Alderson never submitted his final proof until June 23, 1884, forty days after his three years had expired. In the meantime Lee had applied to enter the land and filed his affidavit of contest. Alderson offers his excuse by saying that he was prepared to offer proof on May 3, 1884, but was restrained from so doing on the information obtained from the register that "results of reclamation by the production of crops," had to be shown, and that he could not show such results; but that he learned soon thereafter that such proof was not necessary when he submitted his proof.

Rule 30 of the rules established for the submission of cases to the. board of equitable adjudication (6 L. D., 800), provides as follows:

All desert land entries in which neither the reclamation nor the proof and payment were made within three years from the date of entry, but where the entryman was duly qualified, the land properly subject to entry under the statute, the legal requirements as to reclamation complied with, and the failure to do so in time was the result of ignorance, accident or mistake, or of obstacles which he could not control, and where there is no adverse claim.

Alderson never began the construction of his ditch until November, 1883, about five months before the time for making his proof would expire; he says "unexpected financial reverses" prevented his constructing his ditch sooner; but this could not excuse his laches in failing to submit proof of reclamation in time, especially when there was an adverse claimant.

The evidence of claimant shows that he constructed a ditch from Lime Kiln Creek to a point about one half mile south of the south line of the tract. This ditch was about three miles long and about twenty-six inches at the bottom, near three feet at top and about twelve inches deep. It intersected a "coulee" or dry creek, a few feet wide, which led on to the land, thence through the section. He claims that this "coulee" enters the land at the highest or near the highest place and that water can be taken from it to all parts of the land; that water was running through this ditch and into the "coulee" and on to the land May 1, 1883.

It is contended that this result having been accomplished that the land is reclaimed "by conducting water upon the same." He says from this ditch water can be distributed over and through all of the soil; that if necessary he will build a reservoir on the "coulee" to distribute the water. That this ditch will enable him to irrigate the land.

This may all be true, but the carrying of water to the land, and even through the land without showing the presence of lateral ditches and water therein through the several smallest legal subdivisions, is not sufficient to show the reclamation of the land within the meaning of the statute.

The question is not what may be done; but the proof must show what has been done to reclaim the land. The evidence fails to show that this tract was reclaimed, although it does show that water was brought to it.

The proof must show what proportion of each legal subdivision has been irrigated. Adam Schindler (7 L. D., 253); Wm. Holland, 6 L. D., 38. Your said office decision is affirmed.

RESERVATION-DEPARTMENTAL AUTHORITY.

GEORGE HERRING.

A reservation of public land for a proper purpose made by the local office, on the request of the surveyor-general, if unrevoked, may be considered as having been approved by the Department, hence made by competent authority and the land included therein not subject to entry.

Secretary Noble to the Commissioner of the General Land Office, July 19, 1890.

By letter dated January 7, 1880, the surveyor-general of California requested the local officers at Visalia to suspend "from entry and sale" sections 5, 6, 7 and 8 in T. 14 S., R. 28 E., M. D. M., for the reason that they "are covered by trees of the sequoia gigantia variety, some of which are reported to be forty feet in diameter and from three hundred to four hundred feet high, constituting a remarkable and rare curiosity which should be preserved."

The said letter also set out "that the tracts named being exceptional in character will be made the subject of a report to the Department with a view of bringing the matter to the attention of Congress.

By letter dated June 1, 1880, the surveyor general, stating that his information had been erroneous, directed the local office, for the reasons stated, to so suspend in lieu of the sections described, section 31, of T. 13 S., and also (at the suggestion of the local office) sections 5 and 6 of T. 14 S., and range aforesaid.

On June 17, 1887, George Herring filed an application to enter the NW. of SW. 1, N. 1 of SE. and NE. of SW. of said section 6, under the provisions of the act of June 3, 1878 (20 Stats., 89).

This application with the proof submitted September 15, 1887, in support thereof was rejected, by reason of said suspension.

From this action Herring took no appeal.

On March 1, 1888, Herring again made application to enter in like manner the said land and on May 31st following, presented proofs in support thereof.

On the date last mentioned the local office rejected said proof for the reason that Herring's said application "was not in the form required by the act of June 3, 1878."

Herring appealed.

Thereupon on February 29, 1889, your office found that his rights had not been affected by his previous application. By the same decis ion, however, your office held "that the presence upon the land of

growing mammoth trees renders it exceptional in character" and therefore not subject to entry under the act referred to and affirmed the action below.

Herring again appeals.

Along with his appeal from the local office Herring filed an affidavit made June 21, 1888 (not corroborated) wherein he avers that on September 15, 1887, he offered proof at the local office in support of his application made in June preceding, that upon the rejection of such proof he employed a land lawyer in Visalia to take an appeal to your office that some time after, the said lawyer "became ill and died," that thereafter he had no notice or information that said appeal had not been taken "until the lapse of many weeks."

The reservation requested by the surveyor-general in 1880, has so far as the record discloses not been revoked. The said reservation may, for the purposes of this case be therefore considered as having been approved by this Department and consequently, in contemplation of law, as having been made by the President who "speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties." Wolsey v. Chapman (101 U. S., 755). See also Graham v. Southern Pacific R. R. Co. (5 L. D., 332).

