lands were resurveyed, and the front lots extended back in the manner exhibited in plat B, not one of them (except lot 28) could be said to include lands bordering on this "bayou," or through which this bayou runs, unless the bare touching at a single point would exclude the land back of lot 29. As to all the rest, they would be entirely clear of this "bayou.”

4. The title which the appellees set up is not good, inasmuch as the original patents to Whittlesey and Sparrow do not cover the land in controversy, there being no such sections, under the laws of the United States, as sections numbered 58, 59, 60, and 61.

The first law, and that which laid the foundation of the land system, was the ordinance of 20th May, 1785. 1 Birchard's Compilation, Land Laws, Opinions, etc. p. 11.

the Circuit Court, namely, that the Act of 1832 was not applicable to lands which had at that time been already offered for sale, it is submitted

1st, That the enacting portion of the law is of the most general and comprehensive character.

2d. That the proviso, requiring a notice of claim to be filed three weeks before offering of the land at public sale, was not intended as an exclusion of lands which had been already offered from the operation of the law, but simply as a facility for ascertaining before any public sale what lands were claimed as back pre-emptions, and what were not, so that it could be known before hand what lands were legally subject to sale and *what were not. This [*60 reason not applying to lands already offered at the date of the act, the proviso requiring three weeks' notice did not apply to them. All the pre-emption laws contain a similar proviso. Such was the construction of the land office. 2 Birchard's Compilation, 573.

The enacting clause applied to all public unappropriated land. The proviso in question was applicable only to such lands as had not been offered.

This ordinance pointed out the mode in which the townships should be surveyed, each six miles square; that the plats should be marked by subdivisions of one mile square, containing 640 acres, the lines thereof to be parallel to the external lines of the township, and numbered from 1 to 36, beginning each succeeding range of the lots with the number next to that with which the preceding one concluded; and where a fractional township should be surveyed, the If this be so, then Mr. Surgett had a right, lots protracted thereon should bear the same under the Act of 16th June, 1832, at any time numbers as if the township had been entire. prior to the 16th of June, 1835, to file his ap59*] *The 2d section of the Act of 18th May, plication to enter the land in controversy. 1796, 1 Stat. at Large, 467, 468, prescribes the This right having been extended to the 16th precise manner in which the sections in town-of June, 1836, by the Act of 24th February, ships shall be numbered, beginning with the 1835, 4 Stat. at Large, 753, Mr. Surgett, havnumber one in the northeast section, and pro-ing made his application on the 20th of May, ceeding east and west, alternately, through the townships, with progressive numbers, till the thirty-sixth be completed.

1836, was consequently within the time prescribed by law, and his application ought to have been admitted.

Points on the part of the appellees:

1. That this cause involves legal rights, for which a plain and adequate remedy is provided by the ordinary process of the common law.

The 10th section of the Act of 3d March, 1803, 2 Stat. at Large, 233, made it the duty of the surveyor, appointed to survey the lands south of Tennessee, to cause the same to be surveyed, as far as was practicable, into town- 2. That the character of this action, which ships, and subdivided in the manner authorized is essentially an action at law, is not, and could and directed in relation to lands lying northwest | not be, changed, by the laws of Louisiana, into of the River Ohio.

The 7th section of the Act of 2d March, 1805, 2 Stat. at Large, 329, extends the powers of the surveyor of lands south of Tennessee over the territory of Orleans, and directs him to survey and divide the lands thereof in the same manner (as near as the nature of the country will admit), as the lands northwest of the River Ohio.

Thus far the mode of surveying and numbering was uniform and precisely marked out. The section at the northeast corner of every township was to be numbered one, and all the other sections were to be numbered in regular progression from right to left, and left to right, alternately, to the thirty-sixth, which would always and of necessity be the southeast section of the township.

The 2d section of the Act of 3d March, 1811, 2 Stat. at Large, 662, authorized a different mode of surveying those lands which lay on rivers, creeks, etc., but did not authorize any change in the other portions of the townships, and such has been the construction of the land office. See 2 Birchard's Comp. 495; Brown's Lessee v. Clements, 3 How. 650; Jourdan et al. v. Barrett et al. 4 How. 169.

5. As to the objection made by the judge of

a proceeding in equity, in the United States Circuit Court in Louisiana, or in this court.

3. That this cause was tried in the Circuit Court as a court of law, and not according to the forms of a court of equity.

4. And as a consequence of the above propositions, the appellees will contend, that, this being a cause at common law, should have been brought up to this court by writ of error, and not by appeal, and that this appeal should be dismissed.

