YALE UNIVERSITY LIBRARY

3 9002 05423 3763

Young, Richard 1,1,
Argument of Richard M. Young as attorney for
the accupants of Portage City against...
Washington, 185V

Cn9G

tn

ml

1%|tve^

YALE
UNIVERSITY LIBRARY

AE&UMflfT

OF

RIGgAED M. Yb'trKQi
AS ATTORNEY fOB v,

AOAIHBI

THE STATE OF WISCONSIN.

B. Okaiohtbad, printer, Oaxton SnilcUng, Jt, 88, & 86 fM*r« sttajfr'Sr. T.

^lJR Or TJ MEJOSr T
OF
RICHARD M. TOUNG,
AS ATTORNEY FOB**
THE OCCUPANTS OF %OKTAGE CITY,
**
AGAINST
THE STATE OF WISCONSIN.

"Washington City, January, 1857.

The present controversy is between Joshua J. Guppey, county
j udge for the county of Columbia, and State of Wisconsin, as
trustee for the settlers and occupants residing on the west half
of the southwest quarter, the northeast quarter of the southwest
quarter, apd lots two and three of section number five, in town
ship number twelve north, of range number nine east, in the
Menasha land district, Wisconsin, and the State of Wisconsin. <|
Judge Guppey claims title for the said settlers "and occupants
of the said tracts of land, now known as " Portage^City," under
the act of Congress of May 23d, 1844, entitled, " An act for the
relief of citizens of towns upon the lands of the United States
under certain circumstances ;" and the State of Wisconsin,
under the act of Congress entitled, "An act to grant aqiia%pity
of land to aid in the i/mfprovement. of the Fox and Wisconsin
rvoers, and to connect the same ly a canal in the Territory of
Wisconsin" approved August 8th, 1846.
The land in dispute was a part of the lands comprised withi:
the limits of the "Mehomonee Cession," and belonged to and was
occupied by the Menomonee tribe of Indians, until the treaty
of Lake Pow-aw-haj'-kon-nay, between the United States and
the said tribe of Indians, made on the 18th day of October,
1848. See vol. 9, TJ. S. Statutes at Large, page 952.
1

By the second article of the said treaty, the said Menomonee
tribe of Indians agreed to sell and relinquish " all their lands
in the State of Wisconsin, wherever situated.
By the eighth article of the treaty, the said Indians were per
mitted, if they desired so to do, to remain on the ldnds thus
ceded for the period of two years from the date of the treaty
(October 18th, 184^) and until the President should notity
them that the same were wanted.
And by the tenth article of the treaty, it was to be binding
on the contracting parses as sotm as it was ratified by the
United States. Jp
The treaty was accordingly ratified by the President and
Senate on the 23d day of January^ 1849, and from that day
became binding upon the parties to it.
The Indians were never notified by the President that these
lands were wanted by the United States ; but prior to the 1st
day of June 1852, they were, by mutual consent, removed to
and concentrated upon a small portion of the lands ceded by
the said treaty, lying near the Falls of Wolf Eiver, in the said
State of Wisconsin, ahd from that time ceased to occupy the
portion in dispute. See President's message and accompanying
documents, 1852 and '3, part 1, page 325.
A portion of the lands so ceded by said Indians, of which the
tracts in dispute formed a part, were surveyed under United
States authority in the year 1851, and that portion in dispute
was settled and occupied as a " town site," as early as the fall
of 1849. See statement of surveys from General Land Office,
in appendix marked Exhibit (A.)
An application was then made by Joshua J. Guppey, judge
of the county court in and for the county of Columbia, and
State of Wisconsin, to enter the aforesaid tracts of land for a
" town site," as trustee for the settlers then residing thereon,
under and in pursuance of the provisions of the act of Congress
of May 23d, 1844, at the land office at Green Bay, Wisconsin,
during the winter of 1851-2, which was rejected by the local
land offices, and an appeal taken by Judge Guppey to the
General Land Office, when the opinion of the register and,
receiver was affirmed by the Commissioner, for the reason, as
he said, that the application of Judge Guppey was premature,
as the land applied for formed apart of the Menomonee cession,
iwhich would not become public land under the treaty until after
W* the 1st of June, 1852.
The Commissioner nevertheless adds, in the same letter, by
way of instruction, as follows : " On the point, however, involved
in this case, you are hereby instructed tliat after the. 1st day of
June next (June 1, ^1852), upon application being made ly

the proper authority, as now, with similar testimony accom
panying the same, and with the following additional evidence,
you would be authorized by the law qf May 23d, 1844, to per
mit the entry of every legal subdivision incltyjfed im, the town, id
the extent of 230 acres." See letter of Ocgnmissioner Butter
field to the Register and -Receiver of land office at Green Bay,
of April 9th, 1852, as per Exhibit marked^B.)
On the 1st day of June, 1852, the day , on which the Indian
title to these lands became extinct by the terms of the treaty,
in consequence of their removal, the^aforesaid Judge Guppey,
as trustee as aforesaid, made a secoritf application at the same
United States land office to enter said lands, for the use and
purpose aforesaid, in pursuance of the' aforesaid letter of Com*
missioner Butterfield, of the 9th of* April, 1852, and accom*
panied his said application with suchj additional testimony as
was required by the letter from saic? commissioner, when the
entry was allowed by the register and Receiver at the Green Bay
land office, of the lands heretofore 'described, together with
other lands (lots 5 and 6, on section 8, in the same township and
range,) which were also settled tfpon and occupied as a part of
said town site, as per duplicate receiver's receipt No. 15,781,
dated June 1st, 1852. See Exhibit (C.) See also a plat of the
town site of Portage City, introduced in evidence by Judge
Guppey on his application to enter the same, June 1st, 1852,
as per Exhibit (D.)
After the said entry had been thus mad,e, agreeably to the
instructions of the Commissioner of the General Land Office,
Judge Guppey proceeded, as trustee, to re-sllrvey and plat the
said town site called " Portage City," and held a special term
of the said county court of Columbia county^ for the purpose
of adjusting the conflicting claims thereto; and after such
adjustment, proceeded to execute deeds of conveyance to the
settlers, according to their respective rights, as trustee as afore
said, at an expense to said inhabitants of not mucttless than
the sum of one thousand dollars. See the petition ,of Hon.
Joshua J. Guppey to the Hon. Commissioner of then^neral
Land Office, dated December 22nd, 1*852, as per Exhibift(E.)
There are. about nine hundred lots included in said town
site, many of them now of considerable value, and Were occu
pied by 'more than twelve hundred inhabitants at the time of
making the aforesaid entry, on the 1st of June, 1852.
Many expensive buildings had been erected previous to said
entry, and subsequent thereto, and after the making and exe
cuting the trust deeds by the said county judge, purchases
were made of many of the lots so deeded at large prices ; the
purchasers have in good faith proceeded to erect expensive

buildings thereon, both for the purposes of business and resi
dence, with the fullest confidence and assurance of having a
perfect title to \ their property, inasmuch as the tracts upon
which their lots were situated were entered before any other
appropriation had been made of them, under special instruc
tions from the General Land Office, and, as they believe, in
conformity with law. Such is a fair statement of the facts on
the part of the occupants of "Portage City," down to the
purchase made by Judge Guppey, as trustee, for their benefit;
under the pre-emption law of May 23d, 1844, and under which
they now claim.
I proceed, in the next place, to consider the conflicting title
of the State of Wisconsin to the lands in question, and will
endeavor to show that the State has no just right to the land
in controversy, and never, bad ; and that the selection, as made
by the governor, was subsequent to the entry of the town site
of Portage City by Judge Guppey, and therefore void.
On the 8th of August, 1846, there was granted to the State
of Wisconsin, by act ofrCongress of that date, on the admission
of such State into the Union, for the purpose of improving- the
navigation of'the Fox and Wisconsin rivers in the Territory of
Wisconsin, and of constructing a canal to unite the said
rivers at or near the pprtage, a quantity of land, equal to one-
half of three sections in width, on each side of said Fox river
and the lakes througn which it passes, from its mouth to the
point where the Portage canal shall enter the same, and on
on each side of. said canal, from one stream to the other,
reserving the alternate sections to the United States ; to be
selected under the direction of the governor of said State, and
such selection ito be approved by the President of the United
States. The second section of the same act provides, " that as soon
as the Territory of Wisconsin shall be admitted as a State
into the Union, all lands granted by said act shall be and be
come the property of said State, for the purpose contemplated
by said act, and no other;" provided " that the legislature of
said^State shall agree to accept said grant upon the terms spe
cified in the act." See U.S. Statutes at Large, vol. 9, page 83,
sections 1 and 2.
The State of Wisconsin was admitted into the Union on the
,29th of May, 1848, and formally accepted tbe above-mentioned
grant of land for the improvement of the Fox and Wisconsin
rivers by act of the legislature of June 29, 1848. See Revised
Statutes of Wisconsin, page 765.
At the time of the passage of the act of Congress of Aug. 8,
1846, by which the grant of lands aforesaid was made to the

State, a greater part of that portion of land lying west and
north of Fox river was occupied and claimed by the Menomo
nee tribe of Indians, and their title and occupancy was not
finally extinguished until the 1st of June, 1852, as aforesaid,
by their removal from the lands.
On the 8th day of July, 1852, the tracts' of land in contro
versy, together with a long list of other lands, were selected
by Hon. Leonard J. Farwell, then governor of Wisconsin,
under the supposed provisions of said grant made by the
act of Congress of August 8th, 1846, as aforesaid, subject to
the approval of the President — the selection of the said land in
controversy having been made by the said governor after the
aforesaid entry of the town site of Portage City, by Judge
Guppey, as aforesaid.
. On the 28th of August, 1852, the • President of the United
States approved of the aforesaid selection of land now in con
troversy as made by the said governor, in ignorance of its being
in conflict with the entry of these tracts in section 5, township
12 north, of range 9 east, for the inhabitants of Portage City,
as 'the returns of sales from the land office at Green Bay for
the month of June, 1852, were not received at the General
Land Office at Washington city until September the 4th of that
year — several days subsequent to said approval.
It is proper here to remark, that the approval of the Presi
dent was made by him "subject to any right which may exist
at the date of the approval" which would leave the inference
that no reservation of any specific tracts of land had been made
to the State, and that his approval was necessary to designate
them from the lands reserved to the United States, or which
had been sold to individuals. See letter of Commissioner to the
Secretary of the Interior, dated August 28£%< 1852, as per
Exhibit (G).
Subsequent to this approval by the President, as will be seen
by the correspondence between the Commissioner of the Gene
ral Land Office and the register and receiver of the' Menasha
land office, in July, 1853, and April, 1854, the Commissioner
comes to the conclusion that the entry made by Judge Guppey
was good and valid as to that part which was situated on the
lands which had fallen to the United States on the partition,
but erroneous for so much as was situated on the selection made
by the governor for the State of Wisconsin; and he thereupon
directed the certificate of purchase No. 15,781, which had been
issued by the register of the land office at Green Bay, dated
June 1st, 1852, to Judge Guppey, in trust for the inhabitants of
Portage City, to be cancelled, and a new certificate of the same
number issued in lieu thereof for lots 5 and 6, in section 8, town-

shin 12 north, of range 9 east, upon which a patent was issued
to Judge Guppey on the 28th of April, 1854— the entry for the
remainder of the tracts as embraced in the original certificate
of purchase, being considered as rejected. See original certi
ficate of purchase, with a memorandum upon its face that a new
certificate had been issued in lieu thereof for lots 5 and 6 of
section 8, township 12 JV., of range 9 east— Exhibit (H,)
In a letter written by the Commissioner of the General Land
Office to the Register and Receiver at Menasha, Wisconsin, of
February 14th, 1853, he uses this emphatic language as to that
portion of the entry, for wliich he directs a new corrected cer
tificate to be issued, to wit : " This office is clearly of opinion
that the lots 5 and 6 of section 8, in township 12 north, of range
9 east, were legally sold on the 1st of June, 1852, to Joshua J.
Guppey, in trust, <&c, under the act of 23d of May, 1844."
Thus admitting that the act of May 23d, 1844, was fully in
force in that part of the country, and would have applied to
the tracts rejected also, if the settlement by the occupants of
tiie town site of Portage City had been made prior to the pass
age of the law of August 8, 1846, making the grant to Wis
consin. The correspondence referred to, therefore, shows that the
Commissioner places his rejection of the tracts entered by
Judge Guppey in section 5, upon the ground that the title of
the State of Wisconsin, vested in the outnumbered sections,
from the passage of the act of August 8th, 1846, making the
grant, and that any settlement after that time could not divest
the State of rights rthus acquired. See letters of the Commis
sioner to ths Register and Receiver at Menasha, Wisconsin,
dated July 30th, 1853, and April 28th, 1854, marked as Exhi
bits (I and K). , ,
He further states, in his letter of February 14th, 1853, " that
at the time of giving instructions to allow the entry of the
town-site of Portage City, under the act of May 23d, 1844, the
books of the office were not so prepared as to indicate the fact
subsequently disclosed, that the grant to the State of Wiscon
sin, by the act of August 8, 1846, for the improvement of the
Fox and Wisconsin rivers and canal, included section 5 as one
of the odd-numbered sections within three miles of said rivers,"
&c. He admits that the act of 1844 would have been in force
within the limits of the " Menomonee cession," if the occupants
of Portage City had made their settlement prior to August 8
1846. 5 '
It remains for us, therefore, to show that the construction
given to the aet making the grant to Wisconsin, by the Com-

missioner, is not in conformity with law as the same has been
construed by the Supreme Court of the United States in similar
cases, and also that a proper view has not been taken of the
Indian title operating upon this grant prior to its extinguish
ment by the United States.
In giving this construction to the act of 1846, the Commis
sioner assumes that the odd numbered sections within the limits
specified in the act, from which the selections were to be made
by the governor, to wit : " A quantity of land, equal to one-half
qf three sections in width, on each side qf Fox river, and the
lakes through which it passes from its mouth to the point where
the Portage canal shall enter the same, and on each side qf said
canalfrom one stream to the other" were specifically granted to
the State when no such description or designation had been
made by the terms of the grant, and when, in point of both fact
and law, the governor had as much right to select from the
even as from the ocM-numbered sections.
The words of the grant are, " A quantity qf land equal [to
one-half of three sections in width ; but no allusion to odd or
even numbered sections. And although the State had the ulti
mate right to the fee, and a present and immediate interest by
virtue of such general grant in 1846, to a certain estimated
quantity of land, as against the United States, to be afterwards
surveyed and selected within certain limits prescribed by the
grant ; still it had no such particular right to the odd-mim-
bered sections of land, until they were made certain and dis
tinguishable from other lands, by the extinguishment of the
Indian title, the survey, tbe selection by tbe governor, and ap
proval by the President.
So a distinction has always been taken by the courts be
tween grants that are executed and such as are executory, and
require subsequent acts of performance to perfect them. An
executed grant is where no subsequent acts are required to be
performed by the parties to it, or either of them, to render tbe
grant immediately operative, specific, and effectual for the
purposes intended by it. Whereas an executory grant requires
subsequent acts to be performed, to give it life and effect ; and
whicfi must be performed, especially where by its terms dm.
option is given to tbe grantee, as in the case of the grant, to
the State of Wisconsin, according to such terms, in all that is
requisite to the completion of such grant, before tbe absolute.
title can vest under it.
This principle of law was maintained. by the decision of the
Supreme Court of the United States in the case of Rutherford
vs. Greme's heirs, reported w. 2d Wheat&n's Reports, 196,
" The State of North Carolina, in 1780, passed an act reserv-

¦ing a certain tract of country, to be appropriated to its officers.
and soldiers; and in 1782, after granting 640 acres m the
territory reserved to each family that had previously settled
upon it, and appointing commissioners to lay oft, in one or
more tracts, the land allotted to the officers and soldiers
proceeded to enact that 25,000 acres of land should be allotted
for and given to Major General Nathaniel Greene, his heirs
and assigns, within the bounds of the lands reserved for the
use of the army, to be laid off by the aforesaid commissioners, .
as a mark of the high sense the State entertained of the
extraordinary services of that brave and gallant officer. In
pursuance of this law; the commissioners allotted 25,000 acres
of land to General Greene, and caused the tract to be sur
veyed and returned to the proper office. The manner under
which Rutherford claimed is not very clearly stated in the case.
The decision turned altogether on the validity of the title of
General Greene, and the date at which it commenced;" and
the court said " that the general gift of 25,000 acres lying in
the territory reserved, became, by the survey, a particular gift
of the 25,000 acres contained in the survey." And after ex
amining the title very fully, the court in conclusion say :
" It is clearly and unanimously the opinion of the court, that
the act of 1782 vested a title in General Greene to 25,000 acres
of land, to be laid off within the boundaries allotted to the
officers and soldiers, and that the survey made in pursuance of
that act and returned March 3rd, 1783, gave precision to that
title and attached it to the land surveyed.
The decision ofthe case above referred to, as was stated by the
court, turned altogether on the validity of Greene's title and
the date at which it commenced, and -it was determined that the
general gift to General Greene of the 25,000 acres became by the
survey a particular gift, and that it was the survey which gave
precision to the title and attached it to the land surveyed, so that
the title to the particular land as designated by the survey
commenced in that case with the date of the survey.
This is a case directly in point with the one now under con
sideration. For we contend that this was a general grant for
an estimated quantity of land, it is true, but which could not be
reduced to certainty, so as to attach it to any particular tracts
within the limits of the grant, until the Indian title was
extinguished, the land surveyed, the selection by the governor,
and the approval by the President. There was an option given
to the governor of the State in making the selection, by the
terms oi the grant, upon which it was made to depend for
certainty; and the title ofthe State could not be considered as

vested in any particular tracts of land, until that option had
been exercised and approved by the President.
The survey of section 5 in township 12 north, of range 9 east,
upon which "Portage City" is situated in part, was approved
November 8, 1851 ; the Indian title was extinguished by their
removal from the lands in coutroversy prior to the 1st day of
June, 1852 ; the entry of the tracts in section 5, township 12,
range 9 E., by Judge Guppey, for the occupants of Portage
City, was made June 1st, 1852 ; and the selection of the same
land by Governor Farwell, for the State of Wisconsin, under
. the grant of 1846, was not made until the 8th day of July, 1852,
and approved by the President on the 28th day of August in
the same year.
At the time of the purchase by Judge Guppey, there was
no conflicting claimant, and no law of Congress ' which pro
hibited such an entry, and no order or other act on the part of
the Commissioner of the General Land Office reserving the
same from sale ; but, on the contrary, the law of May 23d,
1844, authorized such purchase, as was admitted by said Com
missioner, unless, as he afterwards decided, the State of Wis
consin had a vested right in all the odd-numbered sections
within the limits from which the selections were to be made,
from the date of the passage of the act of Congress of August
8, 1846, making the grant.
This opinion of the Commissioner we have shown to be er
roneous, and in direct conflict with the decision of the Supreme
Court of the United States in the case of Rutherford vs.
Greene's Heirs, as reported in 2d Wheaton's Reports, page 196.
We will presently show that the same doctrine has been re
examined, and fully sustained, in the very recent case of John
Charles Fremont vs. The United States, decided at the
December term of said court in 1854, and reported in Howard's
Reports, page 542.
On the 29th day of February, 1844, his excellency Manuel
Micheltorrena, then governor of California, granted to Don
Juan Bautista Alvarado the tract of land known by the name
of " Los Mariposas," to the extent of ten square leagues, within
the limits of the Snow Mountains (Sierra Nevada), and the
'rivers known by the names of the Chanchilles, the Merced,
and San Joaquin, as his property ; and after reciting " that the
necessary requirements according to the provisions of the laws
and regulations had been previously complied with," proceeds
in the name of the Mexican nation to grant him the aforesaid
tract, declaring the same by that instrument to be his property
in fee, subject to the approbation of the most excellent " depart
mental assembly," and the conditions annexed to the grant.

