summer of 1882 his family went to the east on a visit, and did not return until in the fall of same year, about the time final proof was made. It is further shown that claimant was in Marion during the summer of 1882 fully as much as on the land in question, and after proving up he continued to reside with his family in the same house in which they resided prior to the making of said entry.

I think this is a clear prima facie case of failure to establish and maintain a residence on the land as required by the homestead law. The idea that an individual can acquire or maintain a residence on a tract of public land by making occasional visits thereto while his family are residing elsewhere and while all his interests and household effects, apparently, are with his family, has been long. since exploded, if, indeed, it ever had any real existence. That is to say, in order for an individual to establish residence on a tract of public land as required under the homestead law, it is necessary that there be a combination of act and intent on his part, the act of occupying and living upon said tract, and the intention of making the same his home to the exclusion of a home elsewhere. That is "a true, fixed and permanent home, and principal establishment, and to which whenever he is absent he has the intention of returning." Story's "Conflict of Laws," page 35. Judged by this test it would appear that claimant's residence in Iowa comes nearer the standard than his residence on the tract in question.

But the sustaining of claimant's motion to dismiss the contest obviated the necessity of his submitting any evidence in support of his claim. As was said in the case of James Copeland (4 L. D. 276): “Had the motion been overruled, he would still have had the right to offer evidence to rebut the proof offered against him."

The said decision of your office is accordingly reversed; and you will direct the local office to continue the hearing of this contest at as early a day as practicable, giving all parties in interest due and sufficient notice thereof. If at the time set for said hearing the claimant fail to submit any evidence, his said entry will then be canceled.

PRACTICE-RELINQUISHMENT EVIDENCE.

CROUGHAN v. SMITH ET AL.

A relinquishment, executed prior to contest, and filed after the same was properly dismissed, cannot be held to inure to the benefit of the contestant.

An entry should not be canceled upon evidence taken in a case between other parties and dismissed prior to the allowance of the said entry.

Secretary Lamar to Commissioner Sparks, March 3, 1886.

I have before me the case of Bridget Croughan v. Daniel Y. Smith and T. K. Long, involving the NW. of Sec. 10, T. 138 N., R. 81 W., Bismarck, Dakota, on appeal by Long from your predecessor's decision. of November 29, 1884, awarding the land to Croughan.

It appears from the record that Croughan brought contest against Smith's timber-culture entry on August 31, 1883, for failure to break and cultivate during the second year; that hearing was set for October 17 following, but on stipulation the case was 'continued, and a commission issued to take testimony, the return day being fixed at November 1, 1883; that, as alleged, the contestant having submitted his testimony before the commissioner, by stipulation a continuance to a day to be subsequently agreed upon was granted, in order to enable the defendant to produce his witnesses; that said day was, however, not agreed upon, and further testimony was not taken, nor was the testimony already taken transmitted to the local office; that on the day of final hearing defendant's counsel moved the dismissal of the contest, and, neither contestant nor her counsel being present, the motion was granted; that on the following day Smith's relinquishment, executed August 6, 1883, was filed by one Johnson, who in turn relinquished April 22, 1884, and the entry of Long, the appellant here, was allowed; that meanwhile Croughan appealed from the action of the local officers dismissing her contest, your office sustained their action on June 7, 1884 (without knowledge, however, of the proceedings before the commissioner), and from this decision, of which the contestant had due notice, there has been no appeal; that on October 7, 1884, after the expiration of the time limited for appeal, the contestant forwarded certain papers purporting to be the testimony taken before the commissioner and his certificate to the proceedings had before him, as above recited; and that thereupon your predecessor, in the decision aforesaid, reversed his former action, re-instated Croughan's contest, held that the relinquishment inured to her benefit, and canceled Long's timber-culture entry.

For the several reasons hereinafter stated, I must decline to concur in this action. In the first place, the papers purporting to be the testimony taken before the commissioner have not been properly put in evidence, so as to affect Long, who is a party in interest, and to warrant this summary cancellation of his entry. Second, the ruling that Smith's relinquishment inured to the contestant's benefit was erroneous, because the relinquishment was executed before the contest's initiation and filed after it was properly dismissed. Third, the action of contestee's attorney, even admitting that he was employed by Johnson, in obtaining a continuance before the commissioner and then moving the local officers to dismiss, wrought no injury to the contestant's interests; it was because of her non-appearance at the final hearing, and her neglect to protect her own interests before and at said hearing, that the local officers dismissed the contest. Fourth, she again grossly neglected her case by her failure to appeal from the decision of your office sustaining the action of the local officers. By such failure, said decision became. final. The contestant sets up that the decision was made without knowledge of the proceedings before the commissioner; but, if so, that want of knowledge was caused by her own neglect to state the

facts when she appealed from the local office. Contestant urges that Long made his entry pending her appeal to your office, and took his chances of its successful issue; but, adopting this view of the case, I think that he has a right to stand on the law, and to insist that her failure to appeal terminated her right of contest absolutely as against his lawfully-acquired adverse interest in the tract.

For the foregoing reasons, your predecessor's said decision is reversed, and the land is awarded to Long.

SWAMP LAND-BOIS BLANC ISLAND.

W. H. CUSHING ET AL. v. STATE OF MICHIGAN.

Where the field notes of survey have been adopted as the basis of adjustment, and the character of the land cannot be determined therefrom, it is incumbent upon the State to establish its alleged right by other satisfactory evidence.

Secretary Lamar to Commissioner Sparks, February 25, 1886.

