exchanges of privately owned and State lands under section 8 of the Taylor Grazing Act (Cir. No. 1346). 55-192 Regulations of Aug. 28, 1934, to govern exchanges of lands in Apache, Navajo, and Coconino counties, Arizona (Cir. No. 1335). 55-362

Regulations of Nov. 20, 1935, governing amendment of regulations in re exchanges of State lands under section 8, Taylor Grazing Act (Cir. No. 1373). 55-396

Regulations of July 21, 1936, to govern exchanges of State school lands in Apache, Navajo and Coconino counties, Arizona, under section 3, act of June 14, 1934 (48 Stat. 960). (Cir. No. 1399.)

55-590

In connection with an application for exchange under section 8 of the act of June 28, 1934 (48 Stat. 1269), the State of Wyoming tendered a quitclaim deed to a portion of school Sec. 36, subject to the right-of-way of the Union Pacific Railroad Company over the land and to a reservation to itself, its successors and assigns, of all minerals and mineral rights in the premises described in the deed with the right to prospect for, mine and remove the

same.

The State acquired the land either under its grant in the enabling act of July 10, 1890 (26 Stat. 222), if not known to be mineral at the date of said act, or under the act of Jan. 25, 1927 (44 Stat. 1026), if known to be mineral at the first-mentioned date. The right-of-way was granted in 1869 under the land grant to the Northern Pacific Railroad Company of July 1, 1862 (12 Stat. 489). The State in its application disclaimed any interest in any minerals that might be in the right-of-way. Nevertheless, the Commissioner of the General Land Office as a condition to the acceptance of the deed required the State to file a quitclaim deed to the minerals within the right-of-way.

Held: (1) That the State took title under its grant subject to the right-of-way. (2) That the estate of the railroad was a limited fee on the implied condition of reverter in the event the company ceases to use or retain the land for the purposes for which it was granted. E. A. Crandell, 43 L.D. 556; Northern Pacific Railway Company v. Townsend, 190 U.S. 267, cited and applied. Great Northern Railway Company v. United States, 315 U.S. 262, dis

tinguished. (3) That if the State acquired the land under the act of July 10, 1890, its deed of the land conveyed no right, title or interest in the right-of-way, but, if on the other hand the State acquired the land under the act of Jan. 25, 1927, certain provisions of subsection (c) thereof as amended by the act of May 2, 1932 (47 Stat. 140), might mean that the grant would take effect upon the railroad rightof-way extinguished by forfeiture or abandonment were it not for the provisions of the act of Mar. 8, 1922 (42 Stat. 414). (4) That so far as the question as to whom the land is to go upon extinguishment of the right-of-way is concerned, the act of 1927 is general, whereas the act of 1922 is special relating only to the extinguishment of rights-of-way; that the act of 1927 does not purport to repeal the act of 1922 and there is no inconsistency between the two acts and, therefore, the act of 1927 will not be construed as repealing the act of 1922. United States v. Nix, 189 U.S. 199; Ex parte United States, 226 U.S. 420; Rodgers v. United States, 185 U.S. 83; Washington v. Miller, 235 U.S. 422, cited and applied. (5) That as the act of 1922 provides for the vesting of title in the land in the rightof-way to the person, etc. who holds the title to the land crossed by the right-of-way at the time of its extinguishment with reservation of mineral to the United States, the State would acquire no interest in the right-of-way under the act of 1927; that what interest it would acquire would be only under the act of 1922; but since the State by its deed to the United States divests itself of the land crossed by the right-of-way, the State could not acquire any interest therein under the act of 1922. (6) That the State has no present interest in the right-of-way and after the proffered deed is accepted it will not be able to acquire any interest therein under the act of 1922 in the future. (7) That as the deed conveys the land subject to the right-ofway and as the disposition of the land and minerals therein upon extinguishment of the right-of-way is governed by the act of Mar. 8, 1922, it is not so ambiguous in form as to cast any cloud on the title of the United States as to any minerals in the right-of-way, and a deed quitclaiming such minerals will not be required.

