Anchor v. Howe
| Decision Date | 16 April 1892 |
| Citation | 50 F. 366 |
| Parties | ANCHOR et al. v. HOWE et al. |
| Court | U.S. District Court — District of Idaho |
(Syllabus by the Court.)
Department regulations for the disposal of public lands must be appropriate, reasonable, and within the limitations of the law for the enforcement of which they are provided, and when otherwise they are void.
Albert Hagan and Richard Z. Johnson, for plaintiffs.
W. B Heyburn, for defendants.
It is alleged by the bill that this action is instituted in pursuance of the provisions of section 2326, Rev. St., and that 'complainants made their protest and adverse claim under oath and in due from of law, and filed the same in the United States land office,' etc. The defendants plead, in abatement of the action, that no adverse claim was filed or allowed in such land office. It sufficiently appears that an adverse claim in due form was presented to the land office for filing, but was rejected because it did not appear therefrom that a survey of the disputed premises, and a map thereof, had been made by a deputy United States surveyor. Said section 2326 requires that the adverse claim filed 'shall show the nature, boundaries, and extent' thereof. This statute is in all particulars complied with by the adverse claim presented to the land office, and no question is or can be raised that the statute itself is not fully observed. But by the forty-ninth rule, issued by the commissioner of the general land office, approved by the secretary of the interior, the plat showing the boundaries of the conflicting premises 'must be made from an actual survey by a deputy United States surveyor. ' Must this rule be regarded as a part of the law, and be closely followed? is the only question for determination. The plat and certificate attached comply with the rule, except that it does not appear that the surveyor who made them and the survey was a United States surveyor. In support of the effect of this rule, the department decisions found in Sickles, Min Dec. 263, 265, 277, are cited. In those cases it appears the adverse claims were very irregular, and wholly failed to comply with said rule in not showing that any survey had been made, and in omitting the certificates required. Their conclusion is not based alone upon the fact that the surveyor was not a United States deputy, but, on the contrary, it is stated in one that 'no surveyor,' and in another that 'no United States deputy or other surveyor,' had performed the required acts. It may fairly be inferred from these cases that the performance of such acts by any surveyor would be sufficient. Weeks on Mineral Lands, 190,...
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Cosmos Exploration Co. v. Gray Eagle Oil Co.
... ... the limitations of the law for the enforcement of which they ... were promulgated, and should be complied with. Anchor v ... Howe (C.C.) 50 F. 366; Iron Co. v. James, 32 ... C.C.A. 348, 89 F. 811, 814; Hoover v. Salling (C.C.) ... 102 F. 716, 720; Poppe v ... ...
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Walls v. Evans
... ... 577; Caha v. U.S. 152 U.S. 211; U.S. v. Three ... Barrels of Whiskey, 77 F. 963. A regulation cannot ... change a law, Anchor v. Howe, 50 F. 366; Board ... v. Reynolds, 18 Wall. 71; Williams v. U.S., 138 ... U.S. 514; Knight v. U.S., 142 U.S. 161; Gage v ... ...
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State ex rel. Walls v. State Board of Land Com'rs.
...v. Dastervignes, 118 F. 199; Meads v. U.S. 81 F. 684; Taylor v. Kerchenal, 82 F. 497; U. S. v. Three Barrels of Whisky, 77 F. 963; Anchor v. Howe, 50 F. 366; Williams v. U.S. 138 U.S. 514; Gage Gunther, 68 P. 710. The Board has a broad discretion as to granting leases; Cooper v. McCormick, ......
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...disposing of cord wood should be reasonable and designed to promote the policy of congress in the statute under consideration. Anchor v. Howe (C.C.) 50 F. 366. It also claimed that it was error on the part of the court to admit in evidence the advice of counsel learned in the law, given to ......