UNITED STATES SUPREME COURT DECISIONS ON-LINE

In an action of ejectment for the Hot Springs in Arkansas, wherein one party claimed title through a preemption claim which they were allowed to enter by the register and receiver, and the other party through a New Madrid certificate, the title of the United States not being drawn into question, the former party had the better title.

There was no regular survey and location of the New Madrid certificate until 1838, a prior application for a public survey in 1818 and certificate of a private survey in 1820 being irregular.

The act of Congress of April, 1822, required these locations to be made within one year from the date of its passage. Consequently, the right to locate the New Madrid certificate expired in April, 1823.

Nor does the act of 1843 support the survey of 1838, because it is not included within the provisions of the act.

Whether or not the title acquired under the preemption is valid is a question not now before this Court, because the case is brought up from the Supreme Court of Arkansas under the twenty-fifth section of the Judiciary Act, and the decision of that court was in favor of the validity of the action of the register and receiver, and moreover the opposing party cannot set up an outstanding title in the United States. In order to bring himself within the rule of that section, he must have a personal interest in the subject in litigation.

The claim set up under a prior preemption was of no value, the land having been reserved from sale when an offer to locate the preemption right was made. clubjuris

Page 63 U. S. 145

This was an action of ejectment brought by William H. Gaines and the other defendants in error against John C. Hale to recover the southwest quarter of section thirty-three, in township two south, of range nineteen west, containing one hundred and sixty acres. This claim was under the Preemption Act of Congress of the 29th of May, 1830, 4 Stat. 420, and the supplementary act of the 14th July, 1832, 4 Stat. 603

The defendant below Hale claimed to hold by virtue of the fifth section of the Preemption Act of the 12th April, 1814, 3 Stat. 122, together with the Act of 1 March, 1843, 5 Stat. 603.

The jurisdiction of this Court was therefore clear.

The action was brought in the Hot Springs Circuit Court (state court), which, after a trial, gave the following judgment:

"It is therefore considered by the court that said plaintiffs. William H. Gaines and Maria Gaines his wife, Albert Belding, Henry Belding, and George Belding, do have and recover of and from the said defendant, John C. Hale, as well the possession of the tract or parcel of land described in their declaration in this behalf, as all that part of a certain tract or parcel of land designated on the public surveys as the southwest quarter of section thirty-three, in township two south, of range nineteen west, which lies between a dividing line sometimes called Mitchell's line, heretofore established by one Milus H. Wood and said Hale, between their respective possession on said quarter section and the northern or upper line of a place in Hot Springs Valley, commonly called Texas, and which part of said quarter section of land includes and embraces all the buildings, houses, outhouses, bath houses, lots, enclosures, and gardens, connected with or pertaining to the tavern stand, sometimes and generally known as Hale's tavern stand, immediately below and south of the premises used and occupied by Warren & Stidham as a tavern stand during

Page 63 U. S. 146

the summer of the year 1851, and the said sum of five hundred dollars for their damages sustained in this behalf, and so as aforesaid assessed by the jury, as also all their costs in this behalf expended to be taxed &c. And it is ordered by the court, that said plaintiffs do have execution hereof, by writ of possession for said land and premises, with command by levy and collect the damages and cost aforesaid, as is by law in such cases provided."

In the course of this trial, sundry bills of exceptions were taken which, for the purpose of this report, it is not necessary to state particularly. Under them, the case was carried to the Supreme Court of Arkansas, which affirmed the judgment of the court below except as to a question of damages, which need not be further mentioned.

The case was brought up to this Court by a writ of error issued under the twenty-fifth section of the Judiciary Act. clubjuris

Page 63 U. S. 157