Brown v. . Smathers

126 S.E. 22, 188 N.C. 166, 1924 N.C. LEXIS 32

• Court: Supreme Court of North Carolina
• Decided: September 10, 1924
• Status: Published

Opinion

Adams, J.

The appeal presents the two questions, whether the land in controversy, or any part of it, was subject to entry on 20 July, 1796, when the grant to George Lattimer was issued, and whether the disputed boundary of the land set apart to the Cherokee Indians under the act of 1783 (1 Potter, 435) extended southeast from Cold Mountain along the crest of the Blue Ridge to the southern boundary of the State, as adjudged, or southwest to the State line, as contended by the plaintiffs. The defendants say that the locus in quo is a part of the land allotted to the Indians, that it was not subject to entry at the date of the Lattimer grant, and that Lattimer therefore acquired no title. The plaintiffs contend that in 1794 the General Assembly, by a statute “amending and explaining” the act of 1783, authorized - the entry and grant of the disputed land, and that in any event 75 acres of it, situated south of the Blue Ridge, were outside the reservation, and hence not within the inhibition on which the defendants rely. The parties have agreed that whatever title Lattimer acquired by his grant is vested in the plaintiffs, and that if the State conveyed no title to Lattimer the title to the land in suit is vested in the defendants, who claim under grants issued pursuant to legislation following the treaty of 1819. By this agreement proof of a complete chain of title, or of possession under color, is made immaterial. As the defendants assail the Lattimer grant, it is essential to inquire into the relation that existed between the State and the Cherokee Indians at the time the entry was made and the grant was issued.

When the maritime powers of Europe discovered this continent they found it necessary to establish some principle by which, as between themselves, their respective rights should be determined, and they agreed that “discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession.” Accordingly, Great Britain granted charters to certain subjects who were associated for the purpose of carrying into effect the policy of the crown; and while these charters, or some of them, purported to convey the soil, they were generally understood to transfer only such title as the sovereign might rightfully convey. This, said Chief Justice Marshall, was the exclusive right of purchasing such lands'as the natives were willing to sell. Fletcher v. Peck, 6 Cranch, 87, 143; 3 Law Ed., 162, 180; Worcester v. Georgia, 6 Peters, 515; 8 Law Ed., 483. So, before the Revolution, the colonists dealt with the Indians as a tribe or nation capable of holding property, and entered into treaties with them, defining their respective rights; but after the renunciation of colonial dependence, the soil was declared to be the property of the people who composed the State. And, although the policy of observing treaties “secured by any former or future legis: lature” was enjoined by the Constitution of 1776 (Declaration of Rights, sec. 25), North Carolina, after this time and before the adoption of the Federal Constitution, had the inherent right, except as affected by the Articles of Confederation, to conclude treaties with Indians living within her borders. Weston v. Lumber Co., 163 N. C., 78. The Indian title, unless otherwise defined, was thus treated as a mere possessory right, or right of occupancy, unquestionable until it was extinguished by treaty, conquest, or voluntary cession. If extinguished, the title reverted to the State, for all “lands lying within the boundary of the State, acknowledged by the Federal Government when received into the Union, must remain the lands of the State until she cedes them away.” Strother v. Cathey, 5 N. C., 162; Eu-che-lah v. Welsh, 10 N. C., 155; Danforth v. Wear, 9 Wheaton, 673; 6 Law Ed., 188; Fletcher v. Peck, supra, p. 143; Brown v. Brown, 103 N. C., 222, 223; S. c., 106 N. C., 454.

In 1777 tbe General Assembly opened a land office and prescribed tbe method by wbicb land in tbe several counties should be entered by citizens of tbe State. 1 Potter, 274. This act, repealed, reinstated, and several times amended, was followed by others setting forth more definitely tbe right of entry and grant pertaining to lands east and west of tbe mountains. 1 Potter, 274, 354, 372, 405, 408, 413, 415, 461, 463. At this time all that part of tbe region west of tbe Alleghanies wbicb is now embraced within tbe boundaries of Tennessee was at least nominally under tbe jurisdiction of North Carolina. It was ceded by tbe Legislature to tbe United States in 1784 (1 Potter, 457), but tbe act was repealed and tbe matter was postponed until 1789, when a second act of cession was passed. 1 Potter, 599, cb. 299. In 1796 Tennessee was admitted into tbe Union, and a part of tbe Indian lands described in tbe act of 1783 was situated within tbe present boundaries of that State. This act (1 Potter, 435) provided (section 5) that tbe Cherokee Indians should have and enjoy a tract of land bounded as follows: “Beginning -on tbe Tennessee where tbe southern boundary of this State intersects tbe same nearest tbe Obickamawga towns, thence up tbe middle of tbe Tennessee and Holstein to tbe middle of French Broad, thence up tbe middle of French Broad Eiver (which lines are not to include any island or islands in tbe said river) to tbe mouth of Big Pigeon Eiver, thence up tbe same to tbe bead thereof, thence along tbe dividing ridge between the waters of Pigeon Eiver and Tuckasejah Eiver to tbe southern boundary of this State.” Tbe section further provided that this land should be “reserved unto tbe said Cherokee Indians and their nation forever, anything to tbe contrary notwithstanding.” In section 6 it was enacted that no person should enter and survey any lands within tbe bounds thus reserved, and that all such entries and grants should be utterly void. 24 State Eecords, 478; Tbe Code, secs. 2346, 2347.

