It seems to me, if the instructions heretofore given are correct, and such as are authorized under the act, it follows that the views taken by the townsite trustees, that the government is not interested after the patents have been given said trustees, are incorrect.

Section four of the act in question provides that after the lot-holders have received deeds from the trustees, the surplus lots within the townsite shall be sold under the direction of the Secretary of the Interior for the benefit of the municipal government, or he may reserve the same, or any part thereof, for public use, etc.

This provision, directing me to dispose of surplus property, has reference to the property inside the townsite remaining after the trustees have deeded the lots to the holders thereof. Of course, the trustees have no authority to make deeds for any of these lots until, in pursuance of the provisions of the act under which they were appointed, they have received from the government the patents for the lands.

By reference to said section four it will be noticed, not only that the Secretary of the Interior is authorized to dispose of surplus lots and property, or to reserve the same for public parks, but that he "shall execute proper conveyances to carry out the provisions of this section."

If, as intimated by the trustees, title passed from the government when the patent for all the lands within the townsite entry was issued to the trustees, the Secretary of the Interior would be powerless to "execute proper conveyances, etc.", or, in fact any kind of conveyances. The purpose of the act was to afford a speedy way by means of trustees, in which townsite claimants could secure their homes. The act makes all these cases special, and the trustees are to take and hold the title of the government under the direction of the Secretary of the Interior, merely for convenience. If this was not true, the act would not have provided that under the direction of the Secretary the surplus lands should be disposed of.

The trustees appointed under this act are trustees of the government for the purpose of carrying out the trust created by the act, and from the general scope of the act, I think it is clear that Congress intended that this Department, charged by general law with the disposal of the public domain, should exercise a supervisory control over the execution of said trust.

The issuance of patents in such cases is not technically a disposal of the land; it only placed the title in such a condition that it might be conveniently transferred and the land be disposed of to actual holders under the townsite law.

The title of the government does not actually pass until the trustees have conveyed the lands to the individual owners, and up to that time the United States has jurisdiction thereover. These trustees are appointed by the government for the purpose of carrying out the trust declared by the act. They are engaged in the public service, and if

attacked in the courts should be defended by the United States attorneys.

Entertaining these views, I do not deem it necessary to formulate answers to the questions propounded by Mr. Foster. You will direct him that if suit be entered against the townsite board, he will at once notify you of the fact, and when you have called the attention of the Department thereto, the Attorney-General will be requested to direct the proper district attorney to appear on behalf of said board. The letter of the 19th of February, 1892, to the Secretary of the Townsite Board No. 2, Oklahoma City, referred to by you, is hereby recalled.

ABANDONED MILITARY RESERVATION-IMPROVEMENTS.

FORT CRAWFORD.

The improvements on an abandoned military reservation may be sold separately under section 3, act of July 5, 1884, where the lands on which they stand are not subject to disposition under said act.

Secretary Noble to the Commissioner of the General Land Office, March 18, 1892.

By letter of December 30, 1891, you asked to be instructed as to what disposition shall be made of the buildings pertaining to the Fort Crawford military reservation, and the lands surrounding them.

It seems this reservation, which was created by executive order of March 12, 1884, embraced something over eight thousand acres of land, all within the limits of the Ute Indian reservation in Colorado. A portion of the military reservation was abandoned by the authorities and turned over to this Department by the President's order of July 22, 1884. As to these lands, it was held that they did not come within the scope of the act of July 5, 1884, (23 Stat, 103) providing for the disposition of abandoned military reservations, but were to be disposed of under the act of June 15, 1880, (21 Stat., 199) making provision for the disposition of the lands in said Ute Indian reservation. (L. V. Bryant, 3 L. D., 296).

By the President's order of October 2, 1890, the remainder of the lands in said military reservation were turned over to this Department for disposition under the act of July 5, 1884 supra. Upon the suggestion of this Department in letter of October 9, 1890, that these lands could "only be disposed of under the act of Congress of June 15, 1880," the order was so changed as to read "for disposition under the act of July 5, 1884, or as may be otherwise provided by law."

You now ask to be instructed as to what disposition shall be made of the buildings pertaining to said post, and the lands surrounding them, but express no opinion on the premises and make no suggestion. It would be of great assistance if, in matters of this kind, you would give your views on the questions involved.

A question very similar to the one here presented arose in connection with the disposition of the land within the Fort Dodge military reservation. The holding of your office that such part of said reservation as was made up of Osage Indian lands could be disposed of only under the act of May 28, 1880, (21 Stat., 143) and the action directing the local officers to allow filings therefor under said act, "with the exception, however, of tracts upon which buildings were erected by the gov ernment for military purposes are located," which tracts were declared to be reserved from disposal until such buildings should be appraised and sold was approved by this Department. Hiram Wing (10 L. D., 602). That decision not only recognized the authority to reserve from disposal the land upon which such buildings stood, but also the authority to sell such buildings. It was said:

Section three thereof (act of July 5, 1884) directs the Secretary of the Interior to cause such buildings to be appraised and sold to the highest bidder for cash.

Said section three provides first for the appraisement of improvements, buildings, etc., and the sale thereof, together with the tract or lot on which they stand, by the Secretary of the Interior, and then provides as follows:

or he may in his discretion, cause the improvements to be sold separately, at public sale for cash, at not less than the appraised value, to be removed by the purchaser within such time as may be prescribed, first giving the sixty days public notice before provided; and if in any case the lands and improvements, or the improvements separately, as the case may be, are not sold for want of bidders, then the Secretary of the Interior may, in his discretion, cause the same to be re-offered for sale, at any subsequent time, in the same manner as above provided or may cause the same to be sold at private sale at not less than the appraised value.

