
    Ballou vs. O’Brien.
    In 1819, by the treaty of Saginaw, tlie Chippewa Indians reserved large 'tracts of land. Section 16 was included. By the treaty of Detroit in 1837, these reservations, excepting one small one, were ceded by the Chippewas to the United States — the Government to sell the lands and pay the net proceeds to the Indians. In 1855, “ all the lands within the State heretofore owned by them as reservations, and whether held in trust for them by the United States or otherwise,” were ceded to the United States. July 25, 1836, the United States Government offered to the Legislature of Michigan, section 16 of every township of the publie lands, providing that “ where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools.” This offer was accepted December 15th, 1836. JBeld, that though the Stats acquired no right to the sixteenth section, December 15th, 1836, yet that such right did pass to the State in 1S55.
    Whether the Commissioner of the State Land Office has authority in the absence of any statute, to appoint an agent and confer upon him power to sieze timber, lumber, &c., which have beencut upon lands belonging|to the Sate, and to sell the same at private sale. — Query .*
    
      Case mo.de from Bay Circuit,
    
   Opinion by

Cooley, J.

By the treaty of 1819, the Chippawa nation ceded to the United States a large 'extent of territory, reserving fifteen tracts of land which were specified, and also one tract of 40,000 acres on the west side of the Saginaw river, to be - thereafter located (7 St-at. at Large, 203.) This tract was located in 1820.

By the treaty of Detroit in 1837, these reservations — excepting one small one — were ceded by the Chippewa nation to the United States; the United States at the same time agreeing to “pay to the said Indians in consideration of the lands above ceded, the net proceeds of the sales thereof, after deducting the expense of survey and sale,” together with the incidental expenses of the treaty. The lands were to be surveyed in the usual way, and offered for sale in the same manner as other public lands, (7 Stat. at Large, 528.) They were actually surveyed in the year 1843 and put upon the market.

This treaty remained in force until the treaty of August 2 1855, by which the Chippewas ceded to the United States, all the lands within the State of Michigan heretofore owned by them as reservations, and whether held in trust for them by the United States or otherwise.”

The State of Michigan was admitted to the Union on the acceptance of certain propositions made by the act of Congress of June 23, 1836, under one of which the proper State officers have assumed that the land in question became the.property of the State. The act of Congress and the acceptance thereof are published with the Compiled Laws, p. 37.

In the winter of 1866-7, one Daniel Burns went upon Section Sixteen, in township fourteen north, of range four east» which was within the limits of the forty thousand acre reservation, and cut a quantity of pine logs. It does not appear that the land upon which the logs were cut had ever been patented or sold by the United States to any individual purchaser, or preempted, .or allowed to be taken as a homestead. In February, 1867, the Commissioner of the State Land Office appointed one Edward L. Briggs as agent of the State Land Office, to enter upon any lands belonging to the State of Michigan, or on any lands for which the State is acting as trustee, and seize and report the seizure of any timber or property unlawfully cut upon any of said lands, and to seize and report the seizure of any timber or lumber or shingles manufactured from any timber so unlawfully cut or taken from any of said lands, where the same shall be found within the limits of this State, and can be identified,” and by the power of attorney given him by the Commissioner it was made his duty immediately to report the land upon which a trespass had been committed, the quantity of timber cut upon the same and its probable value, and to dispose of the same' at public or private sale, as he should deem best, and also to settle and adjust all trespasses, reporting in each case the amount secured by the settlement. Acting under this pr>wer of attorney, the agent seized upon the logs so cut by Burns, and sold them at private sale to the plaintiff for the sum of fifteen hundred dollars, which was paid to him by the plaintiff, and was nearly or quite the full cash value of the logs. Burns, however, had previously sold the logs to the defendants, O’Brien and Walsh) who bought in good faith, and this suit was an action of replevin therefor, and was brought without any previous demand.

The defendants insist:

1st. That the land upon which the trespass was committed was not the property of the State of Michigan as primary school lands, but was the property of the United States.

2d. That conceding the lands to belong to the State, the Commissioner of the State Land Office had no authority to appoint an agent with the powers he attempted to confer upon Briggs, and consequently the seizure and sale of the logs were void, and the plaintiff acquired no title thereto.

3d. That even if the sale of the logs to the plaintiff was valid, he could not lawfully replevy the same without first making demand therefor.

It does not occur to us, when we regard the legislation of Congress bearing on the subject, and the uniform policy of the United States in the endowment of the public schools, that there would be much plausibility in any adverse claim that could now be set up against the State. The objection is based upon the first proposition made to Michigan by the United States, by the act of June 23, 1836, and which proposed, “ That section numbered sixteen in every township of the public lands, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools.”- The argument is that all the lands which by the treaty of Saginaw Wire reserved to the Indians, were thereby “ disposed of,” so that the grant made to the State in'1836 could not possibly convey them, and it is further argued that the subsequent treaties, which being in pari materia, must be considered with the act of 1836 in order to arrive at its true interpretation, all tend to show that the United States have-not regarded any portion of the lands lying within these reservations as falling within the proposition of the act of 1836 above quoted.

The lands in question did not pass from the United States by the mere act of the State in accepting the propositions made to it by the act of Congress referred to. The lands at that time were reserved to the Indians, and it was not certain that the Indian title thereto would ever be extinguished. The Federal Government was under no obligation to the State to extinguish it, and although, looking at the general policy of the Government, it was highly probable that this would be done, yet the period of any attempt in that direction was wholly uncertain, and when it came to be made it was quite possible that such conditions might be insisted upon by the Indians as would preclude the State acquiring any claim.

