The plaintiff claims under a military warrant, issued to one of the officers of the Virginia line, on continental establishment; and the defendant, under a purchase made from the United States, subsequent to the emanation of the plaintiff's grant. The first question made in the cause is, whether the land in controversy be within the Virginia reserve. The words are, that if the quantity of land reserved, on the south-east side of the Ohio, "for the Virginia troops on continental establishment, should prove insufficient for their legal bounties, the deficiency should be made up to the said troops, in good lands between the Scioto and Little Miami." In 1790, Congress passed an act," in which, after reciting that the agents for the troops of Virginia had reported, to the Executive of that State, that there was a deficiency of good lands in the territory reserved on the south-east of the Ohio, and, after directing the Secretary of War to make a return to the Executive of that State of the number of officers, non-commissioned officers, and privates, who served in the Virginia line on continental establishment, it is enacted, "that it shall and may be lawful for the said agents to locate, to and for the use of the said troops, between the rivers Scioto and Little Miami, such a number of acres of good land, as shall, together with the number already located between the said two rivers, and the number already located on the south-easterly side of the river Ohio, be equal to a2 U. S. L. 179. 1824. Doddridge V. Thompson. 1824. Doddridge V. Thompson. the aggregate amount so to be returned, as aforesaid, by the Secretary of the Department of War." In June, 1794, Congress passed another act on this subject, declaring that every officer and soldier of the Virginia line, on continental establishment, entitled to bounty lands, between the Scioto and Little Miami rivers, "shall, on produeing the warrant, or a certified copy thereof, and a certificate under the seal of the office where the said warrants are legally kept, that the same, or a part thereof, remains unsatisfied; and on producing the survey, agreeably to the laws of Virginia, for the tract or tracts to which he or they may be entitled, as aforesaid, to the Secretary of the Department of War, such officer and soldier, his or their heirs or assigns, shall be entitled to, and receive a patent for the same, from the President of the United States." Under these acts the plaintiff's patent was issued: It is not, we think, to be questioned, that under the reserve contained in the cession act of Virginia, and under the acts of Congress which have been recited, the whole country lying between the Scioto and Little Miami was subjected to the military warrants, to satisfy which the reserve was made, and any part of it might be surveyed for any person holding such warrant. What is the extent of this country? The plaintiff contends, that it is the territory between the Ohio, into which both rivers empty, and a line to be drawn from the source of the main u2 U. S. L. 440. branch of one river to the source of the main branch of the other, and the rivers themselves, from their sources to their mouths. The Scioto is a much longer river than the Little, Miami, and the defendant has suggested, that the country reserved may be limited by the Ohio on one side, and a line drawn from the source of the Miami to the Scioto, which shall be parallel with the Ohio, on the opposite side. But this suggestion has not been pressed; and the idea it conveys, is directly opposed to the words of the reserve, and the construction which has been uniformly given to the deed of cession by both the contracting parties. The territory lying between two rivers, is the whole country, from their sources to their mouths; and if no fork of either of them has acquired the name, in exclusion of another, the main branch, to its source, must be considered as the true river. Any other rule would be arbitrary, depending on caprice, not on principle; and the whole legislation of Congress upon the subject shows, we think, a disposition to be guided by this reasonable rule. We are relieved from the inquiry respecting the main branches of these rivers, by the case agreed, which finds a map, certified by the commissioner of the land office, dated the 26th of February, 1820; and that a line on the said map, marked and thereon described as Roberts' line, represents a line extending from the source of the Little Miami to the source of the Scioto, and that the sources of both rivers are truly shown thereon. Admitting this line to con Itute the true boun 1824. Doddridge V. Thompson. Doddridge V. 1824. dary of the military reserve, the land in controver By lies within it; and the plaintiff's patent would, consequently, be valid, if it depended entirely on Thompson. the original deed of cession, and the acts of Congress which have been recited. But the defendant's counsel contends, that as the plaintiff's title was to be derived from the government of the Union, it must have been obtained conformably to the laws of the United States, or is invalid. It has been very truly observed, that, while the government of the Union is to be considered as holding the territory ceded by Virginia, in trust for the officers and soldiers of the Virginia line, so far as the reservation for their benefit extends, it is also to be considered as holding the lands not reserved, in trust for the nation; and as being bound by its high duties to execute that trust. Congress, therefore, found it necessary to provide for the sale of the territory not included within the reserve; and its laws made for this purpose may control, and have controlled, the original rights of the military claimants, and have established a line between the sources of the Scioto and Little Miami, different from that for which the plaintiff contends. Without questioning the power of the government, the Court will proceed to inquire whether Congress has passed any law, contracting the military reserve within narrower limits than are prescribed by the deed of cession, as herein construed, or has made any provision which, in any manner, affects the plaintiff's grant In May, 1785, Congress passed "an ordinance for ascertaining the mode of granting lands in the V. Thompson. western territory," in which; for the purpose of sc- 1824. curing to the officers and soldiers of the Virginia Doddridge line, on continental establishment, the bounties granted them by that State, it is ordained, "that no part of the land between the rivers called Little Miami and Scioto, on the north-west side of the river Ohio, be sold, or in any manner alienated, until there shall first have been laid off and appropriated for the said officers and soldiers, and persons claiming under them, the lands they are entitled to, agreeably to the said deed of cession, and act of Congress accepting the same." In May, 1796, Congress passed an act for the survey and sale of these lands, directing the appointment of a Surveyor General, whose duty it should be "to survey and mark the unascertained outlines of the lands lying north-west of the river Ohio, and above the mouth of the river Kentucky, in which the titles of the Indian tribes have been extinguished, and to divide the same in the manner hereinafter directed." The 2d section enacts, "that the part of the said land which has not been already.conveyed," &c., " or which has not been heretofore, and during the present session of Congress may not be, appropriated for satisfying military land bounties, and for other purposes, shall be divided," &c. This law, then, which gives to the Surveyor General his authority to survey the country generally, and to lay off the lands as prescribed in the act, excludes from this general authority all lands pre a 2 U. S. L. 533. |