In 1792, Congress granted to certain persons a tract of land in
Ohio upon the condition that they would lay off lots of an hundred
acres each to actual settlers and upon the further condition that
the lands which were undisposed of at the end of five years should
revert to the United States.
In 1818, Congress directed these reverted lands to be laid off
into townships and sections, or into one-hundred-acre lots, and to
be sold, with the exception of the usual proportion for the support
of schools.
The Secretary of the Treasury had the power to reserve school
lots, but the register of the land office had not.
Whether or not the presumption was that the Secretary had
exercised this power was a question to be decided by the jury upon
the evidence, and in deciding that it was a legal presumption, the
court erred.
This was an ejectment brought by Dickins' lessee to recover a
lot of one hundred acres, being number eight in the donation tract,
Marietta District, Ohio, in township nine, range eleven, in the
district of lands subject to sale at Chillicothe, formerly in the
Marietta District.
In 1849, the office was removed from Marietta to Chillicothe,
and in transcribing the book, the words "school land," which were
written in the Marietta book upon the plat of the land in question,
were omitted in the Chillicothe book. Perhaps this was the origin
of the controversy.
Upon the trial in the court below, Dickins' lessee made out his
title as follows,
viz.,
1. A patent issued to Samuel A. H. Marks, on July 1, 1851, which
included the lot in question.
2. Conveyances from Marks to the plaintiff.
The defendant claimed under a lease from the trustees of Windsor
Township, Morgan County, which is composed in part of fractional
township nine, range eleven, in the district of lands now subject
to sale at Chillicothe, being formerly in the Marietta Land
District. It was admitted that he had been in
Page 62 U. S. 277
possession from the year 1834, claiming to hold the same as
school lands belonging to said township nine, range eleven.
The whole question, then, depended upon the inquiry whether this
lot had been set apart as "school land" according to law.
The difficulty arose from the circumstance that this part of the
country was not included in the general land system, under which
the land reserved for schools is at once ascertained, without the
possibility of mistake. But, in 1792, the grant to Putnam and
others required that they should lay out the land in lots of one
hundred acres each, and as part of it had been settled in that way,
it became necessary to lay out the unsettled residue, which
reverted to the United States, in lots also of one hundred acres,
in order to conform to existing settlements.
In 1818, these reverted lots were ordered to be sold, with the
exception of the usual proportion for the support of schools, which
the Secretary of the Treasury had the power to select. In order to
make out his title, and show that his lot was amongst those thus
selected and reserved from sale, the defendant introduced a great
deal of record evidence, which it is not necessary to insert in
this report, because the decision of this Court was that all that
matter should have been left to the jury. They were the proper
tribunal to decide whether or not the facts in evidence justified
the presumption that the Secretary had selected this lot as "school
land." The court decided that this was a legal presumption, and,
upon this point, the judgment was erroneous.
The court also erred in deciding that under the act of 1818, the
register had power to select the "school lands."
Under the instructions of the court, the jury found the
defendant not guilty, and judgment was entered for him.
The plaintiff sued out a writ of error, and brought the case up
to this Court.
Page 62 U. S. 278
MR. JUSTICE CATRON delivered the opinion of the Court.
By the Act of 21st of April, 1792 there was granted to Rufus
Putnam and others, known as the Ohio Company, one hundred thousand
acres of land in the Marietta District, in the territory northwest
of the Ohio River. The object of Congress and the grantees seems to
have been to cause the country to be inhabited by making donations,
through the company, to actual male settlers, of one hundred acres
each, and all of the tract not thus disposed of within five years
from the date of the grant reverted by its terms to the United
States as public lands. The ordinary laws for surveying by ranges,
townships, and sections did not apply to this tract, nor to the
surplus that might revert, as ordinary surveys would have thrown
the townships and sections into fractions, by the hundred-acre lots
previously disposed of by the company.
By compact, the United States stipulated to give to the State of
Ohio one thirty-sixth part of the public lands in that state for
the use of schools, and the 16th section of each township was the
land thus contracted to be given, in cases where there were regular
surveys in townships of six miles square, and, by the Acts of April
30, 1802, and March 3, 1803, sec. 3, Congress further stipulates
that the lands previously promised
"for the use of schools, in lieu of such of the sections number
sixteen as have been otherwise disposed of, shall be selected by
the Secretary of the Treasury out of the unappropriated reserved
sections in the most contiguous townships."
