houses, barns and fences, public roads, a United States post office (Brownell), and a public district school house attended by fifteen pupils. They pay taxes, and are in all respects under the government of the regular State and county officers.

Thereupon the homestead settlers prayed that the lands be officially surveyed, with a view to determining the respective rights of the State of California and the swamp land claimants on the one hand, and of the United States and the homestead settlers on the other; in order that they may be able to make their entries according to law.

All parties to this controversy in their statements or pleadings agreed, (1) that the lands involved have never been officially surveyed; (2) that said lands lie outside of Little Klamath lake; (3) that the true boundary of the lake is the ridge or elevated strip of land herein before described; and (4) that said lands should now be officially surveyed. They differed only as to the character of the lands; which can be determined as to each smallest subdivision, only after an official survey.

On January 7, 1892 (by letter "E"), your office rejected the application of the governor of California "to have segregation surveys made of the above described land;" but instructed the surveyor general to call a hearing as provided in the fifth subdivision (or paragraph) of section 2488 of the Revised Statutes of the United States, "to determine the character of the lands in question at the date of the swamp-land grant, namely, September 25, 1850."

The hearing began on June 14, 1892, and was closed on August 20, 1892.

On September 16, 1892, the surveyor general rendered his decision as to the lands situated in township 48 range 1 east, as follows:

In view of this undisputed evidence, corroborated by a personal inspection of the land, I am of the opinion and so decide that the land in question was swamp and overflowed at the date of the passage of the swamp land act of September 28, 1850, and as such should inure to the State.

On May 6, 1893, the surveyor general rendered his finding as to the lands situated in township 47 north, range 2 east, as follows:

In conclusion it is my opinion that the lands under consideration embraced both swamp and overflowed land and public land (meaning dry and arable lands), at the date of the passage of the swamp land act of September 28, 1850; but as the official subdivisional surveys have not been extended over this land, it is impossible to give either public, or swamp land an official designation. Such being the case, a decision must be postponed until the necessary survey shall have been made.

It is my judgment that the official plat on file in this office, of township 47 north, range 2 east, M. D. M., is erroneous; that there is a body of land in said township which did and does exist, where a lake is alleged to exist; that the same is not a tract of land notoriously and obviously swamp and overflowed.

That a portion of said land is public land fit for, and now settled upon and improved as, agricultural land; that portions of the said tract are swamp and overflowed; that before the character of these lands can be fully determined by legal subdivisions necessary to final adjudication, the public surveys must be extended over the same; and until such is done a decision as to the character of each forty acre tract must be

postponed, and for that purpose I recommend an immediate survey of all surveyable land in said township lying outside of the meander line shown on the official plat.

On March 20, 1894, your office decided that the lands described in the governor's application for a survey, were not swamp and overflowed lands made unfit thereby for cultivation, within the intent and meaning of the swamp land grant of September 28, 1850, and thereupon. disallowed the claim of the State thereto and rejected the governor's application for a survey. Your office further found and decided:

That "for many years (prior to 1874 and doubtless in 1850), the waters of Little Klamath lake covered all of the lands which were subsequently found to be situate outside of the meander line established by McKay in his survey of 1874 and 1879," and "that lands covered by an apparently permanent body of water at the date of the swamp land grant are not of the character contemplated by said grant." . . . “It therefore follows that as the lands which were embraced in the so-called 'impassible tule swamp" in T. 47 N., R. 2 E., M. D. M., at the date of the official survey in 1874 and 1879, were in 1850 no doubt fully and completely covered by the waters of the Little Klamath lake, no testimony to the contrary having been submitted, and as the lands are now admitted to be in the main adapted to agriculture, it is apparent that the State of California has no claim thereto under the swamp land act of September 28, 1850. The application of the governor of the State of California on September 3, 1890, for a segregation survey of said lands was rejected for reasons set forth in office letter “E” of January 7, 1892. The claim of the State to said lands, on the assumption that the same were swampy and overflowed on September 28, 1850, is hereby disallowed.

Your office then proceeded to state, that

an examination of the official records shows that all of the lands in the several lots in sections 18, 19 and 30, abutting on the official meander lines of Little Klamath lake, have been disposed of; also, with the exception of two lots, all of the similar lots in sections 17 and 20. With the exception of lot 1 in section 31 and lots 1 and 6 in section 35, the title to all of the remaining lands adjacent to and closing on the meander lines; is still vested in the United States.