10
It was argued in the above case " that the description is so
vague and uncertain that nothing passed by the grant, and tha't
he had no vested interest until the land was surveyed, and the
part intended to be granted severed by lines or known bound
aries from the public domain. But this objection cannot be
maintained. It is true, that if any other person within the
limits where the quantity granted to Alvarado was to be
located, had afterwards obtained a grant from the Government
by specific boundaries before Alvarado had made his survey,
the title of the latter grantee could not be impaired by any
subsequent survey of Alvarado."
So we contend in this case, that the grant to the State of '
Wisconsin in 1846 was for an estimated quantity of land called
by the court in the case of Rutherford vs. Greene's Heirs, " a
general gift?' which was estimated by the length of the im
provement to be made by the State, and by the width of the
one-half of three sections on each side of Fox river and the
lakes through which it passes, from its mouth to the point
where the Portage canal shall enter the same, and on each
side of said canal from one stream to the other. But there were
no specific tracts designated by wliich the lands of the State
could be known from any other lands; and the entry of
Judge Guppey, for the inhabitants of Portage City, having
been made after all incumbrances had been removed from
section 5 by the survey and removal of the Indians, and prior
to the selection by Gov. Farwell for the State, we contend, upon '
the authority of the two cases of Rutherford vs. Greene's Heirs,
and Fre'mont vs. The United States, that the State of Wiscon
sin had no vested right in the particular tracts entered, either
at the date of the grant in 1846, the date of the admission of
the State into the Union on the 29th of May, 1848, or at the
time of the entry by Judge Guppey on the 1st of June 1852 ;
and that the entry of Judge Guppey as originally made is legal
and valid, and should be reinstated, and a patent issued for
the tracts in section five.
The Supreme Court of the United States say further, in the
case oi Fremont vs, The United States, that " as between indi;
vidual claimants from the Government, the title of the party
who had obtained a grant for the specific Und would be the •
superior and better one." For, by the general grant to
Alvarado, the Government did not bind itself to make no
other grant within the territory described until after he had
made his survey^ But, as between him and the Government,
he had a vested mterest in the quantity of land mentioned in
the grant to be afterwards laid "off by official wS^S the'

11 i
territory described, which passed from the Government to him
by the execution of the instrument granting it.
And in conclusion the court say, that u the principles decided
in this case (Fremont vs. The United States) appear to be con
clusive as to the legal effect of the giant to Alvarado. It
recognises a general principle of justice and municipal law, that
such a grant for a certain quantity of land by the government,
to be afterwards surveyed and laid off, within a certain ter
ritory, vests in the grantor a present and immediate interest. In
the language of the court, the general gift becomes a particular
gift when tlie survey is made."
See extracts from the decisions of the Supreme Court of the
United States, in the cases qf Rutherford vs.- Greene's Heirs,
and John Charles Fremont vs. The united States, reported in
2nd IVheaton's Reports, 196, and in 16th Howard's Reports,
542. Exhibit (L.)
The General Land Office has also in its practice favored this
doctrine to a considerable extent, in regard to the disposition
of the lands within the boundaries of the district of country
from which the State of Wisconsin was authorized to make her
selections, by permitting the odd, as well as the even-numbered
sections, to be entered by individuals, after the date of the grant
in 1846, and the admission of Wisconsin into the Union as a
State in 1848 ; and although it may be replied that most, if not
all of those entries were subsequently approved or legalized by
acts of Congress, still if the title of the State of Wisconsin vested
absolutely in the odd-numbered sections, eo nomine, from the date
of the grant in 1846, as the commissioner supposed when he
directed the register and receiver at the Menasha land office to
ascertain by testimony whether the settlement of the occupants
of the town site of Portage City commenced before that date or
not, and the fate of the inhabitants of that town.made to depend
upon that question, it was not in the power of Congress thus to
have legalized said sales, without the consent of the State,,
expressed in its legislative capacity, and there is nothing now
to prevent the selection of these lands, strictly according to law,
as a part of said grant ; that is, if the commissioner was right
in determining that the title of the State vested in the odd-num
bered sections from August 8th, 1846, whenthe grant was made.
See as to entries made and permitted mthe odd-numbered
sections subsequent to August 8th, 1846, and May 29th, 1848,
the commissioner's letter of May 30th, 1856— Exhibit (M.)
The commissioner says in his letter, that a large quantity qf
land was permitted to be entered in the outnumbered sections,
within the limits from which the said grant was to be made,
subsequent to the act of May 29fh, 1848, admitting Wisconsin

12
into the Union as a State, besides the specific tracts enumerated
in his letter. It will also be seen, on examination, that out
numbered section 33, in township 13 north, of range 9 east,
also within the said limits, has been selected and appropriated
by the Government for military purposes, and made a part of
the " Military Reserve" at Fort Winnebago in 1851. What
right had the United States to make this appropriation of out
numbered section 33, if the title of Wisconsin was fully vested
in all the outnumbered sections from August 8th, 1846 ?
I come now to consider the effect of the Indian title and occu
pancy upon the public lands, before that title is extinguished,
according to the laws of the United States, and the usages of
the Government, as practised by the Department exercising
control over the subject, as applicable to the above mentioned
grant to Wisconsin, and the entry by Judge Guppey of parts of
section five, town. 12, range 9 E., as a town site for the occu
pants of Portage City, under the act of May 23rd, 1844.
In the case of Fletcher vs. Peck, reported im, 6 Cranch's Re
ports, 87, the court remarked, " that it had been doubted whe
ther a State can be seized im, fee of lands subject to the Indian
title; and whether a decision, that they were seized in fee,
might not be construed to a decision that their grantee might
maintain an ejectment for them, notwithstanding the Indian
title." " The majority of the court was of opinion that the
nature of the Indian title, which is certainly to be respected by
all courts until it is legitimately extinguished, is not .such as to
be absolutely repugnant to a seizin in fee on the part of the
State." But that " the Indians are acknowledged to have an
unquestionable right to the lands they occupy, until that right
shall be extinguished by a voluntary cession to the Govern
ment. Cherokee Nation vs. The State of Georgia, 5 Peters'
Reports, page 1.
And in the case of Danforth vs. Wear, 9 Wheaton's Rep.
673, the court says, "that although the Indian title is subor
dinate to the absolute ultimate title of the United States, that
still, as to lands surveyed within the Indian boundary, this
court has never hesitated to consider all such surveys and grants
fit0*!7 T°ld' .B^ aS the total ration of the grant, alcord-
ng to the case stated, goes to its validity as to thlt part of the
land also which lay without the Indian boundary, there must
Sf-fSfi i°™ °Se1' gr°Und f°r s»staining the 5'ecision than
thaWhich invalidates surveys executed in the Indian ter-
See also, in the two cases of Preston vs. Browder and Dan,
forth v?. Thomas, decided in the Supreme CourTof the United
States m the year 1816, and reported in Wheaton's Reporte,

13
yob , at pages 115 and 155, the court decided that " the
inviolability of the Indian territory is fully recognised."
I have referred to these authorities for two purposes. First,
to show that the title of the State of Wisconsin to the grant in
question could not vest until the extinguishment of the Indian
title to the " Menomonee cession ;" and secondly, that the com
missioner committed an error also in directing an investigation
in regard to the settlement and occupation of the town site of
Portage City prior " to such extinguishment. For, according
to the late decision in the General Land Office, in the case
of William Volk's preemption, having reference to this iden
tical " Menomonee cession," it was determined that any settle
ment upon it, prior to the extinguishment ofthe Indian title and
occupancy, was a trespass, forbidden alike by the laws and
treaties of the United States, and that no right or title could be
acquired by such settlement.
This doctrine, which is unquestionably correct, will apply as
well to communities as to individuals. And although the set
tlement of the present claimants of the said town site com
menced in 1849, they do not base their rights fo a pre
emption under the act of March 23d, 1844, upon a settlement
and occupancy prior to the extinguishment of the Indian
title. They were settled upon, and in the occupancy of these tracts
of land in controversy in section five, in town. 12, range 9,
east, as a town site, when the Indians were removed, and have
continued so to occupy them up to the present time. Tbe act
of Congress provides as follows : " That whenever any portion
of the surveyed public lands have been, or shall be, settled
upon and occupied as a town site, and therefore not subject to
entry under the existing pre-emption laws, it shall be lawful, in
case such town or place shall be incorporated, for the corporate
authorities thereof, and if not incorporated, for the judge of the
county court in which such town may be situated, to enter at
the proper land office, and at the minimum price, the land so
settled and occupied, in trust for the several use and'benefit of
the occupants thereof, according to their respective interests;
&c." The town not having been incorporated, the entry was made
by Judge Guppey as county judge, ahd a satisfactory division
made by him, as trustee, according to the respective interests
of the occupants. It was made after the extinguishment of the
Indian title, after the lands were surveyed, and before the
selection by the governor of Wisconsin.
The State of Wisconsin does not now contest their right to
this land, and interposes no objection to the present application

14
of the inhabitants to have the original entry of Judge Guppey
reinstated, and their title confirmed.
It is shown, also, that there are many families residing upon
this land, whose losses will be great, if the decision should m
the end be adverse to the legality of their entry.
In further illustration of the nature and effect of the Indian
title " under the treaties and laws of the United States, as ap
plied to the case ofthe inhabitants of Portage City agamst the
State of Wisconsin, I will add some additional cases, as decided
by the Supreme Court of the United States, which appear^ to
me to be directly in point, and conclusive as to the doctrine
upon which the present question rests, as settled by the more
recent decisions of that court.
In the case of Worcester v. The State of Georgia, reported in
6th Peters, from page 556 to 559,' the Supreme Court says,
that "from the commencement of our government^ Congress
has passed acts to regulate trade and intercourse with the In
dians, which treat them as nations, respect their rights, and
manifest a firm purpose to afford that protection which treaties
stipulate. All these acts, and especially that of 1802, mani
festly consider the several Indian nations as distinct political
communities, having territorial boundaries within which their
authority is conclusive, and as having a right to all the lands
within those boundaries ; which is not only acknowledged, but
guarantied by the United States.
" The treaties and laws of the United States contemplate the
Indian territory as completely separated from that of the States,
and provide that all intercourse with them shall be carried on
exclusively by the government of the Union. The Indian na
tions had always been considered as distinct independent politi
cal communities, retaining their original natural rights, as the
undisputed possessors of the soil from time immemorial. The
very term "nation," so generally applied to them, means a
people distinct from others. The constitution, by declaring
treaties already made, as well as those to be made, to be the
supreme law of the land, has adopted and sanctioned the pre
vious treaties with the Indian nations, and consequently admits
their rank among those powers who are capable of making
treaties. " Tbe words treaty and nation, are words of our own lan
guage, selected in our legislative and diplomatic proceedings
by ourselves, having each a definite and well understood mean
ing. We have applied them to Indians as we have applied
them to the other nations of the earth, and they are applied to
all in the same sense."
Such was the ruling of the Supreme Court in the case

15
of Worcester v. The State qf Georgia, above cited in 6th Pe
ters 556.
In the case of Games and others v. Nicholson and others,
decided by the Supreme Court of the United States, at January
Term 1850, and reported in 9th Howard's Reports, pages 364
to 365, the court say, in reference to the grant made to the
State of Mississippi, of the 16th sections for the use of schools :
" That the State of Mississippi acquired a right to every 16th
section by virtue of these acts, on the extinguishment of the
Indian right of occupancy ; the title to which, in respect to the
particular sections; became vested, if vested at all, as soon as
the surveys were made, and the sections designated."
In regard to the validity of the Indian /title of occupancy,
when Reservations are made to Indians of specific quantities of
land, to be selected and located under the direction of the
President, they further say : " There is no doubt but that all
persons (meaning Indians) in whose behalf Reservations were
made under the Treaty, and who were residents upon any par
ticular Tract, and had made improvements thereon at its date,
were entitled to the section including their improvements, in
preference fo any other right that could have been previously
acquired under the government ; because the land embraced
within the section, was so much excepted from the cession," (by
the Indians.) " No previous grant of Congress could be para
mount, according to the rights of occupancy which this govern
ment has always conceded to the Indian tribes within their
jurisdiction." " It was so much caryed out of the territory ceded (by the
Indians,) and remained to the Indian occupant, as he had
never parted with it. He holds, strictly speaking, not under the
treaty of cession, but under his original title, confirmed by the
government in the act of agreeing to the Reservation."
This case, which is a very recent one, having been decided
in 1850, shows that an Indian Reservation will prevail against
a prior grant to the State of the 16th Section for the use of
schools, although no act, subsequent to the date of the grant,
is required to be performed on the part of the State, to render
the title effective, upon the survey of such lands by the United
States — and that it is competent for the United States, upon the
extinguishment of their title by Treaty, even though they may
have granted to the State the 16th Sections for the use of
schools, within the entire limits of such State, to reserve to the
Indians individually, particular sections of said lands, and if,
upon making the survey, it should turn out that any of those
reservations should embrace any of the sixteenth sections thus
granted, the Indian title will hold good notwithstanding the

16
previous grant to the State. Gaines et al vs. Nicholson et al.
9 Howard's Rep. 356. See Exhibit 0.
I also refer to the very recent case of Cooper vs. Roberts, de
cided at December Term 1855, reported 18th Howard p 173
—where, in giving a construction to the grant made to thebtate
of Michigan of the 16th sections for the use of schools, in
reference to the time when such grants take effect, they say :
"We agree that until the survey of the township, and the
designation of the specific section is made, the right of the State
vests in compact, binding, it is true, the public faith, and de
pendent for execution upon the political authorities. ^°urt?
of justice have no authority to mark out and define the land
which shall be subject to the grant. But when the political
authorities have performed this duty, the compact has an ob
ject upon which it can attach, and if there is no legal impedi
ment, the title ofthe State becomes a legal title" (not by relation
back to the date of the grant, but from the time the survey is
made). " The jus ad rem, by the performance of the executive
act (the survey) becomes a jus in re, judicial in its nature,and
under the cognizance and protection of the judicial authorities,
as well as others." Cooper vs. Roberts, 18th Howard's Re
ports, 173. See Exhibit P.
If a survey of the township is thus necessary to vest the fee
simple in the State, to the particular 16th sections granted for
the use of schools, how much more important and necessary
was it, in a legal point of view, in the case of the grant to Wis
consin, according to the authorities I have cited, that the In
dian title and occupancy of the Menomonees should have been
extinguished, the land surveyed, a selection by the Governor,
and an approval by the President, before the fee simple title
could have been considered as vested under the grant of 1846
to the State. I therefore contend, with confidence, that no act
could have been performed on the part of the Governor of Wis
consin to secure the approval of that portion of the odd-num
bered sections to the State, which were embraced within the
Menomonee cession, until the extinguishment of the Indian title,
and their removal from the lands in the first place ; secondly,
by a survey of the lands into odd and even-numbered sections ;
and thirdly, by a proper designation of the particular lands in
tended to be granted, by a selection by the Governor, and ap
proval by the President, as specified by the terms of the grant.
Dr. Frailey, an examining clerk in the Department of the
Interior, to whom this case was referred by the Secretary for
an examination and report, previous to its submission for the
opinion of Attorney-General Cushing, says, in his argument
against the inhabitants of Portage City : " that there are but

17
two principles involved in this whole matter : First, did ihe
act of August 8, 1846, make ¦provision in itself for the convey
ance of title to the State ? Was it not, in fact, a perfect grant
dependent only on the acceptance qf the same by the State, and
the designation qf which set qf alternate sections the State would
select — the odd or even-numbered, ones ? and secondly, if it was
not, and the question, is an open one, in reference to the mere
question of passing the title, was the right of pre-emption qf the
inhabitants of Portage City, under the act of May 23d, 1844,
such a one as to take precedence qf that of the State, under the
act of August 8, 1846, merely because the list, containing the
particular land im, question, was not submitted for the formal
approval qf the President, until after the town improvements
had been made, and a claim, thereto pref erred."
He then quotes from the 2nd section of the act of August 8,
1846, which provides that "All the land granted by the act,
shallle and become the 'property' of the State, for the purposes
contemplated, as soon as the Territory of Wisconsin shall be
admitted as a State into the Union ; provided the legislature
thereof shall accept the grant," c&c, and then assumes, " that it
certainly was not contemplated by Congress that such land
should become the property ofthe State, only, when the particu
lar parts of an odd or even section, liable to be granted ai the
date qf the law, should have been selected by the Governor, list
ed, and submitted for the approval of the President'' He then
declares that " it was not so considered by the General Land
Office in the execution of the law, when, as in other like in
stances before and since, the limits were reserved for the subse
quent determination of the 'specific tracts' embraced by the
grant on one side, and those to whom the double minimum, at
tached on the other"
Now it so happened in regard to this particular land in con
troversy, that so far from Commissioner Butterfield having con
sidered the title as vested in the State of Wisconsin, that he did
directly to the contrary of such inference or presumption, in his
letter to the Register and Receiver at the Green Bay Land Of
fice, Wisconsin, dated General Land Office, April 9, 1852,
specially instruct them as follows : — " On tlie point however in
cluded in this case, you are hereby instructed that, after the 1st
qf June next (1852), upon application being made ly the proper
authority, as now (referring to the original application made
ly Judge Guppey), with similar testimony accompanying the
same ; and with the following additional evidence, you would '
le authorized, by the Law . of May 23rd, 1844, to permit the
entry of every legal subdivision included in the Town, to the
extent of 320 acres." See his letter, Exhibit B.
2

18

It also appears from the Letter of Commissioner Hendricks,
dated General Land Office, May 30, 1856 (see Exhibit M), that
in addition to this entry, as made by Judge Guppey, for the
inhabitants of Portage City, under the above-recited instruc
tions of Commissioner Butterfield, " that, 'since the passage qf
the Act of Congress, approved August 8, 1846, grantmg land
for the improvement of the Fox and Wisconsin rivers, there has

and subsequent to the Act of May 29, 1848 (admitting Wiscon
sin into the Union), as shown by the looks and records im, his
office," and then goes on to recite a number of the tracts by
description, which have been thus sold. S?e Exhibit M.
It also appears by the records' of the General Land Office,
that odd section No. 33, Township 13 North, of Range 9 East,
within said limits, had been permitted to be selected, and added
to the " Military Reservation" at Fort Winnebago, for govern
ment uses ; and that, notwithstanding its subsequent selection
by the Governor of the State under the grant, it had been
stricken from the List qf Selections when it was presented to
the President for his approval — and the right of the United
States to this 33d odd numbered section now appears to stand
unquestioned. So in regard to the time at which the fee simple title to the odd
numbered sections would vest in the State of Wisconsin, Com
missioner Butterfield further decided in conformity with the
cases I have cited from the decisions of the Supreme Court of the
United States, " that the land formed apart ofthe Menomonee
cession, and leing included in that cession, would not become
public land, under the treaty wifh the Menomonees, until after
the 1st qf June, 1852, and that before that time, no question in
relation to the sale of any portion of it, should be entertained by
the Register and Receiver" and then instructs them as afore
said, that, after that date, Judge Guppey might be permitted
to make his " town site entry." As a matter of course, there
fore, he did not consider the title to this land as vested in fee
simple in the State of Wisconsin, under the grant, at that
time. Doct. Frailey then declares, " that ihe Act qf the 8th of
August, 1846, had been heretofore regarded and treated by the
General Land Office and by the State, as one conveying the
fee simple title in the lands to which it relates, within the three'
mile limits designated by the terms of the grant."
Now I have shown by the decisions cited, as having been
made by the Supreme Court ofthe United 'States, and of recent
date, that the fee simple title does not attach to the lands

19
granted, until the Indian title is first extinguished, the lands
s-urveyed, and designated 'by selection, and then after all these
acts have been performed, to make it perfect, under the terms
of the grants, the Lists of Selection must be approved by the
President. Doct. Frailey admits and says " that the; lists (of lands selected)
were prepared from time to time, as the land was in a situa
tion to be designated." " That the first list was dated January
13, 1849, and approved May 9, 1849 / that the list, including the
land now m controversy, was reported July 8, 1852, and ap
proved August 23, 1852 ;" and concludes by saying, "that the
survey embracing a large portion ofthe land in said lists, and
that now the subject of contest, had not been executed at a period
to allow an earlier selection."
Thus showing and admitting that the particular lands granted
to the State could not le designated, until the surveys were
made ; and that the mode adopted, by which to perfect the title
to the State, was by making out lists of the particular tracts
selected, and then procuring the approval of such lists by the
President, as directed "by the act of Congress making the
grant. He also refers1 to some letter of the Governor of Wisconsin,
in which he expressed the intention of selecting the odd num
bered sections.
Even if there had been a letter from the said Governor to
the Commissioner of the General Land Office, notifying him in
advance, of his intention to select the odd numbered sections,
such notice could not have operated upon lands to which the
Indian title had not been extinguished, and which had not then
been surveyed. The selection could only have been made in
the particular manner prescribed by the act making the grant.
It must be something more than a mere intention expressed —
it must have been an actual selection', and after the lands were
in a situation to be designated by sections from the other lands
of the United States.
I come now to review the opinion of Attorney-General Cush
ings and will endeavor7 to show that in coming to the conclu
sion he did, adverse to the rights of the inhabitants of Portage
City, he has most probably; in the multiplicity of business,
overlooked some of the most important recent decisions of the
Supretae: Court ofthe United States, both in regard t& the
nature and validity of the Indian title to lands, as recognized
by the Treaties and Laws- of this country, and as explained
and enforced by our 'highest judicial tribunal, at the present
day — and' as to the time when the absolute title in fee simple
vests in a State, to portionSof the1 public lands- under grants

20
from the United States, where the Indian title of occupancy
has not been extinguished, or where the lands have not been
surveyed at the date of such grants.
He commences by dividing the subject matters m contro
versy, under six different heads ; and first enquires, what
rio-hts were conferred upon the State of Wisconsin, by the
ter'ms of the act of Congress of August 8, 1846, granting a
quantity of land equal to one half of three sections m width,
on each side of Fox River and the Lakes through which it
passes, from its mouth, to the point where the Portage Canal
shall enter the same, and on each side of said canal, from one
stream to the other."
1. "That there be, and hereby is granted."
These words, which are at the commencement of the act
making the grant to Wisconsin, he says, are indubitably
effective terms of a grant in prmsenti. That on that day a
title, or right of title, passed from a grantor to a grantee. That
what passed, as subject matter, and by what quantity of title,
as whether in fee simple, fee base, tenancy for life, or years,
and whether in possession or reversion, or what not, remains
to be ascertained..
. 2. That the grant is to the State of Wisconsin, on the admis
sion of such State into the Union. That the admission of the
State into the Union, fixes the time, when the grant is to be
effected. That it is a grant, in so far as the grantor can make
it so, on the day of date ; but the grantee is to take only, when
admitted into the Union.
3. That, on the admission of Wisconsin, the State takes some
kind of title then ; What is it ? The act proceeds to say that
at that moment, " All the lands granted by this act, shall be,
and become the property of the said State."
These expressions in a statute, he remarks, according to the
established rules of construction, carry the fee, or at least the
whole interest and estate of the grantor, whatever that may
be. That it is true, these are not the sacramental words of a
fee simple at common law. That it is also true that the term
" property" is often used in a general sense, to cover any thing
which belongs to a person, by whatever title or tenure.
Smith y. The_ United States, 10 Peters, p. 330. The phrase,
"validity of title," he says, is, found inthe laws, defining what
conveyance by the United States of land was intended, as the
site of any public work. Resolution, Sept. 11, 1841, 5 vol.
Stat, at Large, p. 468. That its construction has been
thoroughly fixed,_ by the practice of his predecessors and him
self; and that it is taken as matter of course, in the daily busi
ness of passing on the muniments of title in fee simple.

