Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) January 24, 1901.

(W. A. E.) August 4, 1897, George W. Endsley made homestead entry No. 283, for the SW. of Sec. 27, T. 2 N., R. 20 W., Mangum, Oklahoma, land district.

December 31, 1897, John W. Bobbitt filed his application to make homestead entry for the above described tract, claiming a preference right of entry under section 1 of the act of January 18, 1897 (29 Stat.. 490). In an affidavit accompanying said application Bobbitt alleged that he was a bona fide occupant of said land on March 16, 1896; that prior to that date he had placed on the land improvements to the value of $250; that he established his residence on said land in 1888 and resided there continuously until September 15, 1893; that he was then forced to leave on account of the failure of his crops; that he left all his household furniture and a part of his farming implements on the land, as he intended to return as soon as possible; that during his absence nearly all his improvements were removed from the land without his consent; that when he went away he left the place in charge of an agent; and that he had not been financially able to return. to the land prior to the date of his application.

A hearing was ordered on these allegations, and at the appointed time both parties appeared. No testimony was submitted at that time, but, on motion by Endsley, the register and receiver rejected Bobbitt's application on the ground that by Bobbitt's own statement he had abandoned the land for almost four years, and was not a bona fide occupant thereof on March 16, 1896.

On appeal, your office, by letter of September 16, 1899, remanded the case for hearing, and on December 13, 1899, both parties submitted testimony.

Upon consideration of the evidence, the register and receiver rendered dissenting opinions-the former recommending that Endsley's entry be held intact, and the latter that it be canceled in favor of Bobbitt.

August 6, 1900, your office affirmed the decision of the register and held Endsley's entry intact. Bobbitt's appeal from this action brings the matter before the Department.

There is no dispute as to the material facts in the case, which appear to be as follows:

In October, 1888, Bobbitt went on the land with the intention of making it his home and built a dugout, granary, fence, cow pens, horse lots, dug a well, and planted about seven hundred peach and walnut trees. During 1890, 1891, and 1892, he raised crops of corn, wheat, oats, millet, and sorghum. In 1892 his crops were destroyed by hail. Being in debt, and not being able to obtain employment near the land, he went to Ellis, Texas, in September, 1892, where he got

work picking cotton at one dollar and twenty-five cents per day. Before leaving this land he planted a crop of wheat, and in June, 1893, he returned and harvested it. He then went back to Ellis, Texas, but before doing so he rented the place to one Killen for a year, with the understanding that Killen should look after the place until he got back. His household goods and most of his farming implements were left on the land. Killen raised a crop of feed on the land in 1894, but during 1895 and 1896 the land lay idle. In September, 1895, Bobbitt's movable improvements were levied on, sold, and moved away. His goods were thrown out, and some of the neighbors took care of them. Killen left the vicinity of this land about January 1, 1896. It does not appear that Bobbitt took any further action in regard to this land up to the time he filed his application to make entry therefor. On March 16, 1896, the only improvements on the place were the well and some breaking, the latter grass grown and used as a common by the neighbors to pasture their cattle on.

Endsley went on the land in the spring of 1897, did some plowing, and put in a crop of cotton, Kaffir, and sorghum. In the fall of 1897 he built a dugout on the land, and in January, 1898, less than six months from the date of his entry, he established his residence on said tract, and has resided there continuously ever since.

By section 1 of the act of January 18, 1897, a preference right of entry was given to "every person qualified under the homestead laws of the United States, who, on March sixteenth, eighteen hundred and ninety-six, was a bona fide occupant of land within the territory established as Greer county, Oklahoma." The time within which this preference right should be exercised was originally limited to six months from the passage of said act, but subsequently it was extended, by act approved June 23, 1897 (30 Stat., 105), to January 1, 1898.

Bobbitt's application was filed in time, and the only question presented by the record is, whether he was a bona fide occupant of the land on March 16, 1896.

In the case of Frank Johnson (28 L. D., 537), the word "occupant," as used in the act of January 18, 1897, was held to mean one in the actual use and possession of the land claimed by him. To be an occupant one must have not only the possession, but the actual use and enjoyment of the land. In the case of Fleming . Maddox (30 Iowa, 239), cited in the Frank Johnson case, the following language was used:

If the farmer leases his farm to a tenant, he would still have the possession, because the possession of the tenant is that of his landlord, but he would not be in the actual occupation; he has parted with that to his tenant. The tenant, after entry under his lease, has the use and enjoyment of the premises, and pays to his landlord the stipulated rent therefor. But, where the owner of the land is in the actual use and enjoyment of it himself, although in such use and enjoyment he employs others to perform all the labor connected therewith, he is in its actual occupation, within the meaning of that term.

It appears from Bobbitt's own testimony that when he left the land here involved in 1893 he rented it to Killen for one year. In so doing, he parted with the actual occupation to Killen. On the expiration of Killen's lease in 1894, Bobbitt took no steps to renew his occupation, nor had he done so up to the date of the hearing in this case. Even if it be held, however, that leaving his household goods and farming implements stored on the land was a sufficient "use and enjoyment' of the land to renew his occupation on the termination of Killen's lease without further action on his part, yet even this small use and enjoyment was ended in the fall of 1895, when all his goods and movable improvements were moved from the land.

It thus appears that on March 16, 1896, Bobbitt was not in the actual use and enjoyment of the land in question, and consequently was not a bona fide occupant at that date.

Your office decision is hereby affirmed, Bobbitt's application is rejected, and Endsley's entry is held intact, subject to compliance with law.

SCHOOL LAND-SURVEYED

LAND IN FOREST RESERVATION-SELEC. TION OF LIEU LAND.

OPINION.

