Pitkin County.

Mathias Stauffacher, et al., Little Annie 4829, 4830, 4832, 4833, 4840, 4842. 4843, 4845, 4846, 4847, 4851, Lode.

Nos. 2193, 2198, 2200, 2256, 2292, 2298, 2557, 2693, 2699, 2710,
2746, 2748, 4803, 4804, 4805, 4807 to 4811 inclusive. 4815, 4827,
4852, 4853, 4856, 4859, 4860, 4861, 4862, 4864 to 4868 inclusive.
4872, 4873, 4874, 4881, 4882, 4883, 4885, 4886, 4890, 4891, 4893,
4894, 4899, 4900, 4901, 4906, 4907. 4916, 4917, 4924, 4926, 4929,
4930, 4935 to 4939 inclusive. 4942, 4946 to 4949 inclusive,
4951, 4955, 4960, 4961, 4962, 4964, 4966, 4967, 4970, 4971. 4974.
4975, 4976, 4980,4982, 4983, 4984, 4985, 4988, 4989, 4990, 4991, 4995,
4996, 5000, 5002, 5003, 5008 to 5011 inclusive, 5013, 5014, 5015,
5017, 5018, 5019, 5022, 5023, 5025 to 5028 inclusive, 5032,
5034, 5037, 5042, 5043, 5044, 5048, 5050, 5054 to 5063 inclusive,
5075, 5077, 5079, 5081 to 5085 inclusive, 5087 to 5093 inclu-

sive, 5035, 5096, 5098, 5100, 5103, 5106, 5112, 5115, 5116, 5117.
5118, 5121, 5126, 5127, 5182, 5140, 5145, 5146, 5149, 5152, 5151,

5155, 5157, 5160, 5162, 5165, 5166, 5168, 5169, 5170, 5173, 5178,
5186, 5188, 5189, 5190, 5193, 5195, 5198, 5204, 5205, 5203, 3208,
5209, 5210, 5211, 5214, 5215 and 5217.

MITCHELL.

WAUSAU.

Surveyor General's Certificates. R. and R., No. 488. Stevens Point and Wausau Series, 10796, 15706, 15766, 16259, 16443, 16452, 15176, 16477, 16478, 16490, 16499, 16534, 16751 to 16754 inclusive, 16789, 16831, 16936, 16959, 16980, 16976, 17081, 17082, 17089. 17096, 17172, 17207, 17255, 17255.

HOMESTEAD PATENTS ISSUED.

COPP'S LANDOWNER for this month reports tho following final numbers of Homestead Patents issued and sent to the below-named land-offices:

ARKANSAS.
HARRISON.

Nos. 451, 1626, 1979, 2280, 2835, 3192, 3233, 3579. 3606, 3307, Surveyor General's Certificates R. and R., Nos. 2, 3, 3612, 5655, 3656, 3657, 3659 to 3671 inclusive, 3673 to 3077 4, for 160 acres each located at Yankton, Dak. inclusive, 3679 to 3682 inclusive, 3585 to 3688 inclusive, 3690 to 3697 inclusive, 3699, 3701 to 3712 inclusive, 3711 to 3719 inclusive, 3722 to 3726 inclusive.

TANKTON.

Nos. 554, 708, 824, 976, 991, 993, 1181, 1258, 1553, 1554, 1559, 1577, 1590, 1593, 1639, 1727, 1729, 1782. 1739, 1741, 1749, 1752, 1753, 1769, 1761, 1768, 1771, 1775, 1776, 1778, 1779, 1783, 1787. 1788, 1796, 1799, 1805, 1834, 1837 to 1840 inclusive, 1×51, 1833, 1907, 1911, 1913. 1922, 1930, 1932, 1945, 1954, 1981, 1970, 1983, 2001, 2005, 2007.

Benjamin F. Gumm, et al., Miguel Otero 1854, 1863, 1864, 1873, 1878, 1879, 1880, 1988, 1893, 1902, 1903, Lode.

NEVADA.

Eureka County.

KANSAS.
WICHITA.

