lished a permanent home on the land. If he had not established a home on the land there was no danger that he would "be deprived” of his home.

It is therefore held that to entitle one to purchase said lands from the government he must have been a purchaser from the grantees and a bona fide settler and resident on the land, having a permanent home there of which he might have been deprived but for said statute. Neither Mrs. Theilman nor her grantor ever resided or had a home on the land, and therefore she does not come within the purview of said act. Your said decision allowing her to purchase the tract applied for by her is therefore reversed and her application is rejected. Miles's entry will be canceled and Lynn will be allowed to make entry for the entire quarter section.

HOMESTEAD-SOLDIERS' ADDITIONAL-ASSIGNEE.

JOHN S. MAGINNIS.

The widow of a deceased soldier who made entry in her own right for less that one hundred and sixty acres prior to the adoption of the Revised Statutes is entitled to an additional right of entry.

The right of additional entry granted to the widow of a deceased soldier by section 2307 of the Revised Statutes, if not exercised by her during her widowhood, is lost by her remarriage.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

February 14, 1903.

(A. S. T.)

John S. Maginnis has appealed to this Department from your office decision of May 13, 1902, in the case of John S. Maginnis, assignee of Nannie E. Rose, formerly Nannie E. Eaton, widow of John Eaton,, deceased, rejecting his application to enter, under sections 2306 and 2307 of the Revised Statutes, the NW. of the NW. of Sec. 6, T. 56 N., R. 13 W., and the SW. 4 of the SW. 4, or lot 4, Sec. 31, T. 57 N., R. 13 W., Duluth land district, Minnesota.

Your said decision holds

that said original entry does not constitute a proper legal basis for the right claimed by the applicant for the following reason: the original entry was made by the widow of the soldier after his death, and conferred on her no additional right. (See the case of William Deary, 31 L. D., page 19.)

In addition to this she has remarried, and thereby forfeited any additional right to which she might have been entitled as the widow of said soldier.

It appears that John Eaton, the soldier, died on or about December 1, 1871, and that thereafter, to wit, on January 10, 1874, which was prior to the adoption of the revised statutes of the United States, his widow, the said Nannie E. Eaton, made homestead entry of forty acres of land, at the Jackson land office, Mississippi, which was after

wards canceled. She remarried some time prior to March 14, 1901, the date of the assignment of her alleged additional homestead right, under which Maginnis claims.

The Department does not concur in your said holding to the effect that the original entry constitutes no valid basis for the right claimed because it was made by the soldier's widow after his death. In the case of William Deary (31 L. D., 19), cited in your said decision, the application was rejected because the original entry was made by the soldier's wife before his death.

In the case of Homer E. Brayton (31 L. D., 443), this Department held that where the widow of a deceased soldier, prior to the adoption of the revised statutes, made an entry in her own right for less than one hundred and sixty acres, she was entitled to an additional right of entry. (See also Sierra Lumber Company, 31 L. D., 349.)

Section 2307 of the Revised Statutes allows the widow of a deceased soldier, who would have been entitled to the benefits of Section 2304, all the benefits enumerated in that chapter, the right of additional entry being one of the benefits, but this is allowed her on the express condition that she be unmarried.

In the case at bar the widow was entitled to an additional right of entry so long as she remained unmarried, but having failed to exercise the right during her widowhood, it could not be asserted by her during coverture.

Your said decision rejecting said application for that reason is therefore affirmed, and the application is rejected.

FOREST RESERVE-LIEU SELECTION-ACT OF JUNE 4, 1897.

JOHN T. MURPHY.

The reservation of a right of way thirty feet in width along each side of all section lines, for a public highway, in all conveyances of swamp lands made by the State of Oregon, does not constitute such an incumbrance upon lands so situated and embraced within a forest reserve as to render them unacceptable as bases for the selection of other lands in lieu thereof under the provisions of the act of June 4, 1897.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) February 21, 1903.

(F. H. B.)

July 10, 1899, John T. Murphy, claiming as grantee by sundry mesne conveyances from the State of Oregon, executed deed (recorded July 15, 1899) in favor of the United States, which purports to relinquish and reconvey the SE. of the NE. of Sec. 35, T. 34 S., R. 6 E.; the SW. of the NE. and W. of the SE. of Sec. 2, and the NW. of the NE. of Sec. 11, T. 35 S., R. 6 E., W. M., situate in the Cascade Range Forest Reserve, Oregon, and filed selections (among

others) in lieu thereof, under the act of June 4, 1897 (30 Stat., 11, 36), as follows:

No. 1406, December 4, 1899, in the Helena, Montana, land district, for the NE. of the NW. of Sec. 33, T. 26 N., R. 4 W., M. M., in lieu of the SE. of the NE. of Sec. 35, T. 34 S., R. 6 E., W. M. No. 3336, August 25, 1900, in the Missoula, Montana, land district, for the unsurveyed NW. of the SE. of Sec. 10, T. 26 N., R. 34 W., M. M., in lieu of the SW. of the SE. W. M.

of Sec. 2, T. 35 S., R. 6. E.,

No. 4126, August 28, 1900, in the Miles City, Montana, land district, for certain unsurveyed land (described in your office decision), in lieu of the NW. of the NE. of Sec. 11, T. 35 S., R. 6 E., W. M.

October 28, 1902, your office rejected said selections, for the stated reason, in substance, that by the laws of Oregon an easement of thirty feet in width along each side of all section lines is reserved, for the purposes of a public highway, in all conveyances of swamp lands made by the State, and that, therefore, the title to the base lands which were acquired by the State under the swamp land grant is clouded by the easement and not the equivalent of the title sought under the lieu selections. Your office cited, in support of its decision, the cases of F. A. Hyde et al., on review (28 L. D., 284, 290), Edgar A. Coffin (30 L. D., 15), and Er parte Kehl (unreported).

