time required by the pre-emption law, and this has been the uniform ruling of the Department.

Although there may have been no proof of cultivation at the time of offering final proof, except as to clearing, there was proof of cultivation submitted at the hearing, and as this fact was proper to be considered by the local officers and the Commissioner to determine the good faith of the entryman, and they being satisfied upon the proof submitted, I see no reason for disturbing their decision.

The motion is denied.

PRIVATE CLAIM-CONFIRMATION-PATENT.

LUCY B. ABBOTT.

By the act of May 26, 1830, were confirmed all claims and titles to lands in Florida under the quantity of one square league, recommended for confirmation and contained in the reports referred to Congress January 14, 1830, except such claims as were confirmed by the Spanish government after January 24, 1818.

The specific exception of certain claims embraced in said reports, from the operation of said act, is conclusive that all other claims so reported and recommended for confirmation, were confirmed thereby.

Under the act of 1832, patents to land claims in Florida, confirmed by Congress, issue
to the assignee of the confirmee on production of regular chain of title.
Acting Secretary Muldrow to Commissioner Sparks, May 27, 1887.
By letter of March 28, 1887, you rejected the application of Lucy B.
Abbott for United States patent to lauds in the city of St. Augustine,
Florida, known as the Noda Concession. From this action she appealed.

The tracts involved are claims numbered 9 and 13, known as the Noda Concession, embraced in report No. 11 of the register and receiver at St. Augustine, Florida, acting as commissioners under the act of May 23, 1828, entitled "An act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida." (4 Stat. 284).

The fourth section of the act of May 8, 1822 (3 Stat., 707), for ascer taining claims and titles to land in Florida, provides—

That every person or the heirs or representatives of such persons, claiming titles to land under any patent, grant, concession, or order of survey, dated previous to the 24th day of January, 1818, which were valid under the Spanish government, or by the law of nations, and which were not rejected by the treaty ceding the territory of East and West Florida to the United States, shall file before the commissioners his, her, or their claim, set ing forth particularly its situation and boundaries, if to be ascertained, with the deraignment of title where they are not grantees or original claimants but any claim not filed previous to the thirty-first day of May, 1823, shall be deemed

and held to be void and of none effect.

Section five of said act then provides that the commissioners shall have power to inquire into the justice and validity of the claims filed

with them, and "They shall examine into claims arising under patents, grants, concessions and orders of survey, where the survey has been actually been made previous to the 24th of January, 1818, whether they are founded upon conditions, and how far those conditions have been complied with; and if derived from the British government, how far they have been considered valid under the Spanish government; and if satisfied that said claims be correct and valid, shall give confirmation to them. And provided, That they shall not have power to confirm any claim or part thereof when the amount claimed is undefined in quantity or shall exceed 1000 acres, but in all such cases shall report the testimony with their opinions to the Secretary of the Treasury to be laid before Congress for their determination."

The act of May 23, 1828, supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida, provided "That the said register and receiver shall continue to examine and decide the remaining claims in East Florida, subject to the same limitations, and in conformity with the provisions of the several acts of Congress for the adjustment of private land claims in Florida, until the first Monday in December next, when they shall make a final report of all claims aforesaid in said district to the Secretary of the Treasury." Acting under authority conferred upon them by this act, the register and receiver on January 29, 1829, addressed a letter to the Commis sioner of the General Land Office, transmitting their final reports on land claims in East Florida. These reports were numbered from 1 to 16, inclusive, and embraced all claims decided by them, whether rejected or recommended for confirmation.

In their letter of transmittal they say: "No. 11 contains a list of twenty claims situated within fifteen hundred yards of the fortifications of this city, between the North and St. Sebastian's Rivers, and held by the same tenure, viz: "That the party should settle on and possess the land until it should be reclaimed by the government for military purposes." These claims we have no power to confirm, but for the reasons attached to the abstract we have recommended them for confirmation." Report No. 11 embraced in this general final report contains a list of twenty claims, among which are the claims involved in this application, known in said report as claims numbers 9 and 13, and described as follows:

To this report is appended the following recommendation:

The above lands were all granted in the same manner and under the same conditions, to wit: That they should revert to the government whenever required for the military defence of the place. As we presume that the present government will never need them for the purposes specified, we recommend that the title of the United States be relinquished in each case to the several claimants.

C. Downing, Register, W. H. Allen, Receiver.

These several reports of said commissioners, including Report No. 11, were transmitted to Congress for its action January 14, 1830, by the Secretary of the Treasury.

Congress by an act approved May 26, 1830 (4 Stat., 405), entitled "An act to provide for the settlement of land claims in Florida," by the first section of said act provides:

That all claims and titles to land filed before the register and receiver of the land office, acting as commissioners, in the district of East Florida, under the quantity contained in one league square, which have been decided and recommended for confirmation, contained in the reports, abstracts and opinions of said register and receiver transmitted to the Secretary of the Treasury according to law and referred by him to Congress on the 14th day of January, 1830, be and the same are hereby confirmed, with the exception of such claims as were confirmed by the Spanish government subsequent to the 24th day of January, 1818, which shall be examined, and reported with the evidence by the register and receiver before the next session of Congress to the Secretary of the Treasury to be laid before Congress.

You declined to issue the patent applied for by Miss Abbott, for the reason that claims are not confirmed. You further held that, "Miss Abbott, and those from whom this color of title descends from Noda, undoubtedly have had equitable and prescriptive rights in the tracts in question, but the fee is in the United States, and further legislation by Congress is necessary to divest the title of the government."

