a bona fide one, and upon adjustment and settlement of his claim against the company he surrenders the contract to the company merely as evidence of such adjustment and settlement, he does not thereby waive, surrender, or lose the right given him as such purchaser, by the statute under consideration. The right to purchase arises by force of the statute in consequence of an ineffectual purchase made in good faith, and is not dependent upon the continued existence of the particular form of evidence of that purchase in form of the ineffectual contract.

To hold that acceptance of return of his purchase money, or payment of damages, bars the purchase right, is to construe the statute as one for the protection of the railroad company against claims for damages arising by breach of its contracts. Obviously that was not its intention. As the applicant had not severed his relation to the land by abandonment of it, or by conveyance of his right to and interest in the land, his right to purchase under the act in question was not affected or impaired by acceptance of a return of the purchase money paid to the company.

The former departmental decision fails to distinguish between the rights arising on the railroad company's defaulted contract of sale, which sound in damages only, and the equitable right of the purchaser in and to the land itself recognized and given by the statute. The first were satisfied and the contract terminated by the convention of the parties executed in the form of an assignment, but without any such intention, force, or effect in fact. At that time the decision of the supreme court, quieting the government's title to the land, had been made and was known to the parties. They did not deal with the land or rights therein, that the railroad company had no intention to acquire nor Hall any intention to abandon or transfer. His object was thereby to obtain the money necessary to exercise his right of purchase and to acquire title from its holder, the government. He looked no longer to the company for title, but to the government, relying on its promise to grant him title upon his paying for the land. His right of purchase was unaffected by his settlement with the company.

The departmental decision under review was erroneous and is vacated. It is not necessary to now inquire whether departmental decision in Stryker v. Brinkley (19 L. D., 503) is inconsistent herewith.

Your office decision is reversed, and Hall will be allowed to complete his purchase.

FORT BUFORD ABANDONED MILITARY RESERVATION-ACT OF MAY

19, 1900. INSTRUCTIONS.

Commissioner Hermann to registers and receivers, Miles City, Montana, and Minot, North Dakota, July 27, 1900.

Your attention is called to the provisions of the act of Congress of May 19, 1900 (Public-No. 108), entitled "An act providing for the disposal of the Fort Buford abandoned military reservation in the States of North Dakota and Montana," as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all public lands now remaining undisposed of within the abandoned military reservation in the States of North Dakota and Montana, formerly known as Fort Buford Military Reservation, and which are not otherwise occupied or used for any public purpose, are hereby made subject to disposal under the homestead, townsite, and desert-land laws: Prorided, That actual occupants thereon upon the first day of January, nineteen hundred, if otherwise qualified, shall have the preference right to make one entry not exceeding one quarter section: Provided further, That any of such lands as are occupied for townsite purposes, and any of the lands that may be shown to be valuable for coal or minerals, such lands so occupied for townsite purposes or valuable for coal or minerals shall be disposed of as now provided for lands subject to entry and sale under the townsite, coal, or mineralland laws, respectively: Provided further, That this act shall not apply to any subdivision of land, which subdivision may include adjoining lands to the amount of one hundred and sixty acres, on which any buildings or improvements of the United States are situated, but such lands shall be appraised and sold as now provided by law.

The act in question opens all of the lands undisposed of within said abandoned military reservation, to disposal under the homestead, townsite and desert-land laws; such legal subdivisions, to the extent of 160 acres in each case, on which any buildings or improvements of the United States are situated, being excepted.

It gives a preference right of entry for one quarter section of land to those who, on the first day of January, 1900, were actual occupants thereon and are otherwise duly qualified to make entry under the homestead law.

It also provides that lands that are occupied for townsite purposes or that are valuable for coal or minerals, shall be disposed of as now provided for such lands under the townsite, coal or mineral-land laws, respectively.

The lands within the reservation have not yet been surveyed; therefore, until the official plats of survey have been filed in your office, no applications to make entry under the homestead law can be received.

Applications, however, may be allowed when accompanied with affidavits that there were no occupants on the lands January 1, 1900, after the official filing of the plats of survey in your office in accordance with rules 1 to 4, inclusive, as prescribed on page 87 of circular of July 11, 1899.

After the expiration of three months from the date of filing of the township plats the preference right of entry given in the first proviso of the act, if not then asserted will, in the face of a valid adverse claim, be deemed to have expired and the affidavit above mentioned will not be required.

The rules and regulations in regard to townsite entries will be found in the circular of July 9, 1886 (5 L. D., 265), and you will be governed thereby, except that you will require to be filed with each townsite application, an affidavit that there are no adverse settlers upon the land whose actual occupancy dates back to January 1, 1900.

In relation to desert-land claims, you will proceed in accordance with the instructions contained in office circular of July 11, 1899, pages 39 to 44, inclusive, and also require affidavits in each case, as in homestead applications, indicated above.

All lands valuable for coal or mineral shall be reserved from disposal, except under the coal or mineral-land laws, respectively, and applications for such lands will be governed by the rules and regulations now in force in such cases.

Under date of December 1, 1897, all of the buildings and improvements on this reservation were offered at public sale under the act of July 5, 1884 (23 Stat., 103), and the purchasers required to remove the same within ninety days from date of purchase.

On February 27, 1899, the local officers at Minot, North Dakota, reported that all the buildings and improvements on the reservation had been sold, and the presumption is that they have all been removed; therefore the last proviso of said act in relation to lands upon "which buildings or improvements of the United States are situated," is inoperative.

