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The measurement of such compensation in

REPAYMENT.

MISCELLANEOUS. cases like the present is fixed by this De

THOMAS M. KILE.

CIRCULAR INSTRUCTIONS. partment in accordance with the decisions : of the Supreme Court. This case is in all appeal-Bad Faith.-- Where a hearing is held PETITION, AFFIDAVITS AND FORMS IN RE essentials parallel to that of Wooden based upon allegations of a pre-emptor's bad

QUESTING SURVEY OF ISLANDS. Ware Company Us. the United States, faith, and the party, though notified, fails to

County of State of

1884 appear or to appeal from the adverse decision (106 U. S., 432,) in which timber belong- of the local officers, repayment of purchase To the Commissioner of the General Land Office, ing to the United States was “sold io the money will not be allowed on the ground that Washington, D. C. defendant, which was not chargeable with the testimony at such hearing fails to estab.

Sir: The undersigned petitioner would lish bad faith. any intentional wrong or misconduct or

respectfully represent that he is a citizen bad faith in the purchase." What the SECRETARY TELLER to Commissioner McFar- of —, county of and State of -; Supreme Court said in that case is in

land, May 24, 1883.

and that there is an island in the --- in every respect applicable to this.

I have considered the appeal of Thomas section -, township — range “The timber at all stages of the con- M. Kile, by his attorney J. J. Weisen- State of -; that said island has never version was the property of the plaintiff burger, from your decision of May 8, been surveyed by the U. S. Government; Its purchase by defendant did not divest 1882, declining to recommend the return that he is desirous that the same should the title nor the right of possession. The to him of the purchase money paid on his be surveyed, in order that it may be recovery of any sum whatever is based pre-emption cash entry, No. 1779, for the brought into market for disposal, accord. upon that proposition. This right, at the N. W. of Sec. 4, Tp. 16, R. 17 E., Sacra- ing to the laws of Congress and the regu. moment preceding the purchase by de- mento, California.

lations of the General Land Office relative fendant, was perfect, with no right in any Kile filed declaratory statement for the to the disposal of lands embraced in frag. one to set up a claim for work and labor tract described June 3, 1874, alleging set- mentary surveys ; and that of bestowed upon it by the wrong-doer. tlement May 26, 1874, and made final county of -, and State of By purchase from the wrong-doer, defend proof and payment November 18, 1876. practical and skillful surveyor, is a suitaant did not acquire any better title to the Subsequently a hearing was ordered, based ble person to execute the survey of the property than the vendor had.”

upon affidavits tending to impeach the same. Therefore the Supreme Court decides bona fides of said Kile.

XOTE.--Whenever the affidavits required to accomthat the right to recover against the de

pany applications for the survey of islands are made

On the 21st of January, 1880, your office before any officer not a clerk of a court of record, fendant is “just what it was against his decided that the allegations of bad faith the oficial character and standing of such oficer, vendor the moment before he interfered were fully sustained by the evidence ad- Comunissioner are other officer qualified to adminis. and acquired possession."

duced at the hearing, and held the entry cate of the clerk of the proper court of record or It is worthy of note that in making this for cancellation.

other competent authority. decision the U.S. Supreme Court affirms the decision of the U.S. Circuit Court for and in October, 1880, the entry was canNo appeal was taken from that decision, County of - State of

188

and the Eastern District of Wisconsin, within

citi. celed. the limits of which District the present

zens of

county of- and State case arises. In conclusion the U. S. Su- It appears that Kile failed to appear at of being duly sworn, upon their preme Court says:

the trial above mentioned, although he oaths say that they have personal knowl.

