United States v. Gear
44 U.S. 120 (1845)

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U.S. Supreme Court

United States v. Gear, 44 U.S. 3 How. 120 120 (1845)

United States v. Gear

44 U.S. (3 How.) 120

Syllabus

The act of Congress entitled "An act to create additional land districts in the States of Illinois and Missouri, and in the territory north of the State of Illinois," approved June 26, 1834, does not require the President of the United States to cause to be offered for sale the public lands containing lead mines situated in the land districts created by said act.

The said act does not require the President to cause said lands containing lead mines to be sold, because the 5th section of the Act of 3 March, 1807, entitled

"An act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut Reserve and for other purposes"

is still in full force.

The lands containing lead mines in the Indiana Territory, or in that part of it made into new land districts by the Act of 26 June, 1834, are not subject, under any of the preemption laws which have been passed by Congress, to a preemption by settlers upon the public lands.

The 4th section of the act of 1834 does in no way repeal any part of the 5th section of the Act of 3 March, 1807, by which the lands containing lead mines were reserved for the future disposal of the United States, by which grants for lead mine tracts, discovered to be such before they may be bought from the United States, are declared to be fraudulent and null, and which authorized

Page 44 U. S. 121

the President to lease any lead mine which had been, or might be, discovered in the Indiana Territory for a term not exceeding five years.

The land containing lead mines in the districts made by the act of 1834 are not subject to preemption and sale under any of the existing laws of Congress.

Digging lead ore from the lead mines upon the public lands of the United States is such a waste as entitles the United States to a writ of injunction to restrain it.

These two cases came up from the Circuit Court of the United States for the District of Illinois, and involved the right of Gear, the defendant, to a tract of land upon which there was a lead mine. The first was an action of trespass quare clausum fregit on the common law side of the court, and the second a bill in chancery with a prayer for an injunction to stay waste on the equity side. The declaration charged Gear with having broke and entered the north half section 23, township 29 north, range 1 east, and the south half of fractional section 8, township 28 north, range 1 east, both being east of the fourth principal meridian, and then and there dug up the mineral lead ore &c.

The defendant filed six pleas, all resting on the ground that he had settled, resided on, and occupied the land in question in the year 1827 and cultivated a part thereof, and had ever since remained, continued, and still was in the possession thereof, and was lawfully entitled to the preemption right to said quarter section, said premises being subject to preemption rights and not yet offered for sale by the President's proclamation, by reason whereof he, the defendant, dug lead ore or mineral, as he might lawfully do &c.

To these pleas the plaintiffs replied, in substance, that the quarter-section of land was and always had been the property of the plaintiffs; that it contained a valuable lead mine, the existence of which was well known to the defendant before and at the time he settled upon the land &c.

To these replications the defendant demurred generally, and the plaintiff's joined in the demurrer.

The same principles were involved in the chancery case, alleged, of course, in a different manner.

When the cause came up for argument in the court below, the judges were divided in opinion, and the questions duly certified to this Court. They are somewhat differently stated in the two cases, and it is proper to mention both.

In the chancery case they are thus stated:

1. Whether the act of Congress entitled "An act to create additional land districts in the States of Illinois, Missouri, and the territory north of the State of Illinois," approved June 26, 1834, so far repeals the 5th section of the Act of 3 March, 1807, entitled

"An act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut Reserve and for other purposes,"

as to subject the lands mentioned in said act of June 26, 1834, containing lead mines, to be entered and

Page 44 U. S. 122

purchased by preemption under any of the preemption laws of Congress?

2. Whether the said act (1834) requires the President of the United States to cause lands containing lead mines to be sold, or only authorizes him to do so in his discretion?

3. Whether lands containing lead mines are subject to be held or purchased under any of the acts of Congress granting the rights of preemption to settlers upon the public lands?

4. Whether the digging lead ore from the lead mines upon the public lands of the United States is such a waste as entitles the United States to the allowance of a writ of injunction to restrain?

In the common law case, they are thus stated:

1. Does the act of Congress, entitled "An act to create additional land districts in the states of Illinois and Missouri, and in the territory north of the State of Illinois," approved June 16, 1834, require the President of the United States to cause to be offered for sale the public lands situate in the land district created by said act, containing lead mines?

2. Does the said act require the President to cause said lands, containing lead mines, to be sold, notwithstanding the 5th section of the Act of 3 March, 1807, entitled

"An act making provisions for the disposal of the public lands situated between the United States military tract and the Connecticut Reserve, and for other purposes?"

3. Are the said lands, containing lead mines, subject to preemption under any of the preemption laws which have been passed by Congress?

4. Does the 4th section of the said act of 1834 so far repeal the 5th section of the act of 1807 as to subject the public lands containing lead mines to be sold by the United States in the same manner as other public lands not containing lead mines?

