said coal land entry, which reconveyance must be accompanied by satisfactory proof of non-alienation by him covering the date thereof, said entry be canceled as prayed, and patent issue for the land included in said amended entry.

PROCEEDINGS ON SPECIAL AGENT'S REPORT.

WILLIS E. SIMPSON ET AL.

There is no necessity for a hearing on a special agent's report where the facts as shown thereby are not controverted; but if the entry in such a case is held for cancellation, the claimant, or his assignee, is entitled to be heard before the Department on the record as made.

Secretary Noble to Commissioner Stockslager, March 9, 1889.

This is an application filed by the grantee and mortgagee of the entryman in the above named case, praying for the issuance of a writ of certiorari, commanding the Honorable Commissioner of the General Land Office to certify the record in the above stated case on appeal from the decision of your office, holding the cash entry of Willis E. Simpson for cancellation.

From this application it appears, that the cash entry of Willis E. Simpson was canceled by your office upon the report of a special agent, charging "that said entry was falsely made and for speculative purposes," from which action an appeal was taken, and which was transmitted to the Department, but was returned to your office under the General Instructions of July 6, 1886 (5 L. D., 149), with other cases where entries had been held for cancellation upon the report of special agents, and where appeals had been allowed therefrom. In the instructions above referred to, the Department directed that where entries had been held for cancellation upon the report of a special agent, and the parties notified that they will be allowed the right of appeal, you were directed to order hearings, in accordance with the amended circular of May 24, 1886, instead of transmitting the cases on appeal to the Department.

But the applicant in this case states, that the appeal does not controvert any facts in the report of the special agent against said entry, or any other fact of record; from which it may reasonably be inferred that he elects to stand upon the record as made, and admits the facts stated in the special agent's report. In such a case there would be no necessity for a hearing, and the entryman or his assignee would be entitled to a decision of the Department upon the record as made.

The application is granted, and you are hereby directed to transmit the papers to the Department.

RAILROAD GRANT-INDEMNITY SELECTION.

ATLANTIC AND PACIFIC R. R. Co.

Indemnity selections of unsurveyed lands can not be approved.

Secretary Vilas to Commissioner Stockslager, February 25, 1889.

I have considered the case of the Atlantic and Pacific R. R. Co., on appeal from your office decision of October 3, 1887, rejecting the selection of said railroad company for 10,240 acres of land as indemnity, in Las Cruces, New Mexico district.

The said selections are contained in a list presented by J. A. Williamson, land commissioner of said railroad and is alleged to be 2560 acres in sections 3, 5, 7, 9, 19, and 31, in T. 2, R. 3, and odd numbered sections 13 to 35, inclusive in T. 1, R. 4, and that the basis of these selections is a loss of 10,240 acres within the granted limits on account of a grant to the town of Caboletta in township 12 N., R. 7 W., Territory of New Mexico.

Said selections were rejected by the local officers for the reason that they are unsurveyed and can not be specifically listed as indemnity it being impossible to determine what lands are mineral and set apart by the government, what definite tracts are claimed by actual settlers prior to the grant to the railroad company, nor can the boundaries of private land grants be sufficiently determined to enable them to correctly certify such selections.

A second reason assigned by the local officers was that patents can not be granted to unsurveyed lands and as the certificate of the regis ter and receiver is the basis of a patent in such cases, such action on the part of the local officers would be ultra vires.

You sustained the decision of the local officers and in this I concur. Your said decision is accordingly affirmed.

SCHOOL INDEMNITY-FRACTIONAL TOWNSHIP.

STATE OF CALIFORNIA.

If the State has received full compensation on account of a fractional township, it will not be allowed to make a further selection therefor on the ground that in the original selection the basis was improperly described as a part of sections sixteen and thirty-six.

This rule is alike applicable whether such selections were made prior to or since the act of March 1, 1877.

Secretary Vilas to Commissioner Stockslager, February 25, 1889.

By letter of April 14, 1888, the State of California transmitted to your office a list of indemnity school selections of the following tracts, to wit: to compensate deficiencies for six hundred and forty

acres in township 39 N., range 17 E., and the following selections, to wit: . . . . . to compensate deficiencies for three hundred and twenty acres in T. 42 N., R. 16 E., Susanville district, California, under the act of February 26, 1859.

You rejected said selections, upon the ground that there was no basis for the same, as selections to compensate deficiencies in said townships had been made and approved to the State prior to the last selection.

It appears that the quantity of land to which the State was entitled, to compensate deficiencies for said fractional townships, had been heretofore certified to the State as indemnity for sections sixteen and thirtysix of said townships, and that the sections named as a basis did not exist. The State, therefore, insists, that, although the State has heretofore received the full quantity of land to which it would be entitled for said townships, yet, as the basis was improperly described, it should now be allowed to select that quantity of land to compensate deficiencies for fractional townships, under the act of February 26, 1859.

The Department, in the case of James Lynch (7 L. D., 580), decided December 29, 1888, held that—

This is a mere technical objection or irregularity, and does not defeat the right of the State's selection, if it is shown that she is entitled to that quantity of land, under the act of February 26, 1859, to compensate deficiencies where sections sixteen and thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional or from any natural cause whatever. Her right to lieu lands in said township did not rest upon any prior appropriation or disposition of either section sixteen or thirty-six, but upon the ground that no such sections existed. Therefore, if it be shown that she had not exhausted her selections as to said township, and the selection is in all other respects proper and legal, it is a valid selection and should not be canceled, because the basis is improperly described as a portion of section thirty-six of said township.

