owner of the SE. † of the SW.

of Sec. 7, E.

of the NW. 4, and lots

of the NE. 1, SW.

1 and 2, Sec. 18, T. 12 N., R. 17 E.; and the N. and NE. 1, and lots 1, 2, 3, and 4, Sec. 13, T. 12 N., R. 16 E., W. M., North Yakima land district, Washington, and that patent embracing said land may be legally issued to the Bishop of Nesqually, in trust for the said church.

The claim of the church is based upon the act of March 2, 1853 (10 Stat., 172), entitled "An act to establish the territorial government of Washington," which act contains a proviso in the first section as follows:

That the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in said Territory, or that may have been so occupied as missionary stations prior to the passage of the act establishing the Territorial government of Oregon, together with the improvements thereon, be, and is hereby confirmed and established to the several religious societies to which said missionary stations respectively belong.

Township 12 N., R. 17 E., was surveyed between June 24, and July 4, 1867, and the plat of survey was approved by the surveyor-general October 27, following, and your office decision states that the mission claim is not laid down upon the plat nor mentioned in the field notes pertaining to said survey.

Township 12 N., R. 16 E., was surveyed between November 2 and 6, 1872, and the plat of survey was approved by the surveyor-general July 16, 1873.

Your office decision states that the mission improvements are mentioned in the field notes of this survey as being on the south side of section 13, and are shown by the plat to be on lot 1, of said section.

On November 15, 1878, the right Rev. A. M. A. Blanchett, bishop of Nesqually, filed an application on behalf of the Roman Catholic church for the issuance of patent to him, as trustee for the church, for lands embraced in the St. Joseph Catholic Mission Station, the same being described by metes and bounds, evidently intended to embrace about six hundred and forty acres, including the land covered by the mission. buildings.

This application was supported by affidavits alleging that the mission was established prior to and existing at the date of the passage of the act of March 2, 1853 (supra).

Prior to the filing of this application claims had been filed under the homestead and pre-emption laws embracing nearly the entire tract covered by the church's application. On some of these claims proof had been made and final entries allowed.

On August 20, 1883, Aegiduis Junger, the then bishop of Nesqually, relinquished the claim of the church to certain lands covered by its application which lands were embraced in the entries of one Timothy Lynch and Antony Herke. Acting upon said relinquishment patents issued upon said entries.

The claim of the Northern Pacific Railroad company to the portion of the land covered by the church's application, designated by odd numbers, is based upon the fact that said lands are within the primary limits of its grant, as shown by the map of general route of the branch line filed June 11, 1879, and the definite location shown upon the map filed May 24, 1884.

On January 23, 1887, the company listed on account of its grant, the SW.SE. and SE. SW., Sec. 7, T. 12 N., R. 17 E.; the W. of the NW. and lots 3 and 4, Sec. 13, T. 12 N., R. 16 E.

On October 1, 1878, Jean Baptiste Raiberti, a Catholic priest, made homestead entry for the E. NW. and lots 1 and 2, Sec. 18, T. 12 N., R. 17 E., against which Charles Kinne filed affidavit of contest on September 19, 1887, alleging abandonment, upon which trial was had October 27, 1887, the decision of the local officers being in favor of the contestant.

The papers were forwarded to your office January 27, 1888, but before any action was taken thereon, to wit, on October 26, 1888, Raiberti relinquished his entry and the same was canceled upon the records. It is by reason of said contest that Kinne on July 18, 1889, applied to make homestead entry of said land claiming the rights accorded a successful contestant.

On June 27, 1878, Joseph M. Caruana filed a pre-emption declaratory statement embracing lots 1, 2, 3, and 4, Sec. 13, T. 12 N., R. 16 E. and August 29, 1879, he made proof and payment for the land.

On October 26, 1888, he relinquished his claim to the land, not wishing to antagonize the claim of the church, with which he appears to have been connected, and upon said relinquishment your office decision cancels his entry.

On June 11, 1889, Smith applied to enter said land and it is on account of said application that he claims the right now urged before this Department.

It is clear that the claim of the church, if entitled to the benefits of the act of March 2, 1853, is superior to the claim asserted by the other parties, and it is first necessary to determine the rights of the church under its application.

On March 26, 1889, Bishop Junger made formal application for the issuance of patent for the lands embraced in the mission application and gave notice, by publication, of his intention to submit proof to establish the validity of the mission's claim.

At the appointed time all parties appeared, the only testimony offered being that on behalf of the mission's claim, which consisted largely of the depositions of persons in distant places, taken under commissions duly issued.

The testimony is extremely meager and being generally of persons connected with the church is presumed to be the most favorable that could be offered in support of its claim.

It appears that two priests, acting under the direction of the bishop of Nesqually, in April, 1852, at the request of the Yakima Indians, established a mission upon the land in question, which seems to have been regularly maintained for the purposes intended from that time until 1855, when an Indian war occurred and the mission buildings were burned.

It was not until about 1866 that the mission was again established, when new buildings were erected upon the site of those destroyed in 1855 and the place seems to have since been continuously used as a mission station to the date of the hearing.

There does not appear to have ever been any survey of the mission claim approved by the surveyor general, but the church claim was duly filed with the register and receiver and the surveyor general as early as June, 1868, and in 1871 the register of the district land office issued a certificate setting forth "that all necessary papers to complete the title of the St. Joseph Mission on the Attanum river, had been filed in this office, and all that is wanting is the survey of the land," etc.

