upon the additional land so entered, residence upon the original homestead entry being accepted as equivalent to residence upon the additional land so entered. But residence either upon the original homestead or the additional land entered must be continued for the period of five years from the date of the additional entry.

A person who has a homestead entry upon which final proof has not been submitted and who makes additional entry under the provisions of section 2 of the act, will be required to submit his final proof on the original entry within the statutory period therefor, and final proof upon the additional entry must also be submitted within the statutory period from date of that entry.

Such additional entry must be for contiguous lands and the tracts embraced therein must be in as compact a form as possible, and the extreme length of the combined entries must not in any event exceed two miles.

In accepting entries under this act compliance with the requirement thereof as to compactness of form should be determined by the relative location of the vacant and unappropriated lands, rather than by the quality and desirability of the desired tracts.

By the first proviso of section 3 any person who made a homestead entry prior to his application for entry under this act, if no other disqualification exists, will be allowed to make an additional entry for i quantity of land which, added to the area of the land embraced in the former entry, shall not exceed 640 acres, but residence upon and cultivation of the additional land will be required to be made and proved as in ordinary homestead entries. But the application of one who has an existing entry and seeks to make an additional entry under said proviso, can not be allowed unless he has either abandoned his former entry, or has so perfected his right thereto as to be under no further obligation to reside thereon; and his qualifying status in these and other respects should be clearly set forth in his application.

Under said act no bar is interposed to the making of second homesteads for the full area of 640 acres by parties entitled thereto under existing laws, and applications therefor will be considered under the instructions of the respective laws under which they are made.

Upon final proof, which may be made after five years and within seven years from date of entry, the entryman must prove affirmatively that he has placed upon the lands entered permanent improvements of the value of not less than $1.25 per acre for each acre, and such proof must also show residence upon and cultivation of the land for the five-year period as in ordinary homestead entries.

In the making of final proofs the homestead-proof form will be used, modified when necessary in case of additional entries made under the provisions of section 2.

It is provided by section 3 that the fees and commissions on all entries under the act shall be uniformly the same as those charged under the present law for a maximum entry at the minimum price, viz: At the time the application is made $14, and at the time of making final proof $4, to be payable without regard to the area embraced in the entry.

In case the combined area of the subdivisions selected should, upon applying the rule of approximation thereto, be found to exceed in area the aggregate of 640 acres, the entryman will be required to pay the minimum price per acre for the excess in area..

Entries under this act are not subject to the commutation provisions of the homestead law.

In the second proviso of section 3 entrymen who had made their entries prior to April 28, 1904, were allowed a preferential right for ninety days thereafter to make the additional entry allowed by section 2 of the law.

Very respectfully,

Approved:

E. A. HITCHCOCK, Secretary.

W. A. RICHARDS, Commissioner.

SCHOOL LAND-RIGHT OF WAY-ACT OF JUNE 21, 1898.

TERRITORY OF NEW MEXICO.

The grant of sections sixteen and thirty-six made to the Territory of New Mexico for school purposes by the act of June 21, 1898, is a grant in praesenti, and any question as to the authority of the Territory to grant rights of way for railroads across any such lands is one for determination by the officers of the Territory and not by the Secretary of the Interior.

Assistant Attorney-General Campbell to the Secretary of the Interior, April 11, 1906. (G. B. G.)

In a communication of February 5, 1906, addressed to the Secretary of the Interior by the Commissioner of Public Lands for the Territory of New Mexico, it is stated that applications have been made by railroad companies for rights of way across school sections sixteen and thirty-six, it being contended by such companies that these applications should be allowed in accordance with section 13, chapter III, Territorial Laws of New Mexico, of 1905, the material part of which is as follows:

That the Commissioner of Public Lands may grant the right of way across or upon any portion of the territorial lands upon such terms as he may deem for the best interests of the territory for any ditch, reservoir, railroad

and sign on behalf of the territory a proper deed or instrument of writing for such right of way or sale.

Said Commissioner asks to be advised "with reference to the rights of the Territory in the matter of a right of way to a railroad company across a school section," and by your reference of the 27th ultimo I am asked for opinion upon the question presented.

I have to advise you that in my judgment the question is not one for the consideration of this Department. The act of June 21, 1898 (30 Stat., 484), made a grant in praesenti of the lands in question to the Territory of New Mexico, with a restriction upon the power of alienation, it being therein provided that these lands might be "leased only" by the Territory. Yet, while it is true that this grant was a present one (Territory of New Mexico, 29 L. D., 364), it is also undoubtedly true that the Congress of the United States may still. enforce the conditions of the grant in any appropriate manner (see Emigrant Co. e. County of Adams, 100 U. S., 61, 69); but I fail to perceive that the Secretary of the Interior is charged with any duty in the premises, advisory or otherwise. If a situation were presented which would seem to require investigation as a basis for a report to Congress, in the discharge of general duties devolving upon the Secretary of the Interior under section 442 of the Revised Statutes, it would, I think, be your duty to direct the investigation, but no such situation is here presented. (See my opinion of February 19, 1906, 21 Opinions Assistant Attorney-General, 390.) Here is an act of the territorial legislature, a copy of which has presumably been filed with the Congress of the United States, pursuant to the provisions of section 1850 of the Revised Statutes, and if that body should not choose to take action thereon, it remains for the courts eventually to determine the legality of such legislation.

