a right to locate his float "elsewhere in said land district." But this does not appear to be material to the result of the case; for, if the designation of Reynolds can be applied to the piece marked on the map in black, and containing only 23.25 acres, it is evident that the two tracts will fall short of 160 acres, and, therefore, that the commissioner's conclusions are in accordance with the principles of my opinion.

I am, sir, very respectfully,
Your obedient servant,

Hon. LEVI WOODBURY,

Secretary of the Treasury.

B. F. BUTLER.

No. 84. (Ops. Aty. Gen.; G. L. O. p. 169.)

It is the duty of Surveyors General to divide fractional sections, containing over 160 acres, into lots approaching as nearly as practicable to the form and quantity of half-quarter sections, (see No. 85;) 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 a party is entitled to does not destroy the tender; it may be regarded as a precautionary measure.

It is proper, after a tender made, and the entry defeated by the fault of the officers of Government, to correct the error, by ordering a correct course to be pursued.

Immaterial points made by counsel, and not referred by the Department for an opinion, not answered.

The Commissioner to the Secretary of the Treasury.

JUNE 29, 1837.

SIR: In compliance with your verbal request, I have examined the last argument of Mr. Sherman, filed before you, in the case of Brown and Reynolds, with the report of the Attorney General of the 15th instant. Without deciding the question whether the affidavit of William Reynolds, made on the 3d March, 1836, long after the application for the location of his floating right, and its entry on the abstract by the proper authority, could affect the validity of that entry, I think it is manifest, on an inspection of that affidavit, that Reynolds claimed only eighty acres (not the whole) of the southwest fractional section 20, township 4, range 1

west.

The affidavit states expressly that he applied "to locate his right to the pre-emption of eighty other acres of public land on the southwest fraction," &c. This surely cannot be tortured into a claim to all of that fraction. It is true that the claim of Reynolds to his float is subsequently spoken of in the affidavit as his pre-emption to the said southwest fraction," &c., omitting the words "eighty acres." But, after the express limitation of his claim, the general phraseology alluded to was, doubtless, afterwards used merely to avoid repetition. The affidavit, therefore, by a proper construction of all its parts, was not considered inconsistent with the entry on the abstract. When Reynolds first applied

for the location of his float, the plats had not been returned to the district land office. The abstract shows that he then designated his claim as the north division of the fraction. It was impossible for him to indicate the tract by its technical name before the surveyor's plat was made and returned-the very object of the survey being to afford the necessary means for a more accurate designation. The duty then devolved on the Surveyor General, under the act of April 24, 1820, to divide the fraction in question into "half-quarter sections, as nearly as practicable." It was by him subdivided into two lots, as represented in the margin of the diagram filed in the case, the one lot containing 149.50 acres, and shaded black and red, the other containing 99.50 acres. These subdivisions were properly made by drawing the red line on the plat due north from the point representing the half-mile stake on the southern boundary line of the fraction. But that officer's duty did not stop here. It is evident that the portion of the fractional section which he had thus struck off on the west, if again equally subdivided, would have made two lots, each containing a mere fraction less than 75 acres; which is a much nearer approach to the area of a half-quarter section than the aggregate amount of both lots. If the officer had done his duty, therefore, Reynolds could have made his selection of a lot less than 80 acres. He could not then tender his money for lot E, or any other subdivision of the west part of the fraction, because they had not been made. But he ought not to be prejudiced by an omission of duty on the part of an agent of the Government. Under the instructions of the Secretary of the Treasury, the Surveyor General had a discretion to subdivide fractional sections either by north and south or by east and west lines. It was impossible, as before remarked, that Reynolds could know in what manner that discretion would be exercised. Being necessarily ignorant what portion of the fraction would be ultimately assigned to him, his tender of a sufficient sum to cover the whole is not regarded as setting up a claim to the whole, but merely as a proper precaution on his part to tender enough for the protection of his claim. On the final location of his float, he would (had the sum tendered been received) be entitled, according to the usages of the office, to have the surplus refunded to him.

Whether the Surveyor General could now be required, at the instance of Reynolds, to proceed and supply the omissions of his duty, by making the last subdivisions referred to, and thereby assign to him for his float what more nearly approaches to his right of eighty acres, is not considered material to decide; because it does not appear that Reynolds has made such a request, and because that officer has since, under act of April 5, 1832, made a subdivision of the west portion of the fraction, indicated by red lines in the body of the diagram; and although a subdivision of the plats under the last-named act could not, as such, affect the rights of Reynolds, yet it is believed, under the usages of the office, that, in the exercise of his legal discretion, the Surveyor General could have made the same subdivisions under the previous act of 24th April, 1820. But whatever may have been the motive of the officer in making the last subdivisions, and whether Reynolds could now insist on a larger subdivision than has been allotted to him, yet, as he waives the supposed irregularity, by which he alone is injured, it seems clear that no other party could legally take exception to it.

1

I have already, in my former report, remarked that lot E was included in what was called the southwest fractional section, &c., and that Reynolds's right could not be affected by the misnomer. Independent of the misnomer, however, it may be added that the south part of lot E is, in the most technical sense, a part of the southwest fraction, the short red line dividing it from the residue of the fraction being considerably south of the half-mile stake. The question, in my opinion, is narrowed down to this, whether the Surveyor General should be instructed to again subdivide the fraction under the act of 1820, so as to afford Reynolds an opportunity to select a division of it approximating more nearly to eighty acres, or to allow to Reynolds for his float the "north division," as now subdivided, containing only 23.25 acres. Being satisfied, as stated in my former report, that he had elected the latter alternative, my opinion was given accordingly, and after careful deliberation, I have seen nothing to change it.

As the Attorney General, if the additional facts contained in this communication had at first been presented to him, might have been enabled to give a definite opinion in the case, I would recommend that the papers be again submitted to him for his consideration. The papers are herewith returned.

ATTORNEY GENERAL'S OFFICE,

August 5, 1837.

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 pre-emption 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 preemption claim exists, and has been duly established, the party is clearly entitled to the benefit of a survey made in conformity to law.