the Revised Statutes. Kile et al. v. Tubbs (6 C. L. O., 108); Kile v. Tubbs (59 Cal., 191); Sutton v. Fassett (51 Cal., 12).

The first clause of said section is as follows: "It shall be the duty of the Commissioner of the General Land Office to certify over to the State of California, as swamp and overflowed lands, all the lauds represented as such upon the approved township surveys and plats, whether made before or after the 23d day of July, 1866, under the authority of the United States." Under this clause, it is clear that the State has no valid claim to the land in question, unless it is represented upon the approved township survey and plat, as swamp and overflowed land, and, if the tract is so represented, then it matters not what the real character of the land is, whether swamp and overflowed or dry, the State is entitled to the tract. Central Pacific R. R. Co. v. California (4 C. L. O., 151).

The essential inquiry then is, what is the representation upon the plat and survey made under the authority of the United States?

The report of the register, dated November 26, 1880, shows that the official plat of said township was filed in the district land office on October 18, 1865, and he further certifies that the only land designated on said official plat, as swamp and overflowed land, is situated in the N. of section 5 of said township. A careful inspection of the approved plat of said township on file in your office confirms the report of the register, as to the amount and locality of the land designated thereon as swamp and overflowed land.

6.

But it is strenuously contended by the counsel for the State that the field notes and the general description made by the deputy surveyor show conclusively that said tract is represented as swamp and overflowed land, and if the approved plat does not so designate the same, the error is the mistake of the draughtsman, and can not affect the title of the State. It appears, however, that the subdivisional survey of said township was made in April, 1865, by John Wallace, a deputy United States surveyor. Upon the plat of said survey the tract in question, with others, is designated as land subject to periodical overflow," and upon the margin appears this note, "the lands represented upon this map as 'subject to periodical overflow,' can be cultivated, and crops raised thereon, as returned by the deputy." There is nothing in the field notes to contradict the above statement, unless it be found in the general description, which is as follows: "The soil of the township is of an average character, with some of superior quality in the southern portion, which is subject to inundation by the overflow of the Calaveras river and its branches, and is thus rendered incapable of being culti vated for the raising of crops, except by means of banks and levees, which have been erected to prevent such overflow. The numerous sloughs are nearly all dry during the summer, but water can be obtained at a depth of from twelve to thirty feet." This general description does not necessarily apply to the land in question. While it may

be true, that, where the legend upon the plat does not correctly represent the return of the deputy surveyor, "the sworn and duly approved field notes as returned by the deputy" must be taken as the survey, yet, where there is a discrepancy between the general description and the field notes of the boundary lines of the particular tract in question, the latter must control. Is is evident, therefore, that taking into consideration the whole return of the deputy surveyor, and the plat upon which is represented the amount and the particular section in which is situated the only swamp and overflowed land in said township, there was no such return of said land as is required by the first clause of said section 2488.

Again, the approved plat of survey of this township and the return of the deputy have been passed upon by this Department in the case of Wallace v. State of California (5 C. L. O., 22,) involving the NW. of section 23, which corners upon the section embracing the land in controversy. In that case, it was held that "the township was surveyed by the United States prior to July 23, 1866, and the land is returned by the surveyor general as subject to periodical overflow,' and not as 'swamp and overflowed,' as provided in the statute, hence it is not subject to certification to the State by virtue of the return of the surveyor general;" and also that where a question is raised as to the correctness of the return of the officer, a hearing should be ordered in accordance with the provisions of the fourth clause of the fourth section of the act of July 23, 1866.

It is, however, urged that if the State is not entitled to said tract under the first clause, she has a right to the land by virtue of the second clause of said section 2488, which provides that "the surveyor general of the United States for California shall, under the direction of the Commissioner of the General Land Office, examine the segregation maps and surveys of the swamp and overflowed lands, made by said State; and where he shall find them to conform to the system of surveys adopted by the United States, he shall construct and approve township plats accordingly, and forward to the General Land Office for approval."

