Should there be any tracts excepted from the prior grant and free from claim at the dates of the passage of the act making the grant for the Oregon and California Railroad, and the date of the filing of its map. of definite location opposite the same, such lands would be affected by the latter grant, if within its limits, and the location of the terminal might affect this question.

It is admitted that the terminal, as shown by the pencil line, is incorrect, and the only reason given for recognizing the same is that the company has acted thereon in specifying a basis for certain of its indemnity selections heretofore made and patented.

In other words, the company without awaiting, or securing the establishment of a terminal to its grant at Roseville, has gone ahead and, in recognizing an arbitrary line which never has directly received the sanction of your office or this Department, specified as a basis for certain of its indemnity selections, lands without its grant, and now asks that this Department give recognition to an incorrect terminal so that these lands may be brought within the grant.

This case differs materially from the cases cited by you, viz., C. W. Aldrach (13 L. D., 572) and Southern Pacific R. R. Co. (14 L. D., 264). In both of said cases the limits had been regularly established and recognized for years, both by your office and the local office.

I can not see upon what grounds I would be authorized in establishing an incorrect terminal.

If the company has given a basis which in law does not support the selections, and this office has erroneously recognized the same, the proper step, under the circumstances, would be to call its attention to the error and require that it specify a good basis for such of the selec tions as have been approved, before further approvals will be recommended.

This would seem to be the spirit of the circular of August 4, 1885 (4 L. D., 90), but the terminal when established should be drawn in the proper manner.

HOMESTEAD ENTRY-CONFLICTING SETTLEMENT RIGHTS.

JOHN W. AUSTIAN.

When a homestead applicant alleges a prior settlement right as against an entry of record, a hearing should be ordered to determine the rights of the parties.

First Assistant Secretary Sims to the Commissioner of the General Land Office, January 23, 1894.

John W. Austian has appealed from your decision of July 23, 1892, sustaining the action of the local officers in rejecting his application to make homestead entry of the NW. of Sec. 34, T. 13 N., R. 4 E., Okla. homa land district, Oklahoma Territory.

The ground of the rejection was that it conflicted with the prior homestead entry of one John Brown, and "for the further reason that the applicant had exhausted his homestead right."

The appeal is taken on the grounds, substantially, that you "erred in not ordering a hearing to determine the respective rights of applicant and entryman, instead of rejecting his papers and tender of fees and commissions;" and "in holding that the applicant should have prosecuted his claim to the land as a prior settler, by contest and not by application to enter the same."

Your decision is correct in so far as it holds that the applicant is "not entitled to enter the tract applied for so long as Brown's entry remains uncanceled." "A homestead entry is a segregation and an appropriation of the land covered by it, and while it remains uncanceled the land is not subject to further entry." (Whitney v. Maxwell, 2 L. D., 98). "Two entries for the same land can not be allowed of record at the same time" (Russell v. Gerold, 10 L. D., 18; Swims v. Ward, 13 L. D., 686; Edwards v. Kemp, 15 L. D., 405).

While this is true, it is also true that the local officers did not perform their whole duty when they formally rejected the application to enter without further action.

It has been uniformly held by the Department that

when a pre-emptor applies to file a declaratory statement for land embraced in an entry of record, alleging settlement prior to the date of such entry, the proper practice is to order a hearing to determine the respective rights of the parties. (James et al. v. Nolan, 5 L. D., 526. See also Bishop v. Porter, 2 L. D., 119; Austin v. Thomas, 6 L. D., 330; James A. Forward, 8 L. D., 528; Willis v. Parker, ib., 623; Baxter v. Crilly, 12 L. D., 684). And in the case of Todd v. Tait (15 L. D., 379) the Department held (see syllabus):

When a homestead applicant alleges a prior settlement as against an entry of record, a hearing should be ordered to determine the rights of the parties.

You do not pass upon the question as to whether Austian had exhausted his homestead right prior to his application to make entry of the tract here in controversy, nor do you furnish the facts relative to the matter that will enable me to do so. This question should be investigated at the same hearing had to determine the truth of his allegation of prior settlement, as in the case of Todd v. Tait (supra), in which the Department directed "a hearing to determine the rights of the parties, and the qualifications of the applicants."

