affirmed by the Department. The local office clearly held that default of annual proof was not of itself sufficient cause for cancellation of the entry if the requisite annual proof is in fact filed before its final action upon the entry, but recommended cancellation of the entry because there was no present ability of the irrigation company to perform its contract. This holding was not adhered to by your office and the cancellation was based upon the default of annual proof. The desert land act as amended March 3, 1891 (26 Stat., 1095), provides, among other things That no land shall be patented to any person under this act unless he or his assignors shall have expended in the necessary irrigation, reclamation, and cultivation thereof, by means of main canals and branch ditches, and in permanent improvements upon the land, and in the purchase of water rights for the irrigation of the same, at least three dollars per acre of whole tract reclaimed and patented in the manner following: Within one year after making entry for such tract of desert land as aforesaid, the party so entering shall expend not less than one dollar per acre for the purposes aforesaid; and he shall in like manner expend the sum of one dollar per acre during the second and also during the third year thereafter, until the full sum of three dollars per acre is so expended. Said party shall file during each year with the register, proof, by the affidavits of two or more credible witnesses, that the full sum of one dollar per acre has been expended in such necessary improvements during such year, and the manner in which expended, and at the expiration of the third year a map or plan showing the character and extent of such improvements. If any party who has made such application shall fail during any year to file the testimony aforesaid, the lands shall revert to the United States, and the twentyfive cents advanced payment shall be forfeited to the United States, and the entry shall be cancelled. The original desert land act (19 Stat., 377) gave a period of three years for reclamation without requirement of annual expenditure or proof of it. Section five, above quoted, added by the act of 1891, required proof of annual expenditures in efforts to effect reclamation and imposed a forfeiture in default of such expenditure and proof. The proper construction of the act therefore is, that the requirement for annual expenditure and of proof of it is for information of the land department of the good faith of the entryman and to prevent long segregation of lands so entered where no diligence is shown in matters of reclamation. This being the evident purpose of the provision, the essential thing is diligence and good faith rather than the actual formal proof of it. In Andrew Clayburg (20 L. D., 111), referring to this section, it was held that— This makes the failure to file this testimony during any year as the ground upon which his entry may be canceled, and in every case where there is a total failure to file such testimony during any year after a desert declaration has been filed, upon information of such failure, your office clearly has full and complete jurisdiction to proceed, under rules of practice, against such entry and to finally cancel the same for such failure. In other words, the * * * filing of the yearly testimony showing the expenditure of the requisite amount on the land is all that is required to show full compliance with the law. The intent of the act as requiring evidence of good faith, and the interlocutory character of such proofs and of the proceedings thereon is the clear general purport of that decision. In Hochwart . Maresh, supra, your office held that a charge of default in filing proof of annual expenditure upon a desert land entry did not state a cause of action and this ruling was reversed by the Department upon authority of Andrew Clayburg, supra. That decision however did not go to the extent of holding that default in filing of final proof necessitated cancellation of the entry if the requi site annual expenditure had been in fact made, and formal proof of it was tendered. The report in the latter case indicates that is was substantially ex parte, as the case came to the Department upon contestant's appeal and no service had been made, though service by publication was attempted. It did not show that the requisite annual expenditure had been made and that the default was merely in the formal proof of it and that formal proof was in fact later tendered. The right of a contestant under the act of May 14, 1880 (21 Stat.. 140), does not attach until the final successful result of his contest. Strader v. Goodhue (31 L. D., 137); Emma H. Pike (32 L. D., 395) : McCraney . Heirs of Hayes (33 L. D., 21). The preference right is in the nature of a reward to an informer and is intended to prevent fraudulent appropriation of public lands. Pending the adjudication of a proceeding in the land department there is full jurisdiction to recognize and adjust the equities of the entryman. Williams e. United States (138 U. S., 514, 524); Strader . Goodhue, supra; McCraney v. Heirs of Hayes, supra. The case last cited is strictly analogous to the one at bar, final proof being allowed after initiation of a contest for default of such proof. The local office held correctly on that branch of the present case. A contest for default of annual proof may be defeated by proof subsequent to its initiation but prior to final action therein, that the requisite annual expenditure was in fact made, and the motion for review is well grounded in this respect. As to the first ground of contest the local office erred. The law requires merely annual expenditure to the requisite amount, in good faith for purpose of reclamation. It does not require that the first or any other annual expenditure shall effect reclamation of any part of the land. His expenditure must be honestly intended to effect reclamation of the land, but the sole further requirement is that the tract shall be reclaimed within the time allowed. There was but one witness to support the charge. He testified, among other things I know what he [the entryman] has been doing part of last year. Part of the time he has been out with the engineers on the ditch. They were running the lines over the ditch both with a level and by a transit-in the vicinity of I don't know that he was working to get water on it, I suppose he was though. ground-the ditch. He further testified that the contestant knew such fact of the entryman's efforts and told him of it. The entryman and another witness testified to the same facts in substance and to the fact of the contract, the payment of $100, the doing of work on the ditch, and that he had further, at expense of several hundred dollars, endeavored to interest persons in Seattle and elsewhere to invest capital in the canal project, among whom he names Dr. Smith, State Senator Kinnear, Mr. Hallenbeck, Mr. Phillips, Mr. Cameron, "and various other parties," whom he had taken over the ditch line. In view of the Department this evinces good faith, and actual expenditure to the requisite amount being shown, the entry is