After thus allowing his edge of an island in in section " To establish any other principle in had due notice. such a case as this would be very disas- case to go by default without even an at- township range

principal trous to the interest of the public in the tempt to show his good faith, or to seek meridian, State of - --, application for the immense forest lands of the government. a remedy by appeal, as legally provided, survey of which has been made by To hold that when the governhe now makes application for repayment of

county of

State of ment finds its own property in bands but of his purchase money, on the ground that ; that the said island contains about one remove from these wilful trespassers, the evidence, on which the cancellation acres; that the width of the channel and asserts its right to such property by was based, failed to show bad faith or on either side between the island and the the slow processes of law, the holder can failure to comply with the requirements main shore is feet, and the depth set up a claim for the value which has of the pre-emption law, and that said can- thereof at ordinary stages of the water is been added to the property by the guilty cellation was therefore erroneous. I find about feet; that the island is about party in the act of cutting down the trees no provision of law authorizing the return feet above high water mark, not suband removing the timber, is to give en- of purchase money in such a case. Sec-ject to overflow, and the land fit for agri. couragement and reward to the wrong- tion 2362, of the Revised Statutes, author- cultural purposes; that the configuration doer, by providing a safe market for what izes repayment upon satisfactory proof of either shore of the mainland has not he has stolen, and compensation for the " that any tract of land has been erro- materially changed since the original surlabor he has been compelled to do to make neously sold by the United States, so that vey of the water front on the mainland ; his theft effectual and profitable.” from any cause the sale cannot be con- that the improvements on said island are

The fact that Parker and Kelley, Weeks firmed ;” and Sec. 2 of the Act of June 16, as follows:* -; that the said im. & Co. each seeks to throw the responsibil- 1880, provides for repayment“ when from provements were made by ity upon the other, renders it necessary any cause the entry has been erroneously and that the value thereof is about for the government to hold them jointly allowed and cannot be confirmed.” dollars, responsible, and let them settle the The only obstacle in the way of confirquestion of responsibility between them. mation of title to Kile was one growing I concur in your view that “as Mr. out of his own acts. The land was prop

Sworn to and subscribed before me this Parker, and Kelley, Weeks & Co., re- erly subject to his entry at the date there.

1884 ceived no logs in the case, but received of, and the confirmation was prevented by lumber derived from logs that were the proof of his own laches, and failure to property of the government, there seems comply with the requirements of the law, to be no good reason why the government and not through any error on the part of County of

State of

188. should not continue to claim from them, the government. Mr. Kile's case is clearly

and

citizens of who acquired possession of it, the value of not within the provisions of the statutes county of - -, and State of the lumber, which was its property alone." authorizing repayment of purchase money, being duly sworn, upon their oaths say You will therefore at once notify agent and your decision denying his application Welch to that effect. is affirmed.

* If there are no improvements on the island, it must be so stated.

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188

that, to their certain knowledge, notice of August 4, 1854 (10 Stat., 574), " for the It should be observed that while there the application by

of

use of an adjoining farm," as alleged in is only one affidavit prescribed by the seccounty of and State of for Chambers' affidavit made pursuant to the tion cited, such affidavit is in the alternathe survey of an island in the in provisions of the third section of said act, tive, whereby an entryman thereunder is section township

wherein the same is described as the S. required to swear to one or other state of

-, range principal meridian, in the State of W. L of S. W. of Sec. 34, Twp. 2 S., R. facts as the case may be. In other words, was served upon and

13 W., and the N. E. of N. E. of Sec. if such party enter the land “ for his or her proprietors of the lands on the shores op- 4, Twp. 3 S., R. 13 W.

own use, and for the purpose of actual setposite said island; that the said notice Under date of June 21, 1860, your prede- tlement and cultivation,” the fact must so was served by

on the cessor, Commissioner Wilson, advised the appear; whereas, if the entry be " for the day of ----, 188—, and that each of the Register and Receiver that the entry in use of an adjoining farm or plantation,” above-named coterminous proprietors was question was illegal, and would be can- the oath must be made accordingly. personally cognizant of the said applicant's celud " for the reason that the original By the act of February 17, 1873 (17 intention thirty days before the date of his farm does not adjoin the land entered;" Stat., 464,) it was provided : '" That all application.

and by your office letter of A prii 22, 1881, entries of public lands under the act to to said officers, the entry was suspended graduate and reduce the price of the pub

because the land covered thereby does not lic lands subject to entry to actual settlers Sworn to and subscribed before me this form a compact body with the original and cultivators, approved the 4th day of day of 188—

farm as required. Those officers were di- August, 1854, made prior to the passage rected bowever to inform the party in in- of this act in which the purchaser has terest that title to the premises could be made the affidavit and paid, or tendered, perfected by paying to the Receiver “the the purchase money as required by said

difference between 12 cents alrcady paid act, and the instructions issued and in County of State of

and $1.25 per acre, unless an error was made force, and in the hands of the Register We,

being duly in the description of the original farm, and at the time of making such entry, are sworn, say that we are bona fide owners of in that case the proper description there- hereby legalized, and patents shall issue the lands upon the shores opposite the is- of can be shown by supplemental affidavits, to the parties, respectively, provided that land described in the application for sur- and the certificate of the Recorder of in case of tender the money shall be paid, vėy made by -, bearing date