58-128

Questions relating to an exchange of lands with a State pursuant to section 8 of the Taylor Grazing Act, as amended, must be determined under the applicable law and regulations, and without regard to any purported agreement which may have been entered into between the State and an agency of the Federal Government which has no jurisdiction over the public lands involved in the proposed exchange. 60-322

An application made by a State to exchange lands outside of a grazing district pursuant to section 8(c) of the Taylor Grazing Act (48 Stat. 1269), as amended, may not be rejected because the consummation of the proposed exchange will interfere with the administration and disposal of the remaining public lands. 61-270

An application made by a State, pursuant to section 8(c) of the Taylor Grazing Act, as amended, to select lands withdrawn by either of the two Executive orders mentioned in section 7 of the Taylor Grazing Act (43 U.S.C., 1946 ed., sec. 315f) as amended, or within a grazing district may not be rejected merely because the lands may have been classified pursuant to section 7 as being suitable for disposition under another of the public-land laws.

61-277

Unless rights have been initiated in the classified lands, any prior classification thereof must be disregarded in considering a State's exchange application. 61-277

II. EFFECT OF APPLICATION Applications, properly filed by States to exchange State lands within a Taylor Act grazing district for other public lands, may be given the effect of segregating the lands applied for from further disposition under the public land laws pending disposition of the applications; but the selected lands may nevertheless be included in a grazing district, authority to do so being an integral part of the Secretary's power to determine whether a proposed exchange will benefit the public interests in regulating grazing on the public range under the Taylor Grazing Act. 55-9

Regulations of July 22, 1936, governing applications for exchanges of State lands under section 8, Taylor Grazing Act, as amended by act of June 26, 1936 (49 Stat. 1976). (Cir. No. 1398.)

55-582

Prior to its compliance with all the requirements of the statute and the supplementary regulations, a State applying for an exchange of lands under section 8 of the Taylor Grazing Act, as amended, does not acquire any rights in the selected lands, so as to prevent the withdrawal of such lands for public purposes. 60-322

A pending exchange application from a State under section 8 of the Taylor Grazing Act, as amended, constitutes a "valid claim" to the selected land within the meaning of the act of Mar. 19, 1948 (62 Stat. 83). 60-428

III. LANDS SUBJECT TO

A "valid claim" to public land may be less than a vested right in such land; and a pending exchange application from a State under section 8 of the Taylor Grazing Act, as amended, constitutes a "valid claim" to the selected land within the meaning of the act of Mar. 19, 1948 (62 Stat. 83), which added public lands to the Shasta National Forest subject to such claims, so that the selected land continues to be subject to selection by the State. 60-322

Where a portion of the land selected by a State in an application for an exchange under section 8(c) of the Taylor Grazing Act is subsequently withdrawn for reclamation purposes, the fact that the Department may have delayed in acting upon the State's application and thus prevented the State from fully complying, prior to the withdrawal of the selected land, with the requirements of the Department's regulations on State exchanges could not prevent the withdrawal order from becoming effective as to such land. 60-428

STATE GRANTS

A reservation by the United States for Indians, subsequent to the swampland grant of Sept. 28, 1850 (9 Stat. 519), within a region or territory formerly occupied by them but which had theretofore been ceded to the United States, was ineffective as to swamplands the inchoate title to which had already passed to the State. 52-615

The act of May 12, 1928 (45 Stat. 501), granting publicly owned lands in the Custer State Park to the State of South Dakota virtually repealed the act of Mar. 3, 1925 (43 Stat. 1185), and terminated the jurisdiction of the Land Department to

determine controversies between the State and mining claimants as to any asserted mining claims within the grant and to accept purchase money and issue patents on applications unperfected under the latter act at the date of the grant. 53-196

The granting act of May 12, 1928 (45 Stat. 501) governs in determining the rights of the State of South Dakota to lands in the Custer State Park where the application of the State to purchase under the act of Mar. 3, 1925 (43 Stat. 1185) was perfected by the acquisition of the mining title subsequent to the date of the later act. 53-203 The title of the State of South Dakota to lands in the Custer State Park under the granting act of May 12, 1928 (45 Stat. 501), attaches if and when the rights of the mining claimants are extinguished, and as between the State and such claimants the Land Department will not concern itself unless and until rights under the mining locations are asserted as the basis of an application for patent under the mining laws. 53-203

Tidelands and lands beneath navigable inland waters belong to the States within whose boundaries they are situated (or to the States' grantees).

