their heirship by appealing from the decision of the register and receiver; that it was error to hold that the complaint stated sufficient facts to constitute grounds for a contest, and that the evidence was insufficient to warrant the cancellation of the entry.

None of the defendants appeared at the hearing, and the evidence showed that nothing had been done in the way of tree culture or other improvements or cultivation since the date of the entry nearly nine years prior to the hearing.

The objection that the affidavit did not state facts sufficient to constitute a cause of action, appears to be based upon the failure to allege the death of the entryman. This objection must be sustained. In a contest against the heirs of an entryman it is necessary to allege and prove the death of the entryman. (Jenks r. Hartwell's Heirs, 13 L. D., 337.)

There is no allegation either in the affidavit or notice of contest that the entryman is dead. It is true that the defendants are described as the heirs of Timothy E. Corliss, "deceased," but this mere description is not sufficient to dispense with the required allegation of the death of the entryman.

The affidavit being defective, it is not necessary to discuss the sufficiency of the proof thereunder. The case is remanded with leave to the contestant to amend his affidavit, if he so desires, and proceed with his contest under the ruling in the case above cited.

The decision appealed from is vacated.

RIGHT OF WAY-ACT OF MARCH 3, 1891.

W. H. NELSON.

A natural ravine or creek bed that does not carry water sufficient to be appropriated under the laws of the State may be used for a reservoir and ditch, and an application for a right of way therefor approved under the act of March 3, 1891.

Secretary Bliss to the Commissioner of the General Land Office, October 8, (W. V. D.) 1898.

(F. W. C.)

With your office letter "F" of December 23, 1897, were transmitted maps and field notes in the matter of the application filed by W. H. Nelson for right of way under the provisions of the act of March 3, 1891 (26 Stat., 1095), for a reservoir and ditch, the same being located in townships 38 and 39 N., ranges 12 and 13 E., Susanville land district, California, upon which you recommend that the map of location be approved only so far as it represents the reservoir site and the portion of the ditch outside of the natural water course.

The reservoir is a little more than nine miles from the land claimed by Nelson which is intended to be irrigated by the water collected in said reservoir. The ditch on account of which the application for right of way is based, is stated to be nine miles and 1,650 feet in length, and

with the exception of 198 feet on Nelson's land, is a natural depression or ravine sometimes carrying water. The reservoir is formed by a dam across the upper portion of this ravine or creek.

The surveyor states that

This reservoir is not located upon any running stream, or any stream of water, or any stream of flowing water, such as is subject to location and appropriation under the civil code of the State of California, the water supply being temporary and derived solely from the melting of the snow upon the adjacent hills and mountains. For this reason no location of a water right has ever been made. The water shed or source of water supply comprises about thirty-six square miles in Tps. 38 N., ranges 11 and 12 E.

To my knowledge there has never been any measurement of the maximum or minimum flow, nor any estimate of the average monthly or average annual flow of said water at the point of diversion from which data can be obtained as to the amount of water that runs in this ravine.

Relative to the ditch he states that—

This ditch, to the extent that it is constructed, is of a uniform width of four and one-half feet at high-water line. The natural water course adopted as a ditch is from ten to twenty feet wide and from four to six feet deep, and the deviations in the width thereof are so numerous and occur at such frequent intervals that it is impracticable to note them on the maps and in the field notes.

In your letter submitting the application under consideration it is stated that

The application shows that the water supply is to be derived from the melting snow over a water shed covering an area of about thirty-six square miles. The surveyor alleges that the water course is not such a stream as is subject to location and appropriation under the civil code of the State of California, for which reason "no location of a water right has ever been made."

It appears from the report of the chief of the weather bureau for 1895-6, that during the year 1895, the amount of rainfall in the locality in question was twenty-four inches. Such an amount of rainfall would approximate fifty thousand acre feet for the water shed, with a probable run-off more than sufficient for the capacity of the reservoir, stated to be 420.84 acre feet.

