The record of these proceedings did not appear in the files of your office, and upon the affidavit of Tonningsen the local officers were required to make report thereof, which was forwarded to your office on October 26, 1886. Said report merely showed that the contest was filed in 1879, upon which a hearing was ordered for December 15, 1879, and that the register rendered the decision as above stated. The record of evidence upon which said decision was rendered does not appear to have been forwarded, nor does it appear that the receiver took any part in said hearing.

It is unnecessary to recite any of the subsequent proceedings in this matter had prior to November 26, 1887. On that date the Commissioner ordered a hearing upon the contest of Tonningsen, which was had August 16, 1888, and at which the State and Andrew Morris, who had also offered a contest against the State, May 19, 1885, were present.

The decision of the register upon this hearing, above referred to, was not an adjudication of the rights of the State.

The doctrine of res adjudicata can only apply where the matter was adjudicated by a court competent to render a final judgment in the case, and which judgment would be conclusive against all parties thereto and their privies, unless reversed upon appeal.

The local officers have no power to render a final judgment in any case, and especially in determining the character of lands under the swamp land grant. (Sullivan v. Seeley, 3 L. D., 567.)

It is the duty of the Secretary to determine what lands are of the description and character granted by the act, his office being the sole tribunal charged with the duty of passing upon that question, and who alone can render final judgment, thereupon. State of Oregon, 12 L. D., 64; same, 5 L. D., 30.

While the Secretary of the Interior is charged with the duty of ascertaining and determining what lands are of the character contemplated by the swamp land grant, and while such fact can not be ascertained and determined by any other tribunal, the Secretary may employ various agencies as auxiliaries to aid him in the discharge of this duty, as, for instance, hearings upon contests before the local officers. But in such cases, although no appeal is taken from the findings of the local officers, it is the duty of the Commissioner to review the testimony taken at the hearing, and to render a decision upon the whole evidence. State of Oregon, 3 L. D., 474; same, 4 L. D., 225.

The important question is whether the land was swamp and overflowed within the meaning of the swamp land grant. Upon this question the evidence is conflicting and irreconcilable.

Tonningsen, the contestant, testified that no portion of the tract in controversy was subject to overflow or of a swampy nature, and that during the cropping season it would require irrigation to make it produce the staple crops of that vicinity; that no portion of the tract would require drainage in order to render it productive, and that the dams placed across the stream that passes through the land were placed

there for the purpose of irrigation; that he has visited the tract at all seasons since 1874, and that it has not been subject to overflow, but, on the contrary, in his knowledge it has been irrigated since 1874 to raise crops of hay.

The testimony of the contestant is in the main corroborated by four witnesses as to the fact that the land could be plowed, planted, and cultivated to an agricultural crop through the crop season without artificial drainage, and several of the witnesses testify that they have known the land since 1868.

On the other hand, the witnesses offered by the State-thirteen in number-testify, substantially, to the effect that from 1868 up to 1880 the water from Lake Warner covered the land a great portion of the time during the planting season, and that it has been reclaimed since 1880 by the construction of a ditch near the land in question, which connects with what is known as Deep Creek; that prior to 1880, the land was too wet during the greater part of the year to cultivate, but, on the contrary, that crops could not have been raised prior to the construction of said ditch in 1880, and that since that time the land has been reclaimed partly from the water going down in the lake, from the channels of the creek cutting down deeper, and by means of the ditch, which has diverted the water from its natural channel.

The field notes of survey do not show the land to be swamp and overflowed, and, hence, the burden of proof is upon the State. Wisconsin v. Wolf, 8 L. D., 555.

The weight of testimony in this case shows the land to be of the same character of land as that involved in the case of Boyd v. Oregon, 10 L. D., 315. In that case the land in controversy was situated in Coleman Valley, a small mountainous valley, almost level, and subject to an annual overflow from rain and melting snow from the mountains, commencing from the last of February to the first of April, and continuing through the season.

