The opinion
Bowen, J., dissenting, says:
The opinion of the majority of the court, in this case, contains the following:
“Counsel for Rector have filed two briefs, of fifty-eight and sixty-eight pages respectively, in which they have insisted that the Supreme Court of the United States, commencing with the case of Bagnell v. Broderick, down to the case of Rector v. Ashley, have omitted to notice the act of April 29, 1816, and its effect upon the act of February, 7, 1815. If this were true, it would certainly be a most remarkable case of judicial oversight. A careful examination of this act, however, will show that counsel are mistaken, and that the practical effect of the act of 1816, so far as it changes or modifies the act of 1815, is simply to abolish, the office of principal deputy surveyor and all other surveyors’ offices that had previously been established,” etc.
My own success, in the direction of finding any case decided by the Supreme Court of the United States, -in which the act of 1816 has been construed, has not been greater than that of the counsel referred to. Why the act of 1816 has never been noticed, it is not my province to determine. That it has not, I am very clear; and whether from judicial oversight, the 'oversight of counsel, or from the state of facts in the cases determined, rendering it prudent for the parties seeking to perfect or quiet their titles, not to press a construction of that act, the plain, unvarnished fact stands forth in bold relief that the Supreme Court of the United States never has construed it. I am unwilling to indulge in the presumption that, in the determination of the various cases under the act of 1815, that court silently passed over the act of 1816, on the ground that it would be taken for granted that the non-effect of the latter on the former act was so patent as to render it a work of supererogation on its part to even refer to the latter act. I am equally unwilling to accept as authority the decisions of any court, simply because they belong to the same general class, when it is clearly apparent that the ease at bar presents questions not even noticed in former adjudications. The rule on this point is so old and well established that it need only be mentioned to be recognized.
The UewT Madrid act of February 17,1815, required,among other things, a return of the ¡fiat of location to the recorder, together with notice, etc.
The act of April 29, 1816, provided that “all plats of the surveys, and all other papers and documents pertaining to, or which did pertain to, the office of surveyor general, under the Spanish government, within the limits of the territory of Missouri, or to the office of principal deputy surveyor for said territory, or to the office of surveyor general, or to any office hereafter established or authorized for the purpose of executing or RECORDING surveys of lands within the limits of the territories of Missouri and Illinois, shall be delivered to the surveyor of lands of the United States, authorized to be appointed by this act; and any plat of survey, duly certified by said surveyor, shall he admitted as evidence in any of the courts of the United States or territories thereof.” And the third section provides, that “any act of Congress heretofore passed that is repugnant to, or inconsistent with, any of the provisions of this act be, and the same is hereby repealed.”
The act of 1815required the surveyor to returna notice and plat to the recorder. The act of 1816 directed him to make out general and particular plats of all lands surveyed, and to send them to the registers and receivers of the land office, and to the commissioner of the general land office. I cannot, therefore, agree with the court, in its position, that “the act of 1816, so far as it changes or modifies the act of 1815, is simply to abolish the office of principal deputy surveyor and all other surveyor’s offices that had previously been established.”
The office of recorder of land titles was certainly included in the sweeping sentence, “or to any office heretofore established,” etc., “for the purpose of executing or recording surveys,” etc., as used in the act of 1816. The notice and plat required to be returned to the recorder, by the act of 1815, are certainly embraced in the term “all plats of the surveys, and all other papers and documents,” as used in the act of 1816.
Thus it will be seen that the act of 1816 not only abolished the offices of principal deputy and Other surveyors, but likewise created new and different depositories for plats, surveys and other documents, and provided new channels through which all plats and surveys found their way to the registers’ and receivers’ offices, and the head of the land department of the United States, the commissioners’ office; and whatever was inconsistent with or repugnant to these provisions, in any act of Congress, was expressly repealed.
If these views should eventually be held correct, their bearing, upon tlie rights of the parties here, would be of immense importance; for, from a most careful consideration of this case, I am much inclined to believe that, adopting the construction herein given, as to the effect of the act of 1816 on that of 1815, Rector fairly establishes his claim to the property in controversy, by showing a compliance,- not only on hie part, but also on the part of the officers of the government, with the provisions of the statutes. The wide difference of opinion on this one point, however, existing here, renders it unnecessary for me to take up the other points in detail.