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may be,) are to be so laid down on the official township plat in red lines, as to admit of giving to each a specific designation, if possible, according to its relative position in the fractional section, as per examples afforded by diagram B, as well as by a number, in all cases where the lot cannot properly be designated as a quarter-quarter. Those fractional subdivision lots which are not susceptible of being described according to relative local position, are to be numbered in regular series; No. 1 being (wherever practicable, and as a general rule) either the northeastern or the most easterly fractional lot, and proceeding from east to west and from west to east, alternately, to the end of the series; but such general rule is departed from under circumstances given as examples in fractional sections 4, 7, 19, and 30, where No. 1 is the interior lot of the northern and western tiers of the quarter sections to which there is a corresponding No. 2 given to the exterior lot, and the series of vumbers is in continuation of the latter. The lots in the extreme northern and western tiers of quarter sections, containing either more or less than the regular quantity, are always to be numbered as per example. Interior lots in such extreme tiers are to be twenty chains wide, and the excess or deficiency of measurement is always to be thrown on the exterior lots; elsewhere, the assumed subdivisional corner will always be a point equidistant from the established corners.
The official township plat to be returned to the General Land Office is to show on its face, on the right hand margin, the meanders of navigable streams, islands, and lakes. Such details are wanted in the adjustment of the surveying accounts, but may be omitted in the copy of the township plat to be furnished to the district land office by the Surveyor-General. A suitable margin for binding is to be preserved on the left hand side of each plat. Each plat is to be certified, with table annexed, according to the forms subjoined to " diagram B.,” and is to show the areas of public land, of private surveys, and of water, with the aggregate area as shown on the diagram.
Each township plat is to be prepared in triplicate : one for the General Land Office, one for the district office, and the third to be retained as the record in the office of the Surveyor-General.
The original field books, each bearing the written approval of the Surveyor-General, are to be substantially bound into volumes of suitable size, and retained in the Surveyor-General's office, and certified transcripts of such field books (to be of foolscap size) are to be prepared and forwarded, from time to time, to the General Land Office.
With the copy of each township plat furnished to a district land office, the Surveyor-General is required by law to furnish descriptive notes as to the character and quality of the soil and timber found on and in the vicinity of each surveyed line, and giving a description of each corner boundary.
Printed blank forms for such notes will be furnished by the General Land Office. The forms provide eighteen spaces for meander corners, which, in most cases, will be sufficient; but when the number shall exceed eighteen, the residue will have to be inserted on the face of the township plat, to be furnished to the Register of the district land office. There is shown a series of meander corners on diagram B., viz. : from No. 1 to No. 22, on the river and islands; 23 to 28 being on Island lake ; 29 and 30 on Clear lake; and 31 and 32 on lake in section 26.
There is also a distinct series of numbers, 1 to 7, to designate corners to D. Reed's private survey, and to fractional sections, made such thereby; and the same series is continued from 8 to 14 inclusive, to designate corners to S. William's private survey, and to fractional sections made such
thereby. These are numberings on the plat merely for the purpose of ready reference to the descriptions of such corners to be furnished to the Registers.
The letters on “ Diagram B," at the corners” on the township boundaries, are referred to in the descriptive notes to be furnished to the district land office, but are not required to be inserted on the official plat to be returned to the General Land Office.
No. 703. Surveys of the Public Lands. The Act of 24th April, 1820, and the instructions issued under it, direct
ing the manner of subdividing fractional sections containing over one hundred and sixty acres, did not require the absolute platting of every quarter or half-quarter of which the section was susceptible, but contemplated the exercise of discretion so as to prevent small and inconvenient
fractions of a fractional section. It is the duty of Surveyors-General to subdivide fractional sections in con
formity to law, and without reference to the existence of the Pre-emption Acts of May 29, 1830, and June 19, 1834.
August 2, 1837. Sir:-In your letter of the 14th of June last, you requested my opinion on certain points presented to you by appeal from the Commissioner of the General Land Office, relating to the legality of the survey heretofore made, and adopted by the General Land Office, of the divisions of fractional section 22, township 4, range 1, west, in Stephen's Land District.
