By departmental letter of July 18, 1895 (21 L. D., 55), your office was instructed to direct the local officers to notify the purchasers of these lands then in default in their payments, that if the amounts due from them respectively were not paid in ninety days the entries of those so in default would be canceled. Final action under this order

was suspended November 9, 1895, and, afterwards, the Indians having consented to the allowance of a rebate of ten years' interest to all delinquent purchasers who would pay the amounts due after such rebate within ninety days after notice, your office was instructed by departmental letter of July 20, 1896 (23 L. D., 143), to direct the local officers to notify purchasers then in arrears that all, who within ninety days from notice should make settlement in full, would be allowed a rebate of ten years' interest, and that on failure to settle within that time, their entries would be canceled. Some of the purchasers accepted this offer, and made payment thereunder within the time prescribed, and patents have been issued to them. These are not delinquent purchasers within the terms of the agreement now under consideration, and no action will be taken as to them. Other purchasers tendered payment under that arrangement after the expiration of the time prescribed. This money was received, but no further action was taken, and no patents have been issued in those cases. Such transactions not having been closed, those purchasers are delinquent within the terms of the present agreement, and will be so treated.

Your office has at various times asked instructions in cases where parties have asked an extension of time to make payment under the order of July 20, 1896, or have claimed not to have received notice of that order in time to comply therewith. Such parties are within the terms of the present settlement, and they should be so notified.

MILLER V. TACOMA LAND COMPANY.

Motion for review of departmental decision of March 28, 1900, 29 L. D., 633, denied by Secretary Hitchcock, June 1, 1900.

MINING CLAIM-REGULATIONS OF JUNE 24, 1899, AMENDED.

INSTRUCTIONS.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) (A. B. P.)

June 1, 1900.

To conform to the principles announced by the supreme court in the case of Del Monte Mining Co. e. Last Chance Mining Co. (171 U. S., 55), as applied and followed by this Department in the recent

case of Hustler and New Year Lode Claims (29 L. D. 668), paragraph 7 of the mining regulations, approved June 24, 1899 (28 L. D., 577, 595), is hereby amended so as to read as follows:

7. The rights granted to locators under section 2322, Revised Statutes, are restricted to such locations on veins, lodes, or ledges as may be "situated on the public domain." In applications for patent to lode claims where the survey conflicts with the survey or location lines of another lode claim and the ground in such conflict is excluded, the applicant not only has no right to the excluded ground, but he has no right to that portion of any vein or lode the top or apex of which lies within such excluded ground, unless his location was prior to May 10, 1872. His right to the lode claimed terminates where the lode, in its onward course or strike, intersects the exterior boundary of such excluded ground and passes within it. Paragraph 8 of said mining regulations is hereby abolished.

FOREST RESERVATION-LIEU SELECTION-ACT OF JUNE 4, 1897.

E. S. GOSNEY.

If agricultural lands are improvidently included in a forest reservation they can be eliminated therefrom only by a proclamation of the President or by the action of Congress, and, until so eliminated, such lands will continue a part of the reservation.

A homestead entry covering lands within the limits of a forest reservation, of record at the date of the proclamation establishing the reservation, is effective to except the lands covered thereby from the effect of the proclamation only so long as the entryman continues to comply with the law. On the relinquishment of the entry the exception declared in the proclamation ceases to be operative and the lands at once become a part of the reservation.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 1, 1900.

(E. B., Jr.)

By decision of your office dated May 29, 1899, the application of E. S. Gosney, filed August 29, 1898, to select, under the act of June 4, 1897 (30 Stat., 11, 36), the S. E. 4 of the S. W. of Sec. 20, T. 18 N., R. 8 E.; G. & S. R. M., Prescott, Arizona, land district, in lieu of the N. W. of the N. W. 4 of Sec. 28, T. 28 S., R. 31 E., M. D. M., within the limits of the Sierra forest reserve, was rejected for the reason that the tract applied for is within the San Francisco Mountains forest reserves, established August 17, 1898, by proclamation of the President (30 Stat., 1780). From this action Gosney has appealed. September 22, 1899, Gosney filed in your office his petition averring that he had, in good faith and without knowledge of the establishment of the San Francisco Mountains forest reserves, purchased the land first above described from one John L. Munds, who had entered the same as a homestead long prior to the establishment of the said reserves; that in pursuance of the terms of purchase Munds relinquished his claim to the land August 29, 1898, and his entry being thereupon

canceled, he, Gosney, filed his said application therefor the same day; that he expended $750 in procuring Munds' relinquishment, and has spent several hundred dollars in improving the place for use as his principal or headquarters stock ranch in connection with other tracts of land in the vicinity which he owns or has negotiated for; that to secure control of the stock range, of which the tract in question is an important part, he has expended not less than $10,000, and "will be greatly damaged beyond the value of this tract by the failure to secure the same for use in connection with other ranches and water rights for his stock ranches and grazing;" and that this tract is quite valuable for agricultural purposes, but of very little value as timber land, having only about fifty trees standing together on one corner of it, the balance being very fertile and much of it in cultivation for many years past: Wherefore, petitioner asked that the matter be investigated, the said tract exempted from the said reserves, and his selection thereof approved and patented. With the said petition, and in support thereof, were filed the affidavits of three witnesses, one of whom corroborates generally the allegations of the petition; the other affiants corroborate the petition as to the character of the land only.

