act could be enjoyed. This proposition rests upon a principle of law too well recognized to need argument or citation in its support. The implication of the law quoted from section 2 is that such of these reserved lands as were not effectually appropriated within the time of limitation were released from all claims for bounty lands, and became subject to disposal by the United States the same as other public lands. This, however, was not left to implication. Section 3 of the act specifi cally provided for the release from reservation and the disposal by the United States of such of the reserved territory as had not been located and the surveys whereof had not been returned within the time prescribed by the act. As long ago as 1828, the supreme court, in the case of Jackson v. Clark (1 Peters, 628), decided this to be the purpose and effect of the law. In that case Chief Justice Marshall said:

Although then the military rights constituted the primary claim on the trust, that claim was, according to the intention of the parties, so to be satisfied as still to keep in view that other object, which was also a vital interest.

That other object was the disposal by the United States, for the purposes of another and a different trust, of the lands not appropriated under the military trust, and on this point the Chief Justice remarked that "unless some time might be prescribed, the other purposes of the trust would be totally defeated, and the surplus land remain a wilderness."

The fact (1) that Congress by the act of 1804 provided for the disposal by the United States of all the lands in the Virginia military reservation in Ohio not completely segregated and appropriated as bounty lands by the location of warrants and the proper return of surveys thereunder within a prescribed time, and (2) that it had a right to make such disposal, being settled by so high an authority, the next inquiry is, how was the act affected by subsequent legislation?

Subsequent to 1804 successive acts, a dozen or more in number, were from time to time passed, the principal features of which were provisions extending the time for making locations, and for making and returning surveys. Their general effect was to revive and continue in force, for a limited time, the beneficial provisions of section 2 of the act of 1804. Section 3 of said act was not incorporated into any subsequent act, but it was not repealed, and may properly be construed as a general provision of law applicable to any subsequent act extending the time of limitation, as well as to the act of which it forms a part, and for the same reason. It could not become operative, even under the act of which it was a part, until the expiration of limitation named in the act, and when said limitation was by subsequent acts extended, such extensions of time were in the nature of amendments to section 2 of the act of 1804; and the effect was to further hold in abeyance section 3 of the act until the expiration of limitation prescribed by said act and the numerous acts amendatory thereto, after which it should, and did, be

come fully operative, according to its terms, in the same manner as if there had been no legislation subsequent to the act of 1804 extending the time for returning surveys. Following this view, the next question suggested is, when did said section 3 take effect and become fully operative? It is unnecessary to review, or even to cite, all the intermediate acts between 1804 and May 27, 1880, the date of latest legislative expression relative to locations and surveys under continental warrant. It is sufficient to say that they did not all connect as to time of limitation-that is, in some instances the limitation prescribed has expired and some time elapsed before the passage of a subsequent act reviving and continuing the same. These omissions were remedied, however, by the first section of the act of July 7, 1835 (5 Stat., 262), which, after further extending the time for completion of locations and return of surveys, also provided that

All entries and surveys which may have heretofore been made within the said reservation, in satisfaction of any such warrants, on lands not previously entered or surveyed, or on lands not prohibited from entry and survey, shall be held to be good and valid, any omission heretofore to extend the time for the making of such entries and surveys to the contrary notwithstanding.

This provision of law was in terms revived and continued in force in the several subsequent acts of extension down to and including the act of February 20, 1850 (9 Stat., 421), which act named the 1st day of January, 1852, as the final limitation of time for the return of surveys and for the operation of the proviso above quoted. After the last-mentioned date, no entries could be made and no surveys could be returned. What, then, became of the lands within the reservation which had not, at that date, been effectually appropriated by the issue of patents or by location and proper return of survey? Being no longer subject to entry as bounty lands, were they to remain a barren wilderness-wild lands, subject to no control-or were they released from reservation and subject to disposal by the United States? Manifestly the latter, and by authority of section 3 of the act of 1804, which has never been repealed, but which, being no longer held in abeyance by the numerous acts extending the time for locating Virginia military land warrants and returning surveys thereon, now becomes fully operative, and under its operations located lands the surveys whereof had not been returned to the General Land Office were as much at the disposal of the United States as were those upon which no location had been made. The lands thus subject to disposal must so remain until disposed of or until later legislation changing the conditions. The next legislation in the nature of extension of time to those entitled to Virginia military bounty lands was the act of December 9, 1854 (10 Stat., 598). This act allowed those who had made entries prior to January 1, 1852, two years from the date of its passage in which to make and return their surveys of lands covered by such entries. The provisions of the first section of the act of 1838, relative to former entries and surveys, which had in all subse

quent acts down to that of 1850 been re-enacted and continued in force are not found in the act of 1854. This act omitted to mention surveys made prior to its passage. It did not, as did the preceding acts, provide for the return of "surveys which may have heretofore been made," but did provide for the making and returning of surveys on entries made prior to January 1, 1852. In other words, it had sole reference to such surveys as might be made subsequent to the date of its passage and within two years therefrom.

Now, it cannot be presumed that Congress inadvertently, or without purpose, made the omission. Its purpose must have been to exclude surveys made prior to the passage of the act. Such is the plain import of the language of the act. On the 3d of March, 1855, Congress passed another act (10 Stat., 701), the first section of which is a repetition in identical words of the act of 1854, except that it further extends the time for making and returning surveys by allowing two years from and after its passage for such purpose. The second section repeals the act of 1854, evidently for the reason that, this act having taken its place, there was no longer any occasion for its existence. So we still find no provision since the act of 1850 for returning old surveys.

