use of a reservoir for furnishing water for live stock under the provisions of the act of January 13, 1897 (29 Stat., 484). The location of said reservoir and of the land necessary for its use, is as follows: of section in township, of range

I hereby certify that to the best of my knowledge and belief the said land is not occupied or otherwise claimed, is not mineral or otherwise reserved, and that the said reservoir is to be used in connection with the business of the applicant of

The land owned or claimed by the applicant within the vicinity of the said reservoir (within three miles) is as follows:

I further certify that no part of the land to be reserved under this application is or will be fenced; that the same shall be kept open to the free use of any person desiring to water animals of any kind; that the land will not be used for any purpose except the watering of stock; and that the land is not, by reason of its proximity to other lands reserved for reservoirs, excluded from reservation by the regulations and rulings of the land department.

The water of said reservoir will cover an area of

in township

acres, in

of section of range - of said lands; the capacity of the reservoir will gallons, and the dam will be feet high. The source of the water for said reservoir is

be

and there are no streams or springs within two miles of the land to be reserved except as follows:

The applicant has filed no other declaratory statements under this act except as follows:

No.

acres.

Total,

land office, area to be reserved
acres, of which Nos.
are located in said county.

And I furt her certify that it is the bona fide purpose and intention of this applicant to construct and complete said reservoir and maintain the same in accordance with the provisions of said act of Congress and such regulations as are or may be prescribed thereunder.

-, being duly sworn, deposes and says that the statements herein made are true to the best of his knowlege and belief.

Sworn to and described before me this [SEAL.]

day of

in the year 19-.

Notary Public.

NOTE.-When the applicant is a corporation the form should be executed by its president, under its scal, and attested by its secretary. When the applicant is not a corporation or an association of individuals, strike out the words in italics.

LAND OFFICE at

19-,

I, register of the land office, do hereby certify that the foregoing application is for the reservation of lands subject thereto under the provisions of the act of January 13, 1897; that there is no prior valid adverse right to the same; and that the land is not, by reason of its proximity to other lands reserved for reservoirs, excluded from reservation by the regulations and rulings of the land department. Fees, $ $

paid.

Register.

The description of the business of the applicant should include "a full and minute statement of the extent to which he is engaged in breeding, grazing, driving, or transporting live stock, giving the number and kinds of such stock, the place where they are being bred or grazed, and whether within an inclosure or upon uninclosed lands, and also from where and to where they are being driven or transported." Circular June 23, 1899.

STATE SELECTIONS-RESERVATION IN EXCESS OF GRANT.

INSTRUCTIONS.

Commissioner Hermann to registers and receivers, United States land offices, November 10, 1900.

Hereafter all lists of selections filed by the several States for lands granted in quantity must be accompanied with the certifiate of the selecting officer, or other duly authorized official, that the said selec tions and those pending, together with those approved, do not exceed the total amount granted to the State for the purpose stated.

This is to prevent the States from putting in reservation, on account of the several grants, a quantity in excess of the total amount granted. and you are directed to reject all lists proffered that do not affirmatively show that the selections are not in excess of the grant. Approved:

E. A. HITCHCOCK,

Secretary.

MEXICAN PRIVATE CLAIM-SECTION 7, ACT OF JULY 23, 1866.

JACKS. BELARD ET AL.

Where in the decree of confirmation the description of the boundaries of a Mexican private land claim is such that mistake as to identification of such boundaries on the ground is not inconsistent with entire good faith, a purchaser of the title of the claim, as confirmed, who receives patent for the lands included within the boundaries thereof as established by survey, has the right, under the seventh section of the act of July 23, 1866, to purchase from the government lands occupied by him as a part of said claim, to which no valid adverse rights had attached, but were by the survey excluded from said claim, though theretofore regarded as a part thereof, and were by the purchaser believed to be within the lines of his original purchase.

Departmental decision of December 15, 1899, 29 L. D., 369, in this case, recalled and

vacated.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) November 13, 1900.

(J. R. W.) December 15, 1899, the Department rendered a decision herein (29) L. D., 369), reversing your office decision of October 29, 1898, and David Jacks filed a motion for review thereof, which was entertained, June 5, 1900. Due notice of the motion was given, and it is now submitted on the additional briefs of counsel.

The local officers rejected Jacks's application to purchase, under section 7 of the act of July 23, 1866 (14 Stat., 218), lots 1, Sec. 2; 1 and 2, Sec. 3; 1, 2, 3, 4, 5, and 6, Sec. 10; 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, Sec. 11; and 1 and 2, Sec. 12, T. 16 S., R. 1 E., M. D. M., San Francisco, California, and allowed the applications of Belard and others to Enter said lands under the homestead laws. Upon Jacks's appeal to Your office, the action of the local office was reversed, his application allowed, and the homestead applications were rejected. The homestead applicants appealed to the Department. Said departmental decision reversed the decision of your office.

