Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 22, 1907.

(E. F. B.) This case, which comes before the Department upon the cross appeals of Edward F. O. Swisher and William D. White from the decision of your office of March 13, 1907, involves the right to the N. 1 of the SW. 4, Sec. 36, T. 13 S., R. 1 W., Los Angeles, California, embraced in the homestead entry of Edward F. O. Swisher, to which an adverse claim is asserted by William D. White under a title emanating from the State of California.

Swisher made homestead entry of said tract and the S. of the NW. of said section 36 on August 5, 1905. He appeals from your decision so far as it holds for cancellation that part of his homestead entry described as the N. of the SW. of said section, subject to the right of White to make entry of the same. White appeals from your decision so far as it holds that the cancellation of the entry of Swisher as to the tract in controversy is subject to the condition that he, White, make homestead entry of the tract. His contention is that his title, acquired through mesne conveyances from the State, must be recognized as valid, and that title to the land can not be acquired under the public-land laws, as the land is not a part of the public lands of the United States.

The tract in controversy is part of an original school section which was supposed to be lost to the State by being included within the lands of a Mexican grant. In 1868 the State of California selected three hundred and twenty acres of other lands as indemnity for the west half of said section 36, which was approved by the Secretary of the Interior January 20, 1870, and January 24 thereafter the land was certified to the State.

The plat of survey of the Mexican grant which was supposed to embrace said section within its boundaries was surveyed March 1, 1870, and the survey was approved by your office July 18, 1872. From that survey it appears that no part of the west half of said section 36 was within the limits of the grant.

Section 2 of the act of March 1, 1877 (19 Stat., 267), provides:

That where indemnity school selections have been made and certified to said state, and said selection shall fail, by reason of the land in lieu of which they were taken not being included within such final survey of a Mexican grant, or are otherwise defective or invalid, the same are hereby confirmed, and the sixteenth or thirty-sixth section, in lieu of which the selection was made, shall, upon being excluded from such final survey, be disposed of as other public lands of the United States.

Under this provision of the statute the title of the State of California to the land selected and certified to it as indemnity for the west half of said section 36, which was supposed to be lost, was

confirmed, and the west half of the 36th section in lieu of which the selection was made, upon being excluded from the final survey of the grant, became a part of the public lands of the United States, to "be disposed of as other public lands."

Notwithstanding such exchange of titles by operation of the statute, the State of California, by a patent dated February 16, 1887, assumed to convey the N. of the SW. of said section 36,

as part of its school grant. White claims under that title.

The intent and purpose of the act of March 1, 1877, which act was induced by the State, has been so clearly defined and indicated by the Supreme Court of the United States, in Durand v. Martin (120 U. S., 366), and Mower v. Fletcher (116 U. S., 381), and by the supreme court of California, and the decisions of the Department, as to be no longer a matter of controversy. Martin v. Durand (63 Cal., 39); Hambleton v. Duhain (71 Cal., 136, 141); Daniels v. Gualala Mill Co. (77 Cal., 300); D. C. Powell (6 L. D., 552); Martin A. Baker (14 L. D., 252); State of California v. Nolan (15 L. D., 477); State of California v. Herbert (Ib., 519); Noyo Lumber Co. (19 L. D., 432).

The act operated by its own force not only to confirm all defective and invalid selections, but also to reinvest in the United States the title to the school section in place that had passed to the State prior to the passage of the act and the selection of indemnity in lieu thereof.

In Durand. Martin the court said that the language of the statute was certainly broad enough to include every defective selection, " and, in order that the United States may be protected from loss, it was provided that, if the sixteenth or thirty-sixth section, in lieu of which the selection was made, should be found outside the Mexican grant, the United States would accept that in lieu of the selected land, and confirm the selection."

The statute provided for the confirmation of three classes: (1) Where the State was entitled to indemnity, but the selection was defective in form; (2) where the original school sections were actually in place, as in the case under consideration, and the State was not entitled to indemnity on their account; and (3) where the State was not entitled to indemnity because there never had been such a section 16 or 36, as was represented when the selection was made and the official certificate given.

Referring to the effect of the statute upon the different classes of selections, the court said:

As to the second, the selection was confirmed, and the United States took in lieu of the selected land that which the state would have been entitled to but for the indemnity it had claimed and got. In its effect this was an exchange of lands between the United States and the state. . . . If the state claimed and

got indemnity when it ought to have taken the original school sections, the United States took the school sections and relinquished their rights to the lands which had been selected in lieu.

The general design of the act was to make good the selections without loss to the United States, and to that end "no selection was made good unless it had been certified, and not then unless the United States got an equivalent either in land or in money." (Ibid., p. 375.) In that case the controversy was as to the validity of the title of the State to the indemnity section, but in California v. Nolan (15) L. D., 477), the question at issue was as to the title of the United States to a section 36, for which indemnity had been certified, and which was confirmed by the act of March 1, 1877.

The facts in that case were in all respects similar to the case at bar, and the questions therein presented and passed upon were identical with those at issue herein.

As the act, in confirming the title in the State of California to the selected land at the same time reinvested the United States with the title to the lands in lieu of which the selection was made, it follows that the land in controversy is public land which, by the express terms of the statute, is to "be disposed of as other public lands of the United States." So that, whatever action the land department may see proper to take with reference to the disposal of the land, or whatever recognition it may give to the equities of any occupant of said land by virtue of his continued possession under color of title, it can only be disposed of under the general land laws, or under some statute authorizing the disposal of it as public land, and no recognition or consideration can be given to the patent of the State as conveying any right or title therein.

