and pine trees; some of the birch trees were eighteen to twenty inches in diameter. Witness saw Mikell Lachance's improvements-a good house and one and one-half acres of growing potatoes-in the middle of lot 1; the land is not swamp and any return so describing it is false.

William Cass-a woodman-examined the land in May, 1885; examination took three or four hours; the land is twenty to thirty feet above the stream; found birch, poplar and pine trees; ten or twelve acres were bottom lands but were dry at the date of his examination; the land is not swamp but is agricultural land and any return designating it otherwise is false.

Thomas J. Walsh resides in the same section as the land involved; has thoroughly examined it dozens of times and has seen it at all seasons of the year; the land is fifty feet above river bank and has on it pine and birch trees; when the river is very high five to eight acres are overflowed; there is no swamp.

Joseph Roy first saw the land in 1883; Lachance has land cleared and has raised crops every year since and including 1883; knows every part of land, it is sixty feet above the river and has on it birch, poplar and pine trees; there are five to eight acres of wet land along the river but there is no swamp on the tract.

Michael Beaudoin has been all over the land; was there in July and in August, 1886; saw no swamp land; there are six or eight acres of low but dry bottom land along the river; birch and pine trees grow on it; the land was fifty feet above the stream.

Joseph Beaudoin has been on the land once a year for the past three years and three or four times this year; has thoroughly examined it; the land is sixty feet above river and the timber consists of pine, birch and poplar trees; there are from seven to eight acres of bottom lands; the tract is good farming land.

R. H. Fagan testified that he was an explorer and in 1883, and 1884, examined all the swamp lands in the township for the Wisconsin, Minneapolis and Pacific R. R.; there are three "kettle holes" or low places on the E. of the NE. containing about two and one-half, three and one-half and four acres respectively; these holes may be one hundred and fifty paces apart; there is a range of hills running through the land at one point fifty feet high; in his opinion the land is not swamp; it is well timbered with birch, poplar, balsam, spruce, and pine. Wit ness has examined about 20,000 acres of swamp land for the railroad company; does not think this land is, or was thirty or sixty years ago, swamp land and does not think any return could truthfully report it as such. Witness has examined the land so closely that his report would cover every five acres. Fagan filed a plat made by him showing that the land is not swamp.

Mikell Lachance, the claimant, testified that he has lived on the land since 1883, and has built a house and raised crops every year; the land is not swamp.

For the State George R. Stunz testified that he had the contract for surveying the township; section four was surveyed by his assistants; he was never on the land and knows nothing of it personally; does not know which of his assistants ran the line; supposes the field notes were made by his brother; supposes that the survey was correct.

On the Wednesday before the hearing A. W. Bradley of Duluth, met at the Pioneer Hotel at Tower witnesses Mee, Steinbrunner, Nye, and Ash and walked with them about three miles to the land and made an examination of it. They left the hotel about noon, reached the land about twenty minutes of two, left it between four and five and got back to the hotel about six. (testimony of Nye). With the exception of Mr. Stunz they were the only witnesses called in behalf of the State. Concerning the circumstances of their visit Mr. Bradley testified that he had an interest in a contract for the purchase of the land from the Minneapolis and St. Cloud R. R. (claiming under the swamp land grant) and that he "employed Mr. Mee, Mr. Steinbrunner, Mr. Nye and Mr. Ash to go with me. They were to go an examine the land in question with me and also to be witnesses." Bradley and all of these witnesses testified that sixty acres or more of the land were swamp in character E. M. Mee was the principal witness; he had seen the land once before. He found sixty acres of land, in his judgment, swamp. Mee filed a plat that all his companions testified to being substantially correct showing that three fourths of the tract involved was swamp. Bradley testified that some notes were made during the progress of the examination, but witness Steinbrunner testified that none of the party kept a written memorandum of the examination and that Mee's map was made at the hotel at Tower that night.

John Collins, an explorer, was called in rebuttal and testified that he had visited the land two years and one year ago; he was "looking around for anything he could find on his own hook, mineral or timber" and saw only seven or eight acres of swamp land.

Witnesses Walsh and Roy, it was developed at the hearing, have or had similar claims in the vicinity and it was stated that Fagan also had a claim of the same nature but not in the immediate neighborhood of the land.

Giving due weight to these circumstances and taking into consideration the opportunities the witnesses had for acquiring knowledge of the matters to which they testified, I am of opinion that the falsity of the return as swamp land of the tracts involved herein is shown by a clear preponderance of the evidence and that at the date of the grant no one of said subdivisions was in greater part swamp land within the meaning of the act. Sutton v. State of Minnesota (7 L. D., 562) and Kortsch v. State of Minnesota, (7 L. D., 313).

Your decision is accordingly affirmed.

ENTRY-PATENT-EQUITABLE ADJUDICATION.*

J. J. HAGERMAN ET AL.

An application to the Board of Equitable Adjudication, for the confirmation of an entry on which patent has issued, should be accompanied by a surrender of the outstanding patent, which will be canceled after confirmation of the entry, and prior to the issuance of a new patent.

Acting Secretary Muldrow to Commissioner Stockslager, October 30, 1888.

By letter of November 3, 1887, your predecessor submitted for action by the Board of Equitable Adjudication a list of fifteen private cash entries made at the Marquette land office, in the State of Michigan, by J. J. Hagerman et al., with a recommendation that they be confirmed, under the provisions of Sec. 2456 of the Revised Statutes.

