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.

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 lots protracted thereon should bear the same numbers as if the township had been entire.

59*] *The 2d section of the Act of 18th May, 1796, 1 Stat. at Large, 467, 468, prescribes the precise manner in which the sections in townships shall be numbered, beginning with the number one in the northeast section, and proceeding east and west, alternately, through the townships, with progressive numbers, till the thirty-sixth be completed.

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 townships, and subdivided in the manner authorized and directed in relation to lands lying northwest 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

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

Ist, 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.

If this be so, then Mr. Surgett had a right, under the Act of 16th June, 1832, at any time prior to the 16th of June, 1835, to file his application to enter the land in controversy.

This right having been extended to the 16th of June, 1836, by the Act of 24th February, 1835, 4 Stat. at Large, 753, Mr. Surgett, having made his application on the 20th of May, 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.

2. That the character of this action, which is essentially an action at law, is not, and could not be, changed, by the laws of Louisiana, into 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 29, 30, 31, 32, and 33, at the time (to wit, the 26th of May, 1836), when he claimed to purchase 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.

10. That the application of the appellant to purchase the back concessions, being indefinite, and not showing the extent of the land which he claimed to purchase, was not such as is required by law, and was rightly rejected by the register.

11. That the right to purchase back concessions is confined to owners of front tracts which do not exceed forty arpents, French measure, in depth, and the appellant, not having shown what is the depth of his front tract, has not established his right to any back concessions.

12. That the register of the land office, having 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.

13. That the appellant did not, at the time of his application, make payment or a legal tender for the back concessions claimed by him.

14. That the land in controversy is fit for cultivation, and borders on the Mill Bayou, which is sufficiently large and deep to drain the adjoining country, and render it fit for cultivation, and that said land therefore cannot be claimed as a back concession.

15. That the land in controversy was offered at public sale, in pursuance of a proclamation of the President, on the third Monday of November, 1829, and was therefore not liable to be claimed as a back possession.

Additional points of the appellees:

632; Minor v. Tillotson, 2 How. 392; Phillips v. Preston, 5 How. 278, 289.

On the 3d point: Act of 24th Sept. 1789, ch. 20, sec. 12, 1 Stat. at Large, 79; Stat. of 13 Edw. I. ch. 31; 1 Saund. Pl. and Ev. 317 and 318; Mayhew v. Soper, 10 Gill. & Johns. 366; Phillips v. Preston, 5 How. 278, 289.

On the 4th point: Act of 24th Sept. 1789, ch. 20, sec. 22, 1 Stat. at Large, 84; Act of 3d March, 1803, ch. 93, sec. 2, 2 Stat. at Large, 244; San Pedro, 2 Wheat. 132; Ward v. Gregory, 7 Pet. 633; Parish v. Ellis, 16 Pet. 451.

On the 5th point: Sims v. Hundley, 6 How. 1; 2 Chit. Gen. Pr. 572; Mellish v. Richardson, 9 Bing, 126; 23 E. C. L. R. 276.

On the 6th point: Act of 18th May, 1796, ch. 29, sec. 2, 1 Stat. at Large, 464; Act of 3d March, 1803, ch. 40, sec. 10, 2 Stat. at Large, 244; Act of 3d March, 1831, ch. 116, sec. 5, 4 Stat. at Large, 493; 1 Greenleaf's Ev. 2d ed. secs. 501, 502.

On the 7th point: The acts cited under the 6th point, and 1 Greenleaf's Ev. secs. 440, 441.

On the Sth point: 38th Rule of Court; Armstrong v. Toler, 11 Wheat. 277; Penuock v. Dialogue, 2 Pet. 15; Carver v. Astor, 4 Pet. 1; Ex-parte Martha Bradstreet, 4 Pec. 102; Magniac v. Thompson, 7 Pet. 348; Gregg v. Lessee of Sayre et ux. 8 Pet. 244; Act of 24th April, 1820, sec. 2; Act of 10th May, 1800, sec. 7.

On the 9th, 10th, and 11th points: Act of 15th June, 1832, ch. 140, 4 Stat. at Large, 534. On the 10th point, also, 9 La. R. 57.

On the 12th point: Act of 15th June, 1832, ch. 140, 4 Stat. at Large, 534, and Act of 24th Feb. 1835, ch. 24, 4 Stat. at Large, 753. The appellants will also rely on the decision of the Secretary of the Treasury affirming the decision of the register of the land office in this

they claim, on the 14th of July, 1834. They will therefore contend, that they had obtained a vested title thereto at the time of the passage of the Act of 24th of February, 1835, ch. 24, 4 Stat. at Large, 753, which could not be devested by the application of the appellant made on the 20th of May, 1836.

