An unmarried son who supports his mother and sisters is the head of a family. (Marsh . Lazenby, 41 Ga., 153.) So also where he cares for his minor sisters only. (Greenwood . Maddox, 27 Ark., 640.) v. And where he lives with and supports his mother only. (Parsons ». Livingston, 11 Iowa, 104.)

(See American and English Encyclopedia of Law, Vol. 7, p. 804, where the above and various cases are cited.)

In the case of Bray . Colby (2 L. D., 78), Secretary Teller, in prescribing rules for the government of the land department in the allowance of entries by deserted wives, as the 5th rule provides: "5. Where the entryman's wife is deceased, the foregoing rules shall apply to his child who is not twenty-one years of age at date of the offer to purchase, commute or make final proof as an agent, or at date of the offer to enter, provided that in the latter case the child shall be the head of the family," thus recognizing that a minor child under these circumstances may be the head of a family.

The same doctrine was adhered to in the case of Massie. Hamlet (28 L. D., 406), where it was held that, where a deserted wife had been divorced, the minor child of the entryman, being the head of the family, might submit final proof upon the entry.

According to the showing made in this case, this applicant was, at the time of said selection by the railroad company, the head of a family, and was then, with said family, residing on the land in question with intent to claim it under the homestead laws. She has continued to reside there ever since, and has made valuable improvements on the land, thus manifesting the good faith of her claim, and her said homestead claim must be held to have priority over the claim of said railway company.

Your said decision is therefore reversed, the approval of said selection is revoked as to the tract in question, said selection will be canceled as to said tract, and Lizzie Kelley's application to make homestead entry therefor will be allowed.

RAILROAD GRANT-DESERT ENTRY-SECTION 1, ACT OF APRIL 21, 1876.

NORTHERN PACIFIC RY. Co. . MURRAY.

A desert-land entry upon land within the primary limits of a railroad grant, made after the definite location of the line of road opposite said land, is not confirmed by section one of the act of April 21, 1876, and in no wise affects the attachment of rights under the railroad grant, where the entryman does not claim to have ever been an actual settler upon the land.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) October 24, 1900.

(F. W. C.)

The Northern Pacific Railway Company has appealed from your office decision of July 18, last, rejecting its attempted listing under

the grant made by the act of July 2, 1864 (13 Stat., 365), of the SE.4 of the NE.4, lots 1 and 2, of Sec. 5, T. 22, R. 20 E., Waterville land. district, Washington.

On June 5, 1899, the railway company's list was rejected for conflict with the desert land entry of Alexander Murray, covering said tract, made on July 16, 1886. Said entry by Murray has been since canceled for failure to make proof within the statutory period, and with the record transmitted is a letter from Murray, dated August 1, last, addressed to resident counsel of said railway company, in which he states that after making said desert entry he was unable to get water upon the tract to prove up in time; that he therefore purchased the tract from the Northern Pacific Railroad Company at the rate of $4.00 per acre, and that he has since transferred his interest in this property to other parties.

This tract is within the primary limits of the grant to the Northern Pacific Railroad and opposite the portion of its Cascade branch line definitely located December 8, 1884. Notice of withdrawal under said location was not forwarded the local officers until January 8, 1888.

The question as to whether this land passed under the railroad grant has been before considered by this Department in Northern Pacific Railroad Company e. Murray et al., decided October 16, 1896 (not reported), in which your office decision of October 18, 1894, holding that the desert land entry by Murray, made, as before stated, July 16, 1886, was confirmed by the provisions of section 1 of the act of April 21, 1876 (19 Stat., 35), was affirmed.

The section referred to provides:

That all pre-emption and homestead entries, or entries in compliance with any law of the United States, of the public lands, made in good faith, by actual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land-grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land-office of the district in which such lands are situated, or after their restoration to market by order of the General Land Office, and where the pre-emption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto.

Murray does not claim to have been an actual settler upon this land, and his desert land entry was not confirmed by said act. Bond's Heirs et al. . Deming Townsite (13 L. D., 665). Having been allowed after the definite location of the line of road opposite this tract, said desert entry in nowise affected the attachment of rights under the railroad grant, and the departmental decision of October 16, 1896, in so far as it held said desert entry by Murray to have been confirmed by the act of April 21, 1876, is hereby recalled and vacated and the tract involved, if otherwise subject to the grant, may be listed for patent.

ABANDONED MILITARY RESERVATION-SCHOOL LANDS-ACT OF JUNK 19, 1874.

STATE OF COLORADO.

The act of June 19, 1874, providing the method in which the lands formerly within the Fort Reynolds Military Reservation should be disposed of did not amount to a sale or disposition of said lands, and hence did not bring them within the exception of lands "sold or otherwise disposed of," contained in the grant of school lands to the State of Colorado.

The decision in the case of Gregg et al. v. State of Colorado, 15 L. D., 151, so far as in conflict herewith recalled and vacated.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) October 24, 1900.

(F. W. C.) With your office letter of March 3, last, was submitted, with favorable recommendation, list No. 14, embracing 920 acres in Secs. 1, 2 and 10, T. 21 S., R. 55 W., Pueblo land district, Colorado, selected by the State in lieu of an equal quantity of land, being portions of Sec. 16, T. 21 S., R. 62 W., and Sec. 16, T. 21 S., R. 63 W.

The lands in lieu of which the selections under consideration were made were formerly within the Fort Reynolds military reservation, which was created by executive order of June 22, 1868. The act of June 19, 1874 (18 Stat., 85), provides for the transfer of said reservation to the custody and control of the Secretary of the Interior, to be disposed of for cash, after appraisement, to the highest bidder, at not less than the appraised valuation nor less than $1.25 per acre.

