or widening of any street, alley, lane, or high- | v. Van Brundt, 2 Johns. 357; Gedney v. Earl, way, shall not be so taken and appropriated 12 Wend. 98; Willoughby v. Jencks, 20 Ib. 96. until the damages assessed therefor shall be Virginia: Bolling v. Mayor, 3 Rand. 563. paid or tendered to the owner or his agent.” South Carolina: Witler v. Harvey, 1 McCord, 67.

When the highway is dedicated, the title of the land remains in him who dedicates, and will pass to his grantee. The public take an easement only. Lade v. Shepherd, 2 Str. 1044; Cincinnati v. White, 6 Pet. 437; Barclay v. Howell's Lessee, *Ib. 513; Hobbs v. [*189 Lowell, 19 Pick. 408, Shaw, C. J.; Pearsall v. Post, 20 Wend. 126, 131, 132, Cowen, J.

A few days after the passage of the ordinance by the Common Council, directing the street commissioners to open Michigan Avenue, the United States filed their bill of complaint in the Circuit Court, setting their case fully forth, and praying for a writ of injunction against the city of Chicago, its officers, agents, servants, counselors, and solicitors, to restrain them from entering upon the unsold and reserved portion of the southwest fractional quarter-section ten The jurisdiction of the city extends as far as aforesaid, embraced within the dotted lines of the line of private property, which is the line of the small map, marked "Line of reservation," reservation on the plat, the present boundary for the purpose of opening "Michigan Avenue, line of the fort. It has none beyond. See the or the other proposed streets, or from commit-act incorporating the city of Chicago, Illinois ting any waste or spoil upon said land, build- Session Laws, 1836-37, p. 50. The streets ings, or inclosures. outside the fort were effectually dedicated when the lands were sold, the streets opened, accepted by the public, and used as public streets. Cincinnati v. White, 6 Pet. 431; Barclay v. Howell's Lessee, Ib. 498; New Orleans v. United States, 10 Pet. 662.

The district judge granted the injunction, and on hearing a motion for its continuance in the Circuit Court, the opinions of the judges were opposed upon the following points:

1st. Whether the corporate powers of the city of Chicago have a right to open the streets through that part of the ground laid out in lots and streets, but not sold by the government. 188*] *2d. Whether the corporate powers of the city are not limited to that part of the plat which, by sale of the government, has become private property.

3d. Whether the streets laid out and dedicated to public use by Birchard were not, by his surveying the land into lots and streets, making and recording a map or plat thereof, did not convey the legal estate in the streets to the city of Chicago, and thereby made the ground embraced by said streets "private property," so as to authorize said city of Chicago to keep said streets open.

II. There was no dedicatien of any street within the fort. The present fort is the part not sold. It was expressly reserved by the United States when the sales commenced. The whole interest is in the United States. The proposed streets within the fort or line of reservation have not been opened, nor dedicated, nor lots sold on them. They are covered in part by the necessary buildings of the fort. The United States own them, and the land on both sides; and the Executive Department retained to the line of reservation for the purposes of the government, before any of the land beyond that line had been disposed of. The first act of dedication or disposition had not taken place. The map recorded, without any other act done, would be immaterial. If the sale had been entirely countermanded, the the recorded survey would have been a dead letter; it is so now within the line where they were countermanded. or not authorized. The plan of Birchard was disallowed to the extent of the present fort. That order was effective, and is to be taken as the order of the President. A dedication is founded upon user. Dedication is the act of giving up land to the public. It must be en4th. The State of Illinois has no power to re-joyed in pursuance of the gift. An enjoyment move the buildings of the United States within the fort, or to make a highway there.

The cause was argued by Mr. Toucey (Attorney-General) on behalf of the United States, no counsel appearing for the city of Chicago.

Mr. Toucey presented the following points: 1st. The city of Chicago has no jurisdiction within Fort Dearborn.

2d. There was no dedication of any street within the fort.

3d. The fort being reserved, there was no power to dedicate a street within it.

