equitable titles created by entries were subject to assignment and inheritance. Many years frequently passed before the further proceedings essential to the procurement of patent were had, and in many instances such proceedings were not had within the statutory period. Meanwhile the lands had been sold for taxes or by order of probate courts and otherwise.

Where the parties to the original entry had omitted to obtain legal titles and the period in which legal titles might have been obtained had passed and nearly a generation of time had subsequently intervened and the lands had long been in peaceful possession and actual occupancy under possessory rights and titles derived through tax sales or judicial proceedings, or by purchase from the holders of the original entry, the evidence of which was often imperfect and not infrequently lost, there was manifestly good reason why legislation that would provoke litigation and throw titles into confusion or disturb long possession under claim of title should be avoided.

The second section of the act of 1880 declared valid all legal surveys that had been returned to the land office on or before March 3, 1857, on entries made on or before January 1, 1851. The effect of this section was to confirm all patents that had been issued on such surveys and to prevent the grantees of the State, under the act of 1871, from asserting claim to any such lands on account of defective proceedings or technical irregularities connected with the surveys and entries on which the patents were issued.

A mistake of the land office in issuing patents where the basis of the patent was legal but the proceedings in some manner irregular could not thereafter be inquired into by the courts.

Surveys had been made, but not returned within the time prescribed in the act under which they were made, but were returned before March 3, 1857.

The surveys so validated were such as had been returned to the General Land Office at the seat of government on or before March 3, 1857. It has been argued before me that the office of the principal surveyor of the Virginia military district at Chillicothe was meant as the office to which the surveys should be returned, or that, if returned to that office, they were validated by the act of 1880. The proposition is untenable. The office to which the returns were to be made under former laws, to which the provision of this act conformed, was the General Land Office, at Washington, as successor to the Department of War for this purpose.

There was otherwise no evidence of the survey, and no basis on which a patent could be issued.

The return to the General Land Office was a positive requirement of law and a precedent condition to the acquirement of any rights under the entry, failure in compliance with which was fatal to the legality of the survey. Legal surveys only were affected by the provisions of the second section.

A survey not returned to the General Land Office on or before March 3, 1857, was not a legal survey. Notice to the world of the appropriation of the land must have been given in the manner prescribed by the statute, and a survey filed elsewhere than in the office designated by law was not notice to anybody, and no rights could be established, maintained, or concluded in the absence of such notice filed in the General Land Office within the prescribed time.

As a minor but no less effective, consideration it may be observed that the office of the principal surveyor of the Virginia military district. is never termed a "land office." The descriptive words "land office" and "general land office" are sometimes used convertibly; the words "land office" and "office of the principal surveyor," etc., are never so used.

The Land Office is an office of the government universally recognized by this descriptive designation. The office of the principal surveyor of the Virginia military district is not. This latter office is specifically mentioned in the third section of the act, in relation to the record required by previous laws to be made in that office. The "General Land Office" is also mentioned in said section, in the same relation as “land office" is mentioned in the second section.

Obviously, there was no intention of confounding the General Land Office with the office of the principal surveyor of the Virginia military district, or of confusing the functions, duties, or obligations respectively connected with those district offices.

An essential modification of a system that had been maintained from the period of establishment of the boundary line of the Virginia military district cannot be assumed by implication. The proposition to which I have adverted appears to have been raised upon the point that the initial letters of the words "land office" in the second section of the statute are not printed in capitals. This is a mere clerical or typographical incident, and does not control the law. If it were of sufficient importance to be mentioned, it might be stated that in the Report of the Senate proceedings (Cong. Record, vol. 10, 2d sess. 46th Cong., p. 3572) it is seen that this section as inserted in the bill by the Senate used the words "Land Office," spelling the same with capital letters. The substitution of small letters was apparent faney or accident of the copying clerk.

The third section of the act of May 27, 1880, is not a revival of the act of 1804. It is a new act and it is in effect and in fact a new grant. The parties entitled to bounty lands under former laws, but whose rights had lapsed by the efflux of time and the limitations of the statutes, were allowed three years in which to make surveys in cases in which by virtue of a proper warrant, entries had been made and duly recorded on or before January 1, 1852, and where the surveys had not been made previous to the passage of this act. The language of the act is "shall be allowed three years from and after the passage of this

act to make and return their surveys," etc. Such surveys were to be recorded in the office of the principal surveyor, and the original plat of survey and the warrants or certified copies of warrants were to be filed in the General Land Office in the same manner as formerly provided by the act of 1804. This was the application of the old and familiar method of the new grant.

An important limitation of the act is the restriction of its application to cases where there had never been a survey and it is in such cases only that a survey was authorized to be made in the manner and within the time prescribed and patent authorized to be issued. Patents could therefore be issued only on surveys made after the passage of the act, and not on surveys made before the passage of the act.

Congress is presumed to be familiar with the subject-matter of its legislation and the reasons which under the existing situation of titles to lands in the Virginia military district would have sanctioned and in justice and equity required; this limitation must be presumed to have been the reasons which operated on the legislative mind in affixing such limitation and restriction. After making an entry by virtue of their warrants and obtaining surveys many parties neglected to return the surveys and warrants to the General Land Office as required, and therefore never obtained legal title to the land. Whether this was mere negligence or a design to escape taxation, is not material. The fact is known to be that such title as the holders of entries or their assigns originally had, passed by tax sales and otherwise to third parties and their transferees and that the lands at the date of the passage of the act of 1880, were as now the cultivated farms and homes of numerous citizens.

