homestead entry made of the said tract by Otto H. Rohr to remain intact upon the record.

October 13, 1899, Corkhill filed his reservoir declaratory statement under the act of January 13, 1897 (29 Stat., 484), the first section of which provides:

That any person, live-stock company or transportation corporation engaged in breeding, grazing, driving, or transporting live stock may construct reservoirs upon unoccupied public lands of the United States, not mineral or other wise reserved, for the purpose of furnishing water to such live stock, and shall have control of such reservoir, under regulations prescribed by the Secretary of the Interior, and the lands upon which the same is constructed, not exceeding one hundred and sixty acres, so long as such reservoir is maintained and water kept therein for such purposes: Provided, That such reservoir shall not be fenced and shall be open to the free use of any person desiring to water animals of any kind.

The third section of this act provides that the reservoir shall be constructed within two years after filing the declaratory statement. and for the filing of a map or plat of the reservoir as constructed, and upon the approval thereof by the Secretary of the Interior, for the reservation of the lands upon which the reservoir has been constructed from sale so long as the reservoir is kept in repair and water kept therein.

While the first section of the act makes it possible to reserve lands for a reservoir site for the purpose of furnishing water to the live stock owned or controlled by the party constructing the reservoir, yet it is made clear that such site should not be fenced and shall be open to the free use of any person desiring to water animals of any kind. It is further made clear that the applicant shall have control only of "such reservoir."

The record upon Corkhill's appeal discloses the following: December 30, 1901, the local officers permitted Otto H. Rohr to make homestead entry for the tract in question, being more than two years after the filing of the reservoir declaratory statement by Corkhill. March 27, 1902, your office held said reservoir declaratory statement for cancellation for failure to submit proof of construction within the statu tory period; whereupon it was shown that in December, 1901, Corkhill had filed a crude map of a reservoir which, according to the surveyor's certificate thereon, was being built on the land. It seems that later attempts were made by Corkhill to file a sufficient map of a constructed reservoir but it was not until September 16, 1902, that he filed a map accompanied by the field notes of a reservoir site which was transmitted with letter from the local officers dated October 9, 1902. The reservoir shown upon this map or plat covered an area of 1.07 acres near the southwest corner of the NE. of NE. of said section 17. Acting upon this map or plat your office on October 30, 1902, held

Rohr's homestead entry for cancellation, whereupon Rohr filed an affidavit attacking Corkhill's good faith in the matter of his alleged construction of a reservoir upon the land in question. Upon such affidavit hearing was held, both parties being represented, and upon the testimony adduced both your office and the local officers found that Corkhill had not constructed and maintained such a reservoir as contemplated by the act of January 13, 1897, and for that reason held his reservoir declaratory statement for cancellation; from which he has appealed to this Department.

With regard to Corkhill's occupation and use of the tract covered in his reservoir declaratory statement, it appears that he is the owner of the SE. of Sec. 8. immediately north of the tract in question; that the said southeast of Sec. 8, and the northeast of section 17, the tract in question, are enclosed within a fence, the only part excluded being the reservoir site, comprising, as before stated, a little over an acre. A draw or ravine crosses the southern part of the northeast quarter of the northeast quarter of section 8, and it was upon or near the section line that Corkhill constructed a dam across such draw or ravine, which served to hold the water after heavy rainfall, but it does not appear to have been used by him as a watering place for his own cattle, nor does it appear to have been used by the public, although in times of drought there is perhaps a necessity for a public reservoir for watering cattle in this locality. Within Corkhill's fence, at a short distance from the reservoir site, he sank a well with windmill attachment and the water pumped from this well first passed into a wooden trough or tank from which his eattle were watered. Any water in excess of the capacity of such tank or trough, by natural drain of the land and seepage, found its way into the draw or ravine constituting the reservoir site. The expenses incurred thereby, together with the building of the dam to the reservoir, are said to be about $200, an amount largely in excess of the real value of the forty acres on which the reservoir site is located.

The entire matter considered it is directed that the reservoir declaratory statement be permitted to stand as to the said northeast of northeast of section 17, which, in the opinion of this Department, is all that is necessary for the use and maintenance of the reservoir. It will be necessary, however, that Corkhill immediately remove his fence enclosing said tract, so that the public may have full and free access, if it desires, equal with himself in the use thereof. See Wilson r. Parker (32 L. D., 148).

With this modification your office decision is affirmed.

RAILROAD GRANT-LANDS EXCEPTED-ACT OF FEBRUARY 8, 1887.

NEW ORLEANS PACIFIC RAILWAY Co.

The act of February 8, 1887, confirming the assignment to the New Orleans Pacific Railway Company of the grant made to the New Orleans, Baton Rouge and Vicksburg Railroad Company by the act of March 3, 1871, in excepting from the confirmation all lands occupied by actual settlers at the date of the definite location of the line of road and still remaining in their possession or in possession of their heirs or assigns, did not thereby limit the terms of the grant of 1871, from which there was excepted all lands which had been sold, reserved, or otherwise disposed of by the United States, or to which a pre-emption or homestead claim may have attached at the time the line of said road was definitely fixed, but merely added a new condition; hence the company has no right of selection under the provisions of the act of June 22, 1874, in lieu of lands covered by a homestead entry at the date of the definite location of the line of road, but is relegated to the indemnity provision of the act of 1871 in supplying any deficiency in its grant occasioned by the disposal of such lands.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, November 17, 1904. (F. W. C.)

With your office letter of the 9th instant was transmitted a request on behalf of the New Orleans Pacific Railway Company to be permitted to select, under the provisions of the act of June 22, 1874 (18 Stat., 194), other land in lieu of lot 1, Sec. 137, T. 9 N., R. 7 W., Louisiana meridian, Natchitoches land district, Louisiana.

