It appears that the Legislature of said State passed an act, approved March 17, 1885, relative to its claim under the swamp land act of Congress, approved September 28, 1850 (9 Stat., 519), agreeing to " accept as final and conclusive in determining the character of such lands the original field notes of the official survey or re-survey of such lands by the United States in all cases mentioned in this act where such field notes show conclusively the naturally wet, swampy, or overflowed, or the naturally non-wet, non-swampy, non-overflowed, character of such lands: Provided, That in no case shall such field notes be considered as final in determining the character of such lands where such field notes fail to indicate the natural character of such land; and Provided further, That in no case shall such field notes be considered in such adjustment or selection in cases where the official survey was made subsequent to the year eighteen hundred and fifty-six (1856).”

This act was submitted to your office for report, and on May 21, 1885, said act was returned with the recommendation that the change proposed therein be not adopted, because of its impracticability. Your report called special attention to the last lines of the first section of said act, and also to said provisos (supra), and noted the fact that the States of Michigan, Minnesota, Wisconsin, Ohio, Alabama, and Mississippi, have agreed to make the field notes the basis of adjustment without any reservations. On August 15, 1885, this Department transmitted a copy of said report to the Governor of said State, and declined to accept the mode of adjustment provided for in said act.

Attention was called to the mode of adjustment of said States, and the inquiry was suggested "whether that basis would be acceptable to the State of Arkansas" (4 L. D., 295).

On August 28, 1885, this Department informed the agent of said State, in reply to his communication of the 21st of same mouth, that, "believing that the field notes of survey as found in the General Land Office constitute the just basis for determining the character of the land claimed by the State," the plan of adjustment as indicated in said communication to the Governor of said State would be adhered to.

Said act of March 19, 1887 (supra), amends the first section of the act of March 17, 1885, by striking out the two provisos above quoted. You regard the amended act as equally objectionable as the original act, for the reason that it introduces a different class of lands from those granted by Congress, to wit, "wet land"; that the field notes should be conclusive in all cases, or the existing method of adjustment should not be changed; that there should not be two methods of adjustment in the same State; and that when a claim for indemnity for land in any township is once made, such claim should be regarded as a finality so far as that township is concerned.

By the act of Congress approved September 28, 1850 (9 Stat., 519), there was granted to the State of Arkansas and each of the other States

of the Union all of the "swamp and overflowed lands made unfit thereby for cultivation," which remained therein unsold at the date of the passage of the act. This act has been frequently construed by the courts and this Department. In the case of the State of Louisiana (5 L. D., 514), it was held that, if the State elects to accept the field notes of survey as the basis of adjustment of its claim under the swamp land grant, lands will be listed to the State that appear by the field notes to be clearly of the character granted, unless there is reason to believe that the field notes and surveys are false and fraudulent; that where the field notes of survey have been made since the passage of the swamp land grant and with reference thereto, they will be held to entitle the State prima-facie to the lands returned as "swamp and overflowed," without the additional words "made unfit thereby for cultivation "; that where the surveys are made prior to the act, all the descriptive words in the grant, or words of like import, must appear; that where they do not so appear, the State must show by other satisfactory evidence that the lands claimed are of the class contemplated by the grant; that, if the State does not elect to make the field notes of survey the basis of adjustment, then she should be allowed to furnish satisfactory proof that the lands claimed were swamp and overflowed and rendered "unfit thereby for cultivation" at the date of the grant.

Under the acts of Congress, approved March 2, 1855 (10 Stat., 634), and March 3, 1857 (11 Stat., 251), incorporated into the Revised Statutes, Section 2482, it was provided that when the authorized agent of the State shall make proof before your office that any of the lands purchased by any person from the United States, prior to March 3, 1857, and after the date of the grant to the State, were swamp lands within the true intent and meaning of the swamp land grant, the purchase money shall be paid over to the State wherein said land is situate.

Indemnity was also allowed where swamp lands have been located by warrant or scrip, and it was further provided that the decision of your office upon the question of indemnity shall be first approved by the Secretary of the Interior. In determining the character of the lands for which indemnity is claimed, I see no good reason why the same kind of proof should not be satisfactory to your office that is required to show that lands are clearly of the character granted and which passed to the State under its grant.

The original and the amendatory act of the Legislature of said State limit the power of the Governor to make an agreement with the Secretary of the Interior "to accept as final and conclusive in determining the character of such lands, the original field notes of the official survey, or resurvey, of such lands by the United States in all cases mentioned in this act where such field notes show conclusively the natu rally wet, swampy, or overflowed, or the naturally non-wet, non-swampy, or non-overflowed character of such lands."

The objection relative to the descriptive words used to designate the character of the land, as suggested in your report of May 21, 1885, has not been obviated, nor does said act, as amended, authorize the Governor to bind the State to an agreement to accept the field notes as a basis of adjustment where they do not show "conclusively " the character of the land.

In said communication of this Department to the State's agent (supra), it was stated that this condition, among others, was a qualifi cation of the Governor's power to act in the case, and it could not be waived.

Since the State, by said legislation has undertaken to define the power and limit the authority of the Governor to make an agreement under said acts, I am of the opinion that no further action should be taken by this Department relative to the claim of the State under the swamp land acts, until the Governor has been given full power by ap propriate legislation to consent to the adjustment of said grant and the claim of the State for indemnity in accordance with the principles enunciated in the Louisiana case (supra). When such legislation has been enacted, the claim of the State should be adjusted as soon as practicable.

Herewith are returned said communication of the Governor and said act of the Legislature of the State of Arkansas, and you will please advise him of this communication to you.

