The Territory of Wyoming was entitled to exercise the right of selection of other lands in lieu of school sections settled upon at date of survey under the provisions of that act until the act of August 9, 1888, (25 Stat., 393), entitled "An act to authorize the leasing of school and University lands in the Territory of Wyoming and for other purposes." The sixth section of said act provides:

That where lands in the sixteenth and thirty-sixth sections, in the Territory of Wyoming, are found upon survey to be in the occupancy, and covered by the improvements of an actual pre-emption or homestead settler, or where either of them are fractional in quantity, in whole or in part, or wanting because the townships are fractional or have been or shall hereafter be reserved for public purposes, or found to be mineral in character, other lands may be selected by an agent appointed by the governor of the Territory in lieu thereof, from the surveyed public lands within the Territory not otherwise legally claimed or appropriated at the time of selection, in accordance with the principles of adjustment prescribed by section twenty-two hundred and seventy-six of the Revised Statutes of the United States, and upon a determination by the Interior Department that a portion of the smallest legal subdivision in a section numbered sixteen or thirty-six, in Wyoming, is mineral land, such smallest legal subdivision shall be excepted from the reservation for schools, and indemnity allowed for it in its entirety, any such subdivisions, or the portions of them remaining after segregation of the mineral lands or claims, shall be treated as other public lands of the United States.

From affidavits which are a part of the record in the case, it appears that one Nicholas Conlan settled on the tract in controversy about the year 1868, "with the intention of making it his home and acquiring title to the same under the land laws of the United States." One J. C. Abney filed pre-emption declaratory statement for the tract February 28, 1871, alleging settlement June 22, 1869; but he afterwards abandoned it, leaving it in possession of Conlan. The survey of this township was made September 9, 1870, and the plat of survey was received in the local office December 2, 1870. Conlan, having built a house, and plowed, fenced, and cultivated a garden, lived continuously upon the tract, with his family, from 1868 until 1873. Then, his health becoming very poor, he left for the east, selling all his right, title and interest on the tract and the improvements thereon to Talbot, the claimant in this case. Your office decision holds that "Conlan, by reason of his settlement prior to survey, was the only person who could secure title to said tract as against its reservation for school purposes, and he could not transfer his right to a third party."

There can be no question that the settlement of Abney or Conlan upon the tract in controversy, existing at the date of survey, excepted the lands from the reservation for school purposes created by the act of July 25, 1868, so far as it conflicted with their rights by virtue of settlement and occupancy at date of survey, and either Abuey or Conlan as against the rights of the Territory, could have perfected a claim to the land under the homestead or pre-emption law under the act of February 26, 1859. But it is contended by counsel for claimant that, as the Territory has the right under the act of August 9, 1888, to select indemnity

for such portions of sections sixteen and thirty six as are found upon survey to be in the occupancy and covered by the improvements of an actual pre-emption or homestead settler, the Secretary, under said act has the discretion and power to dispose of lands settled upon and improved at date of survey to actual settlers, whether the applicant was or was not the settler found in the occupancy of the land at date of survey, insisting that the provisions of the act of February 26, 1859, protecting the rights of settlers, are enlarged by the act of August 9, 1888. The effect of the construction of the sixth section of the act of August 9, 1888, as contended for by counsel for claimant, is to deprive the Territory of all right to sections sixteen and thirty-six, or such portions. thereof as may be found upon survey to be in the occupancy and cov ered by the improvements of an actual pre-emption or homestead settler; or in other words, that such settlement or occupancy at date of survey excepts said tracts from the operation of the reservation for all time and the Territory is required to select indemnity to be held in reservation in lieu thereof.

The act of March 2, 1853, (10 Stat., 172), establishing a territorial government for Washington Territory, and the general school indemnity act approved February 26, 1859, (11 Stat., 385), contain provisions similar to the sixth section of the act of August 9, 1888, providing for the leasing of school lands in Wyoming Territory; and while these several acts differ in phraseology, they all seem to have the same general object, to wit: to protect the inchoate right of a settler who went upon the land prior to survey without notice that the land settled upon was school lands.

