I find, also, among the papers in the case, a copy of the field notes of survey and a plat of said section eleven, taken from the records and furnished by your office.

Soon after the passage of the swamp land act, the State of Wiscon sin elected to take the field notes of survey as a basis for determining what land passed to the State under the grant, and it was in this manner that the land in question was selected. The mode adopted by mutual understanding, or agreement, between the national and state authorities for ascertaining the lands granted, was convenient and economical, and doubtless generally led to correct results, but this Department does not understand that the government is irrevocably bound by selections made on behalf of the State, in pursuance of such understanding or agreement, especially where the rights, or supposed rights, of a private citizen are involved. The field notes are prima facie evidence of the character of the land, and by mutual understanding they are generally accepted as full proof by this Department, but it does not follow that the finding of a commission, mutually agreed upon, that a particular tract is swamp and passed to the State, precludes the Department from reviewing such finding, or from resorting to other evidence, in order to ascertain the true character of the land, and in order to determine whether, in fact, it did pass to the State under the grant.

The State is not entitled to lands not granted, nor can the Secretary of the Interior by agreement enlarge its grant. It is his duty to finally determine what lands passed to the State of Wisconsin, as well as to other States, under and by virtue of the swamp land act, and though he may adopt certain general methods for identifying these lands, yet the adoption of such methods does not deprive him of the right, or relieve him of the duty of resorting in certain cases to other and differ ent methods. Nor is the adoption of any such general method of adjustment, though by agreement between the officers of the respective governments a contract binding on the general government. The Secretary of the Interior, notwithstanding such agreement, may at his discretion, any time before swamp lands are certified to the State, adopt such methods, resort to such means, and employ such agencies as in his judgment are best calculated to enable him to reach a correct conclusion as to the real character of any particular tract of land claimed under the swamp land act.

The views above expressed result from the nature of the duties devolved by law on the Secretary of the Interior, and are sustained by numerous rulings of the Department. Lachance v. The State of Minnesota (4 L. D., 479); State of Oregon (5 L. D., 31); Hardin County (ib., 236); State of Michigan (7 L. D., 514).

Even after selections have been approved and certified to the State as swamp and overflowed lands-which is a stronger case than the one here the Secretary may, in certain cases, recall and revoke his approval,

1

and on a proper showing refuse patents for lands included in approved lists, and may cause such lists to be canceled. State of Oregon (supra); State of Minnesota (6 L. D., 37); State of Oregon (7 L. D.,572); State of Michigan (supra). Therefore the position taken by the State on appeal can not be sustained, to wit: the position that the decision of said commission was final, or was to be final and is therefore obligatory on the government.

From an inspection of the field notes of survey and the accompanying plat, I do not find that they show the greater part of the quarter-section in controversy, or any legal subdivision of the same, to have been swamp and overflowed land at the time said survey was made. On the contrary, they show, it seems to me, with reasonable certainty that the greater part of each legal subdivision of said tract was at the time of survey (1854), and presumably at the date of the grant, dry and cultivable. Said commission probably classed said tract as swamp and overflowed through inadvertence. At all events, the field notes do not, in my opinion, warrant such a classification.

The field notes of survey gave Wolf no notice that said tract was claimed by the State, nor was the State's claim asserted thereto till some months after Wolf had established his residence on said tract, nor till more than thirty years after the grant was made under which it is now claimed. These facts, however, do not necessarily constitute a bar to the claim of the State, and since said tract was in August, 1881, awarded to the State by said commission, its claim should not be finally rejected and said selection canceled, until it has had a full opportunity to be heard in the matter, if such hearing be desired.

Wolf's entry will, therefore, be suspended, and the State allowed sixty days after receipt of notice of this decision within which to institute the usual proceedings for a hearing herein before the local land officers. The field notes failing to show prima facie the swampy character of said tract, the burden of proof will be on the State. The swamp land act grants to the States only such legal subdivisions of the public lands the greater part of which was wet and unfit for cultivation at the date of the grant, and in order to sustain its claim to any particular forty of said quarter section, the State will be required to show that the greater part of such forty was of the description of lands granted, to wit: "swamp and overflowed lands, made unfit thereby for cultivation." Should an application for a hearing be made by the State within the time designated, the entryman will be duly notified thereof and afforded full opportunity to be heard in defense; and in default of such application, the claim of the State will stand rejected, and Wolf's entry will be passed to patent, in the regular course of business in your office.

The decision of your office is modified accordingly.

PRACTICE-NOTICE BY PUBLICATION-EVIDENCE.

BONDURANT v. Conkling.

Mailing a copy of the notice by registered letter, to the last known address of the defendant, thirty days before date of hearing, is an essential in service of notice by publication.

Evidence submitted on defective notice of contest may be accepted after new notice, if the defendant does not respond thereto.

First-Assistant Secretary Chandler to Acting Commissioner Stone, June 4, 1889.

I have considered the appeal of Fremont Bondurant from your office decision of February 10, 1888, directing that a rehearing be had in the case of his contest against the homestead entry of George D. Conkling upon the SW. of Sec. 25, T. 152 N., R. 59 W., Grand Forks, Dakota. The record shows that Conkling made homestead entry of above tract on February 8, 1883, and that Bondurant initiated contest against the same on March 18, 1887. A copy of the notice of contest was mailed by registered letter to the entryman at his last known address on April 21, 1887, and the hearing was fixed for May 17th following. On that day the contestant appeared and testified, that he resided within two miles of the tract in question, and was acquainted with it since April, 1884; that he knew "from personal observation, that the said defendant, George D. Conkling, has not fenced, cultivated, built, or resided upon, or in any way improved said tract since October, 1885; that said George D. Conkling broke out of jail and left the country over six months ago, and has wholly abandoned his homestead; that the present condition of said tract is wild, uncultivated and uninhabited, and that the present residence of defendant is unknown."

