The measurement of such compensation in cases like the present is fixed by this Department in accordance with the decisions of the Supreme Court. This case is in all essentials parallel to that of Wooden Ware Company vs. the United States, (106 U. S., 432,) in which timber belonging to the United States was "sold to the defendant, which was not chargeable with any intentional wrong or misconduct or bad faith in the purchase." What the Supreme Court said in that case is in every respect applicable to this. "The timber at all stages of the conversion was the property of the plaintiff. Its purchase by defendant did not divest the title nor the right of possession. The recovery of any sum whatever is based upon that proposition. This right, at the moment preceding the purchase by defendant, was perfect, with no right in any one to set up a claim for work and labor bestowed upon it by the wrong-doer. By purchase from the wrong-doer, defendant did not acquire any better title to the property than the vendor had." Therefore the Supreme Court decides that the right to recover against the defendant is just what it was against his vendor the moment before he interfered and acquired possession." It is worthy of note that in making this decision the U. S. Supreme Court affirms the decision of the U. S. Circuit Court for the Eastern District of Wisconsin, within the limits of which District the present case arises. In conclusion the U. S. Supreme Court says: REPAYMENT. THOMAS M. KILE. Appeal-Bad Faith.-Where a hearing is held SECRETARY TELLER to Commissioner McFar-of I have considered the appeal of Thomas Kile filed declaratory statement for the tract described June 3, 1874, alleging settlement May 26, 1874, and made final proof and payment November 18, 1876. Subsequently a hearing was ordered, based upon affidavits tending to impeach the bona fides of said Kile. On the 21st of January, 1880, your office decided that the allegations of bad faith were fully sustained by the evidence adduced at the hearing, and held the entry for cancellation. range ; in SIR: The undersigned petitioner would lations of the General Land Office relative a NOTE. Whenever the affidavits required to accomapplications for the survey of islands before any officer not u Clerk of a court of record. the official character and standing of such officer, whether notary public, justice of the peace, U. S.. Commissioner, or other officer qualified to adminis ter oaths, should be evidenced by the formal certificate of the clerk of the proper court of record or other competent authority. No appeal was taken from that decision, County of zens of of 188-. State of and citicounty of. and State being duly sworn, upon their oaths say that they have personal knowledge of an island in -, in section township range principal It appears that Kile failed to appear at the trial above mentioned, although he "To establish any other principle in had due notice. After thus allowing his such a case as this would be very disas- case to go by default without even an attrous to the interest of the public in the tempt to show his good faith, or to seek meridian, State of application for the immense forest lands of the government. a remedy by appeal, as legally provided, survey of which has been made by *** To hold that when the govern- he now makes application for repayment of county of , State of ment finds its own property in hands but of his purchase money, on the ground that ; that the said island contains about one remove from these wilful trespassers, the evidence, on which the cancellation acres; that the width of the channel and asserts its right to such property by was based, failed to show bad faith or on either side between the island and the the slow processes of law, the holder can failure to comply with the requirements main shore is feet, and the depth set up a claim for the value which has of the pre-emption law, and that said can- thereof at ordinary stages of the water is been added to the property by the guilty cellation was therefore erroneous. I find about — feet; that the island is about party in the act of cutting down the trees no provision of law authorizing the return feet above high water mark, not suband removing the timber, is to give en- of purchase money in such a case. Sec-ject to overflow, and the land fit for agricouragement and reward to the tion 2362, of the Revised Statutes, author- cultural purposes; that the configuration doer, by providing a safe market for what izes repayment upon satisfactory proof of either shore of the mainland has not he has stolen, and compensation for the "that any tract of land has been erro- materially changed since the original surlabor he has been compelled to do to make neously sold by the United States, so that vey of the water front on the mainland ; his theft effectual and profitable." from any cause the sale cannot be con- that the improvements on said island are firmed;" and Sec. 2 of the Act of June 16, as follows:* -; that the said im1880, provides for repayment" when from provements were made by any cause the entry has been erroneously and that the value thereof is about allowed and cannot be confirmed." wrong The fact that Parker and Kelley, Weeks & Co. each seeks to throw the responsibility upon the other, renders it necessary for the government