the grantees remain undetermined by tribunals and officers of the United States. Van Reynegan v. Bolton (95 U. S., 33).

It seems clear, therefore, that Thompson could acquire no right to the land in controversy by reason of his settlement in 1877, and his ownership of the improvements prior and up to the time the land became part of the public domain, May 4, 1888. At that time he was not personally inhabiting the land, but he had leased it to Skinner, and was himself residing elsewhere. He did not resume his personal residence on the land while it was unsurveyed public land of the United States, subject to pre-emption, nor indeed until more than two months after the township plat of survey was filed, and it became subject to entry. He had initiated no claim or right by a settlement in person on the public lands of the United States, and he made no inhabitancy or improvement on public lands. His personal settlement and personal inhabitancy were confined to a period when this land was segregated and reserved from the public domain, and the only inhabitancy and improvement thereon after it became public land of the United States, and prior to survey were by Skinner, as the tenant and lessee of Thompson, and by Fleming in his own behalf.

Settlement can neither be established nor maintained by proxy. It is a personal act and must be performed by the settler in person. Knight v. Haucke (2 L. D., 188). Occupation through a tenant is not the maintainance of residence requisite under the public land law. West v. Owen (4 L. D., 412).

Residence on land not subject to entry is unavailing if abandoned or discontinued before the land becomes subject to entry, and not resumed until after the intervention of an adverse right. Crumpler v. Swett (8 L. D., 584), and failure in residence is not excused by bringing suit in the courts for possession. Forbes v. Driscoll (3 L. D., 370).

From the authorities cited, I think it is clear that a settlement and residence established on reserved land, not subject to pre-emption, confers no right. That a legal settlement must consist of a settlement in person, and inhabitancy in person on public land, in order to attach a right under the settlement laws. If, however, a settlement is made on reserved land, accompanied by personal inhabitancy and improvement, which is continued until the land becomes a part of the public domain, it that instant becomes a legal settlement, not by reason of any acts performed before the land became subject to settlement, but because of the existence and continuance of such settlement from that date. The Department has held that in determining the rights of claimants to such land, the priority of their settlement may be considered.

Thompson having initiated no settlement upon public land, nor maintained the settlement made by him upon reserved land until it became subject to settlement, possessed no rights that could relate back to a settlement, when he filed his homestead entry.

Fleming, on the contrary, made an actual personal settlement on this land while it was unsurveyed public lands of the United States, subject to pre-emption. He continued to inhabit and improve the same until survey, and subsequent thereto, and filed his pre-emption declaratory statement within three months after survey. I am of the opinion, therefore, that he is the only one who acquired a legal right under the law, that will relate back to the date of his settlement before survey.

Thompson made no personal settlement on public land until after the settlement right of Fleming had attached. I recognize the equities of Thompson, but I can not ignore the plain and positive requirements of law, and substitute therefor equitable considerations. Under the law the rights of Fleming are superior to those of Thompson, in the land in controversy, and the decision appealed from is accordingly reversed.

JOHNSON ET AL. v. MCKEURLEY.

Motion for review of departmental decision of February 16, 1893, 16 L. D., 152, denied by Secretary Smith, December 19, 1893.

MINING CLAIM-SURVEY-NOTICE OF APPLICATION.

JOHN K. CASTNER ET AL.

An amended survey and republication of notice will be required where it is found that the land embraced within the application, as set forth in the official survey and published notice, is incorrectly described.

Secretary Smith to the Commissioner of the General Land Office, December 19, 1893.

I have considered the appeal of John K. Castner et al. from your office decision requiring them to re-advertise their application for patent for the Vista, Paragon and Puzzler lode claims, the same being mineral entry No. 2597, Helena, Montana, land district.

It appears that Castner et al. made application for patent for said claims, and the same was adversed by James L. Henry et al. for con. flict with the Bob Clark lode. Suit was instituted in the district court of Cascade county, Montana, in support of said adverse. A plea having been entered to the jurisdiction of the court, the matter was submitted to a jury, and the verdict was that the property involved "is situated in the county of Meagher, State of Montana." Judgment was therefore rendered for the defendants October 2, 1891. Final entry was made December 31, 1891.

On March 3, 1892, Henry et al. presented a protest against the issuance of patent, in which is recited the former adverse proceeding; their ownership of the Bob Clark lode and its prior location; that the Para

gon and Puzzler claims were shown by the official survey to be situate in T. 16 N., R. 8 E., in Cascade county, and on unsurveyed lands; that as a matter of fact said claims are situate in T. 15 N., R. 8 E., in Meagher county; that relying on the correctness of the survey, they brought their action in Cascade county. They ask that an order be issued requiring applicants to re-publish their application. On October 3, 1891, Mike Hendrickson filed a similar protest against these claims, claiming the Zilla and Utah lodes, as being in conflict with said mineral entry.

On May 9, 1892, your office ordered that the notice be republished, as it appears that the survey of the Paragon and Puzzler was erroneous and misleading. Subsequently-June 25-on petition of claimants, your office "granted a stay of proceedings for 60 days," in order to complete the record, and on October 15, following your office again considered the whole matter on a motion for review of said decision of May 9, and overruled the motion. The case now comes before this Department on appeal. There are several specifications of error, but I think they amount substantially to the claim that it was error to hold that the applicants failed to have a proper survey made of their claim and to give a correct notice of their pending application so that those claiming adverse rights might have sufficient notice of the locus of the property sought to be patented.

