It is claimed by said attorneys that the lands in question having been selected as swamp prior to June 3, 1856, there was such a reservation of the tracts as would, under the proviso in the first section of act of that date, exclude them from the grant for railroad purposes, and therefore they were confirmed to the State as swamp by act of March 3, 1857. as under the act of March 3, 1865, title You report that on the map of the city, on the 23d of March last, relative to can only be conveyed by patent (See township, approved February 17, 1840, the status of certain lands described in Secretary's decision of September 29, the lands in question are designated as accompanying list, hereinafter described, 1874, and December 2, 1875, in case of St." Sodo Lake." This might raise the pre- said to be within the limits of a grant of Paul and Pacific Railroad, Copp's L. O., sumption that said sections were not lands to the State of Louisiana, dated vol. 2, p. 134). The certificate states that swamp lands at the date of the granting June 3, 1856, to aid in the construction of the land is listed in accordance with the acts in 1849 and 1850. On the contrary, certain railroads, and also selected by the requirements of the Acts of May 12, 1864, we have the certificate of the Surveyor State as swamp lands under Act of March and July 13, 1866, no reference being made General that in 1852 the lands were swamp, 2, 1849. to the act of March 3, 1865. On July 6, and that they enured to the grant. 1857, Solon B. Rumvill filed pre-emption D. S. 7759, for the land in question, alleging settlement June 1, 1857. The land was withdrawn from entry March 14, 1857, but by letter of April 9th, 1857, the Register and Receiver were directed to permit pre-emption settlements up to date of definite location. Rumvill's settlement therefore annulled the withdrawal of the land, and it was subject to entry at the date of Johnson's application. The attempted cancellation of the entry not having been consummated by noting the same on the records of the local office, and the party in interest (Mrs. Johnson) evidently not having received notice of the action of this office, and therefore having no opportunity for appeal, the decision of March 22, 1866, cannot be treated as final. Said irregularities are sufficient to bring the case within the exceptions to the general rule relative to reopening decided cases. (See Graham vs. Hastings and Dakota Railroad Company, Copp, Vol. 9, p. 236). The entry of Johnson will therefore be reinstated (for the purpose of issuing patent on same) subject to appeal by the St. Paul and Sioux City Railroad Company, the resident attorney of which will be notified hereof by this office. SWAMP LANDS. STATE OF LOUISIANA. March 3, 1857.-Land in Louisiana selected and reported as swamp to the Commissioner of the General Land Office, by the Surveyor General, prior to March 3, 1857, and remaining vacant and unappropriated at that date, is confirmed to the state. SECRETARY SCHURZ to Commissioner Williamson, January 15, 1879. I am in receipt of your report of the 8th inst. relative to sections 6, 7, 18, 19 and 30, Township 20 North, R. 14 W., Louisiana, claimed by the State as swamp land. In accordance with the subsequent sur vey of January 25, 1872, the Surveyor General reported the sections in question, together with section 30, as swamp land. In the recent case of Martin vs. Marks [Copp's L. O., Vol. 5, p. 11], the Supreme Court held that where the land had been selected and reported as swamp to the Commissioner of the General Land Office, by the Surveyor General, prior to March 3, 1857, and remained vacant and unappropriated at that date, it was confirmed to the State. The tract in controversy before the Court was a portion of section 7 now under consideration. The following described tracts within the limits of the constructed portion of the N. O., O. & G. W. R. R. east of Brashears, were selected by the State as swamp land; but on the 29th of January, 1861, they were approved to the State for railroad purposes under act of June 3, 1856, viz: 73, 66 164 18" All of section 153, Tp. 15 S., R. 16 E. It must be held, I think, from the action Without discussing the question of ef- If the lands in sections 6, 7, 18 and 19 were vacant and undisposed of March 3, 1857, I am of the opinion that the same were confirmed to the State, and that entries made subsequent to that date must be canceled. From your report it appears that secAs the land in section 30 was not retions 6, 7, 18 and 19 were selected and ported to your office prior to March 3, approved as swamp lands by the United 1857, the same was not confirmed, and the States Surveyor General for the State of rules applicable to the adjustment of the Louisiana, May 18, 1852, and transmitted swamp grant should be applied thereto. to your office on that day. These four You are hereby instructed to take sections were therefore of the character of action in accordance with the views lands mentioned in the Act of Congress, herein