See Thompson v. Schlatter, 13 La. R. 119, and Act of 15th of June, 1832, ch. 140; 4 Stat. at Large, 534; 2 Birchard's Land Laws, 727.

The appellees will cite the following authorities in support of the first fifteen points made by them:

62*] *On the 1st point: 1 Starkie on Slander, 2d Am. ed., marginal pages 2 and 191.

On the 2d point: Livingston v. Herman, 9 Martin, La. 713; 2 Cond. R. 40; Thompson v. Schlatter, 13 La. R. 119; McDonogh v. Millaudon, 3 How. 693; U. S. v. King, 3 How. 773; Code of Practice of La. p. 8, art. 30, p. 90, art. 374, p. 10, art. 41 and 43, p. 12, art. 44; Vidal v. Duplantier, 7 La. R. 45, 8 N. S. 105; Poultney v. Cecil, 8 La. R. 422; 7 How. 846; Constitution of U. S. art. 3, sec. 2, and art. 7 of Amendments; Act of Congress of 24th Sept. 1789, ch. 20, sec. 16, 1 Stat. at Large, 82; Act of 26th May, 1824, ch. 181, sec. 1, 4 Stat. at Large, 62; Parsons v. Bedford,

March, 1839, in the case of Robert Furd et al. Bagnell v. Broderick, 13 Pet. 450.

On the 13th point: Act of 15th June, 1832, ch. 140, 4 Stat. at Large, 534.

On the 14th point: Act of 3d March, 1811, ch. 46, sec. 5 and 10, 2 Stat. at Large 663, 665; Act of 15th June, 1832, ch. 140, 4 Stat. at Large, 534; Act of 24th April, 1820, cù. 51, sec. 3; 3 Stat. at Large, 566.

On the 15th point: The same acts referred to in the preceding point, and Thompson v. Schlatter, 13 La. R. 119.

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. King, 7 How. 846; S. C. 3 How. 773.

Authorities cited by the counsel for the appellants, in reply:

The following acts of Congress were cited in reply to the twelfth point in the brief of the appellees, to show that, in those pre-emption laws where the decision of the register and receiver has been treated as conclusive, the power of decision has been expressly given to the registers and receivers to determine the fact of occupancy and cultivation, without any appeal from their decision.

Act of 31st March, 1808, sec. 2, 2 Stat. at

claimed an equitable title in that case, it would 66*] have been no defense, *because he could not make the United States a defendant, and himself a plaintiff, by a suit in reconvention.

ment, no front proprietor by his own act could acquire a right to land farther back than the ordinary depth of forty arpents, and although that government invariably refused to grant

2. We come in the next place to discuss the merits; and here some general considerations present themselves. On the first settlement of Lower Louisiana, the nature of the country imposed on the governments who successively held it a peculiar policy in granting land to individual proprietors; the Mississippi River overflowed its banks annually, and to overcome this impediment to cultivation, and to reclaim the back lands, heavy embankments had to be thrown up on the sides of the river, so as to keep the water at flood tide within the channel; and these embankments had to be connected and continuous for a great distance, otherwise the whole country would be submerged; and the king's domain was resorted to as a means of securing the country from overflow, and of reclaiming it to a great extent; and individual proprietors were relied on to do that which, in other countries at all similarly situated, was a great national work; and it is matter of surprise how much the policy accomplished with such feeble and questionable means. The grants were not large, and fronted on the river only to the extent of from two to eight arpents as a general rule, and almost uniformly extended forty arpents back; to these front grants the Spanish government reserved the back lands, to another depth of forty arpents; and although few if any grants were made of back lands in favor of front proprietors, still they were never granted by the Spanish government to any other proprietor, but used for the purpose 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

on."

by which Louisiana was acquired. As by the Spanish policy and usages the front owner had reserved to him a preference to become the purchaser of the second depth, Congress by the fifth section of the Act of March 3, 1811, provided that every person who owns a tract of land bordering on any river, creek, bayou, or water-course," in the territory of Orleans, "and not exceeding in depth forty arpents, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to, and back of, his own tract, not exceeding forty arpents, French measure, in depth, nor in quantity of land that which is contained in his own tract, at the same price, and on the same terms and conditions, as are, or may be, provided by law for the other public lands in the said territory." And inasmuch as the country had not to any material extent been prepared for sale in the ordinary mode by public surveys, it was made the duty of the principal deputy-surveyor of each of the two districts in the Orleans territory, to cause to be surveyed the preference rights claimed under the act; and where, by reason of bends in the river, bayou, creek, or water-course on which a front tract bordered, and where there were similarly situated tracts, so that each claimant could not obtain a quantity equal to his front grant, it was made the duty of the surveyor to divide the vacant land between the several claimants in such manner as to him might appear most equitable. gratify pre-emption claims secured by the act, no township surveys in advance of an entry 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.

