having been perfected, issued in the name of Antonio D. Martinez and others. The appeal is in the nature of a motion for a mandamus to the Secretary to compel the Commissioner to deliver certain undated patents, of which there is no record-because an incomplete record is not a record-in your office. The facts, which are undisputed, are set forth in your opinion, and need not be repeated; and upon these facts a question of law arises, whether the unrecorded patent is, under the circumstances, such a one as a court would compel the Commissioner or the Secretary to deliver. I am of the opinion that no court would direct either yourself or myself to give up possession of the paper which these homestead claimants now seek. Whatever bearing the cases cited by the attorneys for the claimants in their brief or oral argument may have upon the question involved in this case I deem it unimportant to discuss, as I am convinced that the case of the United States v. Schurz (12 Otto, 378), from which you largely quote to sustain your conclusion, completely disposes of the present application, because it shows the latest views of the supreme court of the United States on the power of the Land Department over patents and records by which title to public lands from the United States is acquired, and sets forth the extent of the jurisdiction of the supreme court of the District over the acts of Executive officers of the government in general, and in what cases it is the duty of the Secretary of the Interior to deliver patents when demanded. From this decision it must be ascertained what would be the result of an application for a mandamus by the claimants to the supreme court of the District on a refusal by the Commissioner to deliver an unrecorded patent. That court, following the language of the United States v. Schurz, would doubtless hold that the Commissioner has not exercised finally his discretion in the case at bar; his last official act necessary to transfer title to the claimants has not been performed; one of the conditions precedent to the issuing of patents from the General Land Office has not been observed, namely, the record of the completed patent has not been made in the book kept for that purpose (R. S., 458), and until that is done the Executive has still retained something in the nature of judicial authority. The value of a delivered and presumably recorded patent is really the question discussed by the ap pellant's attorneys, but that is a different question from that presented by the record, which is, whether I have power to direct you to deliver the unrecorded patent to the claimants, which in my opinion would be a violation of the law.

It will be noticed that I have not discussed the question whether the undated paper is technically a patent or not; that seems to me to be unnecessary, inasmuch, as accepting the views of the appellants on that subject, I still believe that I would have no right to direct you to deliver the patent before the record of the same is made in your office. The appeal is dismissed.

HOMESTEAD-ABSENCE ON ACCOUNT OF DROUGHT.

MARTIN A. ADAMS.

A homestead party absent on account of severe drought, under act of June 4, 1880, was constructively residing upon his land, and in case the statutory period of five years' settlement and cultivation expired during such absence final proof may be made as though he were actually residing upon the land claimed.

Commissioner McFarland to register and receiver, Larned,Kansas, November 3, 1881.

I am in receipt of your letter of June 28, 1881, transmitting, on appeal from the decision of your office, the final proof papers of Martin A. Adams for the NW. 4, 28, 21, 21 W., rejected by you for the reason that the claimant absented himself from the tract in question in July, 1880, under the act of June 4, 1880, and has not since that time returned thereto to resume and perfect his settlement, as required by the first section of said act.

It appears that Martin A. Adams made homestead entry 507 on above described land March 14, 1876, and has resided upon and cultivated the same since December 12, 1875; that he lost his crops in the year of 1879 and also in the year 1880, on account of the severe and unusual drought in those years, and that he was therefore compelled to go away to work in order to support his family. I am of the opinion that the act of June 4, 1880, does not contemplate that in cases where homestead claimants have left their claims under the said act by reason of extreme drought, and where the five years from date of entry would have expired during said absence, the parties should be required to return to their land and live thereon before being allowed to make final proof, but rather that they are to be considered as constructively residing upon the land embraced in their entries.

Your decision is therefore reversed, and you will, upon payment of the commissions due, issue final papers in the case.

HOMESTEAD-ADDITIONAL ENTRY.

ANNIE ANDERSON.

The act of March 3, 1879, comprehends and includes all persons who in any manner by original entry or by operation of law have succeeded to the right to make final proof.

Secretary Kirkwood to Commissioner McFarland, December 19, 1881.

I have considered the appeal of Annie Anderson (formerly Annie Middleton) from your predecessor's decision of February 8, 1881, rejecting her application, as widow of Joshua Middleton, deceased, to make additional homestead entry of the S. of NW. of Sec. 14, T. 18, R.

14 W., Grand Island district, Nebraska, under act of March 3, 1879. (20 Stat., 472.)

Joshua Middleton made homestead entry No. 7338, February 20, 1878, of the N. of the NW. of said section, and appears to have complied with the requirements of the law to the date of his death, October 15, 1878.

The reason given by your office for rejecting the claim was that the right conferred by this act is a personal one, limited to the individual who made the original homestead entry.

The act provides for additional entry upon prescribed conditions by "any person who has, under existing laws, taken a homestead on any even section within the limits of any railroad or military road land. grant," etc. Its provisions are remedial, and while the beneficiaries take by descriptive words, thus confining the grant to a personal right, the spirit of the act must be observed in recognizing whomsoever may have been proper objects of relief, if pointed out with reasonable clearness by the descriptive language employed.

I am of the opinion that the words "who has under existing laws taken a homestead" comprehend and include all persons who in any manner, by original entry or by operation of law, have succeeded to the right to make final proof and payment of fees and take the patent for the land. As this right is cast upon the widow by operation of law, she must be held to have taken the homestead under existing laws, and should not by narrow and inequitable construction be deprived of the benefit of the amendatory statute.

