The first clause of the said fourth section of the act of 1866 provides, that in cases where the townships had been surveyed by the United States and the plats approved, the lands returned as swamp and overflowed were to be certified to the State without further action, hence no hearing as to the character of the land is necessary. In the case under consideration, however, the township was surveyed by the United States prior to July 23, 1856, and the land is returned by the surveyor general as subject to "periodical overflow," and not as "swamp and overflowed," as provided in the statute; hence, it is not subject to certification to the State by virtue of the return of the surveyor general. The State, however, claims the land as swamp. A question is thus raised as to the correctness of the return of the officer and a hearing is requested, that the facts in the case may be ascertained. I find nothing in either the act of September 28, 1850, or July 23, 1856, which debars the State of this right; on the contrary, it is expressly guaranteed in the fourth clause of the fourth section above quoted. Your decision denying a hearing is overruled, and the same should be ordered. The surveyor general is created by law the tribunal before whom evidence as to the character of the land should be submitted. The evidence in the case should be transmitted to that officer. The parties should be duly notified, and for the purpose of avoiding delay and expense, the same evidence may be received, should both claimants agree thereto, and upon its receipt from the surveyor general, with his opinion thereon, you should determine the case upon its merits. Should it be ascertained that the tract is not swampy in character, Wallace should be allowed to file for the same; but should it be found that the land was of the character granted by the act of 1850, it should be approved to the State as such. The papers transmitted with your letter of September 4, 1877, are herewith returned, Very respectfully, The COMMISSIONER OF THE GENERAL LAND-Office. C. SCHURZ, Secretary. DALLAS vs. WHITE. An alien may purchase land of the government and hold it until office found, under the act of July 23, 1866, unless expressly prohibited. By the treaty of Gaudaloupe-Hidalgo, the Government of the United States is bound to protect Mexican citizens residing within the United States in the full enjoyment of their property. By property is meant, as applied to lands, all titles, perfect and imperfect, and rights thereto, which are executory as well as executed. It is sufficient under said act if the lands claimed are used for the purposes for which they are best adapted, without a fence or inclosure thereof. DEPARTMENT OF THE INTERIOR, SIR: I have considered the case of Alexander Grant Dallas vs. Carl E. White et al., pre-emption claimants, involving the right of Mr. Dallas to purchase, under the seventh section of the act of July 23, 1866, certain tracts in township 16 N., 16 W., and 16 N., 17 W., M. D. M., San Francisco, Cal., on appeal from your decision of April 10, 1877, by the pre-emption claimants. The record shows that Dallas, by his attorney, A. W. McPherson, filed declaratory statement 63, July 25, 1873, under said act, for the * (description of tracts). The land in contest is claimed to be part of a Mexican grant alleged to have been made by Governor Manuel Micheltorena to William A. Richardson, on or about October 30, 1844, of a tract of land "north of the Russian establishments in the direction of Cape Mendocino," and of which a survey was subsequently made in accordance with the data on file in the office of the United States Surveyor General, as follows, to wit: "Which tract of land is situate in the present county of Mendocino, and is described as follows, viz: Bounded on the west by the ocean, on the north by the Rio Grande, on the south by a parallel 38° 48′ north latitude, on the east by a line commencing from a point two leagues east of the point where said southern boundary line crosses high-water mark, and thence running to the southern shore of said Rio Grande, two leagues east from said ocean, said tract comprising twenty square leagues." In 1855 the board of California land commissioners confirmed the grant "in the county of Mendocino, embracing twenty square leagues, to be hereafter located according to law, on the borders of the Pacific and Rio Grande between latitudes 30° 18' and 38° 48′ north." In June, 1866, the United States district court for the northern district of California reversed the decree of the land commissioners and rejected the claim of Richardson. He appealed to the Supreme Court of the United States, but failing to enter his appeal, it was finally docketed and dismissed by that court November 22, 1872. In his decision of March 9, 1875, in the case of Taylor et al. vs. The State of California, Hon. B. R. Cowen, Acting Secretary of this department, held that to be the date of the rejection of the grant. The land was surveyed in October and November and the township plats were filed in the local office in November, 1867. They were withdrawn by the surveyor general December 2, 1867, and were refiled January 24, 1873. The seventh section of the act of July 23, 1866, provides "that where