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form of affidavit was prescribed requiring and that he settled on said land August
ORRIN M. COWLES. the applicant to swear that the tract was 20, 1865, and had made improvements Railroad Withdrawal.—Status of the land in composed exclusively of prairie land, thereon valued at $3,000 the dwelling question as affected by certain railroad withnaturally devoid of timber. What trees house and most of the improvements on
drawals. were timber trees within the meaning of the part in Sec. 23. Final certificate was COMMISSIONER MCFARLAND to Register and Rethe act so as to exclude the tract from the issued the same day for the part in Sec
ceiver, Crookston, Minn., Mar.29, 1883. (F. B.) operation of the act, became a question of tion 22, but his claim was rejected for the I am in receipt of a letter from Orrin frequent occurrence, but I find no ruling part in section 23. Troy did not appeal M. Cowles, dated at Pelican Rapids, Febby your oflice or by this Department that and February 25, 1873, patent issued to ruary 23d ultimo, in which he says that in 1876, the date of Flannery's entry, cot- him for the tract in section 22.
you refused to allowed him to make proof tonwood trees were of this character. In- December 24, 1878, Troy made applica- on his homestead entry (847 Detroit sedeed as late as Sept., 1879, this Department tion to be permitted to perfect title to ries) for S. 3, S. W. 1 of Sec. 31-137-42, held in the case of Nicholas Noel et al. said tract on Sec. 23, alleging that his claim made July 9, 1877, because the land was (Copp, Oct., 1879), that such trees were not thereto was rejected by the local officers subject to selection by the St. Paul, Mintimber trees and did not exclude atract from under a misapprehension of the law and neapolis and Manitoba R. R. Co. I find entry. Although later decisions include that he had been in quiet and continuous that the land is within the indemnity limthis variety as among the trees which possession of the same since the date of its of the above named road which was exclude a tract from the ope- his entry August 20, 1867.
definitely located opposite said land Aug. ration of the act, the regulations and Troy died July 28, 1879 leaving no ust 23, 1871. A withdrawal of lands for rules of your office and of this Depart- widow. After his death, viz., on Au- the benefit of the road was made in your ment in force at the date of Flannery's gust 4, 1880, his application for the district on February 15, 1872. On July entry had the force of law as respected a tract was considered and rejected upon 5, 1872, said withdrawal was revoked, and tract subject to entry. There was then no the ground that he had not in his life. the lands affected thereby restored to objection to such an entry and Flannery's time appealed from the decision of the homestead and pre-emption entry. On was allowed as legal and made in accord- local oflicers.
September 4, 1872, the lands in odd numance with what was considered a correct in- From this rejection an attorney who bered sections within the limits of the road terpretation of the statute. He thereby ac- still assumes to act for him, filed a notice were again withdrawn. July 23, 1872, quired rights which can not now legally or of appeal in the local office, September 29, Antoine Dijarley filed Pre-emption, D. S., equitably be repudiated—especially after 1880, but the same was not perfected, and 507, for S. W. I of Sec. 31-137-42, alleg. his compliance with the law for more than the case was closed on the records of your ing settlement April 15, 1870. It, therethree years even though such an entry office April 9, 1881.
fore, appears that there was a settlement might not now be allowed. The later rui. February 28, 1881, Oscar Troy, son of upon the land prior to the definite locaings can not have this retroactive effect. Daniel Troy, deceased, made application tion of the road, and that the pre-emption
I reverse your decision and allow Flan- under section 2, of the act of June 15, 1880, filing of Dijarley was made at a time when nery's entry to stand.
(21 Stat., 237) on behalf of the heirs of the lands were subject to entry. You will, Daniel Troy, to purchase the said tract on therefore, permit Cowles to make final
section 23. This application was rejected proof on his entry, after the usual notice RAILROADS.
by the local officers and an appeal taken by publication, of which all parties claimTROY VS. SOUTHERN PACIFIC RAILROAD from that decision to your office.
ing adversely, will be required to take COMPANY.
As before stated the grant was made to notice. Appeal excepted from the grant.---Notwith-the railroad company, July 27, 1866, but Cowles alleges that he made an entry of
standing the claimant did not appeal from the joint resolution of June 28, 1870, had the N. ļof S. W. Lof Sec. 31-137–42, under the decision of the local officers rejecting the the effect to ratify the lands granted and the act of March 3, 1879, but no such enpart of his homestead entry on section within all the rights of actual settlers the railroad grant.
are try appears on the records of this office. allowed after eleven years, upon the applica- expressly reserved in such joint resolu- It is proper to say in this connection that tion of his son, the claimant having died in tions.
as Cowle's original entry embraced land the meantime.
