The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-03-16
ARLINGTON.
Gusts Lee Against the Occu-
pants OF the Estate.
DECISION OF THE CIRCUIT COURT.
Motion to Dismiss for Want of Ju-
riSdiction Denied.
PRIVATE AND NOT SOVEREIGN TENURE.
The Government Must Stand on the
Strength of Its Title.
DECISION OF THE CIRCUIT COURT.
PRIVATE AND NOT SOVEREIGN TENURE.
icy TELEGRAPH TO THE HERALD

RICHMOND, Va, March Is, 1878.
Judge r. w. Hughes, OF the Circuit Court of the
Uned States for the Eastern District OF Virginia de-
livcred important decision here to-day tho case
of G. W. G. Lee against Kaufman and others involv-
ing the title to the Arlington estate. In 1t he
tains the demurrer of the plaintiff to the plea OF
want OF jurisdiction interposcd by the Attorney Gen.
eral OF the United States As this proceeding was
relied on by the government prevent the recovery
OF the property by Mr. Curtis rather than the egt-
macy of the title under which the property hold
by the United States or those holding under them
the only question remaining Is whether such de-
cision Will sustained by the Supreme Court The
historical interest attaching to the estate in dispute,
as well as the more modern ono growing out Of the
fact Of portion OF 1t having been made national
cemetery are well set forth in the following summary
OF the decision:-
DECISION.
Tho plaintiff sued ia ejectment Tor tho recovery OF
tho Arlington estate, near Alexandria. The was
brought In tho Circuit Court of Alexandria, and
moved into the Circuit Court Of the United States II
was heard upon suggestion made by the Attorney Gen
eral OF the United States, that the property was
claimed by the United States title Of record, and
that the United States could not be sued, and upon
his motion for the dsmss0n OF the proceedings and
the plaintiffs dem TO the Attorney Generals sug
gostion The cause was argued at Alexandria on tho
ID 4th and 5th OF March, 1878 W. J. Robertson Leigh
r. Page and Francis L. Smith tor the plaintiff. and
the District Attorney, l.. l.. Lewis and ". Willoughby
for the United States, the Solicitor General OF the
United States, Samuel \. Phillips attending in person.
The decision Of the Court was rendered al Richmond
on the 18TH Of March, as iolows:-
Judge HUGHEs-I have received most valuable aid
instruction from tho counsel on each side IN this
cause
fhe laa rnn of ho "a nj
bar have boon characterized by rare strength and
cearness Added 10 these are the decisions In Dreux
vs. Kennedy, OF the Supreme Court oil louisiana rem.
dered in 1S46 az Robinson, 4S9) and OF The supreme
Court oil Massach usetts Biigss Tho Life Boats,
search rarely displayed even IN The discussions from
the bench OF those states. l should be without OK
cuse therefore, should fail to make clear the prin
cples Of law which control The decision OF he in
tcresting questions which are presented In this i'm
TUE FACTS OF THE CASE
As necessary to AN intelligent understanding OF
what be decidod mus. set out tue iacts Of the
shown by the record. will connect with
them some others derived aiunde chiefly from the
briefs of counsel, which are lnseparabe from those
exhibited IN the pleading bu. which shall allow
to influence the judgment oil the Court ! conceive
the facts OF the case to be as foliows-rhe late q. w.
Parke Curtis was the owner in tee Of the tract of
J. 100 Of land, which Is hesubject OF this
troversy. 1t known as the Arlington estate. II is
situated south oil the Potomac River, In Alexandra
county, Virginia. and foI ms conspicuous object
| the landscape which presents itself 10 the eye in
l need not add that 1t Is estate OF consldera.
bic value and OF profound historical interest.