5. At the trial below, and after it had commenced, the appellant applied for a continuance of the cause, which was refused by the court. To this refusal the appellant excepted. The appellees will contend that the court decided correctly in refusing the continuance, and that such a refusal is not a ground for an exception or appeal.

6. The appellees will contend that the diagram marked B, offered in evidence by the appellant, and mentioned in the second bill of exceptions, was rightly rejected by the court.

7. That there is no error in the opinion of the court in the third bill of exceptions.

8. That the only questions open on this appeal are those raised by the bills of exception. 9. That the appellant, not having shown

61*] that he had any *title to the sections 28, | 3 Pet. 433, 446; Livingston v. Story, 9 Pet. 29, 30, 31, 32, and 33, at the time (to wit, the 632; Minor v. Tillotson, 2 How. 392; Phillips 26th of May, 1836), when he claimed to pur- v. Preston, 5 How. 278, 289. chase the property in dispute from the register of the land office, as back concessions to said sections, and not having shown that he acquired any title to said sections until the 15th of June, 1837, his application was rightly rejected by the register of the land office.

12. That the register of the land office, hav-4 ing decided against the claim of the appellant, his decision is conclusive, so far, at least, as this case is concerned, or, if not conclusive, is correct.

17th. The appellees will also contend that the petitory action instituted by the appellant in this case cannot be maintained on the equitable title set up by him. United States v. On the 2d point: Livingston v. Herman, 9 King, 7 How. 846; S. C. 3 How. 773. Martin, La. 713; 2 Cond. R. 40; Thompson Authorities cited by the counsel for the apv. Schlatter, 13 La. R. 119; McDonogh v. Mil-pellants, in reply:

laudon, 3 How. 693; U. S. v. King, 3 How. The following acts of Congress were cited 773; Code of Practice of La. p. 8, art. 30, p. in reply to the twelfth point in the brief of the 90, art. 374, p. 10, art. 41 and 43, p. 12, art. appellees, to show that, in those pre-emption 44; Vidal v. Duplantier, 7_La. R. 45, 8 N. S. laws where the decision of the register and re105; Poultney v. Cecil, 8 La. R. 422; 7 How.ceiver has been treated as conclusive, the power 846; Constitution of U. S. art. 3, sec. 2, and of decision has been expressly given to the art. 7 of Amendments; Act of Congress of registers and receivers to determine the fact of 24th Sept. 1789, ch. 20, sec. 16, 1 Stat. at occupancy and cultivation, without any appeal Large, 82; Act of 26th May, 1824, ch. 181, from their decision. sec. 1, 4 Stat. at Large, 62; Parsons v. Bedford,

In the laws granting back pre-emptions in Louisiana, there is no power of determination given to the register and receiver.

