exceed two miles, but this is likewise true as to the original entry. The Department, however, does not accept either of the above plans of measurement in determining the extreme length of an entry, as prescribed by the act in question. If such a plan were adopted where an entry embraced an entire section, the combined length and width would be two miles, and if it embraced one-half of two adjoining parallel sections, its combined measurement would be two and one-half miles, while by diagonal measurement it would also exceed two miles in length. But certainly an application embracing such a tract could not properly be rejected solely on the ground that it exceeded the two-mile limitation.

In determining the extreme length of an entry in contemplation of this act, therefore, the Department is of the opinion that the measurement must follow the lines of the public survey, and that no entry can be allowed for any tract exceeding two miles either in length or breadth, but also that no application for six hundred and forty acres in as nearly compact form as possible should be rejected solely because its combined length and breadth or diagonal measurement might exceed two miles.

Considering this application on the showing made in support thereof, it will be observed that technically it is not an application for amendment, but rather an application to enlarge the original entry so as to include additional adjoining land now vacant, but formerly embraced in the homestead entry of another, which was canceled as result of applicant's contest. While it has generally been held that the election of a qualified party, when filing for a homestead, to take less than the law allows him, is a waiver of his claim for a larger quantity, yet applications of this character have been allowed where through ignorance or misinformation the entryman has been misled as to his rights, and no adverse claim has intervened (Josiah Cox, 27 L. D., 389; Charles Carson, 32 L. D., 176); also where he had clearly disclosed his intention to so amend to include an adjoining tract, when he had cleared the record of an existing entry covering it. (Hadley v. Walter, 25 L. D., 276; Joseph Heisel, 26 L. D., 69; Daniel L. Hartley, idem., 663; Green Piggott, 34 L. D., 573.) In the case of Ella Pollard (33 L. D., 110) it was also held, according to the syllabus, which appears to sum up correctly the doctrine announced therein, that:

Where a desert land entryman does not include in his entry the full area allowed by law, for the reason that there is no vacant land adjoining that entered which is susceptible of irrigation and reclamation, he may, if adjoining land of the character subject to desert land entry thereafter becomes vacant, enlarge his original entry so as to include therein the full area allowed by law.

The facts in this case are very similar and in all material respects the same as in the case at bar. While it is true that the former was

an application to amend or enlarge a desert land entry, yet the principle is the same, and there appears to be no good reason why it may not govern in the disposition of the case now under consideration.

In accordance with the views herein expressed, the decision of your office is reversed, and, in the absence of any other material objection, the application will be allowed.

RIGHT OF WAY FOR TELEPHONE AND TELEGRAPH LINES-ACT OF FEBRUARY 15, 1901.

REGULATIONS.

Paragraph 54 of the regulations of September 28, 1905, requiring that all applications for rights of way under the act of February 15, 1901, for telegraph and telephone lines, must be accompanied by an official statement of the Post Office Department showing that the applicant has complied with the regulations under title 65 of the Revised Statutes, revoked.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) June 18, 1906. (F. W. C.)

By letter from Acting Postmaster General, dated the 31st ultimo, the attention of this Department is invited to paragraph 54 of the regulations concerning right of way for canals, ditches and reservoirs, and for permission to use rights of way for telegraph and telephone lines, electric plants, etc., approved by this Department September 28, last (34 L. D., 212, 232), which provides that—

All applications for the use of a right of way under this act, through any lands designated therein, for telegraph and telephone purposes, must be accompanied by an official statement from the Post-Office Department showing that the applicant has complied with its regulations under title sixty-five of the Revised Statutes of the United States and amendments thereto.

This regulation is issued under the act of February 15, 1901 (31) Stat., 790), which authorizes the Secretary of the Interior to permit the use of rights of way through the public lands, forest and other reservations of the United States and certain named parks in California, for electric plants, poles and lines for the generation and distribution of electric power and for telegraph and telephone purposes, and for canals, ditches, pipes, and pipe lines, etc.

