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avail against the individuals or State to whom the previous grants had been made? If, as we suppose, this question must be answered in the negative, the same principle will apply to any land which, by authority of law, shall have been severed from the general mass."
In Leavenworth &c. R. R. Company v. United States, 92 U. S. 733, 745, the doctrine announced in Wilcox v. Jackson, supra, was reaffirmed, the court, quoting the first paragraph in the last quotation, added “it may be urged that it was not necessary in deciding that case to pass upon the question; but, however this may be, the principle asserted is sound and reasonable, and we accept it as a rule of construction." In that case it was held that a grant of public land in aid of a railroad did not apply to lands included within an Indian reservation, and that it was immaterial that the reservation was afterwards set aside and the lands had become a part of the public lands of the nation. Newhall v. Sanger, 92 U. S. 761, ruled that lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road, were not embraced by a grant to a railroad company, and it was said in the opinion (p. 763) “the words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws."
In Shively v. Bowlby, 152 U. S. 1, it was held that while Congress has power to grant lands below high-water mark in navigable waters, yet the fact that the public surveys are made to terminate on the banks or shores of those waters, indicates that such lands are not subject to entry and sale under the general land laws, but so far as they are situated in a Territory are reserved for the use and control of the future State. This doctrine was reaffirmed in Mann v. Tacoma Land Company, 153 U. S. 273. Many authorities might be cited to the proposition that a prior appropriation is always understood to except lands from the scope of a subsequent grant, although no refer
ence is made in the latter to the former. See Lake Superior &c. Company v. Cunningham, 155 U. S. 354, 373.
There is nothing in United States v. Fitzyerald, 15 Pet. 407, to conflict with the foregoing views. It merely decided that an officer of the United States (in that case an inspector of customs) was not deprived by any act of Congress of the benefit of the preëmption laws, and the fact that he was put in possession of a tract of land by the collector of customs, who had received no instructions to that effect from the Treasury Department, was not an appropriation to the uses of the Government. It is true a letter from the Acting Commissioner of the General Land Office to the register at New Orleans, stating that the Secretary of the Treasury had directed that the tract be reserved from sale for the use of the custom house at New Orleans, and requesting the register to note upon his plats that it was so reserved from sale, was in evidence, but this was written two years after the inspector had entered and paid for the land. Of course, such attempted reservation could
. have no effect upon a title acquired by the entryman prior thereto. Nor is there any conflict in United States v. Tichenor, 12 Fed. Rep. 415. There it appeared that the commanding officer of United States troops in Oregon ordered that a military reservation be established on the tract in controversy. In obedience thereto a lieutenant erected some buildings thereon for the use of the soldiers. It was held by the Circuit Court that such action constituted no appropriation of the land so as to exempt it from the operation of the general land laws. But the ground of the decision was that the gen
. eral commanding was acting without any direction from the President or the War Department, the court saying (p. 423):
“It may be admitted, as suggested in Wilcox v. Jackson, 13 Pet. 513, that if the order directing the reservation to be made had been issued by the Secretary of War,—the head of the department through whom the President would speak and act upon the subject, --in the absence of evidence to the contrary, it would be presumed that he acted by the direction
Opinion of the Court.
of the President. But neither General Hitchcock nor Lieutenant Wyman had any authority to designate or establish a reservation at Port Orford for any purpose. It is not alleged that they were acting in the premises under the authority of the President; and there is no presumption of law that they were."
Again, it is urged that the establishment of this camp or cantonment was a mere temporary matter, and not to be considered as in the nature of a reservation or appropriation, and we are referred to orders and other papers found in the records of the War Department, copies of which appear in the brief of appellants' counsel. Those orders, if we are permitted to consider them on this demurrer, make distinctly against the contentions of counsel. We quote from that issued from the Adjutant General's office: "Order 70.
