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782
PUBLIC LANDS.
[No. 741.
1829.]
thiit main branch was to be found. The remarks made on the sixth prayer would apply with equal propriety to this, and the court would come to the same conclusion on both. But we understand from the argument that the counsel for the plaintiff in error intended by this prayer to furnish a rule by which the main branch might be designated. That rule is, that the branch in whose channel water might be found furthest removed from the mouth of the river is its main branch.
Is this proposition universally true ? That branch of a river which is entitled to the appellation given to the main river is a conclusion of fact to be drawn from the evidence in the cause. Consequently, no general rule can be laid down which will, in all cases, guide us to a correct conclusion. One of the forks may have retained the name of the main river in exclusion of the others. The Scioto and Miami are both Indian names; and if any one branch of either had received from the natives, and retained exclusively the name given to the main river, that would have been the stream referred to in the reserve contained m the deed of cession,_although water might have been found in a dry seasoji of the year in the channel of some other,-at a greater distance from the-mouth of the river; or the white men who-explored the country before the deed’Of cession-was executed-may have fixed the name on-some one" of the branches of the respective rivers.	~	-	'
When France ceded to Great Britain all her pretensions to the country lying east of the Mississippi, “ from its source to the river Iberville,” no man could have been so extravagant as to assert that the source of the Mississippi was to be looked for through all its branches, and fixed at that point in the channel of either in which water might be found furthest removed from the mouth of the river. The size of the rivers, and the notoriety of the names by which they were designated, place the unreasonableness of such a pretension in so strong a point of view, that we can scarcely bring ourselves to suppose that there is any resemblance between the case put by way of illustration, and that under consideration. And yet, what is the real difference in principle ? If one branch of a small river has, by consent, retained the name of the main river, in exclusion of the others, that branch must be considered, in the absence of other circumstances, as the true boundary intended by the parties in a deed which calls for the stream by its name. The fact may be less certain and less notorious, but, if it exists, it must be followed by the same consequences.
If neither branch had notoriously retained the name of the river, the main branch is entitled to it But the main branch is not necessarily that in whose channel water might be found at all seasons of the year at the point furthest removed from its mouth. The largest volume of water is certainly one indication of the main stream; which does not necessarily accompany that which the counsel for the plaintiff in error has selected as the sole criterion by which it is to be determined. The length of the stream is another. It is obvious that two branches may pursue such a course that the source of the longest may be nearer the mouth'of the river than that of the shortest.
We think the rule proposed in this prayer does not furnish a certain guide to conduct us to the source of the river; and therefore the instruction ought not to have been given.
8th. The eighth prayer requires the court to instruct the jury that the source of each river is at that point furthest removed from its mouth, from which the rain runs down into its channel.
We cannot perceive in the rule which this instruction proposes any principle which will conduct us to the source of the main stream. Every objection to granting the seventh prayer applies with equal force 1o this. They need not be repeated. The court did not err in rejecting it.
The instructions to the jury for which the plaintiff applied to the State court are some of them mixed questions, involving fact with law, and requiring the court to decide the fact, and then to declare the law upon that fact. Others propose a rule as of universal application, to ascertain the main branch of a river and the source of that main branch, which would, unquestionably, in many cases mislead us. They propose one single circumstance, in exclusion of all others, as being the infallible evidence of a complex fact depending on a number of varying circumstances. The court very properly refused to give any of these instructions.
The court is of opinion that there is no error in the judgment of the State court, and that it ought to be affirmed with costs.
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20th Congress.]
No. 741.
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PRIVATE LAND CLAIMS IN MISSISSIPPI.
COMMUNICATED TO THE SENATE FEBRUARY 18, 1829.
General Lajjd Office, February £7j 18M>
Sir : I have the honor to enclose herewith copies of reporta of the register and receiver of the
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office for the district of Jackson Court-house, Mississippi, under the provisions of the act of Cong approved on the 24th of May, 1828, entitled “An act supplementary to the several acts providing to adjustment of land claims in the State of Mississippi.”
With great respect, your obedient servant,	RGE	GRAHAJt-
Hon. John C. Calhoun,	V
Vice-President of the United States and President of the Senate.
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