Daniel Troy was an actual settler on in an odd numbered section he is not enPutent.-Patent issued to the claimant in 1873 the land in question, June 28, 1870, and titled to an additional entry under the act
issue for the land in question, in name of therefore it was excepted out of the of March 3, 1879.
title remains in the United States. (Tome PRIVATE LAND CLAIMS. SECRETARY TELLER to Comm’r Mc Farland, Feb- et al., vs. Southern Pacific R. R. Company
JAMES AND DENNIS QUINNILTY. ruary 6, 1883.
5, C. L. 0. 85). I have considered the case of the Heirs You state that Troy's homestead entry
Louisiana Claim-Consideration of the evidence
and law upon which this claim of nearly one of Daniel Troy vs. Southern Pacific Rail. No. 358 has never in fact been cancelled. road Company, involving the W. } of N. The application of the heirs of Daniel SECRETARY TELLER to Commissioner Mc Far
square league is allowed. W. I of the section 23, township 30 S. R. Troy to purchase the tract in contro- land, April 4, 1883. 27 E., M. D. M., Visalia, California, on ap- versy under section 2 of the act of I have considered the matter of the peal from your Decision of September 15, June 15, 1880 should be granted, and private land claim of James and Dennis 1881, holding that the land was excepted your decision is therefore affirmed. I do Quinnilty for a certain tract of land alout of the grant to said Railroad and in not liowever agree with your holding that leged to contain a square league of land favor of the right of the said Daniel Troy, the patent already issued for the tract in situate on the island Piscadaire, Red thereto.
the even section should be recalled and River, in Township 11 N. of Range 10 W., The tract is within.the 20 mile limits of cancelled and a new patent be issued, " in late Southwestern district, Louisiana, on the Grant of July 27, 1866 to said com- the name of Daniel Troy, for the whole of appeal by one of the parties in interest pany, and was withdrawn for the benefit the land embraced in his homestead entry.” from your office decision of January 15, of the same, May 21, 1867. August 20, The land for which the cash purchase is 1872, holding that the claim was confirmed 1867, Daniel Troy made Homestead Entry made should be patented to the heirs of for one section or six hundred and forty No. 358, for said W. of N. W. of Sec. Daniel Troy, deceased, or to his son Oscar acres of land only. 23 and for the E. } of N. E. of Sec. Troy, the applicant in trust for the use and It appears that this claim is designated 22, in same township. September 2, 1872, benefit of all the heirs of said Daniel Troy, as No. 323 in class 6 in the report of the he made Homestead proof showing that and the patent already issued to Daniel Register and Receiver at Opelousas, Louihe was a qualified Homestead Claimant, Troy, deceased, be allowed to remain. siana, dated December 30, 1815 to wit:
" James and Dennis Quinnilty, heirs of range 10 W., containing 5,876.74 acres, or pressed by the proviso in question, is, that John Quinnilty, claim a tract of land one a square league of land, that during the all claims recommended for confirmation league square, situated on the island Pis- interim of the passage of the confirmatory are confirmed for the quantity claimed, cadaire on Red river, in the county of Nat- act and the date of the decision in question upon the condition precedent that such chitoches, bounded on the north by land -nearly fifty years, the United States quantity shall not exceed“ one square known by the name of Wallis's old place. has expressly and tacitly recognized the league," The evidence of Jose de la Vega, aged claim as valid, segregated from the public In order to sustain the converse of the fifty-nine years, taken the 28th of Decem- domain, and confirmed to the full amount foregoing proposition, it would be necesber, 1813, states that John Quinnilty set- claimed, or for one league, and so de- sary either to interpolate some such words tled on the land upwards of twenty lineated upon said plat in your office, the "as are hereby confirmed as years ago, and continued to inhabit and local office, and the Surveyor General's mended, or to eliminate the proviso; becultivate the same for twelve years, since office.
