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OF

CASES

ARGUED AND ADJUDGED IN

THE

Supreme Court of the United States,

IN DECEMBER TERM, 1850.

BY BENJAMIN C. HOWARD,

Counselor at Law, and Reporter of the Decisions of the Supreme Court
of the United States.

JUDGES

OF THE

SUPREME COURT OF THE UNITED STATES

DURING THE TIME OF THESE REPORTS.

The Hon. ROGER B. TANEY, Chief Justice.
The Hon. JOHN M'LEAN, Associate Justice.
The Hon. JAMES M. WAYNE, Associate Justice.
The Hon. JOHN CATRON, Associate Justice.
The Hon. JOHN M'KINLEY, Associate Justice.
The Hon. PETER V. DANIEL, Associate Justice.
The Hon. SAMUEL NELSON, Associate Justice.
The Hon. LEVI WOODBURY, Associate Justice.
The Hon. ROBERT C. GRIER, Associate Justice.

JOHN J. CRITTENDEN, Esq., Attorney-General.
WILLIAM THOMAS CARROLL, Esq., Clerk.
BENJAMIN C. HOWARD, Esq., Reporter.
RICHARD WALLACH, Esq., Marshal.

RULES OF COURT.

No. 58.

ORDERED, that, when a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument will be received unless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex-parte argument.

CHANCERY RULE.

ORDERED, that the fortieth rule, heretofore adopted and promulgated by this court as one of the rules of practice in suits in equity in the circuit courts, be, and the same is hereby repealed and annulled.

And it shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery.

ADMIRALTY RULES.

ORDERED, that the following supplemental rules be added to the rules heretofore adopted by this court for regulating proceedings in admiralty:

In all suits in personam, where a simple war

rant of arrest issues and is executed, bail shat be taken by the marshal and the court in those cases only in which it is required by the laws of the State, where an arrest is made upon similar or analogous process issuing from the State courts. And imprisonment for debt on process issuing out of the Admiralty Court is abolished in all cases where by the laws of the State in which the court is held imprisonment for debt has been or shall be hereafter abolished upon similar or analogous process issuing from a State court.

The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars exclusive of costs, unless the District Court shall be of opinion that the proceedings prescribed by that rule are necessary for the purposes of justice, in the case before the court.

All rules and parts of rules heretofore adopted inconsistent with this order are hereby repealed and annulled.

It is further ordered that these rules be published in the next volume of the Reports of the decisions of this court, and that the clerk cause them to be forthwith printed and transmitted to the several district courts.

ATTORNEY AT LAW

490 Louisiana Ave. WASHINGTON, D, C.

THE DECISIONS

OF THE

Supreme Court of the United States,

AT

DECEMBER TERM, 1850.

1*]*THE STATE OF MISSOURI, Complain- | said commissioners will be taken as prima facie

ant,

v.

true.

Said clerk will also ascertain and report the

THE STATE OF IOWA, Respondent.-Origi- amount of moneys already advanced to said

nal Bill.

THE STATE OF IOWA, Complainant,

v.

THE STATE OF MISSOURI,
Cross Bill.

Boundary line between States established.

The report of the commissioners appointed by this court in 7 Howard, 660, to run and mark the line dividing the States of Missouri and Iowa, adopted and confirmed, and the boundary line finally estab

lished.

commissioners by the States of Missouri and Iowa respectively; and the manner in which said moneys have been expended.

