The act in question provides that all moneys received from the sale and disposal of public lands in certain States and Territories shall be reserved, set aside and appropriated as a special fund in the Treasury, to be known as the "reclamation fund," and used in the examination and survey for and construction of irrigating works for the storage, diversion and development of waters in the reclamation of the arid and semiarid lands in said States and Territories. Section 2 of said act reads as follows:

That the Secretary of the Interior is hereby authorized and directed to make examinations and surveys for, and to locate and construct, as herein provided, irrigation works for the storage, diversion, and development of waters, including artesian wells, and to report to Congress at the beginning of each regular session as to the results of such examinations and surveys, giving estimates of cost of all contemplated works, the quantity and location of the lands which can be irrigated therefrom, and all facts relative to the practicability of each irrigation project; also the cost of works in process of construction as well as of those which have been completed.

The phrase "including artesian wells" refers directly to irrigation works, thus describing artesian wells as one class of such works to be located and constructed in carrying out the scheme for reclaiming arid lands. Preliminary examinations and surveys will probably be necessary to the sinking of any artesian well, but no reasonable construction of the language used will sustain the conclusion that said act contemplates the sinking of such wells as a part of the preliminary examinations authorized.

The statement of the purpose of this act would seem to leave no room for two opinions upon the matters presented by the second and third questions. The fund created thereby is to be used to develop and conserve the water supply for irrigation purposes. Chimerical propositions are not to be exploited. In the prosecution of this work no project, whether it involve the scheme of artesian wells, the construction of reservoirs, or of any other irrigation works, should be entered upon that does not appear to be feasible and that does not present a probability that it will tend to the attainment of the object proposed. It is not permissible to sink an artesian well or to construct any work for conserving water when there are no reasons for supposing that water can probably be had or that, if had, it will not be suitable for irrigation purposes. Neither is it permissible to sink an artesian well, or to undertake any other work tending to develop or conserve the water supply where it is not probable that the water will be needed or used for irrigation.

INDIAN LANDS-BITTER ROOT VALLEY-SECTION 7, ACT OF MARCH 3,

1891.

GAGNON v. TILLMON.

The acts of June 5, 1872, and February 11, 1874, which are the only authority for the disposal of the lands in the fifteen townships in the Bitter Root Valley opened to settlement by the act of June 5, 1872, specifically provide for their disposal to actual settlers only; hence such lands are not subject to entry under the timber and stone act; and an entry thereof allowed under said act, being without authority of law, and therefore illegal in its inception, is not subject to the confirmatory operation of the proviso to section 7 of the act of March 3, 1891. Acting Secretary Ryan to the Commissioner of the General Land Office, (S. V. P.) October 7, 1903. (A. W. P.)

Sarah M. Gagnon has appealed from your office decision of April 27, 1903, rejecting her affidavit of contest against the timber and stone cash entry No. 1216, made January 2, 1900, by Mary M. Tillmon, for the E. of the NW. and the NW. of the NW. of Sec. 12, T. 10 N., R. 19 W., Missoula, Montana, land district.

It appears that defendant filed ber sworn timber land application for the above described tract October 24, 1899, under which proof was made January 2, 1900, and that final certificate issued thereon on that date.

On March 21, 1903, Sarah M. Gagnon filed with the local officers an affidavit of contest against said cash entry, alleging that the entry was improperly allowed.

The local officers forwarded the said affidavit of contest to your office, and by decision of April 27, 1903, appealed from, you rejected the same, as more than two years had elapsed since the issuance of the receiver's receipt upon the final entry, said action being based upon the proviso to section 7 (misstated by you as section 3) of the act of March 3, 1891 (26 Stat., 1095), as follows:

That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or preemption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him.

From a careful examination of the records of your office it appears that the tract in controversy was included in the lands ceded to the United States by the Flathead and other Indians under the treaty of July 16, 1855, ratified by the Senate March 8, 1859 (12 Stat., 975), and within one of the fifteen townships in the Bitter Root Valley-as shown by the map of said valley approved by the Department April 14, 1894-opened to settlement by the act of June 5, 1872 (17 Stat., 226), and to which the benefit of the homestead act was extended by

the second section of the act of February 11, 1874 (18 Stat., 15). These two acts, which constitute the only authority for the disposal of the lands in the said fifteen townships, specifically provide for their disposal to actual settlers only; hence said lands are not subject to entry under the timber and stone act. Webb McCaslin (31 L. D., 243). Tillmon's timber land entry having been made without authority of law was clearly illegal in its inception, and not therefore within the confirmatory operation of the proviso to section 7 of the act of March 3, 1891, supra. United States v. Smith (13 L. D., 533).

Your office decision is accordingly reversed, and as Gagnon's affidavit of contest was by said decision rejected on this ground alone, the same is returned herewith for appropriate consideration.

CEDED CHIPPEWA LANDS-HOMESTEAD ENTRY-QUALIFICATIONS.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., October 9, 1903.

The following persons are not qualified to make homestead entry in the ceded portion of the Red Lake and other Chippewa reservations in Minnesota:

1. Any person who has an existing homestead entry or who, after June 5, 1900, abandoned or relinquished such an entry.

2. A married woman, unless she has been deserted or abandoned by her husband, or comes within the terms of the act of June 6, 1900 (31 Stat., 683).