From said request and report made in your office letter it appears that the tract above described is within the primary limits of the grant made by act of March 3, 1871 (16 Stat., 573, 579), in aid of the construction of the New Orleans, Baton Rouge and Vicksburg Railroad Company. Said company assigned its rights under said grant to the New Orleans Pacific Railway Company and that assignment was confirmed by the act of February 8, 1887 (24 Stat., 391), as to the portion of the grant within which this tract lies. The latter company definitely located the portion of the line of road opposite to which the tract in question is, November 17, 1882.

There was excepted from the grant of 1871 all lands which had been sold, reserved, or otherwise disposed of by the United States, or to which a preemption or homestead claim may have attached at the time the line of said road was definitely fixed.

January 20, 1879, P. Adolphe Simmons was permitted to make homestead entry for the tract in question, which entry was canceled upon relinquishment August 8, 1889, subsequently to the filing of the map of definite location, and on the same date William G. Porter

made homestead entry thereof, upon which his heirs submitted proof January 18, 1900, and patent issued upon said entry March 7, 1902. It is true that the act of March 3, 1871, provides for the withdrawal of land upon the filing of the map of general route, and such a map was filed November 11, 1871, upon which withdrawal was ordered November 29, 1871, which withdrawal included the land in question. Such withdrawal, however, created no rights in the railroad company nor did it prevent disposal of the land prior to the attachment of rights under the railroad grant upon definite location. See Northern Pacific Railroad Co. v. Sanders (166 U. S., 620).

The act of 1887, in confirming the assignment to the New Orleans Pacific Railway Company, excepted from the lands confirmed all lands occupied by actual settlers at the date of the definite location of said road and still remaining in their possession or in possession of their heirs or assigns. This did not limit the terms of the grant of 1871 but added a new condition. As held by this Department in the case of New Orleans Pacific Railway Co. . Elliott (13 L. D.. 157):

While it is true that the act of February 8, 1887, did not make a new grant, it was a confirmation of the grant of March 3, 1871, with certain conditions and qualifications, the principal one being that the confirmation should not take effect upon lands that were free at the date when the grant to the original grantee attached, but only upon such lands as were free when the New Orleans Pacific railway was definitely located, and there is nothing in the act to indicate that it was intended to extend the benefits of the withdrawal in favor of the original grantee to the latter company. Whatever rights the original grantee might have had under the grant of 1871, the New Orleans Pacific Railway Company can only claim whatever rights were granted or confirmed by the act of February 8, 1887, for the reason that by the 3d section of the act, it was provided that the relinquishment of the lands and confirmation of the grant provided for by the 2d section should only take effect when the company has accepted the provisions of the act, and as such acceptance has been signified by the company and patents have been issued in accordance with its provisions, the company is bound by the condition that if a settler was on the land at the date of definite location, it is excepted from the grant.

It is the opinion of this Department that the tract in question was excepted from the grant as assigned and confirmed to the New Orleans Pacific Railway Company by the act of February 8, 1887, supra, and as a consequence a right of selection under the provisions of the act June 22, 1874, supra, in lieu of a disposal made of the lands by the United States, is not permissible, but that the company is relegated to the indemnity provision of the act of 1871 in supplying any deficiency to its grant occasioned by the disposal of said land. The company's request is therefore denied.

RAILROAD GRANT-INDEMNITY-ACT OF AUGUST 11, 1856.

VICKSBURG AND MERIDIAN R. R. Co. . MATTHEWS ET AL.

No right attaches to any specific tracts within the indemnity limits of the grant made by the act of August 11, 1856, to the Vicksburg and Meridian Railroad Company. prior to selection thereof in the manner prescribed by said act; and where, after withdrawal of the lands within the indemnity belt, but prior to selection by the company, graduation cash entry was permitted for a portion of the lands so withdrawn, and allowed to stand for many years without objection by the company, such entry will not now be canceled with a view to permitting the company to make indemnity selection of the lands embraced therein.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, November 17, 1904,

(F. W. C.)

The Department has considered the appeal taken on behalf of D. F. Tollos and R. T. M. Simmons, claimants through the cash entry of Lazarus Matthews, to portions of the W. of SE. 1, SE. 4 of SE. } and SE. of SW. 1, Sec. 32, T. 5 N., R. 7 E., Choctaw Meridian, Jackson land district, Mississippi, from your office decision of February 11, 1902, holding for cancellation Matthews's cash entry made of the above described land, with a view to permitting an indemnity selection of the land by the Vicksburg and Meridian Railroad Company under the provisions of the act of August 11, 1856 (11 Stat., 30).

From your said office decision it appears that Lazarus Matthews, on March 16, 1858, was permitted by the local officers to make graduation cash entry No. 13777 for the above described land under the provisions of the act of August 4, 1854 (10 Stat. 574), paying therefor at the rate of seventy-five cents per acre, he having alleged at the time of making such purchase that he claimed said land as an adjoining farm, and had built a house thereon in February, 1858.

The money paid to the government on account of the purchase made of this land in 1858 is yet retained, and the decision appealed from holds the entry for cancellation because of a withdrawal of the land for indemnity purposes made under the act of August 11, 1856, prior to the allowance of said purchase.

It appears that even prior to the making of the grant, to wit, on August 9, 1856, blanket withdrawals were made by telegram of lands likely to fall within the limits of the contemplated grants, which were followed by letters August 15, 1856, following the passage of the act of August 11, 1856, the lands being withdrawn from all entry or location. These withdrawal orders were modified August 22, 1856, so as to permit the allowance of preemptions based upon settlements made prior to the filing of the map of definite location. The map of definite location in this instance was filed on October 22, 1856, and