The next act relative to these lands was that of February 18, 1871 (16 Stat., 416), providing for the cession to the State of Ohio, upon certain conditions, of such of them as remained "unsurveyed and unsold." This act in effect recognized the force of section 3 of the act of 1804 and the authority of the United States to dispose of the unappro priated lands in the Virginia military district in Ohio, and simply prescribes the manner and direction of the disposal of certain of those lands.

This brings me to a consideration, in its chronological order, of the act of May 27, 1880 (21 Stat., 142), and its effect upon the survey in question. The purpose of this act was, among other things, "to construe and define" the act of 1871. In so doing it limited the cession to the State to lands

Unappropriated, and not included in any survey or entry within said district, which survey or entry was founded upon military warrant or warrants upon continental establishment.

This excepted (1) all lands which had been appropriated by patent or by location and legal return of survey, and (2) all lands covered by entry or survey which had not been legaily returned. This second exception did not rest on any want of legal title in the United States to the lands described, but was evidently made on the ground of policy and in recognition of certain equitable rights which during a long series of years had grown up in the occupants of said lands. The act, as a whole, like that of 1871, recognized the vitality and operation of the third section of the act of 1804, by authorizing the disposal to the State. If the title were not in the government, how could it, by cession

or otherwise, confer title; and if it did not have the right of disposal, how could it make disposal as the act provided it should?

Section 2 of the act of 1880 declared valid "all legal surveys returned to the Land Office on or before March 3, 1857, on entries made on or before January 1, 1852." This section, like the preceding one, was intended to protect certain equitable rights which by purchase and occupation has attached to the lands covered by such surveys. If patent had issued, the title of occupants holding thereunder should not be attacked because of some technical defect in the preliminary proceedings leading to that patent. If no patent had issued, the occupant, holding under an equitable title coming to him by purchase, and having possibly for its original foundation a tax title from the State, or perchance a contract of purchase from the person in whose name the survey was made, shall be protected and remain in undisturbed possession, even though the actual amount of land in any case be in excess of that authorized by the warrant on which the survey was made. Section 2 finds a basis in the maxim that "the law favors quiet and repose." Under it the applicant for patent in this case can have no claim, for it contains no provision authorizing the issue of patents; and if it contained such provision, the applicant would not be benefited thereby, because the survey under which he claims was not returned to your office prior to March 3, 1857. It is contended, for the applicant, that the words "land office," as found in the section, mean the office of the principal surveyor of the Virginia military district at Chillicothe, and that as the survey No. 12096 had been filed in that office prior to 1857, it is valid within the meaning of the law. The fallacy of this proposition has been so clearly set forth in your decision that I deem its further discussion unnecessary. It is sufficient to say that, in the light of all previous legislation relative to the return of these surveys, " as well as in view of the manifest propriety and necessity of such papers lodging in the General Land Office (in order that they may become complete public notice of the fact of survey), there can, I think, be no doubt that by the term "land office," as used in section 2, is meant the General Land Office.

Does the application come within the provisions of the third section of the act of 1880? That section allows three years from and after the passage of the act in which "to make and return" surveys on entries made "on or before January 1, 1852." It will be observed that it contains two restrictions as to time: First, the entries must have been prior to January 1, 1852; and second, the survey must be made and re. turns within three years from and after the passage of the act. The latter restriction clearly excludes the application under consideration, for the reason that the survey upon which it is based was made long anterior to the passage of the act of 1880, to wit, in December, 1822.

The remarks made on foregoing pages hereof as to the effect of the acts of 1854 and 1855, are applicable in this connection, and need not be

enlarged upon. In this act, as in those, the language "from and after the passage of this act to make and return their surveys" occurs, and for reasons already given relates exclusively to surveys made after the passage of the act. On such surveys only can patents properly issue. The tenor of the act as a whole clearly indicates that Congress had in view the protection and preservation of certain equitable titles to lands within the Virginia military district in Ohio, which were held by persons who had come into possession in the belief that they had acquired full legal title. It is not to be supposed that any part of the act having this object in view is by a strained construction to be given. such effect as would defeat and destroy the very equities it was designed to protect. In other words, Congress did not intend to place in the law a section which, as between stale equities based upon old surveys made twenty-five or fifty, or, as in this case, sixty years ago, and allowed to slumber ever since, and living rights based upon purchase and occupancy, would favor the former to the destruction of the latter. In these considerations is found the reason of the law for the exclusion of surveys made prior to the passage of the act, they being surveys from thirty to seventy-five years old. I find no authority of law for the granting of patent as asked on survey 12096, in the Virginia military district in Ohio, and your decision is, for the reasons herein stated, affirmed.

MILITARY BOUNTY LAND WARRANTS.

JOHN F. TIPTON.

The only act of Congress which confers authority to issue patents for such lands is that of May 27, 1880, which is restricted to cases of entries made prior to January 1, 1852, and not surveyed.

Commissioner McFarland to John F. Tipton, Bloomington, Ill., April 3, 1882.

You are informed in answer to your letter of the 10th February last, that an examination of the records of this office shows that entry No. 386 for 1,000 acres of land in the Virginia military district, Ohio, founded on Virginia military land warrant No. 738, for 7,000 acres, issued to Mace Clements, a surgeon in the continental line in the war of the Rev. olution, was made by him August 1, 1787, and same carried into survey in his name November 13, 1787, which was "examined and recorded" in the surveyor's office of said district, March 28, 1788, but never returned to this office for patents.

You are further advised that there is now no authority of law for the issue of a patent in the case, should the said survey, etc., be now returned for such purpose.

The only existing act of Congress which confers authority to issue patents for lands in the said Virginia military district, Ohio, is that

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