(dissenting). As will appear from the plat attached to the majority opinion, the appellee Poland has entered and acquired title to approximately 320 acres of land in the district of Alaska, in a single body, by soldier’s additional homestead right. It occurs to me that this was a plain and palpable violation of the Act of March 3, 1903 (32 Stat. 1028 [48 U.S.C.A. § 371]), extending the homestead laws of the United States to the district of Alaska, and providing, among other things, that: “No more than one hundred and sixty acres shall be entered in any single body by such scrip, lieu selection, or soldier’s additional homestead right.”
*391A brief reference to the legislative history of this right and to the decisions of the department thereunder will throw some light on the object of the proviso in question. Section 2304 of the Revised Statutes (43 U.S.C.A. § 271 and note) provides that every private soldier and officer who served in the army of the United States during the Rebellion for 90 days, and who was honorably discharged, and has remained loyal to the government, shall be entitled to enter and receive patents for a quantity of public lands not exceeding 160 acres on certain terms and conditions not material here. Section 2306 (43 U.S.C.A. § 274) provides: “Every person entitled, under the provisions of section twenty-three hundred and four, to enter a homestead who may have heretofore entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres.”
In Webster v. Luther, 163 U.S. 331, 16 S.Ct. 963, 41 L.Ed. 179, it was held that this additional right was transferable without restriction.
In the case of Ole B. Olsen, 33 Land Dec. 225, it was held that the assignee of two or more soldiers’ additional homestead rights may locate them as one right upon the same tract of land, provided they equal in the aggregate the amount of land so located.
In the case of Kiehlbauch v. Simero, 32 Land Dec. 418, it was held that the quantity of land which an assignee of a soldier’s additional right may enter is not restricted'by the Act of August 30, 1890, c. 837 (26 Stat. 391), providing that: “No person who shall after the passage of this act, enter upon any of the public lands with a view to occupation, entry or settlement under any of the land laws shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws, but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry or settlement, is validated by this act.”
Or by the Act of March 3, 1891, c. 561 (26 Stat. 1101), providing that the act of August 30, 1890, supra, “shall be *392construed to include in-the maximum amount of lands the title to which is permitted to be acquired by. one person only agricultural lands and not to include lands entered or sought to be entered under mineral land laws.”
By letter of instructions from the Secretary of the Interior to the Commissioner of the General Land Office under date of June 29, 1905 (33 Land Dec. 606), the same view is again asserted.
The Act of May 14, 1898, entitled “An Act extending the homestead laws and providing for right of way for rail-' roads in the district of Alaska, and for other purposes” (30 Stat. 409), provides that: “The homestead * * * laws of the United States and the rights incident thereto, including the right to enter surveyed or unsurveyed lands under provisions of law relating to the acquisition of title through soldiers’ additional homestead rights, are hereby extended to the district of Alaska, subject to such regulations as may be made by the Secretary of the Interior; and no indemnity, deficiency, or lieu lands pertaining to any land grant whatsoever originating outside of said district of Alaska shall be located within or taken from lands in said district. Provided, that no entry shall be allowed extending more than eighty rods along the shore of any navigable water, and along such shore a space of at least eighty rods shall be reserved from entry between all such claims, and that nothing herein contained shall be so construed as to authorize entries to be made, or title to be acquired, to the shore of any navigable waters within said district. And it is further provided, that no homestead shall exceed eighty acres in extent.”
By letter of instructions from the Secretary of the Interior to the Commissioner of the General Land Office under date of December 4, 1902 (31 Land Dec. 442), it was declared that this proviso did not limit the number of entries that might be made by an assignee of several additional soldier’s rights under section 2306 of the Revised Statutes (43 Ú.S.C.A. § 274). The letter in question reads as follows:
“This department is in receipt of your letter of November 21, 1902, requesting instructions as to whether or not the last proviso to section 1 of the Act of May 14, .1898 (30 Stat. 409), places a limitation upon the right of the assignee *393of a soldier’s additional right of homestead entry under section 2306 of the Revised Statutes, so as to prevent the assignee of several of such additional rights from making several entries of eighty acres each thereunder of public lands in the district of Alaska. Said proviso is as follows: ‘And it is further provided that no homestead shall exceed eighty acres in extent.’
“You express the opinion that the number of entries that may be made by an assignee is not limited by the terms of this proviso, and in this conclusion the department concurs. The limitation is placed upon the acreage that may be included in a single homestead entry, and cannot apply to an assignee who in the exercise of the additional right does not seek to take in any one entry more than eighty acres.”
These instructions were followed in a very few months by the Act of March 3, 1903 (32 Stat. 1028), containing the proviso above quoted “that no more than one hundred and sixty acres shall be entered in any single body by such .scrip, lieu selection, or soldier’s additional homestead right.”
From the foregoing it will be seen that prior to the passage of the act of March 3, 1903, there was (a) no limitation on the quantity of land an assignee of soldiers’ additional homestead rights might acquire in the district of Alaska, and (b) no limitation on the quantity of land that might be embraced in a single application or location, provided the assigned rights equaled in the aggregate the quantity of land located upon. The appellee Poland made two applications for approximately -320 acres of land in a single body on the same day, as assignee of four separate soldiers’ additional homestead rights, and has received patents therefor. There is no reason why the four rights might not have been embraced in a single application or location, and had they been the violation of the statute would be too obvious to admit of question. The statutory prohibition is against acquiring more than 160 acres in a single body by soldier’s additional homestead right, not merely a prohibition against acquiring more than 160 acres in a single application or under a single location. Could then the appellee, by making two applications or locations instead of one, and by drawing an imaginary line between the two surveys, thwart the will of Congress and defeat its declared policy? The question suggests its own answer. I see no *394connection between the proviso that no more than 160 acres of land shall be entered in any single body and the further proviso that no entry shall be allowed, extending more than 160 rods along the shore of any navigable water. The former proviso is complete in itself and speaks for itself. It first appeared in the amendment of 1903 and was intended to accomplish some purpose. How it got there is not material. Suffice it to say it is the law of the land. The purpose of the amendment, however, is disclosed in the legislative history of 'the act set forth in the majority opinion. The Senate favored the abrogation' of the additional homestead right entirely in the district of Alaska; but as a matter of Compromise, no doubt, the right was retained, limited, however, to the right to acquire 160 acres in any single body. As already stated, if this legislation only compels the assignee of such rights to so marshal them that not more than 160 acres will be included in a single application or entry, the act accomplishes no useful purpose. The manifest object was to prohibit the acquisition of large bodies of land in the district of Alaska under soldiers’ additional homestead rights, and if the majority opinion prevails that object ■can readily be defeated. I am also of opinion that the affidavit to the effect that survey No. 242 “is more than eighty rods distant from any other survey or entry under the provisions of said act of May 14, 1898,” was false whether intentionally so or not; but, if not false, the second patent' issued through a manifest mistake which is equally within the corrective power of a court of equity.
The decree should be reversed.