There is no statute giving a general authority to the President to reserve lands. But the right of the President to put public lands in reservation so that all questions in reference to them might be properly considered, has always been maintained by the courts.

In the case of Grisar v. McDowell (6 Wall., 363, 381) the supreme court said that "from an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses."

The trees referred to have been, as stated, correctly described by the surveyor-general as constituting a "remarkable and rare curiosity which should be preserved." To that end, the lands containing them were withdrawn from sale and entry so that all questions in regard to them could be properly considered.

Being thus placed in reservation by competent authority and for a sufficient reason it was "not in the power of a party to acquire rights by treating such reservation as of no effect." See opinion of attorneygeneral Devens in the matter of the Southern Pacific Railroad grant (16 Op. 80) and cases cited.

The reservation referred to being in existence at the time of Herring's application, I must find in accordance with the views herein expressed that the same has been properly denied.

This disposition of the case renders it unnecessary for me to discuss the other matters that are presented by this appeal.

The decision appealed from is affirmed.

OSAGE LAND-FILING-FINAL PROOF.

BOYD v. SMITH.

Where two claimants for Osage land are each in default as to filing within the prescribed period the superior right must be accorded to the one who makes the first filing, subject only to defeat in case of failure to submit final proof within six months after such filing.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, July 18, 1890.

August 18, 1886, F. W. Boyd made Osage declaratory statement No. 5252, alleging settlement in October, 1881, for lot 6, Sec. 26, T. 26 S., R. 25 W., Garden City, Kansas.

August 28, 1886, Kate Smith filed Osage declaratory statement No. 5293 for the same land, alleging settlement March 1, 1886.

Smith offered final proof January 22, 1887, and Boyd January 24, 1887. The local officers rejected Smith's offered proof, and accepted that of Boyd, on the ground of prior settlement by Boyd.

Smith appealed to your office, and on January 17, 1889, your office affirmed the action of the local officers, from which decision Smith now appeals to this Department.

Both claimants have satisfactorily shown compliance with law as to residence, improvements and cultivation.

The point relied upon by Smith for reversal is, that in the original act of Congress providing for the sale of the Osage lands payment was required to be made within one year of settlement, and that Boyd not having offered final proof and payment until several years after settlement, had forfeited his rights thereunder, and Smith having made her final proof and tendered payment within the year, should prevail over the claim of Boyd.

In the case of Hessong v. Burgan (9 L. D., 353), it is held that under the act of Congress of May 28, 1880 (21 Stat., 143), and the departmental regulations in reference to the same, filing must be made within three months from settlement, and final proof and payment within six months after the filing. Neither Smith nor Boyd filed within three months of settlement, and the fact that Smith's settlement antedated her filing but five months, while Boyd's was five years before filing, can give Smith no preference over Boyd, as both were in default, and Boyd's filing having been made prior to that of Smith he thereby acquired priority over Smith, which could only be defeated by failure to make final proof within six months thereafter, and as he made such proof January 24, 1887, within the prescribed time, his claim must prevail, and the fact that Smith's proof was offered within a year of settlement, while Boyd's was not, can have no bearing in the case, as both were in pari delicto as to filing. Had Smith alleged and shown settlement within three months of filing her declaratory statement, she would have

had priority over Boyd, because she would thereby have complied with the regulation as to filing, which has the force and effect of law (see case above cited).

The act of May 28, 1880 (21 Stat., 143), in effect, modifies the provis ion of the law of May 9, 1872 (17 Stat., 90), requiring payment within one year of date of settlement, which counsel for appellant seem to rely upon.

The decision of your office is affirmed, and Smith's declaratory statement 5293 is canceled.

PRE-EMPTION ENTRY-SETTLEMENT.

OHIO CREEK ANTHRACITE COAL Co. v. HINDS.

One who enters upon land as the representative of another, and remains thereon in
such capacity, is not a settler within the meaning of the pre-emption law.
First Assistant Secretary Chandler to the Commissioner of the General
Land Office, July 18, 1890.

On May 27, 1887, William Hinds filed pre-emption declaratory statement alleging settlement February 11, 1885, upon the E. of the SW. 1, Sec. 26, and E. of the NW. 1, Sec. 35, T. 14 S., R. 87 W., Gunnison, Colorado.

In pursuance of his published notice of intention he submitted proof in support of his entry at the local office on November 9, 1887. W. L. Yule, President of the Ohio Creek Anthracite Coal Company, filed affidavit of protest against the acceptance of said proof. Both parties appeared by counsel.

Separate motions were made by claimant's attorney to dismiss the said protest for failure to specifically set forth the charges and "for the reason that there are no corroborating affidavits." These motions were denied November 14, 1887.

Thereupon the hearing was proceeded with upon different days until November 24, 1887, when the case closed.

Upon the evidence submitted, the local officers recommended the acceptance of the claimant's proof and the approval of his entry. The company appealed from this judgment and your office, on March 29, 1889, reversed this decision and sustained the contest and rejected Hind's proof. From this order he appeals.

From an examination of the record it appears that at some time prior to October 1883, the land in question with some four thousand acres of adjoining coal land, had been purchased from a party having color of title by the Mt. Carbon Anthracite Coal company of which said Ohio Creek Company is the successor. At the time of such purchase there were three or four houses on the land, one of which had previously been used as a hotel.