Large, 480; Act of 29th May, 1830, 4 Stat. | of reconvention, asked to have enforced against at Large, 420, upon which the language of Lapice and Whittlesey. He thereby became the court in Wilcox v. Jackson, 13 Pet. 498, complainant. The character of Lapice and was founded; Act of 22d June, 1838, 5 Stat. Whittlesey's title is not in controversy; both at Large, 251, which was a continuation of the sides admit that it is a legal and valid title on last cited act; Act of 19th June, 1834, 4 Stat. its face, and as against the United States indisat Large, 678; also a continuation of the Act putable; but Surgett sets up a right of preferof 1830; Act of 4th Sept. 1841, sec. 11, 5 Stat. ence to entry of the same land at the time when at Large, 456. the entries were made under which Lapice and Whittlesey claim, and the question is, how was the Circuit Court to deal with the matter when an appeal or writ of error was demanded, as The circular issued from the Treasury De- the one or the other the judge was compelled to partment, June 19th, 1801, 2 Birchard's Com-allow; he was called on for a decree by each pilation, 226, will be cited to show that the *party, as on bill and cross bill in an [*65 abstract on page 53 and the extract from the ordinary chancery proceeding, and did decree Sales book, page 54, of the record, were re- that Lapice and Whittlesey should be quieted quired by the instructions from the general in their title to, and possession of, the land in land office, and properly offered in evidence. controversy, and that Surgett should be forAlso, Commissioner's Instructions to Regis-ever enjoined from setting up any claim or preter, New Orleans, etc., 2 Birchard's Comp. 374. tension to the same; and so he might have Mr. Haywood to Registers and Receivers, 2 decreed the other way; and although, by the Ib. 465. Circular to Registers and Receivers, laws of Louisiana, a jury might have been June 15th, 1821, 2 Ib. 314. And especially the called in a State court to aid in ascertaining the Circular of 7th June, 1820, under the cash sys- facts, yet as none was required by the parties tem. Certified copy from general land office. in the Circuit Court, and the cause was heard 64*] *The letter of Land Commissioner to by the court alone, and a decree rendered, we Registers and Receivers in Louisiana, in rela- think the mere fact that a State court might tion to the Act of 15th June, 1832, will be re- employ a jury does not affect the character of ferred to. 2 Birchard's Comp. 573. the proceedings actually had in the Circuit Court. In other States, juries are frequently | employed by the chancellors when hearing causes, as in Kentucky, where it is required by a statute; yet if an ordinary suit in equity was removed from a State Court to the Circuit Court (United States), in a district where, by the State statutes, a jury was required to find contested facts; still the Circuit Court would not be required to resort to a jury, nor could it do so. And we take occasion here to say that had the Circuit Court submitted the cause to a 1. On the facts appearing in the record, a jury in this instance, we should have deemed motion was made to dismiss the suit for want it improper, although demanded by either side. of jurisdiction, because it was brought here by Our opinion, therefore, is, that there was litiappeal, which brings before the revising court gated in the Circuit Court a mere equitable all the evidence; whereas, had a writ of error title, in a form impressed on the proceeding in been brought, such parts of the evidence only a State court, and a decree pronounced as a could have been considered as were presented court of equity would have done in a regular by bills of exception. This motion has been course of proceeding in chancery; and that the held up for a length of time, and is now con- merits of the cause could only be reviewed on sidered with the merits, and the inquiry stand-appeal. ing in advance of the merits is, whether the appeal shall be dismissed. The suit was commenced in a State district court according to a prescribed form of practice in Louisiana, and removed by the defendant from the State court to the Circuit Court of the United States, where the same mode of pleading and practice was necessarily pursued that would have been, had the cause continued in the State court, and been there adjudged; it therefore comes here as an anomalous case.

Reference is also made to the last paragraph of the circular of 5th September, 1821, 2 Birchard's Comp. p. 256, to show that the certificates of the register and the receiver's receipts were to bear the same numbers, and were to be issued in all instances in regular numerical order.

Mr. Justice Catron delivered the opinion of the court:

But as several cases have been dismissed from this court because they were brought here by appeal instead of a writ of error, it is insisted that this rests on the same grounds of those that have been dismissed, and the case of The United States v. King, 3 and 7 How. 773 and 844, has been much relied on to show that this cause cannot be brought here by appeal. But that was not an action of title to quiet the plaintiff in possession of his land, but was a petitory action brought by the United States to The proceeding was commenced by Lapice recover land which was in the possession of the and Whittlesey; they asked to have a cloud defendant, and to which the United States removed from their title, which they alleged claimed a legal title. The suit was in the was embarrassed by a pretended and illegal nature of an ejectment in a court of common claim of Surgett to a back concession, of an- law, and was therefore strictly an action at terior date to their title, and for the same land. law, and in no respect analogous to a proceedSurgett came in, and set forth his claim; it was ing in equity to remove a cloud from the title purely equitable in its character, in the sense of a party who not only holds the legal title, of the term "equity," as denominated in the but is also actually in possession of the land in Constitution and acts of Congress; this claim dispute; and as the United States cannot be Surgett (by a petition in his answer), by way sued in reconvention, if the defendant had

A

claimed an equitable title in that case, it would | ment, no front proprietor by his own act could 66*] have been no defense, *because he could acquire a right to land farther back than the not make the United States a defendant, and ordinary depth of forty arpents, and although himself a plaintiff, by a suit in reconvention. that government invariably refused to grant The whole proceedings were necessarily pro- the second depth to any other than the front ceedings at law, and could therefore be re- proprietor, yet nothing short of a grant or warmoved by writ of error only, and not by ap-rant of survey from the governor could confer peal. And substantially of the same character a title or right to the land; wherefore they rewere all the cases relied on by counsel to dis-jected claims for the second depth, as not miss this appeal; none of them resembled the having passed as private property to the front case before us in any material degree-certainly not enough to govern it-and the jurisdiction is consequently sustained.

