subsequently made by the government which affect such rights. Hickman v. Jones (Neb.) 183 N. W. 980. Judicial notice of letter of instructions. The court will take judicial notice of a letter of instructions from the commissioner of the land office to the United States surveyor general regarding the resurvey it made under this section. Southern Pac. Land Co. v. Meserve (Cal.) 198 P. 1055. Land omitted from survey through mistake or fraud.-Where a portion of the public lands was erroneously omitted from a survey thereof as being under water, either because of a mistake or fraud of the surveyor, when in fact it was dry land, the Land Department, upon discovering the error, has power to cause the omitted land to be surveyed and to dispose of it. Jeems Bayou Hunting & Fishing Club v. U. S. (C. C. A. La.) 274 F. 18. § 4824a. (Act May 24, 1922, c. 199.) veyors. Surveys and resurveys; sur Surveying public lands: For surveys and resurveys of public lands, examinations of surveys heretofore made and reported to be defective or fraudulent, inspecting mineral deposits, coal fields, and timber districts, making fragmentary surveys, and such other surveys or examinations as may be required for identification of lands for purposes of evidence in any suit or proceeding in behalf of the United States, under the supervision of the Commissioner of the General Land Office and direction of the Secretary of the Interior, $650,000, of which such amount as may be allotted for work in Alaska shall be immediately available: Provided, That in expending this appropriation preference shall be given, first, in favor of surveying townships occupied in whole or in part by actual settlers and of lands granted to the States by the Act approved February 22, 1889, and the Acts approved July 3 and July 10, 1890, and to survey under such other Acts as provide for land grants to the several States and Territories, and such indemnity lands as the several States and Territories may be entitled to in lieu of lands granted them for educational and other purposes which may have been sold or included in some reservation or otherwise disposed of, except railroad land grants, and including the survey, appraisal, and sale of abandoned military reservations transferred to the control of the Secretary of the Interior, and other surveys shall include lands adapted to agriculture and lands deemed advisable to survey on account of availability for irrigation or dry farming, lands subject to disposition under mineral land laws where survey thereof is not otherwise provided for, lines of reservations, and lands within boundaries of forest reservations, and including such retracements and remarking of State boundaries as shall be found necessary in order to close the public land lines thereon. The surveys and resurveys provided for in this appropriation to be made by such competent surveyors as the Secretary of the Interior may select, at such compensation, not exceeding $200 per month each, as he may prescribe, except in Alaska, where a compensation not exceeding $300 per month each may be allowed such surveyors, except that the Secretary of the Interior may appoint not to exceed one supervisor of surveys, whose compensation shall not exceed $300 per month, and not to exceed ten surveyors who may be employed in a supervisory capacity, whose compensation shall not exceed $250 per month each, and per diem in lieu of subsistence when allowed pursuant to section 13 of the Sundry Civil Appropriation Act approved August 1, 1914, and actual necessary expenses for transportation, said per diem and traveling expenses to be allowed to all surveyors employed hereunder and to such clerks who are competent surveyors who may be detailed to field duty hereunder: Provided further, That the sum of not exceeding 10 per centum of the amount hereby appropriated may be expended by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, for the purchase of metal or other equally durable monuments to be used for public land survey corners wherever practicable: Provided further, That not to exceed $10,000 of this appropriation may be expended for salaries of employees of the field surveying service temporarily detailed to the General Land Office: Provided further, That not to exceed $50,000 of this appropriation may be used for the survey, classification, and sale of the lands and timber of the so-called Oregon and California railroad lands and the Coos Bay Wagon Road lands. (42 Stat. 558.) From the Interior Department appropriation act for the year 1923, cited above. Similar provisions are contained in prior acts. § 4824c. (Act June 15, 1922, c. 220.) Township surveys in New Mexico; settlement of small holding claims. In township surveys hereafter to be made in the State of New Mexico, if it shall be made to appear to the satisfaction of the deputy surveyor making such survey that any person has, through himself, his ancestors, grantors, or their lawful successors in title or possession, been in the continuous adverse actual bona fide possession, residing thereon as his home, of any tract of land or in connection therewith of other lands, all together not exceeding one hundred and sixty acres, in such township for twenty years next preceding the time of making