under the provisions of the act of Congress approved March 3, 1877 (19 Stat., 377). September 3, 1885, the south half of the claim was canceled for conflict with the prior desert land entry of one Elias Snider, made in 1879, prior to the survey of the township. April 6, 1886, your office rejected Wood's final proof for the remainder of his entry, on the ground that proper reclamation had not been made, but gave him op. portunity to submit new proof whenever he could show a satisfactory compliance with the law. Upon review this decision was adhered to by your office June 19 following. Appeal was then brought here and the case has been considered.

It is shown by the record that all of one forty-acre tract has been irrigated, from twenty to twenty-five acres of another, and possibly about fifteen acres or more of the other, making in all about eighty acres out of the entire tract of one hundred and twenty acres. The remaining portion of the entry is hilly and rocky and it is practically impossible to irrigate it. It is alleged by Wood that when he made entry aforesaid, he desired to leave out the two forties which are hilly and take the remaining four forties of the original entry, but was told by the local office that his entry would not be compact within the mean. ing of the law if said two forties were omitted; and that about the time he was ready to commence the work of irrigation and reclamation, he for the first time ascertained that the entry of Snider covered his three south forties, and learning Snider's claim to be superior to his own, he did not contest for the conflicting portion, but allowed it to be canceled.

While as a general rule the entire tract entered must be reclaimed by irrigation before final proof can be accepted, yet in view of the peculiar circumstances of this case, I am inclined to think that the final proof herein ought to be approved. There is no doubt but that the land embraced in this entry which is susceptible of irrigation has all been irrigated as contemplated by the statute. True, a considerable portion of two forties has not been irrigated and is not susceptible of irrigation. These portions amount to possibly forty acres-claimant in a late brief says from thirty to forty acres-and are practically worthless to the government or to any one else so far as their value as agricul tural land is concerned. If the entry at present was as originally made, the part not irrigated would be a very small proportion of it; but as three forties have been canceled without the fault of the entryman ap parently, the proportion of unreclaimable land is much larger.

I am of opinion, taking all the circumstances of this case into consid eration, claimant's evident and unquestioned good faith in the premises, the fact that one-half of his original entry (all of which part was sus ceptible of irrigation) has been canceled through no fault of his, and the fact that all but the hilly and rocky portions of the claim have been properly irrigated and reclaimed, and the major part thereof cultivated, that the final proof of Wood should be accepted, and I so direct. The decision appealed from is therefore reversed.

PRIVATE CLAIM-AUTHORITY OF THE LAND DEPARTMENT.

PUEBLO OF SAN FRANCISCO.

By the issuance of patent the Department is divested of all authority or control over the land or the title thereto.

The head of a Department has no power or authority to revise or reverse the final decree of his predecessor in a matter properly before him.

The "executive duties" of a Department are those required of its officers in the administration of the law upon the subjects under its jurisdiction, though such duties may require in their performance the examination of evidence and the exercise of judgment thereon.

By virtue of statutory authority the Secretary of the Interior is invested with power to review, reverse, annul, amend or affirm all the proceedings in the Department instituted to secure the alienation of any portion of the public lands, or the adjustment of private-land claims.

An order reversing the action of the Commissioner of the General Land Office, in the matter of the survey of a private land claim, is properly within the jurisdiction of the Secretary of the Interior.

The authority of the Secretary to order a re-survey rests in his general and supervisory powers, and may be exercised whether invoked by appeal or otherwise. Publication of notice is not required by the act of July 1, 1864, in case of a corrected survey made under an order therefor.

Secretary Lamar to Commissioner Sparks, March 12, 1887.