proprietor under the stipulations of the treaty by which Louisiana was acquired. As by the Spanish policy and usages the front owner had 2. We come in the next place to discuss the reserved to him a preference to become the merits; and here some general considerations purchaser of the second depth, Congress by the present themselves. On the first settlement of fifth section of the Act of March 3, 1811, Lower Louisiana, the nature of the country provided that every person who "owns a tract imposed on the governments who successively of land bordering on any river, creek, bayou, held it a peculiar policy in granting land to in- or water-course," in the territory of Orleans, dividual proprietors; the Mississippi River "and not exceeding in depth forty arpents, overflowed its banks annually, and to overcome French measure, shall be entitled to a preferthis impediment to cultivation, and to reclaim ence in becoming the purchaser of any vacant the back lands, heavy embankments had to be tract of land adjacent to, and back of, his own thrown up on the sides of the river, so as to tract, not exceeding forty arpents, French keep the water at flood tide within the channel; measure, in depth, nor in quantity of land that and these embankments had to be connected which is contained in his own tract, at the and continuous for a great distance, otherwise same price, and on the same terms and condithe whole country would be submerged; and tions, as are, or may be, provided by law for the king's domain was resorted to as a means the other public lands in the said territory." of securing the country from overflow, and of And inasmuch as the country had not to any reclaiming it to a great extent; and individ- material extent been prepared for sale in the ual proprietors were relied on to do that which, ordinary mode by public surveys, it was made in other countries at all similarly situated, was the duty of the principal deputy-surveyor of a great national work; and it is matter of sur- each of the two districts in the Orleans terriprise how much the policy accomplished with tory, to cause to be surveyed the preference such feeble and questionable means. The grants rights claimed under the act; and where, by were not large, and fronted on the river only reason of bends in the river, bayou, creek, or to the extent of from two to eight arpents water-course on which a front tract bordered, as a general rule, and almost uniformly ex- and where there were similarly situated tracts, tended forty arpents back; to these front grants so that each claimant could not obtain a quanthe Spanish government reserved the back tity equal to his front grant, it was made the lands, to another depth of forty arpents; and duty of the surveyor to divide the vacant land although few if any grants were made of back between the several claimants in such manner lands in favor of front proprietors, still they as to him might appear most equitable. were never granted by the Spanish government gratify pre-emption claims secured by the act, to any other proprietor, but used for the pur-no township surveys in advance of an entry pose of obtaining fuel and for pasturage by the front owners, so that, for all practical purposes, they were the beneficial proprietors; subject to the policy of levees, and of guarded protection to front owners. We took possession of Lower Louisiana in 1804. In 1805, commissioners were appointed, according to an act of Congress, to report on the French and Spanish claims in that section of country, and by the Act of April 21st, 1806, it was made a part of their duty "to inquire into the nature and extent of the claims which may arise from a right, or supposed right, to a double or additional concession on the back of grants or concessions heretofore made," previous to the transfer of 67*] *government, "and to make a special report thereon to the Secretary of the Treasury, which report shall be by him laid before Congress, at their next ensuing session. And the lands which may be embraced by such report shall not be otherwise disposed of, until a decision of Congress shall have been had there

То

were contemplated, as they could not be regarded did they exist; and as the act was limited to three years' duration, *little of [*68 the country was likely to be surveyed before the time for making entries expired. By the seventh section of the Act of May 11, 1820, the fifth section of the Act of March 3, 1811, was renewed, and continued in force until May 11, 1822; and by the Act of June 15, 1832, the Act of 1811 was again renewed for three years, with some slight amendments; and by the Act. of February 24, 1835, the time was further extended to June 15, 1836.

The township where the land in dispute is situated was offered for sale, according to the President's proclamation, in November, 1829; and as Surgett first offered to make his entry in 1836, it is insisted that, after the lands in the township were offered at public sale, no entry founded on a preference right was allowable at the land office; and such was the opinion of the court below, and is one of the reasons assigned for rejecting Surgett's claim. The Act The commissioners were engaged nearly six of 1832 provides, that the claimant shall deyears in the various and complicated duties liver his notice of claim to the register of the imposed on them, and then reported, that, by proper land office, stating the extent and situthe laws and usages of the Spanish govern-ation of the tract he wishes to purchase, and

on."