The question as to the right of the Territory to sections sixteen and thirty-six when such sections were found at date of survey to be covered by settlement, and after wards abandoned by such settler, came before the Department in the case of Thomas E. Watson on review (6 L. D., 71) involving the construction of the indemnity provision of the act of March 2, 1853, establishing a territorial government for Washington Territory. It was contended in that case that there is a difference between the act relating to Washington Territory (March 2, 1853), and the general act (February 26, 1859) relating to school lands in other Territories; and that while the rulings of the Department, that the settler upon unsurveyed land which upon survey is found to be a school section, is the only person who can defeat the reservation for school purposes, might be correct as a general rule, it was not applicable to Washington Territory; but the Secretary said

While the act reserving the school sections in Washington Territory differs in phraseology from the general law relating to school lands in the other Territories, and provides for the manner and by whom other sections may be reserved in lieu of sections sixteen and thirty-six, where either of said sections may be occupied by actual settlers prior to survey, yet I think it is apparent that the main purpose and object of both acts is to protect the inchoate rights of a settler who went upon the land prior to survey and is found in possession at the date of survey, and not for the 16184-VOL 8-32

benefit of a settler who went upon the land after survey with full knowledge of the fact that the settlement is made upon lands reserved to the Territory for school pur

poses.

The rights of a settler on school lands prior to survey are protected because his settlement is made without notice that the land settled upon and improved is within the specified sections, but a settler upon school lands after survey has full notice of the identical lands reserved, and there can be no reason or purpose in protecting such settlement against the reservation for school purposes.-(6 L. D., 74): John Johansen (5 L. D., 408).

A provision similar to that contained in the sixth section of the act relating to school lands in Wyoming Territory, is also found in the seventh section of the act of March 3, 1853 (10 Stat. 244), providing for selection of school lands by the State of California in lieu of lands occupied by settlers prior to survey, which is as follows:

That where any settlement by the erection of a dwelling house or the cultivation of any portion of the land shall be made upon the sixteenth and thirty-sixth sections, before the same shall be surveyed ... other land shall be selected by the proper authorities of the State in lieu thereof.

The act of August 9, 1888, provides that "where lands in the sixteenth and thirty-sixth sections of Wyoming Territory are found upon survey to be in the occupancy and covered by the improvements of an actual pre-emption or homestead settler other lands may be selected in lieu thereof." Now if the object of this provision was to except absolutely from the reservation for school purposes lands so occupied and settled upon, and to subject them to disposal under the settlement laws upon the application of any settler-whether the applicant was or was not found in the occupancy at the date of survey-surely the seventh section of the act of March 3, 1853, relating to school lands in California, which provides "that where any settlement by the erection of a dwelling house or the cultivation of any portion of the land shall be made upon the sixteenth or thirty-sixth section before the same shall be surveyed. other lands shall be

selected by the proper authorities of the State in lieu thereof," will admit of the same construction. But the supreme court in the case of Water and Mining Company v. Bugbey (96 U. S., 165) construing this section say:

In Sherman v. Buick (93 U. S. 209), it was decided that the State of California took no title to sections sixteen and thirty-six, under the act of 1853, as against an actual settler before the survey, claiming the benefit of the pre-emption laws, who perfected his claim by a patent from the United States. In such a case, the State must look for its indemnity to the provisions of section 7 of the act. As against all the world, except the pre-emption settler, the title of the United States passed to the State upon the completion of the surveys; and if the settler failed to assert his claim, or to make it good, the rights of the State became absolute. The language of the court is (p. 214): "These things (settlement and improvement under the law) being found to exist when the survey ascertained their location on a school section, the claim of the State to that particular piece of land was at an end; and it being shown in the proper mode to the proper officer of the United States, the right of the State to the land was gone, and in lieu of it she had acquired the right to select other land, agreeably to the act of 1826."

But while the court said that the claim of the State to that particular piece of land was at an end, and in lieu of it she had acquired the right to select other land, it clearly did not mean that the right of the State was absolutely extinguished, but only so far as it conflicted with the rights of the settler whose acts of settlement were made prior to and were existing at date of survey, because the court continuing says:

The settler, however, was under no obligation to assert his claim, and he having abandoned it, the title of the State became absolute as of May 19, 1866, when the surveys were completed.

