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At common law, a location is "the act of selecting and designating lands which the person making the location is authorized by law to select" (Bouvier). Manifestly the definition does not include the case of swamp lands, for the States were not authorized by law to designate or select such lands, and in fact never did designate or select them.

Fourth. If the fees are to be paid on selections of swamp lands, the only manner of enforcing their payment by the Department is to withhold approval and patent until payment is made. This is substantially your decision in the case at bar, as above cited. But here we are met by the fact that the payment of the fees becomes a condition precedent to the enjoyment of the grant, and that it is a condition precedent which is prescribed by an act passed subsequently to the date of the granting act. In Railroad Company v. Smith (9 Wall., 95), in referring to the act of 1850, the Court say, "All the lands of that description (swamp land) were granted, and they have remained so granted ever since," whilst they have uniformly held that said act was a grant in presenti, and vested full title in the States. In Railroad Company v. Prescott (16 Wall., 603), the Court upheld the power of Congress to attach such a condition to the Pacific Railroad grants by subsequent legislation; but it was expressly on the ground that, as there had been no definite location of the road, "no right had been vested in any tracts of land" at date of the subsequent legislation. I do not think that Congress could, nor do I think that they intended to, attach any condition precedent to the swamp land grant of 1850 by the act of July 2, 1864. A similar opinion was expressed by Mr. Secretary Schurz in the State of Oregon v. The United States (7 Land Owner, 53), in relation to the act of March 12, 1860.

Fifth. It is to be observed that Congress may be supposed to have had the swamp land acts in view when enacting the statute now under consideration, and if there is any provision in the former acts to which the latter act refers in terms, a proper construction of it requires that its operation shall be limited to that provision. An inspection of the granting acts makes it clear that there is such provision. In the orig. inal act of 1850 a location by the States was not required or authorized; but in the amending act of March 2, 1855, it is provided that, "where the lands have been located by warrant or scrip, the said State or States shall be authorized to locate a quantity of like amount upon any of the public lands subject to entry." It is plain, therefore, that the swamp land act, as amended, provided for the selection of swamp lands by the Secretary of the Interior, and for the location of indemnity lands by the States. So it stood at date of the passage of the act of July 1, 1864; and I therefore am of opinion that said act required the payment of a fee only on the location of indemnity lands by the States.

Sixth. It is to be observed that for some nineteen years, or since the act of 1864, its provisions have never been held to apply to original selections. This same question was presented to this Department by the State of Wisconsin many years ago, and Mr. Secretary Browning

reached the conclusion herein stated. In deciding the case he said, though without stating his reasons, "The swamp lands on which these fees are claimed were original, not indemnity, selections; and I am of opinion that the act of 1864 had no reference to such cases." (See opinion of February 22, 1867.)

For these reasons your decision is reversed.

9. TRANSCRIPTS OF RECORDS.

The only record information for which land offices (other than consolidated) are lawfully entitled to charge, is for plats or diagrams and for lists of taxable lands for State or Territorial authorities.

Commissioner McFarland to register and receiver, Aberdeen, Dak., September 30, 1883.

GENTLEMEN: I have to acknowledge the receipt of the receiver's letter of the 22d ultimo, inclosing a form of certificate requested to be furnished by the Brown County Bank, showing the status of certain lands situated in your district, and in reply thereto have to state as follows:

Prior to the passage of the act of March 3, 1883, no authority of law existed allowing registers and receivers of other than consolidated officers to make any charge for transcripts of records or other record information, and the act of March 3, 1883, above referred to only authorizes charges to be made for plats or diagrams and for lists of taxable lands for State or Territorial authorities. As your office is not a consolidated office, the only record information you are lawfully entitled to charge for is that included in the two classes authorized by the act of March 3, 1883.

You are not permitted to furnish or to allow any one else to procure from your records the information desired by the Brown County Bank, except it is in the form of a plat or diagram, showing what lands are vacant and what lands are taken, your charge therefor not to exceed the rates prescribed by circular of this office dated July 20, 1883, copy of which is herewith inclosed.

VI.-HOMESTEAD AND PRE-EMPTION PROOFS.

Duplicate copy of homestead and pre-emption proofs is not required, and charge therefor is illegal.

Commissioner McFarland to register and receiver, Watertown, Dak., April 7, 1884.

GENTLEMEN: I have been informed by H. R. Pease, esq., receiver at Watertown, that you are in the habit of requiring settlers to have their pre-emption and final homestead proofs made in duplicate, and that you

charge and collect the same fees for examining and approving the du plicate copy as are charged on the original proof. This practice is illegal and must be discontinued. All the law requires of parties making final proof is that it shall be full and correct, and when the entryman has paid at the rate of fifteen cents per one hundred words for writing done by you or by some one in your employ in pre-emption and final homestead cases, and fees at the same rate for examining and approv ing testimony in final homestead cases taken before a judge or clerk of a court, as allowed by the act of March 3, 1877, it is all that is required by law, and any other fees collected for such services are illegal and the collection thereof must cease.

You will acknowledge the receipt of this letter.

VII.-LOCAL LAND OFFICERS.

1. SURRENDER OF OFFICE.

INSTRUCTIONS.

Commissioner McFarland to Henry O. Beatty, esq., R. P. M.; Sacra mento, Cal., August 13, 1883.

