be sold to the mayor or proper county judge, acting as trustees for the occupants thereof, at a stated price, say $1 per lot of 4,200 feet.

The following town sites have been patented since September 1, 1877, viz:

In addition to the foregoing, San Juan, Wash., 153.45 acres, has been patented under the county-seat act of 1824.

Sixteen entries, covering 59 lots in Sault Ste. Marie, Mich., have been patented under the ninth section of the act of September 26, 1850. (9 Stats., p. 469.)

An additional entry has been granted to the town of Auburn, Cal., under the fourth section of the act of March 3, 1877. (19 Stat., p. 392.) In regard to appeals from decisions of district land officers in pre-emption contested cases, this office addressed circular instructions to the registers and receivers, under date of the 20th September, 1878, as follows, viz:

TO REGISTERS and RECEIVERS

United States Land Offices:

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., September 20, 1878.

GENTLEMEN: A modification of the rules has been decided upon in the adjudication of contested cases where the parties having claims of record under the pre-emption laws fail to appear and sustain such claims after due notification, or where, having appeared, the unsuccessful party fails to appeal from the decision of the local officers within the time prescribed.

The practice of this office has been to require the party desiring to clear the record and enter the tract, to give notice to adverse claimants of the time fixed for a hearing of the case; and, if no opposition is offered, the proofs of abandonment are forwarded to this office, a decision rendered, and, after the expiration of the period allowed for appeal, the claimant is allowed to enter the land, the adverse filings having first been canceled.

Section 2273, Revised Statutes of the United States, provides that "all questions as to the right of pre-emption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of district officers in cases of contest for the right of pre-emption, shall be made to the Commissioner of the General Land Office, whose decision shall be final unless appeal therefrom be taken to the Secretary of the Interior."

On the 12th November, 1877, you were advised by my circular relating to appeals from the decision of the local officers that "the appeal must be in writing, definitely setting forth in clear and concise terms the specific points of exception," and that this office would judge as to the sufficiency of such appeals.

In future, under the pre-emption law, a failure to appeal from the decision of the local officers will be considered final as to the facts in the case; and such decision will be disturbed by this office only where fraud or gross irregularity is suggested on the face of the papers, where the decision is contrary to existing law, or in the event of disagreeing decisions by the local officers, in any of which cases the Commissioner of the General Land Office will revise or modify the decision of the local office, at his discretion, under the general supervisory powers conferred upon him by section 453 of the Revised Statutes.

In cases where the defendants, or any of them, appear, should no appeal be taken during the prescribed time, you will allow an entry by the successful claimant and transmit with it the record of the case to this office, accompanied by your joint decision and report as to the status of the land.

When notifying the parties of your decision, they shall also be informed of the necessity of an appeal therefrom, to insure consideration by this office. When, after due and legal notice of thirty days, no appearance is entered by any defendant and the tes

timony clearly shows that he has abandoned the land and changed his residence to another part of the country, you are authorized to allow an entry by the actual settler, and send up with his proof and papers the testimony as to the abandonment of the tract by the adverse claimant, and if no appeal from your decision be taken, it will be considered final, and the entry, if regular, will be disturbed only in case of the exceptions mentioned above or where a rehearing is ordered by this office on the receipt of affidavits setting forth good and sufficient reasons for such action.

Care should be taken to give the parties proper legal notice of the hearing, evidence of service to be filed with the other papers in the case.

Very respectfully,

J. A. WILLIAMSON,

Approved.

Commissioner.

DEPARTMENT OF THE INTERIOR,

September 23, 1878.

A. BELL, Acting Secretary.

The following decisions, rendered since the date of the last annual report of this office, are here presented as having an important bearing on pre-emption rights.

M'KEE vs. WALTHER ET AL.

The local land officers should not receive applications to file for or enter a tract of land while in a state of reservation, and hold the same to advance the interest or accommodate any individual.

DEPARTMENT OF THE INTERIOR,
Washington, D. C., April 19, 1878.

SIR: I have considered the case of Uri McKee vs. Leonard C. Walther, John O'Mara, et al., involving the W. of section 13, township 2 south, range 11 east, Stockton land district, California, on appeal from your decisions of March 20, 1876, and June 27,

1877.

The township plat was filed in the local office on July 26, 1858.

The lands in contest were formerly within the limits of the withdrawal of November 30, 1867, for the Stockton and Copperopolis Railroad Company. The grant to said road was declared forfeited by act of Congress approved June 15, 1874, and the lands were restored to pre-emption and homestead entry September 4, 1874, pursuant to published notice given under instructions from your office, dated July 9, 1874.

