in the ordinary course of the administration of the laws pertaining to our land system would take much time.

The tract in controversy was surveyed prior to March 12, 1860. The first session of the legislature of Minnesota held after the passage of the granting act adjourned March 7, 1861. The selection of the lands, as far as it was in the power of the grantee to act, was made in March, 1862, less than two years from the adjournment of the first session of the legislature; and to hold that by reason of the failure of the officers of this department to perform the act of segregation, or of listing the lands inuring under the grant, that the claim of the State was forfeited, or its right defeated, would, in my opinion, be an unwarranted and unjustifiable assumption of power, not authorized by law, or based upon principles of reason or justice. By its own action the government is estopped from asserting such an authority.

This Department invited the State to adopt a certain method of ascertaining what lands inure to her under a grant. The State, having complied with the suggestion, exhausted her power to act in the premises, and the department is barred from asserting that, because of its laches and delay in identifying the lands, the selection has not been made within the prescribed time. The government is not in a position to raise that question.

For these reasons it must be held that the tract in controversy inured to the State; that she was entitled to patent when the same was requested by the governor, July 31, 1865.

In my opinion, the principles herein announced will apply to an adjustment of the grant under the provisions of section 2490 of the Revised Statutes, as the State and the government retain the same relation to each other as they occupied prior to the adoption of said section.

You are instructed, however, to exercise diligence in notifying the governor of the State of the survey of the public lands as soon as the plats are filed in your office. The officers in charge of the selection of lands should be held to a strict accountability, and the list of swamp lands inuring to the State under the grant should be prepared within the two years mentioned in the act.

In the case submitted, patent should issue to the State for the tract, and the principles announced in this letter should govern in the adjustment of the swamp grant to the State of Minnesota.

The instructions given in your letter of December 26, 1876, addressed to the surveyor general of Minnesota, are approved.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

C. SCHURZ, Secretary.

At the hearing held in the case of the Central Pacific Railroad vs. State of California, the claim of the State to certain tracts was rejected either because the State failed to show that said lands were swampy or no testimony was offered as to their swampy character.

All public land in California that was actually swampy inured to the State September 28, 1850, and a subsequent disposition thereof by the government, either by grant to a railroad company or sale to individuals, could not divest the State's title. The State had the right to present testimony as to the character of each tract mentioned in the published notice of the investigation in this case. Lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road are not embraced in the grant to the company.

Lands lying within the claimed limits of a Spanish or Mexican grant, which was subsequently adjudged by the courts to be invalid, inured to the State under the swamp grant of September 28, 1850: Provided, The State proves they were swampy at the date of the grant.

Property is the right and interest which a man has in lands and chattels to the exclusion of others. The second clause in the fourth section of the act of July 23, 1866, confirms absolutely to the State all lands not in a state of reservation which had been segregated by her prior to July 23, 1866, if the State surveys were made on the rectangular system, whether the lands had been surveyed by the United States or not, or whether they were swampy or dry lands, provided no valid pre-emption or homestead claim or other right had been acquired by any settler as provided in the first section of the

act.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., December 21, 1877. SIR: I have considered the testimony taken before the surveyor general of California, in April, 1874, at a hearing held at the instance of the State of California, to determine whether certain lands claimed by said State as swampy and overflowed, but returned on the official plats of township 16 N., range 2 W., and 17 N., 2 W., in the Marysville land district, as dry lands, are of the character claimed by the State.

These lands were formerly within the claimed limits of the Manuel Diaz Mexican grant, which was finally rejected by the Supreme Court of the United States March 3, 1873. They are also within the granted limits of the Central Pacific Railroad Company, successors to the California and Oregon Railroad Company. The withdrawal for said road was made by letter from your office, dated October 29, 1867, received at the local land office November 25, 1867.

Township 17 N., range 2 W., was surveyed in the field in April, 1867, and the plat thereof approved by the surveyor general November 9, 1867, and filed in the local office

February 4, 1868. This plat was suspended January 22, 1873, on account of conflict with the Diaz grant, and was not restored until October 1, 1873.

