1

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, besides the compensation to themselves and said surveyors, together with the costs and charges incurred in this court in carrying on the 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.

2

And in taking said account, the report of said commissioners will be taken as prima facie true.

3

Said clerk will also ascertain and report the amount of moneys already advanced to said commissioners by the states of Missouri and Iowa respectively; and the manner in which said moneys have been expended.

4

And now, on this third day of January, A. 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 Hon. Robert W. Wells was appointed in room and stead of said Brown by the Chief Justice 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. And the 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:——

5

TO THE HONORABLE THE SUPREME COURT OF THE UNITED STATES.

6

The undersigned, appointed commissioners by this honorable court, in the above cases, to establish the boundary line between the aforesaid states, respectively report, that, for the purpose 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 incurred, the necessary force to be employed, and the proper outfit, we determined a plan of operations, and agreed to meet at the supposed site of Sullivan's 'northwest corner,' between the 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, a copy of the field notes of the survey made by 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.

7

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

8

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.

9

No precise trace of the 'old northwest corner' remained,—the witness-trees to it were on the margin of a vast prairie, and had apparently been destroyed by fire years ago. Consequently its exact position could not be ascertained. Yet from the running of many experimental lines, diligently examining the evidences before us, together with the reports of the surveyors, we became satisfied of its proper position, and accordingly established it.

10

Its latitude taken resulted as follows:——

11

40°34'40"'" N.

12

At the corner so determined we planted a large, solid cast-iron pillar, weighing between fifteen and sixteen hundred pounds, four feet six inches long, squaring twelve inches at its base and eight inches at its top. This pillar was deeply and legibly marked with the words (strongly cast into the iron) 'Missouri' on its south side, 'Iowa,' on its north side, and 'State Line' on the east.

13

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 Missouri 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.

14

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.

15

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 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.

16

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.

17

Near the bank of the Des Moines River where the line terminated, we planted a cast-iron 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.

18

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.

19

No iron monument was planted at mile 150 in the line running east, because between it and the point where the large one is planted on the bank of the Des Moines River there existed but a small fraction of ten miles, being only fifty-one chains.

20

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——

21

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

22

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

23

All or which is most respectfully submitted.

24

HENRY B. HENDERSHOTT, Comm'r, &c., Iowa.

25

W. G. MINOR, Commissioner, Mo. And the report of the surveyors employed by the commissioners, and above referred to as part of said commissioners' report, is in the words and figures following:——

26

Keokuk, September 30, 1850.

27

MESSRS. HENDERSHOTT AND MINOR, Commissioners of the Boundary Commission.

28

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.

29

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-tress. 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-tress and every trace of both lines near the corner.

30

This point, known familiarly as the 'old northwest corner,' was the termination of the line surveyed by Sullivan, in 1816, from the month 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 cornor.

31

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.

32

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 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.

33

On the east line we found the witness-tree to the 3d mile corner. The wood upon which the marks had been described 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.

34

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, *15.

35

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.

36

This portion of the boundary, being required to be a parallel of latitude, was run with Burt's solar commpass, 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 insure accuracy in the work, a telescope was attached to it.

37

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, 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 direction through several miles. It will be seen by the note, that the offsets increase as the squares of the distances, being for one mile 6.855 inches, for two miles, four times that distance, &c.

38

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.

39

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.

40

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 running a random line from the last found corner, in a direction as near that pursued by Sullivan as we could determine, until another point was found, and then correcting back. No notice, however, is taken of these random lines in the field notes, which relates to the true line only.

41

We soon satisfied ourselves that the line run by Sullivan was not only not a due east line, but that it was not straight. That more or less northing should have been made in the old line was to have been expected from the fact that Sullivan ran the whole line with one variation of the needle, and that variation too great. This would account for the fact that the northing increases as he progressed east. But there are great irregularities in the course of the line, for which it is difficult to find a cause. Sudden deviations amounting to from one to three degrees frequently occur, and it rarely happens that any two consecutive miles pursue the same direction.

42

A resurvey of the line between the 91st and 134th miles was made in the year 1845, and we found the witness-trees on that part of the line defaced, and others substituted. We succeeded, however, in identifying Sullivan's trees, and we destroyed the marks of that survey as far as they related to the old line. In all instances where a corner on Sullivan's line is mentioned in our field notes, one or both witness-trees were found to identify it and we did not always think it necessary to repeat the fact in the notes.

43

Accompanying this report are the field notes and map of the boundary, the former of which are sufficiently explained in the note prefixed to them.

44

On the west line the monuments every ten miles were deemed sufficient. On the east line mile posts are established, marked, and witnessed as described in the field notes.