The local officers found that the land produced a fair growth of native grass, which was harvested for hay, and while the grass grew well, partially inundated, it could not be harvested without turning off the water. At the date of the trial, the land was much dryer than when first seen by the witnesses, who testified that the change was brought about by the cutting of several ditches, for the purpose of diverting the water from the natural channel, and by reclamation to such an extent that the water is allowed to flow over the meadow while the native grasses require it for their growth, but it is turned off in time to permit the harvesting of the same.

The local officers and the Commissioner found that the land was swamp and overflowed, which was affirmed by the Department.

The facts shown by the testimony in the case now under considera. tion are parallel to those in the case of Boyd v. Oregon, supra, which are very fully set forth in said decision, and upon the authority of said case your decision must be affirmed.

SWAMP LANDS-RETURNS OF THE SURVEYOR GENERAL.

RAKE v. THE STATE OF Iowa.

A certificate of the surveyor general that lands embraced within a specified list are of the character granted by the swamp act, is prima facie evidence as to the character of such lands when said grant became effective.

The swamp land act intended to grant not solely such lands as were swamp, but such as were "so wet as to be rendered thereby unfit for cultivation."

Secretary Noble to the Commissioner of the General Land Office, September 30, 1891.

The record in the case of James A. Rake v. The State of Iowa, ex rel. John A. Lawless, is before me on appeal of the latter from your decis ion of April 28, 1890, holding for rejection the claim of the State (and its assignees under the swamp-land act) to the SW. of the SE. of Sec. 32, T. 83, R. 32 W., Des Moines, Iowa.

Contestant has filed a motion to dismiss this appeal, on the grounds1. Because no notice of appeal has been served upon appellee, as required by Rule of Practice 86.

2. Because no assignment of errors relied upon by appellant has been filed herein, and a copy served upon appellee, as required by Rules of Practice Nos. 88 and 90.

It appears that service of a copy of your decision was accepted by Lawless, May 15, 1890, and by the Auditor of the State May 5, 1890.

The appeal, with specification of errors, was accepted by the attor ney for contestant July 5, 1890, and, on the same day, it was filed in the local office, and on July 12, 1890, argument in support of said appeal was filed, and, since Lawless as transferee of the State is the real defendant, it is seen that his appeal was filed within sixty days from the service upon him of the decision appealed from. The appeal suf ficiently sets forth the errors complained of, and the motion to dismiss the same is therefore overruled.

It appears that the tract in question was embraced in a list, certified under date of May 11, 1859, by the surveyor-general of the United States for the State of Iowa,

as a correct transcript of the original lists of selections made by the county surveyors or State locating agents; that the same has been carefully compared with the field notes, plats, and other evidence on file in this office, and by the affidavits of said county surveyors or State locating agents it appears that the greater part of each smallest legal subdivision of the lands embraced in said list is swampy or subject to such overflow as to render the same unfit for cultivation, and is therefore of the character contemplated by the act of 28th September, 1850.

The swamp lands granted to the State of Iowa were, by act of the general assembly, in February, 1853, conveyed to the several counties in which they were situated.

It appears that Lawless, through mesne conveyances from Greene county, Iowa, claimed the land, and in November, 1887, he made application to present evidence of its swampy character, and, on October 23, 1888, you ordered a hearing "to determine its true character," and directed the local officers to give proper notice, and, after the hearing, examine the evidence and render a decision thereon, giving due notice thereof to all parties in interest, with the right of appeal, etc.

The hearing was duly had, and the evidence appears to have been filed, but I am unable to determine, as alleged by swamp-land claimant, that the local officers ever passed upon the same, "deciding it to be swamp land within the meaning of the act."

Referring to this hearing, the present register and receiver say:

It seems clear that a decision should have been rendered by the register and receiver of this office at that time. In that contest the land was proved to be swampy, and that no decision was made appears from the records to have been the fault of this office.

