It appearing from the record that said lands were included in a temporary withdrawal for forestry purposes, by departmental order of October 15, 1902, your office, on August 15, 1903, rendered a decision rejecting said application. Long appealed, and the Department, on October 7, 1903, reversed said decision, and directed that the applicant be allowed to complete his purchase in accordance

with the terms prescribed by the statute."

The application was accordingly allowed, November 3, 1903; and on January 16, 1904, Long submitted final-proof testimony. On that day a special agent of your office appeared at the local office, and cross-examined the entryman and his witnesses. This led to a delay in action upon said proof; and it was not until January 24, 1905, that the claimant was notified by the local officers that upon receipt of $406.50, and a non-alienation affidavit, his case would be taken up with a view to issuing final receipt.

From this action of the local officers Long appealed; and your office, on July 6, 1905, affirmed the action of the local officers.

Long has appealed to the Department. The gist of his contention is to be found in the following extracts from his appeal:

Appellant showed that he was duly qualified; made legal proof that the land was such as the act provides for the sale of; tendered his money and asked to be permitted to pay for and enter the land; in short, did all he possibly could to perfect his claim. He was, however, denied the right to make payment for and enter the land, which the act awards him; his proof was held up and not examined for a year; all contrary to his wishes, as well as contrary to the terms of the act, and not by reason or in consequence of the least fault, failure, or neglect on his part; and now a demand is made that he furnish an affidavit for which there is no requirement of law whatever. .. When he made his proof (which is admitted to be perfect), and tendered the coin to pay for his land, he had done everything in his power to perfect his entry; he thereby acquired a perfect and complete equity to have, and was entitled to have, the land patented to him at any time upon payment of the purchase price; and if at any time after making his proof he had seen fit to sell, or bargain to sell, or to mortgage or otherwise encumber the land, he would have been legally entitled to do so; and whether he did or did not so sell, bargain to sell, or encumber, the land, is a question in which the government has not the slightest interest.

It appears from the record, and, indeed, is clearly indicated by the language of the appellant (supra)—that he "tendered his money," but was "denied the right to make payment for and enter the land"—that the purchase price tendered was not accepted. His proof was not, by the local officers, admitted to be perfect; nor has it been so admitted by your office, or it would not have rendered the adverse opinion from which he has appealed.

The contention of the appellant that his presentation of final proof (since held to be sufficient), and his tender of payment (which was rejected), entitled him to patent, is substantially the same as that

made by defendant Hays in the case of Todd . Hays, in which the Department exposed the fallacy of said contention thus (34 L. D., 371, 374):

Heretofore it has always been understood by the Department that joint action of the applicant on the one hand, and of the local officers on the other, was requisite to make an entry of a tract of land; but if this contention be correct, any person wishing to make entry of a given tract can do so unassisted. The money tendered must have been received, and receipt issued therefor, in order to render such action “equivalent to an entry." As was said by the Department in the case of Thomas r. St. Joseph & Denver City Railroad (3 C. L. O., 197), quoted with approval in Gilbert r. Spearing (4 L. D., 463), and again in Iddings v. Burns (8 L. D., 224):

"Each of the three elements of which this transaction is composed forms an essential part thereof-the application, the affidavit, and the payment of the money; and when the application is presented, the affidavit made, and the money paid, an entry is made a right is vested."

Further in support of the same ruling the Department (in said Todd-Hays case) cited Witherspoon . Duncan (4 Wall., 210, 219); Hastings, etc. R. R. Co. e. Whitney (132 U. S., 357, 363); Jones . Northern Pacific Ry. Co (34 L. D., 105, 111).

A similar conclusion is reached by the Department in the case of Bowlby . Hays (34 L. D., 376), which cited in support of the same ruling, Hoofnagle . Anderson (7 Wheat., 212, 214); Brush e. Ware (15 Pet., 93, 110); Parsons . Venzke (164 U. S., 89, 92)—the last of which says:

Whenever the local land officers approve the evidences of settlement and improvement, and receive the cash price, they issue a receiver's receipt. Thereby a contract is entered into between the United States and the pre-emptor, and the contract is known as an "entry." The effect of the entry is to segregate the land entered from the public domain.

Until this appellant had not only tendered the purchase money, but until it had been received, and receipt given therefor, and final certificate issued, had he become owner of the land, with legal right to sell, mortgage, or otherwise encumber the same. The action of your office in requiring a non-alienation affidavit before issuing final certificate was therefore correct, and is hereby affirmed.

RECLAMATION ACT-SETTLEMENT RIGHTS-IMPROVEMENTS.

GEORGE ANDERSON.

No such rights are acquired by settlement upon lands embraced in the entry of another as will attach upon cancellation of such entry, where at that time the lands are withdrawn for use in connection with an irrigation project under the act of June 17, 1902; nor is there any authority in said act for purchase by the government of the settler's claim or of the improvements placed upon the land by him.

Secretary Hitchcock to the Director of the Geological Survey, March (F. L. C.) (J. I. P.)

10, 1906.

I am in receipt of your communication of the 5th instant, submitting for my consideration an agreement by Mr. David C. Henny, on behalf of the United States, with Mr. George Anderson, whereby the latter agrees to sell to the United States, for the sum of $3,000, the improvements on lots 8 and 9 in section 7, and the NE. of the NW. 1, and the NW. of the NE. of section 18, T. 35 N., R. 25 E., W. M., and all his right, title and interest therein, and all claim to said lands, for use in connection with the Okanogan project, in Washington. The agreement is accompanied by an affidavit of disinterestedness executed by the engineer.

