denial of his appeal, yet if it is made to appear that he is justly entitled to relief, it may be granted under the Secretary's supervisory authority (Oscar T. Roberts, 8 L. D., 423); but in the case at bar, no showing is made. The application must therefore be denied. M'KEE SCRIP-LOCATION. EVAN T. WARNER. Land within the corporate limits of the city of Chicago is not vacant public land, and as such, subject to location with McKee scrip. First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 22, 1891. I am in receipt of the appeal of Evan T. Warner from your office letter of January 29, 1890, refusing his application to locate, within the corporate limits of Chicago, certificate No. 2 C, issued to George E. Billingsly, one of the heirs of William R. McKee, under the provisions of the act of Congress of March 1, 1889 (25 Stat., 1307). The original act granting to each of the orphan children of William R. McKee a quarter section of land was passed January 25, 1853 (10 Stat., 745), and provided that the same should be "located upon any vacant land of the United States, and to be located when and in such manner as the President of the United States shall direct. The scrip not having been located under this act, the act of March 1, 1889, supra, was passed to carry into effect the original grant, and provided that other certificates for those held by them should be issued to the surviving children and grandchildren of said McKee," which new certificates they may enter and locate for themselves upon any lands in satisfaction of said grant of the class described in the act to which this is an amendment." The class of land described in the granting act was "any vacant land of the United States." By several decisions of this Department, it has been held that land within the corporate limits of the city of Chicago was not vacant public land, subject to "any scrip location whatever." John Farson, 2 L. D., 338; Thomas B. Valentine v. City of Chicago, Copp's Public Land Laws, Vol. 2, page 1024. Your decision is therefore right, and is affirmed. PRACTICE-APPEAL-JURISDICTION. HENRY v. STANTON ET AL. An appeal from the Commissioner's decision removes the case from the jurisdiction of the General Land Office, and no authority exists in said office thereafter to consider a motion asking the dismissal of said appeal. First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 20, 1891. I have considered the case of Charles S. Henry v. John W. Stanton, Geo. H. Stanton, Wm. W. Stanton, Wm. F. Dean and Sarah A. McBrine, on appeal by the former from your decision of September 4, 1889, directing a hearing to determine his rights as against McBrine and John W. Stanton and refusing to suspend the entries of the remaining defendants on certain parts of Sec. 25, T. 21 N., R. 3 E., Helena, Montana land district. On December 4, 1889, counsel for J. W. Stanton, George H. Stanton and W. W. Stanton filed in your office a motion in which they ask, "The Commissioner to dismiss the appeal from his decision of September 4, 1889." They set forth certain reasons therefor and support the motion by an affidavit. I will not consider the grounds of the motion, because your office had no jurisdiction to pass upon such a motion. The appeal removed the case to the appellate court, and only the appellate court can pass upon the sufficiency of an appeal to it. You passed upon the motion, however, and overruled it: This was extra judicial. SCHOOL LAND-INDEMNITY SELECTION. HENDERSON v. MOORE. The State by accepting indemnity in lieu of a deficiency shown by the existing sur vey is divested thereby of all right to the basis thus used, and is not entitled to assert any claim thereto, where by a later survey the school section is found in place, and the rights of third parties have intervened. Acting Secretary Chandler to the Commissioner of the General Land Office, April 23, 1891. Under certain instructions in your office letter "K" of April 3, 1889, to the register and receiver at Lakeview, Oregon, C. A. Moore was allowed to make homestead entry, No. 1240, for the NW. of Sec. 36, T. 39 S., R. 24 E., in said land district. On April 29, 1889, F. A. Henderson filed a protest against the allow ance of said entry, claiming the land by purchase; in evidence of his title, he subsequently filed a copy of a deed, dated January 16, 1889, by which the board of commissioners for the sale of school, university and other State lands of the State of Oregon, convey to him the said quarter section and certain other tracts in Sec. 36, T. 39 S., R. 24 E., as school lands. This protest was duly forwarded to your office, and, on October 29, 1889, you rendered your decision, holding that the State's conveyance to Henderson was inoperative, and that the land was properly subject to the entry of Moore, whose entry should stand, subject to his compliance with the law. From this judgment Henderson appeals. This township was originally surveyed in 1875. By this survey subdivisions, to the extent of 5,477.69 acres, were thereon made. More than half of its contents were represented as covered by Lake Warner, in the eastern part, and about 5,500 acres in the northwestern part were left unsurveyed and described on the plat as "very high, rough and mountainous, and therefore unfit to be surveyed." This survey was approved January 3, 1876, by Surveyor-General Sampson of Oregon, and the map of the subdivisions was represented as strictly conformable to the original field notes. It was filed in the local office February 24, thereafter. On April 29, 1885, Z. F. Moody, governor and ex-officio land commissioner for Oregon, recommended and agreed to accept the north half of Sec. 10, T. 34 S., R. 34 E., said land district (320 acres), in lieu of the deficiency in school land caused by all of Sec. 36, in T. 39 S., R. 24 E., being taken up by Warner Lake. This list No. 3 was filed in the local office May 11, 1885. The township (39) was alleged to contain more than one half and less than three-fourths of a full township, and by sec tion 2276 of the Revised Statutes the State was thus entitled to ninehundred and sixty acres as a basis for school land. It was alleged that all of Sec. 16, with the exception of about fifty acres, was in place. This list was approved May 4, 1886, in approved