The mining claims in controversy are situate in the Barker (unorgan ized) mining district. By the jury they were found to be in Meagher county. They are within a few hundred feet of the north line of said county, the same being the south line of Cascade county. This line was first run by Surveyor Kern in 1888, and again by one McIntyre, whose report was filed in September, 1890, and it seems to have been accepted by the county commissioners as the dividing line. By extending the township lines on the map it is found that T. 16 N., R. 8 E., is in Cascade county, while T. 15, same range, is in Meagher county. The notices of the location of the Paragon and the Puzzler lodes show that each of them was situated in Cascade county, and each were recorded in that county. The Paragon was located January 28, 1889, and the Puzzler April 17, 1889. The Vista is described as being in Meagher county; was located May 25, 1885, and recorded in that county.

The three claims are not located in a compact body, but, according to the plat of the official survey, run lengthwise in a northwesterly and southeasterly direction, the northwesterly corner of the Paragon joining the Vista near its southeast corner, and the northwesterly corner of the Puzzler joining the Paragon at about the center of its easterly side line. Thus it will be seen that the Vista is the farthest north, hence nearest the county line, whilst the other two claims extend nearly the entire length south of the south end of the Vista, and that much south of the county line and farther into Meagher county. The

official plat also states that they are situated in "T. 16 N., R. 3 E. (unsurveyed)," and "in Barker (unorganized) mining district, Cascade county, Montana." Throughout all the papers in connection with this entry, and in the publication notice, this statement is also made.

These facts are not controverted, but it is insisted by counsel that sufficient notice was conveyed to those holding adverse claims to enable them to defend their rights. I cannot agree with this proposition. The locus of a mining claim should be fixed with mathematical accuracy, as well in the report of the official survey as upon the surface of the earth. A better illustration for the necessity of this can not be afforded than by the case at bar. Persons claiming adverse rights against a mining claim are required by law (Sec. 2326 Revised Statutes) to file the statement of their claim in the local office during the period of publication, and within thirty days thereafter "to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession." It is an invariable rule that the jurisdiction of a State court, so far, at least, as the trial of real property rights is concerned, is confined to the county in which the land is situated. Now, in this case, the land is described in the official survey, the only means provided by law for fixing the locus, as being in Cascade county. They brought suit in that county, and the result was that the court, on the verdict of the jury, decided that it did not have jurisdiction, the land being situated in another county. The plaintiff's were justified in relying on the official survey. It will not do to say that they were bound to accurately ascertain by their own. methods the exact locus of the land. The government commissions an officer for that purpose, and thus holds out the assurance that their official acts may be relied upon, and, if for any cause, those claiming adverse rights are defeated by reason of a defective survey, the gov ernment is certainly bound to put them in statu quo as nearly as possible, and that may be done by cancelling the entry, requiring a corrected survey, and the re-publication of the notice.

The applicants for patent are not without fault in this matter. The Paragon and Puzzler lodes are described as being in Cascade county, while the Vista, located several years prior, and nearer the county line by almost its entire length than the others, is properly put in Meagher county. Now, the Vista being in Meagher county, it follows as a physical fact that the others were also, and it was their duty to amend the location of the other claims in accordance with the fact before seeking to obtain an official survey.

Your office decision is therefore affirmed.

TOWNSITE OF MOORE v. TURNER ET AL.

Motion for review of departmental decision of May 31, 1893, 16 L. D., 476, denied by Secretary Smith, December 19, 1893.

APPLICATION FOR SURVEY-MEANDER LINE.

EDWARD C. HILL.

An application for the survey of a small tract of land, lying between the meander line of a lake and the water's edge, will not be granted, where the original survey has stood for a number of years, even though the meandered boundary of the lake may not exactly indicate the true water line.

First Assistant Secretary Sims to the Commissioner of the General Land Office, December 19, 1893.

Edward C. Hill has appealed from the decision of your office, of December 31, 1892, denying his application for the survey of a tract of land extending into Lake Steilacoom, situated in Sec. 4, T. 20 N., R. 2. E., W. M., Washington.

In the case of Hardin v. Jordan (140 U. S., 371), it is said:

It has never been held that the lands under water, in front of such grants of meandered lands, are reserved to the United States, or that they can be afterwards granted out to other persons, to the injury of the original grantees. The meander lines run along, or near the margin of such waters are not run for the purpose of limiting the title of the grantee to such meander lines.

In Mitchell v. Smale (140 U. S., 406) Mr. Justice Bradley, delivering the opinion of the Court, said:

Our general views with regard to the effect of patents granted for land around the margin of a non-navigable lake, and shown by the plat referred to therein, to bind on the lake were expressed in the preceding case of Hardin v. Jordan, and need not be repeated here. We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants of the beds of such lakes, after selling and granting the land bordering thereon, or represented so to be. It is nothing less than taking from the first grantee a most valuable, and often the most valuable part of his grant. Plenty of speculators will always be found, as such property increases in value, to enter it and deprive the proper owner of its enjoyment; and to place such persons in possession, under a new survey and grant, and put the original grantee of the adjoining property to his action of ejectment and plenary proof of his own title, is a cause of vexatious litigation, which ought not to be created or sanctioned.

And it was held in that case that the projection of a strip or tongue of land beyond the meandering line of the survey, is entirely consis tent with the water of the pond or lake being the natural boundary of the granted land, which would include the projection, if necessary to reach that boundary.

There seems to be no reason why these principles are not applicable to this case.

The burden of the evidence submitted, is to show that there has been no change in the character of the land along the shore of the lake, since the date of official survey, at the point where the land. which is sought to be surveyed is located.

I concur with you that if this fact were fully established, the Department will not, after so great a lapse of time, direct a survey and dis