approved said survey, from which objectors appealed. It is now admitted that all parties, holding interest in and claiming title to the lands embraced in both the Washington and Duval surveys, are parties to this appeal and object to the approval of said re-survey.

As all parties in interest, who have any right to complain, are now seeking to have the survey made by Duval set aside, and the interest of the government being better protected by disapproval than approval of said survey, inasmuch as it covers lands that have been disposed of by the government, this alone would seem to be a sufficient reason for setting aside said survey.

But independent of this, a careful review of a large mass of testimony, giving a full and complete history of this case, fails to show any good reason why the application for this re-survey should have been granted.

A prior application by Charles D. Taylor had been made for a resurvey of this grant, which was refused by Com missioner Williamson, by letter of December 5, 1877, in which he says:

"Said claim was originally surveyed in 1792 by the Spanish surveyor, and was surveyed by U. S. Deputy Henry Washington in 1834 and 1835, and the land now claimed by the heirs of Dewees on the south of the grant was surveyed as public land, and has been nearly all disposed of by the government, and no objection to the survey of 1834 and 1835 appears to have been made for over forty years.

Although Washington's survey of the grant does not appear to conform exactly with the description contained in the grant, or with the survey of Don Eastlake in 1792, it may be impossible to determine at this time exactly what was granted, owing to the lapse of time and consequent changes in the soil and the marsh on St. John's river, which bounds the claim on the north."

The boundaries defined by the survey of Washington should therefore be definitely settled as the boundaries of said grant. Such boundaries must have been well known to the grant claimants at the time of such survey, and the survey of the land south of the grant limits, as defined by Washington as public land, and settlement thereon by others, would estop the claimants and those holding under them from now asserting title thereto.

The land lying on the St. John's river, which forms the northern boundary of this grant and includes the site of the town of Mayport, was by the survey of Washington conceded by the government to form a part of the Dewees grant, and from that day until the recent survey of Duval, the title of the grantees and those holding under them to all the land lying on the St. John's river, within the boundaries as surveyed by Washington, seems never to have been questioned.

The decision of your office is therefore reversed, and the re-survey of Deputy Surveyor Duval is disapproved and will be set aside.

As there appears no reason why the boundaries of this grant, as fixed by the Washington survey, should be disturbed, especially at this late day, you will direct that no further re-survey of the grant be made under the application of Eli Haworth.

SWAMP LAND-ADVERSE CLAIM.

THE STATE of Oregon.

Suit to vacate patent, issued for a pre-emption claim on land now claimed by the State as swamp, will not be advised, as it appears that the State has by act of legislature waived its claim thereto.

Acting Secretary Muldrow to Commissioner Sparks, May 29, 1886.

I am in receipt of a letter from John Mullan, Esq., agent for the State of Oregon, requesting that this Department recommend to the Attorney General that suit be instituted in the proper court to vacate the patent to a certain tract of land, therein referred to.

His letter is accompanied by a letter from the governor of Oregon, with which he transmits, for my consideration, a statement from the register of the Lakeview land office, with accompanying affidavits, showing that patent for the SW. of SW. and lot 7, section 9, lots 1 and 3, section 17, and lots 11, 12, and 13 of section 16, township 40 S., range 8 E., Willamette Meridian, Oregon, was issued January 7, 1875, to Dennis Small. It is alleged in this application that said lands belong to the State of Oregon, and that patent was obtained by fraud and perjury.

The affidavits submitted with said application show that all of said land, except fourteen acres, is subject to overflow from March to July, caused by excess of water from rains and melting snow on the surrounding mountains; the level nature of the country, and the absence of nat. ural drainage, which renders it unfit for the cultivation of the staple crops without reclamation by drainage. That the season for planting in this locality is from March 15 to May 15, and that Small has never appropriated said swamp land to agricultural purposes, but has used the same for the wild or swamp grass it yields in a state of nature, said grass being available for hay and grazing purposes after the subsidence of the annual overflow in the fall of the year.

There is no allegation or proof offered that Small does not reside on the land, or that the pre-emption law was not in every other way complied with at date of entry, the only question being the character of the land entered.

Whatever claim or right the State may have to such lands as were swamp and overflowed at the date of the act, an entry upon such land by a pre-emptor is not of itself evidence of fraud.

It is purely a question of title, and if the land was of the character contemplated by the act at the date of the grant, the State can recover in the courts, without the aid of the United States, provided the char acter of the land had not been determined by the Secretary of the Interior not to be swamp. R. R. Co. v. Smith, 9 Wall., 95; French v. Fyan et al., 3 Otto, 169.

Independent of this view, this application should be rejected upon the authority of the act of the Legislative Assembly of Oregon, approved February 25, 1885, which reciting that

"Whereas many persons have completed settlement under the preemption and homestead laws of the United States, along the tide waters of the State, which lands may belong to the State of Oregon, under the provisions of the act of Congress approved March 12, 1860,"

Enacts:

"That all the rights and title of the State of Oregon to the swamp and overflowed lands of this State, and claimed by persons who have completed settlement thereon under the provisions of the pre-emption or homestead laws of the United States, or claimed by their heirs or assigns, be and is hereby granted and conferred to such claimants respectively."

Said application is therefore refused.

ACCOUNTS-AUTHORITY OF THE COMMISSIONER.

MCCLELLAN & BRIDGES.

The discretion of the Commissioner of the General Land Office to adopt such means, in the examination of accounts, as may seem to him best calculated to ascertain the justness and accuracy of the same, will not be controlled by the Department unless there is a clear showing that such power has been improperly exercised. The case of G. W. Baker et al, cited and distinguished.

