entry; in fact they would have erred if they had not allowed it. As was said in the case of George A. Stone (25 L. D., 111, on review):

It was not error for the local officers to devolve upon the entrymen the risk incident to any material falsity in his proofs. It does not lie in his mouth to reproach them for accepting his representations as true and acting thereon.

The subsequent proceedings had on the special agent's report, and which resulted in the cancellation of the entry, showed conclusively that said entry was procured upon the false and misleading representations of the entryman, and not that the entry had been erroneously allowed. These proceedings demonstrated that the entryman had not established and maintained continuous residence, while it was to be inferred from his proof that he had. The entry might have been confirmed but for the laches of the entryman, which were not made to appear in his proofs. The fact that there was no error in the allowance of the entry, which is the exclusive act of the government, is the true test in determining whether repayment should be made. It being apparent that the entry was not thus erroneously allowed the statute does not authorize repayment.

Your office decision is accordingly affirmed.

PACIFIC COAST MARBLE Co. v. NORTHERN PACIFIC R. R. Co. ET AL. Motion for review of departmental decision of September 9, 1897, 25 L. D., 233, denied by Secretary Bliss, January 4, 1897.

SWAMP LAND-ACTS OF MARCH 2, 1849, AND SEPTEMBER 28, 1850.

STATE OF LOUISIANA (ON REVIEW).

The act of September 28, 1850, removed the restrictions and exceptions in the grant of swamp lands made to the State of Louisiana by the act of March 2, 1849, and vested the title in said State to all the swamp and overflowed lands which remained unsold at the passage of said act of 1850, and it therefore follows that said State is entitled to the benefit of the indemnity provisions of the acts of 1855, and 1857.

The field notes of survey having been accepted by the State as the basis of the adjustment of the swamp grant, the character of land for which the State asks indemnity may be determined thereby, except where a direct issue is made, in which case an investigation may be ordered and the character of the land determined on the evidence so submitted.

The decision of March 15, 1897, 24 L. D., 231, recalled and vacated.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.) (F. L. C.)

6, 1898.

The State of Louisiana has filed a motion for review of the decision of the Department of March 15, 1897, (24 L. D., 231) holding that the act of September 28, 1850, granting swamp lands to the several States

has no application to said State and that therefore it is not entitled to the indemnity provisions made by the act of March 2, 1855.

The decision complained of was rendered upon the appeal of the State from the action of your office rejecting the application for indemnity under the acts of March 2, 1855, (10 Stat., 634) and March 3, 1857, (11 Stat., 251) for swamp lands sold by the government after the grants made by the acts of March 2, 1849, (9 Stat., 352), and September 28, 1850, (9 Stat., 519) and prior, to said acts of March 2, 1855, and March 3, 1857.

Your office rejected these applications solely upon the ground that the only evidence submitted by the State as to the swampy character of the land for which indemnity was asked, was the certificate of the State agent stating that on examination of the field notes of survey, the lands appear to have been swamp land. You refused to make an examination of said lists to ascertain whether the field notes of survey showed said lands to be swamp and overflowed at the date of the grants for the reason that the sale of said lands by the government raised a presumption against the swampy character of the land at the date of the grant, and that indemnity would not be allowed except upon clearest proof that the lands were swamp and overflowed at the date of the grant which you required to be shown by the testimony of two disinterested witnesses.

While the Department in passing upon this appeal held that there was no sufficient proof offered by the agent of the State in support of the swampy character of the lands it also held that the swampy character or condition of the land forming the basis for indemnity should be shown in the same way and by evidence of the same character as was required to entitle the State to lands under its grant. But in considering all the legislation relative to the grants of swamp lands to this State, and of the several acts granting swamp land indemnity, it was determined that as the United States had granted, in contemplation of law, all the swamp lands in Louisiana by the act of 1849, there was no swamp land in the State subject to the act of 1850, when that act was passed, and as the latter act did not apply to the State of Louisiana, it was therefore not entitled to the indemnity granted by the acts of 1855 and 1857.

Upon this ground the action of your office rejecting the application of the State was affirmed.

