cannot be irrigated and reclaimed by Anderson from any available known source of water supply, according the applicant, however, the right to apply for a hearing.

Anderson has appealed from that decision, and in the brief in support of said appeal it is stated by his attorney that:

Notice of Anderson's right of preference of entry was issued September 10, 1914. On the following day one Lloyd R. Kious filed homestead application. Sterling 021528 for the land which is in question here. Anderson received notice of his right of preference of entry on the 12th of September, 1914, and on the 10th of October sought to exercise that right by the filing of desert land application, Sterling 021730. It will be observed that the Kious application was, necessarily, held suspended until action on Anderson's desert land application.

The appellant earnestly insists that he is entitled to the benefits of his preference right and urges in the event he should not be permitted to enter the tracts under the desert-land law, that he be allowed to convert his desert-land application into an application under the enlarged homestead law and amendments, notwithstanding the intervening application of Kious.

This proposition involves a discussion of the nature of the right earned by a successful contestant under the act of May 14, 1880 (21 Stat., 140). Said act confers upon a person who has "contested, paid the land office fees, and procured the cancellation" of the entry attacked, a preference right of entry for 30 days from the date of notice of such preference right, as against every one except the United States. During such period of 30 days the land is reserved from entry by other individuals, strangers to the record, awaiting the action of the contestant, though applications may be received during such period and held in abeyance (16 L. D., 334).

The right granted by said act is statutory and the land department has no authority, by regulation or otherwise, to disregard the act or deny the right. Beach v. Hanson (40 L. D., 607); Long v. Lee (41 L. D., 326).

In the case of Robeson T. White (30 L. D., 61), decided by the Department June 9, 1900, it was held (syllabus):

A successful contestant who, in exercising his preference right, locates a soldiers' additional homestead certificate upon the land formerly covered by the contested entry, and thereafter, under the belief that the first certificate is defective, locates another soldiers' additional right upon the same land, does not thereby waive any rights secured by the first location.

In the case of Smith v. Whitehead (39 L. D., 208), decided by the Department September 14, 1910, it was held (syllabus):

An application to locate a soldiers' additional right does not preclude the filing of an adverse application to enter the same land, subject to determination of the validity of the additional right; and in case the additional right be found invalid, the intervening adverse application attaches and bars substitution of another right in lieu of the one held invalid.

No claim of a preference right under the act of 1880, however, was involved in that case, the question relating entirely to the right to substitute a valid for an invalid soldiers' right, in the face of an intervening adverse claim, for surveyed public lands subject to filing and entry.

In the case of Robert Beveridge (41 L. D., 410), decided by the Department December 16, 1912, it was held (syllabus):

Where a successful contestant within the preference right period filed a soldiers' additional application, and after the expiration of that period filed a homestead application in attempted substitution for, and waived all claim under, the soldiers' additional application, he acquired no right under his homestead application so filed as against an adverse homestead application filed after cancellation of the entry and held suspended pending exercise by contestant of his preference right.

In this case Beveridge filed a waiver of all rights under the soldiers' additional application, and although there had been no adjudication as to the validity of this additional right, it was withdrawn two months after the expiration of the preference right period, because, presumably, bad, and the homestead application substituted therefor.

In the case here under consideration the preference right claimant was found by the Commissioner to be qualified to make entry under the law pursuant to which his application was filed. It was held, however, that there was no source of water supply available from which the lands could be irrigated, and for this reason they were not subject to entry under the desert-land law. But Anderson's application was regular and proper in all respects, and, so far as anything in the record shows, he was seeking in a perfectly legitimate manner to conserve and protect his rights. He offered a filing which, through no fault of his own, could not go of record during the preference right period. The Commissioner, after investigation, held, in effect, that the lands were not appropriable under the desert-land law, not because they were nondesert in character, but because water was not available for their reclamation.

The preference right is a reward offered to one who has expended his money and time in obtaining the cancellation of an unlawful holding of public land. Anderson had performed all the prerequisites imposed by the act and had presented an application, within the preference right period, which was without defect or infirmity, and it is not believed the reward held out should be denied because of a mistaken judgment that the land could be reclaimed as required by statute, when he is qualified to make entry under some other law and the land is subject to such entry.. The delay necessary under the regulations in determining whether or not the lands are or might be irrigable should not operate to deprive Anderson of his preference right earned by contest.

It is held, therefore, that from and after October 10, 1914, when Anderson filed his desert-land application, until the date of the Commissioner's decision holding that the lands were not appropriable under the desert-land law, time did not run against him. Therefore, since his preference right period had yet one day to run when he presented his desert-land application, he may in that time file in the local office an application to enter and a petition for designation under the enlarged homestead law and amendments, upon which appropriate action will be had in accordance with the regulations. The case is, accordingly, remanded for appropriate action pursuant hereto.

REGULATIONS FOR LEASING LANDS IN RECLAMATION PROJECTS.

[CIRCULAR.]

1. By the Secretary's order of April 24, 1917, all first form withdrawn lands may be leased for agricultural or grazing purposes, for the present.

2. Withdrawn lands which are susceptible of cultivation either by irrigation or dry farming methods should be leased for that purpose only and with such conditions as will insure cultivation. One year's lease charges shall be paid in advance and the lease should contain a provision for cancellation and forfeiture of payments made in case of failure to prepare and cultivate for the production of crops.

