Under the acts of Congress providing for the subdivision of the
public lands and the instructions of the Secretary of the Treasury,
made under the Act of 24 April, 1820, entitled "An act, making
further provision for the sale of the public lands," it is the duty
of the Surveyor General to lay out a fractional section in such a
manner that an entire quarter-section may be had if the fraction
will admit of it.
The Surveyor General has no right to divide a fractional section
by arbitrary lines so as to prevent a regular quarter-section from
being taken up.
This was an ejectment brought by the plaintiffs in error to
recover 2 40/100 acres of land in the possession of Clements as the
tenant of Hunt. The plaintiff claimed title through a patent to
James Etheridge, and the defendants through a patent to W. D.
Stone. Both Etheridge and Stone claimed as preemptioners under the
Act of Congress passed on 29 May, 1830.
The question depended upon the manner in which the fractional
section twenty-two, in township four south of range one west in the
district of lands subject to sale at St. Stephens, Alabama, should
be laid out.
A reference to the annexed diagrams will make it more
intelligible.
image:a
Nos. 1, 2, 3, 4 represent the whole section, but in consequence
of prior claims or grants, only that part of it included within 1,
5, 6, 7, 8, 9, 10 was subject to entry, containing the entire
southwest quarter-section and some additional land upon the east
and north. The surveyor divided the whole of this into two parts by
a line running from 11 to 12, one of which parts (marked A)
contained 92.67 acres, and the other (marked B) contained 110.50.
The
Page 44 U. S. 651
plaintiff claimed to extend the part A over the whole square
which constituted the quarter-section, as represented by dotted
lines.
On 28 January, 1831, Etheridge presented the following
application and affidavit:
"To the Register and Receiver of the land office at St.
Stephens: "
"You will please to take notice that I, James Etheridge, of
Mobile County, Alabama, claim the right of preemption, under the
Act of Congress of 29 May, 1830, to the southwest quarter-section
22, t. 4, r. 1 west."
"
Affidavit. -- James Etheridge, being sworn, maketh
oath that the above described tract of land was planted and
cultivated by him in the year 1829, and remained in his possession
from the year 1829 until after 29 May, 1830. That the said land was
occupied and cultivated by him in his own right, and not as the
tenant of any other person. That the said land was enclosed with
his own fence, and that there was no person concerned with him in
the occupation and cultivation of the said land, and that the
present claim does not interfere with the right of any other
person, and that he believes he is entitled to the same under the
Act of Congress of 29 May, 1830, and that the said tract is within
the corporate limits of the City of Mobile."
"J. ETHERIDGE"
The affidavit was sustained by the oaths of Daniel Robertson and
John Carr.
On 25 March, 1831, Stone presented the following application and
affidavit:
"To the Register and Receiver of the land office at St.
Stephens, Alabama: "
"You will please to take notice that I, William D. Stone, of
Mobile County, Alabama, claim the right of preemption, under the
Act of Congress of 29 May, 1830, to the fraction situated in the
west part of the southeast quarter of section 22 in township 4,
range 1, west of 13."
"WILLIAM D. STONE"
"
Affidavit. -- William D. Stone, being sworn, maketh
oath that the above described tract of land was planted and
cultivated by him in the year 1829 and remained in his possession
from the year 1829 until 29 May, 1830, and that the said land was
occupied and cultivated by him in his own right, and not as the
tenant of any other person. That the said tract of land was
enclosed with his own fence, and that there was no person concerned
or connected with him in the cultivation of the said land, and that
this present claim does not interfere with the rights of any other
person, and further that the tract described is within the present
corporate limits of the City of Mobile."
"WILLIAM D. STONE"
The affidavit was supported by the oaths of Samuel H. Garrow and
James Dowell.
Page 44 U. S. 652
On 20 June, 1831, the register and receiver issued the following
certificate:
image:b
The account of sales was entered in the book at some period
which the record does not show, and was as follows:
Extract from account of land sold by register and receiver.
image:c
On 30 April, 1832, the register gave to Etheridge the following
certificate:
"
G. -- Certificate"
"
Preemption No. 4,539, Act 29 May, 1830"
"
Land Office, St. Stephens, Ala., April 30,
1832"
"It is hereby certified that in pursuance of law, James
Etheridge, of Mobile County, Alabama, on this day purchased of the
register of this office the lot or southwest quarter of section
number twenty-two, of township No. 4 south, in range number one
west, containing ninety-two 67/100 acres, at the rate of one dollar
and twenty-five cents per acre, amounting to one hundred and
fifteen 83/100 dollars,
Page 44 U. S. 653
for which the said James Etheridge has made payment in full, as
required by law."
"Now therefore be it known that on presentation of this
certificate to the Commissioner of the General Land Office, the
said James Etheridge shall be entitled to receive a patent for the
lot above described."
"JOHN B. HAZARD, Register"
On the same day, a certificate was issued to Stone, as appears
from the following extract from the record of certificates issued
for lands sold.
image:d
On 17 December, 1832, a patent was issued to Stone. It granted
the land described in the following preamble:
"
Preemption certificate, No. 4,549 -- The United States of
America,"
"
to all to whom these present shall come,
greeting:"
"Whereas William D. Stone, of Mobile, has deposited in the
General Land Office of the United States a certificate of the
register of the land office at St. Stephens whereby it appears that
full payment has been made by the said William D. Stone, according
to the Act of Congress of 24 April, 1820, entitled 'An act making
further provision for the sale of the public lands,' for the
southeast subdivision of fractional section twenty-two, in township
four, south of range one west, in the district of lands subject to
sale at St. Stephens, Alabama, containing one hundred and ten acres
and fifty one-hundredths of an acre, according to the official plat
of the survey of said land returned to the General Land Office by
the Surveyor General, which said tract has been purchased by the
said William D. Stone."
