
    Marshall and Others v. Clark.
    [November, 1791.]
    Caveat — Exception—How Availed of. — In a caveat for lands, the party, who would avail himself of an exception contained in the law, must prove the land he claims to be within the exception.
    Lands — Claims of Crown — Title of Indians Extinguished —Effect.—The old claims of the crown, by the treaty of 1763, extended to the Mississippi; and when the dormant title of the Indian tribes was, afterwards, extinguished by government, it enured to the benefit of the citizen, who had acquired a title from the crown ; and the land could not be granted anew as waste land.
    Same — Same—Same—Unappropriated Land. — But such lands, not previously appropriated, were liable to location by treasury warrants.
    Act of 1779 — Construction.—The act of 1779, for adjusting the pay of the officers and soldiers, could only restrain future entries ; and had no retrac-tive operation.
    Lands — Indian Title — Effect on Grantee. — But the Indian title did not impede the grant and location of such lands: although the grantee took the risciue of the Indian claim.
    Same — Act of 1783 — Construction.—The 1000 acres of land mentioned in the saving clause in the act of 1788, for surveying the lands given to the officers and soldiers were confined to the intended town; and the legislature could only act upon waste lan ds.
    Thomas Marshall and others, entered a caveat on the 17th of January, 1786, in the land office of Virginia, against George Rogers Clark, in the following words,
    “Let no grant issue to George Rogers Clark for 36,932 acres of land lying in Lincoln county on the south side of the Tenasee river, and on the Ohio, surveyed by virtue of an entry on treasury warrants; because Thomas Marshall, George Muter, Charles Dabney, John Montgomery, George Walls, Christopher Roane, Nathaniel Welsh, John Rogers, Humphry Marshall, and Nathaniel Rice, superintendants of the Virginia state line and navy, claim *the same under a grant thereof, by act of assembly, to the officers and soldiers of the Virginia state line and navy. And also, because the said entry was made by the said Clark vaguely, and upon that tract of country not made liable by the law to locations under treasury warrants.”
    The caveat was filed in the supreme court for the district of Kentucky; and, on the 17th of November, 1788, the parties admitted on the record,
    1. ‘ ‘That the entries, both of the plaintiffs and defendants, have been made within that part of this commonwealth bounded by the North Carolina line, and the rivers Tenasee, Ohio and Mississippi.”
    2. “That the entries of the plaintiffs were made on the fifth day of August, in the year of our Lord, one thousand seven hundred and eighty-four, and that of the defendant’s on the twenty-sixth day of October, in the year of our Lord one thousand seven hundred and eighty; and that the said entries do interfere with each other. ”
    The supreme court of the district being in doubt upon the following questions, to wit, 1. Are the lands within the chartered limits of this commonwealth bounded by the North Carolina line, the Tenasee, the Ohio and the Mississippi rivers, on which the defendant’s entry has been made, the same which are excepted and reserved from the locations of treasury land warrants, and described as being the county and limits of the Cherokee Indians, by the act of assembly, entitled “an act for establishing a land office and ascertaining the terms and manner of granting waste and unappropriated lands?” 2. Hath the commonwealth of Virginia ever extinguished the claims of the Indian nations or tribes to the aforesaid lands; if not, can the said lands be considered as waste and unappropriated, and liable to location of treasury land warrants under the aforesaid act? 3. Doth not the exceptions in the said act imply and give a right of entry on any tract of land, other than lands lying within the limits of the said exceptions? 4. Hath the act of assembly, entitled “an act to adjust and regulate *the pay and accounts of the officers and soldiers of the Virginia line on continental establishment, and also of the officers, soldiers, sailors and marines in the service of this state, and for other purposes,” so appropriated the said lands, or subjected them to the claims of the said military, as to annul and make void all entries made thereon by virtue of treasury land warrants, prior to the passage of the said act? S. If the legislature hath a right to appropriate lands lying within the chartered limits, to her officers, &c. before a purchase, were not these lands liable to be entered by treasury land warrants previous to such appropriation, if excluded m the exceptions of the act for establishing a land office, &c.? 6. Doth not the clause in the act of assembly entitled “an act for surveying the lands given bjr law to the officers and soldiers on continental and state establishments, and for other purposes,” wherein it saves to all persons whatsoever, other than the said officers and soldiers, all right and title to the said four thousand acres of land, as fully as if this act had never been made, secure to the said George Rogers Clark his right of entry? 7. Was not the saving clause referred to in the foregoing question, made on the principle that if the assembly had undertaken to determine the right of entry, they would have exercised judicial powers, which not being authorized to do by the constitution, thejr saved to all persons whatsoever other than the officers and soldiers, all right and title to the said four thousand acres of land, and left the question of right to the future decision of a court of justice? Adjourned the case for novelty and difficulty, to the court of appeals.
   PENDLETON, President,

delivered the resolution of the court as follows:

The questions propounded by the district court are in the words following, to wit:

‘‘ Eirst, Are the lands within the chartered limits of this commonwealth, bound by the North Carolina line, the Tennessee, the Ohio and the Mississippi rivers, on which the defendant’s entry has been made, the same which are excepted *and reserved from the locations of treasury land warrants, and described as being the county and limits of the Cherokee Indians, by the act of assembly, entitled ‘an act for establishing a land office and ascertaining the terms and manner of granting waste and unappropriated lands?”
“Secondly, Hath the commonwealth of Virginia ever extinguished the claims of the Indian nations or tribes to the aforesaid lands; if not can the said lands be considered as waste and unappropriated, and liable to location of treasury land warrants under the aforesaid act?”
‘ ‘Thirdly, Doth not the exceptions in the said act imply and give a right of entry on any tract of land other than lands lying within the limits of the said exceptions?”
“Fourthly, Hath the act of assembly, entitled ‘an act to adjust and regulate the pay and accounts of the officers and soldiers of the Virginia line on continental establishment, and also of the officers, soldiers, sailors and marines in the service of this state, and for other purposes,’ so appropriated the said lands, or subjected them to the claims of the said military as to annul and make void all entries made thereon by virtue of treasury land warrants prior to the passage of the said act?”
“Fifthly, If the legislature hath a right to appropriate lands lying within her chartered limits to h'er officers, &c. before a purchase, were not these lands liable to be entered by treasury land warrants previous to such appropriation, if excluded in the exceptions' of the act for establishing a land office, &c. ?” 1
“Sixthly, Doth not the clause in the abt of assembly, entitled, ‘an act for surveying the lands given by law to the officers and soldiers on continental and state establishments, and for other purposes,’ wherein it saves to all persons whatsoever, other than the said officers arid soldiers; all right and title to 'the said four thousand actek of land, as fully as if this act had never been made, secure to the' said George Rogers Clarke his right of entry:” arid
“Seventhly, Was*not'the saving clause, referred to in'the foregoing question, made on the' principle that if the assembly *had ' undertaken to ' determiné the right of entry they would'have exercised judicial powers, which not being authorized to do''by the constitution;• they saved to all persons whatsoever, other than the officers' and soldiers, all' -right 'and title to the said four thousand acres of land, and left the question of right - to the future decision of a court df justice?” '■

On- the consideration whereof and of the arguments of the counsel, the court' have agreed on the following answers thereto:

The first question seems to the court to be'of a mere mattér of fact, to be decided upon evidence; none of which is stated, nor hath it been supplied in the court of appeals by any law, charter Or treaty, produced or suggested, which ascertain what were “the-county and limits of the Cherokee Indians in 1779. ”' • No solution of this question can therefore be given, except that it is the opinion of this court that the party, whose interest it is to extend the exception to the land in dispute, must prove the land to be within the description of that exception.

The second question consists of two parts: So far as it relates to the'- commonwealth’s having extinguished the claims of the Indian nations or tribes to the land in dispute, it stands on the same ground as th'e former question, being a matter of fact, which this court is "furnished with no means of deciding : It is however the opinion of this court, that the fact either way is of no consequence in this dispute between citizen's claiming under the commonwealth. The old claims of the crown by the treaty of 1763, extended to, and was limited by, the river Mississippi, including the land in dispute; which gave a right'to' the crown 'against other Ru'ropean nations, and fixed the limits of titles to be' derived from that source to the citizen's'" of Virginia: The dormant title of the Indian tribes remained to be extinguished by government, either by purchase or- conquest; and when' that was done, it enured' to the benefit' of the citizen, who had previously acquired a title | from the crown, and did not authorize a new grant of the lands as waste and ^unappropriated. This being the case at the time of the revolution, when the commonwealth succeeding to the royal rights, the constitution of government in 1776 asserts the territorial claim of Virginia to extend westerly and northerly according to the charter of king James in 1609, and the treaty of peace in 1763, including the country in which the disputed lands lie. When therefore the legislature, by the act of 1779, establish a mode for granting the waste and unappropriated lands of the commonwealth, and authorize the purchase thereof by money paid into the treasury, it is the opinion of this' court,'that the lands within the country described were liable to the locations of any citizen upon treasury warrants, provided" it did not interfere with any of the exceptions or reservations mentioned in the act.

The third question appears to the court to be answered in the' solution of the second question.

Upon thé fourth'question, it is the opinion of this court that the act stated could only restrain future entries and locations to Ihe prejudice of the officers and soldiers, but coul'd nof have á retroactive operation to defeat a prior entry and 'location made according'to the existing laws at the time.

The fifth question • appears -to be fully answered upon the second question; since in the opinion of the court the Indian title did not impede- either the power of the legislature 'to grant the land to the officers and soldiers, or the location of the lands on treasury warrants, the grantee, in either case, must risque the -event of 'the Indian claim; and yield to it, if finally established, or have the benefit of- a former or future extinction thereof.

The sixth' and seventh questions appear to be connected, and are probably solved in the answer to the fourth. The saving clause, ' in the act of 1783, alluded to, is confined to the four thousand acres-to he laid off for a town; but this court is of opinion that such saving clause was wholly unnecessary,-since the legislative bounty could only act upon lands then waste and unappropriated, and not upon such as any citizen had acquired a prior right to by law.  