cause otherwise, the same would be in di. when it has remained vacant. Deponent That" as shown by the certificate *** |rect conflict with the purview of the act, knows of no grant for this land which lies of the clerk and Recorder of Natchitoches which would render the former nugatory within the jurisdiction of Nacogdoches, Parish—where the land is situated—it has or inoperative. the commandant of which place usually been, during the time named, the subject It is a fundamental rule that invariably granted lands from one to two leagues of transactions of every description inci- obtains in the construction of statutes that square. This deponent as collector for dent to private ownership, to the amount the legislative intent is to be ascertained the church at Nacogdoches, recollects hav- of nearly $50,000.
from the statutes itself, unless the laning receiving (ed) tithes from said Quin The records of your office show that the guage be so ambiguous as to render such nilty, the produce of said land.” See claim has been surveyed and it is repre-construction unreasonable or impractic American State Papers, Public Lands, Vol. sented on the approved township plat as cable. 3, p. 176.
containing 5,876.74 acres, or 125.76 acres Every day I see the necessity of not The Register and Receiver, in recom- less than a square league, which contains importing into statutes, words which are mending said class of claims for confirma- 7,056 arpents or 6,002.50 acres.
not found there. Such a mode of intertion by Congress, state that the same It should be observed that the report of pretation only gives occasion to endless ought to be “ confirmed, pursuant to the the Register and Receiver was expressly difficulties. Per Patterson, J., in King the first section of the act of Congress of submitted “ for the revision of Congress l's. Burrell 12 A. and E., 468. the 21st of April, 1806, for the quantity as will be seen from the purview thereof, to In the case of Newhall vs. Sanger, (92 claimed, or within the acknowledged and wit:"The Register of the land office and the U. S., 761) it was strenuously urged by ascertained limits of the same, not exceed- Receiver of public moneys of the western the learned counsel that the word “lawing one mile square or 640 acres." district of the late Territory of Orleans, fully,” should be imported into section 6
The first six classes of claims, including now State of Louisiana, have the honor to of the act of March 3, 1853, (10. Stat., the one in question as designated in said report their decisions and opinions, for the 246) by which lands claimed under Mexireport were confirmed by the act of Febru- revision of Congress, on the following can or Spanish grants were reserved from ary 5, 1825, (4 Stat., 81) which provides as claims to land within said district." pre-emption and sale until final decree follows:
Such report consists of a concise recital upon title, but the court in passing upon “ That all the claims to land embraced of facts coupled with a recommendation or this question said: “ It is said that this in the report made by the Commissioners expression of opinion touching the action means lawfully claimed; but there is no appointed for adjusting titles and claims that should be had thereon, subject, how- authority to import a word into a statute to land in the western district of Louisi- ever to Congressional “ revision”i. e., re- in order to change its meaning." ana, upon the thirtieth day of December, examination or correction. Indeed, one of This rule of construction is elementary eighteen hundred and fifteen, and recom- the duties expressly imposed upon the and indorsed by all text writers. See mended by them for confirmation, be, and several Boards of Commissioners, as Potter's Dwarris, 199 et seq. the same are hereby, confirmed : Provided, created by the 5th section of the act of Passing from these considerations to anThat no person or persons shall be entitled, March 2, 1805, (2 Stat., 324) was the sub-other, which necessarily brings under reby any one claim, to a greater quantity mission of their decisions or opinions on all view the second point of objection, to the than one league square under this act." claims filed with the Register in confor- holding that the proviso in the confirma
The decision in question holds in this mity with the provisions of the 4th sec- tory statute being applicable to claims reconnection as follows:
tion of said act; to wit, “which decisions commended for contirmation by the Com"From the foregoing it is conclusively shall be laid before Congress in the man- missioners other thon those embraced in shown that the confirmation of the class of ner herein directed, and be subject to their class six,” I am constrained to the opinclaims to which the one under considera- determination thereon.” While Congress ion that there is nothing in the purview tiod belongs, was for a quantity not to ex- doubtless accepted the facts as recited, it of the statute neither in the enacting clause ceed one mile square or six hundred and can not be presumed to have adopted such or in the proviso to justify such presumpforty acres, the proviso in the confirmatory opinion as of course, because it merely sub-tive construction. statute being applicable to claims recom- served the purpose of a suggestion, which In United States vs. Dickson,(15 Peters, mended for confirmation by the Commis- Congress, in its discretion adopted or cor- 165) the Court say: "We are led to he sioners other than those embraced in class rected as it deemed advisable, albeit Con- general rule of law which has always presix,” and that the approved survey of the gress only confirmed the said six classes vailed, and become consecrated almost as premises must therefore be reduced to an that were recommended for confirmation by a maxim in the interpretation of statutes, area containing one section, or six hundred the report in question, it should be ob- that where the enacting clause is general in and forty acres.