Uri McKee filed declaratory statement 7616, September 4, 1874, for the W. of N. W. and W. of S. W. section 13, 2 S., 11 E., alleging settlement same day. Leonard C. Walther filed declaratory statement 7737, September 4, 1874, for the N. W. section 13, 2 S., 11 E., alleging settlement August 18, 1874.

Peter Finnegan filed declaratory statement 7796, September 4, 1874, for the W. of N. W. section 13, 2 S., 11 E., alleging settlement September 4, 1874.

E.

Timothy Ryan filed declaratory statement 7738, September 4, 1874, for the W. N. and E. of N. W. 1 section 13, 2 S., 11 E., alleging settlement March 16, 1874. John O'Mara made homestead entry No. 2053, September 4, 1874, for the S. W. section 13, 2 S., 11 E.

John L. Sullivan filed declaratory statement 7655, for the E. of N. W. and E. of S. W. sec. 13, 2 S., 11 E., September 4, 1873, alleging settlement same day. The testimony shows that McKee and Sullivan went to the local land-office on the 2d or 3d of September, 1874, and executed their declaratory statements, dating them September 4, 1874. Settlement was alleged as of September 4, 1874, and said papers were left with the receiver or clerk to be filed when the lands came into market, and they were placed on record as having been filed September 4, 1874. Said parties then procured lumber and teams and started for the land. They arrived on the land shortly after sunrise on the morning of September 4, and commenced building their houses before 12 o'clock m. on that day. The local land office was not opened for business until 10 o'clock a. m. on September 4, 1874, but the land was subject to settlement after twelve o'clock on the night of September 3, 1874. (Timmons vs. Gleason, Copp's Land-Owner for August, 1876, p. 71.)

You held that the filings of McKee and Sullivan were valid, and awarded them the lands claimed thereunder. I am unable to agree with your conclusion.

Section 2265 of the Revised Statutes requires the claimant for unoffered land to make known his claim in writing within three months from the date of his settlement.

In the presence of an adverse claim two things are necessary to the initiation of a valid claim under the pre-emption laws, viz:

1. Priority of settlement on the land in good faith.

2. The execution and filing of a declaratory statement, either in person or by an authorized agent or attorney, subsequent to settlement and within the time prescribed by statute.

McKee and Sullivan executed their declaratory statements before settlement, and at a time when the land was in a state of reservation. Said declaratory statements were post-dated and placed in the hands of the clerk or receiver with the manifest design of obtaining some supposed priority or advantage over other applicants for the land. The last paragraph of your instructions to the register and receiver, of July 9, 1874, relative to the manner in which these lands should be restored to market, is as follows, viz: "You will not allow any entries of lands or recognize any pre-emption rights as attaching prior to the date of restoration." This order prohibited the local officers from allowing any filings or entries prior to the day of restoration, September 4, 1874, and their action in receiving the declaratory statements of McKee and Sullivan prior to that time, and afterward placing them of record, was contrary to the spirit and intent of your instructions, as well as to a just and proper administration of the law. When lands are subject to disposal under the laws of the United States, it is the duty of the local land officers to receive all proper applications therefor, and place them on record; but when the lands are not subject to disposal, the plain duty of these officers is to reject such applications. These officers have no authority to receive applications to file or enter lands which are in a state of reservation, and hold them until the reservation is removed, and then place them on record, in order to advance the interests, or accommodate any individual; such an act of favoritism is contrary to a proper administration of the public-land system, and cannot receive the sanction of this department; and the filings of McKee and Sullivan must be canceled. The testimony taken at the hearings held in March, 1875, and December, 1876, shows that Ryan has not complied with the requirements of the pre-emption laws, and your decision holding his filing for cancellation is affirmed.

Finnegan made default at the hearing held in March, 1875, and as it does not appear that he ever made any settlement on the land claimed by him, his filing will be canceled. O'Mara and Walther have shown a substantial compliance with the law.

Walther will be allowed to enter the N. W. section 13, 2 S., 11 E., on showing a full compliance with the requirements of the pre-emption laws to the date of entry, and the S. W. section 13, 2 S., 11 E., is awarded to O'Mara, subject to a full compli

ance with the homestead law.

Your decisions are modified accordingly, and the papers transmitted with your letters of January 30, 1877, and December 10, 1877, are herewith returned.

Very respectfully,

COMMISSIONER OF GENERAL LAND OFFICE.

C. SCHURZ, Secretary.

WHITE vs. UNIVERSITY OF CALIFORNIA.

In the selection of land in California in lieu of school sections claimed to have been lost in place the State locating agent, State surveyor general and local land officers, must certify that their respective records do not show that a former selection has been made by the State for the same land claimed to have been lost, prior to July 23, 1866, and that to the best of their knowledge and belief no such selection has been made.

