Marsh et al. v. Brooks et al.

The titles themselves being now produced, it is decided, that a permit, given by the Lieutenant-Governor of Upper Louisiana, in 1799, to a person to form an establishment on the Mississippi, followed by actual possession and improvement, entitled the occupant to 640 acres, including his improvements, although the Indian title was not then extinguished.

It was not the practice of the Spanish government to make treaties with the Indian tribes, defining their boundaries; but to prevent settlements upon their lands without special permits. Such permits, however, were usual.

The construction of the treaty between the United States and the Sac and Fox Indians, must be that the latter assented to an occupancy which was as notorious as their

own.

The act of Congress, approved April 29, 1816, (3 Stat. at Large, 328,) confirming certain claims to land, confirmed this one, although the Recorder of Land Titles, in his report, made in 1815, had added these words, "if Indian title extinguished." These words were surplusage.

THIS case was brought up, by writ of error, from the District Court of the United States for the Southern District of Iowa. It was before this court at January term, 1850, and is reported in 8 Howard, 223.

The children and heirs of Thomas F. Reddick, (the defendants in error,) were the plaintiffs in the court below, having brought their action by writ of right, according to the practice of the courts in Iowa, to recover 640 acres of land upon the right bank of the Mississippi River.

The acts of Congress and the patent to Reddick are set forth in 8 Howard, to which the reader is referred. But the plaintiffs having offered additional evidence, it may be proper, to bring the whole into one view. In the former trial the plaintiffs relied on the recitals in the patent to Reddick to prove the title of Tesson: but this court having decided that those recitals were insufficient, the evidence produced upon the trial of the present suit in the District Court was the following:

Plaintiffs' Evidence.

1. The plaintiffs proved, that Louis Honoré Tesson settled on the land in controversy, in 1798, and on the 30th of March, 1799, obtained from the Spanish government, a written permit to settle thereon, which is recited at length in the record.

2. That Tesson had possession, and inhabited, cultivated, and had houses and orchards and fields on said lands, in 1798, 1799, 1800, and until 1805; and that all his right, under the permit and settlement, passed, by mesne conveyances, to said Thomas F Reddick.

3. That said Reddick duly presented and proved before the Recorder of Land Titles at St. Louis, his claim, and claim of title from Tesson to said land; and that said Recorder, by his report, dated November 1st, 1815, reported on said claim his opinion, as follows: "Granted 640 acres, if Indian rights extinguished."

Marsh et al. v. Brooks et al.

4. The act of Congress, approved April 29th, 1816, (3.U. S. Stat. at Large, p. 328, ch. 155,) "for the confirmation of certain claims to land in the Western District of the State of Louisiana, and in the Territory of Missouri."

5. That on the 17th of May, 1838, a patent certificate, (No. 1157,) was delivered, by the Recorder of Land Titles at St. Louis, to Edward Brooks, (one of the original plaintiffs,) for the land referred to in the report of November 1st, 1815.

6. A patent of the United States, issued to Thomas F. Reddick, described as assignee of Joseph Robidoux, assignee of Louis Honoré Tesson, for the lands in controversy, dated the 7th February, 1839.

7. They also proved, that they, the plaintiffs, were the heirs and legal representatives of said Reddick; and that the defendants were in possession of the land in controversy, at the commencement of the suit, and rested their case.

Defendants' Evidence.

The defendants then gave in evidence:

1. The treaty between the United States and the Sac and Fox Indians, (7 U. S. Stat. at Large, 229,) made at Washington on the 4th of August, 1824, by the first article whereof, these Indians ceded to the United States all their right and title to the lands claimed by them between the Mississippi and the Missouri rivers, and a northerly line, running from the Missouri, at the entrance of the Kansas River, north 100 miles, to the northwest corner of the State of Missouri, and thence east to the Mississippi; but with the understanding "that the small tract of land lying between the rivers Des Moines and Mississippi, and the section of the above line between the Mississippi and the Des Moines, is intended for the use of the half-breeds belonging to the Sac and Fox nations; they holding it, however, by the same title, and in the same manner, that other Indian titles are held."