21
4. That the grant is made to the State of Wisconsin, " for the
purpose of improving the navigation of the Fox and Wisconsin
Rivers;" the improvement to be commenced and completed
within certain prescribed dates, &c.
5. That the grant is made subject to one condition only,
to wit : " That the Legislature of said State shall agree to ac
cept such grant upon the terms specified in the act." He says,
that may be a condition, but that there certainly was no other ;
and, 6. That the thing granted is defined with reasonable cer-i
tainty. That " it is a quantity of land equal to one half of three
sections in width, on each side of Fox River, and the lakes
through which it passes, from its mouth to the point where the
Portage Canal shall enter the same, and on each side of said
canal, from one stream to the other — reserving the alternate
sections to the United States."
These are the six propositions that have been' stated by the
Attorney-General, in his opinion, by the application of which
to the subject matter in controversy, he has deduced a title in
fee simple to the State of Wisconsin, from the date of the ac
ceptance of the grant by that State. He admits that it is a con
ditional and executory grant in fee simple, to take effect and
become executed on the happening of events specified. That
these events happened. That Wisconsin was admitted into the
Union contingently, on the 3d of March, 1847, and absolutely
on the 29th of May, 1848 ; and that on the 29th of June, 1848,
the Legislature of the State of Wisconsin accepted the " grant"
in the terms of the act of Congress.
Having progressed thus far, he then sums up from the 29th
of June, 1848, as follows : The United States granted to take
effect on a certain contingency — that contingency has occurred ;
the United States granted on condition — that condition has
been performed ; the lands conveyed are described with reason
able certainty, so as to be capable of passing by words of grant.
He then asks himself the following question by way of arriving
at a conclusion, to wit : What legal construction is there to for
bid the idea of a vested title, that day, in the State of Wiscon
sin ? and answers, " I am not awarei of any." He admits that
the land is held by undivided moieties, but asks, " What then?"
" or who doubts that two proprietors may be tenants in com
mon by undivided moieties, each with a fee simple ?" that is,
the United States and State of Wisconsin tenants in common,
or co-tenants.
He says, that to enjoy in severalty, there must be a partition,
but that the partition does not make title ; nor its absence take
away or suspend title, either as between the co-tenants them-

22
selves, or as between them and the rest of the world. That
it is not material if one of the co-tenants should derive title
from the other; that they are not the less equally co-tenants
of the fee. That whoever trespasses on the lands, trespasses
against both co-tenants; and that whoever undertakes to
appropriate any part of it unlawfully, is a wrong doer in
respect-to each, &c. , .
Now, that such a tenancy in common, or co-tenancy as this,
ever existed between the United States and the State ot Wis
consin, I deny; nor could the State of Wisconsin have
exercised any ownership over the land intended to be granted,
such as a co-tenant or tenant in common may, according to
legal definitions and judicial decisions, until it was first sepa
rated from the public domain. ,
Tenants in common are such as hold by several and distinct
titles, but by unity of possession ; 2 Black. Com. 191— Bpuvier's
Law Die, vol: 2, 574 ; because none knoweth his own severalty,
and therefore they all occupy promiscuously. This tenancy there
fore happens where there is a unity pf possession merely but
perhaps an entire disunion of interest of title, and of time.
The only unity there is, is that of possession. 2 Black. Com.
192 — " They certainly have no unity of title — have they unity
of possession t As in tenancies in common, they always hold
by different titles." 2 Black. Com. 182— So that there is no
connexion in interest, but " unity of possession." — ibid.
Land given to two to be holden, the one moiety to one, and
the other moiety to the other, is an estate in common. Joint
tenants do not take by distinct halves or moieties ; and by such
grants, the division and severalty of the estate is so plainly
expressed, that it is impossible they should take & joint interest
in the whole of the tenancies. — 2 Black. Com. 193.
Tenants in common take by distinct moieties, and have no
entirety of interest. By the common law, no tenant in common
was liable to account with his companion for embezzling the
profits of the estate ; though if one actually turns the other out
of possession, an action of ejectment will lie against him. But
as for the other incidents of joint tenants, which arise from the
privity of title, or the union and entirety of interest, (such as
joining or being joined in actions, unless in the case where
some entire or indivisible thing is to be recovered,) these are
not applicable to tenants in common, whose interests are
distinct, and whose titles are not joint, but several." Estates
in common may be dissolved two ways : by uniting the title in
one tenant — or by making partition between the several
tenants in common, which 'gives them all respective several
ties."

23
Whether tenants in common should sue jointly or severally,
depends on the nature of the thing sued for, and the interest
which they have in it ; if it be for an indivisible thing, or for
damages for an injury, or nuisance to their common property,
or for breaches of covenant, or a lease made by them jointly ;
in those, and all cases falling under the same principle, they
should join ; but where they seek to recover tho estate itself, or
sue for damages on covenants for the title annexed to it, in such
cases they should sue severally. See Com. Digest, Abatement
E 10. See note 10—2 Black. Com. 194.
According to these authorities, therefore,- if there was any co-
interest whatever existing between the United States and the
State of Wisconsin, after the acceptance of the grant by that
State, it was " unity qf possession" with the remedies for inju
ries done to the property, such as have been mentioned by the
authorities above quoted.
Now, I ask if there was any possible remedy that might
have been resorted to by the State of Wisconsin, either singly,
or as a co-tenant of the United States, in case of aggression
upon the premises ? None whatever. It is a mere theory,
without any practical application whatever, For it is well
known that if there had been any trespass committed upon the
lands prior to the extinguishment of the Indian title, it would
have been treated as an unlawful encroachment upon the In
dian Territory, and the trespassers removed and punished, if
punished at all, accordingly, by the United States alone. The
State of Wisconsin would have had no lot or parcel in the mat
ter. How then can it be said, in a legal point of view, that
there was unity of possession ?
It seems to me that the proper way of stating this case,
would have been, after describing the thing intended to be
granted, and the terms and conditions of the grant, to have
added, " which said lands have not as yet been surveyed ly the
United States, nor has the Menomonee Indian title been extin
guished thereto." Such a statement as I have suggested, would
at once have brought the whole subject to view, and, in my
judgment, would have facilitated the examination of authori
ties, bearing more directly, and in a more condensed form,
upon the leading points in question.
Now, I have no objection to most of the legal theories stated
in the six foregoing propositions, or to the definitions of them,
merely as theories, or when applied to proper objects for them
to operate upon, as for instance, the words fee simple, when
applied to unencumbered lands, where there is nothing to pre
vent them from attaching in prsesenti, &c. But if that term
should be applied to land, to which the Indian title had not

24
been extinguished, and not as yet surveyed by the Govern
ment, as in the present instance, I should most certainly deny
its legal application, whatever I might think of the definition
of the term, as a mere matter of theory.
And in this view of the case, I think I am well sustained by
authority embracing the most recent decisions of the Supreme
Court, both as to the effect of Indian occupancy, claiming in
their own right, and the public surveys, upon the title to the
land. In his sixth and last proposition as aforesaid, the Attorney
General assumes that the land granted to the State of Wis
consin was defined with reasonable certainty. Now, I contend
that before the State was in a condition to designate, select, or
assume an ownership over the land granted, that two things
were absolutely necessary to be done. First, the extinguish
ment of the Menomonee Indian title ; and, secondly, a survey of
the lands by the United States.
The land granted was to be a quantity equal to one half of
three, sections in width on each side of Fox river, and the lakes
through which it passes, &c. Now how could this be deter
mined otherwise than by a survey ? and until the survey was
made its limits would be indefinite. Then, again, unless the
land under the circumstances of this case was divided into sec
tions, how could Wisconsin claim any portion of them as
belonging to that State ? For although the theory of a tenancy
in common, or co-tenancy, might be well enough defined before
such survey was made, 1 think it would be very difficult to give
it a practical operation until it had been preceded by the sur
vey. I take it for granted that a grant made to a State of
section 16 in every township for the use of schools, would be
quite as definite as to " reasonable certainty" as the grant of
land to the State of Wisconsin now under consideration.
Now let us see at what point of time the fee simple title
would attach to such a State, according to the decisions of the
Supreme Court of the United States, in such a case.
In the case of Cooper vs. Roberts, decided by said Court at
December Term, 1855 (18 vol. Howard's Reports, 181), the
following principle was determined, as the time when the fee
simple title would attach to grants of the 16th Section for the
use of schools, where the land had not been surveyed.
The State of Michigan was admitted into the Union, with an
unalterable condition : " that every section, No. 16, in every
township of the public lands, and where such section has been
sold, or otherwise disposed of, other lands equivalent thereto.
and as contiguous as may be, shall be granted to the State for
the use of schools."

25
In a contest in ejectment, in which suit was brought to
recover a portion of one of the 16th sections upon an adverse
title to that of the State of Michigan, the Court decided the
title of said State, under her grant, to this land, to be as follows :
" We agiee, that until the survey of the Township, and the
designation of the specific section, the right of the State vests
in compact binding, it is true, the public faith, and dependent
for execution upon the political authorities. (Meaning that :it
must be first surveyed by order of the Executive authority of
the government, in tbe usual manner of making the surveys of
the public lands — and that before that time the courts would
not interfere in suits of ejectment, to order such original sur
veys to be made, so that the title could not vest and be enforced
by the courts, without the survey was first made in the usual
manner.) Courts of Justice have no authority to mark out
and define the land which shall be subject to the grant. But
when the political authorities have performed this duty, the
compact has an object upon which it can attach, and if there
is no legal impediment, the title of the State becomes a legal
title. The jus ad rem, by the performance of that Executive
act, becomes a jus in re — judicial in its nature, and under the
cognizance and protection of the judicial authorities, as well as
others." Cooper vs. Roberts, 18 Howard's Reports, 179. See
Exhibit P.
In the above case, it was decided, that where the public
lands were unsurveyed, that a grant of the 16th section for the
use of schools, was but a compact ; that is, an executory con
tract, binding upon the grantor, but that the title did not attach
to the land until it was surveyed.
So in regard to the grant to Wisconsin, it is but a compact,
binding upon the public faith, to see that it was executed, but
conferred no present legal title to the land in question. Nor
could the fee simple have attached under such circumstances,
until the Indian title was extinguished — the land surveyed into
sections — and the particular sections designated by selection,
with the approval of the President. For the words of the act
of Congress making the grant to the State, are : " to be selected
under the direction of the Governor of said State, and such
selection to be approved by the President of the United States."
Until this is done, the contract is not executed ; and until the
contract is executed, the title does not attach to the land. Not
so with the 16th sections. In that case, the title attaches on
the completion of the survey— as no act is required to be per,-
formed on the part of the State, nor further act on the part of
the United States. It becomes by the act of survey, a contract
executed.

26
The date of the Treaty, by which the Menomonee title to this
land was extinguished, is October 18, 1848, but it was not rati
fied by the President and Senate until the 23rd of January,
1849, and by the 10th article in said treaty it _ was to become
binding upon the parties to it, upon its ratification by the Presi
dent and Senate of the United States. There was also a pro
vision of the treaty, (the 8th article) by which the Indians were
to continue temporarily in possession for two years, and during
the pleasure of the President, after the expiration of that time.
This temporary occupancy terminated on the 1st of June, 1852.
The Attorney General quotes a number of authorities for
the purpose of showing that the Indians do not possess a fee
simple to the lands they occupy, and calls it a mere usufructu
ary occupation, capable of being extinguished at any time by
the United States. He says, that when this grant was made to
the State of Wisconsin, the fee of all the land was in the
United States, subject, in respect to a part, to the usufruct of
the Menomonees. That this usufructuary occupation was capa
ble of being extinguished by the United States, and by them
alone ; and until its extinguishment, the entire original title re
mained between them and the Indians. This is sound doctrine.
But how, then, could the State of Wisconsin be taken in as a
co-tenant, upon the admission of that State into the Union, and
her acceptance of the grant ; when the Indian title and occu
pancy was still remaining, and " the entire original title still
remained between them and the United States ?"
He then refers to the case of Mitchell and others vs. The
United States, 9 Peters 711, for the purpose of showing that it
was expressly decided by the Court, as the established law of
America, that the Government owns the original fee of the soil,
and may grant the same, while the lands remain in the posses
sion ofthe Indians, and says, that the same doctrine was delibe
rately reaffirmed in the case of the United States vs. Fernan
dez, 10 Peters 303, and then concludes by saying — " There is
no room whatever to question the law of these decisions, they
are in strict conformity with principle and precedent."
He then says, that, " there is a case of ordinary occur
rence in the United States, which illustrates the same doctrine,
and is otherwise pertinent to the question before him — that he
alludes to the various provisions of law, which assure to each
State, in which_ the public lands lie, a Section by number (16)
in each Township for the use of schools. That it is, a Legislative
grant to the State, by the United States, as in the present
case." I admit that the case of a grant to a State of the 16th Section
in each Township for the use of schools, is_ a case directly in

27
point with the one under consideration ; and for the purpose of
testing the doctrine in such cases, and showing that it is not
such as has been supposed, I will refer to the case of Gaines
and others vs. Nicholson and others, in the Supreme Court of
the United States, at January Term, 1850.
By the 12th Section of an act of Congress of March 3rd, 1803,
entitled, " An act regulating the grants of land, and providing
for the disposal of the lands of the United States, south of
Tennessee"— See Statutes at Large, p. 229— the 16th Section in
each Township was reserved and appropriated to the support of
schools within the same. It was under this act that the State
of Mississippi claimed the vacant and unappropriated' 16th
Sections within her limits for that purpose. On the other
hand, it was provided by the second article of the supplement
to the Dancing Rabbit Creek Treaty, (7 Statutes at Large,
340) made on the 27th of September, 1830, that there should
be made to the following named Indians the following Reserva
tions, to wit : " Also one Section each is allowed to Middleton '
Mackey, Wesley Train, Choclehomo, Moses Foster, D. W.
Wall, &c, to be located in entire Sections, to include their re
sidences and improvements, &c." On the 27th of August,
1832, D. W. Wall, one of the reservers, who had located on the
16th Section, sold and assigned his right and title under the
Treaty, to George S. Gaines and Allen Glover, who procured
a patent for the 16th Section to be issued to them, in pursuance
of this claim under the Treaty, by the President, on the 7th of
December, 1838. In the year 1841, George S. Gaines, Francis
S. Lyon, and the heirs-at-law of Allen Glover, deceased, insti
tuted an ejectment suit against John Hilman, who was the tenant
in possession, under the trustees of the school lands. The case
as tried in the Supreme Court of the United States, was upon
an appeal from the Circuit Court of the United States for the
Southern District of the State of Mississippi. The Supreme
Court say : " The question is one of conflicting title under the
Treaty on one side, and of the acts of Congress, appropriating
every sixteenth Section in the Township for the benefit of
schools, on the other — and that is purely a question qf law."
" That the State of Mississippi acquired a right to every six
teenth Section, by virtue of these acts, on the extinguishment
of the Indian right of occupancy, the title to which, in respect
to the particular Sections, lecame vested, if vested at all, as soon as
the surveys were made, and the Sections designated. No patent
was necessary, or is ever issued, for these school sections. The
question is, whether the general right reserved to Wall under
the treaty, to select a section of land in the ceded territory,
operated to suspend the vesting of the title in the State, until a

28
selection could be made, and a patent issued under the direction
of the President; or whether the selection of these general
floating rights, that bound no particular parcel or section, must
be made in subordination to the right acquired by the State.
" There is no doubt (say the court), but that all persons in
whose behalf reservations were made under the treaty, and
who were residents upon any particular tract, and had made
improvements thereon at its date, were entitled to the section,
including their improvements, in preference to any other right
that could have been previously acquired under the govern
ment : because the land embraced within the section was so
much excepted from the cession. No previous grant of Con
gress could be paramount, according to the rights of occupancy
which this government has always conceded to the Indian
tribes within her jurisdiction. It was so much carved out of
the territory ceded, and remained to the Indian occupant, as
he had never parted with it. He holds, strictly speaking, not
under the treaty of cession, but under his original title, con
firmed by the government in the act of agreeing to the reser
vation." Gaines et al. v. Nicholson et al., 9 Howard's Reports,
364. See Exhilit 0.
This is a case directly to the point ; and is an answer to the
supposed practice of the government, in granting the 16th sec-
, tions to the States for the use of schools, without regard to the
Indian title and occupancy upon such lands, as has been erro
neously supposed.
_ In the absence of Indian title, I have also shown that the
title of the States vests after the survey of the 16th sections,
but not before — although I admit that the title would attach as
soon as the survey was made, if there was no impediment in
the way ; but until then, the grant vests in compact, and the
State must_ depend upon the good faith ofthe United States to
see that it is executed.
The act of Congress of August 3d, 1854, provides a remedy
by which to pass the fee simple title in all grants of land to
States and Territories, where the grants themselves do not con
vey such title, or requirepatents to be issued therefor ; as in
the case of the grant to Wisconsin. That law is as follows :
Be it enacted, <&c, " That in all cases where lands have been,
or shall hereafter be, granted by any law of Congress to any
one of the several. States and Territories; and where said law
does not convey the fee simple title of such lands, or require
patents to be issued therefor ; the lists of such lands which have
been, or may hereafter be, certified by the Commissioner of the
General Land-Office, under the seal of said office, either as ori
ginals, or copies ofthe originals or records, shall be regarded as

29
conveying the fee simple of all the lands embraced in such lists
that are ofthe character contemplated by such act of Congress,
and intended to be granted thereby ; but where lands embraced
in such lists are not of the character embraced by such acts of
Congress, and are not intended to be granted thereby, said lists,
so far as these lands are concerned, shall be perfectly null and
void, and no right, title, claim, or interest shall be conveyed
thereby." See Vol. 10 Stat, at Large, 346.
It is, therefore, also insisted, that it was necessary under said
law, that the lists of land selected by the governor of the
State of Wisconsin should have been certified by the Commis-
sioner of the General Land Office under the seal of said office,
before the fee simple title of said lands could have been
regarded as having passed to said State.
This is the point of time as fixed by law when the fee simple
title attaches to the land.
See the opinion of Commissioner Hendricks im, his letter to
the Secretary ofthe Interior of June 30, 1856.
The entry of the Portage City Town Site having been made
by Judge Guppey, under the act of Congress of the 23d of May
1844, which is older in date than the original act, making the
grant to Wisconsin in 1846, and was unrestricted in its ope
ration, in any part of the State of Wisconsin, where the land
had not been previously designated and appropriated in a legal
manner — and having shown that this particular land was not
selected for the State until after Judge Guppey's entry was
made, and before the State of Wisconsin could have acquired
any shadow of title, and consequently not legally appropriated,
I insist that Judge Guppey's entry may be permitted to stand.
Richaed M. Yomr&,
Attorney for the Inhabitants of Portage City, Wisconsin,

The following are the Exhibits referred to in the' foregoing
argument : —
Exhibit (A.)
The surveys of that section of country along Fox river, and the lakes through
which it passes, between Portage City and the mouth of said river, where it
empties into Green bay, from which the State of Wisconsin was authorized to
make the selection under the act of August 8, 1846, were made at different times,
from 1834 to 1852, inclusive, and were approved as follows:
Those on the southeasterly or right bank, in the years 1834, 1835, and 1836.
And on the northwesterly or left bank, in the years 1846, 1851, and 1852.
Except in townships 18, 19, and 20, of ranges 16, 17, and 18, which seem to
have been approved in 1839, particularly as follows:
T. 12 N., R. 9 E., east of Wisconsin and Fox rivers, Aug- 13, 1834, and March 80,.
1835.
T. 12 N., R. 9 E, west of Wisconsin and Fox rivers, May 20, 1846.
T. 12 N., R. 9 E., west of Fox river and on Menomonee cession, November 8, 1851.
T. 13 N., R. 9 E, east of Fox river, August 13, 1834.
T. 13 N., Rj 9 E., west of Fox river, November 8, 1851.
T. 14 N.', R. 9 E., east of Fox river, August 13, 1834.
T. 14 N., R. 9 E., west of Fox river, November 8, 1851.
T. 15 N, R. 9 E., south and east of Fox river and Buffalo lake, August 13* 1834.
T. 15 N., R. 9 E, north and west of Fox river and Buffalo lake, March 31, 1852.
T. 14 and 15 N., R. 10 E., south of Fox river, August 13, 1834.
T. 14 and 15 N., R. 10 E., north of Fox river, March 31, 1862.
T. 15 N., R. 11 E., south of said river and Lake Pucka way, August 13, 1834, ahd
July 21, 1835.
T. 15 N., R. 11 E., north of said river and Lake Puckaway, March 81, 1852.
T. 16 N, R. 11 E., south and east of said river, May 3, 1836.
T. 16 N., R, 11 D., north and west of said river, March 81, 1852.
T. 16 N., R. 12 E., south and east of said river, May 3, 1836.
T. 16 N, R. 12 E, north and west of said river, March 31, 1852.
T. 17 N, R. 12 E, south and east of Fox river, May 3, 1836.
T. 17 N, R. 11 E., north and west of Fox river, March 31, 1852.
T. 17 N.( R. 13 E., east of Fox river, May 3, 1836.
T. 17 N., R. 13 E, west of Fox river, March 31, 1852.
T. 17 N., R. 17 K, west of Lake Winnebago, October 23, 1835.
T. 17 N, R. 18 E, east of Lake Winnebago, July 21, 1835.
T. 18 N., R. IS E., east of Fox river, May 3, 1836.
T. 18 N., R. 13 E., north of Fox river, December 24, 1851.
£' J8 w' 5' 14 E'' east and soutl1 of Fox river> October 23, 1835.
1. 18 N, R. 14 E., west and north of Fox river, December 24, 1851.
£' lo w'' d ' 15 I*' ea8t and south of Fox river> October 23, 1835.
1. 18.N., R. 15 E., west and north of Fox river, December 24, 1851.
T. 18 N., R. 16 E., south and west of Lake Butte des Morts and Fox river, and
T 18 N R 1RT? „w^7lnnw?g°VMay3,1886'and September 28, 1839.
i. is JN., K. 16 li., east of Lake Winnebago, September 28, 1839.
T io w' p \l I' we8t°f,I;ake Winnebago, September 28, 1839.
i. 19 i\., K. 13 Ji., west of Fox nver, December 24, 1851.