TO his only child Mrs. Mary A. r. Leewi.e of Gen.
oral Robert E. Leeso be held during the term OF her
natural life, and. At her death, to the present PLAINTIFF
G. w. Custs Lee, to 90 held IN Ice. During the civil
war this estate, with the Arlington Mansion
occupied by its owner, Mrs. Lee who then living,
and the title did not pass to her con until 1873 the dale
of her death fs
THE GOVERNMENT TITLE
On the 9Th OF August 1861, tho United States Con-
aead tan aCl tn inCr he'd M
from imports 10 pay interest on the public debt and
for other purposes" aud on the 7,h of June, 1862,
passed ian Tor the collection OF
surrectionary districts within the Unued states ami
tor other purposes and on tho 9th OF February 1862
enacted still another law entitled IAN act TO
act entitled IAN Tor the collection In
insurreconary districts within the Unteu states aud
direct Tax OF 800 OO0 900 upon the United States ana
apportioned 10 Virginia the sum OF 1887 552 g. The
| tax imposed on Arlington was $92 OF.
On the llth DAY of January, 1854, the whole estate
acres was sold Tor payment oil this tax BY Johu
| W. Hawxnurs, Gilctt +. Watson and A. }. Foster,
Tax Commissioners OF the United States Virginia.
| The price bid by tho government was $50, 500
| amount exceeding the means of any friend OF the
owner who might desired to buy in the properly
| for him. IL was SO bought in by The Tax comms-
soners, under authority OF the clause OF the OF
| Congress of February o. 1858, which empowered the
government, at such sale as this was, TO purchase
lands which might be selected by the President ior
| government use Tor war, military, naval revenue,
charitable, educational or police purposes" The
| United States took possession oil the estate
|
which would have remained, alter deductlng tho tax
having ever been paid over either 10 the life tenant or
| remainder man.
| The estate Is now occupied by Frederick Kaufman
r. p. strong. and about Two hundred other persons
Against all these by name AZ defendants, the plain
tin April last, brought Two actions Of ejeci
(now treated onej the Circuit Court of Alexandria
county, Va, having postponed his suit until within
the last year OF the period five years. alter which
II would, In some OF It's Objects have been barred by
THE pLEADISGs IN THE CASE.
ata tfnsp rx.In x..1I..
| each occupant and the declaration filed al the
May rules following. In due course of procedure the
defendants all appeared by counsel and dem rred
and pleaded; their plea being tho general issue au
thorized by tho statute Tho cause thus maturcd
for trial al tho term OF the State court which hold
July, 1871 Before the commencement of that TERM
however, the defendants filed petition here for the
removal OF the cause into this court from the state
Court The petition was founded upon section
643 OF the Revised Statutes OF the United States
which authorizes any oicor Of the United States, or
any person holding estate by title derived from any
officer of the United states, when sued in q State
Court by any procee ding affecting the validity OF any
into a Circuit Court OF the United States.
Among the rectas Of their petition the defendants
say
49,, Your petitioners say that they do not claim
follows, ID VITA certain portion thereof consisting
nsd states S sas.ss s a
Of the US S ns s9 Of h s
kaufman Is superntendent thereof under directions Of
@ apart military post andre" and reserve eo
nectcd Herewith, OF the United States. and is
charge of The defendant Strong, who officer
United states and occupying the undor
War Departments
Tina. such OF said defendants except Strong and Karf
man, arc upon said premises occupy tho
but under permission of the officer in charge
SAID military reservation.
Upon the nhng OF this petition writ OF cortiorar
was issued hence 10 the Clerk oil the Alexandra Cir
cult Court under which copy OF the record In the
suit was certified here, tho cause when brought here
being ready Tor trial on issues Joined oil law FACT
the following proceedings were tnereupon had In this
COURT
OBJECTION JURISDICTION
In the Circuit Court OF the United for the Eastern
District OF Vrgniau. W. y. Lee Frederick kaufman.
X +. strong ana Others, IN ejectment And now
comes the Attorney General OF the United states and
suggests to the Court aud gives IL naerstand
and be informed appearing only for tho purpose Of
this moton that the property in controversy In this suit
has been for more than ten years aud is held occn
pied the United states through officers
agents. charged in behalf Of the OF the
United states with tue control OF the property
actual possession thereof pubic property Of the
United States Tor public in the exercise OF
ercsn and constitutional powers as military sta
ton and as national csmetery, established for
known and designated The Arlington Cemetery" aud