Doe v. Mahana
THIS case was brought up by writ of error from the Circuit Court of the United States for the southern district of Ohio.
It was an ejectment brought by Dickins's lessee to recover a lot of one hundred acres, being number eight in the donation tract, Marietta district, Ohio, in township nine, range eleven, in the district of lands subject to sale at Chillicothe, formerly in the Marietta district.
In 1849, the office was removed from Marietta to Chillicothe; and in transcribing the book, the words 'school land,' which were written in the Marietta book upon the plat of the land in question, were omitted in the Chillicothe book. Perhaps this was the origin of the controversy.
Upon the trial in the court below, Dickins's lessee made out his title as follows, viz:
1. A patent issued to Samuel A. H. Marks, on July 1, 1851, which included the lot in question.
2. Conveyances from Marks to the plaintiff.
The defendant claimed under a lease from the trustees of Windsor township, Morgan county, which is composed in part of fractional township nine, range eleven, in the district of lands now subject to sale at Chillicothe, being formerly in the Marietta land district. It was admitted that he had been in possession from the year 1834, claiming to hold the same as school lands belonging to said township nine, range eleven.
The whole question, then, depended upon the inquiry whether this lot had been set apart as 'school land,' according to law.
The difficulty arose from the circumstance that this part of the country was not included in the general land system, under which the land reserved for schools is at once ascertained, without the possibility of mistake. But, in 1792, the grant to Putnam and others required that they should lay out the land in lots of one hundred acres each; and as part of it had been settled in that way, it became necessary to lay out the unsettled residue, which reverted to the United States, in lots also of one hundred acres, in order to conform to existing settlements.
In 1818, these reverted lots were ordered to be sold, with the exception of the usual proportion for the support of schools, which the Secretary of the Treasury had the power to select. In order to make out his title, and show that his lot was amongst those thus selected and reserved from sale, the defendant introduced a great deal of record evidence, which it is not necessary to insert in this report, because the decision of this court was, that all that matter should have been left to the jury. They were the proper tribunal to decide whether or not the facts in evidence justified the presumption that the Secretary had selected this lot as 'school land.' The court decided that this was a legal presumption, and, upon this point, the judgment was erroneous.
The court also erred in deciding that, under the act of 1818, the register had power to select the 'school lands.'
Under the instructions of the court, the jury found the defendant not guilty, and judgment was entered for him.
The plaintiff sued out a writ of error, and brought the case up to this court.
It was argued by Mr. Coombs and Mr. Vinton for the plaintiff in error, and by Mr. Hanna for the defendants.
The precise question decided by this court-that is, that the jury were to decide upon the presumption of the land being selected as school land according to law, and that it was not a question for the court-was not argued by the counsel; and it is not thought necessary to report their arguments, either for or against the presumption.
Mr. Justice CATRON delivered the opinion of the court.