served, nevertheless, that while none of its language and objects, and a proviso is The said party in interest (“ pro se et them were so recommended for more than afterwards introduced, that proviso is conal.”), urges, however, that some time, six hundred and forty acres, Congress did strued strictly, and takes no case out of about the year 1832, (or shortly after the not adopt such recommendation, but, on the enacting clause which does not fall passage of the act of March 3, 1831, 4 Stat., the contrary, expressly disregarded the fairly within its terms. In short, a pro492, creating the office of Surveyor-Gen- restrictive feature of the same by substi- viso carves special exceptions, only out of eral of Louisiana) the claim was regularly tuting “ one league square," as the maxi- the enacting clause and those who set up surveyed pursuant to the orders of the mum area of claims confirmed under this any such exceptions must establish it as Surveyor General of Louisiana, the plat act, in lieu of the "one mile square, or 640 being within the words as well as within thereof approved, and the claim designated acres," suggested by said report.
the reason thereof." thereon as section 37, township 11 N., The patent intent of Congress, as ex As matter of fact, it will be observed
that while the various claims embraced in applicant, Eugene M. Caffry, was not ad. in the absence of any allegation to the the six classes recommended for confir-vised of the said cancellation until on or contrary, and such presumption can only mation, are for manifold quantities, the about October 10, 1880, when he learned be overcome by aflirmative proof that a Quinnilty claim in question is the only that one Joseph Rounsaville had purchased formal written notice was brought home one for the specific quantity of one league the tract from the United States on the to him. square. In view of this fact, and of the 4th of that month.
I am therefore of opinion that as there further fact that the report in question re- Said affidavit is corroborated by that of is no fraud or bad faith shown or even commended no claim in any of the classes Samuel M. Hays (Hayse) and his wife, suggested in the premises, the entry comes for a quantity more than about one-half a and the records of your office show that within the intendment of the second secleague square, and none in class six for the entry was cancelled as above stated, tion of the act of June 16, 1880, by virtue more than one mile square—of all whereoff and that the tract remained vacant until whereof Caffry is entitled to repayment of Congress was presumably cognizant-it October 4, 1880, when it was purchased by the purchase-money in question. would seem to be imputing a vain intent or said Rounsaville.
The decision of your office is accordan act of supererogation on the part of Upon this state of facts Caffry asks for ingly reversed. that body in enacting said proviso if the repayment of the purchase-money in quessame were to be a dead letter, negatived tion.
INDIAN LANDS. by the recommendation in question. Section 2362 Revised Statutes authorizes
O'NEAL VS. PAQUIN. I think, therefore, that the proviso un- the repayment of purchase-money to the doubtedly applies generally to all claims purchaser, or to his legal representatives Uncompahgre Park.-Land within the limits of confirmed by said act, and that it is merely or assignees, upon satisfactory proof" that
the Hot Springs reservation in Uncompalıgre
Park are not subject to settlement. an expression of the sense of Congress that any tract of land has been erroneously sold SECRETARY TELLER to Commissioner McFarland, no claim should be confirmed for“ a greater by the United States, so that from any April 24, 1883. quantity than one league square under this cause the sale cannot be confirmed."
It should be observed that the 8th secact."
Section 2 of the Act of June 16, 1880, tion of the act of June 15, 1880, (21 Stat., Inasmuch, therefore, as this claim is for (21 Stat., 287,) provides for repayment of 204) provides as follows: a tract of land containing 5,876.74 acres or purchase-money under substantially the "That the hot springs located in what 125.76 acres less than the maximum quan- same conditions, and further, “ upon the is known as the 'Uncompahgre Park,' in tity confirmed by said act, I am of opin- surrender of the duplicate receipt and the the Uncompahgre Valley, and four square ion that patent should issue in the name execution of a proper relinquishment of miles of land surrounding said springs of James and Dennis Quinnilty for the all claims to the land.” This statute is a and within said valley, are hereby reserved premises as claimed by them.
modification of the old law, act of January and withdrawn from settlement, occu12, 1825, (4 Stat., 80).
pancy, or sale, under the laws of the REPAYMENT.
