width, there was, when the government survey was made in the year 1853, an island, now called Mai-Sou Island, which was surveyed in fractional lots as lying in sections 5, 7, 8, 17 and 18, township 16, N., range 9, E., containing altogether 174.22 acres. This land was patented by the United States on the 14th of February, 1868, to a pre-emption settler, and the title under that patent has since been transferred to H. H. Warner.

The plat of the government survey also shows that at some consid erable distance, a mile and a half to two miles, to the northeast, two small marshy islets of land appeared, of such inconsiderable size and so wet that no distinct plat of them as parts of any section was made, but the surveyors simply marked them as "wet marsh." Necessarily, therefore, if this survey was any indication of the fact, these small plots of wet marsh passed to the State under the swamp land act of September 28, 1850. That act was a present grant and vested the title to all the swamp and overflowed lands of this character within the limits of the State in the State upon its passage. Whether or not a tract of land passed to the State by virtue of that grant, depends simply upon the question, what was the character of the land at the time, as being swamped or overflowed? A special agreement has been made with Michigan, (1 Lester, 542) as with some other States, whereby the field notes of the government survey are to be conclusively taken as the basis of determination of swamp and overflowed land in that State and of adjustment under the grant. That renders the determi nation easy in this case; but were it not so, the question might be tried and answered by a court and jury, upon the oral proof of witnesses able to state the facts so as to authorize a verdict.

R. R. Co. v. Fremont Co. (9 Wall., 89); R. R. Co. v. Smith (9 Wall, 95); Buena Vista Co. v. R. R. Co. (112 U. S., 165, 176).

This recital of the facts shows that all of the title of the United States to the swamp and overflowed lands mentioned, being such as were shown by the plat and field notes of the survey, passed to the State in 1850, and that all the title of the United States to Mai-Sou Island passed to the patentee in 1868. Thus the jurisdiction of the Interior Department over these granted lands was terminated as to Mai Sou Island, at least (United States v. Shurz (102 U. S., 378). Whatever jurisdiction remained in the Secretary of the Interior in regard to the swamp and overflowed land which passed to the State of Michigan, is to be found in section 2480 of the Revised Statutes, which is based on the act of September 28, 1850, (9 Stats., 519) the second section of which provided that it should be the duty of the Secretary

As soon as it may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor And at the request of said Governor cause a patent to be

issued to the State therefor.

On the 24th of February last, you made a report to this Department relative to a survey made in September, 1887, by Henry Strudwick, of

certain ground in Saginaw Bay, embracing the swamp and overflowed grounds called the "wet marsh" in the government survey, and other land then apparently lying in an irregular shape between that wet marsh and Mai-Sou Island. This ground is now known as the "Middle Grounds" and it is alleged by Mr. Warner, at least, (and in this he is supported by the government survey) that this new ground has been formed by the corrosive action of the water upon Mai-Sou Island and the deposit of sediment between that island and the "wet marsh." Your report concludes that the land surveyed as last above mentioned must be regarded as an accretion to Mai-Sou Island. Upon the other side, the State of Michigan contends, as I understand its claim, that either this ground was in existence at the time of the gov ernment survey and should have been then mentioned as swamp, or that it has been formed by accretion since to the wet marsh islands lying out some distance as indicated by the survey to the northeast of Mai-Sou Island. It is contended by the State that the Department should determine the question and should award a patent to the State for all this ground as being conveyed under the grant of 1850, or as having accrued to what ought to be surveyed under that act. Upon this question of fact a large number of affidavits to and giving the ex parte statements of the affiants have been filed in support of the different contentions of the parties. It is very obvious that such a question as this ought not to be determined by such a mode of proof. If this land was in fact, or any part of it, formed by way of accretion to MaiSou Island, the Department clearly has no jurisdiction over the ques tion or to take any action in any form. It appears to me equally true that if this land was formed by accretion to the swamp and overflowed land existing at the time of the passage of the act of 1850, the Department has also no jurisdiction to inquire into the fact and make any grant of this land as swamp and overflowed, to the State. At the most, the jurisdiction of the Department must be confined to making a list and plat of the land as it existed in 1850, to be transmitted to the GovWhatever change has taken place in the condition of things since 1850, does not belong to the Department to inquire into. It is not equipped with the proper means of ascertaining the facts, nor was it ever designed by Congress, as I think, that any such inquiry should be committed to the Department. The rights of the State of Michigan to the swamp and overflowed ground mentioned, as it existed on the 28th of September, 1850, are easily to be established before a court, and no other proof of its title is required than that act and the evidence of witnesses to show the condition of the ground as swamp and overflowed; and, as between the State and United States, no other action is required than adjustment according to the plat and field notes. So, whatever additional land may have been gained by the State, if any, by the alleged accretion, belongs to the State by virtue of its title in the swamp. and overflowed ground to which it has been added. All these ques 3263-YOL 7-17

ernor.

tions can be far better determined by a judicial tribunal than by this Department, even if it were conceded that any right remains in the Department to make the inquiry. No action of the Department is necessary to install the State with such a title as to maintain its rights in court; while, on the other hand, it may be that the Department might do a serious injustice, if upon such unsatisfactory evidence it were to undertake to determine the fact as against the owner of Mai Sou Island, who claims the ground by accretion to that island; and it would thereby violate the rule or basis of adjustment agreed on with the State. I do not think, therefore, that any further action should be taken by the Department in this matter, but that the parties should be mutually left to such proceedings in the courts as they may be advised to take in the maintenance of their respective claims.