Your decision is modified as herein indicated; and you will direct that a hearing be had to determine the rights of the parties, and their qualifications to make homestead entry.

WAGON ROAD GRANT-WITHDRAWAL-SELECTION.

WILLAMETTE VALLEY AND CASCADE MOUNTAIN WAGON ROAD CO.

Directions given that due notice be served upon the company that it will be allowed ninety days from date of service of such notice within which to complete its selections, and that, at the expiration of such time, the order of withdrawal, heretofore made for the benefit of the company's grant, will stand revoked, and the lands unselected will be disposed of as other public lands.

Secretary Smith to the Commissioner of the General Land Office, January 27, 1891.

With your letter of the 2d inst., was transmitted, with the recommendation that the same be approved, five lists of lands, numbered 4, 5, 6, 7 and 8, aggregating 161,274.42 acres, selected on account of the grant made by the act of Congress approved July 5, 1866 (14 Stat., 89), to aid in the construction of a military wagon road from Albany, Oregon, to the eastern boundary of said State, which grant was, by the State, conferred upon the Willamette Valley and Cascade Mountain Wagon Road Company.

In said letter are set forth the facts relative to this grant as disclosed by a preliminary adjustment.

From your letter the following appears:

The company's line of constructed road is 448.7 miles long, and at three sections per mile the grant aggregates 861,504 acres.

There has already been patented on account of this grant 549,809.29 acres, leaving 311,694.71 acres necessary to satisfy the grant.

The list submitted for approval aggregate 161,274.42 acres, and you report that there are yet pending 17,824.18 acres in conflict with claims asserted under the general land laws.

To satisfy the grant it is but necessary to select 132,596.11 acres, unless the selections so far as in conflict with adverse claims be abandoned. Including this amount it would be necessary to select about 150,000 acres.

This grant is one of quantity, viz., three alternate sections per mile. to be selected within six miles of the road.

The lands were early withdrawn to the full extent of six miles on each side of the road, hence, the withdrawal was nearly twice the amount of the grant.

Your letter reports that there yet remains in the limits of the withdrawal, vacant lands amounting to 752,811.74 acres, of which 462,621.74 are surveyed.

It will thus be seen that more than 750,000 acres are retained in a state of reservation to await the company's selection of less than 133,000

acres.

I have therefore approved the lists submitted, which are herewith returned as the basis of patents to be issued to the company, but direct

that due notice be served upon the grant claimant; that it will be allowed ninety days, from date of service of notice, within which to complete its selections, and that at the expiration of such time the order of withdrawal will stand revoked and the lands unselected, will be disposed of as other public lands.

This will not prevent the company's selection after that date, but it will then be a matter of diligence between the company and claimants under the general land laws.

As to the lands covered by pending selections which are in conflict with adverse claims, I reserve decision, leaving the matter to be determined according to the facts in each individual case.

FLORIDA SWAMP LANDS-THE EVERGLADES.

THE STATE OF FLORIDA.

Patent under the grant of swamp lands may issue to the State of Florida covering "the Everglades” upon an estimated area, and designated by metes and bounds, excepting therefrom all islands and bodies of water not subject to the terms of the grant.

In order to make such exception operative it will be necessary to have each of said islands and bodies of water, so excepted, segregated by survey, so that they may be specifically identified by appropriate descriptions in the patent.

Secretary Smith to the Commissioner of the General Land Office, January 30, 1894.

Under date of June 24, 1893, S. I. Wailes, agent and attorney for the State of Florida, addressed a letter to the Department, as follows: As agent and attorney for the State of Florida I desire to call your attention to the claim of that State, under the swamp-land act of September 28, 1850, to the lands in what is termed "The Everglades," situated in the southern portion of the State.