The former provided for repayment un- United States, and dedicated and set apart EUGENE M. CAFFRY.
der certain specified conditions, whereas, for the benefit, and enjoyment of the peoAssignee.—In repayment cases, an assignee is the latter authorizes repayment “where, ple ; and so far as practicable, the provisone who purchases the land involved after from any cause, the entry has been ions of sections 2474 and 2475, of the entry and prior to cancellation thereof. The erroneously allowed and cannot be con- Revised Statutes, are hereby made applicase in question is an exception; repayment is
cable to the said tract.” SECRETARY TELLER to Commissioner McFarland,
As before stated, the records of your of- The maps of records in your office indiApril 4, 1883.
fice show that the entry was cancelled be- cate that said springs are situated in I have considered the appeal of Eugene cause the land was unoffered, and not township 45 N., R. 8. W., N. M. M., but M. Caffry from your predecessor's decision therefore subject to private entry. Hence this township being unsurveyed, the exof February 21, 1881, declining to recom- said entry was erroneously allowed; and as act location of the springs is not known, mend the repayment of the purchase it can not be confirmed, this case would and consequently the limits of the park money ($49.771) paid by one Samuel seem to fall within the category of cases cannot be ascertained with any degree of M. Hayse under date of February 16, wherein repayment is authorized by the certainty. It may extend within town. 1841, per Johnson Court House, Arkan- statute.
ship, 44 N. sas, cash entry No. 636, for the N. E. I In your office decision from which ap- Your records fail to discover, however, of N. W. of section 18, Tp. 5 N., R. peal is taken, it is held that those persons whether the tracts claimed will ultimately 22 W., Dardanelle district, Arkansas. are assignées, within the meaning of the fall within or without the park.
It appears that the entry was cancelled, statutes cited, who purchase the land sub- Before rendering decision in the premAugust 12, 1845, because the land was un- sequently to the completion of the entries ises, the exact locus of such park should offered, and not, therefore, subject to pri- thereof and receive assignment of the same have been ascertained by your office. vate entry.
prior to their cancellation, in the event of I therefore direct you to suspend all February 3, 1881, Eugene M. Caffry failure of confirmation by reason of causes proceedings until it is determined whether made application for repayment of said contemplated by the statute.
the land in controversy is or is not within purchase money. This application is ac- It is true that such holding is within the the limits of said reservation. If not you companied with the joint affidavit of the letter of the departmental Circular In- will so report to the Department; and if applicant and Velusco P. Caffry, alleging structions approved August 6, 1880, it shall appear that said premises are that they are residents of Dardanelle, Yell whereby the general rule governing re: within the reservation, of course no valid county. Arkansas, and the sole heirs-at- payments is established ; but it should claim can be made by either party and the law of Philip S. Caffry, deceased ; that nevertheless be observed that the circum- controversy between the parties may be they acquired the premises (inter alia) by stances of this case are such as to bring it considered at an end. descent from said ancestor, who acquired within the category of exceptions to said the same by purchase from said Hayse un- rule.
CIRCULAR. der deed dated April 22, 1859; that on or The applicant alleges that he was never Notice of public sale of land within the Otoe about July 17, 1874, the said Velusco P. officially notified of the cancellation of the and Missouria reservation in the States of NeCaffry conveyed all his right, title and in- entry, and that it was not until about Oc- braska and Kansas. terest in the premises to said applicant, tober 10, 1880, when he casually learned UNITED STATES LAND OFFICE, Beatrice, Newho is the sole bona fide legal owner there that the tract had been recently pur- braska, April, 1883. of; that neither said ancestor nor his heirs chased by one Rounsaville. Caffry is By direction of the Hon. Secretary of have ever been indemnified for the loss of clearly entitled to the benefit of the in- the Interior, the U. S. Land Office at said purchase-money; and that the said 'variable legal presumption of good faith Beatrice, in the State of Nebraska, will be
open on Thursday, the 31st day of May, In the year 1862, by reason of a freshet Equity demands that the rights of these 1883, at 10 o'clock a. m. for the purpose which had occurred in 1861, injuring and Indians be recognized, and that, before of receiving applications to purchase the rendering almost worthless the arable any disposition of the lands, some proviremainder of the lands of the Otoe and lands in the reservation, it was practically sion be made which will secure to them Missouria reservation in the States of Ne- abandoned, and has not since been occu- protection in the peaceful occupancy and braska and Kansas.