Township 16 N., range 2 W., was surveyed in the field in July, 1871, and the plat approved by the surveyor general August 23, 1871, and filed in the local office September 25, 1871. This plat was also suspended January 22, 1873, on account of conflict with the Diaz grant, and not restored until October 1, 1873. Part of the lands in 17 N., 2 W., were returned as swampy.and overflowed on the official plat of that township and were certified to the State September 20, 1870, and are not, therefore involved in this case.

In the year 1861, the State caused segregation surveys to be made of the lands in these townships, which were claimed by her under the swamp grant of September 28, 1850, and these surveys included large tracts which are returned as dry lands on the United States official surveys. The State filed objections to the government surveys with the surveyor general on October 20, 1871, as provided for in the last clause of the 4th section of the act of July 23, 1866, and a hearing was set for November 13, 1872. On the date last mentioned objection was raised to the right of the State to swamp lands within the limits of a private grant, the title to which was still in litigation; and the surveyor general thereupon postponed further action, to await instructions from the Commissioner of the General Land Office.

On January 9, 1873, the surveyor general was directed by your office to suspend the hearings in all cases where the title to the lands was in litigation, and proceedings in this case were consequently suspended until April 7, 1874, when the hearing was held in the town of Colusa, Cal., which is situated near the lands in dispute.

In the mean time, viz, on March 5, 1872, the following lands in 17 N., 2 W., were patented to the Central Pacific Railroad Company:

All of fractional section 15.

S. E. of N. W. †, W. † of N. E. †, N. E. † of N. E. †, W. § of S. E. †, and S. W. of section 27.

All of section 29.

W. of W., N. E. of N. W. 1, S. E. 1 of S. W. 1, and S. of S. E. of section 33. On August 28, 1874, your predecessor rendered a decision on certain preliminary questions raised by counsel for the State, and an appeal was taken on behalf of the State from this decision. On February 27, 1875, counsel for the State asked leave to withdraw their appeal without prejudice to any legal rights which their client might possess, in order to have the testimony examined and the case decided on its merits by your office, and this request was granted by my predecessor, Hon. C. Delano, on March 1,1875.

On June 28, 1875, the case was examined and decided by your office on its merits, and the following tracts were found to be so swampy or overflowed as to be unfit for successful cultivation in a majority of seasons without reclamation, viz:

You rejected the claim of the State to the following tracts, viz: S. E. of S. W. section 26, N. E. of N. W., section 35, township 16 N., range 2 W.; and N. W. of N. W., section 28, W. of N. W. 1, N. E. 1 of N. W. 1, N. W. 1 of N. E., and N. W. of S. W., section 34, tp. 17 N., range 2 W., either because the State failed to show that said lands were swampy or because no testimony was offered as to their swampy character.

You also found that the papers failed to show whether any testimony was offered as to the character of the W. of S. E. 4, and W. of section 16, tp. 16 N., range 2 W., and section 16, and S. E. of section 22, tp. 17 N., range 2 W., and directed the surveyor general to report what action, if any, was had on said tracts. You do not state what response was made by the surveyor general to this direction. At the hearing before the surveyor general proof was made that part of the lands segregated by the State and claimed by her as swampy or overflowed had, prior to that time, been sold or otherwise disposed of by the United States, and that officer thereupon refused to allow testimony to be introduced by the State as to the character of these tracts. Your predecessor held that the question for consideration was the character of the land, and that the State had the right to present testimony as to the character of each tract mentioned in the published notice of the investigation, and if the land was actually swampy it inured to the State September 28th, 1850, and a subsequent disposition thereof by the government, either by grant to a railroad company or sale to individuals, could not divest the State's title.

The Central Pacific Railroad Company has appealed from so much of the decision of your office as authorizes an investigation into the character of the lands patented to said company. The State has appealed from the refusal of your office to certify over to her all of the lands segregated by her officers as swamp or overflowed in 1861 claiming that said lands were confirmed to her by the second clause of the fourth section of the act of Congress entitled "An act to quiet land-titles in California,” approved July 23d, 1866. She also asks that her appeal taken from your predecessor's decision of August 28, 1874, may be reinstated, and the objections then made thereto now considered.

