DECISION OF THE COMMISSIONER of the GENERAL LAND OFFICE IN THE MATTER OF THE APPLICATION BY GEORGE F. BLANCHARD TO LOCATE WITH VALENTINE SCRIP A CERTAIN TRACT OF LAND KNOWN AS THE ADDITION TO FRACTIONAL SECTION 15 IN TOWN- SHIP 39 NORTH, OF RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1878. DECISION 4 OF THE COMMISSIONER of the GENERAL LAND OFFICE IN THE MATTER OF THE APPLICATION BY GEORGE F. BLANCHARD TO LOCATE WITH VALENTINE SCRIP A CERTAIN TRACT OF LAND KNOWN AS THE ADDITION TO FRACTIONAL SECTION 15 IN TOWN- SHIP 39 NORTH, OF RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1878. Go 49 1 L Department of the Interior, General Land Office, Washington, D. C, February 12, 1878. Sir: I have considered the application of George F. Blanchard for a patent to the following strip or tract of land, to wit : Bounded north by the line between fractional sections 10 and 15, township 39 N., range 14 E. of third P. M., extended east 4 chains and 74 links from the corner estab- lished in 1821, and 17 chains and 30 links; east of the corner of sections 9, 10, 15, and 16 west, by the aforesaid fractional section 15, as surveyed in 1821; south and east, by the shore of Lake Michigan, as defined by Dep- uty Surveyor Talcott. Said tract of land extends from the aforesaid easterly extension of the line between sections 10 and 15; on the north, to the shore of Lake Michigan, as defined by Deputy Surveyor Talcott aforesaid; on the south, and from said fractional section 15, as surveyed in 1821 ; on the west, to Lake Michigan ; on the east, as defined by Deputy Surveyor Talcott as aforesaid, and as shown by a map or diagram hereto annexed and made part of this application ; said tract or & par- cel of land being known as the addition to fractional section No. 15 in township No. 39 N., of range 14 E., of third P. M., in the district of lands subject to sale at the land office at Springfield, 111., containing 11JU_ acres. Upon the 26th day of July, 1875, Mr. Blanchard applied to the register and receiver of the local land office at Springfield, 111., to locate special certificate E, No. 31, Valentine scrip, upon the tract, which was allowed, and certificate thereof given the applicant. The scrip referred to was authorized by an act of Congress approved April 5, 1872 (17 Stat,, p. 649), and contained the following language: Now therefore, be it known that on the surrender of his certificate to the register of any land office of the United States, the said Thomas B. Valentine or his legal rep- resentatives shall be entitled to enter in part satisfaction of said claim the quantity ot— acres of land upon any of the unoccupied and unappropriated public lands of the United States not mineral, and in tracts not less than the subdivisions provided for in the United States land laws, and if unsurveyed when taken, to conform when surveyed to the general system of the United States land surveys. The act referred to authorized the assignment of this certificate or scrip, and it is not disputed that the applicant here is the legal repre- sentative of Valentine. It will be seen from the foregoing that there were three restrictions placed upon the location of this scrip. 1st. The lands selected were to be " unoccupied and unappropriated." 2d. They were to be " public lands of the United States'" 3d. They were to be " not mineral." It is not pretended that the land in question is mineral, and it only re- mains to be seen whether it was at the time of the location in question " unoccupied and unappropriated" and public lands of the United States. As establishing the fact that it was of the latter class, it is urged by the applicant that the government in 1836 authorized the survey of the same as such, and that in 1875 the register and receiver of the proper land office allowed the location of this scrip thereupon. I deem it sufficient to say that so far as the act of the register and receiver is concerned, no presumption arises therefrom, further than that of the correct performance of their ministerial duty. No act on their part can, in any case, be considered to preclude this office from refusing or granting a patent, as in the judgment of the Com- missioner the law and the facts require. It may very naturally happen that surveys may be authorized, through mistake, accident, or a misapprehension of law or facts, of lands clearly not subject thereto. It cannot be claimed, certainly, that the Commissioner would in such a case be bound to continue the error by granting a patent thereupon. (Magwire v. Tyler et al., 1 Black, 195.) On the other hand, it is clear that, if there has not been any survey of this land by the government, or only an irregular, illegal, or unauthorized one, then no patent can is- sue to the applicant. While it may be admitted that, by the terms of the act referred to and the certificate, this scrip could be located upon uu surveyed lands, it is no less clear that no patent can issue therefor until there has been a survey of the land located upon. I will now consider the question as to whether there has been any proper, legal, and duly authorized and approved survey of the land in question. That, as a matter of fact, there was a survey made of a tract of land conforming to the description set out by a Mr. Talcott, in 1836, is not disputed. I will consider this question from another standpoint. The authority upon which this survey was made was an order given by E. T. Langham, United States surveyor general, to Edward B. Tal- cott, deputy United States surveyor, dated February 13, 1836. The sur- vey was made during the same mouth, and a plat thereof, it seems, immediately filed with the register of the