Deeds of the county within which the excepting those entries under said act 188—, and that the notice referred to in land is situate, and should the contiguity which the Commissioner of the General the foregoing affidavit of and of the land in the farm and entry be there- Land Office may ascertain to have been was served upon us on the day of by established, the entry will be approved fraudulently or evasively made: Pro188—

without the additional payment. The vided, That this act shall not be so Register and Receiver having reported construed as to confirm any of said entries that no action had been taken by the par- which have heretofore been annulled and ties in interest pursuant to the terms of vacated by said Commissioner on account the aforesaid letter, you held the entry of fraud, evasion of law, or other special for cancellation. From such action the cause. And provided further, that noth

said E. N. Watson (informally) appealed ing herein contained shall be so construed Sworn to and subscribed before me this by letter dated at Camden, Arkansas, as to deprive any actual settler and cultiday of 188

July 25, 1882, stating that he is the vator of his right to any land on which he present owner and occupant by purchase resided at the time of an entry by another a year previous ; that he is "land ignor- person under the act to which this is an ant;" and that the land in question is amendment."

connected with the original farm. County of

The act just cited was evidently inState of

188

Although such appeal is not in accord-tended to confirm all entries under the act To the Commissioner of the General Land Office, ance with the form prescribed by the to graduate and reduce to actual settlers

Washington, D. C. SIB: I will execute the survey of the Rules of Practice, yet as this case is ex and cultivators the price of the public island described in the application of

parte, no adverse rights can be prejudiced lands subject to entry thereunder, “ex.

by a waiver of the rule, and I shall there- cepting those entries under said act which of county of

and
fore overlook the informality.

the Commissioner of the General Land State of

for the sum of dol. lars.

Under section 2289 Revised Statutes, a Office may ascertain to have been frauduperson owning and residing upon his lently or evasively made.” Hence it emoriginal farm may enter other land lying braces both classes of entries mentioned contiguous to his land." It will be seen in the original act, to wit, entries “for the

from the aforesaid description that the purpose of actual settlement and cultivaE. N. WATSON.

tract covered by the entry in question tion,” and entries " for the use of an ad

merely corners on the original farm ; and joining farm or plantation." Graduation Act of August 4, 1854-Amendatory it will be observed that the Department There is nothing in the record showing Act of February 17, 1873-Notwithstanding has repeatedly and invariably held that or tending to show that the entry in ques

the entry, being ex parte, is allowed to stand tracts so situated are not contiguous with. tion was fraudulently or evasively made, Adjoining Land-Land that corners on another in the meaning of the statute.

but on the contrary, Chambers appears tract does not “adjoin” it.

By the third section of the “ Gradua- to have sworn in good faith that the same SECRETARY TELLER to Commissioner McFar- tion act” aforesaid, it was enacted : “That was made “for the use of an adjoining land, June 14, 1883.

any person applying to enter any of the farm” owned by him. When he made the I have considered the appeal of E. N. aforesaid lands shall be required to make requisite affidavit, he doubtless believed Watson from your decision of June 19, affidavit before the Register or Receiver that the land covered by said entry ac1882, holding for cancellation Little Rock, of the proper land office, that he or she tually adjoined his original farm, and the Arkansas, graduation entry No. 9980, made enters the same for his or her own use, Register and Receiver, who allowed such by William L. Chambers, September 15, and for the purpose of actual settlement entry, must have so regarded it. 1858, of the N. E. of Sec. 34, Twp. 2 s., and cultivation, or for the use of an ad- Watson, also, appears to be a bona fide R. 13 W.

joining farm or plantation, owned or occu. assignee in possession of the premises. The entry was made under the act of pied by him or herselt.”

Your decision is therefore reversed.

