and S. W. of Sec. 36, T. 2 S., R. 16 W., Missoula, Montana, land district, as on unsurveyed lands, made September 20, 1897.

The proceedings were treated as ex parte by your office, and the State of Montana had no notice of the appeal of Noyes from the decision of your office, which was in favor of the State. By departmental order of February 5, 1900, the papers in the case were returned to your office, with the direction that the entryman be required to serve notice of his appeal upon the attorney general or other proper officer of the State. This direction has been complied with, and the attorney general files a brief in support of the claim of the State to the disputed tract. The record has been retransmitted by your office for the consideration of the case upon its merits.

Township 2 south, range 15 west, lying east of the township within the limits of which the disputed tracts lie, has been surveyed and subdivided for many years, and your office, in effect, held that the location of the lines of said section 36 were thus sufficiently ascertained and defined to identify the section as a school section which had passed to the State by virtue of the act of February 22, 1889 (25 Stat., 676), providing for the admission of Montana and other States into the Federal Union, which became operative, under the terms of said act, by the proclamation of the President of November 8, 1889 (26 Stat., 1551), reciting that the terms imposed by said act had been complied with, and directing the admission of the State of Montana into the Union. It appears, from a consultation of the records of your office, that the township lying south of the one within which the section in dispute is situate, has not been surveyed, although, as before stated, the one lying to the east has been surveyed and subdivided for many years prior to the entry of Noyes, which was permitted over seven years after the State had been admitted into the Union.

Your office decision is based upon a decision of your office in the case of Samuel B. Reeves (6 C. L. O., 76), wherein it is held that sections 16 and 36 of a township, while unsurveyed, may be ordinarily embraced in a desert-land entry, but if the surveys have so far progressed as to indicate which are the school sections, they can not be embraced in such entry. On behalf of the appellant is presented a departmental decision in the case of Harris v. State of Minnesota (1 C. L. L., 631), which seems to hold to the contrary, and to the effect that the survey of the exterior lines of a township can not be denominated a survey of the lands within the township.

It is not necessary to determine this question, for the reason that under the provisions of section 11 of the admission act, whether surveyed or unsurveyed, this land was not subject to desert land entry at the date (September 20, 1897) Noyes was permitted to make entry thereof.

Section 10 of the admission act (25 Stat., 676, 679) grants to the State sections 16 and 36 in each township in said State for the support

of the common schools, subject to rights under sale or other disposal previous to the time the act became operative by the admission of the State into the Union. Section 11 provides, inter alia, that all lands granted by the act for educational purposes shall not be subject to preemption, homestead entry, or any other entry under the land laws of the United States, "whether surveyed or unsurveyed," but shall be reserved for school purposes only.

It is true that a like provision as to the State of Washington appearag in the said act, providing also for the admission of Montana into the Union, was held to be superseded by the act of February 28, 1891 (26 Stat., 796), amending sections 2275 and 2276 of the Revised Statutes, the latter act protecting "settlements" on school land prior to survey, and, therefore, the grants of school lauds to the States mentioned in the act of February 22, 1889, are to be administered and adjusted under the provisions of this general later law. (State of Washington . Kuhn, 24 L. D., 12; Todd v. State of Washington, 24 L. D., 106.) The act of February 28, 1891, supra, so far as applicable to this case, reads as follows:

Where settlements with a view to pre-emption or homestead have been, or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections, or either of them, have been or shall be granted, reserved or pledged for the use of schools or colleges in the State or Territory in which they lie, other lands of equal acreage are hereby appropriated and granted and may be selected by said State or Territory in lieu of such as may be thus taken by pre-emption or homestead settlers.

A desert-land entryman can not be said to be protected in his entry by the provisions of this amendatory statute. It applies solely to "settlements" with a view to pre-emption or homestead entry, and does not extend the relief to desert-land entrymen. The reservation of the granted lands, whether surveyed or unsurveyed, from "any other entry under the land laws" is still in force.

It appears that the entryman, relying upon his entry, has made improvements upon the tracts to the extent of five hundred dollars, which savor of the realty and can not be removed, such as ditches, etc., and that he has been prevented from acquiring other lands in the vicinity, which, since his entry, have been entered or settled upon. The fact that he may have been misled by the action of the local officers in allowing his entry, and that the hardships resulting to him may be considerable, will not authorize the Department to dispose of the land in opposition to the plain provision reserving it for the State. It rests with the State alone to protect him.