Approved:

THOS. RYAN,

Acting Secretary.

SWAMP LANDS-KLAMATH INDIAN RESERVATION.

INSTRUCTIONS.

Directions given that the governor of Oregon be at once notified of all surveys that have been or that may hereafter be completed and confirmed within the limits of the Klamath Indian reservation in said State, and that the Indian Office be promptly notified of any selections made by the State of claimed swamp lands within said reservation, such lands to be particularly specified. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) January 4, 1901. (W. C. P.) Section 2490, Revised Statutes, contains a provision as to selections of swamp lands by the States of Minnesota and Oregon as follows: and the selections to be made from lands already surveyed in each of the States last named under the authority of the act aforesaid, shall have been made within two

years from the adjournment of the legislature of each State, at its next session after the 12th day of March, A. D., 1860, and as to all lands surveyed or to be surveyed thereafter, within two years from such adjournment, at the next session after notice by the Secretary of the Interior to the governor of the State that the surveys have been completed and confirmed.

There is a question whether the State of Oregon is entitled, under the swamp land grant, to any lands within the limits of the Klamath Indian reservation, if there were any swamp lands therein on March 12, 1860, the date of the grant. And there is a still further question whether, if there are any such lands within the limits of said reservation, the State is entitled thereto, where the same are needed or desired for an allotment to an Indian belonging upon said reservation. It is obvious, however, that these questions can not appropriately be considered or definitely determined in the absence of a claim by the State, regularly asserted, to specific lands within the limits of said reservation, the character of which upon March 12, 1860, brings them otherwise within the description of lands embraced in said grant. Some of the State's officers seem to have heretofore informed the Indian Office, in a general way, that the State is asserting that there are lands within the limits of said reservation to which the State is entitled under the swamp land grant, but inquiry at your office elicits the information that no selections of swamp lands within the limits of said reservation have been made on behalf of the State, as contemplated by said grant. You are therefore hereby directed to at once give the governor of the State of Oregon notice of all surveys that have been completed and confirmed within the limits of the Klamath Indian reservation in said State, and hereafter, upon the completion and confirmation of any such survey you will at once give him notice thereof. In such notices attention should be directed to the provision of law in respect to the time within which swamp land selections must be made.

For the purpose of making the necessary examination of the lands, preparatory to the making of swamp land selections, agents of the State, upon application to the Indian agent at such reservation, will be permitted to go on and over the reservation and to do all things necessary to the proper selection of any lands therein claimed to come within the terms of the grant to the State. This will not, however, justify or authorize the disturbing of the occupancy or claim of any Indian, and will not be considered as a recognition of the State's claim, but is done simply that the claim of the State, if any, may be properly presented, duly considered, and rightly determined.

Many of the lands in this reservation have heretofore been allotted to the Indians belonging thereon, but before the issuance of the first or trust patents for such allotments, it is deemed best that the claim, if any, of the State should be determined.

If any selections of claimed swamp lands within the limits of said

reservation are made by the State, your office will promptly give notice thereof to the Indian Office, particularly specifying the lands selected.

ALASKAN LANDS-SECTIONS 12 TO 14, ACT OF MARCH 3, 1891.

PRICE ET AL. v. MOORE.

There is nothing in the act of March 3, 1891, which would preclude one claiming land in Alaska, under sections 12 to 14 of said act, from giving a mortgage or creating a charge or lien upon the property for the purpose of obtaining money with which to carry on his business thereon, nor that would prohibit the giving of an option to the holder of such mortgage, charge or lien, to demand and receive a conveyance of an undivided interest in the property, after patent, in lieu of payment of the moneys due him thereunder; and it would not affect the case at all if it were shown that the holder of such mortgage, lien or option is an alien.

By the location, occupation and improvement of agricultural land in Alaska prior to the assertion of a claim thereto by the occupant, under the act of 1891, a superior right thereto is acquired by him as against all others except the United States.

An entry under the act of 1891 must be limited to the land possessed and occupied for purposes of trade and manufacture, taken "as near as practicable in a square form."

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) January 7, 1901. (E. B., Jr.)

The land involved in this case is a tract of one hundred and sixty acres bordering on Skaguay Bay at the head of Lynn canal, is embraced in survey No. 13, Sitka, Alaska, land district, and is claimed by Bernard Moore under sections 12 to 14 of the act of March 3, 1891 (26 Stat., 1095, 1100), which provide for the sale of lands in Alaska, then or thereafter possessed and occupied "for the purpose of trade or manufactures." The said survey was made in the field in July, 1896, upon due application by Moore, was approved by the ex-officio surveyor-general of Alaska March 1, 1897, and accepted by your office March 25, 1897.

September 16, 1897, Moore applied to be allowed to make final proof and entry for the land, and November 4, 1897, was fixed by the local office as the date for hearing final proof. For reasons not necessary to recite, the hearing of final proof was postponed from time to time until February 16, 1898, when final proof was offered. In the meantime protests had been filed by J. G. Price, for himself and for citizens of Skaguay, by Emery Valentine and others, by the Southern Wharf Company, and by J. T. Field, together alleging, among other things, that Moore is not occupying any of the land in good faith for the purpose of trade or manufactures, but is seeking to make entry thereof for the benefit of others, and that protestants have placed valuable improvements upon the land, which is now