DECEMBER 5, 1867. - Referred to the Committee on the Judiciary and ordered to be printed.

ATTORNEY GENERAL'S OFFICE, December 5, 1867.

SIR: By a resolution of the House of Representatives, passed March 26, 1867, the Attorney General is directed to examine the title papers concerning the public property at Harper's Ferry, West Virginia, used previous to the rebellion for an armory, and report his opinion as to the title of the United States to the same, "whether it is in fee-simple or merely held in trust by the President for a specific use, and no other."

In conformity with this resolution, I have the honor to submit a carefully prepared abstract of the title of the United States to the property at Harper's Ferry, and will proceed to give my opinion on the title, especially upon this specific point, whether it is held in fee-simple or held for a single designated use, and no other.

First, as to the question touching the use. This question has no doubt arisen under the deeds of June l5, 1796, and February 20, 1797, numbered respectively "two" and "three" in the abstract. In the earlier years of the government, the form of conveyance adopted for real estate acquired by the United States was to convey the land to a public officer and his successors, to hold to the use of the United States. Following this usage, I find in both these conveyances that the grant was made to "George Washington, President of the United States, and his successors forever," to hold the same "to and for the use and behoof of the said United States forever, and to and for no other use or behoof whatsoever." Being founded on a money consideration recited in each of these deeds, they operate as deeds of bargain and sale, and under the Virginia statute of uses in force at that date vested the legal estate in the President and his successors in fee, subject to a trust in favor of the United States of the entire beneficial interest. If no use had been declared this trust would nevertheless have resulted to the United States, for the purchase money, as recited in the deeds, was paid on account of and for and in behalf of the United States, and, moreover, the grantee takes in his official, and not in his individual capacity. (Tucker's Commentaries on the Laws of Virginia, vol. 1, p. 264-'65.)

The trust or use declared in favor of the United States is not limited to any specific purpose or object. It imports that the conveyance was to be for the benefit of the United States exclusively. The habendum in each of the instruments has precisely the same force and effect as if it had been to the use of the United States forever. I think this stands clearly enough upon acknowledged principles. I find it, however, expressly recognized in the case of Van Ness vs. The City of Washington and the United States. (4 Peter's R., p. 284.) I see nothing in this limitation of uses in the nature of a condition subsequent or a use determinable upon a future event. The use is, not merely to possess the property, but carries as well the jus disponendi and the right to take the proceeds upon sale.

It is not necessary to inquire here what would have been the effect if the use had been limited to the United States for the purposes of an armory, or if the United States, under the eminent domain power, had condemned the property for the purpose of erecting an armory. Whatever effect would follow by a conveyance of the legal title to the United States for such a purpose, or from its acquisition by appropriation for such a purpose, would also attach to a conveyance of the legal title to a public officer with a limitation of the uses to the United States; for the limitations of trusts are to be construed precisely as those of legal estates. Taking the use as it is declared in these conveyances, I entertain no doubt that it is absolute and unconditional. (See Van der Volgen vs. Yates, 5 Selden's R., p. 219.)

The conveyance marked "No. 1" purports, so far as John Wager, sr, one of the grantors, is concerned, to be made in execution of the power created by the will of Robert Harper, patentee. I find by the will a life estate devised to Sarah Harper and her husband, with power to either of them "to leave and bequeath the said ferry and lands to them devised as above to either of their sons whom they shall judge most deserving thereof, and in case of failure of male issue to leave and give the premises aforesaid to either of their daughters as may appear to them the most suitable." The will contains no residuary clause, nor is there any devise over in default of appointment under the power given by the will.

