Co., 128 U. S. 674, 683 (9 Sup. Ct. Rep. 195, 199); Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 143 U. S. 394, 404, 424 (12 Sup. Ct. Rep. 543, 545, 553); SulAivan v. Mining Co., 143 U. S. 431 (12 Sup. Ct. Rep. 555); Brownfield v. Bier, 15 Mont. 403 (39 Pac. Rep. 461), and other authorities there cited."

Sec. 701. Mining claims-Miscellaneous notes. There is no statute prohibiting one who has made a valid location of a mining claim, but who has not received his patent, from giving to another a bond for title to a part of the claim in order to settle a dispute between them concerning conflicting locations. Montana Min. Co. v. St. Louis Min. & Mill. Co., 20 Mont. 394 (51 Pac. Rep. 824). Particular evidence held to show a sufficient prima facie title, to entitle one to maintain an action for the value of ore alleged to have been wrongfully taken from his mining claim. Wakeman v. Norton, 24 Colo. 192 (49 Pac. Rep. 283). Const. Choctaw Nation, art. 7, § 18, construed and applied-extent to which discoverer of mine can work it. Mc Curtain v. Grady, Ind. Ter. W. Rep. 65).

Sec. 702.

(38 S.

Mining claims-Statutes amended and new statutes. Cal. Laws 1897, act Mar. 27th, prescribing manner of locating mining claims, is repealed by Laws 1899, p. 148. Ida. Laws 1899, pp. 237-240, makes general provisions concerning the location and working of mining claims, amends Rev. Stat., §§ 3100, 3101, 3103-3105, and repeals §§ 3102, 3120-3122. For amendment of this statute, see Laws 1899, p. 440. Nev. Laws 1897, act Mar. 16th, §§ 2, 13, 14,— location and relocation of mining claims-amended and new sections added, Laws 1899, p. 93. S. Dak. Comp. Laws, § 1999-location of mining claim-recording claim-amended, Laws 1899, p. 146. S. Dak. Comp. Laws, §§ 1998, 2001, 2003 -amount of work to be done before filing location certificate -amended, Laws 1899, p. 148. Utah has a new statute regulating the manner of locating and recording mining claims, and Rev. Stat., §§ 990, 1495-1506, 1537 are repealed. Laws 1899, pp. 26-30. Washington has a new statute regulating the manner of locating and holding mining claims. Laws 1899, p. 69.

Sec. 703. Swamp and tide lands- Miscellaneous notes. Act Cong. Sept 28, 1850, granting swamp and overflowed lands to the states, was a grant in praesenti, and the act of the general assembly of Iowa, 1853, vested the title in the same manner in the respective counties. Smith v Miller, 105 Ia. 688 (70 N. W. Rep. 123). The act of Con gress, Sept. 28, 1850, granting swamp lands to the states i construed to be a grant to the state with full power to dispose of the land and to make application of the proceeds so far as necessary to secure the object specified. No person except the United States can question the disposal made of these lands or their proceeds made by the legislatures of the several states Kings Co. v. Tulare Co., 119 Cal. 509 (51 Pac. Rep. 866) Citing, American Emigrant Co. v. Adams Co., 100 U. S. 61 Mills Co. v. Burlington & M. R. Co., 107 U. S. 557 (2 Suj Ct. Rep. 654); Hager v. Reclamation Dist., 111 U. S. 764 (4 Sup. Ct. Rep. 663); U. S. v. Louisiana, 127 U. S. 182 (8 Sup. Ct. Rep. 1047). Cal. Stat. 1855, p. 189; Stat. 1858 p. 198; Stat. 1868, p. 507; Stat. 1873-74, p. 770; Stat. 1891, p. 243, construed and applied-sale of swamp and overflowed lands-custody and ownership of funds. Kings Co. v. Tulare Co., 119 Cal. 509 (51 Pac. Rep. 866). Mo. Rev. Stat. 1889, $ 2398, 6515, construed and applied-sale of swamp lands by county-validity of commissioner's deed. Hall v. Gregg, 138 Mo. 286 (39 S. W. Rep. 804). Where an application to purchase tide lands is amended so as to meet the objections on account of which the land commissioner rejected it, the amended application should be considered as relating back to the time when the application was first tendered. Johnson v. Woodworth, 18 Wash. 243 (51 Pac. Rep. 375). Cal. Act, April 4, 1870, amending Stat. 1867-68, p. 507, so as to exclude from its operations all the swamp and tide lands within two miles of "any town or village," applies to cities. Klauber v. Higgins, 117 Cal. 451 (49 Pac. Rep. 466). Wash. Laws 1895, p. 549, §§ 52, 65, 70, construed and applied-sale of tide lands -rights of first applicant and occupant of improved lands. Oliver v. Dupee, 16 Wash. 634 (48 Pac. Rep. 351). Wash. Laws 1895, p. 561, § 82, construed and applied right of applicant to purchase tide lands to appeal from decision of land commissioners; Wash. Const., art. 15, § 3; Laws 1895,

p. 550, § 54, construed and applied-rights of municipal corporations to locate and extend their streets over tide lands. Town of Ilwaco v. Ilwaco Ry. & Nav. Co., 17 Wash. 652 (50 Pac. Rep. 572).

Sec. 704.