The appeal of the railroad company must be overruled. By the decision of the Supreme Court of the United States, in the case of Newhall rs. Sanger, (2 Otto 761), it was held that lands within the boundaries of an alleged Mexican or Spanish grant, which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road, were not embraced in the grant to the company. This was the condition of the lands involved in this case, which were (as before stated) within the claimed limits of the Diaz grant at the date of the withdrawal, and did not therefore inure to the railroad grant. You are therefore directed to call for a return of the patents, and a relinquishment by the company to the United States of the lands patented to it within the claimed limits of said alleged Mexican grant. As the right

of the State of California to swamp and overflowed lands lying within the limits of an alleged Spanish or Mexican grant, which has been adjudged by the courts to be invalid, has been seriously questioned since the decision of the Supreme Court in the case of Newhall vs. Sanger, above cited, and it has been assumed to be a question of grave doubt whether the swamp grant attached to this class of lands, I think it proper to express my view on this question, before entering into an examination of the other questions of law involved in this case.

California was acquired from Mexico, in the year 1848, by the treaty of Guadaloupe Hidalgo, and was admitted into the Union of States September 9, 1850. The swampland grant was made on September 28, 1850, and being a present grant, vested an immediate title in the State to all lands of the kind described therein, to which the United States had title at the date of the grant. Congress had authority to grant to the State the title to all lands of the class mentioned, not sold or held under valid claims unless a reservation was created by the treaty with Mexico, by which the United States was obliged to protect fraudulent and assumed property rights within the ceded territory, in the same manner that valid property rights were to be protected. This was not the case, as will be seen by reference to the eighth article of the treaty, which placed the inhabitants of the ceded territory on the same footing as to property rights as other citizens of the United States, but gave them no greater rights or privileges. They could retain what they lawfully possessed, or sell and convey it at pleasure. The government, however, did not obligate itself to protect Mexicans, or those claiming under them, in the possession of property to which they had no title, inchoate or perfect. Property is the right and interest which a man has in lands and chattels to the exclusion of others (6 Binn. Penn., 98; 4 Peters, 511; 17 Johns. N. Y., 283; 11 East, 290). What exclusive interest could any one possess in an invalid or fraudulent grant? Obviously he had no property rights under the Mexican Government, and acquired none by the change of sovereignty; I am of the opinion, therefore, that persons holding under invalid or fraudulent grants had no interest in the lands which excluded them from passing to the State under the swamp grant. The act of March 3, 1851, created a reservation alike of valid and invalid Mexican and Spanish claims, and that reservation continued until the validity of the title was finally determined in the manner provided in the act. While this reservation continued, the State could not obtain possession of the granted lands, but her title was in no wise divested thereby. If the swamp grant had been made subsequent to the act of 1851, and while the reservation was in force, the doctrine announced in the case of Newhall vs. Sanger must have prevailed; but it can have no application in this case, as the grant was made before the reservation was created.

The lands involved in this case were surveyed and segregated by the State in 1861; the State surveys were made on the rectangular system, and therefore conformed to the system of surveys adopted by the United States. The government surveys were not made until after the passage of the act of July 23d, 1866, and the question arises whether the State is entitled by virtue of the 4th section of the said act to all of the lands segregated by her on the rectangular system as swampy and overflowed, but not so returned on the government plats of survey, or to such only as the testimony shows were of that character at the date of the swamp grant.

It was held by my predecessor, Hon. C. Delano, in a decision rendered December 5, 1871, that the second clause of the fourth section of the act of July 23d, 1866, secured to the State such lands only as had been surveyed by the United States prior to the date of said act; and in cases where surveys were subsequently made by the United States if the lands were not returned on the plats as swampy, the right of the State must depend upon her ability to prove that they were in fact swampy in 1850. I am unable to arrive at such a conclusion. The first clause of said fourth section is as follows: "That in all cases where township surveys have been, or shall hereafter be, made under authority of the United States, and the plats thereof approved, it shall be the duty of the Commissioner of the General Land Office to certify over to the State of California, as swamp and overflowed, all the lands lands represented as such upon such approved plats, within one year from the passage of this act, or within one year from the return and approval of such township plats." The surveyor general is the agent of the government, and to him is given the power of designating, for and on behalf of the government, the lands which are found on examination to be of the character granted to the State. It is made a part of his official duty and is in all respects consistent with it. This clause secures to California all lands which the surveyor general officially reports to be swampy, whether they are so or not. The second clause of the fourth section of said act, and the one about which there has been so much controversy is in the following language, viz: "The Commissioner shall direct the United States surveyor general for the State of California to examine the segregation maps and surveys of the swamp and overflowed lands made by said State; and where he shall find them to conform to the system of surveys adopted by the United States, he shall construct and approve township plats accordingly, and forward to the General Land Office for approval: Provided, That in segregating large bodies of land notoriously and obviously swamp

in the ordinary course of the administration of the laws pertaining to our land system would take much time.

