opinion, refused to give.

The second exception stated, that the counsel for the plaintiff also moved the court to instruct the jury, that, upon the aforesaid evidence, taking the same as true, the said tract of land, so granted to Bazil Jones, was, at the time of the survey and grant thereof, within the territorial limits of the state of Georgia, as ascertained by laws and treaties; within the limits of Franklin county, as by law defined; and not within the Indian boundary line; which instruction the court, being divided in opinion, refused to give.

The third exception stated, that the counsel for the plaintiff also moved the court to instruct the jury, that the said grant to Bazil Jones, under which plaintiff derived title, was a legal and valid grant, for all the lands exhibited on the plat as lying north and east of the south fork of the Oconee river, now called Appalachie, including all the waters of the same; which instruction, the court, being divided in opinion, refused to give.

The fourth exception stated, that the counsel for the plaintiff moved the court to instruct the jury, that the said grant to Bazil Jones, under which the plaintiff derives title, was a legal and valid grant, for all the lands exhibited on the plats as lying north and east of the south fork of the Oconee river, called Appalachie; which instruction, the said court, being divided in opinion, refused to give.

The fifth exception stated, that the plaintiff moreover gave evidence conducing to identify and prove certain corner trees, station trees, and lines, of the said tract of land, granted to Bazil Jones aforesaid, before described, and including all the lands on the north and east side of the south fork of the Oconee river, in the possession of the defendants. And thereupon, the counsel for the said plaintiff moved the court to instruct the jury, that neither the want of the line and station trees required by any law, nor the omission of the surveyor to note on his plat the beginning corner, nor any mistake in platting the water courses, nor any fraud, irregularity, negligence, or ignorance of the officers of government, prior to the issuing of the grant to Bazil Jones, under which the plaintiff derives title; did, or could, legally, affect the right of the plaintiff to recover; that the existence of the grant is, in itself, a sufficient ground to infer that every prerequisite has been performed; and that as to all irregularities, omissions, acts of fraud, negligence, or ignorance of the officers of government, prior to the emanation of the grant, the government of Georgia, and not the plaintiff claiming under her grant, must bear the consequences resulting from them; which instruction, the court, being divided in opinion, refused to give.

The sixth exception stated, that the plaintiff moreover gave evidence conducing to prove, that the title of Bazil Jones, the grantee of the said land, had been regularly and legally conveyed to the lessee of the plaintiff in this action, before the commencement thereof; and that all the lands in the possession of the defendants, and of each of them, at the time of the service of the process in this action, were within the lines described by the said grant to the said Bazil Jones, and were on the north and east side of the said south fork of the Oconee river. And, thereupon, the said counsel for the plaintiff moved the court to instruct the jury, that, upon the aforesaid evidence, if the jury believed the same, the plaintiff was, by law, entitled to recover the premises in dispute; which instruction the court, being divided in opinion, refused to give.

On the part of the plaintiff in error, also plaintiff in the original action, two points were made:

1. That the grant to Bazil Jones is a good and valid grant, in toto.

2. That, if not good for the whole it is so at least in part, including all the premises disputed in the present action.

To maintain these propositions, it was insisted,

1. That, at the time of the emanation of the grant to Bazil Jones, under which the plaintiff desires title, the lands lying on the south fork of the Oconee river, including all the waters of the same, were within the territorial limits of the state of Georgia, within the limits of Franklin county, as by law defined, and not within the temporary Indian boundary line; and that the said grant to Bazil Jones was, and is, a good and valid grant for all the lands exhibited on the plat as lying north and east of the south fork of the Oconee river, now called Appalachie, including all the waters of the same.

2. That a large part of the land embraced in the said grant lies north and east of the south fork of the Oconee river, now called Appalachie, being the branch designated by the United States commissioner, Hawkins, as the temporary Indian boundary line; and was, consequently, at the time of the issuing the said grant, within the acknowledged limits of the state of Georgia. As to so much of the said land, therefore, the grant is valid; and, since this comprehends all that was in possession of the defendants at the commencement of the present action, the plaintiff is entitled to recover.