And after referring to the case of "Lake Malheur" reported in 16 L. D., 256, and others, your office decided as follows:

It therefore seems clear that the requisite exterior, meander and subdivisional lines in T. 47 N, R. 2 E., M. D. N., should be extended, where the title to the lands up to the shore line remains in the government, and you are accordingly hereby authorized to award a contract to a competent and reliable deputy surveyor for the extension of said lines. This authorization, however, must not be applied to any portion of the uncovered or recession lands in said township where the titles to the lots adjoining the original meander lines of Little Klamath lake in sections 17, 18, 19, 20, 30, 34 and 35, as herein before detailed, have been disposed of; it being held in those cases that the riparian rights of said adjoining proprietors must be recognized.

In respect to "the alleged swamp and overflowed lands in the fractional portions of sections 22, 25, 26, 27, 35 and 36, in township 48 north, range 1 east, M. D. M., as claimed by the State of California under the swamp land grant of September 28, 1850, your office found the facts as follows:

1. In the absence of evidence to the contrary, and in view of the admitted condition of the lands in 1887, as shown by the returns of the county surveyor, it appears

fair to presume that at the date of the swamp grant in 1850 the lands in question were covered with water, and were in no sense swamp land as contemplated by the statute. It is held by the Department that land covered by an apparently permanent body of water at the date of the swamp grant is not of the character contemplated by said grant.

2. 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, 34 along Hot creek, and in section 36, all of which are designated as swamp on the official plat), has passed from the government.

And thereupon your office decided as follows:

For reasons herein set forth, the application of the State of California that the lands in the designated fractional sections in T. 48 N., R. 1 E., M. D. M., be declared as swamp and overflowed land within the intent and meaning of the swamp land grant of September 28, 1850, is hereby rejected.

The application for the survey of these lands was rejected for reasons stated in office letter "E" of January 7, 1892; I know of no reason why the said action should be reversed, and the same is reaffirmed.

Subsequently your office overruled a motion for a review of said decision; and thereupon the homestead settlers aforesaid appealed to this Department.

The State of California and the swamp land claimants have not appealed; and to that extent at least they seem to have acquiesced in the decision of your office, and to abandon all claim of the lands in question under the acts of September 28, 1850, and July 23, 1866 (14 Statutes, 219). This conclusion is placed beyond all doubt by the fact, that the swamp land claimants have employed specia! counsel to resist and oppose the homestead settlers' appeal. On page 2 of the brief filed by said counsel it is said:

The present brief is filed on behalf of John A Fairchild and others, who are owners of tracts adjoining a portion of the land in controversy, and who seek an affirmance of the Commissioner's decision establishing their title as riparian owners.

The plaintiffs manifestly expect, under color of riparian rights as recognized and enforced by your office decision, to accomplish the same practical results that they had hoped to attain by their petition as swamp land claimants.

Following the method adopted by the surveyor general and also by your office, this Department will consider the two townships separately.

Township 47 N., R. 2 E., M. D. M.

This Department concurs in your office finding that on September 28, 1850, the lands embraced in T. 47 N., R. 2 E., M. D. M., were not swamp and overflowed lands made unfit thereby for cultivation; and your office decision disallowing the claim of the State of California to said lands under the swamp land act of September 28, 1850, is hereby affirmed.

As was said in the case of Oregon v. Porter, 22 L. D., 156–159:

When after the lapse of more than (forty) years,-after the death of a generation of men-persons claiming to be assignees of the State, go out to search for lands

which were swamp and overflowed in (1850), they must expect to find the burden of proof aggravated, but not shifted: Especially if the lands they may select, be not now swamps, but the productive farms and healthy homes of industrious citizens.

Your office erred in assuming that Little Klamath lake is a non-navigable lake. In fact, it is a navigable lake, eighteen or twenty miles long and ten or twelve miles wide, lying about one half in California and half in Oregon, with well-defined shores full of deep water, over which there is now, and for many years has been, carried on useful and profitable interstate commerce of freights and passengers, in steamboats and other vessels. (See record of testimony, pages 614, 615, 621 and 622.) The cases cited and quoted in your office decision, in respect to riparian rights, and lands acquired by accretion or reliction, are not relevant in this case.