persons in good faith and for a valuable consideration have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same according to the lines of their original purchase, and where no adverse right or title (except of the United States) exists, such purchaser may purchase the same after having such land surveyed under existing laws at the minimum price established by law, upon first making proof of the facts required in this section, under regulations to be provided by the Commissioner of the General Land Office; provided that the provisions of this section shall not be applicable to the city and county of San Francisco; provided that the right to purchase herein given shall not extend to lands containing mines of gold, silver, copper, or cinnabar.' * * * Section 8 of the act provides "that nothing in this act shall be construed so as in any manner to interfere with the right of bona fide pre-emption claimants." The statute, therefore, imposes upon Dallas, before his right of purchase can be admitted, proof that he purchased the land in question in good faith, for a valuable consideration, from the Mexican grantee or his assigns; that the grant was subsequently rejected; that he has used, improved, and continued in the actual possession of the lands claimed; that no valid adverse right or title exists (except in the United States); that the lands do not contain the mines named, and are not within the city and county of San Francisco. Counsel for the "settlers" claim that Dallas, though resident in California at the date of his purchase, was not a citizen of the United States, nor had declared his intention to become such, but was a subject of Great Britain (which is admitted), and that he is not, therefore, authorized to make said purchase under said seventh section, the provisions of which, it is alleged, apply only to citizens. The law seems well settled in respect to the right of an alien to purchase land in the United States. By the common law, he may take land by purchase but not by descent (3 Peters, 126; 6, 162; 4 Wheaton, 453; 3, 594; 11, 332), and his title is not divested until office found, or by some act of the State to acquire possession (7 Cranch, 603-621; 20 How., 8; 2 Cal., 558; 5, 373); and until then he has complete dominion over the estate (13 Pick., 523; 18 Cal., 217; 13 Wend., 546). The constitution of the State of California, wherein the lands in question are located, provides that "foreigners who are or who may hereafter become bona fide residents of this State shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property as native-born citizens." An act of the legislature of that State (April 19, 1856) provided that "aliens shall hereafter inherit and hold by inheritance real and personal estate in as full a manner as though they were native-born citizens of this or the United States." In the case of People vs. Rogers (13 Cal., 160), the supreme court of that State held that this statute was not inconsistent with the constitutional enactments, saying, "the alien is secured by the constitution in this one privilege, but may be secured by the legislature in as many more as it choose to give, provided there is no conflict with any constitutional restriction upon its power, of which this is not one." Following this decision, the civil code of the State, adopted March 21, 1872, provided that "any person, whether citizen or alien, may take and hold property, real or personal, in this State." This broad provision would seem to make the property rights of aliens and citizens in that State co-extensive. I am of opinion, also, that under the laws of the United States an alien may purchase land of the government, and hold it until office found, unless expressly prohibited. The pre-emption, homestead, and mining laws, limit this right to citizens or those who have declared their intention to become such, but the act of July 23, 1866, makes no limitation; it authorizes "persons" without other description, to make the purchase named therein, and I do not think it competent to import words into the act for the purpose of giving it a more restricted meaning than the words used by the lawmakers evidently signify; and that is that whoever complies with the conditions of the act shall be entitled to its benefits. To confine it to citizens, would, I think, narrow its provisions beyond its intent. It seems rather in pari materia, with the treaty of Guadaloupe Hidalgo with Mexico, ratified March 10, 1848, and with the act of March 3, 1851, for the settlement of private land claims in California, growing out of that treaty, neither of which restricted property rights to citizens of the United States. I am of the opinion, therefore, that Dallas, if otherwise qualified, may make the purchase, and his right so to do accords with the practice of your office, which permi's an alien to purchase public land at private entry, pursuant to the opinion of Mr. Attorney-General Cushing (8 Op., 351). Objection is also made that, as the alleged Mexican grant to Richardson has been rejected by the United States district court, because founded upon fraud and forgery, it was a mere claim and not a grant within the meaning of said seventh section, and, therefore, there was no grantee from whom