3. That neither the want of the line and station trees required by any law, nor the omission of the surveyor to note on his plat the beginning corner, nor any mistake in his platting the water courses, nor any fraud, irregularity, negligence, or ignorance of the officers of government, prior to the issuing of the grant to Bazil Jones, under which the plaintiff derives title, did, or could, legally, affect the right of the plaintiff to recover; that the existence of the grant is, in itself, a sufficient ground to infer that every prerequisite has been performed; and that, as to all irregularities, omissions, acts of fraud, negligence, or ignorance of the officers of government, prior to the emanation of the grant, the government of Georgia, and not the plaintiff claiming under her grant, must bear the consequences resulting from them.

The case was argued by Mr Wilde and Mr Berrien for the plaintiff, and by Mr Haynes for the defendant.

For the plaintiff in error it was contended,

That the plaintiff having made out a regular title from the grantor, and the defendant being in possession of the land covered by the title, the only question was upon the validity of the grant; and the decision of this inquiry will depend upon which was the temporary boundary line between the state of Georgia and the Indian tribes in 1787, the grant having issued at that period?

A grant of lands, the Indian title to which has not been extinguished, is not void for that cause alone, independent of statutory regulations. 3 Johns. 365. 6 Cranch, 87.

This grant is not avoided by any statute of the state of Georgia, which can legally operate upon it. Statutes posterior to the emanation of this grant cannot affect it. If the grant issued legally, it created a vested right, which could not be divested. This grant is dated 24th of May 1787, and these principles dispose of all the acts of the legislature posterior to that date. The acts of 1780, Prince's Dig. 263, sect. 20, and 1783, Prince, 268, 5, are all retrospective in terms.

Penal statutes must be construed strictly; and of this kind is the act of 1787, Prince's Dig. 278, sect. 2, 3; and it applies to lands granted and surveyed at the date of the law. The plaintiff's survey was before; his grant was after the date of this act.

The third article of the treaty of August 1787, between the Creeks and the state of Georgia, Marbury vs. Crawford, Prince, 605, provides that a new line shall be drawn without delay between the present settlements in the said state, and the hunting grounds of the said Indians, to begin on Savannah river, where the present line strikes it, thence up the said river to a place on the most northern branch of the same, commonly called Keowee, where a north-east line to be drawn from the top of the Oconee mountain shall intersect; thence along the said line in a south west direction to the said mountain; thence in the same direction to Tugalo river, thence to the top of the Currohee mountain, thence to the head of the most southern branch of the Oconee river, including all the waters of the same; thence down the said river to the old line.

The same boundary is recognized in the 11th article of the Gulphinton treaty, C. & M. Digest, 508. The treaty of 1786, with the Creeks, declares that, 'the present temporary lines reserved to the Indians for their hunting grounds shall be agreeable to the treaties of Augusta and Gulphinton;' and it provides that the lines shall be marked as soon as the Indians can attend to see it done. C. & M. Dig. 619.

The land act of 1784, sect. 1, defines the lines of the Indian hunting ground in the terms of the treaty, and lays off two new counties, Franklin and Washington, C. & M. Dig. 330; and the 10th section of the act of 1785, C. & M. Dig. 336, shows the construction which the legislature put on the treaty.

The adoption of a waving boundary line, 'including all the waters,' is in conformity with the example and practice of the United States in her numerous Indian treaties.

The counsel referred to 4 art. Treaty with the Cherokees in 1785. Treaty with the same in 1791, 1807. 1 art. in the treaty with the Peoria tribe in 1819, with the Choctaws in 1805, with the Chickasaws in 1786, and other treaties.

All the land covered by the plaintiff's grant was, at the time of the execution of the survey, and the emanation of the grant, within the limits of the state of Georgia, and within the body of the county of Franklin; and if the same was subsequently retroceded to the 263. 268. 275. 278. would not divest the vested rights of the grantee. Its utmost effect would be to subject the title in fee to the ...


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