contestants of State swamp land selections, Ringsdorf v. State of Iowa (4 L. D., 497, 498); Mallet v. Johnston (14 L. D., 658, 662–3).

2'.

This generic use of preemption in the act of 1880 has been construed to extend the benefit of that act to contests of timber and stone entries under the act of June 3, 1878, under which the entries now in question were made (Olmstead . Johnson, 17 L. D., 151, 152), and this construction of the word in the act of 1891 is also held by the Department to extend to graduation cash entries made under the act of August 4, 1854 (10 Stat., 574), so as to bring such entries within its confirmatory operation. A. J. Wolf (29 L. D., 525, 527).

Congress knew the construction given to "preemption" in the practice of the land department established long before the act of 1891, and under a familiar rule of statutory construction must be presumed to have used the word in the sense that it had so acquired.

The acts of 1880 and 1891 are moreover correlative to each other, relating to the same subject matter, are strictly in pari materia, and the terms common to each should receive like interpretation in both. The act of 1880 is aimed at the prevention and defeat of fraud in the entry of public land. The proviso in the act of 1891 is intended as a statute of repose and to fix a time within which an entry must be attacked and fraud charged. It is eminently just and expedient that at some time the validity of an entry of public land should be deemed established by acquiescence of the government and of interested adverse parties. It manifestly tends to discourage and prevent entries if no limitation exists against their validity being drawn in question and the entryman may be required always to stand ready to prove his good faith. It is quite as necessary that some period of repose should be fixed as that fraud should be defeated. One act is the proper correlative to the other, and giving the term preemption the same signification in both acts effects that object and confirms by the act of 1891 all entries for successful contest of which a reward is offered by the act of 1880. It is therefore held that entries under the act of June 3, 1878 (20 Stat., 89), are within operation of the confirmatory provisions of the act of March 3, 1891.

The departmental action of November 18, 1902, was general in its terms, applying to all entries, for the purpose of investigating the facts. It was not a proceeding against any specific entry nor yet against all entries within the district of its operation looking to their cancellation. To be either a contest or a protest there must be a charge of specific facts which if true would defeat the entry and upon which the entryman, or party affected may take issue and demand a hearing. In cases investigated by special agents of your office, where the agent has reported sufficient facts to justify cancellation of the entry, such report is a proceeding that prevents confirmation of an entry under the act. Instructions, July 9, 1902 (31 L. D., 368, 371).

But if no such report has been filed, or no contest has been initiated, so that nothing is charged against the entry upon which issue may be taken and the entryman demand to meet his accuser or that hearing be had, the entry will be regarded as confirmed by the statute and will be passed to patent.

SWAMP GRANT-FORT SABINE MILITARY RESERVATION.

STATE OF LOUISIANA.

Until the legal title to public lands passes from the government, inquiry as to all equitable rights comes within the cognizance of the land department, and the Secretary of the Interior, as the head of that department, may take such action with reference thereto as to him seems in accordance with law.

Until patent issues for lands claimed by the several States under the swamp land grant of September 28, 1850, the United States has not been divested of the legal title, and until that time the land department has full jurisdiction over such lands, regardless of the fact that lists regularly submitted, and duly approved, have been transmitted to the proper officer of the State.

Where a land grant to a State or Territory does not convey the fee simple title to the lands granted, or require patents to be issued therefor, the title thereto does not pass until the approved list of selections of such lands has been certified to the State by the Commissioner of the General Land Office.

A controversy involving a claim to public lands is never finally settled until it receives such adjudication as removes the land involved from the jurisdiction of the land department, and one Secretary of the Interior has no authority to bind his successor to either a rule of administration or interpretation of a statute involving the disposition of the public lands.

Lands in reservation for any purpose are not public lands within the operative effect of a subsequent grant of Congress, although not in terms excepted from the grant.

Swamp and overflowed lands within the Fort Sabine military reservation, in the State of Louisiana, at the dates of the swamp land grants of March 2, 1849, and September 28, 1850, did not pass to the State by virtue of said grants.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 6, 1904. (G. B. G.)