such survey, the deputy surveyor shall recognize and establish the lines of such possession and make. the subdivision of the adjoining lands in accordance therewith. Such possession shall be accurately defined in the field notes of the survey and delineated on the township plat, with the boundaries and area of the tract as a separate legal subdivision. The deputy surveyor shall return with his survey the name or names of all persons so found to be in possession, with a proper description of the tract in the possession of each as shown by the survey, and the proofs furnished to him of such possession. Upon receipt of such survey and proofs the Commissioner of the General Land Office shall cause careful investigation to be made in such manner as he shall deem necessary for the ascertainment of the truth in respect of such claim and occupation, and if satisfied. upon such investigation that the claimant comes within the provisions of this section, he shall cause patents to be issued to the parties so found to be in possession for the tracts respectively claimed by them: Provided, however, That no person shall be entitled to confirmation of, or to patent for, more than one hundred and sixty acres in his own right by virtue of this section. All claims arising under this Act shall be filed with the surveyor general of New Mexico within two years next after the passage of this A ct, and no claim not so filed shall be valid. No tract of such land shall be subject to entry under the land laws of the United States: And provided further, That this Act shall not apply to any city lot, town lot, village lot, farm lot, or pasture lot held under a grant from any corporation or town the claim to which may fall within the provisions of this Act. (42 Stat. 650.) This is an act entitled “An act to provide for the settlement of small holding claims on unsurveyed land in the State of New Mexico," cited above. (1471) Sec. CHAPTER TEN A-RESERVATIONS AND PURPOSES Sec. 4876. Survey of lands granted to certain States. 4877a. Preference right of selection granted to North Dakota, South Dakota, Montana, Idaho and Washington; rights of bona fide settlers. 4881. Representation of Indian claimants in suits to determine right of States to school lands. § 4860. (R. S. § 2275, as amended, Act Feb. 28, 1891, c. 384.) Settlements before survey on sections 16 or 36; deficiencies. See Rosenberg v. Bump (Cal. App.) 185 P. 218. II. RESERVATION OF LANDS FOR SCHOOLS. 2. Nature of reservation.-The funds of the State University arising from federal grants and appropriations and private donations may be expended by the Board of Regents, subject only to the conditions and limitations provided in the acts of Congress making such grants or appropriations or conditions imposed by donors. State v. State Board of Education (Idaho) 196 P. 201. Act Cong. July 4, 1836, by which land was granted to the state for the use of schools in the Chickasaw Cession, does not require any part of the land, its proceeds, or the interest thereon, to be used for schools in any particular township. City of Corinth v. Robertson (Miss.) 87 So. 464. After the title of the state to the land granted to it by Act Cong. July 4, 1836, for the use of schools in the Chickasaw Cession had vested, it was beyond the power of Congress to change the terms of the grant. Id. The terms of the trust upon which land was granted to the state by the federal government for the use of schools in the Chickasaw Cession must be gathered from Act Cong. July 4, 1836, by which the grant was made. Id. The state of Mississippi acquired the right to the sections numbered 16 granted to it for the use of schools by Act Cong. March 3, 1803, when, but not until, the right of occupancy of the In dian tribes was extinguished and the sections had been surveyed as provided by law. Id. The state in its proprietary right owns an island existing in public waters located within a school section which has been ceded by a federal government to the state. Roberts v. Taylor (N. D.) 181 N. W. 622. The state could have retained lands granted by the general government for common schools and other purposes and all of them as a permanent fund for their respective purposes and never have sold any of them at any time without violating any condition of the grant. Magnolia Petroleum Co. v. Price (Okl.) 206 P. 1033. The moving and expressly designated purpose of congressional acts pertaining to public lands which were reserved for the future state was that section 16 and 36 of each township should constitute permanent common school fund and the section 13 of each township in portions of the state where sections 13 and 33 were reserved from settlement, was reserved for the university and other school purposes, and section 33 for public building purposes, and no other purpose is given by Congress for reserving such lands from settlement. Id. The conditions of the grant of school lands to the state of Washington by Act Cong. Feb. 22, 1889, § 10, so far as it contains restriction upon the disposal of the granted lands by the state, may be modified by Congress. Thompson v. Savidge (Wash.) 188 P. 397. Though Act Cong. Feb. 22, 1889, § 10, provides that sections numbered 16 and 36, in every township, "are hereby granted" to Washington and other states, the grant, under the decisions of the United States Supreme Court, was not a present grant of unsurveyed sections. Id. 3. State's title to school lands.