The tracts applied for are adjacent to the east boundary of township 31 north, range 20 west, which has been surveyed and is the west boundary of the township in which the lands applied for are situated. While the section lines might be projected from said boundary so as to survey the subdivisions applied for, the laws governing the survey of the public lands require that section lines must be run from south to north and from east to west, so as to throw the excess or deficiency on the north and west sides of the township. If this application should be granted, and it should be found upon the survey of the township that there was an excess or deficiency from east to west, it would require an irregular closing of the township survey.

It illustrates the difficulties, the uncertainties, and liability to error in which the township surveys would become involved by departing from the established rules.

This disposition of the case renders it unnecessary to pass upon the question whether these applicants are or are not the owners or grantees of public lands of the United States.

Your decision is affirmed.

FOREST RESERVE-SETTLEMENT.

WILLIAM BREEDING.

The excepting clause of the proclamation establishing the Sierra forest reservation ceases to be operative in behalf of a settler who fails to make entry or otherwise place of record his claim for the lands settled upon within the time allowed by law.

Acting Secretary Ryan to the Commissioner of the General Land Office, (S. V. P.)

August 26, 1901.

(E. B., Jr.)

This is an appeal by William Breeding from the decision of your office, dated April 10, 1901, affirming that of the local office at Visalia, California, rejecting his application, presented December 15, 1900, to make homestead entry for the NW. 4 of SW. of Sec. 33, and the N. of SE. and SE. of SE. 4 of Sec. 32, T. 20 S., R. 31 E., M. D. M., situated within the limits of the Sierra forest reservation established by proclamation of the President, dated February 14, 1893 (27 Stat., 1059).

Breeding alleges that on or about November 12, 1890, he purchased from one Zack F. Pierpont the possessory claim to the land and the improvements then on the same for the sum of $200; that Pierpont then and there delivered possession to him (Breeding); and that he has ever since resided upon and cultivated the land, and has placed valuable improvements thereon, with the intention of applying to enter it as a homestead as soon as it should be surveyed. The plat of the public survey of the land was filed in the local office April 24, 1900. July

14. 1900, said Pierpont made homestead entry No. 10316 for the land, but such entry was canceled upon the filing of Pierpont's relinquishment, December 15, 1900, and on the same day Breeding presented his application, which the local office rejected because the land was within the limits of a forest reservation and the application therefor was not presented within three months from the filing in that office of the official plat of survey of the land. An appeal by Breeding resulted in the affirmance by your office, as already stated, of the decision of the local office; and his further appeal has brought the case to the Department.

Appellant contends that the provision of the homestead law (Section 3, act May 14, 1880, 21 Stat., 140) requiring a settler upon unsurveyed public land to file his application and make entry therefor within three months from the filing in the local office of the plat of survey of the land, was intended only to protect a subsequent applicant for the same land, and was not intended to be applicable where the question was solely between the homestead applicant and the government."

The proclamation establishing the said reservation excepts from the force and effect thereof:

all lands which may have been, prior to the date hereof, embraced in any legal entry or covered by any lawful filing duly of record in the proper United States Land Office, or upon which any valid settlement has been made pursuant to law, and the statutory period within which to make entry or filing of record has not expired; and all mining claims duly located and held according to the laws of the United States and the rules and regulations not in conflict therewith;

Provided that this exception shall not continue to apply to any particular tract of land unless the entryman, settler or claimant continues to comply with the law under which the entry, filing, settlement or location was made.

In the case of Arnold Wink, decided here July 29, 1901 (31 L. D., 47), the unserveyed land settled upon was afterward embraced within the limits of a public forest reservation, and the settler failed on account of sickness, as he alleged, to place his claim of record within the three months allowed after the filing of the plat of the public survey of the land. Considering, in that case, the above mentioned provision of the homestead law together with the proviso to the exception in the President's proclamation establishing the forest reservation, the language of the exception and proviso being identical with that set out above from the proclamation in this case, the Department said: For various reasons it has frequently occurred that the time prescribed would be allowed to pass without making of application or entry. In the absence of a valid adverse claim it has been the practice to allow the settler to make entry after the expiration of the statutory period. But such adverse claim would defeat the settlement right where the latter was not protected by entry or filing. It is believed that under the express terms of the proviso to the exception of the President's proclamation the neglect or failure of a settler on land within the limits of the forest reservation, to make entry or filing within the time allowed by law, operates likewise to defeat his settlement right to such land.

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The Department sees no reason to doubt the soundness of the rule thus laid down in the Wink case, and therefore adheres to the same in the case at bar.

It is further alleged, however, in an affidavit by said Breeding, corroborated by Robert B. Breeding:

That on the 23rd day of July, 1900, as soon as affiant heard that said land had been surveyed and was open to entry he came to the land office at Visalia for the purpose of filing thereon, and then learned that the said Pierpont had filed homestead application No. 10316 for the same land, and affiant was then and there informed by the Register and Receiver of the said land office that it would be impossible and useless to present any homestead application therefor because the land was already embraced in the entry of Pierpont, but that the proper course for him to pursue, upon the facts as stated by him, would be to protest the final proof of the said Pierpont.

In a report of the register of the local office, dated July 16, 1901, relative to this allegation, that official says:

Attention is called to the fourth paragraph on second page of said appeal, wherein it is stated by Breeding's attorneys that he came to this office as soon as he heard that said land was open to entry, and that the Register and Receiver informed him that the proper course for him to pursue "would be to protest the final proof of said Pierpont." At that time it was not known when final proof would be made by Pierpont, the entryman of record, and I can say for myself that I gave said Breeding no such advice. The Receiver of this office states that he does not remember of having had any conversation with said party in regard to his said application.

