It is true that as ruled in the Frederick case, the publication of intention to purchase would prevent the land from being entered by another, pending consideration of such application, but until the final allowance of said application, the applicant has no right to or control over the land covered thereby.

In my opinion there can be no doubt as to the correctness of this proposition. The application to purchase confers no right upon the applicant; as against the government said application under the act of June 3, 1878, is certainly of no greater or higher dignity or effect than a claim initiated by settlement and residence upon, and improvement of, public land under the provisions of the late pre-emption law, and no doctrine is more clearly established than the one that

Mere occupation and improvement of any portion of the public lands of the United States, with a view to pre-emption do not confer upon the settler any right in the land occupied, as against the United States, or impair in any respect the power of Congress to dispose of the land in any way it may deem proper; and that the power of regulation and disposition conferred upon Congress by the Constitution, only ceases when all the preliminary acts prescribed by those laws for the acquisition of the title, including the payment of the price of the land, have been performed by the settler. When these prerequisites have been complied with, the settler, for the first time, acquires a vested interest in the premises oc cupied by him of which he can not be subsequently deprived. He is then entitled to a certificate of entry from the local land officers, and ultimately to a patent for the land from the United States. Until such payment and entry the acts of Congress give to the settler only a privilege of pre-emption in case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event in preference to others. The legislation thus adopted for the benefit of settlers was not intended to deprive Congress of the power to make any other disposition of the lands before they are offered for sale, or to appropriate them to any public use. Yosemite Valley Case (15 Wal lace, 77).

Examining the act of June 3, 1878, we find that the first section provides that certain land "may be sold to citizens of the United States etc."

The second section provides that the applicant shall file a written statement designating the land he desires to purchase etc.

The third section provides that upon filing said statement, publishing notice, submitting certain proof, and making payment of the purchase money, "the applicant may be permitted to enter said tract."

Applying the reasoning of the court in the Yosemite case, it must be held that until these prerequisites, viz., submitting proof and making payment of the purchase money, have been complied with, the appli cant has acquired no vested interest in the land, he has acquired no right as against the government which deprived Congress of the power to dispose of the same. This view is in accordance with the theory of the entire administration of the land system;-for instance under the homestead law and the late timber culture law it has been uniformly held that when application is made, the proper affidavits filed, and the fees and commissions paid, and an entry allowed, then, and not until then, has an applicant acquired a right which segregates the land entered from the mass of the public domain, and this doctrine is not over

come by the ruling that an application to enter operates to reserve the land covered thereby, for the application works a reservation only as against other applicants, and not as against the government.

It is contended by the claimants, that they have done all that the law require them to do, viz:, made the required proof and tendered the purchase money for the lands, that they have done all within their power to comply with the law and have thereby acquired a vested right that can not be defeated by a subsequent act of Congress, and in support of this view, they cite numerous decisions of the courts including the case of Lytle v. Arkansas (9 Howard, 333).

I do not think this position is well taken. Before the proofs were submitted, and payment tendered, the government had, by its duly qualified officer and agent, the Commissioner of the Land Office, acting within the scope of his authority, withdrawn and reserved these lands from sale, and by the acts of Congress under consideration, this withdrawal and reservation has been made permanent. In other words when proof was submitted and payment tendered the lands were not in a condition, or were not of class, that might "be sold."

The failure of these claimants to perfect their entries was not the result of any fault, refusal, or neglect of the officers of the land department to perform their duties, on the contrary, said officers, acting within the scope of their authority, did perform their duties in refusing said entries, but the reason why these claims can not be perfected to title is that Congress in the exercise of its authority, has made other and final disposal of the land.

It is not necessary to discuss the question of good faith on the part of these claimants, nor the question of their pecuniary loss or gain. It is the duty of the Department to execute the law, and in the performance of that duty, I must direct that these filings be canceled, and the applications to purchase be rejected.

The principles announced above, will apply in the case of pre-emption filings made prior to date of withdrawal, in which final proof and entry had not been made, and said filings must be canceled.

You report a large list of entries made under the homestead, preemption, and timber laws wherein final proof and payment were made and final certificate issued prior to date of withdrawal. If these entries were valid at inception, and the final proofs were based upon a due compliance with the law, said entries are excepted from the reservation for park purposes, both by the terms of the act of October 1, 1890, and by the principle of law which prevails,

that whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law or proclamation, or sale would be construed to embrace it or to operate upon it, although no reservations were made of it.

These entries should, therefore, be examined as speedily as possible, and if found to be valid should be passed to patent and if found to be

otherwise, should be canceled, except as may be confirmed by the seventh section of the act of March 3, 1891, but it will be observed that entries under the timber and stone act of June 3, 1878, are not confirmed by said act.

Under the rulings of the Department a valid homestead entry constitutes a segregation of the land, and lands embraced in such entries are excluded from the operation of the acts under consideration.

From a list of entries of this character reported by you, I find that many were made more that five years ago, and final proofs have not been submitted. In all of these cases, I am of the opinion that an investigation should be made by the special agent, and if it is found that the entries were illegal, or that the entrymen have abandoned the land proceedings should be instituted for the cancellation of the entries, but if the entries were valid, and the claimants are still residing thereon, they should be permitted to perfect title to the same.

Among the filings and entries reported are three mineral applications, filed September 19, 1879, but no entries for the lands embraced therein have been made. Without, at this time, discussing the effect of these applications as constituting a reservation of the lands, you are instructed to make an investigation for the purpose of ascertaining whether the applicants have complied with the provisions of the mining law, and if they have not, said applications should be canceled after giving the applicants due notice to show cause why such action should not be taken.

