United States v. Chana et al.

date. Hence the necessity of changing the venue to that of the highway, when it was too late to alter or erase the certificate of record to suit it. And hence the absurd contradictions exhibited in the testimony of Moreno, who appears to be emulating the example of his predecessor.

The judgment of the District Court is therefore affirmed, with costs.

THE UNITED STATES, APPELLANTS, v. CLAUDE CHANA, WILLIAM MARTIN, THOMAS P. TURNER, AND ALBERT Rowe.

The decision of this court in the cases of United States v. Nye, 21 Howard, 408, and United States v. Rose, 23 Howard, 262, again affirmed; and as the testimony in the present case is similar to that offered in the above cases, the judgment of the District Court in favor of the claimant is reversed.

THIS was an appeal from the District Court of the United States for the northern district of California.

The claim was based upon Sutter's general title, which has been explained in some of the preceding volumes of these Reports.

It was submitted on printed argument by Mr. Black (Attorney General) for the United States, no counsel appearing for the appellees. It appears to have been confirmed by the court below before they knew the decision of this court with regard to Sutter's general title.

Mr. Justice CAMPBELL delivered the opinion of the court. The appellees presented their claim before the board of commissioners for the settlement of land claims in California for a tract of land, consisting of four leagues, on the south side of Bear creek, in Yuba county, under a grant to Theodore Sicard by Micheltorena, Governor of the Department of California.

The testimony to sustain the claim is similar to that offered in the cases of United States v. Nye, 21 How., 408, and United States v. Rose, 23 How., 262. In these cases it was determined that the testimony was not sufficient to support the

Hall v. Papin.

claims. This case must follow the same course that was assumed in those.

Judgment of the District Court reversed, and petition dismissed.

WILLIAM A. HALL, PLAINTIFF IN ERROR, v. JOSEPH L. PAPIN.

An act of Congress passed on the 15th of May, 1829, (3 Stat. at L., 605,) authorizes persons who claim lots in the village of Peoria, in Illinois, to notify the register of the land office, who was directed to report to the Secretary of the Treasury, to be laid by him before Congress.

An act of March 3, 1823, (3 Stat. at L., 786,) grants to each one of the settlers who had settled on a lot prior to the 1st of January, 1813, the lot so settled on and improved, where the same shall not exceed two acres; and where the same shall exceed two acres, every such claimant shall be confirmed in a quantity not exceeding ten acres: Provided, the right of any other person derived from the United States, or any other source whatever, &c., shall not be affected.

These two statutes were drawn into question in the case of Bryan et al. v. Forsyth, 19 Howard, 334, where it was ruled that "in the interval between 1823 and the survey a patent was taken out, which was issued subject to all the rights of persons claiming under the act of 1823. This patent was controlled by the subsequent survey."

In the present case the patent is not controlled by the subsequent survey, for the following reasons:

The old village of Peoria was settled very early in the history of the country, but abandoned before the years 1796, 1797, and the new village of Peoria built up at the distance of a mile and a half.

The act of March, 1823, applies only to the new town, and the land in question is an out-lot or field of ten acres near the old village of Peoria.

Papin, the plaintiff below, claimed under a plat of the village made in May, 1837, approved September, 1841, and a deed to himself from the confirmee made in 1854.

Hall, the defendant below, claimed under a pre-emption certificate of 1833, a patent from the United States in 1837 to Seth and Josiah Fulton, and a deed to himself from the patentees in 1838.

Supposing that no out-lot was meant to be confirmed, the inchoate right of the claimant under the act was subject to a survey and designation before it could be matured into a title.

An instruction given by the court below to the jury, viz: that the persons taking under the patent of March 18, 1837, and under the entry of July 11, 1833, must be considered as taking their grant subject to the contingency of the better title which might thereafter be perfected under the acts of 1820 and

Hall v. Papin.

1823; and when a party brought himself within those acts, his title was the paramount title, notwithstanding the patent to the Fultons was erroneous. So, also, it was error in the court below to refuse to instruct the jury, that if they believed from the evidence that by the plaintiff's recovering in this case the legal representatives of Willette would be confirmed in more than ten acres of Peoria French claims, they were to find for the defendant.

The true construction of the act is, that a claimant was to have one confirmation of "a lot so settled and improved," which had been claimed and entered in the report of the register of the land office at Edwardsville, in pursuance of the act of May 15, 1820; that no claimant, though he shall appear in the regis ter's report as having made several claims, could, after having had one of them confirmed, transfer any right of property in the others to any person whatever.

THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of Illinois.

The dispute arose under the two acts of Congress passed in 1820 and 1823, confirming the claims of settlers in the village of Peoria, which are particularly mentioned in the opinion of the court, and which were also examined in a case reported in 19 Howard, 334. The instructions of the court below are also set forth in the present opinion, which renders it unnecessary to state them in this place.

It was submitted on a printed argument by Mr. Browning for the plaintiff in error, and by Mr. Merriman and Mr. Blair for the defendant.

It will be observed that the principal point upon which the decision of this court turned was, that the lots in question were outside of the village of Peoria. Mr. Browning brought this point before the court in the following manner:

The plaintiff in error (defendant below) asked the court to instruct the jury, "that if they believed, from the evidence, that the original French settlement or improvement, upon which the plaintiff's claim in this suit is based, was not upon or within the northwest quarter of section three, in township eight north, in range eight cast, of the fourth principal meridian, nor located upon that quarter section by the United States surveyor until after that quarter section was sold to

Hall v. Papin.

the Fultons by the United States, they, the jury, are to find for the defendant."

Which instruction the court refused to give; but, on the contrary, instructed the jury that the acts of Congress of 1820 and 1823, taken in connection with the report of the register of the land office and the survey under the authority of the law, vested in the party entitled under the acts of Congress an absolute right of property in the lot so surveyed; and that the surveys, for the purposes of this action, made the title of the claimant, under the acts of Congress, complete; and that the persons taking under the patent of March 18, 1837, as well as of the entry of July 11, 1833, being the same grant, took their grant subject to the contingency of the better title which might thereafter be perfected under the acts of 1820 and 1822; and that when a party brought himself within these acts, his title was the paramount title, notwithstanding the patent to the Fultons.

Now, this instruction virtually admits that the land in controversy never had been settled upon or improved by any of the French or Canadian inhabitants of the village of Peoria, and that it was no part of the village, but quite and altogether outside of and beyond its limits; for the defendant below had proven this state of fact, or given evidence strongly tending to prove it; and the court told the jury, substantially, that it was wholly immaterial whether it had ever been settled upon and improved or not, or whether it had ever been a part of the vil lage of Peoria or not; for that the title of the plaintiff, by virtue of the laws of 1820 and 1823, and by virtue of the survey made, not upon the land of the United States, but upon the land of the Fultons, was made absolute, and paramount to the title of the Fultons, notwithstanding the Fultons had the first grant from the Government. Or, to put it in another form, the instruction amounted simply to this: That on the 11th July, 1833, and the 18th March, 1837, when the land was sold and patented to the Fultons, said land belonged, absolutely and exclusively, to the United States, and that the French settlers at Peoria had no right to or interest in it, inasmuch as they had never had any settlement or improvement upon it,

Hall v. Papin.

and it had never been any part of their village; that the Government owning it, had a right to do with it as it pleased, and that in the exercise of that right it had sold and granted it to the Fultons, thereby parting with all its right, title, and interest in it, and all power and control over it; but that, notwithstanding this, it could authorize a survey of it under a law which had no reference whatever to this land, but to land. upon which the French had settled and improved; and by virtue of such survey, take Fultons' land and appropriate it to the satisfaction of a French claim, which, in reference to this land, had never had an existence.

Now, let it be conceded, as it is by the instruction of the court, that there was never any French settlement or improvement on this land, and that it was no part of the village of Peoria-then, I ask, by what right, or upon what principle, it can be taken for the satisfaction of a claim in the village of Peoria, after it has ceased to be the property of the United States and has become the property of a private citizen? I freely concede that whilst it remained the property of the United States they could authorize any part, or the whole of it, to be given in satisfaction of French claims, although the French settlements and improvements had never been on or near it. But I do not comprehend how, after the Government had parted with its interest, had sold and conveyed to the Fultons, it could authorize it to be taken for the satisfaction of a French claim, or for any other purpose. Its power over it was gone, and it could no more take this than it could take land situated anywhere else, which it had previously sold and granted away.

It is admitted that the surveyor might go outside of the original French settlement and locate a claim upon any land belonging to the Government, for the Government had a right to do as it pleased with its own, and to authorize the location of a claim where no settlement had previously been, and to confirm such location after it was so made; but it is emphatically denied that he could go outside of the original settlement and locate upon the land of an individual, in which the Government had no interest. If he could go off the set