“Brevet Col. Brooke, with four companies of the Fourth Infantry, will proceed with as little delay as practicable to Tampa Bay, East Florida, where he will establish a military post. He will select a position with a view to the health and in reference to the Florida Indians about to be removed to that vicinity agreeable to the late treaty. Upon this point he will consult Col. Gadsden, the commissioner employed in locating the Indians.
“The permanent headquarters of the Fourth Infantry will remain at Cantonment Clinch, and, should Col. Clinch have rejoined his regiment, on the receipt of this order he will be charged with the duty of preparing Col. Brooke's command for the expedition to Tampa. “By order of Major Gen. Brown.
“E. KIRBY, Aid-de-Camp.” It will be seen that the direction is to “establish a military post." It was for this "post" that the tract in controversy was taken, and the statement in the report of Colonel Brooke, as one of the reasons for its selection, that some two miles in
the rear of the place a ridge of piney lands commences, to which the troops could retire with their tents on the slightest manifestation of disease, does not alter the fact that this tract was selected for the "post." The further fact that permanent headquarters of the Fourth Infantry were to remain at Cantonment Clinch, is entirely consistent with the direction to Colonel Brooke to proceed with four companies to Tampa Bay and there establish this military post. The judgment of the War Department, whose action is presumed to be the action of the President, was that, having reference to the Florida Indians who were about to be removed to that vicinity, it was important to have a military post established. Its permanence would depend largely on the developments of the future. It remained a military post for half a century, and a very large tract was in 1830 set apart for a surrounding reservation. True, it has since been all abandoned, but although it may have been within the contemplation of the authorities that a time would come when the necessity for this military post would cease, it was none the less for the time being a post established by the proper department of the Government. It was until the post was abandoned an appropriation of the land for military purposes. Quite a number of reservations and posts in our Western territory once established have afterwards been abandoned, but while so appropriated they are excepted from the operation of the public land laws, and no right of an individual settler attaches to or hangs over the land to interfere with such action as the Government may thereafter see fit to take in respect to it. No cloud can be cast upon the title of the Government-nothing done by an individual to embarrass it in the future disposition of the land.
Without considering, therefore, the question of laches or limitation we are of opinion that the decision of the Court of Appeals was correct, and it is
Statement of the Case.
FIRST NATIONAL BANK OF JACKSBORO v. LASATER.
ERROR TO THE COURT OF CIVIL APPEALS OF THE SECOND SU
PREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.
No. 73. Submitted December 6, 1904.-Decided January 3, 1905.
The payment referred to in § 5198, Rev. Stat. is an actual payment and
not a further promise to pay and the mere discharge of the maker of a note by his giving his own note in renewal thereof will not uphold a recovery
against the bank on account of usurious interest in the former note. While a trustee in bankruptcy is not bound to accept property of an onerous
or unprofitable character, and in case he declines to take it the bankrupt may assert title thereto, he is entitled to be informed of the property and
have a reasonable time to elect whether he will accept it or not. If a claim owned by a bankrupt is of value his creditors are entitled to it,
and he cannot, by withholding knowledge of its existence from the trustee, after obtaining a discharge of his debts, immediately assert title to and collect the claim for his own benefit.
This case is here on error to the Court of Civil Appeals of the Second Supreme Judicial District of the State of Texas. It was an action brought in the District Court of Jack County by J. L. Lasater to recover from the First National Bank of Jacksboro twice a sum claimed to have been paid as usurious interest.
The material facts are as follows: J. L. Lasater and W. M. Maggard, as partners, borrowed of the bank $4,000, and executed their joint note with A. M. Lasater as surety. They also mortgaged cattle as further security. Subsequently Maggard sold all his interest in the mortgaged property to J. L. Lasater, the latter assuming all liabilities and renewing the note with the same surety. Thereafter A. M. Lasater, the surety, bought all the mortgaged cattle and, as part of the consideration, agreed to assume and pay off the note. In pursuance of this agreement he took up the note of J. L. Lasater and gave his own note therefor. This last note A. M. Lasater paid in full to the bank. After all these transactions, and on November 19, 1900, J. L. Lasater filed his petition in bank