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Reddall v. Bryan et al.

under the laws of the United States, and therefore no appeal lies to this court under the 25th section of the Judiciary act.

THIS case was brought up from the Court of Appeals of Maryland by a writ of error issued under the 25th section of the Judiciary act.

The case is stated in the opinion of the court, and is reported in 14th Maryland Reports, pages 470, 471.

It was argued by Mr. John S. Tyson and Mr. Mayer for the plaintiff in error, and by Mr. Stanton (Attorney General) for the defendants.

Mr. Chief Justice TANEY delivered the opinion of the Court. This is a writ of error to revise the decree of the Court of Appeals of Maryland, affirming a decree of the Circuit Court for Montgomery county, in that State.

This case, as it appears on the record, is this:

The bill in equity of the plaintiff in error, filed in the Circuit Court for Montgomery county, in Maryland, alleges that the defendants have trespassed on land of his in Montgomery county, in Maryland, digging it up and erecting abutments and structures for an aqueduct, and so breaking up and dividing the land as to render it incapable of tillage, and inflicting great and irreparable damage upon the complainant; and that the defendants meditate, for completing the aqueduct, still further damage, of the same aggravated character, to the land, by digging to great depths of twelve to fifteen feet, and at other points raising embankments and building walls, and in conducting through the land a large and constant stream of water, for the sole use of the aqueduct.

The bill further states that the defendants claim to thus act under authority of the Executive of the United States, unsanctioned, however, as the bill alleges, by any action of Congress, and for supplying water to the cities of Washington and Georgetown, and under color of an act of the Legislature of Maryland, (session of the year 1853, chapter 179,) purporting to authorize the United States "to purchase land in Maryland

Reddall v. Bryan et al.

for so supplying water, through construction of dams, reservoirs, buildings, and other works," and in case of sale not being agreed by owners, to allow the United States to adversely appropriate to herself the land, by condemnation and on valuation, to be effected in manner as provided in case of the Chesapeake and Ohio Canal Company's occasions for land and materials for that company's works.

The bill also avers that no such purchase was authorized by Congress, nor any attempt ever made on behalf of the United States toward an agreement for the purchase of complainant's lands, and insists that these pretended sanctions of the act of the Maryland Legislature, and of the United States Executive, are repugnant to the Constitution of the United States and of Maryland, and that the land is thus intruded on for no public purpose of Maryland, nor for any connected with the United States as such, and of a Federal character, nor even so declared in the Maryland act of Legislature, or in any action of Congress. And the bill prays injunction, to prevent the trespass and encroachments complained of from being carried on. The Circuit Court refused the injunction, and from the order of refusal, the plaintiff appealed to the Court of Appeals. That court affirmed the order of the Circuit Court and remanded the case.

From this decision of the Court of Appeals, the case is here upon writ of error.

It is evident, from this statement, that the appeal to this court cannot be sustained. In the first place, the decree of the Court of Appeals merely affirms the decree of the inferior court, and remands the case. It is, therefore, still pending, and there is no final decree. And although the State of Maryland in her own courts may authorize an appeal from such an interlocutory order, it cannot affect the jurisdiction of this, which is governed by the act of Congress, and that act authorizes the writ of error only in cases where there is a final decree or judgment.

In the second place, we do not see in the plaintiff's bill any right claimed under the laws of the United States. On the contrary, the claim is against the rights asserted by the United

Sheirburn v. Cordova et al.

States, and exercised by the agents of the Government under its authority; and even if there had been a final decree by the dismissal of the bill, in addition to the refusal of the injunc tion, we perceive no ground upon which the writ of error could be maintained under the 25th section of the act of 1789. It is therefore dismissed for want of jurisdiction.

JOSEPH A. SHEIRBURN, PLAINTIFF IN ERROR, v. JACOB DE COR

DOVA AND OTHERS.

By a statute of Texas, actions of ejectment, trespass to try title, &c., can be maintained upon certificates for head rights or other equitable titles.

But this court has decided that, in the courts of the United States, suits for the recovery of lands can only be maintained upon a legal title.

A plaintiff in the court below, who had nothing more than an incipient equity, could not therefore maintain his action.

THIS case was brought up by writ of error from the District Court of the United States for the western district of Texas.