This proceeding involves 6,497.40 acres of land situated in the New Orleans land district, Louisiana, more particularly described in what is known as Louisiana swamp land list No. 51.

The equitable title to these lands is claimed by the State by virtue of the grants of swamp and overflowed lands made by the acts of March 2, 1849 (9 Stat., 352), and September 28, 1850 (id., 519), and the legal title because of certain proceedings in the land department, which will be hereinafter more specifically set out.

It appears from the papers in the case, from the files and records of your office, and from prior decisions of the Department in reference to these lands, that on December 7, 1850, the State of Louisiana filed in the district land office, at Opelousas, under said act of 1849,

swamp land list No. 4, which embraced more than one million acres of land, including the land now in controversy. Upon the face of this list No. 4 the surveyor-general indorsed the following: "Part of this township is subject to a military reservation. See letter from the Commissioner of the General Land Office, dated Dec. 21, 1838." The reservation referred to was the Fort Sabine military reservation, established by executive order of December 20, 1838, and abandoned March 25, 1871, by virtue of the provisions of the act of February 24, 1871 (16 Stat., 430). Your office afterwards submitted a clear list of swamp lands, No. 1, Opelousas series, made up from selection list No. 4, but did not embrace any lands lying within this reservation, and this list was, on May 5, 1852, approved by the then Secretary of the Interior, Mr. Stuart. Notwithstanding this purposed omission of all lands within this reservation from approval, there was later submitted to the Department by your office a list of swamp and overflowed lands, No. 26, also made up from said selection list No. 4, embracing nearly all the lands within this reservation, except those now in controversy, and this list No. 26 was approved by Acting Secretary Joslyn, July 1, 1884, but in seeming ignorance of the fact that the lands listed for approval were reserved lands. From the inspection of said list the following facts appear:

The certificates attached thereto state affirmatively that "said list is found free from conflict by sale or otherwise," but made no reference to the military reservation, nor did they contain a statement in substance or effect that the tracts described in the list had been found or decided to be swamp and overflowed lands by field-notes of surveyors or by "personal examination by experienced and faithful deputies," as required by statute, or in any other manner.

September 13, 1893, your office held for rejection the State's claim to all of the remaining lands covered by the State's said selection list No. 4 which appeared to be within the aforesaid military reservation, upon the ground that they were not granted to the State by the acts of 1849 and 1850, and because of the act of February 24, 1871 (16 Stat., 430), which specifically provided for other disposition thereof.

Upon the State's appeal from your said office decision the Department, by decision of October 31, 1895 (21 L. D., 357, 359), held that the acts of 1849 and 1850 granted to the State of Louisiana all of the swamp and overflowed lands

lying within the Fort Sabine military reservation as established by the President's executive order of December 20, 1838, subject, however, to the right of the United States to use the same for military purposes during pleasure, or so long as might be necessary in the judgment of the military authorities; and that when said military reservation was abandoned by operation of the act of February 24, 1871 (16 Stat., 430), the title and right of possession of the State of Louisiana under the acts of 1849 and 1850, aforesaid, attached at once in fee simple to the swamp and overflowed lands

embraced within said reservation. The act of 1871 aforesaid can not be construed as intending to make any disposition of said swamp and overflowed lands, inconsistent with the title previously granted to the State of Louisiana as aforesaid.

It was thereupon directed that: "The tracts of land hereinbefore specified and described will be certitied to the State of Louisiana under the swamp land grants."

Following this decision your office presented for the approval of the Department, preliminary to the conveyance of the legal title, the aforesaid swamp land list No. 51, which included the lands the subject of departmental decision of October 31, 1895, supra, and, on December 10, 1895, the Secretary of the Interior, Mr. Smith, in his certificate of approval attached to the list, recited that it was given "under the act of March 2. 1849, as supplemented and enlarged by the act of September 28, 1850. subject to any valid adverse rights that may subsist to any of the tracts of land therein described." This list was then returned to your office as a basis for the further action to be taken towards passing title to the lands embraced therein to the State, in accordance with the established practice in such cases.

