living." The definition given in Bouvier's law dictionary is "a minor or infant who has lost both of his or her parents; sometimes the term is applied to such a person who has lost only one of his or her parents." Abbott's dictionary (edition of 1879) recites the definitions given by others in the following order, first, by Jacob, "a fatherless child"; second, by Wharton, "a fatherless child, or minor, or one deprived of both father and mother"; third, Bouvier as above stated; and, fourth," orphan may mean either a minor who has lost both parents, or one who has lost only one. A devise for the benefit of the Roman Catholic orphans of specified region is void for uncertainty for the reason among others that it is impossible to determine whether whole or half orphans are meant (Heise Murphy, 40 Wis., 276, 290).”

While the lexicographers above quoted from differ from each other in their definitions of the term orphan, I think we are able to recognize the fact that the present generally-accepted meaning of the word is that given in Webster's and Bouvier's dictionaries, a minor bereft of both parents.

Independent of this view of the subject, in my opinion, the case above cited recognizes a distinction which must furnish the true rule by which the act under consideration must be construed to determine whether its benefits are restricted to whole orphans-those who have lost both parents-or whether it also includes those who are half orphans, who have lost only one parent.

It has been suggested that the words in the fifth section of the act "whose parents or either of them, if living, would have been entitled to a donation," &c., furnish the meaning of the term orphan as it was intended to be applied. But I interpret these words as applying to the personal qualifications of the orphans, independent of their orphanage; if both or either of the parents were personally qualified and did not exercise their right to a donation, the personal qualifications descended under the statute to the orphan children and entitled them to a donation.

Upon a review of the legislation upon the subject of donations in Oregon, it will be observed that the eighth section of the original act of September 27, 1850, granted the right to a donation to natives and naturalized citizens of the United States, male and female, married and unmarried, above the age of eighteen years, including halfbreed Indians who were residents of the Territory at the date of the passage of the act, or became residents before the 1st of December, 1850.

The fifth section of said act granted this right to males who emigrated to the Territory between the 1st of December, 1850, and December 1, 1853.

The eighth section provided that the rights of a deceased settler should descend to his widow and heirs-at-law.

The eighth section of the amendatory act of February 14, 1853, provided that each widow who resided in the Territory at the date of the act, and those who should thereafter locate there, should be entitled to the same quantity of land that she would have been but for the death of her husband.

Then came the act of July 17, 1854, the fifth section of which provided for the only class of persons which up to that date had not been provided for, to wit: The orphans of deceased parents who would have been entitled if they had lived. This section is so framed that the right of the orphan does or did not depend upon the qualifications of both parents, but if either was qualified, the orphan was entitled to a donation. It appears from the records of this office, that the mother of the claimants in this case took a donation as the widow of Shadrick Powell, which was patented to her September 20, 1867.

From the foregoing, I am of the opinion that the case now presented does not come within the provisions of the fifth section of the act of July 17, 1854.

Touching the question of location I find that by the twentieth section of the act of Congress of March 2, 1853 (10 Statutes, p. 172), it is provided, "That when the lands in said Territory shall be surveyed under the direction of the Government of the United States, preparatory to bringing the same into market, or otherwise disposing thereof, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to common schools in said Territory."

The official plat of survey on file in this office, of township 5 north, range 1 west, in which the selection of the children of Shadrick Powell was made, being parts of section 36, was approved May 5, 1854, and at that time it does not appear that the tracts so selected were occupied by an actual settler, thereby creating an adverse right within the meaning of said twentieth section, nor was the selection for Powell's children made until May 12, 1879.

In my opinion, therefore, immediately upon the survey of said township in 1854, the title to that portion of section 36, selected as aforesaid, was reserved for school purposes, and the selection should be canceled.

Very respectfully, your obedient servant,

Hon. C. SCHURZ,

Secretary of the Interior.

J. M. ARMSTRONG,
Acting Commissioner.

Concurrent decision of department.

DEPARTMENT OF THE INTERIOR,
Washington, February 28, 1880.

SIR: I have considered the application of Jackson Powell, Mary Ann Powell, now Mary Ann Matthews, Willis Powell, Rebecca Powell, now Rebecca Rindlaub, and Thomas Powell, children of Shadrick Powell, deceased, under the fifth section of the act of July 17, 1854, submitted with your letter, dated December 16, 1879. Shadrick Powell died in Washington Territory in the year 1852.

The section above cited is as follows: "That in any case where orphans have been or may be left in either of said Territories, whose parents, or either of them, if living, would have been entitled to a donation under this act, or either of those of which it is amendatory, said orphans shall be entitled to a quarter-section of land on due proof being made to the satisfaction of the surveyor general, subject to the decision of the Secretary of the Interior" (10 Statutes, p. 305).

The act from which the above section is cited was amendatory to the act approved September 27, 1850, known as the "donation act," (9 Statutes, p. 496), and the act amendatory thereof, approved February 14, 1853 (10 Statutes, p. 158).

The qualifications of a grantee under the act of 1850 are expressly recited in the fourth section of said act. He must have been a white settler or occupant of the public lands (American half-breed Indians included) above the age of 18 years, a citizen of the United States, or one who had declared his intention to become a citizen, or who should make such declaration on or before the first day of December 1851, a resident of the Territory of Oregon at the date of the passage of the act, or who should become a resident thereof on or before December 1, 1850. If said qualified party should reside upon and cultivate the public land for four consecutive years, and otherwise conform to the provisions of the granting act, said party, if single, was granted 320 acres of land, and if married 640 acres, one half to himself and the other half to his wife, to be held in her own right.

It will be observed that under the act the party must have been an actual settler upon the land, and must have been a resident of Oregon prior to December 1, 1850. By the fifth section of the act of February 14, 1853, it was provided that a person who became a resident of the Territory of Oregon prior to December 1, 1855, should be entitled to the benefits of the "donation act." Settlement and occupancy of the land were still required, and only those who were residents of the Territory of Oregon prior to December 1, 1855, could obtain the benefits of the act. By the eighth section of said act of 1853, a widow, whose husband would have been entitled under the act of 1850 or 1853, was entitled to the same quantity of land that she would have been entitled to but for the death of her husband.

Occupancy and settlement of the land were, however, still required.

We now come to the fifth section of the act approved July 17, 1854, under which the present application is made.

The section conferred a benefit upon a certain class excluded from the benefits of the prior acts, viz, orphans, who had been left in the Territory of Oregon or Washington, or who should be left, whose parents, or either of them, would have been entitled to a donation under the act of 1850 or 1853. The benefit conferred was a quarter section of land to which said orphans were entitled without ocenpancy or possession.

Congress intended to confer benefits upon the early settlers of this portion of our country, and to this end a quantity of land was given to the husband and father, to the wife or widow and mother, and to orphans whose parents, or either of them, would have been entitled to land.

Counsel for applicants put great stress upon the legal interpretation or meaning of the word orphan, contending that it means a "fatherless child," and not one bereft of both parents. Authorities differ on the point, and I do not deem it essential at this time to give a technical definition to the word. When we take into consideration the provisions of the three acts of 1850, 1853, and 1854, it is clear that if either or both of the parents had received a donation under any of the acts, the children were not entitled, or, in other words, they are not orphans within the meaning of the act.

In the case under consideration, the mother of the applicants is living and has received the benefit of the donation act. Hence, in my opinion, the children are not entitled.

I concur in your recommendation that the application be rejected.

The papers

in the case are herewith returned.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFfice.

C. SCHURZ, Secretary.

SANTIAGO DE SANTA ANA, CALIFORNIA.

Instructions to surveyor-general for investigation and report, under first section of act of July 1, 1864.

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE,

Washington, D. C., July 3, 1880.

SIR: An examination of the record in the matter of the survey of the Rancho Santiago de Santa Ana, Bernardo Yorba, and others, heirs, &c., confirmees, shows that the questions of doubt and controversy affecting the survey, as to its correctness, relate to the proper location, under the confirmation, of the western boundary of the River Santa Ana and the southern termination of the eastern boundary, at the sea-shore; as to the western boundary, whether it should follow the line established as the eastern boundary of the adjoining Rancho las Bolsas, adopted as the course of the river bounding that grant, or be located on a different course, claimed to be that of the river when it was made the boundary of the Santiago de Santa Ana grant; and as to the eastern boundary line, whether it should be extended to the sea-shore by a direct line, as in the survey, or from the point where it reaches the "inlet" follow its shore line to the

sea.

The decree of confirmation of the Rancho Santiago de Santa Ana refers for description of the land confirmed to “the certified copies of the petition of Pablo Grijalva, the report of Manuel Rodriguez thereupon, and of the map contained in the expediente." The petition of Grijalva bears date December 8, 1801, and was accompanied by the report of Rodriguez. Both papers make the river Santa Ana the western boundary of the grant, and the map referred to shows the same in its delineations. It is therefore necessary, in order to determine the true boundary, to ascertain the location of the course of the river at the date of the petition referred to in the decree of confirmation, to wit, December 8, 1801.

From depositions introduced in the case, and from your report of January 4, 1879, accompanying the return of the survey to this office, it appears that the river Santa Ana has very materially changed its course in years past, in its approach to the ocean, and upon the territory constituting the two grants named, over a tract of country from one to three miles in width, great changes having taken place there in about the year 1825.

It will therefore be seen that, while the question as to the true location of this boundary is involved in uncertainty, it is one of very great importance as affecting the rights of the parties in interest; but while there is sufficient in the case to disclose this state of uncertainty, and the importance of a correct conclusion, there is hardly anything admissible as evidence upon which a satisfactory opinion can be based. The examination made, and the conclusions reached by you, as shown in your report aforesaid, are important, but your action was irregular and without authority, having been taken without instructions, after the survey had been regularly published under the act of July 1, 1864, and no objections made thereto, and all the testimony or evidence introduced in the case being ex parte; you are, therefore, hereby instructed to notify the parties in interest of a time and place for taking testimony-which should be in the vicinity of the locality in question, if practicable to take such testimony as they may offer, or as may be necessary and procurable, to prove the location and course of the river Santa Ana in the year 1801, or as far back as the knowledge and memory of witnesses may extend, and to show the changes that have since taken place therein, and describe or designate such location, course, and changes, so as to show their relation to the lines of the official survey; also proof to show the character of the inlet at the southeastern part of the Rancho Santiago de Santa Ana as to being tide-water, &c.

You will make or direct to be made such further examination as you may deem necessary for the purpose in view, and report the testimony taken and facts ascertained to this office as soon as practicable. C. W. HOLCOMB, Acting Commissioner.

Respectfully,

THEODORE WAGNER, Esq.,

United States Surveyor General, San Francisco, Cal.

Protest against foregoing instructions dismissed by department.

Parties who may submit testimony, &c.

DEPARTMENT OF THE INTERIOR,
Washington, July 14, 1880.

SIR: On the 3d instant your office instructed the United States surveyor general for California in the matter of the survey of the Rancho Santiago de Santa Ana "to

notify the parties in interest of a time and place for taking testimony

to

take such testimony as they may offer, or as may be necessary and procurable, to prove the location and course of the river Santa Ana in the year 1801, or as far back as the knowledge and memory of witnesses may extend, and to show the changes that have since taken place therein, and describe or designate such location, course, and changes so as to show their relation to the lines of the official survey; also, proof to show the character of the inlet at the southeastern part of the Rancho Santiago de Santa Ana, as to being tide-water," &c.

You further instructed him as follows:

"You will make or direct to be made such further examination as you may deem necessary for the purpose in view, and report the testimony taken and facts ascertained to this office as soon as practicable."

The object of this testimony, as I understand it, is to clear up some doubt existing in your mind as to the true location of the western line of said rancho, a survey of which is before you for approval, which line, it is contended, correctly located, is to the west of the eastern line of the Bolsas Rancho, a private claim that has been patented.