12 December, 1850.

And now, on this third day of January, A. Respondent.-D. 1851, this cause came on for further order and decree therein, when it appeared to the court that at the December Term, 1848, thereof, Henry B. Hendershott and Joseph C. Brown were appointed commissioners to run and mark the line in controversy between the States of Missouri and Iowa; and the said Brown having died, the and stead of said Brown by the Chief Justice Hon. Robert W. Wells was appointed in room of this court, in vacation. And said Wells having resigned his appointment, William G. Minor was appointed commissioner in room and stead of said Wells, by this court, at its last December Term of 1849; and at which term the time for running and marking said line was extended to this present Term of December, 1850, for the reasons stated in the report of said Wells and Hendershott, made to the last term; and which is hereinafter embodied. present commissioners, Henry B. Hendershott and William G. Minor, have made their report in the premises to this term; and which report. is as follows:

THE commissioners appointed by this court to run and mark the boundary line between said States, according to our decree of the December Term, 1848, having performed that duty, and reported to the court at this term the manner in which said work had been performed: and it appearing that two surveyors had been employed by said commissioners to aid them in doing the work in the field, and that other assistants had been employed, and that various expenses had been incurred in running and marking said line: now, in order that the parties to said controversy may be informed of the amount of means necessary to be provided to pay for said services, and also for other costs and charges, incident to the suit, it is ordered that the clerk of this court do examine witnesses, and resort to other evidence, for the purpose of ascertaining what is the proper compensation to be allowed to said commissioners and the surveyors they employed; and also what compensation is due to the Hon. Robert W. Wells for such services as he may have performed as commissioner before he resigned. And said clerk will also ascertain the amount of expenses, of every description, incurred by said commissioners, beside the compensation to themselves and said surveyors, together with the costs and charges incurred in this court in carrying on the 2*1*controversy here. All of which he will include in a detailed account, and report the same to this court at an early day, for its final action thereon.

And in taking said account, the report of

And the

TO THE HONORABLE THE SUPREME COURT
OF THE UNITED STATES.

The undersigned, appointed commissoners by
this honorable court, in the above cases, to es-
tablish the boundary line between the aforesaid
States, respectively report, that, for the pur-
pose of arranging the operations in the field so
as to combine economy with speed, we met in
the city of St. Louis, in March last, and there,
after consulting experienced surveyors as to the
time that might be consumed in running the
line, the probable amount of expense to be in-
curred, the necessary force to be employed, and
the proper outfit, we determined a plan of oper-
ations, and agreed to meet at the supposed site
northwest corner," between the
of Sullivan's
1st and 20th of April last. While in St. Louis,
we obtained from Major M. L. Clark, Surveyor-
General of the States of Missouri and Illinois,
303
a copy of the field notes of the survey made by

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3*] John C. *Sullivan, in the year 1816, of a line beginning on the east bank of the Missouri River, opposite the middle of the mouth of the Kansas River, and extending north one hundred miles, where he made a corner, and also of the line run by him in an easterly course to the Des Moines River. We were also furnished by Major Clark with several charts, diagrams, and copies of surveys which had at various times been made of portions of Sullivan's line, and which were of much service in the prosecution of the work.

The surveyors severally appointed by us were William Dewey, Esq., of Iowa, and Robert Walker, Esq., of Missouri. Both these gen tlemen had been connected with the public works of their respective States, and enjoy a high professional reputation.

According to our agreement, we left our respective homes on the 10th of April last, and soon after reaching the point of meeting, in view of increased prices of transportation, provisions, &c., caused by the immense emigration through Southern Iowa and Northern Missouri to California, we altered our plan of work and reduced our force.

1816, from said corner to said river. On this line, by close examination, we discovered abundant blazes and many witness trees, which enabled us to find and re-mark the said line, as directed by this honorable court.

The survey of this portion of the line, more than one hundred and fifty miles in length, was commenced on the 13th day of August, and finished on the 18th of September.

Near the bank of the Des Moines River where the line terminated, we planted a castiron pillar, similar in weight, figure, dimensions, and inscriptions to those planted at the northwest corner," and near the bank of the Missouri River, the words "State Line" facing the west.

Solid pillars of cast iron, weighing each between three and four hundred pounds, and minutely described as to figure and inscriptions in the report heretofore made to this honorable court by Messrs. Wells and Hendershott, commissioners, we caused to be planted at every ten miles in the due west line extending from said "northwest corner to the Missouri River, and also at every ten miles in the line extending east from the "northwest corner” aforesaid to the Des Moines River.

