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December 1, 1861


Writ of error to the Circuit Court of the United States for the northern district of Illinois. William S. Johnston brought ejectment in the Circuit Court against John A. Jones and another for a part of the land formed by accretion on the shore of Lake Michigan, north of the north pier of the harbor of Chicago. The cause was tried in the Circuit Court, and a verdict and judgment were given for the plaintiff, when the defendant brought it up to this court by writ of error, where it was reversed, and a venire facias de novo awarded. The facts as they appeared upon the record at that time are fully stated in the opinion of Mr. Justice Nelson, 18 How., 150. On the second trial the same evidence was given, with no new additions, except the two documents pertaining to the plaintiff's title which are mentioned in the opinion of Mr. Justice Swayne. That opinion also contains a statement of the facts upon which the several rulings of the Circuit Court upon the admissibility of evidence were based, and quotes at sufficient length the instructions which were given to the jury. The verdict and judgment were in favor of the defendant, and the plaintiff took this writ of error.

The opinion of the court was delivered by: Mr. Justice Swayne.

Mr. Wills, of Illinois, for plaintiff in error, argued that the errors of the Circuit Court apparent on this record entitled the plaintiff to a reversal of the judgment on such radical grounds as would insure to him the ultimate recovery of the property in dispute.

The defendant has always insisted that lot 34 never had a lake shore front. This has been his favorite line of defence. It is the fundamental question in the case, and if the fact be as the defendant alleges, then the plaintiff had no right from the beginning to the land he claims. This, however, is a question of fact not to be argued here, except as it arises incidentally in the discussion of the points of law ruled by the court.

If it be established that the lot (34) had originally a lake front, was it not conveyed with the accretions to the plaintiff by the deed of October, 1835? Was it intended to reserve any part of the land which had become attached to its eastern border? The whole of the accretions passed by the description, 'Water lot 34, and the tenements and hereditaments thereunto belonging.' Such was the manifest intent of the parties.

But if the deed of October, 1835, does not bear on its face the evidence of the parties' intentions to pass the accretions, then the deed of July, 1857, was admissible as evidence of the original intention to do so, and it was error not to receive it for that purpose.

If the accretion did not pass by the deed of 1835, and the deed of 1857 is not admissible for the purpose mentioned, then in falling back upon the deed of 1835 just as it is, it becomes important to know when the title of the plaintiff under that deed commenced. It began not at the date of the deed, (October 22, 1835,) but at the date of the title-bond of June 10, 1835. This raises a new question of fact–raises it fairly–and the instruction which compelled the jury to exclude it from their consideration was erroneous. The jury should have been charged to inquire whether the lot had a lake front at the date of the title-bond; and if it had, to find a verdict for the plaintiff. The title which the plaintiff took under the deed related back to the date of the title-bond.

Even if all these points were against the plaintiff, he is entitled to recover against this defendant by virtue of his claim of title and his prior possession under his deed. The defendant is a mere intruder upon the previous possession of the plaintiff.

The court did not allow the proper value to be given to the maps and surveys. A map referred to in a deed is part of the deed, and as much to be considered as if expressly recited.

The court should not have refused to let the plaintiff's counsel ask the witness Jones (a brother of the defendant) whether the defendant had paid him anything for lot 35 when it was conveyed. The power of cross-examination is the great test for the discovery of truth. The plaintiff was deprived of a clear right.

The testimony of Greenwood was rebutting, and it was erroneously regarded by the court as evidence in chief. But aside from this the court erred in excluding it when there was no allegation of trick, surprise, or injury which the plaintiff could suffer by receiving it out of the regular order.

The rule given to the jury for dividing the accretions among the several owners of the lots having lake fronts was entirely wrong.

Mr. Fuller, of Illinois, and Mr. Carlisle, of Washington city, for defendants in error. This cause has been tried by a jury under instructions from the judge who presided in the court below, couched in the very words of the opinion delivered in this case by Mr. Justice Nelson, and upon the issue which this court there determined was the only proper issue for the consideration of the jury. On that trial a verdict was rendered for the defendants below.

The plaintiff brings the case here, and directly questions the former decision of this court in this very case. He likewise assigns seven specific errors in the rulings of the court on the trial below, in the course of the trial.

Except a deed made by John H. Kinzie to the plaintiff in 1857, the titles of the respective parties are precisely the same as they were on all the former trials; and the facts out of which the controversy arose having occurred twenty-five years ago, are, of course, unchanged.

In the opinion of the court, in 18 Howard, 150, is a full statement of the material facts in the case; and it will appear by examination of that opinion that the following propositions were stated and decided by this court as the law of the case:

FIRST. That both plaintiff's and defendant's lots were conveyed with express reference to the recorded plat of Kinzie's addition to the town of Chicago, which description was conclusive upon the parties until that reference was reformed. 18 Howard, 153.

SECOND. That the true issue to be tried by the jury was, whether or not, at the time of the deed to the plaintiff, lot 34 (plaintiff's) had a water line upon the lake north of the north pier of the Chicago harbor. 18 Howard, 157.

THIRD. That in dividing the accretion, the pier front of the accretion should be take into account. 18 Howard, 157-8.

With these points decided by this court as the law of this case, the parties again went to trial, and the court below gave the instructions to the jury which are found in the record.

The issue of fact, indicated by this court as the only important question to be tried by the jury, was distinctly presented to the jury, who found the defendants not guilty; or, in other words, that the plaintiff's water lot 34, Kinzie's addition to Chicago, had not a water line on the east side north of the north pier of the Chicago harbor at the date of his deed, October, 1835.

This finding of the jury is conclusive upon the parties as to the question of fact, and leaves the plaintiff without any right or interest to question the rule of division of the accretion laid down by the court.

It is immaterial to him what that rule is; for he has nothing to be divided, and he should not trouble this court or these defendants to review the former decision upon this point, for a merely abstract and speculative purpose.

He is not harmed or helped by any decision of any question that does not, when decided, apply to his interests in this case; and for this, as well as other obvious reasons, we shall not discuss the former decision of this court upon this part of the case, holding it to be settled law.

The facts being unchanged, the law of the case, once declared, remains the law.

With the exception of the deed made since the commencement of this suit, every link in the chain of title, every deed of either party to the record, and every fact, remain the same.

Yet the plaintiff's counsel insists, in a voluminous printed argument of about one hundred pages, that this court should review and change its opinion upon these identical facts and deeds, ...

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