Jackson ex dem. Sparkman v. Porter.

Court when the proceedings are pending, and if this was a matter resting in the discretion of the District Court, it cannot be corrected or controlled either by a mandamus or writ of error.

But the motion in this case is denied on the ground that this Court has not authority to issue the mandamus applied for.

Motion denied.

T. A. EMMET and T. WOOD for the plaintiff.

J. LYNCH for the defendant.

JACKSON EX DEM. SPARKMAN v. AUGUSTUS PORTER.

In ejectment, possession accompanied with a claim of ownership in fee, is prima facie evidence of such an estate. In such case it is not the possession alone, but that it is accompanied with the claim of the fee which gives this effect, by construction of law, to the acts of the party.

But such effect is limited to the claim actually made, and a claim of a different kind cannot afterwards be set up for the purpose of aiding the first. As where one claimed title by an Indian deed, confirmed by an agent of the British government, who could not lawfully have confirmed it; it was held, that no other kind of confirmation and no other deed could be set up to help the possession; and that any presumption of the existence of a deed was to be confined to such an one as was originally asserted.

Whether a deed is to be presumed from a long possession, is a mixed question of law and fact, and in most, if not all cases, to be submitted to the jury, under the advice of the Court. The existence of the deed is a fact for the jury, but its legal effect and operation a question of law for the Court. The seisin of lands belonging to the Indian tribes is in the sovereign, and the Indians are mere occupants. A purchaser from them can acquire only the Indian title, and they may resume it, and make a different disposition of it.

Jackson ex dem. Sparkman v. Porter.

Where proclamation had been made by the governor of the colony of New-York, under orders from the king, that no purchases of land should be made of the Indians, it was held, that a purchaser could not acquire even the Indian title of occupancy.

An occupaut under an Indian grant, the Indians having afterwards resumed the title, and granted it to the crown, was held to be a tenant at will of the king, whose occupancy no length of time could ripen into a title, by adverse pos

session.

Where one enters into land having title, his seisin is not bounded by his actual possession, but is co-extensive with his title. But where he enters without title, his seisin is confined to his possession by metes and bounds. The circumstances that one took possession of unoccupied land, as contractor, to transport for the government to and from a fort on the frontiers, and that his claim comprehended the fort itself, as well as the land around it, and that his improvements were necessary in the performance of his contract, considered evidence that he did not hold in hostility, but in subordination to the rights of the crown.

How far a party who gains possession by force, can, in an action of ejectment, protect himself by setting up a title to the land? Quere.

Under the second article of the treaty with Great Britain of 1794, the precincts and jurisdiction of a post are not to be considered as extending three miles in every direction by analogy to the jurisdiction of a country over that distance of the sea surrounding its coasts, but they must be made out by proof. This clause in the second article of the treaty, providing that settlers within such precincts shall be protected in the enjoyment of their property, as well as the 9th article, were intended to protect-legal and equitable interests in land, and not trespassers and intruders without right.

ERROR to the District Court of the Northern District of New-York.

This was an action of ejectment brought to recover the possession of certain lands near Niagara falls, which the lessors of the plaintiff claimed under an Indian grant, but which the defendant held from the state. At the trial in the Court below a nonsuit was granted, to which the plaintiff excepted, and the bill of exceptions was now argued in this Court.

The lessors of the plaintiff, John Sparkman and Susannah his wife, who were British subjects, claimed the premises in

Jackson ex dem. Sparkman v. Porter.

question in right of the wife, Steadman, who died in 1822.

of John Stedman, who died in

as heir to her uncle, Philip He was the brother and heir 1808.