CALIFORNIA.

LOS ANGELES.

Nos, 413, 435, 483, 510, 525, 526, 527, 520 to 537 inclusive,
559, 540, 513.
DAKOTA.
FARGO.

Nos. 893, 941, OSS, 989. 991, 934, 1003, 1011, 1013, 1011, 1016. 1018. 1019, 1020, 1022, 1023, 1024, 1030, 1031, 1033, 1036 to 1010 inclusive, 1042, 1043, 1045 to 1048 inclusive. 1050, 1651, 1653 to 1055 inclusive, 1058, 1030 to 1035 inclusive, 1967,

C. L. Broy, et al., Kemp and Keen Cons.14431, 14431, 14435, 14436, 1440 to 14150 inclusive, 14153, 1068.

Lode.

Nye County.
Manucl San Pedro, et al., San Francisco Lode.
Ferd. S. Van Zandt, Brooklyn, Cooper, and
Galatea Lodes.

MONTANA.

Lewis and Clarke County.

Osage Trust Lands. Nos. 2897, 8418, 14426, 14428, 14429, 14454, 14458 to 14461 inclusive, 14463, 14465, 14466, 14467, 14472, 14473, 14476, 14478, 14479, 14482, 14485, 1448.3, 14487, 14489, 14490 to 14494 inclusive, 14496, 14498, 14499, 14503, 14504, 14505, 14507, 14508, 14510, 14511, 14512, 14515, 14516, sive, 14537, 11559 to 14544 inclusive, 14546, 14549, 14550, 14517, 14519, 14521, 14523, 14526, 14528, 14531 to 14 31 inclu14552, 14553, 14556 to 1462 inclusive, 11564, 14558, 14559 14570, 14572, 14573, 14574, 14576, 14577, 14579, 14580, 14592. 14583, 14584, 14586, 14787, 14591, 14592 14591 to 14:04 inclusive. 14606, 14608, 14610, 14612, 14617. 14620, 14623, 14624, 14629, 14:31, 14632, 14634, 14635, 14638, 14537, 14639, 14640, 14657, 14658, 14659, 14661, 14662, 14:54, 14665 to 14673 inclusive, 14675, 14676, 14678 to 14682 inclusive, 14684 to 14693 inclusive, 14697. 14398, 14699, 14700, 14702 to 14710 inclusive, 14712, 14719, 14721. 14723, 14724. 14725, 14727, 14728, 14730, 14731, 14782, 14733, 14734, 14736, 14737.

YANKTON,

1920, 1926, 1927, 1932, 1936, 1940.
Nos. 211, 424. 1641, 1782. 1785, 1885, 1893, 1994, 1993, 1911,

Nos. 191, 1990, 2013, 2022, 223, 2020, 2031, 2133, 2014, 2350,

clusive, 2098, 2100, 2101, 2102, 2105, 2106, 2108, 2.09. 2113, 2058, 2080, 2081, 2082, 2084, 2055, 2083, 2091, 2035 to 25 in2114, 2116, 2118, 2121 to 2124 inclusive, 212, 2127, 2153.

Nos. 1636, 1675, 1379, 1688, 1692, 1738, 1741, 1768, 1769, 1771,

1779, 1791, 1805, 1808, 1809, 1813. 18.9, 1820, 1823, 148, 1859,
181, 1865, 1866, 1869, 1871, 1876, 1881, 1887, 1895, 1952, 1908,
1918, 1958, 1939, 1942, 1947, 1948, 1952, 1954, 1968, 1972, 1975,
2002, 2009, 2110, 2120, 2156.
Nos. 2061, 2006, 2067, 2071, 2012, 2573, 2074, 2579, 2387, 2089,

Michael C. Cotter, et al., Empire Lode and 14641, 14644, 14645, 14646, 14650, 14351, 14653, 14654, 14655, 1989, 1998, 2000, 2034, 2035 2040, 2043, 2047, 2052, 205 1.

