Page:Federal Reporter, 1st Series, Volume 5.djvu/342

 330 FEDERAL REPORTER. �congress until in 1872, aa hereinafter stated. The United States surveys were not extended over the premises until October, 1869, but no notice thereof was given to the gov- ernor by the secretary of the interior until sometime in 1S72, in -which year the state seleeted the premises as swamp and overilowed lands, and on September 18, 1872, the defendant purchased the same therefrom under the act of October 26, 1870, supra, and paid thereon 20 per cent, of the purchase prioe, but bas npt yet paid the balance on or done anything to reclaim the eame, except to eut an inconsiderable ditch thereon since the commencement of this litigation ; that the land if thoroughly drained would be thereby injured and depreciated in value ; and no lists or plats of swamp lands embracing the premises in controversy have been made or filed or transmitted to the governor of this state by the secre- tary of the interior. �The first and material question to be decided in this case is whether the patent issued to the state under the grant of July 5, 1866, for the premises in controversy, is conclusive evidence in this action that they belong to the wagon-road grant and not to the swamp-land one. The swamp-land grant vfas a grant in prasenti of ail the swamp and overflowed lands in the state thereby made "unfit for cultivation," but the determination of what lands corne within this category, and what do not, rests with the secretary of the interior, and his decision is final, unless impeached for fraud or mistake. French v. Fyan, 93 U. S. 170. The provision in section 2 of the act of March 12, 1860, svpra, which requires the lands "already surveyed" to be seleeted within two years from the adjournment of the next session of the legislature, and those to be surveyed within two years from the adjournment of the next session, after notice by the secretary of the interior to the governor "that the surveys have been completed and con- firmed," is not in the original swamp-land act. The effect of it appears to be that it ia the duty of the state to make the selections in the first instance and submit them for approval to, the secretary, and that if this is not done within the term ����