3. One not a citizen of the United States, or who has not declared his intention to become such.

4. Any one under twenty-one years of age, not the head of a family, unless he has served in the Army or Navy of the United States for not less than fourteen days during actual war.

5. Any one who is the proprietor of more than one hundred and sixty acres of land in any State or Territory.

6. One who has perfected title to a homestead of one hundred and sixty acres by proof of residence and cultivation for five years, unless covered by the act of May 22, 1902 (32 Stat., 203).

7. One who has perfected title to a homestead of one hundred and sixty acres under section 2, act of June 15, 1880.

8. One who, if allowed to make a homestead entry, would thereby acquire, with any other lands he may have entered since August 30, 1890, more than three hundred and twenty acres of nonmineral land. W. A. RICHARDS, Commissioner.

Approved:

THOS. RYAN, Acting Secretary.

CONTEST-CHARGE-MATTERS OF INFORMATION AND BELIEF.

MUDGETT v. Gosslyn.

Where no adverse right in the contestant is alleged as the ground of a contest against an entry or selection of lands, but the contest is based upon some alleged invalidity in the entry or selection, the contestant, or corroborating witnesses, must state facts relative thereto within their own knowledge, and not matters of mere information, rumor or belief.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) October 10, 1903. (J. R. W.)

Eda A. Mudgett appealed from your office decision of July 11, 1903, dismissing her contest of W. G. Gosslyn's application, number 3831 your office series, under the act of June 4, 1897 (30 Stat., 36), to select the E. NW. and SW. NW. 4, Sec. 35, T. 11, N. R. 2 E., and other lands at Eureka, California, in lieu of lands relinquished to the United States in a forest reserve.

June 13, 1901, Gosslyn's application, perfected conformably to the regulations and rules of practice, was transmitted by the local office for action by your office. May 5, 1903, Eda A. Mudgett made her affidavit before a justice of the peace of Humboldt county, California, that she is a citizen of the United States qualified to enter lands under the act of June 3, 1878 (20 Stat., 89), and wishes under that act to enter said lands, which are valuable only for their timber and not for agriculture, and are not subject to selection under the act of June 4, 1897, and that Gosslyn did not examine the land prior to his application. She further alleged upon information and belief, uncorroborated, that Gosslyn's "scrip is illegal, fraudulent and void," "is altered and forged," "is fraudulently prepared," and prays that "said alleged scrip entry" be canceled and she be allowed to purchase said lands from the United States.

Your office held that as the affidavit alleged no right or interest existing in herself at or prior to the perfecting of Gosslyn's application, no cause of action in her own behalf was stated. As to the matters alleged on information and belief, the affidavit, uncorroborated, was not entitled to credit, and was no basis for a hearing.

The contest affidavit charged no issuable fact, proof of which would authorize rejection of Gosslyn's application. To be a valid charge of prior or adverse right in the contestant it was necessary to allege some right in herself existing at the time Gosslyn's application was perfected. When no adverse right is alleged and the ground of contest is some defect or vice inherent in the entry or selection, the contestant, or corroborating witnesses, must state facts within their own knowledge, not mere information, rumor or belief. Buckley v. Massey (16 L. D., 391, 395). This requirement is necessary to protect

the land department and persons dealing with it from interference, annoyance and delay to public business by meddlesome, mischievous, or malicious and irresponsible persons.

Your office decision is affirmed.

FOREST RESERVE-LIEU SELECTION-ACT OF JUNE 4, 1897.

INSTRUCTIONS.

Claims to lands within a forest reserve relinquished to the United States with a view to the selection of other lands in lieu thereof under the exchange provisions of the act of June 4, 1897, arising not by act or sufferance of the relinquisher, but independently asserted by third parties under the laws and supposed title of the United States, after record of a defectively authenticated deed for the relinquished land, subsequently cured, constitute no bar to consummation of the exchange under said act.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) October 13, 1903. (J. R. W.)

The Department is in receipt of your letter of October 7, 1903, asking instructions in cases arising under the exchange provisions of the act of June 4, 1897 (30 Stat., 36), wherein the extended abstract of title, made after curing defects previously existing therein, shows the initiation of claims under the public land laws of the United States.

With your office letter are transmitted, for illustration of its object, the applications of Frederick A. Kribs, numbers 3453 and 3454, your office series, presented at Roseburg, Oregon, to select lands in lieu of lands in the Sierra forest reserve, California, relinquished to the United States under the act of 1897, supra. The abstract of title as originally submitted disclosed that the deed of Mr. Kribs to the United States, and that of his grantor to him, for the lands assigned as basis for such applications, were acknowledged before a notary public in Douglas county, Oregon, in June, 1900, without the authentication of the notary's authority and signature required by section 1189 of the Civil Code of California, as amended February 26, 1897 (acts of 1897, California, p. 45), to entitle such deeds to be recorded, and in consequence of such defect your office, April 8, 1903, required proper authentication and rerecord of such deeds and an extension of the abstract of title to that time under the rule in Frank H. Hereford (32 L. D., 31).

Upon return of the abstract so extended it appeared that after the original record of Krib's deed to the United States, June 27, 1900, and prior to its legal authentication and rerecord, June 22, 1903, viz., between April 16, and July 9, 1902, notices of mineral lode claims. were recorded in the proper county office affecting part of the land assigned as basis for the selections, which lode claims the locator had deeded to the Kern River Mining, Milling and Development Company,