to the permittee of a lease without competitive bidding covering all coal discovered, provided the permittee has cooperated in the exploration by the Government in the manner specified in the agreement, and with the understanding that any such lease shall provide such special terms of rental and royalty and such other requirements with respect to minerals discovered by the Government as the Secretary of the Interior may deem appropriate. A similar agreement should be executed with an applicant for a lease who has made a coal discovery under a prospecting permit and with an applicant for an extension of a prospecting permit who has made substantial improvements or investments for prospecting under his permit. No agreement is required where there has been filed and not yet granted an application for a permit or for an extension of a permit under which no substantial improvements or investments have been made. The Bureau of Mines should request the General Land Office to deny any such application when the Bureau of Mines intends to explore the area itself. No agreement with a prospecting permittee is necessary where the Bureau of Mines intends to explore for minerals other than those covered by the prospecting permit.

57-478

Automatic expiration of a permit, as distinguished from cancellation by affirmative action of the Commissioner of the General Land Office (now Director, BLM) is provided for only at the end of 4 years from date of issue of the permit. 59-239

While prior to the issuance of a permit any person who has an interest is allowed to submit evidence against the issuance of the permit, the permit must not, after its issuance, be placed in jeopardy in a collateral proceeding instituted by a third person claiming that no permit should have been issued in the case because no prospecting was necessary to establish the coal character of the land. 59-239

VI. RENTALS

The provision in section 7 of the act of Feb. 25, 1920 (41 Stat. 437), relating to the payment of annual rentals in connection with leases issued pursuant to that act, is mandatory and nothing contained in that section or in any other section of

Land in the actual possession of another under color of title and claim of right is not "vacant public land subject to homestead entry" and is not, therefore, subject to selection under the act of June 4, 1897 (30 Stat. 11). 53-447

The county records showing a claim of title to land under mesne conveyance from a homesteader and payment of taxes by a successor in interest under the belief that he had title and the presence of improvements on the land are notice to a selector that the land was claimed and in actual possession of another under color of title and not, therefore, subject to selection.

53-454

A purchaser in possession of land under a contract to purchase is an owner within the contemplation of section 3 of the act of Feb. 27, 1925 (43 Stat. 1013), which provides that erroneously meandered lands in the State of Wisconsin may be divided among the owners of the surrounding or adjacent tracts and is, therefore, entitled to the preference right privilege accorded by section 2 of that act. Boone v. Chiles (10 Pet. 177), and Williams v. United States (138 U.S. 514). 53-613

Land that has been cut off by avulsion from a tract of land owned by the United States abutting on a watercourse retains its status as public land, but one who has held and occupied it for many years under claim or color of title may acquire title thereto under the act of Dec. 22, 1928 (45 Stat. 1069) or under some other applicable public-land statute as against one attempting to enter it under the homestead law. 54-102

By a long-settled rule of the Land Department, homestead claimants are charged

with knowledge that land in the actual possession and occupancy of one under claim of right or color of title is not subject to entry by another. 54-112

Where an owner of patented land had an old fence which enclosed some adjoining public land, such owner has no claim or color of title to the enclosed public land entitling him to purchase the same under the act of Dec. 22, 1928. It would not be good admininstrative practice to allow subdivisions of public land to be divided and disposed in metes and bounds surveys privately made except in very unusual cases where mistakes in location have been made on account of defects in the official surveys and substantial equities are involved. Fences placed at variance with the true lines cannot afford ground for departure from the rectangular system of surveys of public lands in order to conform to such irregular fence lines. 56-31

A protest against a private exchange application under section 8 of the Taylor Grazing Act is without merit: (1) Where a protestant alleging that for more than 50 years the land in the selection has been occupied, used and in part fenced in with his family ranch, first by protestant's father and then by himself, "adversely to all the world and under a claim of right" makes no showing regarding the part enclosed of any compliance at any time with the requirements of the Unlawful Inclosures Act of Feb. 25, 1885 (23 Stat. 321, 43 U.S.C. 1062); (2) Where protestant claims a right to purchase all said lands under the Color of Title Act and prays to be allowed to do so but upon being advised of the procedure to follow fails to file an application for purchase making the required showings; (3) Where protestant also asserts that on numerous occassions he tried to obtain title to the selected lands and was unable to do so, but where departmental records show that neither protestant nor his father has ever applied to the United States for any form of entry or purchase of these lands; (4) Where despite assertion of peaceful, adverse possession of all these lands for over 50 years neither protestant nor his father ever filed with the Government any objection to the several applications for them recognized by the Government during that period or to

