of the S.NE. 4, Sec. 13, T. 144 N., R. 37 W., Crookston land district, Minnesota, in lieu of the NE. NE. and lot 1, Sec. 19, T. 141 N., R. 34 W., St. Cloud land district, Minnesota, for which he had filed, April 24, 1888, preëmption declaratory statement.

On the day the homestead entry was made Purcell gave due notice of his intention to make final proof in support thereof. This proof was submitted October 30, 1901, with tender of the commutation price of the land, and was on the same day rejected. On appeal, your office, July 23, 1902, approved the action of the register and receiver. Purcell appealed here and the case is now before the Department for consideration.

Accompanying the application to make homestead entry were filed the affidavits of Purcell and two other parties, made on final proof forms, to the effect that on the day of filing his preëmption declaratory statement he had settled upon the tract covered thereby, established and maintained residence until December, 1888, built a house and cleared about four acres and made one crop. In the final proof, however, it is stated by Purcell and his witnesses that he remained upon the preemption claim until August, 1889. This discrepancy is not explained.

The register and receiver rejected the final proof—

because the act of Jan. 14, 1889, under which the lands were opened to settlement and entry, did not permit of the commutation of such an entry, and for the further reason that the act of January 26, 1901, permitting commutation of Chippewa lands, applied only to lands opened to settlement and entry prior to May 17, 1900, while these lands were not opened until December 4, 1900.

The reason for rejecting the final proof, as given in your office decision, is as follows:

The provisions of the act of June 3, 1896, do not apply to land in any of the Chippewa reservations in Minnesota, as the act of January 14, 1889 (25 Stat., 642), under which said lands are disposed of, require that said lands be disposed of to actual settlers only, under the provisions of the homestead laws.

It appears by the record that the tract of land upon which Purcell filed his preëmption declaratory statement is within the limits of the second indemnity belt of the Northern Pacific railroad grant, was selected by the railroad company before said filing and afterwards patented to it.

By the first section of the act of June 3, 1896, supra, it was provided, in substance, that persons who, between August 15, 1887, and the first day of January, 1889, for the space of six months settled upon, improved and cultivated any of the lands within said second indemnity belt, with a view of entering the same under the homestead or preemption laws, being qualified to make such entries, "and were not permitted to make such entries," upon establishing these facts shall be allowed to make homestead entry of a like quantity "of the unappropriated public lands" and shall, when making proof, receive credit for

the settlement, improvement and cultivation upon the indemnity tract: "Provided, That the law in force in eighteen hundred and eighty-nine governing the commutation of homestead entries shall apply to the commutation of entries under this section."

The second section of said act further provides

That those who are entitled to make the homestead entries prescribed in the preceding section may make such entries of any of the agricultural lands embraced in the provisions of an act entitled "An act for the relief and civilization of the Chippewa Indians in the State of Minnesota," approved January fourteenth, eighteen hundred and eighty-nine, upon condition of paying for such lands the price prescribed in said act.

It is thus made apparent that in preparing your office decision the second section of said act was inadvertently overlooked and error was committed in stating that the Chippewa lands in Minnesota were not subject to entry under the provisions of the act of June 3, 1896, supra. In the circular of September 17, 1897 (25 L. D., 258), in relation to entries on the Chippewa lands under the second section of said act of June 3, 1896, it is declared that such entrymen are entitled to credit for settlement, improvement and cultivati on on the indemnity land, as provided in the first section of that act; but it is held that such entrymen are not entitled to the benefits of the provision contained in said section authorizing commutation of such entries.

Upon careful consideration of the legislation in question, the reason given for conceding to entrymen of Chippewa lands under said act a portion of the privileges granted by the first section only, and excluding one of those privileges so specifically granted, is not satisfactory to the Department.

As that act is now read and understood it appears to be the plain intention of Congress to accord to those who may make entry, under said act of 1896, of "unappropriated public lands," the alternative right to make like entry, with all the prescribed conditions and incidents, upon the Chippewa lands, provided they pay the fixed price for the same. Those who had settled upon the indemnity lands had been induced to do so by the erroneous action of the Department, and in this Congress doubtless saw a sufficient reason for favoring them more than other entrymen on the Chippewa lands who had no such claims. upon its favorable consideration.

However that may be, the right to enter the public lands, with credit for previous settlement and residence, etc., and the incidental right to commute said entries under the law as it existed at the time of the previous settlement, are all given by the first section of the act, and there is nothing in the second section, authorizing "such entries" to be made upon the Chippewa lands, on paying the proper price, which limits or restricts the rights and privileges given by the first section. If it was the intention of Congress to permit those described in the first section to make entry of the Chippewa lands only on the same

terms as required of others, it would have made its purpose clear by using the words "under the provisions of said act," instead of the words "upon condition of paying" etc., at the end of the said second section.

When, therefore, this one condition is prescribed it is exclusive of all others than those required in the first section.

It is true that this condition exacts no additional payment from those who commute under the first section; but it exacts one dollar and twenty-five cents an acre, the price of the Chippewa lands, from those who may seek to obtain title by continuing their residence and cultivation upon those lands. Title to the public lands may be acquired, under the first section, by entry, residence, etc., without price, or by commuting and paying $1.25 per acre. But the price of Chippewa Indian land must be paid under all circumstances and regardless of the manner in which the title is obtained. This is the obvious purpose Congress had in view when the payment clause in the second section was incorporated therein.

Inasmuch as the Chippewa lands were unquestionably open to entry when Purcell made his homestead entry in 1901, it is unnecessary to decide when, prior to that time, those lands became subject to entry.

