222. The United States are bound by their treaty stipulations with France, and by the universal usage among civilized nations, to go on and perfect the title of the heirs of Thomas F. Reddick to a tract of land on the bank of the Mississippi, held under a Spanish grant, and relinquished by act of 1st July, 1836, chap. 250, unless the same shall be taken by an older and better claim not emanating from the United States; and no such title having been set up, a patent ought to issue to the said heirs. Opinion of Jan. 2, 1839, 3 Op. 398.

223. On completion of payment for Creek reserves conveyed by the reservees to other persons, certified by some person appointed by the President for that purpose, and approved by the President himself, patents must issue to the purchasers. Opinion of Feb. 7, 1839, 3 Op. 413.

224. It will not be a compliance with the treaty of 24th March, 1832, between the United States and the Creek tribe of Indians to issue patents in such cases, where the right is controverted, to the original reservees to abide the result of suits and to inure to the successful parties. Ibid.

225. Where an assignee in blank of the floating right of pre-emption to a specific quantity of land is in conflict with an assignee of the same right, which has been actually located, and the Commissioner of the General Land Office is satisfied that the assignment in blank is not clearly fraudulent, he ought to issue the patent to the original pre-emptor, leaving the conflicting claims to be settled by courts of justice. Opinion of Dec. 18, 1840, 3 Op. 608.

226. It is a sufficient compliance with the provisions of the act of July 4, 1836, chap. 352, for the engrossing clerks to write the name of the President to patents, and for the Secretary thereafter to attest them by his signature. Opinion of Feb. 27, 1841, 3 Op. 623.

227. All the duties respecting the execution of patents, except the attestation, are ministerial, and may be performed either by the clerks or by the Secretary. Ibid.

228. The counter signature of the recorder of land patents, and seal of the office thereto attached, constitute a sufficient authentication

3 Op. 630.

229. Patents for reserve lands under the Creek treaty of 1832 are to be issued to purchasers, owners, assignees, or transferees; and claimants must show themselves to be within the description of persons entitled, by exhibiting authentic evidence of the fact. Opinion of July 26, 1841, 3 Op. 644.

230. The Commissioner of the General Land Office properly refused to issue a patent for land entered by Governor Shannon, in Ohio, and withdrawn from private entry in order to provide for executing the grant by Congress, by act of 24th May, 1828, chap. 108, of lands to the State of Ohio, for the purpose of aiding that State to extend the Miami canal from Dayton to Lake Erie, because it did not appear whether or not the land for which the patent was claimed was situated within the limits of the reservations, and because, if it was, the requisite notice had not been given by the register and receiver, as provided for in the regulations concerning the public lands. Opinion of Aug. 4, 1841, 3 Op. 650.

231. The execution of a patent for land to a soldier in the war of 1812 by the Commissioner of the General Land Office passes the title, although the same had not been delivered to the patentee. Opinion of Sept. 7, 1841, 3 Op. 653.

232. It is a matter of discretion with the Department as to whom the patent should be delivered. Ibid.

233. On a certificate to A. and company, assigned by A. alone, a patent may issue to A.'s assignees; and his partners must seek relief, if they shall be entitled to any, in the courts. Opinion of Oct. 20, 1842, 4 Op. 96.

234. The proper mode of proceeding to vacate an erroneous land patent is by bill in equity; the regularity of proceeding by scire facias in this country is doubted. Opinion of Nov. 26, 1842, 4 Op. 120.

235. In England letters patent are of record on the law side of the chancery; wherefore there is a propriety there for a writ of scire facias to vacate a patent that does not exist in the United States. Ibid.

236. Patents erroneously issued, or rendered invalid by an act of Congress confirming adverse titles, must be canceled, or judicially

avoided, before another can be issued for the same land, even to confirmees. Opinion of March 15, 1843, 4 Op. 150.

237. After one patent has issued for lands, the executive department is functus officio in respect to such lands until its former act is judicially set aside. Ibid.

238. The issuing of new patents whilst others are outstanding will lead to infinite mischief and confusion, by the blending of executive and judicial functions in a manner unknown to the laws and the Constitution. Ibid.

239. A patent cannot issue to one of two purchasers of a quarter section of land, or for any unspecified portion of the same. Where such conditions exist as will permit a partition of the land held in common, a patent may be issued to the purchaser entitled after the division., Opinion of April 16, 1844, 4 Op. 319.

240. It is not competent or proper for the Commissioner of the General Land Office to make alterations in the dates of patents for lands, after the delivery thereof to the grantees. Opinion of June 8, 1844, 4 Op. 329.

241. Whether patents irregularly issued shall have effect from their date or time of delivery may be determined by parol testimony. Ibid.