To have authorized the issue of patents to the original holders of entries or their immediate assigns who had slept on their rights for a period of from twenty-five to seventy-five years would have been to prefer stale equities to living rights and to provide a means of wholesale ejectment and dispossession of actual occupants and the speculative acquirement after a life-long evasion of a participation in the public burthens and, without compensation to the injured parties, of property increased in value by the growth of population and the labor and means of those who had lawfully nurtured and improved it under the protec tion of the laws of the State. Congress did not intend to perpetrate an injustice of this magnitude and I find in this necessary inference a reason which satisfies me that the proper construction of the third section of the act of May 27, 1880, is that which follows the strict literal and natural import of the words employed in the statute. If there were any doubt upon this point it would be removed by a consideration of the nature of the act, which I do not regard as of the essence of a remedial statute but as a grant de novo, operating upon lands that had been released from all prior reservation for the satisfaction of military claims. I do not, however, esteem the law doubtful. I do not think it

the law or the intention of the law that ancient surveys not lawfully returned prior to March 3, 1857, or surveys made without lawful authority between March 3, 1857, and May 27, 1880, should be habilitated and patents issue thereon under this act.

The third section comprises the sole existing authority for the issue of patents on surveys founded on Virginia military warrants. It authorizes patents to be issued in certain clearly defined cases; namely, where the warrant was entered on or before January 1, 1852, and the survey had not been made and returned to the General Land Office at the date of the passage of the act, but should after that date be made and recorded in the office of the principal surveyor of the Virginia military district and returned to the office of the Commissioner of the General Land Office together with the original or certified copies of the warrants.

Patents can only be issued when specifically authorized by law. Specific authority is found in this section for the issue of patents in the cases thus described in the statute. No authority exists under this act for the issue of patents in any other case or class of cases, and if there were any doubt upon this point it would still be my duty to decline to issue patents in doubtful cases by the very reason of such doubt.

Applying the principles and views above set forth to the case presented by you, I find as follows:

1st. An entry appears to have been made by virtue of the warrant prior to January 1, 1852, to wit: in or prior to 1822, and if so the case is to that extent within the statute.

2d. The survey was made in 1822, as would appear from the purported copy now filed, but was not returned to the office of the Commissioner of the General Land Office on or before March 3, 1857, and so far the case is not within the statute.

3d. There is no authority of law under which a patent can issue in this case.

JEREMIAH HALL.*

Review of the case and statute, applicable thereto, and affirmance of Commissioner's decision of May 9, 1882, ante.

Secretary Teller to Commissioner McFarland, January 31, 1883.

I have considered the appeal of Jeremiah Hall, esq., of Circleville, Ohio, from your decision of May 9, 1882, refusing to issue a patent, upon his application therefor as attorney of Samuel Ruggles et al., for 150 acres of land in the Virginia military district in the State of Ohio.

The application was filed in your office on the 12th of May, 1880, and is founded on survey No. 12096, made by virtue of Virginia military land warrant, No. 584, for 200 acres, which warrant was granted for the

* See 4 L. D., 373.

services of Aquilla Norvall, a sergeant of the Virginia Continental Line, in the war of the Revolution.

The survey was made in the name of said Aquilla Norvall, and the application for patent contains request that the patent be issued in his

name.

The main question to be decided is does the law authorize the issue of a patent on said survey No. 12096? A decision of this question involves the consideration, in the light of existing law, of certain facts relative to the warrant and survey by virtue of which patent is claimed. In other words it becomes necessary to inquire whether said warrant and survey have now any such vitality and force as would constitute them a legal basis for the issue of patent as desired. It appears that the survey was made on the 28th of December, 1822, and was recorded in the office of the principal surveyor at Chillicothe, Ohio, on the 27th of January, 1823. It is stated that both the warrant and the original certificate of survey have been lost, and in lieu thereof an alleged duplicate of copy of each was filed in your office with the application for patent.

The paper filed as duplicate of survey is not certified, and does not carry with it conclusive evidence that survey was made, or that it is what it purports to be; but, as suggested by you, this technical defect is one which might be cured, and therefore for the purpose of this decision, which is to reach a conclusion on the main question, the case will be treated as if the record were complete as to the fact of survey. `

It is shown that the warrant, upon which the survey in question was made, had not, at least as lately as December 1875, been satisfied. Assuming that it has not yet been satisfied, the main question naturally recurs is there authority of law for its satisfaction at this late day by the issue of patent on survey No. 12096? As long ago as August 10, 1790, Congress passed an act entitled "An act to enable the officers and soldiers of the Virginia line on continental establishment to obtain titles to certain lands lying northwest of the river Ohio, between the Little Miami and Sciota." (1 Stat., 182.) This was followed by the act of June 9, 1794 (1 Stat., 394), prescribing more particularly the method of obtaining patents for such lands.

By the act of March 23, 1804 (2 Stat., 274), Congress placed certain limitations upon the preceding acts. The second section of the act of 1804 required of those entitled to bounty land, or their legal representatives, that to obtain patents they should "complete their locations within three years," and "make return of his or their surveys to the Secretary of the Department of War within five years after the passing of this act, and every person entitled to said lands, and thus applying, shall thereupon be entitled to receive a patent in the manner prescribed by law."

These requirements were conditions precedent, and as such it was necessary that they be strictly complied with before the benefits of the