It appears from the letters accompanying your letter, that section 22 was made fractional by private claims, and that it contained about two hundred and three acres, lying in such a form as to admit the running out of one complete quarter section, and, of course, of two complete half-quarter sections. Such a division, however, would have left two small irregular and inconvenient fractional tracts, being parts of three fractional quarter sections. To prevent this, the Surveyor-General divided the section into only two parts, by running a line due north from the half-quarter section post, thus making two tracts of a compact and convenient form, each approaching as nearly to the form and contents of a half-quarter section as was practicable, supposing the object of the survey to be to divide the section into tracts of this form, in such a way as to avoid the leaving of small fractional remainders.
James Etheridge had previously claimed and proved a pre-emption right, under the Act of 1830, to the southwest quarter of this section, and W. D. Stone the like right to the fraction in the west part of the southeast quarter; and after the above-mentioned survey came in, they respectively paid, and received certificates-Etheridge for the southwest subdivision of ninety-two and sixty-seven hundredths acres, and Stone for the southeast subdivision of one hundred and ten and fifty hundredths acres, in conformity to which patents have since been issued. Etheridge, however, insists, that as there was an entire quarter section of one hundred and sixty acres, and he the only settler thereon, he was legally entitled to enter such a division ; that he took the proper steps to perfect this right; that the survey disregarding the quarter section lines, was illegal; and that it ought to be corrected by subdividing the section agreeably to those lines. This would
enable him to obtain his whole pre-emption rights, but would leave the small fractional remainders above stated.
The single question on which it now appears to be material that I should express an opinion, is, as to the duty of the Surveyor-General to divide the section into regular half-quarter sections. In deciding this question, I have thought it useful to examine the provisions of the several acts of Congress relating to the survey of public lands, commencing with the Act of 18th May, 1796, and ending, so far as regards the present case, with the Act of the 24th April, 1820, (all which acts are in pari materiâ;) but I think its solution depends on the first section of the latter act, and on the instructions of the Secretary of the Treasury, issued in pursuance thereof.
The first section of the Act of 1820 provides that the public lands of the United States, when offered at public sale, shall be offered in half-quarter sections; that when offered at private sale, they may be purchased, (at the option of the purchaser,) either in entire sections, half sections, quarter sections, or half-quarter sections; that in every case of the division of a quarter section, the line for such division shall run north and south ; and the corners and contents of half-quarter sections be ascertained in the manner directed and prescribed in the Act of the 11th of February, 1805; and that " fractional sections, containing one hundred and sixty acres, or upwards, shall in like manner, as nearly as practicable, be subdivided into half-quarter sections under such rules and regulations as may be prescribed by the Secretary of the Treasury; but fractional sections containing less than one hundred and sixty acres, shall not be divided, but shall be sold entire.” Under this latter clause, the Secretary of the Treasury, on the 10th of June, 1820, issued instructions directing that fractional sections, containing more than one hundred and sixty acres, should be “ divided into halfquarter sections, by north and south or east and west lines, so as to preserve the most compact and convenient forms."
This instruction, as I am informed, has been understood in the General Land Office, and by the surveyors, to authorize the course adopted by the Surveyor-General in the present case; and I shall assume that it did so. I make this assumption, because the Department is perfectly competent, and best qualified, to construe its own instruction ; and because, unless such was its meaning, no question of law under the Act of 1820 could well arise for my consideration; for if the instruction required, as contended by the counsel of Mr. Etheridge, that all the regular half quarter sections of which the fractional section is susceptible, shall be actually formed, then the survey should have been set aside for its non-conformity to the instruction.
The matter is then narrowed to the question, Whether the instruction of 1820, (construing it, as the Surveyor-General has done in the present case,) is a legal and valid exercise of the discretion committed to the Secretary of the Treasury, by the Act of the 24th of April, 1820, above quoted ? It will readily occur, that to authorize me to pronounce an instruction of this nature, issued immediately after the enactment of the law, and acted on for so long a period, illegal, the objection should be a very clear one. This is by no means the case in the present instance; and after mature consideration, I am led to answer the question just stated in the affirmative, for the three following reasons :
1. If Congress had intended that fractional sections should, at all events, be divided into half-quarter sections, when their shape admits the formation of any such subdivision, I think they would have said so in explicit terms, and that the discretionary power intrusted to the Secretary would have been plainly confined to the residuary parts of the section.
2. The clause in the first section of the Act of 1820, concerning fractional sections containing less than one hundred and sixty acres, (which are not to be divided at all, but sold entire,) is decisive to show that the Congress which passed that act, did not deem it indispensable that regular half quarter sections should in all practicable cases, be formed by the surveyors; on the contrary, it shows that they preferred a single tract, though containing more than eighty acres, and though capable of forming a regular half quarter and small and inconvenient fractions.