31
T. 19 N., R. 15 E., south and east of Fox river, May 3, 18S6.
T. 19 N., R. 15 E., west of Fox river, December 24, 1851.
T. 19 N., R. 16 E., west of Lake Winnebago, September 28, 1839.
T. 19 N., R. 17 E., west of Lake Winnebago, September 28, 1839.
T. 19 N, R. 18 E., east of Lake Winnebago, July 21, 1835.
T. 20 N., R. 17 E., northeast of Lake Winnebago, July 21, 1835.
T. 20 N., R. 17 E., northwest of Lake Winnebago, April 20, 1839.
T. 20 N., R. 18 E, northeast of Lake Winnebago, July il, 1835.
T. 20 N, R. 18 E., northwest of Lake Winnebago, April 20, 1839.
T. 21 N., R. 17 E., southeast of Lake Winnebago, July 21, 1835.
T. 21 N., R. 17 E., north and west of Lake Winnebago, December 31, 1844.
T. 21 N., R. 18 E., southeast of Lake Winnebago, July 21, 1835.
T. 21 N., R. 18 E., north and west of Lake Winnebago, December 31, 1844.
T. 21 N., R. 18 E, south of Fox river, July 21, 1835.
T. 21 N., R. 18 E, north and west of Fox river, July 29, 1847.
T. 21 N., R. 19 E., east of Fox river, July 21, 1835.
T. 21 N., R. 19 E., west of Fox river, April 22, 1847.
T. 22 N, R. 19 E., east of Fox river, July 21, 1835.
T. 22 N., R. 19 E., west of Fox river, Dec. 31, 1844.
T. 22 N., R. 20 E., east of Fox river, July 21, 1835.
T. 22 N., R. 20 E., west of Fox river, Dec. 31, 1844.
T. 23 N, R. 20 R, east of Fox river, July 21, 1835.
T. 23 N., R. 20 E., west of Fox river, Dec. 31, 1844.
T. 24 N, R. 21 E, south and east of Fox river, July 21, 1835.
T. 24 N., R. 21 E., west of Fox river, Dec. 25, 1844.

Exhibit. (B.)
General Land Office, April 9, 1852.
Gentlemen : The Receiver's letter of 20th February, containing the applica
tion of the judge of the county court of Columbia county, Wisconsin, for the
entry of certain lands therein described, by virtue of the act of 23rd May, 1844,
and certain testimony in support of such application, has been received.
It would seem that the application was- refused, on the ground that a plat of
the town, duly recorded, was not produced at your office, as required in letter
to the Register on the general subject of entries, under the act dated 2d Febru
ary last.
The Receiver states that it would be impossible for the. judge to produce a
plat thereof, duly recorded, for the reason that the statute of the said State of
Wisconsin prescribes that no one, except the owner of the soil, has a right to
establish village plats, and have the same recorded — and the same averment
is made in a letter from John Delaney, Esq., dated the 23d February last ;
and yet it would appear, from the testimony, that a village plat of the town in
question (Portage City) was recorded about two years since in the office of the
register of deeds of Columbia county.
The whole action on this subject, however, is premature,, so far as any allow
ance of the claim is concerned, because the land forms a part of the Menomonee
cession, and the land included in that cession will not become public land, under
the treaty with the Menomonees,. until after the 1st June next ; and before that.
time, no question in relation to the sale of any portion of said land should be
entertained by you.
On the point, however, involved in this case, you are hereby instructed,. that

32
after the 1st June next, upon application being made by the proper authority, as
now, wifh similar testimony accompanying the same, and with the following
additional evidence, you would be authorized by the law of May 23d, 1844, to
permit the entry of every legal subdivision included in the town, to the extent of
320 acres.
The additional evidence is the following : — A certified copy of the plat referred
to, with additions thereto, indicating the present extension of the town, and the
marking of lines, to show the subdivisions of the public lands embraced by the
whole town.
The lines indicating the additions to the town, and those showing the bounda
ries of the subdivisions of the public land, will be made by the county surveyor,
and be accompanied by his affidavit as to the correctness thereof.
Respectfully, your ob't serVt,
J. BUTTERFIELD, Ccmm'r. "
To Register and Receiver, Green Bay, Wisconsin.
P. S. — The papers enclosed by the Receiver are herewith returned.
You will advise the judge of the action had without delay.

Exhibit (C.)—No. 15,781.
Receiver's Office, at Green Bay, June 1, 1852.
Received from Joshua J. Guppey, county judge of Columbia county, Wisconsin,
the sum of two hundred and eighty-eight dollars and ninety-one cents ; being in
full for the purchase in trust for the several use and benefit of the occupants
thereof, according to their respective interests, (by virtue of an act of Congress
approved May 23, A. D. 1844, entitled "An act for the relief of the citizens of
towns upon the lands of the United States under certain circumstances.") The
west half of southwest quarter, and northeast quarter of southwest quarter, and
lots two and three of section No. five, and lots five and six of section No. eight,
in township No. twelve, of range No. nine, containing two hundred and thirty-
one acres and thirteen-hundredths, at $1 25 per acre.
$288 91- EDGAR CONKLIN, Receiver.

Exhibit (E)
To the Hon. the Commissioner ofthe General Land Office of the United States.
The petition of the undersigned respectfully showeth:
That he is, and has been for more than one year last past, judge of the county
court in and for the county of Columbia and state of Wisconsin, and that an
application was made to him about the middle of December, 1851 by the settlers
of Portage City, in said county, to purchase in trust for them the followine
described tracts of land, occupied as the site of said Portage City, viz- The west
hatf of the southwest quarter, the northeast quarter of the southwest quarter
and lots two (2) and tnree (3) of section five (5), and lots five (5) and sLx (6) of
section e.ght (8 of township twelve : (12) north, of range nine 9 east, lying in
the Green Bay (now Menasha) land district, and being a part of the late " Mino
monee purchase. menu-
qn^ft °n the 23d fy ^ecember, Jf". y°ur petitioner wrote to Alexander
Spauld mg, esq., register of said land office, stating, inter alia, that a part of eatd
town site was on an odd section, within the limits of the Fox river grant and
SnT %hethf^e St?te °f V™*** httd "* ^sted title to the^saW odd
section ? To which inquiry the said register replied, underrate of January 7th

33
1852, " that the state of Wisconsin, as yet, has no title to either the odd or even
sections west of Fox river and consequently cannot meddle with Portage City ;"
that it was then supposed that the Indian title to said Menomonee cession was
extinguished on the first day of January, 1852, from official statements made by
said register; and that on or about the 20th of February, 1852, an application ,
was made by your petitioner to enter said town site, under an act of Congress,
entitled "An act for the relief of the citizens of towns upon the lands of the
United States, under certain circumstances," approved May 23d, 1844, and that
said application was denied, for the reason that the proof did not show the exis
tence of a town-plat which had been duly recorded ; that this decision was
reported to your office by the receiver, (acting for the register in the absence of
that officer,) accompanied by some representations, which caused the issuing of
the instructions of 9th of April, 1852 ; in which instructions the whme matter
was treated as premature, since the Indian title to said land did not become
extinct till June 1st, 1852.
That, on said 1st day of June, 1852, your petitioner filed another application,
as judge, <fec.', to enter said land, under said act of Congress, and having offered
such proof as was required in said instructions of 9th of April, a duplicate for all
of said traots of land first herein described was issued to him in trust, for the
settlers on the same ; that on examination of said duplicate, your petitioner dis
covered that the lands so sold to him were described as being in range eight (8),
which range is .in the Mineral Point land district; that your petitioner returned
said duplicate to the office for correction,! with the request that all the papers and
entries relating to said sale should be examined ; that the duplicate was returned
to your petitioner duly corrected, to Range nine (9), and a statement was made
by Samuel Ryan, clerk in said register's office ; that all papers and entries were
correct, and that the error was only in the duplicate first issued to your petitioner.
That your petitioner, since he has held title to said lands in trust as aforesaid, has
caused said town site to be regularly surveyed, and the plat of said survey to be
duly recorded, and has adjusted nearly all cases of conflicting claims, at a special
term of court held for that purpose, which said surveying and adjusting titles has
cost nearly one thousand dollars ; that your petitioner has executed deeds, in
conformity with the decisions of said court, and that said deeds have been duly
recorded ; that there are over 900 lots in said town site, and very many of them
are of great value ; that more than 1200 people reside on or occupy said, town
site; that men of wealth, supposing the title to said town to be perfect in your
petitioner, have purchased largely of the original claimants (receiving warranty
deeds of the lots' bought), and have erected large and costly buildings, and made
other valuable improvements on said town site, and that the whole matter was
considered finally settled, till about the middle of last September, when it was
rumored, that with the approval of the President, all the odd sections in the
Menomonee purchase, within three miles of the Fox river, had been turned over
to the State, for the improvement of said river ; that your petitioner, though in
frequent communication with said land office, never receivedany notice of his
said entry being bad, unauthorized, or cancelled, in whole or in part, from said
register or reeeiver, and that he has always supposed it to be valid, since it was
made under special instructions from your office.
That as the State claimed title to said odd sections, your petitioner, to quiet
his title, has made application at the State land office to purchase that portion
of said town site on said odd section, but has not yet succeeded in purchasing
the same or -getting a decision on his application, because it is now claimed, that
the act of Congress, passed August 8, 1846, granting the alternate sections, vested
in the State, from and after its passage, the title to said odd sections _; and that,
outrageous as the effect may be, so much of said town site as is on said odd sec
tion is affected by State laws that were never intended to apply to such a case,
and which no citizen of said town ever supposed, until recently, could be con
strued to apply to Portage City.
That said register, in a letter to Hugh McFarlane, Esq., guardian oi the minor
heirs of Clark Whitney, late of said Portage City, deceased, dated ,October 23d,
1852, stated, in substance, that it was useless for him to attempt establishing a
3

84
pre-emption right to that portion of said town site on the even section aforesaid,
m favor of said heirs, and that petitioner's entry could not be disturbed ; that he
stated to Henry Meriton, esq., on the day preceding the public sale, that he
thought petitioners's title to said land was good ; that if petitioner vacated a part
of his entry, all would become vacant, but that it was safe as itwas ; that said
register has at all times recognised your petitioner's entry of said town site as
valid, when persons interested have spoken to, him about it, but that he did, on
the 15th ult., at the public sale, sell said lots five (5) and six (6) of said section
eight (8; to one John Fitzgerald, a speculator, holding his office in the same build
ing where said register's office is held. _ _
That on the reception of the news of said sale to said FitzgeMd, your petitioner
visited the said land office, but was informed by W. R. De Witt, Esq., before
going to the said office, that 3aid register had stated to him that your petitioner's
and Fitzgerald's purchases were not the same ; that your petitioner's was up the
river, &c. ; that your petitioner, when he arrived at said office, on the 1 6th inst.,
was informed by said register that all entries of odd sections within the limits of
the Fox river grant were held to be unauthorized, and was shown ¦ instructions
from your office to that effect -% that said register stated that a part of petitioner's
entry thus being bad, the whole was void, and that he was compelled to offeF
that part of said town site on the even section at public sale ; that he did so, and
that said Fitzgerald purchased it at $1.25 per acre. When asked why he did. not
notify your petitioner of the contents of the circular of September 10, 1852, as
required to do therein, he stated that he was not aware until the day of public
sale, that any portion of said town site was on the odd section and within the
limits of the Fox river grant, and that he then was obliged to sell the even
section, <Scc.
Your petitioner would further represent that the words "Portage City " are
written or printed in the said land office maps, on the tracts first herein described,
and that said register had often been in Portage City, and well knew that it was
located on the canal, between the Fox and Wisconsin rivers ; that your petitioner,
who is an inhabitant of said Portage City, had shown said register, when he was
in said tow-n, some of the lines of the same ; that said register was aware that
your petitioner purchased as aforesaid the said town of Portage City; that said
register told said Fitzgerald (as your petitioner is informed by said Fitzgerald),
on the day he purchased said lots, that it was a good purchase, for it was Portage
City, while ten days afterwards he stated to said De Witt that "your town
(meaning Portage City, the residence of said De Witt) was further up the river
than Fitzgerald's purchase." All of which matters and things tend to show that
said register has not acted in good faith in this matter, and can be established by
competent testimony.
Your petitioner would also represent, that the United States owned all of said
lands herein first described on the first day of June, 1852 ; that by agreement
they were to give a portion of them to the State of Wisconsin, which gift was to
take effect when said State made its selection, and said selection was approved by
the President ; that the State was at liberty to select the odd or even sections ;
and that the United States, having sold said lands for a valuable consideration
before said selection was made or approved, cannot avoid its contract -with a
purchaser in favor of a merely intended donee.
And your petitioner avers that said register has committed great -wrong in the
' following particulars, to wit :
1st. In representing to said McFarlane, on the 23d day of October, 1852, that
your petitioner's title to said tract was good, when, under his instructions, he re
garded it as void, " ab initio."
2d. In stating to Mr. Meriton, an agent of petitioner, on the day preceding the
Eublic sale, that petitioner's entry was valid till petitioner vacated it, while he
eld it void, by the action of your office, which is binding on him, and sold a part
of the, land the next day.
3d. In holding, when the odd section was transferred to the State, that petition
er s entry in the even was vacated.

35
4th. In not communicating to petitioner the contents of your circular of Sep
tember 10, 1852, as required therein.
5th. In offering and selling, at public sale, that part of said town site on the
even section.
6th. In selling a large town to a speculator ; having, by his acts, made its citi
zens believe that their title was perfect.
Now, inasmuch as your petitioner has done all in his power to procure title to
Portage City in trust, and is a purchaser of the site of the same for a valuable
consideration, while the said State is only an intended donee ; and inasmuch as his
title would be perfect to the whole or at least to a part, of said towi/site, but for
the laches of the officers of the United States, the prayer of your petitioner is —
1st. That his said purchase on the 1st of June, 1852, of lots 5 and 6 of S. 8, W.
JS. W. i, N. E. i, S.W.i, and lots 2 and 3 of S. 5, T. 12, R. 9, may be examined and
approved, and a patent issued to him for all of said lands.
2d. If a patent cannot be issued to him for that portion, of said town Bite onthe
odd section, that one may be issued to him for said lots 5 and 6 of S. 8, T.
12, R. 9.
3d. That said Fitzgerald's purchase of said lots 5 and 6 be vacated forthwith.
4th. That such other things may be done in the premises as to your honor may
seem just and proper.
And your petitioner, as in duty bound, will ever pray, <fce.
Dated at Portage City, December 22d, 1852!
(Signed) JOSHUA J. GUPPEY, County Judge.

Exhibit (F.)
General Land Office, May 16th, 1856.
Sir : In pursuance of your application, I herewith inclose to you an extract of
the list of lands selected under direction of his excellency Leonard J. Farwell,
governor of the State of Wisconsin, in the Green Bay (now Menasha) land dis
trict, and approved by the' President ofthe United States, August 28, 1852.
Very respectfully, your ob't serv't,
THS. A. HENDRICKS, .
Commissioner.
Hon. R. M. Yotjng, President.

Exhibit (G.)
General Land Office, August 25th, 1852.
Hon. Alex. H. H. Stuart,
Secretary of the Interior.
Sir : I hereby certify that the foregoing list embraces all the tracts lying within
the limits of the grant included in the original list on file in this office, which is
accompanied by an official certificate of the governor of Wisconsin, dated July
8th 1852, and are free from conflict; and I therefore respectfully submit the same
for 'the approval of the President of the United States. Subject to any rights which
may exist at the date of approval. __,,_,,
' (Signed) JOHN WILSON,
Acting Commissioner.
Department of the Interior,
August — , 1852.
Respectfully laid before the President for his approval, as recommended by the
Acting Commissioner of the GeneralLand Office. ^ ^ ^ ^^
Approved Augst^th, 1852. ^^ FILLMQRK

36
Exhibit (H.)—No. 15, 781.
Land Office at Green Bat,
Wisconsin, June 1st, 1852.
' It is hereby certified, that in pursuance of law, Joshua J. Guppey, county judge
of Columbia county, State of Wisconsin, oh this day purchased of the register of
this office, in trust for the several use and benefit of the occupants thereof, accord -
ing to their respective interests, by virtue of on act of Congress approved May
23d, 1844  " An act for the relief of the citizens of towns upon the lands of the
United States, under certain circumstances" — the lot or west half of southwest
quarter, and northeast quarter of southwest quarter, and lots two and three of
section number five, and lots number five and six of section number eight, in
township number twelve of range number nine east, containing two hundred and
thirty-one 13-100 acres, at the rate of one dollar and twenty-five cents per acre,
amounting to two hundred and eighty-eight 91-100 dollars, for which the said
Joshua J. Guppey has made payment in full, -as required by law. Now, therefore,
be it known, that on presentation of this certificate to the Commissioner of the
General Land Office, the said Joshua J. Guppey shall be entitled to receive a
patent for the lands above described. ALEXANDER SPAULDING, Register.
On the face of the foregoing certificate, the following words, figures and letters
were written :
" G. L. 0. New certificate issued, in lieu of this, for lots 5 and 6 of sec. 8 — 12
— 9 only, and hereto attached. N. P. C."
The following words and figures were endorsed on the back of the foregoing
certificate :
Certificate of purchase to Judge Guppey. — Order made for a patent by com
missioner 28th April, 1854. A patent was issued for lots 5 & 6 of sec. 8, town.
12, R. 9 E., cont'g together 54 acres, or 55 40-100 acres. The other excluded on
account of prior rights. The purchase money on other tracts will have to be
refunded. See letters to Register & Receiver, April 28, 1854, and to Judge
Guppey, May 2, 1854. Patented April 28, 1854, lots 5 & 6, Bee. 8, T. 12, R. 9,
cont'g 65 40-100 acres.
W. i of S. W. I, N. E. i of S. W. i, and lots 2 & 3, sec. 5, T. 12, R. 9, selected
by Gov. of Wis. July 8, 1852, under act of 8th August, 1846, for the improvement
of Fox & Wis. rivers. Selection approved by the President August 28th, 1852.
Suspended per order of commissioner.
A new certificate, dated April 28, 1854, was issued in lieu of certificate of June
1st, 1852, for lots 5 & 6 only.

Exhibit (I.)
i General Land Office, July 30$, 1853.
Register & Receiver, Menasha, Wisconsin.
Gentlemen : A letter has been received at this office from Judge Guppey, under
date 6th inst., in which he states that he has informed the Register at Menasha
that the tracts in section 5 of T. 12, R. 9 E, included in his entry No. 15,781, in
trust for the inhabitants of Portage City, were not occupied as the site of the said
cityprior to the grant by Congress to the State of Wisconsin, (including the said
section 5,) to aid in the improvement of the Fox and Wisconsin rivers.
Under these circumstances, said entry must be corrected so as to include only
so much of the land originally embraced as is in section 8.
Judge Guppey is under the impression that the information given your office,
on the point herein adverted to, has been communicated by you to this office  such
is not the fact; no report having reached me on this subject.