"Now know ye,"
&c.
On 30 May, 1833, a patent was issued to Etheridge for the land
described in the preamble.
"
Preemption certificate, number 4,539"
"
The United States of America, to all to whom these
presents"
"
shall come, greeting:"
"Whereas James Etheridge, of Mobile County, Alabama, has
deposited in the General Land Office of the United States a
certificate of the register of the land office at St. Stephens
whereby it appears that payment has been made by the said James
Etheridge,
Page 44 U. S. 654
according to the provisions of the Act of Congress of 24 April,
1820, entitled 'An act making further provisions for the sale of
the public lands,' for the southwest quarter of section twenty-two,
in township four, south of range one west, in the district of lands
subject to sale at St. Stephens, Alabama, containing ninety-two
acres and sixty-seven hundreths of an acre, according to the
official plat of the survey of the said lands returned to the
General Land Office by the Surveyor General, which said tract has
been purchased by the said James Etheridge."
"Now know ye,"
&c.
In April, 1838, Brown and wife, claiming under the title of
Etheridge, brought an ejectment against Clements for the east half
of the southwest quarter of fractional section twenty-two. The case
came on for trial at the April term, 1841, in the Circuit Court of
the State of Alabama for the County of Mobile, in the course of
which the following bill of exceptions and agreement were
filed.
"
Bill of Exceptions"
"Be it remembered that upon the trial of this cause, the
plaintiffs gave in evidence the paper hereto annexed, marked A,
being a duly certified copy of a patent from the United States
government to James Etheridge, and thereupon it was admitted by the
defendants that the plaintiffs had, at the date of the demise and
time of trial, all the rights of said patentee Etheridge in the
land described in the declaration. Plaintiffs also gave in evidence
paper marked B, hereto annexed, being a plat of a survey made and
returned, under an order of this Court, by the Surveyor for the
County of Mobile, and proved by said surveyor that said survey was
truly made according to said order and that the plat returned shows
correctly the external lines and corners of said fractional section
twenty-two. That he found the southwest corner of said fractional
section as shown by the plat returned, and also found, on the
section lines of said fractional section, the half-mile posts, each
post being a half mile from the southwest corner of said fractional
section. That these posts bore evidence of being those put down by
the United States surveyor on running the section lines. That an
entire southwest quarter exists in said fractional section, without
interference with any private land claim and leaving a residuum
both on the north and on the east of said quarter-section, as shown
by the plat returned by him, and also that said fractional section
contains two hundred and ten acres. The defendants admitted that
they were in possession, at the time of service of the declaration,
of sixteen acres of the land described in the declaration. The
defendants gave in evidence, by consent of plaintiffs, a certified
copy of a patent from the United States government to William D.
Stone, hereto annexed, marked No. 1, and thereupon it was admitted
by the plaintiffs that the defendants have all the rights of the
said patentee, Stone, in
Page 44 U. S. 655
the land admitted to have been in their possession at the time
of the service of the declaration."
"The defendants offered in evidence duly certified copies of the
official township plats of 1832 and 1835 of the township in which
the land sued for is situated, extracts from which are hereunto
annexed, marked No. 2, to show the boundaries and contents of the
land described in said patents to said Etheridge and to said Stone,
without having offered or professing to have any other evidence
than the plats themselves afford to prove that the subdivision,
corners, and lines dividing said fractional section, as exhibited
in the said plats, had been run and marked on the ground. To the
admission of which evidence the plaintiffs objected, and their
objection was overruled and said plats allowed to go to the jury.
The plaintiffs admitted that if the line, as marked on said extract
from plats (No. 2) dividing lots A and B, is a legal line, lot B,
as exhibited, will cover the land sued for."
"The plaintiffs further gave in evidence that the said line and
corners, as exhibited on the extract (No. 2), had never been run or
marked on the ground, and also gave in evidence papers marked C, D,
E, F, G, H, being duly certified transcripts of records from the
land office at St. Stephens, Alabama."
"The defendants gave in evidence paper marked No. 3, being a
duly certified copy of the instructions of the Secretary of the
Treasury bearing date 10 of June, 1820, also 20 January, 1826."
"The plaintiffs gave in evidence paper marked I, being a duly
certified copy of the circular of the Secretary of the Treasury of
date 8 May, 1832."
"Upon the foregoing evidence the court instructed the jury that
if they believed the same, they must find for the defendants. The
court further instructed the jury that if said fractional section
(No. 22) was capable of being subdivided into an entire southwest
quarter-section and two half quarter-sections, leaving a residuum
as shown by the said map and evidence of the county surveyor, still
the Surveyor General was not required, under the acts of Congress
providing for the subdivision of the public land and the
instructions of the Secretary of the Treasury made under the Act of
24 April, 1820, entitled 'An act making further provision for the
sale of the public lands,' to make, in his subdivision of the same,
either such quarter-section or half quarter-sections, but might
lawfully subdivide the same into two lots (A and B), as indicated
by said plat of 1832, and that under said evidence, Etheridge's
title would not hold the whole southwest quarter of said fractional
section, but only lot A, and that Stone's title would hold lot B,
being the balance of said fractional section."
"To which instructions and each and every of them the
plaintiffs,
Page 44 U. S. 656
by their counsel, except, and pray the court to sign and seal
this their bill of exceptions."