expressed. approved March 3, 1857, as a "selection of swamp and overflowed lands granted to the several states by act of Congress, approved September 28, 1850, *** and the act of second of March, 1849, * * * heretofore made and reported to the Commissioner of the General Land Office," and were confirmed to the State of Louisiana, by said act. STATE OF LOUISIANA. Status of certain lands embraced within a W. of S. and S. of N. All of แ 59, 73, 15 18 " 13 13 66 105, 13 24" 24" It has been repeatedly decided by the Department that where one grant has been fully executed, no action should be had looking to the certifying or patenting of the same lands to the same grantee under another grant; therefore this office cannot consider the claim of the State to the above described tracts under the swamp grant, as they have already been certified to it under the railroad grant. (See State of Iowa vs. Cedar Rapids and Mo. River, Dubuque and S. C., and Iowa Falls and S. C. R. R. Companies, Copp's L. O., Vol. 3, p. 84; also same Vol., p. 99; State of Minnesota vs. St. Paul and S. C. Railroad Company, and State of Arkansas, Copp's L. O., Vol. 4, p. 63. The status of the following described tracts selected as swamp prior to June 3, 1856, differs from the foregoing in this respect, that under the provisions of the act of Congress, dated July 14, 1870, U. S. Stats., Vol. 16, p. 277, declaring forfeited the claim of the R. R. to certain lands, of the railroad to the same was declared E. N. S. E. of N. W. of N. W. All of 12 W. S. E. of N. W. 66 66 แ แ 11, W.IN.E.1" 13, Sec. 23. Tp. 3 S., R. 12 W. 13, แ 66 The following described tracts were selected by the State as swamp land, subsequent to the act of June 3, 1856, and their being included in the list as selected prior to that date, and hence confirmed to the State by act of March 3, 1857, as claimed, was I presume an oversight, viz: Lot 8, Section 37, Tp. 1 S., R. 2 E. All of 1 66 3 66 N. W. 1 3 The W. S. W. 4, Sec. 12, Tp. 3 S., R. 2 E., is a part of an even section, and was approved to the State as swamp land September 15, 1870. N. 66 railroad grants, formed the basis of a Lots 5, 7 and 8, Sec. 1, Tp. 17 S., R. 12 W. of S. W. Sec. 15, Tp 20 N., R. S. E. All of Section 21, Tp. 14, S., R. 23 E. The following described tracts are with- Sec. 11, Tp. 3 S., R. 2 E. 66 66 15, 66 "13" "23" of S. W. "And provided further, That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvements, or for any other purposes whatsoever, be and the same are hereby reserved to the United States from Lots 1 and 2 Sec. 5, Tp. 17 S., R. 13 W. the operation of this act; and in support The following described tracts do not appear to have been selected as swamp, to These inquiries, which involve the identical questions at issue, were answered by the Department, December 10, 1858, to the effect that the act of 1857 did not confirm such selections, and the character of the land was therefore a matter that could be inquired into (Lester's L. L. vol. 1, p. 567). The same views were maintained, and instructions issued in accordance therewith, by Secretary Thompson, July 23, 1859 (Lester's L. L., Vol. 1, p. 570). The question for decision is, were the tracts selected and reported to this office by the State as swamp land prior to June 3, 1856, whether swampy or not in charThe following described tracts were se-acter, excluded from the grant of lands lected by the State as swamp land prior for railroad purposes of that date to the to the act of June 3, 1856, and the State's State of Louisiana? claim to the same was rejected by this office January 2, 1861, and on the 29th same month, they were approved to the State for railroad purposes; but the claim The opinion of the Attorney-General dated November 10, 1858 (Lester's L. L., Vol. 1, p. 564), involving the question of respective claims under the swamp and It is argued that this manner of adjusting the grants is not sustained by the U. S. Supreme Court decision cited, but that on the other hand entirely opposite views are set forth. Under the proviso in the grant of June 3, 1856, above quoted (all railroad grants referred to having a similar proviso), restricting the grant, the Supreme Court, in case of R. R. Co. vs. Fremont Co., supra, held (referring to the lands selected as swamp), "In the language of the Railroad Act, the whole of the lands in controversy were 'otherwise appropriated,' and were reserved' for the purpose of aiding the States in their objects of internal improvements." In the case of L. L. & G. R. R. Co. vs. U. S., supra, the question being the construction placed upon the proviso restricting the grant to the R. R. Co., the Court held that "these grants have always been recognized as attaching only to so much of the public domain as was subject to sale or other disposal." The selection of a tract as swamp land, and placing the same of record, has always been held by this office as withdrawing it from entry or location. Under the decisions as cited, lands herein described, selected by the