Nos. 957. 1855, 2109, 2169, 2196. 2202, 2203, 2205, 2215, 2218, 2224, 2334, 2341, 2395, 2396, 2399, 2400, 2401, 2405, 2406, 2407, 2410 to 2414 inclusive, 2422, 2430, 2431, 2437, 2440, 2448, 2449, 2452, 2454, 2462, 2467, 2471, 2479, 2480, 24×4, 2485, 2497. 2530, 2531, 2532, 2554, 2555, 2556, 2561, 2564, 2567 to 2571 inclusive, 2574, 2576, 2577, 2578, 2585, 2586, 2587, 2595, 2596, 2599, 2500, 2603, 2604, 2605, 2607, 2608, 2609, 2510, 2614, 2619, 2625, 9629, 2635 to 2643 inclusive. 2644. 2645, 2651, 2652. 2655, 2661, 2562. 2664, 2665, 2666, 2669, 2674, 2675, 2478, 2681, 2683, 2385, 2687. 289, 2694, 2695, 2696, 2700, 2701, 2703, 2704, 2705, 2712. 2717. 2718, 2719, 2723, 2728, 2735, 2788, 2743, 2745, 2750, 2762, 2763 und 2764.

LOUISIANA.

NEW ORLEANS.

Surveyor General's Certificate, R. and R., Nos. GO, 61, 62, 61, 65, 66, 67, 69, 70, 71, 72, 74 and 81.

NEBRASKA.
BLOOMINGTON,

Nos. 1168, 1182, 1188, 1191. 1192. 1194. 1196 to 1199 inclusive, 1203, 1209, 1210, 1212, 1211, 1221, 1225, 122, 1228, 1230, 1231, 1232, 1235, 1213, 1215, 1247, 1252, 1253, 1254, 1255, 120, 1263, 1268, 1272, 1274, 1275, 1279, 120, 1290, 1293, 1294, 1208, 1311, 1473, 1474, 1476, 1479, 1482, 1483, 1485, 1491, 1493, 1495, 1500, 1502, 1503, 1504, 1505, 1509, 1510, 1511, 1514, 1515, 1516, 1517, 1521, 1522, 1524, 1525, 1528, 1531, 1539, 1540, 1544, 1546, 1547, 1551, 1555, 1560, 1561, 1556, 1568, 1808, 1821, 1835, 1836, 1894, 1913, 1921, 1929, 1933, 1941, 1944, 1945, 1950, 1951,1954, 1957, 1960, 1963, 1968, 1971, 1976, 1982.

NIOBRARA.

IDAHO.
LEWISTON,

Nos, 43, 177, 182, 190, 193 to 214 inclusive.
KANSAS.
OBERLIN.

Nos. 71,81,83, 91, 94, 100, 103, 104, 105, 109 to 117 inclusive, 119, 122, 124 to 131 inclusive, 135.

MICHIGAN.
DETROIT.

Nos. 453, 651, 704, 705, 776, 777, 778, 785, 795, 796, 799, 811, 815, 828, 829, 839, 842, 843, 844, 845, 847, 848, 849, 852, 857, 861, 862, 864, 865.

REED CITY.

Nos. 4053, 4078, 4685, 4686, 4688, 4704, 4726, 4728, 4701, 4747, 4756, 4758, 4763, 4789, 4812, 4840, 4871, 4954. 4980, 5604, 506810 5014 inclusive, 5017, 5020, 5023, 5026, 5027, 5029 to 5032 inclusive, 5034, 5036, 5038, 5041, 5042, 5043, 5048, 5049, 5050, 5052, 5053, 5054, 5055, 5058, 5062, 5064, 5066, 5068, 5071, 5072, 5074 to 5078 inclusive, 3082, 5083, 5084, 5086, 5087, 5088, 5090, 5091, 5092, 5094, 5095, 5097 to 5101 inclusive, 5163, 5105, 5107, 5109, 5110, 5111,5114, 5115,5117 to 5121 inclusive,

Surveyor General's Certificate, R. and R., Nos. 556, 5123 to 5130 inclusive, 5152, 513, 5134, 5136. 557, 558, 559, located at Dakota City.