242. Where, upon the application of a settler on public land in Iowa for a patent for his entered location, it was made to appear, that after having executed a deed of a portion of the land to another person, he made the affidavit required by law, that no person other than himself had any interest therein, and that he had made no contract, &c.; and that such grantee had obtained a patent for his land under the act of 4th September, 1811, chap. 16, and claimed to hold it, notwithstanding the settler's deed to him had been decreed by a court of chancery, having jurisdiction, to have been obtained by duress, and for such reason to be void: Held, that a second patent for the same land ought not to be issued whilst the first remains outstanding. Opinion of April 7, 1847, 4 Op. 558.

243. It is not the duty of the Government to institute proceedings to vacate the first patent, as it is in no wise responsible for the act which embarrassed the settler's pre-emption and caused the existing difficulty. Ibid.

244. The applicant should seek relief in the

court of chancery, which has full jurisdiction of the case, and ample power to administer the remedy to which he shall be entitled. Ibid. 245. He may, however, be permitted to use the name of the United States in his proceedings, if the Secretary of the Treasury shall deem it discreet to authorize it. Ibid.

246. A patent may properly issue to preemptors, notwithstanding others to ordinary purchasers may have been issued for the same land, and remain outstanding. Opinion of July 29, 1848, 5 Op. 8.

247. A patent should issue to H. M. R. pursuant to a certificate issued to him on the 24th of November, 1818, and located on land at the Hot Springs in Arkansas; he being entitled thereto under the act of March 1, 1843, chap. 50. Opinion of April 29, 1850, and May 2, 1850, 5 Op. 236, 237.

248. A patent should issue to C. for land in fractional section No. 11, township 4, range 1, in the State of Ohio. Opinion of Nov. 29, 1851, 5 Op. 477.

249. It is proper to withhold patents for land in cases where the claim on which they are demanded, under final decrees of the United States courts, are identical with the title or claim now in controversy before the Supreme Court. Opinion of Oct. 30, 1852, 5 Op. 628.

250. Where a patent for public land has once issued, it cannot afterward be canceled or aunulled by the mere act of the Department; the intervention of a court is necessary for that purpose. Opinion of June 20, 1871, 13 Op. 457.

251. A second patent should not issue for the same land so long as the prior patent remains unrevoked by a judicial tribunal. Ibid.

XIII. Statutory Grant.

252. An act of Congress confirming land titles of two or more individuals, or granting land, must be taken altogether; and if there be not land enough to answer all the grants, and there be a conflict of claims, it must be reconciled by reference to the report of the commissioners on which the act was founded; and if two parts of the same act cannot be reconciled, semble that the latter of the provisions must prevail. Opinion of May 28, 1842, 4 Op. 40.

253. A grant by Congress does of itself, proprio vigore, pass to the grantee all the estate of

the United States, except what is expressly excepted. Opinion of Nov. 10, 1858, 9 Op. 254. 254. A grant of public land by statute is the highest and strongest form of title known to our law. It is stronger than a patent, which may be annulled by the judiciary upon a proper case shown; whereas even Congress cannot repeal a statutory grant. Opinion of May 27, 1864, 11 Op. 47.

XIV. School Land Grants.

the State took the lands under the first grant. Ibid.

261. The State of Iowa is entitled to the purchase-money of swamp lands within her limits, which were entered with cash prior to the passage of the act of March 3, 1857, chap. 117. Opinion of April 20, 1866, 11 Op. 467.

262. She is also entitled to indemnity in land for such swamp lands as were located with warrant or scrip prior to the passage of that act. Ibid.

roads, etc.

263. The State of Ohio having refused to obligate herself to complete the canal within

256. The State of Minnesota, by the grant to her of sections 16 and 36 in every township of public lands in the State, acquired no title to township sections 16 and 36 within the Sioux half-breed reservation, west of Lake Pepin, as against the holders of scrip issued to the halfbreeds of the Sioux Nation in exchange for their interest in the said reservation under the act of July 17, 1854, chap. 83. Opinion of July 21, 1864, 11 Op. 59.

257. The Government, like an individual, has no power to withdraw or annul its grant of land. The first lawful grant must stand! and the second cannot operate as a conveyance,

a reasonable time or to construct it further than the avails of the lands proposed to be granted her by the United States will do so, and as the act of Congress did not authorize the grant upon such conditions, the executive department cannot properly make the transfer. Opinion of Jan. 26, 1833, 2 Op. 550.

264. If the General Government shall make the transfer after the manifesto of Ohio as to her obligations, it will have no right to call on her either to complete the contemplated work or to restore the money for which the lands may sell. Ibid.

265. The proposed extension of the canal from Lake Erie to the Wabash, from the mouth of the Tippecanoe to Terre Haute, is authorized by the act of Congress of March 2, 1827

Ibid.

XV. Swamp Land Grants.

258. Under the act of September 28, 1850, chap. 84, granting to the State of Arkansas all the swamp lands within her limits the title vested in the State before a patent issued. Opinion of Nov. 10, 1858, 9 Op. 254.

259. The general description of all swamp lands within the limits of the State was certain and definite enough for purposes of notice. Ibid.

