This does not necessarily mean that the misrepresentation must be wilful or fraudulent. The desert land act places the burden of proof as to the character of the land taken thereunder upon the applicant therefor. It was said in the case of Kern Oil Company et al. v. Clarke (on review, 31 L. D., 288, 300):

Wherever, by act of Congress, provision is made for the disposal by selection, entry, and patent, of portions of the public lands of a designated class and character * ** * it is the duty of the land department to ascertain and determine whether lands sought to be acquired under the act are of the class and character thereby made subject to disposal. Until such determination Las been made and the lands found to be such as the act describes, entry thereof can not be lawfully allowed. The evidence to enable this to be done, when such evidence does not, and could not from the conditions to be inquired into, appear from the land office records, must of necessity be furnished by those who seek title under the act. The land officers are not required, and from the nature of things could not be required, to take judicial cognizance of the physical condition of lands with respect to which, in the discharge of their duties, they are called upon to act.

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For the purpose of such determination resort must generally be had to outside evidence. This evidence must be furnished by the selector. It is his duty to show, in so far as physical conditions are concerned, that the land to which he seeks title is of the class and character subject to selection.

The same rule, above indicated, controls in the matter of State selections under the act of August 18, 1894. There is no question of forfeiture in this case but it merely involves the extent of the power of the Secretary of the Interior to repay money that has been covered into the Treasury, which power is defined and limited by law. The claim for repayment herein is not one coming within the purview of the repayment statute. The decision of your office is therefore affirmed.

OCCUPATION AND USE OF PUBLIC LANDS-EQUITABLE RIGHTS-HOMESTEAD ENTRY.

FRITCHMAN v. ZIMMERMAN.

The long-continued occupation and use of public lands, under color of title and claim of right, and the expenditure of large sums of money in the construction and maintenance of reservoirs thereon for the purpose of furnishing a water supply to a nearby city, constitute equitable considerations which should be recognized by the land department; and the rights acquired by such occupation, improvement and use will be protected as against one who, with full knowledge thereof, seeks to acquire title to the lands under the homestead laws.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C:) January 30, 1905. (E. J. H.)

August 26, 1903, John L. Zimmerman made homestead entry covering lots 1 and 2 of Sec. 20, and lots 1 and 2 and the N. of NW. of Sec. 21, T. 17 N.. R. 10 E., Santa Fe, New Mexico, land district.

September 23, 1903, William H. Fritchman filed affidavit of contest against Zimmerman's entry, alleging, in substance, that said entry was illegal and fraudulent; that the land was unfit for homestead purposes and the entry thereof was not made with the bona fide intention of making a home thereon but for purposes of speculation; that lots 1 and 2 of said Sec. 20 and part of lot 1 and the NW. ¦ of NW. of said Sec. 21, are not public domain but private property and within the limits of the grant to the city of Santa Fe, under the act of Congress of April 9, 1900; that lots 1 and 2 of said Sec. 21 and lot 2 of said Sec. 20, are and for many years have been used and occupied as a public reservoir and for reservoir purposes, from which the city of Santa Fe and the inhabitants thereof, in which city are several public buildings belonging to the United States, are supplied with water for domestic and irrigation purposes and the extinguishment of fires; that said reservoir is partly located upon said grant to the city of Santa Fe, partly upon the Talaya Hill grant and partly upon said lots 1 and 2 of said section 21, and was until recently believed to be entirely upon said grants; that the said Zimmerman is the county surveyor and has acted in the capacity of city engineer of the city of Santa Fe; that the owners of said reservoir and the pipe lines and ditches connected therewith employed Zimmerman to make a survey of the land covered by said improvements in order to ascer tain what portion thereof, if any, was located upon the public domain, with a view to taking the necessary steps to protect their rights therein; that Zimmerman made a survey of said lands and a plat thereof from which it appeared that a portion of the reservoir was located upon said lots 1 and 2 of Sec. 21; that subsequently Zimmerman made the entry in question, basing his knowledge of the description and status of said land upon the information thus obtained under the employment of the owners of said reservoir, and with the view of interfering with their rights and ultimately selling said lands to them, and it was asked that said entry be canceled and that the portion of said land found to be public domain be declared subject to the rights of the owners of said reservoir.

A hearing was ordered to be held November 3, 1903, and notices thereof served, and on that day the parties appeared and by agree ment the case was continued to November 24, 1903, when said hearing was begun and with various continuances lasted until February 4, 1904.

March 12, 1904, the local officers rendered decision recommending the cancellation of the entry, and that the Santa Fe Water and Light Company, of which the contestant, Fritchman, was the general manager, be allowed a reasonable time within which to acquire title to the land covered by their improvements. From this decision Zimmerman appealed.

In the meantime, however, under date of August 28, 1903, the surveyor-general advised the local officers by letter, that it had just been discovered that on October 25, 1899, Candelario Martinez had filed small holding claim for several tracts, including lot 2 of Sec. 21, covered by the entry of Zimmerman, notification of which should have been furnished the local office, but had been overlooked. The local officers on September 1, 1903, rejected said claim and Martinez appealed.

It appears that on October 1, 1903, Martinez also filed an affidavit of contest against Zimmerman's entry, claiming that he had been in possession of the land covered by his small holding claim for more than thirty-seven years, and that Zimmerman's homestead entry should be canceled as to the land in conflict therewith. This affidavit of contest was suspended by the local officers because the contest of Fritchman was pending against the same entry.