to hold them jointly responsible, and let them them settle the question of responsibility between them. I concur in your view that "as Mr. Parker, and Kelley, Weeks & Co., received no logs in the case, but received lumber derived from logs that were the property of the government, there seems to be no good reason why the government should not continue to claim from them, who acquired possession of it, the value of the lumber, which was its property alone." You will therefore at once notify agent Welch to that effect. The only obstacle in the way of confir mation of title to Kile was one growing out of his own acts. The land was properly subject to his entry at the date thereof, and the confirmation was prevented by proof of his own laches, and failure to comply with the requirements of the law, and not through any error on the part of the government. Mr. Kile's case is clearly not within the provisions of the statutes authorizing repayment of purchase money, and your decision denying his application is affirmed. dollars. that, to their certain knowledge, notice of August 4, 1854 (10 Stat., 574), "for the the application by county of of and State of the survey of an island in the section range and for of township principal meridian, in the State was served upon proprietors of the lands on the shores opposite said island; that the said notice was served by on the day of, 188-, and that each of the above-named coterminous proprietors was personally cognizant of the said applicant's intention thirty days before the date of his application. It should be observed that while there use of an adjoining farm," as alleged in is only one affidavit prescribed by the secChambers' affidavit made pursuant to the tion cited, such affidavit is in the alternaprovisions of the third section of said act, tive, whereby an entryman thereunder is wherein the same is described as the S. required to swear to one or other state of W. of S. W. of Sec. 34, Twp. 2 S., R. facts as the case may be. In other words, 13 W., and the N. E. of N. E. of Sec. if such party enter the land "for his or her 4, Twp. 3 S., R. 13 W. own use, and for the purpose of actual setUnder date of June 21, 1860, your prede-tlement and cultivation," the fact must so cessor, Commissioner Wilson, advised the appear; whereas, if the entry be "for the Register and Receiver that the entry in use of an adjoining farm or plantation," question was illegal, and would be can- the oath must be made accordingly. celed "for the reason that the original farm does not adjoin the land entered;" and by your office letter of April 22, 1881, to said officers, the entry was suspended because the land covered thereby does not Sworn to and subscribed before me this form a compact body with the original day of 188-. State of 188-. County of 188-, and that the notice referred to in 188-. By the act of February 17, 1873 (17 Stat., 464,) it was provided: "That all entries of public lands under the act to graduate and reduce the price of the public lands subject to entry to actual settlers and cultivators, approved the 4th day of farm as required. Those officers were di- August, 1854, made prior to the passage rected however to inform the party in in- of this act in which the purchaser has terest that title to the premises could be made the affidavit and paid, or tendered, perfected by paying to the Receiver "the the purchase money as required by said difference between 12 cents already paid act, and the instructions issued and in and $1.25 per acre, unless an error was made force, and in the hands of the Register in the description of the original farm, and at the time of making such entry, are in that case the proper description there- hereby legalized, and patents shall issue of can be shown by supplemental affidavits, to the parties, respectively, provided that and the certificate of the Recorder of in case of tender the money shall be paid, Deeds of the county within which the excepting those entries under said act land is situate, and should the contiguity which the Commissioner of the General of the land in the farm and entry be there- Land Office may ascertain to have been by established, the entry will be approved fraudulently or evasively made: Prowithout the additional payment.' The vided, That this act shall not be so Register and Receiver having reported construed as to confirm any of said entries that no action had been taken by the parties in interest pursuant to the terms of the aforesaid letter, you held the entry for cancellation. From such action the said E. N. Watson (informally) appealed Sworn to and subscribed before me this by letter dated at Camden, Arkansas, day of ——, 188-. Graduation Act of August 4, 1854-Amendatory I have considered the appeal of E. N. Watson from your decision of June 19, 1882, holding for cancellation Little Rock, Arkansas, graduation entry No. 9980, made by William L. Chambers, September 15, 1858, of the N. E. of Sec. 34, Twp. 2 S., R. 13 W. The entry was made under the act of July 25, 1882, stating that he is the Although such appeal is not in accord- Under section 2289 Revised Statutes, a person owning and residing upon his original farm "may enter other land lying contiguous to his land." It will be seen from the aforesaid description that the tract covered by the entry in question merely