The case actually shows that such conditions were insisted Upon, and also that they were submitted to by the Government. The treaty of 1837 transferred the Indian title to the United States, but in trust only; and the Government undertook to sell the lands and account to the Indians for the proceeds. This treaty appears to have applied to the sixteenth section as much as to any o'thers. It is very clear, we think, that while this treaty remained in force the State acquired no right to the several sections sixteen which were surveyed under it. But' this treaty was superceded by that of 1855, by which the trust interest of the Indians was forever extinguished, and the lands embraced by the reservations became a part of the general domain.

N ow there has been a uniform policy on the part of the genera] government, that every sixteenth section of the whole public domain should pass to the State in which it was situated for the use of schools. Wherever, by reason of previous grant or other disposition this has become impracticable, other lands contiguous thereto are substituted. Those lands, however, in which the Indians have a possessory title do not fall within the influence of this policy until that title is extinguished, but as soon as the extinguishment takes place the policy attaches. Until 1855, the State neither acquired a right to the lands in question nor did the proposition of 1836 we have cited oblige the general government to convey other lands in lieu thereof. But there can be no serious question, we think, that the right passed to the State in 1855, unless there is something in the terms of the proposition of 1836 which would confine its operation to lauds which were in such condition in regard to title, that they might pass immediately when the proposition was accepted.

The grant by an individual must generally operate at once if it ever does, but the grant of a sovereignty is governed by different principles, and must have operation according to its intent, whatever that may be. It may have a continuous operation, so as to transfer different parcels of land, from time to time, as the sovereignty may become vested with title thereto, if such appear to be its purpose. And such, we think, was clearly the purpose of the proposition of 1836. Its design was that every section numbered sixteen of the public domain, whether then constituting a part thereof or becoming such afterwards by extinguishment of the Indian title, should be granted to the State as an educational fund. The words employed in the proposition aptly indicate an intent that it should have continuous operations, and we have seen already that the general policy of the Government was in accord with this apparent purpose- We have therefore no difficulty with the first question.

We say nothing of the very brond powers which the Commissioner attempted to confer upon his agent in the present case; but looking only at what was done here — the seizure and sale — we are of opinion that if the Commissioner was the proper officer to make any appointment, the power in this instance was lawfully conferred, and the record indicates that it was very properly exercised.

And whether the appointment should emanate from, the Governor or the Commissioner we do not feel called upon, in the case before us, to decide. We do not understand that the Governor, or any proper State authority, questions the validity of the agent’s acts. The State has been paid for the timber, and does not repudiate the transaction. If the Commissioner were a mere executive agent of the Governor — as the proper land officers of the United States are of the President — we should have no doubt that his act should be regarded as the act of his executive superior. See Stephenson vs. Little, 10 Mich., 440. And although he is an independent, constitutional officer, acting in a sphere of his own, we think we may well infer, in a matter pertaining to the public lands, where, if the Governor has authority, it would be very proper to exercise through or by the assistance of this officer, that he has done so here, and given his assent to what has taken place. We think this a very proper inference to make on behalf ,of correctness of action in a co-ordinate department of the Government.

The third objection made by the defence, that the property could not be replevied without previous demand, we consider settled against the defence by Truedo vs. Anderson, 10 Mich., 357.

The judgment for the plaintiff must be affirmed, with csts.

Campbell, J.

I think that under the decision in Cooper vs. Roberts the title 'of the State would have vested in Sec. 16, if the Indian title had been extinguished in the ordinary way, and a survey had been completed so as to designate the location- The grant, which until then was ambulatory, would have attached and made the transfer complete.

But if the grant did not attach when the land was designated, then there is no principle which can make it attach after wards, except by way of estoppel. It could not mark any subsequent purchase by the grantor in any other way, and nothing but a plain and absolute warranty could make a later title inure to satisfy it. No such warranty was ever given. The act admitting Michigan into the Union did not declare that the State should have Sec. 16 at all events, but only in case it was not otherwise disposed of — which disposition, if existing before the grant could take effect on any particular section, would defeat the State title, and leave the deficiency to be made up by equivalent lands, as provided for by the statute.

In this case, the treaty whicfi extinguished the Indian title in the reserve, expressly appropriated these lands to a use inconsistent with any interest in the State. It cannot be questioned that a treaty is the supreme law, and superceded any conflicting claims The land was put into the hands of the Government upon a definite trust, by the treaty of 1837, and when the survey was made it was required to carry out that trust. The Government, as a trustee, could not lawfully have conveyed this section to the State, if it had been demanded; and the title was as distinct from a proprietary interest as if the trustee had been a citizen instead of the nation. The trust, was hostile and paramount to any State claim, and the land was effectually “ disposed of,” within the meaning of the act of admission. Had the Government performed its pledged promise, the land would have been sold many years ago.

In a subsequent settlement with the Indians, in 1855, the United States Government, for a new consideration, purchased whatever interest they had left under trust, and thus acquired title in its own right. This is not the title to which the original reservation was to attach, and I think it would require a new arrangement to give the State any interest in these lands. If lands which have been once disposed of, vest in the State whenever the United States happen to repurchase them, the result will be very different from anything contemplated when the enabling act containing-the appropriation was passed. It never was supposed that section sixteen was likely to be better than any other; and the State being entitled to the same quantity, there is no reason why the grant should be extended beyond its plain terms.

I think the judgment erroneous on this ground. I express no opinion on the other question.  