Bailey, supra. In the latter case a statement was made that if nonriparian land becomes riparian by erosion of intervening land and then accretive action starts, the remote lot would continue to have the river as its boundary, even beyond its original boundary. This statement was purely a supposition and dictum, though the reason suggested was that by the encroachment of the water the original lines become lost and incapable of relocation. See Farnham on Waters and Water Rights, page 2498. Farnham, at page 2497, goes on to say:

In case land on the shore is washed away so that land which was formerly nonriparian becomes such, the boundaries between the shore owner and his nonriparian neighbor are not changed; and, in case the land is subsequently reformed, the new land will be divided between them according to the old boundary line. In such case the doctrine of opposite boundary does not apply, nor does the doctrine of accretion. The nonriparian owner has no right to accretions. The title of the former riparian owner existing in front of him, he has no riparian rights, and, therefore, he is not entitled to accretions.

The Department's holding is in line with the quotation from Farnham, supra, and calls for a statement of underlying principles and for answers to possible objections, for though, as suggested by Farnham in section 848, this situation might be dealt with as a case involving submergence, yet it is clearly tenable when treated as one of erosion and accretion.

Lord Hale, in his work, made the significant observation that if land can be identified by measure, proprietorship should not be divested by reason of encroachment of water. The principle operating in the cases of original riparian lands in the United States seems to be that that which was intended to be the boundary should remain so (Nebraska v. Iowa, supra), on the theory that a natural boundary such as a river is presumed to be a fixed line; Fowler v. Wood (73 Kan. 511, 85 Pac. 763); Farnham on Waters and Water Rights, page 2495. If that is the true principle, then if a conveyance is by section lines, those lines should prevail, because they were so intended. The fact that at some time water encroaches beyond those lines does not obliterate them, since they can be easily reestablished when dry land is reformed. (Allard v. Curran, supra.)

The reason suggested in the Welles case for the dictum above quoted, and one of the possible objections to the Department's holding, is that title to the intervening eroded property disappears when it becomes part of the bed of a navigable stream. That objection applies with equal force to the remote as to the original riparian land and logically has no bearing on the title when land does reappear. In any event, the reasoning in the Allard case, supra, meets and overcomes the suggested basis of the Welles dictum.

The objection particularly has no bearing in Nebraska, where it was held that title to the bed of navigable waters was not owned by the State, but by the riparian owners to the thread of the stream. (Kinkead v. Turgeon et al.-On Rehearing-109 N. W. 744.) Following the ruling of this case, the United States, as the riparian owner of tracts 1, 2, 3, and 4, had title as riparian owner to the bed of the stream from the date of 1867, when Nebraska was admitted to statehood.

The objection seemingly raised in the Yearsley case, supra, was that to hold as the Department does was to deprive a riparian owner of certain rights, principally access to the water. This case overlooks the reasons for permitting a riparian owner to take accretions in any instance; namely, because the watercourse was by intent one of his boundaries. Further, it must be remembered that this access to water was acquired by a fortuitous event and was not his by original conveyance. The question then is whether it is better to deprive him of access to water, or forever to deprive the intervening owner of his property.

The United States Supreme Court cases, dealing with accretion, cite two other possible reasons, but neither argues against the Department's holding. The first reason, that he who bears a possible loss should also have the benefit of a possible gain, certainly argues favorably to the position of the original riparian owner. Having suffered a complete loss of the surface of his land, he ought to have the enjoyment upon its reappearance. The second, that it is policy to have land owned, is answered, of course, that the original riparian owner continues to own it and, if valuable, will not let it remain unused.

There is authority in the Federal cases to substantiate the Department's position. In Stockley v. Cissna (119 Fed. 812), the court said that because the surface of land was washed off, title was not lost beyond recovery, but was regained by the original owner" when by reliction or accretion the water disappears and the land emerges." Particularly fine discussions of the principles and authorities are presented in Ocean City v. Shriver, supra, and Allard v. Curran, supra, both decisions making clear the point that the principle invoked is a matter of determination of boundaries, and when such are determined without reference to a watercourse and can be ascertained by measure, such measure continues to prevail, despite the vagaries of a stream.

There is evidence in the record to show that many, if not all, the changes affecting this property were avulsive ones. If this is true, the generally accepted rule that sudden and perceptible changes do not deprive riparian owners of their land, though it be submerged, would apply. St. Louis v. Rutz (138 U. S. 226). The title to none of the land in question would be affected. In view of the foregoing

discussion on rights acquired by accretion, and in view of the generally accepted rule as to the effect of avulsive changes, the Department feels that it is immaterial to decide what was the nature of the changes in this case, for in neither event would the title to this land be affected.

Lots 7, 8 and 9 were laid out in the resurvey of 1928-1930, in land formed in that area between the shore line and the thread of the stream as it ran at the time of the original survey in 1857. The title to these lots is governed by somewhat different rules than govern lots 1, 2, 3 and 4, and the remote lands here involved. When lots 1, 2, 3 and 4 were surveyed, their northern boundary was the Missouri River and they were in fact riparian lands, their intended boundary being that river, subject to the State rule as to the ownership of the river bed. (Kinkead v. Turges, supra.) As to them the rules of riparian land must be applied, as distinguished from the rules applied to lands not riparian when the survey was made. The rule as to riparian land relating to accretions is stated in Nebraska v. Iowa, supra, and in the New Orleans case, supra. Following that rule, the United States acquired title to such land as formed by accretion on the original riparian lots. It is noted that the claims to such accretions are laid only to the thread of the stream as it existed in 1857; consequently no conflict can arise as to lands then on the opposite shore.

If the changes in the course of the river are treated as avulsive, the title to lots 7, 8 and 9 is, nevertheless, not changed. This is true because lots 1, 2, 3 and 4 were originally bounded on the north by the Missouri River. The Kinkead case decided that titles to lands bordering on a navigable stream extended to the thread of the stream. The ordinary rule as to navigable streams is that the State takes title to the beds upon coming to statehood (50 L. D. 180), but should the State see fit to relinquish that title in favor of riparian owners, as was done in the Kinkead case, there is no reason why it cannot. Scott v. Lattig (227 U. S. 229). The land to the thread of the stream being conceded by the State to belong to the Government, its title would not be affected should the land be uncovered by an avulsive change in the course of the river.

The rules applied to lots 7, 8 and 9 are not in conflict with the rules applied to lots 1, 2, 3 and 4 and the remote land. Simply restated without citing authorities, the rules governing all these lands are that the intended boundary is controlling, subject to such rights as are incident to that boundary when created. As to the remote land and lots 1, 2, 3 and 4, the intended boundaries between them were the section lines, and inasmuch as these are capable of being restored by survey, even after once being covered by water, they are controlling. As to the northern boundary of lots 1, 2, 3 and 4, the

intended boundary was the Missouri River, subject to rights acquired by accretion, because the intended boundary was the river and subject to the rights to the bed of the stream as created by the relinquishment by the State of its title.

The departmental ruling before stated, as applied to the particular and unusual facts in this case, is submitted as correct, and the title to all of lots 1, 2, 3, 4, 7, 8 and 9 is in the Government. The protest, accordingly, is

Dismissed.

LEE S. MILLER

Decided May 10, 1934

STOCK-RAISING HOMESTEAD-SUPPLEMENTAL TO FOREST HOMESTEAD QUALIFICATION-AREA.

One who perfects a forest homestead under the Act of June 11, 1906, for less than the allowed acreage, is not thereby disqualified from later making a stock-raising homestead entry of additional lands to the aggregate permitted, and such later entry should be considered and treated as an original and not an additional entry, and accordingly not subject to the conditions and limitations of an additional entry.

ACT OF MARCH 4, 1923-APPLICATION AND SCOPE ENLARGED AND STOCK-RAISING HOMESTEAD LANDS IN NATIONAL FORESTS.

The Act of March 4, 1923, is not exclusive in operation and has relation to additional entries outside of national forests when the original entry is of forest lands of the character subject to designation under the enlarged or stock-raising homestead act; and said act does not prohibit the making of original stock-raising homestead entries based upon the additional homestead rights provided for in section 6 of the Act of March 2, 1889, and the Act of April 28, 1904.

WALTERS, First Assistant Secretary:

On May 29, 1919, Lee S. Miller perfected a forest homestead entry, under the act of June 11, 1906 (34 Stat. 233), for 45.09 acres in T. 15 N., R. 8 E., G. and S. R. M., Arizona, and patent was issued to him for said land on March 1, 1920.

On June 5, 1933, Miller was allowed to make an original stockraising homestead entry for 600 acres in T. 8 S., R. 13 E., G. and S. R. M. He paid the purchase price for an excess area of five

acres.

By decision of November 8, 1933, the Commissioner of the General Land Office held Miller's stock-raising homestead entry for cancellation, stating:

The act of March 4, 1923 (42 Stat. 1445), permits persons holding existing or perfected homestead entries for lands within national forests of a character subject to designation which the applicant owns and resides upon to make additional entries for such a quantity of land outside the national forest

and within 20 miles of the original entry as will not exceed 320 acres if under section 1 of said act, or 640 acres under section 2 thereof.

The applicant's only right to make entry under the stock-raising act is under the act of March 4, 1923; therefore, he is not qualified to make an original entry under the Makela decision, nor to make an entry for lands more than 20 miles from the original patented entry.

The claimant, through his attorneys, has appealed.

In the Makela decision (46 L. D. 509), cited by the Commissioner, the Department said:

It follows that a person who has made and perfected a homestead entry for 160 acres in a State not affected by the enlarged homestead acts has exhausted his right to make further entry under any of the homestead laws; but if such entry embraced less than 160 acres, leaving him qualified to make an additional entry for approximately 40 acres under section 6 of the act of March 2, 1889 (25 Stat. 854), he can exercise that right by making an entry under the stock-raising law for not to exceed 520 acres; and if a person has entered 280 acres under either of the enlarged homestead acts, and is qualified to make an additional entry under one of those acts for 40 acres, he is qualified to make an entry under the stock-raising law for 360 acres. Such entries, being made under section 1 of the act, would be original stock-raising entries, and in no sense additional entries within the meaning of the various provisions of the law. If it is kept in mind that the first entry under the stock-raising act is not an additional entry under that law, no matter how many prior entries under other homestead laws have been made, the provisions as to making additional entries will be more readily understood.

In the opinion of the Department, it was not the intention of Congress to limit the making of original entries under the act to land within 20 miles of former perfected entries under other laws.

The making and perfection of a homestead entry for 45 acres under the act of June 11, 1906, did not exhaust this claimant's rights to entry under that law. He could have made an additional entry in the forest under the act of April 28, 1904 (33 Stat. 527). Samuel T. B. Himes (43 L. D. 388). And he could have made an additional entry under said act of April 28, 1904, for land outside of the forest. Milton L. Hinds (49 L. D. 263). If after perfecting his forest homestead for less than 160 acres he was qualified to make an additional entry for land outside the forest under the said act of 1904, he was also qualified to make an additional entry outside of the forest under section 6 of the act of March 2, 1889, supra. Being thus qualified, under the Makela decision he had the right to make an original stock-raising homestead entry for approximately 600 acres.

The cited act of March 4, 1923, has no application here. That act provides for additional entries under the enlarged and stock-raising homestead laws, entries for lands outside of national forests additional to unperfected or perfected homestead entries for lands within national forests. Said act is not exclusive and does not prohibit the making of original stock-raising homestead entries based upon