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LESSEE OF JOHN POLLARD, WILLIAM POLLARD, JOHN FOWLER AND HARRIET HIS WIFE, HENRY P. ENSIGN AND PHEBE HIS WIFE, GEORGE HUGGINS AND LOUISA HIS WIFE, JOSEPH CASE AND ELIZA HIS WIFE, PLAINTIFF IN ERROR, v. JOSEPH F. FILES

January 1, 1844

LESSEE OF JOHN POLLARD, WILLIAM POLLARD, JOHN FOWLER AND HARRIET HIS WIFE, HENRY P. ENSIGN AND PHEBE HIS WIFE, GEORGE HUGGINS AND LOUISA HIS WIFE, JOSEPH CASE AND ELIZA HIS WIFE, PLAINTIFF IN ERROR,
v.
JOSEPH F. FILES, DEFENDANT.



THIS case was brought, by writ of error under the 25th section of the Judiciary act, from the Supreme Court of the state of Alabama. It was an ejectment, brought by the plaintiff in error, in the Circuit Court of the state of Alabama for Mobile county, to recover a lot in the city of Mobile, on the east side of Water street. By the original plan of the town, a street was laid off, called Water street, on the margin of the river, running nearly north and south, which was afterwards filled up; and by the improvement, the water, at high tide, was confined to the eastern edge of the street. Pollard's heirs, claimed under a Spanish grant from Perez, in 1809, to Pollard the ancestor, which grant, as they alleged, was saved in the act of Congress of 1824, and expressly admitted in an act of 1836, entitled 'An act for the relief of William Pollard's heirs,' under which a patent issued, embracing the premises in question. The defendant, Files, connected himself with three diffenent branches of title. 1. That of Forbes and Company. 2. That of Curtis Lewis. 3. That of the corporation of the city of Mobile. 1. The title of Forbes and Company. They held a grant from the Spanish government for a lot fronting upon Royal street (which is the next on the west to Water street) and running back 304 feet to the east, to a waterlot. It was alleged that the act of Congrees of 1824 (cited at large in the report of the case of the City of Mobile v. Emanuel et al., 1 How., 95, vested a title in the water-lot to them as proprietors and occupants of the lot fronting on the river Mobile. 2. The title of Curtis Lewis. It was alleged that he had made an improvement upon the water-lot, and thus brought himself within another clause of the act of 1824. 3. The title of the city of Mobile. It was alleged that Congress, by the act of 1824, had granted to the city of Mobile 'all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favor of any individual, under this or any former act, between high water-mark and the channel of the river,' &c.; and that Pollard's claim not coming within any of the exceptions, the title of the United States passed to the city of Mobile. In this view, the United States in 1836, of course, had no title which they could transfer to Pollard's heirs. The case was tried in the Circuit Court of the state, and the opinion of the court upon the law was in favor of the defendant, Files: it was carried by Pollard to the Supreme Court of the state, by which the judgment was affirmed, and to review this opinion the present writ of error was brought. The facts are set forth in the bill of exceptions taken in the court below, which is as follows: Bill of Exceptions. Be it remembered, that in the term of the Circuit Court begun and held in and for the county of Mobile and state of Alabama, on the fifth day of May, in the year of our Lord one thousand eight hundred and forty-one, before the Honorable E. S. Dargan, judge of the tenth judicial district, came John Doe, by his attorney, George F. Sall e, and impleaded Bernard De Sylva, in whose stead the landlord, Files, was admitted to defend in a plea of trespass in ejectment, upon the demise of John Pollard, William Pollard, John Fowler and Harriet his wife, late Harriet Pollard, Henry P. Ensign and Phebe his wife, late Phebe Pollard, George Huggins and Louisa his wife, late Louisa Pollard, Joseph Case and Eliza his wife, late Eliza Pollard, for a term of years not yet expired, to a certain lot or parcel of land lying in the city of Mobile, between Church street and North Boundary street, and bounded on the north by the south side of what was formerly called John Forbes and Co.'s canal, on the south by what was called the King's wharf, on the West by Water street, and on the east by the channel of the river; and thereupon issue was joined between the said lessors of the plaintiffs and the said Files, who, at the trial, in pursuance of an act of the legislature of Alabama, passed on the eighth day of January, one thousand eight hundred and thirty-six, entitled 'An act for the relief of tenants in possession against dormant titles,' suggested to the court that he and those whose estate he has in the lands or tenements sued for have had adverse possession of the same for three years next before the commencement of such suit, and have made valuable improvements on the lands, so on which suggestion issue was joined; also, on the day and year aforesaid, the said issues so joined, between the said parties as aforesaid, came to be tried by a jury for that purpose duly empannelled and sworn; at which day came there as well the said plaintiffs as the said defendant, by their respective attorneys; and the plaintiffs, in order to maintain the issue on their part, gave in evidence an act of Congress passed on the 26th day of May, one thousand eight hundred and twenty-four, entitled 'An act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city.' They further gave in evidence an act of Congress passed July 2, 1836, entitled 'An act for the relief of Wm. Pollard's heirs.' They further gave in evidence a patent issued on the fourteenth day of March, one thousand eight hundred and thirty-seven, in pursuance of said act of Congress of July 2, 1836, which patent embraced the premises in question. They further gave in evidence a Spanish grant, of which the following is a translation: Mr. COMMANDANT:–William Pollard, an inhabitant of this district, before you, with all respect represents: that he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof, and that, having found a vacant piece at the river side, between the canal which is called John Forbes and Co.'s and the wharf at this place, he petitions you to grant him said lot on the river bank, to give more facility to his trading; a favor he hopes to obtain of you. Mobile, 11th December, 1809. WILLIAM POLLARD.

