On September 29, 1879, Surveyor General Theo. Wagner, accompanied by one of his deputies as compassman, went in person upon the premises, and "carefully retraced the line of segregation of the swamp and overflowed land from the dry land."

I found (he said in his report to your office of November 14, 1879), that said line was properly established; and that the meander line of Mr. McKay's survey had been properly run upon the shores of the lake, and might have been established at any time by submitting to a little inconvenience and wading through the mud-the waiting for the formation of the ice being wholly unnecessary.

And on November 13, 1879, the surveyor general certified the map which had been prepared in strict conformity with the field notes of the surveys of the township examined and approved, as first made by Deputy Surveyor McKay and afterwards by the surveyor general in person. The face of the map itself, and the application to the map of the calls of the field notes of the meanders of the swamp and the lake respectively, show that in 1874 and 1879 there was in existence, uncovered and visible to eye, a body of land called "swamp" by the surveyors, and containing by estimation 7,080.69 acres, which was carefully segregated from the arable land and from the lake, by the inner and the outer meander lines delineated and described.

On November 26, 1879, by letter "E" addressed to the surveyor general, your office,

in that

found the returns of survey defective and irregular neither the exterior meanders nor subdivisional lines were actually established in the field; . . . . but the line called the outer line of tule &c., or segregation of the impassable swamp from the open lake, although run and measured on the ice, was not marked in any manner, neither was there any subdivisional corner set or driven in any part of the "impassable swamp."

Your office then proceeded to say:

Under these circumstances the survey as a whole, cannot be approved by this office, and is therefore rejected in so far as relates to the running of said "outer meander line" and the consequent platting of swamp lands.

I have to direct that upon receipt hereof, you will make annotation upon the plat and field notes of this survey, of my decision, and prepare a new plat showing the survey of the township only to the "inner meander line,” so called by the surveyor.

It is plain that the phrase "inner meander line" was understood by all parties to mean the meander line between arable land, on the one side, and swamp and overflowed land unfit for cultivation, on the other; and that the phrase "outer meander line," meant the line along the shore of the lake proper, close to the water's edge, separating the water

of the lake from the swamp and overflowed land. The objection of your office embraced only the four meander courses copied above, which were run and measured on ice (and which on the map first returned, marked the western boundary of Little Klamath lake); and "the consequent platting (imaginary) of swamp lands." Your office distinctly recognized "the inner meander line so called by the surveyor”—not as a meander of Little Klamath lake-but as the line of demarkation between the lands high and arable, and the lands alleged to be swamp and overflowed; and plainly directed the surveyor general to "prepare a new plat showing the survey of the township only to that line," which was in fact the extent of McKay's actual survey. Your office thus approved the plat and survey and field notes first returned, so far as courses had been run, lines meandered, and corners established, actually, in the field; and rejected them only as to the residue of the township. The new plat was intended to show that the township was only partially surveyed; and that all the lands north and east and northeast of the arable land aforesaid were unsurveyed. Your office gave this direction with knowledge of the fact, that said unsurveyed portion of the township embraced (by estimation) 7,080.69 acres said to be swamp and overflowed, and 7,619.13 acres said to be covered by the waters of Little Klamath lake. The new map was to be ancillary to the first map, and prevent confusion by showing separately the arable public lands open to settlement and entry: Reserving for future consideration all questions between the United States and the State of California, in respect to the alleged swamp and overflowed lands.

On February 4, 1880, the surveyor general furnished the new plat or map "constructed in accordance with instructions." It shows only the arable public lands which had been actually surveyed. The lines of the survey were closed upon the "inner meander line," separating the arable from the swamp lands; and the fractional subdivisions thereby made necessary, were divided into lots and numbered. The new plat and the first plat were bound together in volume 27 of the official maps of California, and thus remain of record in your office jointly as a delineation of the township. They show conclusively that none of the lots surveyed and numbered therein abut upon or adjoin Little Klamath lake;-except lots 4, 5 and 6 in section 25, which have not been disposed of by the United States.

A further examination of the records of your office shows that only four patents have been issued for said lots, as follows:

On May 6, 1887, to Jerome Churchill for lots 1, 2, 3, 4 and 5 of section 18 and lot 2 of section 19.

On April 29, 1889, to Manuel J. Miller for lot 1 of section 30.

On January 28, 1890, to Norris F. Skeen for lots 3, 4 and 5 of section 35.

On November 9, 1891, to Annie E. Fairchild for lots 1, 2 and 3 of section 17, and lots 1 and 2 of section 20.

Two of said patentees, Jerome Churchill and Annie E. Fairchild were original plaintiffs in this controversy. None of them have any riparian rights whatever. The lands granted by their patents were limited by the straight subdivisional and meander lines which defined the lots on the face of the map.

The voluminous testimony in this case has been carefully examined. There appear such discrepancies as usually appear when interested parties, very much in earnest, are called to testify against each other. The witnesses all agreed that in 1874, there was no lake upon the land in controversy; and that the estimated tract of 7,080.69 acres, designated on the first map as "swamp and overflowed land," was land in full view. They differed as to the character of the land, whether it was in whole or in part, wet or dry-arable or unfit for cultivation. It is not necessary for the disposition of this case to decide between them. It is enough to find, as this Department does, that there is a large body of public lands belonging to the United States which has never been surveyed now occupied by homestead settlers.