On September 9, 1889, the contestant (Rake) filed his affidavit of contest, alleging the tract "to be dry and fit for cultivation," and that such was its character at the date on which the swamp land law was passed.

Hearing was duly had, and on December 6, 1889, the register and receiver found that the tract in question "is swamp land within the meaning of the swamp land act of 1850."

In reversing that judgment, you say (inter alia):

The evidence has been carefully examined in this office, and found to be so conflicting as to render the character of the land at least doubtful.

On a careful examination of the evidence, it is very clear that the witnesses for the swamp land claimant have known the land for a much longer period than the witnesses who testified for the contestant, and their longer acquaintance with the land enabled them to give a better description of the same. One witness, Mr. Cromwell, had known the land for nineteen years, and swears that three-fourths of it was submerged, and that not more than eight or ten acres could have been cultivated; he further said: "In my opinion it was swamp land ever since God made it." Another witness, Coleman, had known it eighteen years, and had often seen three-fourths of it covered with water. He admits, however, that in consequence of the dry seasons of 1888 and '89, much of the swampy land had become fit for cultivation. He says the land was good hunting place for ducks. Other witnesses corroborate the above evidence.

John Thomas, who testified for contestant, had known the land fourteen years. He says not over twelve or fifteen acres are unfit for cultivation, but admits that the first ten years he knew the land the larg est part was too wet to cultivate.

John Rake and the contestant had only known the land two years, and the evidence shows those years to have been very dry.

Another witness (Badger) had only known the land two years and testifies they were the dryest for ten years.

One Bean, who surveyed the land just before the hearing, and in a very dry time, says that 29.7 acres of the forty acre tract can be cultivated, but he knew nothing of its condition prior to his survey, and the dryness of the season at that time makes his evidence of little value. Although the testimony is conflicting, yet I am led to concur in the finding of the local officers, that the weight of the evidence tends to establish the fact that the land is of the character contemplated in the swamp land act.

The tract may not come under the description "swamp lands," but the act intended to grant not solely such lands as were swamps, but such as were "so wet as to be rendered thereby unfit for cultivation." Powesheik County v. United States, 9 L. D., 12.

Conceding the correctness of your finding that "the evidence is so conflicting as to render the character of the land at least doubtful," the certification of the surveyor-general of May 11, 1859, as above givennamely, that the tract "is of the character contemplated by the act of 28th September 1850"-would turn the scale in favor of the swamp land claimant. Such finding, based upon the same certificate, in the same terms, was held by the supreme court of Iowa to constitute a prima facie showing that the land was of a swampy character at the time the swamp land grant took effect.

This was the ruling in the case of Page Co. v. the Burlington and Missouri River Railroad Company, 40 Iowa, 520, where it is said:

The acts of these officers, state and federal, in selecting and setting apart the lands under the grant and their official certification of their swampy character, must be regarded as prima facie evidence at least that they are swamp lands. See also Conners v. Mesermy, 76 Iowa, p. 691.

After the passage of the swamp-land act, the State authorities were requested to indicate a method of selection which they would adopt in adjusting the grant. Some of the States, notably Michigan, Wisconsin, and Minnesota elected to accept the returns of the surveyor general's office, as disclosed by the field notes, as their method of adjustment, and in all such cases the field notes constitute prima facie evidence of the conditions given, and imposes the burden of proof against the party alleging the contrary. Lachance v. The State of Minnesota, 4 L. D., 479. And the State adopting this method is bound thereby, until such survey shall be proved to be fraudulent. (Idem.)

Other States, including Iowa, agreed to ascertain the swamp lands by examination in the field. In such cases the State is not bound by the field notes, but may furnish other evidence to sustain or disprove them. State of Oregon, 3 L. D., 474.

The certification by the surveyor general that the land is of the char acter contemplated by the swamp land act, and the selection of such lands by the State authorities (since the act of March 3, 1857, 11 Stat.,