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No precise trace of the "old northwest corner" remained-the witness trees to it were on No iron monument was planted at mile 150 the margin of a vast prairie, and had apparently in the line running east, because between it been destroyed by fire years ago. Consequently and the point where the large one is planted its exact position could not be ascertained. Yet on the bank of the Des Moines River there from the running of many experimental lines, existed but a small fraction of ten miles, being diligently examining the evidences before us, only fifty-one chains. together with the reports of the surveyors, we became satisfied of its proper position, and accordingly established it.

Its latitude taken resulted as follows:

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From the monument so planted at the "northwest corner" aforesaid, in the said latitude, the survey of the line was commenced, running due west on said parallel of latitude to the Missouri River, as directed by this honorable court, and at its terminus, as near the bank of said Mis souri River as the perishable nature of the soil would admit, we planted a monument similar in figure, weight, dimension, and inscription to the one planted at the "northwest corner," the words State Line" facing the east. 4*] *Unexpected delays, arising from a condition of the weather which prevented the surveyors from making reliable astronomical observations, together with the fact that, to a great extent, in the vicinity of said line there were no roads, and the settlements distant and sparse, compelling us to open a track for the transportation of the monuments and baggage of the corps, and also to construct necessary bridges and grade fords, greatly retarded the work.

Returning to the northwest corner," the survey of the line was commenced, extending eastwardly from said "corner" to the Des Moines River, as run and marked by said Sullivan, in

For a fuller account of the said survey we respectively refer to the report of the surveyors made to us, marked A, and to the following exhibits herewith transmitted:

Field notes of said survey, accompanied by a map of the line (marked B).

Tabular statement of the costs and charges incurred in said survey (marked C).

All of which is most respectfully submitted. HENRY B. HENDERSHOTT, Comm'r, &c., Iowa.

W. G. MINOR, Commissioner, Mo. *And the report of the surveyors em- [*5 ployed by the commissioners, and above referred to as part of said commissioners' report, is in the words and figures following:

KEOKUK, September 30, 1850. MESSRS. HENDERSHOTT AND MINOR, Commissioners of the Boundary Survey. Gentlemen-Having been appointed by you, on the part of the States of Iowa and Missouri severally, to locate and survey the boundary between those States, under the decree of the Supreme Court of the United States, we met according to your appointment, on the 28th of April last, near the supposed site of the old northwest corner, for the purpose of commencing operations in the field.

We proceeded to search for the old corner, which was to be the basis of our future operations. Having a certified copy of Sullivan's field notes, from the Surveyor-General's office at St. Louis, we knew that the corner had been originally located in timber, and designated by two witness trees. Aided by a view of the topography of the locality-as indicated in the notes, and especially by the manner in which Sullivan's north line crossed the Platte River near its terminus-we were able to determine the locality of the corner approximately; and

an inspection of the ground satisfied us that every evidence of its exact position had long since disappeared. Time, and the fires that annually spread over the prairies, had destroyed the witness trees and every trace of both lines

near the corner.

This point, known familiarly as the "old northwest corner," was the termination of the line surveyed by Sullivan, in 1816, from the mouth of the Kansas River north one hundred miles, and was the point at which he turned east, in running to the Des Moines River, his miles being numbered north from the Kansas, and east, beginning again at the corner.

Having no direct evidence of the exact site of the required point, it became necessary to find determinate points in the two lines as near the corner as possible. Prolonging the lines severally from such points, their intersection would be the point to be assumed as the corner, and, if Sullivan's measurement were correct, would be the precise spot where he established it.