Nos. 3641, 4847, 5248, 5276, 5287, 5346, 5351, 5057, 5358, 5782, Surveyor General's Certificate, R. and R., Nos. 16 5384, 5397. 5412, 5131, 5437, 5442, 5116, 5466, 5467, 5478 and and 28. 5487.

MINNESOTA.
DULUTH.

Sioux Half Breed Scrip, No. 435 B., R. and R. No. 180 for 40 acres.

FERGUS FALLS.

Sioux Half Breed Scrip. No. 11 A. R. and R., No. 122 for 40 acres located at Otter Tail City.

UTAH.

SALT LAKE CITY.
No. 2480, Townsite of Grantsville.

WASHINGTON TY.

COLFAX.

Nos. 7. 646, 648, 659, 651, 633, 653, 658, 669, 663, 673, 679, 680, 684, 687, 688, 689, 690, 692, 695, 696, 699, 700, 702. 703, 707, 710, 715, 716, 719, 726, 728 to 732 inclusive, 736 10 759 inclusive, 741, 743, 745, 747, 752, 754, 756, 757, 758, 762, 764, 765, 766, 768, 769, 771, 781, 783, 788, 789, 794, 802, 806, 807,813, 885. 890, 943, 945, 946, 950, 951, 964, 966, 957, 970, 972, 980, 981, 982, 987, 989, 990, 995, 1006, 1007, 1008, 1016.

OLYMPIA.

Nos. 6724, 6728 to 6749 inclusive, 6751, 6752 and 6751.

WISCONSIN.
MENASHA.

Nos. 1504.1544, 1547, 1549, 1551, 1556, 1559 to 1568 inclu-
Surveyor General's Certificates, Act June 2, 1858, sive, 1569, 1570, 1571, 1572, 1574 to 1594 inclusive, 1596 10
R. and R., Nos. 1, 2, 3 and 4.
1593 inclusive.

VOL. X.

COPP'S LAND OWNER.

Entered at the Post Office at Washington, D. C., as second-class matter.

THIS NOTICE MARKED with a blue or red pencil indicates that your subscription expires with this issue, and if you wish the paper continued without interruption, you should remit your renewal subscription at once.

Parties renewing their subscriptions will find it

WASHINGTON, D. C., AUGUST 1, 1883.

THIS paper furnishes more valuable law informa
tion for less money, and is read by more land attor-
neys and real estate dealers, by more homestead,

pre-emption, and other land claimants, and by more
mine owners, engineers, and superintendents, than
any other publication in the United States.

IN view of the unabated demand for advantageous to send $1.00 for their card in the Land bound LAND OWNERS, vols. 1 to 9, a new index thereto is in course of preparation to replace the indexes now out of print.

Directory one year.

John Farson.

TIMBER DEPREDATIONS.

Instructions to Special Timber Agents...

MISCELLANEOUS.

Notice Relative to Unlawful Inclosures of Public

Lands....

134

SPECIAL AGENTS will confer a favor by
sending their addresses to the office of
this paper.
We often have matters of in-
terest to them.

IF you have not yet purchased Copp's 135 Public Land Laws, 1882, you will be voted slow, or worse yet, without any land busi

135

135

136

136

144

ness.

OUR new temporary binder is at hand. Instead of twelve metal strips, this has twenty-six. It is intended to accommodate the semi-monthly editions of the LAND OWNER. The price is $2.00, instead of $1.50, as formerly. Read advertisement on third page of cover.

No. 9.

HALLIDAY & RUSH, of Gainesville, Florida, have an extensive public land and real estate business. See their card in the Land Directory.

THE BUTTE TOWN SITE CONTEST. The recent decision of Judge Galbraith, in Montana, declaring that there is no statute of the United States authorizing the department to insert in a patent for a lode claim any exceptions as to town-site rights, nor does the law make any such exceptions, and such exceptions are therefore void, is attracting wide-spread attention. The decision was rendered in the case where the owners of the Pawnbroker lode brought suit to determine the possessory right as to surface ground.

