And the first proviso to section 3 of said act is:

That a former homestead entry shall not be a bar to the entry under the provisions of this act of a tract which, together with the former entry, shall not exceed six hundred and forty acres.

The circular of instructions issued under said act May 31, 1904 (32) L. D., 670), contains this paragraph:

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.

The Department concurs in the opinion of your office that applicant's showing is not sufficient to bring him within the act of April 28, 1904 (33 Stat., 527), and therefore he is not entitled to make second entry for 640 acres under section 1 of the act of April 28, 1904 (33 Stat., 547), as applied for. He is clearly not entitled to the provisions of section 2 of said act, for it contemplates the entry of additional lands contiguous to lands within the territory described in the act, entered, owned and occupied by the applicant, conditions that are absent under the present application. With respect to the first proviso to section 3 of said act, the instructions thereunder, supra, declare:

By the first proviso of section 3, any person who made a homsetead entry prior to his application for entry under this act, and has resided upon and cultivated the same for the period required by law, will be allowed to make additional entry for a quantity of land, which added to the area of the land embraced in the former entry shall not exceed 640 acres, but residence and cultivation of the additional land will be required to be made and proved as in ordinary homestead entries.

This paragraph of the instructions, wherein it is declared with reference to the former homestead entry of an applicant under the act of April 28, 1904 (33 Stat., 547), “and has resided upon and cultivated the same for the period required by law," prescribes a limitation not warranted by the purview of said act. The only provision in the first proviso to section 3 of said act, to which said paragraph is directed, is that the tract applied for shall not, with the tract embraced in the former entry, exceed six hundred and forty acres. This being true, the regulation embodied in the foregoing quotation will no longer be followed, and your office will take the necessary steps to correct said instructions in the manner indicated. In view of the above, while Briggs can not be permitted to enter under said act six hundred and forty acres as applied for by him, he may enter, subject to compliance with the requirements of the homestead law, four hundred and eighty acres, if he so desires, and upon showing proper qualification, his former entry being for one hundred and sixty acres. His application will therefore be approved

for that number of acres, the decision of your office being hereby reversed accordingly.

This decision is substituted for that of the Department in this case dated June 17, 1905, which is hereby recalled and vacated.

FINAL PROOF ON CLAIMS WITHIN FOREST RESERVES.

Registers and Receivers,

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., August 1, 1905.

United States Land Offices.

GENTLEMEN: Attention is called to the following reissue of the circular of April 8, 1905, with additions thereto suggested by the Forestry Bureau, Department of Agriculture. The original circular is in full force and effect, the reissue being deemed necessary to more fully emphasize the purpose of the original circular.

(1) Hereafter you will, when issuing notice of intention to make final proof upon claims, either mineral or non-mineral, within an established forest reserve, furnish a copy thereof to the Forest Supervisor in charge of such reserve, in order that he may be enabled to be present at the taking of final proof to examine and cross-examine claimant and his witnesses, or may protest the passage of the mineral application to entry, as the case may be. In the former case, whenever the Supervisor may deem it necessary, the examination may be reduced to writing at the cost of the claimant, and made a part of the final proof in that case. You will request the Forest Supervisor to make proper return of the proof notice, to be made a part of the case, with such notations thereon as he may consider best.

(2) You will carefully examine any proofs for claims within forest reserves, whether mineral or non-mineral, together with any evidence furnished by the Forest Supervisor or brought out by his examination, and either reject, suspend, or approve the same according to the following directions:

(3) If sufficient facts appear upon the face of the record, you will reject the final proof, advising claimant of your reasons therefor, with the right of appeal. No further action thereon will be required from the Forest Supervisor.

(4) If you believe the proof to be fraudulent, or doubtful, but do not have sufficient reasons to justify its rejection, or if the Forest Supervisor has returned the notice with a definite protest against the claim, you will suspend the proof and submit a brief statement of the

tacts in the case to the special agent in charge of the district in which said proof is made, such statement to include the names and addresses of claimants and witnesses, and your reasons for the suspension of the proof. You will forward the proof to this office with a copy of your letter to the special agent. The special agent will then proceed to make such investigation as he may deem necessary, and to submit his report on the approved form. Upon the receipt of his report, appropriate action will be taken upon the entire record as then made up.

(5) If you believe the proof to have been made in good faith and that the law has been in all respects complied with, you will pass such proof to entry in the regular order, upon compliance by the claimant with all the requirements therein and on the payment of fees and commissions, but you will in no case issue final certificate or pass a mineral application to entry when any definite protest by a forest officer has been made against the claim.

(6) You will promptly notify the Forest Supervisor of whatever action you take in every case.

(7) The names and addresses of Forest Supervisors will be furnished you by this office. Notices of claims in forest reserves in which there is no forest officer in charge should be forwarded to the Forester, Agricultural Department, Washington, D. C.

