Thompson v. Schlater

delivered the opinion of the court.

' This is an action for slander of title. The plaintiff alleges that he is the owner and proprietor of a tract of land fronting on the Mississippi River, having seventeen arpents front, with the depth thereto belonging, and also of one other tract of land, adjoining to and back of the former, which he acquired by purchase from the government of the United *117States, on the fourteenth day of June, 1836, the said plaintiff having at that time a pre-emption right to said back land by the laws of congress then in force. The petitioner further alleges, that notwithstanding the premises, the defendant has repeatedly slandered, and still continues to slander and defame his title, and bring it into disrepute, by pretending that said tract of land belongs to him, the said defendant, and not to the plaintiff; that the said defendant has entered upon the land, and has committed and still continues to commit waste, by cutting down, splitting, and carrying away timber. He prays that the defendant be enjoined from committing waste ; that the timber now cut down and split on the land in controversy be sequestered; that he may be forever quieted in his title, against the claims and pretensions of the defendant, and that the said defendant be adjudged to pay him damages.

The defendant and his warrantors deny the plaintiff’s allegations, and set up title to the land claimed, under a purchase from the United States, made on the 18th of December, 1833 ; they also deny the locus in quo ; pray for a survey; that the injunction and the sequestration be dissolved, and that the plaintiff be adjudged to pay them damages.

In the trial below, the parties abandoned their claim for damages ; judgment was given on the titles, in favor of the defendant, and after an unsuccessful attempt to obtain a new trial, the plaintiff appealed.

The evidence shows, that one George Sharp, under whom the defendant claims, purchased from the United States, at the time alleged, two tracts of vacant land, of which the land in controversy forms a part, and the chain of conveyance is admitted to be regular and complete; it is also admitted, that the title of the plaintiff to the front tract has been confirmed by the board of commissioners, and, it is proved that he purchased the land which he claims, as stated in the petition. From the foregoing statement, it appears that' the two parties to this suit have acquired, from the government of the United States, two adverse titles to the *118same tract of land, in apparent conformity with the dispositions of two acts of congress, and we are called upon to say which of said titles is to prevail. We know no other rule of right, where the sovereign is concerned, than that which would, under similar circumstances, govern the transactions of individuals; and we are of opinion that the sale to Sharp, being the first in date, divested, irrevocably, the United States of their right of soil, unless the plaintiff has shown that he had a right of pre-emption to the land claimed, at the time of the defendant’s purchase, and that it continued to exist, until he acquired his title.

The act of congress to authorize the inhabitants of the state of Louisiana to enter their back lands, approved on the 5th June, 1832, provides, “that any person owning land in Louisiana, bordering on a water course, and not exceeding in depth forty arpents, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to and back of his own tract, not exceeding forty arpents in depth, nor in quantity of land that which is contained in his own tractbut that act also expressly provides, that “ all notices of such claims shall be entered, and the money paid thereon, at least three weeks before such period as may be designated by the president of the United States for the public sale of the lands in the township in which such claims may be situated; and all claims not so entered shall be liable to be sold as other public lands." By an act approved on the 24th February, 1835, the time given by the former act was extended one year without any change being made in its provisions, and under this last act, the plaintiff entered and purchased the land in controversy; but previous to the 18th December, 1833, the period designated by the president of the United States, for the public sale of the lands in the township in which that claim is situated, had passed, the land had been offered at public auction, and not being then sold, George Sharp entered it on that day.

We are of opinion, that the act of Congress under which the plaintiff claims was not violated thereby ; the right of pre-emption was given to him, provided his claim was filed *119three weeks before the public sale of the land in that township, and not otherwise. If that land was offered for sale after the passage of the act of 1832, he lost the preference to which he was entitled, by his own negligence : if it was offered before the passage; of that act, he could no longer fulfil the condition upon which only the preference was given, and although he might, perhaps, enter the land in the form and shape of a double concession, he could not do so to the prejudice of previous entries.

If the act of 1832 had provided, that when the back lands had not been offered for sale, notice of the claim should be entered and payment made three weeks before the period designated by the president for that purpose, it would be a fair inference that the act was intended to apply to all back lands. But the wording of that act is clear, unambiguous, and without reservation. It says, “ all notices of such claims shall be entered," which cannot mean that only a part of them shall be entered.

Congress was aware of the situation of the public lands in Louisiana. They knew that part of those lands had been offered at public sale, and others not; if they imposed an impossible condition-to some of the front proprietors, it was because they did not intend that the privilege granted should extend to them.

The intention of congress is clearly shown by their former legislation on the same subject; the first act proprietors in Louisiana to enter their back lands, was passed in 1811, before Louisiana became a state, and before any of the public lands had been sold or surveyed; it was a valúa-ble privilege to landholders, at a time when there was no other mode of acquiring public lands ; but the reason of the law ceased after they had been offered for sale, because the front proprietors could then either buy them at the sale or ,. „ , . ,. , „ , , , enter them afterwards, and accordingly we find that the act of 1832 limits the right of pre-emption to the lands not yet offered for sale. The act of 1811, otherwise similar to that of M ti . . 183^5 did not contain that limitation. It gave to all front proprietors in Louisiana, and the plaintiff among the rest, a *120privilege to their back lands, provided the entry was made and the money paid within three years from the date of its passage; in l’S20 it was revived for two years, without any change. After the plaintiff failed to avail himself of those opportunities, after he neglected to purchase his back lands when they were offered at public sale, and suffered the defendant to enter them, he can have no just ground of complaint, for being deprived of a privilege, burthensome to others, and which he had enjoyed for, five years at two different times, without attempting to exercise it. Congress cannot, without injustice to the public, take better care of individuals than they chose to take care of themselves.

If the plaintiff had been entitled to a pre-emption under the act of 1832, he would have lost his right, by suffering the time allowed by that act to expire, without availing himself of its provisions. The sale to George Sharp took place while that act was in force, and it has been contended at the bar that it was a nullity, because the land which it purported to convey was at that time set apart and reserved for front proprietors. To test the correctness of this position, let us examine what would be now the situation of the defendant, if the plaintiff had never filed his claim ; he has paid for the land; he holds it by a sale from the United States, and by (,hat sale they pledge their faith that it shall not be sold to another. He is in possession, and could never be disturbed; we hold this to he a title. Had the act of 1832 been suffered t0 eXpire by jts 0wq limitation, the case supposed would have occurred. The revival of that act, for anotheY year, ought not, in our opinion, to affect the defendanthis vested rights cou^ not be taken from him by subsequent legislation. He acquired from the government a title which was to become indefeasible on the 15th of June, 1835, provided the plaintiff did not file his claim till after that date ; and the plaintiff filed his claim on the 14th June, 1836.

We are of opinion that the sale to George Sharp divested the United States of their right of soil, and that nothing passed under the sale subsequently made to the plaintiff.

*121It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.