It is evident that the Department did not intend by this expression to hold that the protestants in this case could not have come before the Department on appeal, if the decision of the Commissioner had been adverse to them, but merely to hold that the Department had no jurisdiction to pass upon the rights of adverse claimants as to the right of possession, because, quoting from the departmental decision in the case of The Bodie Tunnel, he says:

Numerous afhdavits, herein before referred to, show that no work has been performed either by Dulaney or by any one in his behalf upon the claim embraced in survey No. 204; that whatever expenditures have been made by Dulaney were upon workings upon ground lying south of the Saco claim, but not upon the premises for which patent is sought. The entry was properly canceled, because it included that portion of the lode found by the court to be the property of the Saco claimants, and because the lode is not within the original location. If Dulaney is still in possession of the lode found to be his, he can relocate the same under the provisions of the statute and renew his application, when all parties claiming adversely to him will have an opportunity to assert their claim in the proper tribunal.

The Secretary did not pass upon the adverse claims as to priority and right of possession, but by canceling the entry, he placed it in the power of any adverse claimant to assert his claim, if it should be relocated under the terms of the statute.

Therefore a protestant who alleges an interest adverse to a mining claimant, and further alleges a failure on the part of said claimant to comply with the mining laws, is not a mere friend of the court, but a protestant, acting in his own interest, and asking the judgment of the Department upon the question raised by his protest, that the mineral claimant may be required to comply with the law, and thus enable the protestant to assert his claim in the proper tribunal. A protestant of this character is entitled to the right of appeal.

You will therefore certify the record to the Department, that the issues made by said protest may be considered.

SCHOOL LANDS-ACT OF MAY 20, 1826.

STATE OF LOUISIANA.

Under the act of May 20, 1826, the State is not entitled to make selections on account of school sections in place, but covered by private grants.

"Radiating" sections, and other irregular surveys, however are contemplated by said act, and selections therefor, from lands legally liable thereto, may be allowed. The State may select double minimum lands in lieu of double minimum lands lost, whether in place, or by reason of the fractional character of the township; but double minimum land may not be taken in lieu of single minimum loss.

Secretary Vilas to Commissioner Stockslager, January 25, 1889.

I have considered the appeal of the State of Louisiana from your office decision of October 13, 1887, rejecting a list of school indemnity selections made by that State under the act of May 20, 1826.

The list is large, covering 22,695.41 acres in townships 1, 2 and 3, N., R. 2 W., and in township 2 N., R. 3 W., New Orleans land district, and the selections are all based upon alleged deficiencies of school lands such as are contemplated in said act, existing in forty-four townships lying in the southeastern district of Louisiana, west of the Mississippi; the cause of deficiency alleged, except in a few instances, being that there existed in the townships named "no regular section sixteen." The exceptious above referred to are a few tracts alleged to have been regular but covered by private grant, and a few townships regular in survey but fractional to such an extent that section sixteen was wanting in whole or in part.

You reject the whole list, giving the following reasons:

The deficiencies are caused by the sixteenth section being "radiating sections," not in place according to the regular method of surveying and platting townships and numbering sections therein-or by the same being covered in whole or in part by private claims. Many of the bases of selections are within the granted limits of the New Orleans Pacific R. R., but the State has not lost double minimum lauds in the townships because the sixteenth sections are either not such sections as are meant by the grant of the sixteenth section for schools, or were covered by private grants at the date of the railroad grant, and therefore, were not enhanced in price by the act making the latter. (State of California v. Smith, 5 L. D., 543; ex parte State of Minnesota, 14 C. L. O., 118).

At the time of the Louisiana purchase, April 30, 1803, the system of land surveys in that territory was not the system then and now used for subdividing the public lands, but was the French system of which the arpen containing a little more than three-fourths of an acre was the unit of measurement. Most of the lands settled upon and cultivated fronted upon rivers, bayous and other water courses.