Town site lands-Miscellaneous notes. Under the town site act, the probate jndge holds the legal title to the bed of a non-navigable stream, and where such a stream is named as a monument in a conveyance by him, the grant extends to the center of the thread of the stream as the true boundary. Hanlon v. Hobson, 24 Colo. 284 (51 Pac. Rep. 433). One claiming under a deed referring to a map of a town, the streets, lanes, avenues and alleys marked on which had been previously conveyed to the town by a probate judge, cannot assail the authority of such judge to make his deed. where he was not an occupant of the land at the time the the town site was entered and had never succeeded to the right of an occupant at that time. Laughlin v. City of Denver, 24 Colo. 255 (50 Pac. Rep. 917). Particular case in which title claimed under a conveyance by a probate judge as a town site, is held to prevail over a void tax deed. Marysville Inv. Co. v. Holle, 58 Kan. 773 (51 Pac. Rep. 281). Town site trustees appointed under the act of Congress of May 14, 1890, had no power to execute a deed to undisposedof lots in a town site to the city, for public use as a site for public buildings, while applications of persons for deeds by virtue of occupancy were pending; and where it appears that a deed was made while an appeal was pending from a decision of the town site trustees adverse to the applicants, and before the final decision in the case was made by the secretary of the interior, and prior to an order of the secretary of the interior, or any action tantamount thereto, setting aside the lots for public use as a site for public buildings, a deed to the lots made by the trustees to the city for such pur. pose is held void. Under the provision of the town site law which allows a city to acquire undisposed of lots for public use as sites for public buildings, the city acquires no right to the use and occupancy of the lots until the secretary of the interior has directed that the lots be reserved for such purpose for the city, or has executed a proper conveyance, or

directed it to be executed by the town site trustees, to the city for such purpose. The right of a city to use and occupy lots in a government town site attaches from the time the secretary of the interior directs that the lots be set apart or reserved for public use as sites for public buildings of the city; and it is held that rents as damages, by an occupant thereof unlawfully dispossessed by the city could only be recovered to the time of the secretary's order that the lots be reserved for such public use, and not to the time the city received the trustees' deed to the lots, made in pursuance to such order. City of Oklahoma City v. Hill, 6 Okla. 114 (50 Pac. Rep. 242).

notes.

Grants to railroads Miscellaneous

Sec. 705. A railroad company may acquire a right of way under Act of Congress, March 3, 1875, over lands which the Great and Little Osage Indians ceded to the United States by the second article of the treaty concluded Sept. 29, 1865. Rierson v. St. Louis & S. F. Ry. Co., 59 Kan. 82 (51 Pac. Rep. 901). Where lands granted as a right of way to a railroad under this statute embrace lands to which another has made an incomplete homestead entry, the grant to the company from the government operates as a donation of all its interests in the lands embraced in the grant upon the approval of the articles of incorporation and map of definite location subject to the contingency of the homestead claimant perfecting his title; and, if he fail to do this, immediately upon his abandonment a perfect title accrues to the railroad company, as against the United States and any person who had not then a possessory right to such lands. After such abandonment a third party cannot make a homestead entry on such lands. Alexander v. Kansas City, Ft. S. & M. R. Co., 138 Mo. 464 (40 S. W. Rep. 104). The grant of lands to the state of Missouri by Act Congress Feb. 9, 1853 (10 Stat. 155), is construed as a grant in praesenti, giving the state absolute power to sell the lands acquired thereunder, and a railroad company to whom lands has been conveyed under Mo. Laws 1855, p. 314, may mortgage such lands to the state to secure the payment of its construction bonds. Mo. Laws 1856-57, p. 85, construed and applied. Wilson v. Beckwith, 140 Mo. 359 (41 S. W. Rep. 895). 18 U. S. Stat. 482, pt. 3, construed and

applied-location of railroad right of way upon public lands -filing by the railroad company of its articles of incorporation and profile of its road. Rio Grande W. Ry. Co. v. Telluride Power-Trans. Co., 16 Utah 125 (51 Pac. Rep. 146). Lands lying beyond the tier of townships adjoining those through which the right of way of a railroad runs, are not "adjacent " within the meaning of an act of congress granting such right of way and giving the company permission to take from the public lands adjacent thereto, stones, earth, water and other materials required for the construction of the railway. Hamilton, J., dissenting. United States v. Bacheldore, (48 Pac. Rep. 310). Tex. Const., art. 10, § 6; Laws 1870, Act. Aug. 15, construed and applied-right of the Houston & Texas Central Ry. Co. to land grant, Houston & T. C. Ry. Co. v. State, 90 Tex. 607 (40 S. W. Rep. 402). Tex. Laws 1882, Act April 22, construed and applied-repeal of statutes granting lands to railroads-legislative power. Thompson v. Baker, 90 Tex. 163 (38 S. W. Rep. 21).

N. M.

Sec. 706. Preemption of public lands for homestead. In order for lands to be exempt from preemption on account of there being situated thereon known salines or minerals, under U. S. Rev. Stat., § 2258, the existence of such salines or minerals must be known at the time of the entry. United States v. Blackburn, Ariz. (48 Pac. Rep. 904). Following the rule that the right given by U. S. Rev. Stat., § 2306, to a soldier who had theretofore entered under the homestead laws less than 160 acres of land, to enter enough more to make up 160 acres, is assignable before entry, it is held that a soldier entitled to enter land under this statute may confer the right on another for a valuable consideration by the execution of an irrevocable power of attorney. Montague v. Mc Carroll, 15 Utah 318 (49 Pac. Rep. 418). The provision of § 13, act of Congress, March 2, 1889 (25 Stat. 1005), “That until said lands are open to settlement by proclamation of the president no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of such lands, or acquire any rights thereto,"-is applicable to honorably discharged Union soldiers to the same extent as it is to all other

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