The warrants issued under the State law of May 3, 1852, for 320 acres each, of the 500,000 acre grant under the Congressional act of April 4, 1841. disposed of that portion of the said government grant covered thereby. The provisions of the State law of April 23, 1858, regulating the disposal of the unsold portions of the said 500,000 acre grant, are not applicable to parties who have purchased said

warrants.

DEPARTMENT OF THE INTERIOR,
Washington, January 10, 1878.

SIR: I have considered the case of The State of California, ex rel. John C. White, applicant under the first section of the act of July 23, 1866, s. the University of California, on appeal from your decision of May 7, 1877.

The land involved is the N. W. of section 6, township 2 north, range 6 east, and the E. of N. W. and N. E. of section 32, township 3 north, range east, Mt. D. M., Stockton, Cal.

The N. W. of section 6 and the N. of section 32 were selected by the State June 26, 1862, in lieu of lands in sections 16 and 36 claimed to have been lost in place.

The University of California, on February 27, 1874, applied to locate, under the aet of July 2, 1862, the N. W. of section 6, and E. of N. W. † of section 32. This application was rejected on account of the adverse claim of White.

In 1869 there was approved to the State other land, in lieu of that claimed to have been lost in place, for which the tracts above described were selected in 1862. Thus, should the selection under consideration be approve 1, it is asserted that the grant to

the State would be increased, in violation of the provisions of section 1 of the act of July 23, 1866: "That the State of California shall not receive, under this act, a greater quantity of land for school or improvement purposes than she is entitled to by law." It cannot be denied that there is force in this objection, and upon this point your office ruled that the proviso applies to the grant in the aggregate, and not to indemnity that may be taken for any specific tract. Should it be held that by a subsequent selection the State had barred the right of confirmation of the selection made prior to 1866 the purchaser from the State would be the sufferer, and the very purpose of the act of 1865, viz, to quiet title, and to protect the rights of purchasers in good faith, would be defeated. The State cannot thus be permitted to defeat the rights of her grantees.

Great care, however, should be exercised by your office in the adjustment of the grant of the sixteenth and thirty-sixth sections, to prevent its being enlarged, under the provisions of the first section of the act above cited. And as preliminary to this step, you will in the case of each selection made in the future, of lands in lieu of those claimed to have been lost in place, require the State locating agent, the State surveyor general, and the local land officers, to certify that the records of their respective offices do not show that a former selection has been made by the State, for the same land, claimed to have been lost, prior to July 23, 1866, and that to the best of their knowledge and belief no such selection has been made. Should you ascertain from any source that a former selection has been made, you will hold the subsequent one in abeyance until an adjudication of the question of confirmation, and should the prior selection be confirmed, the latter must be canceled. You will also pursue a like course with all the selections now on file in your office, not approved to the State by the head of this department.

It appears that White has located a school warrant for 320 acres of land, and it is contended that he has exhausted his right, and is barred from obtaining title to an additional 320 acres under the act of the legislature of California approved April 23, 1858.

The act of the legislature of California approved May 3, 1852, authorized the issuing of warrants for not more than 320 acres each, of the 500,000 acre grant made to the State by the act of Congress approved April 4, 1841. They were to be sold for $2 per acre, and the purchaser was authorized, in behalf of the State, to locate them upon any land of the United States subject to location. This was done by White. The warrants thus issued and sold by the State disposed of that portion of the 500,000 acres covered thereby. (Bludworth vs. Lake, 33 California, 255; Toland vs. Mondell, 38 California, 30.) If this be so, the provisions of the act of the legislature of California, approved April 23, 1858, regulating the disposal of the unsold portions of the 500,000 acre grant, are not applicable to parties who have purchased said warrants. This view is confirmed by the twelfth section of said act, which repeals the act of May 3, 1-52, providing, however, "that all school land warrants now in circulation shall be received for school lands, and may be located as now provided by law." For these reasons I am of the opinion that the case of Chapman vs. Buckman, 39, California, 674, cited by counsel in support of their position, is not applicable, as the lands therein involved were located under the provision of the act of April 23, 1858, regulating the disposal of the unsold portion of the 500,000 acre grant.

The question of the good faith on the part of White, who claims as a purchaser under the first section of the act of July 23, 1866, must now be considered. Said section provides that where the State of California has made selection of any portion of the public domain, in part satisfaction of any grant, and has disposed of the same to purchasers in good faith under her laws, said selection shall be confirmed.