-Under Act April 21, 1806, and Act of March 3, 1911, reserving section 16 in each township of land in the territory of Louisiana, when surveyed for the future state, when created in compliance with the treaty of cession to be used for support of schools, title to such sections vested in the state on its admission, to the exclusion of the United States, as also the right to dispose of the same in such manner as it deemed best to carry out the purpose of the dedication, and a sale and conveyance of any of such lands by the state is not invalid, because not made as prescribed by Act Feb. 15, 1843. State of Louisiana v. William T. Joyce Co. (C. C. A. La.) 261 F. 128, certiorari denied 40 S. Ct. 481, 253 U. S. 484, 64 L. Ed. 1024. Acts 1919, No. 465, authorizing a school district to sell and convey feesimple title to school lands granted the state in trust for the use of schools by Act Cong. June 23, 1836, supplementary to the act for the admission of the state of Arkansas into the Union, and providing for reinvestment of the proceeds in a high school building, held invalid, as violative of the compact between the United States and Arkansas, as evidenced by the federal act and the state's ordinance of October 18, 1836, accepting the same, the words of the federal act "for the use of the inhabitants of such township for the use of schools" limiting the state in her execution of the trust to the purposes indicated by "use," which does not mean the thing itself, but only enjoyment, occupation, etc. Special School Dist. No. 5 of Mississippi County v. State (Ark.) 213 S. W. 961. It is wholly within the province of the Legislature of Arkansas to determine whether school lands whose use was granted the state by Act Cong. June 23, 1836, supplementary to the act for the admission of the state into the Union, shall be leased, or whether they shall be sold, or how and by whom they shall be managed and sold. Id. Where part of a tract of land clearlisted to the state by the federal government for educational purposes had been already conveyed by the government to private parties by a mineral patent, the clear list is void as to such mining premises. Jorgensen v. McAllister (Idaho) 202 P. 1059. Act Cong. May 19, 1852, authorizing the state to sell the land reserved for the use of schools, has no effect upon the terms of the trust under which the state held the lands granted to it for the use of schools in the Chickasaw Cession. City of Corinth v. Robertson (Miss.) 87 So. 464. After the title of the state to the land granted to it by the Act Cong. July 4, 1836, for the use of schools in the Chickasaw Cession had vested, the state had full power to dispose of the land without the consent of Congress. Id. 2 SUPP.U.S.COMP. '23-93 The grant of sections 16 and 36 of each township for common school purposes, section 13 for the support of higher institutions of learning, and section 33 for public buildings and the acceptance of such lands by the state by express provision of its Constitution, constituted a complete contract between the United States and the state of Oklahoma and supersedes all conflicting previous acts, rules, and regulations. Magnolia Petroleum Co. v. Price (Okl.) 206 P. 1033. III. SELECTION OF INDEMNITY LANDS BY STATE. 9. Selection where school sections are within a reservation.-Under Act June 21, 1898, §§ 1, 8. Act March 16, 1908 (Comp. St. § 4868), Act June 20, 1910. §§ 6. 10-12, and Act Feb. 28, 1891, c. 384, amending this section and Rev. St. § 2276 (Comp. St. § 4861), which authorizes a state, in case some of the lands granted to it for school purposes were thereafter included in a reservation, to select other lands in lieu thereof with the approval of the Secretary of the Interior, the selection of the lieu lands by the state dates from the time of the application, and if such selection was then regular and valid the right of the states to the land cannot be denied by the Secretary of the Interior because subsequent to such selection the base tract-that is, the one the right to which was waived -had been eliminated from the reservation by a change of boundaries. Payne v. State of New Mexico, 41 S. Ct, 333, 255 U. S. 367, 65 L. Ed. 680, modifying decree (App. D. C.) Lane v. Same, 258 F. 980. Where public land, granted a state for school purposes, was included within a national forest reservation, a lieu land selection made by the state pursuant to this section, cannot be canceled by the Secretary of the Interior upon the ground that a change in the national forest boundaries between the date of the lieu land selection and its approval by the Secretary had again made the base land available for school purposes. Lane v. State of New Mexico (App. D. C.) 258 F. 980. The relinquishment by the state of sections numbered 16 and 36, within a national forest reservation established prior to their survey, and the selection of other lands in lieu thereof, were authorized, so far as authorization by Congress and the state Legislature were necessary by Act Cong. Feb. 28, 1891, amending Rev. St. U. S. §§ 2275, 2276 (U. S. Comp. St. §§ 4860, 4861), and Laws Wash. 1913, c. 102. Thompson v. Savidge (Wash.) 188 P. 397. If under Act Cong. Feb. 22, 1889, § 10, unsurveyed sections numbered 16 and 36 did not vest in the state upon its admission, and have not since vested, because of the creation of a na (1473) tional forest reservation including such sections prior to their survey, the relinquishment by the state of its claim thereto, and the selection of other lands in lieu thereof to which it will immediately acquire a completely vested title, does not violate Const. art. 16, §§ 1 and 2, as to disposition of school lands. Id. 11. Approval by Secretary of Interior. The requirement that the selection by a state of lands in lieu of those included in a reservation be approved by the Secretary of the Interior does not prevent the vesting of the state's right to the land, so as to give it an equitable title at the time of the selection and before the approval, but merely casts upon the Secretary the duty of ascertaining whether the selection was made within the law. Payne v. State of New Mexico, 41 S. Ct. 333, 255 U. S. 367, 65 L. Ed. 680, modifying decree (App. D. C.) Lane v. Same, 258 F. 980. Where the state of Wyoming had accepted the offer made by Congress by Act Feb. 28, 1891, amending this section, and Rev. St. § 2276 (Comp. St. § 4861), by waiving its right to lands granted it by Act July 10, 1890, § 4, for the support of common schools, which had been subsequently included within the boundaries of a national forest, and had made proper proofs that the land selected in lieu thereof, was then open to entry and not mineral, it acquired an equitable right to the lands before the approval of the selection by the Secretary of the Interior, so that the selection could not thereafter be rejected by the Secretary, on the ground that oil was subsequently discovered thereon and the land included in a withdrawal of oil lands from entry. State of Wyoming v. U. S., 41 S. Ct. 393, 255 U. S. 489, 65 L. Ed. 742, reversing decree (C. C. A. Wyo.) U. S. v. Ridgely, 262 F. 675. The authority of the Secretary of the Interior to approve selection by a state of lands in lieu of those granted to the state for school purposes, the rights to which it waived when they were subsequently included within the boundaries of a national forest, extends only to a determination of whether the selection was lawful at the time it was made. Id. A state, which was owner of school land included within a national forest reserve, by selecting and making application for lieu land in compliance with the statutes and regulations, acquires no estate, legal or equitable, in the land selected, as against the United States, prior to approval of its application by the Commissioner of the General Land Office, and pending such approval it is subject' to withdrawal from selection as mineral land. U. S. v. Ridgely (C. C. A. Wyo.) 262 F. 675. Under the statute requiring the Secretary of the Interior to approve public land entries before patent, the approval of the Secretary is not a mere form; but he has a legal discretion to withhold such approval to prevent injustice under the particular circumstances of the case. Payne v. U. S. (App. D. C.) 269 F. 198. CITED WITHOUT DEFINITE AP PLICATION 30 Op. Atty. Gen. 485. §. 4861. (R. S. § 2276, as amended, Act Feb. 28, 1891, c. 384.) Selections to supply deficiencies of school lands. Section 11 of Act 1889, Feb. 22, c. 180, 31 Stat. 676, is amended by Act Aug. 11, 1921, c. 61, 42 Stat. 158, by adding thereto the following: "Provided, however, That the State may, upon such terms as it may prescribe, grant such easements or rights in such lands as may be acquired in, to, or over the lands of private properties through proceedings in eminent domain: And provided further, That any of such granted lands found, after title thereto has vested in the State, to be mineral in character, may be leased for a period not longer than twenty years upon such terms and conditions as the legislature may prescribe." Notes of Decisions Restoration of lands lost.-Under Act June 21, 1898, §§ 1, 8, Act March 16, 1908 (Comp. St. § 4868), Act June 20, 1910, § 6, 10-12, and this act, which authorizes a state, in case some of the lands granted to it for school purposes were thereafter included in a reservation, to select other lands in lieu thereof with the approval of the Secretary of the Interior, the selection of the lieu lands by the state dates from the time of the application, and if such selection was then regular and valid the right of the states to the land cannot be denied by the Secretary of the Interior because subsequent to such selection the base tract-that is, the one the right to which was waived-had been eliminated from the reservation by a change of boundaries. Payne v. State of New Mexico, 41 S. Ct. 333, 255 U. S. 367, 65 L. Ed. 680, modifying decree (App. D. C.) Lane v. Same, 258 F. 980. "Vacant" and "Unreserved" lands.Under Act Cong. May 2, 1914, authorizing selection in lieu of school lands of other lands "vacant" and "unreserved," lands not within such qualification are those for which Congress has made no provision, and land not provided for is not subject to the disposition of the Land Department, and any patent |