The respondent moved for a rehearing. .The argument of his counsel in support of that motion is not found upon the files
The following opinion was filed at the June term, 1872.
Cole, J.The arguments on the motion for a rehearing have not changed our views in respect to the questions decided in the former opinion, except upon one point., And that is, we think we were incorrect in holding that the land was subject to taxation after the passage of the act of congress of 1860, and before a survey thereof had been made and approved by the executive department of the government. In the decision *381already made, we Reid that the legal effect of this act was really to vest in Pierre Grignon and his heirs and assigns the ownership of the land, and therefore that the property became subject to taxation from the time this act went into operation. That act does indeed, in terms, ratify and confirm in Pierre Grignon the title to a tract of land lying on the west side of Fox river, immediately below the first creek which empties into that river. About this there can be no question. But the act further provides that the commissioner of the general land office shall cause this tract of land to be surveyed in the same manner as other private claims to land in Green Bay had been surveyed, and that he issue a patent therefor in the name of Pierre Grignon, subject to such legal transfers or assignments as might have been made by him or his heirs or legal representatives at any time subsequent to the confirmation to him by the commissioners, according to the fifth section of the act of 1823.
The counsel for the plaintiffs now insists that until a survey was made under the direction of the commissioner of the land office, which should be approved by the executive department of the government as contemplated by this act, the land confirmed to Pierre ■ Grignon was not separated from the lands owned by others, and that its boundaries could not be ascertained and known so as to render it liable to taxation. It is said that until this survey was made and approved, and the tract located by some ascertained limits, neither Grignon nor his heirs or assigns had any specific land capable of description and taxation under the laws of this gtate. It seems to us that this view is correct.
The act of congress undoubtedly contemplated that a survey of the land confirmed to Grignon should be made under the direction of the commissioner of the general land office. This was obviously for the purpose of fixing the locality of the tract confirmed to him and. his assigns ; and until the approved survey was made and a patent therefor issued, it was impossible *382to determine the boundaries of the tract of land to which title Would attach under the grant. And this circumstance distinguishes this case from cases where the lands acquired from the United States have been previously surveyed and segregated from the mass of the public lands. In the latter case possession can be taken of some distinct subdivision, which becomes private property, and therefore justly chargeable with the payment of taxes. But in the case before us the grant was to be located by a survey made under the direction of the commissioner of the general land office ; and until this approved survey was made, and a certificate as evidence of that fact, or a patent, issued, the title to no specific tract of land passed under the act. This, we think, is the manifest intent of this act, and we were therefore mistaken in holding that it vested in Pierre Grrignon and his assigns the equitable title and ownership of any specific tract of land before such tract had been ascertained and designated by the necessary survey. The official survey was not made and approved, nor the register’s certificate or the patent issued thereon, until 1870; and before this we think the land was not liable to taxation. In this respect the previous opinion is modified.
It is, however, objected by the counsel for the defendant, that if this view is correct, and the title legal and equitable remained in the United States until the passage of the act of 1860, then the plaintiffs acquired no interest in the land by the conveyances introduced in evidence on the trial. All that we deem it necessary to say in answer to this objection is, that those conveyances transfer whatever interest, claim and demand the heirs of Pierre Grrignon had in this claim, and the act of congress expressly declares that the patent issued shall be subject to such legal transfers or assignments as may have been made by Pierre Orignon, his heirs or legal representatives. Under this law it is plain the patent would enure to the benefit of the plaintiffs.
Again it is said there was no sufficient evidence that the pri-*383Tate land claims of Gardapier and Pierre Grignon were embraced in tbe military reservation. It seems to ns that the evidence is abundant to show that the executive department of the government treated these claims as lying within the reservation, and this is conclusive upon that point, whether these claims were actually occupied by the government troops or not.
The objection that the confirmation to Pierre Grignon was void for uncertainty, is clearly untenable. The act was passed with reference to the report made by the commissioners, and the plats and maps on file in the general land office, by means of which the tract was in fact surveyed and located.
By the Court.— The motion for a rehearing is denied.