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Dissenting Opinion

United States Supreme Court

55 U.S. 268

Vincennes University  v.  Indiana

THIS case was brought up from the Supreme Court of the State of Indiana, by a writ of error, issued under the 25th section of the Judiciary Act.

The manner in which the case arose, and the laws relating to it, are stated in the opinion of the court.

It was argued by Mr. Juddah, with whom was Mr. Dunham, for the plaintiffs in error, and Mr. O. H. Smith, for the State of Indiana.

The counsel for the plaintiff in error contended:

1. That the effect of the reservation in the act of Congress passed in 1804, was a grant.

The defendant, and Judge Smith, of the Supreme Court of Indiana, assert that this is not a grant, because there was not a grantee in esse; and that the reservation could only become effectual to pass the title by an appropriation, to be made by Congress, or under its authority.

In Wilcox v. Jackson, (13 Peters, 498,) this court, at page 512, define 'appropriation' as follows: 'That is nothing more nor less than setting apart the thing for some particular use.' And afterwards, in the same case, (page 513,) the court say: 'But we go further, and say, that, whensoever a tract of land shall once have been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law, of proclamation, or sale, would be construed to embrace it, or operate upon it, although no reservation was made of it.'

Was the Gibson township so appropriated? It was reserved for a special purpose. It was located in pursuance to the reservation. Was there any thing more necessary to set it apart for the particular use?

But, say the counsel for the State and Judge Smith, though appropriated, it was not granted, because there was no grantee in esse.

If, as a general rule, it is true, that there cannot be a grant without a grantee in esse, it is as true that there are exceptions.

A grant, in case of a charity, or of the dedication of land to a public use, is good without a grantee in esse. Town of Paulet v. Clark, 9 Cr. 292; Beaty v. Kurtz, 2 Pet. 566; Cincinnati v. White, 6 Pet. 435; and in Vidal v. Girard's Executors, 2 How. 127; at pages 192, 193, it is stated, that donations given to the establishment of colleges, &c., are charities in the sense of the common law.

2. That the territorial legislature had the power to apply to use the township appropriated by Congress, and did apply it by the act of incorporation.

The counsel for the State of Indiana made the following points:

First. The complainants have no such corporate existence as would authorize and empower them to sue. 2 B. A. 482, note a, last edition; and see the extracts from their records in evidence.

Second. The suit is barred by the statute of limitations. R. S. 1843, pp. 795, 799; Act of 1845-6, explanatory of Rev. Stat.

Third. The suit is barred by twenty years adverse possession, as the State, and those claiming under the State by purchase and lease, had held adversely more than twenty years before any suit was brought by the University to recover the possession, even if the former actions which were dismissed could aid this suit, which is denied.

Fourth. The case does not come within the principles of an executory devise, and would not avail the complainants even if it were an executory devise. 17 Serg. & Rawle, 88; 5 H. & J. 392; 9 Ohio, 203; 12 Mass. 537; 16 Pick. 107; 3 Pet. 101; 4 Dana, 355; 3 Pet. 146; 9 Ves. 399; 9 Mass. 419; 7 Ves. 69; 9 Ves. 399; 10 Ves. 522.

Fifth. The act of Congress of 1804, was a mere reservation from sale, to be afterwards appropriated to educational purposes, and neither vested the same in the complainants, nor divested the United States of the legal title. P. L. L. 104; 2 McLean R. 416; P. L. L. 2d part, 69; 1 Johns. R. 303; 9 Johns. R. 74; Wright's Ohio R. 144.

Sixth. The case does not embrace the principles of a dedication to public or pious uses, so as to sustain this claim. 2 Pet. 566; 6 Pet. 431, 498; 6 Paige, 639; 6 Wend. 667; 4 Paige, 510; 7 Ohio, 219.

Seventh. The act of Congress of 1816, vested the legal title to these lands in the State of Indiana, as a trustee, with power to direct to what object or institution, being 'a seminary of learning,' the trust fund shall be applied; and the State, having designated the State University, at Bloomington, as the 'seminary of learning' to which the trust fund shall go, the complainants have no claim whatever, either in law or equity, against the State, the trustee of the fund. See act of Congress of 1816, act of 1818, and the several acts for the admission of the other new States into the Union.

Eighth. The doctrines of estoppel, in their most rigid application, can only permit the complainants to retain what they have already received, and for this the State will not contend.

Ninth. In any and all events, the funds were public funds, and the legislature of the State had competent authority to change their direction to any other seminary of learning at will. Had the funds been the private funds of the complainants, and had they been vested with them, there might have been some pretext for the assumption, that the acts of the Indiana legislature, endowing the State University, were unconstitutional. 4 Wheat. 430; 4 Pet. Con. Rep. 536.

Mr. Justice McLEAN delivered the opinion of the court.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).