Tbe defendants contend, not that tbe Lattimer grant is void upon its face, but that tbe closing lines of tbe land described in section 5 extend from the bead of Pigeon Eiver along tbe Balsam range to tbe Tennessee Bald, thence along tbe Tennessee ridge to Cold Mountain, and thence southeast with tbe Blue Eidge to tbe southern boundary of tbe State; that tbe entire locus in quo lies within tbe reserved territory, and that tbe Lattimer grant was issued without authority of law. Tbe plaintiffs admit that all tbe land in controversy is west of tbe Meigs and Freeman line, and that so much thereof as lies north and west of tbe Blue Eidge (about 1,025 acres) is within tbe Indian boundary. If tbe part on tbe south of tbe ridge (75 acres) is within tbe Indian reservation, it must be disposed of in like manner with tbe remainder of tbe disputed land.

Insisting upon the validity of tbe Lattimer grant, the plaintiffs contend that the act of 1783 (construed in Avery v. Strother, 1 N. C., 558, and Strother v. Cathey, supra) was amended or superseded by the “four-line statute” of 1794, which is as follows: “An act to explain and amend an act entitled ‘An act to empower county surveyors to make surveys and returns in the manner therein mentioned.’ Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, that all the lands in this State lying to the eastward of the line of the ceded territory shall be deemed and considered as coming within the meaning and purview of the said act.” 1 Potter, 763, ch. 422.

The plaintiffs specifically contend that this statute was both amenda-tory and declarative; that it did not include all the land described in the act of 1783 or the land ceded to the United States, but that it did embrace all the land in the State situated east of the ceded territory, and not merely the portion reacquired in 1791 by the treaty of Holston.

The act of 1784 provided that surveyors might survey two or more entries as one (24 State Records, 565; 1 Potter, 458), and we now refer to it only to observe that even if the boundaries therein described cove the land reserved for the Indians by the act of 1783, there is no repeal of the fifth and sixth sections; and as the former act can operate upon lands not reserved, these sections cannot be held to have been repealed by implication. Lattimer v. Poteet, 14 Peters, 4, 14; 10 Law Ed., 328, 333.

The purpose and effect of the act of 1794, supra, have been pointed out in previous decisions. It was not referred to in Brown v. Brown, 103 N. C., 213. There it was held that land situated between Wolf and Tennessee creeks, within the original Indian boundary, was not subject to entry, and that even if the Indian title had been extinguished by treaty and reacquired by the State, it was yet the province of the Legislature to determine by statute how the State’s title should be disposed of. As research had failed to discover a statute containing such a provision, the plaintiff’s grant was held to be void. Upon considering a petition to rehear (103 N. C., 221) the Court held that the “four-line statute” of 1794, previously overlooked, embraced all the region in this State “lying to the eastward of the line of the ceded territory” (the Tennessee line, Mendenhall v. Cassells, 20 N. C., 43; Brown v. Brown, 103 N. C., 224) which had not been specially devoted to some particular purpose, and that its object was to subject to entry the land acquired from the Indians by the treaty of Holston. Powell’s Report of the Bureau of Ethnology, 158. The former judgment was therefore reversed and a new trial directed. After the second .trial, the case was again brought to this Court (106 N. C., 451), and it was then held that the treaty of Holston, wbieb was concluded 2 July, 1791, extinguished the Indian title to all lands east of the treaty, line, the true location of which had been in dispute. The boundary began at the top of the Currahee Mountain and ran thence “a direct line to Túgalo Eiyer, thence northeast to the Occunna Mountain, and over it, along the South Carolina Indian boundary to the North Carolina boundary, thence north to a point from which a line was to be extended to the Clinch Biver,” etc. It is contended that the last of these calls is designated on the map as the Hawkins line. But in the case last cited the Court held that the Legislature had power to construe the treaty and to declare where the disputed boundary was situated, and that the line theretofore in doubt was fixed and made certain by the Meigs and Freeman line. Powell’s Report, supra, 174. In the opinion it was said: “The Meigs and Freeman line ascertained and fixed the hitherto uncertain line of boundary between the State and the Indians, and the line thus settled, so far as the State or any one claiming under it is concerned, ought not to be reopened. It does not change the Holstein or any other Indian treaty line, but the State had a right for itself, and all claiming under it, to say and settle where the true boundary line was, and this having been done by the act of 1809, the question should be at rest.” 2 Potter, 1161, ch. 774.

