will not interfere with your

fied before it for examination and action, and it is the application for such order which I am now considering. Orders for hearings are discretionary with you, and the Department exercise of that discretion, unless a clear case of its abuse is shown. With all the facts in this case before you, you declined to revoke your order for a hearing, and under rule 81 of Rules of Practice, and the decisions of the Department, an appeal from such decision will not lie. While as a rule an entryman should not be called upon to defend against issues already litigated, or charges which are evidently unfounded, still the Department will not interfere with your discretion in ordering a hearing, as already stated, unless a clear abuse of such discretion is shown. This was held in the case of Reeves v. Emblen (9 L. D., 584); Fletcher v. Roode (10 L. D., 250), and in numerous other cases of earlier and more recent date.

I do not find such an abuse of your discretion in this case as calls for the intervention of the Department, and the application is therefore denied.

RIGHT OF WAY-CANAL-SURVEY-DUPLICATE MAP.

KERN VALLEY WATER Co.

The survey of a canal under the right of way provisions of the act of March 3, 1891, should show the width of the canal at places where the lines depart from the .width established at the initial point.

Where the lines of survey cross the section and quarter section lines, the distance to the nearest established corner of the public survey should be noted on the map. The certificate of the register should show that a true and correct duplicate map of survey is filed.

Acting Secretary Chandler to the Commissioner of the General Land Office, December 22, 1891.

I am in receipt of your letter of December 5, 1891, transmitting the articles of incorporation of "The Kern Valley Water Company," with the certificate of organization and copy of the laws of California, under which it was incorporated, together with a duly verified map of its canal, of which you say a duplicate was filed in your office.

The said canal is located in Visalia land district, California. The papers relating to the corporation, organization, etc., appear to be in due form and in compliance with law, and they will be accepted as correct and placed on file.

It appears that this canal was constructed several years before the passage of the act of March 3, 1891, relating to canals and reservoirs, the company having been organized in May, 1887, and that the survey and map, in duplicate, are made and filed that the company may secure the right of way under said act.

The canal begins at a point on the section line between sections 14 and 15, T. 30 S., R. 24 E., M. D. B & M., and ends near the center of

the SE Sec. 19, T. 27 S., R. 22 E., a distance of twenty-four miles and eleven chains. The survey was made by running a traverse line along each side of the canal fifty feet distant from the water line. The initial point is determined by reference to a section corner, but the terminus is not fixed by any reference to the public survey. An inspection of the map shows that it varies very much in width at different points, and the width is not given except at the initial point, which is shown to be 3.75 chains-247 feet between the lines of the survey, these being each fifty feet from the water line. The lines from this point depart from a parallel 2o 35' for a distance of thirty-five chains, which would add to the width about one hundred and forty feet. Some of the lines depart over twenty degrees from a parallel, for some distance followed by converging lines; so that the canal in some tracts is on an average wider than it is in others.

The field notes of the survey appear to be carefully made, and the width at the various points may be determined by latitude and departure, but it is not the business of the local officers or the adjoining proprietor to do this. The width at the various points should be given on the map.

In addition to this the distance from the several points where these lines cross the section and quarter-section lines, to the nearest established corner on such line, should be ascertained and noted on the map. The public lands over which this canal passes will be sold subject to the easement granted the company; it is therefore important that the lines and points be definitely fixed and determined with reference to established corners of the public surveys.

The map presented cannot be approved in its present form. It, and the duplicate, will be returned, that the survey may be completed and the map show the matters indicated. The certificate of the register should show that a true and correct duplicate is filed.

SCHOOL LANDS-INDEMNITY-SELECTIONS.

STATE OF SOUTH DAKOTA.

The provisions of section 2276, R. S., restricting school indemnity selections to the land district in which the losses occur, are repealed by the act of February 28, 1891.

Acting Secretary Chandler to the Commissioner of the General Land Office, December 22, 1891.

I am in receipt of your letter of December 30, 1890, transmitting the appeal of the State of South Dakota from your decision of November 24, 1890, rejecting list No. 1 of indemnity school selections made by the State of South Dakota, upon the ground that said selections are not male within the limits of the land district in which the losses occur,

as required by the acts of February 26, 1859 (11 Stat., 385), and May 20, 1826 (4 Stat., 179), which have been incorporated in the Revised Statutes as sections 2275 and 2276.

From this decision the State appeals, contending that the selections made by the State of South Dakota as indemnity to compensate deficiencies for school sections lost in place, or where the 16th and 36th sections by reason of their character are not subject to the school grant, are not controlled by the act of February 26, 18.9, but by the 19th section of the act of February 22, 1889 (25 Stat., 676), providing for the admission of said State into the Union, which provides:

That all lands granted in quantity or as indemnity by this act shall be selected under the direction of the Secretary of the Interior, from the surveyed, unreserved, and unappropriated public lands of the United States within the limits of the respective states entitled thereto.

The act of February 26, 1859 (Revised Statutes, sections 2275 and 2276), is a general provision, applicable alike to all the States, and is retained as part of the grant for school purposes by the 10th section of the act of February 22, 1889. L. H. Wheeler, 11 L. D., 381; Sharpstein v. State of Washington, 13 L. D., 378.

