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U.S. Supreme Court

Lessee of Binney v. Chesapeake * Ohio Canal Company, 33 U.S. 8 Pet. 214 214 (1834)

Lessee of Binney v. Chesapeake * Ohio Canal Company

33 U.S. (8 Pet.) 214


The declaration in ejectment was dated on 22 May, 1831, and the judgment was rendered on 14 January, 1832. The plaintiff in ejectment counted on a demise made by Arnos Binney on the 1st day of January, 1828. His title, as shown in the abstract, commenced on 17 May, 1828, which is subsequent to the demise on which the plaintiff counted. By the court: "Though, the demise is a fiction, the plaintiff must count on one which, if real, would support his action."

The counsel for the defendants insisted that if the cause could not be decided on its supposed real merits, it ought to be remanded to the circuit court for the purpose of receiving such modifications as will bring before this Court those questions of law on which the rights of the parties depend. By the Court:

"Where error exists in the proceedings of the circuit court which will justify a reversal of its judgment, this Court may send back the cause, with such instructions as the justice of the case may require. But if in point of law the judgment ought to be affirmed, it is the duty of this Court to affirm it. This Court cannot with propriety reverse a decision which conforms to laws and remand a cause for further proceedings."

An action of ejectment was commenced in the circuit court by agreement, on 14 January, 1832. The declaration counted on a demise from the lessor of the plaintiff dated 1 January, 1828, for the term of fifteen years. The declaration was afterwards amended by adding,

"a demise from John K. Smith and a demise from the heirs of Amos Cloud (their names to be left in blank or considered as properly instituted in the record) and another from John Way."

The following agreement, signed by the counsel for the plaintiff, was also filed in the circuit court.

"The plaintiff's title depends on the title papers herewith shown to the court, the due authentication of which is admitted, viz., the patents for Amsterdam and White Haven and the several mesne conveyances, decrees, &c., from the patentees down to the plaintiffs, and it is admitted that the plaintiff's lessor, J. K. Smith, was in possession in June, 1812, when the condemnation hereinafter mentioned was made of the

Page 33 U. S. 215

land comprised within said condemnation, and that it is a part of the said two tracts of land."

"It is admitted that the Potomac Company, in the year 1793, condemned certain lands, as appears by their said inquisition and condemnation and plot hereto annexed, for their canal and locks through the aforesaid tracts of land, and other adjacent tracts as noted on said plot."

"And it is admitted that on 23 June, 1812, an inquisition was held and condemnation had by said company, as appears by the papers hereto annexed, and it is admitted, that the location of the land so last condemned, and the new locks erected thereon, and the old locks erected on the land condemned as aforesaid, in 1793, is truly shown by a plot thereof made out by Thomas F. Percell and William Bussard, hereto annexed."

"And it is further admitted that the Potomac Company, after said respective condemnations, entered upon the lands so condemned and erected thereon the locks as shown in the said plot, and continued in possession until transferred to the defendants, the Chesapeake & Ohio Canal Company, which latter company has continued in possession ever since."

"Upon which case agreed it is submitted to the court to say 1st whether the plaintiff has shown title, and 2d, whether the condemnation of 1812, aforesaid, divested the plaintiff's title and gave a valid title to the Potomac Company."

"It is agreed that all the papers, plots, &c., mentioned and referred to in the aforegoing case agreed may be omitted in the record of this case and may be used in the Supreme Court as if contained in the record."

The circuit court gave judgment for the defendants, and the plaintiff prosecuted this writ of error.

Page 33 U. S. 216

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