Hence the rules prescribed by the Department for determining the character of lands subject to entry under the desert-land law must control in determining the character of lands subject to selection under the act of August 18, 1894, and those rules are incorporated in the regulations for carrying into effect the last-mentioned act.

The rule referred to in your report is based upon the theory that lands containing sufficient moisture to produce a natural growth of trees would, in ordinary seasons, contain sufficient moisture to produce agricultural crops. In the letter of the Department of May 11, 1888 (6 L.D., 662, 665), holding that a growth of Mesquite trees on the land will not exclude it from entry under the desert-land law, if it will not produce an agricultural crop without irrigation, it was said that the existence of ordinary timber trees on the land “is evidence of the fact that the land is not desert. If the ordinary forest trees will grow upon land there is sufficient moisture in the soil to render the land non-desert in character."

The purpose of the act of March 3, 1877, was to bring within its operation all lands in the designated States and Territories that could not be successfully cultivated and made profitable for agriculture without irrigation. The third section of the act declares that the determination of what may be considered desert-land shall be subject to the decision and regulation of the Commissioner of the General Land Office. While rules have been adopted to aid in determining whether lands are desert or non-desert in character, such rules should not arbitrarily control your judgment where it clearly appears that lands are actually desert and of the character contemplated by the act, although they may not come within the strict letter of the rule.

A growth of ordinary forest trees on land in the arid region may, as a general rule, be accepted as evidence of the non-desert character of the land. It is, however, a mere presumption that lands containing sufficient moisture to produce trees will produce agricultural crops, but, like all presumptions of fact, it may be rebutted by proof showing that the land is actually desert in character and will not produce agricultural crops without irrigation.

There appears to be no necessity for an amendment to the rule referred to. It should be construed by you with a view to attain the true intent and meaning of the act in accordance with the views above set forth.

A sparse and stunted growth of trees which may exist with little moisture and is frequently found upon arid lands actually unfit without irrigation for ordinary agricultural purposes, is not within the spirit and intent of the rule.

There being no application before the Department for its approval as to any particular tract or tracts, no decision is hereby made with reference to the tracts referred to by the State agent. His letter is

returned to your office to be placed with the files thereof, and you will advise him with reference thereto in the light of the instructions herein given.

RAILROAD GRANT-ACT OF JULY 2, 1864–JOINT RESOLUTION OF MAY 31, 1870.

NORTHERN PACIFIC RY. CO. . SMITH ET AL.

Lands within the overlap of the grant made by the act of July 2, 1864, to the Northern Pacific Railroad Company, and the grant made to the same company by the joint resolution of May 31, 1870, are subject to indemnity selection by said company under the latter grant.

Spaulding. Northern Pacific R. R. Co., 21 L. D., 57, overruled.

Selections of lands under the act of June 4, 1897, while of record and awaiting consideration, bar indemnity selection of the same lands under a railroad grant. In determining priorities of claims in a controversy arising upon the filing by a railroad company of a list of selections, regular in form, upon the day the plat of survey of the township in which the selected lands are situated was officially filed, and the presentation, on the same day, of homestead applications for said lands, the actual time of the presentation of the claims will be recognized.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) December 5, 1901. (F. W. C.)

The Northern Pacific Railway Company, successor in interest to the Northern Pacific Railroad Company, has appealed from your office decision of July 16, last, in the matter of its attempted selection of certain lands in the Vancouver land district, Washington, included in indemnity list No. 105.

The tracts described in said list are in townships 4 and 5 north, range 5 east, and are within the indemnity limits of the grant made by the joint resolution of May 31, 1870 (16 Stat., 378), in aid of the construction of that portion of said road extending from Portland, Oregon, northward to Tacoma in the State of Washington. They are also within the limits of the grant made by the act of July 2, 1864 (13 Stat., 365), in aid of the construction of that portion of the main line of the Northern Pacific railroad via the valley of the Columbia river to Portland. This portion of the main line was never constructed and the grant appertaining thereto was forfeited by the act of September 29, 1890 (26 Stat., 496). The plats of survey of said townships were declared officially filed at 9 a. m. on May 21, 1900, and on that day the Northern Pacific Railway Company filed its indemnity list No. 105, in which it selected these lands in lieu of others lost within the place limits of its grant. The local officers rejected said list because the lands were a part of those forfeited by the act of September 29, 1890. From this action the railway company duly appealed.

The action of the local officers was evidently based upon departmental decision in the case of Spaulding v. Northern Pacific R. R. Co. (21 L. D., 57).

Under date of September 20, last, the Attorney-General enclosed a copy of the decision of the circuit court of the United States in the district of Washington, western division, in the suit brought by the United States against the Northern Pacific Railroad Company to have judicially determined the question as to the rights of said company within the overlap of the grants before described, which decision was in favor of the Northern Pacific Railroad Company, and was based upon the decision of the supreme court in the case of the United States v. the Oregon and California Railroad Company (176 U. S., 28). The circuit court's decision appearing to be fully justified by the supreme court decision referred to, no appeal was taken from the former. In so far, therefore, as the rejection of said list was based upon the fact that the lands were within the limits of the main line grant, the same must be set aside.

From the statement contained in your office decision of July 16, last, it appears, however, that prior to the filing of said railroad indemnity list No. 105, a large portion of the lands included in said list had been selected under the act of June 4, 1897 (30 Stat., 11, 36). A list of these lands, the names of the claimants, and the dates of selection are given in said decision.

