contained various provisions relating to forest reservations, one of which is as follows:

"That in cases in which a tract covered by an unper"fected bona fide claim or by a patent is included within' "the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish "the tract to the government, and may select in lieu "thereof a tract of vacant land open to settlement, not "exceeding in area the tract covered by his claim or "patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to "cover the tract selected; provided further, that in cases "of unperfected claims the requirements of the law "respecting settlement, residence, improvements, and so "forth, are complied with on the new claims, credit "being allowed for the time spent on the relinquished "claims."

66

66

66

By a subsequent act, it was provided that the selections should be confined to vacant, surveyed, non"mineral public lands which are subject to homestead entry" with the proviso that the act should not affect the rights of those who, previous to October 1, 1900, should have relinquished their claims and made application for specific tracts in lieu thereof.

The purpose of the foregoing act, as stated by the land department, was to relieve the situation in which the settlers were placed by the creation of the reserves, and to promote the objects for which the reservations were established. Settlers and other claimants, by the establishment of the reserves, were placed in a state of greater or less isolation from market, business centers, churches, schools, and social advantages. The objects of the government being to improve and protect the forests, it would be greatly assisted in accomplishing that object by securing exclusive control of the lands within the

131 Stats. at Large, pp. 588, 614.

reservation; and at the same time the settlers would be benefited by an opportunity to exchange their claims for those less isolated. The act in question contains an offer by the government to exchange any of its lands that are vacant and open to settlement for a like quantity of lands within a forest reservation for which a patent has been issued, or to which an unperfected bona fide claim has been acquired. The person desiring to select lieu lands under this act is confined to vacant lands open to settlement. They must not be occupied lands or lands reserved from settlement because of their mineral character.2

The land department has held that in case of forest lieu selections, lands must be shown by the selector to be non-mineral in character at the time the selection is approved.3

"Nor can selections be lawfully accepted until there " is a showing that the selected land is vacant and not "known to be valuable for minerals. No other lands are subject to selection, and no selection can be "regarded as complete until these essential conditions 66 are made to appear."4

66

"For the purpose of such determination resort must "generally be had to outside evidence. This evidence "must be furnished by the selector. It is his duty to "show, in so far as physical conditions are concerned, "that the land to which he seeks title is of the class and "character subject to selection. He can not entitle him"self to a patent until he has made such showing. Until "then his selection is not complete. Until then he has "not complied with the terms and conditions necessary "to the acquisition of a patent, and can not be regarded

'Kern Oil Co. v. Clarke, 30 L. D. 550, 555.

Id.

• Id., S. C. on review, 31 L. D. 288.

⚫Id.; Leaming v. McKenna, 31 L. D. 318; Kern Oil Co. v. Clotfelter, 30 L. D. 583.

66

as having acquired any vested interest in the selected "land."

991

Whatever may have been the rule prior to October, 1900, subsequent to that time only such lands might be selected as were subject to homestead entry.2

If the land sought to be selected is occupied by others who have performed all the acts of location of a mining claim, excepting discovery, and who are diligently prosecuting work with a view to discovering mineral, the lands are not vacant or subject to selection.3

The act permitting the exchange of lands situated within forest reserves did not contemplate the relinquishment of a mineral claim as a basis for lieu selection.*

The department at one time ruled that unsurveyed as well as surveyed lands might be selected in lieu of those relinquished."

But by the later statute, congress provided that surveyed lands only were subject to selection."

Scrip may not be issued in lieu of lands patented within the reservation."

1Kern Oil Co. v. Clarke (on review), 31 L. D. 288; Bakersfield Fuel and Oil Co. v. Saalburg, Id. 312; In re Cobb, Id. 220; Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 104 Fed. 20. See Garrard v. Silver Peak Mines, 82 Fed. 578; Wisconsin Cent. R. R. Co. v. Price, 133 U. S. 496, 10 Sup. Ct. Rep. 341; Olive Land and D. Co. v. Olmstead, 103 Fed. 568; In re Harrel, 29 L. D. 553.

231 Stats. at Large, p. 614.

8 Kern Oil Co. v. Clarke (on review), 31 L. D. 288; Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4.

Instructions, 28 L. D. 328; 31 Stats. at Large, pp. 558, 614. See, ante, § 143.

In re Hyde, 28 L. D. 284.

31 Stats. at Large, pp. 588, 614. See Arden L. Smith, 31 L. D. 184; In re Peavey, Id. 186.

7 Opinion, 28 L. D. 472. As to the right of the state to exchange sixteenth and thirty-sixth sections within the limits of forest reserves for other lands, see Hibberd v. Slack, 84 Fed. 571; State of California, 28 L. D. 57; Circ., Id., p. 195; In re Hyde, Id. 284.

One who desires to select lieu lands is required to tender with his relinquishment of land formerly held a formal application to make the selection.1

The selected land must be of the same area as that relinquished.2

200. Reservoir sites.-In addition to the reservations of public lands heretofore discussed, two other classes should be noted. Congress has provided for the selection of certain lands by the government for reservoir sites for irrigation purposes, and has provided for the location of reservoir sites by individuals and corporations engaged in the business of raising live-stock.

An act approved October 2, 1888,3 provided that the director of the geological survey, under the supervision of the secretary of the interior, should investigate the extent to which the arid regions of the United States could be redeemed by irrigation, and select sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows. The act contained the following reservation:

"And all the lands which may hereafter be designated

or selected by such United States surveys for sites for "reservoirs, ditches, or canals for irrigation purposes, "and all the lands made susceptible of irrigation by "such reservoirs, ditches, or canals, are from this time "henceforth hereby reserved from sale as the property "of the United States, and shall not be subject after "the passage of this act to entry, settlement, or occu"pation, until further provided by law."

So much of the foregoing act as provided for the withdrawal of the public lands from entry, occupation, 325 Stats. at Large, p. 526.

1 In re Tiers, 29 L. D. 575.

Circ. Inst., 29 L. D. 578, 580.

and settlement was repealed by the act of August 30, 1890,1 which provided that settlement and entries might be made upon said lands" in the same manner as if "said law [i. e. the law of 1888] had not been enacted," adding, however, "Except that reservoir sites here"tofore located or selected shall remain segregated "and reserved from entry or settlement as provided "by said act, unless otherwise provided by law, and "reservoir sites hereafter located or selected on public "lands shall in like manner be reserved from the date of "location or selection thereof."

The seventeenth section of the act of March 3, 1891,2 provided that reservoir sites theretofore selected and thereafter to be selected should contain only so much land as might be necessary for the maintenance of reservoirs, excluding, so far as possible, lands occupied by actual settlers at the date of selection.

Under these acts reservoirs were selected by the government. The land department held that under the act of 1888 a selection of a reservoir site took effect as of the date of the act, and that rights of settlers which accrued subsequent thereto would be invalidated by the selection of the reservoir site.3

Rights of settlers which accrued after the selection and prior to the act of August 30, 1890, are not protected.1

Mineral or other entries made under such circumstances may be suspended by the department to await the determination of the authorities in the matter of the actual location of the reservoir; and if it appears that

126 Stats. at Large, p. 391.

* Id., p. 1095.

3

Attorney-general's opinion, 11 L. D. 220; Mary E. Bisbing, 13 L. D. 45; Newton Austin, 18 L. D. 4.

4 George A. Cram, 14 L. D. 514.