The opinion of the court was delivered by: E. S. Dargan, Judge. [l. S.]

Mobile, 12th December, 1809.

I grant the petition; the lot or piece of ground he prays for, on the river bank, provided it be vacant.

CAYETANO PEREZ.

The plaintiff then proved the genuineness of the signature of Cayetano Perez, and referred to the state papers relating to the public lands to show the different periods during which Perez was in command.

The plaintiff then gave in evidence that the premises sued for were situated between Church street and North Boundary street and immediately in front of lots known under the Spanish government as water-lots, and that the said lot now sued for was, in the year one thousand eight hundred and twenty-four, and is now, known as a water-lot; that it lies on the east side of Water street; that what is now Water street was, under the Spanish government, and at the date of the grant to Forbes and Co., hereafter attached, a natural ridge, and that the ordinary tides did not overflow said ridge. and very high tides entirely covered said ridge; that to the north of the lots lying immediately west of the lot sued for, near Conti street, there was a depression in said ridge, where the water at high tide, flowed around upon the eastern part of the lots lying, as before stated, immediately west of the lot sued for, and which were known as water-lots under the Spanish government.

The plaintiffs then gave in evidence that John Forbes and Co. applied for and obtained permission, from the Spanish government, to open or cut the canal which was called John Forbes and Co.'s canal, after they had obtained a grant for the lot lying immediately west of said canal.

The defendant, in order to maintain the issue on his part, gave in evidence a Spanish grant to John Forbes and Company, for a lot of ground eighty feet front on Royal street, with a depth of three hundred and four feet to the east, which is hereto attached and marked A, together with the plat or survey thereto attached, which is made part of this bill of exceptions; and proved that the said lot was situated immediately west of the lot sued for, and was separated from it now only by Water street; but Water street was not known at the date of this grant, and said street was laid off in 1820 and 1821. The defendant further gave in evidence a certificate of confirmation for the said lot to John Forbes and Company, who were the successors of Panton, Leslie and Company, the original grantees, which is also made a part of this bill of exceptions, and marked B, by which it will appear that 304 feet were confirmed to Forbes and Company.

The defendant also proved that one Curtis Lewis, some time in 1822 or 1823, sunk some flat boats in the canal called Forbes and Company's, and proceeded to fill up the lots now sued for, but that one James Inerarily, one of the firm of Forbes and Company, dispossessed him in the night, and erected a smith's-shop, and continued in possession about nine months, when Curtis Lewis regained possession by writ of forcible entry and detainer.

It further appeared in evidence that the ridge in Water street was about fifteen or twenty feet in width, and that it was covered by the ordinary tides for about one-third of its width, up to the year 1822, and that all the land east of Water street, as at present laid out, up to 1813, was below the ordinary high water-mark. It further appeared that the firm of Forbes and Company entered upon the lot granted to them as aforesaid, and made valuable improvements on it, and fulfilled the conditions of the grant, and on the 25th May, 1824, held the land to the west of Water street without dispute.

It further appeared that the first improvements on the lot east of Water street were made by Curtis Lewis, except the canal, and improvements along it, of John Forbes and Com pany; but it was also in evidence that, in 1811, a witness had seen the servants of William Pollard removing some drift wood and piling some lumber on the lot in question.

The nature and extent of Curtis Lewis's improvements are before stated. The reports of Commissioner Crawford, upon the titles before referred to, were read from 3d volume of the State Papers, and they are understood to form a part of this bill of exceptions.

E. S. DARGAN, [L. S.]

The defendant then connected himself with the title of Curtis Lewis, Forbes and Company, and the corporation of the city of Mobile, which claimed the same by virtue of the act of 1824 above referred to.