The tract in controversy was surveyed prior to March 12, 1860. The first session of the legislature of Minnesota held after the passage of the granting act adjourned March 7, 1861. The selection of the lands, as far as it was in the power of the grantee to act, was made in March, 1862, less than two years from the adjournment of the first session of the legislature; and to hold that by reason of the failure of the officers of this department to perform the act of segregation, or of listing the lands inuring under the grant, that the claim of the State was forfeited, or its right defeated, would, in my opinion, be an unwarranted and unjustifiable assumption of power, not authorized by law, or based upon principles of reason or justice. By its own action the government is estopped from asserting such an authority.

This Department invited the State to adopt a certain method of ascertaining what lands inure to her under a grant. The State, having complied with the suggestion, exhausted her power to act in the premises, and the department is barred from asserting that, because of its laches and delay in identifying the lands, the selection has not been made within the prescribed time. The government is not in a position to raise that question.

For these reasons it must be held that the tract in controversy inured to the State; that she was entitled to patent when the same was requested by the governor, Julý 31, 1865.

In my opinion, the principles herein announced will apply to an adjustment of the grant under the provisions of section 2490 of the Revised Statutes, as the State and the government retain the same relation to each other as they occupied prior to the adoption of said section.

You are instructed, however, to exercise diligence in notifying the governor of the State of the survey of the public lands as soon as the plats are filed in your office. The officers in charge of the selection of lands should be held to a strict accountability, and the list of swamp lands inuring to the State under the grant should be prepared within the two years mentioned in the act.

In the case submitted, patent should issue to the State for the tract, and the principles announced in this letter should govern in the adjustment of the swamp grant to the State of Minnesota.

The instructions given in your letter of December 26, 1876, addressed to the surveyor general of Minnesota, are approved.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

C. SCHURZ, Secretary.

At the hearing held in the case of the Central Pacific Railroad vs. State of California, the claim of the State to certain tracts was rejected either because the State failed to show that said lands were swampy or no testimony was offered as to their swampy character.

All public land in California that was actually swampy inured to the State September 28, 1850, and a subsequent disposition thereof by the government, either by grant to a railroad company or sale to individuals, could not divest the State's title. The State had the right to present testimony as to the character of each tract mentioned in the published notice of the investigation in this case. Lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road are not embraced in the grant to the company.

Lands lying within the claimed limits of a Spanish or Mexican grant, which was subsequently adjudged by the courts to be invalid, inured to the State under the swamp grant of September 28, 1850: Provided, The State proves they were swampy at the date of the grant.

Property is the right and interest which a man has in lands and chattels to the exclusion of others. The second clause in the fourth section of the act of July 23, 1866, confirms absolutely to the State all lands not in a state of reservation which had been segregated by her prior to July 23, 1866, if the State surveys were made on the rectangular system, whether the lands had been surveyed by the United States or not, or whether they were swampy or dry lands, provided no valid pre-emption or homestead claim or other right had been acquired by any settler as provided in the first section of the

act.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., December 21, 1877. SIR: I have considered the testimony taken before the surveyor general of California, in April, 1874, at a hearing held at the instance of the State of California, to determine whether certain lands claimed by said State as swampy and overflowed, but returned on the official plats of township 16 N., range 2 W., and 17 N., 2 W., in the Marysville land district, as dry lands, are of the character claimed by the State.

These lands were formerly within the claimed limits of the Manuel Diaz Mexican grant, which was finally rejected by the Supreme Court of the United States March 3, 1873. They are also within the granted limits of the Central Pacific Railroad Company, successors to the California and Oregon Railroad Company. The withdrawal for said road was made by letter from your office, dated October 29, 1867, received at the local land office November 25, 1867.

Township 17 N., range 2 W., was surveyed in the field in April, 1867, and the plat thereof approved by the surveyor general November 9, 1867, and filed in the local office