There are several similar cases pending, involving a considerable area of the town site of Butte. The case heard and decided was the Silver Bow Milling and Mining Company vs. W. A. Clark, et al.

The suit was for ejectment; a jury was waived, and the case was tried by the Court.

The main facts were admitted in the pleadings, and the question of title, thereACCORDING to a St. Paul paper, the Big fore, was one purely of law. The lodeForins for Official Use of Special Timber Agents. 144 Woods of Minnesota are rightly named, claim was located November, 1875, under for they cover 5,000 square miles, or the law of May 10, 1872, and patent ob3,200,000 acres of surface. These woods tained January 15, 1880. The patent contain only hardwood growths, including contained the following provisions, for Proclamation, Withdrawing from Sale Certain white and black oak, maple, hickory, bass- the insertion of which, the Court says 147 wood, elm, cottonwood, tamarack and there is no law: "Excepting and exclud147 enough other varieties to make an aggre- ing, however, from these presents, all 148 gate of over thirty different kinds. This town property rights upon the surface, hardwood tract extends in a belt across and these are hereby expressly excepted PAGE the middle of the State, and surrounding and excluded from the same, all houses, I its northeastern corner is an immense buildings, structures, lots, blocks, streets, pine region covering 21,000 square miles, I or 13,440,000 square acres.

LAND PERSONALS. EX-COMMISSIONER BURDETT, of Curtis & Burdett, visits Denver, Colorado, to attend The town site was patented in SeptemIV the convention of the Grand Army of the Republic, of which organization in Wash-ber, 1877, and contained a provision that no title should be thereby acquired "to ington he is the District Commander. any mine of gold, silver, cinnabar or copThe many correspondents of this prosperous firm will give him a cordial wel- per, or in any valid mining claim or possession held under existing laws of Congress." No adverse claim was filed against the issuing of either patent.

IV
IV

IV

PAGE

III

III

come.

II BEN. F. LLOYD, of Washington, has
III been restored to practice before the Exec-
utive Departments, and G. W. Everett, of
Millersburg, Ohio, has been disbarred.
ATTENTION is called to the card in the
IV Land Directory of G. H. Wells, attorney-
at-law, in Lake Charles, Louisiana, a live

III

III

IV

IV
IV man.

The points decided by the Court are, in brief, as follows:

(1) The Land Department has no right to insert in a patent any exception or reservation which the law does not authorize. If it is done, such exception or reservation is void and of no effect, and this

may be shown at any time, either in an abandonment, which resulted in the cancelaction at law or in a suit in equity.

(2) A party receiving a patent from the United States is not bound by exceptions, reservations or conditions inserted in the patent, without authority of law. (3) There seems to be no law authorizing the Land Department to decide a conflict between a town-site and a lodeclaim.

(4) By the location of the Pawnbroker claim in 1875, the locators, according to the Act of Congress of May 10th, 1872, acquired the exclusive right of possession and the enjoyment of all the surface ground included within the lines of their location, etc. (Sec. 2322 U. S. Revised Statutes.) This Act of Congress was of itself a grant of right of possession and the right to purchase. And the "exclusive right of possession" granted is utterly inconsistent with a right in another to occupy or use the surface for town-site purposes.

(5) No authority is given by the Statutes to the officers of the Land Department to insert in a patent for a lode-claim any exceptions as to town-site rights, and such exceptions are void.

(6) The provision in the Butte townsite patent was authorized by Sec. 2392 U. S. Revised Statutes, and was properly inserted in the patent.

lation of Sewell's entry, February 13,
1871.

Moore acted as the clerk in taking testimony in that contest; that when he applied to amend his filing in March, 1881, (prior to the date of Sewell's entry) Maxwell was absent, but Moore was present and told him he was attending to the business of the office, and prepared his application.

Other witnesses testify that Moore acted in other cases as a regular clerk in the office-no other clerk or person being present.