For the foregoing reasons, the decision of your office cancelling the entry is affirmed.

PRIVATE LAND CLAIM-SECTION 3, ACT OF MARCH 3, 1819.

HOWELL, HARALSON.

Section 3, of the act of March 3, 1819, for the adjustment of certain private land claims in Louisiana, makes provision for two classes: (1) every person whose claim is comprised in the lists or register of claims reported by the commissioners, and, (2) the persons embraced in the list of actual settlers. The words "not having written evidence of title," as employed in said section, are descriptive of the second class of donees, and not a limitation upon the first class.

In so far as in conflict herewith, the cases of D. C. Hardee, 7 L. D., 1; Hardee r. United States, 8 L. D., 391; Ibid. 16 L. D., 499; and James Barbut, 9 L. D., 514, are overruled.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 26, 1900. (J. R. W.)

Your office decision of March 15, 1898, refused, on petition of Mrs. Rufus K. Howell, to issue patent for the private land claim of Caleb Weeks, reported by Commissioner James O. Cosby as claim No. 4, register C. (3 Am. State Papers, Green's Ed., p 54), and refused to cancel the homestead entry of Fergus D. Haralson, for lots 1, 2, 3, 4, and 5, Sec. 27, T. 2 S., R. 3 W., resurvey of 1852, St. Helena meridian, New Orleans, Louisiana, being part of the land included in said private land claim, and also part of section 40 of the original survey.

By your office decision it is held, that section 3 of the act of March 3, 1819 (3 Stat., 528–30),-

Applies only to settlers "not having any written evidence of claim reported as aforesaid," and as the basis of Mr. Weeks' claim is a Spanish patent, the provisions of said section do not apply, in this case.

From this decision the claimant, Mrs. Howell, appealed, and assigns error in holding:

That section 3 of the act of Congress approved March 3, 1819 (3 Stat., 528), did not grant Caleb Weeks, or his legal representatives, the land in question as a donation, not to exceed six hundred and forty acres, by reason of his settlement and improvement of the same prior to April 15, 1813.

Under the section and act above mentioned, confirmation of Weeks' claim was sought, and June 4, 1830, the register and receiver of the local office at New Orleans, Louisiana, issued their certificate of recognition or confirmation thereof, but no patent has issued thereon.

March 4, 1889, Mrs. Howell, as successor of Caleb Weeks, filed with the surveyor general for Louisiana, her application for survey of the land, preliminary to patenting the same.

September 7, 1894, the register and receiver certified to the surveyorgeneral an abstract of entries in that township, showing that the land covered by this private claim was vacant, and, September 19, 1894, the surveyor-general transmitted to your office a diagram in duplicate

purporting to represent Weeks' claim. July 11, 1895, the surveyorgeneral was notified by your office of the acceptance for filing of the plat, and leave was given him to file a triplicate in the local office. This diagram represented the claim of Caleb Weeks as embracing 273.72 acres in township 2 south, range 3 west, being a part or all of section 40 of the original survey. This section 40 covered lots 1, 2, and 7 of section 2, all of sections 22 and 27, and lot 1 of section 28 of the survey of 1852.

November 1, 1897, over three years after Mrs. Howell's application for survey, preparatory to patenting said claim, and notwithstanding the certificate of recognition or confirmation of the Weeks claim, issued June 4, 1830, which does not seem to have ever been canceled, Fergus D. Haralson was permitted by the register and receiver to make homestead entry of lots 1, 2, 3, 4, and 5, of section 27, of the survey of 1852, 109.72 acres.

Under departmental direction of December 26, 1899, Mrs. Howell made personal service of her appeal to the department and argument in support thereof upon Haralson, February 2, 1900, but he has made no response thereto, although the time given therefor has more than expired.