The provisions of this act are broad enough to include the disposi tion of buildings situated as these in question are, and the fact that the land upon which they stand may not be sold with them is sufficient reason for the exercise of the discretion of the Secretary to cause the sale of such improvements separately. You are therefore instructed that said buildings and improvements will be disposed of under the provisions of said act of July 5, 1884, quoted above, and you will take such steps as may be necessary to that end.

PROCEEDINGS BY THE GOVERNMENT-PREFERENCE RIGHT.

BARBOUR v. BONNEY ET AL.

It is a condition precedent to the acquisition of a preference right of entry under section 2, act of May 14, 1880, that the contestant shall pay the fees of the land office in the proceedings that result in cancellation.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 23, 1892.

I have considered the appeal of George H. Barbour, from your decision dated February 7, 1891, rejecting his claim for the Sof section 21, T. 21 N., R. 4 E., Helena, Montana, and allowing Lewis E.

Bonney to make homestead entry of the SW 4, and Thomas F. Burns to make homestead entry of the SE of said section, under their several applications filed in the local office on October 21, and rejected two days later by the local officers "for the reason that one George H. Barbour has a preference right of entry by virtue of having initiated contest proceedings prior to action of the government."

It appears that said tracts were covered by a desert land entry of one Henry O'Hagan, which was canceled by your office on October 18, 1890, and hence were open to the homestead applications of Bonney and Burns, subject to the legal rights of any other persons.

The local officers rejected the homestead applications because said Barbour had a preference right of entry, on account of having initiated contest proceedings against said desert entry "prior to proceedings by the government." This was clearly error on the part of the local officers, for it appears that said Barbour did not contest said desert entry, but the same was canceled by your office upon proceedings initiated by the government. It is insisted by Barbour that he offered to contest said desert entry, but was dissuaded from doing so by the register, because the entry could be canceled more quickly by proceedings by the government and at less expense. Conceding this to be true, Barbour could acquire no preference right by any proceedings initiated by the government, and without any expense to him. It is one of the conditions precedent to securing a preference right of entry under section 2 of the act of May 14, 1880 (21 Stat., 140), that the contestant "has paid the land office fees," in the contest which results in the cancellation of the contested entry. There is no pretense that Barbour paid a cent of fees, and the fact, if it be a fact, that the register dissuaded him from contesting said desert entry, on account of the expense, and he acquiesced in said advice, can give him no preference right of entry over the homesteaders Bonney and Burns. If the latter are not acting in good faith, their entries, when allowed, may be contested by any one under the rules of practice prescribed by this Department. No error is shown in your decision, and it is therefore affirmed.

RAILROAD GRANT-INDIAN OCCUPANCY-SETTLEMENT RIGHTS.

SCHULTZ v. NORTHERN PACIFIC R. R. Co.

No settlement rights can be acquired on land subject to Indian occupancy, and where lands in such condition fall within the grant to the Northern Pacific, the title thereto passes to said company subject to such occupancy.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 24, 1892.

I have considered the case of Helmuth Schultz v. Northern Pacific R. R. Co., on appeal from your decision of November 15, 1890, involving the NE. of the NE. 4, Sec. 15, T. 135 N., R. 53 W., Fargo land district, North Dakota.

It appears that on October 29, 1881, Schultz made entry under the homestead law of the SE. 4 of Sec. 10, town and range as above, and that on February 23, 1882, final certificate was issued and subsequently the entry was patented to him.

December 27, 1889, the local officers transmitted to you the verified petition of Schultz asking for permission to surrender his patent, relinquish the NE. 4 of the SE. 1 of Sec. 10, embraced therein, and amend his entry, taking in lieu of the tract relinquished the NE. of the NE. of Sec. 15, same town and range, as above.

He set forth in said petition that he had valuable improvements upon the tract in section fifteen, and had established his residence on the said tract in 1869. In view of said allegations, you, on January 14, 1890, on account of said tract being within the grant to the Northern Pacific railroad, directed that a hearing be had to ascertain the rights of the respective parties.

The local officers decided in favor of the applicant on the ground of occupancy and settlement upon the land prior to survey, and the location of the railroad grant, and recommended the petition to be allowed. You reversed the action of the local officers and declined to allow the relinquishment and amendment to be made, on the ground that the land in section fifteen, was within the granted limits of the Northern Pacific railroad, whereupon the petitioner appealed.

The land in question, viz., the NE. of the NE. 1, Sec. 15, and other lands in North Dakota, were within what was known as the Indian country. Under date of July 2, 1864 (13 Stat., 365), Congress conferred a grant to aid in the construction of the Northern Pacific railroad, and on February 21, 1872, a map of general route was filed and the lands embraced in said grant withdrawn from settlement, entry or sale

At the time said act was passed, the Indian title was not extinguished and the Indians had the right of occupancy and use of the land subject to the dominion and control of the government. The railroad company could only take the lands granted subject to this right of occupancy by the Indians, and such right could not be interfered with or determined, except by the United States. No private individual could invade such rights and be protected by the government.

The right of the United States to dispose of the fee of lands occupied by Indians has always been recognized by the United States supreme court from the foundation of the government. Beecher v. Wetherby (95 U. S., 517–525).

Therefore the fee to the lands being in the United States, the act of 1864, operated to pass the same to the railroad company subject of course to the usufructuary right of the Indians.

Congress in the grant to the company not unmindful of the Indian title to the lands granted, stipulated for its extinguishment as rapidly as public policy and the welfare of the Indians would permit; therefore