the children were not so entitled to claim under and were not orphans within the meaning of the fifth section of said act of 1854.

It is not shown that said decision has been reversed or modified, and no good reason appears for overruling it. The decision of your office

is therefore affirmed.

PRACTICE; FINAL PROOF—APPEAL.

W. B. ENNIS ET AL.

An order requiring additional proof, without final decision upon that already submitted, is not appealable.

Acting Secretary Muldrow to Commissioner Sparks, February 24, 1887. W. B. Ennis and others have made application to have the record in the above stated case certified to the Department, alleging that by letters of August 24 and 25, you suspended the homestead entries of W. B. Ennis and others therein named, for the reason that their testimony as to the number of times and duration of their absence from their homesteads is vague and uncertain, and required claimants to furnish additional evidence through the local officers showing the number of times and duration of such absence. That from this action applicants appealed, which you refused to transmit, holding that "under the rules this is not such an appeal that can be submitted to the Secretary, and until the additional evidence called for is furnished, the case will remain suspended."

Applicants do not show that any final decision has been made in said case from which an appeal can be taken, or that they have declined to comply with said requirement, hence their application should be refused. Applicants may refuse to furnish additional proof, and elect to rely upon the proof submitted, in which event it would be your duty to make a final decision from which they would have the right of appeal. You will notify claimants that they will be required to elect within thirty days whether they will furnish additional proof, or rely upon the proof submitted, and upon their action in the matter or at the expiration of thirty days, you will make a final decision in said cases.

DESERT LAND ENTRY-COMPACTNESS.

FRANCIS M. BISHOP.

Statutory rights are not abridged by departmental regulations.

An entry in conformity with the statute as to compactness must be allowed, though in contravention of the strict letter of the general circular.

The departmental regulations with respect to "compactness" of desert entries modified.

Secretary Lamar to Commissioner Sparks, February 24, 1887.

I am in receipt of your letter of April 10, 1886, transmitting the pa pers in the appeal of Francis M. Bishop from your decision of Febru ary 27, 1886, calling upon him to re-adjust the boundaries of his desert

land entry, made August 7, 1885, embracing six hundred acres in sections 8 and 17, T. 15 S., R. 13 E., Salt Lake district, Utah.

The tract in question is three-quarters of a mile wide by one and a quarter miles long, and your office holds that it is not "compact" in the sense in which the word is used in the desert land act (19 Stat., 377). Your decision is based upon the regulations of the department, which so far as they bear upon the question of the compactness of tracts claimed under the desert land act, read as follows:

"The requirement of compactness will be held to be complied with on surveyed lands when a section, or part thereof, is described by legal subdivisions as nearly in the form of a technical section as the situation of the land and its relation to other lands will admit, although parts of two or more sections may be taken to make up the quantity or equivalent of one section. But entries running along the margin or including both sides of streams, or being continuous merely in the sense of lying in a line so as to form a narrow strip, or in any other way showing a gross departure from all reasonable requirements of compactness, will not be admitted.

"In no case, where the full quantity of six hundred and forty acres is entered, will the side line on either side be permitted to exceed one mile and a quarter; and less in proportion in case the entry embraces less than a whole section or its equivalent." (Gen. Cir., March 1, 1884, p. 35).

As this entry embraces forty acres less than six hundred and forty acres, and yet is a mile and a quarter long, you held that it was not compact within the meaning of the rule above quoted, and you required the entryman to re-adjust his boundaries so as to bring his entry within the rule.

The desert land act provides "that no person shall be permitted to enter more than one tract of land, and not to exceed six hundred and forty acres which shall be in compact form."

The tract in question, which as already indicated embraces six hundred acres, is in the form of a rectangular parallelogram, a mile and a quarter long, and three quarters of a mile wide. Its width is equal to three-fifths of its length, and is uniform throughout its length. The sole question presented is as to the compactness of the tract. Is it compact; or are its shape and contour such as to call for a re-adiustment of boundaries before patent can issue? The only provision of the law on the subject is that already quoted, that tracts entered under the desert land act "shall be in compact form." That the tract herein described is in compact form within any reasonable definition of the term "compact," can not be gainsaid. It is therefore compact within the meaning of the law and must be so regarded.

Consequently, to follow the strict language .of the regulation and under it enforce the relinquishment of any portion of the tract for want of compactness would be to deprive the applicant of a statutory right, and this no rule or regulation of the Department can do.

Two propositions, therefore, present themselves. Either the regula tion must be so interpreted and construed as to save the statutory right, or it must be so modified that it will not operate to defeat that right."

An examination of the decisions of the land department discloses the fact that the practice has not been uniform under the rule. In some cases the restriction as to length of tract has been followed literally; in others latitude has been given by a construction of the rule which saved entries, although they embraced tracts greater in length than the letter of the regulation would warrant. While convinced that the entry in the case before me fully meets the requirement of the statute with reference to compactness, I find it difficult to construe the regulation on the subject in such a way as to warrant the approval thereunder of this entry as described.

The closing sentence, commencing "In no case," of the regulation herein quoted relative to compactness is so explicit in its words of limitation as in my judgment to exclude this entry in its present form. To allow it and so comply with the statute would be to disregard the rule. The mandate of the law must be obeyed; hence the rule, in so far as it restricts a legal right in this case, must be disregarded.