37

Your immediate attention is therefore called to the letter from this office of
the 14th February last, and upon receiving your reply thereto the proper steps
will be taken to correct the said entry by Judge Guppey, and vacate the entries
made by John Fitzgerald, (Nos. 16,022 and 16,023,) of the lands awarded to said
Guppey in trust for the inhabitants of said Portage City.
Very respectfully, &c. JOHN WILSON, Comm'r.

Exhibit (E.)
General Land Office, April 28, 1854.
Register and Receiver, Menasha, Wisconsin.
Gentlemen : In letter from this office of 30th July, 1853, your attention was
called to a previous communication of 14th February, 1853, on the subject of an
entry, No. 15,781, made by Judge Guppey, of Columbia county, Wisconsin, under
act 23d May, 1844, in trust for the inhabitants of Portage City; and an early
action in the matter on your part was requested.
No reply to my said letter having been received, (and for which apparent
inattention an explanation is desired,) and Judge Guppey having again recently
addressed this office on the subjeet, I could not feel justified in longer withholding
the patent on so much of the said entry as should be properly included therein,
viz: lots 5 and 6 of section 8, T. 12, R. 9 E.; andthe said patent has been accord
ingly this day issued and delivered to C. J. Pettibone, Esq., by request of Judge
Guppey. Therefore, I herewith enclose for the register's signature a corrected certificate,
No. 15,781, embracing the said lots only, whieh he will sign and return to this
office with reference to the date hereof. The purchase-money on the balance of
the entry (W. $ and N. E. i,S. W. £, and lots 2 and 3 of section 5, T. 12, R. 9 E.)
will be returned upon proper application being made therefor through the dis
trict office.
I have also cancelled entries Nos. 16,022 and 16,023, improperly permitted by
your predecessors in office on 15th November, 1852, in the name of one John
Fitzgerald for the lots 5 and 6 aforesaid, which lots were then covered by the
entry of Judge Guppey, and are included in the patent this day issued to him.
The usual application must be made for the return of the purchase money.
Be pleased to indicate upon your books, the correction of certificate No.
15,781, and the cancellation of Nos. 16,022 and 16,023.
Very respectfully, JOHN WILSON, Comm'r.

Exhibit (L.)
Extracts from the Decisions of the Supreme Court of the United
States im the cases qf Rutherford vs. Greene's Heirs, and
Fremont vs. The United States, reported in 2d Wheaton's
Reports, 196, and 16th Howard's Reports, 542.
"Monterey, ZMh February, 1844.
"Having considered the petition which is at the beginning of this record of
proceedings, (espediente,) the preceding report, and the patriotic services_ of the
petitioner; with everything worthy of consideration m the premises, m con-

38
formity with the laws and regulations upon the subject, I 'declare Don Juan
Bautista Alvarado owner in fee of the tract of land known by the name of * Las
Mariposas,' within the boundaries of the Snow mountains, (Sierra Nevada,) and
the rivers called the Chanchilles, the Merced, and San Joaquin."
" Let the proper patent be issued ; let it be registered in the respective book ;
and let this record of proceedings be transmitted to the most excellent depart
mental assembly for its approval. "MANUEL MICHELTORRENA,
" Brigadier General of the Mexican Army, Adjutant General of the Staff of the same,
Governor and Commandant General of the Department of the Calif ornias."
" And the first point to be decided is, whether the grant vested in Alvarado any
present and immediate interest ? and if it did, then, secondly, whether anything
done or omitted to be done by him during the existence of the Mexican govern
ment in California, forfeited the interest he had acquired, and re-vested it in the
government? For if, at the time the sovereignty of the country passed to the
United States, any interest, legal or equitable, remained vested in Alvarado, or
his assigns, the United States are bound in good faith to uphold and protect it."
" But the grant, after reciting that Alvarado was worthy, for his patriotic
services, to be preferred in his pretensions for his personal benefit and that of his
family, for the tract of land known by the name of Mariposas, to the extent of
ten square leagues, within certain limits mentioned in the grant, and that the
necessary requirements, according to the provisions of the laws and regulations,
had been previously complied with, proceeds, in the name of the Mexican nation,
to grant him the aforesaid tract, declaring the same, by that instrument, to be his
property in fee, subject to the approbation of the departmental assembly and the
conditions annexed to the grant."
"The words of the grant are positive and plain. They purport to convey to
him a present and immediate interest ; and the grant was not made merely to
carry out the colonization policy of the Government, but in consideration of the
previous public and patriotic services of the grantee. This inducement is care
fully put forth in the title papers. And although this cannot be regarded as a
money consideration, making the transaction a purchase from the Government,
yet it iff the acknowledgment of a just and equitable claim ; and when the grant
was made on that consideration, the title in a court of equity ought to be as firm
and valid as if it had been purchased with money on the same conditions."
"It is argued that the description is so vague and uncertain that nothing
passed by the grant ; and that he had no vested interest until the land was sur
veyed, and the part intended to be granted severed by lines or known bounda
ries from the public domain. But this objection cannot be maintained."
"It is true, that if any other person within the limits where the quantity
granted to Alvarado was to be located, had afterwards obtained a grant from
the Government, by specific boundaries, before Alvarado had made his survey,
the title of the latter grantee could not be impaired by any subsequent survey
of Alvarado."
"As between the individual claimants from the Government, the title of the-
party who had obtained a grant for the specific land would be the superior and
better one. For by the general grant to Alvarado, the Government did not bind
itself to make no other grant within the Territory described, until after he had
made his survey. But as between him and the Government, he had a vested
interest in the quantity of land mentioned in the grant. The right to so much
land, to be afterwards laid off by official authority, in the Territory described,
passed from the Government to him by the execution of the instrument grant
ing it."
"This principle of law was maintained by the decision of the court, in the case
of Rutherford vs. Greene's Heirs, reported in 2 Wheat. 196. The State of North
Carolina, in 1780, passed an act reserving a certain tract of country to be appro
priated to its officers and soldiers; and in 1782, after granting 640 acres in the
Territory reserved to each family that had previously settled on it, and appoint-

39
ing commissioners t<J lay off, in one or more tracts, the land allotted to the offi
cers and soldiers, proceeded to enact that 25,000 acres of land should be allotted
for, and given to Major General Nathaniel Greene, his heirs and assigns, within
the bounds of the lands reserved for the use of the army, to be laid off by the
aforesaid commissioners, as a mark of the high sense the State entertained of the
extraordinary services of that brave and gallant officer."
" In pursuance of this law, the commissioners allotted 25,000 acres of land to
General Greene, and caused the tract to be surveyed and returned to the proper
office. The manner under which Rutherford claimed is not very clearly stated
in the case. The decision turned altogether on the validity of the title of Gene
ral Greene and the date at whieh it commenced ; and the court said, that the
general gift of 25,000 acres lying in the Territory reserved, became by the sur
vey a particular gift of the 25,000 acres contained in, the survey. And, after
examining the title very fully, the court in conclusion say :
"It is clearly and unanimously the opinion of the court, that the act of 1782
vested a title in General Greene to 25,000 acres of land, to be laid off within the
boundaries allotted to the officers and soldiers; and that the survey made in
pursuance of that act, and returned March 3, 1783, gave precision to that title,
aud attached it to the land surveyed."
" The principles decided in this case appear to the court to be conclusive as to
the legal effect of the grant to Alvarado. It recognises as a general principle of
justice and municipal law, that such a grant for a certain quantity of land by the
Government, to be afterwards surveyed and laid off within a certain territory,
vests in the grantee a present and immediate interest. In the language of the
Court, the general gift becomes a particular gift, when the survey is made; and
when this doctrine has been asserted in this Court upon the general principles
which courts of justice apply to such grants from the public to an individual,
good faith requires that the same doctrine should be applied to grants made by
the Mexican government where a controversy arises between the United States
and the Mexican grantee." (16 Howard's Rep. 542.)

Exhibit (M.)
General Land Office, May ZOth, 1856.
Sir ¦ In reply to your letter of the 28th instant, I have to state, that since the
passage of the act of Congress approved 8th August, 1846, granting land for the
improvement ofthe Fox and Wisconsin rivers, there has been a large quantity ot
land sold and otherwise disposed of in the odd-numbered sections, within the limits
of said grant; and subsequent to the act of 29th of May, 1848, (admitting Wis
consin into the Union,) there have been various tracts in the odd-numbered
sections sold, among which are the following : T am„x
E. i of N E. i S7 1, T. 16 N., R. 16 E., entered June 24th, 1848, by Leonard
N^Ki of S. E. I S. 23, T. 17 N, R..16 E., entered June I5th, 1848, by Darius
E W?f It N. W. i S. 3, T. 15 N., R. 18 E„ entered June 22d, 1848, by Thomas
°S. W. i of N. W. i S. 3, T. 15 N, R. 18 E., entered July 19th, 1848, by J. D.
VE JofS. E. I S. 7, T. 19 N, R. 19 E., entered September 20th, 1848, by Isaac
Van Uei. , .. , .
I am sir very respectfully, your obedient servant,
l am, sir, very i**y J'^H0S. A. HEBDRICKS, Commissioner.
Hon. Rich'd M. Young, Present.

40
Exhibit (N.)
General Land Office, Jan'y 16, 1857.
Richard M. Young, Esq.
Sir, — In compliance with your request, I herewith enclose you, copies of the
undermentioned letters, <fec, on file and of record in this office — said copies having
been made by the gentleman sent by you to the office, for the purpose, viz : —
1st. From this office to the Secretary Interior, under date 30th of June, 1856,
in the " Portage City" ease.
zd. From the Secretary of the Interior to the Attorney-General.
3d. Opinion of Attorney-General, on same, dated December 22d, 1856.
4th. Secretary's letter, enclosing said opinion, to this office, 31st December, 1856.
Very respectfully, Your obedient serv't,
THOMAS A. HENDRICKS, Commissioner.
General Land Office, June 30th, 1856.
Hon. R. McClelland,
Secretary of Interior,
Sir,— The W. $ S. W. I, N. E. i, S. W. J, and Lots 2 and 3 of Section 5 of T.
12, W. R. 9 E. Wisconsin, were in controversy between^ the settlers and occupants
thereof, claiming under the law of 23d May, 1844, and the State of Wisconsin,
under act approved Sth August, 1846, entitled, " An Act to grant a quantity of
land to aid in the improvement of the Fox and Wisconsin rivers ; and to connect
the same by a canal," (U. S. Statutes at Large, vol. 9, page 83) — and I have the
honor to submit herewith the facts in the case, together with an argument from
Richard M. Young (with accompanying papers), as attorney for the occupants of
the land in controversy.
By the act of 1846, referred to, there was granted to the State of Wisconsin, on
her admission into the Union, "A quantity of land equal to one half of three
sections in width, on each 6ide of the Fox River, and the Lakes through which it
passes, from its mouth to the point where the Portage Canal shall enter the same,
and on each side of the said Canal, from one stream to the other, reserving the
alternate sections to the United States, to be selected under the direction of the
Governor of said State, and such selection to be approved by the President of the
United States.
Under the 2d Section of the said act of 1846, the lands thus granted became the
property of the State should the legislature thereof, after her admission, agree to
accept them upon the terms specified in the act.
Wisconsin was admitted into the Union on the 29th of May, 1848, and formally
accepted this grant, by act of the legislature, of 29th of June, 1848. — (Revised
Statutes of Wisconsin, p. 765.)
At the time of the passage of this said act of 1 846, the lands in controversy
were occupied and claimed by the Menomonee Indians, and were not ceded to
the United States until the Treaty of 18th October, 1848. — U. S. Statutes at
Large, p. 952.
By the 8th article of this Treaty, the Indians were to be permitted to remain
on the lands thus ceded, for the period of two years, from the date of the treaty,
and until the President should notify them, that the same were wanted.
It appears, however, that they were never so notified by the President, but
that, by mutual consent, they ceased to occupy the said land, from and after the
1st of June, 1852.
On the 8th July, 1852, a large body of lands was selected by the Governor of
Wisconsin under the said act of 1846, and among the lands thus selected were
the tracts in controversy; and on the 23rd August, 1852, the President 'of the
United States approved the selections referred to, subject to any right which may
have existed at tlie date of the said approval.
Before such selection and approval, however, I find .that application had been

41
made, during the winter of 1851 and '2, by one Joshua J. Guppey, Judge" of the
County Court, in and for the County of Columbia, and State of Wisconsin to
enter the aforesaid tracts of land (in Sec. 5, T. 12, R. 9,) as a town Site, under
and by virtue of the provisions of the law of 23rd May, 1844, whieh application
was refused or rejected, by the district land office, because the land thus applied
for, formed part of the Menomonee Cession, and was not then public land, open to
entry or sale, inasmuch as ths Indians were still in the occupancy thereof, cite.
The then Commissioner of this office, however, instructed the Register and Re
ceiver, that the application might be entertained, if supported by sufficient evi
dence of right, after the 1st June, 1852, when the entry might be permitted, of
every legal subdivision included in the town, to the extent of 320 acres.
Qn that day, viz., 1st June, 1852, the application of Judge Guppey was received,
and he was permitted to enter, in trust for the occupants of the town, the said
land in Section 5, together with Lots 5 and 6 of Section 8, same Township and
Range, per certificate No. 15,781.
It subsequently appearing, from the letter received at this office, from Judge
Guppey himself, under date 6th July, 1853, that the subdivisions in Sec. 5 " were
not occupied as the Site of the town or city prior to the grant by Congress to
the State of Wisconsin," — in the law of 1846, his said entry was corrected, so as
to embrace only lots 5 and 6 of Section 8, and on this a patent was issued under
date 28th April, 1854.
I do not regard the grant made to the State of Wisconsin, by law of 1846, as
a present grant — identifying a particular portion of the public domain, by such
certain description as to vest it in the State. Nor did the selection by the Go
vernor and approval by the President, tlone vest the fee simple title in the State.
The last executive act still remains to be performed. And the lands claimed by
the inhabitants of Portage City, not having been certified by the Commissioner of
the General Land Office, under the seal of the office, according to the provisions of
the act of 3rd August, 1854, are yet under the control of the Executive ; and the
entry by Judge Guppey, being prior in daie, to the selection by the Governor
rights under the law of 1844, could not be divested by such selections.
Therefore I respectfully recommend that the Executive be requested to revoke
his said approval, so far as the lots or subdivisions in Sec. 5, T. 12, R. 9, are con
cerned, in order that proper steps may be taken to reinstate the entry of the
town, so that the certificate may stand as originally issued on the 1st day of June
1852 — and a patent under the law of 1844 be given'for the land3 in controversy.
I have the honor to be, very respectfully, your obedient servant,
(Signed), THOS. A. HENDRICKS, Commissioner.

Department of the Interior, July 23, 1856.
Sir : I have the honor to submit herewith the papers in the " Portage City
Case," so called, for your opinion upon certain points involved therein, as here
after specified. The contest appears to involve the United States, the State of
Wisconsin, the party claiming under the State of Wisconsin, and the persons
interested in Portage City, and came before the Department in a letter of the
Commissioner of the General Land Office of the 30th of June last, to be found
among the papers. When the grant was made to the State, the Indian Title to
the particular land in controversy existed, and continued for Beveral years, and
until the same was extinguished by Treaty of October 14, 1848. Immediately
after such extinguishment, the Judge of the county, in strict conformity with law,
made an entry of the Lots in dispute, and soon after the State embraced them m
a List of Selections under the grant, and before the entry was reported to the
General Land Office, and without any knowledge of that fact, the selection was
approved. If the title of the lands granted passed to the State at the date of the
grant, it seems doubtful whether any part of this Indian land was embraced, be
cause the Indian right was still existing. If it had remained to this time as it

42
' was in 1846, and no treaty had been made, eould the State legally claim the lots
under the grant ?
The object of the grant was to enable the State to make an important improve
ment, but at the same time to compensate the General Government for the lands
granted, by largely enhancing the value of the residue. This principle pervades
all the grants for such purposes made prior to the one in question. The Indian
lands, such as embrace these lots, are valuable, and in order to extinguish the
Indian titles thereto, far more than an ordinary minimum is usually paid. Sup
pose in this case these lands had , cost the General Government $10 per acre, would
it be conformable to the principle adverted to, to reduce the price to double the
minimum, or as by subsequent legislation, relative to this grant, to the ordinary
minimum. When the question arises between the General Government and a State, it does
not present the same difficulties, as where by previous acts of Congress, or by
Treaties, third parties intervene. In the case of the Indian Reservations along
the line of the Wabash and Erie Canal, when the Indian title was extinguished
after the grant, particular tracts were set apart for special reserves, and these
tracts have invariably been held by them without disturbance. So also in regard
to preemptions upon these grants, where the initiative has1 been taken before the
grant attached. It may be admitted that the Government, by general grant,
passes title to all lands within the prescribed limits which are subject to private
entry or sale, but does it as to Indian Land or Military Reservations, nnless they
are particularly designated, or clearly embraced?
Not being satisfied what would be proper under the circumstances, I have con
cluded to refer the papers in the case, together with the argument of Judge
Young and the brief of Doct. Frailey, to you, for your opinion as to> —
I ' 1st. Whether the act of 8th of Angust, 1846, was such a present grant as car
ried with it, after the selection by the Governor of the alternate odd sections
within its limits, the title of the United States to the lots in question, subject to
the extinguishment of the rights of the Indians, or had the State the exclusive
right to make selection of the lots after the Indian title was extinguished?
2d. Did not the Indian title exclude the lots from the grant, and after the Ge
neral Government secured the unqualified title thereto, is not the one who takes
the first 6tep, and prosecutes it with a view of acquiring the land conformbaly to
the law, entitled to the precedence ? With much respect, Your obedient servant,
R. McCLELLAND, Secretary.
To Hon. C. Cushing, Attorney-General IT. S.

Department of the Interior, December Zlst, 1856.
Sir : I return herewith the papers in the Portage City case, submitted in letter
from your office of the 30th June last, accompanied by others which have since
been filed, and by a copy ofthe opinion of the Attorney General ofthe 22nd inst.
on the case, furnished upon my submission of the matter to him for that purpose.
The conclusions to which he has arrived are adopted by the Department, and
they will be regarded as definitely settling the question at issue heretofore on the
part of the Portage City authorities.
Respectfully, your obedient servant,
(Signed) R. McCLELLAND, Secretary.
To Hon. Thos. A. Hendricks,
Commissioner of the General Land Office.

Attorney General's Office, December 22nd, 1856^
Sir: I have the honor to present herewith my conclusions in the Portage City
case, so called, which you referred to me by letter of the 26th of July.