William Sewell made homestead entry of said W. of S. E., March 14, 1871, and in June following a trial was had between Walker and William Sewell to determine their respective rights. In April, 1872, your office decided that Walker had not resided upon nor improved said W., as required by law, nor made formal application to amend his filing to embrace that tract, but that the tract was subject to the Maxwell testifies that he was absent first legal applicant. Without appealing from his office on leave from February from this decision, Walker was (errone- 15th to April 3, 1871 (which included the ously) allowed, June 24, 1872, to make date of the transaction in question), and pre-emption cash entry for the N. W. of that one Hoffman was his regularly apthe S. E. 4. In 1874 and also in 1876, he pointed and sworn clerk, under the usual applied for a rehearing of the case to en-regulations of your office, and that during able him to show that he was the first such absence Moore was not his clerk, legal applicant for the tract after cancel- either de facto or de jure. But on lation of Joseph Sewell's entry. These cross-examination he says that Moore were refused by your office, but June 12, had general supervision of all his busi1877, Secretary Schurz ordered a hearing ness when absent at the time named, for that purpose, and under the testimony, and was left in charge of the office, and your office decided in May, 1879, that that he sanctioned his doings; that he Walker was such applicant, and held Sew-left with him (Moore) various certificates ell's entry for cancellation. Sewell then signed by him (Maxwell) in blank, which applied for another hearing upon the Moore may have filled and delivered to ground that your decision was based the proper patries; that both prior and chiefly upon testimony that Walker's ap- subsequent to the date of Walker's appliplication to amend was made before one cation Moore was a clerk in his office, but John M. Moore, who, although he re- without appointment by your office, ceived and filed the application, was not and that he assisted him (Maxwell) in

(7) At the date of the town-site patent, the Pawnbroker was a valid mining claim, authorized to act in the matter. This preparing papers, making entries and re

and no title passed to it by the town-site patent.

(8) The patent for the Pawnbroker lode-claim related to the location of the claim of 1875, and confirmed the right of possession.

(9) The plaintiff's title, under the location in 1875 and the patent in 1880, was prior and superior in law to that of the defendant's. Eng. and Mining Journal, New York.

PRACTICE.

WALKER US. SEWELL. Clerk de facto.-A clerk de facto in the office of the Register, with the Register's knowledge and sanction, is competent to receive applications and give them legal effect. SECRETARY TELLER to Commissioner McFarland, July 10, 1883.

I have considered the case of Thomas B. Walker vs. William Sewell, involving the N. W. of the S. E. of Sec. 26 Tp. 6 N., R. 2 W., Salt Lake City, Utah, on appeal by Walker, from your decision of April 17, 1882, holding his cash entry for the tract for cancellation, and allowing the homestead entry of Sewell to remain intact.

hearing was held in November, 1879, to
ascertain the facts. The local officers
rendered opposite opinions, and you de-
cided, April 17, 1882, that Sewell's allega-
tion was sustained, and allowed his entry
to remain intact subject to his final proof.
I think this was erroneous.

The question submitted is, whether or
not Moore was a clerk de facto in the office
of the Register, and as such, competent
to receive Walker's application to amend
his filing, and thus give it legal effect, as
if made to the Register in person.

turns to your office, and registering claims, as well when he was absent as when he was present; that he was familiar with all the routine of the office, and the reason he was not left in charge of the office during the named absence was because he was postmaster, and they both thought official trouble might result from such an arrangement.

Overton, the Receiver, (whose office was some distance from that of Maxwell's,) testifies that he had no knowledge that Moore was an employed clerk in MaxAt the date of the transaction, one well's office during the time named-the Maxwell was register of the local office, Government having made no appropriaone Overton was Receiver, and Moore tion for such purpose-but that he frewas Postmaster at Salt Lake City, having quently prepared papers for persons doalso a private office in the same building ing business at Maxwell's office; that so with that of the Register, and acting as far as he knew, Sewell was the first legal agent or attorney for settlers, in preparing applicant for the tract, and that at the and presenting their applications and time in question Hoffman was in Maxother papers, He testifies that he was well's office, preparing papers for settlers also a clerk in the office of the Register and abstracts of title to land throughout at various times from 1869 to 1874, in the the Territory, it being understood that he absence of the Register as well as in his and Moore were co-partners in that busipresence, and attended to the various ness. business of that office, and that in the absence of Maxwell, he accepted Walker's application, which was the first legal application for the tract.