This claim cannot be maintained. The only evidence offered in support thereof, is a copy of a survey No. 992 of the W. of Sec. 26, and the E. of Sec. 27, in said township made April 17, 1865, by the county surveyor, under the act of the State legislature, approved April 27, 1863, and the application of Stephen Rogers to purchase said land under said act, dated May 22, 1865, approved by the State surveyor general on November 22, 1865. It appears that said application was for "overflowed lands," and the word "swamp" is omitted.

It does not appear that any other survey was approved by the State surveyor general, prior to July 23, 1866, showing a State segregation of said land, nor was any application made to the United States surveyor general to approve any plat and survey representing said tract as

swamp and overflowed under said second clause of Section 2488, or that said tract has been certified over to the State under said section. On the contrary, there is filed the certificate of the State surveyor-general, William Minis, dated February 19, 1877, to the effect that the swamp land survey No. 1258 of said tract filed for Thurston on September 3, 1868, and the swamp land application of Thurston for the E. of said tract filed July 27, 1876, "are the only applications or surveys in this office for the above described land." Although said survey was received and filed on September 3, 1868, it was not approved until January 7, 1879.

It is further shown by the record that on June 8, 1867, said Rogers made pre-emption cash entry No. 1630 for the SW. of section 26, embraced in said survey, and that each of the other quarter sections within its limits, except the tract in controversy, has been disposed of under the pre-emption laws of the United States. Without deciding as to the effect of a State segregation map and survey of the swamp and overflowed land in said State, made prior to said act of July 23, 1866, and in strict compliance with the second clause of said Section 2488 of the Revised Statutes, where the land embraced therein has not been listed to the State, I am of the opinion that the survey relied upon by the State does not conform to the requirements of the law. State of California (6 C. L. O., 29); Sutton v. Fassett (51 Cal., 21); People v. Cowell (60 Cal., 403); Sacramento Valley Reclamation Company v. Henry E. Cook (61 Cal., 244).

Under the provisions of the last clause of said Section 2488 of the Revised Statutes, the hearing was had before A. W. Von Schmidt, U. S. deputy surveyor, and it was stipulated by the counsel for all parties that the testimony taken before him should be admitted as evidence and considered by the United States surveyor general. It was also agreed by the parties, that Mr. Von Schmidt, with others, should make a personal inspection of the tract in question, which he did in company with the State surveyor general. Mr. Von Schmidt reports, under date November 22, 1880, that "the land in dispute never was in my opinion swamp land. That it has been overflowed from time to time there is no doubt. These overflows occur when heavy rains occur, sometimes lasting several weeks, at other times a few hours." A careful consideration of all the evidence shows that said tract is subject to periodical overflow in the winter or spring months, but the overflows subside so as not to render the land unfit for successful cultivation by reason of the overflow. The land, therefore, is not swamp and overflowed land within the meaning of the swamp land act, and the claim of the State must be rejected. Thompson v. Thornton (50 Cal., 143); Wallace v. State of California (Sec'y, February 25, 1881); State of Oregon (2 L. D., 651).

The decision of your office is reversed.

PRE-EMPTION-ENTRY.

MEYERS v. SMITH.

In consideration of the valuable improvements and residence of the pre-emptor, and the absence of an adverse right, an entry based upon a filing made when the land was embraced within an uncanceled desert land entry was allowed to stand.

Acting Secretary Muldrow to Commissioner Sparks, May 6, 1885.

The case of William Meyers v. S. B. Smith has been considered on appeal by Meyers from the decision of your office, dated June 5, 1884, wherein his application, under the homestead law, to enter land situated in the Deadwood district, Dakota, was rejected, to the extent to which it conflicted with the pre-emption entry of a prior settler.

The record shows that Stephen B. Smith filed declaratory statement No. 1471 January 5, 1882, covering the S. of NW. 4, N. of SW. 1 of Sec. 33, T. 6, R. 6, in the said district, alleging settlement January 4, 1882; for which cash entry certificate No. 546 was issued December 22, 1883.