45

It will be perceived that the measurement of this line as run by us exceeds that of Sullivan by 11 80/100 chains, and that this increase, although gradual, is not regular. Some portions of the old line agree very nearly with our measurement, while others differ materially, and the greatest gain is generally made in brushy and broken land.

46

For the convenience of estimating distances, and that the true length of the line might be indicated by the mile posts, they were established by our measurement, taking care in every instance to note the distance of the posts set by us from the corresponding corners in the old line whenever found. The different courses being extended from one known point to another, the line was not altered at those points, being made to pass through them, but only its length corrected.

47

The length of the entire line is 211 miles and 32 80/100 chains, embracing 4°1'7"'".29 of longitude. The length of a second of longitude is calculated in Note C, and the longitude of any point of the line being known, that of any other point can be deduced.

48

The map is platted from the field notes on a scale of half an inch to the mile, and is only intended to represent the general features in the topography of the line. The scale upon which it is made is much too small to show the angles in the east line, to do which would require it to be extended to a length that would render it inconvenient. All the purposes for which it can be used will be attained by its present form.

49

WM. DEWEY,

50

Surveyor on the part of Iowa.

51

R. WALKER,

52

Surveyor on the part of Missouri.

53

NOTE A.

54

Put a = semi-equatorial axis of the earth.

55

c = semi-polar axis.

56

x = absciss

57

y = ordinate to a point § on the terrestrial meridian.

58

e = eccentricity.

59

l = latitude of S.

60

r = radius of curvature at S.

61

Then considering the centre as the origin of the co-ordinates, we have

62

y² = c² (a² - x²)/a²

63

and, differentiating,

64

d y = - c² x d x/a² y;

65

whence,

66

d x² + d y² = (a⁴ y² + c⁴ x²) d x²/a⁴ y² (1.)

67

d² y = - (a² c² y² + c⁴ x²) d x²/a⁴ y

51 U.S. 54

10 How. 54

13 L.Ed. 325

HENRY WEBSTER, PLAINTIFF

v.

PETER COOPER.

December Term, 1850

THIS case came up on a certificate of division of opinion, pro forma, between the judges of the Circuit Court of the United States for the District of Maine.

It was a real action, in which the plaintiff demanded a certain parcel of land situated in Pittston, in the county of Kennebec and state of Maine, and claimed title under the will of one Florentius Vassal, made in England in 1777.

Most of the points of division certified arose upon the construction of this will, and the remainder were upon the right of the plaintiff to maintain the action, and the rule of estimation as to improvements; covering in fact the whole case.

The cause was argued by Mr. Dexter and Mr. E. H. Daveis, for the plaintiff, and Mr. Allen, for the defendant; but as no decision was had upon the merits, the arguments of counsel are omitted.

Mr. Chief Justice TANEY delivered the opinion of the court.

This case has been argued at the bar upon points certified as upon a division of opinion in the Circuit Court. But it appears by the record that the whole case has been divided into points and sent up to this court,—and several of the latter points could not have arisen on the trial until the previous ones were first decided. We understand it was a pro forma division, certified at the request of the counsel for the respective parties.

This court has frequently said that this practice is irregular, and would, if sanctioned, convert this court into one of original jurisdiction, in questions of law, instead of being, as the Constitution intended it to be, an appellate court to revise the decisions of inferior tribunals. Indeed, it would impose upon it the duty of deciding in the first instance, not only the questions of law which properly belonged to the case, but also questions merely hypothetical and speculative, and which might or might not arise, as previous questions were ruled the one way or the other.

The irregularity and evil tendency of this practice has upon several occasions attracted the attention of the court, although it has been occasionally acquiesced in, and the points so certified acted upon and decided. But at December term, 1847, the subject was very fully considered, and it was then determined that this practice ought not to be sanctioned, and that this court would in all cases refuse to take jurisdiction, when it was obvious that the whole case had been certified pro forma, in order to take the opinion of this court, without any actual division of opinion in the Circuit Court. The result of this determination will be found in the case of Nesmith and others v. Sheldon and others, 6 How., 41. The case before us cannot be distinguished from the one referred to. It is true that it was certified before that decision was pronounced. But the opinion in that case conformed to all the opinions previously expressed by this court upon the irregularity of this practice.

This case, therefore, must be remanded to the Circuit Court, to be proceeded in according to law.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maine, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. And it appearing to this court, upon an inspection of the said transcript, that no point in the case within the meaning of the act of Congress has been certified to this court, it is thereupon now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, to be proceeded in according to law.

¹ FOLLOWED. Dennistoun v. Stewart, 18 How., 569, RELIED ON in dissenting opinion, Steamer Oregon v. Rocca, 18 How., 576.

² See note to Nesmith v. Sheldon.