This is an application for the recall and cancellation of the patent of the United States to the city of San Francisco, and for the issue of a new patent with different boundaries, to-wit, the boundaries of what is known as the Stratton survey. From the papers transmitted by the Land Office, and the authorities cited in the briefs of counsel, I learn that the history of this case is as follows:

In July, 1852, the city of San Francisco, as the successor of the Mexican pueblo of that name, petitioned the board of land commissioners of California, created under the act of Congress, March 3, 1851 (9 Stat., 631) for a confirmation of her claim to four square leagues of land situated on the northern portion of the peninsula of San Francisco. After a controversy before the board of land commissioners, and in the courts, for a period of nearly thirteen years, the United States circuit court finally confirmed the claim of the petitioner, to the land therein described, as valid. The following is an extract from the decree:

"The land of which confirmation is made is a tract situated within the county of San Francisco, and embracing so much of the extreme upper portion of the peninsula above ordinary high-water mark (as the same existed at the date of the conquest of the country, namely, the seventh day of July, A. D. 1846,) on which the City of San Francisco is situated as will contain an area of four square leagues; said tract being bounded on the north and east by the bay of San Francisco, on the west by the Pacific Ocean, and on the south by a due east and west line drawn so as to include the area aforesaid, subject to the following deductions, namely: such lands as have been heretofore reserved or dedicated to

public uses by the United States, and also such parcels of land as have been, by grants from lawful authority, vested in private ownership and have been finally confirmed to parties claiming under said grants by the tribunals of the United States, or shall hereafter be finally confirmed to parties claiming under said grants by said tribunals in proceedings now pending therein for that purpose; all of which said excepted parcels of land are included within the area of four square leagues above mentioned, but are excluded from the confirmation to the city. This confirmation is in trust for the benefit of the lot-holders under grants from the pueblo, town, or city of San Francisco, or other competent authority, and as to any residue, in trust for the use and benefit of the inhabitants of the city."

On the 8th of March, 1866 (14 Stat., 4) Congress relinquished the land covered by the decree to said city. Thus the title of the city rests upon the decree of confirmation and the act of Congress, both making the city a trustee for the lot-holders and inhabitants thereof.

Upon the confirmation of this grant and its approval by the act of Congress, the next matter for the consideration of the Land Department related to its extent and boundaries. In 1867-'8, under the instruction of the United States surveyor-general of California (Upson) the survey of the claim of the city made by the deputy-surveyor, James T. Stratton, and a plat thereof, were filed in the office of the surveyorgeneral of the United States for California. Due notice thereof was given in the legal manner, and for the required time, by said surveyorgeneral. The survey and plat were approved by him but not in the manner and form required by the statute.

Against the approval of said survey the city and county of San Fran. cisco filed their protest and objections thereto, with the evidence in support of the same in due form of law. One of the grounds of protest, the one involved in this inquiry, was that the surveyor did not conform, as required by the statute, to the decree of confirmation, in that he did not follow the line of ordinary high-water mark of the bay, but followed up the tide line, or rather the alleged tide line, on one side and down the other, of Mission creek, a stream which runs into the bay, exclud ing certain marsh lands lying on Mission creek which ought to have been included in said survey. Said survey and plat, together with the said protest, objections, evidence, field notes and other papers were transmitted by Surveyor-General Day, successor to Surveyor-General Upson, to the General Land-Office at Washington, with his own report thereon in which he disapproved of said survey, expressing the opinion that the said objections were, in several particulars, well taken, and recommended that the plat and survey should be amended, among other things so as to include the marsh lands lying on Mission creek within the four square leagues, which said Stratton survey had excluded therefrom. I give the following quotation from his report: "And, further, in relation to the above-mentioned survey by DeputySurveyor Stratton of the exterior limits of the pueblo lands of San Francisco

I express my opinion that they are erroneous

and not in conformity with the decree of the United States court and the act of Congress relating thereto, my reason for this opinion being more fully set forth in a communication to the Commissioner of the General Land Office, dated July 8th, hereto appended."

Speaking of the objections to the exclusion by this survey, of the marsh lands as being below the ordinary tide line, he says: "the affidavits sustain the exception, and I can add to them the fact that in 1851 or 1852 I assisted in surveying a preliminary trial [line] for the San José Railroad across this marsh, and found it to be as described in the affidavits and I have seen no facts around the bay to prove that it has filled up and become tide marsh lands since 1846."

