52 FEDERAL 1am20M12B.`
because the same was not made according to the legal subdivisions,
and because the same and each parcel thereof is located in legal sub-
divisions, the greater part whereof is not wet and unfit for cultivation,
and are therefore reserved to the United States by the act of March
12, 1860, and are now a part of the public domain. (2) That al-
though the said lands were surveyed in 1852, and there was a reg-
ular session of the legislature of Oregon held in 1862, and biennially
ever since, the alleged selection of said lands was not made until
November, 1871, and therefore the act of March 12, 1860, does not
apply to them; and that no selection of said lands has been approved
by the commissioner of the general land-office, nor has any patent
been issued for the same to the state. (3) That although 10 years
have elapsed since the payment of 20 cents an acre to the state for
said lands, no proof of any reclamation thereof has been made, nor
have said lands been reclaimed, but they are now in the same con-
dition, as to being wet and uncultivatable, that they were at the date
of the alleged purchase from the state. (4) That the plaintiffs have
not, nor never had, the possession of said lands, or any right thereto;
, nor have they or either of them any right, title, or interest in or to
the same. (5) That after the defendant heard that the plaintiff
John F. Miller claimed said lands as swamp, he called on him and
proposed some arrangement by which he could protect his property
from injury resulting from the diversion of the water that supplied
his mills, when said plaintiff told the defendant, in substance and
effect, that such an arrangement was unnecessary, as the latter "held
the key to the situation," and that no water could or would be drawn
off said lands without his consent, and that, relying on said state-
ment, the defendant expended about $8,000 in improving said prop-
erty; wherefore, plaintiffs are estopped, without the defendant’s con-
sent, from reducing the water above his dam. (6) That the defend-
ant and those under whom he claims have been in the undisturbed,
open, and notorious possession and use of the premises, including said
water-power and privilege, for more than 30 years, and that he has
acquired a right thereto by prescription. (7) That prior to 1850, and
the construction of said dam, Lake La Biche (Labish) was a perma-
nent body of water created by the expansion of Little Pudding river,
and said lands were thenicovered with water, which the unobstructed
channel of said river would not drain off and make fit for cultivation.
On the argument of the motion to remand, counsel for the plain-
tiifs maintained the proposition that it is not suilicient to give this
court jurisdiction that it is asserted in the answer or petition for re-
_ moval that the case arises under a law of the United States, or that
the construction of one might become necessary in the course of the
trial of it; citing M illingar v. Hmrtupcc, 6 Wall. 258, and Gold Washing
rt Water Oo. v. Keyes, 96 U. S. 199. The proposition is not denied,
and the authorities support it. But this is quite a different case from
either of those.
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