citizens. Calhoun v. Violet, 4 Okla. 821 (47 Pac. Rep. 479). It is held that one who made an entry in violation of this statute and acquired peacable possession of public lands can maintain an action of trespass against one unlawfully dispossessing him. City of Oklahoma City v. Hill, 6 Okla. 114 (50 Pac.. Rep. 242). A settler who has entered public lands, has from such entry, an inchoate title, which is, in a legal sense, property, and subject to defeat only by his failure to comply with the conditions imposed by the act of Congress; such title will support an action by him for trespass committed after entry and before his right to a patent becomes absolute. Culbertson Irr. & Water-Power Co. v. Olander, 51 Neb. 539 (71 N. W. Rep. 298). A qualified homesteader who has settled upon a quarter section of the public lands and done all in his power to secure the land as his homestead and applied or tendered compliance with all of the provisions of the homestead law, necessary to complete his title to the land, and who has failed to acquire the legal title through no fault of his own, but through the wrongful actions of the land officers, has a prior equitable claim to the land, superior to the claim of the state and its grantees, who held the naked title with notice of his equities by reason of the fact that the land department had, by mistake and inadvertence, issued a patent to the land to the state. Roy v. Duluth & 1. R. R. Co., 69 Minn. 547 (72 N. W. Rep. 794). Act Congress, June 16, 1880 (1 Supp. Rev. Stat., p. 565), construed and applied-cancellation of entryrights and remedies of entrymen. United States v. Foreman, 5 Okla. 237 (48 Pac. Rep. 92). 25 U. S. Stat., 1005; 27 U. S. Stat., 642, construed and applied-second homestead entry in the Cherokee outlet-occupation by claimants pending contest. Clack v. Diehl, 5 Okla. 148 (48 Pac. Rep. 178).

Sec. 707. Conveyance of homestead lands. When a homestead entryman has complied with all of the requirements of the federal statutes applicable to the disposal of the tract of land occupied by him and has made his final proof, paid the amount of money required and received final certificate thereof, he has a complete equitable title to said land which he may convey. Flanagan v. Forsythe, 6 Okla. 225 (50 Pac. Rep. 152); Laughlin v. Fariss, 7 Okla. 1 (50 Pac.

Rep. 254). Construing Act Congress, March 3 1875 (18 Stat. 482); U. S. Rev. Stat., § 2288; Sand. & H. Ark. Dig., §§ 2762, 2770, 2781, it is held that a contract by a homestead claimant before he has proved up his homestead, made with a railroad company to convey to it five acres of the land to be acquired by him, for depot and other railroad purposes, when he has obtained his patent, is valid to the extent the land granted is, or would be necessary for railroad purposes. St. Louis & S. F. Ry. Co. v. Tapp, 64 Ark. 857 (42 S. W. Rep. 667). The relinquishment of a valid entry of land, under the timber culture act of Congress, constitutes a valuable consideration, and is not void against public policy. 21 U. S. Stat., 2d Ses., ch. 89, applied. Jones v. Dunbar, 52 Neb. 151 (71 N. W. Rep. 976).

Sec. 708. Mortgage of homestead lands-Liability for debts. Construing U. S. Rev. Stat., § 2296, providing that "no lands acquired under this chapter (relating to homesteads) shall in any event become liable to the satisfaction of any debt contracted prior to the issue of the patent therefor," it is held that a claim by one surety against another for contribution on account of his payment of more than his share of the debt becomes a debt only at the time of such payment, and where such excessive payment is made after the issuance of a patent to the delinquent debtor, the land is not exempt under the statute from his cosurety's claim for contribution. Shoemake v. Stimson, 16 Wash. 1 (47 Pac. Rep. 218). The statute includes a liability for a tort growing out of a breach of a contract warranting the title to personal property. Flanagan v. Forsythe, 6 Okla. 225 (50 Pac. Rep. 152). The statute does not exempt the land acquired under the homestead law from the payment of debts of a subsequent owner, although incurred prior to the date of the patent. Duell v. Potter, 51 Neb. 241 (70 N. W. Rep. 932). The exemption provided for by the statute does not apply to lands after final proof has been made and final or patent certificates issued therefor. Tarnsney, J., dissenting. Flanagan v. Forsythe, 6 Okla. 225 (50 Pac. Rep. 152). See opinion for extensive review of authorities. After the issuance of final certificate and before patent, the claimant may execute a valid mortgage upon the

land to secure a debt contracted at the time or theretofore existing. Fariss v. Deming Inv. Co., 5 Okla. 496 (49 Pac. Rep. 926); Howard v. Reckling, 31 Or. 161 (49 Pac. Rep. 961). Citing, Nycum v. McAllister, 33 Ia. 374; Orr v. Ulyatt, 23 Nev. 134 (43 Pac. Rep. 916); Boggan v. Reid, Wash. (20 Pac. Rep. 425); Townsend v. Fenton, 30 Minn. 528 (16 N. W. Rep. 421); Spiess v. Neuberg, 71 Wis. 279 (37 N. W. Rep. 417; 5 Am. St. Rep. 211); Kirkaldıe v. Larrabee, 31 Cal. 455 (89 Am. Dec. 205); Orr v. Stewart, 67 Cal. 275 (7 Pac. Rep. 693); Lewis v. Wetherell, 36 Minn. 386 (31 N. W. Rep. 856; 1 Am. St. Rep. 674); Lang v. Morey, 40 Minn. 396 (42 N. W. Rep. 88; 12 Am. St. Rep. 748); Cheney v. White, 5 Neb. 261 (25 Am. Rep. 487); Jones v. Yoakam, 5 Neb. 265.

