an agricultural state. Congress specified water as the means to that end, but the mere conveying of water upon the land is not a fulfillment of the law, unless in sufficient quantity to prepare such land for cultivation. It would be imputing a vain intent to the statute to interpret the same as requiring a mere occasional seepage of water upon such land, which in itself would not materially change the original status of the same so far as agricultural purposes are concerned.

Inasmuch as it has been proved to my satisfaction that Boyce has failed to comply in good faith with what I conceive to be the requirements of the statute his entry should be canceled.

Your decision is accordingly reversed.

DESERT LAND ENTRY-NON-ASSIGNABLE.

CHARLES BOWLING.

The desert land act restricts entries to six hundred and forty acres each, and prohibits one person from making more than one entry.

To recognize the assignability of desert land claims would be to acquiesce in an evasion of the law and to enable one person to acquire the title to an amount of land in excess of the legal limitation.

Commissioner McFarland to the register and receiver, Lake View, Oregon, March 2, 1883.

I am in receipt of the register's letter of November 29, 1882, in which he states that Mr. Charles Bowling, Fort McDermit, Nev., claims to be the assignee of three desert land entries made at your office, to wit: No. 3 made by Moses Seigle, September 3, 1877; No. 7 made by Arthur W. Fisk, October 8, 1877, and No. 11 made by Cornelius Ryan, May 7, 1878, all upon unsurveyed land in T. 41 S., R. 42 E., in the State of Oregon near the line of the Fort McDermit hay reserve.

The register states that Mr. Bowling desires to submit final proof for the land, and asks instructions from this office in regard to the matter. The desert land act restricts entries to six hundred and forty acres each, and prohibits one person from making more than one entry.

To recognize the assignability of desert land claims would be to acquiesce in an evasion of the law and to enable one person to acquire title to an amount of land in excess of the legal limitation.

It has been held by the honorable Secretary of the Interior that desert land claims are not assignable, and that no rights pass to the purchaser when such assignments are made, S. W. Downey (2 C. L. L. 1381).

The application of Mr. Bowling is accordingly rejected.

HOMESTEAD-ADDITIONAL ENTRY.

EDWIN D. SEWALL.

A homestead claimant, otherwise qualified, may make an additional homestead entry under the act of March 3, 1879, notwithstanding his original homestead entry was changed to a cash entry under the act of June 15, 1880.

Acting Commissioner Holcomb to register and receiver, Fergus Falls, Minnesota, July 1, 1881.

With your letter of April 16, 1881, you transmitted proof made by Edwin D. Sewall, under circular of this office, dated September 20, 1879, for the purpose of securing his right to an additional homestead entry under act of March 3, 1879, his original entry No. 3862, N. of SW. sec. 20, T. 128, R. 45, having been made March 19, 1878, at which time he was restricted by law to 80 acres, the land being of the double minimum or $2.50 class.

By my letter" C," of the 29th of April, you were instructed to allow the additional entry, although the party had not fully complied with legal requirements respecting residence upon his original homestead.

Under date of May 14, 1881, you inform this office that Mr. Sewall immediately after making the proof referred to above and filing his application for an additional entry, made cash entry No. 2266, under act of June 15, 1880, for the land embraced in his original entry, and you ask whether under existing circumstances "he is entitled to an additional entry under act of March 3, 1879; and, if so, what conditions are necessary for him to obtain patent for the tract."

I am of opinion that the party's right to make an additional entry under the act of March 3, 1879, remains, though he may have changed his original homestead to a cash entry under the act of June 15, 1880. Upon making such additional entry the party will be required to establish an actual residence upon the land embraced therein and continue the same with cultivation for such time as may be necessary with the residence upon and cultivation of his original homestead, prior to date of cash entry, to aggregate the full legal period of five years.

The act of March 3, 1879, provides that "any person who has, under existing laws, taken a homestead on any even section within the limits of any railroad or military road land grant, and who by existing laws shall have been restricted to eighty acres, may enter, under the homestead laws, an additional eighty acres adjoining the land embraced in his original entry, if such additional land be subject to entry."

You will observe that the only conditions precedent are that the original entry shall have been made prior to the approval of the act; that the land entered shall have been of the class described; that the party shall, at date of original entry, have been restricted by existing laws to eighty acres, and that the land applied for must be contiguous to the original homestead and subject to entry.

In the case under consideration the conditions necessary to entitle the party to additional privileges are shown to exist, and the party is undoubtedly entitled to avail himself of those privileges, although his original homestead has been changed to a cash entry.

A party who had thus changed his homestead entry could not make a new entry under the act of March 3, 1879, for the reason that there is no provision of law under which a valid cash entry may be surrendered, and the act referred to requires that a party seeking to make a new entry under its provisions must surrender his original entry to the United States for cancellation before the right to make a new entry can be extended to him. You will inform Mr. Sewall respecting his rights as set forth herein, and in letter "C," of April 29, 1881, referred to above.

In future, when submitting cases of any kind to this office, you are requested to state fully all facts respecting the same, that instructions necessary may be based upon a thorough knowledge of the case in point. Your failure to embody, in your letter transmitting Mr. Sewall's proof, a statement of the fact that he had availed himself of the privilege granted by act of June 15, 1880 (your returns for the month in which his cash entry was made not having reached this office at date of my letter of April 29, 1881), was, to say the least, a careless act, and might have caused this office to commit a serious error. District officers are expected to exercise great care in the submission of special cases, and make in their letters of transmittal full and impartial statements of all facts respecting the same with special reference to the questions of points upon which they desire information or instruction.