pied except by a few of the Indians who enjoyment of their homes. The lands will be sold only to persons refused to leave and are still thereon. Of Your decision adverse to applicant, and who shall within three months from the these there are at present, according to holding that the land in question is in a date of their applications make a perma- the most recent census, about two hundred state of reservation and not subject to ennent settlement upon the same, and each and twelve.
try or location, is affirmed. application must be accompanied by an On the 8th of April, 1864, an act was afiidavit as evidence of good faith in this approved entitled, “ An act to provide for
[No. 884.] respect. the better organization of Indian affairs in
NOTICE The lands will be sold to the highest re- California." (13 Stat., 39.) This act pro-OF THE ESTABLISHMENT OF Two ADDITIONAL sponsible bidder, at not less than the ap- vided, among other things," that there LAND DISTRICTS IN THE STATE OF NEpraised value, in 80-acre tracts, and no one shall be set apart by the President, and at person will be allowed to purchase more his discretion, not exceeding four tracts of
Notice is hereby given that, by Act of than 160 acres, except in cases of fractional land within the limits of said State, to be Congress approved June 19, 1882, two excess (contiguous thereto), where the sur-retained by the United States for the pur- additional land districts were created in vey of township and section lines could pose of Indian reservations." not be made to conform to the boundary The Klamath reservation was not in- scribed as follows: 1.' Beginning where
the State of Nebraska, bounded and delines of the reservation, in which case the cluded in the selections made, pursuant to the second guide meridian west intersects excess, not exceeding forty acres, may be this act. The act further provided in ef- the northern boundary of the State of added to the 160 acres.
fect that the several Indian reservations Nebraska; thence south along said guide The terms of sale are as follows: not retained under the provisions of the meridian to the southeast corner of town.
One quarter in cash, to become due and law above quoted should be surveyed, ap- ship twenty-six (26) north, range sevenpayable at the expiration of three months praised and offered at public sale, after teen (17) west; thence west to the southfrom the date of filing application, one which the residue should be held subject east corner of township twenty-six (26) quarter in one year, one quarter in two to sale at private entry. No such survey north, range twenty-one (21) west; thence years, one quarter in three years from has been made of the reservation in ques- south to the southeast corner of township date of sale, with interest at the rate of 5 tion and consequently there have been no
twenty-five (25) north, range twenty-one per centum pet annum; but in case of de- disposals of lands therein.
(21) west; thence west to the western fault in the cash or first payment, the per It is claimed by appellant, therefore, boundary of the State; thence north to son thus defaulting shall forfeit absolutely that the scrip in question is locatable un- the north line of the State ; thence east his right to the tract for the purchase der the application made. of which he has applied.
I am unable to so regard it. The act of along said line to the place of beginning, No lands will be sold upon which im- April 5, 1872 (17 Stat., 649), authorizes district, to be called the MINNEKADUSA provements are found belonging to In- the location of Valentine scrip upon any land district; and the President of the dians as reported by the appraisers in their " unoccupied and unappropriated public United States, by executive order dated schedule of appraisement.
lands of the United States, not mineral, February 10, 1883, has directed that the The sale will be subject to approval by etc.”
office of said district shall be located at the Secretary of the Interior, and will be The lands in the Klamath River Indian
the town of VALENTINE. continued from day to day at Beatrice Reservation are neither, “unoccupied,"
2. That all that portion of the State of until all the lands are disposed of. nor "unappropriated." It is true they Nebraska, bounded and described as fol
A list of the lands, with the appraised are not retained for the purposes of an In- lows: Beginning on the south boundary value of each tract, will be found on file at dian reservation under the act of 1864, but of the State of Nebraska on the range line the district land office at Beatrice. that act, as already shown, provides and between ranges twenty-five (25) and twen
Register. specifies the manner of their disposal, viz., ty-six (26) west; thence north along said
by survey, appraisement, public sale, etc.; range line to the second standard parallel;
and until the specific acts required by the thence west along said standard parallel R. D. HUME.
law shall have been performed, or Con- to the western boundary of the State; dian Reservation, whose status is like the the lands remain in reservation, and con. south line of the State; thence along said serip is not locatable on lands within an In- gross shall by legislation direct otherwise, thence south along said boundary to the Klamath River Reservation, California.
sequently are so appropriated as to render south line east to the place of beginning, SECRETARY Teller to Commissioner Me Far- them unavailable for the location of scrip is hereby constituted an additional land land, April 18, 1883.
