, 1890-04-10

~
ernmcnt to extend the lines of survey
only to ordinary high water mark. am
informed that the records OF your oiiico
show that this has been the uniform and
inyariable rule, with the sole exception
OF the letter of Commissioner wilson, OF
August %, 1893 (vOl /, Land Records
1911, In which he instructed the surveyor
general of Oregon, that "the public sur
yeys are TO he made to low water mark"
liut on April III, 1875, the commissioner
instructed the surveyor general OF ore
gon 10 extend lines of sur
vey only to high water mark when
surveying lands bounded by waters
affected by the ebb and flow OF tides
similar instructions at tue same time
we're given to the surveyor general OF
Washington territory; and the lands in
controversy were excluded from the
public lands by the government sur
voys made under these or similar III
structions.
II is contcnded by counsel that the
lands covered by the Miranda grant are
composed of the same character OF
lands as those located 10y Burns, and
that the conveyance by Valentine 10 the
government of all right, title and inter
est in said lands conferred upon hin,
under the act of 1872 the right to select
lands of the United states OF the same
class AS those found in the Miranda
grant, which he relinquished TO the
government.
Even If 1t be true that the titlo to this
grant included the soil of tide waters,
the act of 1872 did not confer upon Val
entine the right to select lands OF the
same quality or character, but Fan equal
quantity of unOccupied, unappropri-
ated lands of the United States.
My attention has not been called TO
any peculiar feature or provision OF this
act different from other grants OF the
same character of lands bordering on
tide waters, and in the absence OF an
express grant of the shore IF such grant
could be made at ALL the boundary of
the grant would only extend TO the line
Of high water mark.
In the case of the United states VS..
PacleCo q Wall 1901, the court say
The position that 10y the bay as u
boundary Is meant, in this case, the line
oi low water mark is equally unionnded.
by the common law, the shore ofthe
sea, and, OF course, arms OF the sea, Is
the land between ordinary high and low
water mark, the lands over which the
tides daily ebb ana flow When there
fore, the sea or bay, is named as o
boundary, the line of ordinary high
water mark Is always intended where
the conmonlaw prevails"
But independently of the foregoing,
/ Burns acquired ne vested right by rea-
son of his application, although made
| while the land was subject to the juris-
diction and control of the United States,
| because at the time the application was
made, to-~it; June 8. 1850, the land had
not been surveyed.
The instructions issued by the general
land Office to the register and receiver
relative TO the location of this scrip
directs them to issue a receipt ior the
| scrip, when application Is made to locate
| IL on unsurveyed land. and that when
the land is afterward surveyed and the
scrip has been adjusted to the survey,
duplicate certificates of location shall bo
issued for the location. The location Is
thus consummated, and the land is from
that moment segregated and has all the
| force and effect OF an entry. But until
the land has been surveyed, and the
scrip adjusted 10 the survey, the right
acquired by the application is n mere
! inchoate right, which is paramount to
the rights of all others who have not an
equal or superior claim to the land,
/ but Is not necessarily a valid claim
against the United States.
| The location of scrip upon unsurveyed
| lands Is nothing more nor less than n
| preference right to perfect such location
after the survey of the land as against
the claims of all Others, except the
| United states, but until the location
/ takes the character of AN entry by hav-
/ ing the scrip al justed to the public sur.
vcys the United States has as full and
ample power and authority to dispose OF
the lands covered thereby as II has to
dispose of lands upon which settlement
and improvements have been made with
view TO pre-omption.
mo portion oil the public domain, un-
less II be in special cases affecting the
general rule. is open to sale until 1t has
been surveyed, and an approved plat Of
the township embracing the land has
| been returned 10 the local ONCE BuN-
ton VS.. Traver, 100 u. 5, 80.
IL may be urged that the act of 1879
gives to the holder OF this scrip the
| right to locate IL upon unsurveyed lands.
| To this il may be REPLIED that the pre-
omption law also authorizes settlement
upon unsurveyed lands with view to
prc-emption and occupation and i'm
/ provement OF such lands confer upon
the settler an inohoaie right which may
be protected against the claim oi every
other person who has not an equal or
superior right but, say. the court in
/ trisbie VS.. Whitney o Wall lS7, II con-
/ fers no vested right against the govern.
ment In the land so occupied.
"a settlement upon the public lands
| In advance oil the surveys il allowed to
parties who in good faith intend, when
the surveys are made and returned to
the local office, to apply for their pur-
chase" but "the United States makes
no provision to sell HIM the land, nor do
they enter into any contract with him
on the subject"
When the surveys have been made, he
may perfect the sale unless the land has
in the meantime been withdrawn from
sale. Buxton vs.. Traver, supra. See
also Yosemite valley case, 10 Wall ".
In the case last cited Hutchings. the
defendant, settled upon tract OF un-
surveyed land In the Yosemite valley,
and resided upon, improved and culti-
vatod 1t with view to perfect title to 1t