COEY VS. STATE OF CALIFORNIA. confirniation, Since November 22, 1880, All the tracts remaining insold at the School Indemnity---Act of July 23, 1866.---'The this rule has been followed in sundry close of the public offering will thereafter State of California can receive indemnity decisions, and I find nothing in the present be held subject to private entry at the aponly once for the same school section, notwitli- case to induce a change or modification praised value. standing the act of July 23, 1866. thereof.

The privilege of paying for these lands SECRETARY TELLER to Commissioner McFar. The application is denied.

by installments, accorded to settlers under land, June 23, 1883.

the first section of the act; not being exOn August 3, 1882, I affirmed your de

tended to purchasers under the second cision of February 28th preceding, in.

MIAMI INDIAN LANDS.

section, you will require the full amount volving the S. W. of Sec. 18, Tp. 8 S., R, Instructions for the sale of the remaining tracts of purchase money to be paid in every 1 W., and the S. E. # of Sec. 13, Tp. 8 S.- of these lands.

case. R. 2 W., M. D. M., San Francisco, Cali- COMMISSIONER McFarland to Reg. and Rec., You will issue a receipt and certificate fornia.

Topeka, Kan., June 21st, 1883. (L. E. F. S.) in case of each sale effected, giving the The case disclosed the facts that Februi

I am in receipt of your letter of May purchaser a duplicate receipt, as in ordiary 6, 1882, D. N. Coey entered the tract 22, 1883, reporting a list of the tracts of nary cash sales, using forms 4–031 and 4in Sec. 18, and that Norman W. Griswold the Miami Indian lands remaining unsold, 189, being careful to note across the face cntered that in Sec. 13, each as soldiers' May 15, 1883, under the first section of of each paper in red ink the words "Miami homesteads, and that March 4, 1876, the the act of May 15, 1882.

Indian Lands, Public Sule or Private EnState of California made indemnity school The second section of the said act, as try” as the case may be, “Sec 2 Act of selection for the same tracts in lieu of the amended by the act of June 27, 1882, pro- May 15, 1882, amended June 27, 1882." E. ļof Sec. 36, Tp. 30, R. 11 E., which vides that all lands not purchased by set. You will also require formal applications selection you canceled February 28, 1882, tlers at the expiration of one year from from parties who purchase at private enbecause on August 12, 1872, the state se- the date of the act, together with all the try according to form 4-001, with proper lected the S. E. 4, lots 3 and 4 and the E. unoccupied and unallotted lands of the reference thereon to the character of the

of the S. W. of Sec. 30, Tp. 21 S., R. Miami İndians, shall be offered at public land and the section of the act under which 4 E., M. D. M., in lieu of said E. į of said sale under the direction of the Secretary the application is made. Sec. 36, which last selection was approved of the Interior, at not less than the ap- Purchasers in all cases should be reApril 18, 1873, as per list No. 26. My de praised value, after due notice, and that quested to give their Christian names, or cision held with yours, that the State all tracts not there sold, together with one of them in full, and in case of private could not be twice indemnified for the such as may have been entered by settlers entries, should so sign their applications, same loss, and that as she had received under the first section of the act, but and their names should so appears in all indemnity for said E. } of Sec. 36, by an wherein default may be made in the pay- the papers. approved selection in 1872, the selection ment of any portion of the purchase money In case of all sales, both public and in 1876 was invalid, and hence that the or the interest thereon, shall thereafter be private, give the receipts anıl certificates, entries of Coey and Griswold, if otherwise subject to private entry at the appraised | --and in case of private sales the applicaregular, should be sustained. value.

