San Jose Military Reservation to the mouth of Mission creek, I was compelled to rely entirely upon the first official map of said city, the map made by Wm. M. Eddy, the first city and county surveyor. traced copy of the water line portion of said map, certified by the pres ent city and county surveyor, Geo. C. Potter, on which the distances to the water line at the different angles, as measured on said map, are marked, and which was the basis of my calculations of the meander lines, will accompany these notes."

It is apparent from this extract, first, that it was impossible to survey this line in the open field; and, second, that this part of the survey, as reported by Stratton, was copied by him from a map, and not done in the open field. If the natural water line of the bay had been so effaced that it could not be found by actual inspection, it was his duty to seek for the evidence of its original position and so run the survey as to make its line coincide with the natural line called for in the grant. Now it is in evidence in this case that as early as 1852 a survey of the natural high water mark of this bay had already been made by officers of the United States government, charged with this duty by statute and by Executive order, for the purpose of establishing the coast line itself for all purposes relating to governmental administration. The following affidavit is on file among the papers in the case:

In the Department of the Interior. In the matter of the survey of the pueblo lands of San Francisco.

UNITED STATES OF AMERICA,

District of California, ss:

AUGUSTUS F. RODGERS, first being duly sworn, deposes and says, that since 1851, he has been stationed in Californía, (except eighteen months between 1867 and 1869) in charge of the United States Survey of the coast thereof, including the peninsula of San Francisco; that the traced chart or map, entitled "Map showing the line of ordinary highwater along the eastern side of the peninsula of San Francisco from Rincon Point to and including Islais Creek as surveyed by the Coast Survey of the United States, 1852" hereto annexed, was prepared from the published surveys of the Coast Survey of the United States and that the line laid down on that map in blue pencil, from Rincon Point around Mission Bay to and including Islais Creek and crossing Mission and Islais Creeks, is a true delineation of the line of ordinary high water mark as it existed when he first knew it in the year 1852.

And deponent further saith that, in determinining a boundary line stated as the line of "ordinary high water mark" on the bay of San Francisco, there can be no other course than to follow the stated line of ordinary high tide on the shore of the bay, crossing the mouths of all inferior tidal streams or estuaries, many of which empty into San Francisco Bay at different points, and not to follow the meanders of any such inferior tidal streams or estuaries."

AUG. F. RODGERS.

Subscribed and sworn to before me this 25th day of November, 1882. [SEAL.] L. S. B. SAWYER,

Com'r and Clerk of U. S. Circuit Court

9th Judicial Cir't Dist. Cal.

It thus appears that the survey of San Francisco Bay made by the officers of the Coast Survey, included the line of high water mark, the very line called for in this case as the castern boundary of the city, and that the line established in this survey crossed Mission Creek, thus coinciding with the line indicated by Eddy's Red Line Map which Secretary Schurz directed as the basis of the amended survey ordered by him. The charts and records of this survey, made under the most thorough and scientific methods, were on file in the office of the Coast Survey of San Francisco, standing on the very tract of land the boundaries of which it was Stratton's duty to define. It is by no means unusual for United States authorities and state authorities, and for individuals having property interests along our coast lines to appeal to the records of the Coast Survey for data to identify and establish such original landmarks and boundary lines along the coast, which the hands of men. in the course of settlement and industrial development have effaced. Since this case came before me a controversy between the authorities of the State of Delaware and those of the State of New Jersey respecting the division line between Delaware river and Delaware bay has been submitted to the officers of the Coast Survey and the line designated by these officers has been adopted by the authorities of these two sovereign states.

In view of the high scientific character of this bureau, and of the fact that it is charged by the government with this duty, Mr. Teller addressed an inquiry as to the rules governing that bureau in the survey of public waters. The following is the answer of the Superintendent to that inquiry:

U. S. COAST AND GEODETIC SURVEY OFFICE,
Washington, June 8, 1883.

Hon. HENRY M. TELLER,
Secretary of the Interior, Washington, D. C. :

SIR: In further illustration of the statement made by this office under date of June 5th, in answer to your letter dated May 31, 1883, concerning the practice of this office in defining the inner boundaries or outlines of bays when the same are interrupted by the mouths of estu aries, rivers or creeks, I submit the following additional statement:

This office has long since had occasion to adopt definite rules in that respect for the purpose of making estimates for projected work and giv ing account of work done.