You will take prompt action to carry into effect all the instructions contained in this letter.

WAGON ROAD GRANT-SETTLEMENT CLAIM.

WILLAMETTE VALLEY WAGON ROAD Co. v. CASEY.

The case of the Willamette Valley Wagon Road Company v. Morton, 10 L. D., 456, cited and followed.

Secretary Noble to the Commissioner of the General Land Office, April 7, 1891.

I have considered the case of the Willamette Valley and Cascade Mountain Wagon Road Company v. William T. Casey, upon appeal of the former from your office decision of November 13, 1889, rejecting the claim of said company for the NW. of section 33, T. 15 S., R. 15 E., Willamette Meridian, The Dalles, Oregon, land district.

The record shows that on the 27th day of June, 1887, William T. Casey made an application to the local officers to enter said tract of land under the homestead law, alleging settlement thereon on the 1st day of October, 1886.

On the 11th day of July, 1887, the local officers rejected Casey's ap plication upon the ground that "the tract applied for is within the limits of the withdrawal in favor of the Northern Pacific Railroad company." Casey appealed to your office.

On the 13th day of November, 1889, your office found that the local officers erred in their finding that the land in question lies within the limits of the withdrawal in favor of the Northern Pacific Railroad company.

That said land is in no manner affected by the grant to said company, but lies within the limits of the withdrawal for the benefit the Willamette Valley and Cascade Mountain Wagon Road Company and will be so treated.

Your office found that the tract in question was excepted from the operation of the grant under which said wagon road company and its assignee claim it, and directed the local officers to "allow the application of said Casey, subject to all intervening rights." The claim of said wagon road company for said land was, at the same time, rejected by your office.

The Willamette Valley and Cascade Mountain Wagon Road company and Alexander Weill, its assignee, appeal.

It appears that the tract in question lies within the limits of the grant made to the State of Oregon by the act of July 5, 1866 (14 Stat., 89), in aid of a military wagon road from Albany in said State to the eastern boundary of said State. Said grant was conferred by the State upon the Willamette Valley and Cascade Mountain Wagon Road company.

The withdrawal for the benefit of said wagon road company took effect July 3, 1871, and the tract in question was selected by the company April 10, 1879. On the 19th day of June, 1876, James U. Elliott filed a pre-emption declaratory statement for said tract, alleging settlement June 19, 1867. It appears that Elliott had and maintained a valid and subsisting filing and settlement upon said tract at the date of the withdrawal in favor of said wagon road company. This being the case, it is quite clear that the tract was excepted from the operation of the grant.

The specifications of error assigned by appellants are as follows:

1. That the power and jurisdiction of the said Honorable Commissioner of the General Land Office, and of all other executive officers of the government of the United States, over and touching the matter of the said claim of the said Wagon Road Company was and is wholly taken away and suspended, so that the said Commissioner had no power to entertain or take jurisdiction of the matter covered by said decision, by the act approved March 2, 1889 (25 Stats., at Large, p. 850, chap. 37), entitled "An Act providing in certain cases for the forfeiture of wagon road grants in the State of "Oregon"; and the Commissioner erred in assuming and attempting to exercise said jurisdiction.

2. The Honorable Commissioner, in his said decision of November 13, 1889, erred in holding that the words of exception, in the act of July 5, 1866 (14 Stats., 89), which only excepted from the lands granted by said act "any and all lands heretofore reserved to the United States by act of Congress or other competent authority,”

operated to except the said tract in question from said grant, owing to the pretended and alleged homestead entry of James U. Elliott.

3. The Commissioner erred in holding that the exception named in the last paragraph is identical with or as broad as the exception contained in the Union Pacific railroad land grants, and which he, in his said opinion of November 13, 1889, quotes and relies on as the equivalent of the said exception contained in the said act of July 5.

4. The Commissioner erred, in his said decision of November 13, in holding that the facts as to occupation, improvement, etc., established by the evidence in the case as had and done by said James U. Elliott, under his declaratory statement, No. 72, were such as to bring said tract within said exception named in said act of July 5, 1866.

5. The Commissioner erred in holding that even if a valid homestead entry was initiated by the said Elliott, the same had not been abandoned and lapsed so as that it did not operate to exclude the said tract from the grant to Oregon under said act of July 5.

6. The Commissioner erred in other findings of fact and conclusions of law involved in said opinion.

In support of these specifications the appellants have filed an elaborate printed brief, chiefly relying upon the question of jurisdiction of the Department, over lands within this grant. It is contended "that all jurisdiction of the Land Department, as administered by the executive, over and concerning each one of the unpatented six alternate oddnumbered sections within six miles limit of said wagon road, is, by the operation of the act of March 2, 1889, (25 Stat., 850) suspended until after the final decision of the courts, as provided in said act."

This identical question was before the Department and thoroughly considered in the case of Willamette Valley Wagon Road Company v. Morton (10 L. D., 456), and a conclusion reached adverse to the contention of counsel. It is not intended to add anything to what is said in that case further than to say that upon a careful examination of the question, I am fully satisfied with the construction there placed upon the act of March 2, 1889. In several respects the case of Morton, supra, involves the same questions as are presented by the assigment of error in the case at bar. The same is true of the case of Rinehart v. Willamette Valley Wagon Road Co. (5 L. D., 650). Upon the authority of these cases the decision appealed from is affirmed.