THIS case was brought before the court by a writ of error to the district court of the United States for the district of Indiana. The case was argued by Mr Coxe and Mr Bibb, for the plaintiff in error, and by Mr Howk for the defendants. The facts are stated in the opinion of the court.
The opinion of the court was delivered by: Mr Chief Justice Marshall delivered the opinion of the Court.
This is a writ of ejectment originally brought by Joseph Bartholomew and others, trustees of the town of Clarksville, in the circuit court for the county of Clark in the state of Indiana, and removed on the petition of the original defendant into the court of the United States for that district.
The parties agreed on a case in the following words:
'John Doe ex dem. Joseph Bartholomew, &c. Trustees of the Town of Clarksville v. James Hughes.
The lessors of the plaintiff derive their title to the lands in the declaration mentioned, from the state of Virginia, by virtue of an act of the general assembly of said state of Virginia, passed in the year 1783, and entitled 'an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant;' and also of another act of the general assembly of the state of Virginia, passed in the year 1790, entitled 'an act to amend an act entitled an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant;' which said acts are in the words and figures following, to wit:
'An act for the locating and surveying the one hundred and fifty thousand acres of land granted by a resolution of assembly, to Col. George Rogers Clark, and the officers and soldiers who assisted in the reduction of the British post in the Illinois. Be it enacted by the general assembly, that William Fleming, John Edwards, John Campbell, Walker Daniel, gentlemen, and George Rogers Clark, John Montgomery, Abraham Chaplain, John Bailey, Robert Todd, and William Clark, officers in the Illinois regiment, shall be, and they are hereby constituted a board of commissioners, and that they, or a major part of them, shall settle and determine the claims to land under the said resolution. That the respective claimants shall give in their claims to the said commissioners, on or before the 1st day of April 1784, and, if approved and allowed, shall pay down to the commissioners, one dollar for every hundred acres of land, such claim, to enable them to survey and apportion the said lands. The said commissioners shall appoint a principal surveyor, who shall have power to appoint his deputies, to be approved by the said commissioners, and to contract with him for his fees. That from and after the 1st day of April 1784, the said commissioners, or a major part of them, shall proceed with the surveyor, to lay off the said hundred and fifty thousand acres of land on the north-west side of the Ohio river, the length of which shall not exceed double the breadth; and after laying out one thousand acres, at the most convenient place therein for a town, shall proceed to lay out and survey the residue, and divide the same by fair and equal lots among the claimants; but no lot or survey shall exceed five hundred acres. That the said commissioners, in their apportionments of the said land, shall govern themselves by the allowances made by law to the officers and soldiers in the continental army. That the said commissioners shall, as soon as may be, after the said one hundred and forty-nine thousand acres shall be surveyed, cause a plat thereof, certified on oath, to be returned to the register's office, and thereupon a patent shall issue to the said commissioners, or the survivors of them, who shall hold the same in trust for the respective claimants: and they, or a major part of them, shall thereafter, upon application, execute good and sufficient deeds for conveying the several portions of land to the said officers and soldiers.
'And be it further enacted, that a plat of the said one thousand acres of land laid off for a town, shall be returned by the surveyor to the court of the county of Jefferson, to be by the clerk thereof recorded, and thereupon the same shall be, and is hereby, vested in William Fleming, John Edwards, Walker Daniel, John Campbell, George Rogers Clark, John Montgomery, Abraham Chaplain, John Bailey, Robert Todd, and William Clark, gentlemen, trustees, to be by them, or any five of them, laid off into lots of half an acre each, with convenient streets and public lots, which shall be, and the same is hereby, established a town by the name of Clarksville. That, after the said land shall be laid off into lots and streets, the said trustees, or any five of them, shall proceed to sell the same, or so many as they shall judge expedient, at public auction, for the best price that can be had, the time and place of sale being previously advertised two months, at the court houses of the adjacent counties; the purchasers, respectively, to hold their said lots subject to the condition of building on each a dwelling house twenty feet by eighteen, at least, with a brick or stone chimney, to be finished within three years from the day of sale; and the said trustees or any five of them, are hereby empowered to convey the said lots to the purchasers thereof, in fee simple, subject to the condition aforesaid, and the money arising from such sale, shall be applied by the said trustees in such manner as they shall judge most beneficial for the inhabitants of said town. That the said trustees, or the major part of them, shall have power, from time to time, to settle and determine all disputes concerning the bounds of said lots, and to settle such rules and orders for the regular building there on as to them shall seem best and most convenient; and in case of death, removal out of the county, or other legal disability of any of the said trustees, the remaining trustees shall supply such vacancies by electing others, from time to time, who shall be vested with the same powers as those particularly nominated in this act. The purchasers of the said lots, so soon as they shall have saved the same according to their respective deeds of conveyance, shall have and enjoy all the rights, privileges, and immunities, which the freeholders and inhabitants of other towns, in this state, not incorporated, hold and enjoy. If the purchaser of any lot shall fail to build thereon within the time before limited, the said trustees, or a major part of them, may thereupon enter into such lot, and may either sell the same again, and apply the money towards repairing the streets or in any other way for the benefit of the said town, or appropriate such lot to the public use of the inhabitants of the said town.'