March 15, 1884, Meyers presented an application under the homestead law to enter the NW. of NW. 1, S. 1⁄2 of NW. and NW. † of SW. 1 of said Sec. 33, which was rejected March 30, 1884, so far as it relates to the S. of NW. and NW of SW. 4, which has been appropriated by Smith under his cash entry.

Meyers, in his appeal, sets forth that Smith was permitted to file his pre-emption declaratory statement for the tract in question, pending a prior uncanceled entry which embraced the same land.

The following state of facts is presented by the records of this Department:

On July 3, 1878, Meyers made desert land entry No. 7, for three hundred and twenty acres of unsurveyed land, which embraced the tract in controversy. The question as to whether the tract covered by such entry was desert land, was presented to this Department on appeal, and a decision rendered in the negative July 3, 1882, in the case of Wood v. Meyers; whereupon the desert entry was canceled by your office August 22, 1882.

The proof of Smith shows the purchase of valuable improvements, and residence on the land from early in 1881, continued to date of entry, December 22, 1883. The original desert land entry was canceled August 22, 1882. Smith duly published notice of final proof and was permitted to make the same and consummate the entry without protest or opposition. Meyers did not apply to make homestead entry until several months afterward. He was therefore in no condition to set up any alleged prior equities or rights, and the question is solely between Smith and the government. Smith having shown sufficient improvements and inhabitancy of the land, his entry will be approved, and the decision of your predecessor rejecting the homestead entry of Meyers. is affirmed.

RAILROAD GRANT-CONFLICTING ENTRY.

ST. PAUL, M. & M. RY. Co. ET AL. v. MCALMOND ET AL.

Title to the additional lands granted by the act of March 3, 1865, does not pass without some act of selection on the part of the grantee.

Acting Secretary Muldrow to Commissioner Sparks, May 8, 1885.

I have considered the case of the St. Paul, Minneapolis and Manitoba, and Hastings & Dakota Railway Companies v. Robert McAlmond et al., involving the NW. of Sec. 3, T. 117, R. 29, Benson, Minnesota, on appeal from the decision of your office, dated February 4, 1884, adverse to said companies.

It appears that the tract described falls within the fifteen miles, or indemnity, limits of the grant of March 3, 1857, (11 Stat., 195,) for the benefit of the St. Paul and Pacific, now the St. Paul, Minneapolis and Manitoba Railway Company, and was originally within the withdrawal under said grant.

The grant having been adjusted to the west line of range 38, the tract in question was included in certain lands restored to market by proclamation No. 700, which was transmitted to the local officers June 3, 1864. Said restoration was made with full consent of the company. Thereafter said tract was public land, and on the 18th of November, 1864, one William F. Flick made homestead entry therefor, which entry remained of record until September 30, 1872, when it was canceled.

The land also falls within the ten miles withdrawn by the Department, under its construction of the act of March 3, 1865, (13 Stat., 526,) which increased the grant of 1857, above mentioned, to ten sections per mile. Withdrawal under the extension was made in July, 1865.

The tract in question was, at the date both of the grant of 1865 and of the withdrawal thereunder, appropriated by the homestead entry of Flick.

It is also within the twenty miles indemnity limits of the grant made by the act of July 4, 1866, (14 Stat., 37,) for the benefit of the Hastings and Dakota Railroad Company, the withdrawal for which was made in July, 1866, at which time the Flick entry was still of record.

Said tract was selected by the first named company May 26, 1880. On these facts, your office held that it was excluded from the grant for the benefit of either of the companies mentioned, and that Flick's entry having been canceled, the land was open to settlement and entry by the next legal applicant.

Applications to file or make entry for the tract were offered by McAlmond and several other parties named in your office decision. These were all rejected by the local office, and appeals taken to your office, which, as already stated, ruled adversely to the companies, and held the railroad selection mentioned for cancellation.