The land is in that part of Louisiana acquired by the United States from France by the treaty of Paris, April 30, 1803 (8 Stat., 200), which lies between the Mississippi and Perdido rivers and north of the Iberville, which was claimed by Spain as part of West Florida until the treaty of Madrid, February 22, 1819 (8 Stat., 252). Spain retained possession of all that territory till October 27, 1810, when, under a proclamation by the President, it was entered by United States troops, and April 15, 1813, by the surrender of Mobile, Spain was completely dispossessed, and all claim of Spanish authority terminated. Foster v. Neilson (2 Peters, 298-308). During this period of disputed sovereignty, Spain exercised de facto authority over the territory, making grants of lands therein.

In 1794, during the undisputed sovereignty of Spain over this territory, and prior both to the treaty of St. Ildefonso, concluded October 1, 1800, whereby Spain ceded Louisiana to France, and to the treaty of Paris, Caleb Weeks obtained conveyances from Juan O'Neil, Matthew DeLong and William Paine of their settlers' rights to the lands embraced in the claim in question, theretofore initiated under Spanish law. December 24, 1803, after the treaty of Paris, but during the period of disputed sovereignty, Weeks paid to the Spanish authorities, exercising de facto sovereignty over that locality, the valuation set on the land, about eighteen and three-quarters cents per acre, and obtained of Morales, the Spanish intendente, a patent for the same, described as three hundred and thirteen arpens of land, situate in the forks of Bayou Sara, surveyed by Trudeau, November 10, 1803.

The act of March 26, 1804 (2 Stat., 283), "erecting Louisiana into

two territories, and providing for the temporary government thereof,” by section 14, declared:

That all grants for lands within the territories ceded by the French Republic to the United States, by the treaty of the thirtieth of April, in the year one thousand eight hundred and three, the title whereof was, at the date of the treaty of St. Ildefonso, in the crown, government, or nation of Spain, and every act and proceeding subsequent thereto, of whatsoever nature, towards the obtaining any grant, title, or claim to such lands, and under whatsoever authority transacted, or pretended, be, and the same are hereby declared to be, and to have been from the beginning, null, void, and of no effect in law or equity. Provided, nevertheless, that any thing in this section contained shall not be construed to make null and void any bona fide grant, made agreeably to the laws, usages and customs of the Spanish government to an actual settler on the lands so granted, for himself, and for his wife and family; or to make null and void any bona fide act or proceeding done by an actual settler agreeably to the laws, nsages and customs of the Spanish government, to obtain a grant for lands actually settled on by the person or persons claiming title thereto, if such settlement in either case was actually made prior to the twentieth day of December, one thousand eight hundred and three: And provided further, that such grant shall not secure to the grantee or his assigns more than one mile square of land, together with such other and further quantity as heretofore hath been allowed for the wife and family of such actual settler, agreeably to the laws, usages and customs of the Spanish government.

After the United States occupied the territory, Congress passed the act of April 25, 1812 (2 Stat., 715), for the purpose of ascertaining the titles and claims to lands therein, and Weeks's claim, with the evidences thereof, was presented to Cosby, the proper commissioner appointed under the act, and was by him, September 1, 1814, reported in his register "C" of claims founded on grants, among others, of the Spanish government, agreeably to the laws, usages, or customs of such government, but which, in the opinion of the commissioner, were not valid. The reason for such report was, because the territory in which this and other claims in said list "C" were located was part of Louisiana, ceded to the United States by France, by the treaty of Paris, and all right and title of Spain thereto had been divested by the treaty of St. Ildefonso. He, however, reported that Caleb Weeks had cultivated and inhabited his three hundred and thirteen arpens of land from 1794 to 1814, the date of his report. (3 Am. State Papers, Green's Ed., 63-72.) As to the equities of such claimants, the commissioner said (page 62):

If the United States had taken possession of West Florida at the same time that they did of Louisiana west of the Mississippi, many serious injuries to individuals might have been prevented. As this was not the case, it becomes an inquiry of interest and importance, whether the government is not morally bound, both by considerations of equity and policy, to make them a compensation commensurate to the injuries they may have sustained? This could be done by making them donations of any quantity of land which the government may deem just; particularly that class of claimants who have improved and cultivated their lands. They are not numerous, and with few exceptions their claims are moderate.

The report shows that some of the claimants included in register "C" had not cultivated and inhabited their lands, while others had for a length of time ascertained by the commissioner, among the latter being