« ForrigeFortsett »
to approval as a survey of public lands, and was not so approved. Congress, however, on the 15th July, 1870, evidently without an examination of the question involved, passed joint resolution No. 140, directing the issue of patent to Stephen N. Carston, for a portion of said grounds, described by metes and bounds, upon payment by him of the sum of $100.
The Commissioner, my predecessor in office, for the purpose of carrying the law into effect, on the 10th August, 1870, endorsed on the said plat of survey his qualified approval as ex officio surveyorgeneral of Michigan, and subsequently issued the patent accordingly. Understanding that you wish my opinion upon the question of the power of Congress to dispose of this ground as public land, I have examined the facts as above recited, and would state that I do not regard it as in any sense public land, the property of the United States, but consider it properly within the jurisdiction of the State of Michigan and subject to her laws.
The rights of the owners of the shore having been also called to my attention, I will give you a few authorities, decisions of the Federal courts, which seem to have direct application to this case, and will indicate the United States law upon both points.
Rivers are deemed navigable waters of the United States when they are used or are susceptible of being used in their ordinary condition as highways for commerce between the States. (The Daniel Ball, 10 Wall., 557; the Montello, 11 Wall., 411.)
Under the acts of Congress relating to the survey and sale of public lands bordering on rivers, the right of a grantee of lands bordering on a navigable river stops at the stream, and does not extend to the medium filum. But such riparian proprietors have the same rights to construct suitable landings and wharves for the convenience of commerce and navigation as riparian owners on navigable waters affected by the ebb and flow of the tide. (Railroad Co. v. Schurmeir, 7 Wall., 272.) The owner of land bounded by a navigable river (whether his title extend to the middle of the stream or not) has a right of free access thereto, and of erecting a landing, wharf, or pier for his own use or that of the public.
These rights are to be enjoyed subject to such general rules as the legislature may prescribe for the protection of the public rights; they cannot be taken for public use except due compensation be made. (Yates v. Milwaukee, 10 Wall., 497.)
At the Revolution, the people of each State in their sovereign character acquired the absolute right to all navigable waters and the soil under them. (Martin v. Waddell, 16 Pet., 307. Russell v. Jersey Co., 15 H., 426.)
The shores of navigable rivers and the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively, and new States have the same rights, sovereignty, and jurisdiction over this subject as the original ones. (Pollard v. Hagen, 3 H., 212. Pollard v. Kibble, 9 H., 471. Hallett v. Beebe, 13 H., 25. Withers v. Buckley, 20 H., 84.)
The foregoing will be sufficient to show that if this ground was of the bed of the stream on the admission of the State, she has sovereignty over it, and the laws for the disposal of the public domain can have no application to it subsequently.
Very respectfully, WILLIS DRUMMOND, Commissioner.
For surveying beds of meandered lakes, etc., in districts where the office of Surveyor General has been discontinued.
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE, Washington, D. C., July 13, 1874.
As inquiries arise in regard to the survey of the beds of meandered lakes or other similar bodies of water in districts where the office of Surveyor-General has been discontinued, the following is communicated as defining the conditions under which such lake beds are regarded as survey able, and as giving the proper mode of proceeding to have the same surveyed and to obtain title thereto :
The beds of lakes, (not navigable,) sloughs and ponds over which the lines of the public surveys were not extended at the date of the original survey, but which from the presence of water at the date of such survey were meandered, are held to be the property of the United States; and whenever, by evaporation or the operation of any other cause, natural or artificial, the waters of such lake, slough, or pond have so permanently receded or dried up as to leave within the unsurveyed area dry land fit, in ordinary seasons, for agricultural purposes, such dry land is subject to survey and sale under the general laws regulating the disposal of the public domain.
Such surveys will be ordered and, upon approval, disposition proceeded with in the following cases:
1st. Where the waters have so far permanently receded or disappeared as to permit, during the ordinary surveying season, (not on the ice,) the actual extension of the lines of survey, and the establishment and marking of corners in the manner required by law, over the whole area of the bed of such former lake.