tions—the current numbers of their rcAs it appears from your files that Gris. I therefore inclose herewith a list of the spective series already commenced under wold has since relinquished his entry, that lands to be disposed of, as above provided, the Acts of March 3, 1873, and June 23, of Coey is now only involved. Applica- and you are hereby instructed to give no- | 1874, and continued under section 1 of the tion is made by the claimant under the tice by public advertisement of at least Act of May 15, 1882, referring on each State for the reconsideration of my de- sixty days in three newspapers of general paper to the numbers of the other papers cision, upon the ground that the applica- circulation in Kansas, that, in accordance respectively in the same case, as heretofore tion for certification of the land involved with the said provisions and by direction instructed in the case of the Kansas Indian to the State, under the Act of July 23, of the Honorable Secretary of the Inter- lands. 1866, was a distinct proceeding pending ior, at a given time--the day and hour to Forward the receipts and certificates in your office at the date of your decision, be specified in your notice, and which with your special Register's and Receira which rejected the claim of the State with- should be not less than sixty days from er's abstracts of Miami Indian Lands me out considering such application and the the date of the first publication thereot- der Act of May 15, 1882, with your reguproofs relative thereto, treating the claim the said lands will be offered for sale at lar monthly returns indicating on the absof the State solely from its selection of public auction at your office, and sold to stracts the character of the sale-as “ Pul:March 4, 1876.

the highest bidder, providing such bid lic sale" or " Private Entry," Sec. 2, so as Without considering the facts in detail, shall at least equal the appraised value as to distinguish between these sales and the it is sufficient for the purposes hereof to indicated on the list.

installment receipts and certificates issued state that, November 22, 1880, Secretary At the time designated in your notice, in case of entries heretofore made by: setSchurz, after an elaborate discussion of you will so offer them, beginning with tlers under the first section of the ict,the matter of the adjustment of the In the first tract on the list and proceeding also noting on the abstracts in each case demnity School Grant to the State of until every tract has been offered.

the number of the receipt and certificate; California, and of the Acts of July 23, You will note on the list opposite each and in private entries, that of the ap1866 (14 Stat., 218) and March 1, 1877 tract, in the proper column as therein pro- plication. Retain the applications on file (19 Stat., 267), and for the express pur- vided, the date of the offering and indicate in your oflice. pose or furnishing a proper rule for the the result thereof; if sold, give the name The Receiver will pay for the publicaadjustment of this class of cases, held that of the purchaser, the amount of the bid tion of the notice and make due report the State was entitled to but one selection and the number of the receipt and certifi- thereof, transmitting as vouchers il copy in lieu of any loss in a school section, and cate (as hereinafter provided for); if not of the notice with the publishers' atfidavit; that when the State had received indem-sold, state the reason—"no bid ”_or what- of publication and receipts for the paynity for a given tract no additional tract ever the facts may be, in the column of ment thereof, and he will also account for could be confirmed to her on account remarks.”

and dispose of the money's receivedl, of that tract. In respect to that de- At the close of the offering you will as instructed under date of June 29, cision the Surveyor General of the State render a joint report of your proceedings, 1882, relative to the sale of these lands of California said, in his letter to you forwarding therewith a duplicate of the to settlers under the first section of the of December 14, 1881, that if it was list completed as above directed, retaining Act. to remain the rule of this Department, the the original in your office. Also enter the Affirmed by Acting Secretary Joslyn, celections under consideration must fail of sales in your record.

June 25, 1883.

BRUNETTE ET AL. VS. JIYERE.

Notwithstanding the remedial provi- sion of it at the date of Jiyere's entry, Tort Touard–The act of March 3, 1863, is re- sions of the act your office seems to have and, indeed, up to the date of this contest, medial to a certain class of persons, but as to treated all applicants, irrespective of per- August and September, 1865. all others the laws for the disposal of public sons, as claimants under the act of Sep- The published notice to settlers to ap

lands are in full and effective operation. Eridonee-Possession at the date of the act is

tember 4, 1841, and to have required of pear and make proof and payment for this the only evidence of title required, and the them the regular pre-emption proof in land was issued October 6, 1864. Hartean, improvements only are to be in accordance such case provided.

howerer, did not make his application to with the icquirements of the pre-emption Where this character of proof could be purchase until August 10, 1805, nearly a law.

furnished by the applicant, it, perhaps, year after the published notice, whereas Failure-The act should be liberally construed worked no injury to him, but at the same the act required that it should be done upon failure to make proof and payment within time specified.

time, the law does not require it. It makes within six months after such notice. Acting COMMISSIONER HARRISON to Reg. and no distinction in the saving clause as be- Of course, this part of the act is to be Rco., Menasha, Wisconsin, Oct. 17, 1882. tween citizen and alien; and if possession liberally construed with a view to attain