"E. L. DARGAN [SEAL]"
"Agreement of the parties:"
"The parties to this cause, not wishing to encumber the record
by copying from the book entitled"
"General Public acts of Congress respecting the sale and
disposition of the public lands, with instructions issued from time
to time by the Secretary of the Treasury and Commissioner of the
General Land Office, and official opinions of the Attorney General
on questions arising under the land laws,"
"and which instructions are contained in the 2d volume, part 2d,
prepared and printed by order of the Senate, agree that said book
may be used by either party, and anything therein contained read as
illustration of the practice of the land office, and construction
that the acts of Congress had received in that branch of the
government. The same work can be referred to by either party in the
Supreme Court for the purpose aforesaid. The parties further agree
that for exhibit No. 2, being the official map of the survey of the
township described in the patents of both plaintiffs and
defendants, the map contained in the same book above described,
between pages 134 and 135, shall be referred to as if the same was
incorporated with, and formed a part of the record in this
cause."
"SHERMAN & CHAMBERS"
"Attorneys for plaintiffs"
"GORDON, CAMPBELL & CHANDLER"
"Attorneys for defendants"
The jury having found for the defendants under the above
instructions, the case was carried to the Supreme Court of the
State of Alabama, where the opinion of the court below was
affirmed.
A writ of error brought it to this Court.
Page 44 U. S. 660
MR. JUSTICE McKINLEY delivered the opinion of the Court.
The plaintiffs brought an action of ejectment against the
defendants, in the Circuit Court for the County of Mobile, in said
state, and upon the trial they read in evidence the following claim
and entry:
"To the register and receiver of the land office at St.
Stephens:"
"You will please take notice, that I, James Etheridge, of Mobile
County, Alabama, claim the right of preemption under the Act of
Congress of 29 May, 1830, to the southwest quarter-section 22,
township 4, range 1 west,"
and that on 28 January, 1831, the said James Etheridge made the
necessary proof that he had planted and cultivated said
quarter-section in the year 1829, and remained in possession until
after 29 May, 1830. The plaintiff also read in evidence a patent
from the United States bearing date 30 May, 1833, reciting that
"Whereas James Etheridge, of Mobile County, Alabama, has
deposited in the General Land Office of the United States a
certificate of the register of the land office at St. Stephens
whereby it appears that payment has been made by the said James
Etheridge, according to the provisions of the Act of Congress of 24
April, 1820, entitled 'An act making further provision for the sale
of the public lands,' for the southwest quarter of section 22, in
township 4, south of range 1 west, in the district of lands subject
to sale at St. Stephens, Alabama, containing ninety-two acres and
sixty-seven hundredths of an acre, according to the official plat
of the survey of the said lands returned to the General Land Office
by the Surveyor General, which said tract has been purchased by the
said James Etheridge."
"Now know ye that the United States of America, in consideration
of the premises and in conformity with the several acts of Congress
in such case made and provided, have given and granted and by these
presents do give and grant unto the said James Etheridge and to his
heirs the said tract above described,"
&c.
Page 44 U. S. 661
In obedience to an order of the circuit court, the Surveyor of
Mobile County went upon the land in controversy and made an actual
survey, and returned a plat thereof into court showing that the
section 22 was covered by private land claims except the whole of
the southwest quarter, on which James Etheridge had made his entry
and a small fraction in the southeast quarter, entered, under the
preemption law, by William D. Stone and a fraction in the northeast
and northwest quarters of said section, which plat was given in
evidence to the jury. And the plaintiffs proved by the surveyor
that he found the southwest corner of said fractional section as
shown by the plat returned, and also found, on the section lines of
said fractional section, the half-mile posts, each post being half
a mile from the southwest corner of said fractional section; that
these posts bore evidence of being those put down by the surveyor
of the United States on running the section lines; that an entire
southwest quarter-section exists in said fractional section,
without interfering with any private land claim, leaving a residuum
on the north and the east of said quarter-section.
The defendants gave in evidence to the jury the following claim
and entry, made by the said William D. Stone:
"To the register and receiver of the land office at St. Stephens
Alabama:"
"You will please take notice that I, William D. Stone, of Mobile
County, Alabama, claim the right of preemption under the act of
Congress of 29 May, 1830, to the fraction situated in the west part
of the southeast quarter of section 22, in township 4, range 1 west
of 13."
And on 25 March, 1831, he made the necessary affidavit and proof
to show that he had planted and cultivated the above described
tract of land, according to said act of 29 May, 1830. And they also
gave in evidence the following patent:
"The United States of America to all to whom these presents
shall come, greeting:"
"Whereas William D. Stone, of Mobile, has deposited in the
General Land Office of the United States a certificate of the
register of the land office at St. Stephens whereby it appears that
full payment has been made by the said William D. Stone, according
to the Act of Congress of 24 April, 1820, entitled 'An act making
further provision for the sale of the public lands,' for the
southeast subdivision of fractional section 22, in township 4
south, of range 1 west, in the district of lands subject to sale at
St. Stephens, Alabama, containing one hundred and ten acres and
fifty-one hundredths of an acre, according to the official plat of
the surveyor of said land, returned to the General Land Office by
the Surveyor General, which said tract has been purchased by the
said William D. Stone:"
"Now know ye that the United States of America, in consideration
of the premises and in conformity with the several acts of Congress
in such case made and provided, have given and granted and by these
presents do give and grant unto the said William D. Stone and his
heirs the said tract above described, "
Page 44 U. S. 662
&c. And it was admitted by the plaintiffs that the
defendants had all the rights of said Stone in the land admitted to
have been in their possession at the time of the service of the
declaration, and the defendants admitted that the plaintiffs had,
at the date of the demise and time of trial, all the rights of said
patentee Etheridge in the land described in the declaration.