To

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 of 1832 provides, that the claimant shall deliver his notice of claim to the register of the proper land office, stating the extent and situ

that all notices of claim shall be entered, and the money be paid thereon, at least three weeks before such period as may be designated by the proclamation of the President for the sale of the public lands in the township where such claim may be situated; and all claims not so entered shall be liable to be sold as other public lands. The proviso was an exception to a general law giving a right of entry; it was prospective, having reference to future public sales, and not to lands that had been previous ly offered, and remained unsold; Surgett could not comply with the condition, nor had it any application to such a case as his claim presents. The manifest object of Congress was to disembarrass public sales by barring preference rights that would be a cloud on the title of lands thus offered.

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 accordance with the opinion of the AttorneyGeneral, and which had the sanction of the Secretary of the Treasury and of the Presi

dent of the United States.

The court below rejected Surgett's claim to enter the back land on another ground. The acts of Congress securing the preference contain an exception "that the right of pre-emption shall not extend so far in depth as to in69*] clude lands fit for *cultivation bordering on another river, creek, bayou, or watercourse." And the question is, To what description of water-course did the Legislature refer? The enacting clause provides that every person who owns a tract of land "bordering"

bound by recorded returns of the surveyors (as a concluded fact), to sell according to the surveys, nor could the register and receiver be allowed to hear evidence contradicting the surveys, as to whether the waters included by them were or were not navigable. Subject to this state of the law, Surgett offered (20th May, 1830) to enter the back land to front numbers 28, 29, 30, 31, 32, and 33; making 989 9-100 acres, which lots adjoin, and were included in one patent, together with two other lots, Nos. 34 and 35, also adjoining on the south, to which he did not claim any back land; that is to say, he claimed 989 9-100 acres as a back concession to a patent of 1,308 7-100 acres, so as to extend the six lots first named; and if neither the bayou, nor the existence of previous entries, stood in the way, he had a clear righ 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.

In surveying township number five, the Mill Bayou was entirely disregarded, and the surveys of sections and quarter-sections were made in rectangular figures, and laid down and sold across that water, the channel of which was granted in part to Sparrow and Whittlesey, and in part to others. According to the rules, therefore, by which the register and receiver were governed, they had no right to refuse Surgett's entry for the reason that the land bordered on another navigable stream.

How far the powers of the court below extended to contradict the public surveys and records of the land office, we refrain from discussing in this case, as the parties on the one side and on the other affirmatively appealed to

shall have the right of pre-emption to the back land. The Act of 1811 has been construed, in the Department of Public Lands, for nearly forty years, to mean that those owners whose lands fronted on a navigable stream were only provided for; and that the word "border," both in the enacting clause and, in the exception, meant to front on a navigable water-course; that is to say, such waters as are described in the third section of the Act of February 20, 1811, by which Louisiana was authorized to form a State constitution and government, by which act the River Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, were declared to be common highways, and forever free, as well to the inhabitants of the said State, as to other citizens of the United States.

Similar provisions as respects navigable waters are common to other States where there are public lands, and the practice has been uniform to survey and sell the lands "bordering" on navigable streams as fractional sections; nor

the bayou was of the description contemplated by the acts of Congress, and a water-course on which lands could front. It is between two and three miles long, and drains swamps, and a shallow pond, or rather lagoon; its greatest width is from seventy to eighty feet from bank to bank, and the channel in part is some fifteen feet deep from the top of its banks; but at no time of the year has it any claims to be a navigable stream, being nearly dry for a greater portion of the year, having no running water, or any water in it, except stagnant pools; it is an ordinary drain of the Mississippi swamp, and of shallow ponds. Near its mouth, at the Mississippi River, there is a levee-and so there is one near to the pond, at its further end from the river; both levees being on lands granted to Surgett. Before the lower levee was constructed, there had been a mill for grinding erected on the bayou, which gave it the name it bears; the flow of water was then from the Mississippi River through this outlet to the swamp, in times when the river was high. But

Of necessity, it had to be left almost exclusively to the Department of Lands executing the public surveys to ascertain what stream was navigable, and should be bordered by fractions and reserved from sale; and, on the other hand, what waters were not navigable, and should be included in square sections, and the chan

through which commerce could be carried on by water. The ground of defense must therefore fail, that the lands entered by Sparrow and Whittlesey bordered on a bayou, and were within the exception of the Act of 1832.

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