cludes all freight charges and expenses of de- |ent to attempt to reproduce upon the groun livery and setting. the courses and distances of the former survey. Such an attempt would undoubtedly have led to serious confusion, and would have furnished little information of real value, while the labor of making the necessary corrections would have been excessive. Attached hereto (Appendix B) is a statement of the expenses consequent upon the relocation and marking that portion of the boundary line between the 40th and 60th mile points, which statement is respectfully submitted for the action of your honorable body. Attached hereto (Appendix C) is a photo132]graph of the section of the oak tree examined and reported on by Prof. McBride. James Harding, Comm'r for Missouri, Chicago, Ill. Sep. 18, 1896. APPENDIX A. U. S. Coast and Geodetic Survey. Salina, Kansas, June 20, 1896. Gen. James Harding. Hon. Peter A. Dey, Dwight C. Morgan, Esq., Commissioners in the matter of the boundary line between the states of Missouri and Iowa. In place of that undesirable plan I adopted, with your approval, the method of measuring a base line straight across the country for the 20 miles to be surveyed. All of the old points which were recovered and all new points which it became necessary to locate upon the ground were directly referred to the base line, which, from a mathematical point of view, is the axis of abscissa in a system of rectangular co-ordinates. It seems scarcely necessary to mention the advantages which this method affords in point of simplicity and accuracy of work, but it may do no harm to allude very briefly to a few of them. Thus the relative positions and bearings of different portions of the boundary can be readily found with far greater precision than would otherwise be easily practicable. Dear Sirs: I have the honor to submit the following report upon the operations conducted under my direction for the purpose of enabling you to locate and mark by "durable monuments," as required by the decree of the Supreme Court of the United States dated February 3, 1896, that portion of the boundary line between the states of Missouri and Iowa which lies between the 40th and 60th mile posts east of the old northwest corner of Missouri, as marked in 1850 by H. B. Hender-sential in work of this character. The base line shott and W. G. Minor, commissioners. It appears unnecessary for me to make any mention in this report of the antecedent circumstances leading up to this survey, as you are well acquainted with them, and will, no doubt, take occasion to allude to them in your own report to the Supreme Court. I therefore pass at once to my own work. Your board having applied to General W. W. Duffield, superintendent of the United States Coast and Geodetic Survey, for the detail of an officer to make the necessary surveys, I was selected for that duty, and Mr. A. L. Baldwin, also of the Coast and Geodetic Survey, was assigned to the party as assistant observer. In compliance with the request of your board, received through Mr. Morgan, we met 133] you on April 8, 1896, at Davis City, Iowa. A preliminary inspection of the western portion of the field of work was made on that day and the organization of the party was completed by engaging laborers and teams. Moreover, in this system of work each point of the *boundary is fixed independently [134 of every other point, all being directly referred to the base line. This characteristic permits any desired local correction to be made at any point without necessarily affecting points of either side, a feature which I consider very es was so selected as to lie along the general direction of the boundary, which in fact crosses it three times, 11 of the 21 monuments being north of the base and the other 10 south of it. This statement well illustrates both the irregularity of the boundary and the fact that the base line is very close to the general direction of the line. Another important consideration in the selection of the base line was to make it pass through the towns of Pleasanton and Lineville without meeting obstructions and without damaging private property. This was successfully accomplished, and in the whole course of the line remarkably little tree cutting was needful. The base line was ranged out with an 8-inch theodolite, the standards of which were high enough to permit the telescope to transit. The telescope was of excellent quality and was provided with an eyepiece micrometer, by means of which slight deviations from the straight line could be measured and corrected. On the following day the whole party was transferred to the village of Pleasanton, Iowa, As the work of locating the base line adthat place being centrally located for the west-vanced eastward the party was moved to Lineern half of the work, as it is directly on the boundary and just east of the 45th-mile post. A partial examination of the line, as identified by more or less reliable traditions current in its neighborhood, made it evident that its course in many places deviated widely from the description given in the field notes attached to the report of the former commission. Mis souri v. Iowa, 51 U. S. 10 How. 1 [13: 303]. Not only do the bearings differ from those recorded in that report, but portions of the line which are there called straight were found to be curved or composed of broken lines. Under these conditions it seemed inexpedi ville, Iowa, which town is situated just north of the boundary line and between the 56th and 57th mile posts, and thenceforward operations were conducted from either Lineville or Pleasanton, as was found more convenient from time to time. As soon as the line was opened, and even before the final adjustment of its eastern terminus, the linear measurement was begun by Mr. Baldwin, with the assistance of the commissioners, working westward from the east end of the base, near the 60-mile monument. When about 5 miles had been so measured I was ready to take personal charge of the measurement, and began at the west end of the base, near the 40-mile monument, working thence eastward to a junction with the line above mentioned. 