or from whose assigns Dallas could pur chase. By the treaty with Mexico the government of the United States pledged itself that Mexican subjects then established in territories previously belonging to Mexico should be free to retain the property they then possessed, or to dispose of the same as they saw fit; that property of any kind should be inviolably respected, and that Mexican subjects who in said territories should not preserve the character of Mexican citizens, should be maintained and protected in the free enjoyment of their liberty and property, and that the government of the United States should pass and enforce such laws as the nature of the subject should require. By the term "property," as used in the treaty, and as applied to lands, all titles are embraced, perfect or imperfect, and rights thereto, which are executory as well as executed, and in this respect the new government took the place of that which had passed away (Hornsby vs. United States, 10 Wall., 242). The "act to ascertain and settle private land claims in California," of March 3, 1851, provided only for confirming and patenting valid claims, and making invalid ones part of the public domain. It was found that Mexicans in possession of grants alleged to be valid, had oftentimes sold them to persons in good faith, who supposed them to be valid and the title perfect, but which, on investigation, proved otherwise. To relieve such persons Congress passed the act of July 23, 1866. This has been repeatedly held to be a remedial act, and is therefore to be so construed as to accomplish the end in view, viz, that of settling and quieting land titles in California. It does not grant to purchasers the land purchased of Mexican grantees, or their assigns, but reaches the equities of the case, and gives them a preference right to purchase, upon the terms on which other public lands are sold, and thus affords specific relief to those who found themselves with a defective instead of a valid title. The proofs show that May 31, 1852, William A. Richardson made a power of attorney in writing to William Parsons Avis, duly signed, sealed, acknowledged, and recorded, authorizing him to "sell, barter, exchange, mortgage, lease, convey, and dispose of" "any lands or other real estate to which I am or may be entitled in the said State of California," "to any person or persons for such price and on such terms as he may deem proper, and good and sufficient deeds or other conveyances or assurances, for me and in my name to give." June 5, 1852, Maria Antonia Richardson, wife of the said William A., made her power of attorney to the said Avis, conferring upon him substantially the same authority. * # * This June 2, 1853, Richardson and his wife, by the said Avis, their attorney in fact, executed to Sherman Peck, of San Francisco, Cal., for the consideration of $25,000, a deed of "all that certain tract, piece, or parcel of land in the county of Mendocino, and being a part of the Albion Ranche, owned" by Richardson, as described in the sectional map from a sworn survey, amounting to 10,520 acres. deed appears to have been duly signed, sealed, acknowledged, and recorded. A certified copy of a deed dated February 14, 1854, is also produced from the records, purporting to have been executed by Sherman Peck to Donald Davidson and Alexander W. McPherson, conveying to them the lands above named, for the consideration of 35, with the name of Geo. T. Upham written thereon as a subscribing witness to the signature of Peck, but the deed is neither signed, sealed, nor acknowledged by Peck. The certificate of a notary public attached, shows that upon the same day said Upham, known to said notary, appeared before him, and, being sworn, said that he knew said Peck who executed said conveyance, that he was present and saw Peck sign, seal, and deliver the same, as and for his act and deed, and that he acknowledged the execution thereof, whereupon he (Upham) became the subscribing witness thereto. Under the laws of the State of California, then in force, this mode of proving the execution of a conveyance of real estate was sufficient to entitle the deed to record. A. W. McPherson, the agent for Dallas, having charge of his papers and business for many years, swears that he had in his possession the original deed from Peck to Davidson and himself for a long while, that it bore the signature of Peck, and that he delivered it to the attorney of Dallas in San Francisco. Hall McAllister swears that he was the attorney of Dallas in San Francisco, that he received two original deeds relative to the Albion Rancho, one from Richardson to Peck and the other from Peck to Davidson and McPherson, conveying over 10,000 acres of said rancho; that he believed the paper on file to be a copy of the latter deed; that he retained possession of said deeds for several years; that it purported to be signed by Peck, and contained the notary's original certificate of acknowledgment thereof, but that he was not acquainted with the signature of Peck, and could not swear to the same; that he examined said deed several times with respect to the chain of title to said rancho and found it complete, so far as said 10,000 acres were con cerned, and that he could not be mistaken