The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1879-02-07
to a coordinate branch Of The Govern.

In this connection II Is suggested by III
defendant that tho general government
"both asoveFeign power and body pol
tic, and may acquire property In eithe
capacity" and that the lawful propert
franchise was acquired In her corporal
and not In her sovereign capacity. TIL
consideration OF this question leads us /
inquire, How and under what authority
and for what purpose, did the governmen
acquire this property The constitution
gress exclusive legislation "in all case
whatsoever" and over "all places pur
chased by the consent OF the Legislator,
OF the State In which the same shall b.
for the erection OF forts, magazines, ar
senals, dockyartls and other neediul build
ings. Art. ], sec. s, p. II.
Upon the I'd day OF April, 1904, Con
gress passed IAN Act to provide for the
erecting and repairing Of arsenals anC
magazines, and other purposes. Vol. l
p. 352, St, at large.
The Legislature Of Virginia, upon The
28th day Of November, 1891, pass
ed +" An Act to empower the Pres,
ident Of the United States tc
purchase tract OF land within the
State, not exceeding G40 acres, for the
purpose Of erecting public arsenal there.
on" II thus appears that Congress au.
thorized the purchase Of property for the
purpose Of erecting an armoty and arsenal
and that the Legislature OF Virginia gave
her consent to It. Under this act Of Con.
gress the President OF the United States
In 1706 purchased 9i0 acres Mt TIarper's
Ferry for the sole purpose OF erecting
thereon public arsenal, In pursuance
OF law the armory was established, and Il
Is not only matter OF history, but the
proofs show that it was operated and used
by the Government for the specific pur.
pose named in the grant OF power until
II was destroyed by fire in 1851. These
acts clearly show that the Government In
their purchase exercised one ot her high.
est powers. It was the acquisition OF
property for Governmental and National
purposes, with an eye TO the National
defense. 1t was not acquired in the ex.
ercise OF the right OF eminent domain, but
in the manner prescribed In the Constitu.
ton and in strict conformity to It, aud
therefore the United States acquired
and held this property in their sovereign
capacity. Ifthe government In making
this purchase exercised the rights and
franchises OF a civil corporation, then she
would hold only as an individual. But
such was not the fact, and 1t follows OF
course that property acquired by the gov
ernment, as this was, must be held by her
In her sovereign capacity and subject 10
her exclusive dominion. But it Is con-
tended that whilst the IIarper's Ferry
has been legally acquired
and held by the United States, In their
sovereign capacity, still the Fairfax prop.
erty was not 80 purchased and held.
When Congress authorized the President
TO purchase lands upon which a public
armory and arsenal was 10 be established,
she invested him with plenary powers
for that purpose, and to that end he was
to do what was necessary to
carry out and effect the object as expressed
in the law. In the execution OF this trust
contided to him, he alone became tho
judge OF what was required. The proof
shows that it was necessary to have tim
Der from which to manufacture charcoal
for the use Of the Armory, and hence tho
President purchased Of Lord Fairfax, "in
the further-exeCution OF the acts OF Con.
gress," the rightto large amount OF tim
ber upon his lands across the river, oppo-
site the site OF the Armory. Having the
same object in view, he afterwards pur-
chased in fee the 6Sl acre tract OF land, to-
gether with the ferry right across the
Shenandoah, with all its appurtcnances.
1t is apparent that the agents of the Gov.
ernmcnt, in making the purchase OF the
timber right as well as oil the ferry fran
chise, deemed them necessary and con-
incive to the successful prosecution OF
this protective enterprise. The 6S acres
thus acquired became an integral part or
portion OF the land purchased BY the
Government, with the conscnto OF Virginia
for the purpose Of erecting u public arsen-
al, and one over whiclithe U. S. would ex.
ercise exclusive Jurisdiction. 1t was, how
ever, different rs to the tract OF 1906
acres. BY this pun mchase the Government
only acquired a perpetual right to cut
the timber then growing or that
might thereafter grow upon it.
She did not acquire the fee in
the soil, ard therefore cOul,l not, cxer.
else exclusive Jurisdiction over Il. The
OUleCL VI IIlS IIuICliLoo WIS W btCuTt Tie
timber and not the land. 1t would follow
that as to the 1895 acres the State had not
under the net heretofore re'erred to parted
with her Jurisdiction over It, and that the
Government held II not in her sovereign
but In her corporate capacity.
The next question suggested for consid.
Grafton is the purchase OF the ferry right
by the Government, and whatinterest She
acquired in 1t. As before remarked, the
United States purchased from Fairfax and
claim under him ferry over the Shenan.
doah, which was established for him in
1910 by the County Court Of Jefferson
county, Virginia. BY this purchase the
Government acquired whatever rights
Fairfax held in tho purchase under the
laws OF the State from which he received
his grant, and no more, subject to such re.
striction and Limitation as existed ut that
time by her laws; in fact, the Government
took it cum Oneri. The deed OF 1918 grant
ed to the United States whatever rights
Fairfax had In tho franchise, to.wit: "thc
ferry with all Of itsappurtenanoes,"
It was purchase made by the United
States in their corporate capacity to pro-
mote the great object they had in view
in establishing National Armory at Ilar'
pcr's Ferry, When this ferry was estab.
Iished tho statute Of Virginia declared
that non use for the period OF two years
would terminate the existence OF the ferry,
This statute applied not only to Fairfax as
being or hold 10 be the purchaser, but II
followed 1t into the hands q his assignees
The Government took by her purchase
this franchise subject 10 this limitation,
The proofs show that she has ceased IA
use tho ferry for aperiod OF nearly twenty
years. Bythis non.user her rights in the
ferry per force OF the statute became for
ieltetl, and as a consequence she had nc
franchise to sell. This forfeiture, however
did not prevent the United States from
operating aud using u ferry across the rivol
to and from their lands. Nor is the State
BY reason ofthis forfeiture reinvested with
ahy powar n grant a ferry license TO and
from lands owned by the United StGte:
over which they exercise exclusive iuris
diction.