corners on the original farm; and it will be observed that the Department has repeatedly and invariably held that tracts so situated are not contiguous within the meaning of the statute. By the third section of the "Graduation act "aforesaid, it was enacted: "That any person applying to enter any of the aforesaid lands shall be required to make affidavit before the Register or Receiver of the proper land office, that he or she enters the same for his or her own use, and for the purpose of actual settlement and cultivation, or for the use of an adjoining farm or plantation, owned or occupied by him or herself." The act just cited was evidently intended to confirm all entries under the act to graduate and reduce to actual settlers and cultivators the price of the public lands subject to entry thereunder, cepting those entries under said act which the Commissioner of the General Land Office may ascertain to have been fraudulently or evasively made." Hence it embraces both classes of entries mentioned in the original act, to wit, entries" for the purpose of actual settlement and cultivation," and entries "for the use of an adjoining farm or plantation." There is nothing in the record showing or tending to show that the entry in question was fraudulently or evasively made, but on the contrary, Chambers appears to have sworn in good faith that the same was made "for the use of an adjoining farm" owned by him. When he made the requisite affidavit, he doubtless believed that the land covered by said entry actually adjoined his original farm, and the Register and Receiver, who allowed such entry, must have so regarded it. Watson, also, appears to be a bona fide assignee in possession of the premises. Your decision is therefore reversed. COEY VS. STATE OF CALIFORNIA. All the tracts remaining unsold at the close of the public offering will thereafter be held subject to private entry at tue ap confirmation. Since November 22, 1880, School Indemnity--Act of July 23, 1866.--The this rule has been followed in sundry State of California can receive indemnity decisions, and I find nothing in the present only once for the same school section, notwith-case to induce a change or modification praised value. standing the act of July 23, 1866. thereof. SECRETARY TELLER to Commissioner Mc Farland, June 23, 1883. On August 3, 1882, I affirmed your de cision of February 28th preceding, in. volving the S. W. of Sec. 18, Tp. 8 S., R, 1 W., and the S. E. of Sec. 13, Tp. 8 S.R. 2 W., M. D. M., San Francisco, California. The case disclosed the facts that February 6, 1882, D. N. Coey entered the tract in Sec. 18, and that Norman W. Griswold entered that in Sec. 13, each as soldiers' homesteads, and that March 4, 1876, the State of California made indemnity school selection for the same tracts in lieu of the E. of Sec. 36, Tp. 30, R. 11 E., which selection you canceled February 28, 1882, because on August 12, 1872, the state selected the S. E. 4, lots 3 and 4 and the E. of the S. W. of Sec. 30, Tp. 21 S., R. 4 E., M. D. M., in lieu of said E. of said Sec. 36, which last selection was approved April 18, 1873, as per list No. 26. My decision held with yours, that the State could not be twice indemnified for the same loss, and that as she had received indemnity for said E. of Sec. 36, by an approved selection in 1872, the selection in 1876 was invalid, and hence that the entries of Coey and Griswold, if otherwise regular, should be sustained. The application is denied. MIAMI INDIAN LANDS. Instructions for the sale of the remaining tracts of these lands. COMMISSIONER MCFARLAND to Reg. and Rec., The privilege of paying for these lands by installments, accorded to settlers under the first section of the act; not being extended to purchasers under the second section, you will require the full amount of purchase money to be paid in every case. You will issue a receipt and certificate in case of each sale effected, giving the purchaser a duplicate receipt, as in ordinary cash sales, using forms 4-031 and 4– 189, being careful to note across the face of each paper in red ink the words "Miami Indian Lands, Public Sale or Private Entryi as the case may be, "Sec 2 Act of May 15, 1882, amended June 27, 1882." You will also require formal applications from parties who purchase at private entry according to form 4-001, with proper reference thereon to the character of the land and the section of the act under which the application is made. The second section of the said act, as amended by the act of June 27, 1882, provides that all lands not purchased by settlers at the expiration of one year from the date of the act, together with all the unoccupied and unallotted lands of the Miami Indians, shall be offered at public sale under the direction of the Secretary of the Interior, at not less than the appraised value, after due notice, and that all tracts not there sold, together with such as may have been entered by settlers under the first section of the act, but wherein default may be made in the payment of any portion of the purchase money In case of all sales, both public and or the interest thereon, shall thereafter be private, give the receipts and certificates, subject to private entry at the appraised--and in case of private sales the applicavalue. Purchasers in all cases should be requested to