Her application was rejected because she had, on December 7, 1897, made an entry under the same act of the SW. of the SW. † of Sec. 9, T. 60 N., R. 20 W., same land district.

The first section of the timber and stone act, above cited, provides that the lands therein described and designated may be sold to citizens, etc., "in quantities not exceeding one hundred and sixty acres."

Appellant contends that the purpose of the timber and stone act was to allow all citizens to purchase one hundred and sixty acres of the land subject to entry under the provisions of the act and that it was not the intention of Congress to restrict persons to one application or entry if such an entry covered a less area than the maximum quantity which the act permits one person to purchase.

The second section of said act requires the applicant to make oath that he has made no other application under this act," and the circular of instructions issued in pursuance of said act provides that "one entry or filing only can be allowed any person or association of persons." (Gen. Cir. 1895, p. 44.)

While the act permits a qualified person to enter "not exceeding one hundred and sixty acres," yet if an entry is made for a quantity of land less than the maximum area allowed, the right to make a further entry is exhausted, as shown by the plain provisions of the second section of said act.

The decision appealed from is affirmed.

RIGHT OF WAY-SECTIONS 2339 AND 2340, R. S.

SANTA FE PACIFIC R. R. Co.

Sections 2339 and 2340, R. S., make no provision for the filing and approval of maps showing the location of reservoir sites and pipe lines.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) (F. W. C.)

October 9, 1899.

The Santa Fe Pacific Railroad Company has appealed from your office decision of December 8, 1898, declining to submit for the approval of this Department the applications filed by said company, under sections 2339 and 2340 of the United States Revised Statutes, for reservoir sites and right of way for pipe lines therefrom, as shown upon maps filed by said company.

Said sections provide:

SEC. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

SEC. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.

It would seem that these sections make no provision for the filing and approval of maps of location, and as it appears that the reservoirs and pipe lines have been actually constructed, the rights of the company under the sections is not dependent upon approval by this Department of maps of location showing the same.

In the appeal and the argument filed in support thereof it seems that the company has abandoned its claim for approval of its maps under the sections of the Revised Statutes before quoted, and is now urging that the maps should be approved under the provisions of the act of May 11, 1898 (30 Stat., 401). It is stated in the brief filed on the part of the company—

that sections 2339 and 2340 of the Revised Statutes of the United States are not acts granting any rights, but are acts confirmatory of rights that may be acquired under local customs, usages, decisions of the courts, or law, while the act of 1898 is a direct grant from the United States of the rights applied for.. ; that under the act of 1898, heretofore referred to, this Department should approve and authorize by such approval the acquisition of these reservoirs, and the conduct of water therefrom over government lands to the road of the railroad.

After review of the matter it is held no error was committed by your office in refusing to submit these maps for approval under sections 2339 and 2340 Revised Statutes, as an approval under said sections is not required, nor would it be warranted.

The question raised by the appeal as to whether approval of these maps can be given under the act of May 11, 1898, has not been considered by your office, and the matter is herewith returned, without expression of opinion thereon, for your further consideration and action.

TIMBER CULTURE ENTRY-CULTIVATION-COMMUTATION.

JOSEPH KELLY.

A timber culture entryman who submits final proof within the statutory life of his entry is entitled to credit for each year of actual cultivation, if eight years of cultivation are shown.

The right to commute a timber culture entry under the act of March 3, 1891, can be
exercised at any time within the life of the entry by one who can show that he
has complied with the timber culture law for the four years preceding the appli-
cation to commute.

Acting Secretary Ryan to the Commissioner of the General Land Office,
(S. V. P.)
October 9, 1899.

(A. S. T.)

On July 27, 1888, Patrick Kelly made timber culture entry, No. 3056, for the NW. of Sec. 32, T. 161 N., R. 68 W., Devil's Lake, North Dakota, land district.

On September 1, 1898, C. A. Lounsberry, special agent, reported that he had made a personal examination of said tract and found no improve. ments, and that no trees, seeds or cuttings had ever been planted thereon, and thereupon on September 28, 1898, you held said entry for cancellation.

On December 16, 1898, Joseph Kelly filed in the local office at Devil's Lake applications for hearing in this and three other similar timber culture entries, all signed by Joseph Kelly. These applications were duly transmitted to your office where, on February 16, 1899, they were rejected "for ambiguity" and the local officers were directed to notify the parties that they would be allowed fifteen days additional in which to file proper applications.

On March 15, 1899, Joseph Kelly filed in the local office his application for a hearing, supported by his affidavit wherein he alleges thatdeponent expects to be able to prove that ten acres of said land was broken in 1889; that said ten acres was cultivated in 1890 and 1891; that in 1891 said ten acres was planted to tree seeds; that owing to extremely dry seasons no further cultivation of said tract for the reason that the same was deemed useless, until the year 1897, when all of said ten acres was again cultivated thoroughly, and in the spring of the year 1898, said ten acres was planted to box elder tree seeds in a proper and workmanlike manner; that said planting was done in the spring of 1898, long prior to the making of the Commissioner's order in the matter, and long prior to any notice had by deponent that any steps were being taken for the cancellation of said entry; that said entryman, Patrick Kelly, died on or about the 6th day of July, 1894, and that deponent is one of his heirs; that the other heirs of said Patrick Kelly, deceased, are Dennis Kelly, Patrick Kelly, John Kelly, and Mary Considine.

This application was duly transmitted to your office, where, on May 8, 1899, a decision was rendered rejecting the application for a hearing, and from that decision the applicant has appealed to this Department. It appears from said affidavit that from 1891 to 1897, the entryman and his heirs wholly failed to comply with the requirements of the law in the matter of cultivation of the land and planting and cultivating trees, seeds and cuttings.