In this case it is evident that Swisher knew that he was intruding upon White's possession, held under color of title, through mesne conveyances, from the State. While such possession confers no right as against the United States, it should, if it is bona fide and notorious, afford at least a reasonable ground for priority of right in securing title to the land as public land under some law authorizing its disposal. To this end no reason is perceived why he may not, under the principle announced in the case of Burtis . Kansas (34 L. D., 304), invoke the aid of the State, and why the State may not be given the opportunity to select the tract as public land, if it can furnish a valid and sufficient base; or why he may not, as allowed by your decision, be given the opportunity of making entry of the land under the homestead law, if he is qualified to make entry under that law.

You will notify contestant, White, that he will be allowed sixty days in which to perfect his right and title to the land in the manner above indicated. In the meantime, the entry of Swisher will remain intact, subject to cancellation as to the tract in controversy upon the

completion of the right of White to acquire title to the land as public land.

With this modification, your decision is affirmed.

HOMESTEAD ENTRY-HEIRS OF SUCCESSFUL CONTESTANT-RESIDENCE.

BECKER V. BJERKE.

The heirs of a successful contestant against a homestead entry, who make entry in the exercise of the preference right under the contest, stand in the place of the deceased contestant, with the same rights and privileges and burdened with the same duties and obligations relative to compliance with law in the matters of residence and cultivation.

McPeek v. Sullivan et al., 25 L. D., 281, overruled.

Acting Secretary Woodruff to the Commissioner of the General (S. V. P.) Land Office, July 23, 1907. (E. J. H.)

The land involved in this case is the SE. 4 of Sec. 33, T. 121 N., R. 59 W., Watertown, South Dakota, land district, and the same is before the Department upon the appeal of J. P. Becker from your office decision of February 8, 1907, dismissing his contest against the homestead entry of Emil K. Bjerke, made for said land on June 11, 1903, as the heir of a successful contestant of a former entry, who died pending said contest.

The contest of Becker against the existing entry of Bjerke was filed February 13, 1906, alleging, substantially, that claimant had never resided upon or improved the land, but had wholly abandoned the same.

As a result of the hearing had in the case the local officers found. that claimant had failed to construct a habitable house on the land and maintain residence therein, which he was not excused from doing by reason of having made the entry as the sole heir of his deceased daughter, who was a successful contestant against a prior entry; that he did not cultivate or improve the land, the only use made thereof by him being for a pasture. It was accordingly recommended that the entry be canceled, from which an appeal was taken.

As to the question of residence, your office decision found that under departmental ruling in the case of McPeek v. Sullivan et al. (25 L. D., 281), it was not necessary for claimant to reside on the land, it having been held in said case, that—

under a homestead entry made by the heirs of a successful contestant in accordance with the act of July 26, 1892 (27 Stat., 270), actual residence on the land is not required if cultivation thereof is shown for the required period.

Regarding the matter of cultivation, it was found that no portion of the tract had been cultivated, but that the same was a part of an

enclosed pasture of eight hundred to one thousand acres, belonging to claimant; that while "it was conceded that the land as a whole was best adapted for the 'mixed' purpose of raising grain and stockraising," from the facts presented, it was, taken as a whole," chiefly valuable for grazing purposes," and had been used as such. It was held that under the circumstances disclosed the requirements of the law had been substantially complied with by grazing the land and the contest was dismissed, from which the appeal under consideration was taken.

So far as the question of residence is concerned, it is not believed that the law received a proper construction in the case above cited, but rather the purpose of said act is better interpreted in the case of Biggs v. Fisher (33 L. D., 465), where it was said, on page 468 of the opinion:

It was the intention of Congress, as clearly appears from the language used in the act, and from the proceedings had in Congress with reference thereto, to place the heirs in the same position upon the successful termination of the contest that the contestant himself would have occupied if the contest had so terminated in his lifetime, the only qualification required of the heirs being, as expressly stated in the act, that they be citizens of the United States.

If the contestant had lived and made his entry under his preferred right, he would have had to comply with the homestead law the same as other entrymen, and his heirs therefore under said act succeed to his privilege, but burdened with the same obligations so far as compliance with the law is concerned. The case of McPeek v. Sullivan is accordingly overruled.

But if the heirs were excused from residence, under the authority cited, yet it is not found by the Department that compliance with the law in the matter of cultivation is shown. It appears from the testimony that there is no tillage, well, or other improvements on the land, except a fence built on one side to inclose it in a large pasture, in which claimant keeps some two hundred head of animals, and no effort has been made to cultivate or improve the same except that claimant, at one time, built a small house thereon which was blown down and allowed to remain in that condition. The testimony as to the character of the land is to some extent contradictory, but it is shown that the soil is good and that about sixty acres could be successfully cropped if the stone were removed therefrom, and without their removal crops could be raised in patches of probably not to exceed an acre each. There was no definite showing as to the quantity of stone requiring such removal, or the cost thereof, which it would seem to have been incumbent upon claimant to make, in order to be excused from actual tillage of the land.

The testimony shows that the land is best adapted to the mixed purpose of grain and stock-raising. Under such conditions it is