'An act to amend an act, entitled 'an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant,' passed the 10th of December 1790. Be it enacted by the general assembly, that so much of the act entitled 'an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant' as requires that one thousand acres of land for a town shall be laid off into half acre lots, and each to be improved by building, subject to the condition of building on each a dwelling house twenty feet by eighteen at least, with a brick chimney, to be finished within three years from the day of sale, is hereby repealed.
'The trustees of the said town are hereby directed to convey to those who have already purchased a lot or lots in said town, titles in fee simple, although the said lots may not have been improved agreeably to the requisitions of the said recited act.
'And be it further enacted, that the said trustees, or any five of them, are authorised and required to sell at public auction the residue of the said one thousand acres of land, for the best price that can be had for the same at twelve months' credit, in lots not exceeding twenty acres, nor less than half an acre, taking from the purchasers bond, with approved security, for the payment thereof, and when received, to be applied to the benefit of the said town; notice of the time and place of such sale being previously advertised two months successively in the Kentucky Gazette.
'And be it further enacted, that the said trustees shall convey to the said purchasers titles in fee; and that the said lots shall not be liable to forfeiture on account of any failure in improving the same, but that the titles thereof shall be absolute and unconditional, any thing in the said recited act to the contrary notwithstanding.'
In pursuance of the act first above recited, the board of commissioners thereby constituted, appointed William Clark principal surveyor, and proceeded to lay off the one hundred and fifty thousand acres of land, and laid off for a town the said one thousand acres of land, a plat of which was, by the said surveyor, returned to the court of the county of Jefferson, to be by the clerk thereof recorded, which survey and return is in the words and figures following, to wit, and of which survey the annexed map is substantially a copy, upon which the land in controversy is correctly represented between the letters X and Y, and between two dotted lines upon the margin of the river.*fn1 (a)
'Surveyed one thousand acres of land on the northwest side of the Ohio river for the town of Clarksville, agreeably to an act of the assembly, entitled 'an act for the surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant.' Beginning on the bank of the Ohio river, at a small white thorn, white oak and hickory, a little below the mouth of Silver creek; running thence north, crossing Silver creek twice, one hundred and seventy poles, to a sweet gum, beech, and sugar tree; thence east, crossing said creek again, three hundred and twenty-six poles, to three beeches; thence south 40° east, eighty-six poles, to a beech and sugar tree; thence one hundred and seventy-six poles to a large sweet gum, sugar tree, and dogwood, on the bank of Mill creek; thence south, crossing said creek, one hundred and eighty poles, to a sugar and two ash trees; thence east, one hundred and fifty-eight poles, to three beeches; thence south, crossing Pond creek, two hundred and eighty poles, to
The said trustees, named in the above recited act, entered upon the said one thousand acres of land, and had the same laid off into streets and lots, and sold a part of the same; and and as vacancies occurred by death, removal out of the county or otherwise, the remaining trustees supplied such vacancies by electing others, from time to time: so that on the 1st day of July 1827, the said lessors of the said plaintiff, to wit, Joseph Bartholomew, John Prather, Willis W. Goodwin, Andrew Fite, John Weathers, William D. Beach, Charles Euller, Orlando Raymond, Isaac Howk, and Peter Bottorff, were the trustees of Clarksville, by being duly elected, from time to time, under the provisions of the above recited act.