It is stated by counsel that "the applicant did not only present his application within three months, but did present it as soon as he heard that the township was surveyed,' so no laches can be imputed to him and he was strictly within the rights conferred upon him by the statutes."

This statement so far as the presentation of an application is concerned is not supported by the record. Breeding did not, so far as appears, present any application for the land until December 15, 1900, nor did he in any way prior to that time place his claim of record in the local office. Had he, however, presented an application for the land on July 23, 1900, or at any time thereafter prior to the filing of Pierpont's relinquishment, it could not have been received and would have been properly rejected because of the appropriation of the land by Pierpont's entry. The local officers deny advising Breeding, as he alleges they did on July 23, 1900, that his proper course was "to protest the final proof of Pierpont." His proper course, and the only course open to him then for the protection of his settlement claim, would have been to institute contest proceedings against Pierpont's entry before the expiration of the three months' period allowed by law for filing application to enter, or, in other words, for placing his claim of record in the local office. He had already permitted nearly the entire period within which he could act effectively to expire. He was not without proper remedy in the presence of Pierpont's entry while any

time of that period remained, but he failed to employ the remedy, and the land department cannot save him from the consequences. It is believed that under section 3 of the act of May 14, 1880, nothing short of placing his claim duly of record in the proper local land office will protect the claim of a homestead settler against an intervening valid adverse claim, or what in this case amounts to the same thing, against the operation of the proviso to the exception in the President's proclamation as hereinbefore set out.

The decision of your office is affirmed in accordance with the views. herein expressed.

OKLAHOMA LANDS-HOMESTEAD-CONTEST.

CALVERT. WOOD.

The selection and entry of land adjacent to a townsite, by a duly qualified and registered homestead applicant, is not in violation of the letter or spirit of the law under which the lands in the territory ceded by the Comanche, Kiowa and Apache Indians were opened to settlement and entry.

The unauthorized and illegal occupancy of public lands subject to homestead entry only constitutes no bar to such entry thereof by one who asserts a right by virtue of compliance with the law and regulations relating to the entry of such lands.

In making homestead entry of lands in the territory ceded by the Comanche, Kiowa and Apache Indians, it is not necessary that the lands shall be taken in square form; but the general provision of the act of March 3, 1891, amending section 2289 of the Revised Statutes, which directs that land to be taken as a homestead shall "be located in a body in conformity to the legal subdivisions of the public lands," will control as to the form of entries of these lands.

Acting Secretary Ryan to the Commissioner of the General Land Office, (S. V. P.) August 30, 1901. (W. C. P.)

The Department is in receipt of your letter of August 27, 1901, enclosing the contest affidavit of J. L. Calvert against James R. Wood's homestead entry made August 6, 1901, for the N. of the SW. 4 and the N. of the SE. of Sec. 31, T. 2 N., R. 11 W., Lawton, Oklahoma, land district.

This affidavit filed August 8th, and corroborated by C. H. Drake, contains the following allegations:

That the said James R. Wood made said H. E. in violation of the letter and spirit of the homestead law, by selecting and entering said land adjacent to the entire south line of the town of Lawton and only two blocks from the ground upon which the U. S. Land Office and the Court House is located. That said entry embraced land a mile long and only wide, thereby rendering the same more valuable for townsite purposes and less valuable for agricultural purposes. That said entryman made said entry in the manner above described at a time when said land was already settled and occupied by thousands of people engaged in actual business and trade. That said entryman could have selected his land in square form had the same been

desired for agricultural purposes. That said land embraced by said H. E. has continued to be occupied for trade and business purposes by thousands of people and a a great number of houses and tents are at this time being erected on said land for business and speculative purposes with the full knowledge of said entryman. That said entry was not made in compliance with law, but for speculative purposes as above shown.

The land involved here is a part of the territory ceded by the Comanche, Kiowa, and Apache Indians by agreement ratified by act of Congress of June 6, 1900 (31 Stat., 672, 676), which, after directing that allotments shall be made to the Indians as in said agreement provided, contains provisions as to the disposal of said lands which, so far as they affect this case, are as follows:

That the lands acquired by this agreement shall be opened to settlement by the proclamation of the President within six months after allotments are made and be disposed of under the general provisions of the homestead and town-site laws of the United States.

Before the lands had been opened to settlememt under that law Congress by the act of March 3, 1901 (31 Stat., 1093), gave further directions as to these lands and the manner in which they should be opened to settlement and entry. It was thereby directed that before such opening the Secretary of the Interior should subdivide the same into such number of counties as would for the time being best subserve the public interests, should designate the place for the county seat of each county and set aside and reserve at such county seat, for disposition as herein provided, three hundred and twenty acres of land." The lands so set apart were, in advance of the opening, to be surveyed, subdivided and platted into lots, blocks, streets and alleys, and the lots were to be sold at public auction to the highest bidder at sales to be had at the opening and subsequent thereto. Said act further provided as follows:

The lands to be opened to settlement and entry under the acts of Congress ratifying said agreements, respectively, shall be so opened by proclamation of the President, and to avoid the contests and conflicting claims which have heretofore resulted from opening similar public lands to settlement and entry, the President's proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled thereto under the acts ratifying said agreements, respectively; and no person shall be permitted to settle upon, occupy, or enter any of said lands except as prescribed in such proclamation until after the expiration of sixty days from the time when the same are opened to settlement and entry.

The President issued his proclamation July 4, 1901, declaring that the ceded lands, with certain exceptions specifically mentioned, "will on the 6th day of August, 1901, at 9 o'clock a. m., in the manner herein prescribed and not otherwise, be opened to entry and settlement and to disposition under the general provisions of the homestead and townsite laws of the United States.”

The proclamation provided that persons desiring to make homestead