There can hardly be any question but what the run-off from such a volume of water and the regular channel with well defined sides and banks, evidently formed by the flow of the water for a series of years, and extending for a greater distance than nine miles, are the conditions which constitute a natural stream within the definition laid down by the courts (Kinney on Irrigation, p. 62), and which would seem to be the proper point at which to limit the approval of maps granting right of way for canals or ditches under the act of 1891.

It would appear that the applicant's right to the use of the stream for the conveyance of water is amply protected by the federal law (sections 2339 and 2340 U. S. R. S.) and the State law without the necessity for recourse to the act of 1891. The State law (Code of Cal., Sec. 1413) provides that "The water appropriated may be turned into the channel of another stream and mingled with its waters and then reclaimed." Kinney in commenting on this section (p. 536) states “The using of a natural stream for a ditch is very common practice in California; and it is sanctioned by the above statute and the decisions of the courts." (See also par. 246, p. 396.)

The main difference, in fact, between the use of a stream under the State law and the acquirement of a right of way under the act of 1891 (supra) is that by the latter act the grant to the applicant not only covers the ground occupied by the water of

the canal or ditch but in addition fifty feet on each side of the marginal limits thereof so far as may be necessary for the construction, maintenance and care of the same. The grant of such a strip on either side of a natural stream may result in serious complications in the adjustment of the rights of the grantee and subsequent settlers and appropriators who may desire access to the stream under the State law and lead to unnecessary litigation.

In the case under consideration it would appear that, aside from the water collected in the reservoir and turned into the ravine, the water therein would consist merely of surface drainage.

There being no general flow of water within the ravine, questions relating to the right of access by adjoining proprietors would not seem to arise. It is not seen, therefore, how a conflict could arise between applicant and subsequent "settlers and appropriators who may desire access to the stream."

If Nelson has the right to collect the water in his reservoir, which is admitted, he would have the right to convey the same to the point where its use was desired by means of a ditch which he might construct. This being so, there would seem to be no sufficient reason upon which to deny his application for right of way upon the ground that he seeks to adopt a natural ravine or creek bed, which does not carry water sufficient to be appropriated under the laws of the State.

As before stated, you recommend the approval of the ditch only so far as it is outside of the natural depression, or ravine. The map and field notes show but 198 feet of the ditch outside of this depression, and this is upon claimant's land, over which he does not need to secure the right of way.

For the reasons herein given, your recommendation is not approved. The map has been approved as to the reservoir site, but is returned for your further examination of the ditch in view of the directions herein given and to ascertain whether upon the showing made, the same sufficiently conforms to paragraph 20 of the circular of July 8, 1898 (27 L. D., 200).

RAILROAD GRANT-INDEMNITY SELECTION-SPECIFICATION OF LOSS.

NORTHERN PACIFIC R. R. Co. v. CORYELL.

A specification of losses by sections instead of parts of sections may be accepted as sufficient where the losses are within a reservation and the status of the entire section is the same.

The case of Dunnigan v. Northern Pacific R. R. Co. 27 L. D., cited and followed. Secretary Bliss to the Commissioner of the General Land Office, October (W. V. D.) 8, 1898. (F. W. C.)

The Northern Pacific Railroad Company has appealed from your office decision of July 8, 1895, holding for cancellation its indemnity selection covering the NW. 4 of Sec. 7, T. 16 N., R. 45 E., Walla Walla land district, Washington.

21673-VOL 27-33

This tract was included in the company's list of selections filed in the local office March 20, 1884, said list being without a designation of losses as bases for the selections, as permitted by the circular of May 28, 1883 (12 L. D., 196).