At the date of the will and the death of the testator, Sarah Harper was inter-married with John Wager, senior, and they had three children then living, namely, John Wager, junior, Margaret Wager, and Mary Wager. John Wager, senior, survived his wife, and joined with his three children in the conveyance of June 15, 1796. In that conveyance John Wager, senior, declares, covenants, and agrees, to and with "the said George Washington, President of the United States, and his successors forever, that he, the said John Wager, senior, in pursuance of the intent of the last will of Robert Harper, hath elected and appointed his son, the said John Wager, junior, to take and to have and hold the said parcel of land devised by the last will aforesaid unto the said Sarah Harper, his late wife, who had departed this life without making any devise or appointment thereof and that he, the said John Wager, senior, will not make any other appointment or any bequest whatsoever thereof." This deed also contains covenants of general warranty. A question might be raised as to whether the power created by the will was merely a naked power, or coupled with a trust, and, if merely a naked power, whether it was well executed by the deed, or, if not well executed, whether it was such a partial execution as might be enforced in equity in favor of the purchaser. If these questions had been raised in time they would have been found to be of a very serious character, but I look upon them as having no significance at the present time. The United States have been in the undisturbed adverse possession of all this property, claiming the absolute ownership for more then seventy years. Upon examination of the statutes of Virginia, I entertain no doubt that that possession has long since ripened, into a perfect title.

I am accordingly of opinion that the United States now hold a valid title in fee-simple of all their property at Harper's Ferry.

I have the honor to be, with great respect,

HENRY STANBERY,
Attorney General.

Hon. SCHUYLER COLFAX,
Speaker of the House of Representatives.

The title papers respecting this property, as obtained from the files of the War Department, show that nearly all the real estate now in the possession of the United States at Harper's Ferry was originally held by Robert Harper, under two patents to him from Lord Fairfax, proprietor of the "northern neck" of Virginia, dated respectively April 6, 1751, and April 19, 1762, and also a patent from the State of Maryland, issued in 1763, covering part of an island in the Potomac river, hereinafter mentioned. These patents, though not found with or set out in said papers, are referred to therein as the source of his title.

Harper died seized of the lands covered by the above-mentioned patents in the year 1782, leaving a will, whereby he disposed of his estate as follows: (See note at foot of this abstract.)

1. Extract from will of Robert Harper. - "Imprimis. I give, leave, and bequeath to my nephew, Robert Griffith, one moiety or half of my ferry survey." [Here follow the lines or boundaries of the tract devised, and also a bequest of all his movable estate except his negro wench Beck.)

"Secondly. I give, leave, and bequeath unto my niece, Sarah Harper, daughter of my brother Joseph Harper, joiner and cabinet-maker, late of Philadelphia, or her heirs, my ferry and ferry-house on Potomac river, and all the remainder of my ferry survey not before devised to Robert Griffith, together with all my estate, right, and title to the Maryland shore of the said ferry, and also all my estate, right, and title to and for ten acres upon what is called the Big island, up Potomac river, adjoining the ferry aforesaid. But it is my will that neither my said niece Sarah, or her husband, if alive, shall enjoy the said ferry and lands hereby demised and bequeathed longer than their natural life or lives, and it is likewise my will that my said niece Sarah, or her husband, shall and may have full power and authority to leave and bequeath the said ferry and lands to them demised as above, to either of their sons whom they shall judge most deserving thereof, and in case of failure of male issue to leave and give the premises aforesaid to either of their daughters as may appear to them the most suitable." (Here follows a direction that all his debts shall be paid out of the receipts from his ferry, which his executors are charged to retain until the former are discharged.)

Other specific bequests are made by him, but the will contains no residuary clause.

Sarah Harper (who intermarried with John Wager) afterwards died, leaving her husband and one son, John Wager, jr., surviving, who, with the husband of said Sarah, and their two daughters, joined in the conveyance hereinafter mentioned (See No. 2)

Robert Griffith died, and his heir at law conveyed to Thomas Rutherford et al., executors, &c. of Thomas Rutherford, jr., deceased, who conveyed as below stated. (See No. 3.)

