CLOVES V. KEATTS. VOL. 18 tram the shore on which his own land was situated. The complainants allege that they are entitled to a valid, legal preemption to:a certain tract of land lying upon the bank of the Arkansas river: that the land has been illegally selected, uader a grant by Congress, for the use of the Territory of Arkansas, and a patent issued by the general g ivernment; that the complainants have filed a bill against the State of Arkansas and others to cancel the patent and for possession 9f the land which is now pending: that the defendants, with full knowled4e of the complainants' right, have obtained possession of the bank of the river aud now have a public ferry there; and praying that they account to the cons-plainants for the rents and profits of the ferry, and deliver possession, etc. Held that, in no view, does the bill present any case for relief. Appeal from the Circuit Court of Pu-laski Ciunty in Chancery. ON. WIL LIAM H. FEILD, [*20 .H Circuit Judge. Fowler, for the appellants. Watkins & Gallagher, for the ap-pellees. SCOTT, J. This case was brought here by appeal from the chancery side of the Pulaski circuit court. The appellants filed a bill, alleging a pre-emption right in the heirs of Cloyes, to the northwest fractional sec. 2, in township 1, north of range 12 West-That, before the same was consummated, Governor Pope, under the pretended and assumed authority of an act of Congress, granted one thousand acres of land to the territory of Arkansas for the erection of a court house and jail .at Little Rock, selected, illegally, and by mistake both of law and of fact, or arbitrarily or fraudulently, as a part of said grant, the aforesaid fractional quart,er section. That, in pursuance of said selection, a patent was afterwards issued by the general government CLOYES ET AL. to the said Governor, for the use of the V. *territory, for the lands so selected [*21 BEATTS ET AL. by him, including said fractional quar-A valid preemption right to the land lying on ter, under which the Governor for the one bank only of a river, does not entitle the own-use aforesaid, took possession of the er to the exclusive privilege of keeping a public fer-land so patented, and under pretended ry—such right, accompanied by possession, would authority of law disposed of it. That, entitle him, under the restrictions in chapter 69, Digest, to the privilege of having a public ferry in April, 1843, the appellants filed their
JULY TERM, 1856. CLOYES V. KEATTS. bill in the Pulaski circuit court, against enjoined from ever hereafter interfer-the State of Arkansas, William E. ing therewith; and for general relief. Woodruff and others, to cancel said *The appellees demurred to the [*22 patent, to estaulish more fully the title bill, and the court below sustaining of the appellants to said fractional the demurrer, dismissed it, and the ap-'quarter, and to quiet and give the pos-pellants appealed to this court. session of the same to them, and for It is insisted on behalf of the appel--other purposes: which bill, although lants that, inasmuch as they allege in diligently prosecuted, is still pending. their bill a valid preemption right, That the entire northern boundary which the demurrer admits, they are of said fraction is upon the Arkansas entitled to the exclusive privilege of river, a large, navigable and unford-keeping a public ferry from the shore able stream. That the right and priv-of the river on which the land in ques-ilege of keeping a public ferry thereon, tion is situated. -and the ferry rights and privileges at-The statute does not so provide. tached to, and pertaining to said frac-Exclusive ferry rights are, in general, tion of land to the m Odle of the stream, allowed only to those who own the -are the sole and exclusive right and land, or have possession of it by pre-property of the appellants, both at law emption right, or settlement, on both and in equity. That the same is of the opposite banks of the river; and even value of at least twenty-five hundred such persons cannot be allowed a li-dollars per annum. cense to keep a public ferry uuless the That the appellees, with full knowl-county court shall be satisfied that the edge of the appellants' rights in the public convenience will be promoted premises, in April, A. D. 1850, and thereby; and not even then, if within without authority from them, unlaw-one mile above or below a ferry is al-fully took possession of the whole of ready established, except at, or near the bank of said river, to the full ex-cities or towns. (Digest, chap. 69, sec. tent of said fraction of land, and of all 2, 7, 20).' Where oue owns the land, the rights and privileges pertaining or has possession of it by preemption, thereto, and by various appliances, ob-on one side of the river only, he may, tained from some court a license to under the above restrictions, have the keep a public ferry thereon, and from privilege of a public ferry ficm his own that time until the present, have con-shore, with that of landing his boat tinued to hold such possession, and to and passengers on the opposite shore, keep such public ferry, and receive all and making' the landing and road the emoluments and rents aud profits there, and keeping the same in repair. arising therefrom, although often re - But in the case before us, the appel-quested to surrender such possession, lants fail to allege with their preemp-and to pay such profits to the appel-tion right, any such possession: on the lants. And, praying that the appel-contrary, they expressly allege, as to lees may be made parties defendant to the lawful possession of the land, that the bill. That they may be required to Governor Pope entered upon it under answer it. May be made to account, the patent to him from the general and by decree made to pay to the ap-government; and that they, them-pellants, whatever sum they have re-selves, have been disseized, and received, or ought to have received; and main so: and the possession of the land to deliver to the appellants the posses-is a part of the specific relief, that they sion of said river bank, and the said 1. See L. R. & Ft. S Ry. v. McGehee, ferry privileges, and that they may be 41-209 and 25 Rep. cases cited.
VoL. 18. pray may be decreed to them, so as to relief are not already embraced in the enable them by its union with their appellants' bill, now pending against alleged preemption, to apply for a li- those holding under the patent, for its cense to keep a public ferry. cancellation, and other relief, the chan-In the absence of any allegations in cellor will, doubtless, hear them here-the bill to the contrary, these appel- after, should he determine, after full lees may b cp presumed to be in the pos- hearing, that the patent shall be can-session of the bank of the river, to the celed, or that the title obtained under extent of the fraction of land in ques- it shall enure to the benefit of these ap-tion, as alleged, either in virtue of pellants. owership, or of a preemption right Finding no error in the record, the coupled with possession of the lands on decree of the court below will be affirm-the opposite bank of the river, and a li- ed. cense to keep a public ferry, from the Cited:-20-565; 26-467i 41-209. 234] *proper court, founded thereupon: or in virtue of the patent and alleged possession thereunder, obtained by Governor Pope, and regularly transmitted to them. And in no view, does the bill present any case for relief. Because, in equity the rents and profits pertaining to the fractional quarter section of land, including any arising from lawful ferry privileges attached thereto, or issuing thereout, belong to the lawful owner of the land; and according to the bill, that ownership is now in litigation between the appellants and the State of Arkan-sas, William E. Woodruff aud others, who hold under an outstanding patent from the general government. And to allow these appellants to recover, according, to their specific prayer, the possession of this land and the rents and profits sought, under such circumstances, would be not only to allow them to recover upon the weakness of their adversaries' title, so far as this suit is concerned, but to recover moneys which the chancellor may ultimately find belonging to parties claiming under the patent, whom the appellants have not thought proper to make parties to this suit. The chancellor does not thus do things by halves, or grant relief to parties when it is uncertain, according to their own showing, whether or not they are entitled to it. If these points for
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.