It is believed that the weight of the testimony is to the effect that the diversion of these surface waters on the upper stream will not effect a material dimunition of the sub-surface flow at the mouth of the canyon; that there will be some less water at the lower point is probable, but the difference will not be sufficient to affect the conclusion hereinbefore reached, that there is more water flowing at the upper points of diversion than at the intake of the protestants' ditch line. Moreover, this conclusion does not take into consideration the possibility of the applicants putting in sub-surface dams at their several points of diversion, thus utilizing the sub-surface flow at these points, which would undoubtedly effect a large saving of water, and would have very little, if any, effect on the sub-surface flow at the mouth of the canyon. The loss of water between the applicants' points of diversion and the intake of protestants' ditch line is due to two causes-first, evaporation, and, second, consumption of water by plant life. The vegetation which subsists on the surface flow in the San Gabriel canyon is composed almost exclusively of alders, water moties, and willows. These growths have little, if any, commercial value, and according to the testimony are the greatest known consumers of waters. in the vegetable kingdom. Besides, there is a comparatively small area that would be affected by the diversion of waters from the canyon, probably less than fifty acres in all. There is a considerable growth of live-oaks and sycamores in the canyon, but these do not depend for life upon surface waters, and there is no reason to believe that there would not be sufficient moisture in the ground to protect this class of timber. The proposed diversions can in no wise affect the forest growth lying above the points of diversion, nor can they have any effect upon the forest growth in the numerous small streams and canyons lying below the points of diversion. Only the timber in the main canyon will be affected, and only such timber as subsists upon surface waters. That the destruction of this growth of alders, water moties, and willows will cause a more rapid precipitation of waters in the canyon is reasonably certain, but it is not at all clear that this would not be a benefit rather than a hindrance, or that it would not operate to protect the irrigators from flood waters rather than increase. the dangers from that source. This is true, because the rapid precipitation in the lower canyon would clear the canyon for the waters that are flowing in the upper tributaries, and in this way there would not be nearly so much danger of floods as if the thick vegetable growth referred to was still in the canyon and beds of the stream, retarding the flow of the waters. That the timber growth on the head of the stream in the mountains is very valuable in this respect can not be doubted, because it operates to retard the flow of the waters and lets the storm waters run off gradually, thus obviating a condition which would produce floods if the water all ran off at once, but there is noth

ing in the record which shows or tends to show that the valuable timber on the reservation will be injured, or that the beneficial conditions which exist in this reservation will be in any wise interfered with. There will be some destruction of timber along the line of the proposed right of way on the hillsides, but the act which permits rights of way through forest reservations necessarily contemplates such destruction as results from the use and maintenance of the right of way.

In addition to these main grounds of protest, the protestants assert that so much of the proposed scheme as includes the building of a reservoir is impracticable, and there is some testimony of engineers to this effect. On the other hand, the engineers who surveyed these rights of way and who surveyed the reservoir site testify that the scheme is altogether practicable, both as an engineering and as a financial proposition. Whatever may be the fact as to this, time and effect alone can satisfactorily demonstrate. The record justifies the conclusion that the applicants in good faith believe it is practicable to construct the proposed reservoir, and there is nothing before the Department to authorize a finding that this is not so. If it should develop that the applicants are not acting in good faith, or that the reservoir scheme is impracticable, the nature of the permit asked for is such, if allowed, that the Department may at any time revoke it in so far as it depends upon the act of May 14, 1896, supra, and if the protestants are injured, both the Department and the courts will be open to them for such relief as they may be entitled to. Nor is there any force in protestants' contention that the law does not authorize the granting of the right to construct this reservoir because of its extensive area. Section 18 of said act of March 3, 1891, authorizes the approval of a right of way to the extent of the ground occupied by the water of the reservoir," and fifty feet on each side of the marginal limits thereof." The size of the reservoir is not limited.

It is also urged that because some of the claimed water rights of the applicants rest on locations made at a time when no law authorized the appropriation of water within a reservation of the United States, the application should be denied. While there might be some doubt as to whether water locations under the laws of California could be legally made within the boundaries of a government reservation prior to the passage of the act of June 4, 1897 (30 Stat.. 36), such locations were authorized by that act, and inasmuch as no person is asserting in this record a better claim to these waters, the question is not of sufficient importance to warrant discussion.

The decision of your office is reversed. The protest is dismissed, but inasmuch as your office has not examined the case with reference to the sufficiency and regularity of applicants' maps under the laws and regulations of the Department, the case is herewith returned for such examination. If found in all respects regular, your office will return the maps for the approval of the Department.

SCHOOL LAND-INDEMNITY-FRACTIONAL TOWNSHIPS.

STATE OF OREGON.

In determining the amount of indemnity school land granted the several States on account of losses occurring in fractional townships, under the adjustment provided for in section 2276 of the Revised Statutes, the acreage of land returned by the government survey will be taken as the basis for the calculation.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) June 22, 1903. (F. W. C.)

The State of Oregon has appealed from your office decision of October 23, last, wherein its school indemnity list No. 436 was held for cancellation for insufficient bases.

By said list the State selected the N. 4. Sec. 24, containing 320 acres, in lieu of a like deficiency alleged to exist in township 3 N., R. 1 W. Your said office decision states that-

Tp. 3 N., R. 1 W., is fractional with area of 12071.64 acres, which under the provisions of Sec. No. 2276, U. S. Revised Statutes, entitled the State to 960 acres of school land. Sec. 16 has 429.95 acres in place as shown by the township plat on file in this office, and the State made selections amounting to 530.07 acres, approved in clear list 2, upon the basis of the entire deficiency in said township, which leaves the above described selection without base and invalid.

