worth $1.50 per thousand. In its present condition it is wholly unfit for agricultural purposes, and is valuable chiefly for the timber upon it.

While Carroll claims to have selected the land for a home, I am satisfied that the contrary is true, and that the meager improvements were made only in order to lend color to his claim.

Your office then held the declaratory statement of Carroll for cancellation.

From this Carroll has appealed to the Department.

On June 23, 1893, when Bateman made his sworn statement that he had personally examined the land in controversy, and that it was uninhabited, Carroll was a resident upon the land, and your office so finds. This alone is sufficient to warrant the rejection of Bateman's application to purchase the land under the timber and stone act, as the act does not allow the purchase of land which is inhabited by a settler. The residence and improvement of Carroll can not be presumed to be in bad faith simply because they were made in the wilderness. Many populous communities throughout the western country were begun by a pioneer making a settlement in what was then an almost inaccessible locality. There is no evidence to show that Carroll's settlement was made in bad faith, and you will therefore allow his final proof and reject the application of Bateman.

BLACK TOMAHAWK v. WALDRON.

On the report submitted under the investigation directed October 20, 1894, 19 L. D., 311, the former departmental decisions are adhered to, and judgment rendered in accordance therewith, by Secretary Francis, February 8, 1897.

RAILROAD GRANT-INDEMNITY SELECTION—ABANDONMENT.

HASTINGS AND DAKOTA RY. Co. v. BERG ET AL.

The failure of a railroad company to perfect an indemnity selection, within a reasonable time after notice of final decision recognizing the right of selection, must be held to work an abandonment of its prior right, where the withdrawal has been revoked, and an adverse claim intervened.

Secretary Francis to the Commissioner of the General Land Office, Feb(I. H. L.) (F. W. C.)

ruary 13, 1897.

The Hastings and Dakota Railway Company appeals from your office decision of March 2, 1893, involving the S. of Sec. 3, T. 118 N., R. 45 W., in Marshall land district, Minnesota.

This land is within the twenty mile indemnity limits of the grant made by the act of July 4, 1866 (14 Stat., 87), to aid in the construction 10671-VOL 24- -10

of the Hastings and Dakota Railway, and was free from any adverse entry or right at the time of the withdrawal (May 11, 1868), on account of said grant.

In 1884 Albert McFarlane applied to enter the SW. 4 of said section, and William Fraser the SE. 4; both of which applications were refused by the local officers because in conflict with said withdrawal for railroad purposes.

From this denial the applicants appealed.

July 12, 1886, said railway company applied to select both tracts, specifying a basis for the selection and tendering the required fees for said selection.

This application was also rejected by the local officers because in conflict with the pending homestead applications aforesaid, and the company appealed.

October 5, 1888, your office decided in favor of the company and that it was entitled to select said lands, and refused the said homestead applications. Fraser did not appeal. McFarlane appealed, and on March 13, 1891, this Department affirmed your office decision (12 L. D., 228), holding that the railroad company had the right of selection in said lands.

May 22, 1891, the indemnity withdrawals to said railway grant were revoked by departmental order (12 L. D., 541), as authorized by act of September 29, 1890 (26 Stat., 496).

It is not claimed, after the decision by this Department of March 13, 1891, said railway company ever made any effort to perfect its selection tendered in 1886, by making payment of selection fees or by making. new selection for the land.

February 26, 1892, Elling O. Berg made homestead entry No. 12,269 for the SE. (the Fraser quarter).

May 7, 1892, Hans O. Berg applied to make homestead entry for the SW. (the McFarlane tract), which was refused by the local office because the tract applied for had been selected by said railway company July 20, 1886, as being within the twenty miles indemnity limits of said road.

Hans O. Berg appealed, alleging that the railroad company had never paid the selection fees nor completed its attempted selection of July, 1886, and that as the company had failed to complete its selection, and said land had been opened to settlement by the order of revocation of May 22, 1891, his homestead application should be accepted.

It does not seem that notice of this appeal to the General Land Office was served upon the railway company, but that defect has been waived by its appearance herein by brief both before your office and this Department.