the appropriation made of them by a homestead entry existing from 1918 to 1924; (5) Where protestant has at no time initiated any action to establish or protect any existing valid right which he may have thought himself to possess in these lands; (6) Where at the same time he asserts color of title to these lands protestant makes an incompatible offer to exchange base lands for the selection; (7) Where protestant has acquired no right in or on the lands of the unenclosed portion of the Federal range in the selection through pasturing his livestock thereon, inasmuch as neither before nor since approval of the Taylor Grazing Act has Federal policy or law permitted such use to create any right to the lands or to their exclusive occupancy when as here they are part of a "common use area" for which several individuals have permits. 58-779

No patent may be issued under the Color of Title Act of Dec. 22, 1928 (45 Stat. 1069, 43 U.S.C. 1068, 1068a), for any tract to which there is a conflicting claim adverse to that of the applicant, unless and until such claim shall have been finally adjudicated in favor of such applicant. 59-435

Where an application for a tract under the Color of Title Act was rejected by a Bureau official on the ground that the applicant's predecessors in interest had no color or claim of title to the land and the applicant had been put on notice early in his possession of the land that title was in the United States, and the applicant failed to appeal from such decision within the time allowed by the Department, he cannot, years later, reassert his claim under the Color of Title Act, to the prejudice of another person whose intervening ap plication to enter the land under the homestead laws has been allowed. 60-380

II. APPLICATIONS

Instructions of Apr. 15, 1929, color of title claims to public lands; adverse possession; (act of Dec. 22, 1928, 45 Stat. 1069) (Cir. No. 1186.) 52-611

A State may properly be regarded as a "citizen of the United States" within the meaning of that term as used in the Color of Title Act, and may apply for the benefits of the act. 60-465

III. APPRAISED VALUE

Under Color of Title Act (45 Stat. 1069), establishment of sale price at current market value of land as of the date of appraisal, exclusive of values resulting from development or improvement of the land by the applicant or his predecessors, is not erroneous where the land is business property intended to be devoted to business use. 60-106

IV. GOOD FAITH

In the administration of the public lands, the rule has been long settled that land held in good faith under claim of title was not subject to appropriation by others under the public-land laws while so occupied and claimed, and the Supreme Court has held that a claimant in this situation who has been misinformed or has misunderstood his rights and paid a valuable consideration for the land, may, in the discretion of the Department, have title withheld in the United States until, "within the limits of existing law or special Act of Congress," he may obtain title to the land which he holds under color of title. 55-73

Where the record of a State selection shows that notice of cancellation thereof was served on the Surveyor General and Register of the State Land Office, and that no action was taken by the State to substitute valid base and make good the selection, and claimant of the land under the State selection admits in his protest and subsequent contest against a later timber and stone application for the land that he knew of the cancellation and does not allege that his predecessors in title had no timely notice thereof, and official notices issued by the State Land Office show service of such notice of cancellation on his ancestor in title, those who held the asserted title from the State and their successors in interest must be charged with notice that the certificate of purchase from the State and any deeds purporting to convey rights thereunder did not convey title to the land and that henceforth occupancy of the land was without claim in good faith under such a title. 56-241

The act of Dec. 22, 1928 (45 Stat. 1069) requires that occupancy in good faith under claim and color of title should be in good faith, and there can be no such thing

as good faith in an adverse holding where the party knows that he has no title, and that, under the law, which he is presumed to know, he can acquire none by his 56-242 occupation.

Applicant who knew title to land was in the United States at the time when he purported to acquire it from his predecessor in interest does not hold color of title in good faith. 60-106

The fact that land may have been held by other persons in good faith for more than 20 years under color of title does not justify the issuance of a patent under the Color of Title Act to one who thereafter purchased the land with knowledge that title was in the United States. 60-329

The fact that the required good faith of an applicant to obtain a patent to public land under the Color of Title Act was not questioned by the Bureau of Land Management in allowing the application and in appraising the land does not preclude consideration of the factor of good faith on appeal by the applicant from the decision of the Bureau on the appraisal. 60-329

V. IMPROVEMENTS

The Color of Title Act of Dec. 22, 1928 (45 Stat. 1069), being a remedial act, a strict and literal construction of its provisions not in harmony with its spirit and purpose should be avoided. Accordingly, the removal of loose stone to render land more arable, the clearing of brush to render it tillable, the diversion of water from swampy land to render it reclaimable, and similar acts effecting improvement, may properly be held a compliance with the act's requirement that "valuable improvements have been placed on such land."