John M. Lamb corroborated the testimony of contestant. The defendant did not appear at the hearing, and on May 26th following the local officers recommended the cancellation of Conkling's entry.

February 10, 1888, your office reversed the decision of the local officers, on the ground that a copy of the notice of contest was not mailed to the last known address of the defendant thirty days before the date of hearing. You, at the same time, returned the affidavit of contest as the basis of a rehearing to be had after due notice. From this decision contestant appealed to the Department.

As already stated, a copy of the notice of contest was not mailed until April 21, 1887, whereas the hearing was to take place on May 17, following. But twenty-six days therefore intervened between the date of mailing and the day fixed for hearing.

Rule 14 of the Rules of Practice provides,

Where notice is given by publication, a copy of the notice shall be mailed by reg. istered letter to the last known address of each person to be notified thirty days before date of hearing.

In the case of Parker v. Castle (4 L. D., 84), this Department held, The proper basis for an order of publication, the publication by advertisement, the sending of a copy by registered letter, and the posting of a copy on the land, are alt constituent and essential parts of "notice by publication," and the absence of any one of these essentials makes inoperative the efficacy of the others if the defect be not waived. . .. That these rules have in effect the force of statute. The same doctrine is laid down in the case of Wallace v. Schooley (3 L. D., 326).

It is clear that contestant has not complied with the Rules of Practice in the matter of mailing a copy of notice of contest to the defendant at his last known address thirty days before the date of hearing.

In view, however, of the facts in this case and of the expenses incident to making new proof, I am of opinion that contestant should give new notice, and, if the entryman does not then respond, his entry will be canceled upon the testimony already submitted. Your decision is modified accordingly.

PRACTICE-APPEAL-JURISDICTION-APPLICATION.

IDDINGS v. BURNS (ON REVIEW).

The local office has no jurisdiction over a case, or the land involved therein, during the pendency of an appeal from its action thereon.

After the local officers have rendered a decision in a case they can take no further action affecting the disposal of the land in controversy until instructed by the Commissioner.

On the relinquishment of an entry, a pending application to enter will take precedence over an application filed with the relinquishment.

Secretary Noble to Acting Commissioner Stone, June 5, 1889. February 18, 1889, Secretary Vilas decided the case of William T. Iddings . Mary Burns (8 L. D., 224), and affirmed the decision of your office dismissing the application of the former to make homestead entry of the SW. of section 29, T. 25 S., R. 17 W., Larned land district, Kansas, on the ground that the prior entry of Burns operated to prevent the allowance of the application of Iddings. The record shows that Iddings made application to enter said tract January 26, 1886, and the same was "held in abeyance" by the local office pending the final pre-emption proof advertised to be made February 17, 1886,(by Patrick Sweeney, for said tract; that Sweeney failed to make proof and that Iddings again presented his homestead application which was rejected by the local officers February 17, 1886, because of the existence of the homestead entry for said tract made February 13, 1886, by Mary Burns. The case came up on appeal and was decided in favor of the entry made by Burns for the reason that the application of Iddings which was prior in point of time was defective in that it was not accompanied either by the payment or the tender of the fees required by law.

My attention has been called to the fact, that subsequent to the date of the letter of your office transmitting the record in the case, on appeal

by Iddings, there were filed in the local office a relinquishment of Mary Burns, date October 19, 1887, of her homestead entry of said tract and an application of John A. Ary to make homestead entry of said land. Ary tendered the entry fee with his application. The local officers canceled the entry of Burns, October 22, 1887, and rejected the application of Ary because the application of Iddings was pending, on appeal, before the Department. These papers were forwarded without action upon your part. One of them is Ary's appeal from the action of the local officers. It has been held that when an appeal is taken from your decision your office loses jurisdiction over the case. John M. Walker (5 L. D., 504) and also over the land involved therein. Esler v. Townsite of Cooke (4 L. D., 212), Stroud v. De Wolf (id., 394). The same rule gov. erns cases on appeal from the local office. The authorities cited sustain the action of the local officers in rejecting Ary's application. Moreover, the proceedings in this case were in the nature of a contest and after the local officers have rendered a decision on a contest they can take no further action affecting the disposal of the land in controversy until instructed by the Commissioner. Rule 53; Wade v. Sweeney (6 L. D., 234). The equities in the case are in favor of Iddings, who was the first applicant and whose application was rejected by the local officers when first presented to them. He has ever since earnestly insisted on his right to enter the tract in question. Burns having relinquished, the tract is now free from any entry of record and in the record before me I perceive no reason why the homestead application of Iddings made January 26, 1886, should not be placed of record upon payment of the fees required by law.

You will notify Ary hereof and inform him that he will be allowed thirty days from notice to show cause, if any he have different from the questions presented by this record, why his application should not be finally rejected; and in the meantime, you will suspend action and also give Iddings due notice of this decision. Should Ary fail to show such cause his application will be finally rejected and that of Iddings allowed in accordance with this opinion.

SCHOOL LAND-BOIS BLANC ISLAND.

STATE OF MICHIGAN.

Irregularity in the form and place of section sixteen, arising from the survey of the township, will not defeat the operation of the school grant.

An executive order setting apart section sixteen as a military reservation, will not defeat a prior legislative reservation of the land for school purposes, or impair the subsequent grant to the State.

Secretary Noble to the Commissioner of the General Land Office, June 5,

1889.

I have before me the appeal of the State of Michigan from your decision of November 16, 1887, holding that "section sixteen on Bois