duty and mine with respect to these lands. What the statute confers, the statute means to be enjoyed. What the statute directs, it means to have done. Not to do it, or even delay unnecessarily the doing of it, is to violate the statute and involves a grave dereliction of duty.

The views thus expressed are strictly applicable to the matter now under consideration; and further reflection shows no cause for changing or modifying them in the least.

I therefore decline to concur in your recommendations to the Attorney General, but, on the contrary, I have to direct that you cause said railroad grant to be forthwith adjusted, and transmit for my approval, in the customary form, proper lists of lands subject to selection and selected by said company, within the indemnity limits of said grant.

MINING CLAIM-POSTING; BOARD OF EQUITABLE ADJUDICATION.

NEW YORK LODE & MILL-SITE CLAIM.

An entry, made on application covering a lode claim and contiguous mill-site, where the proof shows full compliance with the law, except in posting on the mill-site portion of the claim, may be confirmed by the Board of Equitable Adjudication, in the absence of an adverse claim, and where the informality was the result of an honest mistake.

The ruling in John W. Bailey et al. modified.

Acting Secretary Muldrow to Commissioner Sparks, March 23, 1887.

November 4, 1878, Hiram B. Everest made mineral entry No. 1091, einbracing the New York Lode and Mill-Site Claim, situated in Grand Island mining district, Central City, Colorado. The tract embraced in the lode and mill-site portions of the claim respectively lie contiguous, and together contain about 7.09 acres. The proofs submitted when the entry was allowed by the local office show that the law had been complied with in all particulars, except that the plat and notice of applica tion for patent had not been posted upon the mill-site portion of the claim as required by Section 2337 of the United States Revised Statutes, but only upon the lode portion thereof. Accordingly, after having made several ineffectual calls for said absent proof, your office, on March 3, 1885, issued patent for the lode portion of the claim, and by letter "N,' dated October 2, 1885, held said entry for cancellation as to the millsite portion thereof. From this decision an appeal has been filed, and the case is here for consideration.

It appears from the record that the failure to furnish the necessary proof in this case arose from no intention on the part of claimant to evade the law, but was an honest mistake for which the United States deputy surveyor and the local office were to a certain extent responsi ble; that claimant now owns two lode claims contiguous to this mill-site, and has expended considerable sums of money on each and can not successfully work them without this mill-site; that the lands embraced in said mill-site are of no practical value to any one except the owner of 2278 DEC-33

said lodes; and that no ad verse claim has ever been set up, and claimant has held sole and undisputed possession of said mill-site since his entry in 1878. He therefore asks that your sa id office decision be re. versed and that patent issue for said mill-site.

In support of said appeal is cited the case of John W. Bailey et al., and Grand View Mining and Smelting Company (3 L. D., 386), in which the facts and circumstances were similar to those in this case.

If said case is to be followed as a preced ent, it would seem to rule this one and thus sustain the appeal. But I am of opinion that the conclusion in said case is not in harmony with section 2337 of the United States Revised Statutes. Said section requires that a copy of the plat and notice of application for patent must be conspicuously posted upon the mill-site as well as upon the vein or lode claim for the statutory period of sixty days. See also paragraph 73, U. S. Mining Laws and Regulations thereunder, October 31, 1881.

I think, however, that this is a case coming under section 2457 U. S. Revised Statutes. The law has been substantially complied with, the informality appears to have arisen from an honest mistake, and there is no adverse claim.

Entertaining these views, I reverse your said office decision, and return herewith the papers in the case, with directions that in case appellant by his counsel file within sixty days written application for submission of this case to the Board of Equitable Adjudication, the same be duly certified for the action of that tribunal.

The ruling in the case of Bailey et al. (supra) is modified in accordance with the views above expressed.

SWAMP LANDS-ADJUSTMENT OF GRANT.

STATE OF LOUISIANA.

Field notes of survey made after the passage of the swamp grants are presumed to designate properly the character of the lands described with reference to said grants. No such presumption attends the field notes of survey made before the passage of said acts.

OL agreement to make the field notes of survey the basis of adjustment the State will only take such lands as are clearly shown by the notes to be of the character granted.

When the field notes of survey have been made since the passage of the act of 1349, 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"; but where made before the passage of that act all the descriptive words in the grant, or words clearly of a like import, must appear; and where they do not so appear, the State must show by other satis factory evidence that the lands claimed are of the class comtemplated by the grant.

Secretary Lamar to Commissioner Sparks, March 25, 1887.

On November 21, 1883, (1 L. D., 521), your office refused the application of the State of Louisiana to have all lands listed to said State that

are described by the field notes as "low prairie, not arable," "not fit for cultivation," "bottom lands," "low ground," or "low wet lands," for the reason that the lands so described were not necessarily "swamp and overflowed lands made un fit thereby for cultivation."

Said decision of your office also states that, "The State made field selections at an early date of the swamp lands claimed under its grant. Recently, upon representation that there were still remaining unselected lands that were of the character granted, the application of the State to have the adjustment of the grant proceeded with and completed by an examination of the field notes of township surveys was acceded to," and that your office adopted the rule in making such adjustment that "where the field notes show the lands to be 'swamp and overflowed,' such tracts are to be listed to the State." From said decision an appeal was taken, and this Department on May 12, 1886, affirmed your office decision. Upon the application of the State's attorney, said departmental decision was recalled on July 9, 1886, to enable him to file argument in the cause.

The whole record has received careful consideration. In the appcal filed by the State, it is alleged that your office erred in stating that "the State made swamp land selections at an early day in Louisiana," that "recently, upon representations that there were still remaining unselected lands, the Sta te applied to have the field notes made the basis for adjustment," and your office acceded to the request; that lands described as "low wet, bottom," etc., are not conclusively shown to be swamp or overflowed lands within the meaning of the swamp grant; and that the State and government must be bound by the field notes in adjusting said grant.