135] *The system of measurement employed was that ordinarily used in the coast and geodetic survey for direct measures not requiring the base apparatus. mile in length was measured on the flat ground east of the Weldon, and the distance across the broken section was then obtained with great precision by triangulation. The distances across the Grand river and Little river were also obtained by triangulation. Whenever in the course of the measurement we passed a point which it was desirable to refer A narrow steel tape, 25 meters in length be- to the base line, the point at which its rectantween end marks, was stretched under a ten-gular ordinate met the base line was noted sion of 10 kilogrammes, as indicated by a and the length of the ordinate itself was measpring balance attached to one end of the tape. sured. The relative positions of these various The successive tape-lengths were marked on points thus became known, including not only stakes driven into the ground. such of the mile points as could be identified, but also numerous objects commonly reputed to mark the boundary, as fences, trees, stones, etc. As the tape necessarily follows very closely the inclination of the ground, the horizontal distance will be less than the measured distance, and the correction for slope must be computed for each tape length, the difference of height between the ends being determined by spirit-level. The very irregular profile of this line made these differences of height unusually great, and correspondingly increased the amount of correction. A small correction for catenary is also necessary when the tape swings clear of the ground, the "sag" of the tape slightly decreasing the distance between its ends. Further, as all metallic measures vary in length with changes of temperature, it is necessary to apply a correction for such variations, the length of the tape being known at the temperature of zero, centigrade. Temperatures were accordingly noted at frequent intervals, usually at every fourth tape. The direct measurement was completed on May 8th, although the eastern part of the line had still to be levelled. As far as possible in connection with the measurement, notes were made to provide material for a topographic sketch of the strip of country traversed by the boundary. As stated above, the measurement was completed on May 8th. As rapidly as the reductions were computed the places for the mile stones were marked on the ground from the 40th to the 49th. On The weather, which up to that time had been generally favorable, now became very wet. The frequent and heavy rains seriously interfered with the work, and rendered progress across the country very slow, the roads being nearly impassable and the fords quite so. May 18th the exigencies of the regular work of coast and geodetic survey compelled[137 the detachment of Mr. A. L. Baldwin, who had rendered energetic and efficient assistance in the work. On the same day I moved from Pleasanton to Lineville to resume work on the eastern The computations were at once taken in part of the line. In the intervals between rains hand and the resulting distances were fur-I completed the levels, and, after computing nished you as rapidly as possible. These results, for present purposes and as compared with ordinary measures, may be considered practically exact, and they show that the chain used by the surveyors of 1850 was too long, probably from the combined effects of abrasion and of high temperature. The distances between such of the old points as were recovered are nearly always too great. The ratio of excess is not constant, as, indeed, would hardly be expected, but shows a tendency to increase in going from west to east. A marked exception to this rule of excess in distance is found in the 52d mile. The eastern 136]end of this mile *was not recovered, but was found with reasonable certainty from various considerations, while the reputed point at the western end was recovered. The mile so determined is noticeably less than a statute mile. The western part of this mile traverses a very steep, rough, and wooded country, while its eastern part crossed the Weldon river three times in 1850. These natural difficulties in the way of ac curate measurement probably caused the short age in this particular mile. In my own work I found it desirable to avoid the direct measurement of this mile, which is even more unfavorable now than in 1850, the Weldon having changed its course sufficiently to cross the base line five times at present. For this purpose a branch base about of 1 the distances, marked the places for the mile posts, a work in regard to which further details will be given. The topographic notes were also completed. In order to furnish as much information as possible in regard to this portion of the boundary line, observations