shall have a preference right under such rules and regulations as the Secretary of the Interior may prescribe.

The instructions issued under that act are contained in the circular of June 10, 1898 (27 L. D., 68), which provides that

In all applications to purchase land at private sale made after the passage of this act, the applicant must furnish a duly corroborated affidavit showing that there is no one other than himself claiming said land as an actual settler. In other respects you will take action under existing regulations, treating all public lands as unoffered.

There is nothing in the circular requiring the purchaser to show that he desires the lands for himself or that prevents the purchase being made through an agent. All that he is required to show is that there is no other than himself claiming the land as an actual settler. If there is no settler claiming a preference right the applicant may purchase whether he is a settler or not.

In this case the land was not entered with a view to occupation. entry or settlement under any of the land laws that limit the quantity that any one person may acquire under such laws, but to purchase it at private cash sale, and there is nothing in the act or law under which the purchase was made that limits or restricts the purchaser to quantity.

You held that the right of purchase, at private cash entry was restricted by the act of August 30, 1890 (26 Stat., 391), providing that

No person who shall after the passage of this act, enter upon any of the public lands with a view to occupation, entry or settlement under any of the land laws, shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws; but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry or settlement is validated by this act.

That act has been construed by the 17th section of the act of March 3, 1891 (26 Stat., 1095), to refer to agricultural lands and not lands entered under the mineral law, but it is evident that the act of August 30, 1890, and the explanatory act of March 3, 1891, had reference to lands under the general land laws that limit the quantity that may be taken under one entry and not to purchasers at private cash entries under laws that contain no restriction whatever as to quantity. That question is settled by the principle that controlled in the decision of the Department in the case of John W. Clarkson (31 L. D., 399) and Instructions (33 L. D., 606).

As it appears from the statement in your letter that the affidavit required by the circular appears with each of the entries, your decision holding them for cancellation is reversed.

ISOLATED TRACTS CONTAINING LESS THAN FORTY ACRES-SUSPENSION OF APPLICATIONS.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., November 4, 1905.

Registers and Receivers, United States Land Offices.

SIRS: In departmental order of September 26, 1905 [not reported], suspending certain islands from disposal, it was said:

This suspension is made with a view to submitting to Congress the question whether some provision should not be made for the disposal of small and isolated tracts other than is provided for by the general land laws now in force where it is evident that such tracts are not adapted for the use and purposes contemplated by such laws.

In compliance with this order, you are directed to receive and suspend, without further action, all applications to enter, select, purchase, or locate, isolated and disconnected tracts, presented after November 15, 1905, which embrace less than forty acres, until you receive further instructions from this office.

This order is not intended to affect entries made under the act of June 17, 1902, commonly known as the reclamation act.

Very respectfully,

Approved:

J. H. FIMPLE, Acting Commissioner.

E. A HITCHCOCK, Secretary.

SCHOOL LAND-INDEMNITY SELECTION.

STATE OF CALIFORNIA.

The requirement in rule 2 of the instructions of March 6, 1903, that with each list of indemnity school selections "a certificate of the proper authorities that the base lands have not been sold, encumbered, or otherwise disposed of," shall be furnished by the State, adhered to.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 4, 1905. (G. B. G.)

This is the appeal of the State of California from your office decision of April 17, 1905, holding that, in compliance with departmental instructions of February 21, 1901 (30 L. D., 491), and March 6, 1903 (32 L. D., 39), the State must file with each list of indemnity school selections a certificate from the county recorder as to the status of the base lands offered in support of the selection.

Section 2 of the instructions of February 21, 1901, supra, which

relate to selections on account of losses or waivers of base lands in forest reservations, provides:

The State will be required to file with each list of selections a certificate by the officer, or officers, charged with the care and disposal of such school lands, that the State has not encumbered, sold or disposed of, nor agreed to encumber, sell or dispose of, any of the said lands, used as bases, and that no part of said lands is in the possession of any third party, under any law of permission of the State. There must also be filed with all lists a certificate from 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 lands, is on file or of record in his office.

Rule 2 of the instructions of March 6, 1903, supra, which relate to selections based on losses because of the alleged mineral character of the base lands, provides that the State shall furnish “a certificate of the proper authorities that the base lands have not been sold, encumbered or otherwise disposed of."

It is submitted on behalf of the State that these conditions are unreasonably burdensome and in some instances prohibitory, and requested that they be modified.

The regulations in question received most careful consideration. It was thought then, and upon further consideration is still believed, that nothing less than therein required would adequately safeguard the interests of the United States in the matter of these indemnity selections. If, as suggested on behalf of the State of California, county recorders in that State may charge unreasonable fees for these certificates, the situation for that State is unfortunate, but no satisfactory relief suggests itself to this Department. Other States are complying with these regulations, and from informal inquiry in your office it satisfactorily appears that from the standpoint of the interests of the United States the rule should not be relaxed in the interests of the State of California.

