much clearness and precision as possible, the locality of the tract with reference to known and conspicuous land marks, or the established lines of survey, so as to admit of its being thereafter readily identified, when the lines of survey come to be extended."

On June 25, 1878 (idem., 1377), your office issued instructions particularly with reference to claims under said act of unsurveyed lands. The foregoing were the only regulations so far as I am advised, relative to compactness required under said statute, in force at the date of said entry.

On September 3, 1880 (id., 1378), your office having been advised that in many cases, desert land entries had been made along the margin of streams, issued instructions, which were approved by the Acting Secretary, that:

The requirement of compactness of form will be held to be complied with on surveyed lands when a section, or part thereof, is described by legal subdivisions compact with each other, as nearly in the form of a technical section as the situation of the land and its relation to other lands will admit of, although parts of two or more sections be taken to make up the quantity, or equivalent of one section. But entries which show, on their face, an absolute departure from all reasonable requirements of compactness, and being contiguous by the joining of ends to each other, will not be admitted. . . . . In no case will the side lines be permitted to extend one mile and a quarter, when the full quantity of six hundred and forty acres is entered. Where the entry embraces a less quantity than a whole section, or its equivalent, the limit to the side lines will be proportionately decreased. You will, in future, be strictly governed by the foregoing instructions. Entries heretofore made, whether by legal subdivisions, on surveyed lands, or of an irregular form on unsurveyed lands, running along the margin or including both sides of streams, and not being compact in any true sense, will be suspended by this office, and the parties will be called on to amend their entries so as to conform to the law; failing to do which, after proper notice, such entries will be held for cancellation.

On January 26, 1881 (id., 1379), your office addressed a letter to the register and receiver at Helena, Montana, relative to the desert land entry of Philip Shenon, and construed said instructions as to entries made prior to the promulgation thereof. Your office held that the regu lation, namely, "in no case will the side lines (of the tract of land embraced in a desert entry) be permitted to exceed one mile and a quarter when the full quantity of six hundred and forty acres is entered," was intended to govern in all cases of desert entries made subsequently to the promulgation of said circular; that entries made before the promulgation of said circular, whether by legal subdivisions on surveyed lands, or of an irregular form on unsurveyed lands, "running along the margin or including both sides of streams, and not being compact in any true sense will be suspended" by your office and the parties will be called upon to amend their entries so as to conform to the law; "that said circular contained no special instructions relative to entries made prior to the date thereof, and not running along the margin or including both sides of streams;' that in cases where it shall appear that the irregularity resulted from the configuration of the country, or from the

contiguity of other entries, or other good cause, and it shall be shown that the entry was made in good faith, and not for the purpose of mouopolizing water rights, and the land has been actually reclaimed; that where the entry can not be amended without injustice to the claimant, if made prior to September 3, 1880, it may be allowed to stand where the rights of no other party are prejudiced thereby; and that "each case of this character will be adjudged upon its merits."

The circular of September 3, 1880, so far as it relates to compactness, is substantially embraced in the Gen. Circular issued March 1, 1884 (page 35).