Murphy has appealed to the Department.

In the Hyde case, supra, the title to the base land offered was not in the lieu selector, and it was held that he had nothing therein to relinquish and therefore no right of selection. In the cases of Coffin and Kehl, a perpetual easement, by the grant to private persons of a permanent right of way over and across the land offered as a base for the selection, had in each instance been charged upon said land. This was held to so far subtract from the complete legal title, and to involve such a possible incompatibility with the use and control of the land encumbered therewith as a part of a forest reservation, as to render an exchange inadmissible.

In the case at bar the right of way, if it in fact still exists, is of a public character and, by the terms of its creation, may be enjoyed only to the extent of thirty feet in width along the section lines. Situated as these tracts are, within the confines of the forest reservation, it is doubtful if the contemplated highway will be accessible or available during the lifetime of such reservation; and the servitude is not, in any event, of such character or extent as to be incompatible with the use and control of the burdened lands for the purposes for which the forest reserve was created. The easement is reserved expressly for the benefit of the public, the real grantee under the deed of relinquishment, and in consonance with its possession of the land, and is thus essentially different from those involved in the cases

cited by your office, which were in the sole right and for the sole benefit of private grantees and adverse to the possession of the owner of the fee, and which could apparently be enjoyed at random and in such manner upon the lands burdened therewith as to seriously militate against the use of the latter for the preservation of the timber growing thereon. The way in question is not considered by the Department to constitute such an encumbrance upon the offered tracts as to render them unacceptable as bases.

Your office decision, so far as it holds the selections for rejection because of said public right of way, is reversed, and, in the absence of other or further objection, the selections will be approved.

INDIAN LANDS-ALLOTMENTS-SEC. 4, ACT OF FEBRUARY 8, 1887.

INSTRUCTIONS.

Instructions relative to Indian allotments made under section 4 of the act of February 8, 1887, as amended by the act of February 28, 1891.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

February 21, 1903.

(C. J. G.)

The Department is in receipt of your office letter of December 4, 1902, with accompanying papers, including a report from the Commissioner of Indian Affairs under date of January 26, 1903, relative to Indian allotments that have been made, especially in the Susanville, California, land district, under section 4 of the act of February 8, 1887 (24 Stat., 388), as amended by the act of February 28, 1891 (26 Stat., 794).

After referring to and discussing at length the supposed purpose of said section 4 of the general allotment act and the requirement as to settlement imposed thereby on the allottee, the condition of the allotments in question and the relation of the allottees thereto, as shown by the reports of special agents of your office and the Indian office, which in the opinion of both offices render an investigation of said allotments necessary; the desirability of modifying the existing rule which in practice forbids the allotment under said section 4 of lands chiefly valuable for the timber thereon; the manner in which these allotments were made and the practice that has heretofore prevailed in administer ing the law and in the investigation of allotments generally; your office submits the following recommendations in which the Commissioner of Indian Affairs has in the main concurred:

(1) That the Office of Indian Affairs and this office be instructed to investigate each allotment made under the fourth section of the general allotment act, with a view of ascertaining whether the land included in such allotments is suitable for a home for the Indian, and whether the applicant has complied with the requirements of the law as to settlement.

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(2) That this office be authorized and instructed to cancel every such allotment where it is found that the land is not suitable for an Indian home, or is mineral in character, or where the applicant has not made the settlement required by the law and after having the requirements of the law explained to him, fails to make such settlement; or that the allottee is not legally entitled to an allotment.

(3) That the term "settlement," as used in the general allotment act, be held to require that where an adult Indian applied for an allotment for himself, or for his minor child, he must first have established his actual residence upon the tract applied for for himself, with the bona fide intention of making it his permanent home, and of abandoning his tribal relations; and that it be held also that where such settlement has been or shall be made by an applicant for allotment, and the tract applied for contains sufficient arable land to support an Indian family, and is, on the whole, suitable for a home for the allottee, it is subject to allotment under the fourth section. (4) That after any allotment shall have been examined in the manner set forth above, and it has been found that the required settlement has been made, and that the land is of a character subject to allotment, no contest against the same shall be allowed by a private individual, except upon a claim of priority.

Upon the representations made the Department is in accord with the proposition that an investigation of these allotments is requisite, and that the same should be made under the joint supervision of your office and the Indian Office. It approves generally of the suggestions made as to the manner and scope of the proposed investigation. The Department has from time to time issued instructions and prescribed regulations for the disposition of allotment applications under section 4 of the general allotment act, as well as for the investigation of claims to the public lands, by special agents. Regulations of June 27, 1899 (28 L. D., 569); Instructions of August 18, 1899 (29 L. D., 141). See also in this connection regulations of April 10, 1901 (30 L. D., 546), governing the investigation of charges against allotments upon which first or trust patents have issued; and additional instructions of May 10, 1902 (Ind. Div.). In the nature of things the details of such an examination as the one proposed must rest largely in the sound judgment and discretion of the offices immediately charged with the direction of the work. Because of the necessity of leaving some things to the judgment of the officers making the investigation and of the principles and rules announced and laid down by departmental decisions and regulations now in force, it is not believed advisable or necessary at this time, aside from some general observations in line with the recommendations made, to formulate new or more specific regulations for guidance in the proposed investigation.

Referring to recommendation numbered 2, in those cases where the special agents find that the allotments ought to be canceled, if they have been approved, or first or trust patents have been issued thereon, the papers in the case will be transmitted, with appropriate recommendation, for action by the Department.

As to recommendation numbered 3, it must be remembered that settlement, by the very terms of the act, is a prerequisite to allotment