
    WHITE'S CASE.
    William White v. The United States.
    
      On the Proofs.
    
    
      A surveyor-general employs the claimant to surrey certain of the. public lands, and gives special instructions that the range lines he run from north to south. The Manual of the Land Office requires therererse, hutas the Commissioner has had contiguous surreys run from north to south, it is supposed that this one should be. The Commissioner disapproves of it, orders anew survey-aa-eording to the Manual, and that the old survey be obliterated. The claimant complies. Me is paid for the new survey; he seeks to recover for the rejected survey, and for the work of obliterating.
    
    1.A surveyor-general cannot issue special instructions to a surveyor- in conflict with tlie Manual of tlie Land Office. Such erroneous instructions will form no part of the contract. Jet 30th May, 1862 (12 Stat. L., 409, $ 2).
    II.The Commissioner of the Land Office has power to depart from the requirements of the Manual, hut authority from him to that effect cannot ho implied.
    III.Where a surveyor in good faith followed special instructions of a , surveyor-general which conflicted with the Manual of the Land Office, he cannot, on the one hand, recover for his work, nor, oil the other, he compelled to obliterate the erroneous survey; and .if, pursuant to an order of the Commissioner, he does obliterate it, an implied contract arises, and he may recover in quantum meruit.
    
    
      The Reporters’ statement- of tbe ease :
    Tbe contract in this case was in the ordinary form, and no question involving its construction arose on tbe trial. Tbe whole controversy turned on the special instructions of tbe snrveyor-general, and tbe riglit of the claimant to recover for work done pursuant to those instructions, or in pursuance of an order of the Commissioner of the Land Office requiring the first survey to be obliterated. The following are the facts of the case as found by the court:
    I. On the 9th day of October, 1872, the contract was entered into between the surveyor-general of the United States for New Mexico, annexed to the petition, and the claimant gave bond for the faithful performance thereof.
    II. The work contracted to be done by the claimant was in completion of surveys already made between the correction lines. The range line between ranges 23 and 24 had been run along two townships, that between 24 and 25 along one, that between 25 and 26 along one township, south of the second correction line. Townships 11 and 12 of range 23 east, township 11 of ranges 24 and 25 east, had been completely surveyed.
    The range lines mentioned in the preceding paragraph had been all run from north to south by the special direction of the surveyor-general of New Mexico on three separate occasions. These instructions were communicated to the Department of the Interior and were never disapproved, and the Commissioner of the General Land Office ratified the instructions by accept-, ing and paying for the work, which was done by other persons, and not by the claimant.
    III. After the execution and approval of said contract, and on the 16th day of November, 1872, the said surveyor-general instructed said claimant as follows (these instructions were not sent to the Land Office until after claimant’s first survey hereinafter mentioned was made) :
    £l Surveyor-GeNeral’s Office,
    l< Santa Fe, Neio Mexico, November 16, 1872.
    “William White, Esq.,
    
      “Deputy Svrveyor wider Contract No. 48 :
    “ Sir.: “You are authorized to proceed at your convenience to the field to execute the surveys contemplated by your contract No. 48, of the 9th ultimo, which are to be completed and returned on or before the first of May next.
    In this work 3rou will be guided by the printed manual of surveying-instructions, a copy of which has been handed to you for your use and government, except that your range lines will be run south.”
    
      IY. After receiving said letter of November 16,1872, the claimant made certain surveys, and duly returned the field-notes, &c., of such surveys, which were forwarded to the Commissioner of the Land Office for approval.
    Y. The river Pecos ran through a portion of the land surveyed under the contract, and was not “a boundary of surveying operations.”
    YI. On the 15th day of July, 1873, the Commissioner of the Land Office rejected a portion of said surveys, which decision was communicated to claimant, and was in the words following :
    “Department op the Interior,
    “GENERAL Land Oeeice,
    “ Washington, JD. 0., July 15th, 2873.
    “ James K Proudeit, Esq.,
    “ U. 8. Surveyor-General, Santa Fe, New Mexico :
    
