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ination on the lake was north of the piers and contiguous to the new-formed land, and therefore entitled it to its share of the increment.
The defendant contended that no part of its boundary was on the lake north of the harbor, and therefore no part connected with or adjoining this land new formed.
In regard to the point in the case which we are considering, the court held that the inquiry should be made whether or not at the time of the deed to the plaintiff lot No. 34 had a water-line upon the lake north of the north. pier of the harbor; if it did, then the question would probably arise in respect to its right to a share of the alluvial accretion formed since that time.
As to the manner of dividing the accretions, the court laid down the rule that each riparian proprietor was entitled to his proportional share of the entire line of the newlymade shore.
The case was again before the Supreme Court of the
United States, some six years later, on a bill of exceptions. One point, to which exception was taken, was, "that the court erred in laying down the rule for the partition of the alluvium."
Mr. Justice Swayne answers: "It would be sufficient to say, that the jury having found that lot 34, at the time referred to, had no water front north of the north pier, the question did not arise;" and adds: "But as the views of the court have been misapprehended, and that misapprehension may mislead in other cases, we prefer to deal with the subject as if it were properly before us." He then proceeds to enunciate the rule of the court as follows: "Upon that occasion it was intended to adopt the rule laid down by the Supreme Court of Massachusetts in 17 Pickering, 45, 46, Deerfield v. Arms. The court said (Black's Rep. p. 222):
"The rule is-1, to measure the whole extent of the ancient bank or line of the river, and compute how many rods, yards, or feet each riparian proprietor owned on the liver line; 2, the next step is, supposing the former line, for instance, to amount to 200 rods, to divide the newly-formed bank or river line into 200 equal parts, and appropriate to each proprietor as many portions of this new as he owned rods on the old. When, to complete the division, lines are to be drawn from the points at which the proprietors respectively bounded on the old, to the points thus determined, as the points of division on the newly-formed shore. The new lines thus formed, it is obvious, will be either parallel, or divergent, or convergent, according as the new shore line of the river equals, or exceeds, or falls short of the old." It is further said: "It may require modification, perhaps, under particular circumstances. For instance, in applying the rule to the ancient margin of the river, to ascertain the extent of such proprietor's title on that margin, the general line ought to be taken, and not the actual length of the line on that margin, if it happens to be elongated by deep indentations or sharp projections. In such case, it should be reduced by an equitable and judicious estimate, to the general available line of the land upon the river."
"To this rule we adhere. With the qualification stated, it may be considered as embodying the views of the court upon the subject. In this case, if lot 34 had been found to have had a water front north of the north pier at the time stated, the pier front would have had nothing to do with the partition to be made. The lake front, where the accretion occurred, only could have been regarded. The whole of that front should have been taken as the basis of the adjustment."
Strips of land along rivers, bayous, etc. which were omitted when the public surveys were made, are not regarded by the department as coming under the head of riparian proprietorship. It has frequently happened in the prosecution of the public surveys, that deputies have mistaken the banks of bayous or "bottoms" for the true river banks. Instances of this kind occurred on the Kankakee river in Illinois, and on the Missouri river in Iowa. In the latter case the true river bank was found to be more than a mile west of the bank meandered by the deputy surveyor as the margin of the river, and hundreds of acres of public lands have been surveyed and sold between those meanders and the river.
When settlers in any of the public land states, where the Surveyor-General's office has been closed, desire to have such omitted strips of land surveyed, application may be made to the Commissioner of the General Land Office in the same manner and with the same conditions that are required for the survey of small islands.
The act of Congress of 3d March, 1865, supplementary to the act of July 1st, 1864, "for the disposal of coal lands and of town property in the public domain," is to enable citizens of the United States who, at the date of the "act, may be in the business of bona fide actual coal mining on the public lands, for the purpose of commerce," to enter
160 acres, or less quantity, in legal subdivisions, including their improvements and mining premises, at the minimum price of twenty dollars per acre.
The law, however, expressly excludes from its provisions any lands "reserved by the President of the United States for public uses."
The privilege granted is not a general one, but restricted to a single entry by a designated class of individuals, viz.: such as are citizens, and who, on the 3d March, 1865, the date of the act, were actually engaged, for "purposes of commerce," in "the business of bona fide actual coal mining." All persons not so occupied at that date are excluded from the enjoyment of the privilege.
1st. Testimony should be produced satisfactory to the Register and Receiver, showing the party to be a citizen of the United States, and that, at the date of the act, he was engaged "in the business of bona fide actual coal mining on the public lands," and "for the purposes of commerce."
The facts must be stated in detail, both as to the nature and extent of the coal mining; the period in which the business has been conducted, and in regard to the coal being made by the party an article of commerce, so that a correct judgment may be formed from these facts as to whether the case comes within the purview of the statute. Where the proof is clear and conclusive, the Register and Receiver are authorized to permit the entry, according to "legal subdivisions," in compact form, and so as not to exceed 160 acres.
2d. Where the mining improvements and premises are on land surveyed "at the passage of this act," it is required that a sworn declaratory statement descriptive of the tract and premises, and also of the extent and character of the improvements, be filed within six months from the date of the act, and that proof and payment must be made within one year from the date of such filing.
3d. If the mining premises be on land which may be surveyed after the passage of said act, then the declaratory statement shall be filed within three months from the return of the plat to the district land office, and proof and payment must be made within one year from the date of such filing.
The act of Congress, approved May 27th, 1831, makes the cutting or waste or destruction of timber upon the public domain a trespass, and liable to the imposition of a heavy penalty upon conviction in any court of competent jurisdiction. The timber so cut is forfeited, and may be seized and sold for the benefit of the government.
The duty of protecting the public timber has, by order of the Secretary of the Interior, been imposed upon the Registers and Receivers of the respective local land offices.
Pre-emption or homestead settlers are permitted to cut timber for domestic use, buildings, fences, firewood, etc. upon the premises, and for the purpose of clearing and improving the land for cultivation, but are not allowed to cut timber upon the tracts upon which they have settled for the purpose of sale or trade.
The Town Site Law of 1844 was repealed by the act of July 1st, 1864, and the former law is therefore only applicable to cases in which application for entry had been regularly made, and all necessary steps taken prior to July 1st, 1864. There are but few of these old cases remaining undetermined, and it is therefore only necessary in this connection to deal with existing laws in relation to town sites which are:
1st. The act of July 1st, 1864.
2d. The amendatory act of the 3d of March, 1865.