2. June 15, 1796. - By deed of this date, John Wager, sr., John Wager, jr., Margaret Wager, and Mary Wager, in consideration of $7,016 66 to them paid "on account of the United States by George Washington, President of the United States," and of certain covenants therein set forth, convey to "the said George Washington, President of the United States, and his successors forever," to hold "to and for the use and behoof of the said United States forever, and to and for no other use or behoof whatsoever," a certain island in the Potomac river, and also all the land commonly known as the Harper's Ferry tract, which was devised as aforesaid by Robert Harper to his niece Sarah Harper; excepting six acres described in the deed, and likewise a small parcel for the ferry-landing at or near the junction of the Potomac with the Shenandoah. The covenants referred to as entering into the consideration of this conveyance relate to certain ferry privileges, &c., which no longer possess any importance, the ferry itself, in consequence of the erection of a bridge at the point indicated, "having long since been abandoned. But the deed also contains this clause: "And the said John Wager, senior, for himself and his heirs, executors, and administrators, doth declare, covenant, and agree to and with the said George Washington, President of the United States, and his successors forever, that he, the said John Wager, senior, in pursuance of the intent of the last will of Robert Harper, hath elected and appointed his son, the said John Wager, junior, to take and to have and hold the said parcel of land devised by the last will aforesaid unto the said Sarah Harper, his late wife, who has departed this life without making any devise or appointment thereof, and that he, the said John Wager, senior, will not make any other appointment or any bequest whatever thereof." Deed contains also a covenant of warranty.

3. February 20, 1797. - By deed of this date, Thomas Rutherford, William Dark, Van Rutherford, and Mary Rutherford, executors and executrix of Thomas Rutherford, jr., deceased, in consideration of $10,000 to them paid by "George Washington, President of the United States, for and in behalf of the United States," convey to the said "George Washington, President of the United States, and his successors forever," to hold "for the use of the said United States forever, to and for the use and behoof of the said United States, and to and for no other use or behoof whatsoever," all the land devised by Robert Harper to Robert Griffith as aforesaid, and which was subsequently conveyed to the grantors by the heir at law of said Griffith. Contains covenant of warranty.

[NOTE. - Though apt words of perpetuity appear to be employed in both the above deeds, it is thought proper to mention that by a Virginia statute passed in 1785, every estate in lands thereafter granted, conveyed, or devised to one, although words theretofore necessary to transfer an estate of inheritance be not added, is to be deemed a fee-simple, if a less estate be not limited by express . words, or do not appear to have been granted, conveyed, or devised by construction or operation of law.]

The United States have been in the uninterrupted, possession and enjoyment of the property conveyed as above for over seventy years, except such lots or parcels thereof as have been alienated by them.

4. By reference to the aforesaid deed of June 15, 1796, it will be seen that a tract of six acres, mentioned above, was excepted out of the grant from the Wagers to George Washington, President, &c. This tract, it would seem, remained in the possession of John Wager, jr., and his heirs, claiming under the said devise of Robert Harper, down to the year 1835, when a plat thereof was made on partition of the lands of the said John Wager, pursuant to a decree rendered by the superior court of law and chancery for Jefferson county, Virginia, in a cause then depending therein between Gibson and Russell, complainants, and James B. Wager and others, defendants, which plat was recorded in the land records of said county, the lots designated thereon having been alotted and distributed in the proceedings in said cause among the parties thereto. In the years 1847, 1848, 1849, 1853, 1855, and 1856, the United States acquired by purchase from the parties to whom they had been allotted as aforesaid, and those holding under them, the following lots and parts of lots, known and distinguished on said plat as lots 11, 12, 13, 15, 16 (part of), 17, 18, 19, 20, 21, 22, 23, 24 (part of), 26, 27, 28 (part of), 29 (part of), 33, and 34. An absolute and unconditional fee-simple in each of these lots and parts of lots is conveyed directly to the United States, for a money consideration, by deeds duly executed and acknowledged.

The foregoing completes the history of the title of the United States to so much of the public property at Harper's Ferry as was originally held by Robert Harper, the patentee thereof, and devised by him as aforesaid. There is other property at and in the vicinity of that point, the title to which is derived by the United States from other sources, and which will now be noted.

