Year: 1863

perativelv control the action of the survey


or in making his new survey, as to pred
| iudice 1.-The public good and equitabl,
rights of the settlers and occupants ye


that he should regard it, and conform th,


new survey to it as far as possible con-
sistantly with the public good and such
equitable rights. The Surveyor took thi.
view of his duty. He found in the office


of the Register of Deeds plot of the
ground which had been already survey.
ed" A comparison of the plot of the sur


vey by Vliet, the United States Surveyor


with that made by Bracken shows that he
had regard to the plot and survey Of Brack
en-, and conformed his own survey to it,
so far as he could consistently with "the
public good and the equitable rights of
the settlers and occupants. Where
Bracken had left block surrounded by
four streets for a public square" and
marked as such on his plot of his survey,
Vliet left precisely the same block, cover
ing the same identical ground, surrounded
by streets located in the precise spot
where they had been previously located
by Bracken, and the only difference be-
tween them was, that Bracken in number
ing the lots upon his plot, had affixed no
number to the public square, while Vhet
affixed to it, No. 50, being the number
which would be properly affixed to it, if
numbered consecutively with the lots upon
the east and west of it. 1t has been said
that Vlict did not write upon this tract en-
his plot the words public square. How
this may be on the original map in the
Surveyor Generals office / have not as
certained. If he did So mark it, It would
be conclusive that it was intended by
him, as public square, while if he has
neglected to do so, it would be the weak
est kind of negative evidence, that it was
not in ended by him as such. But what
ever may have been his Intentions on the
subject he could not change the fact-
1t was in truth a public square, and was
for public use, and was in fact FUSED as
u public highway and for other public
uses" his mere omission TO furnish upon
his map any evidence that it was such,
clearly could not deprive the public of
their rights. 1t is notorious that it was
used as public square from a period, at
least as early as 1884, and has continued
to be so used until the present time. Nor
was the entry by the County Comuis-
sioners in 1910 accompanied by any
change whatever In the nature or charac
ter Of the public use OF this public square;
and the County Commissioners did not
exercise any other or different authority
or acts Of ownership over it, than they
had Heretofore done.


The facts ofthc case, and the legal con-
sequences resulting from them, lead ire
sistablv to the conclusion that this tract
of ground upon which this Court House
and County Buildings were situated on the
23th of July, 1910, was within a town lot,
or an out lot, but that it was public so;
and that therefore by an imperative act oi
Congress, it was required to be reserved
from sale for public use, and remain for
ever for public use, as a public highway,
and for other public uses, If this con-
clusion be correct, Of which in my opin,
ion there is no doubt, it follows that the
acts of the Register and Receiver of the
land office,in selling the land at public sale
to the county commissioners, and of the
administration off GERS including the Pres
ident, in issuing tie patent, are not only
unauthorized by law but are in direct con-
hict with and violationTof the law, and are
utterly void and that no court would for
a moment sustain the patent as evidence
Of title, when impeached by the facts of
the ease.


in idea exists in the minds of many


that C. s patent for land is title. This


is great error The patent itself is no


title whatever it is only evidence Of tt
tie, and is no more value in establishing
title to the land it describes than so much
blank parchment would be, if the Presi-
dent had authority of law to convey the
land. Suppose the President should issue
patent under the Great Seal Of the IT, 5.
to JEFF. DAVIS ofthe capitol grounds at the
city Of Washington including the Capitol,
it would vest no more title, tnan did the
Presidents patent to the county commis-
sioners of Iowa County Of the public So.
in the town Of Mineral Point.


But suppose my opinion is er -oneous on
this point, and that this patent did vest
in the county commissioners and their


successors in Office q legal title, 20 this
tract of land :. a question at once arises,


what was the kind of state thereby crea-
ted? In every enfeafment there must


not only be party capable of conveying


fee, (as | have shown there was not in


this case but party capable of taking


an estate in fee 1t is not necessary tC


raise any questisn as to the power of the


commissioners to take lands in their off


c;al names as a title for county buildings


although under the laws of the Territor y


existing at that time, the conveyance
should have been to the county, and not
, to the county commissioners; but it will


not be contended that the county commits
! sioners in their official character could
! take and hold to themselves and their sue
cessors in Office, real estate in trust for


any other purpose than the pnblic use Of
the county. Their official functions did


not confer upon them authority ofspecula
ting in real estate, or buying estate to sell
again, or of buying estate for any other
purpose than the public use ofthe county.
So tnat the only estate they had official


power to take, was an estate In trust for
| the public use of the county, and when
ever the public use ceases, the estate can
not be disposed of as an absolute estate