I. The city has no jurisdiction within the fort. The part sold became private property. The lots were sold by their numbers, and were, in fact, bounded on the streets. The title passed to the centre of the streets, subject to the easement. The adjoining proprietors own to the centre, subject to the way, as if it had been laid out by public authority. This is the legal presumption, liable to be rebutted. English authorities: Goodtitle v. Alker, 1 Burr. 143; Pring v. Pearsey, 7 Barn. & Cress. 306; Stevens v. Whistler, 11 East, 51; Cook v. Green, 11 Price, 136. Maine: Howard v. Hutchinson, 1 Fairfield, 335. New Hampshire: Makepeace v. Worden, 1 N. Hamp. R. 16. Massachusetts: United States v. Harris, 1 Sumner, 21; Adams v. Emerson, 6 Pick. 57. Connecticut: Peck v. Connecticut: Peck v. Smith, 1 Conn. R. 103; Watrous v. Southworth, 5 Ib. 305; Hart v. Chalker, 5 Ib. 311; Chatham v. Brainard, 11 Ib. 60. New York: Cortelyou

for a less period than that described by the statute of limitations may suffice, if accompanied by other decisive acts. Maps, plans, declarations, are evidence. Dedication is applicable only to the creation of public rights. ~ Private rights are measured by the grant. Mercer Street, 4 Cow. 542.

III. The fort being reserved there was no power to dedicate a street within it. This was a military post, and under the control of the War Department. By the Act of Congress of the 3d of March, 1819 (3 Statutes at Large, 520), the secretary had power to sell a military site, become useless for military purposes, and give a deed in fee. But the act does not authorize the secretary to lay a road through a fort reserved from sale. It does not authorize him to encumber it, when retained as useful for military purposes, or to divert it from those purposes. It must be condemned as useless for military purposes *before it can be sold. [*190 Here is executive responsibility; and when

upon that responsibility the site is retained, and not sold, there can be no conveyance. None is authorized. But if that were otherwise, before any sale he ordered the fort, block-house, powder magazine, mess hall, shops, and other necessary buildings, with the land where they stood to be reserved. The subordinate had no authority to come with his sales within the line of reservation. It is to be presumed that he conformed to his instructions, in the absence of proof to the contrary. It is, indeed, admitted that the fort was reserved from sale to the line

of reservation.

IV. The State of Illinois has no power to remove the buildings of the United States within the fort, or to make a highway there. The site of Fort Dearborn, in the judgment of the Executive, is wanted as a military post. The reservation is conclusive on this point. If private property, it could be taken under the Constitution, upon making compensation, and applied to this use. But the United States already own the land, and have applied it to this use. The road having never been opened, the State cannot now condemn the land to any other public use than that to which it is applied by the government, thereby causing an interference or collision. A State cannot open a convenient highway through a powder magazine, or into the intrenchments of a fort, which exist by order of a government supreme within its sphere.

If, then, the city has no jurisdiction within the limits of Fort Dearborn; or if this street was never dedicated to the public by the Secretary of War, or his subordinate; or if neither had authority to dedicate it; or if the State of Illinois has no authority to open a road in this fort in either case, thé injunction must be sustained, to restrain the city from demolishing the buildings of the fort to open a road there; and corresponding answers must be given to the questions submitted by the court below.

Mr. Justice Woodbury delivered the opinion of the court:

This cause comes before us on a certificate of a division of opinion between the judges of the Circuit Court in the District of Illinois.

A preliminary question has arisen as to our jurisdiction, which first deserves attention.

The proceedings in the court below were a bill, filed on the 19th of April, 1845, by the United States against the city of Chicago, to obtain an injunction not to lay out certain streets through land belonging to the United States, which the city was preparing to open. 191*] *Before the return day a temporary injunction was issued, and when the term arrived, a motion was made to continue that injunction till the merits of the bill were decided. No answer had been put in to the merits, but a hearing was had on affidavits as to the motion, and in that hearing the division of opinion occurred which is now before us.

