efforts, as shown by the proceedings in the land department, to adjust all possible cases under the act regardless of their merits.

It is clear that because of the sale of the land the company was not in a position to make relinquishment as originally requested. In fact, a relinquishment made at that time could not have been accepted because of the outstanding contract of purchase. The fact that under the regulations it became necessary to adjudicate the pending controversy upon its merits does not, in the opinion of this Department, prevent adjustment at this time of the conflicting claims to this land under the act. Paragraph 7 of the regulations issued under the act of 1898 (28 L. D., 103, 107), states that

the point to which the opposing claims have been prosecuted or the extent to which they have been considered by the land department is not material, if they be otherwise within the terms of the act and the lands remain unpatented.

It does not appear that Landsdale's claim has proceeded to patent: in fact, he does not appear to have offered final proof upon his entry. Further, upon the showing made by the company in support of its appeal it seems that the relinquishment by the railway company is very necessary to Lansdale's right to hold this land.

Under all the circumstances, therefore, the Department holds that your office erred in advising the company that its relinquishment could not be accepted under the act of 1898, and you are now directed to advise the company that upon its filing a proper relinquishment under the act, if otherwise regular and satisfactory, the same will be accepted and the company will thereupon be entitled to select other lands subject to the conditions and limitations found in the act of 1898.

DESERT LAND ENTRY-ASSIGNMENT-RIGHTS OF ASSIGNEE.

T. C. POWER & BRO.

No assignable interest is acquired by the filing of a desert land declaratory statement, prior to the payment of twenty-five cents per acre for the land as required by the desert land laws.

One claiming as assignee of a desert land entry acquires no such right to the land, by showing the necessary annual expenditure and making the final proof and payment required by law, as will entitle him to patent therefor, where the assignment under which he claims was made prior to the acquisition of an assignable interest in the land by the assignor.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) July 30, 1904.

(A. S. T.)

On December 5, 1898, John Shearer was by a United States commissioner sworn to a declaration of intention to reclaim, as desert land, the N. of the SW. 4, the SW. of the SW. of Sec. 29, and the NW. of the NW. of Sec. 32, T. 24 N., R. 1 E., Great Falls land

district, Montana, and on the same day he executed a quitclaim deed, whereby he conveyed to T. C. Power & Bro., Incorporated, all his right, title, and interest in and to said tract of land. On December 8, 1898, said declaratory statement was filed in the local office and the necessary payment was made, and he was thereupon allowed to make desert land entry for said tract. Subsequently the local officers were notified of said conveyance by Shearer to T. C. Power & Bro.

On January 3, 1900, T. C. Power & Bro. submitted proof of first. year's annual expenditure on said entry, showing an expenditure of $171.00, and on September 4, 1900, said T. C. Power & Bro. offered proof of second year's annual expenditure, amounting to $160.00.

On November 16, 1901, said entry was canceled on the relinquishment of T. C. Power & Bro., as to the N. of the SW. and the SW. 4 of the SW. of said Sec. 29.

On November 16, 1901, said T. C. Power & Bro. filed proof of third year's annual expenditure on said entry, amounting to $60.00.

On June 7, 1902, T. C. Power & Bro. executed a deed of conveyance whereby said T. C. Power & Bro. attempted to convey said entry to T. C. Power & Bro., Limited, but the land was erroneously described therein as the NW. of the NE. of said Sec. 32, and on August 4, 1903, said T. C. Power & Bro. executed another deed to T. C. Power & Bro., Limited, conveying and correctly describing the land embraced in said entry. This latter deed was executed for the purpose of correcting the erroneous description of the land in the deed of June 7. 1902.

On July 23, 1902, T. C. Power & Bro., Limited, made final proof in support of said entry, and made final payment thereon, and on August 7, 1902, final certificate was issued to said T. C. Power & Bro., Limited. Said final certificate was duly transmitted to your office, where on May 26, 1903, a decision was rendered holding the entry for cancellation on the ground that Shearer, the original entryman, had acquired no interest in the land at the time of his pretended conveyance to T. C. Power & Bro., and on the ground that the entry was made not for the benefit of the entryman, but in the interest of another. T. C. Power & Bro., Limited, has appealed from said decision to this Department.

Your office cited, in support of your said decision, the case of Thom as r. Blair (13 L. D., 207), wherein it was held that prior to the payment of twenty-five cents per acre for the land no rights are acquired by an entryman under the act of 1877. Counsel for appellant argues at considerable length that said ruling is not applicable to the case at bar, for the reason that the entry in that case was made under the act of 1877, which did not permit assignments of such entries, while the entry here in question was made under the act of 1891, which does permit such assignments.

The question of the assignability of such entries did not enter into the case of Thomas . Blair, supra, but the point there decided was that the entryman had no interest in the land or valid claim thereto prior to the payment by him of the twenty-five cents per acre required by law as preliminary to his entry, and it can not be said that that ruling does not apply to every desert land entry. Therefore, Shearer, when he executed said deed, had no interest in or valid claim to the land, and, of course, could convey none to his assignee. He had not made entry for it, and had no assignable interest in the land. It is practically admitted that he had no assignable interest in the land at the time of the execution of said deed, but it is argued that when he subsequently made his entry he acquired an interest, which by virtue of said deed inured to the benefit of his assignee. If this be conceded, then it must be admitted that he intended when he made the entry, on December 8, 1898, that it should have that effect, and hence that he made the entry for the benefit of T. C. Power & Bro., and not for his own benefit. The fact that he attempted to convey the land on the same day on which he was sworn to his declaratory statement is a circumstance calculated to raise a suspicion as to his good faith, but if he had not contracted to convey the land prior to swearing to his declaratory statement, he certainly had done so before he made the entry.

