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In the first case, IBLA 71-211,

W-26982, several indemnity selec9 IBLA 22

tions were clearlisted on various Decided January 10, 1973 dates from 1899 to 1908 with the Appeal from decisions of the Land

State of Wyoming offering sections

of school lands as base. In each inOffice, Cheyenne, Wyoming, No. W26982; W-27006; W-28537 and W

stance, the area offered as base was 28559; holding for rejection applica

one unsurveyed section, presumably tions for State school land indemnity

640 acres. Subsequently, from 1944 selections.

to 1963, the subject base lands were

either surveyed or platted by proAffirmed.

jection diagram and each was found School Lands: Indemnity Selections to contain more than 640 acres per A resurvey of either the base lands or section. On the basis of the discovthe lands selected by a State will have ery of more than the standard no effect upon the State's right to fur- number of acres in the base lands ther lieu selection.

previously given up, the State of APPEARANCES: A. E. King, Commis

Wyoming made another application sioner of Public Lands, State of Wyo

to select more lieu lands. By its deciming, and W. M. Sutton, Special Assist

sion of February 3, 1971, the Wyoant Attorney General, State of Wyo- ming Land Office held the State's ming, for appellant; Assistant Solicitor, application for rejection.

; Division of Public Lands, for appellee.

The second case, IBLA 71-194,

W-27006, involved several indemOPINION BY MR. STUEBING nity selections clearlisted on various INTERIOR BOARD OF LAND

dates from July 1901 to June 1918. APPEALS

Each of the sections offered as base

had been surveyed and shown to This opinion involves a consolida


contain 640 acres. Upon resurvey of tion of several Wyoming school land these base sections, between 1915 indemnity lieu selection appeals. and 1945, all the sections were found Their facts will be set out sepa

to contain more than 640 acres. The rately; however, the same law may State of Wyoming offered this exbe applied to the disposition of all cess as base for a further selection the appeals.

and on February 1, 1971, the Wyo

80 I.D. No. 1


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

Montana. However, the land which In the third case, Wyoming lieu Wyoming selected in 1884 was deselections W-28537 and W-28559, pendently resurveyed in 1963 and IBLA 71-307, the situation is re- it was determined that the selected versed from that in the first two section and a half contained 655.78 cases. Here, the State of Wyoming acres instead of the usual 960 acres. was invested with title to certain The State asks that the loss of 304.22 surveyed school sections in place on acres discovered by the dependent the date of its statehood, July 10, resurvey of the selected lands be off1890. The survey at that time set by the admitted overselection of showed the sections involved con- the half section, 320 acres, detertained 640 acres. Upon subsequent mined to be in Montana, thus leavresurvey by the United States the ing an overselection of only 15.78 sections were revised and from that acres. By its letter decision dated revision the State of Wyoming de

December 28, 1970, the Wyoming termined the acreage of each section

Land Office denied that request. to be something less than 640 acres From all the above denials, the per section. On the basis of the State of Wyoming appeals. State's recalculation of the number

In the four cases the Bureau of of acres in the resurveyed school

Land Management used as a basis sections, an indemnity selection ap- for its decisions the cases of State plication was filed for the balance. of New Mexico, 53 I.D. 222 (1930) The application was held for rejec- and State of New Mexico, 51 L.D. tion by the Wyoming Land Office

409 (1926). The former case held: on May 7, 1971. The fourth case, IBLA 71–279,

* When the State of New Mexico

in 1915, prior to a survey in the field, ofinvolves a situation where the State

fered all of Sec. 2 as base land for an was originally presumed to have

indemnity selection it, by implication, acone-half of a certain section 16 and cepted the protraction diagram as corall of a certain section 36 in Yellow- rect for the purposes of the case; haystone National Park. One-half of

ing received the indemnity land for which

it applied, the State is now estopped to section 16 was apparently in Mon

assert anything to the contrary, or to tana. On that basis, the State made

make a further indemnity claim on aca selection of one and one-half sec- count of the said Sec. 2. tions elsewhere. Later, it was deter

The latter case states: mined that all of section 16 was in the State of Montana. Wyoming A deficiency in acreage caused by aldoes not contest the finding that it

leged gross inaccuracies in the surveys

is not a ground for adjustment of a State has an excess selection because of

grant, inasmuch as section 2396, Revised

Statutes, declares that in the disposal of 1 Apparently no serial number was assigned

public lands the official surveys are to to this case by the Wyoming Land Office. The record consists principally of several items

govern, and that each section or subof correspondence.

division 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.

of, subsequent discovery of deficienThe bulk of appellant's briefs are cies in acreage caused by inaccudirected to distinguishing the above racies in the surveys will not afford quoted cases and to quoting 43 a new basis for adjustment of the U.S.C. SS 851, 852 (1970). The per- grant. The rationale of this longtinent provisions of these sections established rule is fully stated in which relate to deficiencies in the the 1926 decision in State of New States' grant of school land by rea