Secretary Lamar to Commissioner Sparks, June 4, 1886.

I have before me the appeal of McClellan and Bridges, filed by their attorney, Phil. B. Thompson, Jr., from the decision of your office of May 8, 1886, in the matter of the surveying account of McClellan and Bridges, U. S. deputy surveyors, in Nevada, which is now pending in your office, for work performed under their contract No. 174, dated November 14, 1884.

Mr. Thompson made application for the adjustment of said account and certification for payment. You declined to certify said account pending an examination in the field to satisfy yourself that the work had been performed according to contract, from which decision McClel lan and Bridges, by their attorney, appealed, insisting that the account having been returned with the approval of the surveyor-general, the Commissioner of the General Land Office has only the power to audit and certify the balance to the Comptroller for his decision thereon. The substance of the appeal is that, if the account has been approved by the surveyor-general, and there is no suggestion of fraud upon the face of the surveyor-general's return, it is the duty of the Commissioner to audit and certify the account without further investigation.

While in the case of G. W. Baker et al. (4 L. D., 451), it was held that, "Where the evidence required by the regular practice is furnished,

with no evidence to rebut it, an arbitrary rejection should not be exercised," it was not intended by that expression to limit the power or discretion of the Commissioner to adopt such methods in the examination of accounts as may seem to him best calculated to ascertain the justness and accuracy of the same. This was distinctly ruled in the case of George K. Bradford (4 L. D., 269); and again in the case of G. W. Baker et al., in which case it was further held that, "if you have just reason to believe that the work for which the accounts are rendered has not been fully and faithfully performed, it is not only your right, but your duty to satisfy yourself of this fact by such means as you may adopt before finally adjusting them."

If these accounts have been approved and returned according to the general rule governing such cases, these contractors are entitled to have their accounts audited and certified, unless you have reason to believe that the work has not been faithfully performed; in which event you may satisfy yourself by an examination in the field, as you have directed in this case; and your discretion in such matters will not be controlled, unless there is a clear and satisfactory showing of an abuse of it.

Your decision is affirmed.

PRACTICE-APPEAL.

STEVENS v. ROBINSON.

Failure to file specification of errors within the time required by the rules of practice held a waiver of the right of appeal.

Acting Secretary Muldrow to Commissioner Sparks, June 5, 1886.

I have before me the case of Frank L. Stevens v. Alfred B. Robinson, involving the SE. of Sec. 22, T. 93, R. 60, Yankton, Dakota, on appeal by Stevens from your office decision of December 1, 1884, dismissing his contest.

It appears from the record that contestant's attorneys in this city were notified of the decision on December 1, 1884. Under rules 86 and 97, appeal therefrom should have been filed on or before February 1, 1885; but in fact notice of appeal was not filed until February 5, in the local office. Under rule 88, a specification of errors is required to be filed "within the time allowed for giving notice of appeal;" but in this case the specification of errors was not filed until on or after May 16. This was about a hundred days after the time at which, as appears by the record, contestant's local attorney had actual notice of said decision.

Counsel for contestee has filed a motion for the dismissal of the appeal on the ground that the specification of errors was not filed as required by Rule 88.

The aforesaid appeal is expressed to be "from the decision of the Hon. Commissioner of the General Land Office of date December 1, 1884, letter C, affirming the decision of the local office and dismissing said contest, and from the whole thereof." Supposing the appeal itself to have been filed in time, manifestly it contained no such specification of errors as required, namely, which "shall clearly and concisely designate the errors" complained of. For this reason, under the ruling in Pederson v. Johannessen (4 L. D., 343), the appeal was fatally defective. An assignment of errors was filed about May 22, 1885, but under Rule 90 these cannot be considered in the face of appellee's motion; the right of appeal must be treated as waived, and the case considered closed by the Commissioner's decision.

Counsel for appellant urge that Rule 90 is to be read in connection with Rule 82 (Series of December 1880), and that an appeal without assignment of errors is good unless the Commissioner notifies the party that it is defective. This position, I think, is untenable. Rule 82 was designed to prevent the transmittal to the Secretary of an appeal which the Commissioner considered defective; but Rule 90 binds both the Commissioner and the Secretary, and, if overlooked by the former, is none the less imperative upon the latter, at least in the presence of a motion to dismiss by the adverse party.

For the foregoing reasons said appeal is dismissed.

HOMESTEAD CONTEST-CHANGE OF RESIDENCE.

JAMES v. HALL ET AL.

On the last day of the six months following entry, affidavit of contest was filed, and the hearing set for a day two months later. No objection thereto being made, or appeal taken, the entry is canceled, the evidence showing a change of residence for more than six months.

Acting Secretary Muldrow to Commissioner Sparks, June 3, 1886.

I have considered the case of Joseph H. James v. Andrew H. Hall, Mathias A. Becker and Christopher Mizener, as presented by the appeal of Hall from the decision of your office, dated December 13, 1884, allowing James the preference right of entry of Lots 1 and 2 and the SW. of the SE. of Sec. 22, and Lot 2 of Sec. 27, T. 104, R. 66, Mitchell land district, Dakota Territory.

The record shows that said Becker made homestead entry No. 24,897 of said tracts on April 13, 1883, and on October 13, same year, Mizener initiated a contest against the same, alleging abandonment and "also that said claimant has relinquished his right and title to the same," and at the same time made application to enter said tracts.

Due notice was given and December 17, 1883, was set for the hear ing, on which day the contestant appeared and offered testimony the defendant not appearing.

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