The railway company does not seem to deny that it received notice both of the decision of your office and this Department, but urges, in effect, that it was incumbent upon your office to advise the company

what steps should be taken in order to secure the acceptance of its selection. Its resident counsel in his brief says:

When the Department found the land subject to selection on the company's appeal, it became the duty of the Secretary or Commissioner to notify the company thereof, and that the fees which it had previously tendered to the local officers would now be received, upon the payment of which the selection would be approved.

The company had exercised due diligence in the prosecution of its case by taking its appeals in apt time, and it was entitled to notice of the action of the Department as well as directions from it as to further requirements. The bounden duty of the Department was manifestly to advise the railway company that the money would now be accepted and its application to select allowed.

The records of the General Land Office show that notice of your office decision of October 5, 1888, was, on that date, given to all parties, and that an office letter dated April 7, 1891, gave resident counsel for said company notice of the promulgation of the decision of this Department in the McFarlane case.

The company was therefore duly and seasonably advised both of the action of your office and this Department in its favor, and was bound to take proper steps within a reasonable time after said decisions to perfect its right under its proffered selection of this land, and I cannot agree with counsel that it was necessary that you should advise the company as to the proper steps to be taken in order to complete its attempted selection.

Your office decision in favor of the company became final, as to the Fraser tract, in 1888, and as to the McFarlane tract, in the spring of 1891, but to the date of your office decision, March 2, 1893, the company had taken no step to secure the acceptance of its proffered selection of 1886. In the meantime the withdrawal made of its indemnity lands had been revoked, and after the lapse of a year from the date of the last decision in its favor Elling O. Berg was permitted to make homestead entry of the Fraser tract and Hans O. Berg applied to enter the McFarlane tract.

By its failure to complete its selection within a reasonable time after decision in its favor, the indemnity withdrawal having been revoked, it must be held that its laches worked an abandonment of its rights under its list presented in 1886, in the presence of an adverse claim. Your office decision is therefore affirmed.

SWAMP LANDS-EVERGLADES-SCHOOL LANDS.

STATE OF FLORIDA.

A patent may issue to the State of Florida under the swamp land act for the unsurveyed tract known as the "Everglades," subject to the right of the State under its grant of school lands.

ruary 13, 1897.

Secretary Francis to the Commissioner of the General Land Office, Feb(I. H. L.) (W. M. W.) The Department is in receipt of a communication, dated December 22, 1896, from the Commissioner of Agriculture and State Land Agent

for the State of Florida, wherein he asks that patents issue for certain lands in Florida known as the "Everglades," under the act of September 28, 1850 (9 Stat., 519).

On October 10, 1894, my predecessor found that the unsurveyed body of lands lying within the State of Florida known as the "Everglades" is in fact swamp land, and that a survey thereof is not practicable, and he held that a patent may issue to the State under the swamp grant, upon an estimated area designated by metes and bounds, the State to furnish a meander survey of said "Everglades," accompa nied by satisfactory proof that said meander line does not include within its limits lands not of the character granted. See 19 L. D., 251. See also State of Florida, 18 L. D., 26; State of Florida, 8 L. D., 65; Id., 369.

On the 13th day of February, 1895, the United States Senate passed a resolution, as follows:

Resolved that the Secretary of the Interior be, and he is hereby, directed to inform the Senate whether it is proposed to issue a patent to the State of Florida for that portion of the State known as the "Everglades," and if so whether the Seminole Indians of Florida will be thereby dispossessed of their occupancy of said lands or any portion thereof.

This resolution was referred to your office and also to the Commissioner of Indian Affairs for reports.

On February 23, 1895, the Commissioner of Indian Affairs reported: That the "Everglades" as laid down upon the map of Florida comprise large portions of the counties of Monroe and Dade. From a report made by Special Agent Wilson, December 30, 1887 (see Senate Ex. Doc. No. 139, 50th Congress, 1st session), it appears that there were then fifty Indians in Monroe county, and one hundred and twenty-six Indians in Dade county. Whether these Indians are located within the "Everglades" which it is proposed to patent to the State of Florida, I am unable to determine. It also appears that there are Indians located in sections 1 and 2, township 53 south of range 41 east, in Florida, but whether these sections will fall within the "Everglades," as they may be surveyed by the governor of Florida, is a matter of doubt.

