The Russellville Democrat., 1875-06-17

It has been argued with unusual learning and power that the loca- tion was complete when the sur. vey was made, returned, approved, and filed in the office where it was permanently to remain, and that thereby the title to the land injur ed by the earthquake reverted to and vested absolutely in the Unit ed States. We arenot unmindful of any part of this cogent argu- ment. We perceive that every thing had been done by the parties which the law required them to do, and that everything which remain ed to be done was made a statu- tory duty on the part of the offic- CTS of the Government. We also perceive that by tho surrender of the first certificate q party
 
 might suffer irreparable loss, and that he was without legal means to compel the surveyor-general to act by transmitting the plat and notice to the recorder. We are also aware that the supreme court ] has enunciated the principle that things which the public officers ought to have done should be re- garded as having been done. (Lytle vs. Arkansas, 9 How. R., 3l4.) But the Supreme Court has also declared that before the New Madrid or injured lands "shall re- vert to and become absolutely vested in the United States" the plat of the location and the notice in writing designating the tract located must be returned to the recorder of the land titles. The precise point presented by this case has, we believe, never been presented to the Supreme Court, but the declaration or construction to which we have alluded runs through six of the decisions of the court, beginning with 13 Peters and continuing to l9 Wallace. (Bagnell vs. Frederick, 13 Pet, 436; Barry vs. Gamble, 3 How, 92; Lessieur vs. Price, 12 id, 57; Hale vs. Gaines, p id, IA; Rec tor vs. Ashby, , Wall, 143; Me Kay vs. Easton, 19 Wall, 619. With that reiterated opinion of the Supreme Court before us we do not feel at liberty to regard it as the mere dictum which might drop from single case. While we do not feel satisfied with the construc tion which has been directly or in- directly given to the statute, and while we think the facts of this case will present substantially new question to the Supreme Court, upon which it will not be bound by it's former rulings in other and essentially different cases, yet still we do not feel at liberty to disregard what the court of last resort has so repeatedly said, and deem it best to leave to that tribunal the duty of correct ing it's errors, if errors they be. We must therefore decide that nc location was ever made by Ham. mond and Rector, and that their representatives have no title, legal or equitable.
 | A decree will be prepared by the counsel for the Government conformable to this opinion, which will be settled at chambers on five days notice tQ the adverse parties
 LoRING, J., dissenting.
 The statement of facts by the court recognizes the fact that il Rector's case, on due application under the statute, by Hammond and Rector, the survey and plat oi the land were made by the survey or-general, and that by his omis sion the plat and notice of his To cation were not returned by him tc the recorders office, as the stat ute required.
 And if there is to be applied tt JhlS case the fule laiQ uoWn by tu( Supreme Court in Lytle vs. Arkan sas, which is the established rul, in equity law, under which, by th' statute referring this case here, i has been heard, then l think tha the case in 19 Wall, and the lik' previous cases cited in the opinion of the court do not impugn Rec , tors title, out establish it.
 The rule in equity enforced il ' Lytle vs, Arkansas was, that whicl 9 ought to have been done shall b, taken as done.