Duncan v. Navassa Phosphate Company/Opinion of the Court
It has been decided, at the present term, that the guano islands act of August 18, 1856, c. 164, (11 St. 119,) reenacted in title 72 of the Revised Statutes, is constitutional and valid; and that under that act, and by the action of the president, as appearing in documents of the department of state, and of which this court is bound to take judicial notice, the island of Navassa must be considered as appertaining to the United States. Jones v. U.S., ante, 80. The question now presented is whether Peter Duncan, the discoverer of the deposit of guano on that island, had such an estate or interest as to entitle his widow to dower. This question is brought before us by her appeal from a decree of the circuit court for the district of Maryland, which dismissed on demurrer her petition against the Navassa Phosphate Company and its receivers, which prayed an assignment of dower, or an allowance of a gross sum in commutation therefor. Duncan's only interest in the island or in the guano thereon, asserted in the petition of his widow, or shown in the public documents relating to the matter, was derived from the United States, and is defined in section 2 of the act aforesaid, which provides that 'the said discoverer or discoverers, or his or their assigns, being citizens of the United States, may be allowed,at  the pleasure of congress, the exclusive right of occupying said island,' 'for the purpose of obtaining said guano, and of selling and delivering the same to citizens of the United States, for the purpose of being used therein,' at certain rates specified. By the subsequent sections, the president is empowered to employ the land and naval forces of the United States to protect 'the rights of the said discoverer or discoverers, or their assigns, as aforesaid;' the criminal laws of the United States, and the laws regulating the coasting trade, are extended to guano islands; and nothing contained in the act is to be construed as obligatory on the United States to retain possession of the islands after the guano shall have been removed. Congress has not legislated concerning any civil rights upon guano islands, but has left such rights to be governed by whatever laws may apply to citizens of the United States in countries having no civilized government of their own. The whole right conferred upon the discoverer and his assigns is a license to occupy the island for the purpose of removing the guano. This right cannot last after the guano is removed, and, by the express terms of the act, it may be terminated at any time 'at the pleasure of congress.' The act, as well observed by Mr. Dana in his notes to Wheaton, 'secures to citizens the usufruct of unoccupied guano deposits which they have discovered and peacefully occupied, beyond the jurisdiction of any foreign state, upon certain terms as to the sale and exportation of the guano, and stipulates for nothing beyond the usufruct while the guano remains.' Wheat. Int. Law, (8th Ed.) note 104 to section 176.

It is a matter of grave doubt, to say the least, whether such a license, if irrevocable, could be treated as creating an estate subject to dower at common law, and whether the common law upon the subject could be held to be in force in the island of Navassa. But is unnecessary to decide either of those questions, because, if both of them should be answered in the affirmative, there remains the insurmountable obstacle to the petitioner's claim, that the interest of her husband, if it can possibly be considered as an estate in land, is an estate at the will of the United States, from whom it was derived, and is therefore not subject to dower at common law. Even a copyhold, which was practically an estate of inheritance, yet, because it was legally an estate at the will of the lord, was not liable to dower, except by and according to local custom. 2 Bl. Comm. 132; 1 Scrib. Dower, (2d Ed.) 369. It is argued that, even if Duncan was only a tenant at will, yet the Navassa Phosphate Company, claiming under Cooper, the original assign of Duncan, by mesne assignments, among which were a reconveyance of the island by Cooper to Duncan, and a second conveyance by Duncan to Cooper, is estopped to deny that Duncan had an inheritable estate in the island. The conclusive answer to this argument is that the petition alleges that the Navassa Phosphate Company holds the island under and through the title of Duncan, and through no other title; and does not show that either of the two conveyances from Duncan to Cooper, or the intermediate reconveyance by Cooper to Duncan, or any of the mesne assignments under which the Navassa Phosphate Company claims, purported to be of an estate in fee, or of any other or greater interest than the right secured by the act of congress, and recognized by the proclamation of the president, referred to in the petition, and set forth in Jones v. U.S., ante, 80. The question argued by counsel, and upon which there is a conflict of authority, whether a grantee, accepting a deed purporting to convey a greater estate than the grantor actually had, is thereby estopped to deny, as against the grantor's widow, that he had such an estate, does not arise. The petitioner's claim of dower is not aided by the act of congress of April 2, 1872, c. 81, by which the provisions of the act of 1856 are 'extened  to the widow, heirs, executors, or administrators of such discoverer, where such discoverer shall have died before perfecting proof of discovery or fully complying with the provisions of said act;' 'provided, that nothing herein contained shall be held to impair any rights of discovery, or any assignment by a discoverer, heretofore recognized by the government of the United States.' 17 St. 48; Rev. St. §§ 5572, 5574. The petitioner claims, and can claim, no rights under that act, both because her husband had died before its passage, and because the assignment of his right to Cooper had been recognized by the United States in the proclamation of the president, above mentioned. It is argued for the petitioner that the act of 1872 is 'in the nature of a statutory recognition of the widow's derivative right, and the widow's only right at common law is dower.' But the statute does not purport to secure the right of the discoverer to his widow and heirs only. It mentions his 'widow,' who might be entitled to dower in his real estate, and to a share of his personal estate under the statute of distributions of his domicile; his 'heirs,' who as such would take real estate only, but as next of kin might take personal property; and his 'executors or administrators,' who would take personal property only, and no interest in real estate. Whether the statute intends that the whole right shall pass either to the widow, or to the heirs, or to the executors and administrators, in the order named, or that it shall be distributed among them under whatever law may regulate the succession to his estate, according to its nature as realty or personalty, might be a question of some difficulty. But it is impossible to find in this act any manifestation of an intention of congress that the interest of the discoverer should be subject to dower, or even that it should be considered as real estate rather than as personal property. Decree affirmed. 

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