STATE LANDS

60-491

The subsistence homesteads plan adopted to give effect to section 208 of the National Industrial Recovery Act contemplates ultimate fee simple title in the homesteader, so that lands donated by a State to the United States, to be used for subsistence homesteads and "allied projects", with the condition subsequent that when such use shall cease, the lands shall revert to the State, should not be accepted on behalf of the United States, for the reason that the condition incorporated is incompatible with the subsistence homesteads plan. 54-540

Where, prior to the admission of a Territory to statehood, an Indian reservation located therein had been established by the United States which included lands on both sides of a river traversing a portion of the reservation, and after the admission of the State into the Union an island formed in said river, the island is a part of the reservation and its status

Indian property, and not the property of the State. 55-475

STATE LAWS

Subterranean percolating water in the public lands is the property of the Federal Government and when artificially developed is not subject to any State law governing the appropriation of water. 52-554

The control of the flow and the appropriation and use of water, where no Government interest is involved, is governed by the local laws and customs of the State in which the stream is located.

52-633

One may convey water down a natural stream across tracts of public land so long as his rights to appropriate and use such water are maintained in accordance with the laws of the State affected.

52-634

The fact that the State of Washington, in ceding jurisdiction to the United States over the Mount Rainier National Park, reserved the right to serve criminal and civil process thereon and to tax the persons and property of park residents did not have the effect of extending the election laws of the State to include persons residing within the park, but a prior qualified voter in the State did not lose his right to vote at the place of his legal residence by reason of his entering the service of the United States on the reservation.

53-315

The privilege of voting and the qualifications of voters are primarly determined by State laws, and, however unwise or unjust they may seem, those laws are controlling if not in conflict with the limited provisions of the Federal Constitution on 53-316 that subject.

Section 963 of the Wyoming Compiled Statutes of 1920 is to be construed in conjunction with sections 993 and 994 of those statutes and, when so construed, the requirement in the former section that, before an irrigation district shall contract with the United States for the construction, operation and maintenance of an irrigation system for the benefit of the district, an election shall be held at which a majority of the qualified electors present and voting shall have voted in favor of such contract, is fulfilled where the voting

In the State of Arizona property acquired by a husband or wife during the marital status becomes community property and one-half of the property acquired by either becomes the property of the other by operation of law at the moment of its acquisition. 53-577

The procedure for the collection of defaulted interest upon the principal debt and of simple interest which may accumulate upon the interest due from a water user, water users' association, or irrigation district is to be governed by the terms of the contract or of the applicable Federal statute; but where neither the contract nor the statute is applicable because of the particular conditions, then the remedy is to be pursued in accordance with the law of the State in which the project is located. 54-86

The power of each State to regulate fishing in its rivers includes authority to restrict the devices and types of tackle which fishermen generally employ. 54-418

The power to preserve fish and game within its borders is inherent in the sovereignty of a State (citing Geer v. Connecticut, 161 U.S. 519; Ward v. Racehorse, 163 U.S. 504, 507). 54-418

Public land reserved by the United States, until disposed of by it, and in the absence of express legislation by Congress, is governed by the common law with respect to riparian rights and the effect of erosion and submergence, and not by the law of the State (Widdecombe v. Rosemiller, 118 Fed. 295). 54-455

In the case of navigable waters, the submerged lands do not belong to the Federal Government, having passed to the State upon its admission to the Union. In the case of lands bounded by nonnavigable waters, title to the submerged lands is surrendered if the patent for the marginal uplands issues without reservation or restriction. In either case, the effect of the grant on the title to the submerged lands will depend upon the law of the State where the lands lie. 55-310

In the State of Michigan, in the absence of words of reservation or restriction, or unless the contrary appears, a grant of land bounded by a water-course conveys riparian rights, and the title of the riparian owner extends to the middle line of the lake or stream. The shore proprietor takes by virtue of shore ownership, and his interest in the bed of the lake or stream is acquired as appurtenant to the grant, the extent of his interest depending upon his frontage and the form, length, and breadth of the body of water upon which his land abuts. 55-311

The fact that under the community property law of Arizona the husband is the statutory agent to manage and control the property does not, in the opinion of the Department, affect the character of the interest of the wife as an owner of community property. 57-1

The State of Florida is without power to enforce Chapter 19860, Laws of Florida, Special Acts, 1939, within the Seminole Indian Reservation in Hendry County, without the authorization of Congress, but insofar as the Florida law is a quarantine measure it may be enforced within the reservation, under the Congressional authorization in the act of Feb. 15, 1929 (45 Stat. 1185), upon such conditions as the Secretary of the Interior may prescribe.