The decisions of the Department have not been altogether uniform in the construction of said act. In the case of Rivers v. Burbank (9 C L. O., 238) my predecessor, Secretary Teller, held that the land in question was not subject to entry under the desert land act, and that the desert land entry being one and three fourths miles in length would not be allowed to stand. In the case of Mrs. Joseph Lea (11 C. L. O., 45), your office refused to allow her to make final proof upon desert land entry No. 30, made by her father in his life time, it being one fourth of a mile wide and one and three fourths miles in length, and containing two hundred and eighty acres. But on appeal, the Department held that "since it appears that the entryman was allowed to enter said tracts without objection, and that he has spent much time and money in reclaiming them, it would work hardship and injustice to enforce against him the regulation referred to." The case of Rivers v. Burbank (supra) was cited, in the case of R. W. Makinson (4 L. D., 165), holding that in the former case, it appeared that the land, at the date of Burbank's entry, was in no sense desert land, but had been reclaimed thirteen years prior to the passage of the desert land act. In the case of Lizzie A. Devoe (5 L. D., 4), the desert entry was for four hundred and eighty acres, and measured a mile and a quarter from east to west, and my predecessor, Secretary Lamar, held that the regulation of the Department as to compactness "is, by its own terms, not a rigid and inflexible one," and that in determining whether an entry is within the regula tions of the Department as to compactness, its relation to adjacent lands may be properly considered. In the case of Francis M. Bishop (id., 429), the desert land entry being three fourths of a mile wide and one and one quarter miles long, the Department modified said regulation by striking out the paragraph, namely, "In no case, where the full quantity of six hundred and forty acres is entered, will the side lines on either side, be permitted to exceed one mile and a quarter, and less in proportion in case the entry embraces less than a whole section or its equivalent." In the case of James S. Love (id., 642) it appeared that the desert entry being for 173.44 acres was one mile in length. Your office held the entry for cancellation because it was not compact. But Acting Secretary Muldrow reversed the decision of your office and held

on appeal, that it appeared of record that the lands immediately adjoining the lands in question have all been entered under the desert land law by other parties, so that there was no way of rendering said entry more compact than it is, and still retains the same quantity of land; that "the case is precisely like that of Ann E. Miller, decided by this Department May 22, 1886. In that case the entry was a mile long and a quarter of a mile wide, and the adjoining lands were all appropriated by other persons," and her entry was allowed to remain intact. In the case of John Durbize (6 L. D., 536) the Department held that under the rules and regulations in regard to desert land entries in force at the time said entry was made, it was not allowable to permit an entry along the margin or including both sides of a stream, showing gross departure from all reasonable requirements of compactness.

of said Section 13, But when said desert conflict with the reg

An inspection of the records of your office shows, that the allegations of the claimant are substantially true, relative to the appropriation of tracts adjoining said land, and the position of a hill on the east and south of said entry so that he can not now adjust his boundaries without diminishing the amount of land entered by him. Besides, the width of his entry, measuring from the west line in said sections 13 and 24, to the east line of said lots in section 7, is one mile and not five eighths as stated in said decision of your office. It is true that the entry is irregular, as to that portion lying in the NE. the SE. of Section 12, and the lots in Section 7. application was filed, as we have seen, it did not ulations of your office construing the desert land act. The local officers accepted the first payment upon said land. The entry does not lie along the margin or on both sides of any stream, and it appears, that the claimant has brought water from Bear river a distance of nine miles to his claim, and that he has complied with the requirements of the law as to reclamation. In the case of David B. Dole (3 L. D., 214), my predecessor, Secretary Teller, considering the question of assignments of desert land entries allowed under departmental regulations dated March 12, 1877, which were subsequently revoked in the case of S. W. Downey (7 C. L. O., 26), held that the ruling in the Downey case was correct, except that part which held that "there is no discretion either in this act, or by any other law, which authorizes me to treat such claims assignable, because the assignment was made under a misap. prehension." And referring to that part of said ruling, Secretary Teller said:

I do not understand that a party acts under a misapprehension of the law, so as to lose any right, when he acts under its official interpretation. The misapprehension in such case is upon the part of the interpreting authority and not upon him who in the prosecution of a claim conforms to such interpretation. A different rule would permit every person to construe the law for himself, and hence, your office being a proper exponent of this law, entrymen and their assignees acting under such exposition should not be required to forfeit any right by subsequent construction inconsist ent with the first.

But the Secretary further held that an assignee of an entryman, prior to final entry, could not acquire under said act more than six hundred and forty acres of land.

On September 15, 1887, Acting Secretary Muldrow (6 L. D., 145) advised your office relative to the proper construction of the third section of the desert land circular of June 27, 1887 (5 L. D., 708), concerning the price to be paid by the entryman where the initial entry was made prior to the promulgation of said circular. The Acting Secretary held that the making of an entry under the desert land law is a contract between the entryman and the United States, the entryman agreeing to reclaim the tract entered from its desert condition, and to pay for the same at the government price, and the United States agreeing to give him a patent for said land upon the performance of the conditions in the contract; that this contract, like all others, is to be construed and enforced according to the sense in which the parties mutually understood it at the time it was made (1 Chitty on Contracts, 104) and that effect is to be given to it, according to the law at the time it was made, (id., 130).