The rule adopted is to draw the line between high water mark of the nearest points of land on each side of the interruption, in continuation of the general outline.

Thus, making use of familiar illustrations on the Atlantic coast, the "general coast line" is measured from Point Judith to Montauk Point; from Coney Island to Sandy Hook; from Cape May to Cape Henlopen; from Cape Charles to Cape Henry. On the Pacific coast, from Point Lobos to Point Bonita (San Francisco entrance), etc.

Descending to smaller features: in Long Island sound, the limits of the sound are defined by measuring across the mouth of the Thames river from high water at Eastern Point to Quinipeag Rocks; across the mouth of the Connecticut river, from high water mark at Griswold's

Point (Lyme) to Lynde's Point (Saybrook); in Delaware bay, across Mahon's river between the opposite points of marshes. By the same rule we define the limits of Mission bay, near San Francisco, by draw. ing the line across Mission creek over the projecting points of marsh on each side.

It appears needless to multiply illustrations, and I trust that I have succeeded in setting forth the rule and practice of this office.

Very respectfully yours,

J. E. HILGARD,
Superintendent.

Mr. Teller adds the following just observations:

"From the foregoing it will be seen that although no suggestion was made to him as to localities, the inquiry being in the most general terms, the Superintendent has instanced this very case as illustrative of the accepted rule. It can hardly be claimed, therefore, that a call for San Francisco bay, being a larger description than Mission bay, will demand the inclusion of an estuary of the latter, which by the ordinary rules of boundary has been excluded from other designation than that of a mere creek flowing into the lesser bay, but actually considered as forming no portion of such bay designated as a distinctive body of water.

Again: Here the boundary is not the stream, but the bay; consequently the ordinary high water mark' must be the high water mark of the shore as pertaining to the sea, and not the high water mark of the bank as pertaining to a river or stream. So that, although Mission creek is alleged to have been as well a tidal inflow as an outlet for the inland waters, it nevertheless falls within banks instead of resting upon shores, and must be considered an inland water for all purposes; being far within the rule laid down in United States v. Grush, (5 Mason, 209,) and clearly covered by the late case of United States v. Steam Vessels, (No. 141, October term, 1882).

This last case cited by the Secretary is reported in 106 United States Reports, at page 607, under the name of Porter v. United States. One of the questions was, is James River an inland water, so that property captured upon it is subject to the act of Congress of March 12, 1863. The court says:

"James River is an inland water in any sense which can be given to the term 'inland. It lies within the body of counties in Virginia. For miles below Richmond, and below the obstruction mentioned, a person can see from one of its banks what is done on the other. Rivers across which one can thus see are inland waters. It matters not that the tide may ebb and flow for miles above their mouths; that fact does not make them any part of the sea or bay into which they may flow, though they may be arms of both."

Holding these views I am of the opinion that the re-survey by Von Licht on which the patent was issued to the city of San Francisco was properly ordered. It is said that even if the Land Office had properly ordered a re-survey, such re-survey was not made as the law requires. In other words, that the survey made by Von Licht, upon which the patent was issued, was not filed and retained in the surveyor-general's office and notice published so that parties interested therein

might interpose objections thereto. In order that these objections may be fairly weighed I give the section of the law on which it is based in full:

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That whenever the surveyor-general of California, shall in compliance with the thirteenth section of an act entitled 'An act to ascertain and settle the private land claims in the State of California,' approved March 3, eighteen hundred and fifty-one, have caused any private land claim to be surveyed and a plat to be made thereof, he shall give notice that the same has been done by a publication, once a week for four consecutive weeks, in two newspapers, one published in the city of San Francisco, and one published near the land surveyed; and shall retain in his office, for public inspection the survey and plat until ninety days from the date of the first publication in San Francisco shall have expired; and if no objections are made to said survey, he shall approve the same, and transmit a copy of the survey and plat thereof to the Commissioner of the General Land Office at Washington, for his examination and approval; but if objections are made to said survey within the said ninety days by any party claiming to have an interest in the tract embraced by the survey, or in any part thereof, such objections shall be reduced to writing, stating distinctly the interest of the objector, and signed by him or his attorney, and filed with the surveyor-general, together with such affidavits or other proofs as he may produce in support of the objections. At the expiration of said ninety days the surveyor-general shall transmit to the Commissioner of the General Land Office at Washington, a copy of the survey and plat, and objections, and proofs filed with him in support of the objections, and also of any proofs produced by the claimant and filed with him in support of the survey, together with his opinion thereon; and if the survey and plat are approved by the said Commissioner he shall endorse thereon a certificate of his approval. If disapproved by him, or if, in his opinion, the ends of justice would be subserved thereby, he may require a further report from the surveyor-general of California, touching the matters indicated by him, or proofs to be taken thereon, or may direct a new survey and plat to be made. Whenever the objections are disposed of, or the survey and plat are corrected, or a new survey and plat are made in conformity with his directions, he shall indorse upon the survey and plat adopted his certificate of approval. After the survey and plat have been, as hereinbefore provided, approved by the Commissioner of the General Land Office, it shall be the duty of the said Commissioner to cause a patent to issue to the claimant as soon as practicable after such ap proval." (13 Stat., 332.)

The object of the publication of the notice when the original survey is made is to call attention to it of all parties who may be interested, not only the parties whose land is covered by the survey but parties having adjoining property which may be affected by it. The careful reading of this section shows that the proceedings therein set forth apply to the original survey. When the original survey is corrected, and a new survey made in accordance with the correction ordered, the law does not require the same proceedings to be gone through as with the original survey. The language of the statute is too plain for cavil: "whenever..... a new survey and plat are made in conformity with

his directions he shall endorse upon the survey and plat adopted, his certificate of approval." There is no publication of notice required. The law is complied with when the new survey is made in conformity with the directions.

This is in harmony with the practice and decisions of this Department. In 1879 Mr. Schurz held that the law contemplates the publication of but one survey, and that any subsequent survey of the same claim is not required to be published. In giving his directions to the Commissioner on this subject he says:

"During the time limited to such publication all objections to the survey will be presented. If upon the consideration of such objections and the testimony filed in support of them a new survey is ordered, either by your office or by this Department, the order directing the new survey should point out specifically in what respect the first survey is incorrect, and how the new survey should be made. . . . When a survey is made in accordance with such directions and returned to your office for approval, the only question to be considered is whether the decision directing the survey has been complied with. If it has, then the survey should be approved; if it has not, then it should be returned for correction, and when corrected, approved. . . . . . The law contemplates that objections may be raised to the first survey made, and hence gives an opportunity during the period of publication of ninety days thereafter, to any person affected thereby, to appear and object to the survey; but after the survey is corrected in accordance with your decision, no further publication is provided for, but the law directs that the plat of survey shall be approved by you and thereupon a patent shall issue to the claimant as soon as practicable after such approval."

This was in full accord with a decision made by the Commissioner of the General Land Office in 1875, in the Rancho Corral de Tierra case. Speaking of the act in question, Commissioner Burdett says:

"Here, it will be observed, is no express or implied authority for the publication of a resurvey of a private land claim in California, made after contest, under a decision of this office or of the Honorable Secretary; and there being no other provisions of law authorizing such a publica tion, it follows that none can legally be made by your office in such cases; for your office is one of limited jurisdiction, with only the powers conferred by legislative enactment, which cannot legally be exceeded, however disastrous the result.

In view of the law and for the reasons above set forth, you are hereby directed not to publish, under the provisions of the act of July 1, 1864, any resurvey of a private land claim in California made under a decision of this office, or of the Honorable Secretary of the Interior, where the publication of a prior survey of the same claim has once been properly made under said act, and the survey thus published, rejected by this office." (2 C. L. L., 1196).

There are other points in support of this application which I do not deem it necessary to dwell upon farther than to say that, in my opinion, they do not furnish any ground for recalling the patent and issuing an other in its stead based upon an erroneous original survey.