for the approximate determination of the latitude and longitude and the astronomical azimuth or bearing of the base line were made at Pleasanton and at Lineville. Bad weather interfered with the observations at Pleasanton, and at Lineville the lack of time and unfavorable local conditions somewhat affected the precision of the results, which answer, however, the purpose desired. Latitude and azimuth were obtained by observations on Polaris (a Ursa Minoris) with the theodolite. Time was obtained by sextant observations of the sun, using a mercurial horizon and the method of equal altitudes. For longitude the local time was compared with the railroad telegraphic time signals. It remains for me only to state briefly the old points which were recovered and the conditions which, under your decisions, governed the location of those points which were not identified by local marks. The 40th, the 50th, and the 60th mile points were found marked by the iron monuments placed there by commissioners Hendershott and Minor in 1850. There was some dispute as to whether No. 60 was in its original posi 1850. tion or not, but the weight of evidence and the | 60, in the manner required by the field notes of continuity of the traditional line on either side of it indicated pretty conclusively that it had never been disturbed. The remaining points were originally marked by stakes, sometimes wituessed. No. 42, while not directly identified by marks, was satisfactorily recovered by means of a "line tree" 4 chains W. and by topographical notes at crossing of Grand river, as shown in original record. 138] *No. 44 was restored by measurement from the two witness trees, the decaying stumps of both of which were found. No. 49 was also identified by the stumps of both witness trees. No. 51 was marked by a "mound and pit," which have been accepted for years as the true marks. No. 54 was marked by a stone, and was further identified by one witness tree. No. 58 was recovered by traces of the stakes in addition to the remains of the witness tree, and the point established by J. C. Sullivan in 1816 was also found a little further east, and also the stump of an elm tree, noted as a "line tree" in both Sullivan and Hendershott notes, being 4.10 chains W. of Hendershott's 58thmile point. The remaining points were located in the following manner: No. 41 was placed midway on line between 40 and 42. No. 43 was so placed as to preserve the relations with 42 and 44 required by the field notes of 1850, and after being so located was found to agree with the stump of the witness tree on the Iowa side of the line. No. 45 was placed in the middle of the street bounding Pleasanton on the south, which middle line is shown as the boundary on the official plat of the town on file at the county seat, and at the proper distance along the line averaging to the 49th mile. No. 46 was similarly located on the line pass ing from 45 through a stone pointed out by tradition as marking the line. No. 47 was placed at the proper distance on a line drawn straight from 49 westward through a witnessed section corner between 47 and 48. No. 48 was placed on the same line midway between 47 and 49. No. 52 was located at a point west of the pond or lake in the Weldon bottom agreeing with the topographic description given by the former commissioners and on a line agreeing as closely as possible with all of the apparently authentic traces of the line surveyed in 1850. No. 53 was placed a mile west of 54 on the straight line between 52 and 54. 139] *No. 55 was placed a mile east of 54 on the extension of the line drawn from 54 through a witnessed stone at the corner common to Wayne and Decatur counties, Iowa. Nos. 56 and 57 were placed at mile distances on the straight line drawn from 55 through an iron pin at the southwest corner of the streets surrounding the public square at Lineville, which pin was universally accepted as a point marking the boundary. Unsuccessful search was also made for the remains of a wooden post which formerly stood a little further east. No. 59 was placed midway between 58 and While this work was in progress many of the inhabitants along the line asked that ad ditional points, intermediate between the mile points, might be furnished them, and with your approval this was done. In accordance with the decree of the Supreme Court dated January 3, 1851, such points were always placed on the straight line between the adjacent mile posts. The final observations were made on the afternoon of June 13th, and the instruments were then packed, and on the 15th were shipped to Washington. I left Lineville on June 15th, also, to resume my regular duties in the coast and geodetic survey. In closing this report permit me to express my appreciation of the uniform courtesy and consideration shown my assistant and myself by all the members of the commission, and my hope that our earnest labors in this interesting work have proved satisfactory in methods and results, and that they may be instrumental in permanently settling this controversy. The appended pages give in summarized forn the results of the observations and measure ments, as well as the mathematical formula employed. Respectfully submitted. W. C. HODGKINS, Assistant, Coast and Geodetic Survey, Chief o Party. APPENDIX A. distances between the successive mile posts of The following table gives the bearings and 40th to the 60th mile east of the initial point a the Missouri-Iowa boundary *from the [140 the said mile posts were relocated and marked by James Harding, Peter A. Dey, and Dwight C. Morgan, commissioners, in 1896. The distances are given to the nearest tenth of a metre and to the nearest half foot, and the bearings or azimuths to the nearest quarte minute. The azimuth is reckoned from the south point as zero in the direction of the west, north, west, 270° due east, etc. and east successively-i. e., 90° means dur seconds for each mile. The bearings going The convergence of the meridians is 44, west, or back azimuths, are therefore in each eastern or direct azimuths. case three fourths of a minute greater than th Mile. Azimuth Back azimuth. 