As historically corroborative district, to be called the HITCHCOCK I have considered the appeal of R. D. of this view I find that a bill (No. 3454) land district; and the President of the Hume, by his attorneys, Messrs. Britton was introduced in the House of Represen- United States, by executive order dated and Gray, from your decision of Feb. 4, tatives, 2d session, 46th Congress, entitled, March 8, 1883, has directed that the office 1882, denying his application to locate “ A Bill for the restoration of the Klamath of said 'district shall be located at the Valentine'scrip on a certain tract of forty River Indian Reservation in the State of town of McCOOK. acres of land near the mouth of Klamath California to the public domain.”
Further notice of the precise time when river, California, in what is known as the Again, an exactly similar bill (House the land offices of the above-named disKlamath River Indian Reservation. Bill No. 60) was introduced in the 47th tricts will be opened for the transaction of The more prominent facts, as shown, by Congress at its first session.
public business will be given by the Regthe record in the case, are as follows: Moreover, as before stated, there are on isters and Receivers thereof by publicaThe reservation was created by Execu- the reservation about two hundred and
cation. tive order dated November 16, 1855, pur- twelve Indians, who never left, but have
Given under my hand, at the city of suant to act of Congress approved March continued their residence thereon for a Washington, this thirteenth day of March, st 1855, (10 Stat., 699), and embraces, a quarter of a century or more, and who are A. D. 1883. 3,rip of territory commencing at the Pa- and have been during all these years en
BY THE PRESIDENT: cific Ocean and extending one mile in tirely self-supporting. It is therefore not
N. C. MCFARLAND, width on each side of the Klamath river."'' unoccupied.
Commissioner of the General Land Office.
SUPREME COURT OF THE UNITED 5 Meeson & Welsby, 351; Morgan v. But the case before us is one where, by STATES.
Powell, 3 Adolphus & Ellis, N. S., 218; reason of the willful wrong of the party WOODENWARE COMPANY VS. UNITED STATES. 440; Hilton v, Woods, L. R., 4 Equity, under the rule we have supposed to be es
Wood r. Morewood, 3 Adolphus & Ellis, who committed the trespass, he was liable In an action for timber cut and carried away 438 ; Jegon v. 'Vivian, L. R., 6 Chancery, tablished, for the value of the timber at
from the land of plaintiff, the measure of damages is : 760.)
Depere the moment before he sold it; and 1. Where the defendent is a knowing and will- The doctrine of the English courts on the question to be decided is whether the
ful trespasser, the full value of the property this subject is probably as well stated by defendant who purchased it then with no at the time and place of demand ; or, of suit Lord Hatherley in the House of Lords, in notice that the property belonged to the
brought, with no deduction for labor and ex- the case of Livingston v. Rawyards Coal United States, and with no intention to do 2. Where the defendant is an unintentional or Company, Law Reports, 5, Appeal Cases wrong, must respond by the same rule of
mistaken trespasser, or his innocent vendee, 33, as anywhere else. He said: “There is damages as his vendor should if he had the value at the time of conversion, less what no doubt that if a man furtively and in been sued. the labor and expense of defendant and his bad faith robs his neighbor of his prop- It seems to us that he must. The tim
vendor have added to its value. 3. Where defendant is a purchaser without erty, and because it is under-ground is ber at all stages of the conversion was the
notice of wrong from a willful trespasser, the probably for some little time not detected, property of plaintiff. Its purchase by devalue at the time of such purchase.
the court of equity in this country will fendant did not divest the title nor the Error to the Circuit Court of the United struggle, or I would rather say will assert right of possession. The recovery of any States for the Eastern District of Wis- its authority to punish the fraud by fixing sum whatever is based upon that propoconsin.
the person with the value of the whole of sition. This right, at the moment precedMiller, J.—This is a writ of error to the the property which he has so furtively ing the purchase by defendent at Depere, Circuit Court for the Eastern District of taken, and making him no allowance in re- was perfect, with no right in any one to Wisconsin, founded on a certificate of spect of what he has so done, as would set up a claim for work and labor bestowed division of opinion between the judges have been justly made to him if the parties on it by the wrong-doer. It is also plain holding that court.