Upon taking possession of the territory Congress enacted laws confirming to the inhabitants their titles to lands held under French or Spanish laws, and in the same act March 27, 1804 (2 Stat., 303), provided that the President might direct the remainder of the lands to be "surveyed and divided, as nearly as the nature of the country will admit, in the same manner and under the same regulations as is provided by law, in relation to the lands of the United States northwest of the river Ohio."

By reason of a large portion of the land in said State being an alluvial formation, the lands high enough for residence as being reasonably free from overflow, lie next to the water courses, and to facilitate the improvement of the "back lands", Congress by act of February 15, 1811 (2 Stat., 617), gave to the owners of river frontage a preference right to purchase an equal quantity of such "back lands" contiguous to their original claims, and authorized a system of surveys into subdivisions irregular as to size and shape, in order that an equitable division of them might be made among the owners of river fronts.

By act of April 21, 1806 (2 Stat., 391) it was provided that section "number sixteen" should be reserved in each township for the support. of schools within the same.

On March 3, 1811 (2 Stat., 662), Congress enacted that in surveying and dividing such of the public lands of said Territory "as are adjacent to any river, lake, creek, bayou, or water course," the deputy surveyor "should vary the mode heretofore prescribed by law, so far as relates to the contents of the tracts, and to the angles and boundary lines, and to lay out the same in tracts as far as practicable, of fifty-eight poles in front and four hundred and sixty-five poles in depth, of such shape and bounded by such lines as the nature of the country will render practicable and most convenient.

The sections called "1adiating" in your said decision, are doubtless made in accordance with the above act.

No part of these irregular and radiating surveys was reserved from sale for school purposes in the acts providing for sale of such lands, and it is evident that Congress did not consider such irregular sub-di. visions as included in the reservation and grant for school purposes.

On May 20, 1826, (4 Stat., 179) an act was passed by Congress for the purpose of equalizing or equitably adjusting this; which act is as follows:

:

That to make provision for the support of schools, in all townships or fractional townships, for which no land has been heretofore appropriated for that use in those States in which section number sixteen, or other land equivalent thereto, is by law directed to be reserved for the support of schools, in each township, there shall be reserved and appropriated, for the use of schools, in each entire township, or fractional township, for which no land has been heretofore appropriated or granted for that purpose, the following quantities of land, to wit: for each township or fractional township containing a greater quantity of land than three-quarters of an entire township, one section; for a fractional township containing a greater quantity of land than onehalf and not more than three-quarters of a township, three-quarters of a section; for a fractional township containing a greater quantity of land than one-quarter and not more than half a township, one-half section; and for a fractional township containing a greater quantity of land than one entire section and not more than a quarter of a township, one-quarter section of land.

Section 2. And be it further enacted, That the aforesaid tracts of land shall be selected by the Secretary of the Treasury, out of any unappropriated public land within the land district where the township for which any tract is selected may be situated; and when so selected, shall be held by the same tenure, and upon the same terms, for the support of schools, in such township, as section number sixteen is, or may be held, in the State where such township shall be situated.

This act was an original grant and not at all an indemnity act in such a sense as to make it necessary that there should actually be any loss of section number sixteen in place, in order to give the State a right to select, and it applied equally to all the States which were prior to May 20, 1826, admitted to the Union, and in which section sixteen or land equivalent thereto had been reserved for the support of schools and there was no further legislation necessary to carry it into effect as sec tion two of the act provided that the officers of the government should make the selection.

States which have been admitted into the Union since the passage of

said act acquire their school and indemnity school lands, by other and different statutes, such as Congress at the time deemed best, but in most of the indemnity acts reference is made to the act of May 20, 1826, and the amount of land to be selected for loss of section sixteen in fractional townships is fixed the same in quantity as provided in said act. On account of the peculiarity of the surveys made in many parts of Louisiana and in the act of March 3, 1811, that State became entitled to more land perhaps than any other under said act of 1826.

