thereby. These are numberings on the plat merely for the purpose of ready reference to the descriptions of such corners to be furnished to the Registers. The letters on 66 Diagram B," at the "corners" on the township boundaries, are referred to in the descriptive notes to be furnished to the district land office, but are not required to be inserted on the official plat to be returned to the General Land Office. No. 703. Surveys of the Public Lands. The Act of 24th April, 1820, and the instructions issued under it, directing the manner of subdividing fractional sections containing over one hundred and sixty acres, did not require the absolute platting of every quarter or half-quarter of which the section was susceptible, but contemplated the exercise of discretion so as to prevent small and inconvenient fractions of a fractional section. It is the duty of Surveyors-General to subdivide fractional sections in conformity to law, and without reference to the existence of the Pre-emption Acts of May 29, 1830, and June 19, 1834. ATTORNEY-GENERAL'S OFFICE, Sir:-In your letter of the 14th of June last, you requested my opinion on certain points presented to you by appeal from the Commissioner of the General Land Office, relating to the legality of the survey heretofore made, and adopted by the General Land Office, of the divisions of fractional section 22, township 4, range 1, west, in Stephen's Land District. It appears from the letters accompanying your letter, that section 22 was made fractional by private claims, and that it contained about two hundred and three acres, lying in such a form as to admit the running out of one complete quarter section, and, of course, of two complete half-quarter sections. Such a division, however, would have left two small irregular and inconvenient fractional tracts, being parts of three fractional quarter sections. To prevent this, the Surveyor-General divided the section into only two parts, by running a line due north from the half-quarter section post, thus making two tracts of a compact and convenient form, each approaching as nearly to the form and contents of a half-quarter section as was practicable, supposing the object of the survey to be to divide the section into tracts of this form, in such a way as to avoid the leaving of small fractional remainders. James Etheridge had previously claimed and proved a pre-emption right, under the Act of 1830, to the southwest quarter of this section, and W. D. Stone the like right to the fraction in the west part of the southeast quarter; and after the above-mentioned survey came in, they respectively paid, and received certificates-Etheridge for the southwest subdivision of ninety-two and sixty-seven hundredths acres, and Stone for the southeast subdivision of one hundred and ten and fifty hundredths acres, in conformity to which patents have since been issued. Etheridge, however, insists, that as there was an entire quarter section of one hundred and sixty acres, and he the only settler thereon, he was legally entitled to enter such a division; that he took the proper steps to perfect this right; that the survey disre garding the quarter section lines, was illegal; and that it ought to be corrected by subdividing the section agreeably to those lines. This would enable him to obtain his whole pre-emption rights, but would leave the small fractional remainders above stated. The single question on which it now appears to be material that I should express an opinion, is, as to the duty of the Surveyor-General to divide the section into regular half-quarter sections. In deciding this question, I have thought it useful to examine the provisions of the several acts of Congress relating to the survey of public lands, commencing with the Act of 18th May, 1796, and ending, so far as regards the present case, with the Act of the 24th April, 1820, (all which acts are in pari materiâ ;) but I think its solution depends on the first section of the latter act, and on the instructions of the Secretary of the Treasury, issued in pursuance thereof. The first section of the Act of 1820 provides that the public lands of the United States, when offered at public sale, shall be offered in half-quarter sections; that when offered at private sale, they may be purchased, (at the option of the purchaser,) either in entire sections, half sections, quarter sections, or half-quarter sections; that in every case of the division of a quarter section, the line for such division shall run north and south; and the corners and contents of half-quarter sections be ascertained in the manner directed and prescribed in the Act of the 11th of February, 1805; and that "fractional sections, containing one hundred and sixty acres, or upwards, shall in like manner, as nearly as practicable, be subdivided into half-quarter sections under such rules and regulations as may be prescribed by the Secretary of the Treasury; but fractional sections containing less than one hundred and sixty acres, shall not be divided, but shall be sold entire." Under this latter clause, the Secretary of the Treasury, on the 10th of June, 1820, issued instructions directing that fractional sections, containing more than one hundred and sixty acres, should be "divided into halfquarter sections, by north and south or east and west lines, so as to preserve the most compact and convenient forms." This instruction, as I am informed, has been understood in the General Land Office, and by the surveyors, to authorize the course adopted by the Surveyor-General in the present