It is provided by the act of Congress, approved March 3, 1893 (27 Stat., 593), that when trees, seeds or cuttings were in good faith planted as required by law, and the land cultivated as required by law, final proof may be made without regard to the number of trees then grow. ing on the land, but this is allowed only when the requirements of the law have been, in good faith, complied with by the entryman in the planting and cultivation of trees, seeds and cuttings, and in the cultivation of the land. In other words, if the entryman has done the things required by the law, he shall not forfeit his entry because, owing to drought or other causes, the trees planted may not grow.

In the case at bar it is not pretended that the law was complied with from 1891 to 1897. The entryman, Patrick Kelly, died July 6, 1894, and the applicant is one of his heirs, and as such entitled to take the place of the entryman in the performance of the duties required of him by law and to the benefits accruing to him under the law. He swears

that in 1897 he cured whatever default had then accrued, by cultivating the land, and in 1898 planted ten acres of the land to tree seeds.

In the case of Gahan v. Garrett (1 L. D., 137), it is held that—

In a timber culture entry there is no restriction upon an entryman as to the time when the work must be done, provided it is done within the required limit.

If the statements contained in said affidavit be true, the applicant may yet comply with the law by doing the necessary work within the required limit, and in that case would be entitled to make his final proof and receive patent for the land.

This entry was made on July 27, 1888. Final proof could not be made till the expiration of eight years from date of entry and may be made at any time within five years thereafter, thus allowing thirteen years from date of entry, which, in this case, extends to July 27, 1901.

The applicant alleges that ten acres of land were broken in 1889, cultivated in 1890 and 1891, and again in 1897 and 1898, making in all five years of cultivation up to and including 1898, and if he shall continue the cultivation during the years 1899, 1900 and 1901 he will have cultivated it eight years by the time when he will be required to make final proof.

By the act of Congress approved March 3, 1891 (26 Stat., 1095), it is provided

That in computing the period of cultivation, the time shall run from the date of the entry, if the necessary acts of cultivation were performed within the proper time.

And provided further, That the preparation of the land and the planting of trees shall be construed as acts of cultivation, and the time authorized to be so employed and actually employed shall be computed as a part of the eight years of cultivation by statute.

Provided, That any person who has made entry of any public lands of the United States under the timber culture laws, and who has for a period of four years in good faith complied with the provisions of said laws, and who is an actual bona fide resident of the State or Territory in which said land is located, shall be entitled to make final proof thereto and acquire title to the same, by the payment of one dollar and twenty-five cents per acre for such tract under such rules and regulations as shall be prescribed by the Secretary of the Interior.

Under the provisions of said act if the applicant in good faith complied with the law in 1897 and 1898, and shall continue such compliance during the years 1899 and 1900, he will then be entitled to commute said entry, regardless of the alleged cultivation prior to 1897.

Your said decision rejecting said application for a hearing, and holding said entry for cancellation is therefore reversed, and you are directed to cause a hearing upon the said allegations of the applicant.

ADJOINING FARM ENTRY-ADDITIONAL HOMESTEAD.

THOMAS N. UPTON.

The statute authorizing an adjoining farm entry does not provide for the privilege where the applicant has theretofore exercised the homestead right, though for a less amount than one hundred and sixty acres.

Residence on the land entered, is required in case of an additional homestead entry, made under section 6, act of March 2, 1889.

An additional homestead entry under section 5, act of March 2, 1889, can only be made of land contiguous to the tract embraced within the original entry.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) October 10, 1899. (H. G.)

Thomas N. Upton appeals from the decision of your office of October 19, 1897, directing that his homestead entry made April 2, 1890, for the NW. of SE. of sec. 25, T. 22 N., R. 12 W., in the Springfied, Missouri, land district, should be held for cancellation.

The appellant represents that the application was made as adjoining farm homestead entry to a contiguous tract, viz: the N. of the SW. 1 of the same section, which was owned by him at the time of his said entry, and upon which adjoining tract he then resided, and that he continued his settlement on the adjoining tract, made use of the land covered by such entry as part of his orignal farm, and made valuable improvements thereon as stated in the final proof, and that he, being ignorant of the law, was misled by the local officers who permitted his said entry and received his final proof, which was made and submitted in June, 1896, and approved by the local officers.

It appears that the appellant made the entry, both as an adjoining farm entry to the N. of SW. † of said Sec. 25, and as an additional entry under section 6 of the act of March 2, 1889 (25 Stat., 854), to his final homestead entry, for which he received the receiver's final receipt or certificate September 22, 1887, for the S. of SW. 4 of Sec. 24, T. 22 N., R. 12 W.

There is a marked distinction between adjoining farm homestead entries permitted by section 2289 of the Revised Statutes, as amended by section five of the act of March 3, 1891 (26 Stat., 1095), and additional entries under the act of March 2, 1889. Attention is called to the dif ference between these forms of entry in the circular of your office of October 30, 1895, pp. 21, 28. This distinction was evidently not borne in mind by the local officers when the entry under consideration was made and when final proof was submitted thereon, as it appears that the application and the entry thereunder were treated as an adjoining farm entry and also as an additional entry under section 6 of the act of March 2, 1889.

The entry was not properly made as an adjoining farm entry, as that right can not be allowed where the homestead right has once been exercised, though for a less amount than one hundred and sixty acres. (Harvey v. Black, 21 L. D., 22.) Neither can the entry be permitted to stand under section six of the act of March 2, 1889, because under that section, the entryman must reside upon the tract covered by the additional entry (Charles Boos, 28 L. D., 555). The entryman admits that he has not resided upon the tract in question, but has resided upon a tract contiguous thereto. Under section five of the act last mentioned, he can not obtain any relief, as under that section, the tract for which