which includes the claim as the law confers, and no others, and these rights can neither be enlarged nor diminished by any reservation of the officers of the land department, resting for their fitness only upon the judgment of those officers. Deffeback v. Hawke, 115 U. S., 392, 406.

In Deffeback v. Hawke it was said:

the land officers, who are merely agents of the law, had no authority to insert in the patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed.

There is clearly, therefore, no warrant for the insertion in patents, issued under the railroad land grants, of the clause "excepting all mineral land should any such be found in the tracts aforesaid." If any statement in this connection were deemed necessary in the patent, which is not believed to be the case, it should be to the effect that the lands patented are found to be non-mineral in character and otherwise subject to the grant.

The letter from the railway company, now under consideration, in referring to said excepting clause, states that

Whilst its inclusion cannot in law lessen the title acquired by the company, it can and frequently does induce innocent third parties not well versed in the law to engage in vexatious and expensive litigation, in the belief that there may be excepted from the patent to the railroad company any minerals which shall be found in the patented lands thereafter.

After careful consideration of the matter, therefore, the request is granted, and you are directed, in future, to exclude said excepting clause from all railroad land grant patents.

FOREST

RESERVE-TEMPORARY RESERVATION-SCHOOL INDEMNITY.

STATE OF CALIFORNIA.

The mere inclusion of sections sixteen and thirty-six, granted for school purposes, within a withdrawal made for the purpose of permitting investigation and examination of the lands with a view to their possible inclusion in a forest reserve, does not place them within a "reservation" within the meaning of that term as employed in the act of February 28, 1891, and therefore does not afford a base for the selection of indemnity lands.

The case of State of California, 20 L. D., 327, cited and distinguished.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) December 10, 1903. (F. W. C.)

The Department is in receipt of your office letter of the 30th ultimo, presenting for consideration, in connection with Sacramento, California, list No. 13, the question as to whether portions of sections 16 and and 36, included within a withdrawal made for the purpose of permitting investigation and examination of the lands with a view to their possible inclusion in a forest reserve, can, under the provisions

of the act of February 28, 1891 (26 Stat., 796), be made the base for the selection of indemnity school lands.

In the instance of the list submitted with your letter the State made selection of all of section 8, township 15 north, range 14 east, M. D. M., in lieu of all of section 36, township 14 north, range 6 east, Humboldt meridian, unsurveyed, alleging the latter tract to be mineral in character and for that reason excepted from the school grant. No sufficient showing was submitted in proof of the alleged mineral character of the base lands, but it is claimed by the State that it is otherwise subject to use as a base for an indemnity selection because it was included within the area of lands temporarily withdrawn October 14, 1902, for examination in connection with the proposed Klamath River forest reserve.

These temporary withdrawals, made preliminary to the establishment of a forest reserve, are, from the very nature of things, largely in excess of the amount which may be finally set apart as a forest reservation, and examination thereof is made as fast as is possible with the force available for the purpose. The withdrawal made October 14, 1902, your office letter reports, includes, approximately, 100 townships or 2,304,000 acres. While lands so withdrawn are not subject to disposition under the general land laws, yet they are not within a "reservation" within the meaning of that term as employed in the act of February 28, 1891, supra; nor are they within a "reservation" within the meaning of the term as there employed until reserved by the proclamation finally establishing the forest reservation.

The act of 1891 provides indemnity where the school sections so granted "are mineral land or are included within any Indian, military, or other reservation." Indian and military reservations include lands specifically appropriated to a particular use, and the words "other reservation" as employed in the act of 1891 must signify a reservation of like character to those specifically enumerated. Mere temporary or preliminary withdrawals of lands with a view to their investigation and examination to determine what part, if any, should be included within a forest reservation, can not be construed as placing such lands within a reservation of like character to an Indian or military reservation.