had been working by agreement.” But that by purchase from the wrong-doer deThe facts as certified, out of which this " when once we arrive at the fact that an fendant did not acquire any better title to difference of opinion arose, appear in an inadvertence has been the cause of the the property than his vendor had. It is action in the nature of trover, brought by misfortune, then the simple course is to not a case where an innocent purchaser the United States, for the value of two make every just allowance for outlay on can defend himself under that plea. If it hundred and forty-two cords of ash timber, the part of the person who has so ac- were, he would be liable to no damages at or wood suitable for manufacturing pur- quired the property, and to give back to all, and no recovery could be had. On the poses, cut and removed from that part of the owner, so far as it is possible under contrary, it is a case to which the doctrine the public lands known as the reservation the circumstances of the case, the full of caveat emptor applies, and hence the of the Oneida tribe of Indians, in the value of that which cannot be restored to right of recovery in plaintiff
. State of Wisconsin. This timber was him in specie."
On what ground then can it be mainknowingly and wrongfully taken from the There seems to us to be no doubt that tained that the right to recover against land by Indians, and carried by them in the case of a willful trespass the rule bim should not be just what it was against some distance to the town of Depere, and as stated above is the law of damages both his vendor the moment before he interthere sold to the defendant, which was not in England and in this country, though fered and acquired possession? If the chargeable with any intentional wrong or in some of the State courts the milder case were one which concerned additional misconduct or bad faith in the purchase. rule has been applied even to this class of value placed upon the property by the The timber on the ground, after it was cases.
Such are some that are cited from work or labor of the defendant after he felled, was worth twenty-five cents per Wisconsin. (Single v. Schneider, 24 Wis. had purchased, the same rule might be cord, or $60.71 for the whole, and at the R., 299 ; Weymouth v. Railroad Co., 17 applied as in case of the inadvertent trestown of Depere, where defendant bought Wis., 550.)
passer. and received it, three dollars and fifty On the other hand, the weight of au- But here he has added nothing to its cents per cord, or $850 for the whole thority in this country, as well as in Eng- value. He acquired possession of propquantity: The question on which the land, favors the doctrine that where the erty of the United States at Depere, which judges divided was whether the liability of trespass is the result of inadvertence or at that place, and in its then condition, is the defendant should be measured by the mistake, and the wrong was not inten- worth $850, and he wants to satisfy the first or the last of these valuations. tentional, the value of the property when claim of the government by the payment
It was the opinion of the circuit judge first taken must govern, or if the con- of $60. He founds his right to do this not that the latter was the proper rule of version sued for was after value had been on the ground that anything he has added damages and judgment was rendered added to it by the work of the defendant, to the property has increased its value by against the defendant for that sum. he should be credited with this addition. the amount of the difference between these
We cannot follow counsel for plaintiff Winchester ». Craig, 33 Mich. R:, 205, two sums, but on the proposition that in in error through the examination of all contains a full examination of the authori- purchasing the property he purchased of the cases, both in England and this country, ties on the point. (Heard v. James. 49 the wrong-doer a right to deduct what which his commendable research has en- Mississippi, 236; Baker v. Wheeler, 8 the labor of the latter had added to its abled him to place upon the brief. In the Wend., 505; Baldwin v. Porter, 12 Conn., value. English courts the decisions have in the 484.)
If, as in the case of an unintentional main grown out of coal taken from the While these principles are sufficient to trespasser, such right existed, of course mine, and in such cases the principle enable us to fix a measure of damages in defendant would have bought it and stood seems to be established in those courts both classes of torts where the original in his shoes; but, as in the present case, that when suit is brought for the value of trespasser is defendant, there remains a of an intentional trespasser, who had no the coal so taken, and it has been the re-third class, where a purchaser from him is such right to sell, the defendant could pursult of an honest mistake as to the true sued, as in this case, for the conversion chase none. ownership of the mine, and the taking was of the property to his own use. In such Such is the distinction taken in the not a willful trespass, the rule of dama- case, if the first taker of the property Roman law, as stated in the Institutes of ges is the value of the coal as it was in were gulty of no willful wrong, the rule Justinian, lib. 2, title 1, section 34. the mine before it was disturbed, and not can in no case be more stringent against After speaking of a painting by one its value when dug out and delivered at the defendant who purchased of him than man on the tablet of another, and holding the mouth of the mine. (Martin v. Porter against his vendor.
it to be absurd that the work of an Ap