3. Withdrawn lands available for grazing purposes only may be leased in the usual way and at least one year's lease charges should be paid in advance.

4. The usual methods of competition should be adopted in making leases, and lands should be divided into tracts of suitable size to secure the greatest efficiency for the production of crops or for their use for grazing.

5. The period of lease shall be such as is deemed suitable by the Project Manager.

6. The standard form of lease shall be used with a reservation of the right to cancel on 3 to 6 months' written notice, with such modifications as local conditions may require.

Approved May 7, 1917:

ALEXANDER T. VOGELSANG,

MORRIS BIEN, Acting Director.

First Assistant Secretary.

YOUNGBLOOD v. STATE OF NEW MEXICO (On Rehearing).

Decided May 8, 1917.

SCHOOL INDEMNITY SELECTION-EFFECT UPON LAND.

A school indemnity selection prima facie valid and intact of record segregates the land involved.

SEGREGATION OF PUBLIC LAND-RESTORATION TO THE PUBLIC DOMAIN-WHEN PRIVATE APPROPRIATION PERMITTED.

Land segregated from the public domain, whether by patent, reservation, entry, selection, or otherwise, is not subject to settlement or other form of appropriation until its restoration to the public domain is noted upon the records of the local land office.

[See McMichael v. Murphy, 197 U. S., 304.]

VOGELSANG, First Assistant Secretary:

March 20, 1917, the Department on appeal rejected the homestead application of Alfred Y. Youngblood, [filed February 12, 1916,] for lots 2, 3, and 4, SE. † NW. 1, E. SW. 1 and W. SE. 1, Sec. 19, T. 20 S., R. 36 E., N. M. M., Roswell, New Mexico land district, because of conflict with a prior indemnity school land selection by the State. A motion for rehearing has been filed by Youngblood.

The State of New Mexico, on August 5, 1914, filed its selection for all of said Sec. 19, and on February 28, 1916, applied to amend the selection by substituting another base for a portion of the land. selected, which application was allowed by the Commissioner under date of May 22, 1916. On April 4, 1916, the Commissioner held the selection for cancellation as to another portion of the said selection because the base assigned by the State had theretofore been used in another selection. The State thereupon filed application to amend to cure the said defect.

In the former Departmental decision it was held that inasmuch as the selection was intact and prima facie valid at the time Youngblood filed his application, the land was not subject to such application, and, therefore, he gained no rights by filing the same. Furthermore, it was held that his alleged settlement on the land under date. of February 6, 1916, was likewise invalid because of the pending State selection, which segregated the land from settlement and entry. The decision complained of is in harmony with the recent Departmental decision of March 17, 1917, in the case of California and Oregon Land Company v. Hulen and Hunnicutt (46 L. D., 55), wherein it was held:

Land segregated from the public domain, whether by patent, reservation, entry, selection, or otherwise, is not subject to settlement or any other form of appropriation until its restoration to the public domain is noted upon the records of the local land office.

See also the case of May v. State of Washington (39 L. D., 377), wherein it was held (syllabus):

A homestead application tendered while the land applied for was embraced in a prima facie valid school indemnity selection, accompanied by a protest against the selection on the ground of insufficient base, does not present such an adverse claim as will prevent substitution by the State, in a proper case, of a good and sufficient base, where the defect charged in the protest was shown by the records of the General Land Office and action on that ground instituted against the State's claim before any cognizance of the protest was taken by that Office.

No error is seen in the former departmental decision, and therefore the motion for rehearing is denied.

TIMOTHY SULLIVAN, GUARDIAN OF JUANITA ELSENPETER.

Decided May 8, 1917.

ADDITIONAL HOMESTEAD ENTRY-TO WHOM LIMITED.

The right of the widow, heir or devisee of a homestead entryman to complete the entry initiated by him is statutory, and does not include the right to make an additional homestead entry based on the original entry. Departmental decisions in Lillie E. Stirling (39 L. D., 346), Heirs of Davis (40 L. D., 573), and Bertha M. Birkland (45 L. D., 104), overruled.

VOGELSANG, First Assistant Secretary:

August 24, 1909, Marie Elsenpeter made homestead entry for the SW. NW. 1, E. 1 NW. 1, and SW. NE. 1, Sec. 33, T. 1 S., R. 9 E., B. H. M. The entrywoman died, and upon submission of final proof on behalf of Juanita Elsenpeter, minor child of Marie, final certificate issued October 23, 1915, and patent on February 10, 1916. March 25, 1915, Timothy Sullivan, as guardian of Juanita Elsenpeter, presented homestead application 030370 for the SW. SE. 1, Sec. 28, E.NE. and NW. NE. 1, Sec. 33, same township and range, as additional to the homestead entry made by Marie Elsenpeter, and perfected on behalf of her minor child.

The register and receiver rejected the application for the reason that it was not shown that the heir was a resident upon the land embraced in the original entry. On appeal, the guardian stated that the child was but seven years of age and unable to reside upon the land; that the land is not of sufficient value that anyone could be hired to live on the same and care for the child, but that he is cultivating the land for the minor.

Upon consideration of the case, the Commissioner, citing the case of Heirs of Susan A. Davis (40 L. D., 573), affirmed the decision of the register and receiver. Appeal by the guardian brings the case before the Department.