2. The act of Congress, approved June 30th, 1834, (4 U. S. Stat. at Large, ch. 167, p. 740,) "to relinquish the reversionary interest of the United States in a certain Indian reservation lying between the rivers Mississippi and Des Moines."

3. That the land in controversy is included within the interior boundary lines of the Sac and Fox half-breed reservation, referred to in the treaty of 1824, and act of Congress of 1834.

4. The act of Congress of July 1st, 1836, (6 U. S. Stat. at Large, p. 661,) by which the United States relinquished to the heirs of said Thomas F. Reddick, their right in the lands embraced in said patent-but reserving any older or better claim not emanating from the United States,. and providing, that in case said lands should be included in any reservation theretofore

Marsh et al. v. Brooks et al.

made under treaty with any Indian tribe, Reddick should be authorized to make another location on unappropriated lands.

5. That the 640 acres of land referred to in said act of Congress, of July 1st, 1836, lie within the exterior boundary lines of said Sac and Fox half-breed reservation, made by the treaty of August 4th, 1834.

6. That the land in controversy is worth more than $2000. The defendants then rested their case.

The plaintiffs then prayed the cour to instruct the jury1. That under the treaty with Fra se, of the 30th April, 1803, and the several acts of Congress passed in pursuance thereof, for settlement of titles in the Territory of Missouri, Tessor and Reddick, as his assignee, had a valid subsisting interest in he land in controversy, at the date of the report made by the Recorder, which was not divested by the reservation in the treaty with the Sac and Fox Indians, or the act of Congress of the 30th June, 1834.

2. That the claim of Tesson, and of Reddick, as his assignee, as reported, was substantially confirmed by the act of Congress, approved April 27th, 1816.

. That the patent, taken in connection with other evidence, conveyed to the plaintiffs a fee-simple title to the land in controversy, and overrides the title set up by defendants.

These instructions were given by the Court.

The defendants then prayed the court to instruct the jury1. That under the report of the Recorder of Land Titles, given in evidence by the plaintiffs, they are not entitled to recover the land, unless their title thereto has been confirmed by an act of Congress. This instruction was given by the court.

2. That the true construction of the act of Congress of the 29th of April, 1816, given in evidence by the plaintiffs, does not confirm their title to the lands sued for, if the Indian title to the same was not at that time extinguished.

3. That the treaty of August 4th, 1824, with the Sac and Fox Indians, is a recognition by the United States, at the date of said treaty, of the Indian right to the lands in controversy; the same being within the Sac and Fox half-breed reservation.

4. That the Indian title to the land in controversy was not extinguished prior to the 4th of August, 1824.

5. That the plaintiffs have shown no right to recover the land in controversy in this suit.

The first of these instructions, prayed for by the defendants, was given by the court; but the second, third, fourth, and fifth instructions, as prayed, were refused to be given.

The defendants, by their counsel, excepted to the rulings and

Marsh et al. v. Brooks et al.

decisions of the court in giving the instructions prayed for by the plaintiffs, and in refusing to give the second, third, fourth, and fifth instructions, prayed for by the defendants.

The jury, under these instructions, found a verdict for the plaintiffs, and a bill of exceptions brought these several rulings before this court for review.

It was argued by Mr. Butler, for the plaintiffs in error, and Mr. Geyer, for the defendants in error.

Mr. Butler, for the plaintiffs in error, made several points. The one upon which the decision of the court chiefly turned, was the following:

II. The District Court erred, in giving to the jury the several instructions prayed for by the counsel for the plaintiffs below.

1. The instruction, "that under the treaty with Françe of the 30th of April, 1803, and the acts of Congress, Tesson, and Reddick as his assignee, had a valid subsisting interest in the land in controversy, at the date of the report made by the Recorder, which was not divested by the reservation in the treaty with the Sac and Fox Indians, or the act of Congress of the 30th of June, 1834," was erroneous.