55-73

Mere occupancy of public lands and making improvements thereon give no vested right therein against the United States or any purchaser therefrom and an occupant must show that he occupies the land under some proceeding or law that at least gives him a right of possession. Mere use of public land for grazing is by sufferance of the United States and not by right. 56-242

There can be no possession of public land under claim or color of title based upon mere construction, maintenance, and use of a reservoir for stock-raising pur

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

One who acquires more than 160 acres of land, which by operation of law becomes community property at the moment of its acquisition, is not the proprietor of more than 160 acres within the meaning of the homestead law if his undivided interest does not exceed that amount.

53-577

The President properly delegated to the Secretary of the Interior the President's functions with respect to coordinating the activities of the several departments and other agencies of the Government as they relate to oil and gas matters, and the President's powers and functions in connection with the administration of the Connally "Hot Oil" Act. 59-552

CONSTITUTIONAL LAW

Congress has the power at any time before the right of an Indian allottee becomes vested in the land to change the manner of the allotment. 52-688

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 exercising 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 unwrit

ten, and that there is no Federal general common law. 58-694 In its petition for certiorari in Standard Oil Co. of California v. United States, 309 U.S. 654 (1940), the Department of Justice, relying on Board of Commissioners v. United States, 308 U.S. 343, 350, argued that Federal law controls when the right to be enforced springs from the holding of property by the Government in a sovereign capacity under the Constitution and that the measure of damages in a conversion of United States oil is not to be determined by State law under Mason v. United States and Erie v. Tompkins but is primarily a matter of Federal law as to which a Federal court may formulate a judicial rule in the absence of express Federal legislation. 58-695

Limitation of the Erie doctrine (304 U.S. 64 (1938)) to diversity cases is suggested by the peculiar relation to all its factors to the diversity jurisdiction; by its nonextension thus far to cases in the subject-matter jurisidiction; by observations in subsequent opinions; and by decisions in which questions affecting the United States as a party have been decided as Federal although they have not been expressly answered by Federal Constitution, treaties or statutes.

58-695

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 (1942), interprets the Erie declaration and finds that Federal common law does exist.

58-695

The Supreme Court not having stated its grounds for denial of certiorari in this case, the Government's argument is not foreclosed. Further, it appears reinforced by subsequent decisions expanding the definition of Federal questions. For the Congress has occupied the field of public lands under the Constitution and, in statutes of various types, has recognized a duty to

protect the public property in its care and to enforce the public's rights against trespass, whether civil or criminal. The whole question of trespass and enforcement of Federal rights against it may therefore be considered primarily a matter deriving from Federal sources, both policy and law, even in the absence of an express statute, and as such a Federal question would be subject to Federal decisional law rather than to the rules of the State, whether written or unwritten. 58-695

Decision that measure of damages for trespass on Federal property is a Federal question would make both the Mason and the Erie cases (260 U.S. 545; 304 U.S. 64), inapplicable to trespass cases and would require the instructions to state that in the absence of express Federal legislation only Federal decisional rules of damage control. 58-696

The foregoing (Mason case, 260 U.S. 545) considerations are persuasive both that the Erie decision (304 U.S. 64) is inapplicable here and that trespass on Federal property is a Federal question controlled by Federal decisional law under the exception to the Rules of Decision Act. At present however there is no compelling legal reason for revision of the instructions to accord with these assumptions. 58-696

Damages for unlawful uses of Government lands are controlled by the law of trespass and its rules for the measure of damages, not by provisions of statutes or of regulations fixing charges for corresponding lawful uses. 58-708

A withdrawal order which neither enhances nor diminishes existing rights does not deny equal protection of the laws to a prior applicant for a potassium prospecting permit. 59-289

A released-time program under which pupils are released from public schools for purposes of religious instruction is not per se unconstitutional as violative of the First Amendment. A released-time program under which public-school pupils would be released during one period in the school day for religious instruction under the auspices of churches designated by their parents or guardians, but under which the religious instruction would be given at places provided by the churches and the public-school authorities would assume no