It is urged by counsel for the State in the argument of this motion that the right of the State of Louisiana to the benefit of the act of September 28, 1850, has received judicial and legislative recognition by the supreme court in the cases of Martin . Marks, 97 U. S., 345; Louisiana r. United States 123 U. S., 32; Louisiana r. United States 127, U. S., 182, and by the act of Congress of March 2, 1889, (25 Stat. 877), known as the "Gay act," which was not called to the attention of the Department when the decision of March 15, 1897, was rendered.

The case of Martin v. Marks was an action in the nature of ejectment brought by Marks who claimed title under the State of Louisiana, of lands that had been listed to said State as inuring to it under the act of September 28, 1850, against Martin who relied on a patent from from the United States, dated May 20, 1873. The question at issue was whether the land so listed was confirmed by the act of March 3, 1857. The court in stating the case said:

This was an action in the nature of ejectment, brought by Marks, the plaintiff below, who asserted title under the swamp land act of Sept. 28, 1850, and the earlier act of March 2, 1849, in regard to the same class of lands in the State of Louisiana. The defendant relied on a patent from the United States, dated May 20, 1873. The evidence of plaintiff's title under the act of 1850, which is all we shall now consider, is as follows:

"NORTH-WESTERN DISTRICT, LA.

"A.-List of swamp land unfit for cultivation, selected as inuring to the State of Louisiana under the provisions of an act of Congress approved 28th September, 1850, excepting such as are rightfully claimed or owned by individuals."

It is evident that the question as to whether the State of Louisiana was entitled in common with all the other States to the benefits of the act of September 28, 1850, was considered by the court, because it assigns as the reason for the passage of the act approved March 3, 1857, the failure of the Secretary to perform the duties enjoined upon him by the act of 1850, which had become a grievance and hence the confirmatory, act of 1857, was passed. Upon this point the Court says:

It seems that, seven years after the passage of the swamp land grant, this failure of the Secretary to act had become a grievance, for which Congress deemed it necessary to provide a remedy, by the act of March 3, 1857 (11 Stat., 251), which declares that the selection of swamp and overflowed lands granted to the States by the act of 1850, heretofore made and reported to the Commissioner of the General Land Office, so far as the same shall remain vacant and unappropriated, and not interfered with by an actual settlement under any existing law of the United States, be and the same are hereby confirmed, and shall be approved and patented to the States in conformity to the provisions of said act.

The case of United States v. Louisiana, 123 U. S., 32, was an action brought by the State against the United States in the Court of Claims to recover on two demands, one arising under the act of Congress of February 20, 1811, and the other under the acts of September 28, 1850, and March 2, 1855. Referring to this claim the court says:

The second of these demands arises upon the act of Congress of September 28, 1850, 9 Stat., 519, c. 84, "to enable the State of Arkansas and other States to reclaim the swamp lands within their limits," and the act of March 2, 1855, 10 Stat., 634, c. 147, "for the relief of purchasers and locators of swamp and overflowed lands." The act of September 28, 1850, granted to the States then in the Union all the swamp and overflowed lands, made unfit thereby for cultivation, within their limits which at the time remained unsold. The second section made it the duty of the Secretary of the Interior, as soon as practicable after the passage of the act, to prepare a list of the lands described and transmit the same to the governor of the State, and at his request to cause a patent to be issued therefor. It would seem that this duty was not discharged and, notwithstanding the grant was one in praesenti, many of the

lands falling within the designation of swamp and overflowed lands were sold to other parties by the United States. The act of March 2, 1855, was designed to correct, among other things, the wrong thus done to the State; it provided that, upon due proof of such sales, by the authorized agent of the State, before the Commissioner of the General Land Office, the purchase money of the lands should be paid over to the State. Such proof was not made, but equivalent proof was submitted to the Commissioner as to the character of the lands from the field notes of the surveyor general of the State. This mode of proof was accepted by the Commissioner in other cases as early as 1850. The amount found in this way by the Commissioner on the 30th of June, 1885, to be due to the State from the United States, on account of sales of swamp lands to individuals, made prior to March 3, 1857, was $23,855.04. It does not appear that there was any serious contest in the Court of Claims, either as to the validity or the amount of these demands; but it was objected that the demand arising upon the acts of September 28, 1850, and of March 2, 1855, was barred by the statute of limitations, and that both demands were set off by the unpaid balance of the direct tax levied under the act of August 5, 1861, 12 Stat., 292, which was apportioned to the State of Louisiana. The First Comptroller of the Treasury had, at different times previous to the commencement of this action, admitted and certified that the sums claimed were due to the State on account of the five per cent net proceeds of sales of the public lands, and on account of sales of swamp lands within the State purchased by individuals; but had directed the amounts to be credited to the State on account upon the claim of the United States against her for the unpaid portion of the direct tax mentioned.