The survey which you have ordered appears to have been applied for by Mr. Kerr in December, 1884, with the view of bringing the middle grounds into the market for disposal under the laws and regulations relating to the disposition of lands embraced in fragmentary surveys; and upon this application Strudwick was directed to make the survey under special instructions. On the 1st of May, 1885, the Commissioner of the State land office made application for an extension of the public surveys over these middle grounds, which application was denied be cause of the pending survey by Strudwick. In 1886 the counsel for the State were informed by your office, it appears, that the instructions to Strudwick had been rescinded and further action discontinued. In March, 1887, Mr. Warner filed his application in the Department, setting up his claim by accretion. This was referred to your office for report, which, being made, stated that your office was unable to decide whether the middle grounds were accretions to Mai-Sou Island or formed a distinct island of marsh land, and concluded with an expression of opinion that

the departmental authorization of the survey, under date of April 4, 1885, of the islands described in the Kerr application, might well be revoked, and the whole matter left as an open question for consideration upon broader and better facts connected therewith.

On this report, the Department, under date of March 25, 1887, declining to concur in the recommendation, directed "that the necessary steps be taken to have the survey made at once;" and concluded as follows:

After it the survey has been made, the right of all parties in interest will be duly considered; and this order is not intended in any manner to alter or impair any interest which any person may have in the ultimate determination of the case. The question as to what interest the United States government, the State of Michigan, or other claims have to the lands in controversy, will be fully considered hereafter.

There appears nothing in the action taken to preclude the Department now from taking the action which seems to me to be proper, and I therefore direct that all further proceedings under the surveys and

in this matter be discontinued and the parties be left to the maintenance of their rights in the courts of law having jurisdiction of the matter in such way as they may be advised.

PRE-EMPTION ENTRY-RESIDENCE.

WILLIAM S. KELLY.

The removal of the pre-emptor's dwelling to an adjoining tract, and his occupancy thereof, prior to final proof, will not defeat the right of purchase, where good faith is manifest, and such removal took place after four years residence on his pre-emption claim, and was rendered necessary by annual inundation of the latter tract.

Secretary Vilas to Commissioner Stockslager, August 23, 1888.

By letter of November 18, 1886, your office sustained the decision of the local office rejecting the proof of Wm. S. Kelly made October 9, 1886, for his pre-emption claim on W. SE., and E. SW., Sec. 27, T. 1 N., R. 2 W., Gunnison land district, Colorado. Kelly had filed declaratory statement October 12, 1882, alleging settlement September 26, 1881.

On the 4th day of October 1886, the local officers rejected claimant's proof "for the reason that he has not lived upon his pre-emption claim continuously during the last six months preceding his making final proof."

On the 21st of October, 1886, said Kelly duly filed his appeal herein. It appears from the evidence of the claimant that he commenced to live upon the land in September, 1881, and in about three months his family came, and that he at once built a log house containing two rooms, two doors and three windows, and with a board floor; that he also built a log stable capable of stabling six horses, dug a well, erected other out buildings, two stock corrals, and three miles of wire fence, besides procuring an interest in the irrigating ditch some twelve miles long by which the land was to be irrigated, said to be worth sixteen thousand dollars, besides dykes, irrigating ditches and other improvements.

It also appears that at the time he offered his final proof he had eighty acres of said land in actual cultivation (crops) and the remainder fenced for pasture.

It also appears that from the time of his settlement in September, 1881, until October 1885, the claimant and his family continuously occupied the house on said land; but that the same being low bottom land on Grand river was subject to overflow, and after several overflows from said river and the irrigating ditches above his land, submerging his claim more or less, claimant purchased some fifty acres high land adjoining the said pre-emption claim and in October 1885, removed his buildings thereto, and thereafter continued to possess, occupy and cul. tivate his said claim, but to have his dwelling house upon such pur

chased land adjoining. It further appears that, before removing his buildings to such adjoining high land, he undertook to prevent the overflow of his claim by building dykes, but was prevented by an injunction suit brought by an adjoining claimant on the ground that such dykes would increase the overflow upon his land.

In case of Israel Martel (6 L. D., 566) it was held, that six months residence upon a pre-emption claim, is not a provision of the statute but a rule of the Department, and "is for the purpose of testing the good faith of the claimant."

No such test of the good faith of claimant can be necessary under the evidence.

The same doctrine is laid down in Keith v. Grand Junction (6 L. D., 633) and Noah Herrell (G L. D., 573).

In Grimshaw v. Taylor (6 L. D., 254), it is said, "The absence of the entryman or his family from the land may be satisfactorily explained when it is evident that the entry was made in good faith and for the purpose of acquiring a home."

In Arnold v. Langley (1 L. D., 439), it is held that "a bona fide preemption claim should not be rejected because the claimant's house was by mistake beyond the lines of the survey bounding his land." In this decision again the following language is used, "His expenditures of time and money upon the place during a period of three or four years prior to entry, sufficiently indicates in my opinion, his good faith. It is true he did not inhabit the land, yet his purchase included a dwelling which it appears he had no means of knowing was not upon the land."

This was followed in Talkington's Heirs v. Hempfling (2 L. D., 46), and by an unbroken line of decisions since.

In Miller v. Ransom (3 L. D., 368), the defendant had established a residence but was driven off by the violence and threats of a contestant, and it was held such failure to reside upon the land was excusable. And this case was Osage lands on which claimant was required to be an actual settler.

The evidence showing the utmost good faith, and that claimant after making very valuable improvements merely moved his buildings to high land adjoining to avoid danger of floods but still continued to use and farm his pre-emption claim, I am of the opinion that it comes within the rule laid down in the cases above cited, and that claimant's proof should therefore be accepted and patent issue upon proper payment being made.

Said decision is accordingly reversed.