In the progress of the trial, when the plaintiffs offered in evidence the Spanish grant to Pollard, the defendant's counsel offered evidence, the object of which was to prove that the date of the grant had been altered, the plaintiffs' counsel objected to the introduction of the evidence for that object, but was overruled by the court, to which he excepted. The defendant then passed the grant to the witnesses, who, upon an inspection of the same, were of opinion that the figures 09, in the date of 1809, on the face of the grant, had been altered.

The plaintiff then offered witnesses who proved, that having inspected it with a spy-glass, the alteration was from 1810 to 1809. Plaintiffs also proved that Cayetano Perez was commandant at Mobile in 1810.

The defendant further gave in evidence that he had made valuable improvements on the lot sued for since the 8th day of January, 1836, to the value of $7,000; whereupon the plaintiffs, by their counsel, prayed the court to charge the jury, First, that the said Spanish grant made to William Pollard was ratified and confirmed by the 8th article of the treaty of amity, settlements and limits, between the United States and his Catholic Majesty, dated 22d February, 1819, which charge the court refused to give; to which the plaintiffs, by their counsel, excepted.

The plaintiffs then, by their counsel, prayed the court to charge the jury that the act of Congress of 26th May, 1836, confirmed the said Spanish grant to Pollard; which charge the court refused to give, but on the contrary, charged the jury, if they believed the evidence to be true, the fee-simple to the premises sued for were vested in Forbes and Company, and that the acts of Congress of 1824 and 1836, and the patent in pursuance thereof, were utterly void, so far as relates to the premises in question, and that no title vested in the lessors of plaintiff by virtue of said acts of Congress and said patent; to which charge the plaintiffs excepted.

The plaintiffs, by their counsel, then prayed the court to charge the jury, that if they should find that an alteration had been made in the date of Pollard's Spanish grant, advantage could not be taken of it in an action of ejectment, but by a sci. fa. in the name of the general government, or a bill in equity; which charge the court refused to give, but, on the contrary, charged, that if they should believe that the date had been altered, that they should find for the defendant, unless they were satisfied from the evidence that, though altered, it was made in fact whilst Perez was commandant; that the alteration of the date would not affect the grant if Perez was commandant at the time of the execution; but that if altered, the law would not presume that the grant was made while Cayetano Perez was commandant, but that this must be shown by the evidence; to which charge, so given, and the refusal to charge as prayed, the plaintiffs excepted.

The plaintiffs then prayed the court to charge the jury, that the act of January 8th, 1836, passed by the legislature of Alabama, entitled 'An act for the relief of tenants in possession, against dormant titles,' is contrary to the tenth section of the first article of the Constitution of the United States, and is therefore void; which charge the court refused to give, but, on the contrary, charged that it is constitutional; to all which the plaintiff excepted, and prayed the court to sign and seal this his bill of exceptions, which is done.

It has been before stated, that this opinion of the court was affirmed by the Supreme Court of the state of Alabama. The following extract from the opinion of the latter court, is given, in order that the remarks made by the Supreme Court of the United States may be fully understood.

'If the law, as laid down by a majority of the court, in the Lessee of Pollard's heirs v. Kibbie, 14 Pet., 353, is to be regarded as decisive of the law applicable to the plaintiff's title, and as excluding all objection to it, then the answer given by the Circuit Court to the second charge prayed is confessedly erroneous. Of the authority of that case we have nothing to say. We may, however, be permitted to remark, with all deference, that we should yield to it more willingly, if it had the sanction of a majority of the Supreme Court. We are aware that, as reported, the judgment seems to have been concurred in by five of the justices; but we have in our possession a manuscript copy of the opinions of Justice Thompson, McLean, Barbour, and Catron, and the judgment that was rendered; at the foot of which is the following memorandum: 'Dissenting justices, Catron, Barbour, and Wayne. Mr. Chief Justice Taney did not sit in this case.' Attested as follows, 'Ture copy, test. Wm. Thos. Carroll, C. S. C., U. S.' That Mr. Justice McKinley was absent during the entire term, appears from a note of the reporter. If the attestation of the clerk be correct, then but four of the justices concurred in reversing the judgment of this court. And to all this, it may be added, that Mr. Justice McLean did not agree to the judgment of reversal, so far as we are informed by his opinion, upon the ground that the grant to William Pollard in 1809 was a 'new grant' within the meaning of the act of the 26th of May, 1824. But he yielded his assent to the conclusion of Mr. Justice Thompson (as we understand it), because the second section of that statute required the improvement to be made on the lot east of Water street, and to entitle the proprietor of the lot, immediately west of the water-lot, the improvement should have been made by himself. These were questions, which, it seemed to us, were wholly unimportant to be considered, unless Pollard's was a 'new grant,' since it is an undisputed principle, that the plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversary's.

'We have taken this view of the case referred to, with the most profound respect for the Supreme Court of the United States, and have only to say, that we hope an opportunity may soon be ...


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