Fox vs. SOUTHERN PACIFIC RAILROAD Co. Joint Resolution of June 28, 1870-Actual Settler. This resolution protected the rights of actual settlers at the time on the railroad lands. As Fox was not a settler at the date of this resolution, he cannot be allowed to enter, notwithstanding his allegations that a settler thereon in 1869 sold his improvements and rights therein to plaintiff.

con

application was rejected by the local office destitute of trees, which could not be Such a certificate as he requests cannot be on the ground that said tract was at that properly described as "prairie," and hence issued to him, but I direct that he have time reserved as saline land. From this de- these were included within the phrase permission to withdraw his said location cision Redding appealed. On April 28," other lands devoid of timber." "Where without prejudice, to make another loca1881, your office affirmed the action of particular words are followed by general tion and entry under his additional homethe local office in rejecting the application; ones, the latter are to be held as applying stead right. but the south half of the above described to persons and things of the same kind section having been held by you to be with those which precede" (Potter's Dwaragricultural land in the case of McClain ris 236). The phrase "other person or vs. the United States, the tract in ques- persons" is construed to mean persons of tion was declared subject to the entry of the same description as those before enuthe first legal applicant, and May 5, 1881, merated (Ibid. 292). The object of the Redding renewed his application, which act was to promote tree culture in those was rejected on the insufficiency of the portions of the country where nature had affidavit as to the non-timber character failed to provide a supply commensurate of the said tract, and Redding appealed. to the needs of the people who would Pending this appeal, May 20, 1881, An-likely reside there; and if such a supply thony Sellman filed an application to enter existed at the time when the lands were said tract as a homestead, and his applica- thrown open to settlement, they were tion was rejected on the ground that Red- clearly not within the intent of the act. ding's appeal was yet pending. Sellman If the tract at any time was not subject 2. appealed from the action of the local office, to entry on account of the natural growth 3. and July 19, 1881, you affirmed the rejec- of timber on that section, the act of retion of Sellman's application, and your moving the timber would not bring the decision was affirmed by this Department land under the operation of the timber on Sellman's appeal, March 7, 1882. But culture laws. It is to be presumed that Sellman in his application having alleged left to itself, the section would again prothat the tract was not subject to entry duce timber without artificial cultivation. under the timber culture laws, you on B. F. Griffin's case (Copp's L. L. 1882, p. July 19, 1881, ordered an investigation as 642). Nicholas Noel et al. (Ibid. 673). to the true character of the tract in contro

versy. As the result of such investigation the local office held, October 20, 1881, that the tract was not subject to entry under the timber culture laws; and May 1, 1882, you affirmed this decision, and the case is now under consideration on Redding's appeal from your decision of the last named date.

I am of the opinion that the tract in question was not subject to entry under the timber culture laws, and that the entry was properly refused.

Your decision is therefore affirmed.

RAILROADS.

ST. PAUL, MINNEAPOLIS AND MANITOBA
RAILWAY VS. BRAZIL.

Soldier's Additional Homestead Right--New Lo-
cation. In view of the accrued and prospec-
tive expenses of litigation, the soldier is
allowed to withdraw his location without
prejudice, to make another location and entry
under his additional homestead right.
SECRETARY TELLER to Commissioner McFar
land, November 5, 1883.

The evidence establishes conclusively that about ten or twelve years ago there was a body of timber of natural growth, extending along the banks of two creeks that cross this section, of at least forty acres in extent, the greater part of which has since been removed by the settlers of the vicinity, and that at the time of the hearing there were growing on the section only I have before me the case of the St. about three hundred and seventy-five Paul, Minneapolis and Manitoba Railway trees, from six inches in diameter upwards, Company vs. Michael Brazil, involving the and of no present value except for fire- S. E. of the S. E. 4 of Sec. 7, Tp. 116, wood. It was in evidence that "hundreds R. 30, Benson, Minnesota, on appeal from of loads of timber" had been hauled away, and one wituess testified to cutting four hundred white-ash fence posts from this section; from which it would appear that the condition of the land at the time the application to enter the same was filed, was the result of the denuding process resorted to by the first settlers.

your decision of October 30, 1882, approv-
ing Brazil's additional homestead entry
No. 7,481.

