of approximation has never been applied to an entry made under said right, and the circular referred to in your said decision contemplates and permits one application of said rule to each original right of additional homestead entry under said statute.

Your said decision is therefore reversed, and, if there be no other objection, said application will be allowed.

DESERT LAND ENTRY-AREA-ACT OF AUGUST 30, 1890.

STUART . BURKE.

The limitation in the act of August 30, 1890, as to the amount of land that may be acquired by any one person under the public land laws, applies only to the acquisition of title, and not to the amount of land that may be entered or filed upon under such laws.

Acting Secretary Ryan to the Commissioner of the General Land (F. L. C.) Office, May 21, 1904.

(A. W. P.) Edwin E. Stuart has appealed from your office decision of October 6, 1903, wherein you affirm the action of the local officers dismissing his contest against John L. Burke's desert land entry No. 2833, made April 28, 1900, for lots 6 and 7, Sec. 30, T. 7 S., R. 31 E., and lots 1, 2, 3, and 4, and the W. of the NE. 4 and the W. of the SE. of Sec. 25, T. 7 S., R. 30 E., Blackfoot, Idaho, land district.

Stuart initiated contest against said entry April 3, 1902, alleging that it is-

illegal for the reason that the records of the U. S. land office at Blackfoot, Idaho, show that said Burke had exhausted his desert right prior to the 28th of April, 1900, by reason of having filed theretofore homestead entry No. 7399 for lots 10 and 11, 30, 7 So., 31 east, and lots 6, 7, 8 & 10, 31, 7 So., R. 31 east, 161.73 acres, and relinquished the same on said April 28th, 1900.

Notice issued thereon and on July 28, 1902, when the case came up for hearing, on motion of the contestee the local officers dismissed the contest on the ground that the affidavit of contest did not state a cause of action.

Upon appeal therefrom, as stated, your office, by decision of October 6, 1903, affirmed the action of the local officers, holding, in substance, that the restriction or limitation as laid down in the act of August 30, 1890 (26 Stat., 391), applies only to "acquisition of title,” and not to the amount of land that may be "entered or filed upon' under the agricultural public-land laws, and that at the time defendant made the entry in question, which was for 313.78 acres, he relinquished a homestead entry previously made, and therefore was and is not seeking to acquire title to more than three hundred and twenty acres. From this decision Stuart has appealed to the Department.

In answer to the question raised by appellant, attention is directed to General Land Office circular, issued January 25, 1904, wherein, on page 79, in calling attention to that part of the act of August 30, 1890, supra, relative to the restriction on the acquisition of title to agricultural public land, it is stated that:

In view of this legislation, all applicants to file or enter under any of the land laws of the United States will be required to make affidavit showing that since August 30, 1890, they had not acquired title to, nor are they claiming under any of the agricultural public-land laws, an amount of land which, together with the land sought to be entered, will exceed in the aggregate 320 acres. (See Form 4-102 b,

p. 272.)

The decision of your office being in conformity therewith is accordingly hereby affirmed.

RECLAMATION ACT-LANDS HELD IN PRIVATE OWNERSHIP-USE OF

WATER.

INSTRUCTIONS.

To entitle an applicant for the use of water for lands held in private ownership within the irrigable area of an irrigation project under the act of June 17, 1902, to the benefits of the act, he must hold the title in good faith, and not for the purpose of evading the provisions of the law, and his occupancy must be bona fide and in his own individnal right.

Acting Secretary Ryan to the Director of the Geological Survey, May (F. L. C.)

21, 1904.

(E. F. B.)

By letter of April 30, 1904, you request to be advised upon a question which you say has arisen in connection with the operation of the reclamation act as to the disposition of lands in private ownership in blocks of more than one hundred and sixty acres.

The practical question upon which you ask to be advised is whether a person who is the owner of more than 160 acres of land irrigable under a project of the reclamation service may convey the surplus over one hundred and sixty acres to members of his family and thus entitle the grantees of the several tracts to the benefit of that provision of the act of June 17, 1902 (32 Stat., 388), allowing lands in private ownership to be irrigated by the waters of said irrigation project upon the condition that—

No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner, and no such sale shall be made to any land owner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made.

The owner of realty may convey an absolute estate in such reality to his wife or to his children, vesting in them the legal title where

they are sui juris and competent to hold, or to trustees for their benefit where they are not competent to take the legal title, and love and affection is a sufficient consideration to sustain such conveyance. No reason appears why one holding lands within the irrigable area of any project constructed under said act under such conveyance should not be entitled to the benefit of the act if he or she is an actual bona fide resident on the land or occupant thereof residing in the neighborhood of such land, provided, the conveyance is made and accepted in good faith for the purpose of actually vesting the title in such grantee and not with a view to evade the provisions of the law.

Cases may arise in the administration of the act of attempts to evade its spirit and purpose by pretended transfers of portions of large bodies of land, but no feasible plan suggests itself for preventing transfers of the character you mention, to individuals of the same family.