I have examined the contested case of of any part of said lands, at date of the the remedial purpose in view, and upon Emanuel Brunette and Michael Mercier vs. act, could be satisfactorily proven, and the the theory of the illegality of Jiyere's enBelaine Jiyere, involving title to lots 287 improvements thereon were such as are try of the lot, and there being no other and 291, Sections 16, 24, 20, under the act provided for under the pre-emption laws, adverse claimant, the failure of Hartean of March 3, 1863.

lipon proper payment, as to quantity and to make his application in time should not These lots formed a part of the public time, the applicant would be entitled to be regarded as working a forfeiture of his domain adjacent to Fort lIoward Military the entry of the whole of the lot or lots right. Reservation, and are located between embracing such possession and improve. In view, therefore, of all the facts and Beaver Dam Run and Duck Creek. inents; provided, the quantity of land did the law, I sustain the entry of Jiyere for

The land of which they form a part was not exceed, in the aggregate, eighty acres. lot 282, and hold it for cancellation as to survered, in pursuance of the act of March, Possession, at the date of the act, of any lut 291. And in view of the great cqui3,1863, by Deputy Surveyor Suydam, and fractional part of a lot is the only evidence ties of Louis Harteau, you will allow him the map thereofapproved by the Surveyor of title required, and it does not seem to to complete his entry of said lot 291, subGeneral, April 5, 1864.

hare occurred to the framers of the act ject, of course, to any valid adverse rights Said lots, 287 and 291, were entered by that inore than one person might have con- which have been initiated since the date Jiyere on the 17th of October, 1864, and current possession at the date of its pass- of hearing in the case. his entry was subsequently contested by age, and consequently they made no proviBrunette and Mercier:

sion for such a contingency. First. Because he was an alien. This seems to have been the difficulty

UNITED STATES CIRCUIT COURT. Second. Because he did not have such in the present case, and the contest grows NORTHERN DISTRICT Of Illixois. possession of the land as is required by out of the efforts of the three persons afore

HARDIN VS. JORDAN. the act regulating its disposal; and named to supplement a form of entry not Third. Because of his disqualification provided for in the act.

A purchaser of lands from the United States under section 13, act of September 4, 1841,

when the plats and field notes show that it is Belaine Jiyere, Emanuel Brunette, and

bounded on one side by a navigable lake, in the matter of inurement of title. Michael Mercier, were each in possession takes to the low water mark of such lake,

The act of March 3, 1863, after specify- of and had made improvements on sepa- Although the proof shows that there is a wide ing the duties of the Commissioner of the rate parts of lot 287. Under the law but belt or margin between the high and low General Land Oflice as to the survey and one of them could make the entry, and as

water line of such lake, which in times of

low water is available for agricultural purplatting of the land described, further pro- Jiyere was the oldest settler, and had

poses, such as pasturage or meadow land, vides that, " be shall thereupon proceed to made the requisite improvements, an this fact does not justify the Commissioner of dispose of the same as other public lands agreement was entered into between them the General Land Office in surveying such are disposed of, saving to every person that he should make the entry for the belt or margin of land, and allowing the Tho, upon the passage of this act, may be whole lot, and then convey to the other two

same to be entered as unsurveyed and unsold

lands, and a patent issued to a purchaser for in possession of any part of said lands, the parts thereof in their several posses

such land is void as against the holder of and shall have made improvements thereon, sions, or, as is maintained by Brunette, to the original title bounded upon the wateras provided under the pre-emption laws of convey to him the entire lot. the United States, the right to purchase Now, whatever may be the equities of BLODGETT, J.:- This is an action of any lots so improved, being contiguous to Brunette and Mercier as against Jiyere, ejectment, by which plaintiff seeks to recach other, and not exceeding in the ag- it is not the province of this office to de- cover from the defendant the fractional gregate eighty acres, upon making proof termine. Sufficient to say, the entry was S. E. of Sec. 19; the fractional N. E. À of such possession and improvements, and made in accordance with the law, with of Sec. 30, and the east fraction of the S. paying for such lots the sum of one dollar their full knowledge and with their open and L. of Sec. 30, all in Tp. 37 N., R. 15 E., and twenty-five cents per acre, within six expressed consent, and so far as the entry of the 3d P. M., situate in the county of months after public notice shall be given of lot 287 is concerned they are effectually Cook and State of Illinois, together with of the time and place for making such estopped, and their equities, if any they the accretions and relictions forming a proof and payment."

may have, must be sought in a court of part thereof. The act is, to all intents and purposes, competent jurisdiction upon an action for The proof shows that on the 20th day remedial to a certain class of persons, but the specific performance of the contract. of December, 1841, a patent was duly to all others the laws and regulations for The case, however, is different as to lot issued from the General Land Oflice of the disposal of public lands are in full and 291.

the United States, conveying in fee to cffective operation.