State as swamp lands prior to June 3, 1856, whether swamp or dry, were otherwise appropriated within the meaning of the act, and were therefore excluded from the operations of the grant of that date to the State of Louisiana for railroad purposes; from which it follows that said grant did not interfere with, or prevent, their confirmation to the State as swamp lands under act of March 3, 1857; and I decide that if they were otherwise vacant and unappropriated at that date, they were so confirmed. In view of this decision, the action of this office as stated, in rejecting the State's claim to any of the tracts selected as swamp prior to June 3, 1856, was erroneous, as was also the certifying of these lands to the State for railroad purposes. The action of this office was also erroneous in restoring the tracts above named to market; and you will note on your records the fact that the lands described as having been selected prior to June 3, 1856, are confirmed swamp selections, and refuse to allow entries of the same, and also advise parties who have made the entries as stated, that they will be canceled and the purchase money refunded, and in case of homestead entries the parties will be allowed to make new entries, with credit for the fees and commissions paid, or on application the money so paid will be returned to them. TULARE LAKE REGION, CALIFORNIA. Swamp Lands-Creighton Survey.-This survey is approved, and legal title to the lands embraced therein will be passed to the State. SECRETARY TELLER to Commissioner McFarland, March 9, 1883. I have considered the question of survey of townships 21 south, ranges 19, 20, 21, 22 and 23 east; townships 22 south, ranges 18, 19, 22 and 23 east; townships 23 south, ranges 19, 22, 23 and 24 east; and townships 24 south, ranges 20, 21, 22, 23 and 24 east, M. D. M., California, made by Thomas Creighton, U. S. Deputy Surveyor, in January and February, 1880, and approved by Theodore Wagner, U. S. Surveyor General. The question involves a tract of land lying upon the borders of Lake Tulare, containing upward of one hundred thousand acres. By your decision of February 14, 1882, you approve of the said Creighton survey, which represents the whole of said tract as swamp lands. The Southern Pacific Railroad Company brought an appeal in the interest of its land grant; and certain settlers, represented by counsel but not having a standing in the case, requested the Attorney General to direct an appeal in behalf of the settlers and of the United States. Such appeal was accordingly taken. The State of California claims the entire tract under the swamp land grant act of September 28, 1850 (9 Stat., 519). The Creighton survey was made at the request of the Governor of California, by letter of July 31, 1879, addressed to the Surveyor General of that State, and was duly authorized by your office. The first township surveys of land adjoining the lake were made in 1853 and 1854. The tract in controversy lies between the meander line of the lake, as shown by those surveys, and the waters of the lake or new meander line as shown by the Creighton survey of 1880. By flowing through the slough extending the first surveys this tract was returned northward from the lake toward the San as lake, and was at that time, in fact, cov- Joaquin river, found an outlet by way of ered, or nearly so, by water. that river. The swamp land grant is a grant in presenti except as to states admitted into the Union after the passage of the act (French vs. Fyan, 93 U. S., 169). California was admitted September 9, 1850. There is no certainty that the waters will remain at or near the level represented by the new meander line unless an artificial outlet is provided and there is some question whether an adequate outlet could be thus constructed, although some efforts to that end have been made. Such are the topographical features of the country and its general situation as affecting the tract in question. If, then, the tract in question at the time the swamp land grant passed was covered with water, apparently of a permanent character, up to or near the old meander line, it would not pass to the State under that grant, although subse- The proofs found in the affidavits introquently, by a recession of the waters, land duced by both parties show that the water of a dry or swampy character should come in the lake was as high at the time of the into existence (Wolf Lake, Illinois, 5. C. surveys of 1853 and 1854, as it has ever L. O., 19; Beaver Lake, Commissioner's been; that it was about the same height decision, June 17, 1871; county of St. in 1868; that from the first surveys to the Clair vs. Lovingston, 23 Wall., 46). year 1876, the lake was subject to great It becomes, therefore, of the first import- fluctuations, inundating from one hundred ance to inquire whether the tract became to three hundred thousand acres of land a reliction after the 28th day of Septem- which were exposed at its lowest level; ber, 1850, or whether in fact at that time that the tract