Forsyth sued Bryan and Rouse in ejectment for part of lot No. 7, in the town of Peoria, in the State of Illinois. The action was founded on a patent to Forsyth, from the United States, dated the 16th day of December, 1845, which patent was given in evidence on the trial in the Circuit Court. It was admitted that the defendants were in possession when they were sued, and that they held possession within the bounds of the patent. To overcome this prima facie title, the defendants gave in evidence a patent from the United States to John L. Bogardus, containing twenty-three acres, dated January 5th, 1838, which included lot No. 7. To overreach this elder patent, the plaintiff relied on an act of Congress, passed May 15, 1820, for the relief of the inhabitants of the village of Peoria, providing that every person who claims a lot in said village shall, on or before the first day of October next, deliver to the register of the land office for the district of Edwardsville a notice in writing of his or her claim; and it was made the duty of the register to make a report to the Secretary of the Treasury of all claims filed, with the substance of the evidence in support thereof, and also his opinion, and such remarks respecting the claims as he might think proper to make; which report, together with a list of the claims which, in the opinion of the register, ought to be confirmed, shall be laid by the Secretary before Congress, for their determination.
The report was made, and laid before Congress, in January, 1821. As respected lot No. 7, (a part of which is in dispute,) the register reported that Thomas Forsyth claimed it; that it was three hundred feet square, French measure, situate in the village of Peoria, and bounded eastwardly by a street, separating it from the Illinois river; northwardly by a cross street, westwardly by a back street, and southwardly by a lot claimed by Jacques Mette. The remark of the register is: 'A part of this lot must have been embraced by the lot claimed by Augustine Rogue.' Rogue's claim (No. 2) was for a lot of about an arpent, and bounded, says the register, northwardly by a lot occupied by Maillette, eastwardly by a road separating it from Illinois river, and southwardly and westwardly by the prairie.
The register reported on seventy lots in all. A survey to designate boundaries among the claimants was indispensable, as they were in considerable confusion. Congress again legislated on the subject, by act of March 3, 1823, and provided that each of the settlers, whose names were contained in the report, who had settled a village lot prior to the first of January, 1813, should be entitled thereto; the lot so settled on and improved, not to exceed two acres; and where it exceeded two acres, such claimant should be confirmed in a quantity not exceeding ten acres. It was made the duty of the surveyor of public lands for the district, to cause a survey to be made of the several lots, and to designate on a plat thereof the lot confirmed and set apart to each claimant, and forward the same to the Secretary of the Treasury, who shall (says the act) cause patents to be issued in favor of each claimant, as in other cases.
The survey was made in 1840, by order of the surveyor general of Illinois and Missouri, which was duly returned, approved, and recorded. We are of opinion that the act of 1823 conferred on the grantee an incipient title, and reserved to the executive department administering the public lands the authority to settle the boundaries by actual survey among the claimants; and until this was done, the courts of justice could not interfere and establish boundaries. It was competent for Congress to provide, that before a title should be given to a confirmee, the exact limits of his confirmation should be ascertained by a survey executed by authority of the United States. (West v. Cochran, 17 How., 415.)