5. In 1815 or 1816 a certain Patrick Byrne obtained a patent from the State of Maryland covering the whole of the island included in the grant from the Wagers of June 15, 1796, hereinbefore refered to. This island, as before stated, was patented by that State to Robert Harper in the year 1763, but the survey of his patent called for only some ten acres of land. The Wagers held the island under the aforesaid devise of Harper, and in their deed it is stated to contain twenty acres, more or less. In an ejectment suit, tried and determined in a court holden in Washington county, Maryland, in 1818, Byrne succeeded in establishing title to the whole island, (except the ten acres patented, to Harper,) then estimated to contain some thirty acres over and above the said ten acres. However, by a deed dated February 7, 1848, Byrne and wife, in consideration of the sum of $1,500, sold and conveyed directly to the United States in fee the whole of this island, then and now known as "Byrne's island," exclusive of the ten acres already claimed by the government under the Wager grant, and excepting a small parcel conveyed by Byrne and wife to the Baltimore and Ohio Railroad Company in September, 1841. Thus, with the exception of the parcel last mentioned, the United States now hold the entire island.

6. October 27, 1818. - By a deed of this date, Ferdinand Fairfax, in consideration of a payment to him of $5,000, conveys to James Monroe, to hold "unto him, the said James Monroe, President of the United States, and his successors in that office, his and their heirs forever, for the use and benefit of the people of the United States forever," a certain tract of land lying at the mouth of the Shenandoah, in Jefferson county, Virginia, (now West Virginia,) containing sixty-eight acres and eighty square perches, more or less, excepting and reserving to the said Fairfax, his heirs and assigns, all mines, &c., he or they making reasonable compensation for actual damage occasioned to the premises in digging, &c., the same.

This tract lies on the south side of the Shenandoah, directly opposite the town of Harper's Ferry, and with it is also conveyed the ferry across that river, which is located a short distance above its mouth, and over which the government still exercises ownership.

7. June 27, 1833. - By a deed of this date, John Strider and wife, in consideration of $2,600 to them paid, convey directly to the United States in fee certain rights and privileges to the use of the waters of the Shenandoah river between the mills of the said Strider, called the "Gulf Mills," and the mills of the United States on that river below, together with other privileges relating to the construction and completion of certain dams, &c., connected with the use of said waters. These water privileges are now appurtenant to a portion of the land acquired by the United States under the before-mentioned deed of February 20, 1797, and adjoin the same on the Shenandoah on the west.

8. August 20, 1813. - By a deed of this date, Ferdinand Fairfax et al., in consideration of $20,860[.]62 paid to the said Fairfax, by John Armstrong, Secretary of War, "out of the public moneys appropriated for the purpose," convey to "the said John Armstrong, Secretary of War as aforesaid," to hold "unto the said John Armstrong, Secretary of War as aforesaid, to his successors in office and to his and their assigns forever, for and in behalf of the United States, and to and for their only proper use and behoof in perpetuity," all and singular the trees, timber, woods, and underwoods of every sort and denomination, and the absolute, exclusive, and perpetual vesture of the same, being or to be growing, or to grow, planted or to be planted, in and upon all that tract and parcel of land containing 1,395 acres, two roods and twenty perches, situated partly in Jefferson and partly in Loudon counties, known as the Shannondale tract. The deed contains a proviso for ascertaining the amount of any damage which may ensue prospectively to the United States, in certain cases, from the exercise on the part of said Fairfax, his heirs or assigns, of any specific right, authority, &c., appertaining to the proprietorship of the soil, after which, and upon payment of the amount so ascertained, a license to proceed with the exercise of such specific right, &c., is to be granted on the part of the government.

The tract of land described in this conveyance lies on the south side of the Shenandoah, adjacent to that which was subsequently acquired by the United States from said Fairfax, by his deed of October 27, 1818.

