# Lessee of Binney v. Chesapeake and Ohio Canal Company

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United States Supreme Court
33 U.S. 214
Lessee of Binney v. Chesapeake and Ohio Canal Company
IN error to the circuit court of the United States, for the county of Washington, in the district of Columbia.
An action of ejectment was commenced in the circuit court, by agreement, on the 14th day of January 1832. The declaration counted on a demise from the lessor of the plaintiff, dated the 1st of January 1828, for the term of fifteen years. The declaration was afterwards amended, by adding, 'a demise from John K. Smith, and a demise from the heirs of Amos Cloud (their names to be left in blank, or considered as properly instituted in the record) and another from John Way.'
The following agreement, signed by the counsel for the plaintiff, was also filed in the circuit court.
'The plaintiff's title depends on the title papers herewith shown to the court, the due authentication of which is admitted: viz. the patents for Amsterdam and White Haven, and the several mesne conveyances, decrees, &c., from the patentees down to the plaintiffs; and it is admitted, that the plaintiff's lessor, J. K. Smith, was in possession in June 1812, when the condemnation hereinafter mentioned, was made of the land comprised within said condemnation, and that it is a part of the said two tracts of land.
'It is admitted, that the Potomac Company, in the year 1793, condemned certain lands, as appears by their said inquisition and condemnation, and plot hereto annexed, for their canal and locks through the aforesaid tracts of land, and other adjacent tracts as noted on said plot.
'And it is admitted, that, on the 23d of June 1812, an inquisition was held, and condemnation had by said company, as appears by the papers hereto annexed; and it is admitted, that the location of the land, so last condemned, and the new locks erected thereon, and the old locks erected on the land condemned as aforesaid, in 1793, is truly shown by a plot thereof, made out by Thomas F. Percell and William Bussard, hereto annexed.
'And it is further admitted, that the Potomac Company, after said respective condemnations, entered upon the lands so condemned, and erected thereon the locks as shown in the said plot, and continued in possession until transferred to the defendants, the Chesapeake and Ohio Canal Company, which latter company, have continued in possession ever since.
'Upon which case agreed, it is submitted to the court to say, 1st. Whether the plaintiff has shown title? and 2d. Whether the condemnation of 1812, aforesaid, divested the plaintiff's title, and gave a valid title to the Potomac Company?
'It is agreed, that all the papers, plots, &c., mentioned and referred to in the aforegoing case agreed, may be omitted in the record of this case, and may be used in the supreme court, as if contained in the record.'
The circuit court gave judgment for the defendants, and the plaintiff prosecuted this writ of error.
The case was argued by Mr Key and Mr Jones, for the plaintiff in error; and by Mr Coxe and Mr Swann, for the defendants.
The court gave no opinion upon the general questions discussed by the counsel in the cause; the only points decided were upon the demise in the declaration, and on the application of the counsel of the plaintiffs in error, if the cause could not be decided on its supposed real merits, to remand it to the circuit court. 'That the pleadings should receive such modifications, as will bring before the court those questions of law, on which the rights of the parties depend.'
Mr Swann and Mr Coxe, for the defendants in error.
The suit was brought in January 1832, and the demise is laid in the declaration, on the 1st of January 1828. The lessor of the plaintiff, Amos Binney, acquired his title in May 1828. The other lessors had no title. By the plaintiff's own showing, they had parted with their title long before the demises in the declaration. The plaintiff must recover on his own title, and that title as shown in the declaration, and in the process. The title must have existed at the time the suit was commenced, and must exist at the time of the trial of the cause. Cited Adams on Ejectment; 5 Harr. and Johns. Rep. 173; 3 Har. and Johns. Rep. 13.
Mr Jones and Mr Key, for the plaintiff in error.
The objection to the demise, should have been made at some previous stage of the cause. Cited, Runnington on Ejectment 213; Adams 288; Laws of Maryland of 1785.
The objection of the defendants in error to the demise, ought not to operate to produce an affirmance of the judgment of the circuit court. If the plaintiff in error has merits, the court, by remanding the case, so that the pleadings may be modified, will afford to the parties an opportuity to have the real questions in the case finally adjudged.
Mr Chief Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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