For some reason not explained in anything that I have found in the records, the Stratton survey and plat remained in the General Land Office, unacted upon, for ten years. In the meantime, one Geo. W. Ellis, obtained from a board of tide land commissioners (appointed by the State to take charge of its swamp and tide lands, to sell portions of the same and to compromise with parties in possession thereof,) a quitclaim deed of the State, at the rate of $4.00 for one thousand square feet, to a tract of land which embraced a considerable part of the lands on Mission Creek, excluded by the Stratton survey. Soon after this C. C. Tripp, a grantee of Ellis, brought suit in the circuit court of the United States of California, to recover a lot included in the said quit-claim deed of the State board. The opinion of the court rendered in this case as reported in 5th Sawyer's report, page 209, was that the lot in contro. versy was situated within the limits of the tract confirmed by the decree of the circuit court above mentioned, to the city of San Francisco. In this opinion the court said:

"Mission creek never constituted any portion of the bay of San Francisco, any more than the Sacramento river constitutes a portion of the bay of Suisun, or the Hudson river a portion of the bay of New York. Again: "The boundary of that tract (meaning the tract confirmed to the city by the decree,) runs along the bay on the line of ordinary highwater mark, as that existed in 1846, crossing the mouths of all creeks running into the bay, and that of Mission creek among others."

When this matter was before my predecessors it was contended that this opinion was not entitled to the force of a decision, among other reasons, because it was filed after the action had been dismissed. This contention is based upon an affidavit filed in the Department by C. C. Tripp, the party litigant, against whom the decision was made in said opinion. From the evidence of L. S. B. Sawyer, clerk of the circuit court in which the opinion was pronounced, and of Edw. J. Pringle and Alexander Campbell, counsel for the defendant, contradicting and refuting the statements in Tripp's affidavit, I cannot doubt the truth of the statement in the note appended to the opinion in 5th Sawyer, at page 216. That note is as follows:

"The decision in the above case was given orally, the presiding jus tice stating at length his views, and observing that he would at a sub

sequent day file an opinion embodying their substance. A day was then fixed for counsel to prepare the findings, but soon afterwards the case was settled, and the suit dismissed by stipulation of parties.”

The fact that this decision was orally given and subsequently writ ten out and filed when the case was dismissed, in no respect, I think, affects its character as an exposition by a judge of the law. It is a prac tice common to all courts to deliver oral opinions and subsequently to write them out. The authoritative force of such an opinion, will of course, depend upon the circumstances of the case in which it is given, the deliberation attending it, the learning of the judge, the issue made by the record, and many other conditions entirely irrespective of the stage of the case or the time when the entry of judgment is made.

It seems, however that the action of the court in this case was not regarded at the General Land Office as res adjudicata in the matter of the correctness or incorrectness of the Stratton survey. For, some months after it was made (November 11, 1878,) the Commissioner of the General Land Office, J. A. Williamson, rendered his decision confirming the Stratton survey (2 C. L. L., 1234). From this decision, an ap peal to the Secretary of the Interior in behalf of the city and in discharge of its trust to the lot holders and for the benefit of its inhabitants, was taken by the attorney appointed to prosecute the case for the city as the trustee of the lands claimed. Whereupon the board of supervisors, who had previously indicated their purpose not to appeal from said decision of the Commissioner of the General Land Office, passed a resolution characterizing said action by said attorney as unauthorized and discharged him from his office.

A short time afterwards they unanimously passed a resolution addressed to the Secretary of the Interior, that, in the opinion of said Board, the Stratton survey was the only legal and proper definition of the boundaries of the city and should be finally confirmed by the Interior Department. Indeed the board of supervisors reversed the position taken in the original protest of the city against the Stratton survey when it was completed, and used their utmost endeavors, by resolu tions and other acts, to have the same approved.

Secretary Schurz, however, held that neither these resolutions, nor any other acquiescence by the municipal authorities of the city, nor any assumption by the State of California of the correctness of said survey, could relieve him of his duty, under his supervisory or appellate authority, to see that the decree of the United States circuit court was properly executed by a survey in conformity with the boundaries prescribed therein.

On the 3d day of March, 1881, he filed his decision in the case, in which he substantially sustained the objections contained in the original protest of the city to the running of the boundary line up Mission Creek and then down it.