entitled to stand intact subject to the entryman's future compliance with the law. The Department decision herein is therefore recalled and vacated, the action of the local office and decision of your office are reversed, and the contest is dismissed. RIGHT OF WAY-TELEPHONE AND TELEGRAPH LINES-SECTION 3, ACT OF MARCH 3, 1901. OPINION. The approval by the Secretary of the Interior of the plats of incorporated cities and towns in the Indian Territory operates as a dedication of the streets and alleys thereof to public use, and thereafter, the Indians no longer having any interest in the ground embraced in such streets and alleys, the Secretary of the Interior has no authority to subject them to the terms of section 3 of the act of March 3, 1901, authorizing him, among other things, to grant rights of way for the construction of telephone and telegraph lines within and through incorporated cities and towns in the Indian Territory. Assistant Attorney-General Campbell to the Secretary of the Interior, June 9, 1906. (G. B. G.) By reference of the Acting Secretary, I am asked for opinion “as to whether rights of way in the nature of an easement should be granted by the Department for the construction of telephone lines within incorporated cities and towns in the Indian Territory after the approval of the town plat, after the streets and alleys of such towns have already been dedicated to public use, and whether general damages should be assessed against such lines constructed after the approval of the town plat." The phrase in this question as propounded-to wit: "rights of way in the nature of an easement "-indicates that reference is had to section 3 of the act of March 3, 1901 (31 Stat., 1058, 1083). This section authorizes the Secretary of the Interior— to grant a right of way in the nature of an easement for the construction, operation, and maintenance of telephone and telegraph lines . . through any Indian reservation, through any lands held by an Indian tribe or nation in the Indian Territory, through any lands reserved for an Indian agency or Indian school, or for other purpose in connection with the Indian service, or through any lands which have been allotted in severalty to any individual Indian under any law or treaty, but which have not been conveyed to the allottee with full power of alienation. A further provision is, that "the compensation to be paid the tribes in their tribal capacity and the individual allottees for such right of way through their lands shall be determined in such manner as the Secretary of the Interior may direct." I am of opinion that the approval of the plats of these towns within the Indian Territory by the Secretary of the Interior operated as a dedication of the streets and alleys therein to public use. This view has heretofore been expressed by the Department in letter of August 18, 1900 (I. T. D. 2606-1900), and in an opinion of February 2, 1905, I expressed a substantially similar view upon a kindred matter (see 19 Opinions, Assistant Attorney-General, 86, 87). This being true, it results that upon the approval of such plats all interest of the Indians in the streets and alleys of these towns terminated and the ground ceased to be such as the Secretary of the Interior is authorized to subject to the terms of the act of March 3, 1901, supra. Legislative policy is in accord with this view of the law, as is evidenced by a provision in the act of April 26, 1906 (Public-No. 129), that "all municipal corporations in the Indian Territory are hereby authorized to vacate streets and alleys or parts thereof, and said streets and alleys, when vacated, shall revert to and become the property of the abutting property owners.' I advise you therefore that the Secretary of the Interior is not authorized to grant rights of way for the construction of telephone lines within incorporated cities and towns in the Indian Territory after the approval of the town plat, and necessarily that general damages in the nature of compensation to the Indians may not be assessed against such lines constructed after such approval and dedication. Approved: E. A. HITCHCOCK, Secretary. APPLICATION TO AMEND-OATH-OFFICER. SCHUYLER C. RENEAU. An application to amend a homestead entry, as well as all affidavits filed in support thereof, should be executed before some officer designated by section 2294 of the Revised Statutes and the acts of March 11, 1902, and March 4, 1904, amending that section, Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 11, 1906. (E. O. P.) Schuyler C. Reneau has appealed to the Department from your office decision of October 13, 1905, rejecting his application to amend his original homestead entry, made August 6, 1904, for the SW. 4, Sec. 19, and NW. 4, Sec. 30, T. 19 N., R. 36 W., containing 325.06 acres, to include in lieu of said tracts, the N., NW. † SE. 4, NE. † SW. 1, W. SW. 1, Sec. 33, and S. 1 S. 1, Sec. 28, T. 20 N., R. 37 W., Broken Bow land district, Nebraska. At the time said application to amend was filed a portion of the land therein described was embraced in the soldiers' declaratory statement filed by Charles H. Bunemann, which was subsequently rejected by the local officers as to part thereof because the tracts described were non-contiguous. After the rendition of the decision now under consideration, Bunemann withdrew his appeal from the decision of the local officers and directed that his declaratory statement be held for naught. The record was thus cleared of any prior claim which might have been asserted by Bunemann to the tracts in conflict with the amended application of Reneau and leaves for determination at this time only the questions presented by the amended application of Reneau. Your office, in rejecting said application, held: From the facts stated it appears that Bunemann was the prior applicant for the tracts in conflict, and Reneau's application does not conform to the regulations governing amendments (see page 18, general circular of January 29, 1904), it not appearing from the showing made that the land applied for is that which was originally intended to be entered. The Department is of opinion that at the time your office decision was rendered the application of Reneau to amend could not have been accepted as to the land in conflict, then covered by the declaratory statement of Bunemann, but this objection has been removed by the withdrawal of the claim of Bunemann for the tracts in conflict. The matters set forth in the affidavit filed in support of the pending application fail to clearly show that the land now applied for was the land examined by Reneau prior to the time he made his original entry. His original entry included but approximately half the area now applied for and it is difficult to believe that Reneau did in fact examine all the land described in his present application, prior to making the entry he now asks to amend. The report of the local officers required by departmental circular of January 11, 1889 (8 L. D., 187), was made prior to the withdrawal of the claim of Bunemann, and is too incomplete to be of service to the Department in passing upon the accuracy of the statements |