Richard Charles Downes v. William S. Scott, 3 Rob. 84

Garland, J. The petitioner alleges that he is the legal owner and possessor of the undivided half of a tract of land,.containing 133t|¥ acres, situated on both sides of Brushy bayou,;being lots Nos. 1 and .3, of

section No. 6, in township No. 16-north, range No. 13 east, which land was patented by the United States, as a pre-emption right, to Elijah Evans and Levi Blakey, as tenants in common, and not as joint tenants. He avers that, by the laws of the United States, it is required that lands so situated and purchased, shall be divided between the co-proprietors or tenants in common, by a north and south, or east and west line.

He states this land must be divided by a north and south line, in order to give each party the improvements of his vendors, the original settlers ; and that he is the legal owner of the portion which includes the site of the original settlement of the patentee Elijah Evans, which is on the east half of said land.

It is further represented that the defendant Scott is in possession of the west half, and of part of the east half of the said land ; that he has enclosed and is cultivating some of the land belonging to the petitioner (from ten to twelve acres), by doing which the petitioner has sustained damage to the amount of $350. He alleges that he has frequently desired the defendant to divide the tract by a north and south line, which he refuses to do.

The petition concludes with a prayer, that the land may be divided by a north and south line ; and that the complainant be decreed to be the legal owner and possessor of the east half; and that Scott pay him ,$350 as damages.

The defendant, in his answer, admits that the plaintiff is the owner of an undivided half of the land, which he says is in two distinct lots, as staled in the patent; avers that he is, and always has beemwilling, to divide the land by a north and south line, but that he objects to throwing the two lots together, and dividing them as a whole, by a continuous north and south, or east and west line. He alleges that he has frequently desired the plaintiff to divide each lot by a north and south line, but that the plaintiff refuses so todo.

He joins in the prayer for a partition according to law ; prays for $200 damages from the plaintiff for instituting a vexatious suit against him, and for costs. The case was tried by a jury. It was shown by the public suryeys, 'that, in consequence of a considerable stream running through the section, the north half was not, as in other sections, divided into two equal quarters, but into three lots of irregular shapes, and containing unequal quantities.

Lots 1 and 3 adjoin each other, the former being a slip of upwards of a mile front on the north side of the bayou, with very little depth at one extremity, and less than a half a mile at the other. The superficial quantity, is 60t85;V acres. Lot No. 3 is nearly triangular, lying on the south side of the bayou, and so far as it fronts thereon, is opposite to lot 1 ; and contains 72/5%- acres.

It is proved that, by dividing the land by a continuous north and south line through the two lots, the plaintiff would have on the east side of the line nearly twice as much land as the defendant would have on the west, as well as much the largest portion of the cleared land ; and that his share would be more valuable than the other by $300. It was also shown that lot No. 3 is subject to inundation, and that by dividing it as desired by the plaintiff, much the largest proportion of the overflowed land would fall to the defendant’s share.

It is proved that by dividing each lot equally by a north and south line, each party will have his houses in lot No 1 on the north side of the bayou, and have his portion of No. 3 opposite ; but that the fronts will not be exactly the same. The jury found that, the lots Nos. 1 and 3 should be divided separately in equal portions, by a line running north and south.

After overruling a motion for a new trial, the court ordered the lots to be partitioned separately, by running a north and south line through each, so as to divide each lot into equal portions, and appointed a surveyor to run the division lines and return an account of his operations into court, on or before the first day of the succeeding1 term ; and ordered the plaintiff to pay the costs up to that time. From this judgment he has appealed.

The application for a new trial was based on the misdirections of the judge in his charge to the jury, on the verdict being contrary to the law and evidence, and, lastly, on the ground that it was void for uncertainty, as it does not definitely specify whether the plaintiff is to have the east or the west half of the land.

The judge charged the jury that the act of Congress, relating to pre-emption rights, passed on the 29th of May, 1830, was not applicable to the case before them ; that it had no effect as to the partitioning of lands, sold to settlers on the same quarter section, or fractional quarter, after a patent had issued ; that such partition must be made in conformity to the laws of the State and the principles of equity and justice; and that the object of the act was to entitle two settlers on the same quarter

section or fractional quarter, to the benefit of a float, or claim for eighty acres of land elsewhere. To this charge, the plaintiff excepted.__ We are of opinion that the judge did not essentially err. The language used by him does not exactly express our ideas, but the conclusion we have come to is the same.

We are of opinion that, after the United States have sold, and given a patent for a tract of land, the property is vested in the citizen entitled to the patent, and that the State laws operate on it precisely as on all other property, except as to taxation or other special exception ; and that for effecting a partition, the laws of the State and the contract of the parties, are,, as in other cases, to control. The act of Congress under which Blakey and Evans purchased the land, formed the contract between them, as to the quantity which each was to have.

The principal objects of that contract were, first, to give each party the portion of land on which his house and improvements were situated ; secondly, to give, as nearly as possible, an equal quantity to each. The course of the lines is a secondary consideration, and intended only as a means of effecting the principal objects. An equality of value in the portions does not seem to have been considered as important, and is not included in the contract.

Courts, in ordering a partition between two original pre-emptors, or those holding under them, will look to the act of Congress as containing, in relation to regular quarter sections, the primary intention of the parties, as to the direction of the lines ; but in relation to a fractional, or as the Commissioner of the General Land Office calls it, an anomalous survey, the rule does not apply; and the judge was, therefore, correct, in directing the jury that the act of Congress was not to govern them absolutely.

We can easily imagine two improvements to be so situated on a fraction of land, that neither a north and south, nor east and west line, would give each an equal quantity, and his improvements. In such a case, the line must take some other direction, or the land could never be divided in kind. An examination of the act of Congress will show, that there is nothing mandatory in it, even to its own officers. It is directory only in its operation on the rights of individuals, and is not so unbending as to compel the perpetration of

an act of gross injustice. D. Bradford, and Copley, for the appellant. No counsel appeared for the defendant. A perusal of the evidence satisfies us that the jury decided in conformity to it, and to the principles of law and justice. The plaintiff complains that the verdict is indefinite and uncertain, as it does not state whether he is to have the east or west portion of the lots, when divided. The verdict and judgment might have been somewhat more definite in this;respect; but when we look at the whole case, we think the parties will mot probably lose any of their rights from the cause complained of.

It has long been settled by this court, that the verdict of a jury must always be understood and construed with reference to the pleadings, and will always be considered as responding to the issues made by them. 5 Mart. 456. 3 La. 70. When we refer to the petition, we see that it is stated that the plaintiff is entitled to the eastern portion of the land. He states that his buildings and improvements are on it; and that the defendant’s are on the western part, if the line be run north and south. The defendant claims in the same way, and says the same thing.

It will be somewhat strange, if the parties misunderstand each other and their rights, when they agree in theif statements as to the position of each. But should any mistake be likely to arise, we do not doubt that the District" Judge will, when the procés-verbal of the surveyor shall be returned into court, state distinctly which portions .of the lots of land the plaintiff is to have. We are of opinion that a division of each lot of land into equal portions by a north and south line, is legal and just; and, therefore, affirm the judgment with costs. This act provides : Sect. 2.

That if two or more persons be settled upon the same quarter section, the same may be divided between the two first actual settlers, if, by a north and south or east and west line, the settlement or improvement of each can be included in a half-quarter

section ; and in such case the said settlers shall each be entitled to a pre-emption of eighty acres of land elsewhere in said land district, so as not to interfere with other settlers having a right of preference.