Directions given that all applications for rights of way or other privileges over or upon public lands in forest reserves, now pending before the General Land Office and falling wholly within the jurisdiction of the Department of Agriculture, as defined in departmental letter of June 8, 1905 (concurred in by the Secretary of Agriculture in letter of June 13, 1905), be transmitted to the Department of Agriculture for consideration and disposition, Where applications for rights of way or other privileges affect lands lying partly within and partly without forest reserves, and involve questions within the jurisdiction of the Department of Agriculture and also questions within the jurisdiction of the land department, separate applications will not be required, but in such cases the application will be examined, and, if found regular, approved by the land department in so far as it affects lands without the reserve, and then transmitted to the Department of Agriculture for consideration and such action as may be proper relative to the lands within the reserve; but in the event it appear that the right to use lands without the reserve is subordinate to permission to use lands within the reserve, the application should first be passed upon by the Secretary of Agriculture.

Acting Secretary Ryan to the Commissioner of the General Land (F. L. C.) Office, August 2, 1905. (G. B. G.) Your office letter "F" of July 15, 1905, acknowledges the receipt of departmental letter of June 29, 1905, which defined the divided jurisdiction of the Department of Agriculture and the Department · of the Interior in the matter of applications for rights of way and privileges in forest reserves, and requests that instructions be given by this Department for the disposition of pending applications the consideration of which properly falls within the jurisdiction of the Department of Agriculture as so defined.

It is also suggested that some of these applications may involve rights and privileges upon public lands partly within and partly without forest reserves, and requested that your office be instructed in the premises.

Upon consideration of the matter, it is directed that all applications pending before your office, in whatever state of preparation, for permission to occupy and use public lands wholly within forest reserves, and questions relative to their allowance wholly within the jurisdiction of the Department of Agriculture, as defined by said departmental letter of June 29, 1905 [see letter of June 8, 1905, 33 L. D., 609], be transmitted by your office to said Department for consideration and disposition, and that the applicant in each instance be duly advised of such action.

As to applications affecting lands partly within and partly without forest reserves, involving questions within the cognizance of the Department of Agriculture, it is not believed that the public interests require that the applicant should, as suggested by your office, be put to the trouble and expense of separate applications, but that the applications should be examined and, if found regular, should be approved by this Department as to such part as falls without the forest. reserves, and then transmitted to the Department of Agriculture for its consideration and approval, in so far as it affects the reserve. the event it appear that the right to use lands without the reserve is subordinate to permission to use lands within the reserve, the application should first be passed upon by the Secretary of Agriculture.

In

ARID LAND-RECLAMATION PROJECT-IRRIGABLE AREA-LEGAL

SUBDIVISIONS.

INSTRUCTIONS.

Public lands lying within the irrigable area of a reclamation project constructed under the provisions of the act of June 17, 1902, can be disposed of only under the homestead law and in conformity with the legal subdivisions defined by the public land surveys.

5194 Vol. 34-05 M- -5

Acting Secretary Ryan to the Director of the Geological Survey, (F. L. C.) August 2, 1905.

(E. F. B.) The Department is in receipt of your letter of July 24, 1905, requesting a reconsideration and modification of the "Instructions of August 21, 1903 (32 L. D., 237, 239), so far as it was therein held that

As the Secretary has no authority to allow an entry for less than 40 acres, there is also no authority to subdivide a 40-acre tract for combination with other subdivisions. The provision that the lands shall be subject to entry only "under the provisions of the homestead laws in tracts of not less than forty nor more than one hundred and sixty acres " does not imply a power to allow an entry of any amount between said minimum and maximum area, but contemplates that all entries must be made according to the ordinary legal subdivisions. The Secretary may limit the area per entry to the smallest legal subdivision, or may combine with it one or more legal subdivisions, provided the entry will not exceed 160 acres; but he has no power to subdivide or change the ordinary subdivisions fixed by law.

You cite no authority for the modification of this ruling, but base your request solely upon the ground that your office "has been unable to find any positive provision prohibiting the disposal of the public lands in tracts of less than 40-acre subdivisions."

It is a fundamental principle that the public lands can be disposed of under the general land laws only in conformity with the legal subdivisions as defined by the public land surveys. It is to be found throughout the entire public land system from the foundation to the present time.

Lands lying in the irrigable area of every project constructed under the act of June 17, 1902 (32 Stat., 388), can be disposed of under the homestead law only. Section 2289, Revised Statutes, as amended by the act of March 3, 1891 (26 Stat., 1095), contains the positive requirement that land entered under the homestead law shall "be located in a body in conformity to the legal subdivisions of the public lands." The same provision was also contained in the original act of May 20, 1862 (12 Stat., 392).

If the conditions referred to in your letter exist to any great extent, which the Department is not prepared to accept, although it does not reject your view, the remedy must be provided by the legislative branch of the government.

MARVIN HUghitt.

Motion for review of departmental decision of May 8, 1905, 33 L. D., 544, denied by Acting Secretary Ryan, August 4, 1905.