local office. This act, it is claimed, however, was irregular, as was the act of the surveyor general in ordering the survey. These questions need only be incidentally re- ferred to, for the ordering of the survey would not preclude the officer making the order, or his successor, or another officer of the government, to whom the duties of his office in this respect had been transferred, from rejecting it upon discovery either that the survey itself was not prop- erly executed, or that it was without authority of law, or made upon lands not subject to survey. I believe that it is not claimed that there has ever been any approval of this survey by any authorized person, further than what may be im- plied from the language used in a letter from Mr. Whitcomb, Commis- sioner, to Mr. Dunklin, surveyor general, dated May 5, 1837, in which the latter is authorized to settle Mr. Talcott's account u and preserve the original field notes, plats, &c, on file in your [his] office." " You are advised," the letter adds, " that this letter is not to be con strued as authorizing the surveyor general to direct similar surveys without instructions from this office." But this language will hardly be construed into an approval of the survey, when considered in connection with the former part of the letter, in which the Commissioner says : " You are hereby directed to withhold your approval of said survey by Mr. Talcott until further advice from this office." Not only has this survey never had any approval, but, on the contrary, has been repeatedly disapproved and rejected, both because it was not correctly doue, or done in accordance with law, and because the land was not subject to survey. Of date January 14, 1857, the Commissioner wrote the surveyor gen- eral, informing him that his attention had been called to the entries made upon this land by Mark Noble and Mark Noble, jr. These entries were made on the 31st day of May, 1836, under floats accruing to them under the act of Congress approved May 29, 1830, the former taking that part lying within or adjacent to section 10, and the latter that part adjacent to section 15. The Commissioner says : " Since the township plat on file in this office exhibits no such additional fractions, and it does not appear that any particular instructions have heretofore emanated from this office, either for a resurvey or for new surveys in the township, I have to request that you will examine the subject, * * * and also trausmit plats thereof due to this office at your earliest convenience." In compliance with the request made by this letter the plats were sent. The Commissioner again wrote the surveyor general of date March 6, 1837, and in this letter he says: The facts, as far as they are known to this office, warrant the belief that these additions are gradual accretions from the lake, and as such cannot be separated from the sections of which they form a component parr. How your predecessor could issue instructions for the survey under the circumstances, and what appears still more inex- plicable, how he could permit such separate fractions to be annexed to the sections, contrary to the surveying laivs and the general instructions from this office, which do not recognize subdi- visions like those presented by this plat, remains yet to be explained. You will at once see the propriety of continuing to withhold your approval of the survey, and of course the payment of Mr. Talcott's accounts, should he apply for it, until such time as the business can be thoroughly examined. After this, and upon the receipt of the instructions issued to Talcott, which at first could not be found, the Commissioner wrote the letter of May 5, 1837, first above quoted from. On the 4th day of April, 1838, the Commissioner wrote the register and receiver to cancel the Noble entries, expressing like views with 6 reference to the status of this land that he had expressed to the sur- veyor general. If the Commissioner had authority to reject the entries of the Nobles as he did, and for the reasons, the decisions then made by him should be a precedent and binding on me now. If not, then the Nobles, unless they have waived their rights, are justly entitled to claim this land. All the facts and all the law which can possibly be urged in favor of Mr. Blanchard's claim now, could have been and undoubtedly were urged in favor of the claims of the Nobles then. This office then de- cided that the land was not public land, and that the Talcott survey was unauthorized and not binding on the Government. It is claimed that the Commissioner had no authority to reject this survey. This claim is clearly untenable. The case of Magwire v. Tyler et al., decided by the Supreme Court of the United States (1 Black, 195), is exactly in point, and decides that the Commissioner of the General Land Office possessed this power under the act of 1812. In harmony with this view is the uniform custom of the office. , It will be seen by an examination of the records of this office that for per- haps half of a century, more or less, the Commissioner of the General Land Office, part of the time acting under the Secretary of the Treasury, has exercised control over the subject of the public land surveys, in al- most every conceivable phase, ordering and rejecting the same, ordering resurveys and corrections. This custom or exercise of authority on the part of this officer of the Government, so long practiced and acquiesced in, would of itself be sufficient authority for the action of the Commis- sioner in rejecting the survey as he did. In the case of Barnard v. Ashley (18 How., 45), the court says, " But if the construction of the act of 1836 