    “ Sir : I am in receipt of your communication of the 28th ult., transmitting the account of Wm. White, deputy surveyor, amounting to $5,006.64, for meandering the Eio Pecos, extending the second and third standard parallels south and east, running exteriors between said standards, and subdividing Tp. 12 S., E. 25 E., and Tp. 13 S., E. 26 E.; also a letter from Deputy White, dated April 18,1873, explaining the reasons for certain irregularities, together with your recommendation that the account be paid.
    “ In reply, I have to say that after a critical examination of the plat and field-notes of survey, I find the survey of exterior lines to have been made by Mr. White without regard to the requirements of the Manual of Surveying Instructions (pp. 21 & 24), which was made a part of his contract. He should, after having established the third standard, have taken this standard as a basis for his surveying operations and run his exteriors from it north and west, closing his lines upon the second standard or upon the surveys previously made, subject to any embarrassment which may have been found in such previous work.
    “Any instructions, written or verbal, by you to a deputy, directing a survey to be made in such a manner as that done by Mr. White, being contrary to the manual and in opposition to law, cannot be recognized by this office. The exteriors having erroneously been extended from the north southward, of course the subdivision of the two townships based upon such exteriors is incorrect. The meandering by Deputy White of the Eio Pecos — a stream not navigable — is in direct violation of the Manual of Surveying Instructions (p. 5, ed. 1855, and p. 9, ed. 1871), unless the same had been considered as a boundary ox his surveying operations.
    “The establishment of the second and third standards south by Mi\ White will be paid for to the extent of 68m. 40ch., at $15 per mile. The exterior boundaries, subdivisional work, and meander lines cannot be paid for until established in accordance with law and instructions.
    “ You will direct the deputy to re-enter the field, obliterate evidences of wrong’ surveys already made, and establish the lines in conformity to law, talcing' as a basis the third standard parallel south. The Eio Pecos, not being- navigable, should not be meandered, but the lines extended across the same by triangulation, if necessary.
    “You will recall the plats of T. 12 S.,R. 25 E., & T. 13 S., E. 26 E., from the local land office, if the same have already been sent there by you.
    “Very respectfully,
    “Willis Drummond,
    “ Commissioner .”
    “ Surveyor-General’s Oeeice,
    “ Santa F., Neio Mexico, September 27,1873.
    “Mr. WilliaM White,
    
      UU. S. Deputy Surveyor:
    
    “Sir: In pursuance of orders this day received from the' Commissioner of the General Land Office, you are directed to return to the field and perform the work under your contract No. 48 in strict accordance with the Surveying Manual, and especially you will run the range lines north, taking the 3rd standard parallel south as a basis for your work.
    “You will obliterate all corners heretofore erected by you, except those upon the standard lines, which will remain as you established them, as that part of your work was approved by the Commissioner. You will not meander the Pecos Eiver, but continue subdivisional and township lines across the stream.
    “I furnish you the following extract from the letter of the Commissioner of the General Land Office of July 15th, 1873, and announce the same as orders to you:
    “ ‘ You will direct the deputy to re-enter the field, obliterate evidences of wrong surveys already made, and establish the lines in conformity to law, taking as a basis the third standard parallel south. The Eio Pecos, not being navigable, should not be meandered, but the lines extended across the same by triangulation, if necessary.’
    “In other matters you will follow the special instructions given to you when yon originally took the field to do the work, November 16th, 1872.
    “I am, very respectfully, your obedient servant,
    “James K. Proudeit,
    “ Surveyor-Gen eral.”
    