Your office erred in finding as follows:

In the absence of any testimony showing the character of the lands in T. 47 N., R. 2 E., at the date of the swamp land grant (September 28, 1850), taken in conjunction with the admitted condition of the "impassable tule swamp" in 1874 and 1879, the conclusion is reached that for many years (prior to 1874 and doubtless in 1850), the waters of Little Klamath lake covered all of the lands which were subsequently found to be situate outside of the meander line established by McKay in his survey of 1874 and 1879.

The testimony does not sustain said "conclusion." The topography of the neighboring country as shown in evidence, proves conclusively, that it is physically impossible, that the lands referred to, could have been covered in 1850, or in 1874, or in 1880, or at any other time, since 1850, by the waters of Little Klamath lake.

In the month of July, 1874, when United States deputy surveyor Alexander McKay made his survey of said township, he ran and established a meander line to mark the boundary between the "plateau" of arable public land and the lands which he considered swamp and overflowed and unfit for cultivation. Then and there, between that meander line and the shore or water line of the distant lake itself, there lay uncovered and visible to the eye, a tract estimated to contain 7,080.69 acres of land, which he, the deputy surveyor, did not survey, but designated on his plat and in his field notes as "swamp and overflowed land."

Moreover, if it were true that in the year 1850, said 7,080.69 acres constituted part of the bed of Little Klamath lake and were entirely covered by its waters, that fact (if shown), would be immaterial and irrelevant in this case. If in the interval between 1850 and 1874, said 7,080.69 acres had been brought to the light, by accretion or by reliction by the gradual accumulation of earthy matter or by the recession of the waters of the lake-such increment of land would have been in 1874 the property of the United States as the sole owner during that period of time.

The only colorable evidence to be found in this record tending to support your office finding "that for many years (prior to 1874 and

doubtless in 1850), the waters of Little Klamath lake covered all the lands which were subsequently found to be situate outside of the meander line established by McKay in his survey of 1874," is one of the plats or maps of T. 47 N., R. 2 E., M. D. M., now on file in your office. This map bears the certificate of the surveyor general in the following unusual form:

The above map of township No. 47 north, range No. 2 east, Mount Diablo meridian, has been constructed in accordance with instructions from the General Land Office dated November 28, 1879, from the field notes of the surveys thereof on file in this office.

THEO. WAGNER,

Surv. Genl. Cal.

SURVEYOR GENERAL'S OFFICE,

San Francisco, California, February 3rd, 1880.

There is another plat or map of said township also on file in your office (and bound in the same volume 27 with the other), which bears the surveyor general's certificate in the usual form, as follows:

The above map of township No. 47 north, range No. 2 east, Mount Diablo meridian, is strictly conformable to the field notes of the surveys thereof, ou file in this office, which have been examined and approved.

SURVEYOR GENERAL'S OFFICE,

San Francisco, California, November 13, 1879.

THEO. WAGNER,

Surv. Genl. Cala.

The history of these two maps of the same township as compiled from the official papers now before me, will make it clearly manifest that your office committed errors in holding (1) that the lands in question were once part of the bed of Little Klamath lake; (2) that the fractional lots shown upon said maps, abutted upon or were adjoining to the shore line of said lake; and (3) that the owners of said lots had riparian rights which must be recognized.

The date of McKay's contract with surveyor general Hardenburg was October 6, 1873. McKay began his survey on July 7, 1874, and finished it on July 20, 1874:-except as to four courses, which he (the deputy surveyor), in his field notes calls, "Meanders of Little Klamath lake and outer line of tule and swamp unfit for cultivation." "This water line was run on the ice February 19, 1879," as hereinafter stated. McKay did not return his field notes to the surveyor general's office until 1877; when they were returned to him for the reason "that they were not sufficiently explicit as to the meander line of Klamath lake as run by him." "The notes were again returned by Mr. McKay April 3, 1879, with the explanation that the long delay had been occasioned by the necessity of waiting until the ice had formed so he could re-run the meander line as directed by the office;" and with an amendment to the field notes in the following words:

Meanders of Little Klamath lake and outer line of tule and swamp unfit for cultivation.

Commencing at the end of the 13th course as reported, in the meanders of Sec, 25 of the inner meander line between arable land and swamp and overflowed land unfit for cultivation.