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liminary and temporary injunction is a matter of discretion merely, rather than of right. Because, whichever it may be, the questions of division presented here are not those on matters of mere discretion in the court below, but involve the right of the United States in the land proposed to be laid out as a street by the city. The adjudged cases, where a certificate has not been sustained on account of some discretion connected with the subject, are chiefly those where the question presented involved merely a matter of discretion, rather than arising in the consideration of a motion or point, which was one of discretion. Smith v. Vaughan, 10 Peters, 366; Packer v. Nixon, 10 Peters, 411. It must be obvious, that, in deciding a matter of discretion, a point may arise which is one of right, and very material. Other cases not sustained were decided on the ground that they occurred after the merits of the cause were decided, and in proceedings subsequent thereto, |

United discretionary or not. Bank of

United States v. Green, 6 Peters, 28; United States v. Daniel, 6 Wheat. 548; Devereaux v. Marr, 12 Wheat. 212; 5 Cranch, 11, 187; 4 Wash. C. C. 333. The act of Congress seems to reach only matter arising in the progress of the cause, and not afterwards, because the proviso is, “that nothing herein contained shall prevent the cause from proceeding,” etc. and hence implies it must be in the progress of the cause. See Act of Congress, April 29th, 1802, 2 Stat. at Large, 159, 160; 6 Wheat. 548. But the present question, occurring before a final decision, comes expressly within the words of the law-"that whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point" of disagreement shall be certified, etc. 2 Stat. at Large, 159. And this provision, manifestly, is broad enough to cover any material question of right thus arising, whether the subject on hearing was one of discretion or of right.

*The second ground of objection, [*192 that these questions are several in number, and so material as to decide the whole cause, might prevail, if they had not arisen at one time, at one stage in the cause, and involved little beyond one point. Because, if they are several in number and apply to different stages of the trial, and relate to independent points, they are generally not proper. United States v. Baily, 9 Peters, 267; Nesmith v. Sheldon, 6 How. 43; White v. Turk, 12 Peters, 238; United States v. Stone, 14 Peters, 524; Saunders v. Gould, 4 Peters, 392; Grant v. Raymond, 6 Peters, 218.

That these three questions require an opinion virtually on only one point, namely, the right of the United States to the place proposed to be opened as a street, is manifest, when we see that the decision of this one way disposes of them all, and of the whole case. And the principle embraced in the other branch of this objection, to acting on several points which dispose of the whole case is, not that the whole case may not properly be disposed of by our decision on what is certified, but that the decision must in substance be, not on several questions arising in various stages of the cause, and some of them anticipated and presented, In respect to the first objection, we do not so as to cover the whole case. Leland v. Wilpropose to decide whether the grant of a pre-kinson, 10 Peters, 294.

Two leading objections have been suggested to our jurisdiction over the matter. One is, that the division arose, not in a hearing of the merits, but of a preliminary motion, resting in the discretion of the court; and the other is, that several questions are certified, covering the whole case rather than a single point.

There has justly been a leaning in this court to decline jurisdiction in cases of decisions below where it is doubtful, because the power vested here in such cases, it is believed, was meant to be much more restricted than is often practiced, and is in the most favorable view rather an anomaly. But by considering questions, if certified here, only when real divisions of opinion occur on them, and at one and the same time, no danger exists of extending this branch of our jurisdiction beyond what Congress intended. On the contrary, it is divisions of opinions pro forma, and from courtesy to counsel, and on a variety of points, and at times, some not then having actually arisen, but being anticipated, which appear to transcend the original design of vesting such a power here.

We have, therefore, for several years, declined to consider a certificate of such a variety of points so arising. See cases before cited. And although an indulgence has sometimes been given to certificates, where, in important cases, a division was certified pro forma, Jones v. Van Zandt, 5 How. 224, yet we do not feel justified in repeating it.

To proceed to a consideration of the principal matter involved in these questions, it will be necessary first to advert briefly to some of the admitted facts in the case.

tion, and where no sales of land had been made, and where opening them would prostrate some of the public buildings, and materially injure and impair the public uses of the station, the United States applied for the injunction before named.

On the motion to continue the temporary injunction till the bill was answered and heard, the judges being opposed in opinion on the right of the city to open streets on the public land of the United States situated like this, the three questions certified were in form:

"1st. Whether the corporate powers of the city of Chicago have a right to open the streets through that part of the ground laid out in lots and streets, but not sold by the government.

"2d. Whether the corporate powers of the city are not limited to that part of the plat which, by sale of the government, has become private property.

*"3d. Whether the streets laid out [*194 and dedicated to public use by Birchard were not, by his surveying the land into lots and streets, making and recording a map or plat thereof, did not convey the legal estate in the streets to the city of Chicago, and thereby made the ground embraced by said streets 'private property,' so as to authorize said city of Chicago to keep said streets open."