    
      VII. Tlie claimant afterwards went to the field and surveyed the lands in accordance with said instructions of the Commissioner, and duly made his returns of field-notes, &c. For this last survey, including the portions of the first survey made according to the contract and not objected to, the claimant has been paid at the contract price. He has not been paid for the work rejected by the Commissioner of the General Land Office. At the rate of compensation fixed by the contract, such rejected work would be worth $3,978.69.
    Till. The claimant, pursuant to the instructions of the Commissioner of the General Land Office, set forth in finding YI, returned to the field and obliterated the evidences of the previous survey.
    The work of obliterating the previous survey was duly performed by the claimant. The labor and expense were nearly as great as that of making the survey. The lines (except standard lines) had to be run again. The same flagmen and chainmen had to be employed. The claimant’s services in obliterating • tliis survey were reasonably worth $3,000.
    IX. This Manual of Instructions referred to in the law (and in the petition), with-reference to surveys (12 Stat., 409), contains the following provisions:
    
      “ It will be observed that in the former edition (of 1851) the township and section lines south of the base are made to start therefrom and close on the first standard parallel south; whereas, under the present instructions, such lines are made to start from the first standard parallel south and to close to the north on the base; and thus there will be closing corners and starting corners both on the base and standard lines. Such modification is introduced for the sake of entire uniformity of method in new fields of survey, and will not, of course, affect any past operations under the original instructions. Prior to entering upon duty the deputy surveyor is to make himself thoroughly acquainted with the official requirements in regard to field operations in all tlie details herein set forth, and to be apprised of the weighty moral and legal responsibilities under which he will act. (Manual on file, pp. 3 and 4, dated February 22,1855.)
    “In all cases where the exterior lines of the townships, thus to be subdivided into sections or half sections, shall exceed, or shall not extend, six miles, the excess or deficiency shall be specially noted, and added to or deducted from the western or northern ranges of sections or half sections in such township, .according as the error may be in running the lines from east to west or from south to north; the sections and half sections bounded on tlie northern and western lines of such townships shall be sold as containing only the quantity expressed in the returns and plats, respectively, and all others as containing the complete legal quantity.
    “ The accompanying diagram, marked A, will serve to illustrate the method of running out the exterior lines of townships, as well on the north as on the 'south side of the base-line; and the order and mode of subdividing townships will be found illustrated in the accompanying specimen field-notes, conforming with the township diagram B. The method here presented is designed to insure as full a compliance with all the requirements, meaning, and intent of the surveying laws as it is believed is practicable. The section-lines are surveyed from south to north on true meridians, and from east to west, in order to throw the excesses or deficiencies in measurements on the north and west sides of the townships as required by law. (Manual, p. 7.)
    “ Both banks of navigable rivet's are to be meandered by taking-the courses and distances of their sinuosities, and the same are to be entered in the field-book. (Manual, p. 15.)
    “Diagram A illustrates the mode of laying off township exteriors north of the base-line and east and west of the principal meridian, whether between the base and first standard or between any two standards, and the same general principles will equally apply to townships south of the base-line and east and west of the meridian and between any two standards south, where the distances between the base and first standard, and between the standards themselves, are five townships, or thirty miles.” (Manual, p. 24.) (This diagram directs the surveying from south to north.)
    
    And upon the foregoing findings of fact the court decided as conclusions of law:
    1. The special instructions of the surveyor-general set forth in finding III being in conflict with the Manual of Instructions did not enter into or form1 a part of the claimant’s contract, nor did they authorize him to make his surveys from north to south contrary to the instructions of the manual.
    2. The approval by the Commissioner of the General Land Office of contiguous surveys, made by third persons, running from north to south, did not constitute instructions to the claimant authorizing him to vary his surveys from the instructions, of the manual.
    3. The claimant, having obliterated the first survey by authority of the Commissioner of the General Land Office and for the benefit and convenience of the defendants, is entitled to recover for these services in quantum meruit.
    
    
      
      Mr. James Lowndes for the claimant.
    
      Mr. A. J). Robinson (with whom was the Assistant Attorney-General) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The claimant contracted with the surveyor-general for New Mexico to make certain surveys of the public lands. The surveyor-general instructed him to run his range lines from north to south instead of from south to north, as prescribed by the Manual of Surveying Instructions. The claimant obeyed the order, and for so doing the Commissioner of the- General Land Office rejected so much of his work. The claimant subsequently resurveyed the tract assigned to him and was paid the contract price. He now brings his action upon the contract, alleging that he performed it when he complied with the instructions of the surveyor-general, and that he thereupon became entitled to recover its consideration. But as there can be but one performance and one consideration under a contract, and as the claimant has done the one and been paid the other, it is manifest that his suit is not properly to recover the contract price for performing, but is to recover damages upon the contract for having been hindered, delayed, and put to additional expense by the action of the Commissioner of the General Land Office.