It is argued, in substance, that the purpose of the desert land law is to secure the reclamation of arid lands, and that where one reclaims a tract of such land by the expenditure thereon of the amount of money prescribed by law, and makes the required proof and payments, he should be given a patent for the land regardless of whether or not he has complied with the requirements of the law in other respects. This position is not tenable. The law requires certain things to be done by the person desiring to make an entry under said statute prior to the allowance of the entry, and until these preliminary acts are performed, he has no right to the land, nor any authority to take possession of it. The law also requires him to do certain things after his entry is allowed, but the doing of these things will not entitle him to a patent or give him any valid claim to the land, if he has failed to perform the preliminary acts prescribed by law. It is not sufficient for him to show that he has reclaimed the land by the expenditure of the amount prescribed by law, and that he has made the final proof and payment required by law. This will not entitle him to a patent, if he has not filed the declaratory statement, made the preliminary payment, and had his entry recorded as the law requires. An entry made under said statute is subject to contest and cancellation for fail ure to perform in good faith any of said preliminary acts, as much as it is for failure to perform the acts required subsequent to the entry. While a desert land entry made in accordance with the law may lawfully assigned the right to make such an entry is not assignable.

be

Shearer, when he made said assignment, had no entry; he only had the right to make an entry upon filing his declaratory statement, showing his qualifications and making payment. These things had not been done, and therefore he had no right or authority to take possession of and reclaim the land, and, of course, could convey no such right or authority to his assignee. Therefore, whatever was done by the assignee by virtue of the assignment was done without right or authority.

It is argued that, although the doctrine of estoppel can not operate against the government, still the fact that the local officers and your office recognized the rights of the assignee, by permitting it to make proof of annual expenditures on the land, by accepting its relinquishment and thereupon canceling the entry as to the portion so relinquished, and by accepting its final proof and payment, and issuing final certificate thereon, clothes the assignee with such equities as entitle it to a patent for the land.

The questions involved in this case are similar in all material respects to those involved in the case of Smith v. Custer et al. (8 L. D., 269), wherein it was held (syllabus):

A pre-emption claimant acquires no title to public land, until he has fully complied with all the prerequisite requirements, and paid for the land.

The pre-emptor takes by final proof, payment and receipt of final certificate, only a right to a patent, in the event that the General Land Office, or the Department on appeal, find that the facts warrant the issuance thereof.

One who purchases land from a pre-emptor prior to a patent, acquires no greater right than existed in the pre-emptor, and is charged with knowledge that the legal title remains in the United States, subject to the necessary inquiry and determination by the Land Office and Department on which patent may issue.

It is the duty of the Department to cancel any entry which has been made contrary to law. or of lands not subject to such entry, or by a person not qualified, or where compliance with legal prerequisites did not take place, or where by false proofs a seeming compliance was fraudulently established.

When the assignee in this case filed said relinquishment, made proof of annual expenditures, and final proof and payment, and received final certificate, it was with full knowledge of the fact that the action of the local officers and your office in accepting said relinquishment, proofs, and payment, and issuing said final certificate, was subject to review and revision by this Department; that the legal title to the land remained in the government, and that the issuance of patent was dependent upon the inquiry and determination of your office and of this Department as to whether or not all the necessary prerequisites. had been performed, and whether or not any fraud had been perpetrated in the making of the entry. It not only had this knowledge, but knew that Shearer had sold the land before he made his entry, and that when the entry was made it was intended by him that it should inure to the benefit of the assignee, and was therefore fraudu

lent in its inception; and having made said expenditures with that knowledge, it can not be said that it thereby acquired such equities in the land as entitle it to a patent.

Your said decision is therefore affirmed and said entry will be canceled.

RAILROAD LANDS-SMALL-HOLDING CLAIMS-ACT OF APRIL 28, 1901.

SIRS: Your attention is called to the act of April 28, 1904 (33 Stat., 556), entitled, "An act for the relief of small-holding settlers within the limits of the grant to the Atlantic and Pacific Railroad Company in the Territory of New Mexico," which is as follows:

That the Atlantic and Pacific Railroad Company, its successors in interest and its or their assigns, may, when requested by the Secretary of the Interior so to do, relinquish or deed, as may be proper, to the United States any section or sections of its or their lands in the Territory of New Mexico the title to which was derived by said railroad company through the act of Congress of July twenty-seventh, eighteen hundred and sixty-six, in aid of the construction of said railroad, any portion of which section is and has been occupied by any settler or settlers as a home or homestead by them. selves or their predecessors in interest for a period of not less than twenty-five years next before the passage of this act, and shall then be entitled to select in lieu thereof and to have patented other sections of vacant public land of equal quality in said Territory, as may be agreed upon with the Secretary of the Interior.

SEC. 2. That the Secretary of the Interior shall, as soon as may be after the passage of this act, cause inquiry to be made of all lands so held by settlers, and shall cause the holdings of such settlers to be surveyed, and on receiving such relinquishments or deeds shall at once, without cost to the settlers, cause patents to issue to each such settler for his or her holdings: Provided, That not to exceed one hundred and sixty acres shall be patented to any one person, and such recipient must possess the qualifications necessary to entitle him or her to enter such land under the homestead laws.

SEC. 3. That any fractions of any such sections of land remaining after the issuance of patents to the settlers as aforesaid shall be subject to entry by citizens the same as other public lands of the United States.

The purpose of this act is to enable certain claimants to lands, known as "small-holding claimants," who were authorized to receive patents for such lands, not to exceed 160 acres, upon specified conditions, by sections 16 and 17 of the act of March 3, 1891 (26 Stat., 854), as amended by the act of February 21, 1893 (27 Stat., 470), to complete title to their entire claims, the odd-numbered sections in a number of cases having passed under the grant by Congress to the Atlantic and Pacific Railroad Company; but it will be observed that the benefits