Jiyere never laid any claim whatever to John Holbrook the parcels of land in The persons saved from such operation that lot. He never had possession of nor question, "according to the official plat are those who were in possession of any improved any portion of it, and, conse of the survey of said land, returned to the part of said lands at the date of the passage quently, had no right to it under the act | General Land Office by the Surveyor Genof the act, and the only requirement of of March 3, 1863, or any other act, for eral." From copies of the original plat them, tvith reference to any of the laws for the disposal of public lands. It had been and field-notes in evidence in this case, the disposal of public lands, is that they in the undisputed possession of Louis it appears that the east side of the two sball make proof of their improvements as Harteau for years before the passage first named parcels of land in question, provided under the pre-emption laws of the of the act. He had made valuable im- and the west side of the last named parUniled States.

provements on it, and was still in posses-'cel, abutted upon a body of water desig

line.

nated upon the plat as a “navigable lake;" tom or lowest part of the bed of this lake Upon the belt of land, alternately dry and that meander lines were run along is from two to three feet below the sur-or covered with water, which lies between what purported to be this water boundary, face of Lake Michigan when at its lowest the original meander lines of the fractional and the plaintiff's proof shows that she is point.

S. E. of Sec. 30, and the lower waternow seized by a series of mesne convey- The proof in this case satisfies me that line of Hyde Lake, defendant has entered ances of this Holbrook title.

there has been no marked change in the by his tenants, and he also claims title In 1874, by an order of the Commissioner character of this land, in the height to thereto, under such of his patents of 1882 of the General Land Office, a survey was which the water rises and falls, since the as purport to cover this land. made of this so-called navigable lake by original Government survey in 1835; the Úpon the trial of this cause, I could get extending the original survey lines into construction of the harbor at the mouth no very definite statement from plaintiff's and across the same, and what purported of the Calumet River, may have slightly attorneys as to what they deemed the ex. by said original plat to be the bed of this modified the effect which the rise and fall tent of her claim ; but I understood them navigable lake was, by this last mentioned of the water in Lake Michigan has upon as insisting that, inasmuch as the plat of survey, cut up into the usual subdivisions the water of this meandered lake; but the original survey showed each of these of Government surveys, and patents were Lake Michigan and Calumet are so close tracts to be bounded on one side by this issued therefor to the purchasers whose to, and connected with, this meandered navigable lake, the grant under the Holtitles under said patent have, by mesne lake that the variation in the height of brook patent, gives plaintiff title to the conveyances, become vested in the defend- the water in Lake Michigan must affect entire area covered by the lake; at least, ant.

the height of this adjacent meandered pond their argument proceeds on that assumpThe proof shows that the land in ques. or lake.

tion. I think, however, that the natural tion is but a short distance from the south- This body of water, called on the orig. physical facts must control even against ern rim or shore of Lake Michigan, and inal plat “navigable lake,” in fact is, and this plat by which, it may be said, Holeast of the Calumet River; that the sur- at the time of the first survey undoubt-brook purchased; that is to say, there is face of even the highest portions is but a edly was, divided by a low ridge running and was, at the time of the old survey, few feet above the water of Lake Michi- nearly north and south, into two lakes or two lakes instead of one. There was a gan and the river; that, for some causes ponds, such ridge being nearly in the same ridge, substantially dry, separating them, not explained by the proof, the height line and direction as would be shown by and this ridge was never surveyed. The of the water of Lake Michigan varies or the east line of Secs. 19 and 30, if con-Government had the right in 1874 to surfluctuates about four or five feet; that is tinued from the north meander line of vey this dry ridge which had never been the extreme high water mark is about four said lake, the western of these two lakes, surveyed, and put it in market and sell it, feet above the extreme low water mark; having acquired the local name or desig- and the purchasers of this ridge would this fluctuation not occurring at stated in- nation of Hyde Lake, and the eastern one have the same right to be bounded by the tervals like a tide, but several years some of these lakes, that is, the one lying east water on the west that Holbrook, and times elapses between those extremes of of the ridge I have mentioned, being lo- those deducing title from him, has to be high and low water; that there is no ap-cally known as Wolf Lake.

