opinion, that the waste of timber of which he complains, was committed by intruding settlers on the public lands in Illinois; if so, the intruders may be removed by military force, under the act of the 3d March, 1807, "to prevent settlements," &c.; and by the 4th section of that act the intruders are subject to fine and imprisonment, if they continue to remain on the lands, under the circumstances therein stated.

Even if the intrusion be avowedly not for settlement, but for waste, I think that the intruder may be removed by the marshal, under the instructions of the President, under the 4th section aforesaid, that permanent instructions may be issued for this purpose, and that any and every intruder may be forthwith removed, the moment that he indicates any intention to exercise an act of ownership over the land, (which the cutting of timber would be,) or if he refuse to withdraw on the order of the marshal, all lawless intrusions being within the mischiefs of the act, and it being impossible to infer, with certainty, from the mere act of intrusion, whether it will be with a view to settlement or not.

I find no act of Congress which provides for the waste of timber on the public lands, separately considered, except in relation to timber growing on lands reserved for naval purposes, and live-oak or red cedar timber growing on any other public lands of the United States, in relation. to which the act of the 1st March, 1817, subjects the offender to fine and imprisonment.

But, independent of positive legislative provisions, I apprehend that, in relation to all property, real or personal, which the United States are authorized by the constitution to hold, they have all the civil remedies, whether for the prevention or redress of injuries, which individuals possess. It was on this principle that the right of the United States to institute an action on a protested bill of exchange was sustained in the case of Dugan vs. the United States, reported in 3d Wheaton, 181. The United States being authorized by the constitution to contract," must have a right to enforce the performance of such contracts, or to recover damages for the violation, by actions in their own name, unless a different mode of suit be prescribed by law." "It would be strange," said the court, "to deny them a right which is secured to every citizen of the United States." So the United States being authorized to accept and to hold these lands for the common good, must have all the legal means of protecting the property thus confided to them that individuals enjoy in like cases; for it would be quite as strange in this case, as in that of bills of exchange, to deny them a right which is secured to every citizen of the United States. They are, therefore, in my opinion, entitled to the injunction of waste, by way of prevention, and to the action of trespass, by way of punishment, in like manner as individuals similarly situated are entitled to them. Of the applicability of both or either of these remedies to any given case, the district attorney must of course judge: it may not be improper, however, to remark, generally, that the injunction would apply, properly, to all conterminous or neighboring settlers, by whom any previous act of waste may have been committed, and who, from their position, have a facility in repeating the offence; to all who have been in the habit of committing this waste, and to all who menace it. And I should apprehend that this remedy, connected with the power which courts of chancery possess to enforce

it, and with the other power before mentioned, of the immediate removal of intruders, would, under the superintendence of vigilant officers, be strong enough to prevent the habitual recurrence of the mischiefs; while the action of trespass, vigorously enforced, would be sufficient to punish those who might elude the means of prevention. It may not, however, be amiss to suggest that it would be advisable for Congress to extend to this case, at least, the remedy which they have provided against the spoliations of timber for naval purposes; if, indeed, the offence, from its greater frequency and the greater secrecy and security with which it may be committed, does not demand a still severe reprehension.

Hon. W. H. CRAWFORD.

I have, &c.

WM. WIRT.

[See circular to registers and receivers of United States land offices, dated 13th July, 1821, transmiting a copy of the foregoing opinion.]

No. 17.-(Ops. Aty. Gen.; G. L. O. p. 21.)

No person can locate over 160 acres under New Madrid certificate, unless the aggregate of lands lost exceeds 160; in which case he can locate not exceeding 640 acres.

OFFICE OF THE ATTORNEY GENERAL U. S.,

January 22, 1822.

SIR: I entirely concur in the opinion expressed by the Commissioner of the Land Office, that it is not the intention of the act of Congress of the 17th February, 1815, to permit the owners of town lots, in the county of New Madrid, to locate a tract of 160 acres for each town lot they may own; but one tract for the whole of their town lots, however many, unless the aggregate shall exceed the quantity of 160 acres, when they will fall within the general enactment of being authorized to locate the quantity they have lost. I have, &c.

