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DECISIONS OF THE

DEPARTMENT OF THE INTERIOR

STATE OF WYOMING

9 IBLA 22

Decided January 10, 1973

Appeal from decisions of the Land Office, Cheyenne, Wyoming, No. W26982; W-27006; W-28537 and W28559; holding for rejection applications for State school land indemnity selections.

Affirmed.

School Lands: Indemnity Selections A resurvey of either the base lands or the lands selected by a State will have no effect upon the State's right to further lieu selection.

APPEARANCES: A. E. King, Commissioner of Public Lands, State of Wyoming, and W. M. Sutton, Special Assistant Attorney General, State of Wyoming, for appellant; Assistant Solicitor, Division of Public Lands, for appellee.

OPINION BY MR. STUEBING

INTERIOR BOARD OF LAND

APPEALS

This opinion involves a consolidation of several Wyoming school land indemnity lieu selection appeals. Their facts will be set out separately; however, the same law may be applied to the disposition of all the appeals.

In the first case, IBLA 71-211, W-26982, several indemnity selections were clearlisted on various dates from 1899 to 1908 with the State of Wyoming offering sections of school lands as base. In each instance, the area offered as base was one unsurveyed section, presumably 640 acres. Subsequently, from 1944 to 1963, the subject base lands were either surveyed or platted by projection diagram and each was found to contain more than 640 acres per section. On the basis of the discovery of more than the standard number of acres in the base lands previously given up, the State of Wyoming made another application to select more lieu lands. By its decision of February 3, 1971, the Wyoming Land Office held the State's application for rejection.

The second case, IBLA 71-194, W-27006, involved several indemnity selections clearlisted on various dates from July 1901 to June 1918. Each of the sections offered as base had been surveyed and shown to contain 640 acres. Upon resurvey of these base sections, between 1915 and 1945, all the sections were found to contain more than 640 acres. The State of Wyoming offered this excess as base for a further selection and on February 1, 1971, the Wyo

80 I.D. No. 1

1

ming Land Office held the applica- the one-half of section 16 that is in tion for rejection.

In the third case, Wyoming lieu selections W-28537 and W-28559, IBLA 71-307, the situation is reversed from that in the first two cases. Here, the State of Wyoming was invested with title to certain surveyed school sections in place on the date of its statehood, July 10, 1890. The survey at that time showed the sections involved contained 640 acres. Upon subsequent resurvey by the United States the sections were revised and from that revision the State of Wyoming determined the acreage of each section to be something less than 640 acres per section. On the basis of the State's recalculation of the number of acres in the resurveyed school sections, an indemnity selection application was filed for the balance. The application was held for rejection by the Wyoming Land Office on May 7, 1971.

The fourth case, IBLA 71-279, involves a situation where the State was originally presumed to have one-half of a certain section 16 and all of a certain section 36 in Yellowstone National Park. One-half of section 16 was apparently in Montana. On that basis, the State made a selection of one and one-half sections elsewhere. Later, it was determined that all of section 16 was in the State of Montana. Wyoming does not contest the finding that it has an excess selection because of

1 Apparently no serial number was assigned to this case by the Wyoming Land Office. The record consists principally of several items of correspondence.

Montana. However, the land which Wyoming selected in 1884 was dependently resurveyed in 1963 and it was determined that the selected section and a half contained 655.78 acres instead of the usual 960 acres. The State asks that the loss of 304.22 acres discovered by the dependent resurvey of the selected lands be offset by the admitted overselection of the half section, 320 acres, determined to be in Montana, thus leaving an overselection of only 15.78 acres. By its letter decision dated December 28, 1970, the Wyoming Land Office denied that request.

From all the above denials, the State of Wyoming appeals.

In the four cases the Bureau of Land Management used as a basis. for its decisions the cases of State of New Mexico, 53 I.D. 222 (1930) and State of New Mexico, 51 L.D. 409 (1926). The former case held:

*** When the State of New Mexico in 1915, prior to a survey in the field, offered all of Sec. 2 as base land for an indemnity selection it, by implication, accepted the protraction diagram as correct for the purposes of the case; having received the indemnity land for which it applied, the State is now estopped to assert anything to the contrary, or to make a further indemnity claim on account of the said Sec. 2.

The latter case states:

A deficiency in acreage caused by alleged gross inaccuracies in the surveys is not a ground for adjustment of a State grant, inasmuch as section 2396, Revised Statutes, declares that in the disposal of public lands the official surveys are to govern, and that each section or subdivision thereof shall be held and con

January 10, 1973

sidered as containing the exact quantity by the United States in lieu thereshown on the plat.

The bulk of appellant's briefs are directed to distinguishing the above quoted cases and to quoting 43 U.S.C. §§ 851, 852 (1970). The pertinent provisions of these sections which relate to deficiencies in the States' grant of school land by reasons of settlement or otherwise and how to fill these deficiencies are set out as follows:

* And other lands of equal acreage are also appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State to compensate deficiencies for school purposes, where sections 16 or 36 are fractional in quantity, or where one or both are wanting by reason of the township being fractional *

(b) Where the selections are to compensate for deficiencies of school lands in fractional townships, such selections shall be made in accordance with the following principles of adjustment, to wit: For each township, or fractional township containing a greater quantity of land than three-quarters of an entire township, one section *** Provided, That the States which are, or shall be entitled to both the sixteenth and thirty-sixth sections in place shall have the right to select double the amounts named, to compensate for deficiencies of school land in fractional townships.

We believe that the disposition of each of these cases is governed by the decisions cited above. These decisions establish the rule that the extent of a State's right to receive a school indemnity grant is limited to the acreage shown by the official surveys (or protraction diagrams for unsurveyed lands), and where indemnity lands have been granted

of, subsequent discovery of deficiencies in acreage caused by inaccuracies in the surveys will not afford a new basis for adjustment of the grant. The rationale of this longestablished rule is fully stated in the 1926 decision in State of New Mexico, supra:

In denying the State's claim for credit on account of the alleged deficiency, the Commissioner held that Section 2396, Revised Statutes, contemplated that in the disposal of public lands the official surveys are to govern, and that each section or sectional subdivision, the contents whereof have been returned by the surveyor general shall be held as containing the exact quantity expressed in the return that the design and purpose of this statute was to establish beyond dispute all lines and lines and monuments of accepted official surveys; to obviate inquiry and contention with respect to survey inaccuracies and place a statutory. bar against attempts to alter the same or to set up complaints of deficiency of areas as a basis for resurvey. The Commissioner observed that aside from this statutory limitation, administrative reasons precluded the granting of the State's claim; that the stability of surveys and the title to lands described by reference thereto should be unassailable by parties finding differences in measurements and areas from those returned, and if transactions involving the disposition of public lands were not made final, and the Government was obliged to open up for read

judication the question as to the area of

a particular tract or tracts granted and patented, controversies would be constantly arising and resurveys and readjudications would be interminable. (Ibid. at 411).

The Department has carefully considered the matter and finds no reason to differ with the conclusion reached by the

Commissioner. The provisions of section 2396, Revised Statutes, recognize the fact taught by experience that measurements of lands can not be performed with precise accuracy and that the work of no two surveyors would exactly agree. True, the alleged shortage in this case looms to a figure of impressive proportions but the very purpose of the declaration of law above referred to was to obviate inquiry and contention in regard to survey inaccuracies. Moreover, the recognition of right to an adjustment in this instance would establish a far-reaching precedent and afford a basis for similar claims by other States and a multitude of claims by individuals who had purchased Government lands and found the area short of that expressed on the plat of survey. Also, the rule works both ways, in favor of and against the United States. Manifestly the Government has no basis for claim to readjustment of boundaries or for further payment, or for restitution in those cases of certified or patented lands where there was an excess of acreage over that paid for or taken in harmony with the survey returns at the time of disposal.

And if the returns are conclusive against the Government they must also be conclusive in its favor. Take the present case; the Government can not inquire into the contents of the school sections and subdivisions assigned by the State as basis for its indemnity selections, but accepts them as containing the exact quantity expressed in the return. Examination might disclose a deficiency in the area of these sections; frequently, no doubt, exchanges have been made of unequal areas, the discrepancy being in favor of the State, but the law gives these transactions repose and they can not be disturbed. Otherwise endless confusion would ensue. (Ibid. at 412).

The same principle was applied in the 1930 decision in State of New Mexico, supra, where it was held:

Where a State submits as base for an indemnity school selection an unsurveyed section within a national forest the area

of which was estimated by protraction, the adjudication of its claim for indemnity on that basis is final and the State will be estopped from asserting a claim for further indemnity on the ground that the section when surveyed was shown to contain a greater area than that estimated by the protraction. (Syllabus).

By application of this principle we can resolve the issues raised in the present four appeals.

The first two fact situations set out above will be discussed together for the reason that the only difference in the facts is that the base land in the first case was unsurveyed at the time of the transfer and in the second case the land had been surveyed prior to the transfer for lieu. In both cases, the base land was later determined to have more than 640· acres, or a greater number of acres than the land selected. The State of Wyoming, in both the first and second appeals, distinguishes their fact situations from the New Mexico case (53 I.D. 222, supra). Appellant: points out that the New Mexico lieu selections were based on a protraction and in the Wyoming cases the first was not even protracted and the second involved a prior survey. The State next contends that the New Mexico (53 I.D. 222) case stands for the proposition that equity would, in situations such as the present case, allow the State to choose more land, pointing out that in the New Mexico case, the Department allowed the State to keep lieu lands mistakenly selected and approved on the basis of the resurveyed base. The distinction here, also made clear by the New Mexico

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