It appearing that patents had issued and were outstanding on said entries, Secretary Lamar, by letter, dated November 9, 1887 (6 L. D., 314), submitted the list to the Honorable Attorney General, for his action, expressing the opinion in said letter, that so long as patents are outstanding on said entries, there is no authority of law for their reference to the Board of Equitable Adjudication for its confirmatory action; that there being no evidence that the patents in these cases have been returned and canceled, the entries should not on the record as made be confirmed.

The Honorable Attorney General, by his letter of October 22d instant, has returned the list to this Department, concurring in the views of my predecessor, that there can not be confirmation, without the surrender of the outstanding patents, but expressing the opinion that cancellation of patents in such cases may take place after action by the Board of Equitable Adjudication.

The list and entry papers are returned herewith, and with them I transmit copies of the letters, above referred to, of Secretary Lamar and of the Honorable Attorney General.

OPINION.

Attorney General Garland to the Secretary of the Interior October 22,

1888.

I have the honor to return herewith a list of fifteen private cash entries of public lands made at the Marquette land office, in the State of Michigan, which was referred to me by the Secretary of the Interior, in a letter dated the 9th of November last, for consideration and concurrent action.

It appears that these entries are voidable, and, having been for that reason submitted to the Commissioner of the General Land Office, for *Not reported in Vol. 7

the action of the Board of Equitable Adjudication thereon, under the law relating to suspended land entries, are by him approved and recommended to that board for confirmation. It also appears that the same entries had all been patented previously to their submission to the Commissioner, and that the outstanding patents have not as yet been surrendered. And the Secretary in his letter expressed the opinion that, until the patents are surrendered and canceled the entries should not be confirmed by the board, and furthermore that the Commissioner has no authority to lay them before it.

The case here presented is governed by section 2456 Rev. Stat., which reads as follows:

Where patents have already been issued on entries which are confirmed by the officers who are constituted the board of adjudication, the Commissioner of the General Land Office, upon the canceling of the outstanding patent, is authorized to issue a new patent, on such confirmation, to the person who made the entry, his heirs or assigns.

This provision, which is taken from the second section of the act of March 3, 1853, chap. 152, does not in terms require either the cancellation or the surrender of the outstanding patent before confirmation of the entry by the board; though it plainly contemplates not only such confirmation, but the surrender and also the cancellation of such patent before the Commissioner is authorized to issue a new patent. Under the act of 1853, the outstanding patent was required to be surrendered previously to confirmation of the entry by the board. This is shown by the provision thereof giving authority to confirm, which confers it only upon those officers who constituted the board of adjudication "at the time of such surrender." But that act did not call for a cancellation of the patent prior to confirmation of the entry by the board. Such cancellation was, indeed, thereby required before the Commissioner could issue a new patent on the confirmation of the entry by the board, but the confirmation of the entry might lawfully take place prior to the cancellation of the patent.

Although the surrender of the outstanding patent in advance of the action of the board upon the entry is not in terms required by section 2456 of the revision, as was the case in the act of 1853, yet such a requirement is entirely compatible with the language of that section; in view of which it may fairly be presumed that the practice established by the act of 1853, touching such surrender, was not meant to be disturbed by the revision.

It is my opinion that, in the case of an entry of the above character upon which a patent has already issued, where the action of the board of equitable adjudication is applied for with a view to obtaining the is sue of a new one by the Commissioner under section 2456, Rev. Stats., a surrender of the outstanding patent should accompany the application, or at least occur before the entry is acted upon by the board; that such patent, when surrendered, need not be canceled until after confirmation

of the entry; and that it is sufficient if the cancellation thereof be done previously to the issue of a new patent by the Commissioner.

I accordingly concur in the view expressed by the Secretary in so far as it affirms the requirement of a surrender of the outstanding patent before action on the entry by the board, and differ therefrom only as regards the cancellation of the patent-holding that this may take place after such action is had.

ACCOUNTS-DEPUTY SURVEYOR'S CONTRACT.

ERNST BUETTNER.

The insertion of a provision in a deputy surveyor's contract that the cost of the work performed thereunder shall not exceed a specified amount, operates as a limitation upon the other provisions of the contract, and restricts the adjustment of the account within the maximum specified.

Secretary Vilas to Commissioner Stockslager, February 7, 1889.

I have considered the appeal of Ernst Buettner, United States deputy surveyor, from the decision of your office, dated February 7, 1888, in the matter of his claim for $141.72, which sum had been disallowed by your office upon an adjustment made May 6, 1885, of his account for certain work done under a contract duly made.

It appears that said contract was made August 27, 1884, between Fred. Salomon, surveyor-general of the United States for Utah Territory, acting for and in behalf of the United States, of the one part, and this appellant, deputy surveyor, of the other part.

Said contract provided for certain surveys to be made by said deputy surveyor at a cost "not to exceed the amount of two thousand five hundred ($2500) dollars."

It then provided certain rates per mile for base, standard, meridian and meander lines, other rates for township lines, and still other rates for section lines. The surveys were made, and the account rendered thereon aggregated $2,641.72, or $141.72 in excess of the maximum amount named in the contract.

Your office, in adjusting the account reported for payment the sum of $2500, for the reason that it had been stipulated in the contract that the sum total for surveys to be made thereunder should not exceed $2500. This amounted to a disallowance of the $141.72 in excess of $2500.

Application was subsequently made to your office for favorable adjustment as to said balance of $141.72, which it was claimed was due the deputy surveyor for the surveys executed under the contract herein mentioned. Your office, acting on said application, held in the decision appealed from that," the deputy surveyor having entered into specific contract with the United States limiting in express terms the sum the United States agreed to pay and the contractor to receive for the work