Since said appeal was taken, Brazil,
through his attorney, has made and filed
a written request that he may have “leave
to withdraw said location, and that a cer-
tificate instead, entitling the said Brazil to
make an additional homestead entry, be

Under the act the entryman is required to make oath at the time of his applica-issued." tion "that the section of land specified in He gives as a reason for this request, my said application is composed exclu- that he has not the means necessary to sively of prairie lands, or other lands de- continue further litigation of his claim void of timber" (20 Stat. 113). I am of and that if he is successful in this Departthe opinion that the phrase "other lands" ment, he is threatened with litigation in should be taken as meaning lands similar the courts, and that he has already exto those described as "prairie lands." pended more than the land in contest is Primarily the word "prairie" in its com- worth. monly accepted meaning is used to de- Brazil is a soldier, obviously entitled to scribe land naturally devoid of timber. an additional homestead, and has never But there are other lands also naturally attempted to transfer his right thereto.

Act of April 21, 1876-Requisites.-Three ditions must exist to enable a pre-emptor or homesteader to perfect a claim under this

1.

act.

There must have been a valid claim existing

on the land at the date when withdrawn.

The land must have been re-entered under The claimant must show, in his final proof, a full compliance with law. SECRETARY TELLER to Commissioner McFarland, November 12, 1883.

land department rulings.

I have considered the case of Edward T. Fox vs. the Southern Pacific Railroad Company, involving lots 5, 6, 11, and 12, of Sec. 17, Tp. 8 S., R. 8 E., M. D. M., California, on plaintiff's appeal from your decision of November 12, 1881, rejecting his application to make pre-emption filing for said land.

These lots are within the indemnity limits of the grant to the said company, and were withdrawn for the benefit of the same May 7, 1867.

It is alleged by the plaintiff that in the summer of 1869, George A. Ester settled on this land, and remained in occupation thereof until August 10, 1874, at which time he sold his possessory right to plaintiff, who has since that date resided ou said land and cultivated the same continuously.

March 7, 1881, the township plat was filed, and May 19, 1881, Fox applied to file his declaratory statement for the land in question, but his application was rejected by the local office for the following reason: "The records of this office show said land to be a portion of an odd section, and within the limits of withdrawal for the Southern Pacific Railroad Company."

The plaintiff's attorney alleges among other grounds of exception:

1. That the right of the company to said land did not attach until the passage of the Joint Resolution of June 28, 1870.

2. That plaintiff should be allowed to file his declaratory statement under the second section of the Act of April 21, 1876.

The Joint Resolution of June 28, 1870, (16 Stat., 382), authorized the Southern Pacific Railroad Company to construct its road on the route indicated by the map filed in this Department January 3, 1867, "expressly saving and reserving all the rights of actual settlers."

It was held by this Department in the case of Tome vs Southern Pacific Railroad

decisions and rulings, of the Land Depart- the U. S. Supreme Court, rendered at its
ment, Fox is not entitled to the benefits December term, 1850, in the case of U. S.
of said section.
vs. Philadelphia and New Orleans (18)
Curtis, 730).

Company (Copp's L. L., 1882, page 758,)
that although a grant of lands was made
to the company by the act of July 27,
1866, the lands upon which it would The permission, accorded to Fox in
operate were not identified until the date your decision, to remain on the land with
of the passage of the joint resolution, and a view to making entry for the same, in
that the rights of all persons, who were at the event that it should not be required in
that date actual settlers, were thereby the final adjustment of the grant, is not
saved. In the case of the Southern Pacific approved. The land not being subject to
Railroad Company vs. McCarthy (Copp's entry while the grant remains unsatisfied,
L. O., Vol. 9, p. 176,) this Department also a consideration of the interests of the
held that when the land is within the public, as well as the rights of the com-
indemnity limits, the right to indemnity pany, precludes the Department from any
is only a float, and attaches to no specific act looking toward a disposition of the
tract until actual selection; and following land until such time as it may become
the rule laid down in Tome's case, de- public land. As bearing upon this sub-
cided that an actual settler, after the ject your attention is directed to my letter
withdrawal of the land, and prior to the of instructions dated May 17, 1883. [See
passage of the joint resolution, should be 10 Land Owner, p. 95, June 15, issue
protected.
Circular dated May 22, 1883.-EDITOR.]
With the modification indicated, your
decision is affirmed.