By the first section of the act of Congress approved March 2, 1849 (9 Stat., 352), there was granted to said State "the whole of those swamp and overflowed lands, which may be or are found unfit for cultivation." The second section of said act provides that as soon as the Secretary of the Treasury shall be advised by the governor of said State that the State has made the necessary preparation to defray the expenses thereof, he shall cause a personal examination to be made under the direction of the surveyor general thereof, by experienced and faithful deputies of all the swamp lands therein which are subject to overflow and unfit for cultivation, and a list of the same to be made out, and certified by the deputies and surveyor-general to the Secretary of the Treasury, who shall approve the same, so far as they are not claimed or held by individuals; and on that approval, the fee simple to said lands shall vest in the said State of Louisiana. Section three provides how the selection shall be made when only part of a subdivision is swamp land, and also exempts from the provisions of said act all lands fronting on rivers, creeks, bayous, water-courses, which have been surveyed into lots or tracts, under the acts of March 3, 1811 (2 Stat., 662) and May 24, 1824 (4 Stat., 34), and it further provides "that the

United States shall in no manner be held liable for any expense incurred in selecting these lands and making out the lists thereof, or for making any surveys that may be required to carry out the provisions of this act."

It appears that your office, on April 18, 1850 (Vol. 1, p. 46, General Land Office Record), with the approval of the Secretary of the Interior, issued to the surveyor-general of said State general instructions for his guidance in the execution of said act. Among other things, he was advised that "the true intent of the act requires that the selection of those lands should be made upon the most economical system possible. Hence, where the State is willing that that course should be adopted and the field notes designates the limits of swamp and overflow, those field notes may govern in determining the land to which the State is entitled under the law, but where lands have been represented by the field notes as overflowed or swamp lands, but which are now believed not to be of that character, they should be now examined in reference to those points before deciding whether or not they shall enure to the State under the act; " that the Secretary being authorized by said act to cause said examination to be made at the expense of the State, is willing that the governor should select the agents for that serv ice, subject to the approval of the surveyor-general; and that, if the governor selects the persons to make the examinations and lists required by said act, the lists of lands falling to the State made by said agents must be certified by them to the surveyor-general, who, if satis fied of their correctness, will transmit the same to your office. Under said instructions, lists embracing many millions of acres were transmitted to your office, and these lists were absolutely confirmed to the State by act of Congress approved March 3, 1857 (11 Stat., 251, R. S., Sec. 2484), "so far as the same remained vacant and unappropriated and not interfered with by an actual settlement under any law of the United States." Martin v. Marks (97 U. S., 345).

The act of Congress approved September 28, 1850 (9 Stat., 519), 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 unsold at the date of the passage of the act. The second section of said last-named act provides that the Sccretary of the Interior, as soon as practicable after the passage of said act, shall make out a list and plats of the lands granted, and when requested by the governor cause a patent to be issued for the lands so listed.

On November 21, 1850 (1st Lester, 543), instructions were issued to the proper land officers for the purpose of carrying into execution the provisions of the last named act, and they provided that if the authorities of the State were willing to adopt the field notes of survey as the basis for the list of lands granted, then they should be so regarded by said officers.

As early as December 23, 1851 (1 Lester, 549), this Department held that both of said acts were present grants, taking effect from the date of their passage, and that the act of 1849 applies to the State of Louisi ana alone, providing a particular method of selection, while the act of 1850 applies to Arkansas and the other States, and made it the duty of the Secretary of the Interior to make out lists and plats of the granted lands at the expense of the United States.

On January 14, 1856, my predecessor, Secretary McClelland, held that the act of 1849 is not merged in the act of 1850, but that "each is to be executed according to its special tenor and provisions, the latter being merely cumulative and embracing land which was excepted from the former." (1 Lester, 551.)

It has been uniformly held by this Department and by the courts that said acts granted to the States referred to therein all of the land of the particular character des cribed, to which the United States had title and not reserved at the date of said acts. 1 Lester, Nos. 578-595; 2 L. D., 652; 3 L. D., 174; 4 L. D., 415; 9 Opin., 254; Railroad Company v. Fremont County, 9 Wall., 89; French v. Fyan, 3 Otto, 169.

In the case of the swamp land claim of the State of Oregon (7 C. L. O., 53), my predecessor, Secretary Schurz, on June 4, 1880, rendered a well considered decision construing the act of 1850, and re-affirming the former decisions declaring that said act was a present grant, vesting an immediate interest in the State; that the Secretary of the Interior is charged with the duty of making out the list and plats of the lands granted and he may adopt such method and employ the meaus for the performance of that duty that seems best in his judgment for the interests of the State and the government; that the State's selection has no binding effect upon the government, and the Secretary is not bound to list every tract claimed by the State. It was also held in said decision that while the States have been permitted to elect that they will adopt the field notes as the basis of their claim, there is no statutory requirement compelling them to do so, and if the Secretary fails to perform the plain duty required by said act, the title of the State is not affected thereby, citing Railroad Company v. Smith (9 Wall., 95).

It is quite clear that the field notes above indicated do not describe the land as of the character granted by said acts and if, as counsel alleges in his appeal, your office decision was erroneous in stating that the State applied to have the field notes ma de the basis for adjustment, and such request was acceded to, then the State would not be bound to accept the field notes as the basis of adjustment. Counsel for the State, however, in his letter addressed to your office, upon which said decision was rendered, asks that your office rule that where the field notes describe the character of the land as above, they are swamp or overflowed within the meaning of the grant; that the claim of the State to the lands in question shall be allowed on the basis of the field notes, and in case of a refusal of that request that a field examination