as to the fact that said deed contained the proper signature and acknowledgment; that he has made diligent search for the same and cannot find it, but he believes it to have been lost in moving his office and papers. Under the testimony, therefore, of McPherson and McAllister, the notarial certificate of the proof of Peck's signature, by Upham, and the legal presumption of the regularity of its execution, in order to its record, I am of opinion that said deed was signed by Peck; that the copy thereof from the record is proper evidence, and that the omission therefrom of Peck's signature was the clerical mistake of the recorder in recording the same. The loss of a deed, after reasonable diligence to obtain the original, authorizes the admission of secondary evidence and parol proof of its contents. (24 How., 179, Gregg et al. vs. Forsyth; 12 Peters, 1, United States vs. Lamb; 3 Mass., 85, Commonwealth vs. Snell; 7 Peters, 99, Minor vs. Tillotson.) April 19, 1854, Davidson and McPherson made a declaration of trust, duly signed, sealed, acknowledged, and recorded, wherein they declare that the lands named in the deed from Peck to themselves were held for and on account of and in trust for Alexander Grant Dallas, and were to be conveyed to him thereafter upon request, they, in the mean time, receiving the rents and profits thereof for his use; and March 15, 1869, for the consideration of one dollar, they conveyed to him the same lands. These conveyances show a purchase by Dallas of the land in question from the assignee of a Mexican grantee, within the meaning of said seventh section, for a valuable consideration, and, in connection with the facts hereinafter set forth, show that such purchase was made in good faith prior to the rejection of said grant in 1872. Has he used, improved, and continued in the actual possession of the land claimed, according to the lines of his purchase? The testimony is very voluminous (about seven thousand pages), and I shall consider it only in general. It shows that the portion of the Albion grant here in question constituted an extensive and valuable tract of redwood timber, a small part only being agricultural land, and that to subdue this forest and utilize the timber was Dallas's object in its purchase. Directly thereafter, McPherson, his agent, chartered a vessel at San Francisco, which he freighted with machinery, provisions, men, and materials necessary to the business, and sailed to the Albion River. He entered upon and took possession of the lands then occupied solely by one Phillips, Richardson's agent, who pointed out to him the land purchased, and selected a mill site on lot 5, section 28, township 16, range 17 west. He erected a mill, which he afterward enlarged till it had a capacity for sawing 20,000 to 25,000 feet of lumber per day, and cost "from first to last" from $35,000 to $60,000, built wharves, houses, and the necessary appurtenances to such an establishment, and commenced cutting logs wherever on the land he saw fit which was known as and called "the Dallas purchase." He continued thus to operate the business for about a year, when Dallas revoked his agency and leased the mill and lands to other persons. In December, 1857, McPherson again became Dallas's agent, and has so continued to the present time, carrying on the same business. The original mill having been burned, a new one was erected in 1867 (or 1868) at a cost of $40,000, and is now standing. Piers and booms (at a cost of $10,000) were built, roads were constructed wherever the business required, and from seventy-five to one hunded men were on his pay roll. Camps were established on various parts of the land, wherever it best suited his convenience, and changed as necessity required, and the open land along the coast (prior to settler's inclosures) was used for grazing cattle belonging to the mill or its employés. Upon July 23, 1836, the estimated value of Dallas's improvements amounted to $75,000. I think it evident from the whole testimony, that Dallas purchased the land for lumbering purposes, and that all his improvements thereon were intended for and adapted to that end. The felling of trees wherever he or his agent pleased, and the nature of his possession and use of the land, manifests this one object and no other. The counsel for contestants, however, claim that all this fails to show the "actual possession" required by the seventh section of the act. Dallas purchased by a sectionized plat of survey. The lines were ascertainable by the map referred to in the deed from Richardson to Peck, and were substantially well known to all persons in the vicinity, and his deed was of record, giving notice of the extent of his claim and his title. Notwithstanding some timber was cut outside of the lines of his purchase (which was unauthorized), yet I think actual possession of the land inside his lines was held and maintained by its use for the purpose for which it was intended and for which it was adapted. Such occupation depends upon the character and quality of the land and the object of its possession. Actual possession of arable land may consist in its cultivation, while that of timber land may consist in felling trees and general lumbering operations. In Hyatt