And the parties,
"not wishing to encumber the record by copying from the book
entitled"
"General acts of Congress respecting the sale and disposition of
the public lands, with instructions issued, from time to time, by
the Secretary of the Treasury, and Commissioner of the General Land
Office, and official opinions of the Attorney General on questions
arising under the land laws,"
"and which instructions in the 2d vol., part the 2d, prepared
and printed by the Senate, agree that said book may be used by
either party and anything therein contained read as illustration of
the practice of the land office, and construction that the acts of
Congress had received in that branch of the government. The same
work can be referred to by either party in the Supreme Court for
the purpose aforesaid. The parties further agree that the exhibit,
No. 2, being the official plat of the survey of the township
described in the patents of both plaintiffs and defendants, between
pages 134 and 135, shall be referred to as if the same was
incorporated with and formed a part of the record in this
cause."
This statement furnishes all the evidence deemed necessary and
pertinent to the investigation of the questions involved in the
principal instruction of the circuit court, to the jury, on the
trial of the cause, which instruction is as follows:
"The court further instructed the jury that if said fractional
section, No. 22, was capable of being subdivided into an entire
southwest quarter-section, and two half quarter-sections, leaving a
residuum, as shown by said map and evidence of the county surveyor,
still the Surveyor General was not required, under the acts of
Congress providing for the subdivisions of the public lands, and
the instructions of the Secretary of the Treasury, made under the
Act of 24 April, 1820, entitled 'An act, making further provision
for the sale of the public lands,' to make in his subdivision of
the same, either such quarter-section or half quarter-sections, but
might lawfully subdivide the same into two lots, A and B, as
indicated by said plat of 1832, and that under said evidence,
Etheridge's title would not hold the whole southwest quarter of
said fractional section, but only lot A, and that Stone's title
would hold lot B, being the balance of said fractional
section."
To this instruction the plaintiffs excepted.
Upon the construction here given to the act of Congress, and to
the instructions of the Secretary of the Treasury thereon, referred
to in the above instruction of the court, depends the whole
controversy between the parties to this suit. The 1st section of
the act of Congress, above referred to, is in these words:
"That from and after
Page 44 U. S. 663
the first day of July next, all the public lands of the United
States, the sale of which is, or may be, authorized by law, shall,
then offered at public sale to the highest bidder, be offered in
half quarter-sections, and when offered at private sale, may be
purchased, at the option of the purchaser, either in entire
sections, half sections, quarter-sections, or half
quarter-sections, and in every case of the division of a
quarter-section, the line for the division thereof shall run north
and south, and the corners and contents of half quarter-sections,
which may hereafter be sold, shall be ascertained in the manner and
on the principles directed and prescribed by the second section of
an act, entitled"
"An act concerning the mode of surveying the public lands of the
United States, passed the 11th day of February, 1805, and
fractional sections, containing one hundred and sixty acres, or
upwards, shall, in like manner, as nearly as practicable, be
subdivided into half quarter-sections, under such rules and
regulations as may be prescribed by the Secretary of the
Treasury."
3 Story Laws 1774.
The settled policy of Congress has been to survey the public
lands in square figures, running the lines north and south and east
and west, and to extend the subdivisions authorized by law as far
as practicable in square figures to the lowest denomination.
The second section of the Act of 18 of May, 1796, chap. 29,
directs that the public lands
"shall be divided by north and south lines, run according to the
true meridian, and by others crossing them at right angles, so as
to form townships six miles square, unless where the line of the
late Indian purchase or of tracts of land heretofore surveyed or
patented or the course of navigable rivers may render it
impracticable, and then this rule shall not be departed from
further than such particular circumstances may require."
After directing how townships should be divided into sections,
it directs that
"fractional townships shall be divided into sections in manner
aforesaid, and the fractions of sections shall be annexed to, and
sold with, the adjacent entire sections."
I Story Laws 422. The lowest denomination authorized by this act
was sections, but the direction to the surveyor was to divide the
fractional townships into as many sections as the particular
circumstances would permit. And so by the 1st section of the Act of
25 April, 1820, the surveyor is directed to subdivide fractional
sections, containing one hundred and sixty acres and upwards, into
as many half quarter-sections as practicable by running the lines
north and south. And this statute conferred no power on the
Secretary of the Treasury to make any regulation by which a
fractional section might be divided into any quarter or other
subdivision than half quarter-sections. The only authority he
acquired by the statute was to make such rules and regulations as
would enable the surveyor to make the greatest number of half
quarter-sections out of a fractional section by running the lines
north and south, or east and west, and this
Page 44 U. S. 664
power he executed, by his circular letter to the surveyors
general of 10 June, 1820, 2d part, Public Land Laws 820.
Had the Surveyor General subdivided the fractional section 22
now in controversy according to law, there would have been two half
quarter-sections in the southwest quarter, making that quarter
complete, a fractional section in the southeast quarter, and a
fractional section in the northeast and northwest quarters, making
four tracts or subdivisions instead of two, as returned by him to
the land office of the district. None of the lines, subdividing
sections, is required by law to be made by actual survey and marked
on the land, but they are to be delineated on the township plats
according to the 2d section of the Act of 11 May 1805, chap. 74,
referred to in the Act of 24 April, 1820, 2 Story Laws 961. When
the township and section lines are run and the corners marked
according to law, the quarter-section lines are ascertained on the
plat by protracting lines across the section north and south, and
east and west, equidistant from the section lines, and so of other
subdivisions. And a surveyor going on the land to ascertain the
boundary of a quarter or half-quarter section would do it with as
much ease and certainty as if it had been delineated on the plat by
the Surveyor General. Extending the subdividing lines on the
township plats is not, therefore, essentially necessary to enable
the register to sell the land or to give title to the purchaser.
The register is as much bound to know what is a legal subdivision
of a section or fractional section as is the Surveyor General.
