Page:Federal Reporter, 1st Series, Volume 5.djvu/341

CAHN V. BABNKS. 329 �provisions of said act of congress of July 5, 1866, and the amendatory act of July 15, 1870;" which list was, on May 4, 1871, approved by the secretary of the interior, "subject to any valid interfering right which may bave existed "àt the date of selection of said lands;" that on June 19, 1876, the United States, by its proper officers, issued a patent to the state "for the use and benefit of said corporation and its assigns," purporting to grant the lands in controversy, and transmitted it to the governor of Oregon, who "receivëd" the same, "and caused it to be recorded in the counties whe'rein the lands therein described are situated." �The act of October 26, 1870, supra, entitled "An act pro- viding for the selection and sale of the swamp and overflowed lands belongihg to the state of Oregon," by operation of the swamp-land act of March 12, 1860, (12 St. 3,) extending over Oregon the Arkansas swamp-land act of September 28, 1850, provided for the selection of such lands by persons employed by the state, and the sale of the same in unlimited quantities, at not less than one dollar per acre, the purchaser to pay 20 per cent, of the purchase price within 90 days after the selection is oompleted, and the balance upon proof that the land "bas been drained or otherwise made fit for cultivation;" but if such final payment and proof of recla- mation are not made within 10 years from the time of the first payment, the land is to revert to the state; and it is declared in the act "that ail swamp land which bas been suc- cessfuUy cultivated in either grass, the cereals, or vegetables, for tbree years, shall be considered as fuUy reelaimed." The premises are situate to the east of the Cascade mountains, and on the north bank of the Ochoco creek. The defendant went into that eountry from the Wallamet valley with stock, when it was unsettled, in the fall of 1867, and selected the place in controversy because it was good meadow land, and lived thereon seven or eight years, during which time be cul- tivated a garden of less than an acre in estent, and annually eut the wild grass from about 100 acres of it, without, it appears, making any elaim to the premises under any act of ����