PRACTICE-AFFIDAVIT OF CONTEST-EVIDENCE.

DOLMAN v. LATSHAW.

Objections to the sufficiency of the matters charged in the affidavit of contest, or to the relevancy of the evidence under the charge as laid, can be raised by the defendant only.

Acting Secretary Muldrow to Commissioner Sparks, May 19, 1887.

I have considered the appeal of George W. Dolman from your decis ion of May 4, 1885, sustaining the local land officers in refusing to allow him to contest the timber culture entry No. 7002 of William Stonehacker on the NE. of Sec. 2, T. 6 S., R. 23 W., in Graham county, Kansas.

On June 5, 1880, Stonehacker made timber culture entry of said quarter section. On September 6, 1884, J. J. Latshaw instituted a contest against said entry and made application to enter same under the timber culture act of June 14, 1878. In his affidavit of contest he says that Stonehacker" has failed to cultivate and keep in a good healthy growing condition ten acres of the above described tract of land between the 5th June, 1883, and the 5th June, 1854."

On September 10, 1884-four days after Latshaw instituted his contest-the appellant Dolman made affidavit of contest, and made application to enter said tract of land, accompanied with a tender of all fees and commissions and the usual entry affidavit.

Hearing in the Latshaw case was set for December 5, 1884, Stonehacker, who had acknowledged service of notice, made default. On the day of hearing Dolman came in by way of interpleader and moved the local officers to dismiss said contest because of defects in the contest affidavit. Though no steps were taken to amend said affidavit, this motion of the appellant was overruled, and testimony taken in the case. Thereupon appellant again moved to have the contest dismissed, because of said defective affidavit, and because the testimony was not confined to the allegations contained in the contest affidavit; and for the further reason that the facts shown were insufficient to warrant the local officers in recommending said entry for cancellation. This motion was a so overruled and the register and receiver found, from the testimony produced, that the land embraced in said entry had been forfeited for failure to comply with the law, and recommended that the entry be canceled. On appeal from your decision sustaining the local officers, Dolman urges substantially the same objections urged by him below, and insists that at the time he made application to contest said entry there was no contest, sufficient in law, pending against the same, and that not to dismiss the Latshaw contest and permit him to contest, under his application and his legally sufficient affidavit of contest, was

error.

In my opinion the defect found in Lats haw's contest affidavit did not render his contest illegal. When the defect was discovered, it would have been safer for the contestant, and the better practice, to have asked for leave to amend before producing his testimony, but it was a defect which could be taken advantage of by the entryman only. The refusal to dismiss the contest on appellant's first motion was, therefore, not error. A variance between the allegation and the proof is also a matter which can only be excepted to by the defendant; and where the local land officers find, on the hearing of a contest which is not attacked as being collusive, that the land embraced in an entry has been forfeited for a failure on the part of the entryman to comply with the law, the Department will not look into the evidence to determine the question of its sufficiency to warrant the cancellation of such entry merely on the suggestion of a party who has, subsequent to the institution of such contest, applied to contest the entry, and who has himself sworn to facts sufficient to show the correctness of such finding and to warrant the cancellation of the entry.

Your action in the premises is therefore concurred in, and the appeal dismissed.

ENTRY OF MEANDERED STREAM.

JAMES SHANLEY.

An entry including tracts lying upon the opposite sides of a meandered stream, made under existing rulings and practice, will not be disturbed.

Acting Secretary Muldrow to Commissioner Sparks, May 19, 1887.

On February 24, 1880, James Shanley made homestead entry for lots 1, 2, 8 and 9, Sec. 4, T. 3 N., R. 26 W., McCook, Nebraska. On June 19, 1885, he submitted final proof. The proof showed that he settled in the fall of 1879, and has since maintained a continuous residence and in other respects complied with the law.

Said lots 1 and 2 lie north of the Republican River, lots 8 and 9 south of it. Your office by letter of November 14, 1885, rejected said proof for the reason that the portion of the land north of the river was not contiguous to that on the south, and required claimant to "elect which tracts to retain in satisfaction of his homestead right." He appealed.

This case seems to be ruled by that of Olof Landgren (11 C. L. O., 255.) Landgren filed declaratory statement on July 19, alleging settlement July 18, 1883, for certain lands in the McCook land district. On February 11, 1881, he offered proof, which was rejected by the local office and by your office, "for the reason that the tracts lie on opposite sides of a meandered stream (the Republican River) and hence that his declaratory statement was improperly allowed."

On appeal this Department said:

You affirmed this ruling because, although his proofs are satisfactory, his entry is in violation of your instructions of September 22, 1883, in the case of Benjamin Bird, which held that as the Republican River had been meandered, no entries of lands separated thereby could be approved, but that parties having made such filings might relinquish a portion of their tracts, and their filings stand as to the remainder, and also include other contiguous tracts in lieu of the relinquished ones.

The local officers in transmitting this case to you say "it has been the practice until about September 1883 to allow entries on both sides of the Republican River, and that proofs have been admitted and patents issued thereon without objection until about September 1883, and that there are many (such) entries on the river within this land district in that way.".....Landgren made his settlement and improvements and filed his declaratory statement prior to your instructions of September 22, 1883, when under the practice and rulings of your office, filings and entries like that in question on this river were permitted. These rulings and practice had the force of law, and Landgren, who had acted thereunder in good faith, should be protected in his settlement without loss of any portion of his labor or money by reason of a subsequent change in such rulings and practice.

Without therefore here questioning the general correctness of the instructions of September 22d, I think they should not have a retroactive effect, but operate only in subsequent cases. To hold otherwise would

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