BARCLAY V. HOWELL'S LESSEE, 31 U. S. 498 (1832)

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U.S. Supreme Court

Barclay v. Howell's Lessee, 31 U.S. 6 Pet. 498 498 (1832)

Barclay v. Howell's Lessee

31 U.S. (6 Pet.) 498


Ejectment. The declaration described the property for which the suit was instituted as "lying between Water Street and the River Monongahela, with the appurtenances, situate and being in the City of Pittsburgh." The jury found a general verdict for the plaintiff, and the defendants assigned for error that the verdict, being general, is void for the want of certainty. By the Court:

"This must be considered as an exception to the sufficiency of the declaration, as any other matter embraced in it might have been considered on a motion for a new trial, but cannot now be noticed."

Formerly it was necessary, to describe the premises for which an action of ejectment was brought with great accuracy, but far less certainty is required in modern practice. All the authorities say that the general description is good. The lessor of the plaintiff, on a lease for a specific number of acres, may recover any quantity of less amount.

The plaintiffs in error, defendants in ejectment in the circuit court, claimed for the City of Pittsburgh a slip of land lying on the bank of the River Monongahela near the junction of that river with the River Alleghany, being a space between the southern line of the lots of the city and the Monongahela River. It was contended by them that this slip of land was dedicated by the surveyor, when he laid out the town, to the public as a street or

for other public uses. The depositions of witnesses who were present when the ground on which the city stands was laid out in lots by the surveyor, authorized so to do by the proprietors of the land, were offered to prove declarations of the surveyor, made to persons assembled at the survey and who occupied part of the ground so laid out, by which declarations and other acts of the surveyor, also proposed to be proved, it was contended the said dedication was made, i.e. that he had observed that "the street," the slip of land,

"to low water mark, should be for the use of the citizens, and the public, forever." By the Court:

"The surveyor had authority to fix upon the plan of the town and survey it. He had the power to determine the width of the respective streets and alleys, the size and form of the lots, to mark out the public grounds, and to determine on everything so far as related to the town and its beauty, convenience, and value. These were clearly within the scope of his powers, as they were essentially connected with the plan of the town, on which he was authorized to determine at his discretion. The proof of such declarations should have been admitted by the circuit court, because, under the circumstances, they formed a part of the transaction."

The declarations of a surveyor which contradict his official return are clearly not evidence, nor ought they to be received where he has no power to exercise discretion, as explanatory of his return, while he is still living, and may be examined as a witness.

If the ground in controversy in the ejectment had been dedicated for a particular purpose and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery to compel a specific execution of the trust by restraining the corporation, or by

Page 31 U. S. 499

causing the removal of obstructions. But even in such a case, the property dedicated would not revert to the

original owner. The use would still remain in the public, limited only by the conditions imposed in the grant.

The right of the court to decide on the legal effect of a written instrument cannot be controverted, but the question of boundary is always a matter of fact for the determination of the jury.

It is the province of the court, in an action of ejectment, that it should fix the boundaries of the tract in controversy by an examination of the whole evidence.

Artificial or natural boundaries called for control a call for course and distance.

An unmolested possession for thirty years would authorize the presumption of a grant. Under peculiar circumstances, a grant has been presumed from a possession less than the number of years required to bar the action of ejectment by the statute of limitations.

By the common law, the fee in the soil remains in the original owner where a public road is made upon it, but the use of the road is in the public. The owner parts with this use only, for if the road should be vacated by the public, he resumes the exclusive possession of the ground, and while it is used as a highway, he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found below it. He may bring an action of trespass against anyone who obstructs the road.

Where the proprietor of a town disposes of all his interest in it, he would seem to stand in a different relation to the right of soil, in regard to the streets and alleys of the town, from the individual owner over whose soil a public road is established and who continues to hold the land on both sides of it. Whether the purchasers of town lots are in this respect the owners of the soil over which the streets and alleys are laid as appurtenant to adjoining lots, quaere.

In some cases, a dedication of property to public use, as for instance a street or public road, where the public has enjoyed the unmolested use of it for six or seven years, has been deemed sufficient for dedication.

This was an ejectment originally instituted in the District Court for the Western District of Pennsylvania, and removed to the Circuit Court for the Eastern District under the Act of Congress of March 3, 1821, the judge of the Western District having been counsel in a former ejectment involving the same matter in controversy.

The defendant in error, the plaintiff below, claimed in the declaration

"one messuage, a lot, or piece or parcel of land, lying between Water Street and the River Monongahela, with the appurtenances situate and being in the City of Pittsburgh."

MR. JUSTICE Baldwin did not sit in this case, he having been of counsel for the defendant in error, in the circuit court.

The cause came on for trial at the Circuit Court for the Eastern

Page 31 U. S. 500

District of Pennsylvania at the April term, 1829, and the jury found a general verdict for the plaintiff in the ejectment. The defendants prosecuted this writ of error.

On the trial, a bill of exceptions was tendered by the defendants to the ruling of the circuit court, as to the introduction of certain evidence and also to several of the matters contained in the charge of the court, all which are particularly stated in the opinion of this Court.

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