Near the supposed locality of the 99th mile corner on the north line, we found a decayed tree and a stump, which correspond in course, distance, and description with the witness trees to that corner, and cutting into the tree we saw what we supposed to be the remains of an old blaze, upon which was preserved a part, apparently, of the letter M. This supposition 6*] *was verified by measuring south two miles to a point, which we found to be Sullivan's 97th mile corner from one witness tree, which was perfectly sound. The marks upon it, two or three inches beneath the bark, were plain and legible.

On the east line we found the witness tree to the 3d mile corner. The wood upon which the marks had been inscribed was decayed, but their reversed impression appeared upon the new growth which covered the old blaze, and which was cut out in a solid block.

Prolonging the lines three miles each from the points thus determined, their intersection was assumed as the required corner, and at that point was planted the monument specified in the decree. By measurement made from the surveyed lines, we found the corner to be in the northeast quarter of section 35, township 67 north, range 33 west. Its exact position with reference to those lines can be seen in the diagram in the field notes. (See post, p. 15.)

The latitude of the corner, determined by a series of observations taken on the ground, we found to be 40° 34′ 40′′ north. While employed upon these observations, we were delayed by unfavorable weather, and it was not till the 24th of May that we were in readiness to commence the survey of the west line from the corner to the Missouri River.

This portion of the boundary, being required to be a parallel of latitude, was run with Burt's solar compass, the use of which requires the longitude of the place of observation to be at least approximately known. Not having the requisite means of ascertaining the longitude of the corner, we calculated it from maps to be about 94° 30 west from Greenwich, which was sufficiently accurate for the purpose. The instrument used being an untried one, some delay was experienced in its adjustment. To HOWARD 10. U. S., Book 13.

insure accuracy in the work, a telescope was attached to it.

The principles upon which this line was run involve a mathematical investigation, which will be found in Note A, accompanying this report, but the mode of running it will be briefly described here. Each successive mile was prolonged in the plane of the prime vertical passing through its beginning. The direction indicated by the instrument stationed at the beginning of a mile is in the plane of the prime vertical passing through that point, and that direction was continued through the mile by means of fore and back sights. At the end of the mile, an offset north was made to compensate for the sphericity of the earth. This offset, it will be seen by the note, is 6.855 inches for one mile. The instrument being moved at the end of the mile the proper distance north, and a new direction *given and continued as before. [*7 the parallel passing through the initial point was continued throughout the line. In some instances, however, it became convenient, whenever the nature of the ground admitted of it, instead of offsetting, to continue the same di rection through several miles. It will be seen by the note, that the offsets increase as the squares of the distance, being for one mile 6.855 inches, for two miles, four times that distance, &c.

Thus it appears that the offsets rapidly increase with the distance run, and that, by continuing the direction of the prime vertical from the corner to the terminus, the southing would have been over 2,000 feet.

At the western terminus of the line, the observations for latitude were repeated. Having established that point, we returned to the northwest corner, and commenced retracing Sullivan's east line on the 13th of August.

It is thirty-four years since this line was run, and every vestige of the mounds and pits established in the prairie has disappeared. Much of the country through which it passes consists of brushy barrens, or high rolling prairies, dotted with detached groves, or covered with a thin growth of dwarf timber. Much of this description of timber has been destroyed by fire, forming in some instances prairie, and in others brushy barrens, destitute of trees; while in some places an entirely new growth of young timber, principally hickory, has sprung up. In all such cases the witness trees and other marks mentioned in Sullivan's field notes were gone, and thus it occurred that we frequently were several miles without finding any traces of the line. But in heavy bodies of timber no difficulty was experienced in discovering evidences of the precise location of the line, not only by blazes, but by line and witness trees, many of which are sound, and the marks in good preservation. The general topography of the country, and especially the crossings of the streams, greatly facilitated us in following the line, and in some instances, when confirmed by the old blazes, enabled us to establish it with sufficient certainty. In the absence of any traces of the line between two known points, distant from each other more than one mile, we assumed the line to be straight between such points, and established our posts accordingly. This was done by run ning a random line from the last found corner, in a direction as near that pursued by Sullivan

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