On September 2, 1892, the company filed a list in which losses were designated for the selections covered by the list of March 20, 1884, the basis being unsurveyed lands within the Yakima Indian Reservation. Prior to the presentation of the company's list of March 20, 1884, one William Bridgefarmer had tendered an application to make homestead entry of this land, which was rejected for conflict with the indemnity withdrawal made on account of this grant; from which action he appealed. Said appeal was pending in your office, unacted upon, at the time of the presentation of the company's list of March 20, 1884, but upon the prosecution of the case arising upon Bridgefarmer's application to this Department, it was held, by departmental decision of August 6, 1894 (unreported), that the withdrawal was no bar to the acceptance of Bridgefarmer's application, and that upon completion of entry by Bridgefarmer the company's selection would be canceled. Bridgefarmer was duly advised of his right to complete entry of this tract, and on February 14, 1895, the local officers reported that he had waived his right of entry and that Charles H. Coryell had been permitted to make homestead entry of the land on January 10, 1895.

Your office decision of March 20, 1895, held that the action of the local officers in allowing Coryell to make entry of the land while the company's selection was intact, was erroneous, and they were directed to advise Coryell that he would be allowed sixty days within which to appeal or show cause why his entry should not be canceled. In response to this notice he filed a showing before your office, and upon a further examination of the case your office decision of July 8, 1895, now under consideration, held that the company's list of losses filed September 2, 1892, was a substitution for the selection of March 20, 1884, and an abandonment thereof, and that the same was invalid because the losses were not arranged tract for tract with the selected land, and therefore held the company's selection for cancellation; from which action the company has appealed to this Department.

It appears that the only objection to the losses specified in the company's list of September 2, 1892, is that the losses are specified by sections instead of parts of sections. As the losses are within an Indian reservation, the status of the entire section being the same, the objection to the sufficiency of the designation is not a good one, and the designation is accepted as a sufficient compliance with the requirements in the matter of the designation of losses.

All other questions raised are substantially similar to those considered in the recent case of Patrick J. Dunnigan v. Northern Pacific R. R. Co. (27 L. D., 467), and for the reasons therein given your office decision is reversed, and you will notify Charles Coryell, claimant

against said railroad company, of his right to transfer his claim to other lands in lieu thereof, in accordance with the provisions of the act of July 1, 1898 (30 Stat., 621); and in the event he declines this option the railroad company will, under the provisions of said act, be duly invited to relinquish the land herein claimed and to select other lands in lieu thereof.

SALINE LANDS IN OKLAHOMA-ACT OF JANUARY 12, 1877.

A. H. GEISSLER.

There is no law authorizing the disposal of saline lauds except the act of January 12, 1877, aud said act is not applicable to the Territory of Oklahoma.

Secretary Bliss to Mr. A. H. Geissler, Wichita, Kansas, October 8, 1898. (W. V.D.) (E. F. B.)

The Department is in receipt of your letter, without date, submitting in behalf of yourself and others who propose to organize a company to be known as "The Oklahoma Salt Company," an application to lease the "eastern saline reserve," in the Territory of Oklahoma, and, if the Department has no authority to grant or lease such lands, you ask that they be reserved from disposal under the general land laws until you can have an opportunity to apply to Congress at its next session to secure for the Department the necessary power and authority.

There is no law authorizing the disposal of saline lands, except the act of January 12, 1877 (19 Stat., 221), which is not applicable to the Territory of Oklahoma.

The settled policy of the government is to reserve the saline lands from disposal under the general land laws, and in the absence of some statutory provision, the executive Department has no authority to dispose of the same, either by lease or sale. Morton v. Nebraska, 21 Wal., 660; South Western Mining Company, 14 L. D., 597, and authorities cited.

The lands embraced in the eastern, middle, and western reserves, formerly covered by leases made by the Cherokee Nation, prior to March 3, 1893, were, by proclamation of the President of July 7, 1898, restored to the public domain to be disposed of under the laws of the United States relating to public lands in the Cherokee Outlet, subject to the policy of the government in disposing of saline lands.

If the lands within said reservation are actually saline in character, they would not be subject to entry under the general land laws, and hence no action is necessary on the part of the executive Department to reserve them from disposal.

The abrogation of the reservation only restored to settlement and entry under the public land laws such lands formerly embraced in such reservation as may not be saline in character.

For the reasons above set forth, your application is denied.