give their Christian names, or one of them in full, and in case of private entries, should so sign their applications, and their names should so appears in all the papers. tions the current numbers of their rcspective series already commenced under the Acts of March 3, 1873, and June 23, 1874, and continued under section 1 of the Act of May 15, 1882, referring on each paper to the numbers of the other papers respectively in the same case, as heretofore instructed in the case of the Kansas Indian lands. As it appears from your files that Gris- I therefore inclose herewith a list of the wold has since relinquished his entry, that lands to be disposed of, as above provided, of Coey is now only involved. Applica- and you are hereby instructed to give notion is made by the claimant under the tice by public advertisement of at least State for the reconsideration of my de- sixty days in three newspapers of general cision, upon the ground that the applica- circulation in Kansas, that, in accordance tion for certification of the land involved with the said provisions and by direction to the State, under the Act of July 23, of the Honorable Secretary of the Inter1866, was a distinct proceeding pending ior, at a given time--the day and hour to Forward the receipts and certificates in your office at the date of your decision, be specified in your notice, and which with your special Register's and Receivwhich rejected the claim of the State with- should be not less than sixty days from er's abstracts of Miami Indian Lands unout considering such application and the the date of the first publication thereof der Act of May 15, 1882, with your reguproofs relative thereto, treating the claim the said lands will be offered for sale at lar monthly returns indicating on the abof the State solely from its selection of public auction at your office, and sold to stracts the character of the sale-as March 4, 1876. the highest bidder, providing such bid lic sale" or " Private Entry," Sec. 2, so as shall at least equal the appraised value as to distinguish between these sales and the indicated on the list. installment receipts and certificates issued in case of entries heretofore made by settlers under the first section of the act,also noting on the abstracts in cach case the number of the receipt and certificate; and in private entries, that of the application. Retain the applications on file in your office. Without considering the facts in detail, it is sufficient for the purposes hereof to state that, November 22, 1880, Secretary At the time designated in your notice, Schurz, after an elaborate discussion of you will so offer them, beginning with the matter of the adjustment of the In- the first tract on the list and proceeding demnity School Grant to the State of until every tract has been offered. California, and of the Acts of July 23, You will note on the list opposite each 1866 (14 Stat., 218) and March 1, 1877 tract, in the proper column as therein pro(19 Stat., 267), and for the express pur- vided, the date of the offering and indicate pose of furnishing a proper rule for the the result thereof; if sold, give the name adjustment of this class of cases, held that of the purchaser, the amount of the bid the State was entitled to but one selection and the number of the receipt and certifiin lieu of any loss in a school section, and cate (as hereinafter provided for); if not that when the State had received indem-sold, state the reason--"no bid "or whatnity for a given tract no additional tract ever the facts may be, in the column of could be confirmed to her on account" remarks." of that tract. In respect to that de- At the close of the offering you will cision the Surveyor General of the State render a joint report of your proceedings, of California said, in his letter to you forwarding therewith a duplicate of the of December 14, 1881, that if it was list completed as above directed, retaining to remain the rule of this Department, the the original in your office. Also enter the celections under consideration must fail of sales in your record. Pub The Receiver will pay for the publication of the notice and make due report thereof, transmitting as vouchers a copy of the notice with the publishers' affidavits of publication and receipts for the payment thereof, and he will also account for and dispose of the moneys received, as instructed under date of June 29, 1882, relative to the sale of these lands to settlers under the first section of the Act. Affirmed by Acting Secretary Joslyn, June 25, 1883. BRUNETTE ET AL. VS. JIYERE. Fort Howard-The act of March 3, 1863, is remedial to a certain class of persons, but as to all others the laws for the disposal of public lands are in full and effective operation. Evidence-Possession at the date of the act is the only evidence of title required, and the improvements only are to be in accordance with the acquirements of the pre-emption law. Failure-The act should be liberally construed upon failure to make proof and payment within time specified. ACTING COMMISSIONER HARRISON to Reg. and Rec., Menasha, Wisconsin, Oct. 17, 1882. I have examined the contested case of Emanuel Brunette and Michael Mercier vs. Belaine Jiyere, involving title to lots 287 and 291, Sections 16, 24, 20, under the act of March 3, 1863. These lots formed a part