
    Supreme Court of Errors and Appeals. Nashville.
    1812.
    M’GAVOCK’S LESSEE v. M’NAIRY, &c.
    
      \ V Appeal. )
    None of the general laws, respecting the appropriation of vacant and unappropriated lands, either by occupant claimants or otherwise, designed to lay open to the people at large any part of the French Liolc reservation.
    This was an ejectment brought against the appellees, in the Circuit Court of Williamson, to recover possession of a tract of land, lying between Nashville and the Cumberland River.
    By an act of the Legislature of North Carolina, passed in 1782, ch. 3, § 7, respecting the appropriation of the land within the military boundary, it was enacted, “ that no grant should include any salt lick or salt spring; which were thereby declared to be reserved as public property, together with six hundred and forty acres of the adjoining lands, for the common use and benefit of the inhabitants of that country; and not subject to future appropriations.”
    
      The Legislature afterwards, in 1784, took the subject under consideration, and enacted, that two hundred acres of the land appropriated to the French Lick, should be laid off at a place called the bluff, on the south side of Cumberland River, for a town to be called Nashville, adjacent to the said Lick. After which, the Act of 1785 was passed, directing two hundred and forty .acres of land, reserved for the French Lick, to be vested in the trustees of Davidson Academy, being that part of the land which is most remote from the Lick.
    By the Act of 1789, ch. 29, the residue of the six hundred and forty acres, including the bluff on the south side of the Cumberland River, was to be sold, together with the other lands.; and if not already surveyed, surveys were to be made and grants issue to the purchasers in the manner therein pointed out. A sale was made of the residue of the French Lick reservation, and the defendant M’Nairy became the purchaser. It was surveyed and a grant issued to him for two hundred acres accordingly.
    The boundaries of the two hundred and forty acre tract for the use of the Davidson Academy, as well as the residue so sold and granted to M’Nairy, are ascertained to run to, and bound on Cumberland River; one above, and the other below, the tract laid out for the town of Nashville. It was admitted that all these appropriations were intended to come out of what was usually called the French Lick reservation, and that the adjacent claims of Henderson, Robertson and Freeland, call for the lines of this reservation. And that neither of the appropriations for the town, or the academy, include the lands now in dispute.
    The land in dispute was a small slip lying between the town and the river, as originally laid off; and not within the limits of M’Nairy’s grant. But'at the trial of the cause in the Circuit Court, evidence was offered and received for the purpose of proving that - the French Lick reservation had been surveyed soon after the passage of the Act of-1782, and before the. Act of 1789 ; and that this survey included the land claimed by the plaintiff. When this survey was made, no law existed requiring a survey of lands so situated.
    The plaintiff claimed the land in controversy, as an occupant under the law of 1806, ch. 3.
    The Circuit Court having determined this cause in favor of the appellees, a bill of exceptions was taken to the opinion, and the cause removed to this Court by appeal.
    
      :Haywood and Oooke, for the plaintiff.
    
      Dickinson and Whiteside, for the defendants.
   OveRton, J.

delivered the following opinion of the Court: —

The question is, which of these parties have the best right to the possession of this land ?

We believe this can easily be discerned, from the acts which relate to this subject, connected with the appropriations which have been made.

The Act of 1782 expressly declares that six hundred and forty acres shall be laid off, and should not in future be subject to appropriation.

It was a question of fact, to be left to the jury, whether this six hundred and forty acres had been surveyed and marked. The Act of 1782, or any other Act, did not require it to be done by a public surveyor, nor that a record should be kept in any public office. The lines of other claims calling for those of the French Lick reservation, together with the evidence of a marked line referred to in the bill of exceptions, and reputation respecting those lines, were proper to be left to the jury.

Beside the appropriations for the town, academy, and the sale under the Act of 1789, ch. 26, to M’Nairy, have the Legislature of North Carolina, or Tennessee, passed any act of appropriation respecting the French Lick reservation, under the Act of 1782 ?

It is clear that, conformably to the meaning of that Act, the Legislature did not design that any part of the reserved six hundred and forty acres should be subject to be taken up under the general laws for appropriating lands by entry and grant, because they have in effect said so. In the North Carolina code we perceive no special acts for appropriating this tract, except those already mentioned. The land in dispute does not lie within any of these, except the sale of the residue to the defendant, M’Nairy. It will, however, be remarked that it is not included within his grant which issued in consequence of the sale to him. Whether he is in equity entitled to it, or in point of legal principle, it is not necessary for us to decide, as the effect would be the same in relation to a correct determination of the cause.

To pursue the subject of appropriation. The jury have found the land in dispute to lie within the tract reserved under the Act of 1782, and we are only to discover whether any Act, save the one of 1789, ch. 29, has authorized the appropriation of any part of the residue of the original reservation, after deducting the town and academy tracts. Wé believe there is none, except the Act of 1796, ch. 29. This Act has appropriated a part or the whole of the land in dispute. Whether the State of Tennessee had the power to make this appropriation, cannot be material to the inquiry now before us.

The Act of 1796 is, however, important in one point of view. It may be collected from the passage and provisions of it that the Legislature were sensible it required a special Act of appropriation, as being situated within the original reserved tract, and not within any subsequent appropriations thereout.

We believe that none of the general laws, respecting the appropriation of vacant and unappropriated land, either by occupant claimants or otherwise, designed to lay open to the citizens at large any part of the French lick reservation under the Act of 1782 ; and that as to this purpose that Act is still in force.

It will follow, therefore, that as the land claimed by the plaintiff was not vacant and unappropriated, his grant is void. The judgment of the Circuit Court must be affirmed.  