In its appeal the State contends that your office erred

Third. In not holding that the State of Oregon was entitled to select 1280 acres of school indemnity selections, less 429.95 acres in place in Sec. 16, of said T. 3 N., R. 1 W., said township having an area of more than 27 sections, or three-fourths of a township.

No argument has been filed in support of the appeal and it is assumed that the basis of the State's claim is that the subdivisional survey of the township shows more than 27 sections to have been identified, that is, that land is returned in more than 27 sections as usually surveyed. An examination of the township in question shows that the Columbia river, the boundary between Oregon and Washington, runs nearly due north and south through the eastern part thereof, the land to the west of the river being in the State of Oregon. Further, that due to the presence of lakes and ponds the area of land in each section, excepting section 6, is less than 640 acres, some of the sections being almost entirely covered by water.

In determining the amount of indemnity land granted the several States for fractional townships, under the adjustment provided for in section 2276 of the Revised Statutes, which was compiled from the acts of May 20, 1826 (4 Stat., 179), and February 26, 1859 (11 Stat., 385), the acreage of land returned by the government survey has been taken as the basis for the calculation. The following is taken from

the circular of August 30, 1826 (Vol. 2, Laws, Instructions & Opinions, page 466):

For each township or fractional township containing a greater quantity of land than three-quarters of an entire township, (that is to say, more than 17,280 acres) one section is to be reserved.

For each fractional township containing a greater quantity of land than one-half and not more than three-quarters of a township, (that is to say, more than 11,520 acres, and less than 17,280 acres) three-quarters of a section are to be reserved.

For each fractional township containing a greater quantity of land than one-quarter, and not more than one-half of a township, (that is to say, more than 5760 acres, and not more than 11,520 acres) a half section is to be reserved.

For each fractional township containing a greater quantity of land than one entire section, and not more than one-quarter of a township, (that is to say, more than 640 acres, and not more than 5,760 acres) one-quarter section is to be reserved.

Upon inquiry at your office it is learned that this method of calculation has been uniformly followed and after careful consideration of the matter is adhered to.

Applied to the case in hand, the adjustment made by your office was correct and the decision appealed from is affirmed.

SURVEY-NOTICE-CIRCULAR OF OCTOBER 21, 1885.
ALLEN F. FERRIS.

The instructions of October 21, 1885, requiring that notice shall be given of the receipt and filing in the local office of approved plats of the survey of any township before applications for entry of lands included in the survey will be received, are applicable in the matter of the filing of the plat of survey of an island, or other fragmentary tract of public land, made after the regular survey of the township in which such tract is situated, the same as in the case of the survey of an entire township.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) July 2, 1903. (C. J. G.)

March 18, 1903, your office directed the local officers at St. Cloud, Minnesota, to withdraw from the files of their office the plat of survey of an island in Fish Trap Lake, in Sec. 18, T. 135 N., R. 28 W., and Sec. 13, T. 135 N., R. 29 W., pending notice of the filing of said plat in pursuance of the regulations contained in the instructions of October 21, 1885 (4 L. D., 202).

March 24, 1903, your office returned to the local officers at St. Clond, an application of Allen F. Ferris, assignee of Elizabeth Case, widow of John Case, to enter under section 2306 of the Revised Statutes, lot 9. Sec. 18, T. 135 N., R. 28 W., and lot 5, Sec. 13, T. 135 N., R. 29 W., situated on said island in Fish Trap Lake, for the reason that the application was prematurely received, and with instructions that Ferris might renew the same upon the refiling of the plat of sur

vey and after the requirements of your office of March 18, 1903, were complied with.

An appeal has been filed by Ferris from the said decision of your office, it being alleged, among other things, that the instructions of October 21, 1885, supra, require that notice shall be given only when the plat of the survey of any township is filed in the local office, and that the prevailing practice in the local offices in Minnesota has been to allow entries of islands immediately upon the filing of the plats of survey thereof, when they are situated in townships that have been surveyed.

It appears that the survey of the island in question was made upon the application of one Louis M. Osborn, dated February 14, 1902. The survey was approved by your office January 19, 1903, and the plat thereof filed in the local office January 30, 1903. The application of Ferris to make soldier's additional homestead entry was received in the local office January 31, 1903, and transmitted to your office February 5, 1903. It appearing that the local officers had failed to give any notice of the filing of the plat of survey of said island, the action hereinbefore referred to was taken by your office.

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The instructions of October 21, 1885, supra, require that notice shall be given of the receipt and filing in local offices of approved plats of the survey of any townships, and it is specifically stated therein how publicity shall be given, by posting notices and otherwise, that said plat will be filed on a day named, " which shall not be less than thirty days from the date of such notice." Until this is done the plats are not to be regarded as officially received. And it is only after such notice has been given that local officers are authorized to receive applications for the entry of lands included in the survey. The object of such notice is undoubtedly to give all persons who may have claims to or desire to enter the lands an equal chance to present their claims. All the reasons for the regulations contained in said instructions are equally as potent and applicable in the matter of the filing the plat of survey of an island, or other fragmentary tract of public land, made after the regular township survey has been made. Whatever may have been the practice heretofore in local offices, it is clearly in keeping with good administration to require that before entry is allowed in this case, or in similar cases, proper publicity should be given of the filing of the plat of survey, as contemplated by the instructions referred to.

The decisions of your office appealed from are hereby affirmed.