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October 1, 1874


ERROR to the Supreme Court of Nebraska.

Morton sued certain tenants of the State of Nebraska in ejectment to recover three hundred and twenty acres of salt land salines–in the said State; a State formed, as every reader of these volumes is aware, out of that vast region formerly known as the Territory of Louisiana and purchased in 1803 by us from France. The land in question was palpably saline, so incrusted with salt as to resemble snow-covered lakes. The salines in question were noted on the field-books, but these notes were not transferred to the register's general plats. The State intervened in the suit, and by its own request was made a defendant.

The plaintiff based his title under locations of military bounty-land warrants at the land office in Nebraska City, in September, 1859. These warrants were issued by virtue of the Military Bounty-Land Act of September 28th, 1850, which declared that such warrants might be located at any land office of the United States upon any of the public lands in such district then subject to private entry. The locators of the warrants, it appeared, before they made their entries, were told that the lands were salines. The State now set up that the locations were without authority of law, because the lands being saline lands were not subject to such entry.

The question thus was whether, in Nebraska, saline lands were open to private entry; or more strictly, whether they were so under circumstances such as those above stated.

It was not denied by the plaintiff that the practice of the Federal government, as exhibited by many acts of Congress (which being referred to in the opinion of the court, need not here, by the reporter, be particularized), from an early date had been to exclude this sort of land, with certain other sorts, from public sale, generally. It had done so confessedly from the Northwestern Territory and from the Territory of Orleans, the now State of Louisiana. But the defendants conceived–and such was their position–that under the statutes regulating the matter in Nebraska this was not so.

The matter was to be settled by certain acts of Congress, standing perhaps by themselves; or if their language was not clearly enough applicable to the district of Nebraska, by such acts, read by the light of the policy of the government and its numerous enactments on the main subject.

The first act which bore directly upon the matter was an act of March 3d, 1811,*fn1 'providing for the final adjustment of claims to lands and for the sale of the public lands in the Territories of Orleans and Louisiana.' This act created a new land district, and authorized the President to sell any surveyed public lands in the Territory of Louisiana, with certain exceptions named;

'And with the exception also of the salt springs and lead mines, and lands contiguous thereto.'

Next came an act, approved July 22d, 1854,*fn2 more immediately bearing on the matter: 'An act to establish the offices of surveyor-general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes.'

This was an act of thirteen sections, and, as its title shows, relating to three different Territories.

The first three sections related, without any question, exclusively to the Territory of New Mexico.

The first of them authorized the appointment of a surveyor-general for that Territory, with the usual powers and obligations of such officers.

The second made a donation of a quarter-section of land to all white males residing in it, who had declared an intention, prior to January 1st, 1853, to become citizens; and also (on condition of actual settlement, &c.) to every white male citizen above twenty-one years of age who should remove or have removed there between January 1st, 1853, and January 1st, 1858.

The third authorized a patent for such land to issue.

Then came in a fourth section, in these words:

'None of the provisions of this act shall extend to mineral or school lands, salines, military or other reservations, or lands settled on or occupied for purposes of trade and commerce, and not for agriculture.'

This fourth section, as the reader will observe, does not in terms refer to the Territory of New Mexico, but says none of the provisions of this act, &c.

However, the fifth section enacts 'that sections 16 and 36 in each township, shall be, and the same are hereby reserved for the purpose of being applied to schools in the said Territory;' that is to say, the Territory of New Mexico; and the sixth reserves a quantity of land equal to two townships, for a university there.

The fourth section, therefore, as the reader will have noted, is interposited between sections which relate exclusively to the Territory of New Mexico; though it, itself, does not in terms so exclusively relate. The fifth section also, as he will have noted, makes a reservation for schools; a ...

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