The daily union. [volume] (Washington [D.C.]) 1845-1857, 1846-01-06
THE UNION.
LOCAL INTELLIGENCE.
SUPREME COURT.
MogDAy, JANUARY 3, 1876.


Calron, MeKinley, Nelson and Woodbury..
TmE PKE-EsprioE Laws. r. C. Downcs rs. w.
q. Scou--An important case, involving question,
which will be found interesting To settlers on the
public lands, IN relation TO the partition OF certain
lots held under the prescription laws, came up, on
error for argument before their honors this day, in
which the Attorney General, Mr.. Mason, appeared
on part Of the plaintiff in error and Mr.. CntleDden
appeared for the defendant IN error The case orr.
ginsted in petition to the judge of the niDih Judi
cal circuit OF the State OF Louisiana, filed by
Downes, the plaintiff, which set forth that he is
the legal owner OF an undivided half Of a tract
Of land consisting Of 1873 acres situated at Bruhsy
bayou, Of the district Of lands SUI ject to sale
at ouaehita, which said tract was patented as u
presumption right, 10 parties named Evans and
Blakey, as tenants IN common. Ths. by the
laws of the United States for the division and
partition OF lands, Il is required that the same he
done by a north and south, or east and west, line.
That the said tract N order to give each of said "a
tentees the original settlement shall be parli-
tioned--Scot holding the west half and Evans the
east half In the court below, the defendant put
in setting forth that he desired Downes to
partition the land by running line north and south
through the lots separately but denies that he has
any right to have the two lots therein specified
thrown into one. The was tried before a Jury,
who found that the two lots be divided separate
ly in equal portions, running by north and south
line. A judgment thereupon entered up, that
the lots be separately divided by line running due
north and south through each Of said lots in such
manner a. to divide each OF said lots into Two equal
portions. An appeal To the supreme court of
Louisiana was afterwards prayed and granted.
The Supreme Court affirmed the judgment Of
the court below, and the cause went back
to the district court. The present writ of err
ror has been sued out in order to review
the decision Of the supreme court of Louisana-the
I.lz- rhn n Al
having decided that the presumption act of 1880,
under which the plaintiff claimed was not applicable
to the case. The points put in part Of defendant
in error 6rs that the writ of error was directed
to the judge OF the 9th judicial district court of the
State Of louisiana; that the writ was for alleged
error in judgment of the said district court that
the record fled--or what purports to be such-is
not duly certified; and that the subject matter of
said writ and Judgment. and the parties thereto,
were proper matters ard subjects Of the courts Of
the State Of louisiana; and there nothing there
in to give this court any cognzance right to revise
points involved .. VI"
The Attorney General opened the argument on
the part of the plaintiff in error detailing the par
ticulars which led to the controversy between the
parties, in relation to certain alleged improvements
made by the plaintiff on his part of the lands. In
the course Of his argument he took accession to cite
the law of 1890, known the pre- empton act, which
provides that ''if two or more persons be settled
upon the quarter section the same may be
divided between the two first actual settlers, if by
north and south, by east and west line, the set
Element or Improvement Of each can be included in
halfquarter section; and in such case, the said set
tiers shall each be entitled to presumption Of eighty
acres of land elsewhere, in said land district so as
not to interfere with other settlers, having a
right of preference. The Attorney General in sup
port Of his position, cited the Gelson u.s. Hot
p. D., 3O3-4 and commended that the writ of error
was properly directed. That the error as alleged
therein error in a judgment Of the supreme
court Of Louisiana, and commended that the
record was properly authenticated. He further
contended that the court had jurisdiction upon the
merits, and that there in the court below,
inasmuch as it was there decided that the pre- emp
ton act Of 1880, under which the plaintiff claimed to
have continuous north and south line run, wns not
applicable to this cause; and that, the tract of
land TO be partitioned granted to the pre-emp-
TONERS having settled on the same quarter section,
under the enactmeHts of that act the plaintiff
in error was lawfully entitled to have continuous
north and south line run.
Mr.. Crltenden ably reviewed The argument Of
the Attorney General. The question before their
honors was one as TO whether the land should
he divided between the parties upon principles Of
equity, or according to act of Congress; which, If
done in accordance with the latter would amount to
equitable adjustment of the tide If the court
meant to apply the act Of 1890, il prescribed the
amount, and specified the number Of acres--whch
must amount to I60 In the present case the amount
was only 1891! instead Of the regular quantity Of
l60, as provided for by the act This was an ano-
malous survey, he commended, and not regular
vey, according 10 the prescribed form, providing for
line runnng from north SOUTH or east TO west.
The mode Of division which the plaintiff claimed
would give him an over quantity Of the land; and
he contcpded that where partition was made after
the patent was issued, the law in such cases pre-.
scrbed that the should be controlled and par.
ton made, according to the laws of the State. The
Judges Of the supreme court Of Louisiana were of
opinion that the Judges did not essentially That
the language he used did not exactly express
their ideas; bat the conclusion they had come TO
was the same They were of opinion that the
United States had sold and given patent for tract
Of land which il had sold, and that The property
then vested in the citizen who was entitled to
the patent; and that, therefore, the State laws ope
rated on il precisely as on all OTHER properly, except
related TO taxation or some special exceptions; that
for the efiecting partition, the laws Of the State
and the contract Of the parties 10 control az in
all other cases. They further say that the act Of
Congress under which Blakey and Evans purchased
the land made the contract between them rs TO the
quantity each should have. The opinion Of the
Judges goes on TO state that the principal objects Of
that contract were FIRST to give each party the por-
ton of land on which his house and improvements
were situated. Secondly, to give as nearly pos
sible equal quantity TO each. The course Of the
lines is secondary, and intended only as means of
erecting the principal objects. One equality OF val
ue in the portions does not seem TO have been con-
sidered important, and is not included in the
tract. Courts in ordering partition between two
original pre-emptors, or those holding under them,
will look TO the act Of Congress as containing in re-
ation to regular quarter sections the primary inten
tons Of the pariies to the direction of the lines;
but in relation TO ufrictional or the commissioner
Of the General Land Office calls H. an anomalous sur
vey, the rule does not apply, and the Judge was
therefore correct in directing the jury the act Of Con-
gress was not 10 govern them absolutely. We can
easily imagine two improvements 30 situated on a
fraction OF land, that neither north and south or
east and west line would give each an equal quanti-
~ and his Improvements also. In such a case the
Inc must take some otker direction or the land could
never be divided in Kind. An examination of the
act Of Congress viii show there is nothing manda-
tory in it, even TO its own officers il is directory
only in It's operation on the right OF individuals. ana
u not so unbsnding to compel the preparation of
On act Of gross injustice perusal Of the evidence
satisfies US the jury decided in conformity to il and
the principles Of Law and Justice The plaintiff com
plains the verdict is indefinite and uncertain ns il
does not state whether he is to have the east or west
portions Of the lots when decided The verdict and