will not interfere with the use and control of the lands when they are needed for the purposes contemplated by the purchase or reservation of such lands.

The provisions of the act of July 1, 1898, are applicable to patented lands, whether patented before or after the passage of the act, if such lands are in dispute between the company and the individual claimant and belong to either of the classes described therein, and where patents issued to individual claimants prior to the passage of the act, under rulings then in force. which under rulings now governing would have to be held to have been improperly issued, the conflicting claims to such lands are subject to adjustment under the provisions of said act, provided the company has not. by the selection of other lands in lieu of those in controversy, or otherwise. abandoned its claim thereto.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) March 14, 1906. (F. W. C.)

With your office letter of the 7th instant was transmitted, in duplicate, what is denominated as list No. 52, State of Montana, embracing certain lands included in individual claims within the limits of the Northern Pacific land-grant in the State of Montana, the same being submitted for approval under the provisions of the act of July 1, 1898 (30 Stat., 597, 620), preliminary to inviting the Northern Pacific Railway Company, successor in interest to the Northern Pacific Railroad Company, to make relinquishment thereof under the provisions of said act, the individual claimants having elected to retain the lands included in their several claims.

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It is gathered from your said letter of transmittal and from informal inquiry of your office that the several individual claims included m said list were all patented prior to the passage of the act of July 1. 1898, under rulings then in force, which held the lands involved to have been excepted from the operation of the Northern Pacific landgrant, but that under present rulings of the courts the departmental action was improper, there being no such claims as served to defeat the operation of said grant, so that, unless barred by the statute of iimitations, the individual claimants would be likely to lose the landupon the suit instituted by the railroad grantee for possession of the lands under the grant. It is learned that the lands were only pat

ented after contest before this Department and that the railroad. grantee has not, by the selection of other lands in lieu of those here in question, which are within the primary limits of its land-grant, abandoned its claim to the lands involved.

By the decision of the supreme court in the case of Humbird et al. . Avery et al. (195 U. S., 480, 506), it is held, in effect, that the act of 1898 is applicable to lands patented both before and after the passage of the act, if such lands are in dispute and belong to either of the classes described in said act. Under the circumstances herein detailed it can be safely said, although these lands were patented to the individuals prior to the passage of the act of July 1, 1898, they nevertheless remained in dispute, as a case involving the principle which was determinative of the contests between these several individual claimants and the railroad company was prosecuted to the Supreme Court of the United States, resulting in a decision in favor of the company (Northern Pacific Railroad Company . De Lacey, 174 U. S., 622), and it is by reason of said decision that it is now held that these patents were improperly issued upon these individual claims. They are otherwise in the classes described in the act of 1898, and the entire matter considered, the Department herewith returns the list, approved, with instructions that one copy be retained in your office and the other transmitted to the Northern Pacific Railway Company with an appropriate request for relinquishment of the land therein described under said act.

SCHOOL LANDS-MINING CLAIM-UNSURVEYED LAND-ACT OF FEBRUARY 22, 1889.

STATE OF SOUTH DAKOTA . TRINITY GOLD MINING COMPANY. The grant of sections sixteen and thirty-six made to the State of South Dakota for school purposes by the act of February 22, 1889, took effect on the admission of the State into the Union, as to lands at that date identified by the government survey, but as to such of the indicated sections as had not been surveyed at the date of the admission of the State, the right of the State does not attach unless and until identified by survey, and if at the time of survey they are known to be mineral in character, they are excepted from the grant.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) March 16, 1906. (G. J. H.)

December 28, 1903, the Trinity Gold Mining Company made entry No. 1466 for the Llewellen and seven other lode mining claims, in T. 5 N., R. 2 E., Rapid City, South Dakota.

The records of your office show that the exterior boundaries of the township in which these claims are situated were established by official survey in November, 1899, but that the section lines have not yet been run. It appearing, however, that the larger part of this group of claims is located in what, when surveyed, will be section 36, the State was notified of the allowance of the entry in question and afforded opportunity to show cause, if any, why the entry should not be permitted to stand, sections 36 being included in the grant to the State for school purposes made by the act of February 22, 1889 (25 Stat.. 676).

December 24, 1904, the State filed a protest against the entry, alleging, in substance and effect, that the land had passed to the State under its school grant.

January 13, 1905, your office dismissed the protest, on the ground, in substance and effect, that the public surveys have not been extended over the lands in question, and until it is definitely ascertained by government survey what particular lands will be embraced in the sections granted to the State for school purposes, no rights attach under the grant to any specific lands.

The State has appealed to the Department.

It is contended to support the appeal that the grant of school lands made by the act of February 22, 1889, supra, is a grant in praesenti; that the right of the State thereunder attached upon its admission into the Union, whether at that date the granted sections were surveyed or unsurveyed; and that lands containing valuable deposits of mineral were not excepted from the grant unless known to be mineral in character at the time of the State's admission.

The State does not allege that the particular lands here in controversy are nonmineral, or that they were not known to be mineral at the date of the State's admission, but is apparently proceeding upon the assumption that they were not known to be mineral on that date.

