Opinion of the Court.

of sections 23 and 26, while the water line of the main body of the river is a mile or a mile and a quarter west thereof, in sections 22 and 27. Again, the distance from the east line of the section to the meander line is given, which is less than a quarter of a mile, while the distance from such east line to the main body of the river must be in the neighborhood of a mile and a half. Further, the description in the patent is of certain lots in sections 23 and 26, and, manifestly, that was not intended to include land in sections 22 and 27.

These considerations are conclusive that the water line which was surveyed, and made the boundary of the lots, was the water line of the bayou or savannah, and there has been simply an omission to make any survey of the tract west of the bayou, and between it and the main body of the Indian River. It is unnecessary to speculate why it was that it was not surveyed. It may have been a mere oversight, or it may have been because the surveyors thought that the action of the water would soon wash the low land away; but whatever the reason the fact is obvious that no survey was made of that body of land, and the boundary line fixed was the water line of the bayou.

The rule of public surveys, as prescribed by c. 9, sec. 2395, Title 32, Rev. Stat. page 438, and following pages, requires that they be surveyed into townships of six miles square, with subsequent subdivisions into thirty-six sections of a mile square, except where the line of an Indian reservation or of tracts of land theretofore surveyed or patented, or the course of navigable rivers, renders this impracticable, with a proviso that "in that case this rule must be departed from no further than such particular circumstances require." Now, if this tract west of the bayou and between it and the Indian River was intended to be surveyed, obviously all the lines of sections 23 and 26 would have been run along straight lines, and so as to make complete sections and quarter sections. But such lines, at least those on the west side, were not run, and, whatever the reason, the survey stopped at the water line of the bayou, and left this body of land west thereof wholly unsurveyed.

Opinion of the Court.

Although it was unsurveyed it does not follow that a patent for the surveyed tract adjoining carries with it the land which, perhaps, ought to have been, but which was not in fact, surveyed. The patent conveys only the land which is surveyed, and when it is clear from the plat and the surveys that the tract surveyed terminated at a particular body of water, the patent carries no land beyond it. Cases of this nature are naturally few in number. Lammers v. Nissen, 4 Nebraska, 245, is somewhat in point. In that case it appeared that between the meander line as run and the Missouri River was a tract of several hundred acres, and the court held that as that body of land had not been surveyed it did not pass by a patent of a lot which on the government plat extended to the meander line. A similar ruling was made in Glenn v. Jeffrey, 75 Iowa, 20. Whitney v. Detroit Lumber Co., 78 Wisconsin, 240, was a case in which the meander line shown in government surveys was a half a mile or more from the real borders of a lake, and the court, in a very careful opinion, discusses the law of official surveys and holds that as the meander line was a mistake, the patent did not carry the land to the actual boundary of the lake, but only to the straight line which would have been the boundary of the quarter section if accurately surveyed. And the same doctrine is reaffirmed in Lally v. Rossman, 82 Wisconsin, 147.

But it is said that because the water mentioned on the plat is called Indian River the boundary must be taken as the water line of the river, and cannot be that of any intermediate bayou. Bates v. Illinois Central Railroad Company, 1 Black, 204, 208, is instructive upon this. In that case a patent had been granted for 102.29 acres lying north of the Chicago River, bounded by it on the south and by Lake Michigan on the east. The contention was that the main channel of the river entered the lake much below the line. shown on the plat, and so the patent carried a larger tract than that described therein. It appeared that there were two channels of the river, and the court said in reference to this: "The mouth of the river being found, establishes the southeast corner of the tract. The plat of the survey, and a call

Syllabus.

for the mouth of the river in the field-notes, show that the survey made in 1821 recognized the entrance of the river into the lake through the sand bar in an almost direct line easterly, disregarding the channel west of the sand bar, where the river most usually flowed before the piers were erected. It is immaterial where the most usual mouth of the river was in 1821; nor whether this northern mouth was occasional, or the flow of the water only temporary at particular times, and this flow produced to some extent by artificial means, by a cut through the bar, leaving the water to wash out an enlarged channel in seasons of freshets. The public had the option to declare the true mouth of the river, for the purposes of a survey and sale of the public land."