The Acting Secretary further held that the construction of the Department "which had been in existence from the date of the act until the date of the present circular, had, while it existed the force and effect of law so far as rights acquired under it are concerned," that it was a construction of the law by the head of the Department charged with the execution of it, and the law was administered according to this construction; that it made no difference that the construction of the law has changed; that the sound and true rule is, that if the contract, when made, was valid by the law as then interpreted and administered, its validity and obligation can not be impaired by any subsequent decisions altering the construction of the law. Citing Rowan et al. v. Runnels (5 How., 134); Ohio Life and Trust Co. v. Debolt (16 id., 127); Gelpcke et al. v. City of Dubuque (1 Wall., 175).

Since the desert land act does not specifically prescribe what shall be considered "compact" with reference to the tract entered, and said entry was made in accordance with the rules and regulations in force at the time it was made, and since it appears that the government, not only failed to require him to amend his entry prior to the allowance of his final proof showing reclamation in good faith of the land, but also continued to dispose of the adjoining tracts for five years subsequent to final entry, I am clearly of the opinion that, both upon principle and authority, the entry should be approved and passed to patent.

The decision of your office is modified accordingly.

OSAGE LAND-FINAL PROOF-ADVERSE CLAIM.

EPLEY v. TRICK.

In the absence of express statutory provision to that effect, it cannot be held that failure to submit final proof within six months after Osage filing renders the claim thereunder subject to the adverse right of a subsequent settler.

The case of Rogers v. Lukens, and other cases following the ruling therein announced, are overruled.

Secretary Vilas to Commissioner Stockslager, January 22, 1889.

I have before me the appeal of Charles Epley from your decision of September 21, 1886, holding "subject to Trick's completion of entry in due form," his (Epley's) declaratory statement No. 7299, for the NE. 4, Sec. 27, T. 21 S., R. 20 W., "Osage Indian trust and diminished reserve" land, Larned district, Kansas.

The records show that Trick filed declaratory statement No. 6204, for said tract, on November 6, 1884, alleging settlement on November 4, 1884, and, after due notice, tendered proof on May 25, 1885, when he was met by Epley's protest, on which a hearing was ordered and held October 14, 1885.

After a careful examination of the record I concur in your findings of fact, as set forth in your said decision, and therein summed up as follows: "That Trick made settlement in good faith, and that, under the circumstances, his residence was begun at as early a date as possible, and within a reasonable time from the date of his settlement; that Epley knew of his (Trick's) claim to the tract, and although he had doubt as to Trick's intention to return, yet, he settled upon the claim at his peril. Trick is clearly shown to be an actual settler."

Upon this basis of fact you hold that Trick should be allowed to perfect his entry in due form, notwithstanding his failure to make proof and payment within six months after his filing, as required by the instructions regulating the sale of the Osage lands. This holding is inconsistent with the ruling in the case of Rogers v. Lukens (6 L. D., 111), to the effect that "failure to submit final proof within six months after Osage filing, as required by the regulations of the Land Department, renders the claim thereunder subject to any valid intervening right." If, accordingly, this last-named ruling is to be adhered to by the Department, the decision now under consideration cannot be sustained.

But, after a careful examination of the question, I am constrained to differ from the view adopted in Rogers v. Lukens, for the reasons now to be stated.

The regulation referred to is contained in instructions issued by your office under date of June 28, 1881, and reads as follows:

In entries hereafter made under section two, the general principles of the pre-emption law in respect to filing, proof of settlement, and notice of making proof, will be required to be followed, and filings must be made within three months from date of settlement, and proof, and payment of not less than one-fourth of the purchase price, within six months from date of filing, with notice by publication as required in other pre-emption entries,