43
Congress, on the 8th of August, 1846, passed an act entitled, "An act to grant
a certain quantity of land to aid in the improvement of Fox and Wisconsin rivers,
and to connect the same by a canal in the Territory of Wisconsin," of which act
the provisions material to the matter in hand are as follows :
Sep. 1. That there be_ and hereby is granted to the State of Wisconsin, on the
admission of such State into the Union, for the purpose of improving the navi
gation of the Fox and Wisconsin rivers in the territory of Wisconsin, and in con
structing the canal to unite the said rivers at or near the portage, a quantity of
land equal to one half of three sections in width on each side of the said Fox river
and the lakes through which it passes, from its mouth to the point where the
portage canal shall enter the same, and on each side of the said canal from one
stream to the other, reserving the alternate sections to the United States, to be
selected under the direction of the Governor of the said State, and such selection
to be approved by the President of the United States. * *
Sec. 2. That as soon as the Territory of Wisconsin shall be admitted as a State
into the Union, all the lands granted by the act shall be and become the property
of Baid State for the purposes contemplated in this act, and no other ; Provided :
that the Legislature of said State shall agree to accept the said grant upon the
terms specified in this act and no other. * *
Sec. 3. That the said improvement shall be commenced within three years
after the said State shall be admitted into the Union, and completed within
twenty years ; or the United States Bhall be entitled to receive the amount for
which any of said lands shall have been sold by the State ;
Provided : That the title of the purchasers under the sale made by the State in
pursuance of this act shall be valid. — {IX. Stat, at Large, p. 83.)
Without anticipating controversy, let us go back to. the day when the act was
approved by the President, and see what its provisions on their face import, and
what rights they communicate to the future Stats of Wisconsin.
1st. " That there be and hereby is granted." Those are indubitably effective
terms of grant in prossenti. On that day a title or right of title passed from a
grantor to a grantee. What passed as subject matter, and by what quality of
title, as whether in fee simple, fee base, tenancy for life or years, and whether in
possession or reversion, or what not, remains to be ascertained.
2nd. The grant is " to the State of Wisconsin on the admission of such State
into the Union." That fixes the time when the grant is to be effectual. It « a
grant, in so far as the grantor can make it, on the day of date, but the grantee is to
take only when admitted into the Union. _ ' ...
3rd. On the admission of Wisconsin, the State takes some kind of title then.
What title is it ? The act proceeds to say that at that moment " all the lands
granted by this act shall be and become the property of said State."
These expressions in a statute, according to the established rules of construc
tion, carry the fee, or at least the whole interest and estate of the grantor, what
ever that 'may be. It is true, these are not the sacramental words of a fee simple
at the common law. It is also true that the term " property" is often used in a
general sense to cover -anything which belongs to a person, by whatever title or
tenure (Smith v. the United States, 10 Peters, p. 330). , . ,. ,
But a grant of land to be and become the property of another, implies a tee
by the public law of Europe and America. _
That such is the meaning of the act in this respect is further proved by the
subsequent expression. « The title of purchasers under the sales made by the
State In pursuance of this act, shall be valid" The phrase "validity of title is
found in the laws defining what conveyances the Umted States are to take of
land intended as the site of any public work ( Reso. Sept. 11, 1841, V. 1 Stat, at
Large, p. 468). Its construction is thoroughly fixed by the practice of my prede
cessors and myself, and is taken as a matter of course, in the daily business of
passing on muniments of title— It means fee simple. .
4th The grant is to the State of Wisconsin "lor the purpose of ™P~™8 ™e
navigation of the Fox and Wisconsin rivers (Sec. 1), and for no other • (Se ic 2)
and the improvement is to be commenced and completed within Feseated dates
(Sec. 3) ; but the failure of the State does not affect the title. It only rendeis

44
the State a debtor to the United States for the pecuniary proceeds of the sale of
the lands (Sec. 3).
5th. The grant is made subject to one condition, namely : " that the Legislature
of said state shall agree to accept such grant upon the terms specified in the
Act." That may be deemed a condition. There certainly is no other.
6th. Finally, the thing granted is defined with reasonable certainty. " It is a
quantity of land equal to one-half of three Sections in width on each side of the
Fox river and the lakes through which it passes, from its mouth to the point
where the portage canal shall enter the same, and on each side of said canal from
one stream to the other, reserving the alternate sections to the United States.
Here is not a grant of lands along arbitrary lines unascertained, like those of
unlocated railroads, nor a grant at large in a whole State, but a grant within
limits geographically determined by the act and needing only surveys according
to accnstomed Statute rules, to possess absolute precision of locality ; and then
requiring only to be equally divided between the United States and the State.
That involves the necessity of partition between the two tenants in common.
But the Act foresees this ; and means of amicable partition are provided by the
enactments that the portion belonging to the State of Wisconsin is " to be selected
under the direction of the Governor of said State, and such selection to be ap
proved by the President of the United States." The manifest object of this selec
tion is not merely to fix & float, but to effect partition between co-tenants.
Upon this review of the act, no apparent question exists. It is a. conditional
and executory grant in fee simple, to take effect and become executed in the hap
pening of events specified.
These events happened, Wisconsin was admitted into the Union contingently
on the third of March, 1847, and absolutely on the 29th of May, 1848, (Comp. x.
Stat, at Large p. 178 and p. 233) ; and on the 29th of June, 1848, the legislature
of the State of Wisconsin accepted the grant in the terms of the act of Congress
(Rev. Stat., Wisconsin, p. 765.)
Let us pause a moment here, at the 29th of July, 1848, and see how the title
Btands. The United States granted to take effect on a certain contingency — that
contingency has occurred. The United States granted on condition — that con
dition has been performed. The lands conveyed are described with reasonable
certainty, so as to be capable of passing by words of grant. What legal construc
tion is there to forbid the idea of a vested title that day in the State of Wisconsin!
I am not aware of any. To be sure, the land is held by undivided moieties ; but
what then ? Who doubts that two proprietors may be tenants in common by
undivided moieties, each by a fee simple ?
_ To enjoy in severalty, there must be partition, but the partition does not make
title, nor its absence take away or suspend title, either as between the co-tenants
themselves, or as between them and the rest of the world. Nor is it material that
one of the co-tenants derives title from the other; they are not the less equally
co-tenants of the fee. Whoever trespasses on the land, trespasses against both
co-tenants. Whoever undertakes to appropriate any part of it unlawfully, is a
wrong doer in respect of each. As, until the land shall have been duly divided,
neither of the parties can occupy any part of it in severalty and exclusively, so
neither can convey to others power to occupy severally in his right. Nor with
out partition can others come in by act of law, by descent, or otherwise, deriva
tively under one of the parties, to acquire title in severalty and to the exclusion
of tiie other party. All these are but the ordinary legal incidents of title in land.
In fine if the lands described in the act existed, then it seems to me that on the
29th of June, 1848, the State of Wisconsin was owner in fee of one undivided
moiety of the tract of land described, in common with the United States. But,
perhaps the United States had inadvertently conveyed a part of this land to some
body else, or had allowed othere to acquire title in severalty to some parts of it
by act of law, to the prejudice of the rights of the State of Wisconsin. Very
w*, ~~ " P» United States have done or suffered this, it is presumable that they
will repair the wrong Such proved to be the fact on both points ; for on the 2nd
ot March, 1849, the following act of Congress was passed.
" That all land entries made in the Green Bay district, in the State of Wiscon-

45
KS°Sf*^ °at-number5 Si°ti0na of the Fox and Wisconsin river reservation
in said State, subsequent to the passage of an act entitled 'An act to grant a
certain quantity of land, to aid in the improvement of the Fox and Wisconsin
man i, and connect the same by canal in the territory of Wisconsin, approved on
the 8th day of August, 1846,' be, and the same are hereby declared to be vaUd
as though said act had not been passed: Provided, nevertheless, that the Governor
pf said State is hereby authorised to select the same quantity of other lands
in heu thereof, subject, however, to the approval of the President ofthe United
Sec 2. That all similar entries made upon the even numbered sections of said
reservations be also declared to be as good and valid as though said reservation
had not been made.— (9. Stat, at Large, p. 352.)
Here is indemnification of the State for ascertained deficiencies in the thing
granted, which indemnification is remarkable in this, that it assumes that parti
tion of the lands between the State and the United States has already taken
place, the State having become tenant in severalty of the odd sections, and the
United States of the even sections. I shall return to this point in the sequel.
Perhaps, indeed, the United States had nothing within the limits described to
convey ; that it did not own or possess any land there. That is alleged in this
case, in so far as concerns the particular section of land in controversy.
At the time when the act making this grant to the State of Wisconsin was
passed, a portion of the land comprehended within the limits described was still
occupied by the Menomonee Indians in their aboriginal right.
Their title was extinguished on the 18th of October, 1848, by treaty of that
date, the second article of which is in these words :
"The said Menomonee tribe of Indians agree to cede and do hereby cede, sell
and relinquish to the United States, all their lands in the State of Wisconsin
wherever situated.-y{9. Stat, at Large, p. 952.)
Th e treaty contained a provision empowering the Indians to continue to live
temporarily on the cession, as follows :
Art. 8. It is agreed that the said Indians shall be permitted, if they desire to
do so, to remain on the land hereby ceded, for and during the period of two
years from the date hereof, and until the President shall notify them that the
same are wanted.
This indefinite occupancy was terminated on the 1st of June, 1852, when the
Menomonees were concentrated on a definite portion of the cession lying near to
the Falls of Wolfe river, and of course then ceased to have any possible relation
to the present question.
Upon these facts the idea appears to be entertained at the General Land Office,
either that no title passed to the State of Wisconsin, or that all such title was
suspended or held in abeyance until the final cessation of any sort of occupation .
by the Indians.
I cannot bring myself to agree to this.
It seems to be contrary to well established doctrines of municipal as well as
public rights.
Mr. Young appearing for claimants of Postage City, refers to a number of cases
in which the Courts speak of the inviolability of the Indian Territory, and pro
nounce surveys made therein illegal. (See Preston v. Bronder, 1 Wheat 114;
Danforth v. Thomas, 1 Wheat, p. 155 ; Danforth v. Wear, 9 Wheaton, p. 673.)
But these are cases of local law, in which the question was whether the State
of North Carolina, as the proprietor of lands within her border, occupied by In
dians, had authorized such surveys.
The Indians were to be protected by the State, held inviolable against in
trusion. No surveys in their territory, so called, were to be made without express au
thority of the State. That the State had such authority we shall see hereafter.
Here was a time when the true relation of the Jndians to the United States
was not so clearly seen as it now is.
We had been accustomed to make treaties with them, as if they were inde
pendent of us ; that was an error. ,

46
We dealt with their petty Tribes as nominal nations; that led to strange mis
conceptions. We had spoken of their lands as if a handful of savages, who hap
pened to be within the geographical limits of a region of country, large enough
for a civilized empire, could be deemed its proprietors, in virtue of any rule of
natural right or of positive law. _ . .
We had respected their assumed rights, — that is, had left them to their savage
quasi independence instead of by force compelling them to enter into some ap
propriate place in the social organization, and thus they had perished of too
much liberty.
Finally, we of the older States of the Union, which had expelled or killed off
most of our Indians, or reduced them to a condition of helpless pupilage, had
now come to be extremely sensitive to the alleged wrongs of the same nature,
that is, policy in imitation of ours, to which the younger States of the South
were now subjecting their Indians.
The elaborate investigation of the subject which ensued, cleared off all these
errors ; and discussion ended with the great cases of the Cherokee Nation vs. The
State of Georgia, (5 Peters, p. 1,) and Worcester vs. The State of Georgia, (6
Peters, p. 515.)
It is the universal doctrine of public law thai the Indians are the domestic sub
jects of the particular Europeo-American State in which they may happen to be.
The Cherokee Nation vs. The State of Georgia (5 Peters, p. 1.)
It is a doctrine of our public law equally fundamental that the Indians do not
hold a fee in the lands of their aboriginal occupation, but only a usufruct; the
fee being in the United States ; or, in some cases, in the several States, (Johnson
vs. Mcintosh, 7 Wheaton, p. 543; Fletcher vs. Peck, 6 Cranch, p. 87.)
When the United States made this grant to the State of Wisconsin, the fee of
all the land was in the United States, subject in the respect of a part to the
usufruct of the Menomonees.
That usufructuary occupation was capable of being extinguished by the United
States, and by them alone; and until its extinction, the entire original title
remained between them and the Indians.
What rule of law stood in the way to forbid the United States to convey to
the State of Wisconsin, such title as they had ? I know of none.
As a question of municipal law, the transaction is just as common and ordinary
as any other description of conveyance.
The proprietor of land leases it for ninety-nine years, with or without right of
purchase, but he sells it to another, if he will, subject to the lease and its
conditions! An heir in fee simple comes into possession of the patrimonial estate encum
bered with mortgages, jointure, dower, marriage settlements, and provisions for
^pther members of the family ; but he may sell, if he will, subject to these incum
brances. Nay, the cases are familiar of sales of imperfect titles, which, when perfected
in the person of the grantor, enure to the benefit of the grantee. (See Landes v.
Brent, 10 Howard, p. 348. Stoddard v. Chambers, 11 Howard, p. 316. Bissell
v. Penrose, 7 Howard, p. 317.)
By what rule of law is it, that the United States, as proprietors, are deprived
of this common right of all proprietors? And by what rule of law is it, that the
benefit of this common right is taken away from the grantees of the United States ?
Whether the application of the doctrine to lands still occupied by Indians
involve inconvenience to the latter, or not, is a question of public policy for the
United States to determine. Conveyances of such a nature are of no rare occur
rence in the history of the country.
When the States of Massachusetts, Connecticut, New York and Virginia con
veyed their Western lands to the United States, those lands were encumbered
with the occupancy of Indians. So, when the United States and the State of
Georgia entered into their compacts of cession, the lands conveyed were in part
in the occupation of Indians, what then ?
Was it ever imagined that those conveyances were to be held as of no effect
or suspended until the Indians should have been removed ?

47
And if the United States see fit to make such a grant so encumbered, to the
State of Wisconsin, and the State to accept it, what have third parties to do with
the case ?
Is not that a matter which concerns the immediate parties alone, the United
States and the State?
If, indeed, the Indians offered themselves, to object to the conveyance, or any
body claiming under the Indians did ao, that might be conceivable, although it
could not avail to defeat the act of the United States.
But in the present case, the objection is iu behalf of persons who themselves
claim under the United States.
The objection thus proceeds on the most untenable assumption, that the United
States, through a subsequent grantee of theirs, will take advantage of the sup
posed defect in their prior grant to the State of Wisconsin.
Finally, the precise point of the legal effect of a grant of lands under Indian
occupancy, has come before the Supreme Court, again and again, and received
judicial determination.
In the case of Mitchel and others v. The United States, that was one of the
points, and it was expressly held by the Court as the established law of America,
that the Government owns the original fee of the soil, and may grant the same
while the lands remain in the possession of the Indians. (9 Peters, p. 711.)
The same doctrine is deliberately re-affirmed in the ease of the United States
v. Fernandez. (10 Peters, p. 303.)
There is no room whatever to question the law of these decisions. They are
in strict conformity with principle and precedent.
There is another case which dispels all doubt as to the signification of the
decisions in the three cases from North Carolina, cited by Mr. Young.
It is the case of Lattemeer v. Poteet, in which it is directly decided that the
State of North Carolina could grant in fee, lands in the actual occupancy of
Indians. (14 Peters, p. 4.)
There is a case of ordinary occurrence in the legislation of the United States,
which illustrates the same doctrine, and is otherwise pertinent to the question
before me.
I allude to the various provisions of law which assure to each State in which
the public lands lie, a section by number (16) in each township,' for the use of
schools. That is a legislative grant to the State by the United States, as in the
present case. .
It is notorious, that in a multitude of instances the land at the time of the
grant is in the occupation of Indians, and wholly unsurveyed. Nevertheless,
when the Indians have been removed, the lands surveyed and marked, and the
section sixteenth ascertained by locality, it comes into possession of the State.
It was never imagined that, in order to receive its rights, the State, when the
land comes into market, must run a race against all the world, merely because of
the intermediate occupation of the Indians. _ ,
I resume, therefore, to say, that, in my judgment, the State of Wisconsin had,
on the 29th of June, 1848, a vested interest in one undivided moiety of the lands
lying within the limits of grant as described in the act of Congress.
I might stop- here. For, a vested interest in the undivided moiety, waB a vested
interest in the whole, so far at least as to exclude all adversary claims in the right
of the Government. , ...
And the parties who set up title to Portage City against the grantee of the
State, do so by claim of pre-emption for municipal purposes under the act of Con
gress of August 3, 1844, (May 23d 1844) that is, in the right of the United States :
they do not pretend any commencement of occupation until late in 1849 ; ana
their assumed title has its true legal institution on the 1st of June, 1852; and
either of these claims, even the oldest, whatever may be its intrinsic eqmties, it
any, must yield to the still older title of the State. .,,,,,.
But the great care bestowed upon this case by Mr. Young, m behalf of the pre
emption claimants, induces me in regard for him to advert briefly to two or three
other incidental considerations. Owing to the continued occupation of these lands
by the Menomonees, a portion of them (includihg the tract here m dispute) were

48
not surveyed until the year 1851, and did not come into market until the 1st of
June, 1852.
On that day the County Judge entered the land in question as trustee of the
proprietors of Portage City.
On the 8th of July, 185z, the Governor of the State of Wisconsin (Farwell) re
ported a list of lands selected by the State, including the disputed half section, .
for the approval of the President, and the same was approved on the 23rd of Au
gust, 1852.
The hypothesis of the pre-emption claimants of Portage City, is, that the title
of the State dates from these last acts of selection and approval ; and is therefore
posterior to that of Portage City.
To this it might suffice to answer, that the equities of the State are as good
equities as those of the municipal pre-emptors ; and that, in a conflict of equities
of equal intrinsic value, we must go back to their respective inceptions and trace
down their history.
This marshalling of equities is, in many cases, the only method of determining
a question of conflict of title under the land laws of the United States. Ex. qr.
Hofmagle v. Anderson (7 Wheat, p. 212).
And if it be disputed whether the grant to, and acceptance by the State, con
stituted a legal title, it is impossible to deny that the grant itself was at least in-
cipiency of title, on the passage of the granting act then passad, if not a legal, cer
tainly an equitable interest to the future State of Wisconsin. And that equitable
interest was of no uncertain locahty.
It was positively fixed, by words of unmistakable force, at a place, and within ,
limits, fully capable of ascertainment by the ordinary means of giving precision of
location and bounds to any grant.
There was a standing equity in the State of Wisconsin long anterior to any pre
emption claimants, and which older equity could not be lawfully divested by or
through the United States.
Again, the argument of the pre-emptors pre-supposes that selection by the
State was an essential step in the acquisition of title to -any particular section. I
do not concede that in the sense of the argument. It did not need selection to
fix title within definite limits.
The State of Michigan having a float definite only in quantity to be located
somewhere in the State, needed to select, in order to fix the grant. The State of
Iowa having a float dependent on the routeB of pos'sible railroads, needed to fix
the routes of the railroads in order to localize the grant. ¦ Not so here. The
grant was fixed in place and limits as well as quantity by its very terms.
If the act had designated the alternate sections granted, or those retained,
there would have been no selection to make. It omitted to do this, and thus left
to both parties, the grantor and the grantee, a common right in each sec
tion. Selection thus became requisite, simply as a mode of separating the joint inter
est ofthe eo-proprietors, and an agreement that one should take the odd sections,
and the other the even ones, would constitute a selection by the State and an ap
proval by the President.
Now that is precisely what was done.- On the same 29th of June, 1848 on
which the Legislature of the State accepted the grant, its Governor '(Dew'ey)
advised the Commissioner of public lands that he had selected, for the State of
Wisconsin, the unsold lands in the odd numbered sections within the grant
The Commissioner (Mr. Young) replied under date of November 9th, 1848 that
the local land officers had been " instructed to enter on the records and plats of
their offices all the unsold lands in the odd numbered sections within the limits
of that grant (as shown by a diagram of it, which was transmitted to theml as
selected by the State." '
And the officers were also directed to prepare and report a list of the unsold
lands m order to complete formality of the selection.
Meanwhile, these and the future selections were to be. duly submitted to the
Jt 1 681 CLfin t.
All this time, it is true, that portion of the grant which the Indians still occupied,

49
was not in condition for what the Commissioner calls the formal as distinguished
from the real selection. &
That is to say, the odd numbered section's were not yet marked out by survey
with number of township and quantity that remained to be done. '
But the selection had not the less been made, so that when the lands were
surveyed, nothing more— absolutely nothing— would be needed to distinguish the
selections belonging to the State.
It might he convenient afterwards, .to repeat the selections formally by the
township numbers, as Governor Farwell did in 1852, but the substance was
performed, m 1848, by Governor Dewey, and that is expressly Bet forth in the new
statement of selections transmitted by Governor Farwell.
That so it was understood, namely: that the State and the United States had
made partition, is proved by what follows.
The Commissioner, in his letter above quoted, assuming that the act clearly
grants to the State a given quantity of land within defined limits, suggests the
propriety of providing hy law to indemnify the State for any deficiencies in
consequence of previous Bales within those limits by the Government.
The result was the enactment of the Act of March 2nd, 1849, entitled " An Act
in relation to the Fox and Wisconsin river reservation in the State of Wisconsin"
herein before cited at length.
I consider that act as absolutely decisive of the point. To he sure, it speaks,
in the 1st section, only of land entries made in the Green Bay Land District.
But the general provision of the 1st section, and also that of the 2nd section, if
not co-extensive with that of the Aet of August 8th, 1846, yet serve to construe
it, and to authenticate the fact of the selection by the State, accepted by the
United States.
It is expressly as to the lands of the Green Bay district, and impliedly as to the
others, including those of the future Menasha district (to which these belong), a
legislative ratification of the selection made by Governor Dewey, taking the odd-
numbered sections for the State, and leaving the even-numbered ones for the
United States. After this a more particular designation of sections as surveyed,
and the approval of that by the President, would be matter of pure form ; the
title, as title, was already vested and complete in the State of Wisconsin.
Adjudged cases abound in which legislative grants to states have been held to
make good title ipso facto, and others in which the title has been held to vest
only on selection of the particular tract being made by the State.
If prior to the selection the grant be executory, on the selection being made it
becomes executed, and the courts do not favor attempts of another party to obtain
title against the State. (Campbell vs. Doe, 12 Howard, p. 244.)
There is a great deal of documentary matter and of discussion in the case, rela
tive to the nature and grounds of the assumed right ofthe pre-emption claimants
of Portage City.
But ih jny view of the subject there is no room to consider the claims of these
pre-emptors here.
No case of conflict is presented. The State (or its grantees) and the adverse
parties, all claim alike under the United States. The State has the oldest title,
equitable and legal ; its selections, duly made, have -been duly approved by the
"President.; and he cannot lawfully issue to alleged municipal pre-emptors a
patent for lands which have already passed in fee to the State of Wisconsin.
I am, very respectfully,
Signed, C. CUSHING..