The words "disposed of the same to purchasers in good faith under her laws,” used in this connection, must be interpreted to mean sales or locations made according to the conditions of the State laws under which they purport to have been made, and which have been made in such a manner as would have passed title had it then been in the State. White appears to have made application in 1862, in due form, under the laws of the State, for the N. of section 32, township 3 north, range 6 east, and made final payment for the same in 1868. I see no reason why he should not be recognized as a purchaser in good faith for said tract, and the N. E. and E. of N. W. of said section 32 be approved to the State. The W. of N. W. of said section 32 having been approved to the State under the swamp grant in 1866, no further action in reference to the same will be taken by this department.

The location of the N. W. of section 6, township 2 north; range 6 east, was made in behalf of William B. Hood, who has assigned his interest to White.

The fourth section of the act of April 23, 1858, provides that "the agent shall not locate more than 320 acres either directly or indirectly for any one person.'

It is asserted that the location of Hood was made in the interest of White, to enable him to obtain more than 320 acres of land.

There can be no doubt, in my opinion, as to the truth of this allegation. In the record of the case of White vs. Lyons, in the State court, introduced in evidence at the

trial before the local officers, it appears that White testifies as follows: "I spoke to Messrs. Swinney, Russell, and Hood, and they agreed to my request to make these locations in their own names for my benefit." The location of Hood was for the tract in dispute, viz, the N. W. of section 6. The fact that the location by Hood was in the interest of White, and consequently not in good faith, is established by the testimony of White himself, without taking into consideration the evidence of Lyons, submitted at the trial before the local officers, to the same effect. I am of the opinion, however, that the evidence of Lyons, in this case, should be received, and that he should be regarded as an agent to locate lands rather than an attorney, whose evidence as to the transactions between his client and himself should be rejected. I cannot concur with you in the view that the judgment of the State court in the case of White vs. Lyons is conclusive in this case; the validity of the location of the lands by the State was not the question at issue before that court, neither did it pass upon that question.

Hood cannot be considered a purchaser in good faith from the State, and the selection of the N. W. of section 6, township 2 north, range 6 east, Mt. D. M., was not confirmed by the act of July 23, 1866, and the claim of the State to the same must therefore be rejected.

There appears to be no valid adverse claim to the tract, and the same is subject to selection by the University of California.

The papers transmitted with your letter of August 21, 1877, are herewith returned. Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

WALLACE vs. STATE OF CALIFORNIA.

C. SCHURZ,

Secretary.

Where a question is raised as to the correctness of the return of the surveyor general as to the character of certain land, a hearing should be ordered to ascertain the facts in the case.

DEPARTMENT OF THE INTERIOR,

Washington, December 28, 1877.

SIR: I have considered the case of Matthias T. Wallace vs. The State of Californis, involving the N. W. of section 23, township 3 north, range 7 east, M. D. M., Stockton, Cal., on appeal from your decision of May 9, 1877.

After a full recital of the facts, you held that the State could not be allowed a hearing before the surveyor general, for the purpose of submitting evidence upon the question of the alleged swampy character of the land, and allowed Wallace to file for the same.

This decision was based upon the opinion of the Assistant Attorney General, dated December 5, 1871, in which he says, after quoting the last clause of the fourth section of the act of July 23, 1866: "This privilege given to the State I understand to be limited to surveys made in those townships where the geodetic system had been adopted and to those where there had been no United States survey prior to the passage of the act."

You state in your decision, "A survey of this land having been made by the United States prior to the act of July 23, 1866, the converse of this decision must apply, and the right of the State is concluded thereby, and a hearing will not be allowed."

The third clause of the fourth section of the act of July 23, 1866, is as follows: "In case such State surveys are found not to be in accordance with the system of the United States surveys and in such other townships as no survey has been made by the United States, the Commissioner shall direct the surveyor general to make segregation surveys, upon application to said surveyor general by the governor of said State within one year of said application, of all the swamp and overflowed land in such townships, and to report the same to the General Land Office, representing and describing what land was swamp and overflowed, under the grant, according to the best evidence he can obtain."

The fourth clause of said fourth section provides that "if the authorities of said State shall claim as swamp and overflowed any land not represented as such upon the map or in the returns of the surveyors, the character of such land at the date of the grant, September 28, 1850, and the right to the same, shall be determined by testimony, to be taken before the surveyor general, who shall decide the same subject to the approval of the Commissioner of the General Land Office."

In my opinion, it follows from a correct interpretation of these provisions that, in a township surveyed under the geodetic system or by the State, and where there had been no United States survey, if, subsequent to the passage of the act of 1866, the surveyor general constructed his plat as directed, and on said plat neglected to return as swamp land claimed as such by the State, a hearing to ascertain the facts should be ordered before the appointed tribunal.