Your office decision of March 20, 1894, in respect to the lands in T. 47 N., R. 2 E., M. D. M., is hereby reversed so far as it conflicts with the opinions herein expressed. Your office is hereby instructed to cause an official survey to be made of all the lands in said township lying north of the meander line established in the field by deputy surveyor McKay and delineated on the maps of said township on file in your office; and cause said survey to be closed upon the true shore or water line of Little Klamath lake, as ascertained, meandered and established by actual survey.

Township 48 N., R. 1 E., M. D. M.

In respect to the lands in T. 48 N., R. 1 E., your office decision found that they were not in 1850 swamp and overflowed and unfit for cultivation; and decided that they did not pass to the State of California under the act of September 28, 1850. This finding and decision are hereby approved and affirmed.

Your office further found that on September 28, 1850, said lands were probably a part of the bed of Little Klamath lake, and covered with water. The only evidence in this case tending to support this finding is the official map of said T. 48 N., R. 1 E., approved by the surveyor general on April 21, 1875, and now on file in your office. Said map purports to be a complete plat of the whole township and its correctness does not appear to have been called in question before this controversy arose. On the face of the map 772.40 acres of "swamp and overflowed land" are designated within the surveyed portion of the township, to-wit: 40 acres in section 36, 200 acres in section 34, 80 acres in section 33, 280 acres in section 28 and 172.40 acres in sections 21 and 22. "The meanders of Little Klamath lake," which were run on May 30, 1874, are plainly drawn upon the map, and seem to mark

the boundary between the arable public lands and the waters of the lake, as they stood on that day. The area of the lake was estimated at 5,622.65 acres. The plaintiffs in their application claimed only 1,685.60 acres; which according to Mitchell's map filed by them, appears to be an increment of land developed since the date of the official survey; and which has been caused, perhaps in part, by the fact that Little Klamath lake has been tapped to irrigate large areas of arid lands in Oregon, which lie below the level of the lake.

Your office decision certifies that,

The official records do not show that the title to any of the lands in T. 48 N., R. 1 E. (except to the swamp lands in sections 21, 22, 27, 28, 33 and 34 along Hot creek and in section 36, all of which are designated as swamp on the official plat), has passed from the government. So that the government remains the sole owner, except as to said "designated" swamp subdivisions.

The testimony in respect to the lands in this township is comparatively meagre (Record pp. 1 to 52). Only seven witnesses were introduced by the plaintiffs, and none by the defendants, of whom, only one ever claimed a settlement on this township, to-wit: "D. W. Inman, on portions of section 36, T. 48 N., R. 1 E."; and he appears to have abandoned his settlement. The concurrent testimony of all of said wit nesses shows that in the year 1874, there was no lake, at the places where the lands claimed by the plaintiffs in this township now appear; which accords with the affidavits filed with the plaintiffs' application, and appears to be true notwithstanding the official map.

This Department does not concur in your office opinion that "it appears fair to presume that at the date of the swamp grant in 1850 the lands in question were covered with water.”

That part of your office decision which rejects the application of the governor of California for a survey of the lands claimed in this township 48 N., R. 1 E., is hereby affirmed; but without prejudice to the jurisdiction and authority of your office, at any time, upon the application of any other person interested, or of your own motion, to direct an extension of the lines of the former survey over the whole township, in order that the meander lines now appearing on the map may be readjusted; that the true shore or water lines of Little Klamath lake, and of other meanderable lakes that may be found in said township, may be meandered and definitely established; and that the character of the lands now apparent, down to the smallest subdivision, may be determined.

ALIENATION-HOMESTEAD ENTRY,

WALKER T. CLAYTON.

A written agreement to convey the land covered by a homestead entry, made prior to the submission of final proof, will defeat the right of the entryman to perfect his entry.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 30, 1897. (E. B., Jr.)

I have considered the case of L. M. Walker v. Charles J. Clayton, on appeal by the latter from your office decision of October 29, 1895, holding his homestead entry, No. 7386, made December 27, 1889, for the NE. of section 32, T. 26 S., R. 23 E., M. D. M., Visalia, California, land district, for cancellation on the ground, in effect, of his bad faith, as evidenced by his agreement with one May, to convey the land to him, prior to final proof. The only question necessary to be discussed is that of bad faith.

A contest charging generally, that Clayton made the entry for speculative purposes and specifically that on July 14, 1894, he entered into a written contract with E. F. May, to convey to him for a valuable consideration in money and land the tract above described and certain other property, was initiated by said Walker, February 7, 1895. He had, on August 30, 1894, filed a contest affidavit of the same tenor, which was dismissed December 13, 1894, upon Clayton's motion, "for want of prosecution." A hearing, in March, 1895, upon the contest first above mentioned, resulted adversely to the entryman, the decision of your office being an affirmance of the decision of the local office.

The record shows that Clayton entered into a contract as charged, which was to be executed within sixty days from the date thereof, the party making default to forfeit to the other "one thousand dollars as liquidated damages, and such other damages as may in consequence of such failure be legally established." An endorsement on the contract shows that Clayton sought an extension for ninety days of the time. within which the contract might be executed. No extension was agreed to by May. The contract has not been executed in any particu lar, so far as appears, on the part of either party. It is admitted by Walker that Clayton had complied with the homestead law up to the time of the hearing in respect to residence and cultivation.

Clayton commenced to reside upon the land in February, 1890. He was allowed leave of absence under the act of March 2, 1889 (25 Stat., 854), from May 13, to December 13, 1890, a period of seven months. The five years of residence and cultivation necessary to acquire title by that means under the homestead law would not end, therefore, until September, 1895. The agreement to convey was thus made about fourteen months before he could submit his final proof or acquire any title