shall make payment; but it has this proviso—| nel sold. The registers and receivers were that all notices of claim shall be entered, and bound by recorded returns of the surveyors (as the money be paid thereon, at least three weeks a concluded fact), to sell according to the surbefore such period as may be designated by veys, nor could the register and receiver be althe proclamation of the President for the sale lowed to hear evidence contradicting the surof the public lands in the township where such veys, as to whether the waters included by them claim may be situated; and all claims not so were or were not navigable. Subject to this entered shall be liable to be sold as other pub-state of the law, Surgett offered (20th May, lic lands. The proviso was an exception to a 1830) to enter the back land to front numbers general law giving a right of entry; it was 28, 29, 30, 31, 32, and 33; making 989 9-100 prospective, having reference to future public acres, which lots adjoin, and were included in sales, and not to lands that had been previous-one patent, together with two other lots, Nos. ly offered, and remained unsold; Surgett could 34 and 35, also adjoining on the south, to which not comply with the condition, nor had it any he did not claim any back land; that is to say, application to such a case as his claim presents. he claimed 989 9-100 acres as a back concession The manifest object of Congress was to dis-to a patent of 1,308 7-100 acres, so as to extend embarrass public sales by barring preference the six lots first named; and if neither the bayrights that would be a cloud on the title of ou, nor the existence of previous entries, stood lands thus offered. in the way, he had a clear right to enter. Sparrow and Whittlesey's entries were in part fractions, not, however, produced by having bordered on a stream, but because they adjoined front lots on the Mississippi River not surveyed *in squares, but according to the second [*70 section of the Act of March 3, 1811.

The foregoing construction being the one adopted by the departments of public lands soon after the Act of 1832 went into operation, we should feel ourselves restrained, unless the error of construction was plainly manifest, from disturbing the practice prescribed by the commissioner of the general land office, acting in In surveying township number five, the Mill accordance with the opinion of the Attorney- Bayou was entirely disregarded, and the surveys General, and which had the sanction of the of sections and quarter-sections were made in Secretary of the Treasury and of the Presi-rectangular figures, and laid down and sold dent of the United States. across that water, the channel of which was

The court below rejected Surgett's claim to granted in part to Sparrow and Whittlesey, enter the back land on another ground. The and in part to others. According to the rules, acts of Congress securing the preference con- therefore, by which the register and receiver were tain an exception "that the right of pre-emp-governed, they had no right to refuse Surgett's tion shall not extend so far in depth as to in-entry for the reason that the land bordered on 69*] clude lands fit for *cultivation bordering another navigable stream. on another river, creek, bayou, or water- How far the powers of the court below excourse." And the question is, To what de- tended to contradict the public surveys and scription of water-course did the Legislature records of the land office, we refrain from disrefer? The enacting clause provides that every cussing in this case, as the parties on the one person who owns a tract of land "bordering" side and on the other affirmatively appealed to on any river, creek, bayou, or water-course, a court of justice to decide the fact, whether shall have the right of pre-emption to the back the bayou was of the description contemplated land. The Act of 1811 has been construed, in by the acts of Congress, and a water-course on the Department of Public Lands, for nearly which lands could front. It is between two forty years, to mean that those owners whose and three miles long, and drains swamps, and lands fronted on a navigable stream were only a shallow pond, or rather lagoon; its greatest provided for; and that the word "border," both width is from seventy to eighty feet from bank in the enacting clause and, in the exception, to bank, and the channel in part is some fifteen meant to front on a navigable water-course; feet deep from the top of its banks; but at no that is to say, such waters as are described in time of the year has it any claims to be a navthe third section of the Act of February 20, igable stream, being nearly dry for a greater 1811, by which Louisiana was authorized to portion of the year, having no running water, form a State constitution and government, by or any water in it, except stagnant pools; it is which act the River Mississippi, and the navi- an ordinary drain of the Mississippi swamp, gable rivers and waters leading into the same, and of shallow ponds. Near its mouth, at the or into the Gulf of Mexico, were declared to Mississippi River, there is a levee—and so there be common highways, and forever free, as is one near to the pond, at its further end from well to the inhabitants of the said State, as to the river; both levees being on lands granted other citizens of the United States. to Surgett. Before the lower levee was conSimilar provisions as respects navigable structed, there had been a mill for grinding waters are common to other States where there erected on the bayou, which gave it the name it are public lands, and the practice has been uni- bears; the flow of water was then from the form to survey and sell the lands "bordering" Mississippi River through this outlet to the on navigable streams as fractional sections; nor swamp, in times when the river was high. But is the channel ever sold to a private owner. it was never fit for any purpose, as a channel Of necessity, it had to be left almost exclusively through which commerce could be carried on to the Department of Lands executing the pub-by water. The ground of defense must therelic surveys to ascertain what stream was navi- fore fail, that the lands entered by Sparrow gable, and should be bordered by fractions and and Whittlesey bordered on a bayou, and were reserved from sale; and, on the other hand, within the exception of the Act of 1832. what waters were not navigable, and should be included in square sections, and the chan

The Circuit Court also held that the back land was proved to be fit for cultivation, and