A selection authorized by the State of lands in lieu of sections sixteen and thirtysix in a forest reservation, where the right of the State to said sections has attached under its school grant prior to the establishment of the reservation, is such a waiver of its right to said sections as to obviate the necessity for the formal relinquishment thereof to the United States, as required by circular instructions of March 11, 1899.

Assistant Attorney-General Van Devanter to the Secretary of the Inte rior, January 26, 1901. (S. V. P.) it was

By departmental decision of January 30, 1899 (28 L. D., 57), held that where a surveyed school section numbered 16 or 36, the title to which has passed to a State, is subsequently included within the limits of a forest reservation, the State, under the authority of section 2275, Revised Statutes, as amended by the act of February 28, 1891 (26 Stat., 796), may waive its right to such school section and select other land in lieu thereof.

In pursuance of this decision, on March 11, 1899 (28 L. D., 195), the following circular instructions were issued, requiring that the waiver of the State be evidenced in the manner therein prescribed:

2. The State will be required to file with each list of selections a relinquishment to the United States, by the officer or officers charged with the care and disposal of such State lands, of all its right and title in and to the lands designated as bases; and also a certificate by such officer or officers that the State has not encumbered, sold or disposed of, nor agreed to encumber, sell or dispose of, any of the said lands, and that

none of them are in possession of any third party under any law or permission of the State.

3. The said relinquishment must be executed, acknowledged and recorded in the same manner as conveyances of real property are required to be executed, acknowledged and recorded by the laws of the State; and therewith must be filed a certificate by the recorder of deeds or official custodian of the records of transfers of real estate in the proper county, that no instrument purporting to convey or in any way encumber the title to any of said land is on file or of record in his office.

By letter of November 2, 1899, the Commissioner of the General Land Office submitted a communication from the State surveyor general of California, dated October 3, 1899, asking for a modification of said circular instructions in so far as they require the State to file with each lieu selection a formal deed relinquishing or waiving its right and title to the land in lieu of which the selection is made.

With the Commissioner's letter was also an application on behalf of purchasers from the State, asking for a similar modification of said regulations.

The surveyor-general in his letter states:

I regret to say that I am without the legal right or power to comply with the regulations now in force, and if your office insists upon its enforcement the State will be precluded for many years from securing title to many acres of land to which, in my judgment, she is entitled, and great hardships and annoyances will entail upon the individuals to whom she has already sold these lands. It seems to me that when I, as the surveyor-general of this State filed a selection and asked to select other lands and designated a section within a forest reserve as basis, it is all that could be asked of the State, and the fact that the State took other land as indemnity and sold it, and received and retained the money, would operate as a bar to the State ever claiming thereafter the section used as basis.

The act of Congress dated February 28, 1891, provides that "the selection of such lands in lieu thereof by said State or territory shall be a waiver of its right to said sections," and it would seem that this provision of the federal statute, coupled with the official acts of my office would meet all the requirements of your office.

By your reference an opinion is requested as to whether "the selection by the State of California of lands in lieu of sections sixteen and thirty-six in a forest reservation, where the right of the State to said sections has attached, is such a waiver of its right to said sections as to obviate the necessity for the relinquishment thereof to the United States as required by said circular instructions."

In support of the application of the surveyor-general a brief has been filed on behalf of the State.

The question herein arises under the following provisions of section 2275, Revised Statutes, as amended by the act of February 28, 1891, to wit:

And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said State or Territory, where sections sixteen or thirty-six are mineral land, or are included within any Indian, military, or other reservation, or are otherwise disposed of by the United States: Provided, Where any State is entitled to said sections sixteen and thirty-six, or where said sections are reserved to any Ter

ritory, notwithstanding the same may be mineral land or embraced within a mili tary, Indian, or other reservation, the selection of such lands in lieu thereof by said State or Territory shall be a waiver of its right to said sections.

The departmental decision under which these regulations were formulated holds that this section, so amended, not only authorizes the State to select indemnity for sections 16 and 36 where lost to the grant by reason of being included within any Indian, military, or other reservation before the title vests in the State, but also confers upon the State the privilege of exchanging for other lands said sections, where after the title has vested in the State the same are embraced within such a reservation.

The circular instructions under consideration were formulated with the view that, where the title to the base lands had vested in the State, an exchange thereof for other lands could only be effected through some act on the part of the State that would carry the full conse quences of a reconveyance of the base lands to the United States.

The surveyor-general states that he has no authority to make a formal deed of relinquishment to the United States and in that manner return the title that has vested in the State, but insists that if he selects other lands in lieu of those to which the State has a vested title and such selection is approved by the Secretary of the Interior that a full reconveyance to the United States of the State's title will be thereby effected.

Scetion 2275, Revised Statutes, as so amended, which has been held as before stated to authorize a State to select lands in lieu of a school section, which has been embraced within the boundaries of a reservation, after the title thereto has vested in the State, contains the further provision that "the selection of such lands in lieu thereof by said State or Territory shall be a waiver of its right to said sections."

To say that this provision does not contemplate that this selection of other lands will constitute an effective waiver of the State's right to the lands to which it has a vested title, and in lieu of which the selection is made, is to say that the statute does not authorize a selection of lands in lieu of lands of that character. The provision as to waiver applies to all lands in lieu of which a selection is authorized. No dis tinction in the effect to be given to the selection can be based upon the fact that the title to the base lands has or has not vested in the State. In either case the selection of other lands in lieu thereof is a waiver of the right of the State to the base lands. Congress has authority to declare what effect shall be given to such a selection and to provide that it shall constitute a sufficient waiver of the State's claim to the base lands, and having done so, it is not necessary for this Department to require a further waiver in the shape of a formal deed of relinquishment.

If the surveyor-general has authority under the laws of the State