Hon. W. H. CRAWFORD,

Treasury Department.

WM. WIRT.

No. 18.-(Ops. Aty. Gen.; G. L.. O. p. 21.)

A warrant under act of 3d March, 1801, is available at two dollars per acre for any land west of Mississippi.

Act 24th April, 1820, does not affect its value.

OFFICE OF THE ATTORNEY GENERAL U. S.,

The opinion of the Attorney General is approved. The Commissioner of the General Land Office will instruct the receivers of public moneys west of the river Mississippi accordingly.

W. H. CRAWFORD. January 30, 1822.

January 29, 1822.

SIR: I am of opinion that the warrant No. 1, to Meriwether Lewis, of date the 6th March, 1807, for 1,600 acres of land, and which, in strict conformity with the act of Congress of March 3, 1801, stipulates, in the alternative, that it may be received at the rate of two dollars per acre, in payment of any lands lying on

the west side of the Mississippi, must be received at that rate; and that Congress did not intend, by the act of 24th April, 1820, "making further provisions for the sale of the public lands," to affect the value of such a warrant; nor could they do it without a violation of the public faith, regularly pledged.

I have, &c.

Hon. WM. H. CRAWFORD.

WM. WIRT.

No. 19.-(Ops. Aty. Gen.; G. L. O. p. 22.)

Cases in which claimants are liable for the expenses of resurveying Spanish or French claims.

OFFICE OF THE ATTORNEY GENERAL U. S.,

April 8, 1824.

On a careful examination of all the acts of Congress touching the surveying of private land claims in Louisiana, it appears to me that the individual is responsible for those expenses in the following cases only:

1. Where there had been no survey of the claim under the French or Spanish Governments, previous to the cession of the territory and the delivery of the possession to us.

2. Where, although there had been such surveys, yet another survey was, in the estimation of the commissioners, necessary to enable them to decide on the validity of the claim.

3. Where, under the second proviso of the act of 28th February, 1806, it was, in any case, judged necessary by the authority from which the patent was to flow, to resurvey the claim before patent. But this second proviso was superseded by the seventh section of the act of the 3d March, 1807, by which the commissioners were authorized to order a resurvey of a tract which had been previously surveyed under French or Spanish authority, wherever they might think it necessary; but such resurvey was to be executed at the expense of the United States. So that, since this last act, the only cases in which the claimants are liable for expenses of surveying are the two first above mentioned. In all other cases the expenses are to be borne by the United States.

If the grounds of this opinion are desirable they will be furnished. I will suggest, however, that I have had a full conference with the Commissioner of the Land Office, and have put him completely in possession of my view of the several acts of Congress out of which his questions have grown.

I am,
&c.

Hon. W. H. CRAWFORD,
Treasury Department.

WM. WIRT.

No. 20.-(Ops. Aty. Gen.; G. L. O. p. 22.)

A concession confirmed by 1st section of act of March 1, 1805, where a survey had been made prior to October 1, 1800, is valid for the entire quantity contained in the survey.

A concession confirmed by the 4th section of the act of 3d March, 1807, where the commissioners issued a certificate for eight hundred arpens, according to the original plat, without ordering a resurvey under the 7th section, is good for the quantity contained in the plat, though it exceed the specified quantity.

The 1st section of act of 12th April, 1814, where a survey had been made, confirmed the claim according to the survey.

A mistake of the commissioners in such cases was immaterial. The confirmation is solely the work of the act. The commissioners were to report upon, not to decide upon such claims. The 3d section only required surveys where none had been made by the foreign Government.

GENERAL LAND OFFICE, March 30, 1824.

SIR: I enclose the papers relative to a concession claimed by Jacques de St. Vrain (now deceased) and Antoine Soulard. As Mr. Soulard has sold this land, and is very anxious for a decision, it would be advisable to submit them to the Attorney General for his opinion, together with the enclosed papers relative to the concession granted to William Musick, and also those relative to a concession granted to Elisha Harrington, in which cases the assignees claimed the lands within the boundaries of the old surveys, and have filed caveats against the issuing of patents for the lands which interfere with those boundaries.