The lands, though unsurveyed, have been selected as inuring to the State under the swamp-land grant, the areas being estimated. The system of public land surveys has never been extended over The Everglades," for the reason that in all cases of the survey of contignous lands the surveyors report "impracticable to survey," "impenetrable marsh, etc." It is a historical fact that it is utterly impracticable, if not impossible, to penetrate such lands sufficiently to extend the system of surveys over the same. There is no question but that the lands lie in that portion of Florida and marked on the maps as "Everglades" are now and always have been swamps and overflowed within the meaning of the swamp-land act of September 28, 1850.

The history of Florida, the records of the General Land Office, and all obtainable evidence clearly establishes the character of these lands, and under the present laws and regulations only agricultural lands can be surveyed, I most earnestly pray that the lands in question may be certified and patented to the State. Should the evidence on file in the General Land Office, in connection with other general and noto. rious facts, be deemed insufficient, I most respectfully ask that you direct that a trustworthy agent of the government be sent to Florida for the purpose of ascertaining the true facts in the case and to protect the interests of the government.

1

Should Florida be compelled to wait until the public land surveys shall have been extended over the "Everglades," she will be defeated of her rights in the premises, for such surveys under existing laws and regulations can never be made.

Could the matter be determined and the title to these lands passed to the State, steps would be taken looking to their ultimate reclamation by the building of extensive and costly canals. Parties are ready to undertake such a system of reclamation, but will not commence operations until title thereto shall have passed to the State.

In conclusion, I most earnestly desire that you give this matter your personal attention, to the end that the rights of the State may be determined and her claims under the law finally adjudicated.

On October 5, 1893, the said letter was referred to your office for report, in duplicate, and return of papers.

In com pliance with the above request, your office letter of October 17, 1893, submits the following statements:

The lands referred to are, in great part at least, pre-eminently such lands as were granted by the swamp land act of September 28, 1850, namely, swamp and overflowed lands. The only difficulty in the way of complying with the request of Mr. Wailes is in determining, from the great expanse of country claimed, what are swamp and overflowed lands from lands that are not of that character.

The law makes the quarter-quarter section, or forty-acre tract, the unit on which to act in determining the character of the land: if the greater part of the unit is in fact swamp land, the whole is of that character in law; but if the greater part of the unit, or forty-acre tract, is dry land, the whole is dry land in law, and, therefore, land not granted by the swamp land grant. It is known that there are a unmber of islands in the Everglades, some of them of considerable extent, and it follows that the lands forming such islands were not granted to the State if they were dry land at the date of the grant.

The Encyclopædia Britannica, article FLORIDA, contains the following general information on the character of the lands in question:

"The most remarkable feature is the immense tract of marsh filled with islands in the southern part of the state, called the Everglades; and by the Indians 'grasswater'. . . . . The district comprised in the Everglades is impassable during the rainy season, from July to October. It is about 60 miles long by 60 broad, covering most of the territory south of Lake Okeechobee, or Big-water. The islands with which this vast swamp or lake is studded vary from one-fourth of an acre to hundreds of acres in extent. They are generally covered with dense thickets of shrubbery or vines, occasionally with lofty pines and palmettos. The water is from one to six feet deep, the bottom being covered with a growth of rank grass. The vegetable deposit of the Everglades is considered well adapted to the cultivation of the banana and plantain."

It is estimated that the claim of the State of Florida to swamp lands in the Everglades amounts to about three million acres. The selection lists, which are the basis of the claim, were filed principally in 1886 and 1888. As the lands are not surveyed, the descriptions in the lists are general, such as "all of section;" or "all of township," referring to a section or township not recognized on the maps.

The inclosed map of Florida, marked "Exhibit A," shows the location of the lands claimed.

Protests and objections have been received in this office against approving to the State some of the lands claimed in, or on the borders of, the Everglades. See copy of letter of Mr. J. A. McCrory and copy of report of Mr. J. R. Hampton, herewith, marked "Exhibits B and C," respectively.

The Department has made a number of decisions relative to Florida swamp lands. The decisions of January 12, 1889 (8 L. D., 65), is not directly applicable to the case