260. Where Congress after the grant of September 28, 1850, made another grant to the State of Arkansas to aid in the construction of a railroad, under which a part of the lands previously granted under the denomination of swamp lands was included, it was held that

agreed on and located, the additional lands provided by the act, so far as the United States are in a condition to provide them, may be legally claimed by the State of Indiana. ion of Aug. 14, 1838, 3 Op. 359.

Opin

266. But the Commissioner of the General Land Office, under the direction of the President, cannot make an additional selection from public lands beyond the limits of five sections in width on each side of the extended portion of the canal, in lieu of land which has been sold or otherwise disposed of within these limits, without the assent of Congress. Ibid.

267. Whatever might, under other circumstances, have been the effect of a non-compliance on the part of Indiana with the provisions of the second section of the act of 26th May, 1824, chap. 165, upon the right of the State to 90 feet of land on each side of the Wabash and

Erie Canal, the forfeiture has been waived by the passage of the acts of 2d March, 1827, chap. 56, 27th February, 1841, chap. 12, 3d March, 1845, chap. 42, and 9th May, 1848, chap. 36, recognizing the continuing efficacy of the original grant, and evincing the intent to waive every antecedent cause of forfeiture to which the act of 1824 may have been subject; so that the State of Indiana has a title to the 90 feet on each side of the said canal as absolute as she would have had in the contingency of a full performance. Opinion of Nov. 15, 1849, 5 Op. 179.

268. Such of the feeders of the said canal as are navigable, are to be regarded as constituent portions of the work contemplated in the acts of Congress, and are comprehended in the grants for its construction. Ibid.

269. The grant of alternate sections of land on Des Moines River to Iowa, by the act of 8th August, 1846, chap. 103, extends the entire length of the stream as well above as below Raccoon Fork. Opinion of July 19, 1850, 5 Op. 240.

270. The purpose of the grant was to improve the navigation of the said river from its mouth to the Raccoon Fork; but the grant itself is not limited to the section to be thus improved. Ibid.

271. The question of the extent of the grant was disposed of by a former Secretary of the Treasury while the Land Office belonged to his Department, and the subject is now res judicata and beyond the control of the Secretary of the Interior. Ibid.

272. The act of Congress of 8th August, 1846, chap. 103, granting to the Territory of Iowa, for the purpose of aiding to improve the navigation of the Des Moines River from its mouth to the Raccoon Fork, one equal moiety in alternate sections of the public lands, in a strip 5 miles in width on each side of said river, to be selected, &c., subject to the approval of the Secretary of the Treasury, did not include the land above Raccoon Fork. Opinion of June 30, 1851, 5 Op. 390.

273. The opinion of the Secretary of the Treasury on this subject, expressed on the 2d March, 1849, has no obligatory effect on the power of his successor to reject the selections made under it, in the event of a disagreement as to the proper construction of the act. Ibid. 274. A survey, by which the Chicago branch

of the railroad from Chicago to Mobile was to diverge from the main track at a point not north of the parallel of thirty-nine and a half degrees north latitude, is in accordance with the act of 20th September, 1850, chap. 61. Opinion of March 10, 1852, 5 Op. 518.

275. The United States granted to Illinois by that act, in aid of the railroad from Chicago to Mobile, every alternate section of land designated by even numbers of six sections in width on each side of said road and branches; but the claim for six sections for every linear mile of the road and its branches, including all its sinuosities and deflections from a straight line, is not tenable. Ibid.

276. By the act of June 18, 1833, chap. 114, 138,996 acres of land were granted to Wisconsin in aid of a canal, on the condition that if it was not completed within ten years the State should be liable to the United States for all moneys received upon the sale of the land, at a rate not less than $2.50 per acre. After disposing of all but 13,564 acres, the canal was incomplete and its construction abandoned: Held, that for all the land so disposed of the State was responsible to the United States in money, which a deduction from the 500,000 acres granted by the eighth section of the act of September 4, 1841, chap. 16, could not offset. Opinion of July 24, 1852, 5 Op. 574.

277. The act of 20th September, 1850, chap. 61, granting the right of way and land to the States of Illinois, Mississippi, and Alabama, in aid of a railroad from Chicago to Mobile, does not grant a right of way through the States of Kentucky and Tennessee. Opinion of Aug. 7, 1852, 5 Op. 603.

278. No part of the sections within the Chickasaw country can be claimed by Mississippi under the grant, but an equivalent is allowable. Ibid.

279. Congress, by act of August 8, 1846, chap. 103, for the purpose of improving the navigation of the river Des Moines "from its mouth to the Raccoon Fork," granted to the Territory of Iowa alternate sections of land "in a strip 5 miles in width on each side of said river." As construed by the Government at the time and as accepted by the State of Iowa, this grant extended only to the Raccoon Fork. Subsequently to this, the Secretary for the time being (Walker) expressed an opinion that the grant extended up the river to its source; but