That the original construction of the act required that the selections should be made by the government and not by the State appears from various circulars issued to carry said act into effect.

The first of these was dated May 24, 1826, and was directed to the local officers in States affected by said act, calling their attention to the said act of May 20th, and ordered them to make such selections before the public sales advertised should come off, and make report of their doings. (See Public Lands, Laws, Instructions and Opinions, Vol. 2, p. 395).

On October 5, 1826 [9], (Public Lands, id., 420) a second circular was issued to the local officers at Opelousas and other points in Louisiana ; and in this they were directed to select and reserve lands under said act in lieu of section sixteen, which might be covered by a private claim grant or donation, as well as where section sixteen, had been omitted by reason of the irregular character of the surveys, and directed said officers to distinguish in their reports, 1st., The lands selected because of irregular surveys; 2nd., Those selected in townships where section sixteen, has been covered by private claims; 3rd., Those selected in those townships where sixteen, contains less than six hundred and forty acres of land.

On August 30, 1832, (2, id., 466), another circular was sent out to the local officers in States affected by the act of May 20, 1826, and in this it was said "The Secretary of the Treasury directs that you bear in mind that no selections are contemplated to be made in those cases where section sixteen, is entirely or partially interfered with by private confirmed claims or donations," and in the same circular certain rules are promulgated for the government of the local officers in making school selections under the said act, among which are the following:-

First, Where lands have not been offered at public sale, the selections are to be made prior to the sale. The school committees, trustees or other authority having official cognizance over the school lands, may be permitted to recommend the selections. To enable them to do so, it may be proper that you give public notice to those authorities, that, on or prior to a certain day, which you will appoint, recommendations will be received from them of school selections for certain townships, which townships it will be necessary specially to designate in your notice.

If the school authorities should fail to make any recommendations, you will report your own selections.

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Second, The quantity of school land selected for a township is to be located within the limits of such township, provided a sufficient quantity of good land exists therein.

Third, Where a portion of section sixteen, exists in a township, the balance of the quantity to which the township is entitled under the act of May 20, 1826, is to be selected.

Further rules are given, and in rule six, they were directed to note, in pencil, on the tract books and township plat the lands recommended and that as soon as notified of the approval thereof they should make such entries in ink..

Again on December 16, 1832, the local officers in Opelousas and other points in Lousiana, were directed by circular (id., 472,) in regard to making such selections in townships surveyed in radiating sections or lots under act of March 3, 1811.

The selections in the list presented by the State are alleged in the caption to be of lands to which the State is entitled under the act of May 20, 1826. In said list I find however, a few marked as based upon section sixteen in place but covered by a private grant. In the latter cases I am of the opinion that the selections can not be allowed as it appears that from the passage of the law it has been construed that it was not contemplated in said act to permit selections on account of sections sixteen in place, but covered by private grants. Radiating sections and other irregular surveys, however, are contemplated and selections therefor should be allowed as provided in said act in all cases wherein it appears from the records in your office that the same has not heretofore been done, provided always that they be made out of lands legally liable to be selected for such purpose.

The selections made by the State in the case at bar, appear to be all within the granted limits of the New Orleans Pacific R. R., and more than half of the forty-four townships on account of which said selections are based, are also within said limits and in your decision you first conclude that the radiating sections not being in place according to the regular method of surveying and platting townships are not such sections as are meant by the grant of the sixteenth section.

In this conclusion I cannot concur. It has been the uniform prac tice to allow the selection of double minimum lands in lieu of double minimum lands lost, whether in place or by reason of the townships being so fractional as to leave out the school sections in whole or in part. The selections, therefore, should be allowed in so far as they are made on account of townships also within the double minimum limits, but all of such selections made on account of townships outside of such limits must, under the rule in California r. Smith (5 L.D., 543), be rejected and the State must select such lands outside of the double minimum limits. Your said decision is accordingly modified to correspond with the above.