MILITARY RESERVATION-ENTRY-POWER OF PRESIDENT.

Where a homestead entry of public lands has been made by a settler the land so entered cannot, whilst such entry stands, be set apart by the President for a military reservation, even prior to the completion of full title in the settler. But lands covered by a pre-emption filing may be so set apart any time prior to proof and payment.

DEPARTMENT OF JUSTICE, Washington, D. C., July 15, 1881.

SIR: By a letter received from the chief clerk of your Department, dated the 27th of May last, inclosing papers relative to the proposed withdrawal of lands for a military reservation on the Rio de la Plata, in Colorado, I am informed that you desire my opinion upon this question:

Where public lands have been surveyed, and pre-emption filings or homestead entries have been made in accordance with law, may the Executive, prior to the completion of full title in the settler, set apart and declare a military reservation embracing the lands of said settler? I have now the honor to state to you my views thereon:

That the President has power to reserve from sale and to set apart, for public uses, such portions of the public domain as are required by

the exigencies of the public service to be appropriated to those uses is too well established to admit of doubt. In the case of Grisar v. McDowell (6 Wall., 381), the supreme court remark:

From an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigen. cies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses. The authority of the President in this respect is recognized in numerous acts of Congress.

The question submitted, indeed, assumes the existence of the power, and suggests that there is doubt only as to whether it can be exercised with respect to lands which, at the time, are included in a pre-emption filing or homestead entry, and to which steps have thus already been taken by an individual to acquire title under the general land laws.

The power of the President, above adverted to, extends to lands which belong to the public domain of the United States and are subject to sale or other disposal under the general land laws. It is capable of being exercised with respect to such lands so long as they remain unappropriated and unreserved from the public domain, but no longer. When an entry thereof is made under those laws (whether pre-emption, homestead, or other) the particular land entered thus becomes segregated from the mass of public lands and takes the character of private property. "In no sense," observe the supreme court, in Witherspoon v. Duncan (4 Wall., 218), "can lands be said to be public lands after they have been entered at the land office and a certificate of entry obtained. If public lands before the entry, after it they are private property."

In regard to the case of a homestead settlement, the claim of the settler is initiated by an entry of the land. This is effected by making an application at the proper land office, filing the affidavit and paying the amount required by section 2290, Revised Statutes, and also paying the commissions as required by section 2238, Revised Statutes. It is true, a certificate of entry is not then given, the certificate being, under section 2291, Revised Statutes, withheld until the expiration of five years from the date of such entry, at the end of which period, upon proof of settlement and cultivation during that period, and payment of the commissions remaining to be paid, it is issued. But upon the entry a right in favor of the settler would seem to attach to the land, which is liable to be defeated only by failure on his part to comply with the requirements of the homestead law in regard to settlement and cultivation. This right amounts to an equitable interest in the land, subject to the future performance by the settler of certain conditions (in the event of which he becomes invested with full and complete ownership), and until forfeited by failure to perform the conditions it must, I think, prevail not only against individuals but against the government. That, in contemplation of the homestead law, the settler acquires, by his entry, an immediate interest in the land, which (for the time being, at least)

thereby becomes severed from the public domain, appears from the language of section 2297, Revised Statutes, wherein it is provided that, in certain contingencies, "the land so entered shall revert to the gov ernment."

The result to which this leads is, that where public land subject to homestead settlement has been duly entered under the homestead law it thenceforth ceases to be at the disposal of the government so long as the claim or entry of the settler subsists.

The case of a settlement on public land, with a view to acquire a right of pre-emption, where a declaratory statement has been filed and other preliminary steps taken by the settler, but by whom payment for and entry of the land have not yet been made, which remains to be considered, is relieved of much of its difficulty by the doctrine laid down by the supreme court in Frisbie v. Whitney (19 Wall., 187), and in the Yosemite Valley case (15 Wall., 77), respecting the right of the settler in such case as against the government. It was there held that under the pre-emption laws mere occupation and improve ment of any portion of the public lands of the United States, with a view to pre-emption, do not confer upon the settler any right in the land occupied, as against the United States, or impair in any respect the power of Congress to dispose of the land in any way it may deem proper; that the power of regulation and disposition conferred upon Congress by the Constitution only ceases when all the preliminary acts prescribed by those laws for the acquisition of the title, including the payment of the price of the land, have been performed by the settler; that until such payment and entry the acts of Congress give to the settler only a privilege of preemption in case the lands are offered for sale in the usual manner, that is, the privilege to purchase them in that event in preferen ce to others-and that the legislation thus adopted for the benefit of settlers was not intended to deprive Congress of the power to make any other disposi. tion of the lands before they are offered for sale, or to appropriate them to any public use. "It seems to us little less than absurd," remark the court in the case last cited, "to say that a settler or any other person by acquiring a right to be preferred in the purchase of property, provided a sale is made by the owner, thereby acquires a right to compel the owner to sell, or such an interest in the property as to deprive the owner of the power to control its disposition."

Thus it is no longer an open question that public land covered by a pre-emption filing, but as to which there has been no payment and entry by the settler, may be appropriated by Congress to public purposes, or otherwise disposed of, without thereby involving a collision with or invasion of any right or interest of the settler in and to the lands.

The inquiry now is, can the President, in such case, under his power to reserve and set apart lands of the United States for public uses, make a similar disposition of the land for such uses?