By the Act of March 18, 1818, Congress directed the lands in the
Ohio Company's donation tract to be surveyed by the Surveyor
General, separating that conveyed to settlers from that not
conveyed, and belonging to the United States by reversion. This
latter land he was to lay off into townships and sections, or into
one-hundred-acre lots, conforming them to the
Page 62 U. S. 279
plan observed by the company, when providing for actual
settlers. And he was ordered to make returns of the surveys to the
General Land Office and to the register of the land office at
Marietta. The lands were laid off into one-hundred-acre tracts, and
these tracts the act orders to be
sold, "with the exception of
the usual proportion for the support of schools." By the
President's proclamation, they were offered for sale on the first
Monday in June, 1819. There was no reservation to the general order
of sale except of such lands as the Secretary should select,
according to the power vested in him by the act of 1803, for the
use of schools, and it is a fair presumption that the register
offered all the lands for sale that were not reserved. But the
difficulty is that for the lands in dispute there might have been
no bidder when they were offered. That the Secretary had the power
to reserve school lots and to bind the United States and the
townships to his selection is very clear, and we think it is
equally clear that the register of the Marietta District had no
power to designate these school lots. As a subordinate, he could
lawfully record the orders of the Secretary in this respect, but
could do no binding act himself.
Six of the lots of one hundred acres each, lying in a body, and
square form, together with lot No. 34, adjoining on the east, were
not sold, including No. 8, the lot in dispute
On the tract book found in the office of the register at
Marietta, and by which the sales of 1819 were governed, the word
"school" was written on the plot of each of the seven lots; but
whether made as early as 1819 or afterwards does not appear, nor
whether the then register Wood put the designation there by order
of the Secretary.
It is admitted that the school commissioners took possession of
the land sued for in 1834, and have held it ever since by their
lessee, and it is also admitted that township nine, range eleven,
which claims the lots marked "school," is without school lands
unless the lots thus designated belong to it as such.
On the return made of the surveys to the General Land Office in
1818 there is no indication that a reservation of any land was made
for township nine, range eleven.
Page 62 U. S. 280
The manner in which the Secretary should authenticate his
selections was not prescribed by Congress, and depends in this case
on evidence not found of record. It must be proved by
circumstances, and cannot be proved in any other way.
Another consideration is pressed on the court on the part of the
plaintiff to overcome the fact that this designation is of no
value, to-wit that the Secretary of the Treasury, by his letter of
July 13, 1805, directed land equal to one section on the southern
part of the donation tract to be laid off as compensation for
section sixteen in township five, range ten, the school tract in
township five having been otherwise appropriated, and hence it
happened, as is alleged, that the register marked the lots in
controversy "school." In 1805, the lots thus marked had not been
surveyed, and each one-hundred-acre lot is marked on the tract book
of surveys returned in 1818; and as the trustees took the school
land for township five, range ten, elsewhere, the argument has not
much force.
It is also insisted that in point of fact the entire section No.