The decision appealed from is affirmed.

SWAMP GRANT-CHARACTER OF LAND-EFFECT OF PATENT.

STATE OF LOUISIANA.

The issuance of patent upon entries embracing lands alleged by the State to have passed to it under its swamp land grant terminates the jurisdiction of the land department thereover; and any question as to the character of the lands and whether the issuance of patent therefor was inadvertent will be inquired into only for the purpose of determining whether recommendations should be made for the institution of suit to set aside the patent. The question as to whether the issuance of patent amounted to an adjudication that said lands were not swamp, and therefore did not pass to the State under its grant, is one for determination by the courts, and not by the land department.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 4, 1905. (G. B. G.)

This is the appeal of the State of Louisiana from your office decision of January 14, 1905, holding for rejection the State's claim under its swamp land grant to numerous tracts of land in the New Orleans land district, specifically described in said decision.

It appears from the papers accompanying the appeal, or from the files of your office, that all of the tracts involved have been entered, located, or sold under the public land laws, and that patents have issued therefor to the claimants under those laws, the latest of which issued more than ten years ago. It further appears that the claim of the State under its swamp grants was made in apparent compliance with regulations then in force, after the dates of said entries, locations, and sales, but before the issuance of patent.

The decision of your office is put upon the ground that the issuance of these patents under this state of facts was in law an adjudication that said land was not swamp, and therefore did not pass under the grants of swamp lands to the State. It is urged upon the appeal that there was in law and fact no such adjudication; that the State's claim to these lands has never been considered, much less adjudicated, by the land department; that the records and files of your office contain conclusive documentary evidence that said lands are, and were, swamp and overflowed lands within the meaning of said grants; and it is asked that your office be directed to certify to the Department the necessary data to establish these facts, and that the Secretary of the Interior render a decision upon the swampy or non-swampy character of said lands.

It is not believed that the land department or the Secretary of the Interior, as the official head thereof, has jurisdiction over the land involved for any purpose. The issuance of the patents aforesaid transferred that jurisdiction to the courts. The question as to the character of these lands and the inadvertent issue of patent therefor-if, indeed, such action was inadvertent-would only be cognizable here for the purpose of ascertaining whether recommendation should be made to the Department of Justice for the institution of suits to set aside the patents. This question has been settled by lapse of time. More than six years have elapsed since the last of these patents issued, and under the limitation placed on actions of the sort suggested, by section 8 of the act of March 3, 1891 (26 Stat., 1093, 1095), the action could not be maintained. The question whether the issuance of these patents amounted to adjudications upon the character of the lands is one for the courts, if it be made the subject of further inquiry, and such inquiry can only be had upon an action or actions by the State itself, or persons claiming through the State. Whatever may be the

purpose of the State in asking this Department to make a specific finding as to the character of these lands, it will be enough to say that, if such finding in law has not already been made, the courts offer a forum for the adjudication of that question.

The decision appealed from is affirmed.

LANDS IN ROUND VALLEY INDIAN RESERVATION OPENED TO SETTLEMENT AND ENTRY.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

REGISTERS AND RECEIVERS,

GENERAL LAND OFFICE,

Washington, D. C., November 7, 1905.

San Francisco and Eureka, California.

GENTLEMEN: The act of February 8, 1905 (33 Stat., 706), provides for the survey and reappraisement of all the lands, relinquished from the Round Valley Indian Reservation in the State of California under the act of October 1, 1890 (26 Stat., 658), which had not been theretofore disposed of; and that the said lands, when surveyed and appraised, shall be subject to settlement and entry under the provisions of the homestead laws of the United States.

Said lands having been surveyed and reappraised in accordance with the provisions of said act and said reappraisement having been approved by the Secretary of the Interior, the hour of 9 o'clock a. m... January 15, 1906, has been fixed as the time on and after which the lands described in the schedule hereto attached will be opened to settlement and entry.

The lands will be subject to settlement and entry under the homestead laws and the right of commutation under section 2301, Revised Statutes, is expressly conferred by the act; they will be subject to entry under section 2306, R. S., by those entitled to make entry thereunder, as the law does not limit entries to actual settlers, but in case entry is allowed under said section 2306, the entryman will be required to make payment of the appraised price for the lands embraced therein; and declaratory statements under section 2309 may also be filed by those entitled under section 2304, Revised Statutes, to make the same.

Applicants for these lands must possess the qualifications required in the case of ordinary homestead entries, and all applications to enter presented prior to April 16, 1906, must, in addition to the usual affidavits required therein, be accompanied by an affidavit alleging that there is no person having a superior right to the land desired, as a settler thereon and an occupant thereof on January 1, 1904.