Because he is directed by law to offer the lands, when sold at
public sale, in half quarter-sections. To enable him to perform
this duty, he must know what a half quarter-section is. And before
he can offer a fractional section for sale, he must see that it has
been subdivided so as to enable him to offer as much of it in half
quarter-sections as practicable. When Etheridge applied to purchase
the southwest quarter of this fractional section at private sale,
as he had a right to do under the act granting preemption rights,
the register was bound to know whether such a subdivision could be
obtained according to law. A bare inspection of the township plat
must have satisfied him in this case that it was practicable to
obtain an entire quarter-section in the southwest corner of the
fractional section 22. The 1st section of the act of 24 April,
1820, directed that this fractional section should be divided into
as many half quarter-sections as practicable by lines north and
south, and the instructions given by the Secretary of the Treasury
under this act directed that it should be divided into half
quarter-sections by north and south or east and west lines, so as
to preserve the most compact and convenient forms.
There is nothing in any of the acts of Congress nor in the
instructions of the Secretary of the Treasury to authorized the
division of
Page 44 U. S. 665
this fractional section made by the Surveyor General, and it
being a violation of the law and contrary to the duties of his
office, it must be regarded as a void act.
Miller v.
Kerr, 7 Wheat. 1. So far as Stone's claim was
concerned, this division of the fractional section has been treated
by the register and the Commissioner of the General Land Office as
a legal subdivision, and the register seems to have disregarded
entirely the act granting preemption rights and Stone's claims and
proofs under it, and to have transferred his claim to the western
lot of the fractional section as divided by the Surveyor General.
The certificate of the register recited in the patent of Etheridge
takes no notice of this subdivision of the fractional section, but
states that Etheridge had "purchased of the register the lot or
southwest quarter of section, number 22," &c. The patent is for
the whole of the southwest quarter of section 22, by its proper
designation, and if no quantity of land had been expressed in it,
all the land contained in the quarter-section would have passed by
the patent to Etheridge, because, by the 2d section of the act of
11 February, 1805, before referred to, it is provided that
"Half-sections and quarter-sections the contents of which have
not been returned shall be held and considered as containing the
one-half, or the one-fourth respectively, of the contents of the
section of which they make part."
The surveyor failed to return the contents of the
quarter-section in this case; it was liable, therefore, to be sold
by the above rule. But it has been insisted that Etheridge and
those claiming under him were bound and concluded by the number of
acres expressed in the patent. It is evident the quarter-section
was not referred to for the number of acres contained in it, but by
express words reference was made to the plat returned by the
Surveyor General showing the division of the fractional section
into two parts, one of which contains the number of acres expressed
in Etheridge's patent and the other the number of acres expressed
in Stone's patent. It has been already shown that this plat was
illegal and the subdivision of the fractional section void, and any
reference, therefore, to this plat to show the number of acres
granted to Etheridge is illegal and inconsistent with every
previous step taken towards perfecting his title and utterly
repugnant to the previous words of grant used in the patent.
Thus it appears that neither the claim of Etheridge, filed with
the register, the certificate of purchase issued by him, nor the
patent issued to Etheridge by the Commissioner of the General Land
Office is founded on the division of the fractional section made by
the Surveyor General, but the whole appears to be founded on the
subdivision of the fractional section into one quarter-section and
two fractional sections, made by actual survey on the land. It is
true that in undertaking to state the quantity of land contained in
the quarter-section, reference is made to what is there called the
official plat of the lands returned to the General Land Office by
the Surveyor
Page 44 U. S. 666
General which is nothing more than a reference to this same
subdivision of the fractional section so often mentioned. But this
question necessarily arises how can the contents of either division
of the fractional section, thus divided into two lots or
subdivisions, show the contents or number of acres in the southwest
quarter of the same section? The ninety-two acres and sixty-seven
hundredths of an acre mentioned in the patent is the number of
acres contained in the western subdivision of said fractional
section, and consists of part of the southwest and part of the
northwest quarters of the fractional section, as appears by the
plat used on the trial. No part of the northwest quarter of this
fractional section can by any reasonable construction be considered
as being within and part of the land included in a patent for the
southwest quarter of the section. This proves that the reference to
this plat in Etheridge's patent is both delusive and illegal, and
must therefore be rejected as void and inoperative.
The Act of 29 May, 1830, to grant preemption rights to settlers
on the public lands, chap. 209, appropriated this quarter-section
of land, on which Etheridge was then settled, to his claim under
the act for one year, subject, however, to be defeated by his
failure to comply with its provisions. During that time, this
quarter-section was not liable to any other claim or to be sold to
any other person except at public sale under the proclamation of
the President of the United States, and that Etheridge had a right
to prevent by paying for it as directed by the act. And as he has
complied with all the requisitions of the act, as far as the
mistakes and illegal acts of the ministerial officers of the
government would permit, he has acquired a good title by his patent
against the United States for the whole of said southwest
quarter-section. The remaining question is whether Etheridge's
title is good against Stone's patent. Stone claimed
"the right of preemption under the Act of Congress of 29 May,
1830, to the fraction situated in the west part of the southeast
quarter of section 22 in township 4, range 1 west."
This claim confined his preemption right to that specific
fraction. And although the act gave to every settler on the public
lands the right of preemption of one hundred and sixty acres, yet
if a settler happened to be seated on a fractional section,
containing less than that quantity, there is no provision in the
act by which he could make up the deficiency, out of the adjacent
lands, or any other lands. The only case provided for in the act by
which the preemptioner had the right to enter land outside of the
quarter or fractional section on which he was settled at the
passage of the act is the case provided for in the 2d section. When
two or more persons were settled on the same quarter-section, it
might be divided between the two first settlers, and each be
entitled to a preemption of eighty acres of land elsewhere in the
same land district. But in this case, Stone was not only permitted
to take
Page 44 U. S. 667
land outside of the fractional section on which he was settled,
but he was permitted to take land on which Etheridge was settled
and to which he had previously proved his right under the same act
of Congress.