57-162

Lands purchased by the Federal Government for Indian use and set apart under

the superintendence of the Government, whether proclaimed an Indian reservation or not, have the same status as an Indian reservation, and, therefore, the State of Wisconsin cannot enforce its criminal laws, including its fish and game laws, against the Indians on such lands. 57-295

Zoning is a proper exercise of the police power of a municipality, county or State. The courts have uniformly held that the United States may perform its functions without conforming to State, county or municipal police regulations. Land acquired by the United States in trust for Indians is, in effect, land of the United States. Zoning ordinances do not affect such lands. 58-52

The requirement of State licenses to hunt or fish on the ceded portion of the reservation (Wind River Reservation, Wyoming) may not be made a means of raising revenue.

58-331

The State may regulate hunting and fishing on the ceded portion of the reservation (Wind River Reservation, Wyoming), including fishing in Ocean Lake, except that the tribal councils may regulate hunting and fishing on such areas thereof as may be restored to tribal ownership pursuant to the provisions of the Shoshone Judgment Act (53 Stat. 1128; 25 U.S.C. 571-577). 58-331

The tribal councils may regulate hunting and fishing on the diminished portion of the reservation (Wind River Reservation, Wyoming) by Indians as well as non-Indians, and in particular they may regulate fishing on Bull and Ray Lakes on the diminished portion of the reservation.

58-331

Congress by the act of Feb. 8, 1887 (24 Stat. 388), subjected all allottees to the criminal laws of the States in which they resided. By the amendatory act of May 8, 1906 (34 Stat. 182), Congress withheld such jurisdiction until the issuance of fee simple patents to Indians allotted thereafter. Neither of these acts subjects unallotted Indians to the criminal laws of the States for acts committed within the reservations. 58-456

The Erie case describes the doctrine of Swift v. Tyson (304 U.S. 64 (1938)), as holding that under the Rules of Decision Act, 28 U.S.C. 725, Federal courts exer

cising jurisdiction on the ground of diversity of citizenship in trials at common law need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by its highest court but are free to exercise an independent judgment as to what the common law of the State is. The opinion then declares that this holding misconstrued the Rules of Decision Act and that except in matters governed by the Federal Constitution or by acts of Congress the rules of decision are those of State law, written or unwritten, and that there is no Federal general common law. 58-694

The Erie declaration by Mr. Justice Brandeis "There is no federal general common law" has been termed too broad. Since its pronouncement both qualified writers and Federal judges, among them Mr. Justice Brandeis himself, have recognized a Federal common law, a body of decisional law developed by the Federal courts, untrammeled by State court decisions. Mr. Justice Jackson, concurring in D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 447, interprets the Erie declaration and finds that Federal common law does exist. 58-695

The question as to whether a patent conveys land between a platted traverse line and the waters of a navigable stream, being a Federal question and governed by Federal law, is not required, by the decision of Erie Railroad Co. v. Tompkins, 304 U.S. 64, to be decided solely on the basis of State law. This case is, therefore, not governed solely by the North Dakota decision in Oberly v. Carpenter, 67 N. Dak. 495, 274 N.W. 509. 59-415

The general rule for establishment of side lines to divide alluvium between adjoining riparian owners along a river is to give each proprietor such proportion of the new shoreline as he had of the old shoreline. This is appropriately accomplished by measuring the whole ancient line of the river affecting the area involved and computing the portion of that line owned by each riparian proprietor; then measuring the whole length of the new shoreline and appropriating to each proprietor such portion of the new line as he had of the old line; and then drawing the side lines from the points at which the