case; and I shall assume that it did so. I make this assumption, because the Department is perfectly competent, and best qualified, to construe its own instruction; and because, unless such was its meaning, no question of law under the Act of 1820 could well arise for my consideration; for if the instruction required, as contended by the counsel of Mr. Etheridge, that all the regular half quarter sections of which the fractional section is susceptible, shall be actually formed, then the survey should have been set aside for its non-conformity to the instruction. The matter is then narrowed to the question, Whether the instruction of 1820, (construing it, as the Surveyor-General has done in the present case,) is a legal and valid exercise of the discretion committed to the Secretary of the Treasury, by the Act of the 24th of April, 1820, above quoted? It will readily occur, that to authorize me to pronounce an instruction of this nature, issued immediately after the enactment of the law, and acted on for so long a period, illegal, the objection should be a very clear one. This is by no means the case in the present instance; and after mature consideration, I am led to answer the question just stated in the affirmative, for the three following reasons: 1. If Congress had intended that fractional sections should, at all events, be divided into half-quarter sections, when their shape admits the formation of any such subdivision, I think they would have said so in explicit terms, and that the discretionary power intrusted to the Secretary would have been plainly confined to the residuary parts of the section. 2. The clause in the first section of the Act of 1820, concerning frac tional sections containing less than one hundred and sixty acres, (which are not to be divided at all, but sold entire,) is decisive to show that the Congress which passed that act, did not deem it indispensable that regular half quarter sections should in all practicable cases, be formed by the surveyors; on the contrary, it shows that they preferred a single tract, though containing more than eighty acres, and though capable of forming a regu lar half quarter and small and inconvenient fractions. 3. I am of opinion that the survey should be made in conformity to the general system established by law, and by the instructions of the Department, without any reference whatever to the existence of a pre-emption law, or to the fact that rights have been claimed and established under it. I am, sir, very respectfully, your obedient servant, B. F. BUTLER. Hon. Levi Woodbury, Secretary of the Treasury. No. 704. Surveys and entries of public lands. It is the duty of Surveyors-General to divide fractional sections containing over one hundred and sixty acres into lots approaching as nearly as practicable to the form and quantity of half quarter sections; and it is competent for the Department to direct the performance of the duty. The survey is to be made without reference to Pre-emptions, but Pre-emptors are entitled to a legal survey. A tender for more than the party is entitled to, does not destroy the tender; it may be regarded as precautionary. It is proper, after tender made and entry defeated by fault of the officers of the Government, to correct the error by ordering a correct course of procedure. ATTORNEY-GENERAL'S OFFICE, Sir-In compliance with the request contained in your letter of the ultimo, I have looked into the additional report of the Commissioner of the General Land Office in the case of Brown and Reynolds, bearing date the 29th of June last, and, upon the additional facts mentioned therein, have the honor to state the following propositions as the result of further reflection on this case. 1. Under the Act of 1820, and the instructions issued by virtue thereof, it was the duty of the Surveyor-General to divide fractional section 20, containing, as it does, more than one hundred and sixty acres, into lots or tracts of a compact and convenient form, approaching as nearly as practicable, having regard to the shape of the whole fractional section, to the form and contents of half quarter sections. The reasons on which this opinion is founded will appear in my opinion of the 2d instant, in the case of James Etheridge, to which I beg leave to refer. 2. I suppose it to be competent for the Department to cause the Surveyor-General now to do what he ought to have done when he made the survey; and that it is the duty of the Department so to direct, if such a course be necessary to the protection of any right duly claimed under the preemption laws or otherwise. For although the Surveyor-General is to be guided in the performance of his duty exclusively by the laws and instructions relating to surveys, and is to execute that duty without reference to its possible effects on pre-emption claims; yet, where a pre-emption claim exists, and has been duly established, the party is clearly entitled to the benefit of a survey made in conformity to law. 3. It appears to me that the designation of Reynolds, entered in the abstract of the land officers, was sufficiently precise to entitle him to take his floating right in the west part of fractional section 20, including the small tract now marked E; provided, by the survey thereafter to be made, a division should be legally formed, embracing tract E, and liable, according to the rules stated in my opinion of the 27th of April last, to be taken under a floating right. 