Attention is also invited to the filing in March, 1905, by the Standard Consolidated Mining Company, with the Post-Office Department, of its alleged acceptance of the restrictions and obligations of the act of Congress approved July 24, 1866, entitled, "An act to aid in the construction of telegraph lines and to secure to the Government the use of the same for postal and military purposes," and of acts amendatory thereof, which acceptance was evidently filed in furtherance of the requirement of paragraph 54 of the regulations above quoted.

With regard to said Standard Consolidated Mining Company, the letter from the Acting Postmaster General states:

It was stated by the company that it proposed to erect a telephone line in township 3 north, range 24 east, M. D. M., to be used entirely for private purposes, to connect the electric power house situated on Green Creek, which had been occupied by the company for twelve years preceding, with its storage system on the head waters of said creek; and that the line was to be about ten miles in length.

It was advised by the Assistant Attorney General for the Post Office Department that this corporation was not a telegraph company within the meaning of the act of 1866, supra, and not entitled to any of the benefits of that act; that the act of 1901 is not amendatory of the act of 1866, and that the Postmaster General was not required therefore to file the proffered acceptance. As authority for his conclusion, the Assistant Attorney General referred to the decision of the United States Supreme Court in Richmond . Southern Bell Telephone Company (174 U. S., 761), and an opinion of the Attorney General published in volume 24 Opinions of Attorneys-General, at page 603.

Following the opinion thus expressed by the Assistant Attorney General, this Department declines to file alleged acceptances proffered by telephone companies of the benefits and obligations of the acts of 1866 and 1901, and, as will have been seen, such policy conflicts with the quoted regulations of the Department of the Interior, to the serious embarrassment of such companies.

I have the honor to suggest that this matter be taken up between the Department of the Interior and the Post Office Department for the purpose of arriving at some arrangement which will obviate the difficulty herein set forth.

By act of February 15, 1901, supra, it is provided:

That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of rights of way through the public lands, forest and other reservations of the United States, and the Yosemite, Sequoia, and General Grant national parks, California, for electrical plants, poles, and lines for the generation and distribution of electrical power, and for telephone and telegraph purposes, and for canals, ditches, pipes and pipe lines, flumes, tunnels, or other water conduits, and for water plants, dams, and reservoirs used to promote irrigation or mining or quarrying, or the manufacturing or cutting of timber or lumber, or the supplying of water for domestic, public, or any other beneficial uses to the extent of the ground occupied by such canals, ditches, flumes, tunnels, reservoirs, or other water conduits or water plants, or electrical or other works permitted hereunder, and not to exceed fifty feet on each side of the marginal limits, or not to exceed fifty feet on each side of the center line of such pipes and pipe lines, electrical, telegraph, and telephone lines and poles, by any citizen, association, or corporation of the United States, where it is intended by such to exercise the use permitted hereunder or any one or more of the purposes herein named: Provided, That such permits shall be allowed within or through any of said parks or any forest, military, Indian, or other reservation only upon the approval of the chief officer of the Department under whose supervision such park or reservation falls and upon a finding by him that the same is not incompatible with the public interest: Provided further, That all permits given hereunder for telegraph and telephone purposes shall be subject to the provision of title sixty-five of the Revised Statutes of the United States, and amendments thereto, regulating rights of way for telegraph companies over the public domain: And provided further, That any permission given by the Secretary of the Interior under the

provisions of this act may be revoked by him or his successor in his discretion, and shall not be held to confer any right, or easement, or interest in, to, or over any public land, reservation, or park.

It will be seen that this act makes all permits given thereunder for telegraph and telephone purposes "subject to the provision of title sixty-five of the Revised Statutes of the United States and amendments thereto, regulating rights of way for telegraph companies over the public domain." It is clear therefore that any permit which might be obtained from this Department under said act would be subject to all the burdens of title 65 of the Revised Statutes, and this without regard to any action on the part of the applicant for the permit in the matter of filing with the Post-office Department of an acceptance of the restrictions and obligations of the matters included under title 65 of the Revised Statutes.