bounded by the line of permanent water preciable difference between the height of The north half of this ridge was, un- on the west side of the lake. I do not the water in Calumet and that of Lake doubtedly, at the time of the original sur. think there is any land involved in this Michigan, and that the waters of the river vey as appears from the proof, covered controversy, that can be called or desigrise and fall with those of the lake, and with a growth of trees sufficiently large nated as accretions or relictions belonging that the waters of this so-called navigable to be used for timber purposes, thereby to the fractions covered by the Holbrook lake being connected with Lake Michigan showing such ridge to have been substan- patent; that is, none of this belt of low and Calumet and Wolf Rivers, is affected tially dry land to the extent upon which grassy land lying between the meander by this rise and fall of Lake Michigan. the timber stood on it for many years lines and the low water lines of Hyde Lake,

It also appears that the height of the prior to the time of such survey, while has been deposited or made there since the water in this navigable lake is also, to the central portion of such ridge is lower original survey, so as to be said to be an some extent, affected by the spring and and is covered mainly with coarse slough accretion, nor has the water permanently fall freshets and summer droughts; that grass. Wolf Lake, as it is called, has its receded from any part of this land, so as in times of high water in Lake Michigan, natural and ordinary outlet into Lake to give this belt of land the full character and in the spring and fall freshets, the Michigan through what is known as Wolf of a reliction, or land from which the water-line of this navigable lake, indica- River, but this outlet is liable to be closed water has receded and left dry. I have ted on the plat, is at or near the meander by the washing up of sand from Lake no doubt, from the proof in this case, that lines of the original survey, so that the Michigan, and when so closed it is prob- when this land was surveyed in 1835, as meander lines indicate, with substantial able that the waters of Wolf Lake may now the margins between these meander certainty, the high water line, while in have risen high enough to cover this ridge lines and the low water lines were at times times of low water the water line recedes so as to make the two lakes temporarily covered with water, so that this belt formed from the meander lines so as to leave a one sheet or body of water. There is a nat- part of Hyde Lake at high water, and at wide margin of grassy meadow land be- ural channel leading from Hyde Lake into times it would be dry, the fact whether tween the meander line and the low water the Calumet River, and by this channel this belt or margin was dry land, or a part line. There is, therefore, between this the water in Hyde Lake promptly re- of the lake, depending upon the height of meander line and the low water line, a sponds to the rise and fall of the water in the water in Hyde Lake ; inasmuch, therebelt of grassy meadow land from forty to the Calumet and Lake Michigan; but fore, as Holbrook's land was represented eighty rods wide, which in an ordinarily there was no natural channel through this on the Government plats as bounded by dry season can be used for hay, meadow ridge between Hyde and Wolf lakes, and this lake, I have no doubt that the owners or pasturage.

the two bodies of water were only blended of his title have the right to this margin The centre line of Sec. 19, and the centre into one when the water, from any cause, between high and low water mark; havline of Sec. 30, if produced eastward from was high enough to overflow the lowest ing given Holbrook and those claiming this meander line, will strike into the body part of this ridge.

through him the right to this water boundof permanent water, while the south line In times of very low water the water of ary, the Government could not, by a subof Sec. 30, if produced st from the me- Hyde Lake recedes so as to leave a wide sequent survey and sale, defeat the title ander line of the east fraction of the S. E. margin of grassy meadow land between which Holbrook had acquired. fractional of Sec. 30, will strike the body the apex of this ridge and the east low This case is essentially in all its featof permanent water; I say permanent wa-water line of Hyde Lake, which can be ures like the case of Forsyth vs. Smail, ter, because the proof shows that the bot-'used for pasturage or meadow land. decided by the learned circuit judge of

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