"That authority existed for the land department to reserve these lands to the uses of the canal admits of no serious question."

"When Congress, under the act of 1827, granted the alternate sections of the state throughout the whole length of the public domain, in aid of the construction of the canal, it also granted by a plain implication the right of way through the reserved sections, for it cannot be presumed that the government was granting all these alternate sections to the state for the purpose avowed, and yet meant to withhold the right to pass through the sections reserved to the United States along the route of the proposed canal."

"There can be no question of the power. It was incident to the general purpose. A reservoir and works for storing and reserving water to the canal are as essential to its maintenance and operation as are water stations and machine shops to the operation of a railroad.”

"Where such reservoirs and works should be located, their special character and extent, and what lands should be taken, in the very nature of the case, are questions that must necessarily be determined by the authority constructing the canal, into the determination of which the topography of the country, its hydrographic and other features, must enter and to some extent control. The state was that authority. Subject to approval of such appropriation by the United States, where public lands were affected, these powers were granted to the state and its officers by necessary implication as incidental to the general purpose. The fact that the reservoir was built, that it is maintained, that these lands are beneath its waters, are conclusive proof of the exercise of the power, and are notice of that fact to all the world.

"This occurred almost sixty years before the application of Longnecker, and no right of his existed in the land or was affected. The United States, as owner, and the state were the only parties concerned. It did not concern the applicant. The appropriation was as against a subsequent applicant to enter the land."

"Sixty years or more ago, at the time when the State of Ohio was sparsely populated, and vast tracts of public domain lay open to any purchaser, at the minimum price, the state, at great expense of money, made these lands an essential part of a great public work, deemed then to be of such public concern that the United States made large grants to aid its construction, and reserved to itself in its operation and maintenance for its own use and convenience. The land is still an integral part of that public work. The work is still maintained. It has been an efficient factor in the development of the industries, prosperity and social evolution of the region it traversed and served. Its practical importance has declined by improved means of railway transportation, but it has not been abandoned. Whether it shall be abandoned, obviously rests in the determination of the State of Ohio, on consideration of

public interest, not in the will of the applicant upon his consideration of personal profit."

“It cannot be contended that the United States has not known of, and has not acquiesced in, the appropriation of the land. It is noted on the books of the General Land office, but, if it were not so, a public work of this character, once greatly more important and useful than now, is part of national and state history. But the knowledge and acquiescence of the land department were not constructive merely and do not rest on mere inference."

"The history of the case shows a sufficient reservation in fact. But if it did not, a presumption of such reservation must from the fact, at this length of time, arise. It is not questioned by the United States, and cannot be questioned by one having no vested interest in the lands at the time of their appropriation. After their appropriation, no interest can be acquired until the lands are restored to entry."

"But if this were not the case, it does not follow that the applicant has a right to select these lands regardless of public interest, and to the destruction of the public work of which these lands now form an integral and essential part. Such would not be the case where such use of public land has been made innocently by a private party. In administration of the public land laws the land department may, and in a proper case should, recognize and protect equitable rights arising from accident, mistake, or fraud, as courts would do between a private owner and one to whom, with his permission and silence, an equity has arisen. When there is an equity in favor of a third person in the actual occupancy of public land, the Secretary of the Interior may refuse the application of another to enter the same land, and hold the title in the general government until the person in possession can obtain title, either under the provisions of existing law, or seek a relief by special act of Congress."

"It is most strenuously insisted by counsel, however, that the department is wrong in assuming that the state has any equities to be protected. This canal was built many years ago when close business methods were not followed, when the public lands were of small value. The Board of Public Works may have been mistaken as to their powers, or as to the fact that title to these lands had not been acquired and remained in the United States. With the acquiescence of the government the status of these lands had remained unchanged for a period of sixty years.'

"The state having been in peaceable possession of these lands for this term of years, exercising control over them, and having placed an improvement on them at great cost, the department cannot but say there is an equity in favor of the state as against Longnecker.”

"The motion is therefore denied. The departmental decision is adhered to."

SWAMP LANDS.

We regret to state that the application filed by this department for an accounting of swamp lands that inured to the state of Ohio under the swamp land act of September 28, 1850, and which has been pending for hearing before the Secretary of the Interior on an appeal from the decision of the Commissioner of the General Land Office, rendered May 2, 1899, has resulted in a rejection of most of the claims of the state for both cash indemnity and land scrip.

This Commission is not willing to accept, as final, the result of a hearing if such it may be termed, where the decision rendered is contradictory to both the facts and the law that should govern in making such a decision. Nor are we inclined to subscribe to the rules of practice that prevail in the Interior Department, since the state was not permitted to appear, through its legal adviser, the Attorney General, before the Secretary of the Interior, in order to combat the arguments of the department's attornies; neither was this department nor the Attorney General ever furnished with copies of such argument. The Honorable Secretary simply affirmed the questionable decision of the Commissioner of the General Land Office, supposing that the statements set forth in that decision comprised the facts, which was not the case as we shall endeavor to show.

As a preliminary to the decision rendered by the Commissioner of the General Land Office, he stated that "For the purposes of this decision, it is not deemed necessary to critically compare the lists submitted with the files and records of this office, and it is assumed that the dates of the entries and locations given by you are correct."