In the case of
Lindsay v.
Miller, 6 Pet. 674, the plaintiffs in ejectment
claimed title under a patent, dated 1 December, 1824, founded on an
entry and survey made in the same year. The defendants claimed
title under an entry, made in January, 1783, upon a military
warrant, for services rendered in the Virginia state line, and a
survey made thereon in the same month and recorded on 7 April, of
the same year and a patent issued by the State of Virginia in
March, 1789. This land lay in what is called the military district,
between the Rivers Scioto and Little Miama in the State of Ohio.
This district had been reserved, in the deed of cession, dated 1
March, 1784, made by Virginia to the United States, to satisfy the
claims of the Virginia troops on continental establishment in the
event of there not being sufficient good land for that purpose in a
reservation previously made by Virginia on the southeast side of
the Ohio River. Although the defendants proved possession under
this title for upwards of thirty years, the entry, survey, and
patent were adjudged by the court to be void on the ground that the
land had been reserved for the satisfaction of military warrants,
granted for services of the Virginia troops on continental
establishment, and was not, therefore, subject to entry upon
warrants for services rendered in the Virginia state line.
In the case before the Court, all the land in the southwest
quarter of the fractional section had been appropriated by law to
satisfy Etheridge's claim, and no other land could be substituted
in lieu of that quarter-section for any part of it. Stone's claim
arose under the same law, and by the same provisions was confined
to the fraction in the west part of the southeast quarter of the
same section, and gave no right to land elsewhere. So much of the
patent to Stone as purports to grant land within the southwest
quarter of the section is therefore not only an appropriation of
land to his claim, not subject to it according to the act, but
which, by the same act, had been appropriated to another claim
arising under the same act, concurrent with and equal in all
respects to Stone's claim. How then could his patent give him title
to land that was not subject to his claim -- land that he never had
legally claimed, and to land that by law had been appropriated to
and claimed by another? It seems to us this case is clearly within
the principles settled in the case above referred to, and that the
patent granted to Stone is void for so much of the land included in
it as lies within the said southwest quarter of the fractional
section, and for which Etheridge holds a patent.
It has been insisted, however, that as Etheridge only paid for
the quantity of land mentioned in his patent, that he can have no
right
Page 44 U. S. 668
to land paid for by Stone and included in his patent. This is
one of the results of the mistaken and illegal acts of the
ministerial officers of the government, which, as already shown,
can neither benefit one party, nor prejudice the rights of the
other. The United States has received full payment for all the land
contained in both patents. And if Stone has paid for land which
belonged to Etheridge, that is a matter to be adjusted between
themselves, amicably or by law, as they may choose.
Upon a full view of the whole case, it is the opinion of the
Court that the judgment of the Supreme Court of Alabama be
Reversed.
MR. JUSTICE CATRON.
I feel myself bound to dissent from the foregoing opinion for
the following reasons:
1. By the Act of 29 May, 1830, a preemption right settler then
in possession was entitled to enter with the register of the land
office in the district where the land lay, by legal subdivisions,
not more than one hundred and sixty acres.
The controversy before us turns partly on what was the true
"legal subdivision" of fractional section 22, containing two
hundred and three acres. This must be ascertained from the laws on
the subject existing in 1830. The lines of public surveys actually
run and marked in the field are township extensions and section
boundaries; the lines dividing sections into quarters,
half-quarters (and quarter-quarters since 1832), being only
indicated, or depicted upon the township plats returned and
recorded in the office of the register.
The Act of 26 March, 1804, provides for the first time for the
sale of the public lands in quarter-sections, and also directs
(sec. 9) that fractional sections shall be sold entire, or by
uniting two or more together. The act of February 11, 1805, directs
with absolute precision, leaving no discretion on the subject, the
manner in which full sections shall be divided into quarters, but
makes no provision for the subdivision of fractional sections. It
was not until the passing of the Act of April 24, 1820, that these
were authorized to be subdivided, and then only when they contained
more than one hundred and sixty acres. The act of 1820, in
directing the manner in which full sections shall be subdivided
into half-quarters, or eighty-acre lots, is as absolutely precise
in its provisions as that of 1805, and, as in the former case,
gives no discretionary power so far as these subdivisions are
concerned -- but in authorizing the subdivision of fractional
sections containing one hundred and sixty acres and upwards, it
directs that they shall in like manner, "as nearly as practicable,"
be subdivided into half-quarter sections, or eighty acre lots --
"under such rules and regulations as may be prescribed by the
Secretary of the Treasury." Under the discretionary power here
given, rules and regulations were prescribed by Secretary Crawford
on 10 June, 1820, 2 Land Laws and Opinions,
Page 44 U. S. 669
p. 820, No. 796. A circular was addressed to the surveyors
general of that date, for their government in this respect, by the
Commissioner of the General Land Office. It orders that fractional
sections containing more than one hundred and sixty acres shall be
divided into half-quarter sections by north and south or east and
west lines so as to preserve the most compact and convenient forms.
"You will, therefore," says the commissioner,
"be pleased to divide the fractional sections in your district
which remain unsold in the manner above directed, and report to
this office, and to the registers of the land district in which
those fractions respectively are situate, the subdivisions,
together with the quantity in each. It is not intended to run the
subdivisional lines and mark them, but merely to make them upon
your surveys and calculate the quantity of land in each
subdivision."
