11 Mich. 186 | Mich. | 1863
This was an action of ejectment, brought by the plaintiffs below (plaintiffs in error) to recover a portion of section sixteen in township fifty north of range thirty-nine west, in the Lake Superior Land District.
The plaintiffs claim under a patent from the United States, issued April 9th, 1852, purporting to convey the lands in question (together with a large • amount of lands on other sections in the same township, not here in controversy). By the evidence in the case, this patent appears to have been issued upon a pre-emption purchase under the act of March 1st, 1847: — 9 U. S. Stat. at Large, p. 146. The patent recites that full payment has been made according to the provisions of this act, and the act of ■September 26, 1850, reducing the minimum price of the mineral lands. The act last referred to has no bearing upon any question raised in this case. The patent contains an express reservation of “any right which the State of Michigan mpy have in and to” the lands on section sixteen mentioned in the patent, “under or by virtue of the provisions of the first section of the act of Congress of the 23d day of June, 1836, entitled “an'act supplementary to the act entitled an act to establish the northern boundary line of the State of Ohio, and to provide for the admission of the State of Michigan into the Union on certain conditions.”
By this act (which, being accepted by the State, became an irrevocable ordinance, binding as well upon the Federal
The plaintiffs’ counsel insist that, until the sixteenth section has been identified by survey of the public lands, the title of the State can not attach to the specific lands;that the Federal Government have therefore the power to dispose of portions of the public domain, before such suiv veys have been made, and that if it turn out, upon survey, that section sixteen has been thus disposed of, the obligation of the Federal Government to the State is fully performed by giving to the State other lands equivalent thereto: he admits however that if not thus disposed of, the title of the State would attach at once upon the completion and return of the surveys.
Upon this theory, and to show that the United States had made an inchoate disposition of these lands which was' binding upon them, and that the rights of the parties under whom the plaintiffs claim had attached before the survey, and that the lands were thus taken out of the operation of the grant to the State, the plaintiffs, on the trial, proved that the lands were not duly surveyed and the survey returned until the Autumn of the year 1841 That on the 5th day of August, 1844, a written permit was given by the mineral agent of the United States, to Joseph L. Hempstead, under whom plaintiffs’ claim, to dig for ores, &e. That a selection for the purpose of mining being duly made under this permit, of a tract including the land in question, the Secretary of War, on the sixteenth day of September, 1845, gave to said Hempstead a written lease of the land for three years from that day.
It is admitted by the plaintiffs’ counsel that this lease (like all other similar leases of the mineral lands in
For the purposes of the present case, it may be admitted that the plaintiffs had fully complied with the terms and conditions of the lease; that their application and proofs were made in due season; full payment made, and every thing done by them to entitle them to a patent under this act, if the act extends to the case, and authorizes a sale by the United States of the lands in question. But after a full and careful examination of this act, in ■connection with that of June 23d, 1836, and of the whole policy of the Government towards the new States from its origin, as evinced by its legislation, we are entirely satisfied that the act of March 1, 1847, does not extend to this case, and was never intended to authorize, by pre■emption or otherwise, the sale by the United States of any
This disposes of the whole case, so far as the plaintiffs rely upon a title under the patent from- the United States.
The State, however, had . conveyed the whole of this section sixteen to Williams, and Williams and wife had conveyed to the plaintiffs two separate parcels of the land conveyed by the plaintiffs’ patent from the United States, one in the southeast corner of the section, containing twenty-two acres (upon which no question is raised), and the other in the northeast corner, the latter being described in the deed as ninety rods long from north to south, and forty rods wide from east to west, “ reserving, however, on the last described tract, the right to all mines or minerals now discovered, or that may hereafter be 'discovered thereon, and the right of working the same: provided that such mining operations shall not incommode the working of the present steam engine, stamp mill and saw mill of the Minnesota Mining Company on said tract, nor obstruct the stream of water on which said stamp and saw-mill are situated, to the detriment of the Minnesota Mining Company.”
Williams and wife afterwards conveyed the whole section to Cooper (under whom defendants claim) excepting the tract thus previously conveyed to the Minnesota Company, by the same description as contained in the deed to them, and conveying also the reservation of the mines in the lands thus excepted.