So therefore the effect of a settlement upon a school, section made prior to aud existing at date of survey, is to except the tract settled upon from the operation of the school grant, and the State is entitled to select other land in lieu thereof so long as the claim of the settler exists; but if the settler afterward abandons the land before the State makes selection in lieu thereof, the title of the State immediately attaches to the specific section as of the date of survey, and the right of the State to make selection in lieu of said tract is thereafter extinguished. This was the ruling of the Department in the case of the State of California (7 L. D. 270), known as the McEvoy case, and said ruling is not in conflict with the ruling of the Department in the case of Nivens v. The State of California (6 L. D., 439), as contended by counsel. In both cases the principle was distinctly announced that the title to school sections settled upon at the date of survey and subsequently abandoned, vest in the State as of the date of survey; but in the Nivens case it was held that a selection made by the State in lieu of the school section settled upon at date of survey and afterwards abandoned was illegal; whereas in the McEvoy case it was held that by the act of selection of lieu land, the title of the State became vested in the tract so selected, and all right to the basis was by said act completely divested so that the title could not thereafter vest in the State although the settler may have failed to make good his claim. But the distinction to be observed is this: In the Nivens case (although the facts are not fully stated in the decision), the township plat was filed June 4, 1875, and at that date the part of the school section used as a basis for the selection was occupied by a pre-emption settler, who failed to file his declaratory statement until September 1, 1877. The State made selection of the lieu land November 21, 1877. Hence having "failed to assert his claim or to make it good" within three months after the filing of the township plat, the State's title to the basis had vested at the date of the selection, and there was no right of selection of lieu land; but in the McEvoy case, the State made selection of lieu land while the rights of the settler to the school land existed, and having exercised the right of selection by which her title vested in the lieu land, her right to the basis was forever gone although the settler afterwards abandoned it. This principle was also announced in the Watson case, supra, in which it was held that the reservation for the benefit of schools

would, by the act of selection legally exercised, be transferred from the specific section reserved by the act to other lands as indemnity therefor, and after stating that the Territory is not bound to make selection of lands in lieu of school sections settled upon at date of survey, but may await the action of the settler, the Secretary says:—

And if he (the settler) fails to prove up or abandons his claim, the right of the Territory to have such lands held in reservation would attach immediately upon the extinguishment of the claim cf such settler, and no right as against the Territory can intervene by subsequent settlement based upon the rights of a settler prior to survey or the purchase of improvements thereof.

The mere fact that the claimant in this case purchased the improve. ments of a settler who had the right to perfect his claim to the land does not confer upon him as against the right of the Territory any better claim than he might have obtained by settlement without such purchase, because his right to the land can only be acquired by settlement which is a personal act and can only date from the time he went upon the land. The purchase of a prior settler's improvements does not transfer any right which the prior settler may have had by virtue of his settlement, nor cause the purchasers' to relate back to the date of the vendor's settlement. Knight v. Haucke (2 L. D., 188); Pruitt v. Chadbourne (3 L. D., 100); Cleveland v. Dunlevy (4 L. D., 121); Howell v. Bishop (6 L. D., 608); Wachter et al., v. Sutherland (7 L. D., 165).

It may be urged, however that the rule applicable to States does not apply to the Territories for the reason that the State claims under a grant which attaches from date of survey, and no grant is made to the Territories, but simply a reservation in contemplation of a future grant. It has, however, been held that the act reserving land for school purposes in the Territories so far as it affects the reservation of the land, has the same force and effect as a grant to a State. John W. Bailey et al (5 L. D., 216).

The right of the Territory to have these lands held in reservation for school purposes is a right given by the act and the Secretary has no power or authority to impair that right by disposing of them to settlers and requiring the Territories to select lands in lieu of such sixteenth and thirty-sixth section to which the right of the Territory is clearly shown.

Your decision is affirmed.

ADDITIONAL HOMESTEAD ENTRY-ACT OF MARCH 2, 1889.
PHILOMAN D. GILBERT.

An additional entry under the act of March 2, 1889, may be allowed to include a tract of adjacent land intended to be covered by the original entry on which patent has issued.

Secretary Noble to Commissioner Stockslager, May 17, 1889.

I am in receipt of your communication of the 19th instant, relative to the homestead entry of Philoman D. Gilbert, for lot 4, Sec. 2, T. 15 N., R. 15 W., in Oceana county, Michigan.