vs. Smith my predecessor decided, December 19, 1872, that "when land is of a character similar to that in controversy, suited only to grazing cattle, I think the requirements of the act (July 23, 1866,) are complied with when the claimant in good faith used it for that purpose, and improved it according to the necessities of his occupation. * Nor is fencing or inclosure of the land in every instance, in my opinion, necessary in order to perfect a claim under the act. Smith appears to have occupied the land in controversy for the purposes for which it was best adapted, in the usual and ordinary way. This is, in my opinion, a sufficient compliance with the requirements of the act of 1866." Actual possession means a subjection to the will and dominion of the claimants, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property. (16 Cal., 574, Coryell vs. Cain.) Nor is it necessary that there should be any fence or inclosure of the land. (10 Peters, 412, Ellicott vs. Pearl; 42 Cal., 157, Gray vs. Collins; 44 Cal., 252, McCreary vs. Everding; 2 Dana's Kent, 275, Moss vs. Scott.) If a party with title enters upon lands his possession is coextensive with his title if there be no adverse possession. (4 Mass., 326, Prescott vs. Nevens; 6 Peters, 61, Miller's heirs rs. McIntyre; 6 Peters, 125, Sicard vs. Davis.) Applying these principles to the facts elicited by the testimony, I am of opinion that by his continuous use and possession of the land in question since 1854, manifested by his cutting timber thereon whenever and wherever he chose (with but a single objection), and by his acts of control and authority over it, Dallas has extended his rights over the whole tract, and maintained the actual possession required by the act, and is authorized to make the purchase, unless there are valid adverse rights or titles thereto, except of the United States, and I award to him all the tracts he claims, which were in his use and occupation November 22, 1872 (the date of the rejection of the grant), and were not in the adverse possession of others. * * * * * [Then follows a discussion of the rights of the respective pre-emption claimants.] Your decision of April 10, 1877, is modified as hereinbefore set forth. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. HEIRS OF T. WALLACE MORE. C. SCHURZ, Secretary. Where a Mexican grant is of quantity within larger exterior boundaries, and the claimant has selected and had patented to him the quantity granted and confirmed, he will not be allowed to purchase, under the seventh section of the act of July 23, 1866, any of the lands not selected within the exterior boundaries of the grant. Where grants were made not of quantity but by specific boundaries, and the claimant has occupied lands (through some mistake or misapprehension) not included within such specific boundaries, he may purchase under the seventh section of said act the lands so occupied, which were excluded from the grant on final survey, if no adverse claim thereto exists except of the United States. DEPARTMENT OF THE INTERIOR, SIR: I have considered the application of the heirs of T. Wallace More to purchase, under section 7 of an act of Congress, approved July 23, 1866, entitled "An act to quiet land titles in California,” certain lands in township 3 N., 18 W.; 4 N., 18 W.; 3 N., 19 W.; 4 N., 19 W.; 3 N., 20 W.; 4 N., 20 W.; 3 N., 21 W.; and 4 N., 21 W., S. B. M., Los Angeles land district, California, on appeal from your decision of July 18, 1877. The facts of this case are substantially as follows, viz: On May 23, 1829, Carlos Antonio Carrillo petitioned the Mexican Government for a grant of the "place called Sespe," describing the tract applied for as a valley extending from the arroyo of "Pirue" to that of "Mupu," an estimated distance of about four and one-half leagues, the width of the valley being about three-quarters of a league in the clear. Petitioner also stated that a large portion of the valley was an arenal (the wide sandy bed of the Santa Clara River which flowed through the valley), and worthless; the only land of value being that lying between the edges of said arenal and the hills on each side. After the usual proceedings had been taken on the petition by the proper authorities, a grant was issued to the petitioner on November 29, 1833, by José Figueroa, superior political chief, &c., "for the Territory of Alta California, for the land known by the name of Sespe," "bounding with the missions of San Fernando and San Buenaventura," and limited in extent as follows: "The land of which donation is made is of the extent of two square leagues (dos sitios de granada mayor), a little more or less, as shown by the map (diseno) in the expediente. The judge who may give possession will cause the same to be measured in accordance with the ordinances for the marking boundaries, the surplus that may result to remain for the use of the nation." This grant was approved by the Territorial deputation on May 17, 1834, and juridical possession thereof given to Carrillo, by the proper officer, on December 16, 1842. It appears that, in making the survey, the officer measured but two lines, one for the length of the tract and one for the width. The line for the length was measured from |