tary, the true character of the land may by such contest be best determined.

The plan adopted by the Department and agreed to by the State seems to be a safe and practical plan of adjusting the grant to this State and of determining the true character of the land selected. Under the instructions to the special agent, he is empowered to take testimony as to the character of each particular tract and to make to your office a full report of such testimony. In this respect his investigation may be as full and complete as may be had in a hearing before the register and receiver, besides having the advantage of a personal examination in the field.

While under this plan the great mass of land claimed by the State may be safely adjusted, I can not pass by with indifference the charges openly made that a large amount of lands claimed as swamp in this State have been procured by affidavits of irresponsible persons, and that much of it is more of the character of desert than swamp, and that bona fide settlers have been thereby prevented from obtaining legal subdivisions of lands, the greater part of which is fit for cultivation without artificial drainage.

If

I do not know whether these charges are true or false, but being brought to my attention, a judicious administration of this subject would require that every means should be adopted whereby the truth may be obtained and the true character of these lands determined. the lands were swamp at the date of the grant, the State is entitled to them, and her right to them should be determined as speedily as possible. If they are not swamp, the settler should not be deprived of his right to enter them. The truth can harm no one, although the inconvenience or discomfiture of parties may be involved in arriving at it.

I therefore direct that you will instruct the special agent of the gov ernment to proceed as early as practicable to make a careful and complete investigation of such lands, strictly observing the instructions contained in your letter of August 11, 1885, and make report of the same to your office, with a view to have such lands as are by them reported swamp and overflowed approved and certified for patent; but if before such approval and certification any person files a contest under existing regulations of the Department, you will order a hearing to determine the character of any legal subdivision upon which such contest is filed.'

SWAMP LAND-EFFECT OF CERTIFICATION.

STATE OF CALIFORNIA v. FLEMING ET AL.

After due investigation and adjudication under the fifth clause of section 2488, R. S., the lands were certified to the State, and the character of the same may not now be called in question on the mere allegation that they were in fact not of the character granted.

Secretary Lamar to Commissioner Sparks, August 7, 1886.

I have considered the appeal of the State of California from your decision of November 19, 1885, modifying the decision of the register and receiver at Stockton, California, rejecting the application of the following parties to make pre-emption and homestead filings for certain tracts of land in Township 3 N., Range 7 E., Stockton, California, viz: Julius A. Fleming, pre-emption, SE. 1, sec. 23.

The register and receiver rejected these applications, upon the ground that the lands applied for had been listed to the State of California as swamp lands, from which decision applicants filed separate appeals, alleging that said lands had not been surveyed, segregated and listed by the surveyor-general as swamp lands, and that the lands were within an asserted Mexican grant.

You modified this decision, holding that, although the land had been approved and certified to the State by the Secretary of the Interior, yet as patent had not been issued to the State under its grant, that the party applying to enter should have been advised of his right of contest, and his application to enter should be suspended and placed on file to await such action as may be taken to test the right of the State to said land, under the swamp land grant.

From this decision the State of California, in behalf of her grantees, to wit, J. H. Cole, Heath & Boody, C. H. Wakefield, C. A. Merrill, John Bunch, G. I. Leffler, B. F. Pope, J. J. Pope, appealed.

These lands are embraced in list No. 1, which was approved and certified to the governor of the State of California, December 12, 1866, and with other selections were the subject of investigation by the United States surveyor general for the State of California, upon whose report the Commissioner of the General Land Office, by letter of February 11, 1871, decided that said lands having been fully disposed of were no longer within the control of the General Land Office. Then, naming the lands now in controversy, he says: "The records of this office show that (these lands) have been approved as swamp lands, but suspended on account of the supposed interference of a private grant since declared invalid. They will therefore be carried into patent as swamp lands."

This ruling was concurred in by the Secretary of the Interior, October 16, 1872, and the decision of the Commissioner, deciding that patent

should issue for said lands, was affirmed, thereby removing from the Department all further control over the lands in controversy, unless said decision was procured by fraud or mistake.

The lands in controversy were returned by the surveyor general as "lands subject to periodical overflow," and hence were not subject to certification to the State by virtue of the return of the surveyor general. The State of California claimed said lands as swamp and overflowed, and under the fifth clause of section 2488 of the Revised Statutes, a full and complete investigation of the character of these lands was made by the surveyor general, who reported, while scarcely any of them could be classed strictly as swamp lands, yet their condition at that date was the result of artificial improvements, and in regard to the practical cultivation of staple crops the preponderance of testimony showed that no proper guarantee of security against floods could be had in a majority of seasons without artificial improvement, and consequently no hope of profitable cultivation in the long run. For this reason he determined that the claim of the State was valid and should be allowed. As the character of these lands was directly put in issue in the investigation before the surveyor general, and upon his finding they having been approved and certified to the State, these applicants should not now be allowed to raise the same question-especially after a lapse of twenty years, when it may be safely presumed that the present occupants have now fully reclaimed said land.

The decision of your office is reversed.

RIGHT OF PURCHASE UNDER THE ACT OF JUNE 3, 1878.