July 18, 1904, your office decision found that of the lands embraced in Zimmerman's entry, lots 1 and 2 of Sec. 21 and lot 2 of Sec. 20, had for many years been used by the Santa Fe Water and Light Company and its grantor, the Santa Fe Water and Improvement Company, which corporations have furnished the city of Santa Fe with its water supply and electric lights; that Fritchman, the contestant, is the general manager of said Water and Light Company, and in that capacity brought this contest for the purpose of securing title to the land for the benefit of said company; that the land upon which the old reservoir is located has been so used for over twenty years, and that upon which the new reservoir is located for over thirteen years; that said corporation and its assignors have expended large sums of money, approximately $300,000, in building dams, reservoirs, and other works necessarily incident to the establishment and maintenance of a large water plant, of all of which Zimmerman was fully advised; that as city and county surveyor he had surveyed the lands and first advised the officers of the company that a portion of their improvements were located upon the public domain; that he obtained this information while acting as the company's agent, or as the city surveyor whose duty it was to survey individual holdings within the limits of the Santa Fe grant.

It was further found from the testimony that the land in conflict is practically worthless for agricultural purposes, the only piece susceptible of cultivation being a part of lot 2 of section 21, which is included in the small holding claim of Candelario Martinez, hereinbefore mentioned; that Zimmerman admitted to Martinez that he built his house on said lot for the reason that he did not have any other place to build it; that the only improvement made by Zimmerinan is a pole shanty worth about twenty-five dollars, erected on said lot; that the land was not only improved by the Water and Light

Company at the date of Zimmerman's entry, but had long been so held by said company and its predecessor, and said company was exercising ownership thereto under deeds which constituted at least. color of title and claim of right.

It was held that while the legal title to said lands is still in the United States, the large expenditures of money and labor thereon, and the long continued occupation and use thereof, under color of title, constitute equitable considerations which should be recognized; that such considerations have repeatedly been recognized by the Department and the courts. The action of the local officers recommending the cancellation of Zimmerman's entry was affirmed, from which he has appealed to the Department.

The action of the local officers in taxing the costs in the case against the contestant, Fritchman, under rule 54, was likewise affirmed; from which appeal has been taken to the Department.

The record in this case is voluminous. A large number of witnesses testified at the hearing on behalf of the contestant, and on behalf of the entryman, two besides himself. The testimony adduced relates chiefly to the character of the land, the improvements placed thereon by the Water and Light Company, and the good faith of the entryman in making the entry. By a strong preponderance thereof it was shown that the land was generally rough and hilly, and that not to exceed three or four acres thereof were susceptible of cultivation, nearly all of that which could be cultivated being situated on the small holding claim of Martinez (lot 2 of section 21). It is evident from the character of the land and the action of Zimmerman, as set forth quite fully in your office decision and in that of the local officers, that he did not make the entry in question for the purpose of cultivating the land and making his home thereon. He was well aware that a portion of the land had for many years been held by the Water and Light Company and its predecessors, under deeds which at least constituted color of title and claim of right, and that large sums of money had been expended thereon.

The departments and the courts have repeatedly held that lands thus occupied and improved are not subject to entry, but that the government will retain the title thereto until a party who has placed extensive improvements thereon, under claim of right, shall be enabled to obtain the title from the government. Williams ». United States (138 U. S., 514).

In the case of J. M. Longnecker, on review (30 L. D., 611), the Department held that " in the administration of the public land laws the Department may, and in a proper case should, recognize and protect equitable rights acquired through a long continued occupancy public land with the knowledge and consent of the government."

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It appears from your office decision that at one time the land occupied by the Water and Light Company which is outside of the limits of the Santa Fe grant, was included within the limits of the Gonzales grant, as shown by the preliminary survey thereof on file in your office. This fact tends to show the good faith of said Water and Light Company and its grantors in purchasing the land as a reservoir site.

Your office decision holding Zimmerman's entry for cancellation is affirmed.

With reference to the taxation of the entire costs in the case to the contestant, Fritchman, under rule 54 of the Rules of Practice, the Department does not concur therein. It does not appear that Fritchman claimed the preference right of entry under the second section of the act of May. 14, 1880 (21 Stat., 140). In his affidavit of contest he asked the cancellation of Zimmerman's entry and that the "portion of the land which is found to be public domain be declared subject to the rights of such water company," etc. Fritchman was shown to be a stockholder and the general manager of the company and testified that he brought the contest solely on behalf of the company and that he had no interest in the result thereof, except as a member of said company.

It is evident, under this situation, that the costs should have been taxed under rule 55. Your office decision upon that point is accordingly modified, and it is held that each party pay the costs of taking testimony upon his own direct and cross-examination.

GREAT SIOUX INDIAN RESERVATION-DISPOSAL OF CERTAIN LANDS THEREIN.

Register and Receiver,

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,
WASHINGTON, D. C., January 31, 1905,

Pierre, South Dakota.

GENTLEMEN: In the President's proclamation of February 10, 1890 [26 Stat., 1554], providing for the disposal of the land in the ceded portion of the Great Sioux Indian reservation under the provisions of the act of March 2, 1889 (25 Stat., 888), there was reserved from disposal the following described tract, within which the Cheyenne River Agency, school and certain other buildings are located, towit: Commencing at a point in the center of the main channel of the Missouri River opposite Deep Creek, about three miles south of Cheyenne River; thence due west five and one-half miles; thence due north to the Cheyenne River: