this shaft, or that it is capable of providing enough water for general use for watering purposes, or that it is a public necessity in that locality, or that it has the true status of a public watering place, but, to the contrary, it has been claimed for some years under private appropriation by one Mitchell. Sawyer testified that at the time he filed his application, he saw some dirt thrown up and supposed it was done in connection with abandoned mining works; that there was no water there and no indications of a reservoir and he had no actual notice of an appropriation of the water at that time. There are no circumstances disclosed that show the contrary or to show that his statement in his application that "there is no spring, water hole or other body of water except water which collects in low places during the rainy season" was false.

As the land is not of the character contemplated by the withdrawal of April 17, 1926, and as the existence of a vested water right acquired under State law on part of the land, if any, would not prevent appropriation of the land under the homestead law, Jamieson has disclosed no valid ground for cancellation of any part of the entry. If his right to the water is in any way interfered with by the homestead claimant, his remedy is in the State courts. Thomas H. B. Glaspie, supra. Unlawfully inclosing vacant public land by a pasture fence is the basis of no right.

The decision of the Commissioner canceling the entry as to the SESW14 Sec. 17, is therefore reversed. His refusal to cancel the entry as to the SW14 SW14 is affirmed.

ASSIGNMENTS, ETC. OF INTEREST IN OIL AND GAS PROSPECTING PERMITS

INSTRUCTIONS

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D.C., January 31, 1933.

The COMMISSIONER OF THE GENERAL LAND OFFICE:

In considering assignments or other disposal of interest, whether royalty, working or otherwise, in oil and gas prospecting permits referred to in paragraph 1-g of the regulations of April 4, 1932, you will require such assignments or transfers to include, or be accompanied by, written agreement of the assignees to be bound by the stipulations set forth in said regulations of April 4, 1932, before recommending the approval thereof.

The question of the qualifications as to citizenship and holdings under the leasing law of assignees of royalty and/or working interests need not be determined until an application for lease is filed for the permit lands.

RAY LYMAN WILBUR,

Secretary.

DRAKE ET AL. v. SIMMONS (ON REHEARING)

Decided February 4, 1933

OIL AND GAS LANDS-PROSPECTING PERMIT-DEEDS-HEIRS.

The common law rule which declares a deed to one that is dead at the time of its execution to be a nullity is subject to exception, and, assuming that the rule applies to oil and gas prospecting permits as well as to deeds, it is within the exception where the Department issues a permit to an applicant knowing him to be dead at the time and where the intention was by the formal use of his name as permittee to confer rights upon existing persons who are to succeed to his property.

OIL AND GAS LANDS-PROSPECTING PERMIT-VESTED RIGHTS-HEIRS-SECRETARY OF THE INTERIOR.

While an applicant for an oil and gas prospecting permit acquires no property right by virtue of such application that he can transmit or that can pass to others on his death, yet nothing contained in the leasing act or in any other law prevents the Secretary, in the exercise of his discretion and in the absence of a valid intervening claim, from recognizing that the deceased applicant was entitled to such equitable consideration as would warrant the granting of a permit to those who would succeed to or have an interest in his property.

OIL AND GAS LANDS-PROSPECTING PERMIT-ADVERSE CLAIM-CITIZENSHIP—— WAIVER-PROTEST.

In the absence of any adverse claim, irregularity in the showing as to citizenship of an applicant for an oil and gas prospecting permit at the time the permit was granted may be waived by the Department and such irregularity can not be taken advantage of by a subsequent applicant nor will a failure to comply with the law which is apparent from the records be ground for protest.

PRIOR DEPARTMENTAL DECISION OVERRULED SO FAR AS IN CONFLICT.

Case of Haynes v. Smith (50 L.D. 208), overruled so far as in conflict.

WILBUR, Secretary:

Frank Drake et al. have filed motion for rehearing of the Department's decision of October 28, 1932, which affirmed a decision of the Commissioner of the General Land Office, wherein he canceled a reinstated oil and gas permit, Cheyenne 044173, of Drake et al., to the extent of the SW14 Sec. 4, T. 36 N., R. 93 W., and NW4 Sec. 34, T. 37 N., R. 93 W., 6th P. M., for the reason that the tracts were covered by prior outstanding, reinstated, like permit 018600, issued to North K. Simmons.

Specifications of error are as follows:

First. To hold that an oil and gas prospecting permit, issued to a person then deceased, operated to pass any right to the estate of such decedent. Second. To wholly disregard and to ignore explicit holdings by the United States Supreme Court, cited in petitioner's brief in support of appeal, to wit: The decisions in Hall v. Russell (101 U.S. 503); Missouri, Kansas & Texas Railway Company v. Kansas Pacific Railway Company (97 U.S. 491); Davenport v. Lamb (13 Wall. 418).

Third. To ascribe superior and controlling weight and effect to rulings of the Interior Department, construed in the decision whereof review is prayed, as stating a rule wholly at variance from that laid down by the United States Supreme Court in the cases cited.