It is learned from inquiry at your office that the school sections within said former reservation were not appraised, or offered for sale, at the time the other lands formerly within said reservation were appraised and offered for sale under said act, the theory being at that time (the State being admitted into the Union before the act of 1874 was executed) that the title of the State was complete in said sections. It appears, however, that on February 24, 1890, the State made selection of other lands in lieu of one of these sections numbered 16, but the selections were canceled by your office on the ground that the tracts in lieu of which the selection had been made had passed to the State under the school grant and the homestead applications of William R. Gregg and Lyman Thompson, covering portions of said section, were rejected for conflict with the grant to the State. Upon appeal by Gregg and Thompson the action of your office in cancelling the indemnity selections was reversed in departmental decision of August 5, 1892 (Gregg et al. v. State of Colorado, 15 L. D., 151), wherein it was held that as the Fort Reynolds military reservation was created prior to the survey, and as the act of June 19, 1874, did not specifically except from its provisions the school sections, they were excepted from the subsequent school grant and that the State was entitled to

indemnity therefor, and your office was directed to reinstate said indemnity selections. These selections are now before this Department for approval.

The grant to the State of Colorado for the support of common schools is found in section 7 of the act of March 3, 1875 (18 Stat., 474), by which it was provided:

That sections numbered sixteen and thirty-six in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands, equivalent thereto, in legal subdivisions of not more than one quarter-section, and as contiguous as may be, are hereby granted to said State for the support of common schools.

The lands in this reservation were surveyed in September, 1875, but the survey does not appear to have been approved until 1880. By proclamation of the President, dated August 1, 1876, the State of Colorado was admitted into the Union, and thereupon the title of the State to the sections of the number granted became complete so far as identified by the government survey, within the limits of the former reservation, and as to those then unsurveyed, upon their identification by survey, unless the legislation contained in the act of June 19, 1874, providing the method in which the lands formerly within the Fort Reynolds military reservation should be disposed of, amounted to a sale or disposition of said lands.

As thus presented the case is controlled by the decision of the Department in the case of State of Utah (29 L. D., 418), in which it was held that the acts of July 5, 1884 (23 Stat., 103), and August 23, 1894 (28) Stat., 491), providing the method in which lands in abandoned military reservations should be disposed of, did not in themselves amount to a disposition of said lands, and hence bring them within the exception of land "sold or otherwise disposed of," contained in the grant of school lands to the State of Utah.

In the case under consideration it does not appear that the lands in place, in lieu of which the selections in question were made, have ever been disposed of by the United States.

Following the decision of this Department in the case of Gregg et al. v. State of Colorado, supra, an appraisement was made of the school sections in place formerly embraced within said military reservation, but they were never sold or otherwise disposed of. It is therefore held that said sections passed to the State under its school grant and the list submitted is herewith returned without approval, and you are directed to cancel said indemnity selections.

The decision in the case of Gregg et al. e. State of Colorado, supra, in so far as in conflict herewith, is hereby recalled and vacated.

SWAMP LAND-RAILROAD GRANT-LANDS EXCEPTED.

STATE OF LOUISIANA . NEW ORLEANS PACIFIC RY. Co.

If a tract of land was swamp and overflowed and unfit for cultivation at the date of the swamp land grant to a State, such grant was a disposition of the land that excepted it from the operation of a subsequent grant to a railroad, even though no selection thereof was made by the State until after the attachment of rights under the railroad grant.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) October 31, 1900. (G. B. G.)

The land involved in this case is the NE. of the SW. 4 and the SE. of the SW. 4 of Sec. 7, T. 2 N., R. 4 W., the E. of the NE. † of Sec. 35, T. 4 N., R. 5 W., and the NW. 4 of the SE. ‡ of Sec. 33, T. 2 N., R. 7 W., Natchitoches land district, Louisiana. These lands are claimed

by the State of Louisiana under the swamp land grants of March 2, 1849 (9 Stat., 352), and September 28, 1850 (id., 519). They were never included in any list of swamp lands reported to your office by a surveyor-general for the State of Louisiana, but were embraced in a list filed in your office, May 20, 1886, by one Charles Pomeroy, who signs his name thereto as State agent. The land is also within the primary limits of the grant made by the act of March 3, 1871 (16 Stat., 573, 576, 579), to the New Orleans, Baton Rouge and Vicksburg Railroad Company, which grant was afterwards conferred by assignment upon the New Orleans Pacific Railway Company, and opposite that portion of the road which was definitely located November 17, 1882. There were excepted from said grant all lands which had been sold, reserved or otherwise disposed of by the United States at the time the line of the road was definitely fixed.

By your office decisions of January 16, and April 28, 1900, it was held that the State's swamp land selection of said tracts being subsequent to the date when the rights of the railway company attached thereto under its grant, they were not excepted from the railroad grant, unless they were actually swamp lands. Your office then found from an examination of the field notes of survey that the said SE. 4 of the SW. of Sec. 7 and the said E. of the NE. 4 of Sec. 35 were of the character granted by the swamp land laws, but that the character of the said NE. 4 of the SW. 4 of Sec. 7, and the said NW. of the SE. of Sec. 33, cannot be satisfactorily determined by the field notes of survey, and directed the local officers to allow the railway company sixty days within which to show cause why its listing of the two tracts found to be swamp land should not be rejected, and the land approved and patented to the State, and that the State be allowed the same time within which to apply for a hearing to further determine the character of the other tracts.

The State has appealed to the Department, substantially upon the