(After analyzing the treaty, and the several acts of Congress from that time to 1815, Mr. Butler came to the following conclusion :)

Neither under the, treaty, nor under any one of the abovecited acts, or all of them combined, had Reddick, as the assignee of Tesson, a valid subsisting interest in the land in controversy, at the date of the Recorder's report, November 1, 1815.

1. Under the treaty, every species of title to lands in Louisiana, emanating from the French or Spanish governmentswhether perfect and complete, or inchoate and incomplete-was recognized and protected as "property;" but mere permits to make settlements on such lands, even when lawfully granted by such authorities, conferred no right of property within the meaning of the treaty. Les Bois v. Bramell, 4 How. 463; Soulard & Smith v. United States, 4 Pet. 511; Smith v. United States, 10 Id. 326; Wherry v. United States, 10 Id. 328; Chouteau v. Eckhart, 2 How. 344; Menard's heirs v. Massey, 8 Id. 293, 308, 806; Bissell v. Penrose, 8 Id. 317; Landes v. Brant, 10-Id. 348; Glenn v. United States, 13 Id. 250; Heirs of Vilemont v. United States, 13 Id. 261.

2. The equitable claim of settlers under such permits, upon the justice or bounty of the. government, to complete their titles, devolved, after the treaty of cession, on Congress, who, by the several statutes above cited, have acted upon and regulated the subject. Cases above cited.

Marsh et al. v. Brooks et al.

3. No specific quantity, and no definite location, are mentioned in the written permit to Tesson; he is merely permitted to establish himself, for the purpose of trade with the Indians, at the head of the rapid of the River Des Moines. No survey could have been made, nor was any made or contemplated, under this permit; nor did any interest, in any particular tract, pass by it to Tesson. United States v. Forbes, 15 Peters, 173; Same v. Buyck, Id. 215; Same v. O'Hara, Id. 275; Same v. Delespine, Id. 319; Same v. Miranda, Id. 153; Same v. King, 3 How. 773; Same v. Lawton, 5 Id. 10; Same v. Villalobos, 10 Id. 541; Same v. Boisdore, 11 Id. 62; Same v. Lecompte, Id. 115; Same v. Vilemont, 13 Id. 261; Bissell v. Penrose, 8 Id. 317.

4. Tesson, after making his establishment, was to apply to the Governor-General, to obtain a grant of a convenient space for the use of his establishment; and, until the obtaining of such grant, Tesson neither had, nor could equitably claim, any interest whatever in any specific tract or lot.

5. This permit to Tesson was, therefore, a mere license to reside and trade in the Indian country; it was wholly insufficient to extinguish the Indian title in any particular tract, or to sever any particular tract from the public domain; and, unless confirmed by Congress, and duly located by their authority, Tesson had, and could have no standing, under said permit, in a court of justice. Cases above cited.

See, as to the Indian title, and the proceedings necessary to extinguish it, the. following cases: - United States v. Arredondo, 6 Pet. 691, 741; Mitchell v. United States, 9 Id. 711; S. C. 15 Id. 52, 83, 88; United States v. Fernandez, 10 Id. 303; Marsh v. Brooks, 8 How. 223; Gaines v. Nicholson, 9. Id. 356; United States v. D'Auterive, 10 Id. 624.

6. Whatever power, under the acts of Congress passed prior to the date of the Receiver's report, that affair might have to grant or confirm to Tesson's assignee, as a donation, the land claimed by him, neither of said acts had, by itself, confirmed his claim.

-

The first branch of the instruction now under review. that Tesson, and his assignee, on the 1st of November, 1815, had a subsisting interest in the land in controversy - was, therefore,

erroneous.

Mr. Geyer, for the defendants in error, divided his points as follows:

That a complete title to the land in controversy was vested in Thomas F. Reddick, on the 29th of April, 1816, whether the "Indian rights" had, or had not, then been extinguished; and