40 to 41 268° 5734' 41 to 42 268 58% 42 to 43 269 20% 43 to 44 269 583 44 to 45 269 5234 45 to 46 269 51 46 to 47 269 11 47 to 48 268 55% 48 to 49 268 56 49 to 50 269 1634 50 to 51 269 04% 51 to 52 268 1014 52 to 53 268 1734 53 to 54 268 1813 54 to 55 268 57% 55 to 56 269 33 56 to 57 269 3334 57 to 58 270 48 58 to 59 270 3634 59 to 60 1270 89 1,603.8 1,616.7 5.304 Distance. 89 59 89 53% 5.26134 Photograph of a section of the oak tree at the 52d-mile point, supposed to be witness tree in the Iowa-Missouri boundary. The dark line indicates the size of the stem fifty years ago. Account of expenses incident to the relocation and remarking the boundary line between the states of Missouri and Iowa from the 40th to the 60th mile point, under decree of the Supreme Court of the United States, February 5, 1896. ently conveyed by proceedings in the United States Land Office was of no effect, and tax titles based thereon of no validity, denies a right claimed under authority of the United States, and presents a Federal question. 2. Under the tax law of Iowa there is no privity between the holder of the fee and one who claims a tax title upon the land. 702 21 3. The legal title created by the issue of a patent for public lands relates back only to the payment of the money therefor, and not to the time when the certificate of location was issued. 190 50 171 60 780 00 James Harding, traveling ex penses. 161 85 941 85 $5,273 56 144] *And it is ordered, adjudged, and decreed that the boundary line between said states of Missouri and Iowa in controversy herein be, and it is hereby, established and declared to be as delineated and set forth in said report. And it is further ordered, adjudged, and decreed that the clerk of this court forthwith transmit to the chief magistrates of the states of Missouri and Iowa copies of this decree, duly Where one has dealt with the government on the assumption that a departmental adjudication was binding, another not in privity with the former cannot challenge his acceptance of that adjudication. 5. While the title remains in the government, public lands are not subject to state taxation, and tax sales and tax deeds thereof are void; and one subsequently acquiring title thereto can contest their validity. these: Statement by Mr. Justice Brewer: This case comes up on error to the supreme It is further ordered, adjudged, and decreed that the compensation and expenses of the court of the state of Iowa. The facts are commissioners and expenditures attendant On May 19, 1858, Robert Craig loupon the discharge of their duties be, and they cated bounty land warrant No. 27,911, issued are hereby, allowed at the sum of five thousand, to William Long under the act of Congress two hundred and seventy-three dollars and of March 3, 1855 (10 Stat. at L. 701), upon fifty-six cents ($5,273.56), in accordance with the land in controversy, and obtained from their report as confirmed as aforesaid, and that the proper land officer a certificate of location. said charges and expenses with the costs of this This certificate was recorded in the office of suit to be taxed be equally divided between the the recorder of Carroll county, the county in which the land is situated. No patent parties hereto. On February 1, 1864, was issued thereon. the Secretary of the Interior canceled the land warrant under authority of an act of Congress, of date June 23, 1860 (12 Stat. at L. 90). This act provided that whenever it should appear that any land warrant was lost or destroyed, whether the same had been sold or assigned by the warrantee or not, the Secretary of the Interior should cause a new warrant to be issued, which new warIrant should have all the force and effect of the original, and upon such action the original warrant was to be deemed and held to fraudulent; and further, that "no patent shall be null and void, and any assignment thereof ever issue for any land located therewith, unless such presumption of fraud in the as authenticated under the seal of this court. BERNHARD HUSSMAN, Plff. in Err., v. WILLIAM H. DURHAM. (See 8. C. Reporter's ed. 144-150.) Federal question-privity between claimants of land-title under patent-privity-tax sales. 1. A state decision that an equitable title appar NOTE.-A8 to jurisdiction of Federal over state | for lands, how construed, see note to Watts v. Lind- As to sale of lands for taxes; strict compliance with statute necessary,—see note to Williams v. Peyton, As to pre-emption rights, see note to United States 4: 518. v. Fitzgerald, 10: 785. As to when taxes illegally assessed can be recovered That patents for land may be set aside for fraud, see back, see note to Erskine v. Van Arsdale, 21: 63. note to Miller v. Kerr, 5: 381. As to direct taxes, see note to Scholey v. Rew, As to errors in surveys and descriptions in patents 23: 99. |