There is nothing to investigate, and I think the Commissioner of Public Lands should look to the law officers of the Territory for opinion as to his authority and duty in the premises.

Approved:

E. A. HITCHCOCK, Secretary.

UINTAH INDIAN LANDS—WITHDRAWAL FOR RESERVOIR PURPOSES-
ACT OF MARCH 3, 1905–LEASE.
OPINION.

There is no authority for leasing lands formerly within the Uintah Indian reservation and withdrawn generally for reservoir purposes under the act of March 3, 1905, where such lands have not been appropriated for any particular purpose so as to take them out of the category of public lands. Assistant Attorney-General Campbell to the Secretary of the Interior, (E. F. B.)

April 11, 1906.

A letter from the Director of the Geological Survey, dated March 17, 1906, has been referred to me for opinion as to whether lands

formerly within the Uintah Indian reservation, and now withdrawn for reservoir purposes under authority of the act of March 3, 1905 (33 Stat., 1048, 1070), may be leased for grazing purposes until the lands are needed for the uses contemplated by their withdrawal.

Reference is made by the Director to my opinion of March 10, 1906 (34 L. D., 480), as authority for the leasing of such lands.

That opinion was given upon the question as to the right of the Secretary of the Interior to lease lands withdrawn or purchased for reclamation purposes under the act of June 17, 1902 (32 Stat., 388), but it was based upon the general principle that in the absence of any express prohibition as to the particular property, the head of the executive department in whose care and custody public property is placed to be used for a particular purpose, may, until the property is needed for the purpose intended, exercise his judgment and discretion as to the proper care and disposition of such property and any use of it not incompatible with the purpose intended is not a diversion to other uses and is neither a violation of law nor an abuse of the supervisory authority and discretion reposed in him.

It was also stated that the Secretary of the Interior has no authority under his general power of supervision and control over the public lands to lease them unless expressly authorized by Congress. Special provision having been made for the disposal of public lands, any other manner of disposition is excluded, being impliedly prohibited. The lands in question were withdrawn under authority of the act of March 3, 1905, supra, which empowered the President, prior to the opening of the Uintah Indian reservation, "to set apart and reserve any reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development."

If these lands have been permanently appropriated to a particular use, as in the case of lands appropriated for the construction of irrigation works under the act of June 17, 1902, and have been disposed of so far as to take them out of the category of public lands, the principle announced in the opinion of March 10, 1906, would authorize the leasing of them.

It does not appear, however, that they have been appropriated for any purpose. They are simply reserved public lands that may, or may not, be used for the purposes intended by their reservations, and the vacating of the order of reservation would, of its own force, subject them to disposal as other lands of the reservation.

As they are not a part of an irrigation project to be constructed under the act of June 17, 1902, the rental from these lands would not be covered into the treasury as a part of the reclamation fund-even if there was no question as to the authority to lease.

I advise that there is no authority to lease these lands and the application should be rejected.

Approved:

E. A. HITCHCOCK, Secretary.

REPAYMENT-PAYMENT IN CASH AND BY LAND WARRANT.

HEIRS OF JOSE G. SOMAVIA.

A pre-emption entryman who paid double minimum price for lands supposed to be within the limits of a railroad grant, but which were subsequently held not to be within such limits, is entitled to repayment of the excess of one dollar and twenty-five cents per acre paid by him; but where payment was made partly in cash and partly by land warrant, the Secretary of the Interior has no authority, in making repayment, to draw his warrant for an amount greater than the cash payment made by the entryman; and in such case, where the amount of the cash payment is not sufficient to make the repayment due the entryman in full, he may be permitted to make an additional cash payment of such an amount as added to the sum originally paid by him in cash will aggregate the cost of the land at one dollar and twentyfive cents per acre, and thereupon have the land warrant returned to him unsatisfied.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) (J. R. W.)

April 12, 1906.

The heirs of Jose G. Somavia appealed from your decision of July 15, 1905, refusing to return to them military bounty land warrants Nos. 113411 and 33104, act of March 3, 1855 (10 Stat., 701), respectively for one hundred and sixty and eighty acres.

November 12, 1878, Somavia made final proof of his pre-emption claim to lots 1, 2, 3 and the SW. 4 of the NW. 4, Sec. 2, T. 17 S., R. 4 E., M. D. M., San Francisco, California, and in payment located warrant 113411 for 160 acres on lots 1, 2 and the SW. 4 of the NW. 4, 98.82 acres, and paid $47.05 as and for an excess of 18.82 acres. In payment for lot 3, 45.47 acres, he located warrant 33104, and as and for an excess of 5.47 acres he paid $13.68. This occurred from the fact that the lands entered were at that time by the land department held and supposed to be double minimum lands within the limits of the grant to the Atlantic and Pacific Railroad Company, made by the act of July 27, 1866 (14 Stat., 292), but was afterward held not to be within such limits by decision of March 23, 1886, in Atlantic and Pacific Railroad Company (4 L. D., 458). Due to the former erroneous holding Somavia's warrants were credited upon his entry for half of their area, and he was required to pay and did pay two