Fourth. To hold, in effect, although not in terms, that North K. Simmons earned or acquired a proper claim to equitable consideration by mere purchase of stock or by contributing to drilling syndicates or associations, said Simmons not being then the holder of any oil prospecting permit, so far as alleged by him in his application for the permit which later issued to him, after his death. Material facts necessary to consider in connection with grounds of error above set out are, briefly, as follow:

The Drake permit, covering the tracts above described, was canceled September 11, 1928, effective October 8, 1928, after due notice and without resistance, for failure to comply with the drilling requirements. Simmons's application for permit, filed November 28, 1928, was rejected April 3, 1929, as one banned by the oil conservation order of March 16, 1929. Simmons promptly applied for reinstatement. June 30, 1931, the Department approved a recommendation of special departmental committee that this and other applications be reinstated and granted, with extension of permit to July 1, 1933. The basis of this recommendation was a showing of contributions in stock purchase and cash to a test well drilled in the locality, such being deemed an equity which excepted the applications from the terms of the oil conservation order. November 12, 1931, a letter was received from an attorney for North K. Simmons to the effect that the latter was dead, his estate probated and settled, and the executor discharged, and inquiring whether permit could not be issued to the heirs of North K. Simmons. letter of November 19, 1931, citing an unreported decision of the Department of March 16, 1922, entitled John R. Magill, holding that by the filing of a complete application for an oil and gas permit the applicant acquires a right that will pass to his legal representatives upon his death, and that permit will issue in such a case in the name of the applicant, the Commissioner expressed the view that the permit could be issued in the name of the heirs, and called upon the attorney to furnish proof of the settlement of the estate, the discharge of the executor, and the names and addresses of the heirs. On December 29, 1931, the Department issued permit

By

in the name of North K. Simmons for the tracts above described and other lands.

April 5, 1932, application for reinstatement of a group of canceled permits, including 044173 of Drake et al., was filed. The permit was reinstated May 14, 1932, and extended to May 5, 1934, upon a showing of equities similar to that made by Simmons, but was held for cancellation by Commissioner's letter of July 19, 1932, when attention was drawn to the conflict with the prior permit of Simmons as to the tracts above described. The Department's decision, affirming such cancellation, is alleged to be in error as above set forth.

When the permit of Drake et al. was canceled October 8, 1928, all rights thereunder ended. The land became vacant unappropriated public land, and, it being later held, in effect, that the equities of Simmons excepted him from the order of March 16, 1929, there existed no legal impediment to the allowance of his application for the land. Even if the issuance of the permit in the name of Simmons was erroneous and it was subject to cancellation, until canceled and so noted on the local records, it operated to segregate the land, and Drake et al. gained no rights by the issuance of a permit to them. Hiram M. Hamilton (38 L.D. 597); Martin Judge (49 L.D. 171); Harvey V. Craig (50 L.D. 203). The grant of appellant's permit was clearly an inadvertence.

The theory advanced on appeal and in the instant motion, appears to be that North K. Simmons, being dead on the date the permit was issued, the issuance of the same in his name was a nullity, and the land therefore remained open for the subsequent grant of a permit to Drake et al. The appellant concedes that the permit is but a license, but, nevertheless, insists, under the authority of Landes v. Brant (10 How. 348) and those cases above mentioned in his second specification of error, that the Department is bound to apply the common law rule, which declares a deed to one that is dead at the time of its execution is a nullity.

As to these cases, in Davenport v. Lamb and Landes v. Brant, land patent issued to a deceased party, and the Supreme Court observed that, had it not been for the act of May 20, 1836 (5 Stat. 31). providing that the title would inure to and become vested in the heirs, devisees or assignees, it would result that, under the common law rule, the patent would have been ineffectual to pass the title for lack of a grantee. In Hall v. Russell, one of the questions was whether a settler under the Oregon Donation Act who died after a residence of less than one year on the land, had by the act, an interest subject to devise by will. The court held that act required four years' residence to acquire a complete title to the soil, and that he had nothing in the land that he could transmit; that by other provisions of the act his possessory right passed direct from the United States to

his heirs. The court observed that under the common law rule, there could not be a present grant without a grantee. The case of Missouri, Kansas & Texas Railway Company v. Kansas Pacific Railway Company, supra, was cited in Hall v. Russell for the proposition that a Congressional grant is a law as well as a conveyance, but it has no pertinent bearing on the question here.

Whether there is a substantial distinction between the character and incidents of a permit and deed, sufficient to decline to extend the rule applicable to the latter to the former, need not here be considered, for assuming that there is sufficient reason for the applicability of the rule to permits as well as deeds, under the view that the Department takes, the circumstance of this case constitutes an exception to the general common law rule, distinctly recognized by the court, and stated in well-known treatises on the subject. That circumstance is that both the Department that granted the permit and the parties that solicited it as heirs of North K. Simmons, knew that Simmons was dead, and the intention was by the formal use of his name as permittee to confer rights upon existing persons who would succeed to his property.

In City Bank of Portage v. Plank (124 N.W. 1001), it was held that where a deed was made to a grantee well known to be dead, and the residue of whose estate, which would include the land conveyed if belonging to it, was to pass to a certain person as executor, subject to a charge in favor of the widow and also to the possibilities of other claimants against his then unsettled estate, and all such interests were represented by such person as executor, and it appeared that the deed was made to the decedent to protect on the record all such rights by using the decedent's name to designate the executor in his official capacity, such intention will be effectuated by enforcing the deed in favor of the executor. The court said:

Appellant attacks the holding that the deed to E. D. Plank was ineffective to convey any title or interest in the mortgaged premises. It is a rule asserted from early times that no grant can exist without a grantee. This is of course axiomatic. The title cannot pass from the grantor unless it passes to some one. As a corollary, it is declared in many cases that a deed or grant to a person who does not exist at the time of the grant is void. Such statements are unassailable if properly understood. If the grant, in the intention of the parties, is attempted to be made to some person who has no existence, it cannot take effect. Neal v. Nelson, 117 N.C. 393, 23 S.E. 428, 53 Am. St. Rep. 590. Many technical rules, however, have yielded to more rational views in modern times. The real intention of the parties is to be sought and effectuated by courts when possible. If it was the intention both of grantor and grantee that the grant should be to some person or persons in existence, that intent may be effectuated by ascertaining under proper rules of evidence the intention of the parties, although such person be not designated by his legal or usual name. * When a person well known is