There is no question now before the Department as to the effect of the proviso to the act of February 15, 1901, as to the burdens imposed, nor any claim for benefits by reason thereof, and from a careful consideration of the entire matter the requirement of paragraph 54 of the regulations approved September 28, 1905, supra, seems to be unnecessary, and compliance with its conditions will not be longer exacted.

SETTLEMENT RIGHTS-ADVERSE POSSESSION-ESTOPPEL.

PETERSON v. PALMER.

One who fails to assert any claim to a tract of public land in the adverse possession of another, and remains silent, though knowing that the adverse occupant continues to claim, occupy, and improve the land, is estopped thereby from subsequently asserting a prior settlement right thereto in himself, notwithstanding the tract is found upon survey to be a part of the technical quarter-section upon which his improvements are located.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V.P.) June 18, 1906. (J. L. McC.)

The plat of T. 26 N., R. 19 W., Kalispell land district, Montana, was filed in the local office on October 17, 1904.

On the same day Lulu Palmer made homestead entry for lots 6 and 7 and the E. of the SW. of Sec. 6, in said township.

On November 17, 1904, Neils Peterson filed affidavit of contest against said entry, alleging prior settlement on the SE. of the SE. of Sec. 6, the W. of the NW. and the NE. of the NW. of

Sec. 7, same township and range.

The land in dispute is the forty-acre tract constituting the SE. of the SW. of said section 6.

A hearing was had, at which it was shown that Miss Palmer settled on the land on August 20, 1902, by commencing the building of a house (on the NW. of said SW. 4), in which she took up her residence as soon as it was finished, and continued to reside therein until the date of her entry. She made no improvements upon the forty-acre tract in controversy; but she testified that while work was in progress on her house-about August 22, 1902 her uncle, F. F. Stevens, posted notices on the land setting forth the extent of her claim. Inasmuch as counsel for the contestant express a doubt whether any notices were ever posted, or if so, that they were posted where any person would be likeley to see them, it may not be amiss to quote the testimony on this point-abbreviated by the omission of some needless verbiage:

in going

There was no necessity for placing more than two notices up there any way because all the north and east is a rough country. and nobody travels in there; but on the south side of this quarter, hunting they will go down that road, and turn off into the timber; so I went over near this southeast corner in question .. is a creek comes along, there; . . and a few acres of open timber; and I thought it a most feasible place for a hunter to pass, so I stuck up a notice there stating how she had taken the land.

.

where there and there is a trail comes in along about

Q. Did that notice state that she claimed that forty among others?—A. Yes, sir, in a square, and warned them against trespassing; and then the other notice was put on a tree along the main traveled road.

Q. From your observation of the forty when you put up those notices, are you able to testify whether there was any person living on the land, or any improvements upon the same?-A. There was none whatever; there was nothing but an old trail.

In behalf of the contestant it is claimed that the forty-acre tract in controversy was first occupied, some time in the summer of May, 1902, by one John Tisdale; he remained about a year, and sold his improvements and possessory right to J. A. Folk; he, in January, 1904, sold to J. II. Parker; he, on May 3, 1904, sold his improvements to the contestant Peterson, who made a few more improvements upon the tract in controversy, in section 6, and built a house, in which he established residence, in section 7.

In view of the facts above set forth the local officers found and held:

We fail to find that the contestee ever established the corners or boundaries of the land claimed by her, to wit, the SW. } of Sec. 6, or in any manner exercised any right of ownership over the SE. of the SW. of said Sec. 6, but rather acquiesced in the acts of improvement performed by John Tisdale, the original locator of the disputed 40, and his successors in interest; that the contestee never established any possession or control either by act of location, settlement or improvement of SE. 4 of SW. 4, Sec. 6, T. 26 N., R. 19 W.

We further find that Neils Peterson, successor in interest to Robert II. Parker, settled upon this disputed 40, together with other lands claimed by him