THESE two cases came up from the Circuit Court of the United States for the district of Illinois, and involved the right of Gear, the defendant, to a tract of land upon which there was a lend mine. The first was an action trespass quare clausum fregit on the common law side of the court; and the second a bill in chancery, with a prayer for an injunction to stay waste, on the quity side. The declaration charged Gear with having broke and entered the north half section 23, township 29 north, range 1 east, and the south half of fractional section 8, township 28 north, range 1 east, both being east of the fourth principla meridian, and then and there dug up the mineral lead ore, &c., &c.
The defendant filed six pleas, all resting on the ground that he had settled, resided on, and occupied the land in question in the year 1827, and cultivated a part thereof, and had ever since remained, continued, and still was in possession thereof, and was lawfully entitled to the pre-emption right to said quarter section; said premises being subject to pre-emption rights, and not yet offered for sale by the President's proclamation; by reason whereof he, the defendant, dug lead ore or mineral, as he might lawfully do, &c., &c.
To these pleas the plaintiffs replied, in substance, that the quarter-section of land was, and always had been, the property of the plaintiffs; that it contained a valuable lead mine, the existence of which was well known to the defendant before and at the time he settled upon the land, &c.
To these replications the defendant demurred generally, and the plaintiffs joined in the demurrer.
The same principles were involved in the chancery case, alleged, of course, in a different manner.
When the cause came up for argument, in the court below, the judges were divided in opinion, and the questions duly certified to this court. They are somewhat differently stated in the two cases, and it is proper to mention both.
In the chancery case they are thus stated:
1. Whether the act of Congress, entitled 'An act to create additional land districts in the states of Illinois, Missouri, and the territory north of the state of Illinois,' approved June 26th, 1834, so far repeals the 5th section of the act of the 3d of March, 1807, entitled 'An act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes,' as to subject the lands mentioned in said act of June 26th, 1834, containing lead mines, to be entered and purchased by pre-emption under any of the preemption laws of Congress?
2. Whether the said act (1834) requires the President of the United States to cause lands containing lead mines to be sold, or only authorizes him to do so in his discretion?
3. Whether lands containing lead mines are subject to be held or purchased under any of the acts of Congress granting the rights of pre-emption to settlers upon the public lands?
4. Whether the digging lead ore from the lead mines upon the public lands of the United States is such a waste as entitles the United States to the allowance of a writ of injunction to restrain?
In the common law case they are thus stated:
1. Does the act of Congress, entitled 'An act to create additional land districts in the states of Illinois and Missouri, and in the territory north of the state of Illinois,' approved June 16th, 1834, require the President of the United States to cause to be offered for sale the public lands situate in the land district created by said act, containing lead mines?
2. Does the said act require the President to cause said lands, containing lead mines, to be sold, notwithstanding the 5th section of the act of the 3d of March, 1807, entitled 'An act making provisions for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes?'
3. Are the said lands, containing lead mines, subject to pre-emption under any of the pre-emption laws which have been passed by Congress?
4. Does the 4th section of the said act of 1834 so far repeal the 5th section of the act of 1807, as to subject the public lands containing lead mines to be sold by the United States in the same manner as other public lands not containing lead mines?
5. Are the said lands, containing lead mines, subject to pre-emption or sale under any of the existing laws of Congress?
The acts of Congress referred to are the following:––
On the 3d of March, 1807, an act was passed, (1 Land Laws, 162,) by the 5th section of which it was enacted, 'That the several lead mines in the Indiana territory, together with the many sections contiguous to each as shall be deemed necessary by the President of the United States, shall be reserved for the future disposal of the United States; and any grant which may hereafter be made for a tract of land containing a lead mine, which had been discovered previous to the purchase of such tract from the United States, shall be considered fraudulent and null. And the President of the United States shall be, and he is hereby, authorized to lease any lead mine which has been, or may hereafter be, discovered in the Indiana territory, for a term not exceeding five years.' At that time the land now included within the state of Illinois was part of the Indiana territory.
In 1827, Gear, the defendant, entered upon the north half of section 23, township 29 north, of range 1 east, erected a house upon it, cultivated and occupied it.
On the 19th of May, 1830, Congress passed 'An act to grant pre-emption rights to settlers on the public lands,' the first section of which was as follows:
'That every settler or occupant of the public land prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year 1829, shall be, and he is hereby, authorized to enter with the register of the land-office for the district in which such lands may be, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a quarter-section, to include his improvement, upon paying to the United States the then minimum price of said land: Provided, however, that no entry or sale of any land shall be made, under the provisions of this act, which shall have been reserved for the use of the United States, or either of the several states in which any of the public lands may be situated.'
The 4th section declared, that the sale of the public lands should not be delayed, nor should the act be available for those who failed to make proof and payment, and concluded as follows:
'Nor shall the rights of pre-emption contemplated by this act extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been apropriated for any purpose whatsoever.'
The act was to remain in force for one year after its passage.
On the 5th of April, 1832, Congress passed an 'act supplementary to the several laws for the sale of the public lands,' which permitted the public lands to be purchased either in entire sections, half-sections, quarter-sections, half quartersections, or quarter ...