in question was often subit existed as land and was swamp or over- merged; that since the year 1876, seasons flowed, so as to bring it within the meaning of the act of that date. The question thus presented is one purely of fact. There is no common law proof in the record upon the subject, and keeping out of view for the present the Creighton survey, which is a subject of much controversy, the testimony in the record is made up entirely of affidavits taken ex parte. These affidavits are numerous, are taken and put into the case by both sides without objection, and are referred to and quoted from by counsel for the respective parties. In order to understand the proofs fully, it is necessary to state briefly the conformation of that part of the earth's surface to which they relate. Lake Tulare is an inland navigable body of water, some twenty-five miles in extent across its centre, from north to south and from east to west. It occupies the lowest depression of a large valley, the watershed being quite extensive, comprising on the east all the country between the lake and the Sierra Nevada range, distant some seventy miles, and on the south and west, that between the lake and the Coast range, distant from twenty seventy miles. The slope upon the north, east and south is very gradual, but on the west is less so; consequently nearly all of the tract in controversy lies upon the eastern and southern shores of the lake. Tule river, Cross creek, Deer Creek, Kings River, Flat Creek, Elk Bayou, and numerous streams and water courses, flow into the lake from the direction of the mountains. From the old meander line across the tract in question, these streams have no defined channels. have been generally dry, and the tract in question has suffered but little from inundation; that the beds of all or nearly all the streams running into the lake are dry at certain seasons of the year, and others are swollen by rains and melting snows, and after passing the old meander line, spread out and overflow considerable portions of the tract in question; that in order to protect the lands channel excavations must be made, whereby to conduct the waters of the streams from points in the old meander line through the tract to the lake, and extensive levees built along the lake and the streams. There is but little conflict in the affidavits as to what was the condition of the tract as to its being subject to overflow prior to 1875 and 1876, the main conflict being as to its condition since that time, and the liability of its being inundated in the future. There is some proof that some of the streams formerly emptying into the lake have in whole or part been diverted for purposes of irrigation. I think, however, that it is clear that there is no adequate protection of the tract, either by outlet or otherwise, against a wet season or such rises of water as occurred frequently prior to 1876, and are quite likely to occur again. The affidavits prove that large portions of the tract were dry at the time of the Creighton survey. Other portions were covered by a luxuriant growth of tules, salt-grass, and other vegetation, the products of a wet soil, and affording pasture for stock in seasons of drouth. It must be borne in mind, however, that our inquiry must be kept to the condition of the tract in 1850, and that evidence of its subsequent condition is At the time of the surveys of 1853 and material only in aiding us to ascertain 1854, there was no outlet of the lake, its real condition at the time the swamp natural or otherwise, except that after grant act was passed. There is proof, attaining at or about the height marked in the affidavits of deputy surveyors and by the old meander line, the waters over- others, that at the time of the surveys The deputy surveyor, who made the survey and established the old meander line, says that the water then seemed at its highest; that from the meander line the water was very shallow for a long distance into the lake, and so muddy that he had to go nearly half a mile into the lake daily for drinking water; and that such was the general character of the overflow in the townships in which this tract is located. In 1849, there was a great rise of water in the lake, which seems to have remained up to and after the time of the surveys of 1853 and 1854. Such is substantially the case as made by the proofs and the record, aside from the Creighton survey. of 1853 and 1854, there was a belt of Undoubtedly at the time of the Creigh- The Surveyor General, before his apswamp land on the lake side of the me- ton survey the actual condition of lands pointment as such, acted as attorney for ander line then established, and that at was generally dry, and that they were in the State in reference to the lands now in that time there existed instructions "is- that condition also at the time of the ex- question, although not in relation to the sued by the United States Surveyor Gen- amination by the special agent in 1881. present controversy. After the survey in