The case now under consideration does not, however, come within the provisions of said joint resolution; for Fox did not settle on the land until August 10, 1874, and he cannot avail himself of the rights acquired by Ester's earlier settlement. Pre-emption rights are not the subject of sale or transfer, such disposition of the same being expressly inhibited by law (R. S. Sec. 2262). See also Myers vs. Croft (13 Wall. 291), and Quinby vs. Conlan (104 U. S. 420).

The right of Fox to pre-empt the land in question must depend on his own act of settlement, which is a pre-requisite to pre-emption, his pre-emption rights being in no manner enlarged by the settlement and occupation of Ester. This being true, the joint resolution affords him no relief, as he was not "an actual settler" at the date of the passage of the same.

VICKSBURG, SHREVEPORT AND PACIFIC R. R.
Co. vs. PATTON ET AL.
SECRETARY TELLER to Commissioner McFar-
land, November 3, 1883.

Said locations were contested by one William S. Pike as to the W. of S. W. of Sec. 22 and the S. E. of S. E. of Sec. 21, wherein my predecessor, Mr. Secretary Thompson, under date of April 26, 1860, decided against the validity of the pre-emption claim to the tracts specified, holding as follows: "I have examined and considered the pre-emption claim of B. P. Patton to certain lands in the Monroe district, Louisiana, contested by William S. Pike, who claims under a swamp selection. The pre-emption claim of said Patton to the W. of S. W. of Sec. 22, and S. E. of S. E. of Sec. 21, Tp. 20, R. 60 E., is made under the act of 2d March 1855," (10 Stat., 626,) "which authorizes the entry by a pre-emptor who had availed himself of the provisions of the act of 3d March, 1853," (Idem., 244,) “of adjoining subdivisions upon which he has made improvements. The evidence is not satisfactory with regard to the imI have considered the case of the Vicks-provements on this land having been made burg, Shreveport and Pacific (formerly prior to the date of the said act of 1855 Vicksburg, Shreveport and Texas) Rail-by the claimant. It appears furthermore road Company vs. Beniah P. Patton and that said Patton in 1856, filed a declaraMary L. Williams, involving the S. E. tory statement embracing adjoining land of N. E., E. of S. E., N. W. 4 of S. claimed by him under the acts of 3d E. 4, S. E. of S. W. and S. W. of S. March, 1851," (9 Stat., 597,) "and 2d E. of Sec. 21, Tp. 20 N., R. 6 E., New March, 1855, but asserted no claim to the Orleans district, Louisiana, on appeal by subdivisions involved in the present conthe company from your decision of March troversy until the following year, prior to 14, 1882, rejecting its claim. which time the land had been selected as swamp. At the date of the selection for the State of these tracts as swamp, the pre-emptor had given notice of the land claimed by him under the act of 1855, and it is not to be presumed that his legal rights attached to any other tracts than those he then claimed. These subdivisions were not at the date of selection or at the date of the passage of the Confirmation act of 3d March, 1857," (11 Stat., 251,) interfered with by an actual settlement under any existing law of the United States,' and consequently they were confirmed by said last mentioned act to the State of Louisiana. Your decision adverse to the claim of said Patton is accordingly hereby affirmed." The records of your office discover that said tracts were so selected June 24, 1856, and approved by this Department June 20, 1882, per list No. 17.

The tracts are within the fifteen miles or indemnity limits of the grant by act of June 3, 1856, (11 Stat. 18,) the withdrawal for which was made by telegram of May 30, 1856, prior to the passage of the act, but said tracts have not been selected by the company.