At a meeting of the board of trustees of the town of Clarksville, on the 18th of March 1803, the following resolution was adopted by the board, and entered on the book of their proceedings, to wit: 'the trustees, taking into consideration the great advantage that would result to the trustees of the town of Clarksville and the public in general, by opening a canal round the falls of the Ohio, on the application of George Rogers Clark, it is resolved by the board, that the rights, privileges and advantages of the ground between the front lots on the Ohio, and the Ohio from the upper line of the town of Clarksville, adjoining Isaac Bowman's lot, No. 1, in the Illinois grant, to the mouth of Mill creek, be exclusively granted to William Clark, his heirs and assigns, to be appropriated to the use of opening a canal through any part of said slip of land, on which to erect mills, wharfs, store houses, or any kind of water works that may be of public utility, or for the erection of gates, locks, &c., for the passage of boats, vessels, &c., reserving, however, between the south and eastwardly line of said front lots and the canal, the distance of hirty feet; for which privilege, the said William Clark, his heirs and assigns, are to pay the trustees or their successors one per cent on the production of all water works that may be erected on said canal, and five per cent on the toll of all kind of craft that may pass through the said canal. Provided, however, that the said William Clark, his heirs and assigns, do complete the said canal for the erection of water works, within seven years from this day.
At a meeting of the trustees of the town of Clarksville, on the 5th day of December 1807, the following order and resolution was adopted by said trustees, and also entered on their book of proceedings, to wit: 'a memorial from William Clark, praying that the trustees will prolong the time for his complying with the conditions of a grant made to him by a former board of trustees on the 18th day of March 1803, of a slip of ground from the upper part of the town to the mouth of Mill run, was read. On motion, it was resolved, that a further time of three years be allowed for complying with the condition of said grant, on condition that the said William Clark, his heirs, &c, shall relinquish, under the former grant, the distance of thirty feet, reserved for a street between the front lots and any canal that may be opened, making a space of sixty feet the whole distance between such canal and said front lots, and that the former grant shall not extend further than to the lower basin, and that the said William Clark, his heirs, &c., shall bind himself, his heirs, &c., to build and keep up good and sufficient bridges across said canal at the intersection of every cross street, and to erect, within the period mentioned, to wit, by the 18th of March 1813, a mill or mills, to be of public utility, or open a canal agreeably to the conditions of the former grant, and to reserve to the trustees the stone in the river not necessary for the uses of effecting and continuing the improvements therein contemplated.'
On the 21st November 1810, an act of the general assembly of the territory of Indiana was passed in the words and figures following, to wit: 'an act for the relief of Daniel Fetter, James Hughes and Solomon Fuller.
'Whereas it has been represented to the general assembly of this territory, by sundry petitions and other documents, that by the act of the state of Virginia incorporating the town of Clarksville in this territory, the trustees thereof were authorised to dispose of the land upon which said town was laid off in half acre lots, at public auction or otherwise, as they might think proper, and whereas the said trustees, by their orders and resolutions, did dispose of a certain part of said town to general William Clark, in fee conditional, who transferred the same to the aforesaid Fetter, Hughes and Fuller, and whereas it seems to have been the intention of the legislature of Virginia to subject the lots and land whereon the said town of Clarksville was laid off, to the control and disposition of the trustees of the said town, who, for the benefit of the proprietors therein, and for the interest of the public at large, did dispose en masse, in the manner aforesaid, of a number of lots, and it appearing by the memorial of the said Fetter, Hughes and Fuller, that the intention is to erect, for the public utility and convenience, mills and other water works on the said ground:
'SEC. 1. Therefore, be it enacted by the legislative council and house of representatives, and it is hereby enacted by the authority of the same, that the said Daniel Fetter, James Hughes, and Solomon Fuller, their heirs and assigns, be, and they are hereby considered, and shall be taken, deemed and holden, as the legal and equitable proprietors of the lots and land contained in the orders and resolutions of the said board of trustees, and the deed of transfer transfer thereof from the said William Clark, subject nevertheless to the ...