eral, not to extend any section lines into Upon an examination of the lengthy re- the field, the books of survey were transswamp and overflowed lands, but to estab-port of the special agent, I think it will mitted to him by Creighton, and were relish a meander post on the margin of the clearly appear that he had in mind the turned by the Surveyor General, accomsame." condition of the lands as he found them in panied by the letter of May 8, 1880, for 1881, and as they had been for some years correction, which letter indicated that the prior to that time, but that he did not notes of survey should show more definitely consider nor report upon their condition the condition of the lands September 28, in 1850, nor seek, to any considerable ex- 1850, if he (Creighton) should be of that tent, for evidence to establish their actual opinion. Creighton then added to his condition at that time, nor do I think his notes, after nearly every subdivision, as instructions required him to do so. And follows: "Subject to overflow and unfit when he reports Creighton's classification for cultivation within the meaning of the of the lands to be erroneous, he evidently act of September 28, 1850," giving in refers mainly to the condition he then many instances the name of the stream found them in, and the condition they from which the overflow was liable to actually were in at the time of the Creigh- come. After these additions were made, ton survey. In proof of this I quote the survey was approved. briefly from his report. He says: "I It is undoubtedly within the duty of the have no hesitation in reporting that the Surveyor General to supervise and direct land returned by the Creighton survey as corrections to be made of the field notes swamp and overflowed land is not correct, of subordinate surveyors, and it is a duty In relation to this survey and the recita- and that the land returned as swamp and often exercised. But for the fact of the tions found in it there is much controversy. overflowed, is not of that character; that Surveyor General's former relation to The survey is important, since if it can no water stands upon the land except these lands as attorney, the question of not be sustained the lands cannot be cer- that which I have mentioned, and no re- his interference with the notes and surtified to the State in the present proceed- clamation is required to raise a crop on veys would not probably be raised. Such ing, even if it should clearly appear the same." After referring to the fact relation ought, it would seem, to disqualify that they were swamp and overflowed that formerly the lake had no outlet, he a Surveyor General from action; but lands in 1850. They were not, as we have says: "But its condition has changed probably it does not-at least, not by posseen, represented as such lands upon the materially; it has lost its chief water sup-itive law. surveys and plats of 1853 and 1854. ply by canals and ditches, and it never I think, however, that such additions do Therefore it became necessary, under the can, while those canals and ditches keep not vitiate the surveys, nor for that act of July 23, 1866, to quiet land titles in up their flow, receive any great amount of reason require that they should be reCalifornia, (14 Stat., 218,) that the Gov- water." And the purport of the great jected and canceled. Such additions are ernor should make application to the Sur- share of his report is to the same effect. in effect but the statement of a conclusion veyor General, and that by your direction On the other hand, the general descrip- of law, and may very properly be disresegregation surveys should be made "of tion of the physical formation of the garded. I think the addition was unall the swamp and overflowed lands in region about the lake, as given by the called for and unnecessary. It occurs, such townships, and to report the same to agent, affords very strong proof that the the same in substance, more than four the General Land Office, representing and lands were subject to overflow, and unfit hundred times. The surveyor (Creighdescribing what land was swamp and for cultivation, in 1850. He describes the ton) has already, without any suggestion, overflowed under the grant, according to lake as having no outlet at the time of the incorporated into his notes, at the end of the best evidence he could obtain." If great floods of 1861-2, 1867-8, and that the surveys of the townships, a complete the State made claim, under the act of it then took the waters a long time to and much more satisfactory statement as 1850, to lands as swamp and overflowed to all the lands within the townships emwhich were not represented as such by the braced in the surveys. As an instance, I returns of any surveys, the claim was to cite the statement at the end of the surbe determined by testimony to be taken vey of township 24, range 20 E., which is before the Surveyor General. as follows, recede by evaporation and percolation; that the lake was situated in the lowest depression of the