Year: 1863




ting t. the disposition of the tracts of land
| including the towns of Mineral Point &c
These rules pro vided for survey oftown
lots, streets, avenues, lots for public use,
called the public square, and out lots
They further provided complete and
perfect mode for the transfer of the title
to all of the lots-including town lots and
out lots-from the Urited States to in
dividuals and in explicit terms prohibit
ed the sale of the public squares, and pro-
vided that they Should be reserved from
sale, for public use and remain forever
for public use, as public highways and
for other public uses"


The Register and Receiver of the Land
Office in July 1910 assumed to trsl th e
residue of this public square, marked No
So, not already disposed of by the Com
missi ,ners as "lot'-either a town lot,
or an out lot, and offered it at public sale,
at the maxine prise of town tots (S4o per
acre) and it was purchased at such public
sale by the County Commissioners and
patent issued to them and their successors
In Office, purportng to vest the absolute
| fee in them.


Did this sale vest in the County Com
missioners any title whatever and if So
what?


This question, in my opinion, depends
entirely upon the question of fact, a, to
what was the character or description of
this tract of land, as exhibited by the sur
vey of Garrett Vliet, and as determined oy
the extraneous facts affec ting the question
| Was it an Out Lot? Was it Town Lot :?
Or was it a Public Square? One of these
three it must have been. 1t could not
/ have been anything else. The Surveyor
| n To Inv off
other kind of lots. Nor did he attempt to-


Was it then an out lot? Most certain
ly not The very idea of an out lot i'm
plies that 1t is ont of the town; or if not,
that circumstances exist, which render it
| impracticable or inexpedient to divide it
up into town lots containing half an acre
or less. Such as the character of the
! buildings or Improvements upon it, which
might be injuriously affected by so small
| a subdivision, or some other such like cir
I cCmstances. So far from this tract being
out of tie town. it was emphati cally an it,
! and in the verv heart of it, surrounded
on every side by town lots containing not
only less than hall an acre but less than
a quarter ola acre upon many of which
on every side were erected dTellIngs,
stores and other buildings usually form
ing a town Nor did any circumstances
exist, rendering it impracticable OF mex
| pedient to divide it up into subdivisions
| containing half an acre or less There
were no buildings or improvements upon
| it, except the log Court House and log
/ Jail, and it is clear that if the surveyor
had desired, he could have sub-divided it,
into three four, FIVE or six lots, each CON
tanning less than half an acre, without
any injury to any buildings or improve
ment upon any portion. There is no fact
tending to show that it was designed for
an Out Lot, except its size Il 6-lo0 acres)
| which tends as strongly to show that it
was designed fo- public square.


Was it Town Lot ? This question is
conclusively answered in the negative, by
a reference to the act of Congress of July
2l 1886, which provides in positive terms
that the town lots shall not exceed the
quantity of one halfan acre This lot did
exceed the quantity of one half an acre
and therefore all the action of any public
officer, whether Register, Receiver, Sur
veyor, Commissioner Or even the Presi-
dent OF tisir United States himself based
upon the idea that it was a town lot was
an absolute nullity and entirely void
Nor can this objection to the validity of
| these acts be successfully met by the an
swer that this proriSo was unwise, imma-
terial or not in accordance with the gen.
eral spirit Of the act in which it is contain
ed. 1t Is by no means certain that such
an answer would be well sustained But
if it would we have nothing to do with the
| wisdom or the materiality Of this provis-
ion, or with its harmony with the other
provisions of the act 1t is enough to say
that the land was the property of the Uni
ted States, and that Congress in parting
/ Al
ditions which it thought proper, upon any
grant which it saw fit to make, and that
no title to the land thus granted could be
obtained except upon the conditions con-
nected with the grant The condition in
reference to granting torn lots, is that they
shall not exceed half an acre, if they do,
the grant of them as torn lots, violates
the condition, and is null and void Nor
does the fact that this tract was number
ed as No 53 consecutively with the other
town lots, too in any degree to show that il
was town lot. A reference TO the map
| shows that all the lots in the whole town,
from | to 298 (the whole number of town
and out lots) were numbered consecutive
ly without reference to their character as
town lots or out lots and it is impossible
to determine by the numbering of any
particular lot, or by its relation to the mum
bers of other lots whether it be a town lot
or an out lot but that can only be deter
mined by straneous facts and circumstan-
ces some Of which have been already re
ferred to-


Was it a Public Sqnare? The proof
that 1T was is ,incontrovertable. The act
of Congress required that slots for pub
lie use called the public squares, should
be laid out and surveyed and that in max
ing the survey, the surveyor should hare
reGard to the lots and streets already sur
veyed. In using this language Congress
is to be presumed to have intended that
it should be understood in its ordinary