If the Indians now have the right of occupancy of the lands within the "Everglades," and the United States should convey such lands by patent to the State of Florida, I am of the opinion that the State would take title subject to the right of occupancy of the Indians (see Beecher v. Wetherby, 95 U. S., 517, and the authorities therein cited).

On February 16, 1895, your office reported on said Senate resolution, showing that in compliance with the departmental directions given in 19 L. D., 251, letters were sent from your office to the governor of Florida and to the United States surveyor-general for Florida, inclosing copies of said departmental decision embodying instructions how to proceed to execute the "meander survey giving the exterior metes and bounds of 'The Everglades,"" and requesting the governor of Florida

to submit satisfactory proof that said meander line does not include lands which do not come within the description of swamp and overflowed lands as defined in the act of September 28, 1850.

On February 28, 1895, the Department, in response to said Senate resolution, transmitted to the President of the Senate copies of the reports of your office and the Indian office.

On January 9, 1896, your office submitted Florida swamp land list No. 87, embracing the lands designated on the maps as "The Everglades," and containing an estimated area of 2,942,600 acres. In your office letter it is said:

The estimate includes all the lands within the meander given in the list; and what would be school sections (16) in the several townships, if surveyed, are therefore, included in the total area submitted for approval under the swamp land grant; this is on the theory that although the school grant is of earlier date than the swamp land grant, the latter being a grant in præsenti, takes precedence in the case of unsurveyed lands, The approval of the list is respectfully recommended.

On February 3, 1896, my predecessor, referring to said list, requested your office to prepare and forward for consideration

an abstract of the evidence in your office, submitted by said State, going to show that the meander line of the survey of the "Everglades" does not include within the original limits thereof any lands which do not fall within the description of swamp lands under the act of 1850 above mentioned, as required by my decision of October 10, 1894 (19 L. D., 251).

Pursuant to said request, your office, on the 6th day of February, 1896, transmitted to the Department a résumé of the evidence submitted by the State of Florida in support of its claim, as follows:

In addition to certified copies of the field-notes of survey of certain townships bordering on the "Everglades," the State submitted the affidavits of a number of persons having knowledge of the land, two of whom, J. W. Newman and Charles F. Hopkins, were engineers in charge of expeditions crossing the "Everglades," one from Fort Shackleford to Miami, and the other from Lake Okeechobee to the mouth of Shark River. The two persons mentioned are the only ones appearing to have any real knowledge as to the character of the interior portion of the "Everglades," and I inclose their affidavits as they are too concise to bear abridgment.

Eleven persons testified as to the general character of the land near the gulf of Mexico, or the southern portion of the "Everglades." They testified that, with the exception of a few "islands" or "hammocks" of from two to twenty acres in extent, the whole country is one vast marsh, impracticable to drain, or land utterly worthless for agricultural purposes. It is not stated that the land is rendered worthless by reason of its wet condition. The State refers to the report of Mr. Frank Flynt, which report is fully set forth in 19 L. D., 251.

The field-notes of survey of the townships bordering on the "Everglades," the lines of which surveys form the principal meanders mentioned in said list No. 87, show the lines to have been run through swamps or marshes for almost its entire length. It is the opinion of this office that the public land surveys were extended into the "Everglades" as far as was practicable and, in many instances, the border townships were found to be almost entirely swamp-land.

In Newman's affidavit he states, that as engineer in charge of a party of twenty persons, he traveled across the peninsula of Florida from Fort Myers to the place marked on maps as Fort Shackleford, and thence in a southeasterly direction across the "Everglades" to Miami on Biscayne Bay; "that he does not think or believe that along the route from a point ten miles southeast of Fort Myers to a point four