4. I am also of opinion, that as the survey was erroneous in not dividing fractional section 20 into lots or tracts of a compact and convenient form, approaching as nearly as might be to the form and contents of half quarter sections, and as Reynolds could not control or alter that survey, his tender for tract A, of one hundred and forty-nine acres, ought not to be regarded as a claim to the whole and to no less than the whole of that tract; but rather as applying to the whole, if by law he was entitled to purchase the whole; and if not, then to so much of it, if any, as the law would entitle him to purchase by virtue of his floating right; and I think the affidavit of Reynolds, made on the 3d of March, 1836, and the other proceedings on his part, reconcilable with this view of the subject. 5. It will follow, from the foregoing propositions, that the course proposed by the Commissioner of the General Land Office, viz.: to allow Reynolds to complete his purchase to the tract marked E, may properly be adopted, provided tract E could have been made, or can now be made, under the Act of 1820, a legal subdivision of fractional section 20; but if not, and any portion of tract A, including tract E, could have been made, and can now be made, under the Act of 1820, a legal subdivision of the section, then I think Reynolds should be allowed to complete his purchase to such larger subdivision, provided it be not so large, when added to the tract selected by Brown for his float, as to exceed, in the aggregate, one hundred and sixty acres. Some other questions have been raised by Mr. Sherman, in his observations addressed to me on the report of the Commissioner; but as they were not presented by your communication, I have not deemed it proper to examine them; nor, if you concur in the views above stated, will you probably find it material to do so. I have the honor to be, very respectfully, B. F. BUTLER. To the Hon. Levi Woodbury, Secretary of the Treasury. No. 705. In relation to the Surveys of Indian Reservations in Kansas. GENERAL LAND OFFICE, Sir-I have the honor to acknowledge the receipt of the communication from the Commissioner of Indian Affairs, dated 8th inst., referred by you to this Office, and to inform you that the Surveyor-General has been instructed in regard to the surveys of the particular cessions of lands in Kansas, respecting which the Department has manifested special interest. After laying off the base line, the earliest surveying operations will be those preliminary to subdividing for market the bodies of country ceded by the Ioways, Delawares, and the united tribes of Peorias and Kaskaskias, Piankeshaws and Weas, stipulated to be sold for the benefit of those tribes. The next operation will be to establish the township and subdivisional corners, and to close the surveyed lines on the boundaries of the permanent reservations, which are laid down on Lippincott's Map of Kansas and Nebraska, under the sanction of the Indian office; but in order to do so, the outlines of such permanent Indian reservations must necessarily be preestablished and known. As indicated on the enclosed diagram (C,) the proposed order of survey is first to run and establish the base line from the point A, on the Missouri river, at the intersection of the fortieth parallel with that river, in the direction of C, its proposed terminus, as far as the point B, in order to admit of running the "guide meridian," B G, from which will start the "standard parallel," or correction lines, at intervals of every five townships, or thirty miles from D to H, E to I, F to K, G to L, and the township, section, and quarter-section corners, are to be duly established on both the guide meridian and standard lines, as they are run; and all this is to be done before the bodies of land which are desired to be the earliest to be subdivided for sale, can be approached; and so far, the Surveyor-General has been instructed. The subsequent operation, next in order, will be to extend the township and sectional lines from the pre-es'tablished corners so as, (by judicious management on part of the SurveyorGeneral,) to embrace the three bodies of land, full colored yellow, on the diagram (C.) The lines of townships are colored blue, and those, and also the sectional lines, will close on the reservations colored red. The line of division between the Ioways and Sacs and Foxes is said, in the late Ioway treaty, to have been run by Isaac M'Coy, (Stats. at Large, 1853-4, p. 146.) These cessions are adjoining, and the Ioway lands are to be sold for the benefit of that tribe. It is not designed to make fractions on both sides of that line, (which would unnecessarily mar the surveys,) but to suffer the surveys to proceed uninterruptedly over it, showing its course by taking occasional connections with it, so as to admit of its course being accurately delineated, as a dotted line, on the appropriate township plats, for the purpose of enabling the Department to adjust the Ioway claim to the proceeds of the lands sold within their proper limits, as such course of proceeding seems to be contemplated by the treaty. The survey of the line between the Delaware and Kickapoo cessions is wanted also for a purpose precisely similar to the above; and the surveys of the exterior lines of the cessions by the Peorias and Kaskaskias, (ninety-four thousand and eighty acres,) and Piankeshaws and Weas, (one hundred and fifty-eight thousand four hundred acres,) are also wanted for a like purpose. Besides the foregoing there are needed the surveys of the exterior lines of the permanent Indian reservations, colored red on the accompanying diagram, to wit: the |