See also United States v. Louisiana, 127 U. S., 182.

The act of March 2, 1889, supra, (the Gay act) restored to the public domain lands that had been reserved from disposition because claimed to be embraced within the lands of the Spanish private land claim, known as the Houmas grant. This act restored said lands to settlement and entry under the homestead laws, but provided:

That the provisions of this act shall be limited to the lands claimed by actual settlers for purposes of cultivation whose titles are now incomplete, within the limits of the Donaldson and Scott, Daniel Clark, and Conway grants, and that after setting apart to each of said settlers not to exceed one hundred and sixty acres, the residue of the public lands within said grants shall continue to be, as they are now, a part of the public domain: And provided further, That nothing in this act shall preclude the State of Louisiana from enforcing its claim to said residue of public lands under the acts of Congress granting swamp lands to the several States of the Union.

The language of the court in the decision cited, which I have quoted at length, and the last proviso to the act of March 2, 1889, is a clear recognition of the right of the State to the benefit of the act of September 28, 1850, and sustains the former decisions of the Department holding that

the act of September 28, 1850, removed the restrictions and exceptions in the grant of swamp lands made to the State of Louisiana by the act of March 2, 1849, and vested the title in said State to all the swamp and overflowed lands which remained unsold at the passage of said act of 1850. 17 L. D., 440.

This is in harmony with the almost unbroken line of decisions by the Department, and it is, in my judgment, the true interpretation of the act; for whatever may have been the motives that induced the

passage of the act of March 2, 1849, or whatever may have been the physical conditions existing in said State at the passage of said act, it is apparent, from what has been said, that the act of September 28, 1850, enlarged the swamp land grant so as to bring within its operation all lands "the greater part of which is wet and unfit for cultivation" and made it applicable to all the States then in the Union, and, as said by Attorney-General Garland in his opinion (5 L. D., 464), it

was substantially a re-enactment of the act of March 2, 1849, so far as Louisiana was concerned, with an extension of the grant in that act so as to include the lands ⚫ which had been excluded by the exception in the former enactment, as to which it was a new and substantive grant on the 28th of September, 1850. 1 Lester, 543; Ib., 554; 2 L. D., 652; 3 L. D., 396; 5 L. D., 464; 17 L. D., 440.

Upon a careful examination of these several acts of Congress in the light of the decisions cited, the Department is satisfied that the decision of March 15, 1897, does not correctly construe the act of September 28, 1850, and that the State is entitled to the benefit of said act, and hence to the indemnity provision of the acts of 1855 and 1857. Said decision is therefore recalled and revoked and the decision of the Department of January 19, 1887, 5 L. D., 464, is reaffirmed.

As to what proof should be required to show the swampy character of the land for which indemnity is claimed, it was said in the decision of March 15, 1897, that it should be shown in the same way and by evidence of the same character as was required to entitle the State to lands under its grant. The State of Louisiana having elected to abide by the field notes in the adjustment of its swamp land grant, and that grant having been heretofore adjusted in said State under this rule, I can see no reason why any further proof should be deemed necessary, except where a direct issue is made when investigation may be ordered and the character of the land determined upon the evidence so submitted.

Inasmuch as the application of the State was rejected by your office, without examination, and solely upon the ground that no proof would be considered by you, except the testimony of two disinterested witnesses as to the swampy character of the land, you are directed to examine said lists, in accordance with the instructions herein given, but in the examination of the field notes you are to be governed by the decision of the Department of March 25, 1887, 5 L. D., 514.

TIMBER LAND ENTRY-MINERAL LAND.

CHORMICLE v. HILLER ET AL.

A contest against a timber land entry, on the ground that it embraces land of known mineral character, must be determined on the conditions existing at the date of the purchase, and not on developments subsequent thereto.