50
Exhibit (0.) ' '
Gaines et al. vs. Nichoison et al.
9 Howard, 356 to 366.
George S. Gaines, Francis S. Lyon and jis wife Sarah Lyon, James M. Davenport
and his wife Alethan Davenport, Goodman G. Griffin and his wife Willey
Ann Griffin, George Frederick Glover, Ann Glover, Louisa Davenport Glover,
Mary Thompson, and Mary A. Glover, appellants, versus Isaac W. Nicholson,
Powhattan B. Thermond, Lewis B. Barnes, John T. Moseley, S. M. Goode, and
John Hillman.
Whilst an ejectment suit was pending to try the legal title to a tract of land in
Mississippi, the defendants filed a bill on the equity side of the Court, praying for
a perpetual injunction, upon the ground that the plaintiffs had obtained a patent
from the United States by fraud and misrepresentation : but the fraud is not esta
blished by the evidence, and therefore the bill must be dismissed, and the parties
remitted to the trial at law.
Where there are reservations in Indian treaties, of specific tracts of land, which
are afterwards found to be the sections set apart for school purposes under a gene
ral law, the reservees have the better title. They hold under the original Indian
title which the United States confirmed in the treaty. But where the reservee
claimed under a float, ho specific tract of land being designated for him in the
treaty, this Court abstainB from expressing an opinion, that being the legal ques-
t on pending in the Court below.
i This was an appeal from the Circuit Court of the United States for the Southern
District of Mississippi. It was an appeal from a decree by the equity side of the
Court, granting a perpetual injunction upon the appellants, who were plaintiffs in
an ejectment suit then pending on the law side ofthe court.
In the second article of the supplement of Dancing Rabbit Creek treaty, (7 Stat.
at Large, 340) made on the 27th of September, 1830, there is this reservation : —
"Also, one section is allowed to the following persons, to wit, Middleton Mackey,
Wesley Train, Choclehomo, Moses Foster, D. W. Wall, &e., to be located in entire
sections, to include their present residence and improvement, with the exception
of Molly Nail and Susan Colbert, who are authorised to locate theirs on any un-
improven unoccupied land."
On the 27th of August, 1832, D. W. Wall, one of the reservees, assigned all his
right and title under the treaty to George S. Gaines and Allen Glover, who pro
cured a patent for the sixteenth section to be issued to them in pursuance of this
claim under the treaty, by the President, on the 7th of December, 1838.
In the year 1841, George _S. Gaines, Francis S. Lyon, and the heirs at law of
Allen Glover, instituted on ejectment against John Hihnan, who was the tenant
in possession under the trustees of the school lands. In 1842, these trustees filed
a bill on the equity side of the Court, from which the following ore extracts : 
" Humbly complaining, your orators would respectfully show unto your Hon
ors, that your orators, Isaac W. Nicholson, Powhattan B. Thermond, Lewis B.
Barnes, John T. Moseley, and S. M. Goode, are the trustees of the schools and
school lands reserved by the acts of Congress for the use of schools in township
twelve, range eighteen East, situated in the County of Kemper, in the state of
Mississippi. They would further show unto your Honors, that Section sixteen,
in said township twelve, range eighteen East, was reserved, by the acts of Con
gress, for the uBe of schools in said township, and, being so reserved, your orators
took possession of the same, and leased it tp your orator John Hilman, who went
into possession of said tract of land prior to the 27 th day of March, 1841 and has
continued in possession until this time.
" Your orators would further show unto your Honors, that on the 27th day of
March, in the year 1841, an action of ejectment was instituted on the law side of
this honorable Court, by John Doe, lessee of George S. Gaines and Francis S.
Lyon, and of the heirs at law of Allen Glover, deceased, against your orator John

ence are

51
HUman, for the recovery of said Section sixteen, and to dispossess your orators
therefrom, which suit is still pending undetermined in said Court J
,rt Jr^T-l W<JnM fnJ^« *»? «nto your honors, that by virtue ofthe second
9?tl? Lv f% TP TeUl°l ?an°ing Rabbit Creek treatyf entered into on the
27th day of September 1830, beween the United States and the Choctaw tribe
of Indians, certain portions of land, situated within the territory ceded by the
said Indians to the United States, were reserved to divers members of said tribe
oi Indians, and amongst others a section of land was reserved to David W Wall
in the following words, to wit:-' Also one section is allowed to the following
STw'VV"1? Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D
W Wall, &c, to be located in entire sections, to include their present resident
and improvement^ with the exception of Molly Nail and Susan Colbert, who an
authorized to locate theirs on any unimproved, unoccupied land ' "
"Your orators would further show unto your Honors, that on the 27th day of
August, in the year 1832, the said David W. Wall, by deed of that date, bar
gained, sold, and conveyed to George S. Gaines and Allen Glover all the right,
title, interest, and claim of him the said David W. Wall, in and to a ceitain
reservation of one section, or six hundred and fifty acres of land, made and
granted to him, the said David W. Wall, under and by virtue of the provisions
of a treaty made and concluded between the United States of America and the
Choctaw tribe of Indians, at a place called Dancing Rabbit Creek, in said nation,
in the month of September, 1830.
" Your orators would further show unto your Honors, that the said George S.
Gaines and Allen Glover deceased, falsely and fraudulently pretending and repre
senting to the President of the United States, that the said David W. Wall, at
the date of said treaty, resided upon said section sixteen in the township and
range aforesaid, and had his improvement thereupon, and that they had located
the reservation of said Wall upon the same, on the 7th day of December, in the
year 1838, procured » patent to be issued to them, conveying to them the said
section sixteen, in township twelve, range eighteen east.
"Your orators would further show unto your Honors, that at the date ofsaid
treaty, the said David W. Wall did not reside, nor had he any improvement upon
said section sixteen as aforesaid, but resided at a long distance from the same,
and had no right or title, claim or interest whatever, in said section of land,
which had been reserved, as your orators distinctly and positively aver, for the
use of schools in the State of Mississippi, by the laws of the United States.
" Your orators would further show to your Honors, that the said Gaines and
Glover were so well aware that they had no right to the said section of land, by
virtue of their purchase from the said Wall, that they located the claim of 'said '
Wall at one time, as your orators have been informed and believe, upon another
section of land near Mahew, in Oaktibbeha county ; but finding that their claims
to said last-named section would be disputed, they, in the technical language of
land-mongers and speculators, lifted the same, and laid it upon said section six
teen. Your orators would further show unto your honors, that by virtue of the
patent thus falsely and fraudulently obtained, they have been advised that the
said Gaines and Allen Glover deceased, obtained the highest and best legal title
to said section sixteen, when, in equity and justice, they have no title thereto,
but the same belongs to your orators, as trustees and tenants of the school and
School lands as aforesaid."
The bill then proceeded with the usual interrogatories, prayed for a temporary
injunction, and afterwards a perpetual one.
A temporary injunction was granted.
The respondents in their answer set forth the circumstances of the treaty, aver
that the United States were incapable of making any grant of land which was
reserved by the treaty, and denied the alleged fraud in the folio wing (manner : —
" These respondents further answering say, that the said George S. Gaines and
Allen Glover deceased, never did jointly, nor did either of them severally or
separately, falsely pretend and represent to the President of the United States
that the said David W. Wall, at the date ofthe treaty, resided upon section six
teen, in the township and range aforesaid, and hadhis improvements thereupon ;

52
no such pretence was ever set up or representation made to the President of the
United States, or any one else, by the said George S. Gaines or Allen Glover, in
his lifetime, or either of them. A reference to the record of the executive
department of the government, or even to the published documents relating
to the public lands, would have relieved the complainants from an allegation so
utterly false and unfounded."
To this answer there was a general replication. Some testimony was taken
bearing upon the points of Wall's residence, age, &c, but none touching the
fraudulent representations alleged to have been made in, the procurement of the
patent. On the 18th of November, 1845, the Circuit Court passed the following
decree :
"Be it remembered, that this cause came on to be heard at the present term,
before the Honorable Samuel J. Gholson, Judge, <fec, presiding, upon tbe bill,
answers, exhibits, agreements, and proof in the cause, and upon argument on
both sides; and now, at this day, the court being sufficiently advised, and
because it appears to the satisfaction of the court, that the complainants are
entitled to the relief prayed for by them, it is therefore ordered, adjudged, and
decreed, and the court doth hereby order, adjudge, and decree, that the judg
ment at law in the pleadings mentioned, and all attempts to enforce the same,
be, and the same is hereby, perpetually enjoined ; and. also, that the said defen
dants be, and they are hereby, perpetually enjoined from ejecting and turning
out, or from commencing anj' other or further suit to eject and turn the said
complainants or their successors in office, out of the possession of the seetiop
of land in the pleadings mentioned, to wit, section sixteen, in township twelve,
range eighteen east, ih Kemper county.
It is further ordered, adjudged, and decreed, and the court doth hereby order,
adjudge, and decree, that the defendants shall, within sixty days from the date
of this decree, by deed in fee simple, without warranty, convey, quit claim, and
relinquish, to the complainants and their successors in office, as trustees of
schools and echool lands, all the right, title, claim, and interest which they, the
said defendants or any of them, have, in and to said section of land, and in
default of such conveyance being made by said defendants in the time aforesaid,
then the clerk of this court be, and he is hereby appointed a commissioner to
carry into effect that portion of this decree directing said conveyance. It is
further ordered, adjudged, and decreed, that the defendants shall pay all the
costs of this suit. ' This ordered, adjudged, and decreed, this 18th of November,
1845." From which decree the defendants pray an appeal to the Supreme Court of the
United States, which is granted.
The cause was argued by Mr. Lawrence and Mr. Badger, with whom was Mr.
Inge, for the appellants, no counsel appearing for the appellees,.
The counsel for the appellants made the following points.
1. That by the treaty the whole cession passed to the United. States, subject
to the reservations mentioned in the treaty, which were in the nature of excep
tions out of the grant, and when actuallylocated, according to the treaty, toojfe
effect by relation from its date, so as not to be liable to any disposition by the
United States ; and consequently, if the sixteenth section was rightfully selected
as the location of Wall's reservation, the same could not, by any law of the
United States, be set apart or appropriated to any other purpose ; an,d if such
appropriation in fact was made or attempted, which is not admitted, it was void
as against Wall's claim.
2. That according to the true interpretation of the treaty, eash of the persons
named in the above-quoted clause of the supplement, was entitled to a section,
whether he had a residence or not. The fact of a residence was immateriaj to
the right — which was absolute, independently of residence — and only served to
determine the location where the party liad a residence : those ^eithout resi
dences, and the two persons specially excepted out of the restriction impose^, by
the residence, having necessarily a right to, make locations, on ,any .unimproved
and upofieupied land. Otherwise, the nrajn, purpose of tlip,<fJi»visB would be dijs-

53
appointed, contrary to its true intent upon sound rules of construction. But if
this were doubtful upon the clause itself, our interpretation must still prevail ;
because by the eighteenth article of the treaty (7 Stat at Large, 336), it is
expressly declared and agreed, that even well-founded doubts Bhall be resolved
in its interpretation, in favor of the Indians. And therefore, it not appearing
that Wall had any residence of his own', but it being, on the contrary, proved
that at the date of the treaty he was an unmarried man, without any family,
and residing in the family of another person, the.location of his reservation upon
the sixteenth section was well and rightfully made, and the patent properly
issued. 3. If Wall's reservation was not rightfully located upon the said sixteenth sec
tion, yet the appellees were not entitled to relief.
Their case is, in substance, that Gaines and Glover, by representing lo the
President of the United States, that Wall had a residence in that section, fraudu
lently procured the grant to issue, &c. But all such representations are denied
by the appellants, and no proof is offered to sustain the charge. The appellants
aver, and the fact is, that the location was made .and the grant issued upon a
representation of the truth as they understood it, and with full knowledge of the
facts by the officers of the government. So that if Wall was not entitled so to
locate, the case Was one of mere error on the part of the government in the inter
pretation of the treaty, and not a fraudulent contrivance of the party to pre
judge or mislead those officers.
And therefore, the case, as it appears, would give no ground of relief if truly
stated in the bill: and if it would, yet that case does not. sustain the bill as
framed. ADd upon the whole, it will be insisted that the decree is erroneous,
and ought to be reversed, and the bill dismissed. The following authorities will
be relied on :
On the first point, Doe v. Beardsley, 2 McLean, 412; Stockton-?. Williams, 1
Douglas (Mich ) 547 ; Act of April 21, 1806 (2 Stat, at Large, 401, sec. 6) ; Act of
March 3, 1803 (2 Stat, at Large, '233, sec. 12); Opinion of Attorney-General (Ex.
Doc. 2 sess. 26th Congress), 1419.
On the second point, Enchela v. Welsh, 3 Hawks (N. C.) 155, in connection
with the provisions of the treaty ; Opinion of Attorney-General, 2 Land Laws,
188, 205. On the, third point; Opinion of Attorney-General, 2 Land Laws, 206.
Mr. Justice Nelson delivered the opinion of the Court: _
This is an appeal from a decree of the Circuit Court of the United States, for
the Southern District of the State of Mississippi.
The bill was filed by the appellees in the court below against the defendants,
to enjoin proceedings in an action of ejectment brought to recover possession of
the sixteenth section of township twelve, range eighteen east. County of Kemper,
State of Mississippi. , ,, .,, ,
By the twelfth section of an act of Congress, passed March 3, 1803 entitled
¦• an act regulating the grants of land, and providing for the disposal of the , lands
of the United States south of the State of Tennessee (2 Stat, at Large 229), the
sixteenth section in each township was reserved and appropriated to the support
of schools within the same. And by the sixth section ot an act of Congress,
passed April 21, 1806, entitled an act m addition to the act aforesaid (2 Slat at
targe 401), it was provided that, whenever the sixteenth section should fall upon
landg already granted by Congress, or claimed by virtue of a^ntish grant, he
Secretary of the Treasury should locate another section in lieu thereof for the
ue of schools within ti/townsbip ; and, by an act of Congress ; P-e^anuary
9, 1815, entitled "an act to provide for leasing certain lands reserved foi the
support of schools in the Mississippi Territory' (3 Stat, at Large, 163) it was
provided that the county court of each county in the territory should appoint
^gent,, who were empowered to lease these reserved sections <, for the Purpos, » °*
improving the same, or for an annual rent, as hey might thmk best and to
apply theproceeds t° P^P°^ °f ed?cation «<*»» *a *°WIf£t i™\t± 0„°
provided for laying out the sections into convenient farms, of not less than one
nundred and sixty.™" more than three hundred and twenty acres each ; for the

54
removal of intruders and trespassers ; and for the punishment of all persons cut
ting1 timber, or committing other waste upon the tracts. The last section pro
vided, that the leases granted by virtue of the act should be limited to the period
of the termination of the Territorial government, and should cease after the 1st
of January next, succeeding the establishment of the State government.
It is admitted, that the appellees are the trustees of schools, and school lands
in township No. 12, duly elected and qualified under the laws of the State of
Mississippi ; and that they are charged with the care and management of the
same, (flow & Hutch., Dig., p.' 125, et seq.;) and also that John Hilman, the
defendant in the ejectment suit, was in possession under a lease from the said
trustees. They had taken possession of the section as early as 1834. The suit in eject
ment was brought -in 1841. The premises lie within the territory formerly
belonging to the Choctaw nation of Indians, and which was ceded to the United
States by treaty, at Dancing Rabbit Creek, 27th September, 1830, (7 Stat, at
large, 333.)
By the supplemental articles of that treaty (p. 340), certain reservations were
made to Indians by name, and among others the following: — "Also one section
is allowed to the following persons, to wit: Middletown Mackey, Wesley Train,
Choclehomo, Moses Foster, D. W. Wall, <fcc, to be located in entire sections, to
include their present residence and improvements, with the exception of Molly Nail
and Susan Colbert, who are authorized to locate theirs on any unimproved unoc
cupied land."
D. W. Wall, one of the reservees, on the 27th of Augjist, 1832, assigned all his
right and title, under the treaty, to George S. Gaines and Allen Glover, who pro
cured a patent for the sixteenth section, to be issued to them in pursuance of this
claim under the treaty by the President, on the 7th December, 1838.
The former, and the heirs of the latter, compose the plaintiffs in the ejectment
suit in the court below, claiming under the patent ; and the defendants in the
bill filed to enjoin that suit by the school trustees, claiming under the acts of
Congress above referred to.
The Court below granted a preliminary injunction on the filing of the bill,
staying the proceedings at law, and on the final hearing, decreed a perpetual
injunction ; and also, that the defendants relinquish all their right and interest
in the section to the school trustees and their successors in office. The clause in
the treaty reserving to Wall, among others, a section of the land ceded, upon a strict
consti'uction of its terms,, would seem to confine the reservation to a tract not
exceeding a section, on which he resided, and had made improvements at the date
of the treaty; but u more liberal construction has been properly given to the
elause by the officers of the government, and which was inculcated by the
eighteenth article of the treaty itself, by which the reservee is allowed a section,
although not a resident at the time, and without having made any improvements
upon the particular tract. In cases of residence and improvement, the location
must be such as shall include them.
Wall, it seems, was a minor, and resided with his father at the date of the
treaty, and therefore was not within its terms, so that locality could be given to
any particular section by a reference to residence or improvements. But under
the liberal construction mentioned, the right to a section, notwithstanding, ex
isted, — a right, however, to no particular tract or section, but at large, to be
located upon some portion of the ceded territory, — what in common parlance is
denominated a float.
The deed to Gaines and Glover does not profess to convey- any particular
section, but only his right generally, to that amount of land reserved to him
under the treaty. A location, therefore, became necessary before the issuing of
the patent by the President.
The bill charges that the grantees, Gaines and Glover, in order to induce the
President to issue the patent to them for the sixteenth section of township No 12.
which, it is claimed, had been appropriated by the acts of Congress already
referred to, for the use of schools, falsely, and fraudulently represented that
Wall resided upon the same at the date of the treaty, and had made improvements

55
fc°° V f™ bri.n^nSthe application for the particular parcel of land within
the strict terms ofthe treaty and presenting a case upon which the right to it
was, confessedly paramount to any that could be pretended in the State or town
ship, as a school reservation.
This is the ground set forth by the complainants upon which to invoke the
equitable interposition ofthe court to set aside and annul the patent, and remove
the encumbrance from their title, and to stay the proceedings at law. And un
doubtedly^ if the facts thus charged, have been established by the pleadings and
proofs, a right to such equitable interposition for the relief sought, has been made
out, and the decree of the court below should be upheld.
But, on looking into the answer and proofs in the record, there does not appear
to be any evidence of the fraud or imposition alleged: nor anything to rebut the
presumption, which we must assume till the contrary is shown, that the patent
was issued with a full knowledge of all the circumstances upon whieh the com
plainants rely to invalidate it. Fraud is not to be presumed, and the burden,
therefore, lay upon the complainants to establish it; and having failed, all
ground for the equitable relief failed also, and the court below should have dis
missed the bill, leaving the parties to the settlement of their rights in the action
at law.
In the absence of fraud or imposition in the issuing the patent, the question
was one of conflicting title under the treaty on one side, and the acts of Congress^
appropriating every sixteenth section in the townships for the benefit of schools,
on the other,— a question purely of law.
The State of Mississippi acquired a right to every sixteenth section, by virtue of
these acts, on the extinguishment of the Indian right of occupancy, the title to
which, in respect to the particular sections, became vested, if vested at all, as
soon as the surveys were made and the sections designated No patent is neces
sary, or is ever issued for the school sections, and the question presented is,
whether the general right reserved to Wall under the treaty, to select a section
of land in the ceded territory, operated to suspend the vesting of the title in the
State, till a selection could be made and patent issued under the direction of the
President ; or whether the selection in respect to these general floating rights,
that bound no particular parcel or section, must be made in subordination to the
right acquired by the State.
The question, as before said, is one of law, and should have been left to the
trial at law in the action of ejectment pending between the parties. There is no
doubt but that all persons in whose behalf reservations were made under the
treaty, and who were residents upon any particular tract, and had made improve
ments thereon at its date, were entitled to the section, including their improve
ments, in preference to any other right that eould have been previously acquired
under the government ; because the land embraced within the section, was so
much excepted from the cession. No previous grant of congress could be para
mount, according to the rights of occupancy which this government has always
conceded to the Indian tribes within her jurisdiction.
It was so much carved out of the Territory ceded, and remained to the Indian
occupant, as he had never parted with it. He holds, strictly speaking, not
under the treaty of cession, but under his original title confirmed by the govern
ment, in the act of agreeing to the reservation.
But the question here is, whether the reservation of a, right, not to any par
ticular parcel or section of the Territory ceded, but a right, generally, to have
that quantity of land out of it, and to be located under the direction of the
President, stands upon the same footing, and has the effect to cut off the right
claimed by the* State to have attached under the acts of Congress to the school
section previous to the location made by the President.
We forbear expressing any opinion upon it, as the question is not now
properly before us, and as it belongs tothe action at law, the trial of which
should not be anticipated or the cause prejudged.
We shall therefore reverse the decree, and remit the proceedings to the Court
below, with directions to dissolve the injunction and dismiss the bill oi the
complainants.

56

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit
Court of the United States for the Southern District of Mississippi, and was
argued by counsel. On consideration whereof, it is now here ordered and
decreed by this Court, that the decree of the said Circuit Court in this cause be,
and that the same is hereby, reversed with costs, and that this cause be, and the
same is hereby, remanded to the said Circuit Court, for further proceedings to
be had therein, in conformity to the opinion of this court.