It further appears that on the same day that said indemnity list was filed, but subsequently to the filing of said list, a number of persons were permitted by the local officers to make homestead entries for portions of the land included in said indemnity list. Each of the entrymen, however, alleged settlement upon the land prior to the date of his application. On the day following the filing of said railroad indemnity list numerous other persons were permitted to make homestead entries of portions of the land included in said list. These persons, also, alleged settlement prior to the time of the filing of the railroad indemnity list. A full description of the lands entered, including the names of the entrymen and the numbers of the homestead entries, together with the dates of the allowance thereof are set forth in your said office decision.

Said decision sustains the rejection of the railroad indemnity list as to the lands selected under the act of June 4, 1897; also as to the lands entered on the day of the flling of said list, and cites as authority for giving precedence to such entries the following cases: St. P., M. & M. Ry. Co. v. Gjuve (1 L. D., 331); N. P. R. R. Co. . Parker & Hopkins ( 2 L. D., 569); Mattson . St. P., M. & M. Ry. Co. (5 L. D., 356). With regard to the entries allowed on the day following the filing of the railroad indemnity list, said decision makes provision for hearings, based upon the allegation of settlement made by the entrymen, in all

cases except that of Jackson E. Montz, in which it is held that a hearing is unnecessary because Montz was permitted by the local officers to make final proof upon his entry on which final certificate issued September 10, 1900, which proof was made after due publication of notice and shows continuous residence upon the land from April 30, 1894, to the date of the offer of proof.

In its appeal the railway company urges error in your office decision in holding that the selections under the act of June 4, 1897, were sufficient to bar the railroad indemnity selection without first considering and determining the validity thereof. In the opinion of this Department the contention of the company in this respect can not be sustained. The validity of the selections under the act of June 4, 1897, is not questioned by the railway company and said selections, while of record and awaiting consideration, were sufficient to bar the selection. of the same lands under the railroad grant.

With regard to the entries allowed upon the day of the tender of the railroad indemnity list, the appeal by the railway company urges that the cases relied upon in your said office decision do not support the action taken; that due notice of the filing of the township plats was given, and under departmental ruling they were considered as officially filed at 9 a. m. on May 21, 1900, at which time the lands embraced therein became subject to entry by any qualified applicant or to selection on account of the railroad grant, being within the indemnity limits thereof; and that in determining priorities the actual time of presentation of the claim should be recognized and the rights of the company should not be suspended for a day, as would be the claimed result of your said office decision.

From a careful consideration of the matter, it is the opinion of this Department that the contention of the company should be upheld. The cases relied upon in your said office decision involve lands withdrawn by operation of law upon the filing in the Department at Washington of maps of location, notice of which must be communicated to the local officers at a later date. These cases merely give recognition to claims initiated by settlement on the land or the filing of a claim in the local office upon the day the rights under the grant attached by the filing of the maps before referred to.

It must be held that if selection list No. 105 was regular in form, the same should have been accepted upon its filing as to the lands subsequently included in these entries, but as each of the homestead applicants alleged settlement prior to the tender of the railroad indemnity list, it will be necessary that a hearing be ordered, after due notice to the company, to determine the truth of said allegations.

With regard to the entries allowed on the day following the filing of the railroad indemnity list, the appeal by the railway company seems to take no exception to the action taken by your office decision in

ordering hearings except as to the case of Montz. The Department believes the action of your office should also have been extended to the case of Montz, as the railway company, which was then asserting a claim to the land as shown by the local office records, was not specifically cited to appear at the time of his offer of final proof, and therefore is not concluded by the proof so made. In this respect the decision of your office is disapproved.

Except as herein modified, your office decision is affirmed.

INDIAN LAND-MINING CLAIM WITHIN TOWNSITE-ACT OF JUNE 6, 1900. INSTRUCTIONS.

The provision of the act of June 6, 1900, whereby the mining laws were extended over the lands ceded to the United States by the Comanche, Kiowa and Apache tribes of Indians in the Territory of Oklahoma, was not intended to operate as an exception to the settled principles applied by the land department in the administration of the public land laws generally. Controversies between mineral and agricultural or townsite claimants, as to any of said ceded lands, are to be determined upon the same principles which apply to like controversies with respect to the public lands situated elsewhere.

Lands not known to contain valuable mineral deposits at the time when, in the absence of such knowledge, the rights of an Indian allottee, or of a homestead or townsite entryman, become fixed and vested, are not thereafter subject to exploration, location or entry by other parties under the mining laws. Rights once vested in an allottee, or in an entryman under the homestead or townsite laws, or in a town-lot purchaser, can not be affected by the subsequent exploration or location of the lands for minerals.

No mining location of land within the county-seat town-sites of Lawton, Anadarko, or Hobart, made after the special reservation of those town-sites on June 24, 1901, under the act of March 3, 1901, is of any validity or effect whatever. Congress having made no provision for a United States surveyor-general for the Territory of Oklahoma, and not having authorized the duties required to be performed by a United States surveyor or surveyor-general in the administration of the mining laws generally, to be performed in said Territory by any other officer, it is the duty of the Commissioner of the General Land Office, in administering the mining laws as extended over the aforesaid ceded lands by the act of June 6, 1900, to perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveying of mining claims located upon said lands, with the view of obtaining patents for such claims, and all similar duties in any manner respecting the conduct of proceedings to obtain such patents, and to enforce and carry into execution any and every part of the provisions of the mining laws with respect to said ceded lands, not otherwise specially provided for in the act extending said laws over said lands. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) December 6, 1901. (A. B. P.)

The Department is in receipt of your communications of November 15 and 22, 1901, relating to the provision of the act of June 6, 1900 (31 Stat., 672, 680), whereby the mining laws were extended over the