of the public domain adjacent to Fort Howard Military Reservation, and are located between Beaver Dam Run and Duck Creek. The land of which they form a part was surveyed, in pursuance of the act of March, 3,1803, by Deputy Surveyor Suydam, and the map thereof approved by the SurveyorGeneral, April 5, 1864. Said lots, 287 and 291, were entered by Jiyere on the 17th of October, 1864, and his entry was subsequently contested by Brunette and Mercier: First. Because he was an alien. Second. Because he did not have such possession of the land as is required by the act regulating its disposal; and Third. Because of his disqualification under section 13, act of September 4, 1841, in the matter of inurement of title. Notwithstanding the remedial provi- sion of it at the date of Jiyere's entry, sions of the act your office seems to have and, indeed, up to the date of this contest, treated all applicants, irrespective of per- August and September, 1865. sons, as claimants under the act of September 4, 1841, and to have required of them the regular pre-emption proof in such case provided. The published notice to settlers to appear and make proof and payment for this land was issued October 6, 1864. Harteau, however, did not make his application to Where this character of proof could be purchase until August 10, 1865, nearly a furnished by the applicant, it, perhaps, year after the published notice, whereas worked no injury to him, but, at the same the act required that it should be done time, the law does not require it. It makes within six months after such notice. no distinction in the saving clause as be- Of course, this part of the act is to be tween citizen and alien; and if possession liberally construed with a view to attain of any part of said lands, at date of the the remedial purpose in view, and upon act, could be satisfactorily proven, and the the theory of the illegality of Jiyere's enimprovements thereon were such as are try of the lot, and there being no other provided for under the pre-emption laws, adverse claimant, the failure of Hartean upon proper payment, as to quantity and to make his application in time should not time, the applicant would be entitled to be regarded as working a forfeiture of his the entry of the whole of the lot or lots right. embracing such possession and improvements; provided, the quantity of land did not exceed, in the aggregate, eighty acres. Possession, at the date of the act, of any fractional part of a lot is the only evidence of title required, and it does not seem to have occurred to the framers of the act that more than one person might have concurrent possession at the date of its passage, and consequently they made no provision for such a contingency. This seems to have been the difficulty in the present case, and the contest grows out of the efforts of the three persons aforenamed to supplement a form of entry not provided for in the act. Belaine Jiyere, Emanuel Brunette, and Michael Mercier, were each in possession of and had made improvements on separate parts of lot 287. Under the law but one of them could make the entry, and as Jiyere was the oldest settler, and had made the requisite improvements, an agreement was entered into between them that he should make the entry for the whole lot, and then convey to the other two the parts thereof in their several possessions, or, as is maintained by Brunette, to convey to him the entire lot. In view, therefore, of all the facts and the law, I sustain the entry of Jiyere for lot 282, and hold it for cancellation as to lot 291. And in view of the great equities of Louis Harteau, you will allow him to complete his entry of said lot 291, subject, of course, to any valid adverse rights which have been initiated since the date of hearing in the case. UNITED STATES CIRCUIT COURT. A purchaser of lands from the United States Although the proof shows that there is a wide belt or margin between the high and low water line of such lake, which in times of low water is available for agricultural purposes, such as pasturage or meadow land, this fact does not justify the Commissioner of the General Land Office in surveying such belt or margin of land, and allowing the same to be entered as unsurveyed and unsold lands, and a patent issued to a purchaser for such land is void as against the holder of the original title bounded upon the waterline. The act of March 3, 1863, after specifying the duties of the Commissioner of the General Land Office as to the survey and platting of the land described, further provides that," he shall thereupon proceed to dispose of the same as other public lands are disposed of, saving to every person who, upon the passage of this act, may be in possession of any part of said lands, and shall have made improvements thereon, as provided under the pre-emption laws of the United States, the right to purchase Now, whatever may be the equities of BLODGETT, J.:-This is an action of any lots so improved, being contiguous to Brunette and Mercier as against Jiyere, ejectment, by which plaintiff seeks to recach other, and not exceeding in the ag- it is not the province of this office to de- cover from the defendant the fractional gregate eighty acres, upon making proof termine. Sufficient to say, the entry was S. E. of Sec. 19; the fractional N. E. of such possession