SIR: In reply to your letter of the 24th ultimo, I have to direct that you will surrender the office to your successor upon his exhibiting to you his commission and not until then.

You will pay all the expenses of the office, including the compensation of yourself and the register, from the advance of $1,800, of which you are advised by letter M of the 7th instant, up to and including the day upon which your successor receipts to you for the public property, depositing the balance to the credit of the Treasurer of the United States on account of the appropriations from which said advance was made, following strictly the instructions contained in marked paragraphs of the inclosed circular of June 15, 1882. Under no circumstances will you turn over to your successor any public moneys you may have in your pos session when you cease to act as receiver, but will deposit them in the usual manner and as above indicated.

2. DEPOSITS WITH RECEIVER.

LAND IN KANSAS.

As the money in question was merely deposited with the receiver, and has not been accounted for nor covered into the Treasury, it is a case between the claimant and the receiver.

Commissioner McFarland to I. W. McNeal, Medicine Lodge, Kans., September 29, 1883.

SIR: In reply to your letter of the 20th instant in the matter of $51, alleged to have been paid the receiver at Larned, Kans., on declaratory

statement 1454, for S. of SW. Sec. 33, T. 31, and lot 3, and SE. of NW. Sec. 4, T. 32 S., R. 12 W., "Osage Indian lands," I have to state that the money was only deposited with the receiver, that if the proof was accepted by this office then the amount would be received as the first payment on said land. The declaratory statement was canceled July 3, 1883. As the money has not been accounted for or covered into the United States Treasury, this office has no authority in the matter; it is a case between Mr. Reed and the receiver at Larned.

LADY BRYAN SILVER MINING COMPANY.

If money left on deposit with a former receiver is not accounted for or covered into the Treasury, his successor in office is not chargeable, and it cannot be allowed on the entry on account of which it was deposited.

Commissioner McFarland to register and receiver, Carson City, Nev., January 25, 1884.

GENTLEMEN: Referring to office letter "N" of the 20th ultimo, addressed to you in the matter of the claim of the Lady Bryan Silver Mining Company, and allowing in payment thereof the $230 left on deposit April 11, 1868, with the then receiver, David L. Gregg, it was assumed that the amount had either been accounted for or turned over to you. I am in receipt of information that you refuse the entry and decline to become responsible for the $230 deposited with a former receiver, as he never turned the money over to you. Therefore, as the amount in question has not been accounted for by the former receiver or covered into the United States Treasury, or turned over to you, so much of the instructions of the 20th ultimo is revoked, in allowing the $230 in payment on said entry.

The parties in interest in order to perfect their claim will have to pay for the land embraced therein.

VIII.—MILITARY BOUNTY-LAND WARRANTS.

TRESSIE M. PIEPER.

Receipt of a military bounty land warrant in payment of a pre-emption entry is improper. Such warrants are only receivable in the form of locations.

Manner of location by warrants set forth.

Commissioner McFarland to register and receiver, Santa Fé, N. Mex.,

March 29, 1883.

GENTLEMEN: In your returns for the month of February, 1883, you reported pre-emption entry register and receiver No. 688, in the name of Tressie M. Pieper, the receiver transmitting military bounty-land war4531 L 0- -43

rant No. 14,555, act of 1855, for 80 acres, which he notes in his abstract thereof as having been received in payment therefor.

You are advised that said entry is improperly reported. Military bounty-land warrants are receivable only in the form of locations. Applications to locate must be made as in cash cases, but must be ac companied by a warrant, duly assigned, as the consideration for the land, and by a tender of the location fee. A duplicate certificate of location, under the act authorizing the issuance of the warrant, will then be furnished the party, to be held until the patent is delivered. At the close of the month an abstract of location showing the act under which the warrant was issued will be prepared and transmitted to this office together with the warrant and all the papers pertaining thereto. A separate series of register and receiver numbers is required to be kept and reported for locations under the several acts.

IX.-RECONVEYANCE BY UNITED STATES.

ESTELLA J. RICHARDSON.

The party, after issue of patent to her by the United States, inadvertently made and placed on record a deed, formally conveying her title to the United States; the deed was not accepted on the part of the United States, and the recording, having been at her request and not at the request of the grantee, was a nullity, amounting to a mere formal cloud upon her former estate. An indorsement by the commissioner of the refusal to accept the deed, duly recorded, would show by the record the non-delivery of the instrument. On a reissue of the patent, with proper recitals of the facts, further assurance of title might be made.

Secretary Teller to Commissioner McFarland, January 28, 1884.

SIR: I return herewith the papers submitted by your letter of 23d instant, in the matter of the application ot Estella J. Richardson for Congressional relief respecting her title to the NE. ‡ of 12, 24, 2 E., Kansas, she having inadvertently or mistakenly executed and procured to be recorded a deed of the same to the United States, after the issue of patent to her from the Government.

As you have not accepted this deed, of course no delivery has been had, by which only title could pass, and the recording of the same at her request and not by request of the grantee is a nullity, amounting to a mere apparent cloud upon her former estate.

I see no necessity for legislative intervention in such case. It is entirely competent for you to indorse upon the deed your refusal to accept the same on behalf of the United States, which indorsement, when duly recorded, will show by the record the non-delivery of the instrument.

If further action be deemed essential, you are also competent to reissue the patent with recitals of the facts, and couched in terms for

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