Johnson v. Drew

by David Josiah Brewer

United States Supreme Court

171 U.S. 93

Johnson  v.  Drew

In September, 1886, defendant in error commenced an action of ejectment in the circuit court of the state of Florida, for the county of Hillsboro, to recover possession of a tract of land described as follows:

'Lot eight (8) of section nineteen (19), township twenty-nine (29) south, of range nineteen (19) east, and lot seven (7) of section twenty-four (24), in township twenty-nine (29) south, of range eighteen (18) east, containing about forty and nineteen onehundredths (40.19) acres.'

The defendant (now plaintiff in error) filed a plea of not guilty, and also a plea based on equitable grounds. A demurrer to this latter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff's title rested on a patent from the United States, issued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in controversy was, at the time of the location of the scrip, a part of Ft. Brooke military reservation, and was also in the actual occupancy of the defendant. The case came on for trial in September, 1889, and the defendant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient by the court, and the trial resulted in a verdict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, affirmed by the supreme court of the state (15 South. 780), whereupon the defendant sued out this writ of error.

The Valentine scrip act was passed April 5, 1872 ( 17 Stat. 649) and authorized the location of such scrip on 'the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided for in the United States land laws.' The patent to the plaintiff was issued September 30, 1882, and recited that it was upon a location of Valentine scrip, and in his equitable plea defendant averred that the patent was predicated upon an entry at the local land office of the United States at Gainesville, Fla. On August 18, 1856, congress passed an act (11 Stat. 87) containing this provision:

'That all public lands heretofore reserved for military purposes in the state of Florida, which said lans , in the opinion of the secretary of war, are no longer useful or desired for such purposes, or so much thereof as said secretary may designate, shall be, and are hereby, placed under the control of the general land office, to be disposed of and sold in the same manner and under the same regulations as other public lands of the United States: provided, that said lands shall not be so placed under the control of said general land office until said opinion of the secretary of war, giving his consent, communicated to the secretary of the interior in writing, shall be filed and recorded.'

At that time there was in existence what was known as the Ft. Brooke military reservation, near the town of Tampa, Fla. As appears from the testimony offered by the defendant, on July 24, 1860, the secretary of war wrote to the secretary of the interior as follows:

'War Department, July 24th, 1860.

'Sir: Referring to the correspondence between the two departments on the subject, I have the honor to inclose to you a report of the quartermaster general showing that Ft. Brooke is now in readiness to be turned over to the department of the interior, in pursuance of the arrangements made to that effect.

'Very respectfully, your obedient servant,

'John B. Floyd, Secretary of War.

'Hon. J. Thompson, Secretary of the Interior.' The inclosed report from the quartermaster general stated that all the movable property of the government had been sold, and that there was no reason why the military reservation should not be turned over to the interior department. Probably the exigencies of the war, which soon thereafter commenced, prevented any further action by either department, for on April 6, 1870, the following communication was sent by the secretary of war to the secretary of the interior:

'War Department,

'Washington City, April 6, 1870.

'The Honorable Secretary of the Interior-Sir: I have the honor to reply to a letter addressed to this department by the commissioner of the general land office on the 26th ultimo relative to the public lands occupied by this department for military purposes at Fort Brooke, Florida, and to inform you that there is no longer any objection to their disposition by the general land office, under the laws governing the subject.

'Very respectfully, your obedient servant,

'Wm. W. Belknap, Secretary of War.'

From the date of this last communication up to 1877, the record discloses no action by either department; but in January, 1877, the secretary of war requested that a military reservation at Ft. Brooke be declared and set apart by the executive. Subsequently, and on May 29, 1878, the secretary of war addressed a communication to the president, as follows:

'War Department,

'Washington City, May 29th, 1878.

'To the President-Sir: In accordance with recommendation of commanding general department of the South, concurred in by division commanders, I have the honor to request that a military reservation at the post of Fort Brooke, Tampa, Florida, with boundaries as hereinafter described, may be duly declared and set apart by the executive in lieu of the lands at that post reserved by executive order dated January 22, 1877, to wit: Beginning at the intersection of the line which bounds the town of Tampa on the south with the Hillsborough river, running thence along said line which bounds the town of Tampa on the south, and in prolongation thereof north, 68 degrees 45 minutes east, 2,976 feet; thence north, 4 degrees 28 minutes west, 2,342 feet; thence north, 38 degrees east, 1,052 feet; thence south, 52 degrees east, 459.2 feet; thence south, 38 degrees west, 1,052 feet; thence south, 4 degrees 28 minutes east, 1,931 feet; thence south, 5 degrees 29 minutes east, 2,007.2 feet, to the Hillsborough Bay; thence westerly, along the shore of Hillsborough bay and the shore of Hillsborough river, to the place of beginning,-containing 155 and one-half acres, more or less. A plat of the reservation and report and notes n d survey by Lieutenant James C. Bush, 5th artillery, are inclosed herewith. I have the honor to be, sir, with great respect,

'Your obedient servant,

'Geo. W. McCrary, Secretary of War.'

This request was approved, and the reservation was made and declared accordingly. The plat, notes, and survey referred to in this letter were not introduced in evidence, so that the exact boundaries of the reservation then ordered were not distinctly shown, nor can it be determined from the description in the letter alone whether it included the lands in controversy. In March, 1883, this last reservation was abandoned, and the land again turned over to the interior department. Defendant also offered a diagram, certified by the commissioner of the land office, of sections 18 and 19 of township 29, range 19, and section 24 of township 29, range 18, which, as the record recites, 'shows the contiguity of the land in question to that portion of the Ft. Brooke military reservation last relinquished by the secretary of war to the secretary of the interior.' The diagram is not very definite, and it is difficult to determine therefrom the boundaries of either the earlier or later Ft. Brooke military reservation. The defendant also offered evidence tending to show that he entered into occupation of the tract in controversy in 1871, and had continued in occupancy ever since.

Samuel Y. Finley, for plaintiff in error.

C. M. Cooper and J. C. Cooper, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

Notes