5. Are the said lands containing lead mines subject to preemption or sale under any of the existing laws of Congress?

The acts of Congress referred to are the following:

On 3 March, 1807, an act was passed, 1 Land Laws 162, by the 5th section of which it was enacted,

"That the several lead mines in the Indiana Territory, together with the many sections contiguous to each as shall be deemed necessary by the President of the United States, shall be reserved for the future disposal of the United States, and any grant which may hereafter be made for a tract of land containing a lead mine which had been discovered previous to the purchase of such tract from the United States shall be considered fraudulent and null. And the President of the United States shall be and he is hereby authorized to lease any lead mine which has been or may hereafter be discovered in the Indiana Territory for a term not exceeding five years. "

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At that time, the land now included within the State of Illinois was part of the Indiana Territory.

In 1827, Gear, the defendant, entered upon the north half of section 23, township 29 north, of range 1 east, erected a house upon it, cultivated and occupied it.

On 10 May, 1830, Congress passed "An act to grant preemption rights to settlers on the public lands," the first section of which was as follows:

"That every settler or occupant of the public land prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year 1829, shall be, and he is hereby, authorized to enter with the register of the land office for the district in which such lands may be, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a quarter-section, to include his improvement, upon paying to the United States the then minimum price of said land, provided, however, that no entry or sale of any land shall be made, under the provisions of this act, which shall have been reserved for the use of the United States, or either of the several states in which any of the public lands may be situated."

The 4th section declared that the sale of the public lands should not be delayed, nor should the act be available for those who failed to make proof and payment, and concluded as follows:

"Nor shall the rights of preemption contemplated by this act extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatsoever."

The act was to remain in force for one year after its passage.

On 5 April, 1832, Congress passed an "act supplementary to the several laws for the sale of the public lands," which permitted the public lands to be purchased either in entire sections, half-sections, quarter-sections, half quarter-sections, or quarter quarter-sections, and contained three provisions, the third of which was as follows:

"Provided further that all actual settlers, being housekeepers, upon the public land, shall have the right of preemption to enter, within six months after the passage of this act, not exceeding the quantity of one-half quarter-section, under the provisions of this act, to include his or their improvements, under such regulations as have been, or may be, prescribed by the Secretary of the Treasury,"

&c.

On 14 July, 1832, Congress passed "An act supplemental to an act granting the right of preemption to settlers on the public lands, approved on 29 May, 1830," which is too long to be quoted. The purport of it was to extend to occupants and settlers the privilege granted by the prior act until one year after the surveys had been made, or the land had been attached to a particular land district.

On 2 March, 1833, an act was passed reviving that of

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April 5, 1832, extending the privileges granted by that act to the same period as those just mentioned, and placing the beneficiaries of the two acts of 5 April and 14 July upon the same footing.

In 1834, two acts were passed, one on 19 and one on 26 June. That of the 19th was to revive the act to grant preemption rights to settlers on the public lands, approved May 29, 1830.

The 1st section declared that every settler or occupant of the public lands prior to the passage of the act, who was then in possession, and cultivated any part thereof in the year 1833, should be entitled to all the benefits and privileges provided by the act of 29 May, 1830, which act was revived and continued in force for two years.

The Act of 26 June was entitled "An act to create additional land districts in the States of Illinois and Missouri, and in the territory north of the State of Illinois."

The 4th section enacted

"That the President shall be authorized, as soon as the survey shall have been completed, to cause to be offered for sale, in the manner prescribed by law, all the lands lying in said land districts, at the land offices in the respective districts in which the land so offered is embraced, reserving only section 16, in each township, the tract reserved for the Village Galena, such other tracts as have been granted to individuals and the State of Illinois, and such reservations as the President shall deem necessary to retain for military posts, any law of Congress heretofore existing to the contrary notwithstanding."

On 22 June, 1838, an act was passed, the title of which was "An act to grant preemption rights to settlers on the public lands." It enacted that every actual settler of the public lands, being the head of a family, or over twenty-one years of age, who was in possession and a housekeeper, by personal residence thereon at the time of the passage of the act and for four months next preceding, should be entitled to all the benefits and privileges of the act of May 29, 1830, which act was thereby revived and continued in force for two years. It contained a number of provisions, one of which was that it should not be so construed as to give a right of preemption to any land specially occupied or reserved for town lots or other purposes by authority of the United States.

By the Act of 1 June, 1840, the above act was continued in force until 22 June, 1842, subject to the exceptions therein contained.

On 4 September, 1841, an act was passed entitled "An act to appropriate the proceeds of the sales of the public lands, and to grant preemption rights."

The 10th section granted preemption rights to actual settlers, with several limitations and exceptions, two of which were as follows, viz.:

Page 44 U. S. 125

"No lands included in any reservation by any treaty, law, or proclamation of the President of the United States, or reserved for salines or for other purposes,"

and "no lands on which are situated any known salines or mines, shall be liable to entry under and by virtue of the provisions of this act."

Page 44 U. S. 130

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