The land in controversy is situated west of the Hawkins line and of the Meigs and Freeman line; and if we adhere to the former decisions of the Court we must hold that all that portion which is west of the Meigs and Freeman line and north and west of the Blue Bidge and within the Indian boundary (about 1,025 acres) was not subject to entry at the time the Lattimer grant was issued, and that the grantee acquired no title thereto.

But the plaintiffs say that the last appeal in Brown’s case (106 N. C., 451) did not present the question whether the Allison grant was valid or void. Why not ? Because, it is said, the Court remarked that the objections to the validity of the Allison grant “on its face” had been withdrawn. This indicates a misconception of the opinion, for it was further said that as the plaintiff had to rely upon seven years possession it was necessary to consider only those exceptions which related to the sufficiency of the grant to take the title -out of the State, and to the sufficiency of possession under color of title. Possession of the land for seven years under color would have availed nothing in the absence of a valid grant. Whether the grant was valid was therefore one of the decisive questions, concerning which the Court said: “We think it settled in this case (103 N. C., 221) that the Allison grant was valid to convey the State’s title to the lands embraced therein lying east, and not west, of the Meigs and Freeman line.” In other words, the land which was within the Indian boundary described in the act of 1783 and east of the Meigs and Freeman line was made subject to entry and grant by the act of 1794. Contrary to the plaintiffs’ suggestion, it is. perfectly obvious that this conclusion cannot be treated as a mere dictum, either in the opinion of Mr. Justice Davis (106 N. C., 451) or in that of Mr. Justice Merrimon upon the petition to rehear (103 N. C., 221).

In the next place, the plaintiffs contend that a part of the locus in quo (75 acres) lies south and east of the Blue Ridge, was not within the Indian boundary of 1783, and was therefore subject to entry and grant, without regard to the “four-line statute.” Here the question is whether his Honor was correct in adjudging that the last lines of the boundary hereinbefore set out extended from the Tennessee Bald to Cold Mountain and thence with the ridge in a southeastern direction to the southern boundary of the State, for it was held in the first of the Brown cases (103 N. C., 218) that the treaty of Holston did not repeal or modify the statute forbidding the entry of land within this boundary. In their briefs the parties admit that the line extends from Tennessee Bald to Cold Mountain, but the plaintiffs contend that it runs from Cold Mountain to Great Hog Back, thence in a westerly direction along the ridge to the southern boundary of the State. This, the plaintiffs contend, is the main ridge, exceeding in altitude that along which the defendants say the line runs. They insist, moreover, that this ridge reaches the thirty-fifth parallel of latitude, which in 1783 was the southern boundary of the State, and that the ridge set out in the judgment falls short of the thirty-fifth parallel by eleven or twelve miles. Constitution of 1776, Declaration of Rights, sec. 25. This is true, but at that time the parallel referred to was generally assumed to be twelve miles north of its true position, and the assumed position was afterwards declared to be the southern boundary of the State. Powell’s Report, supra, 182; 2 Potter, 997, 1013, 1062, 1131, 1280, 1318. Besides, if it be granted that the thirty-fifth parallel was the southern boundary, this fact, while a circumstance to be considered, would not necessarily be fatal to the judgment. Sandifer v. Foster, 2 N. C., 237; Shultz v. Young, 25 N. C., 385; Long v. Long, 73 N. C., 370; Power Co. v. Savage, 170 N. C., 625; Millard v. Smathers, 175 N. C., 56.

The appellants’ contention that the ridge extending to the west from Cold Mountain divides the waters of the Tuckaseegee and of Pigeon River may be applied with equal if not greater force to the eastern ridge, as may be seen by reference to the map.

In the absence of controlling facts to the contrary, we apprehend that a proper interpretation of the act of 1783, defining the Indian reservation, requires that the last call be run from Cold Mountain to the State line in the shortest available direction which conforms to the description of the land. In Campbell v. Branch, 49 N. C., 313, it is said: “Where the object designated has a considerable extension- — as in the case of a river, swamp, or the line of another tract of land — then the disputed line must be run to 'the nearest point on said river, swamp, or line of another tract.” With no less force should the principle apply when the designated' object is a State boundary. So, if it be conceded that both ridges answer to the description — “thence along the. dividing ridge between the waters of Pigeon Biver and Tuckaseegee Biver to the southern boundary of the State” — nothing else appearing, the line should run to the nearest point in the State line. The line, if run from Cold Mountain to the southwest, in accordance with the plaintiffs’ contention, will be almost twice the length of the line which the trial judge approved as the proper boundary. Upon this point, also, we think the judgment of the lower court is correct.

The plaintiffs refer to several treaties entered into prior to the Declaration of Independence to show that the Indians had not been permitted to occupy territory south and east of the Blue Bidge after 1730. Minute discussion of the several treaties is not essential, but we may say that, after inspecting them, we are unable to concur in this conclusion.

The defendants have not appealed, and their reference to the act of 1794, as construed in Brown v. Brown, supra, upon the petition to rehear, need not he considered.

We find no error in the judgment.

Affirmed.