Subsequently Congress by act of May 24, 1828, confirmed to Valle and his associates, the tract for which confirmation was prayed-according to a survey made in 1806-providing that said confirmation thus granted, shall only extend to a relinquishment of title on the part of the United States, and shall not prejudice the rights of third parties, nor any title heretofore derived from the United States.

The proceedings under review were founded upon an indictment in a circuit court of the State of Missouri, against plaintiff in error, for waste committed on a sixteenth section belonging to the inhabitants of the township situated within the limits of the confirmation referred to. It was insisted upon by the defendant, that the land in question being within the limits of the survey of 1806, and the confirmation by Congress, was never public land subject to donation for the use of schools; that the reservation of section sixteen for the use of schools, could only refer to public lands proper, and could not attach to lands embraced in private claims which had previous to, and at the time of such donation been claimed by individuals, and reserved by Congress to satisfy those claims. But the court construed the proviso reserving such lands from sale as neither declaring or importing a final and permanent divestiture or any divestiture whatever of the title of the United States, but merely a temporary arrangement for the purpose of investigation, leaving the title in the government.

Then speaking of the grant to the State of equivalent lands, where section sixteen had been sold or otherwise disposed of, the court say: Sale, necessarily signifying a legal sale by competent authority, is a disposition final and irrevocable of the land. The phrase "or otherwise disposed of" must signify some disposition of the property equally efficient, and equally incompatible with any right in the State present or potential, as deducible from the act of 1820, and the ordinance of the same year.

The court therefore held that the reservation from sale of the lands within the limits of the private land claim, did not prevent the title of the State from attaching to the sixteenth section specifically.

To the same effect is the ruling in the.cases of Cooper v. Roberts (18 How., 173); Beecher v. Wetherby (95 U. S., 517); Buttz v. Northern Pacific R. R. (119 U. S., 55).

In the case of Cooper v. Roberts the school section in controversy was designated by survey in 1847. At that time it was under lease from the government for the purpose of mining for lead and other ores.

The question was also raised whether the act of 1847 providing for the sale of lands in this region was not an appropriation and disposal of all mineral lands without reference to the school reservation contained in the second section of the act.

In 1850, Congress abrogated the clause of the act of 1847 distinguishing the mineral from other public lands and placed them all alike under the ordinary system for the disposal of the public domain reserving to lessees and occupants the privileges conferred by the act of 1847.

Two questions were presented in the case, (1) Whether the act of 1847 created a legal impediment to the operation of the school grant either by the reservation of the land for public uses, or by its appropriation to superior claims, and (2)—Whether the lease of the lands which existed at the time the section was designated operated as a like impedi

ment.

The township plat was filed in the summer of 1847, and hence the grant attached specifically at that date if the section had not been sold or otherwise disposed of.

The lease (as observed by the court) expired by "efflux of time" in September 1848. Upon these facts the court said,

Hence, had there been a legal impediment to the execution of the compact with Michigan, erected either by the second section of the act of 1847, which separated for some purposes the mineral from other public lands, or by the privileges granted to lessees or their assigns, in the 3rd section of that act, it was removed by the repealing clause of the act of 1850, and the non-compliance with the conditions on which the privileges depended. The section number 16, was at that date, disencumbered, and subject to the operation of the compact, whatever might have been its pre-existing state.

The principle broadly and distinctly ruled by the court in this case, is, that the 16th section is subject to the operation of the grant, although in reservation, if disencumbered before the compact has been fulfilled by the assignment of equivalent land; or in other words, that while the grant is a grant in presenti attaching to the specific lands which have not at the date of the survey been sold or disposed of, it is nevertheless subject to a reservation of such lands, so long as such reservation shall continue.

In the case of Beecher v. Wetherby, the Indian title was extinguished prior to the survey of the township, and by the same act the Indians were permitted to remain on said ceded lands for two years and until the President should notify them that the lands were wanted. While the land was so reserved the 16th section was designated by survey, to wit: in June, 1854, and hence the grant immediately attached. The Indians manifesting unwillingness to remove from their reservation the United States, by treaty, ceded to the Indians these lands for a permanent home, the treaty taking effect upon its ratification in August, 1854. In 1871, Congress authorized a sale of these lands and directed that the proceeds be applied to the sole and exclusive use and benefit of this tribe of Indians, without exception or reservation. But the court said that the direction to sell said lands for the benefit of the Stockbridge Munsee tribes did not embrace the 16th section, because "it will not be supposed that Congress intended to authorize a sale of land which it had previously disposed of."

Speaking of the rights of the State under the grant the court say: In the construction of grants supposed to embrace lands in the occupation of Indians, questions have arisen whether Congress intended to transfer the fee, or otherwise; but the power of the United States to make such transfer has in no instance

been denied. In the present case, there can hardly be a doubt that Congress intended to vest in the State the fee to section sixteen in every township, subject, it is true, as in all other cases of grants of public lands, to the existing occupancy of the Indians so long as that occupancy should continue.

Now the court clearly ruled that the temporary reservation of the 16th section did not take it out of the operation of the grant, and that the right of possession passed to the State immediately upon being disencumbered. Furthermore that the direction to apply the proceeds of the sale of the reservation to a particular object did not include the 16th section which had been previously disposed of.

The question before the court in the case of Buttz v. Northern Pacific R. R. Co. was whether lands to which the Indian title had not been extinguished (and hence in reservation) passed by the grant to the company. The court held that the grant to the road operated to convey the fee in said lands to the company subject to the right of occupancy by the Indians.