666

The second section of the act of April 21, 1876, provides "that when at the time of such withdrawal as aforesaid, valid pre-emption of homestead claims existed upon any lands within the limits of any The township plat was filed in the local such grants which afterwards were aban- office presumably about June 24, 1856, the doned, and under the decisions and rul- date of the letter transmitting the dupliings of the Land Department were re-en-cate to your office. tered by pre-emption or homestead claim- It appears that Patton filled declaratory ants who have complied with the laws statement No. 1812 for the S. E. of N. E. governing pre-emption or homestead en-4, S. E. of N. W. 4, N. E. of S. E. 4, tries, and shall make the proper proofs re- W. of S. E., and S. W. of Sec. 21, quired under such laws, such entries shall etc., June 28, 1856, alleging settlement be deemed valid, and patents shall issue December 25, 1854, and he filed declaratory therefor to the persons entitled thereto." statement No. 1996 for the W. of S. W. (19 Stat. 35.) of Sec. 22, and the S. E. of S. E. of Sec. 21, Tp. 20 N., R. 6 E., April 23, 1857, alleging settlement December 25, 1854. Under date of June 25, 1857, he located Under date of July 11, 1860, your office military bounty land warrant No. 55,956, canceled the partial locations made by the (issued pursuant to the provisions of the aforesaid warrants, which were returned act of March 3, 1855, 10 Stat., 701,) in to the Register and Receiver for delivery payment for the S. E. of S. E., W. to the proper person upon surrendering of S. E. and S. E. 4 of S. W. of Sec. 21, Tp. 20 N., R. 6 E., and military bounty land warrant No. 57,556, for the S. E. of N. E. and N. E. of S. E. of Sec. 21, and the W. of S. W. of Sec. 22, Tp. 20 N., R. 6 E.

It will be observed that by the provisions of the section above quoted, three distinct conditions must be shown to exist, before the pre-emptor or homestead claimant can perfect a title thereunder.

1. There must have been a valid existing claim on the land at the date of the withdrawal for the railroad company. 2. The land must have been re-entered under decisions and rulings of the Land Department.

3. The claimant must show in his final proof a full compliance with the law.

As there was no valid claim existing on this land at the date when withdrawn, and said land has not been re-entered under

The tracts in question were also embraced in the Baron De Bastrop grant, whose claim was rejected by decision of

the duplicate receipts that had been issued therefor, and said officers were directed to permit Patton to relocate said warrants upon such of the tracts located as aforesaid that had not been selected as swamp,

etc.

You state that "owing to the war, and the closing of the land offices, Mr. Patton does not appear to have been advised of

of August 11, 1880, the Register and Receiver reported that said warrants had been found in overhauling the Monroe records." Whereupon, August 26th, your office reiterated its former instructions to said officers.

PENINSULA RAILROAD COMPANY.