The facts in this case, as disclosed by the correspondence, appear to be as follows:

Mr. Anderson, who, at the time, was qualified to make entry under the homestead law, settled on this land in 1892, the land at that time. being covered by a homestead entry. Anderson subsequently contested the entry, which contest was decided adversely to him. Later he filed a relinquishment obtained from the mother of the minor heir who had succeeded to the entry. He then made homestead entry of the land, which was accepted by the local office but was rejected by the General Land Office and the prior entry permitted to remain intact. The prior entry was canceled, however, by the General Land Office on January 13, 1906, and Anderson advised that he had thirty days' preference right to make entry of the land. When he submitted his application, however, it was rejected by the local land office for the reason that the land had been withdrawn from all forms of entry (first form of withdrawal), under the reclamation act, on July 30, 1904.

Since Anderson settled on the land he has placed improvements thereon, the reasonable value of which is now placed at $3,000, and you have submitted this agreement, entered into between the engineer and Anderson, with the recommendation that if in the opinion of the Department there is authority of law for the purchase of the rights of Mr. Anderson, and his improvements upon this land, the agreement be approved by the Secretary and returned to your office.

After careful consideration of this matter, I have to advise you that in the opinion of the Department there is no authority of law for the purchase of the so-called rights of Mr. Anderson, or of the improvements he has placed upon this land.

At the time Anderson settled upon this land it was covered by a homestead entry, and by that settlement he acquired no rights whatever against either the entryman or the government. See McMichael v. Murphy et al., 20 L. D., 147, and authorities there cited.

It is true that the Department has held that where a settler is residing on a tract covered by an entry at the date of cancellation thereof, his rights as a settler attach eo instanti, without any specific act of settlement on his part, where he is in possession of the tract when the entry is canceled. See authorities above cited and Pool ». Moloughney, 11 L. D., 197, and authorities there cited. But that rule does not apply in this case, for the reason that in paragraph 7 of the circular approved by the Department June 6, 1905, it is held:

When an entry for lands embraced within a withdrawal under the first form is canceled by reason of contest or for any other reason, such lands become subject immediately to such withdrawal, and cannot thereafter, so long as they remain so withdrawn, be entered or otherwise appropriated either by a successful contestant or any other person.

The only rule for the purchase of improvements is found in paragraph 8 in said circular approved June 6, 1905, which provides:

In the event any lands embraced in an entry under which final proof has not been offered, or in any unapproved or uncertified selection, are needed in the construction and maintenance of any irrigation work (other than for right of way for ditches or canals reserved under act of August 30, 1890), under the reclamation act, the Government may cancel such entry or selection and appropriate the lands embraced therein to such use, after paying the value of the improvements thereon and the enhanced value of such lands caused by such improvements.

Paragraph 9 provides a method for determining the value of such improvements.

As Anderson never had any entry, the rule above quoted, as to the purchase of improvements, does not apply to his case.

It will be seen, therefore, that this Department is without any authority to authorize the payment from the reclamation fund of $3,000, or any other sum, for Anderson's so-called rights and improve

ments.

The agreement enclosed with your letter of the 5th instant is returned herewith, not approved.

RECLAMATION ACT-LEASE OF RESERVED OR PURCHASED LANDS.

OPINION.

The Secretary of the Interior has authority to make temporary leases of lands reserved or acquired by purchase for use in connection with an irrigation project contemplated under the provisions of the act of June 17, 1902, where use under the proposed lease will not interfere with the use and control of the lands when needed for the purposes contemplated by the reservation or purchase.

Assistant Attorney-General Campbell to the Secretary of the Interior, March 10, 1906. (E. F. B.)

I am in receipt, by reference, of a letter from the Director of the Geological Survey re-submitting to the Department the question whether lands purchased for reclamation purposes may be leased for one or more years pending construction, or until such lands are needed. The letter is referred to me for opinion upon the question submitted in said letter.

This question was first submitted to the Department by the Director of the Geological Survey in his letter dated August 31, 1903, stating that the reclamation service was about to acquire lands that will be flooded by the Salt river reservoir, and as it will take several years to construct the dam and flood the lands, the government will be in possession of several tracts of good farming lands for two or three years. He stated that if it were possible to lease the lands it would afford a great saving to the government, and he requested "the views of the Department upon the proposition to purchase these lands on terms involving leases as indicated, for one or more years, until the lands shall be needed for the use of the reservoirs. Also whether lands so purchased could be leased to others than the former owners under like conditions."

In replying to this request the Department, in its letter of January 28, 1904 (32 L. D., 416), said that, as a general rule, an executive officer has no authority to use property of the United States for any purpose other than that for which it was acquired. That as there is no authority to use property acquired under the provisions of the reclamation act except for the purpose of constructing and maintaining reservoirs, he cannot use such property in any manner not directly involved in the construction of them.

It was said, however, that “if in any case it be found that land can be purchased for a less price if arrangements can be made to allow the vendor to retain possession until the time when the land is actually needed for use by the government, there is full authority under the act to make such arrangements."

This view contemplates that the consideration to be paid by the vendor for the use and occupation of the land until it is needed by the government is the diminished price to be paid by the government for

the land.

There does not seem to be any difference in principle in acquiring property under an agreement to allow the vendor to retain the use and occupancy of it after the purchase and in acquiring such property by purchase without condition and afterward leasing it to the vendor or to another. In either case it is a lease or permission to use and occupy property of the United States.

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