The provisions of the school grant to the State of Utah (sections 6 and 10, act of July 16, 1894, 28 Stat., 107), are in all essential respects identical with those of the grant here in question. In construing the Utah grant the Department has uniformly held that it took effect on the admission of the State into the Union, as to lands at that date identified by the government survey (State of Utah ». Allen et al., 27 L. D., 53; State of Utah, 29 L. D., 418, 419; Law e State of Utah, 29 L. D., 623; State of Utah, 32 L. D., 117; Helen Tibbals, 33 L. D., 223); but as to such of the indicated sections as had not been surveyed at the date of the admission of the State, the Department held, in the case of Mahoganey No. 2 Lode Claim (33) L. D., 37), that

the right of the State to the lands mentioned does not attach unless and until identified by the government survey (State of Colorado, 6 L. D., 412; Barnhurst

v. State of Utah, 30 L. D., 314); and if at that time they are of known mineral character they are reserved from the grant to the State. (See State of Utah v. Allen et al., 27 L. D., 53; State of Utah, 32 L. D., 117.)

This decision is in harmony with decisions of the Supreme Court of the United States. (See Cooper v. Roberts, 18 How., 173, 179; Heydenfeldt. Daney Gold and Silver Mining Co., 93 U. S., 634.)

The States of South Dakota and Montana (with others) were admitted under the same enabling act (supra) and the grant for school purposes made by said act is the same as to both of said States. In instructions to the Director of the Geological Survey, August 9, 1904 (33 L. D., 181), the Department, construing the school grant to the latter State, said:

The people of Montana by adoption of a constitution accepted the grant, which became operative by executive proclamation of November 8, 1889 (26 Stat., 1551), and title as of present grant for the specific sections vested in the State subject to their future identification by the public land surveys. The later act of February 28, 1891 (26 Stat., 796), amending sections 2275 and 2276, Revised Statutes, saves the rights of settlers before survey, but, otherwise than for protection of settlers, the grant of the specific sections is not affected. (Noyes v. State of Montana, 29 L. D., 695.)

It is urged on behalf of the State that this construction of the school grant by the Department amounted to a determination that the grant was one in praesenti, and that, therefore, mineral lands are not excepted therefrom unless known to be mineral at the date of the State's admission into the Union.

The question involved and considered by the Department in those instructions was whether or not the State was entitled to the school sections in certain townships formerly embraced within an Indian reservation, and it was held that the State is "entitled to claim the specific sections in place within the boundaries of the former reservation where they have not been appropriated by a bona fide settler prior to their identification by survey." No question touching the rights of the State as between it and mineral claimants was involved or discussed, and it was not intended by the language there employed to overrule or in anywise modify the decision in the case of Mahoganey No. 2 Lode Claim, supra, rendered but two months before. The decision in that case is controlling here.

It is further urged on behalf of the State, in substance and effect, that as the exterior lines of the township in which the land in question is situated have been established by government survey, thus fixing the south and east lines of what when surveyed will be section 36, the section is" as definitely designated as if the township had been fully surveyed," and the mineral claimant could therefore have ascertained that the land was within a school section and should not have made location thereof unless the lands were known to be mineral at the date of the State's admission.

It appears from the abstract of title in the record that seven of the eight claims embraced in the entry in question were located prior to the survey of the township lines, and also prior to the admission of the State into the Union. It can not be said, therefore, that the claims were located with knowledge that the land was embraced in a school section. But in any event, the Department has held (Barnhurst. State of Utah, 30 L. D., 314), that "the survey of the township lines is not a survey of a section within that township, two sides of which are described and fixed by the township lines." (See also Bullock . Rouse, 81 Cal., 590.)

Your office decision dismissing the protest is affirmed.

DESERT LAND ENTRY-RECLAMATION-CULTIVATION.

BRANDON . COSTLEY.

The desert-land act of March 3, 1877, as amended by the act of March 3, 1891, requires that sufficient water be conducted upon the land embraced in the entry to reclaim it from its desert character and render it suitable for agricultural purposes, and that one-eighth of the land be placed under cultivation.

As proof of cultivation within contemplation of the desert-land act actual tillage must as a rule be shown.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) March 19, 1906.

(C. J. G.)

An appeal has been filed by Thomas J. Brandon from the decision of your office of May 31, 1905, dismissing his contest against the desert land entry of Rebecca Costley for the NW. NW. and lots 5 and 6, Sec. 23, and NE. NE. 1, Sec. 22, T. 8 N., R. 41 E., Blackfoot, Idaho, and holding said entry intact.

The entry was made July 25, 1902, final proof was submitted thereon December 21, 1903, and final certificate issued January 5, 1904. Brandon's affidavit of contest was filed January 9, 1904, in which he alleged that

the said Rebecca Costley has failed to comply with the law in that she has not cultivated or caused to be cultivated of the land and has not conducted water upon the land embraced in said entry so as to irrigate and reclaim the same from its former condition to such extent that it will produce an agricultural crop, and that water has not been distributed through and by means of ditches over all the lands in each legal subdivision of said entry and that said defaults continue down to this date.

A hearing was ordered and had before the local officers, who rendered decision recommending cancellation of the entry. Upon appeal your office reversed their action, dismissed the contest, and held the entry intact, as stated.