said cancellation until 1874, when he made But it should be observed that the tracts which the right of pre-emption had atapplication for his patents." Under date in question were not involved in the con- tached; and if either of the roads named test initiated by Pike as aforesaid (except should not be completed within ten years, the S. E. of the S. E. of Sec. 21), so no further sale of land should be made by that the Departmental decision rendered the State, and the lands unsold should therein touching the validity of Patton's revert to the United States. pre-emption claim was merely pro tanto, The facts involved in this and other only affecting the same so far as the par- like cases are fully set forth in the Patton avers that he has resided upon ticular tracts specified were involved. papers and exhibits accompanying my and cultivated the land in question ever Barring the proposition that "upon his letter of January 12, 1883, in answer to since he purchased the improvements abandonment of his right to relocate said the resolution of the Senate of December thereon from one V. C. Vick on or about|lands, * * * the remainder of the 27, 1882, asking information relative, September 7, 1852; that he removed his land not selected as swamp became public among other things, to contested homefamily to the premises "during the Christ- land and subject to entry by the first qual- stead entries in the State of Florida. It mas holidays ensuing; that in the year ified applicant," (for in such view I would appears therefrom that a withdrawal of 1871, he executed and delivered to his be constrained to regard the company's lands on the line of the road in question widowed daughter, Mary L. Williams, a right as paramount,) I concur with you in was ordered by your office on September "donation deed" to forty acres of the your conclusions. With this modification 6, 1856, which was so modified September land; that upon being advised of the can- your decision is accordingly affirmed. 12th following as to permit pre-emption cellation of said locations, and acting settlement and entries until the line of the upon the advice of the Register and Reroad should be definitely located. On ceiver, he made homestead entry No. 466, Status of the lands claimed by this company. April 25, 1857, the local officers of the November 18, 1874, of the S. E. of S. SECRETARY TELLER to Commissioner McFarland district were instructed not further W. 4, and S. W. of S. E. of Sec. 21, to permit any such filings or entries. This and on the same day his daughter, Mary I have considered the appeal of the inhibition continued in force for some L. Williams, made homestead entry No. Peninsula Railroad Company, (said to be) years, but was subsequently disregarded 465 of the S. E. of N. E. 4, E. of S. E. successor and assignee of the Atlantic, in consequence of the failure of the com4, and N. W. of S. E. of Sec. 21, Tp. Gulf and West India Transit Company, pany to locate its line, and the expiration 20 N., R. 6 E. You held Mrs. Williams' from your decision of August 15, 1882, of the period within which the road should entry for cancellation as to the S. E. of holding for patent the homestead entry of have been constructed under the grant. S. E. of Sec. 21, upon the ground that of McKeen Carlton, made May 29, 1873, In 1875 the Atlantic, Gulf and West India the same having been selected by the for the N. E. of the S. E. of Sec. 1, Transit Company applied to file as a map State as swamp, under the act of March Tp. 11 S., R. 22 E., Gainesville, Florida, of definite location, a map purporting to 2, 1849 (9 Stat., 352), they must be re- upon which final proof was made January be a copy of a map of definite location garded as confirmed by the act of March 30, 1879 (Final Certificate No. 1905), and 3, 1857 (11 id., 251), in accordance with also holding for patent the homestead the Departmental decision quoted. entry of Archy Steele, made October 25, 1875, for the S. E. of the N. E. 4, and the N. E. of the S. E. of Sec. 5, Tp. 13 S., R. 22 E., in the same land district, upon which final proof was made December 4, 1880 (Final Certificate No. 2128).

Patton's statements touching his residence upon and improvement of the land are corroborated by the affidavits of several persons, notably that of one Andrew J. Ballard (who assisted in the survey of the township), showing that Patton had a valid subsisting claim to the land in question prior to the company's withdrawal, which claim continued to subsist subsequently thereto.

Upon such state of facts you held that the claim operated to except the land from the grant; that upon Patton's failure to avail himself of the privilege to re-locate said warrants upon the land, and his electing to make homestead entry of the same, the residue thereof not selected as swamp became public land subject to entry by the first qualified applicant; and that Patton's entry, and the remainder of Mrs. Williams, "will remain intact awaiting final proof." And you accordingly rejected the company's claim.

land, November 14, 1883.

prepared in 1860. It appears that the original of this map was sent to your office in 1860, but was not accepted by reason of the non-signature of the Governor of the State of Florida thereto; and it being lost or mislaid, a copy thereof was offered in December, 1875. But April 29, 1876, Secretary Chandler refused to acThe tracts named lie within the six-mile cept it because the act of definitely locatlimits of the Tampa Bay portion of the ing the road could only be performed by Atlantic, Gulf and West India Transit or under the authority of the state within Railroad Company, and your decision a reasonable time after the date of the holds that the rights of the company did grant (which did not appear), and, not attach until March 16, 1881, when in all cases, before expiration of the withdrawal of lands was made for the benefit of the company under Secretary Schurz' instructions of January 28, 1881, and hence that the entries being of prior date to the withdrawal must be sustained. The company claims that its rights attached upon the filing of the plat of survey in your office in 1860.

time fixed for completing the road. From the date of that decision to the withdrawal in 1881, the odd numbered sections within the limits of the grant were treated as public lands, and settlements and entries were allowed thereon, and a large number have been held for patent by your office, but await action on the company's appeal.