But I do not think it advisable or wise to leave standing a regula tion which in practice is found to come in conflict with the law on which it is supposed to be based. Regulations are devised and adopted to aid in the proper execution of the law, and where in any case it is found that they operate as an obstruction rather than as an aid they should be so changed or modified as to meet the purpose for which they are intended. The case under consideration convinces me that the regula tion relative to desert land locations and entries should be modified by the elimination therefrom of the words:

"In no case, where the full quantity of six hundred and forty acres is entered, will the side line on either side be permitted to exceed one mile and a quarter; and less in proportion in case the entry embraces less than a whole section or its equivalent."

The residue of the regulation is in my judgment ample for the protection of the government and for the proper administration of the law by your office and the Department; and it properly leaves to the land department some discretion in determining what is and what is not a compliance with the law.

The decision appealed from is accordingly reversed, and you will adjudicate Bishop's desert land claim in accordance with the views herein. expressed, treating his entry as embracing a tract compact in form.

It is proper here to add that this decision presents a somewhat dif ferent view as to the construction of the regulation relative to desert land entries in the matter of their compactness from that expressed in the case of Lizzie A. Devoc, decided by this Department July 7, 1886 (5 L. D., 4). In that case the regulation was treated as sufficiently

flexible to authorize the entry, the facts in which clearly met the requirement of the law with regard to compactness.

In this, upon a further consideration of the regulation, it is regarded as in part in conflict with the law, because its words of limitation are deemed to go beyond what the statute will authorize, and it is to that extent abrogated.

Such modification of the regulation in no way impugns thre correctness of the conclusion arrived at in the Devoe case, but that case, in so far as the reasons therefor differ from this, is modified, and this decision will furnish the authority for action in all desert land cases not yet finally adjudicated in so far as the question of compactness is concerned.

RAILROAD GRANT-INDIAN RESERVATION.

JACKSON, LANSING & SAGINAW R. R. Co.

An order of the President, withdrawing lands for the use of Indians, existing at the date of a railroad grant and the definite location thereunder, excepts the land covered thereby from the operation of said grant.

Until said order was formally revoked, the effect thereof, as against the grant, remained unchanged, though the purpose of the withdrawal had ceased to exist. Lands "in place" excepted from the grant are not subsequently subject to indemnity selection.

Acting Secretary Muldrow to Commissioner Sparks, February 26, 1387.

On May 15, 1871, the Jackson, Lansing and Saginaw Railroad Company presented to the local land office at Reed City, Michigan, a list of lands claimed under the grant by acts of Congress approved June 3, 1856 (11 Stat., 21), July 3, 1866 (14 Stat., 78), and March 3, 1871 (16 Stat., 582). Said list embraced twelve thousand, three hundred and thirty and forty-nine one-hundredths acres, situated in township thirty-four, thirty-five, and thirty-six north, range four west.

The record shows that said tracts are within the six mile or granted limits of said grant, and that the right of said company attached on October 23, 1858, the date when said company filed in your office a map showing the definite location of its road

It appears that on May 16, 1855, by order of the President and upon the recommendation of the Commissioner of Indian A ffairs, your office directed the register and receiver of the Duncan land office, in said State, to withdraw from market the public lands (inter alia) in said townships. The order of withdrawal stated that it was made for Indian purposes, and upon the condition that "no peculiar or exclusive claim to any part of the land so withdrawn can be acquired by said Indians, for whose benefit it is understood to be made, until after they shall by future legislation be invested with the legal title."

The United States made a treaty with the Ottawa and Chippewa Indians of Michigan on July 31, 1855, by the provisions of which it was agreed that certain townships would be withdrawn from sale and reserved for the use of said Indians. This treaty was proclaimed by the President on September 10, 1856 (see Revision of Indian Treaties, p. 613). The withdrawal and reservation mentioned in said treaty did not embrace any of the lands in question. The Commissioner of Indian Affairs on March 3, 1860, in response to your office letter dated February 24, 1860, advised that the land not included in the reservation fixed by said treaty was not needed any longer for Indian purposes, and thereupon, on July 30, same year, the vacant lands in the even numbered sections in said townships were restored and offered at public sale at $2.50 per acre. Pursuant to the order of the President, dated April 16, 1861, the public lands in said townships (with others) were, on April 22, same year, again withdrawn for the purpose of enlarging the Indian reservation. It was, however, determined that said lands would not be needed for that purpose and the even sections were restored to market on August 19, 1874. It further appears that the Grand Rapids and Indiana Railroad Company, one of the beneficiaries under said grant, presented to the local land officers a list of lands in said township 34, claimed by the company, said list was transmitted to this Department by your office letter, dated March 31, 1874, with the recommendation that the right of the company be recognized, and said list was approved by the Hon. Acting Secretary of the Interior on April 25, same year. The ground upon which your office based said recommendation is "that the treaty of 1855, proclaimed September 10, 1856, before the right of the road had attached, standing in place of and making unnecessary any further legislation, had the effect to release from further reservation the lands not included in its terms, although such lands were not formally restored until 1860."

Your office, on May 11, 1885, refused to concur in the view above quoted, and held said list for cancellation, upon the ground that said granting act of June 3, 1856, expressly reserves from the operation of the grant made thereby any and all lands theretofore reserved to the United States by act of Congress, or in any other manner by competent authority: that it can make no difference that the reservation was tem porary in character and that the reason therefor had ceased to exist prior to the definite location of the road, and your office held that "the lands in question were withdrawn by competent authority pending the negotiation of a treaty with the Indians and not only the withdrawal but the reason for which it was ordered was in full force at the date of the grant, and being in a state of reservation at the date of the grant. they were not included therein" (citing Leavenworth, Lawrence & Gal. veston R. R. Co. v. United States, 92 U. S., 733).

From said decision the company appeals, and alleges error, in assu ing jurisdiction to make said decision, because, so far as your office was 2278 DEC-28