Your decision is accordingly reversed.

HOMESTEAD-ACT OF JUNE 15, 1880.

GEORGE W. MAUGHAN.*

Purchase may be made under the second section of the act of June 15, 1880, though the entry was void at inception.

Commissioner McFarland to register and receiver, Benson, Minnesota, August 25, 1881.

It appears from our records that George W. Maughan made homestead entry No. 10236, December 10, 1879, N., SW. 1, Sec. 22, T. 124, R. 43. The homestead affidavit was made before the clerk of the court, the party alleging that he was a single man and was residing on the land which he desired to enter.

In the case of Peter G. Gorden v. Maughan, involving the abovedescribed entry, and now pending before this office on appeal, you decided that the party had failed to meet the requirements of the statute in regard to residence and cultivation, and that the entry was void from its inception, for the reason that the testimony showed that the claimant was not residing upon the land at the date of his entry.

* This decision was affirmed by the Secretary, April 28, 1882.

I am in receipt of your letter of the 16th ultimo, transmitting the application of Maughan to make cash entry of the land in question under the second section of the act of June 15, 1880, on appeal from your decision rejecting the same on the ground that you held the entry to be invalid in its inception.

It is now held by this office that a party having made entry of land, properly subject to such entry, prior to the passage of the act of June 15, 1880, is entitled to make cash entry of the land, under the second section of said act, although the homestead entry may have been in. valid in its inception. You are therefore directed to allow Maughan to make cash entry of said land, and when the purchase money is paid and the entry made of record promptly report the fact to this office.

DESERT LAND-FINAL PROOF.

WALLACE v. BOYCE.

In the desert land act the intendment of the statute is to provide for the reclamation of such lands from their desert condition to an agricultural state. Congress specified water as the means to that end, but the mere conveying of water upon the land is not a fulfillment of the law unless in sufficient quantity to prepare such land for cultivation. The final proof must show that it has been so reclaimed.

Secretary Teller to Commissioner McFarland, August 2, 1882.

Pursuant to departmental order of August 12, 1881, in the case of William Wallace v. James R. Boyce, involving desert land entry No. 62 of the W. of SE. and SW. 4 of Sec. 28, T. 10 N., R. 3 W., Helena district, Montana Territory, a hearing was had at the local office November 10, 1881, to the end that Wallace might have an opportunity to verify his allegations touching Boyce's failure to comply in good faith with legal requirements.

It appears that Boyce made final proof, F. C., No. 42, September 1, 1880, whereupon Wallace filed affidavit of contest alleging (1) that the defendant had not reclaimed and cultivated said land as required by the desert land act; (2) that he was not the owner of enough water to irrigate his land; (3) that he was not the owner of a ditch or ditches from the source of supply to the land; (4) that the ditches through which the water was conveyed were not of sufficient capacity to properly irrigate the entire tract.

The act in question, commonly called the desert land act (19 Stat., 377), prescribes "that it shall be lawful for any citizen of the United States, upon payment of twenty-five cents per acre, to file a declaration under oath" with the proper register and receiver

That he intends to reclaim a tract of desert land, not exceeding one section, by conducting water upon the same, within the period of three

years thereafter: Provided, however, that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres, shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation, etc.

A careful examination of the testimony adduced at the hearing discloses substantially the same state of facts that existed at the date of the initiation of contest, excepting perhaps that the capacity of Boyce's main ditch had been materially diminished meantime by reason of ob structions of tailings and débris from the mines along the upper part of Dry Gulch, from which source Boyce indirectly derived his water, not by virtue of a "bona fide prior appropriation," but by mere sufferance. It thus appears that the only improvements upon the tract evidencing any intention on his part to reclaim the same from its desert state consist of a main ditch and two lateral furrows (from which the loose earth had never been removed), and that only about fifty of the two hundred and forty acres could be properly irrigated thereby. You state that

Though this office deemed it proper, in preparing the final proof blank forms under said act, to insert questions as to the cultivation and growing of agricultural crops upon the lands entered

there is nothing in the language of the statute requiring proof of cultivation or of the growing of agricultural crops upon the land entered as a prerequisite to the issuance of patent therefor.

It would appear from this finding that you regard the instructions as in contravention of law. I do not so construe the act. The law allows entry for the purpose of reclaiming by irrigation lands that without such reclamation will not produce any agricultural crop. The final proof must show that it has been so reclaimed "by conducting water upon the same" as required. The forms of proof are drawn with direct reference to the proof of such facts as will show compliance by showing results. They are clearly in furtherance of the law, and authorized by the power to make all proper regulations to enforce in the land administration whatever is not specifically prescribed by statute. Besides, these regulations were promulgated by your office with express approval of the head of the department, and you are not authorized to declare them void or violative of the law.

The primal question to be determined is the signification of the word "reclaim," as the same is used in the statute. It is presumable that Congress used this word in its ordinary acceptation, which, according to Webster, is:

To reduce by discipline, labor, cultivation, or the like, to a desired state; to rescue from being wild, desert, waste, submerged, or the like; as to reclaim wild land, overflowed land, etc.

Hence, I am of the opinion that the intendment of the statute is to provide for the reclamation of such lands from their desert condition to