This rule is alike applicable to all cases, whether said selections were made prior to or since the act of March 1, 1877. Your decision is affirmed.

SWAMP GRANT-BOIS BLANC ISLAND.

STATE OF MICHIGAN.

Lands covered by a temporary reservation, for the benefit of the government, at the date of the swamp grant, are not excepted therefrom, but pass thereunder as of the date of the grant, on being relieved from such reservation.

Secretary Vilas to Commissioner Stockslager, February 25, 1889.

I have considered the recommendation contained in the letter of your office of May 19, last, that the Attorney General be requested to institute proceedings to set aside and cancel the patent issued to the State of Michigan for certain swamp lands, being part of old Fort Mackinaw wood reservation on Bois Blanc Island, in said State.

By executive order of November 8, 1827, a certain portion of Bois Blanc Island was reserved from sale for the purpose of supplying fuel for the garrison at Fort Mackinaw.

The land had previously been surveyed, showing a portion of the sub-divisions to be swamp and overflowed lands.

This was the condition of these lands at the date of the act of September 28, 1850 (9 Stat., 519), granting to the State of Michigan the swamp and overflowed lands within its boundaries.

This reservation continued in force until the act of Congress of July 5, 1884, providing for the disposal of all military reservations, which, in the opinion of the President had become useless for military purposes. The second section of this act provided that:

The proceeds of the military reservation lands sold on Bois Blanc Island, near to Fort Mackinaw military reservation, shall be set apart as a separate fund for the improvement of the National Park on the Island of Mackinaw, Michigan, under the direction of the Secretary of War.

This reservation was placed under the control of the Secretary of the Interior July 22, 1884, for disposal under the provisions of said act, and on September 30, 1884, the governor of Michigan transmitted a list of lands within said reservation shown by the survey to be swamp and overflowed, requesting that they be conveyed to the State under its grant.

Said lands being approved and certified to the State, were, upon application of the governor patented to the State March 10, 1885.

There seems to be no question as to the swampy character and condition of these lands. The suit is recommended upon the theory that the grant of September 28, 1850, is a grant of public lands only, and hence it did not embrace lands reserved for any purpose whatever.

The act of September 28, 1850, granted to the State of Arkansas and other States within their respective boundaries, "the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of the act."

The grant is not a grant of public lands only in the sense as defined by the supreme court in the case of Newhall v. Sanger, to wit: of such lands as were then "subject to sale or other disposal under general laws," but a grant of the whole of those swamp and overflowed lands remaining unsold at the passage of the act. This exception was unnecessary because lands previously sold could not be granted; but is significant in determining what lands were granted.

The fee to the lands in question, as well as the use and occupation, was in the United States at the date of the grant of September 28, 1850. They were reserved from sale and set apart for the purpose of supplying fuel to the garrison at Fort Mackinaw, and for no other purpose, and this special temporary use might be terminated by the government at any time. In fact the consumption of the supply of fuel on the res ervation would of itself have terminated the object of the reservation, although it would not have released it. These lands were, therefore,

in a condition to be granted, and the question presented is, was this reservation of such a character that the lands had been practically disposed of, or was it the intention of Congress that lands embraced in a reservation of this character should pass by the grant.

Congress may grant any and all lands the fee to which is in the United States, unless such lands have been sold or in such manner disposed of, that another disposition of those lands would be incompati. ble with the obligation of the government to others. The grant in this case was "a present grant vesting in the State proprio vigore from the day of its date, title to all the land of the particular description therein designated, wanting nothing but the definition of the boundaries to make it perfect," Wright v. Roseberry (121 U. S., 488), and authorities therein cited.

Although the lands may at the date of the grant be temporarily reserved, or set apart for the use of the government, or for other temporary purposes, not amounting to a disposal of the land, it will not prevent such lands from being subject to the operation of the grant, and when disencumbered, the right attaches as of the date of the grant. Therefore the sole question to be determined is, was the reservation of such a character as to amount to a disposal of the land.

With reference to swamp lands temporarily reserved for the use of the government, or other purposes at the date of the grant not amounting to a disposal of the land, this grant should receive the same construction given to the grant for school purposes.

The school grant is a graut of the sixteenth and thirty-sixth section in every township, which attaches specifically when designated by survey, if not previously sold or otherwise disposed of. But the fact that a sixteenth and thirty-sixth section at the date of the grant may have been in reservation for the use of the government, or for other temporary purposes not amounting to an actual disposal of the land, will not prevent such section from being subject to the operation of the grant, if disencumbered at the date of survey.

The question as to the right of a State to the specific school section. embraced within a reservation at the date of the grant, came before the supreme court in the case of Ham v. the State of Missouri, (18 How., 126). In this case the land was reserved under the act of Congress of March 3, 1811, reserving from sale all lands embraced within the limits of a private land claim, filed in time and in accordance with law until the decision of Congress upon such claim.

An application was presented to the Land Commissioners for confirmation of this claim in due time and in accordance with law, and was rejected by the Commissioners in their report to Congress.

The act of March 1820, passed while this claim was pending before Congress—and therefore in reservation-granted to the State of Missouri, the sixteenth section of every township, and equivalent land where such section had been sold or otherwise disposed of.