and is here on the appeal of the canal company. As against this the suit in court was commenced in December, 1890; no effort was made to determine Patterson's rights in that suit until she was made a party thereto following the canal company's appeal to the Commissioner of the General Land Office from the decision of the local officers in her favor; and now almost ten years after the institution of the suit, and five years after she was made a party thereto, the effort to determine the merits of her claim in that suit has progressed only to the extent of the filing of a supplemental cross-bill against her and the interposition of a demurrer thereto. She urges present action by this Department and the canal company urges a suspension of proceedings here during the pendency of the suit in court. This recital shows that any discretion lodged in the officers of the land department in such matters must be exercised in favor of present action by this Department, and not in favor of a supension of proceedings.

WILLIARD P. COOK'S CLAIM.

The officers of the local office could not have known in 1895, when a hearing was ordered upon the claim of Patterson, that Cook was then asserting any claim to the land. He had tendered a pre-emption declaratory statement therefor December 6, 1884, which was rejected by the local officers and was again rejected September 11, 1888, by the Commissioner of the General Land Office on appeal. No appeal was taken to the Secretary of the Interior, and consequently the record showed the claim to have been terminated. Moreover, this was all before the forfeiture act, when no pre-emption claim could lawfully be recognized or placed of record, and, while the land was restored to the public domain March 2, 1889, by the act of that date, Cook did not again assert a claim thereto until in 1895 after the hearing and decision in the local office on Patterson's claim. He did not therefore have a claim of record at the time when the hearing was ordered and was not in a position to receive or expect special notice. Upon his own showing Cook's relation to the land on and prior to May 1, 1888, was not such as to constitute him at that time a bona fide pre-emption claimant under color of the laws of the United States; but if his showing had evidenced such a claim on his part the time for asserting the same as against an adverse settler had long since passed when his affidavit asking a hearing in opposition to Patterson was filed. He failed to tender a declaratory statement within three months after the act of March 2, 1889, restoring the land to the public domain and giving effect to prior pre-emption and homestead settlements, or within three months after the decision in the Cunningham case declaring the selection and certification of the land under the canal grant absolutely void and therefore no obstacle to the assertion of a claim under the pre

emption law and the act of March 2, 1889. Any claim which he may have had was therefore forfeited to Patterson, the next settler in the order of time (Rev. Stat., 2265), who tendered the required declaratory statement within three months after the passage of said act, and also within the like time after the rendition of said decision, and has otherwise, up to this time, complied with the conditions of the preemption law.

The presence of two rival pre-emption claims on May 1, 1888, each coming within the forfeiture act, would not operate to the advantage of the claimant under the canal selection.

ACTS OF MARCH 3, 1887, AND MARCH 2, 1896.

While no distinct proof was offered respecting the bona fides of any of the purchases under the selection and certification of the land under the canal grant, it is urged that these purchases were made in entire good faith and are within the protecting provisions of the acts of March 3, 1887 (24 Stat., 556), and March 2, 1896 (29 Stat., 42). The earlier act is in terms confined to certifications or patents "to or for the use or benefit of any company claiming by, through or under grant from the United States to aid in the construction of a railroad.” The later act does not in terms embrace certifications or patents on account of a grant in aid of the construction of a canal and does not contain any provision or language evidencing a purpose to repeal any portion of the act of March 2, 1889; or to divest, disturb or affect any claim thereby validated or confirmed. That act expressly preferred pre-emption and homestead claims of the class there described to any right or title under the canal selections whether asserted by a bona fide purchaser or otherwise, and this is in no respect affected by the acts referred to.

PROCEEDINGS IN THE GENERAL LAND OFFICE.

It is manifest that the action of your office in suspending proceedings on account of the pending suit and subsequently resuming consideration of the case, under the circumstances recited herein, was not attended with that disposition to acquaint the parties with the action taken and to afford them an opportunity to present objections which would have been suggested by a closer regard for orderly procedure, but this irregularity was not indicative of favor or partiality.

All parties had ample opportunity to be heard upon the merits through written or printed briefs, and the time ordinarily allowed for filing these expired many months before the suspension on account of the pending suit. The volume and character of public business in your office are such that oral argument can be granted only in special cases and in the exercise of a proper discretion. The principal reli

ance of claimants is upon written or printed briefs rather than upon oral arguments, and it has never been deemed a sufficient cause for reversing a decision of your office that oral argument was not had or permitted. The contention of the canal company that it did not have due opportunity to be heard in your office is not sustained. Another reason why this contention is without effect is that the Secretary of the Interior in the exercise of his supervisory power as head of the land department could by direct order, even in the absence of an appeal, have transferred the consideration of the entire matter from your office to his office, and upon giving the parties a hearing or opportunity to be heard could have rendered a decision therein correcting and obviating any errors or irregularities in the proceedings or decision of your office. Knight. United States Land Association (142 U. S., 161, 178, 181), Hawley . Diller (178 Id., ). That which could have been done in the absence of an appeal can equally be done upon an appeal. All parties have been fully heard upon this appeal by printed briefs and in oral argument, and this decision, given after full and patient consideration of everything which has been presented, will stand as the action of the head of the land department, uninfluenced by any error or irregularity in the proceedings in your office.

PATTERSON'S CLAIM.