Exhibit (P.)
James M. Cooper, Plaintiff in Error,
vs.
Enoch C. Roberts.
It has always been a cherished policy with the government of the United States
to appropriate the section, numbered sixteen in every township of land for the
use of schools.
Reservations were made in the sale of other lands which contained salt springs
or lead mines, but not in the appropriation of section sixteen for schools.
When the State of Michigan was admitted into the Union, it was upon the
condition that every section numbered sixteen in every township of the public
lands, and where such section has been sold or otherwise disposed of, other
lands equivalent thereto, and as contiguous as may be, shall be granted to the
State for the use of schools.
When the lands are surveyed and marked out, the title of the State attaches to
No. 16, and if there be no legal impediment, becomes a legal title.
The act of March 1, 1847, (9 Statutes at Large, 146) providing for the sale of
mineral lands, does not include section sixteen, which remains subject to the
compact with Michigan.
Under the operation ofthat act, and also the act of September, 1850 (9 Stats.
at Large, 472), a lease made in 1845, by the Secretary of War, of some mineral
lands (including section sixteen), did not confer a right upon the mining company,
who were the assignees of the lease, to enter their lands and obtain a patent for
section sixteen.
It was not necessary for the State of Michigan to obtain the consent of Congress
before making a sale of the section.
Whether or not the officers of the State of Michigan pursued the laws of the
State in effecting the sale, is a question which the occupant of the land cannot
raise in this suit.
This was a case brought up by writ of error from the Circuit Court of the
United States for the district of Michigan.
. It is stated in the opinion ofthe court. It was argued by Mr. Buel and Mr.
Vinton, for the plaintiff in error, and Mr. Truman Smith, for the defendant.
Such of the points only as were included within the decision of the court will
be noticed.
The counsel for the plaintiff in error first considered the questions which arose
. relative to the act of 23d June, 1836, granting school lands to Michigan.
1. Is it simply a law in the ordinary meaning of the term, and, as such, repeal-
able at the will of the law-making power, or does it belong to that class of laws
which are legislative compacts ?
The counsel contended that it was a compact. 5 Stats, at Large, 59, 60.
2. If it be of the latter class, when did it take effect as a compact, and become
obligatory on the parties to it ?
It became obligatory on 25th July, 1836, that being the day on which the

57
fa?i R^Tsf *f Wif"! P,aof dJ^f ac- °f acoePtanoe- Revised Code of Michigan
for 1846, 784 ; 2 Wheat. 196 ; 4 Harrington, 479 ; 9 Wheat. 469
8. Does either possess the power to annul or change any of the essential terms
of it, without the assent of the other 1
Whether the grant of Section 16 operated as a present grant, or was only
a promise that it should be granted in futuro, makes no difference in the Obliga-
tion ol the United States. °
4. Viewed as a compact, what are the rules and principles that govern it?
fte United^tates ?° ati°nS Whi°h ^ art'°le resPeo{inS Seotitm 16 imposes on
The rules and principles which govern it are those which regulate contracts
generally. 1 Pet. Con. R. 453 ; 1 Tenn. 319 ; 3 Ohio, 572.
That the Government cannot resume its grant, and that a grant is a contract
executed, see hew Orleans vs. De Armas, 9 Pet 236. There the court say " It
IB a principle applicable to every grant, that it cannot affect pre-existing titles "
In lerrett vs. Taylor, 9 Cranch, 43, (same case, 2 Pet. Cond. R. 321,) held, that
where the legislature had the authority to make a grant of lands, such grant,
when made, vests an indefeasible and irrevocable title. And in Fletcher vs. Peck,
6 Cfanch, 87,Chief Justice Marshall said: "A grant in its own nature amounts'
to an extinguishment of the right of the grantor, and implies a contract not to
re-assert that right; a party, therefore, is always estopped by his own grant."
Pollard's Lessee vs. Hogan, 3 How. 212.
Whether » contract be executed or executory, it is equally binding on the
parties to it. Fletcher vs. Peck, 2 Pet. Cond. R. 321.
5. What is the meaning and effect of that clause in the article whieh provides,
that where section sixteen has been sold or otherwise disposed of, other lands
equivalent thereto, and as contiguous as may be, shall be granted to the State ?
This was to provide for prior and not subsequent sales. Assuming that the act
of 1836 was only a promise, and that the act of March 1, 1847, embraced section
sixteen, still, Michigan has the better right to it. But that act did not dispose of
the mineral lands without reference to the school reservation.
• 1. Instead of the mineral lands being reserved by the act in pursuance to an
established poliey, it was a primary object of that act to put an end to the policy
that had theretofore prevailed of reserving mineral lands from sale, and to dis
pose of them by sale as soon as practicable, and for the best price that could be
obtained. 2. By the true interpretation of the second section of the act, section sixteen in
every township of the district is expressly reserved from sale ; and also such re
servations a3 the President shall deem necessary for public uses, whether the
same are mineral lands or not.
3. As the interpretation of the court conflicts with prior and existing legislat
ive grants and obligations, those grants and obligations are entitled to the benefit
of every legal presumption and inference in their favor ; and such effect ought
not to be gi veu to the law, unless the intent to produce this conflict be expressed
in manifest and undoubted language.
4. If the act had, in general terms, directed the sale of all the lands in the dis
trict, but was silent as to the lands previously dedicated and granted to schools,
it would not have the effect to divert them from this special use.
Mr. Smith, for the defendants in error, contended : —
1. That the article in the- act of 1836 was conceived in words of the future
tense ; and that the plaintiff below could not make out a title without a patent.
13 Pet. 516 ; 15 How. 433 ; 1 Op. Att. Gen. 273 ; 12 How. 76 ; 14 ibid, 274.
But if we assume that the first article of this compact operated to vest id the '
State of Michigan the fee, or a good and perfect title fo these lands, then the next
question is, whether that title has, through Williams, been transferred to the
plaintiff? To answer which we must, as already mentioned, turn our attention
both to the laws of the United States and of the State of Michigan.
Michigan had no power to sell this section without the assent of Congress. The
income of each section is to be applied to the support of schools in the township

where it is situated, and the State has no power, without the consent of Congress,
to sell it for the purpose of creating a general fund. 14 How. 274.
This is shown by the numerous acts of Congress granting permission to sell.
4 Stats, at Large, 237, 298 ; 5 ibid, 600 ; 10 ibid, 6.
The United States, in granting these lands, are the founders of a charity : 9
Cranch, 292: and their assent is necessary for a sale; 4 Wheat. 518. But
assuming that the State of Michigan has the entire control of the lands, and can
sell them without consulting either the United States or the inhabitants of the
townships where situated ; then the question arises, whether these lands were
sold in conformity with the laws of the State ? The argument upon this point is
omitted. Mr. Justice Campbell delivered the opinion of the Court.
The plaintiff sued in ejectment, to recover a portion of section No. 16, in
township No. 50 north, of Range 39 west, lying within the mineral district south
of Lake Superior, in Michigan.
His ease affirms that this section had been appropriated by the United States
to the State of Michigan for the use of schools, in their compact, by which that
State became a member of the Union ; that the Governor of Michigan issued, in
November, 1851, to Alfred Williams, a patent, evincing a sale of that section
under the laws of Michigan, in February, 1851 ; that he has a conveyance from
the patentee, and that the defendant is a tenant in possession, withholding the
locus in quo from him. The defendant, to support his issue, relies upon a license
given him in 1844, by the mineral agent of the United States for that district,
empowering the donee to examine and dig for lead and other ores, for the term
of one year, and within that time to mark out and define a specific traet of land,
not to exceed three miles square, for mining purposeB ; and, if he should fulfil this
and other conditions, he was to become entitled to a lease for three years, with a
privilege of one or two renewals, under restrictions. The Secretary of War, in
September, 1845, executed a lease for a tract three miles square, which tbe donee
of the tract had selected, and which included the locus in quo, and stipulated to
renew it, if Congress shall not have passed a law " directing the sale, or other
disposition of these lands," and if the lessee shall have complied with all the
conditions of the present lease, and tendered a bond for the fulfilment of the
conditions of the new lease, as described in the act. This lease came to the
Minnesota Mining Company by assignment, and that Company, in 1847, and from
thence till 1851, held possession of the land described inthe declaration, erected
valuable improvements, and made successful explorations for copper upon it. In
November, 1850, the Company applied to the proper officers of the land office,
to enter the land comprised in the lease, and from thence till the date of the
patent in 1 852, the right of the Company to secure the locus in quo by entry was
in dispute in the land office of the United States. In September, 1851, the Secre
tary of the Interior determined adversely to the claim of the Company, and in
favor of the claim of Michigan ; and in 1852, upon proofs that the Company had
complied with the lease, while he re-affirmed his conclusions in favor of Michigan,
allowed the entry ofthe Company, but with a reservation of the rights of Michigan.
The section No. 16, aforesaid, was surveyed in the summer of 1847, and the por
tion in controvesy, in the' report of the geological survey of the district, was
returned to the land-office as containing mines of copper.
There was no application to the department of public lands to renew the lease
held by the company, for the reason (it is said) that the system of letting mineral
lands of this kind had been abandoned, upon the doubts expressed by the
attorney-general, in 1846, of the legality of such leases. Upon the trial of the
•cause in the Circuit Court, the plaintiff moved the Court for instructions to the
jury, that, upon the facts, he was entitled to a verdict, and that the defendant's
patent was invalid. The Court refused the prayer, and told the jury, " that by
the act of Congress of 1st March, T847, all the mining lands within the district,
reported, were taken out of the operation ofthe general law for the disposal of
the public lands, in pursuance of an established policy to reserve from the
ordinary mode of disposing of public lands those that contained valuable salt-

springs, lead mines,- Ac, that they might be leased or disposed of to purchasers
having full knowledge of their value, by reason of the salt springs or mineral
ores they contained, at their full value, for the public benefit. That, by the
above act, all the mineral lands reported by the geologist within the district, in
pursuance of this settled policy of the government, were appropriated and dis
posed of without reference to the school reservation, the appropriation of the
land being made before the surveys were executed, and before the locality of
section 16 could be known. And as it appears from the report of the geologist
that the land in controversy contains valuable minerals, and was within the
boundaries of the lease, under which the Minnesota Company claim, and that
they had made large expenditures thereon for mining, were entitled to the right
of purchase, as provided in the third section of the above law ; and having paid
for the same, it was a disposition of the land which Congress had a right to
make, and was an exercise of power within the grant, That the setting apart
of another section adjacent will satisfy the grant to the State."
Our first inquiry will be into the nature of the right of the State of Michi
gan to section No. 16 in the townships of that State, and the effect of the dis
covery of minerals in such a section upon that right. The practice of setting
apart section No. 1 6 of every township of public lands, for the maintenance of
public schools, is traceable to the ordinance of 1785, being the first enactment
for the disposal by sale of the public lands in the Western territory. The
appropriation of public lands for that object became a fundamental. principle, by
the ordinance of 1787, which settled terms of compact between the people and
States of the north-western territory, and the original States, unalterable ex
cept by consent. One of the articles affirmed that " religion, morality, and
knowledge, being necessary for good government and the happiness of man
kind ;" and ordained that " schools, and the means of education should be for
ever encouraged." This principle was extended, first, by congressional enact
ment, (1 Stats, at Large, 650, § 6,) and afterwards, in 1802, by compact between
the United States and Georgia to the south-western territory. The earliest
development of this article, in practical legislation, is to be found in the organi
zation of the State of Ohio, and the adjustment of its civil polity, according to
the ordinance, preparatory to its admission to the Union. Proposals were made
to the inhabitants of the incipient state to become a sovereign community, and to
accept certain articles as the condition of union, which being accepted, were to
become obligatory upon the United States. The first of these articles is, "that
the section No. 16 in every township, and where such section has been sold,
granted, or disposed of, other lands equivalent thereto and most contiguous to the
same, shall be granted to the inhabitants of such township, for the use of schools."
A portion of this territory had been encumbered in the articles of cession by
the States, and another portion by Congress for the fulfilment of public obliga
tions, prior to the ordinance of 1785, and without reference to the school reserva
tions; therefore, uniformity in the appropriation of the section No. 16 was par
tially defeated. The south-western territory was similarly burdened in the com
pact of cession by Georgia, with the fulfilment of antecedent obligations, and
similar paramount obligations have arisen in treaties with the Indian.tnbes who
inhabited it. The rights of private property vested in the inhabitants, ceded with
Louisiana and Florida, and guaranteed to them in the treaties of cession, created
an obstruction to the same policy within them. But the constancy with which
the United States have adhered to the policy in the various compacts with the
people of the newly- formed States, and the care which Congress has manifested
to prevent the accumulation of prior obligations which might interrupt it, fully
display their estimate of its value and importance. There is, obviously, a definite
purpose declared to consecrate the same central section of every township of every •
State which might be added to the federal system, to the promotion of good
government and the happiness of mankind," by the spread of "religion morality,,
and knowledge," and thus by a uniformity of local association, to plant m the
heart of every community the same sentiments of grateful reverence for the wis
dom, forecast, and magnanimous statesmanship of those who framed the institu
tions for these new States, before the constitution for the old had yet been mo-

60
del-led. Has the discovery of minerals of value upoii this section been deemed a
sufficient cause for its withdrawal from the operation of this policy, and the com
pacts which developed it?
The ordinance of 17S5 dedicated the section No. 16 for the maintenance of
public schools, and in each sale of the public lands there was by the same ordi
nance a reservation of one-third part of all gold, silver, and copper mines within
the township or lot sold. No reservations were afterwards made of gold, silver,
or copper mines until the act's of March, 1847. By the act of March 26, 1804,
and the act of March, 1807, every " grant of a salt spring or a lead mine there
after to be made, which had been discovered previously to the purchase from the
United States, was to be considered null and void." (2. Stats, at Large, 279, § 6).
These statutes indicate a policy to Withdraw from sale lands containing these mi
nerals. But the compacts have been made without such a reservation, nor has the
usage of the land-office interpolated such an exception to the general grant of the
section No. 16 for the use of schools. The grant of the section No. 16 for the use
of schools can be executed without violating the spirit of the legislation upon salt
springs or lead mines, and, as we have seen, no statute prior to the admission of
Michigan to the Union contains an appropriation or reservation of other mineral
lands. The State of Michigan was admitted to the Union, with the unalterable
condition "that every section No. 16 in every township of the public lands, and
where such section has been sold or otherwise disposed of, other lands equivalent
thereto, and as contiguous aB may be, shall be granted to the State for the use of
Schools." We agree, that until the survey ©f the township and the designation
of the specific section, the right of the State rests in compact — binding, it is true,
the public faith, and dependent for execution upon the political authorities. Courts
of justice have no authority to mark out and define the land which shall be sub
ject to the grant. But when the political authorities have performed this duty,
the compact has an object, upon which it can attach, and if there is no legal im- ¦
pediment the title of the State becomes a legal title. The jus ad rem by the per
formance of that executive act becomes a. jus in re, judicial in its nature, and under
the cognizance and protection of the judicial authorities, as well as the 'others.
Gaines vs. Nicholson, 9 How. 356.
The question now arises whether the act of March 1, 1847, created a legal
impediment to the operation of this principle, either by the reservation of the
land for public uses, or by its appropriation to superior claims. In March, 1847,
Congress established a land district in this region for the disposal of the public
lands. It directed a geological survey for the ascertainment of. those containing
valuable ores, whether of lead or copper, and a report to the land office. It pro
vided for the advertisement and sale of such lands, departing in a measure from
that usual mode, as to the length of the notice and the amount of price ; and in
reference to the remainder of the lands it applied the usual regulations. To the
section containing these directions (9 Stat, at Large, 146, § 2), there is added an
exception from such sales, section No. 16, "for the use of schools, and such
reservations as the President shall deem necessary for public uses." It has been
argued that this exception is only applicable to the lands not contained in the
geological report, and that the mineral lands " were appropriated and disposed of
without reference to the school reservation by this section of the act." But it
does no violence to the language to embrace within the exception all the sales for
which the section provides, aud we cannot suppose that Congress could be tempt
ed with the hope of a small additional price, which is imposed upon the pur
chasers of the mineral lands, to raise a question upon its compact with Michigan,
or to disturb its ancient aiid honored policy. We think the interpretation which
claims this as an exception in favor of Michigan, is to be preferred to that which
excludes her from the mineral lands under this compact. And this conclusion is
strengthened by the fact that the power of the President to make useful public
reservations, is connected in the exception with the school reservations. There
could be no reason for limiting the power of the President to a single class of the
public lands, and to exclude him from another in the same district. We conclude
that this act does not withdraw the mineral lands from the compact with
Michigan.

61
Did theexecution ofthe lease by the Secretary of War in 1845, before the survey
of the lands, dispose of these lands so as to defeat the claim of the State ? The Minne
sota Mining Company, at the date of the Act of March 1st, 1847, held the unex
pired lease by assignment, and continued to perform its conditions until their patent
was issued. The 3rd section of that act authorized the persons in possession
uixder such a lease, who had fulfilled its conditions, to enter in one trapt all the
lunds included in it, at a diminislked price, " during the continuance of-the lease."
The 4th section directed the sale of the mineral lands contained in the report, but
with a proviso, thot none of the lands contained iji any outstanding lease, whose
condition had been fulfilled, should be sold till the expiration ©f the lease, either
"by efflux of time, voluntary surrender, or other legal extinguishment." The
Afit of Copgress of September, 1860 (9 Stats, at Large, 4? 2), abrogated such of the
clauses of the f^at pf 1.847 ,_ which distinguished the mineral from other public
lands, and placed them alike under the ordinary system for the disposal of the
public domain, but reserved to lessees and occupants the privileges conferred by the
Act of 1847, _ From that time,, therefore, the argument " that the mining hinds
within the district were taken out of the general law fpr the disposal of the
pjijjlic lands by the Act of March, 1847," lost aU its cogency, and the rights ofthe
Minnesota Company depended entirely upon the validity of the lease and the
protection accorded to the lessee. The lease expired by " efflux of time," in
September, 1848. There was no renew al of the lease, for the double reason that
its original validity was doubted by the highest executive authority, and those
doubts were submitted to by the lessee, and because Congress had passed the law
for the disposal ofthe mineral lands, which determined the covenant for renewal,
by the terms of the lease itself.
Hence, had there been a legal impediment to the execution of the compact
with Michigan, erected either by the second section of the act of 1847, which
.separated for some purposes the mineral from other public lands, or by the privi
leges granted to lessees or their assigns, in the 3d section of that act, it was
removed by the repealing clause of the act of 1850, and the non-compliance with
the conditions on which the privileges depended. The section No. 16 was, at
that date, disencumbered and subject to the operation of the compact, whatever
might have been its pre-existing state. That compact had not been fulfilled by
an assignment to the State " of equivalent lands, contiguous as may be," under
the act of May 20, 1826. (4 Stats, at large, 179.) Shortly after the passage of
the act of 1850, we find Michigan asserting her claim to thi3 Bection, advertising
it for sale, and selling it to the vendor of the plaintiff. We also find the officers
of the land office of the United States denying the right of the Minnesota Mining
Company to enter the land, and, admitting the superior title of the State of
Michigan, and finally reserving those rights in the patent issued to the Company.
We entirely concur with these officers in their decision on the subject of contest,
for the reasons we have given. We think that the jury should have been
instructed that the section No. 16 was vested in the State of Michigan at the
date of the entry by the Minnesota Mining Company, and that the Company did
not, acquire title by its patent.
The defendant insists that the title of the plaintiff is invalid, for the reason
that the State of Michigan was not empowered by Congress to sell the School
Reservations. Where such grants have been made to the State or to the inhabit-
' ants of the township for the use of Schools, it has been usual for Congress to
authorize the sale of the lands, if the State should desire it. (4 Stats, at Large
138, 237, 298: 5 ib. 600.) But this consent waB not, perhaps, necessary, and the
application for it is but evidence of the strong desire of the State authorities to
act in good faith, and to keep within the pale of the law. (4 Ala. R. 622.,)
The trusts created by these compacts relate to a subject certainly of universal
interest, but of municipal concern, over which the power of the State is plenary
and exclusive. In the present instance, the grant is to the State directly, with
out limitation of its power, though there is a sacred obligation imposed on its
public faith. We think it was competent to Michigan to sell the school reser
vations without the consent of Congress.
The defendant further objects, that the officers of the State violated the sta-

62
tutes of Michigan in selling these lands, after they were known, or might have
been known, to contain minerals. Without a nice inquiry into those statutes, to
ascertain whether they reserve such lands from sale, or into the disputed fact
whether they were known, or might have been known, to contain minerals, we
are of the opinion that the defendant, is not in a condition to raise the question
on this issue. The officers of the State of Michigan, embracing the chief magis
trate of the State, and who have the charge and superintendence of this property,
certify this sale to have been made pursuant to law, and have clothed the pur
chaser with the most solemn evidence of title. The defendant does not claim in
privity with Michigan, but holds an adverse right, and is a trespasser upon the
land to which the title is attached.
Michigan has not complained of the sale, and retains, so far as the case shows,
the price paid for it. Under these circumstances, we must regard the patent as
conclusive of the fact of a valid and regular sale on this issue.
Upon the whole record, we think the jury should have been instructed,- that if
they found the facts thus given in evidence to be true, the plaintiff was entitled to
recover the premises in question.
Judgment reversed; cause remanded — a venire to issue. Cooper vs. Roberts,
18 How p. 173 to 182.

I.

i>

¦¦'¦¦'