In regard to 7,540.33 acres sold by the United States at the double minimum price of $2.50 per acre, being what are known as alternate sections of the canal lands, he held them to be reserved lands under the provisions of the act of May 24, 1828.

In this we think he is greatly in error, as the provisions of that act reserving the alternate sections, for a distance of five miles on either side of the proposed canal, was not a reservation of the land, such as Indian and Military reservations, and reservations for public buildings, but was simply a withholding of it from public entry until it could be determined which sections the state would select, and as there was no choice, there was little more required than entering the selections made by the state upon the tract books of the General Land Office, but the lands were withheld from sale until after the canal was constructed, and were proclaimed as public land, subject to entry, September 2, 1844.

There was no gratuity on the part of the United States in granting these alternate sections for five miles on either side of the canal to the State of Ohio. The State of Ohio was constructing a canal from Cincinnati to Dayton, and the State of Indiana proposed to build the Wabash and Erie Canal, as provided for in a grant of land from the

United States to said state, 292,223 acres, being the alternate sections along that portion of said canal in the State of Ohio.

The State of Ohio proposed to Congress that it would extend the Cincinnati and Dayton Canal to intersect the proposed Wabash and Erie Canal, provided a grant of the alternate sections for five miles on either side of the canal was made to the state. The agents of the state represented to Congress that the United States could reimburse itself by advancing the price of the alternate sections from $1.25 to $2.50 per acre, and on May 24, 1828, Congress passed an act granting 438,301 acres to aid in the construction of the canal from Dayton to the Maumee River, and on February 1, 1834, the State of Indiana being unable to build the canal provided for in the grant to said state, transferred its grant to the State of Ohio, and the transfer was approved by Congress February I, 1834.

Both these acts of Congress stipulated that in case the state failed to complete such canals, it should pay the United States for these lands at the rate of $1.25 per acre.

The state completed the canals, and the United States sold its alternate sections for $2.50 per acre, and thus did not loose a single dollar by the transaction whereby it assisted the state in constructing the canals.

These lands were in no sense reservations, especially after they were proclaimed as open to entry as public lands in 1844, and since the United States has lost nothing in the transaction, why should it seek to withhold these lands from the provisions of the swamp land grant of Septembber 28, 1850?

The Commissioner held that the 8,098.37 acres located with warrants or scrip in the alternate sections were similar to those sold for cash at $2.50 per acre and ruled accordingly.

The language of the act does not admit of any such construction. It recites that “The whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby granted to said state."

This act was passed for the benefit of the State of Arkansas, but its provisions were extended to all the states by the act approved September 28, 1850.

Swamp and overflowed lands could not be reserved for any useful purposes to which the United States might wish to put them, even if they happened to fall in the alternate sections of some prior grant, and Congress never intended that any portion of them should be withheld from the States. If the state had never built its canals, all of this class of lands, included in our list of 7540 acres, would have passed to the state under the act.

In all fairness we ask why the state is denied the benefits of the act, so far as it pertains to this class of lands, simply because it expended $15,000,000.00 on public improvements.

It seems to us that no one imbued with the spirit of fairness would insist on such an absurd proposition if thoroughly conversant with the facts.

In regard to 4452 acres of marsh lands along Lake Erie that were sold in 1882 for $15,257.89, the Commissioner said:

"As to such tracts it is sufficient to state that there is no provision of law for the granting of swamp land indemnity for lands sold or located subsequent to March 3, 1857."

The Commissioner casts a serious reflection upon some of his distinguished predecessors, for since 1882, the State of Ohio has received $29,027.76 as indemnity for swamp lands, no question being raised as to the date of sale, and the letters to the various governors of the state, accompanying warrants for various amounts, state that the warrants are for indemnity under the acts of March 2, 1855, and March 3, 1857, for land selected as swamp. We think the present Commissioner is wrong in his interpretation of these two acts, and that his predecessors were right.

Even if he were right, there are certain facts connected with the sale of these lands that would give the State an equity in them, even if the date for adjudication had expired.

These lands were not surveyed by the United States at the time the regular government surveys were made in that section of the state, for the reason that their swampy condition rendered it nearly impossible to make such surveys.

The surveyors approximated the distance between the east and west. section lines on the south and the margin of the lake on the north. And in making the plats, these lands were shown by producing northward, the north and south lines of the sections south of them, and the swamp portions were marked "Flag Marsh."

The state sought at various times to have these lands patented to it, but as no survey had ever been made, the various Commissioners, under one pretext or another, denied the requests, and nothing was done until 1882, when parties from Cleveland and Toledo sought to purchase them for a shooting preserve.

The land was sold to them after the state, through its swamp land Commissioner, had formally protested against the sale, claiming that the land should be patented to the state under the swamp land act of September 28, 1850.

The reply of the Commissioner of the General Land Office is worthy of remark.

He bluntly informed the Ohio Swamp Land Commissioner that if Ohio had any claims to the land in question, it could establish them in the courts, and the sale was completed.

These lands were swamp and overflowed, as contemplated in the act of 1850, and have continued so down to the present time.