to this effect were doubtful, the prac- tice under it for nearly twenty years could not be disturbed without manifest impropriety." Were this otherwise, it will be noticed that an act of Congress, giving to the Commissioner of the General Land Office general and specific jurisdiction over the subject of the public land surveys was passed July 4, 1836. That while the Talcott survey had been made in February, 1836, no action had been had thereon, either to approve or reject, by the surveyor general or the Commissioner of the General Land Office, until February, 1837. At this time the Commissioner had undoubted jurisdic- tion of the subject, and, itcannot be doubted, had full authority to pass upon any former survey which had not before been acted upon by him- self or any other officer of the government whose duty it was to do so, prior to said act. In the case of Magwire v. Tyler, supra, it is shown that the Secretary of the Interior, in 1851, revising on appeal the decis- ion of the Commissioner, very properly, as it was held, set aside a survey made in 1817. It is clear that, if I am correct in the foregoing conclusions, no patent can issue in this case to Mr. Blanehard, and that, so far as the question of the Talcott survey is concerned, it is res adjudicata. In 1822 Congress authorized the survey of the route of a canal con- necting the Illinois River with Lake Michigan, and on the 2d day of March, 1827, made a grant of land to the State of Illinois for the pur- pose of constructing the same. Under this act and the acts amendatory thereof the fractional section 15, referred to, was allotted to the State. But it is claimed by the applicant that fractional section 15 did not include the land or sand bar in question ; that the canal commissioners took according to the survey of 1821 ; that as a matter of fact said sur- vey did not extend to Lake Michigan on the east, but to the Chicago River, which, it is claimed, at that time was between the meander line of said survey and the lake. What the facts were, with reference to this statement, I have not suffi- cient testimony before me to certainly determine. The case of Bates v. Illinois Central Railway Co. (1 Black, 204) establishes the fact that at the time of and by the survey in 1821 the mouth of the Chicago River was fixed at the N". E. corner of the S. W. fractional J of section 10, by reason of an artificial outlet cut through the sand bar. There is evi- dence tending to show, too, that the natural mouth of the river was near the section line between sections 10 and 15. This is shown by the plat of the survey of 1821, as it is claimed that it is also even by the Talcott survey. The meander line of the survey of 1821 lies west of the east line of the Talcott survey, yet the field notes of said former survey describe the fractional section 15 as bounded on the east by the lake, and there being no evidence showing that such was not the fact so far as relates to section 15, it must be accepted as a fact, and whatever ac- cretions have since been made to said section passed to the State with the section under the grant for canal purposes in 1827, according to the established doctrine of riparian rights on navigable waters. Railroad Co. v. Schurmeir, 7 Wallace, 273; County of Saint Clair v. Lovingston, 23 Wallace, 62 and 63; New Orleans v. United States, 10 Peters, 662; Barney v. Keokuk, 4 Otto, 325 ; Buck v. Ogden, 2 Wallace, 57 ; Saulet v. Shepherd, 4 Wallace, 502; 5 Opinions Attorney General, 264; Yates v. Milwaukee, 10 Wallace, 497; Jones et al. v. Johnston, 18 Howard, 150; Watkins v. Holman et al., 16 Peters, 25; Jones v. Sou- lard, 24 Howard, 41. In 1836 the canal commissioners, under authority of the State legis- lature, laid out fractional section 15 into lots, blocks, &c, and dedicated as much of the land in question to the* city of Chicago as a public park as was then in existence. This dedication was approved and has since been recognized by the State legislature. The case of the Railroad Company v. Schurmeir, 7 Wallace, 272, must govern in arriving at a determination in this case. In that case, that the plaintiff, the railroad company, had a better claim, for the survey of a like tract or sand bar, was not questioned, either on account of authority to make the same or its having been re- 8 jected. The court in that case laid down the law to be " that the meander lines run in surveying fractional portions of the public lands bordering upon navigable rivers, are run, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction, and which is to be paid for by the purchaser." A government grant of land in Minnesota (9.28 acres) bounded on one side by the Mississippi was held to include a parcel (2.78 acres) four feet lower than the main body, and which at very low water was separated from it by a slough or channel twenty-eight feet wide through which no water flowed, but in which water remained in pools ; when at medium water it flowed through the depression making an island of the parcel ; and when at high water the parcel was submerged, the whole place having previous to the controversy been laid out as a city, and the municipal authori- ties having graded and filled up the place to the river edge of the parcel. I decide that the patent asked for in this case must be relused. All parties in interest will be advised of this decision, and Mr. Blanchard will be allowed the usual sixty days in which to file an appeal to the honorable Secretary of the Interior. Very respectfully, J. A. WILLIAMSON, Commissioner. C. F. Peck, Esq. Hon. S. B. Elkins, Henry Beard, Esq., Washington , D. C. Hon. Lyman Trumbull, Hon. Jos. F. Bonfield, Chicago, Ills. 54g