In January, 1826, 2 Land Laws, 583, No. 841, further
instructions were given on this subject, to the Surveyor General at
Washington, Mississippi. The commissioner says, among other
things
"A fractional section is a tract of land not bounded by
sectional lines on all sides, in consequence of the intervention of
rivers &c., and containing a less quantity than six hundred and
forty acres."
Speaking of the regulations and the circular letter founded on
them, the commissioner continues:
"The substance of the rule is that fractional sections of one
hundred and sixty acres and upwards are to be subdivided by east
and west, or north and south lines, at the discretion of the
surveyor, so as to preserve the most compact and convenient forms.
Each lot to be, as nearly as practicable, a half quarter-section,
containing a quantity of eighty acres; sometimes rather more,
sometimes less, as the locality demands."
According to these instructions, fraction No. 22 was divided:
two precise eighty-acre tracts could not be made out of it;
half-quarters, or eighty acres, was the least quantity that could
be sold by the act of 1820, if in regular form and part of a full
section; but if in irregular form, and the fraction of a section,
containing upwards of one hundred and sixty acres, then it was left
to the Secretary to cause it to be subdivided according to his own
regulations, into two or more tracts, approaching "as nearly as
practicable" to eighty acres each. He directed the subdivisions to
be made in all cases so as to preserve the most compact and
saleable forms, accommodating the tracts to the sides of rivers, or
other legal intervening boundaries to subserve the best interests
of the government. This practice has prevailed as the governing
rule for nearly a quarter of a century, and is now in full
operation -- large quantities of land have been sold thus
subdivided, and great quantities yet remain to be sold. I speak on
information derived from the Commissioner of the General Land
Office. The idea of taking out of a fraction a quarter-section of
one hundred and sixty acres, if found there, as if the section was
entire, and leaving surrounding strips of a few acres each,
unsalable
Page 44 U. S. 670
and of little or no value, as will be the case here, never has
been entertained at that office, as the true construction of the
act of 1820, from the date of Mr. Crawford's instructions, (June
10, 1820) up to this time. On mature consideration, I think the
instructions given legitimately within the authority conferred on
the Secretary. In this view of the law as applicable to the present
case I am supported by the opinion of the Attorney General given on
Etheridge's claim in 1837, 2 Land Laws and Opinions, 136, No.
85.
2. Suppose, however, it was doubtful whether they were or not
authorized, is it admissible for the courts of justice, after such
a lapse of time, to call in question the construction given to the
act; to disturb so many titles taken under it and to break up
existing subdivisions? The sole authority to which the act referred
for its exposition, and the prescribing of rules and regulations to
carry it into execution, was the Secretary of the Treasury. His
jurisdiction was subject to no supervision; he was constituted the
only judge, from whose decision there was no appeal on part of
purchasers; they were compelled to buy in the form and quantity the
lands were offered for sale, or not be permitted to purchase at
all. The Secretary having adjudged and settled the construction of
the act according to his views of its true meaning, and this coeval
with its passage -- a strong circumstance, the government in its
executive and political departments and the community at large
concerned in purchasing from the government having acquiesced
without complaint, recognizing the construction as the true one,
through so great a lapse of years, it is now supposed by me, the
duty of this Court, on the question being presented here, and that
for the first time, to acquiesce also. That these subdivisions are
for the best interests of the United States is manifest; all others
have abided by them, and so should the plaintiff.
If one of our own judgments made in 1820, coeval with the
statute, had produced similar consequences; if many thousands, of
titles rested on it (as there surely do on Mr. Crawford's
instructions), I should feel myself wholly unauthorized at this day
to overthrow the decision, however doubtful I might think it to be.
The conservative rule of
communis error facit jus is
universal in courts of justice in regard to their own judgments
under such circumstances, and undoubted judicial propriety requires
its adoption, as it seems to me, when dealing with the decision of
the Secretary in the present instance. This course is peculiarly
due to the repose of titles and the stable maintenance of an
established system in a great department, a system that cannot be
changed in this respect without much expense, confusion, and delay
in the administration of that department.
3. But suppose the Secretary was mistaken, and the subdivision
of fractional section 22 is illegal; what then is the plaintiff's
case? His title is a patent; on his legal title he must recover;
therefore he
Page 44 U. S. 671
cannot be heard to say his patent is void because founded on an
illegal subdivision. The question then is reduced to this -- what
does the patent cover? Etheridge had no peculiar rights by the act
of 1830 save that he had a preference of entry; like others
purchasing of the United States, he was compelled to buy in legal
subdivisions; before 1820, not less than an entire fractional
section could be sold; nor after the act of that year could one be
sold in subdivisions until divided under regulations by the
Secretary of the Treasury. Further than this, the act of 1805
remained unchanged as to fractions. Etheridge could not be
permitted to treat a quarter-section in a fraction, although found
there, as if it was found in an entire section. He did attempt it,
in proving up his preference right, but when he applied to enter at
the land office the register rejected his claim, and compelled him
to take the land on which he resided in the form and quantity it
had been laid off according to the instructions, and this he did
take. The government is bound by its patent, is estopped to disavow
the subdivision granted, and as estoppels are mutual, Etheridge is
equally bound by the grant. It recites the patent certificate; this
says it is for ninety-two acres and sixty-seven hundredths,
bounded
"according to the official plat of the survey of the said lands,
returned to the General Land Office by the Surveyor General --
which said tract, described in the plat returned, has been
purchased by the said James Etheridge."
The plat is part of the patent certificate, is referred to in
the patent, and is part of that also, just as much as if it was
attached to the same paper. By the plats of public surveys, lands
must be identified and the boundaries ascertained in all cases of
the kind. The parties agree of record that exhibit No. 2 is the
official map described in the patent of Etheridge; according to
this, he purchased lot A for ninety-two acres and sixty-seven
hundredths; his eastern boundary being the red line made by the
Surveyor General, pursuant to the instructions. This was
undoubtedly the land the government intended to sell, and, as I
think, as certainly the same Etheridge intended to buy, and did
buy; of course he can recover no land east of that line, and
therefore the judgment ought to be affirmed even if the
instructions were illegal and void.