(See No. 6, above.)

The object of the last mentioned purchase was the supply of the public workshops, offices, quarters, &c., at Harper's Ferry, with wood for fuel and other purposes. For a similar object, viz, the supply of the armory at that point with iron to be used in the manufacture of arms, &c. a purchase was made by the government in 1800, of certain iron ore in lands situated in the vicinity of Harper's Ferry. The following transfers took place on the latter purchase:

9. May 8, 1800. - By a deed of this date, Henry Lee and wife, in consideration of a payment to them of $24,000, convey directly to the United States, to hold "unto the said United States forever, to their only use and behoof," all ''the iron ore, with all the rights, &c., necessary for digging, raising and removing the same, in a certain tract of laud in Berkeley county, Virginia, (now in Jefferson county, West Virginia, which at the date of this deed formed a part of Berkeley,) adjoining the Potomac, containing about 1,600 acres, in which is a bank of iron ore known as "Friends' ore bank;" excepting so much thereof as has been conveyed by said Lee to John Potts and others. They also convey with the above, "one-half acre of land adjoining the said river, to be selected for the United States aforesaid by their agent, duly authorized by the Secretary of War," &c. I

June 20, 1800. - By a deed of this date, the said John Potts, with others, for a money consideration to them paid on behalf of the United States, sold and conveyed to "John Adams, President, &c., his successor and successors in office, for the use and on behalf of the United States," to hold "unto the said John Adams, his successor and successors in office, for the only proper use and behoof of the said United States, forever," the right of digging ore from "Friends' ore bank" held under said Henry Lee, &c. (There is also conveyed under this instrument a tract of land near "Keep Tryste furnace," which, however, has since been sold by the government under the authority of an act of Congress, approved March 3, 1819, 3 Stat., 521.)

By this last conveyance, the United States acquired title to all that was excepted out of the grant of Lee and wife of May 8, 1800, and thus became vested with the sole ownership of all the iron ore described in the two deeds last mentioned, and also one-half acre of land. It is understood that for a very long period the government has not worked or made any use or disposition of this ore bed, but the right thereto nevertheless appears to subsist and remain in the United States as fully as it formerly existed in the said Henry Lee.

The foregoing covers all the public property held and used, previous to the late rebellion, in connection with the armory at Harper's Ferry, West Virginia, of which the records of the War Department afford any information.

By the Virginia acts of 1792, 1819, and 1820, (see Tate's Digest of the Laws of Virginia, published in 1823,) the limitation of actions upon writs of formedon in descender, remainder, and reverter, and rights of entry, was twenty years; with a proviso that "if any person or persons entitled to such writ or writs, or to such right or title of entry, as aforesaid, shall be, or were, under the age of twenty-one years, feme covert, non compos mentis, imprisoned, or not within this commonwealth, at the time of such right or title, accrued or coming to them, every such person, and his or her heirs, shall and may, notwithstanding the said twenty years are or shall be expired, bring and maintain his action, or make his entry, within ten years next after such disabilities removed, or the death of the person so disabled, and not afterwards," The limitation of writs of right upon the possession or seizure of an ancestor or predecessor was fifty years, and of any other possessory action upon such possession or seizin forty years, next before the teste of the writ; but no person could maintain a real action upon his own possession or seizin, except within thirty years next before the teste of the writ.

But by more recent laws of the same State, (1830-'31 and 1836-'37 - see Code of Virginia, edition of 1849, page 590; also edition of 1860, page 636,) no entry can be made on, or action brought to recover, any land, except within fifteen years next after the right of entry or action accrued; with a saving, however, in favor of infants, married women, and insane persons, allowing ten years after disability ceases, provided that the whole period does not exceed thirty years from the time the action first accrued.

NOTE. - Robert Harper's will is dated September 26, 1782, but by a codicil was republished October 1, 1782, and it was probated October 15, 1782; so that his death must have transpired between the 1st and 15the of October, 1782.

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