The bill of exceptions contained the evidence of the title of Sheirburn, the plaintiff, when the defendants objected to the admissibility of said locations and entries because the same were vague, uncertain, and indefinite, and also because surveys thereon were not returned to the General Land Office; but the court overruled said objections, and the defendants excepted thereto. The plaintiff's here closed.

The objection made in this court, viz: that the plaintiff could not maintain the suit upon a head right in the court of the United States, did not appear to have been made upon the trial; but the question seemed to turn upon the validity of the title of the defendants, which was sustained; and upon that ruling the plaintiff brought the case up to this court.

It was argued by Mr. Hale for the plaintiff in error, and Mr. Paschal for the defendants, both on printed arguments.

Mr. Paschal thus brought forward the objection upon the judgment of this court turned:

which

Sheirburn v. Cordova et al.

1. That the plaintiff showed no standing in court-no such title in himself as would enable him to attack the mere naked possession of the defendants, much less their valid paper titles. The plaintiff showed nothing but a mere incipient equity-a naked entry-which of itself, without a survey, according to the decisions of this court, did not detach the land from the public domain.

See Vaughan v. Chesnut, 2 Wash. C. C. Rep., 160. This case held that the mere entry was not property subject to sale.

In the case of Lessee of Sims v. Irwin, 3 Dallas, 425, (which was a great case,) the subject of entries and surveys was fully discussed, and after great difficulty the court arrived at the conclusion, that in Pennsylvania, the entry payment and survey might constitute a legal title. And in Dubois v. Newman et al., 4 Wash., 77, Mr. Justice Washington refused to go one step further.

Therefore, the mere entry in Texas could give the plaintiff no standing in a court of law, unless it can be deduced from the twenty-first section of the Texas statute of limitations.

Acts of the Republic, vol. 5, p. 163; Hartly's Digest, art. 3,230.

As in Texas there is a mixed jurisdiction of law and equity, the right to support trespass to try title there may well exist, without it following, from the reasoning in the cases cited, that the holder of this mere incipient equity can support ejectment upon the common-law side of the Circuit Court of the United States. Such a right has no standing in a court of law.

Hart v. Turner, 2 Tex., 374.

It could only be used by one mere locator against another. But, if the second locator had first obtained a survey, owing to a want of diligence in the first, then he has no right to question De Cordova's title.

See Dubois v. Newman, 4 Wash., 76.

The history of the statute is, that the location or survey was made color of title, as a defence under the sovereignty of the soil, coupled with three years' actual possession.

See 15th section of the Texas statute of limitations.

Sheirburn v. Cordova et al.

An amendment was added, enabling the locator to support an action to protect his location. But this must have had reference to the location upon vacant land, just as the mere possessor, who is judicially turned out, may maintain ejectment against the naked trespasser. It cannot be that a locator upon appropriated land can maintain an action at law upon such an equity, in order to test the validity of the first patent. Such a doctrine is contrary to principle.

Christy v. Scott, 14 Howard, 282.

Dubois v. Newman, 4 Wash., 76.

Mr. Justice CAMPBELL delivered the opinion of the court. This was a suit by the plaintiff to recover a parcel of land in the county of Guadalupe, in the State of Texas. The title of the plaintiff consists of certain entries of head-rights embracing the land in dispute. One of these is in these words: Joseph A. Sheirburn, assignee of Victor Ed. Gaillon, enters one-third of a league of land, situated on a noted island, about six miles above the town of Walnut Springs, and extending on the main laud on the northeast side of the Guadalupe river for quantity; the said location is also a short distance below a very elevated mound on the west of the river. Certificate 222. Harrisburg county, October 16, 1838. In January, 1853, the plaintiff applied to the district surveyor of Guadalupe county for the survey of this and other land embraced in the entries, who declined to execute the surveys, but it is admitted that the entries cover the land in controversy. The defendants relied upon a Mexican grant, issued in 1831 in favor of Antonio Maria Esnourizar, for eleven leagues of land, and which embraces the same land. The District Court pronounced this grant to be a valid appropriation of the land described in it, and the plaintiff alleges that there is error in that decision.

By a statute of Texas, "all certificates for head-rights, land scrip, bounty warrants, or any other evidence of right to land recognised by the laws of this Government, which have been located or surveyed, shall be deemed and held as sufficient title to authorize the maintenance of actions of ejectment, trespass, or any other legal remedy given by law." Hart.

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