So, in the case before us, obviously the surveyors surveyed only to this bayou, and called that the river. The plaintiff has no right to challenge the correctness of their action, or claim that the bayou was not Indian River or a proper water line upon which to bound the lots.

We are of the opinion, therefore, that no substantial error was committed by the Circuit Court, and the judgment is

Affirmed.

WISCONSIN CENTRAL RAILROAD COMPANY v.

FORSYTHE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN.

The land in controversy in this case is within the place limits of the road of the plaintiff in error, and was subject to the full control of Congress at the time of the grant made by § 3 of the act of May 5, 1854, c. 80, 13 Stat. 66, and it passed by operation of that grant, notwithstanding the fact that it was withdrawn by the Land Department in 1856 and 1859, in order to satisfy the grant made by the act of June 3, 1856, c. 43, li Stat. 20.

Every act of Congress making a grant of public land is to be treated both

Statement of the Case.

as a law and a grant, and the intent of Congress, when ascertained, is to control in the interpretation of the law.

When Congress makes a grant of a specific number of sections of public land in aid of any work of internal improvement, it must be assumed that it intends the beneficiary to receive such amount of land; and when it prescribes that those lands shall be alternate sections along the line of the improvement, it is equally clear that the intent is that, if possible, the beneficiary shall receive those particular sections.

The courts are not concluded by a decision of the Land Department on a question of law.

The facts set up by the defendant as an estoppel suggest the rule "de minimis non curat lex."

THIS was an action of ejectment, commenced on April 5, 1890, by the Wisconsin Central Railroad Company against William O. Forsythe in the Circuit Court of the United States for the Western District of Wisconsin, to recover possession of the southwest quarter of section 11, township 47 north, of range 4 west, in the county of Ashland, Wisconsin. At the trial, on April 16, 1891, the court instructed the jury to render a verdict for the defendant. Judgment having been entered on such verdict, the railroad company brought the case here on this writ of error.

The title of the plaintiff rested on these facts: By the act of June 3, 1856, c. 43, 11 Stat. 20, the United States made a grant of land to the State of Wisconsin. The first and fourth sections of the act making the grant were as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and is hereby, granted to the State of Wisconsin for the purpose of aiding in the construction of a railroad from Madison, or Columbus, by the way of Portage City to the St. Croix River or Lake between townships twenty-five and thirty-one, and from thence to the west end of Lake Superior; and to Bayfield; and also from Fond du Lac on Lake Winnebago, northerly to the state line, every alternate section of land designated by odd numbers for six sections in width on each side of said roads respectively. But in case it shall appear that the United States have, when the lines or routes. of said roads are definitely fixed, sold any sections or parts thereof granted as aforesaid, or that the right of preëmption

Statement of the Case.

has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the Governor of said State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tier of sections above specified, so much land in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the right of preëmption has attached, as aforesaid, which lands (thus selected in lieu of those sold and to which preëmption has attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the State of Wisconsin for the use and purpose aforesaid: Provided, That the lands to be so located shall in no case be further than fifteen miles from the line of the roads in each case, and selected for and on account of said roads: Provided further, That the lands hereby granted shall be exclusively applied in the construction of that road for which it was granted and selected, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever: And provided further, That any and all lands reserved to the United States by any act of Congress for the purpose of aiding in any object of internal improvement, or in any manner for any purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the route of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States."

"SEC. 4. And be it further enacted, That the lands hereby granted to said State shall be disposed of by said State only in manner following, that is to say: That a quantity of land not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of roads, respectively, may be sold; and when the Governor of said State shall certify to the Secetary of the Interior that any twenty continuous miles of either of said roads are completed, then another like quantity of land hereby granted may be sold;