settler might be destroyed. In the case of one claiming under a homestead entry of record, the promise given by the Government and accepted by the entryman amounts, first, to a recognition of his right to enter the particular tract and that it is subject to disposition under the homestead law, and, second, that upon compliance with the conditions imposed he will be permitted to acquire the legal title to the land entered. The right conferred upon a homestead entryman is not essentially different from that acquired by a donation claimant under the act of September 27, 1850 (9 Stat., 496). In speaking of this right the Supreme Court in the case of Hall . Russell (101 U. S., 503, 510), defined it "a present right to occupy and maintain possession, so as to acquire a complete title to the soil.”

A right initiated by an entry of record is clearly distinguishable from one depending upon mere settlement, the possessor of which has not at the time of the attachment of a grant protected his claim by making actual entry of the land covered thereby. Gonzales ». French (164 U. S., 338, 344). The decisions of the Department holding that upon the abandonment of a settlement claim a subsequent grant of the land immediately attaches, are based upon the ruling of the Supreme Court in the case of Water and Mining Company . Bugbey (96 U. S., 165, 167) in which it was held that the existence of a mere settlement claim, sufficient if asserted by the settler to have defeated the grant, could not, if subsequently abandoned, be set up by a third party to defeat it. In that case the settler never asserted his claim by making proper filing in the land office. On the contrary, he recognized the right of the State to the land by acquiring title through it. The court held that the right to assert a claim as against the grant, based upon a mere settlement, was personal to the settler, that he was not bound to set it up, and that the grant could only be defeated by proper action on his part. The court in this case took no exception to the decision rendered in the case of Sherman . Buick (93 U. S., 209, 214), where, in construing and applying the same act to a case where the settler had protected his settlement by proper filing of record, it was held:

It is very plain that, by the seventh section, so far as related to the date of settlement, it was sufficient if it was found to exist at the time the surveys were made which determined its locality, and, as to its nature, that it was sufficient if it was by the erection of a dwelling house, or by a cultivation of any portion of the land. These things being found to exist when the survey ascertained their location on a school section, the claim of the State to that particular piece of land was at an end.

Had the settler in the case of Water Power Co. . Bugbey, supra, placed his claim of record, thereby evidencing an assertion of it, the decision therein would undoubtedly have been the same as in the case of Sherman e. Buick, supra, as the rule announced in the latter case is adhered to in the case of Kansas Pacific Ry. Co. e. Dunmeyer (113

U. S., 629, 642), where the two cases are noticed and distinguished, and the rule announced in the Bugbey case is sustained upon the ground that, because of failure to place it of record, there was no proof of the existence of any settlement claim at the time the grant attached. (Lansdale . Daniels, 100 U. S., 113, 116). Recordation of the claim is the only proper evidence of its existence. (Northern Pacific R. R. Co. v. Colburn, 164 U. S., 383, 386-7). In prescribing this method of evidencing a claim based upon prior settlement, it was the intention of Congress to make it exclusive in order that other rights, initiated in ignorance thereof, might not long afterwards be defeated by fugitive and uncertain testimony of occupation." (Tarpey . Madsen, 178 U. S., 215, 228.) Had the claim been asserted in the manner prescribed, the grant would have been defeated even though the claim were never perfected. A homestead entry of record occupies a position, so far as a segregation of the land is concerned, identical with that of a settlement claim which has been followed up by the filing of a preemption declaratory statement based thereon.

When the declaratory statement is accepted by the local officers and the fact noted on the land books, the effect is precisely the same as that which follows from the acceptance of the verified application in a homestead case. Whitney r. Taylor (158 U. S., 85, 95, 96).

It is clear, therefore, that the rule adopted by the Department with respect to mere settlement claims which have never been established by a timely assertion thereof by a filing in the land office, is not controlling in the case of a homestead entry of record at the time a reservation or grant of the land becomes effective. A mere settlement is not such a segregation of the land as would prevent the attachment of a grant, but words of exception are necessary to the protection of rights asserted under it. An entry is a segregation of the land covered thereby which, independently of specific exception, is sufficient to intercept the attachment of the grant.

The reservation under consideration is made in the same terms as the grant to which it relates and no more extended operation can be given it than would be accorded the grant itself had it been in presenti. The language employed, standing alone, is sufficient to carry all the land in said sections 13 where title had not already passed out of the United States. The words used are “and section 13 in all other lands which have been or may be opened to settlement in the Territory of Oklahoma ", and there are no words of exception or limitation. But, as said in the case of Missouri, Kansas and Texas Ry. Co. e. Kansas Pacific Ry. Co. (97 U. S., 491) :

It is always to be borne in mind, in construing a Congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress.

The court, in passing upon similar grants, reached the conclusion that it was not the intent of Congress to include in laws which operate as conveyances, any other than public land, employing the term in its broad and unrestricted sense as meaning only those lands which may be disposed of without prejudice to the rights of those whose inchoate claims have previously attached. A presumption of intention to destroy such rights never arises by implication. (Bardon v. Northern Pacific R. R. Co., 145 U. S., 535, 542.) Not only are such rights not destroyed by a grant in general terms, but it is held that such rights are not to be prejudiced by permitting the grant to operate upon the tracts to which they have attached, subject to such inchoate rights. Only by excepting such land from the scope of the grant would the possessor of the inchoate right be relieved from possible controversy with the grantee, who, if the grant were conditional only upon the elimination of the prior claim, would be interested in defeating it.

