The vital question in this case is whether Hackley could claim the benefit of the act of 1826, in reference to the tract in
"That no entry or sale of any land shall be made, under the provisions of this act, which shall have been reserved for the use of the United States, or either of the several States in which any of the public lands may be situated," or "which is reserved from sale by act of Congress, or by order of the President, or
It appeared that at the request of the Secretary of War the Commissioner of the General Land Office had marked upon the official map of that department the tract in controversy as reserved for military purposes, and directed it to be withheld from sale. The court held that this action was that of the President, saying (p. 513):
"Now, although the immediate agent, in requiring this reservation, was the Secretary of War, yet we feel justified in presuming, that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian Affairs, including agencies, belong to the War Department. Hence, we consider the act of the War Department, in requiring this reservation to be made, as being in legal contemplation the act of the President; and, consequently, that the reservation thus made was, in legal effect, a reservation made by order of the President, within the terms of the act of Congress."
And going beyond the special language of the act in respect to the sale of lands, the court observed:
"But we go further, and say, that whensoever a tract of land shall have been once legally appropriated to any purpose, from that moment, the land thus appropriated becomes severed from the mass of public lands; and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it; although no reservation were made of it.
"The very act which we are now considering will furnish an illustration of this proposition. Thus, in that act, there is expressly reserved from sale the land, within that district, which had been granted to individuals, and the State of Illinois. Now, suppose this reservation had not been made, either in the law, proclamation or sale, could it be conceived that, if that land were sold at auction, the title of the purchaser would
In Leavenworth &c. R.R. Company v. United States, 92 U.S. 733, 745, the doctrine announced in Wilcox v. Jackson, supra, was reaffirmed, the court, quoting the first paragraph in the last quotation, added "it may be urged that it was not necessary in deciding that case to pass upon the question; but, however this may be, the principle asserted is sound and reasonable, and we accept it as a rule of construction." In that case it was held that a grant of public land in aid of a railroad did not apply to lands included within an Indian reservation, and that it was immaterial that the reservation was afterwards set aside and the lands had become a part of the public lands of the nation. Newhall v. Sanger, 92 U.S. 761, ruled that lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road, were not embraced by a grant to a railroad company, and it was said in the opinion (p. 763) "the words `public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws."
In Shively v. Bowlby, 152 U.S. 1, it was held that while Congress has power to grant lands below high-water mark in navigable waters, yet the fact that the public surveys are made to terminate on the banks or shores of those waters, indicates that such lands are not subject to entry and sale under the general land laws, but so far as they are situated in a Territory are reserved for the use and control of the future State. This doctrine was reaffirmed in Mann v. Tacoma Land Company, 153 U.S. 273. Many authorities might be cited to the proposition that a prior appropriation is always understood to except lands from the scope of a subsequent grant, although no reference
There is nothing in United States v. Fitzgerald, 15 Pet. 407, to conflict with the foregoing views. It merely decided that an officer of the United States (in that case an inspector of customs) was not deprived by any act of Congress of the benefit of the preemption laws, and the fact that he was put in possession of a tract of land by the collector of customs, who had received no instructions to that effect from the Treasury Department, was not an appropriation to the uses of the Government. It is true a letter from the Acting Commissioner of the General Land Office to the register at New Orleans, stating that the Secretary of the Treasury had directed that the tract be reserved from sale for the use of the custom house at New Orleans, and requesting the register to note upon his plats that it was so reserved from sale, was in evidence, but this was written two years after the inspector had entered and paid for the land. Of course, such attempted reservation could have no effect upon a title acquired by the entryman prior thereto. Nor is there any conflict in United States v. Tichenor, 12 Fed. Rep. 415. There it appeared that the commanding officer of United States troops in Oregon ordered that a military reservation be established on the tract in controversy. In obedience thereto a lieutenant erected some buildings thereon for the use of the soldiers. It was held by the Circuit Court that such action constituted no appropriation of the land so as to exempt it from the operation of the general land laws. But the ground of the decision was that the general commanding was acting without any direction from the President or the War Department, the court saying (p. 423):
"It may be admitted, as suggested in Wilcox v. Jackson, 13 Pet. 513, that if the order directing the reservation to be made had been issued by the Secretary of War, — the head of the department through whom the President would speak and act upon the subject, — in the absence of evidence to the contrary, it would be presumed that he acted by the direction
Again, it is urged that the establishment of this camp or cantonment was a mere temporary matter, and not to be considered as in the nature of a reservation or appropriation, and we are referred to orders and other papers found in the records of the War Department, copies of which appear in the brief of appellants' counsel. Those orders, if we are permitted to consider them on this demurrer, make distinctly against the contentions of counsel. We quote from that issued from the Adjutant General's office:
"Brevet Col. Brooke, with four companies of the Fourth Infantry, will proceed with as little delay as practicable to Tampa Bay, East Florida, where he will establish a military post. He will select a position with a view to the health and in reference to the Florida Indians about to be removed to that vicinity agreeable to the late treaty. Upon this point he will consult Col. Gadsden, the commissioner employed in locating the Indians. . . .
"The permanent headquarters of the Fourth Infantry will remain at Cantonment Clinch, and, should Col. Clinch have rejoined his regiment, on the receipt of this order he will be charged with the duty of preparing Col. Brooke's command for the expedition to Tampa.
"By order of Major Gen. Brown.
It will be seen that the direction is to "establish a military post." It was for this "post" that the tract in controversy was taken, and the statement in the report of Colonel Brooke, as one of the reasons for its selection, that some two miles in
Without considering, therefore, the question of laches or limitation we are of opinion that the decision of the Court of Appeals was correct, and it is