4. The case does not stop here. Stone's patent is elder than
Etheridge's; the same plat is referred to in each; Stone's is for
the one hundred and ten acres and fifty hundredths east of the red
line. This is not disputed. To overcome it, Etheridge's patent must
be supported by a legal entry for the same land, elder than Stone's
patent. As already stated, until Etheridge paid his money, he could
have no legal entry from which to date his title. There being no
such subdivision existing in law as the southwest quarter of
fractional section 22, when Etheridge presented his occupant claim,
he could not be permitted to enter in that form, or for that
quantity. Such was the express instruction of May 31, 1831, 2 Land
Laws
Page 44 U. S. 672
and Instructions, No. 497, and again in No. 521. The first
subdivision was created afterwards by the act of the Surveyor
General, and is indicated by the red line. That it is denominated
the southwest quarter in the patent, amounts, in my judgment, to
very little; thus the department saw proper to call such
subdivisions; the denomination was arbitrary and not precise, but
we cannot discard the substance for the sake of correcting terms of
description open to verbal criticism. The land contained in plat
referred to in Etheridge's patent is a technical quarter-section in
the language of the General Land Office, and such subdivisions are
known by no other name there, as will be seen by No. 483 and No.
486 in the volume of Instructions above referred to. Thus, in No.
483, dated July 28, 1830, the commissioner instructs the register
at Mount Salus, that the preemption law of that year restricted the
quantity to be located to one hundred and sixty acres, or a
quarter-section, but that it did not intend that an excess over one
hundred and sixty acres "in a tract of land technically known as a
quarter-section" should be cut off so as to restrict the quantity
literally to one hundred and sixty acres.
"The law [says he] having taken it for granted that every
quarter-section contains one hundred and sixty acres, which not
being the fact, we must be guided by what we know to be the spirit
and intention of the law."
He then instructs the register, in cases of fractional sections,
to conform to the subdivisions as made by the Surveyor General, and
to give the quantity as near as practicable.
No. 486 is a general circular dated September 14, 1830, on the
same subject in part. Instruction 8 directs:
"Although a quarter-section may be found to contain rather more
than the ordinary quantity of one hundred and sixty acres, the
right of preemption is extended to the full quantity of such
quarter-section."
In the language, therefore, of the General Land Office, the
southwest quarter of fractional section 22, called for in
Etheridge's patent, is as well known by its designation as if the
section was entire. This the Instruction No. 497 above explains,
where the subdivided quantity is less, to be a "technical" quarter
also, as well as if the quantity had been more. But if there be
uncertainty, here, as in former cases, we must refer to the plat
and quantity to explain the uncertainty. This course was pursued in
the case of
McIver v.
Walker, 9 Cranch 173, and again in
17 U. S. 4 Wheat.
444. There the plat was held to control the face of the patent, and
fixed a different locality, because Crow Creek was laid down on the
plat, nearly through its center; the location certificate copied in
the patent, as in this case, called for a beginning, and for
courses from that point, running off from the creek, which was not
named as being crossed by the lines; yet this Court disregarded the
calls, and held the land lay on both sides of the creek, as
indicated in the naked plat. It was a much weaker case than the
present. In patents of the United States, from their earliest date
down to this day, nothing is referred to but numbers
Page 44 U. S. 673
on the public surveys. To hold that the surveys did not explain
and control the patent as to identity, and side lines, would be an
abandonment of both, as nothing else can establish either.
Much stress is laid on the fact that the half-mile post is found
on the south boundary of section 22. The same line marks are
uniformly made on all sectional lines, regardless of fractions; so
it would have been done had the fraction 22 been for less than one
hundred and sixty acres, and not subjected to subdivision. The
section south may have been entire, and the corner post necessary
for the purposes of that section.
Another difficulty stands in the way of the plaintiff's
recovery. Stone's patent is the elder; it is admitted it covers the
land in dispute -- the patent passed the perfect and consummate
title; in an action of ejectment the patent is conclusive, as was
held by this Court in
Wilcox v. Jackson and
Bagnell v.
Broderick, 38 U. S. 13
Pet. 516,
38 U. S. 450.
You can only go behind it, and give it earlier date, from a precise
legal entry for the same land made by the grantee, to overreach an
elder patent; as this Court held in
Ross v.
Barland, 1 Pet. 655. We have seen Etheridge did not
enter the land in dispute when he paid his money, and took his
patent certificate. To overthrow Stone's patent, we must rely on
the preference right to enter. At best, it is a remote and doubtful
equity; Stone paid for the land, and if the assumption be true, has
an equity attached to it for his purchase money; presenting a case
of conflicting equities, with which a court of law cannot deal. In
the language of this Court in
Bagnell v. Broderick,
"we are bound to presume for the purposes of this action that
all previous legal steps had been taken by Stone to entitle himself
to the patent, and that he had the superior right to obtain it,
notwithstanding the claim set up by Etheridge, and having obtained
the patent, Stone had the best title known to a court of law,
to-wit, the fee."
There, a much more imposing equity than Etheridge can pretend to
was set up. In no respect, therefore, is there any ground for
reversing the decision of the Supreme Court of Alabama, as is
supposed by me.
In the case of
Brown v. Hunt, MR. JUSTICE DANIEL
dissents from the opinion of the Court and concurs in opinion with
MR. CHIEF JUSTICE and MR. JUSTICE CATRON.