It results, that in accordance with these views, the circular of instructions of September 17, 1897 (25 L. D., 258), so far as it prohibits the commutation of entries under the act of June 3, 1896, supra, upon said Chippewa lands, must be and is overruled.

Your judgment is reversed and the final proof of Purcell, if there be no other objection, will be approved for patent.

ARID LAND-WITHDRAWAL-ACT OF JUNE 17, 1902.

INSTRUCTIONS.

Instructions under act of June 17, 1902, relative to reservation of lands for irrigation works and withdrawal from disposition of lands susceptible of irrigation. Secretary Hitchcock to the Director of the Geological Survey, February (W. V. D.) (E. F. B.)

11, 1903.

By your letter of January 6, 1903, having reference to the withdrawal of lands provided for by the act of June 17, 1902 (32 Stat., 388), appropriating the receipts from the sale of public lands in certain States and Territories for the construction of irrigation works, you request the views of the Department upon the following questions:

(1) Whether lands may be reserved from public entry of all kinds from time to time for irrigation works.

(2) Whether the preliminary withdrawals of lands susceptible of irrigation may be made subject to a limit of area per entry to be prescribed as a general rule for all such withdrawals.

(3) Whether the preliminary withdrawals of lands susceptible of irrigation may be made subject to a limit of area per entry, as a part of each specific order of withdrawal.

The act authorizes and directs the Secretary of the Interior to make examinations and surveys for and to locate and construct irrigation works for the storage, diversión and development of waters, including artesian wells. To this end it contemplates that preliminary examinations and surveys shall first be made, in order that the Secretary of the Interior may be enabled to determine whether any contemplated project is practicable or advisable. If such determination shall be favorable, he may then cause to be let contracts for the construction of irrigation works, giving notice to the public of the lands irrigable under such project, and the limit of area per entry which, in his opinion, may reasonably be required for the support of a family upon such lands.

It is evident that the purpose of the act can not be successfully accomplished without holding from disposal all lands that may be required for any contemplated irrigation works, and reserving all lands that may be susceptible of irrigation under such project, so far as to subject them to the provisions, conditions and limitations of the act. The first withdrawal provided for by the third section of the act must be made by the Secretary of the Interior before giving notice to the public of the lands irrigable under any project that has been determined by him to be practicable and advisable, but nothing in the law prohibits a withdrawal prior to such determination, with a view to an examination of any particular locality, to obtain information to enable the Secretary to determine whether a contemplated project is advisable or practicable. That both withdrawals provided for by said section may be made preliminary to the examination and survey is shown by the provisions for the restoration to public entry of any lands not required for the purposes of the act, and for the restoration of the lands supposed to be susceptible of irrigation from the contemplated project, if it be determined that such project is impracticable or inadvisable.

It is important to the successful administration of the law that publicity should not be given to the preliminary examination and survey of any locality, without protecting the lands from entry. If, after sufficient general prospecting, or from reliable information obtained otherwise, you should be satisfied that a particular locality presents such advantages for the construction of irrigation works as to make it advisable that a complete examination and survey should be made, with a view to furnishing accurate information from which the Secretary of the Interior may determine whether such project is practicable and advisable, you should report it, with a view to having the lands withdrawn in furtherance of the design and purpose of the act.

All lands susceptible of irrigation from any works constructed and completed under said act are subject to the limit of area that may be prescribed by the Secretary of the Interior, according to the terms of the act; and all entries of such lands made after withdrawal will be subject to such limit of area. The act, however, does not contemplate that the determination of the limit of area shall be made until the giving of notice of lands irrigable under any project which has been determined by the Secretary of the Interior to be practicable and for the construction of which contracts have been let. The limit of area of any entry must be determined from the conditions peculiar to the particular locality, and should not be indicated in the withdrawal.

RAILROAD GRANT-SETTLEMENT-ACT OF AUGUST 5, 1892.

HICKEY . ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co. Rights acquired by settlement and improvement upon unsurveyed land, and duly and timely asserted upon filing of the plat of survey, will, as against an intervening indemnity railroad selection, made under the act of August 5, 1892, be protected in its entirety, even though the lands claimed lie in different quartersections and the improvements of the settler are shown to be confined to a single quarter-section.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) February 11, 1903. (F. W. C.)

Bridget Hickey, the mother of Jerry Hickey, deceased, and as his sole surviving heir, has appealed from your office decision of August 16, 1902, awarding to the St. Paul, Minneapolis and Manitoba Railway Company, lot 12, Sec. 3, and lots 9 and 10 of Sec. 4, T. 60 N., R. 24 W., Duluth land district, Minnesota, under its lieu selection made thereof. December 31, 1895, the St. Paul, Minneapolis and Manitoba Railway Company filed in the local land office its application to select certain described unsurveyed tracts of land, under the provisions of the act of August 5, 1892 (27 Stat., 390), which selection was accepted by the local officers.

The plat of survey of T. 60 N., R. 24 W., was officially filed in the local land office July 22, 1896, and on that day Jerry Hickey tendered his homestead application for lot 12, Sec. 3, and lots 9, 10, 14 and 15, Sec. 4, alleging in support of said application that he had made settlement thereon March 27, 1893. As it appeared that this application would conflict with the selection filed by the railway company December 31, 1895, Hickey's application was rejected, from which action he duly appealed.

On the same day the plat was filed the railway company also proffered a supplemental list of selections, adjusting its previous selections of December 31, 1895, to the lines of the public survey, which supple