But, as has been explained, the whole of them The United States became the owners of in substance depend upon the extent and charthe land occupied by Fort Dearborn, near acter of the rights of the United States in the Chicago, in the State of Illinois, under the place where the new streets were proposed to 193*] *original cession of the Northwest be opened. What, then, were those rights? Territory. It was occasionally a station for 1st. The place was where the title of the govtroops from 1804 to 1824, when the whole frac-ernment had never been parted with, after the tional quarter-section on which the fort stood was reserved by the general land office for military purposes, on the application of the Secretary of War. See Wilcox v. Jackson, 13 Peters, In that case, which is better known as the Beaubean claim, this court decided that this was a legal appropriation of that quarter-section of land to a public purpose, and exempted it from the rules as to the mass of public lands and their usual liabilities.

502.

From that time till A. D. 1839 it was occasionally occupied as a fort by the United States, and a light-house was erected on it under the authority of Congress, when the Secretary of War, thinking that a portion of the same might be sold without injury to the public interests, proceeded, with the approbation of the President, to make such a sale, under the Act of Congress of March 3d, 1819. 3 Stat. at Large, 520.

original cession. 2d. It was where the land had been appropriated and legally set apart for a special public use. 3d. It was where the opening of these streets would essentially impair, if not destroy, that public use. 4th. It was where streets had never been opened and used, or actually dedicated in that way to purchasers of land there, or to the community in that neighborhood. 5th. It was where the city charter, by its act of incorporation, did not extend, as the charter expressly excepted from its limits "the southwest fractional quarter of section ten, occupied as a military post, till the same shall become private property."

Now, though this court possesses a strong disposition to sustain the rights of the States, and local authorities claiming under them, when clearly not ceded, or when clearly reserved, yet it is equally our duty to support the general government in the exercise of all which is plainly granted to it and is necessary for the efficient discharge of the great powers intrusted to it by the people and the States. The erection of forts belongs to one of those powers, and the building and employment of light-houses belongs to another.

Under the circumstances of this case just recited, then, very clear facts or principles must exist, which impair the rights of the United States, before streets can be opened upon their soil, when situated, reserved, and used as this is.

He did this by an agent, who first made a plan of the whole quarter-section, calling it "Fort Dearborn addition to Chicago," and laying it down in lots, without exhibiting on it any buildings or reservations. But he did not sell the whole, the government not then concluding to part with the fort, or land and buildings immediately contiguous. On that plan | certain streets were also laid down running into the whole quarter-section. The sales, however, being made of only the lots and land outside of what was reserved, the United States allowed the proposed streets only so far as there It is not questioned that land within a State laid down to be opened by the city of Chicago, purchased by the United States as a mere proand used by the adjoining owners, in conform-prietor, and not reserved or appropriated to any ity to the plan. And when the city undertook special purpose, may be liable to condemnato open the streets within the line of reserva- tion for streets or highways, like the land of

other proprietors, under the rights of eminent | to be sold, with streets contiguous, and for the domain.

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A. Powe, Plaintiffs in Error,

V.

JOSEPH KERNOCHEN.

Mortgage sold and assigned so as to give Circuit Court jurisdiction in suit for foreclosure -when decree in chancery on trial of validity of mortgage binds parties and privies in action of ejectment.

criminal cause, nor from a district court, etc. | JENNET SMITH, Calvin S. Powe, and Thomas That the original jurisdiction of the Supreme Court is limited to the two classes of cases above referred to was held by this court in Marbury v. Madison, 1 Cranch, 174. Is, then, the granting an injunction an exercise of original jurisdiction? It may be done out of court by the circuit judge; and so an expired injunction may be renewed at any time by him, the courts of equity being always open for such purpose by our present rules. This bill and affidavits are placed before us as they were before the Circuit Court, and for the same. purpose, of founding an original motion on them, thereby to procure an order for the restraining writ to issue. We are asked to take an original incipient step, as the court below was, before any answer is filed, and before anything could be adjudged between the parties by the Circuit Court, so as to bind their rights.