I have considered the appeal of W. H. Cushing, and thirty-seven other homestead claimants, from the action of your office holding for cancellation their homestead entries of certain lots of land on Bois Blanc Island, Reed City Land District, Michigan. Separate appeals have been filed in each of said cases, and they have been transmitted with your letters of October 21, 1885, and January 29, 1886, and are as follows:

These cases involve the title to certain lots of land on Bois Blanc Island, in the State of Michigan, which the State claims to be swamp land, and which therefore inured to the State, under the grant of September 28, 1850. A decision upon that question will decide the issue presented in each case.

Bois Blanc Island was surveyed in 1827, and the survey thereof approved by the surveyor-general the same year. By that survey it was subdivided into thirty-four irregular sections, according to the legal subdivisions provided for by the act of May 24, 1824. By Executive order of November 8, 1827, part of said island was reserved for lighthouse and military purposes, and until January, 1884, the impression prevailed that the entire island was so reserved. About this date the appellants made their entries, and the State of Michigan also asserted her right to it as swamp land.

The State claims title under the act of 1850, and that having shortly after the passage of said act elected to take the field notes and plats of official survey as the basis of selection of the lands, under the grant, that her title is perfected and the issue of patent is not necessary or essential to complete it.

The principle has been firmly established by the decision of the courts and of this Department that the grant of swamp lands, made to the several States, was a grant in presenti, and conferred a present vested right to such lands as of the date of the grant, and that the field notes

of survey may be taken as a basis in determining the character of the land, if the State so elects. If the State does not so elect, they shall then furnish satisfactory evidence that the lands are of the character embraced in the grant.

By the third section of the act, it is provided that all legal subdivisions, the greater part of which is wet and unfit for cultivation, shall be included as swamp land; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded.

Hence, to establish the right of the State to these lands, under the contract claimed by them, to govern in the selection of the lands, the survey relied upon must show the character of the land in each smallest legal subdivision. If the character of the land can not be determined by the survey, the State must show the character of the land by other satisfactory evidence.

The survey of 1827, relied on by the State as establishing their right to these lands, does not pretend to show it, and their claim is therefore not supported by the evidence relied upon.

But the right of the State to each smallest legal subdivision, the greater part of which was swamp and too wet for cultivation, vested at the date of the grant, and has remained so vested ever since, and their title to such land is perfected when it is identified.

As the survey furnishes no satisfactory evidence of the character of this land, and the State cannot be deprived of it if it is of the character claimed, you are hereby directed to return the record of these several cases to the local office, with instructions to order a hearing to determine the character of these lands at the date of the grant, as near as may be obtained, after notice to all parties, and if it should appear from such examination that the greater part of any subdivision was swamp and unfit for cultivation, such subdivision will inure to the benefit of the State under the grant, and if the evidence shows that the greater part of any subdivision was not of such character, such subdivision shall be subject to entry.

Your decisions in the several cases are accordingly modified.

SUIT TO VACATE PATENT-STATE OF CALIFORNIA,

LAKES KERN AND BUENA VISTA.

The United States could convey, by patent, no title under the swamp grant for land covered by navigable waters of the State.

A patent of such character having been improvidently and illegally issued, through which a great public wrong may be perpetrated, it is held that public policy requires the institution of suit to vacate the same.

Secretary Lamar to the Attorney-General, March 3, 1886.

In 1879 your Department transmitted to this Department certain communications from A. A. Cohen, Esq., of San Francisco, relative to the previous action of the General Land Office in issuing to the State of

California patents, under the swamp land act, for the lands covered by Lakes Kern and Buena Vista. It was alleged by Cohen that said patents had been illegally issued, inasmuch as the waters of said lakes were navigable, and he asked that suit be brought by the government to cause said patents to be canceled.

On May 31, 1881, Acting Secretary Bell of this Department declined to recommend that such suit be brought. Afterwards, on February 13, 1884, your predecessor, Mr. Brewster, transmitted to this Department a communication from Ward McAllister, Esq., Assistant U. S. Attorney for California, and from others, all asking that suit be brought to cancel said patents. On August 7, 1885, by letter to you, I declined to make the recommendation sought, stating, among other things, that the action of my predecessor should be regarded as final lest a reversal thereof, after a lapse of four years, would result in "destroying property rights, which may have been purchased and paid for in the meantime upon the faith of this, presumably, final action of the Executive."

Since the above was written, direct application has been made to me in behalf of Miller, Lux, Cornwell, and other parties in interest, to reconsider my former action.

It having been made to appear to me by certified copy of part of the assessment list of property in Kern County, California, covering the lands in question, that all of them belong now and always have belonged to J. B. Haggin, who was the original purchaser of the same from the State of California, I have deemed it proper to re examine said matter.

The report of the Commissioner of the General Land Office, which was transmitted to you by my letter of August 7, 1885, gives a full and detailed history of all the facts and circumstances connected with the issuing of the patents. It is not necessary at this time to rehearse all the matters therein stated. But it appears from the plats of the original survey of the lands circumjacent to these lakes, that the latter were displayed thereon as bodies of water, surrounded within the meander lines by tule swamp lands not embraced by the subdivisional surveys and not designated by descriptive areas and allotments.

After the passage of the act of July 23, 1866, (14 Stat., 218,) to quiet land titles in California, it was considered important that such descrip tive designations should be carried into the swamp land lists and patents as would identify the lands obtained by the State, and the surveyor general was directed to protract the surveys over lands theretofore noted as unsurveyed, swamp and overflowed.

Under these instructions, through a palpable, if not inexcusable, error, without making an actual survey, or without regarding the water margin of these lakes, the lines were protracted upon plats directly across from meander to meander, including both lake and swamp in the subdivisions. The surveyor general certified to the correctness of copies of the plats and forwarded them to the General Land Office, where, ap1819 L D--27