In 1872, prior to the survey of the township, the bishop of Nesqually had a survey made of the mission claim, and prior to the approval of the official plat of survey filed a copy of the same accompanied by the field notes in the office of the surveyor general, with a request that the case be delineated upon the official plat of survey when filed. Said papers seem to have been mislaid in the office of the surveyor general, and were not discovered until after the presentation of the application for patent in 1878 by Bishop Blancheet.

It would seem from the showing made that the church has, with all diligence, pressed its claim, and that it has not lost its rights through laches.

It is urged by the appellants that said church is not entitled to the benefits of said act for the reason that it is not a society within the meaning of said act.

From a review of the matter, however, I am clearly of the opinion that the church is a proper beneficiary under said act, and it is but necessary to determine the extent of the claim intended to be confirmed by the act referred to.

It seems to have been the purpose of the church to claim originally about six hundred and forty acres, being the limit named in the act, and your office decision is of the opinion that the act was intended to confirm to the religious societies that amount of land, if free from other claim, without regard to the actual occupancy of the whole of the same, and in support thereof refers to the decision of the district court in the case of Dalles City v. The Mission Society of the Methodist Episcopal church (6 Fed. Rept. page 356).

I have carefully examined said opinion, and while it is true that the court therein expressed the opinion that the grant made to the mission

society ought to be construed to embrace six hundred and forty acres at each mission station occupied by them, yet the same was pure obiter as the decision of the court was against the mission upon the ground that it was not occupying any portion of the land claimed at the time of the passage of the act of August 14, 1848 (10 Stat. 323), under which it made claim.

The act of August 14, 1848, supra, provided for a territorial form of government for Oregon, out of which the Territory of Washington was carved, and the language confirming the religious societies for mission purposes to lands occupied by them in both acts, is identical.

The extent of the grant made by the act of 1848 has before been considered by your office in the matter of the claim of the St. James Catholic Mission of Vancouver, Washington, in which it was held that the area for which the mission can claim title depends upon the extent of its occupancy, and as it was shown in that case that the occupancy only included the church and the land upon which it stood, the survey representing that area was approved (2 L. D., 452).

From a careful consideration of the matter, I am of the opinion that this latter view of the law is correct and that it was only intended to confirm to the religious societies on account of their mission claims, such lands as were shown to have been actually occupied by them in the maintenance of such missions.

In the case under consideration the testimony shows that in 1883 the church had a log house or chapel used for worship; a log house used as a residence for the priests, and a granary; that there was an enclosure maintained, the extent of which is not clearly shown, though one witness swears that he can point out the place of the old fence, and that it embraced about seventy-five acres, thirty or forty of which were cultivated to vegetables and grain.

The testimony of the priests is to the effect that the Indians granted them many hundred acres to the north of the river but that there were no boundaries at the time actually established.

As before stated, your office decision expresses the opinion that the church is entitled to claim to the full extent of the six hundred and forty acres embracing the mission lands, provided the same were free at that time from other adverse claim, and although no survey was ever approved of said claim by the surveyor general, yet your office deci sion adjusted the case to the lines of the public survey, limiting the claim as set forth in the opening recitation of this opinion.

From a careful review of the entire matter, I must reverse your office decision and hold that the confirmation made by the act of 1853 on account of mission claims, must be restricted to the land actually used and occupied in the maintenance of the same at the time of the passage of said act.

You will therefore cause an inquiry to be made in the best proper manner, to ascertain the lands actually occupied by the St. Joseph

1

Roman Catholic Mission on March 2, 1853, of which survey should be egularly made, and upon the approval of the same by the surveyor general, patent may issue thereon to the bishop, in trust for the church.

It is unnecessary to refer to the rights of the other parties to this controversy further than the direction that their claims, so far as in conflict with the award herein made on account of the Mission claim, must be canceled.

Herewith are returned the papers in the case for your further action in accordance with the directions herein given.

PRIVATE LAND CLAIM-SURVEY.

RANCHO BUENA VISTA.

Quantity must control in the survey of a grant of quantity, even though all the monuments designating the boundaries thereof are not found in such survey. Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.)

9, 1894.

(J. I. P.)

On June 14, 1893, by letter of that date, your office transmitted to this Department a copy of Deputy Surveyor Treadwell's report to the surveyor general of California, with diagram, a copy of that officers supplemental instructions to said deputy, together with a copy of his letter to your office, relative to the survey of the Rancho Buena Vista, in San Diego county, California. And the inquiry is made, whether it would be proper for your office to approve the supplemental instructions of the surveyor general for the closing of the lines of survey as indicated, to wit: "by a direct line from said red hill to your point of beginning."

Also on September 15, 1893, by letter of that date, your office transmitted for the consideration of this Department in connection with the matter of said survey, and the supplemental instructions to Deputy Treadwell, a letter, addressed to the Hon. W. W. Bowers, House of Representatives, and by him referred to your office; said letter being without date and signed by one J. W. Strickler.

In addition to your said office letters, and enclosures transmitted therewith, there have been filed in the case numerous letters, advisory and otherwise, from parties interested in the location of the lines of said grant, and on the part of the grant claimants a carefully prepared and voluminous printed brief, replied to by a brief prepared with equal care by the attorneys for numerous settlers, whose ideas as to where the lines of said grant should be located differ very materially, it might be said radically, from those of the grant claimants on the subject.

Some of the letters filed are very severe in their strictures upon the conduct of the surveyor-general during the progress of said survey, so