The concession in favor of William Musick appears to have been confirmed by the first section of the act passed the 2d March, 1805, (volume 3, page 652,) which declares that lands claimed by residents of Louisiana in October, 1800, under a duly-registered warrant or order of survey, dated prior to and actually cultivated at that date, "shall be confirmed in their claim to such lands in the same manner as if their titles had been completed." I should entertain no doubt that, in all cases of claims confirmed by this section, where a survey had been made previous to the 1st of October, 1800, that such survey had all the force of a complete grant, so far as it respected the establishment of boundaries, and that a resurvey, if necessary, should be made on the same principles that a resurvey of a grant would be made, but for the proviso to the third section of the act passed the 28th February, 1806, (volume 4, page 7.) What is the operation and effect of this proviso? Does it affect the rights vested by the confirmation contained in the first section of the act of the 2d of March, 1805, and in this particular case vested by the decision of the commissioners, which was given previous to the act of February, 1806? The concession granted to Elisha Harrington appears to have been confirmed under the fourth section of the act of 3d March, 1807. Does the proviso to this act of 1806, when taken in connexion with the provision of the seventh section of the act confirming this claim, destroy the validity of the survey, as such, and limit the confirmation on a resurvey to the precise quantity of 800 arpens, or will the words of the confirmation, as stated in the certificate of the commissioners, give any validity to the survey as a special location of the lands confirmed and to which any resurvey ought to conform? See act 18th April, 1814, relative to confirmations in the State of Louisiana.

The concession to Jacques de St. Vrain and Antoine Soulard was confirmed by the act of 12th April, 1814; it has never been resurveyed, nor has any patent certificate been issued for it. On the papers filed in this case three questions arise: 1st. Does the act of 1814 confirm the claim agreeably to the limits of the survey made the 29th December, 1802? 2d. If it does not, is there any power, under any circumstances, in this office, to correct an error made by the commissioners? 3d. If that power exists, is the evidence adduced in this case sufficient to justify the correction?

I enclose a copy of the instructions given by the Surveyor General to his deputies, relative to the surveying of private claims. I understand that a large portion of the old surveys have been reduced, on a resurvey, to the precise quantity confirmed. Different surveyors giving different interpretations to the words "considerable error," has produced a want of uniformity in their reduction.

The three cases now presented having been confirmed under three different acts, the decisions on them will embrace all the cases now in the office, or which may probably occur.

Hon. W. H. CRAWFORD,

Very, &c.

Secretary of the Treasury.

GEO. GRAHAM.

ST. LOUIS, October, 1823.

SIR: Being informed of the situation of your title to the tract of land on which is your plantation on St. Ferdinand river, I think it my duty, as late surveyor of Upper Louisiana, under the Spanish Government, to give you, upon my word and honor, the following explanation, which I am ready to ratify upon oath when required.

It appears that the original petition and decree of concession, warrant, or order of survey granted to William Musick, mentions 400 arpens, including the river St. Ferdinand, in order that said Musick might continue in the possession of a mill by him erected. The survey of said tract appears to be extended to 475 arpens, and William Musick did since convey the 475 arpens to George Smith, now claimant of record, as appears by the record of the concession, plat, certificate of survey in favor of William Musick, and deed from William Musick to George Smith, in the office of the recorder of land titles, book A, page 173.

Having occasionally found some difficulties in the surveying, for want of proper explanations in the contents of the concessions (petitions) drawn by Americans possessing but imperfectly the French language, I informed of it the Lieutenant Governor, who authorized me to pay but little regard to those petitions, but to consider as much as possible the interest of the grantees and the locality of the adjacent lands, together with the regularities in fixing the boundaries. I likewise received similar instructions relative to the quantities, which I was authorized to increase or lessen, according to the circumstances and locality of the ground. When I took upon myself, pursuant to those directions, to lessen the quantity, it was done always with the consent of the applicants;