The act of May 17, 1856 (11 Stat. 15) granted to the State of Florida to aid in On November 10, 1879, you submitted the construction of certain railroads in to Secretary Schurz the company's applithat State (of which that herein named is cation for review of Secretary Chandler's The company's attorney urges, however, or is supposed to be one) every alternate decision, claiming that material facts which that "as Patton's original filings under the odd section of land for six miles in width went to show the authority of the comact of 1855, were made after the with- on each side of each of said roads and pany to locate the line, and file the map, drawal of the lands for railroad purposes, branch. And in case the United States were not before him-much of the matter the burden of proof was upon him to show had, when the lines or routes of said roads being newly discovered-which if prethat he had a valid and subsisting claim and branch are definitely located, sold any sented and considered would have led him to the land at the date of the withdrawal of the granted land, or the rights of pre- to a different conclusion. In his ruling of which excepted the same from the railroad emption had attached to the same, the January 28, 1881, Secretary Schurz held grant," and that the question of the illegality of his warrant locations having been determined upward of twenty years ago, that question is res judicata, and can not be opened at this late day.

State might select, subject to the approval
of the Secretary of the Interior, so much
land in alternate sections or parts of sec-
tions as should be equal to the lands so
sold or otherwise appropriated, or to

that the correspondence of the map of 1860 with the copy filed was sufficiently shown, and that there was no doubt that the line exhibited by the copy was surveyed and marked as the definite location

I am unable to discover any error in the survey of Rancho Casmalia as patented. If, as stated, the public surveys have been extended upon the lands of Casmalia as patented, and settlements have been made thereon, or if there is a conflict between the patented lines of Casmalia and the adjoining patented Ranchos, the owners of Casmalia must seek a remedy in the

courts.

the lands respectively since 1873, 1878 and
1883. They testify that the lands are too
wet in their present condition to produce the
staple crops of the country. They admit
the existence of numerous ditches on the
lands, but think they were constructed as
much for the purpose of draining the land
as irrigating it.

Under date of August 17, 1882, the United States Surveyor General addressed Twenty years have elapsed since that a letter to this office, stating that he had Rancho was patented, and the lines of the declined to approve the list of swamp final survey regarded as settled. Con-selections filed by the State for the lands tiguous Ranchos have been patented, and in Township 41, R. 42, for the reason that abutting public lands disposed of and set- there was "too great a discrepancy between tled, upon the lines of such final survey. the Deputy Surveyor's report and the If this Department had any power to now State's claim." readjust such lines, nothing but the most satisfactory proof of error or fraud would justify any interference therewith.

After a somewhat careful examination, I am unable to find that there has been any error in such final survey, or location of the lines as patented.

I affirm your decision rejecting the Von Schmidt survey.

SWAMP LANDS.

STATE OF OREGON.

Evidence.-The evidence at the hearing to deter

mine the character of the land involved fails
to show its swampy character.

COMMISSIONER MCFARLAND to Reg. and Rec.,
Lakeview, Oregon, Oct. 22, 1883. (S. L. C.)
I am in receipt of your letter of the 20th
of June last, enclosing testimony taken
before you at the hearing ordered by my
letter of the first of February last, for the
purpose of determining the character of
certain lands in Township 41 S., R. 42 E.,
which the State claims as swamp.

Due notice of the hearing appears to have been given, and testimony for and against the State's claim was taken, upon which you rendered your decision in favor of the State's claim, as to most of the tracts relative to which testimony was offered; as to the other tracts relative to which proof was offered, the testimony on the part of the State shows that they are dry lands.

The tracts in question are situate in Quinn's Valley.

The State of Oregon did not elect to take her swamp lands by the evidence furnished by the plats and field notes, and hence is not bound by them; but as she has in the case of J. C. Davis vs. the State of Oregon (decided by this office on the 5th ultimo), filed in evidence copy of the field notes of survey, and they were considered in deciding the case, this office is justified in referring to them in this case, and in stating that by the same, in the present condition of the land in question, not more than one 40-acre tract would pass to the State as swamp land. In the field notes appears the following: "water-ditch," "irrigating-ditch," "land overflowed from ditches.”

I am in receipt by reference from the Department, of a communication from the Secretary of War, with accompanying papers relative to a "Hay Reservation," embracing a portion of the lands in question.