The ground of the departmental decision under review, as stated in the opinion (29 L. D., 369), is that

TI he mere fact that Jacks supposed certain lands would be included within such boundaries, or that it was the general belief that those lands were included in the grant, would give no right of purchase under the act, because the limits of his purchase are the boundaries described in his deed, which follows the decree, and he took by such purchase all the lands which might be ascertained upon final survey of the grant to be included within said limits, whether they were more or less than he supposed would be included within said boundaries. Had it been determined that the survey of 1869 diminished instead of enlarging the grant, Jacks would have taken all the lands within the limits of the final survey, although it might have included lands that he did not suppose he had purchased. The purpose of the act was to remedy, by purchase from the United States, a defect in a title supposed to have been derived from the Mexican grantee, or his assigns. There was no defect in this titl It was confirmed according to the boundaries described in the grant and

as set forth in the petition for confirmation. The purchasers received patent for the full quantity "according to the lines of their original purchase," and the provisions of the act cannot be extended to allow a purchase of lands outside of those limits merely because the purchasers supposed that such lands would be included within those limits.

Section 7 of the act of July 23, 1866, supra, provides:

That where persons in good faith, and for a valuable consideration, have purchased lands of Mexican grantees, or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts as required in this section, under regulations to be provided by the commissioner of the general land office. The decision under review treats the grant in question as having definite boundaries, and to this point attention will first be given.

Jacks's claim rests on his purchase of the Monterey Pueblo grant. No controversy is made as to the regularity of his purchase from the city. The boundaries of the grant as confirmed January 22, 1856, and described in the decree, were—

From the mouth of the river Monterey in the sea to the Pilarcitos; thence running along the Canada to the Laguna Seca, which is in the high road to the Presidio, thence running along the highest ridge of the mountains of San Carlos unto Point Cypres further to the north; and from said point, following all the coast, unto said mouth of the river Monterey, excepting and reserving therefrom such portions thereof as are held by individual owners by right or title derived from competent authority other than said pueblo or city.

After confirmation of the grant, February 9, 1859, the city conveyed to said Jacks and one D. R. Ashley (who subsequently conveyed to Jacks)

The lands belonging to the city of Monterey, granted by the Mexican government to, or set apart by the former authorities of California for the Pueblo of Monterey, and confirmed by the United States Land Commissioners for California to said city, including and comprising all the right, title and interest which said city has or may have, whether in possession or in expectancy, in and to the lands, and every part and portion thereof, bounded as follows: commencing at the mouth of the Salinas or Monterey River and running up that stream to the site of Pilarcitos, thence through the canon to the Laguna Seca; thence following the summit of the hills and the city line between Monterey and Carmelo to Point Cypres; and thence following the Pacific Ocean to the place of beginning, and containing all the lands by the authorities of the United States confirmed to the said city of Monterey.

There has been much controversy as to the location on the ground of the boundaries and calls of the grant and decree of confirmation. January 5, 1869, the U. S. surveyor-general for California transmitted to your office a plat of a survey under the act of July 1, 1864 (13 Stat.. 332), of the city lands of Monterey, “compiled from examined and approved field notes on file" in his office. This plat made "tract 2"

to embrace 2,431.4 acres. July 18, 1879, your office directed the surveyor-general

to make an investigation and

ascertain and represent by sketch upon the official plat the highest ridge of mountains, from the Laguna Seca to Point Cypres, so as to show its direction and relation to tract 2.

January 21, 1880, the surveyor-general filed his report, with testimony taken and a topographical map, upon consideration of which, March 10, 1880, your office decision disapproved of the plat reported in 1869 and directed a new survey of the tract. Such survey was made and reported to your office, and approved by your office decision of September 25, 1886. This survey reduced the area of said "tract 2" to 1,650.99 acres, a less quantity by 780.41 acres. An appeal was taken from that decision by the city and by said Jacks, its grantee, and your office decision was modified, October 4, 1887 (Pueblo of Monterey, 6 L. D., 179), and a new survey ordered, which was made and approved (Pueblo of Monterey, 12 L. D., 364), and patent issued thereon.

The present applications of Jacks and of the homestead claimants are for a part of the lands so in 1869 included in the survey of the pueblo lands and later excluded therefrom. The township plat of survey of T. 16 S., R. 1 E., approved October 5, 1872, shows "tract 2" of the pueblo lands to include the lands Jacks applies for, and on that plat it is noted that they were "located by the U. S. surveyorgeneral in 1859" as part of the pueblo lands of Monterey.

It cannot be said that the lines, or boundaries, of the grant were "definite," in the sense that they were readily determined beyond reasonable liablity of honest error in location. The line lay along a ravine to a dry lagoon in a road, and thence along the highest ridge of the mountains of San Carlos to Point Cypres. There was no course or distance given for the boundary from the dry lagoon to the summit. of the ridge. A ravine, dry lagoon, and summit of a ridge, are not definite objects, in a country where such objects are common features of the topography, until the particular objects intended are authoritatively determined. There appears in this particular case to have been two dry lagoons, one located about a mile west and south of the first" (6 L. D., 188). There were also two ridges of mountains, one of which was higher by two hundred and twenty-two feet than the other, though not a watershed. The fact that a government surveyor in 1859 had located the boundaries to these pueblo lands so as to include the lands in question, and that a subsequent survey, disapproved March 10, 1880, did so, show that mistake as to identification of the boundaries of the grant was not inconsistent with entire good faith.

66

No force can be given to the fact that had the latter survey included more land in the finally determined boundary, such greater quantity would have inured to the claimant's benefit. Whatever proved to be within the ascertained boundaries, he would take as part of the grant,