What is appellate jurisdiction in the sense of the Constitution? Our practice under the thirteenth section of the Judiciary Act of 1789 has settled the meaning of the term. It is to re-examine, and to reverse or affirm, the judgment, sentence, order or decree of an inferior court to pass on that which has been adjudged. Here, nothing was adjudged in the court below. From the threatening nature of this precedent, it is deemed improper to pass over it unnoticed, as I have done in other cases. If a division can be certified in this instance, so there may be in every other where an injunction is applied for in open court, and the judges see proper to send us the cause- for as to real divisions, they hardly exist at present. The cases are sent here by agreement of counsel, with the assent of the Circuit Court, usually without any examination below.

1. therefore, am of opinion that we have no jurisdiction, and that the matter before us should be dismissed.

Order.

When a mortgagor and mortgagee are citizens of the same State, and the mortgagee assigns the mortgage to a citizen of another State for the purpose of throwing the case into the Circuit Court, it is necessary, in order to devest the court of jurisdiction, to bring home to the assignee a knowledge of this motive and purpose. Till then he must be considered an innocent purchaser without notice.

If the assignment was only fictitious, then the suit would in fact be between two citizens of the same State, over which the court would have no jurisdiction.

The question of jurisdiction, in such a case, should have been raised by a plea in abatement. Upon the trial of the merits, it was too late. A former suit in chancery between the original parties to the mortgage involving directly the vaforeclose was dismissed, upon the ground that the lidity of that instrument, in which suit a bill to mortgage was void, was good evidence in an ejectment brought by the assignee, claiming to recover had been declared void by a court of competent by virtue of the same mortgage. The instrument jurisdiction, and neither the parties nor privies could recover upon it.

their

There is no difference, upon this point, between a decree in chancery and a verdict at law. Either constitutes a bar to a future action upon the instrument declared to be void. The authorities upon this point examined.

The highest court of the State of Alabama having decided that the original mortgagee (an incorporated company) violated its charter in the transaction which led to the mortgage, this court adopts its construction of a statute of that State.

T
HE Reporter finds the following statement
of the case, prepared by Mr. Justice Nel-
son, and prefixed to the opinion of the court:
*This is a writ of error to the Circuit [*199
Court of the United States for the Southern
District of the State of Alabama.

The plaintiff below, Kernochen, a citizen of New York, brought an action of ejectment against the defendants to recover the possession of eleven hundred and sixty acres of land, situate in that State, and to which he claimed title.

This cause came on to be heard on the tran198*] script of the record of the Circuit Court of the United States for the District of Illinois, and on the points and questions on which the judges of the said Circuit Court were | opposed in opinion, and which were certified to On the trial it appeared that Archibald K. this court for its opinion, agreeably to the act Smith, being the owner in fee of the premises, of Congress in such case made and provided, executed a mortgage of the same, on the 9th and was argued by counsel; on consideration of April, 1839, to the Alabama Life Insurance whereof, it is the opinion of this court, 1st. and Trust Company, a corporation duly incorThat the corporate powers of the city of Chi- porated by the Legislature of the State of Alacago have no right to open the streets through bama, to secure the sum of seven thousand that part of the ground laid out into lots and five hundred dollars, payable in five equal anstreets, but not sold by the government. 2d. nual payments with interest. And, further, That the corporate powers of the city are limited that the mortgage had been duly assigned and to that part of the plat which, by sale of the transferred by that company to Kernochen, the government, has become private property. And 3d. That the streets laid out and dedicated to public use by Birchard, by his surveying the and into lots and streets, and making and recording a map or plat thereof, did not convey the legal estate in the streets to the city of Chicago, and thereby make the ground embraced by said streets "private property," so as to authorize said city of Chicago to keep said streets open. Whereupon, it is now here ordered and decreed by this court, that it be so certified to the said Circuit Court.

NOTE.-Jurisdiction of U. S. circuit courts de1 L. ed. U. S. 640; 2 L. ed. U. S. 435; 36 L. ed. pending on parties and residence. See notes to U. S. 579.

Colorable conveyances to enable suit to be brought, when motive of transfer no objection. See note to 7 L. ed. U. S. 287.

General answer waives objection to residence. See note to 3 L. ed. U. S. 36; 27 L. ed. U. S. 87.

Res adjudicata-conclusiveness of judgment. See notes to 11 L. ed. U. S. 76; 38 L. ed. U. S. 429, 42 L. ed. U. S. 355. Estoppel by judgment. U. S. 1059.

See note to 11 L. ed.