San Joaquin valley, a great basin and receiving the natural waters of all that country, being "a vast area of The Creighton survey was duly author- over 7,000 square miles." ized, and was made in the field in January It became Creighton's duty under the and February, 1880. The field notes were act aforesaid, being section 2488 U. S. Rereturned to the Surveyor General, and ap-vised Statutes, to represent and describe proved by him. By such survey the tract what land was swamp and overflowed in question was returned and classified as swamp and overflowed land. A protest with various allegations, was made against the survey by said railroad company, which resulted in the appointment of a special agent by your office to make personal examination of the lands, and report upon the Creighton survey. This agent, after an extended examination, reported that the survey was technically correct, but was erroneous in the classification of the lands as swamp and overflowed within the meaning of the act of 1850. under the act of 1850, "according to the The Creighton survey is severely as- viz.: "The quality of land in Fr. Tp. 24 S., R. 20 E., is generally good. The land is swamp and overflowed in nature, being made so by the waters of Kern River, [which] coming down through the Buena Vista, and having no definite channel, overflow the whole country at time of high water. It is also liable to overflow from the rising of Tulare Lake, having been under water for these causes since 1860, the water gradually receding for the last six or eight years, being seasons of drought in this country. The land is liable to be again inundated from these causes (unless thoroughly protected by levees) at any season of anything more than an average rainfall. I shall refer but to one other criticism of the Creighton survey. It is claimed that, under section 2395 of the Revised Statutes, all water courses must be noted in the field book, and that in fact no water courses are noted upon the plats in question, but all the numerous streams disappear upon reaching the old meander line, so that no streams appear as passing across the tract in question to the water of the lake. This is explained by evidence which shows that in fact there are no channels across the tract, but that, the ground being nearly level, the waters spread out over the tract after reaching the old meander line. A large map of Tulare county, which I find in the record, approved by the supervisors as the official map of the county, and apparently having no connection with the case, has clearly marked upon it the tract in question, and shows all streams as ending at the old meander line. The examination and report made by special agent Hardenburg, conceded to be a very competent surveyor, states that the Creighton survey is technically correct. Leaving out of view the additions before referred to, I think the Creighton survey is full and intelligent, and all its recitations bear the evidence of being fair and truthful. I find no ground for impeaching it. The evidence shows that there are but few settlers upon the tract except those who are there under a claim of right from the State. It is doubtful whether there are any other actual or bona fide settlers. Of the eighteen persons who signed the request (Exhibit No. 6) for appeal to this Department, it is proven that not any of them reside upon lands within the Creighton survey, but are residents of adjoining towns. Undoubtedly some of these persons have made claim to some of the lands within the Creighton survey, and have made some improvements thereon. In a very few instances quite a large amount of money has been expended in the construction of levees, but I understand from the evidence that such expenditure has been made by persons claiming under the State. The Creighton survey and notes (disregarding the additions before named), afford much satisfactory evidence as to the condition and situation of the lands and their liability to overflow, and the hazards of cultivation without a large expenditure for protection. This evidence, taken in connection with the physical conformation of the country, and the fact that there is no adequate outlet for the waters liable at any unusual rise to be precipitated into the lake, show that these lands are at present in a condition unfit for safe and continued cultivation. Most of the tract is so nearly on a level with the water in the lake at its present stage, that a small rise therein, without protection, would inundate the entire tract. When these well established facts are considered, with the proof furnished by the surveys of 1853 and 1854, and the evidence connected therewith that the tract was that mainly covered with water, and pliance with legal requirements at the date had been since 1849, and that at different of entry, and the entry had been canceled times, for long periods down to 1876, it because the proofs were false, the entry had been so covered and overflowed, the could not be regarded as having been conclusion is manifest that the tract in erroneously allowed, nor could repayment question, at the time of the passage of the be authorized. act of September 28, 1850, was swamp and overflowed lands, made unfit thereby for cultivation." After a somewhat extended examination of the several matters involved, I am satisfied that the lands properly belong to the State, and have therefore concluded to affirm your decision approving the Creighton survey, and to direct the necessary steps to be taken to give the State the legal title to the lands covered thereby. REPAYMENT. JAMES R. BOYCE. Repayment-Erroneous Entry Defined--Desert Lands.