INDEMNITY SWAMP PROOFS. COMMISSIONER MCFARLAND to Special Agent Louis Bergau, Jefferson City, Mo., October 15, 1883. (S. L. C.)

You are hereby instructed to notify the proper State authorities that hereafter when the State has completed any portion of its indemnity proofs, they must be turned over to you, when you will certify the same as heretofore directed and forward them to this office.

STATE OF CALIFORNIA.

Legal Subdivision.-Where a legal subdivision
contains swamp and overflowed land equal in
area to more than half of such subdivision,
the entire tract passes to the State under the
act of September 28, 1850, and a survey segre
gating the swamp from the arable land
therein should not be approved.
SECRETARY TELLER to Commissioner McFar-
land, November 2, 1883.

I have considered the case presented by the appeal of the State Surveyor-General of California from your decision of July 12, 1882, disapproving the amended diagram forwarded to you by the U. S. Surveyor-General of California, showing amendments made to lots 1 and 6 in Sec. 7, Tp. 13 S., R. 2 E., M. D. M., California, according to State segregation survey No. 10, made August 9, 1860.

On the segregation map of township 13, approved August 28, 1872, the N. E. of the N. E. of section 7 is divided into dry land lot 1, containing 15.69 acres, and swamp land lot 7, containing 24.31 acres, and lot 6, being a part of the N. W. of the N. E. 4 of said section, and 10.62 acres in area, appears as swamp land.

The order for setting aside said reserva- If the amendment to the segregation tion is dated September 31, 1867; but the map is made strictly in accordance with survey was not made until October, 1878, the State survey, referred to above, lot 1 by U. S. Deputy Surveyor, D. Van Lennop. will appear as swamp land, and a new lot, On the margin of the plat constructed designated as No. 11, will be carved out of by him appears the following * * * lot 6; but the real object of the desired "Line of a fence of ranches mostly taken amendment is to secure the designation of under desert act laws, as good hay is ob- lot 1 as swamp land; for, by the records of tained by irrigation only." Nearly, or your office, that part of lot 6, which quite all the land enclosed by the "fences" would be included in lot 11, appears to referred to is as shown by the plat of have been patented to the State as swamp Government survey, claimed by the State land February 8, 1873.

as swamp land. Under special orders. The Southern Pacific Railroad Comdated May 28, 1879. Head Quarters Mili-pany of California, by its attorney, resists The plat of the United States survey tary Department of the Pacific, etc. C. F. the application of the amendment of the for this township was filed in your office, Palfry, 1st Lieutenant of Engineers, ex- segregation map, and claims said lot 1 as May 16, 1882, and a list of swamp selec-amined said Hay Reservation; and in his part of an odd section enuring to said tions in the same was received by you from company by the act of July 27, 1866 (14 the Surveyor General, January 6, 1883. Stat., 292).

Charles Bowling, claiming adverse to the State, testifies that he has known the lands claimed in this township, claimed as swamp, since 1867; that the same were at that time desert lands; that he has constructed ditches from McDermit Creek, more than one mile in length, and irrigated the land, so that for several years past good crops of hay have been raised on the

same.

Relative to the ditches, their use, and the general character of the land, Mr. Bowling is corroborated by one witness. Three witnesses were sworn and testified on the part of the State, who have known

report dated June 30, 1879, states: "The
water of McDermit Creek is now used in
irrigation of meadows lying between the
two streams," being a part of the lands
in question.

You disapproved the amended diagram for the reason that "an examination of said State survey shows that it was not I am of the opinion that your decision is made in accordance with the system of not in accordance with the facts as devel-surveys adopted by the United States." oped at the hearing, but contrary to the law and the evidence; and therefore decide that the land is not swamp or overflowed within the meaning of the act of September 28, 1850, as extended to the State of Oregon by act of March 12, 1860, and accordingly hold the claim of the State to the following described lands for rejection-viz: [list of tracts omitted. EDITOR.]

By the act of September 28, 1850, entitled, "An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits," (9 Stat. 519,) "the whole of those swamp and overflowed lands made unfit thereby for cultivation." which were unsold at the date of the passage of the act, were granted to the State of California. Section 3 of said act provides, " That in mak