Sewell testifies that when he made his entry, Hoffman was in charge of Maxwell's office, but that he made his affidavits before Overton, to whom he paid his money and with whom he left his

It appears that Joseph Sewell made homestead entry of the W. of the S. E. Walker testifies that he was at this of the section in March, 1869, and that office on several different occasions in papers. Walker filed declaratory statement for the 1869, 1870, and 1871, relative to his claim The testimony satisfies me that Moore E. of the S. E. in November, 1869, and to his contest against Sewell; that was a clerk de facto in the office of the alleging settlement the same day, and Maxwell and Moore were usually there Register at the date of Walker's applicathat in order to secure an amendment of present; that when he applied to contest tion, and that his acts as such, as rehis filing to embrace the whole S. E., spects third persons, have equal he instituted a contest against Sewell for lidity as though he was a clerk de jure.

Sewell's entry, Maxwell told him to "go to
Moore, my clerk," about the matter; that

va

St. Stephens Meridian, Montgomery Dis- withdrawn, nor reported as mineral, re-
trict, Alabama, upon the ground that the mained subject to private entry as agricul-
lands have been reported to your office as tural at date of the application, March 6,
containing coal, and must therefore be 1883.
offered at public sale under act of March
3, 1883. (Pamphlet Laws, 487.)

By what is known as the "Winter Reports," made to your office in 1879, certain tracts in this township were designated by a list as containing "valuable coal;" after which on the same list appears this entry :

"Balance of public land in 24 N., 9 E., not valuable coal and non-mineral."

SWAMP LANDS.

ARANT VS. STATE OF OREGON. Disposal- This term means alienation of title.-A pre-emption filing may be received for land claimed as swamp and overflowed. SECRETARY TELLER to Commissioner Mc Furland, July 11, 1883.

A like question was discussed in the case of The Dean Richmond Mine vs. The Bronkow Mine, decided by this Department, August 18, 1882, (L. O., Vol. 9, p. 114,) in which the general doctrine was held well settled that the acts of an officer de facto are valid in so far as they affect the rights of the public or of third persons, it being founded in necessity and upon principles of public policy; that if he is a mere intruder or usurper, third persons are bound to take notice of that fact and can acquire no rights from his I have examined the testimony, and conacts, but if he is in possession of the cur with you in the opinion that the tracts office, under color of right or authority, It appears that after examination of were not swamp and overflowed land, and he may exercise its functions; reference this report, you placed in the lists to be did not inure to the State under said act. being made in that case to the opinion of offered as agricultural lands, under the It is claimed, however, that by reason of Attorney-General Black, who said, (9 Op., act of July 4, 1876, (19 Stat. 73,) all the the selection of February 7, 1872, which 432,) "I am of opinion that if Mr. Hooper lands in said township not designated in was prior to Arant's settlement, Arant's was the Acting Secretary of the Territory, the list under the first classification, and filing must be rejected under Secretary (Utah) though he was not regularly ap- the same, including the tracts involved in Schurz's ruling in the case of Crowly pointed, a public obligation created by this appeal, were offered at the public sale, s. Oregon, (Copp., May, 1880,) wherein debts which would have been binding on on the 28th of February, 1880, and no he held-construing the proviso to act the Government, if made by a regular bids were offered. of March 12, 1860-that pending consideration of the State's claim for land Secretary, cannot lawfully or justly be re- You now decide that the words not pudiated on the mere ground that his title valuable coal," as used in Mr. Winter's reasserted to be swamp and overflowed, and to the office was defective. The acts of port, imply that coal is found in the lands, before final determination that the land an officer de facto are always held to be but not of much value. Yet, as the act of was not of the character contemplated by good where the public or third parties are 1883 requires "that all lands which have the act, it would be erroneous to permit concerned. The legality of his appoint- been heretofore reported as containing pre-emption entries of such land; in other ment can never be inquired into except coal and iron shall first be offered at pub-land under its grant, it cannot be disposed words that, after the State has claimed upon quo warranto, or some other pro- lic sale.' You conclude that however inceeding to oust him, or else in a suit considerable the amount or value of the brought or defended by himself, which coal, the statute requires the offering to brings the very question whether he was be made.