Under date of the 5th instant Hon. Montgomery Blair, of counsel for owners of the said adjoining patented Rancho Bolsas, submitted a letter to this department in the nature of a protest against said instructions, invoking the supervisory power of the Secretary of the Interior to arrest proceedings thereunder. Mr. Blair takes the ground that as the surveys of both the Santiago de Santa Ana and the Bolsas Ranchos were duly published, and neither of them was objected to, the claimants of neither rancho are now, nor will they be hereafter, parties to the record so as to entitle them to take an appeal from the present or any future decision of your office in relation to said survey.

But the fact is, so far as the owners of the Bolsas claim are concerned, that the survey of the Santiago de Santa Ana, now pending, does not conflict with the Bolsas claim as surveyed and patented, and there has been no occasion for said owners to object. But if you should modify or change that survey so as to conflict with the Bolsas claim, then undoubtedly the owners of that rancho would have the right to appear and be heard, and to appeal. And it follows that, as the testimony directed to be taken by your instructions is for the purpose of ascertaining whether the western line of the Santiago de Santa Ana does not lie to the west of the eastern line of the Bolsas and within the limits of the latter as surveyed and patented, the owners of the Bolsas are among "the parties in interest," which your instructions direct the surveyor-general to notify of the time and place of taking testimony, and who are authorized to submit testimony in their own behalf, and who, as a matter of course, may except to rulings and appeal from decisions adverse to their interests.

You have undoubted authority, under the first section of the act of July 1, 1864 (13 statutes, p. 332), to require a further report from the surveyor general of California, touching the matters indicated by you, or proofs to be taken thereon, and as these matters and all rulings and decisions thereon by the surveyor general or your office may be brought here for review, I decline to interfere with your judgment and discretion in the premises, and accordingly dismiss the protest.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

SOUTHERN PUBLIC LANDS.

C. SCHURZ,

Secretary.

Under the act of Congress of June 22, 1876, repealing section 2303 of the Revised Statutes of the United States, provision was made for the restoration of all the public lands in the States of Florida, Mississippi, Alabama, Louisiana, and Arkansas, to ordinary private entry. This was to be accomplished by offering at public sale, as soon as practicable, the lands affected thereby, according to the provisions of existing law. The carrying of this law into effect made necessary the examination of every tract or subdivision of land in the States named, the preparation of descriptive lists thereof from the records of this and the several district land offices, and to have executive proclamations prepared and issued and the lands offered for sale.

The public lands in Arkansas, Florida, and Mississippi, as well as those in the former Saint Stephens, Elba, Demopolis, Greenville, Montgomery, and part of the Lebanon districts in Alabama, and the former

Monroe, Greensburg, Opelousas, and southeastern districts in Louisiana, were all proclaimed and offered at public sale prior to the publication of my annual report for 1879, a statement of which will be found on pages 221 and 222 of said report.

The residue of the vacant public lands in the States of Alabama and Louisiana were proclaimed and offered as follows: Those in the northern part of the former Lebanon district, and in the Huntsville district in Alabama, not withheld as mineral, February 17, 1880; those in the former Tuscaloosa district in Alabama, not withheld as mineral, February 24, 1880, and those in the northwestern or Natchitoches district in Louisiana, April 13, 1880.

In the examination of the records of this office and a comparison thereof with lists of vacant public lands made up at the several district land offices, during the preparation of the lists for offering, a large number of discrepancies were discovered, which made it necessary to hold from offering a large number of tracts, aggregating many thousands of acres, in order to give time and opportunity for this office to examine the tracts and ascertain the exact status of each, and to correct the records of this and the district offices accordingly.

Since the completion of the lists for the offerings above mentioned, this work of examination has been going on, and it is now well advanced; when completed the lands found vacant, together with those made vacant by the cancellation of abandoned homestead entries since the preparation of the former lists for offering, will be embraced in a list and proclaimed and offered at public sale.

Respectfully submitted.

Hon. C. SCHURZ,

Secretary of the Interior.