The grant contained a stipulation that the government would extinguish the Indian title as rapidly as might be "consistent with public policy, and the welfare of the Indians." The land was therefore appropriated and reserved for the use of the Indians until public policy and the general welfare of the Indians demanded its extinguishment. How long that would or should continue no one could tell. But yet the grant passed the fee to the company in such lands upon the filing of map of definite location, "subject to that condition so far as the Indian title was concerned."

It is therefore not inconsistent with the theory of a grant in presenti that the full free and present enjoyment of rights under the grant should be subject to a contingency.

The principle announced in the cases cited as controlling the grant for school purposes, is alike applicable to the grant of September 28, 1850, granting to the State all of the swamp and overflowed land which shall remain unsold at the date of the grant, which included all land of the character specified, owned by the United States at the date of the act, although they may at that time be reserved from sale, or set apart for some temporary use of the government.

So therefore the swamp land grant is a grant in presenti vesting in the State the fee simple to all lands of that description at the date of the passage of the act, subject to the use of the government or other uses for which a reservation is made, so long as that reservation shall continue.

In the matter of the application of the State of Illinois for certification under the swamp, land grant, of certain even sections within the six mile limit of the Mobile and Chicago Railroad, Secretary McClellan held that the State had no right to such sections, because they had been reserved for the special purpose of reimbursing the government for lands granted to the road. It was not because the lands were simply in reservation that the claim of the road was rejected, but because the

reservation was of such character as amounted to a disposition of the land for other purposes.

It was the theory of the government, in making grants to aid in the construction of roads, that the land along the route of road would be enhanced in value by the building of the road; and alternate sections were reserved to be disposed of for the benefit of the government, at not less than the double minimum price, to reimburse the government for lands granted to the road. Any other disposition of such lands would be incompatible with the policy of the government in respect to these grants.

It is not intended to hold in this opinion that the swamp grant attaches to any reservation that may amount to a practical disposition of the land, but it is sufficient for the purposes of this case to hold that the wood reservation on Bois Blanc Island, being for mere temporary use for the purpose of supplying the garrison at Fort Mackinaw with fuel, the object of which would terminate with the consumption of the fuel, was not such a sale or disposition of the land as to except it from the operation of the grant.

I am, upon the whole, unable to concur in the recommendation for suit.

CIRCULAR- ACT OF MARCH 2, 1889.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 8, 1889.

Registers and Receivers of United States Land Offices:

GENTLEMEN: Your attention is called to the provisions of an act of Congress entitled "An act to withdraw certain public lands from private entry and for other purposes," approved March 2, 1889, a copy of which is hereto attached, containing eight sections.

The first section of said act provides that from and after its passage "no public lands of the United States, except those in the State of Missouri, shall be subject to private entry." This relates to the private sale or entry of " offered " lands under sections 2354 and 2357, U. S. R. S. See pages 4 to 8, 90 and 91, general circular, January 1, 1889. No sale or location, at private entry, will be admissible, under said first section, except in Missouri, but disposals of this class of "offered" lands under the pre-emption, homestead, or other laws, are not otherwise affected thereby.

The second section of the act allows in general terms any party who has heretofore made a homestead entry and who has not perfected title thereunder to make another homestead entry, while denying such right to any party who perfects title to lands under the pre-emption or homestead laws already initiated, and specifically provides that parties who have existing pre-emption rights may transmute them to homestead

entries and perfect title to the lands under the homestead laws, although they may have heretofore had the benefit thereof.

Therefore you will not hereafter reject a homestead application on the ground that the applicant can not take the prescribed oath that he has not previously made such an entry, but he will be required to show by affidavit, designating the entry formerly made by description of the land, number and date of entry, or other sufficient data, that it was made prior to the date of said act, and also that he has not since perfected a pre-emption or homestead title initiated prior to that date. In cases when the former entry was made subsequent to the date of the act, the rule remains unchanged, as given on page 17 of the general circular of January 1, 1889.

The third section provides for permission to be granted in certain cases by the register and receiver of the proper district land office for parties claiming public land as settlers under existing laws to leave and be absent from the land settled upon for a specified period, not to exceed one year at any one time. The applicant for such permission will be required to submit testimony to consist of his own affidavit, corroborated by the affidavits of disinterested witnesses, executed before the register or receiver or some officer in the land district using a seal and authorized to administer oaths, setting forth in detail the facts on which he relies to support his application, and which must be sufficient to satisfy the register and receiver, who are enjoined to exercise their best and most careful judgment in the matter, that he is unable by reason of a total or partial destruction or failure of crops, sickness, or other unavoidable casualty to secure a support for himself or those dependent upon him upon the land settled upon. In case a leave of absence is granted the register and receiver will enter such action on their records, indicating the period for which granted, and promptly report the fact to this office, transmitting the testimony on which their action is based. In case of refusal the applicant will be allowed the right of appeal on the usual conditions.

By reference to section 4 you will observe that it simply fixes at $1.25 per acre the price of certain lands within the limits of railroad grants which had been increased by law to the double minimum price.

The 5th and 6th sections both provide that parties who made homestead entries prior to the date of the act, of less than 160 acres, shall have the right to make an additional entry of a quantity sufficient with the original entry to complete the maximum quantity of 160 acres, without affecting existing rights of soldiers--see pages 26, 27 of circular of January 1, 1889-or of settlers within railroad limits-see pages 21, 22, and 23 idem.

1. The fifth section provides for an additional entry of land which shall be contiguous to the land embraced in the orginial entry, for which the final proof of residence and cultivation made on the original entry shall be sufficient, but of which no party shall have the benefit who does not,