CITY
OF NEW ORLEANS NEW OULEANS
t7.
PAINE. PAINE.
833
CrrY OF (Oircuit Oourt
t1.
0/ Appeals, FIfth, No. 82.
Oircuit. June 20,1892.)
PuBLIC LANDS-SURVEYS-AUTHORITY OF LAND OFFICE.
A surveyor, acting under special instructions based upon an opinion of the secretary of the interior, surveyed an old Spanish grant, and reported the same to the surveyor general. Protests were filed against the survey; but the surveyor general approved the same, and forwarded it, together with the protests and evidence. to the commissioner of the general land office. The latter accepted the survey in part, but reserved the remainder for further consideration, meantime directing the surveyor general to withhOld the 1lling of the triplicate plats from the local land office. .The matter was then referred to the secretary of the interior, who held that the survey did not comply with the decision of his predecessor, and directed a new survey. Held, that the action of the surveyor general and the commissioner did not exhaust the authority of the land department, but that the matter was still lawfully pending therein, and the courts, therefore, had no authori' y to enjoin the obliteration of the old surveyor the making of the new one. 49 Fed. Rep. 12, affirmed.
Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. In Equity. Bill by the city of New Orleans against Ruffin B. Paine, a deputy surveyor, to enjoin the obliteration of an old survey and the making of a new one directed by the secretary of the interior. An injunction was denied and a temporary restraining order dissolved. 49 Fed. Rep. 12. Complainant appeals. Affirmed. J. L. Bradford, for appellant. Wm. Grant, for appellee. Before PARDEE and MCCORMICK, Circuit udges, and LOCKE, District Judge.
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MCCORMICK, Circuit Judge. The appellant is the owner of certaip lands on the left bank of the Mississippi river, abou t 50 miles above New Orleans, embraced in a grant made by the French authorities on the 3d of April, 1769, to one Dupard. The land was described in the grant as having "30 arpens of front to the river, upon the whole depth which shall be found unto Lake Maurepas." The front of the grant was increased to 40 arpens, which is accounted for by the action of the river increasing the arc of the bend. The authorities of the land department have unifdrmly recthe grant as a completed grant of former governments; and no substantial difficulty has been encountered in fixing its front on the river, and the direction of its side lines, following the rule that has obtained in the survey of riparian grants in Louisiana, that side lines shall be extended at right angles to the general course of the bank at the points from which they depart. The front of this grant being on the convex side of a bend of the river, the side lines rapidly diverge; the course of the upper or .western line being N.· 27° 48' W ·· and the course of the lower or eastern line being N., 17° 10' E. But much contention and 'difficulty, and diversity of views by various officials of the land departv.51F.no.13-53
834'
ment, and the successive owners of this grant, and parties having rights in the adjacent lands,baV'e .beenexperienced in fixing the depth of this grant and correctly establishing its rear line. Lake Manrepas is situated towards. the rear of thisgrllntl but ia not now immediately in its rear, as no extensiou of its side lines would touch or include any part of that lake. It Beems to be certain that the western shore of the lake has t:E:lCedlld, a,nd the southern boundary extended, sincuthe date, of this gl'I;l.Qt. The Amite river, whose ,vaters connect ,,;ithJhe therefl'r,of this grant, and the owner of the grant has claimed extended to. that river; and, to at one' time the of the surveyor the OPpOSItiOn of the state of in the question by reason of the grant toherbyacf of congress ofthe adjacent swainp lands. Such has been t):lecontro"ersy as to the rear line of this grant that it is not seriously contended that its correct IQcation ever fixed until after a decision made by the secretary of the interior on the 6th of January, 1888, in whichdecision the secretary,addressing the acting commissioner of the laiid office;!announced histUlinp:as follows: . "In this case a line drawn through the center of the grant, from the front tothe rear, terminatinjt at the point of intersection of a line drawn at right angles'thereto, so as to toncb-theloil'estpoint of the southern shore of the lake,would,seemto dptet.mine accurately a depth as far Lake .It lAJ me JhattlJis Is rule by the depth of this grant can be ascertained i1J..lJccordatlce.wiLh the terms Of the grant. I am therefore of the opinion'tbat the dt'pLh of this grant only extends as far back as the southern shore of Lake Maurepas, and'that the side lines of t.he grant shoullinot be eJ[ten<led further than that depth. "" ""'""Your decision is direct that the survey of these pUblic'.1ands(adjacent) be closed upon this grant in accol'dance'with the rule above stated." Thereupon the commissioner of the land office directed the surveyor getleraIitoha.vethesurvey:nuflle in accordance with said decision. The surveyor geheral, in executing that direction, made a contract with the a!ppellee;covering the work of making the 8urvey,and instructed said deputy, 11; ·1889, that","The back lina of the claims· of' Ml:Donogh and Fontenot, being the back lineofthe'grttnitoDupard,8srestricied i,n depth by the afo\'esaid decision, )<Ul .will !\ufv,eyand locl'lein f;olloWing , "You,wHL the southern shore line .ofLake Maurepas, ,and if sneb as ill contemplated under the head of"'Private I.aPd Claim Surveys,' p. ,111 of theprinled manual, or from any()'th'e;r reliable:<p'roof, and y<lUr own t'xaminations, that there has ,been a cllarlgein Baid sIJtiteline Bincethe gralltWtis made, viz., 17ti9, you will proceed. ;under sbeh: proof and upon your ownttrilP(,l!lsibility, as a sworn e1llcer, toall.certain the of such shore lipe in'1769, near may be. x/'And if It cannot ascertaine4, tp where it was, 1iI0 !lIr back as ascprlalu where. it wail at any tilne since then. lit Phis satisfl:lcto;rily" ; , 1 : . " " If' you find no reasons to think, the shore has changed, 'or if the evidence ,reSUlting from your examinationBand :from the other evidence you may obtairiis notsstisfactory 011 this point, or will, not you to fix it in any i
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CITY OF NEW ORLEANS 'V. PAINE.
835,
otberposition than it now occlipips, you will ,conclnde that its position nOWr marks position in 1769, wh,en the grant was made., . r "Having thus satislied yourself as to the tru·· southern shore line of the lake at tbe date of the grant, you will run It blank compass line;wilhout marking or measuring thesam.., from the most southern point of slrch line, so ascertained, in a west course. ,to the lower side line of the Fontenot claim, hert-tolore direct..d to be extt-nd..d froll) tile south line of T. 10 S., R. 6 E.; you will at slIch point of int..rsection estalJlish tbe lower back comer of the grant and of the Fontl'not claim. "From that point you will prolong the line west, marking and measuring the sallie, to the ul'p,.r siele line of McDlJIIOKh, as surveyed by John Kap, estahlishing a corner at the intersection of the lower side Ime of t1lat clailll, and taklllg counections with all township aud section lines, and establishing cornEll'S at such intersections." On the 24th February, 1890, the foregoing instructions were thus modified: "The secretary having held, as I am now advised by the romm:ssioner, that such back line should lIot run west from the south(lru extremity of Lake as will be perp..ndicuMaurepas, but should rUII therefrom on such a lar to the axis of the Dupal'dgrant, your former instructions are modified as follows: " Having satisfied yourself of the trne position of the lake, as dirt'cted in your former instructions, you will run the back line thert'from on a compass direction which will be lit right angles to aline which would run through the centi-r of the Fl'ench grant. But this center line or axiS of the grant need not itself be run on the ground. Its course will be a mean between the courses of the upper llnd lower .side lines of the grant, as heretofore established, and to be t'stablisht-dby you, as heretofore directt-d. "In running such back line, )'on will mark it; establish corners on it, and take {'onnections of other lines it may intersect, as ht'retofore instructt'd, in evel'y respect as though no other change had been made in your former instructions, except as to the course of the same." The appellee, as deputy surveyor, made the surver under these instructions, reported the same to the SUl'veyor general's office, showing thnt he had thoroughly examined the lake and its shores. and had taken the affidavits oothe of all the old and reliable settlers he could readily find. which affidavits he made a part 01 his returns; that he could form no definite conclusion from his examination and the estimates of the settlers as to where the shore liue of the lake wall at the date of the grant; that the only thing which seems certain is that it was then a long way from where it now is. And he further says: "In fixing upon the distance of 104.87 chains. I have tried to adort a location which wHuld probably give the claims all the depth they are entitled to, without extending them so far as SOUle of the evidence would require." Against the adoption of this survey, HOD. John McEnery, as agent for the state of Louisiana, and W. H. Rogers, attorney general of Louisiana, and Messrs. J. L. Bradford and C. W. Holcomb, attorneys for the cities of New Orleans and Baltimore, and others, protested. The report orthe survey, with diagrams, plats, transcript of the field notes, the affidavits made part of the returns. and the protests above mentioned.