It is true that in er parte State of California (20 L. D,, 327), it was held that it is not necessary that the reservation of a section 16 be of a permanent character to justify indemnity selection in lieu thereof, but it is equally true that in that case the reservation in question, which was of only one township, was held not to be of a temporary character; further, after careful consideration of said decision the Department refuses to be guided thereby and is of opinion that the mere inclusion of portions of sections 16 and 36 within a withdrawal made for the purpose of permitting investigation and examination of

the lands withdrawn, with a view to their possible inclusion in a forest reserve, does not afford a base for the selection of school indemnity lands under the provisions of the act of February 28, 1891, supra. The list as submitted is here returned without approval.

SOLDIERS' ADDITIONAL HOMESTEAD-SECTION 2, ACT OF JUNE 15, 1880.

JOHN M. LONGYEAR.

The privilage of purchase accorded by the second section of the act of June 15, 1880, and the title obtained thereunder, rest upon and have their inception in the original homestead entry, which is merged in the higher and perfected title obtained by compliance with the provisions of said section, and by a purchase thereunder of land entered under a soldier's certificate of additional right, the original entry is merged in the perfected title received under said act, the certificate of right is thereby satisfied and the certified right of the soldier exhausted.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) December 10, 1903. (G. B. G.)

This is the appeal of John M. Longyear from your office decision of July 16, 1903, denying his application for a recertification of the soldiers' additional right of one William J. Frank.

An original certificate of right to enter 120 acres of land under section 2306 of the Revised Statutes issued to the said William J. Frank, June 5, 1878, and was located by him February 18, 1879, on 120 acres of land at the Marquette land office, Michigan. The entry allowed on this location was canceled for alleged illegality, July 20, 1881, but the real party in interest, who was the said John M. Longyear, upon a proper showing of such interest, was permitted to purchase the land under the provisions of section 2 of the act of June 15, 1880 (21 Stat., 237), whereupon cash certificate issued to him, November 26, 1881, and patent issued thereon August 5, 1885.

Thus stated, this case is controlled by the decision of this Department, March 15, 1899, in the case of John M. Rankin (28 L. D., 204). In that case it was held that the privilege of purchase accorded by the second section of the act of June 15, 1880, and the title obtained thereunder, rest upon and have their inception in the original homestead entry, which is merged in the higher and perfected title obtained by compliance with the provisions of said section, and that by a purchase thereunder of land entered under a soldier's certificate of additional right, the original entry is merged in the perfected title received under said act, the certificate of right is thereby satisfied and the certified right of the soldier exhausted. Previous to the rendition of said decision, to wit, on January 18, 1897, the Department had held, in the case of John H. Howell (24 L. D., 35), that in such cases the soldier's additional right was not satisfied, and in view of the strong probability

and fact that claimed soldiers' additional rights had been bought upon the faith of the ruling in the Howell case, the Department under date of May 20, 1903, directed your office to recertify all additional rights purchased between January 18, 1897, and March 15, 1899. Said order was made upon the consideration of a petition asking the Department to vacate its said decision in the Rankin case, and as to this it was said:

Much may be said either way upon the merits of the question involved, but it will not be necessary to reopen the case. Equities arising upon the faith of the Howell decision may be protected without it.

Under this decision several applications were presented and allowed as coming within the purview of said order, but the present case did not come within it and was rejected by your office upon the authority of the Rankin case, supra.

It is now insisted, as it was insisted when the order of May 20, 1903, was made, that the decision in the Rankin case is fundamentally wrong and should be vacated. That case was not decided except upon a most careful and painstaking examination of the question presented, and in connection with cases since brought before the Department, it has been elaborately discussed and considered in what seems to be its whole aspect. It is believed that no sufficient reason has been shown for overruling said case, and it is hereby reaffirmed and adhered to. The case of Longyear is within it and his application is, for the reasons therein stated, denied.

TIMBER AND STONE ENTRY-SPECULATION-ACT OF JUNE 3, 1878.

ANNIE M. DONAHUE ET AL.

A timber and stone cash entry under the act of June 3, 1878, made in good faith for the entryman's own benefit, without any intent or contract that it shall inure to any other person, even though made with the expectation of profiting by a sale of the land, is not an entry for "speculation" within the meaning of that term as used in said act.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) December 10, 1903.