HEIRS OF WILLIAM FRIEND.

The right to receive title under this act accrues when the proper proof is furnished and the money paid.

Where an applicant had made proof and tendered the purchase money, but died prior to the allowance of his entry, it is held that his heirs may complete the purchase.

Secretary Lamar to Commissioner Sparks, August 7, 1886.

December 16, 1882, William Friend made application, under the act of June 3, 1878 (20 Stat., 89), to purchase Lots 6 and 7, and the E. of SW. of Sec. 6, T. 2 N., R. 2 E., Humboldt, California. He published the usual notices, furnished all the proofs required by the statute, and tendered the purchase money for the land applied for; but was refused because of the adverse claim of one Jacob Showers. Jr.

By decision of this Department, dated November 24, 1884, (3 L. D., 210), the claim of Showers was rejected as invalid, and the land was awarded to Friend. Prior to said decision, however, to wit: April 14, 1884, Friend died. March 6, 1885, his heirs made payment for the land ($417.23) and the entry was allowed by the local office in their name.

Your office, however, by decision of May 27, 1885, held said entry for cancellation, on the ground that-

"The right to purchase under the act of June 3, 1878, is confined to the party who makes the sworn statement. Such right can not survive the death of the claimant.”

The case is now here on appeal from said decision of your office. Under the timber land act the right of the applicant to a patent becomes complete and vested when he shall have furnished the proofs required in the manner pointed out by the act, and shall have paid the purchase money. Under the general law

"The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued. When, in fact, the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary, to cut off intervening claimants." Stark v. Starrs (6 Wall., 402).

And further

"The rule is well settled by a long course of decisions, that when public lands have been surveyed and placed in the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has become pledged to him, and any subsequent grant of the same land to another party is void, unless the first location or entry be vacated and set aside.” Wirth v. Branson (98 U. S., 118.)

Now, in the case under consideration, the money was not actually paid and the entry was not actually made prior to the death of the original claimant. But he had done all that he was required to do under the law. He had tendered his money, and the only reason why it was not received and his entry then allowed was because of the invalid adverse claim of Showers. As before stated, my immediate predecessor rejected this claim of Showers for invalidity, and directed that Friend's application should stand. In other words, his right was held to have attached at the date of his said application. This right, as above shown, was a right to a patent if the money had been paid. That it was tendered is, so far as the applicant's rights are concerned, equivalent to the actual payment of the same. His right was, therefore, not merely a personal right, but was, in every sense of the word. inheritable property.

I therefore reverse the decision appealed from.

PRACTICE-WITHDRAWAL OF CONTESTANT.

TAYLOR v. HUFFMAN.

Though the contestant may withdraw from a case pending on appeal before the Department, such withdrawal will not prevent action on the evidence submitted

Secretary Lamar to Commissioner Sparks, August 7, 1886.

In the case of Thomas Taylor v. Thomas M. Huffman, involving the latter's timber-culture entry No. 2203, of the SE. † of Sec. 24, T. 23 S., R. 33 W., Garden City, Kansas, an appeal has been filed by Huffman from your adverse decision of June 20, 1885.

The record shows said entry to have been made August 12, 1878; and contest to have been initiated against the same February 7 (not Feb ruary 4), 1884, on the general charge of failure to comply with the law, no trees growing, and abandonment. The trial was had March 25, and the decision of the local office in favor of the contestant is dated May 20, 1884. You held the entry for cancellation on the ground that the evidence showed no planting of any seeds, nuts or cuttings, save Osage Orange, you considering that not timber within the meaning of the law.

It is shown by the evidence that in 1880 there was some breaking done upon the claim; that in 1881 five acres were cultivated to rice corn, and five acres were planted in box elder and maple seeds, which failed to grow; that in August 1882 about ten acres were planted in Osage Orange seeds, this planting being done in a most unsatisfactory manner, by opening a furrow with a plow, and then sticking the seeds in the side of the bank with the fingers, and as a matter of course nothing ever came of such work; and that in April and May, 1883, the same ten acres or thereabouts were planted in Osage Orange plants, three feet eight inches by four feet apart. It also appears that these, too, failed to grow. So that at date of contest, about five and a half years after entry, the tract was practically in the same condition as when entered. In other words, the contestant has made out his case, unless it be shown satisfactorily that the evident failure to comply with the law was no fault of the entryman. What is his showing in this respect? Simply that there was some planting done for three years, and some little stirring of the ground every year since the date of entry. This is not suf ficient of itself. He should have shown that this breaking and cultivating was done in a proper manner at the proper season of the year,

and that the planting was also done in that manner. This is not shown, but rather the contrary. In fact the whole case bears evidence of trifling with the law, and of attempting to secure a tree claim with a very unsatisfactory showing. See Caviness v. Harrah (4 L. D., 174).

For these reasons I am of opinion the entry should be canceled, and to that extent I affirm your decision.

Since your decision was rendered, there has been filed with the papers in the case the formal withdrawal of his contest by the contestant Taylor. This Department sees no objection to his withdrawing from