The Secretary of the Interior undoubtedly has authority to refuse the use of water for any lands except such as come within the provisions of the act, and he may prescribe rules and regulations to be observed by applicants for the use of water for lands in private ownership, but it is not practicable to frame a general rule to govern in determining whether the title of a claimant to lands within an irrigable area is such as to entitle him to benefits of the act, except that such title must be held in good faith and not for the purpose of evading the provisions of law, and the occupancy must be bona fide and in the claimant's individual right. The source of the title is immaterial. Whether the ownership is actual and whether the occupancy is in the bona fide and absolute right of the claimant is a question that can only be determined in each particular case when it arises.

SCHOOL LAND-INDEMNITY SELECTION—SWAMP LAND.

STATE OF CALIFORNIA . KOONTZ ET AL.

On the filing of the township plat of survey, intending applicants for lands under the public land laws and those desiring to make selection of any portion thereof under congressional grants, should have equal opportunity in making claim to the lands.

In making selections under the grant of school lands the State may forward a list through the mails, and where a list is so forwarded and reaches the local land office before the time of opening, it should be considered as proffered after the claims of all those present at the time of the opening of the office have been received; and a list so accepted as to tracts free from conflict should not be canceled because prematurely filed.

The State of California is entitled to indemnity for lands in sections sixteen and thirty-six which have passed to the State under the swamp land grant.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) May 23, 1904. (F. W. C.)

The State of California has appealed from your office decision of April 16, 1903, rejecting its list of school indemnity selections filed December 24, 1901, for lands in T. 5 S., R. 20 E., M. D. M., Stockton land district.

The plat of that portion of said township surveyed by Pearson was officially filed December 24, 1901, and the lands became subject to entry and selection upon the opening of the land office at 9 a. m. on that date.

December 23, 1901, the surveyor-general and er officio register State lands, prepared and forwarded through the mails, from Sacramento, the list of selections in question, which list was received at the district land office on the morning of December 24, 1901, between the hours of eight and nine a. m. This list included lands within that portion of the township previously surveyed but the greater portion from lands surveyed by Pearson.

At the opening of the office at 9 a. m., applications were presented by Singleton N. Koontz, George R. Standart and Lowell Standart to purchase portions of the lands included in the State's list under the timber and stone act of June 3, 1878 (20 Stat., 89), and notices were thereupon issued for publication, fixing March 11, 1902, as the date upon which proof would be offered under said applications, of which the State was duly advised.

With the exception of the tracts in conflict, the local officers accepted the State's selections, giving to each a serial number.

The applicants to purchase made proof as advertised, the State being represented, whereupon the local officers, treating the selections and applications to purchase as simultaneously filed, divided, the register holding that the State's selection was invalid, because of defective bases, the base lands having passed to the State under the swamp land grant, and for that reason recommended the rejection of the State's application, and the receiver being of opinion that the parties should bid for the right of entry.

In the decision appealed from your office held that the State's selection, as to the lands included in the Pearson survey, was prematurely filed, and for that reason rejected the list as to such lands, even where there were no conflicts, and as to the lands without the Pearson survey, held that there were prior appropriations of record at the time of the filing of the list and also rejected the selections as to such lands.

As to the lands included in the Pearson survey, your office decision finds support in departmental decisions in cases of William Herth (22 L. D., 385), Benson . State of Idaho (24 L. D., 272), and Zeigler

v. State of Idaho (30 L. D., 1); and as to the lands claimed in any lawful manner at the time of the official filing of the plat of such survey, the Department affirms your office decision rejecting the State's selections. It can not be held, however, that the State's application was illegal or void because received through the mails before 9 a. m., upon the date fixed for receipt of entries; at most it was irregularly presented. Dickie v. Kennedy (27 L. D., 305).

On the filing of the plat of survey, intending applicants for lands under the public land laws and those desiring to make selection of any portion thereof under congressional grants, should have equal opportunity in making claim to the lands. The manner of presenting these claims is controlled entirely by departmental regulations.

If the State desires, she might, through the proper person, present her list of selections at the local land office and in this manner would be accorded the same consideration as other applicants present at the time of opening the district land office. She may, however, forward her list to the local office through the mails, but in the event that it reaches that office before the time of opening, it should be considered as proffered after the claims of all those present at the time of the opening of the office have been received. Lewis v. Morris (27 L. D., 113, 118).

Where, as in this case, the list was accepted as to lands not claimed at the time of the filing of the plat, no good reason appears for, at this day, canceling such selections, and to that extent, and for the reasons herein given, your office decision is reversed and such selections will be permitted to stand unless other and sufficient reasons appear for canceling the same. The reason assigned by the register for rejecting a part of the list, viz., that the base passed to the State under the swamp grant, is not sufficient to defeat the selection. State of California (31 L. D., 335).

As to the lands without the Pearson survey, so far as the same had been appropriated by entry or otherwise, prior to the filing of the list in question, your office decision is affirmed.

HOMESTEAD CONTEST-DEATH OF ENTRYMAN.

HEIRS OF STEVENSON v. CUNNINGHAM.

Upon the death of a homestead entryman the right to the entry goes to his widow, or in case of her death to his heirs, or devisee, free from defect on account of any default on the part of the entryman in the matter of residence or otherwise, and the widow, heirs, or devisee, as the case may be, may complete the entry by either residing on the land or cultivating the same for the required period, but need not do both.

Departmental decision in the case of Makemson v. Snider's Heirs, 22 L. D., 511, overruled.