provided. To fully meet the purpose of the reservation it was necessary that it should at once become operative whenever and wherever lands were covered by a claim such as the statute describes.

The Department is therefore of the opinion that in so far as the lands here in controversy were covered by the Tumacacori and Calabazas claim, or by the San Jose De Sonoita claim, on June 17, 1863, such lands were at that time in a state of reservation under the eighth section of the act of July 22, 1854, and, for that reason, were not vacant lands subject to selection or location by the claimants under the Baca grant. While this conclusion is not in entire harmony with the views expressed by the Department in the case of Joseph Farr (24 L. D., 1), or with those in the case of the Tumacacori and Calabazas Grant (16 L. D., 408), it is the result of mature deliberation and is believed to be the correct conclusion.

II. The next question to be considered is whether the final judicial determination of the invalidity of the Tumacacori and Calabazas grant in its entirety, and of the invalidity of the San Jose De Sonoita, in part, can operate to the advantage or benefit of the Baca grant claimants. In other words, the question is: Did the Baca selection of June 17, 1863, become operative upon the lands covered by said Mexican claims, upon, and to the extent of, their release from reservation by the final action of the courts, as aforesaid, so as to include the lands thus released within the Baca grant?

It is well here to observe that by express provision of the act of June 21, 1860, the right of selection thereby granted the Baca heirs was to continue in force during the period of three years from the passage of the act and no longer. The language used is clear and explicit. The right to select was to continue for three years, and no longer. The three years during which selection could be made therefore expired with the expiration of the 21st day of June, 1863, and thereafter no right of selection under the act existed.

In the case of Shaw v. Kellogg (170 U. S., 312), the supreme court had under consideration selection No. 4 of the series authorized by said act of June 21, 1860, and in the discussion of the questions there presented the court said (page 332):

The grant was made in lieu of certain specific lands claimed by the Baca heirs in the vicinity of Las Vegas, and it was the purpose to permit the taking of a similar body of land anywhere within the limits of New Mexico. The grantees, the Baca heirs, were authorized to select this body of land. They were not at liberty to select lands already occupied by others. The lands must be vacant. Nor were they at liberty to select lands which were then known to contain mineral. Congress did not intend to grant any mines or mineral lands, but with these exceptions their right of selection was coextensive with the limits of New Mexico. We say "lands then known to contain mineral," for it can not be that Congress intended that the grant should be rendered nugatory by any future discoveries of mineral. The selection was to be made within three years. The title was then to pass, and it would be

an insult to the good faith of Congress to suppose that it did not intend that the title when it passed should pass absolutely, and not contingently upon subsequent discoveries.

It was under the authority of that case that the Department, in the decision herein of July 25, 1899, held that the time with reference to which the character of the land selected, whether mineral or not, is to be determined, is the date of the selection and not the date of the survey of the claim.

The same authority would seem to be equally applicable and controlling as to the present controversy. If the time with reference to which the character of the land is to be determined, is the date of the selection, it is but reasonable that the same rule should be followed in the determination of the condition or state of the land, that is whether vacant, or reserved on account of an existing Spanish or Mexican claim. Besides, the selection was to be made within three years. "The title was then to pass," says the court; also, that it was intended by Congress "that the title when it passed should pass absolutely." No selection or location could thereafter be made, nor could any lands as to which title did not pass under the grant within the three years, thereafter be included within, or as a part of, the grant. From this it necessarily follows that the Baca claimants are entitled under the selection or location of June 17, 1863, only to such lands as were then vacant, or free from reservation, and not known to be mineral. In other words, they are now entitled to have surveyed as within their grant only those lands as to which the title passed to them when the selection or location of June 17, 1863, was made. To the extent that the lands here in controversy shall be found by the surveyor-general to have been, at the date of said selection or location, within the claimed limits of the aforesaid Mexican grants, the same having been at that time, as has been shown, in a state of reservation for the benefit of the claimants under those grants, the title did not pass by such selection or location to the Baca claimants, and it is accordingly held that such lands can not be included within the survey of the Baca grant, but must be excluded therefrom.

III. The third contention by the petitioners, to which the affidavits filed by them principally relate, is not within the purview of the order of December 11, 1899, according them a hearing before the Department preliminary to the execution of the survey directed by the decision of July 25, 1899. In that decision plain directions were given as to the officer by whom, the manner in which, and the time with reference to which the character of the land, that is whether known mineral or not, is to be determined, and nothing further need be said on that subject.

IV. It is contended by the Baca people that the lands embraced within said Mexican grants were not occupied by the claimants there

under or otherwise when the selection or location of June 17, 1863, was made, and that they were therefore at that date vacant lands subject to selection under the act of June 21, 1860. In so far as the contention is intended to negative the idea of actual occupancy of the lands at the time by the Mexican grantees, or their agents or others claiming under them, it presents a question which rests upon matters of fact, and the same answer as made to the third contention by the petitioners applies with equal force to this. It should be here repeated, however, so that there can be no mistake or misapprehension in the matter, that to the extent said lands were at the time covered by either of said Mexican claims, and for that reason within the statutory reservation hereinbefore referred to, it can not be held that they were vacant lands within the meaning of that term as used in said act of June 21, 1860.

All the matters presented by the petition and answer having been disposed of, you are directed to cause the surveyor-general of Arizona to proceed with the survey of the Baca grant, in accordance with the views expressed and principles announced in this decision and in the former decision of July 25, 1899.

APPROXIMATION-EXCHANGE OF LANDS-ACT OF JUNE 4, 1897. OPINION.

