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No. 535.
Circular to the Land Officers in the Territories.


June 25, 1844. Gentlemen :-The Act of Congress approved on the 15th instant, entitled “ An act to authorize the selection of certain school lands in the Territories of Florida, Iowa, and Wisconsin,” (No. 83,) declares " that wherever the sixteenth sections in said Territories, either in whole or in part, are now, or may hereafter be, included in private claims held by titles confirmed or legally decided to be valid and sufficient, other lands equivalent thereto, within any land district in said Territories most adjacent to said lands so taken up by private claims," may be selected in lieu thereof.

The Act directs that the selections thus to be made are to be of lands " which have been offered at public sale and remain unsold.”

With the view of carrying this Act into effect, you are required, in the first place, to prepare and report to this office a list of all the townships and fractional townships wherein the sixteenth sections are covered in whole or in part by the private claims of individuals within the limits of your district, designating in each case the name of the claimant, with the date or number of confirmation, or such other memoranda respecting it as will enable this Office readily to refer to its history, and thereby form an opinion as to its validity.

On the receipt and examination of such report, you will be immediately advised of the quantities of land which may be required to be selected in conformity with the provisions of this Act.

. Very respectfully, your obedient servant,

Thos. H. BLAKE, Commissioner. Register and Receiver at

teen, is that by which the tract becomes appropriated for school purposes.-(Opinion of Attorney General, August 12, 1830, vol. 2, p. 360.)

A valid pre-emption, under Act of 1829, however, cannot be avoided by the selection.- Ib.

School sections,no allowance for portion covered by water. Rights of riparian proprietors,-State jurisdiction.

In regard to a question recently presented, as to to the rights of riparian proprietors on Beaver Lake, Indiana, represented on the public surveys as a navigable watercourse, we stated that the laws of the United States declare, that all navigable waters shall be deemed to be and remain public highways, that the Surveyors General are required to meander all such, and deduct their surface from the contents of the sections, and that the 2d section of the Act of 11th February, 1805, confirms the returns, made by the Surveyors General, according to which the lands are sold, and the titles pass to the purchasers. That the United States, therefore, after the lands have been sold and patented, have nothing more to do with the right acquired by the riparian proprietors, for here the general land laws cease, and the State laws, operate in the premises.-(Report of Chief Clerk of General Land Office for January, 1856.)

No. 536. Circular to Registers and Receivers of the United States land offices in



March 6, 1854. Gentlemen :-Your attention is directed to the following Act of Congress, approved 1st March, 1854 : “ An act for the extension of the pre-emption privilege in the State of California, (No. 233.)-Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of the Act of the fourth of September, eighteen hundred and forty-one, granting pre-emption rights to the settlers on the public lands, as modified and made applicable to the State of California, by the Act of third of March, eighteen hundred and fifty-three, shall be further modified by extending the provisions of the third proviso in the sixth section of the aforesaid Act of the third of March, eighteen hundred and fifty-three, to settlements made prior to, and within two years after the passage of this act.”

By it, the provisions of the pre-emption law of September 4, 1841, are extended to all settlements on unsurveyed public lands in California, made 6 prior to, and within two years after the passage of this Act," that is, prior to the 1st of March, 1856; and if any such settlement should prove, after the return of the plat, to be upon the “sixteenth,” or “thirty-sixth” section, reserved for schools, such settlement right will attach, and other school lands must be selected in lieu of the tract thus settled and claimed.

JOHN WILSON, Commissioner.

No. 537. The Act of 230 June, 1836, admitting Michigan into the Union, contain

ed an absolute grant to the State of every sixteenth section, which had not been disposed of.


September 10, 1851. Sir:- I have examined the clain of the State of Michigan, under the compact for her admission into the Union against certain lessees, under the Act 1st March, 1847, (No. 127,) to sections numbered sixteen, which were the subject of your report to me of the 16th of June last.

The first proposition in the Act of Congress of 23d June, 1836, for the

sixteen, in every township of the Public Lands, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools.”

This with the other propositions of the Act of June 23, 1836, were to be 66 offered to the Legislature of the state of Michigan, for their acceptance or rejection," and "if accepted under the authority conferred on the said Legislature by the Convention which framed the constitution of the State," were to be 56 obligatory upon the United States."

These propositions were accepted, and the irrevocable ordinance, required by the 5th proposition, was provided by an act of the Legislature of Michigan, approved the 25th July, 1836. On the 1st March, 1817, Congress passed " An act to establish a land office in the northern part of Michigan, and to provide for the sale of mineral lands, in the State of

Michigan.” The second section of that Act, requires that a geological examination and survey of the lands comprising this new land district, should be made, and that such land as might be found to contain copper, lead, or other valuable orcs, be exposed for sale, giving six months' notice of the time and place, and that all the lands embraced in said district, not reported as containing valuable ores, “ should be sold in the same manner as other lands,'' under the laws then in force for the sale of public lands, "excepting and reserving from such sales section sixteen, in each township, for the use of schools, and such reservations as the President shall deem necessary for public uses.

This third section provides that all persons who are in possession, by actual occupancy, of any portion of the district described in the first section, whether under authority of a lease or permit from the Secretary of War or not, for the purpose of mining thereon, may purchase the same under certain conditions and restrictions. Under the law of 1st March, 1847, a part of section 16, in townships 50 and 58, of ranges 39 and 40, west, respectively, is claimed under a lease from the Secretary of War ; while the State claims under the first proposition of the Act of 23d June, 1836, for her admission into the Union. The questions which arise in this case are purely legal, being as to the proper construction of the Acts of 1836 and 1847. The first proposition of the Act of June 23, 1836, which was accepted by the State of Michigan, and thereby became obligatory upon the United States, is in these words : “ That section numbered sixteen, in every township of the public lands, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools." You contended that this language does not amount to a present grant, and that its true meaning and intent are, that section sixteen in every township, which, upon being surveyed, shall be found not to have been sold or otherwise disposed of, shall be granted for the use of schools. In this I do not concur; I regard it as an absolute grant of every sixteenth section which had not, on the 230 June, 1836, been sold or otherwise disposed of, whether then designated by survey or not; and the fact that the same language was used in the admission of Ohio into the Union in 1802, and in the admission of all the other States subsequent to that time, has passed to the States the title to sections sixteen, without further legislation ; the issuing of a patent or other action by the General Land Office, shows that it has always been regarded as a present grant. It is also contended that this construction of the Act of 1836, will render the Act of 1st March, 1847, nugatory; that the Act of 1847 grants certain privileges to, and confers certain rights upon occupants of these mineral lands; and that under Attorney-General Legaré's opinion of 29th April, 1842, the Executive is bound to execute a law of Congress where the will of that body is clearly expressed, even though the provisions of that law are inconsistent with previous legislation. Where a law of Congress is clearly inconsistent with prior legislation, I agree with Mr. Legaré that the Executive is bound to execute it; but in construing the subsequent law, we must construe them as statutes upon the same subject in pari materia ; and if possible make them harmonize, so that Congress may not be charged with injustice or absurdity.

But I do not regard the Act of 1847 as inconsistent with that of 1836, nor as containing language sufficiently ambiguous to give rise to serious doubts as to its true intent and meaning. The Act of 1836 had granted to the State all sections numbered sixteen, which had not then been sold or otherwise disposed of; and it would not have been constitutional or just in Congress, in 1847, to violate that law, or annul the grant made by solemn compact with the State ; and the concluding portion of the second section of the Act of March 1, 1847, was designed, in my opinion, to exclude from its operation all sixteenth sections, and such reservations as the President might deem necessary for public uses, whether such sections or reservations were mineral or agricultural lands. Without going further into the subject, it being deemed unnecessary, your decision of 22d April last, adverse to the claim of the State of Michigan to the sixteenth sections in the mineral regions, is reversed, and the papers which were submitted with your letter of 16th June last, are herewith returned.

A. H. H. STUART, Secretary. Commissioner of the General Land Office.

No. 538. An approval of lands selected for University purposes, to which prior rights had attached, will not be regarded as conclusive.