The law of the case is to be found in the Act 30th May, 1862 (12 Stat. L., 409, § 2), which provides—

“That theprinted Manual of Instructions relatingtothe public surveys, prepared at the General Land Office, and bearing date February 22,1855, the instructions of the Commissioner of the General Land Office, and the special instructions of the survey- or-general, when not in conflict with said printed manual or the instructions of said Commissioner, shall be taken and deemed to be a part of every contract for surveying the public lands of the United States.”

It is manifest from the reading of this statute that the Commissioner of the General Land Office had power to depart from the directions laid down in the manual, but that the special instructions of the surveyor-general could not control or vary its requirements; and one of the things which it required was that township and section lines south of a base were to. start from the first standard parallel south, and to close to the north on the base.”

Against this plain intent of the statute the counsel for the claimant does not contend 5 but he insists that inasmuch as the surveyor-general had previously caused three separate surveys to bo made by other surveyors, in which the lines were run from north to south, all of which had been approved by the Commissioner of the General Land Office, and' that inasmuch as the work of the claimant was really to fill in and complete the work of the previous surveys, an implied instruction had been given by the Commissioner, or may be inferred from the circumstances of the transaction.

It is true, as the counsel urges, that the previous action of the Land Office might very well have led the surveyor-general and the claimant both to believe that surveys would go on as they had been going — that is to say, from north to south; and it is true that the claimant’s case is a very hard one, and that it seems unreasonable that a deputy surveyor for faithfully obeying the orders of his superior, the surveyor-general, should suffer loss and be required to do his work over again; but it is equally true that both the surveyor-general and the claimant took this matter on trust, and instead of ascertaining whether the Land Office intended to depart from the manual in the matter of this survey, they took that for granted and assumed what they should have ascertained. It may have been carelessness on the part of the Commissioner of the General Land Office that he did not, when the last of the north to south surveys was completed, inform the surveyor-general that thereafter the contiguous surveys would proceed according to the manual, and this carelessness may have been of such a nature that, according to the law of private agents, the Commissioner would have been liable if he had been the principal; but neither the circumstances nor the hardships of the claimant’s case nor the good faith of the transaction can make the surveyor-general’s instructions a part of the contract against the plain intent of the statute when they were in conflict with the manual. As the Supreme Court said in the Floyd Acceptance Cases (7 Wall., 666):

u Our statute-books are filled with acts authorizing the making of contracts with the government through its various officers and departments, but, in every instance, the person entering into such a contract must look to the statute under which it is made and see for himself that his contract comes within the terms of the law.”

The decision of the Supreme Court in Brown v. Clements (3 How., 630, 665) is equally decisive in holding that a surveyor general is without authority to depart from the terms of a statute or the instructions of the department.

There is, however, an additional cau.se of action in the case growing out of the order of the Commissioner of the General Land Office to have the erroneous survey obliterated.

This error, as we have shown, was no fault of the claimant’s, and was caused in fact by the carelessness of the General Land Office in not notifying the surveyor-general that north to south surveys would be discontinued, and by the mistake of the surveyor-general in supposing that surveys would continue to be made as they had been on contiguous tracts. The contract did not require the claimant to obliterate erroneous surveys,’ nor authorize the Commissioner of the General Land Office to compel him to do so. The erroneous monuments did not affect the value of the land, nor interfere with its use and occupation, and their removal was merely for the future convenience of the Laud Office and its agents, and consequently for the use of the defendants. If the claimant had declined to obliterate the first survey, and the government had sued him on his bond, no court would have held him liable for an error caused by a mistake of the government’s own agents. The work of obliterating, amid the circumstances of this case, ivas clearly work done for the defendants and at their request, aud for it the claimant should recover in quantum meruit.

The judgment of the court is that the claimant recover of the defendants the sum of $3,000.  