Your decision was presumably based upon the decision of Commissioner Williamson, in his letter of March 25, 1879, rejecting the application for patent to claims numbered 8 and 11 of Mary Ann Davis, embraced in said report No. 11.

In that case the Commissioner held that, "In order to substantiate a confirmation under this act" (referring to the confirmatory act of May 26, 1830,) "of the claims embraced in report No. 11, it is necessary to show that they are claims and titles to land," and that they "have been decided and recommended for confirmation by said register and receiver." Again he says: "This report No. 11 shows that the claims embraced in it are not for land, but for its use, and are not claims which have been decided and recommended for confirmation by the register and receiver, but that they are claims that these commissioners recommended that the United States relinquish their title thereto to the several claimants."

A reference to the act of May 26, 1830, shows, "That all confirmations of land titles under this act shall operate only as a relinquishment of the right of the United States to said lands respectively."

These claims were reported to Congress, with other claims by letter of January 14, 1830. Special attention was called to the character of these claims by the commissioners; they were under the quantity of one square league, and were recommended for confirmation.

The act of Congress of May 26, 1830, confirmed all claims and titles to land under the quantity contained in one square league, recommended for confirmation and contained in the reports, abstracts and opinions of the commissioners referred to Congress January 14, 1830, except such claims as were confirmed by the Spanish government subsequent to January 24, 1818. Claims coming within this exception were embraced in report No. 1, and were confirmed by the decision of the commissioners. The fact that Congress specifically excepted certain claims embraced in said reports from the operation of the act, is conclusive that all other claims embraced in said reports under the quantity of one square league and recommended for confirmation were confirmed.

As confirmatory of this, these lands were in 1863 sold for taxes under the act for the collection of direct taxes in insurrectionary districts within the United States and purchased by the government. In 1872 the government for and in consideration of $216.97, the amount of penalty and cost, executed to Miss Abbott a certificate of rele ase, satisfactory evidence having been produced that she was legally entitled to said property.

It appears from the records that in 1835 deputy surveyors Ben. and J. B. Clements made a survey of claims numbered 9 and 13 as the lands confirmed to Joseph Noda by said act of May 26, 1830. A plat of this survey, with a certified copy of the description of said survey from the files of the United States surveyor general's office at Tallahassee, Florida, has been filed with the papers in the case. This survey seems to conform to the description of the concession to Noda in report No. 11, but the original on file in your office does not appear upon its face to have been approved, although filed with other plats containing the ap proval of the commissioners.

If there is no objection to this survey, and if you are satisfied that it correctly describes the land confirmed, you will cause it to be approved; otherwise you will direct a survey to mark the boundaries of said claim as shown by the report of the commissioners, and other evidence of file in your office.

The act of January 23, 1832 (4 Stat, 496), directs that patents to land claims in Florida confirmed by Congress shall, upon production of a regular chain of title from the confirmee, issue to the assignee of the confirmee. You will therefore upon the approval of a survey of said claims cause patent to issue to Miss Abbott, if satisfied that she holds under regular chain of title from the confirmee Joseph Noda.

SWAMP LANDS-BOIS BLANC ISLAND.

STATE OF MICHIGAN v. ERICKSON.

The field notes of survey are not conclusive except when showing the character of each smallest legal subdivision.

Acting Secretary Muldrow to Commissioner Sparks, May 28, 1887.

On February 25, 1886 (4 L. D., 415), I rendered a decision in the case of W. H. Cushing and thirty-seven other homestead claimants against the State of Michigan, directing a hearing to determine the character of the land embraced in said entries, situated on Bois Blanc Island, Reed City Land District, Michigan, claimed by the State as swamp lands. In this case the State claimed that its right to these lands is established by a survey of said lands made in 1827, showing that said lands are swamp lands within the meaning of the swamp land grant. The Department in the decision referred to held that the survey of 1827, relied upon by the State, did not furnish satisfactory evidence of the character of the land in each smallest legal sub-division, and hence a hearing was ordered to determine this question.

Under said ruling the case of Charles Erickson, one of the appellants in the case above referred to, and who had made application to enter Lot No. 1, Sec. 4, and Lot No. 8, Sec. 3, Bois Blanc Island, under the homestead law, came on to be heard before the register and receiver, who after hearing evidence touching the character of said land, decided, "That the witnesses for the State made but a partial examination of said lots, and stated that the greater part of each of said lots was swamp land, basing their judgment from the timber thereon, and at the same time were unable to find any great amount of water on said lots." 2. That the witnesses for the claimants stated positively that said lots-the greater part of each legal subdivision of the same-was dry land, fit for cultivation and not swamp or overflowed land." "That

we are of the opinion that the State of Michigan has not by the proof established its claim to said lots, and that the State is not entitled to the same under the act of Congress."

Your office affirmed this decision, and from your decision the State appealed.

It is claimed by the State that the survey of 1827 does show the greater part of this land to be swamp and overflowed in each smallest legal subdivision, that the decision of the Department of February 25, 1886, does not amount to a denial of their right to have said survey considered as evidence, and that if said survey shows the greater part of each smallest legal subdivision to be swamp and overflowed, it should be accepted as conclusive evidence of the fact, unless overcome by convincing and uncontradicted proof to the contrary.