Sec. 709. Patents - Validity-Construction-Conclusiveness. A patent for lands which have been reserved by the governmental authorities from disposal, is void. Klauber v. Higgins, 117 Cal. 451 (49 Pac. Rep. 466). U. S. Rev. Stat., § 2441, construed and applied-issue of patent upon void warrant because of duplicate having been issued. Boyd v. Mammoth Spring Imp. Co., 137 Mo. 482 (38 S. W. Rep. 964). In determining whether or not certain lands are included within a patent which has been issued for a long time, the acts of the parties claiming thereunder in reference to the land may be considered. Trustees of the Town of Easthampton v. Vail, 151 N. Y. 463 (45 N. E. Rep. 1030). It is proper to examine the survey upon which a patent is issued to aid in supplying omissions or correcting mistakes in the patent. Hagins v. Whitaker, Ky. (42 S. W. Rep. 751); Patrick v. Spradlin, Ky. (42 S. W. Rep. 919). For construction of patent to sea, marsh or swamp lands in the state of Lousiana, see, White v. Leovy, 49 La. 1660 (22 So. Rep. 931). For construction of particular patents of land to the town of Easthampton, N. Y., see Trustees of Town of Easthampton v. Vail, 151 N. Y. 463 (45 N. E. Rep. 1030). A patent will prevail over a certificate of a homestead entry made at an earlier date. Stringfellow v. Tennessee Coal, Iron & R. Co., 117 Ala. 250 (22 So. Rep. 997). A patent granted by virtue of a decree of

confirmation by the board of land commissioners, is conclusive against the government and all parties claiming under it by subsequent title. Los Angeles Farming & M. Co. v. Thompson, 117 Cal. 594 (49 Pac. Rep. 714). A patent issued by the land department, must be taken in an action at law as conclusive evidence of title in the patentee. Argonaut Consol. Min. & Mill Co. v. Turner, 23 Colo. 400 (48 Pac. Rep. 685; 58 Am. St. Rep. 245).

Sec. 710. Patents-Title conveyed by-Cancellation. While the naked legal title to land of the United States remains in the government until the issue of the patent therefor, the beneficial ownership or equitable title is vested in an entry man from the time he receives a certificate of purchase from the government, showing full payment therefor. A patent from the United States, issued in pursuance of, and based solely and exclusively upon, a prior entry accompanied by full payment of the purchase price, does not convey to the entry man a new and independent title disconnected with his equitable title derived from such entry and final payment, but converts the imperfect or equitable title into a perfect legal one, enabling the patentee to seek and maintain legal remedies where theretofore he was, in the absence of statute, confined to equitable ones. Hagan v. Ellis, 39 Fla. 463 (22 So. Rep. 727; 63 Am. St. Rep. 167). One in possession of land is always in a position to contest the right of another claiming under a void patent. Klauber v. Higgins, 117 Cal. 451 (49 Pac. Rep. 4C6). The rule is well settled that where the attempt is to annul or avoid grants, patents, or other solemn evidences of title, emanating from the government of the United States under its official seal, the great importance and necessity of the stability of titles demands that the effort to set them aside, annul or avoid them, or to correct mistakes in them, shall only be successful when the evidence is clear, strong, and satisfactory Miller v. Donahue, 96 Wis. 498 (71 N. W. Rep. 900); Citing, Maxwell Land-Grant Case, 121 U. S. 379-381 (7 Sup. Ct. Rep. 1015); U. S. v. Des Moines Nav. & Ry. Co., 142 U. S. 541 (12 Sup. Ct. Rep. 308); U. S. v. Budd, 144 U. S. 161 (12 Sup. Ct. Rep. 575).

Sec. 711. Water rights on public lands. A settler in possession of public land may appropriate a water right and transfer it and his right to possession to another by oral assignment, and the latter succeeds to his rights, though the transfer is without consideration. Wood v. Lowney, 20 Mont. 273 (50 Pac. Rep. 794); McDonald v. Lannen, 19 Mont. 78 (47 Pac. Rep. 648). Where several quarter sections of land were acquired by separate patents, the fact that they are contiguous does not extend a riparian right, which is appurtenant to one quarter section, to another, though both have come into possession of the same person. Behmer v. Big Rock Creek Irr. Dist., 117 Cal. 19 (48 Pac. Rep. 908). The right to appropriate water rights under U. S. Rev. Stat., § 2339, does not authorize one to interfere with the rights of a prior appropriator. Rio Grande W. Ry. Co. v. Telluride PowerTrans. Co., 16 Utah 125 (51 Pac. Rep. 146). For further construction of this statute see United States v. Rio Grande Dam & Irr. Co., N. M. (51 Pac. Rep. 674). A ditch constructed for mining purposes on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. Nonuser of a ditch, brought about by circumstances, over which the ditch owner has no control, is not evidence of abandonment of, or intention to abandon, such ditch. Welch v. Garrett, Idaho (51 Pac. Rep. 405). This case is followed and approved on the point first stated in the case of Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., Idaho (51 Pac. Rep. 990; 40 L. R. A. 485). of his rights as a prior appropriator, his freedom from negligence or his necessities, the operator of a placer mine has no right to deposit tailings in a running stream to the substantial injury of his neighbor's land. Fitzpatrick v. Montgomery, 20 Mont. 181 (50 Pac. Rep. 416; 63 Am. St. Rep. 622). See opinion for exhaustive discussion of this subject.

Regardless

Sec. 712. Miscellaneous notes. There is an implied license to the public to go upon the unappropriated lands of the United States and pasture stock thereon and cut the native grasses therefrom for the purpose of making hay. Mathews v. Great Northern Ry. Co., 7 N. Dak. 81 (72 N. W. Rep.