January 30, 1896, no action having in the meantime been taken by your office under such approval, the then register of the State land office, assuming to act under the authority of an act of the State legislature, protested to the Secretary of the Interior against the patenting of the lands embraced in the approved list, because the selection and listing did not describe the lands in accordance with the latest approved survey thereof, and afterwards sought, upon affidavits filed, to change the descriptions contained in the list. Failing in this, the then register recalled the protest of his predecessor, and asked that the list be forwarded to that office to take the usual course for such lists of approvals. May 20. 1901, your office, questioning the right of the State to these reserved lands, addressed a communication to the Department asking to be advised whether they should be certified and patented to the State," and by letter of June 3, 1901, the Department, after noting the importance of the question presented, directed your office to notify the proper officer of the State thereof, to the end that the Department might have the benefit of suggestions or argument in support of the State's claim, before giving final directions in the premises. In response to the notice so given, there has been filed a petition of intervention in behalf of the North American Land and Timber Company, Limited, setting forth as to part of the lands involved, that said

If the

company is the assignee of the State in good faith, and a joint brief has been filed upon behalf of the State and its alleged assignee. The petition of intervention in nowise complicates the case. legal title to these lands has gone out of the United States, the land department has been divested of all jurisdiction over the land, and the claimed rights of the American Land and Timber Company are

matters of adjustment between that company and the State, with which the United States has no concern. If, on the other hand, the legal title to these lands is still in the United States, the assignment thereof by the State can not affect the jurisdiction of the land department, and offers no obstacle to the exercise of that jurisdiction in the performance of the duties of the Secretary of the Interior in reference thereto. The State's contention is:

First. That said lands so embraced in said list No. 51 were granted to the State by the swamp land grant of March 2, 1849 (9 Stat., 352), and that that matter stands res judicata.

Second. That on the approval of said list No. 51, on December 10, 1895, the fee simple title to the lands embraced thereby vested absolutely in the State of Louisiana, and that instantly upon such approval all power and jurisdiction of the land department over said land ceased and determined.

The second proposition involves the jurisdictional question, and should be considered first; and upon this question it may be set down as settled law that until the legal title to public lands passes from the government, inquiry as to all equitable rights comes within the cognizance of the land department, and the Secretary of the Interior, as the head of that department, may take such action with reference thereto as to him seems in accordance with law. Knight e. U. S. Land Association (142 U. S., 161, 181); Michigan Land and Lumber Co. ". Rust (168 U. S., 589, 592-3); Parcher . Gillen (26 L. D., 34, 41); Harkrader v. Goldstein (31 L. D., 87, 91-2).

It is also well settled that until patent issues for lands claimed by the several States under the swamp land grant of 1850, the United States has not been divested of the legal title, and until that time the land department has full jurisdiction over such lands, regardless of the fact that lists regularly submitted, and duly approved, have been transmitted to the proper officer of the State. Brown v. Hitchcock (173 U. S., 473); Gray Eagle Oil Company v. Clarke (30 L. D., 570, 579). In one view this would seem conclusive of the question here presented. These lands were originally selected under the act of 1849, but subsequently to the passage of the act of 1850. The list submitted to the Secretary of the Interior, list 51, was made up in the General Land Office from the State's original selection list No. 4, it is true, but was submitted for approval as a selection under both the acts of 1849 and 1850, and was approved, as has been seen, "under the act of March 2, 1849, as supplemented and enlarged by the act of September 28, 1850." So that it was really an approval under the act of 1850, and was not intended as the final action of the land department. The nature of the approval is not open to question. It was clearly not intended as passing title under the act of 1849, and was not so treated by the State, for, as before shown, the State sought to correct the description before the patent of the United States was to be issued upon said approval.