and improvements, and made in accordance with the law, with of Sec. 30, and the east fraction of the S. paying for such lots the sum of one dollar their full knowledge and with their open and E. of Sec. 30, all in Tp. 37 N., R. 15 E., and twenty-five cents per acre, within six expressed consent, and so far as the entry of the 3d P. M., situate in the county of months after public notice shall be given of lot 287 is concerned they are effectually Cook and State of Illinois, together with of the time and place for making such estopped, and their equities, if any they the accretions and relictions forming a proof and payment." may have, must be sought in a court of part thereof. competent jurisdiction upon an action for the specific performance of the contract. The case, however, is different as to lot The act is, to all intents and purposes, remedial to a certain class of persons, but to all others the laws and regulations for the disposal of public lands are in full and effective operation. 291. The proof shows that on the 20th day of December, 1841, a patent was duly issued from the General Land Office of the United States, conveying in fee to John Holbrook the parcels of land in question, "according to the official plat of the survey of said land, returned to the General Land Office by the Surveyor General." From copies of the original plat and field-notes in evidence in this case, in the undisputed possession of Louis it appears that the east side of the two Harteau for years before the passage first named parcels of land in question, of the act. He had made valuable im- and the west side of the last named parprovements on it, and was still in posses- 'cel, abutted upon a body of water desig Jiyere never laid any claim whatever to The persons saved from such operation that lot. He never had possession of nor are those who were in possession of any improved any portion of it, and, consepart of said lands at the date of the passage quently, had no right to it under the act of the act, and the only requirement of of March 3, 1863, or any other act, for them, with reference to any of the laws for the disposal of public lands. It had been the disposal of public lands, is that they shall make proof of their improvements as 1rovided under the pre-emption laws of the United States. nated upon the plat as a "navigable lake;" tom or lowest part of the bed of this lake In 1874, by an order of the Commissioner of the General Land Office, a survey was made of this so-called navigable lake by extending the original survey lines into and across the same, and what purported by said original plat to be the bed of this navigable lake was, by this last mentioned survey, cut up into the usual subdivisions of Government surveys, and patents were issued therefor to the purchasers whose titles under said patent have, by mesne conveyances, become vested in the defend ant. The proof in this case satisfies me that there has been no marked change in the character of this land, in the height to which the water rises and falls, since the original Government survey in 1835; the construction of the harbor at the mouth of the Calumet River, may have slightly modified the effect which the rise and fall of the water in Lake Michigan has upon the water of this meandered lake; but Lake Michigan and Calumet are so close to, and connected with, this meandered lake that the variation in the height of the water in Lake Michigan must affect the height of this adjacent meandered pond or lake. The proof shows that the land in question is but a short distance from the south- This body of water, called on the origern rim or shore of Lake Michigan, and inal plat "navigable lake," in fact is, and east of the Calumet River; that the sur- at the time of the first survey undoubtface of even the highest portions is but a edly was, divided by a low ridge running few feet above the water of Lake Michi- nearly north and south, into two lakes or gan and the river; that, for some causes ponds, such ridge being nearly in the same not explained by the proof, the height line and direction as would be shown by of the water of Lake Michigan varies or the east line of Secs. 19 and 30, if confluctuates about four or five feet; that is tinued from the north meander line of the extreme high water mark is about four said lake, the western of these two lakes, feet above the extreme low water mark; having acquired the local name or desigthis fluctuation not occurring at stated in-nation of Hyde Lake, and the eastern one tervals like a tide, but several years sometimes elapses between those extremes of high and low water; that there is no appreciable difference between the height of the water in Calumet and that of Lake Michigan, and that the waters of the river rise and fall with those of the lake, and that the waters of this so-called navigable lake being connected with Lake Michigan and Calumet and Wolf Rivers, is affected by this rise and fall of Lake Michigan. It also appears that the height of the water in this navigable lake is also, to some extent, affected by the spring and fall freshets and summer droughts; that in times of high water in Lake Michigan, and in the spring and fall freshets, the water-line of this navigable lake, indicated on the plat, is at or near the meander lines of the original survey, so