3. I am of opinion that the survey should be made in conformity to the general system established by law, and by the instructions of the Department, without any reference whatever to the existence of a pre-emption law, or to the fact that rights have been claimed and established under it. I am, sir, very respectfully, your obedient servant,
B. F. BUTLER. Hon. Levi Woodbury, Secretary of the Treasury.
No. 704. Surveys and entries of public lands. It is the duty of Surveyors-General to divide fractional sections containing
over one hundred and sixty acres into lots approaching as nearly as practicable to the form and quantity of half quarter sections; and it is
competent for the Department to direct the performance of the duty. The survey is to be made without reference to Pre-emptions, but Pre-emptors
are entitled to a legal survey. A tender for more than the party is entitled to, does not destroy the tender;
it may be regarded as precautionary. It is proper, after tender made and entry defeated by fault of the officers
of the Government, to correct the error by ordering a correct course of procedure.
August 5, 1837. Sir :-In compliance with the request contained in your letter of the ultimo, I have looked into the additional report of the Commissioner of the General Land Office in the case of Brown and Reynolds, bearing date the 29th of June last, and, upon the additional facts mentioned therein, have the honor to state the following propositions as the result of further reflection on this case.
1. Under the Act of 1820, and the instructions issued by virtue thereof, it was the duty of the Surveyor-General to divide fractional section 20, containing, as it does, more than one hundred and sixty acres, into lots or tracts of a compact and convenient form, approaching as nearly as practicable, having regard to the shape of the whole fractional section, to the form and contents of half quarter sections.
The reasons on which this opinion is founded will appear in my opinion of the 2d instant, in the case of James Etheridge, to which I beg leave to refer.
2. I suppose it to be competent for the Department to cause the Surveyor-General now to do what he ought to have done when he made the survey; and that it is the duty of the Department so to direct, if such a course be necessary to the protection of any right duly claimed under the preemption laws or otherwise. For although the Surveyor-General is to be
guided in the performance of his duty exclusively by the laws and instructions relating to surveys, and is to execute that duty without reference to its possible effects on pre-emption claims; yet, where a pre-emption claim exists, and has been duly established, the party is clearly entitled to the benefit of a survey made in conformity to law.
3. It appears to me that the designation of Reynolds, entered in the abstract of the land officers, was sufficiently precise to entitle him to take his floating right in the west part of fractional section 20, including the small tract now marked E; provided, by the survey thereafter to be made, a division should be legally formed, embracing tract E, and liable, according to the rules stated in my opinion of the 27th of April last, to be taken under a floating right.
4. I am also of opinion, that as the survey was erroneous in not dividing fractional section 20 into lots or tracts of a compact and convenient form, approaching as nearly as might be to the form and contents of half quarter sections, and as Reynolds could not control or alter that survey, his tender for tract A, of one hundred and forty-nine acres, ought not to be regarded as a claim to the whole and to no less than the whole of that tract; but rather as applying to the whole, if by law he was entitled to purchase the whole; and if not, then to so much of it, if any, as the law would entitle him to purchase by virtue of his floating right; and I think the affidavit of Reynolds, made on the 3d of March, 1836, and the other proceedings on his part, reconcilable with this view of the subject.
5. It will follow, from the foregoing propositions, that the course proposed by the Commissioner of the General Land Office, viz. : to allow Reynolds to complete his purchase to the tract marked E, may properly be adopted, provided tract E could have been made, or can now be made, under the Act of 1820, a legal subdivision of fractional section 20; but if not, and any portion of tract A, including tract E, could have been made, and can now be made, under the Act of 1820, a legal subdivision of the section, then I think Reynolds should be allowed to complete his purchase to such larger subdivision, provided it be not so large, when added to the tract selected by Brown for his float, as to exceed, in the aggregate, one hundred and sixty acres.
Some other questions have been raised by Mr. Sherman, in his observations addressed to me on the report of the Commissioner; but as they were not presented by your communication, I have not deemed it proper to examine them; nor, if you concur in the views above stated, will you probably find it material to do so. I have the honor to be, very respectfully,
Your obedient servant,
B. F. BUTLER. To the Hon. Levi Woodbury, Secretary of the Treasury.