an officer de jure directly in issue. *** It appears to me that this act should be The irregularity of Mr. Hooper's appoint-construed in pari materia with the prement (by the Governor of the Territory vious law, Section 2318 of the Revised instead of by the President) ought not to Statutes requires that " In all cases, lands be set up by the accounting department as valuable for minerals shall be reserved a plea for refusing payment," (of certain

disbursements Hooper had made.)

from sale, except as otherwise expressly

of under other general laws for the disposition of the public land, until after such claim has been adjudicated adversely to the State.

I concur in this ruling, but it is not, in my opinion, applicable to the present case. A disposal of a tract of public land involves an adjudication—a determination But an application to file for a tract or of its status and condition and alienation. directed by law." It is the value for minThe present case is clearly within this erals which makes the cause for suspen- even a filing is not a disposal, but a step doctrine. Moore was not an usurper or sion, and if an agent specially detailed to only to that end. It is only when a preintruder in Maxwell's office. He had con- examine the lands, reports them as not emption entry is allowed, with the conseducted its business both in Maxwell's containing valuable coal, and, acting upon ment disposes of a tract of its land under quent right to a patent, that the Governpresence and absence, with the latter's such suggestion, your oflice has afterward unquestioned sanction. The appointment included them in a general public offering, that law. Disposal in this sense is equivaof Hoffman was nominal and not intended I do not think the act of 1883 goes back lent to sale and alienation, and such I to supersede Moore, who was the real and and creates a new suspension, by bringthink was the meaning of Secretary acting clerk. infer his authority in the conduct of the lands-they never having been previously not alienate its title so as to deprive the The public had a right to ing them within the category of mineral Schurz in Crowly vs. Oregon, and therefore he well held that Government could office, and especially had Walker, from so classified. all his transactions relative to his claim. The obvious intention of the act is to State of its asserted claim in case such I reverse your decision and permit open to market, by a new offering, lands claim be finally held valid. amendment of Walker's filing, holding previously withdrawn on account of hav-reason why Arant might not file for the Sewell's entry subject thereto. ing been reported as containing coal and tract, subject to the prior asserted claim iron. If they were not withdrawn and of the State, or why upon decision adverse to such claim his filing, if otherwise designated as mineral lands, there was nothing for the act to operate upon-for, being regular, should not take effect. already classified as agricultural, they Alabama Coal Lands.-Lands not valuable for were not excluded from entry as mineral.

MINES AND MINERALS.
CORNELIUS CADLE, JR.

minerals, as herein, should not be offered at public sale, under the Act of March 3, 1883. SECRETARY TELLER to Commissioner Mc Farland, July 16, 1883.

I have considered the appeal of Cornelius Cadle, Jr., from your decision of May 14, reiterating your decision of April 27, 1883, rejecting his application to purchase at private entry the N. of S. E. of section 2, the S. E. of S. E. of 4, and the N. of N. E. of 10, 24 N., 9 E.,

To render lands subject to suspension from disposal on account of their mineral character, it is well settled that they must be found more valuable for mining purposes than for other appropriation. The act of 1883 did not intend to establish a different rule, but must follow the accepted interpretation of the existing law.

Your decision is accordingly reversed; as the lands in question had been duly offered, and not having been subsequently

I know no

I affirm your decision that the State has no claim to the tracts in question, under its grant, because not of the character thereby contemplated, and that the claim of Arant be allowed.

SURVEYS.

INSTRUCTIONS FOR SURVEY OF ISLANDS OMIT-
TED FROM THE REGULAR SURVEYS.

SECRETARY TELLER to Commissioner Mc Far-
land, January 16, 1883.

I am in receipt of your letter of 27th ultimo, submitting for approval a draft of