It appeared, from the testimony of the plaintiff's witnesses, that John Stedman, as early as the year 1764, resided at Fort Schlosser, where there was a portage on the east side of Niagara falls, being engaged in transportation along the river to Lewiston for the British government, to which he had an exclusive right by contract. The premises about which testimony was offered form a triangle, the base of which is opposite the acute angle formed at the falls by the river, and strikes the river a mile above, and several miles below the falls, the river forming the other two sides, and the whole tract containing about 5000 acres. The lessors of the plaintiff attempted to support their right, both on the ground of the lost Indian deed and of adverse possession. The evidence was much more clear as to the extent of the land claimed by virtue of the deed, which appeared to be the whole tract, than as to that part of it which had been in the actual possession of John Stedman and those holding under him. A part of this tract was called by some of the witnesses the Stedman farm; but the testimony about its extent was very various, some witnesses calling the whole tract by that name, and others re ducing it to about 600 acres, situated about the fort and above the falls. The defendant was clearly in possession of 100 acres claimed by virtue of the deed, but how far his possession was within that part to which the plaintiff endeavoured to make out a possessory title, was extremely uncertain.

Fort Schlosser was situated on the river a mile above the falls, and Stedman's house in 1764 was near the fort. In 1769 he had about 40 acres improved, and a house, store, and stables. In 1772 he had 100 acres cleared, 40 acres of which were near the falls, where the defendant's saw-mill now is. He then lived in a large house, 30 rods below the fort, which

Jackson ex dem. Sparkman v. Porter.

he had built the year previous. He had also a saw-mill near where defendant's now is. He soon after cleared up all the land along the river, from the falls to the fort. In 1777 he built a log-fence from his house across to the river below the falls, two miles and one half long, enclosing between the fence and river 2000 acres for an ox range. In 1783 it appeared that he resided on lands now possessed by the defendant. All the premises he had latterly claimed to be his, by virtue of a deed from the Seneca tribe of Indians, given to him by way of compensation for damages they had done him in 1763, and confirmed by Sir William Johnson as superintendent of Indian affairs. Evidence was offered by the plaintiff to prove that there was a tradition among the Seneca Indians that such a deed had been given, and of the circumstances which led to the giving of it; but this evidence was rejected by the Court. An instrument dated 1805, purporting to be a solemn acknowledgment and declaration by the Seneca nation, that such a deed had been given, was also offered in evidence, and rejected.

In 1786, Philip Stedman, the brother of John, was in possession, claiming under him. There were then 150 or 200 acres cleared. In 1788 Philip Stedman, jun., the brother of Mrs. Sparkman and nephew of the elder Philip, was in possession, and continued in possession for some years, but how long did not exactly appear. He then left the premises and died, while travelling in Connecticut for his health, in 1798. In 1792 the improved lands extended from above the house down the river, below where the defendant's present saw-mill is, and back from the river 50 to 100 rods. There was also a sawmill out of repair 10 rods above where the defendant's gristmill now is. When Philip Stedman, jun. left the premises, he rented them to a tenant, who was succeeded by Ware, who is still in possession. The two Philips continued to transport for the British government until 1792, when the

Jackson ex dem. Sparkmaq v. Porter.

portage was removed to the other side of the river. On the death of his nephew, Philip Stedman, the elder, came over from England to see the property, which was rented by the present tenant, Ware, and in 1800 returned to England, leaving Ware in possession.

The premises, together with fort Schlosser, where there had been constantly a garrison of twenty men, remained in the possession of the British government until 1796, when they were, agreeably to treaty stipulations, surrendered to the United States.

Sir William Johnson was from 1755 to 1774 superintendent of Indian affairs, and it was his duty to hold treaties with them, and superintend purchases of land from them. In 1762 he received instructions from the lieutenant-governor of NewYork, that the king had forbid that any land should be purchased of the Indians, either by the governor or any other person, and that all applications to purchase should be sent home to the king. In 1764 the Indians ceded the whole of the premises in question to the king.

The tenant Ware continued in possession, holding under the Stedmans, and for the purpose of protecting the possession until 1806, when the Sheriff in his absence removed his furniture from his house, and piled it about ten rods distant. His wife and children went to a tavern across the road, and defendant took possession of the house. It appeared that several persons were residing at this time on the premises claimed by the plaintiff, some of whom were pretty large farmers.

The plaintiff gave in evidence the admissions of the defendant, that in 1805 the defendant and one Barton had petitioned the legislature and got a patent, covering a part of the Stedmans' cleared fields, and also got a lease under the authority of the state, of the farm where Ware lived, and tried to compromise with him and get him off, but as they could not succeed, they got an act passed to turn him off.