that the meander lines indicate, with substantial certainty, the high water line, while in times of low water the water line recedes from the meander lines so as to leave a wide margin of grassy meadow land between the meander line and the low water line. There is, therefore, between this meander line and the low water line, a belt of grassy meadow land from forty to eighty rods wide, which in an ordinarily dry season can be used for hay, meadow or pasturage. The centre line of Sec. 19, and the centre line of Sec. 30, if produced eastward from this meander line, will strike into the body of permanent water, while the south line of Sec. 30, if produced west from the meander line of the east fraction of the S. E. fractional of Sec. 30, will strike the body of permanent water; I say permanent water, because the proof shows that the bot of these lakes, that is, the one lying east Upon the belt of land, alternately dry or covered with water, which lies between the original meander lines of the fractional S. E. of Sec. 30, and the lower waterline of Hyde Lake, defendant has entered by his tenants, and he also claims title thereto, under such of his patents of 1882 as purport to cover this land. Upon the trial of this cause, I could get no very definite statement from plaintiff's attorneys as to what they deemed the extent of her claim; but I understood them as insisting that, inasmuch as the plat of the original survey showed each of these tracts to be bounded on one side by this navigable lake, the grant under the Holbrook patent, gives plaintiff title to the entire area covered by the lake; at least, their argument proceeds on that assumption. I think, however, that the natural physical facts must control even against this plat by which, it may be said, Holbrook purchased; that is to say, there is and was, at the time of the old survey, two lakes instead of one. There was a ridge, substantially dry, separating them, and this ridge was never surveyed. The Government had the right in 1874 to survey this dry ridge which had never been surveyed, and put it in market and sell it, and the purchasers of this ridge would have the same right to be bounded by the water on the west that Holbrook, and those deducing title from him, has to be bounded by the line of permanent water The north half of this ridge was, un- on the west side of the lake. I do not doubtedly, at the time of the original sur- think there is any land involved in this vey as appears from the proof, covered controversy, that can be called or desigwith a growth of trees sufficiently large nated as accretions or relictions belonging to be used for timber purposes, thereby to the fractions covered by the Holbrook showing such ridge to have been substan- patent; that is, none of this belt of low tially dry land to the extent upon which grassy land lying between the meander the timber stood on it for many years lines and the low water lines of Hyde Lake, prior to the time of such survey, while has been deposited or made there since the the central portion of such ridge is lower original survey, so as to be said to be an and is covered mainly with coarse slough accretion, nor has the water permanently grass. Wolf Lake, as it is called, has its receded from any part of this land, so as natural and ordinary outlet into Lake to give this belt of land the full character Michigan through what is known as Wolf of a reliction, or land from which the River, but this outlet is liable to be closed water has receded and left it dry. I have by the washing up of sand from Lake no doubt, from the proof in this case, that Michigan, and when so closed it is probable that the waters of Wolf Lake may have risen high enough to cover this ridge so as to make the two lakes temporarily one sheet or body of water. There is a natural channel leading from Hyde Lake into the Calumet River, and by this channel the water in Hyde Lake promptly responds to the rise and fall of the water in the Calumet and Lake Michigan; but there was no natural channel through this ridge between Hyde and Wolf lakes, and the two bodies of water were only blended into one when the water, from any cause, was high enough to overflow the lowest part of this ridge. In times of very low water the water of Hyde Lake recedes so as to leave a wide margin of grassy meadow land between the apex of this ridge and the east low water line of Hyde Lake, which can be used for pasturage or meadow land. when this land was surveyed in 1835, as now the margins between these meander lines and the low water lines were at times covered with water, so that this belt formed part of Hyde Lake at high water, and at times it would be dry, the fact whether this belt or margin was dry land, or a part of the lake, depending upon the height of the water in Hyde Lake; inasmuch, therefore, as Holbrook's land was represented on the Government plats as bounded by this lake, I have no doubt that the owners of his title have the right to this margin between high and low water mark; having given Holbrook and those claiming through him the right to this water boundary, the Government could not, by a subsequent survey and sale, defeat the title which Holbrook had acquired. This case is essentially in all its features like the case of Forsyth vs. Smail, decided by the learned circuit judge of |