2d. Where the waters have not generally disappeared, but where they have so far permanently receded as to leave a margin of dry land fit for cultivation between the original meandered lines and the remaining waters, of sufficient area to admit of the survey and of the establishment of at least three of the corners of a quarter-section.
3d. The Commissioner of the General Land-Office will consider the question of ordering a survey of margins not admitting the laying off of one hundred and sixty acres, but not less than forty acres.
Parties desiring the survey of such lands may make application in writing to the Commissioner of the General Land-Office therefor, stating the approximate area, and the situation of the tract with reference to the section, township and range of the public surveys, the same to be illustrated by a diagram; the fact that the waters have disappeared in the manner or to the extent as specified in one of the three several above-specified cases-such statement to be accompanied with the affidavit of at least two credible and disinterested witnesses as to the dispearance of the waters, the probable quantity of land capable of being surveyed in the whole area lying between the original meandered line and the then margin of the waters, and showing what proportion of such area is fit for agricultural purposes. To insure prompt attention and decision by this Office, both the statement and affidavits required must be full and specific.
If, upon examination of such statement, diagram, and proof, it is
found that such survey may be properly allowed, the parties applying will be so notified, and upon their designating to this Office the name and residence of some competent and reliable surveyor, together with a statement from him in writing of the amount for which he is willing to execute the field-work of the survey, and a certificate of some United States depositary that the amount specified has been deposited to the credit of the United States "on account of individual depositors," the Commissioner will then issue the necessary instructions to the surveyor to enable him to execute the field-work of survey in accordance with the public land system.
To correct what seems to be a very general misapprehension as to the manner in which persons may proceed to perfect title who have made actual settlement on lands of the character herein designated, and who claim or propose to claim under the pre-emption laws of the United States, it is remarked that in no event and at no stage of the proceedings can their declaratory statements be received or filed in this Office. Such declaratory statements must be filed in the local landoffice, and cannot be there received until after such survey has been made and the approved plat thereof filed in the local office.
It is proper to further state that the fact of having borne the expense of survey will give no priority of claim or right, under existing laws, to purchase the land, or in any manner affect the vested interest of any party thereto, should such exist, as the land, when surveyed, will be subject to disposal according to the laws of Congress and the regulations of this Office relative to the disposal of lands embraced in fragmentary
In case the lake bed is small and is so situated that no township, section, or quarter section corners will need to be established by reason of such lake being situated within a given section or sections fully surveyed, no deposit will be required; and upon proof being furnished this Office as above of the disappearance of the water, the premises will be platted, and the land can then be disposed of under existing laws. Respectfully, S. S. BURDETT, Commissioner.
For surveying islands in lakes or rivers in districts where the office of Surveyor General has been discontinued.
DEPARTMENT OF THE INTERIOR,
As inquiries arise in regard to the survey of islands in lakes or rivers in districts where the office of Surveyor General bas been discontinued, the following is communicated as the proper mode of proceeding to have the same surveyed and obtain title:
1st. Islands may be surveyed at the expense of the party applying, under the provisions of the act of Congress approved 30th May, 1862, "to reduce the expenses of the survey and sale of the public lands of the United States," U. S. Statutes, vol. 12, p. 410, in the 10th section of which it is declared: "That when the settlers in any township or townships, not mineral or reserved by Government, shall desire a survey made of the same under the authority of the Surveyor-General of
the United States, and shall file an application therefor in writing, and deposit in a proper United States depositary, to the credit of the United States, a sum sufficient to pay for such survey, together with all the expenses incident thereto, without cost or claim for indemnity on the United States, it shall and may be lawful for said Surveyor-General, under such instructions as may be given him by the Commissioner of the General Land-Office, and in accordance with existing laws and instructions, to survey such township or townships, and make return thereof to the general and proper local land-office: Provided, The townships so proposed to be surveyed are within the range of the regular progress of the public surveys embraced by existing standard lines or bases for the township and subdivisional surveys."
