by John Marshall

“ Why should not the proviso in the Act of Congress apply to the case? The words taken literally, certainly apply to it. 'No locations shall be made on tracts of land for which patents had previously been issued, or which had been previously surveyed.' Had a patent been previously issued on this very survey, this contest could never have arisen. Does the language of the clause furnish any distinction between the patent and the survey? If it be a survey, there is none. Lands surveyed are as completely withdrawn, as lands patented from subsequent location. ”

“ The great original impropriety was in omitting to require that the previous entries made in the name of Massie, should be withdrawn, expressly, when this entry was made.
This case is not, we think, like Taylor's Lessee vs. Meyers, reported in 7 Wheat. 23. In that case the owner had openly abandoned his location and survey, and had placed his warrant on other land. In such case, the land was universally considered as returning to the mass of vacant land, and becoming, like other vacant land, subject to appropriation. ”

“ The residue of the lands are ceded to the United States, for the benefit of the said states, 'to be considered as a common fund for the use and benefit of such of the United States, as have become, or shall become, members of the confederation or federal alliance of the said states, Virginia inclusive, according to their usual respective proportions in the general charge and expenditure ”