16, in township nine, range eleven, remained undisposed of by the
Ohio Company, and was subject to be appropriated by the
commissioners of the township for school purposes, and therefore no
claim could be set up by them to lands elsewhere. The Act of April
30, 1802, section 7, provides that the 16th section of every
township shall be granted to the inhabitants of the same for the
use of schools. But then the 16th section is a designated portion
of land that may result from an execution of the public surveys
made by the United States according to the rules and regulations
Congress had made or might make. Until ranges were established, and
the lands surveyed into townships and sections, no title to any
definite land vested in the township. It had no authority to survey
and ascertain the 16th section. This authority was reserved
exclusively to the United States, and to be exercised as part of
the political power. Now as the 16th section of township nine,
range eleven, never was legally ascertained, and as no other
evidence could be heard to fix its identity than a survey approved
by the department, established for the distribution and sale of the
public lands, the assumption that the
Page 62 U. S. 281
land was unappropriated where the 16th section would have
fallen, had a survey in fact been made of the township, amounts to
nothing. Cases affecting school lands in Ohio and elsewhere come
under the rule laid down in the noted case of General Green's grant
of twenty-five thousand acres in the Military District of North
Carolina,
15 U. S. 2 Wheat.
19. The legislature of that state made the grant by an act of
assembly; having made it, it reserved the power to locate the land
by survey through its officers. The land being surveyed, and the
survey returned and recorded in the proper land office, it was held
by this Court that the title attached to the land designated, on
the obvious legal ground that the State of North Carolina was
estopped to disavow its own act in defining by survey the precise
land granted, and so also General Green and his heirs were estopped
to call in question the validity of the definite location, the
authority to locate by survey having been reserved by the granting
power. So here the granting power reserved the right to ascertain
and identify the land granted to the schools. Until this was done,
no title could be taken of any particular tract, and when the
location was made by authority of the United States, each party was
estopped to deny its binding force. It was in fact
a title
by mutual estoppel.
We now come to the precise case presented on the trial below.
The jury were instructed:
"1. That the proofs and legal presumptions sustaining the title
of the defendant must have reference solely to, and be based upon,
the Act of Congress approved March 18, 1818, entitled 'An act
providing for the sale of certain lands in the District of
Marietta,' &c., in connection with the Act of the 21st of
April, 1792, granting to Rufus Putnam and others, as agents and
trustees, one hundred thousand acres, called the donation tract,
and that in the absence of any express authority to any other
officer to make the selection of school lands in said donation
tract, by a fair construction of said act of 1818, the register of
the land office at Marietta rightfully exercised such
authority."
"2. That all the evidence and admissions of facts in the
Page 62 U. S. 282
case raised a legal presumption that the said register of the
land office at Marietta had exercised the authority so vested in
him by said Act of March 18, 1818, prior to the entry and patent
under which the plaintiff claims title, by legally selecting the
lands in controversy in this suit (with other lands) for the
support of schools in said township nine, in range eleven, and it
was therefore their duty to return a verdict for the
defendant."
The first instruction assumes that the act of 1818 authorized
the register to select the school lots in the donation tract,
whereas the third section of the Act of March 3, 1803, conferred
the exclusive power on the Secretary of the Treasury, and therefore
the instruction is erroneous.
The second instruction declares that the evidence and admissions
of facts in the case raised a
legal presumption "that said
register had exercised the authority vested in him by the act of
1818, prior to the entry and patent under which the plaintiff
claims title," &c.
As the register had no power to select, it could not be held
that he had legally selected; nor did he make the entry on the
tract book in due form, had he been instructed by the Secretary to
record his selection.
The word "school," appearing on the tract book, has much
significance, but, standing alone, it did not authorize the circuit
court to presume as matter
of law that the lands had been
selected by order of the Secretary. If his letter to the register,
directing him to make the selection, had been produced, and taken
in connection with the designation, then we think the court would
have been warranted in making the legal presumption.
The narrow point in this cause is did the Secretary select the
land in controversy with other lots for the use of schools? If he
did, then the title of the United States was divested thereby and
the lands withdrawn from sale. There are numerous facts tending to
prove that they were selected. 1st. They were not sold, nor is it
at all probable that they were offered for sale, in 1819. If they
are of good quality and favorably situated, a jury may be satisfied
that, had they been
Page 62 U. S. 283
offered to bidders at the public sale, they would have been
purchased. 2d. They were claimed as school lands, selected for
township nine, range eleven. 3d. The trustees for the township took
possession of them and leased them out as early as 1834, and their
tenant is yet in possession, and here sued. 4th. The endorsement,
on the plat of the lots, of the word "school" indicates to some
extent that they had been selected by the proper authority. What
weight this may have it will be proper to leave to the jury. 5th.
That this township had no school lands assigned to it unless the
lots referred to were assigned.
These facts, with others, were proper to be submitted to the
jury, from which they might have presumed that the lots had been
duly selected.
In the language of the Supreme Court of Ohio in the case of
Coombs and Ewing v. Lane -- "Facts presumed are as
effectually established as facts proved, where no presumption is
allowed." That was a suit for the possession of this same land, and
involved the same evidence this case does, the presented the same
questions of law. But there, the cause was submitted to the circuit
court on the law and the facts, without the intervention of a jury,
and the supreme court was appealed to in order to reverse the
opinion of the lower court on a motion for a new trial. The state
courts dealt with both facts and law, whereas here the jury must
deal with the facts and presumptions, under the instructions of the
court, as respects the law.
We order the judgment of the circuit court to be
Reversed and remand the cause for another trial.