The evidence produced at the hearing, the substance of which is hereinbefore recited, amply shows that on May 1, 1888, Patterson was in the actual occupation of the land under color of the laws of the United States and was intending to acquire title thereto by full compliance with the conditions of the pre-emption law; that her claim was initiated in good faith and has since been maintained in like manner. If on May 1, 1888, she was possessed of the requisite qualifications of a pre-emptor, her claim was validated or confirmed March 2, 1889, by the act of that date and she is entitled to perfect title to the land without regard to the prior selection and certification thereof under the canal grant. The evidence taken suggests but does not affirmatively establish that she was so qualified, and at the time of the oral argument on this appeal counsel representing her requested that she be given an opportunity to make clear proof of her qualifications. This she should be permitted to do, if she can, and you will direct the local officers to order a supplementary hearing for this purpose, with due notice to all parties claiming any interest under the canal selection, as shown by the records of the local office and the record of the former hearing herein. As herein modified, the decision of your office is affirmed.

RESERVOIR SITE-SOLDIERS' ADDITIONAL ENTRY.

J. M. LONGNECKER.

Lands which for a long period of time have been with the knowledge and acquiescence of the government included in the site of a reservoir used as a feeder of a canal in the maintenance and operation of which the government is interested, are not "unappropriated public lands" and are therefore not subject to soldiers' additional homestead entry.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V.D.) July 19, 1900. (J. R. W.)

J. M. Longnecker, assignee of Matilda Parker, widow of Ira Parker, has appealed from your office decision of December 8, 1899, denying his application to enter the S. of the SW. of Sec. 3, T. 6 S., R. 3 E., 1st P. M., Ohio, as a soldiers' additional homestead under section 2306 of the Revised Statutes.

The land applied for is part of the site of the Grand Reservoir, constructed during or prior to 1841 as feeder to the Miami and Dayton canal. By act of May 24, 1828 (4 Stat., 305), a grant of land was made to the State of Ohio, to aid in the construction of said canal, the second section of which act, among other things, provided:

Said canal, when completed, shall be, and forever remain, a public highway, for the use of the government of the United States, free from any toll, or other charges, whatever, for any property of the United States, or persons in their service, passing through the same.

This provision makes the United States a party interested in the maintenance and operation of said canal.

Neither by the canal grant act, nor otherwise, was any provision made authorizing selection of lands for reservoirs or feeders; nor was the land in controversy selected by the State under the grant. It has, however, been in possession and use of the State, covered by the water of the reservoir and so forming part of the canal works, since 1841, nearly sixty years. No objection has to this time been made by the United States, owner of the land and interested in the maintenance of the canal. Under such circumstances, between private parties so situate, a presumption of appropriation of the land to such uses would arise. It would seem by analogy of reasoning, though time does not run against the government and such presumption could never become absolute to bar the government from right to reclaim the land, on such facts a presumption must arise that the land has been withdrawn from entry until affirmative action is taken by the government asserting its dominion over the land and opening it to entry or looking toward its disposal in some other manner.

It appears that this and other lands, by a pencil note on the plats of the public survey, were indicated to be covered by the waters of "St.

Mary's Reservoir for canal from Dayton to the Miami of Lake Erie." (John C. Turpen, 5 L. D., 25.)

The fact that the land in question has for nearly sixty years been occupied by the State of Ohio for the uses of a reservoir site, and was made part of its said canal works, in which the government is interested-all of which was done with knowledge and acquiescence of the land department, the officers of which noted the fact on the platsshow that these lands are not of the character subject to disposal under the homestead law, which includes in its provisions only "unappropriated public lands."

Your office decision is affirmed.

SCHOOL LANDS-ADJUSTMENT-INDEMNITY-SURVEY.

STATE OF FLORIDA.

Lands within a confirmed private claim in Florida have been "disposed of by the United States" within the meaning of section 2275, Revised Statutes, as amended by the act of February 28, 1891, and the State is therefore entitled to indemnity for sections sixteen included within such claim and thereby lost to its school grant.

The lines of the public survey may be extended or protracted over a confirmed private land claim for the purpose of ascertaining the amount of school land lost to the State by reason of sections sixteen being included within the limits of such claim.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) July 20, 1900.

(G. B. G.)

This proceeding had its beginning in the application of B. F. Hampton, State selecting agent for school lands in the State of Florida, asking that a survey be ordered of certain lands in said State embraced in the private land claim of one Collin Mitchel and known as the "Forbes Purchase," to the end that the loss to the school grant of said State by reason of said claim may be ascertained and satisfied by indemnity selection. The matter is before the Department upon the appeal of the State from your office decision of May 17, 1900, denying the application and holding that there is no authority of law for protracting the township lines of survey over a confirmed private land claim, or for extending the public surveys over said lands.

This claim was confirmed to said Mitchel by the supreme court of the United States at its January term, 1835, and again at its January term, 1841, and patent issued therefor June 9, 1842. See Mitchel v. United States (9 Pet., 711; 15 Pet., 51).

The territory of Florida was acquired from Spain by the treaty of Washington, February 22, 1819, and by the act of March 30, 1822 (3 Stat., 654), a territorial government was established therein. This act made no provision for a reservation of lands for the support of schools, but by an act of June 15, 1844 (5 Stat., 666), entitled "An