Said sections are not in conflict with the 19th section of the act of February 22, 1889, for the reason that the language employed in said act, that school indemnity selections shall be selected "from the unsurveyed and unappropriated public lands of the United States within the limits of the respective states entitled thereto," merely indicates that said selections should be made of public lands within the limits of the respective states provided for in said act, and could not be made of other public lands. But while the four states provided for in said act were required to make those selections within their respective limits, they were also bound to select them within the limits of the district in which the losses occurred, as provided by section 2276.

Section 2276, which provides that such indemnity "shall be selected within the same land district," was repealed by the act of February 28, 1891, which provides "That the lands appropriated by the preceding section shall be selected from any unappropriated, surveyed public lands, not mineral in character, within the State or Territory where such losses or deficiencies of school sections occur." (26 Stat., 796.)

The express purpose of this act was to remove the restriction requir ing the lands selected to be within the same district, and if the list is in all other respects valid and regular, I see no reason why it may not be submitted for approval.

Your decision is reversed.

SURVEY-INITIAL POINT-STANDARD PARALLEL.

INSTRUCTIONS.

The Department will not approve a contract for the establishment of an initial point of survey by means of a traverse line, where the point when thus established would be of doubtful certainty.

Secretary Noble to the Commissioner of the General Land Office, December 16, 1891.

I am in receipt of your letter of November 27, 1891, transmitting letters from the surveyor-general of Montana, dated October 23, and November 11, 1891, with reference to the survey of certain townships in the Kootenai river valley near the Idaho boundary line.

It appears from the statements made by the surveyor-general that the Great Northern Railway is about to be constructed through that section of country, and he desires to contract for the survey of four townships along the line of the road.

These townships are located a long distance from any public surveys and the surveyor-general states,

The expense of getting a starting point in this vicinity will in any event, be considerable, and but four townships can be surveyed at this time, but once such a be ginning is made in this region surveys can be extended as appropriations will permit.

The surveyor-general further states,

It is practically speaking, impossible to extend either the seventh or eighth standard parallel into this country, this because of very rugged mountains, which would render any compensation which could be paid by the government totally inadequate, and no deputy can be found who will undertake it.

In view of this condition of affairs, the surveyor-general asks authority to contract for the establishing of an initial point of survey by means of a traverse line run along the line of the railroad bed for a distance of about fifty-five miles, and he asks authority to pay for the same the maximum rate allowed by law for standard and meander lines. There is doubt as to the authority conferred by law for the payment of this rate for the survey of a traverse line. It could only be allowed on the theory that said line was a temporary standard line. Again the line would run along the ground which has been cleared of timber and undergrowth for the purpose of grading the railroad, hence the survey would not be made under the difficulties and with the obstacles contemplated by the law allowing the maximum rates. In addition to this, however, I have very grave doubts as to the wisdom of attempting to establish a starting point for a survey, other than taking the standard parallel as said initial point. The way proposed to establish so important a point, is an unusual way, and the point when thus established would be, at best, of doubtful certainty.

The surveyor-general reports that it is impossible to have the stand. ard lines correctly run for the rates that are now allowed by law.

Before this vast region of country can be correctly surveyed these standard lines must be established, and no doubt adequate provision will be made for that purpose. Under the present showing, I do not see my way clear to approve the request of the surveyor-general, and must decline to do so.

STATE SELECTION-APPLICATION FOR SURVEY.

STATE OF MONTANA.

An application of the State for the survey of lands, with the view to their selection under the act of February 22, 1889, does not operate to withdraw such lands from settlement; nor is there any authority in the Department to withhold such lands from settlement or entry until opportunity has been given the State to select the same after survey.

Secretary Noble to the State Board of Land Commissioners, Helena, Montana, December 16, 1891.

Your communication under date of August 7, 1891, relating to the selection of lands granted to your State has been carefully considered. It is stated that finding no available unappropriated surveyed lands out of which to satisfy the several grants made by the act of February 22, 1889 (25 Stat., 676), you made application to the surveyor-general of Montana" for the survey of certain unsurveyed and unappropriated public lands in said State to satisfy the same." These applications which stated that the lands described "will be hereafter selected under prescribed departmental regulations to satisfy the grant of the United States to Montana for educational and other purposes," were approved by the Commissioner of the General Land Office and surveys begun. You further state that numerous persons are settling upon these lands, that you assert no claim to land upon which settlement was made prior to your application for survey, and that if the right of the State does not attach until the surveys are approved "we will lose the benefit of our superior vigilance in procuring surveys, and this means the loss of the entire grant to the State."

Your position is substantially stated in the following sentence in your communication:

Under the foregoing premises and statement of facts we contend that the legal ef fect of our application for surveys operates as a withdrawal of such lands from settlement, in other words, we sustain the same relations to these lands under the grant as a settler does who occupies the same as a home and asks a survey thereof for the purposes of perfecting his title.

It should be borne in mind in considering this proposition that the settler acquires no right to the land claimed by him by virtue of his application for a survey. His right is initiated by settlement authorized by the terms of the law. The mere application for a survey would not in either case confer any right to the land. The act making the grants to to this State instead of allowing selections of unsurveyed