list No. 2, conveying the title to the selected lands to the State. (R. S. 2449.) In the latter part of the year 1886, Special Agent Shackleford reported to your office that much of the so-called Warner Lake is dry land, upon which were settlers who desired to claim under the public land laws, while other portions of it are marsh. He reported that there was no lake to be found as located by the original survey; that the settlers charged that the survey as made was fraudulent. Accordingly, your office recommended, and this Department concurred therein (see Lake Warner, 5 L. D., 369), that a new survey be made to extend "throughout the length and breadth of what is termed Lake Warner." The new survey was accordingly made and approved June 1, 1888. By this resurvey the land, formerly returned as covered by Lake Warner, is shown to be swampy or subject to annual overflow, only four hundred acres thereof being covered by water. The area of the surveyed portion of the township by the new survey is shown to be 15,832.46; Sec. 16 contains 320 acres; Sec. 36 is subject to overflow, but contains 342.85 acres-being made fractional by the eastern boundary of the township. Including the land discovered by the new survey and the manifest area of the unsurveyed northwest, the township contains evidently more than 17,280 (three-fourths of a township), and this is shown to be of that class for which the State is entitled to claim 1280 acres of school lands, or two sections. (Sec. 2276 R. S.) These facts being developed by the new survey and the State having only obtained six hundred acres in place in section 16, and three hun. dred and twenty acres by selection, it is apparent that there is due the State for school purposes an additional number of acres to make up the amount of two full sections-1280 acres-for the fractional township. Such being the facts, the State officers executed the above mentioned deed, of January 16, 1889, purporting to convey portions of the recovered section 36 to Henderson, including the land in controversy, and it is insisted that the State has the superior right to section 36, because the new survey increased the area of the township so as to entitle the State to additional school land. It is further insisted that the State was, in the first place, misled by the return of the United States surveyor as to the character of the land embraced in what is known as Warner Lake and also as to its area; that your office erred in adjudging that any law existed that authorized the State authorities to select indemnity lands for said section 36, it being in place; and in adjudging that there was any law which authorized the approval of such selection; that it was error to adjudge the homestead entry of Moore valid, upon the ground that the State had been permitted to select indemnity for a deficit, which the records show did not exist. It is seen that by the old survey all of section 36 was covered by Lake Warner; and for this specific section, so lost to the school grant, the State, through the then governor, agreed to accept, and did accept, three hundred and twenty acres of other lands, in lieu of this deficiency. By this act all right of the State to the basis of the selection (the 36th section) was divested, and the land restored to entry. State v. Dent, 18 Mo., 313; Thomas E. Watson, 6 L. D., 71; State of California, 7 L. D., 270; Henry Wilds, 8 L. D., 394; and Thomas F. Talbot, idem, 495. It is evident that the first survey was erroneous, and but for that error the State would have taken the land in section 36 that was in place, but, having elected to take indemnity in lieu of said section, and the rights of third parties having intervened, it will be bound by its selection. Moreover, the State does not offer to surrender the land taken in lieu of the section for which the indemnity was granted, but suggests that "a demand should be made for a reconveyance of any selections made and improperly allowed." The lieu lands (presumably) have long since passed into the hands of innocent purchasers, so that it is practically out of the question to place the lands in statu quo. The plats of the original survey on their face imported a verity; its correctness was attested by the officers of the government. As such they were acted upon, both by the government and the State of Oregon; the State accepted other lands in lieu of such as were shown to be wanting from "natural causes," and, although a later survey showed such lands in place which before were described as covered by a lake, yet the mistake on the part of both the government and the State was mutual, and it is too late now to correct it-it is wholly impracticable. The State having received indemnity for the said section 36, the same is open to settlement and entry. After having received the land in lieu of said section, it had no right or title to the basis thus surrendered, and therefore its grantee, Henderson, by his said deed, obtained no title. It appears that on July 13, 1889, nearly six months after the attempted transfer of the lands in controversy to Henderson, the State authorities filed list No. 31 in the local office, assigning deficits in said township as a basis for 320 acres of indemnity. It is manifest that the State is entitled to additional indemnity for school lands in said township lost from the grant, and the regularity of its selection made July 13, 1889, should be examined with a view to the certification of the proper quantity to the State. But, having already received 320 acres as indemnity for said section 36, and subsequently applied for the balance on account of the enlarged area as developed by the new survey, the State can not legally claim the basis or any part of the same already surrendered. The land belonged to the government and was subject to entry, and the entry of Moore will be allowed to stand, subject to his compliance with the law. Your said office decision is accordingly affirmed. HOMESTEAD ENTRY-ACT OF JUNE 15, 1880. MATHER v. BROWN. The right of purchase under section 2, act of June 15, 1880, cannot be exercised by On October 28, 1879, Mary Brown made homestead entry of the NW. of Sec. 15, T. 1 S., R. 31 W., Oberlin, Kansas. On April 17, 1886, she made application to purchase said tract under |