Your office considered the said petition in its decision of October 9, 1899, and after finding that the said tract had been entered June 9, 1891, by said Munds under the homestead law, and the entry canceled August 29, 1898, upon Munds' relinquishment, and after reciting also the filing and rejection of Gosney's application, held, in the matter of said petition, as follows:

In regard to the request that this 40-acre tract be now eliminated from the forest reserve in order that it may become subject to such selection, you are advised that, although provision is made by the act of June 4, 1897 (30 Stat., 36), for the restoration to the public domain of lands within a forest reservation, it is not believed to have been the intention of Congress that every small tract, here and there within a reserve, which might be devoid of timber and adapted to agriculture should be subject to restoration. Moreover, in this group of reserves where each individual reserve is so small in itself, it appears especially undesirable that any tracts should be eliminated.

The application of E. S. Gosney for the elimination of said tract is, accordingly, hereby rejected.

From the rejection of his petition Gosney has also appealed.

The two appeals will be considered together. It is contended by the appellant (1) that the land in controversy is more valuable for agricultural purposes than for forest purposes, and that, therefore, it was not subject to executive withdrawal for forest reserve purposes, and said proclamation was ineffective to include it as a part of the said reserves or justify the rejection of Gosney's application for the same; (2) that even if the agricultural character of the land did not preclude it from reservation for forest purposes, it was excepted from inclusion in the said reserves by the express terms of the President's

proclamation, supra, being then embraced in the said entry of Munds, and (3) that being so excepted from the said reserves, upon the cancellation of the said entry it became "vacant land open to settlement,” and properly subject to lieu selection under the act of June 4, 1897, supra.

It does not appear from the record whether the land is or is not agricultural in character, nor is it necessary to determine its character in considering Gosney's application. Even if it be assumed that this particular tract is agricultural in character, that alone would not render it subject to Gosney's application. Unless for other reasons it was excepted from the force and effect of the President's proclamation it fell within the same and was thenceforward actually reserved from lieu selection or other appropriation under the general land laws. In the case of E. S. Gosney, being an application to select lieu land in the same forest reserves by the same person now here as appellant, decided by the Department March 8, 1900 (29 L. D., 593), the material facts were precisely similar in every respect to those of the case at bar, except that in the former the land applied for was not covered by an entry, filing, or settlement claim at the date of the establishment of the said forest reserves. In each case the application to select was rejected by your office for the same reason. After setting out section 24 of the act of March 3, 1891 (29 Stat., 1095, 1103), providing for the establishment of forest reserves, and the provisions of the act of June 4, 1897, supra, which declare the purposes for which such reservations are established and the kinds of lands not intended to be included therein, and provide for the elimination therefrom of lands "better adapted for mining or agricultural purposes than for forest usage," the Department said, in the case cited:

From these provisions of the act of 1897 it clearly appears that Congress did not intend to authorize the inclusion in public forest reservations "of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes"; and also that adequate provision is made for the elimination from such reservations of lands of the character just described and their restoration to the public domain. But where public agricultural lands are improvidently included in a forest reservation they can be eliminated therefrom only by a proclamation of the President or by the action of Congress, and until so eliminated they will continue a part of the reservation and be withheld from settlement and entry. It does not appear from the record in this case whether or not the land Gosney sought to select is agricultural in character. But if it be conceded that it is of such character it is still none the less reserved from entry or settlement, and so not subject to lieu selection, so long as it remains a part of a public forest reservation.

These views, if sound, are decisive upon the first contention of apellant. Upon further careful consideration the Department sees no reason to doubt their soundness, or to dissent from them in this case.

Relative to the authority of the President to establish forest reservations and to the character of the land which may be embraced therein, section 24 of the act of March 3, 1891, supra, and the provisions of the

act of June 4, 1897, supra, bearing thereon, being in pari materia, must be construed together to ascertain the intention of Congress in the premises. In said section 24 it is provided:

That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof. In the said act of June 4, 1897, it is provided that—

No public forest reservation shall be established, except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of the act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.

And that--.

Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days' notice thereof, published in two papers of general circulation in the State or Territory wherein any forest reservation is situated, and near the said reservation, any public lands embraced within the limits of any forest reservation which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain.

The President is hereby authorized at any time to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the boundary lines of such reserve, or may vacate altogether any order creating such reserve.

A very large discretion is evidently lodged in the President by these statutory provisions. His judgment is to be guided and controlled only along general lines. In the said legislation of 1891 practically no limit is placed upon the exercise of his authority to establish forest reservations from time to time, except that the lands reserved must be "public lands wholly or in part covered with timber or undergrowth." In the act of 1897 his authority is further limited only to the extent of the declaration therein of the purposes of such legislation, and that the inclusion in forest reservations of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes" is not intended to be authorized thereby. Recognizing that lands better adapted for mining or for agricultural purposes than for forest usage" had already been and might thereafter be included in such reservations, that act made provision for their elimination when ascertained as therein directed.

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The language quoted in the two instances immediately preceding is worthy of particular notice. It is not simply lands that are merely agricultural in character that are not to be included in forest reservations, or, if included, may be restored to the public domain, but