Application for the survey should be addressed to the Commissioner of the General Land-Office, and be accompanied by the affidavits of at least two reliable and disinterested parties, showing that thirty days notice had been given the coterminous proprietors of the intention to apply for the survey of such island, stating the area, character, and situation of the island in the lake or river, with reference to the description of the section, township, and range of the public surveys, the same to be illustrated by a diagram. The width and depth of the channel, on either side between the island and the main shore, should be shown, and it should be stated whether the configuration of either shore of the mainland has materially changed since the original survey of the water front on the mainland.
2d. The applicant shall designate some competent and reliable surveyor, and send to this office a statement from him, in writing, of the amount for which he is willing to execute the field work of the survey.
If, upon examination of the evidence filed in support of the application, the island is deemed a proper subject of survey, the applicant will be notified of the amount necessary to be deposited with a United States depositary to the credit of the Treasurer of the United States, on account of the "fund created by individual deposits for surveys " to defray the expense of the field work of the survey.
Upon such deposits being made the United States depositary is required to issue certificates of deposit in triplicate, one to be transmitted to this Office, upon the receipt of which, all the other requirements having been complied with, the Commissioner will issue the necessary instructions to the surveyor to enable him to execute the field work of survey in accordance with the public land system.
3d. It is proper to state that the fact of having borne the expense of survey will give no priority of claim or right, under existing laws, to purchase the land, or in any manner affect the vested interest of any party thereto, should such exist, as the island, when surveyed, will be subject to disposal according to the laws of Congress and the regulations of this office relative to the disposal of lands embraced in fragmentary surveys. Respectfully,
S. S. BURDETT, Commissioner.
TITLE XV.—DUTIES OF REGISTERS AND RECEIVERS.
I. MONTHLY AND QUARTERLY RETURNS.
DEPARTMENT OF THE INTERIOR,
GENTLEMEN: With a view to uniformity in the manner of making up the monthly and quarterly returns required from the United States district land officers, it is expected that in future, when preparing the returns that may become due from your respective offices, you will be governed by the following rules:
1. In filling up the register's certificates of purchase, and receiver's receipts for ordinary cash entries, homestead affidavits, and the final certificates, the Christian name of the purchaser, or homestead applicant, as the case may be, is to be written out in full in every instance, special care being taken with respect to the correct orthography of the name, as well as in the discrimination between male and female names where nearly resembling each other in sound and spelling; the name of the county and State in which the party may reside should invariably be inserted in the respective documents; also his or her post-office address. When there may be two or more purchasers of the same surname in a certificate of purchase, the surname is to be repeated in each case, thus: John Brown, James Brown, and William Brown; not John, James, and William Brown; and to avoid ambiguity in the description of lands, where two or more subdivisions of the same quarter-section are embraced in one entry, they are to be described in the certificate, receipt, &c., thus: North-east of the north-east and south-west of the north-east of section, west of north-east and south-east of the north-east of section, and not north-east and south-west quarters of north-east of section, or west and south-east of north-east of section. The register is also to observe the greatest particularity in regard to the manner in which the application of a purchaser or homestead settler is made out. The most careful regard is to be had in the correct spelling of the name, as well as to the designation of the tract, the entire description of which is to be written out in full, and not to be expressed in figures; and where the tracts are bounded by a river they are to be designated with reference to the bank of the river upon which they may be situated; thus, on the right or left bank of the river in descending, and not north, south, east or west of the same; this rule for describing the land being equally applicable in the case of the certifi cate of purchase, receiver's receipt, &c. In the case of cash entries, the applications are to be retained upon the files of the register's office, while in homestead cases they are to be sent up to this office, accompanied by the settler's affidavit and the receiver's receipt.