It is not conceivable that Congress intended to place these parties as contestants for the land with the right in each to require proof from the other of complete performance of its obligations. Least of all is it to be supposed that it was intended to raise up, in antagonism to all the actual settlers on the soil, whom it had invited to its occupation, with an interest to defeat their claims, and to come between them and the Government as to the performance of their obligations. Kansas Pacific Ry. Co. v. Dunmeyer (113 U. S., 629, 641). In the case of Wilcox v. Jackson (13 Pet., 496, 513), the court said: But we go further and say that whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no law or proclamation, or sale, would be construed to embrace it, or operate upon it; although no reservations were made of it.

This rule of construction was affirmed by the court in the case of Hastings and Dakota Railroad Company v. Whitney (132 U. S., 357, 360), where approval of it is given in the following language:

The doctrine first announced in Wilcox r. Jackson (13 Pet., 498), that a tract lawfully appropriated to any purpose becomes thereafter severed from the mass of public lands, and that no subsequent law or proclamation will be construed to embrace it or to operate upon it, although no exception be made of it, has been reaffirmed and applied by this court in such a great number of cases that it may now be regarded as one of the fundamental principles underlying the land system of this country.

66

An exception is not necessary in legislative grants to remove from their operation land to which a right has already attached. Such grants are confined to land “ which Congress could rightfully bestow without disturbing existing relations and producing vexatious conflicts." Bardon . Northern Pacific R. R. Co. (145 U. S., 535, 542); see also Leavenworth, etc.. R. R. Co. r. U. S. (92 U. S. 733, 746).

The same reasoning which supports the rule with respect to a grant in presenti applies with equal force to a legislative withdrawal made

to protect a grant in futuro. So far as the attachment of either is concerned, no distinction is possible.

In the absence of express words clearly authorizing it, no more extended operation can be given to a reservation than to a grant, and the reservation made by the act under consideration must be restricted in its scope to such lands as at the date of reservation were subject to no outstanding claims sufficient, under the well-settled rules of construction applied by the courts in such cases, to segregate it from the mass of public land. Such lands only is Congress presumed to have had in mind at the time of making the reservation. It follows, therefore, that as the grant authorized by the act of June 16, 1906, supra, could only have extended to unappropriated public lands, and as the sole object of the reservation was to protect the grant and not to extend it, only land having this character on June 16, 1906, fell within the reservation, and the fact that land thus appropriated might subsequently be restored to the public domain did not, in the absence of express direction, subject it to the terms of the act. A homestead entry of record is such an appropriation of the land covered thereby as severs it from the mass of public land, and the cancellation of the homestead entry of record June 16, 1906, did not restore the land embraced therein to the operation of the act but merely rendered it subject to disposition under the general public-land laws. Hastings & Dakota Railroad Company e. Whitney (132 U. S., 357, 361). The entry of Billan was therefore properly allowed, and cancellation thereof by your office, for the reasons stated, was erroneous.

The Department has not at this time considered the effect of the act of June 16, 1906, with respect to lands free from existing claims at the date of the admission of the State.

Independently of the conclusion reached solely upon the legal grounds, the claimant is entitled to much equitable consideration. At the time his entry was made the country was practically settled and there was little or no vacant land open to entry. The only way that a right could be initiated under the homestead law was by the procurement of the relinquishment of an existing entry. This the claimant. did by paying there for a price equivalent to the value of the land. His money was paid relying on the good faith of the law as then interpreted and accepted by your office, which held that sections 13 in this Territory were not subject to any claim of the State. He proceeded innocently in the belief that by complying with the conditions imposed he would be permitted to acquire title to the land. The case is free from all suggestion of abandonment of the land by the prior entryman in the sense in which the term is generally employed, and but for the consideration received for the relinquishment of his entry, which at the time was nearly four years old and evidently nearing perfection, he would have completed the same, thereby defeating all

claims of the State. The State by the mere change of entrymen has lost nothing, and under the circumstances disclosed it would be grossly inequitable to permit it to take advantage of this claimant's efforts and expenditure to obtain a home. However, the decision already reached renders unnecessary any consideration of the equitable features presented, which might possibly have been invoked for his protection.

For the reasons herein stated the decision appealed from is hereby reversed.

DESERT LAND-CAREY ACT-LISTS OF LANDS PATENTED BY STATES.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., March 30, 1908.

The Commissioner of the General Land Office.

SIR: You are directed to request each of the States to whom lands have heretofore been patented under the act of August 18, 1894 (28 Stat., 372), and acts amendatory of and supplemental thereto, to furnish to your office a tabulated statement showing the names of the persons to whom such States have passed title to such lands. and the amount and description of lands patented by the States to each of such persons, and to hereafter request each of such States to annually furnish a like statement of the lands patented each year ending with December first.

Very respectfully,

JAMES RUDOLPH GARFIELD,

Secretary.

WALTER A. STAFFORD.

Motion for review of departmental decision of January 21, 1908, 36 L. D., 231, denied by First Assistant Secretary Pierce, March 31, 1908.

ABANDONED MILITARY RESERVATION-FOREST RESERVE.

INSTRUCTIONS.

There is nothing in the act of July 5, 1884. providing for the disposition of lands in abandoned military reservations, to prevent the reservation of any such lands for a national forest under the provisions of section 24 of the act of March 3, 1891.

Opinion of October 26, 1906, 35 L. D., 277, vacated.

Secretary Garfield to the Commissioner of the General Land Office. (G. W. W.)

March 31, 1908.

(L. R. S.)

The Department has considered your report dated February 12, 1908, upon the letter of the Secretary of Agriculture dated December