There is no authority for applying the rule of approximation permitted in entries under the homestead and other laws to cases of exchange of lands under the act of June 4, 1897; but the rule that "a slight difference in the acreage of the tract relinquished and selected will not be deemed an inequality in quantity," may be followed in proper cases arising under the exchange provisions of said act. Assistant Attorney-General Van Decanter to the Secretary of the Interior, June 30, 1900. (E. B., Jr.)

By your reference, for an opinion in the premises, I am in receipt of a letter from the Commissioner of the General Land Office dated June 8, 1900, requesting to be instructed whether the rule of approximation permitted in entries under the homestead and other laws, "as laid down in the cases of Henry P. Sayles, 2 L. D., 88, and Julius Cramm, 17 L. D., 205," may be applied in cases of exchange of lands under the act of June 4, 1897 (30 Stat., 11, 36).

By the rule referred to an applicant for patent under the homestead and certain other laws is permitted to pay for and include in his entry whatever excess there may be in the acreage of his claim over the amount ordinarily limited by the law, provided such excess is not greater than the deficiency below such amount which would result should a subdivision be excluded from the entry. The rule is not

statutory but is grounded in expediency, amounting in some cases, under the homestead law at least, almost to a rule of necessity.

There is no authority in the act of June 4, 1897, supra, for applying the rule above stated in any case of an exchange of lands thereunder, nor does it seem that the application of such rule therein could be justified on the ground of necessity. The said act expressly provides that in lieu of the tract relinquished the settler or owner thereof may select a tract of the character described therein "not exceeding in area" the tract relinquished. It contains no provision requiring or authorizing the payment or receipt of any money in the transaction, but on the other hand prohibits any "charge for making the entry of record or issuing the patent to cover the tract selected."

Paragraph 11 of the regulations under the provisions of the act of July 1, 1898 (30 Stat., 597, 620), for the adjustment of conflicting claims to lands within the limits of the grant to the Northern Pacific Railroad Company, was prepared to meet conditions similar to those under the act of 1897 which are the occasion of the Commissioner's request for instructions relative to the application of the said rule of approximation. The paragraph reads as follows:

Selections will be limited to a quantity of land not exceeding that relinquished, but, since all selections must be according to legal subdivisions which generally approximate but do not always embrace the same area, a slight difference in the acreage of the tract relinquished and selected will not be deemed an inequality in quantity.

I am of the opinion that the rule stated in the above paragraph 11 may be followed in proper cases arising under the exchange provisions of the act of 1897, and that it will be found sufficient in the proper administration of those provisions; but that the said rule of approximation as applied in cases arising under the homestead and other laws is not applicable to cases of exchanges of lands arising under the said act of 1897.

Approved:

THOS. RYAN,

Acting Secretary.

RAILROAD GRANT-INDEMNITY SELECTION-DUPLICATION OF BASES.

HASTINGS AND DAKOTA RY. Co. v. PATTIS.

In the case of a duplication of bases in a railroad indemnity selection list, an approval of the list to the extent of the basis assigned renders the remaining tracts dependent upon said basis unsupported, and a new assignment of basis for such remaining tracts can not be allowed so as to affect intervening adverse rights. Acting Secretary Ryan to the Commissioner of the General Land (W. V. D.) Office, June 30, 1900. (E. J. H.)

The SW. of Sec. 33, T. 121 N., R. 41 W., Marshall land district, Minnesota, is within the indemnity limits common to the grants to

the St. Paul, Minneapolis and Manitoba and the Hastings and Dakota railway companies, for which withdrawals were made but revoked on May 22, 1891 (12 L. D., 541).

On October 29, 1891, pursuant to departmental decision in a case between said companies (13 L. D., 440), the Hastings and Dakota company filed list No. 1 for the selection of indemnity lands, among which were the S. of Sec. 29, T. 123 N., R. 43 W., and the S. of Sec. 33, T. 121 N., R. 41 W., aggregating 640 acres, assigning the same basis for each of said selections, to wit, the S. of Sec. 35, T. 116 N., R. 29 W., embracing 320 acres.

On April 26, 1894, Albert Pattis made homestead application for the SW. of said section 33, alleging, in his corroborated affidavit filed therewith, that he "commenced his settlement and improvement on the land Oct. 1, 1891;" that he established actual residence thereon in March, 1892, and had maintained such residence ever since; and that his improvements consist of a house, barn, well, and 80 acres under cultivation, all of the value of $400. He also alleged, in his homestead affidavit, that he had declared his intention to become a citizen of the United States, and possessed the requisite qualifications to make entry. A certified copy of his declaration of intention to become a citizen, made on February 3, 1892, is on file in the case.

The company filed a protest against the allowance of Pattis' application, making its usual claim of superior rights under its selection, but in no wise traversing his allegations as to residence, improvements, or qualifications to make entry.

The case was forwarded to your office without hearing or action thereon by the local officers, so far as disclosed by the record, where, on November 8, 1899, your office decision found, as matter of fact, substantially, that the company had asserted claim to the two halfsections under its designated selections (S. Sec. 29-123-43, and S. Sec. 33-121-41), for which it had furnished but one half-section as basis; that it appeared that the SE. of said section 29 was approved to the company on March 29, 1897; that your office had, on August 19, 1898, rejected homestead application of William Fritz for the SE. of said section 33, as offering no bar to the company's selection thereof; and that the company's selection of the SW. of section 29 had, on October 29, 1898, been held for cancellation on contest with homestead applicant, Christian Akre.

Thereupon it was held that, in view of the foregoing, it was evident that the company had exhausted its rights so far as its selections under the basis furnished was concerned; that the company's selection of the tract in controversy (SW. Sec. 33-121-41) was unsupported and therefore invalid; and that, although Pattis was not qualified as to citizenship on October 29, 1891, to make entry, he was shown to have become duly qualified on February 3, 1892, and to have established residence