Mexico, supra: sons of settlement or otherwise and

In denying the State's claim for credit how to fill these deficiencies are set on account of the alleged deficiency, the out as follows:

Commissioner held that Section 2396, Re

vised Statutes, contemplated that in the * And other lands of equal acreage disposal of public lands the official surare also appropriated and granted, and veys are to govern, and that each section may be selected, in accordance with the or sectional subdivision, the contents provisions of section 852 of this title, by whereof have been returned by the sursaid State to compensate deficiencies for veyor general shall be held as containschool purposes, where sections 16 or 36 ing the exact quantity expressed in the are fractional in quantity, or where one return that the design and purpose of or both are wanting by reason of the this statute was to establish beyond distownship being fractional • *.

pute all lines and lines and monuments (b) Where the selections are to com- of accepted official surveys; to obviate pensate for deficiencies of school lands in inquiry and contention with respect to fractional townships, such selections shall survey inaccuracies and place a statutory. be made in accordance with the follow, bar against attempts to alter the same ing principles of adjustment, to wit: For or to set up complaints of deficiency of each township, or fractional township areas as a basis for resurvey. The Comcontaining a greater quantity of land than missioner observed that aside from this three-quarters of an entire township, one statutory limitation, administrative reasection • ** Provided, That the States sons precluded the granting of the State's which are, or shall be entitled to both claim; that the stability of surveys and the sixteenth and thirty-sixth sections in the title to lands described by reference place shall have the right to select double thereto should be unassailable by parties the amounts named, to compensate for de- finding differences in measurements and ficiencies of school land in fractional areas from those returned, and if transtownships.

actions involving the disposition of public

lands were not made final, and the GovWe believe that the disposition of

ernment was obliged to open up for readeach of these cases is governed by judication the question as to the area of the decisions cited above. These de- a particular tract or tracts granted and cisions establish the rule that the patented, controversies would be conextent of a State's right to receive

stantly arising and resurveys and read

judications would be interminable. (Ibid. a school indemnity grant is limited

at 411). to the acreage shown by the official surveys (or protraction diagrams

The Department has carefully considfor unsurveyed lands), and where

ered the matter and finds no reason to indemnity lands have been granted differ with the conclusion reached by the

Commissioner. The provisions of section of which was estimated by protraction, 2396, Revised Statutes, recognize the fact the adjudication of its claim for indemtaught by experience that measurements nity on that basis is final and the State of lands can not be performed with pre- will be estopped from asserting a claim cise accuracy and that the work of no for further indemnity on the ground that two surveyors would exactly agree. True, the section when surveyed was shown to the alleged shortage in this case looms to contain a greater area than that estia figure of impressive proportions but mated by the protraction. (Syllabus). the very purpose of the declaration of law

By application of this principle above referred to was to obviate inquiry and contention in regard to survey inac

we can resolve the issues raised in curacies. Moreover, the recognition of the present four appeals. right to an adjustment in this instance

The first two fact situations set would establish a far-reaching precedent

out above will be discussed together and afford a basis for similar claims by other States and a multitude of claims

for the reason that the only differhy individuals who had purchased Gov- ence in the facts is that the base land ernment lands and found the area short in the first case was unsurveyed at of that expressed on the plat of survey.

the time of the transfer and in the Also, the rule works both ways, in favor

second case the land had been surof and against the United States. Manifestly the Government has no basis for veyed prior to the transfer for lieu. claim to readjustment of boundaries or In both cases, the base land was later for further payment, or for restitution in determined to have more than 610 those cases of certified or patented lands

acres, or a greater number of acres where there was an excess of acreage over

than the land selected. The State of that paid for or taken in harmony with the survey returns at the time of disposal. Wyoming, in both the first and secAnd if the returns are conclusive against ond appeals, distinguishes their fact the Government they must also be conclu- situations from the New Verico sive in its favor. Take the present case ;

case (53 I.D. 222, supra). Appellant the Government can not inquire into the

points out that the New Merico lieu contents of the school sections and sub

selections were based on a protracdivisions assigned by the State as basis for its indemnity selections, but accepts tion and in the Wyoming cases the them as containing the exact quantity ex- first was not even protracted and pressed in the return. Examination might

the second involved a prior survey. disclose a deficiency in the area of these

The State next contends that the sections; frequently, no doubt, exchanges

New Mexico (53 I.D. 222) case have been made of unequal a reas, the discrepancy being in favor of the State, but stands for the proposition that the law gives these transactions repose equity would, in situations such as and they can not be disturbed. Otherwise

the present case, allow the State to endless confusion would ensue. (Ibid. at 412).

choose more land, pointing out that

in the New Mexico case, the DepartThe same principle was applied in

ment allowed the State to keep lieu the 1930 decision in State of New llevico, supra, where it was held:

lands mistakenly selected and ap

proved on the basis of the resurWhere a State submits as base for an

veyed base. The distinction here, indemnity school selection an unsurveyed section within a national forest the area also made clear by the New Mexico

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