--Where a desert land entry has been canceled for non-compliance with law, the purchase-money cannot be repaid.-What constitutes an erroneous entry under act of June 16, 1880. SECRETARY TELLER to Commissioner McFarland, March 26, 1883. Inasmuch as there has been no error in the premises on the part of the United States, and as the said entry was canceled pursuant to decision of this Department, wherein it was held that Boyce had failed to show bona fide compliance with statutory requirements, I am of opinion that it would not be expedient to refund said purchase money. Your decision is accordingly affirmed. TIMBER DEPREDATIONS. DON A. Dodge. Patented Lands. - Damage may be sustained against timber trespassers after the land in question has been sold to parties other than the trespassers. COMMISSIONER MCFARLAND to Don. A. Dodge Special Timber Agent, Duluth, Minn., Februray 9, 1883. (A. G. McK.) You desire to be informed if the government can claim damages for timber I have considered the appeal of James taken from the public lands where title to R. Boyce from your decision of September the lands has subsequently vested in 9, 1882, declining to recommend repay- parties other than the trespasser. ment of the purchase-money paid by him In reply thereto, you are advised that it on desert land entry No. 62, (F.C. No. is the opinion of this office that a claim 42,) of the W. of S. E. and S. W. of for damages can be sustained on the part Section 28, Tp. 10 N., R. 3 W., Helena of the government in all cases for any district, Montana Territory. trespass committed on the public timber The entry was canceled pursuant to lands prior to sale of same, except in cases Departmental decision of August 2, 1882, of trespass which come under the provisin the case of Wallace vs. Boyce (9 Copp, ions of the act of June 15, 1880. It may 120), wherein it was held that "inasmuch not, however, always be good policy to as it has been proved to my satisfaction prosecute cases of this kind, particularly that Boyce has failed to comply in good so where the trespasser has purchased and faith with what I conceive to be the re-improved the land and made actual settlequirements of the statute, his entry should ment. But where it can be shown that be canceled." the party is an old offender, or that mill Section 2 of the act of June 16, 1880, owners or others have incited the trespass, (21 Stat., 287,) provides for the repayment or have been parties thereto, either before of purchase money "in all cases where or after the act of trespass, an investigahomestead or timber culture or desert land tion should be had, and the facts and cirentries * * of public lands have heretofore cumstances connected therewith reported (been) or shall hereafter be canceled for to this office for its consideration and furconflict, or where from any cause, the en-ther action. try has been erroneously allowed and cannot be confirmed." DEPARTMENT OF THE INTERIOR, In the case cited it was not shown that GENERAL LAND OFFICE, the entry in question had been erroneously WASHINGTON, D. C., March 1, 1883. allowed, nor had the gularity thereof SPECIAL TIMBER AGENTS, General Land Office : been called in question; but the affidavit Respecting the measure of damages to of contest which was filed after the issuance which the Government is entitled in setof the final certificate, contained allega- tlement for timber trespass upon the pubtions touching Boyce's failure to comply lic domain, the U. S. Supreme Court has in good faith with legal requirements, recently decided thatwere subsequently verified, and showed that the proofs upon which such certificate was based were not made in good faith. In your decision appealed from, you state that when a person fails to comply with legal requirements," the fee and commissions or purchase money paid on such entry cannot be refunded." In such cases the Department has invariably held that if there was no error on the part of the United States, or if the proof showed com 1. Where the trespasser is a knowing and willful one, the full value of the property at the time and place of demand, with no deduction for labor and expense of the defendant, is the proper rule of damages. 2. Where the trespasser is an unintentional or mistaken one or an innocent purchaser from such a trespasser, the value of the timber at the time when first taken by the trespasser, or if it has been con |