(J. R. W.)

By office letter of September 30, 1903, pursuant to departmental instructions of November 18, 1902, you transmitted to the Department, for its advice, the papers in the several timber and stone cash entries under the act of June 3, 1878 (20 Stat., 89), all east of the Humboldt Meridian, made at Eureka, California, in order of date as follows: No. 8985, May 17, 1901, Annie M. Donahue, N.

SE. 4, Sec. 22, T. 11 N., R. 3.

SW. and W.

No. 8896, November 6, 1901, Clarence A. Long, SW. 4, Sec. 11, T. 11

N., R. 3.

No. 8914, November 27, 1901, Julia J. Gall, NW. 4, Sec. 11, T. 11

No. 8920, December 2, 1901, Laura L. Barnum, lots 3 and 4, Sec. 30, and lots 1 and 2, Sec. 31, T. 13 N., R. 3.

No. 8937, December 28, 1901, Lucy Peterson, E. NW. ‡ and W. § NE. 4, Sec. 7, T. 15 N., R. 2.

No. 8983, January 8, 1902, George K. Coleman, W. NE. 4, NW. 4 SE. and NE. SW. 1, Sec. 9, T. 3 N., R. 2.

No. 8948, January 10, 1902, Herman A. Lund, SW. 4 SW. 4, Sec. 27, E. SE., Sec. 28, and NW. NW. 4, Sec. 34, T. 12 N., R. 3. No. 8950, January 10, 1902, James G. Burkholder, E. SE. ‡, E. † NE. 4. Sec. 33, T. 12 N., R. 3.

No. 8997, February 3, 1902, Annie M. Sweasy, N. SE. 4. NE. 4 SW. 1, SE. NW. 4, Sec. 2, T. 4 N., R. 3.

No. 8998, April 17, 1902, Lena G. Gross, S. 4 NW. 4, N. † SW. 4, Sec. 1, T. 4 N., R. 2.

No. 9011, May 5, 1902, Jay L. McLaren, NE., Sec. 15, T. 4 S., R. 2.

No. 9051, July 9, 1902, Laurania M. Barnum, E. NW. 4, Sec. 25, T. 13 N., R. 2.

No. 87, K. R. I. R., August 27, 1902, Albert Van Duzer, lot 1, Sec. 3, T. 12 N., R. 2, and SE. NE. and E. SE. 4, Sec. 34, T. 13 N., R. 2.

No. 9163, September 22, 1902, Mary G. Hannah, SE. SE. 4, Sec. 21, S. SW. 4, Sec. 22, NW. 4 NW. 4, Sec. 27, T. 12 N., R. 3. No. 9259, November 18, 1902, Olive V. Sawtelle, NE. 4, Sec. 11, T. 10 N., R. 2.

་

These entries, after final proof at the local office, including crossexamination of the entryman and witnesses, were by your office referred to a special agent for investigation, who made examination of the county records of conveyances, of the local office records, crossexamined each entryman, and reported in each case that no fraud was discovered. Your office after examination of the records found that the entries:

are non-contiguous, except in two instances, and widely separated, being in ten distinct townships; that entrymen are of various occupations and all citizens of the state in which the lands are located; that different persons located the entrymen and that locators are not connected with any company or persons engaged in buying timber lands; that a part of the claims were mortgaged for the purchase money, a part were paid for by entrymen's own funds, and a part have been sold since final proof was made, but in no case was there any agreement to sell prior to final proof nor has any claim been mortgaged or sold to a lumbering company or any one engaged in acquiring vast quantities of timber lands, that the lands are non-mineral and most valuable for the timber thereon; that claimants have acted in good faith in making said entries.

Your office recommended approval of the entries. Examination of the records shows that to the time of the special examiner's reports the land was in nine of the cases (8896 Long, 8914 Gall, 9848 Lund, 8950 Burkholder, 8997 Sweasy, 8998 Gross, 9011 McLaren, 87 Van