December 13, 1855. Your letter of the 11th instant, on the subject of an approval by the Department on the 19th April last, of a list of selections for university purposes, in the State of Wisconsin, under the Act of 15th December, 1854, has been received. A list is enclosed, exhibiting twenty-two cases of actual sale, and twenty-seven cases of claims by pre-emption, embracing land which was heretofore submitted for and received the approval of the Department, as selections free from known adverse claims, and the object is to procure the rescinding of such approval as to the tracts embraced in said list. The approval as stated by you, was a conditional one, saying the rights of adverse parties, and therefore did not actually, in a legal sense, embrace tracts previously sold, or which, claimed as pre-emptions by virtue of settlements made prior to 15th December, 1854, may be in due time consummated, but such approval to the extent indicated, is hereby formally revoked,* in order that the course mentioned by you may be taken to prevent any disposition of said tracts by the State, under the erroneous impression that they belong to her.

R. M‘CLELLAND, Secretary. Commissioner of the General Land Office.

No. 539. A settler, whose improvements are partly on a school section in Minnesota, is entitled to the benefit of the Art of 3d March, 1857. (No. 320.)


July 14, 1857. Sir:-In reply to your letter of the 3d inst., I have to state that those settlers in Minnesota, who, prior to the surveys, entered upon and improved public lands with a view to pre-emption, and who, subsequently to the return of the plats, found their improvements to be, in part, on the school section, sixteen or thirty-six, and who, in consequence, have heretofore, and prior to the passage of the Act of 3d March last, (No. 320,) entered their

* This policy has since been changed.

claims-including only such portions as were outside of the school sectionare regarded by this office as occupying the same position or ground, under the said law of 1857, as those whose improvements were found to be wholly on the school sections, and which latter class can now secure all the land claimed under the said act.

In other words, suppose a case :--Upon the return of survey, A. found his improvements on the west half northwest quarter section 15, and east half northeast quarter section 16. He was of course restricted in his entry to the west half northwest quarter section 15, said entry having been made before the passage of the law of 3d March last.

Then comes the relief law, to protect settlers, who, in ignorance of where the lines would run, made improvements upon what turned out to be school land.

A. having lost a part of his land, is surely just as much entitled to the benefits of said law as another, whose improvements are wholly on the reserved section; and regarding both classes as equally contemplated by the law of 1857, I should not hesitate to authorize a correction of the entry in the first mentioned case, so as to embrace all the land claimed under the law, upon satisfactory evidence being furnished, that the party claiming had made improvements upon the portion returned as school land.

Very respectfully,

Thos. A. HENDRICKS, Commissioner. To Hon. H. M. Rice.

No. 540. Fractional Townships in California, not containing sections sixteen and thirty-six, are not provided for by the law allowing selections in lieu, &c.


April 12, 1858. Sir :--I have the honor to acknowledge the receipt of a copy of the preamble and resolutions adopted by the two houses of the California legislature, in relation to the surveying of mountainous districts in that State, which were transmitted to you by his excellency the Governor of California, and by you referred to this Office for consideration.

As the surveys in that State already cover large areas of land, of a quality to attract emigration and settlement, which are not likely to be all taken up and occupied for some years to come, and as the extension of those surveys already made over mountains that are wholly or partially inaccessible for such a purpose, will involve a heavy expenditure without any practical benefit, this Office cannot advise or recommend such surveys to be made.

The Act of Congress of 3d March, 1853, (No. 224,) donating to the State of California, for school purposes, the sixteenth and thirty-sixth sections of every township of land that might be surveyed therein, was intended to apply only to such townships as might contain those sections in full or in part. Where townships were made fractional by their coming in contact with oceans, lakes, navigable rivers or sterile mountains, inaccessible to deputy surveyors, except at great personal sacrifice to them. selves, and a useless expense to the government, it was impossible for the State to have the benefit of the sixteenth and thirty-sixth sections, or where such sections in land were not to be found. There are quite a number of townships in other States and Territories, where the sections (or single section) donated to them for school purposes, are either entirely excluded

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