or treaty remained the property of Spain to be disposed of as desired by the latter. Certain articles of this movable property (office furniture) which it appeared had been, like the public buildings and other public works of the island, paid for from appropriations collected from the island, were ordered purchased from the Spanish government out of the insular funds collected by the United States. Held that the payment could legally be made as ordered, the property belonging to Spain and not to the "island government," there never having been an independent government for Porto Rico. Card 6828, August, 1899. 1584. When the treaty of peace with Spain took effect, April 11, 1899, the military government was in control in Porto Rico, and rightfully continued as the de facto government of the island exercising both executive and legislative powers,' subject to such constitutional limitations as were applicable. As the island had become territory of the United States, under the treaty, the Secretary of War was without power in the absence of congressional authority to alienate any part of the public domain, but held that he could, as representative of the President, lawfully license the temporary use of the same during the occupancy and government of the island by the military authorities. Card 6990, November, 1899. LEASE. 1585. By the River and Harbor Act of August 5, 1886, the United States formally accepted from the State of Ohio the Muskingum River Improvement, with all its franchises, appurtenances, water rights, &c., subject to any existing leases of water rights under leases granted by the State. The State, by its official representative, had made a lease to certain individuals which contained a clause providing for a forfeiture of the lease in case of an assignment without the sanction of the lessor. The lease was assigned to a third party without any formal sanction or concurrence on the part of the lessor, but the lessor, subsequently to the assignment, accepted rents from the assignee. Held that such acceptance amounted to an absolute waiver of the forfeiture clause, and made the lease valid in the hands of the assignee, investing him with all the rights of the original lessees, and was therefore binding upon the United States under the reservation of the act. 22, 45, January, 1888. 1586. The act of Congress approved Aug. 11, 1888 (25 Stats. 417), authorized the Secretary of War to grant leases or licenses for the 1Cross v. Harrison, 16 Howard, 164, 193. 2See Opinion of Atty. Genl. of July 26, 1899 (22 Opins., 544). * * * * * * use of the water powers on the Muskingum River at such rate and on such conditions and for such periods of time as may seem to him just, equitable and expedient and to grant leases or licenses for the occupation of such lands belonging to the United States on said Muskingum River as may be required for mill sites or for other purposes not inconsistent with the requirements of navigation." Under this statute two leases for periods of twenty years each were granted, but neither provided for a forfeiture of the term for non-payment of rent. Held, therefore, that the Secretary of War could not terminate them on account of non-payment of rent;1 and advised that the proper way to terminate them would be to have the lessees execute instruments surrendering their terms. Card 2096, March, 1896. See card 3242, January, 1900. 1587. Where a lease made to the United States, of land to be used for public purposes, contained no stipulation other than one for the payment of certain rent, held that such lease was not annulled by transfer under Sec. 3737, Rev. Sts., but was legally assignable. The case is deemed to be governed by the ruling of the Supreme Court in Freedman's Saving Co. v. Shepherd,' to the effect that Sec. 3737 did not apply to a lease so made, "under which the lessor is not required to perform any service for the Government, and has nothing to do in respect to the lease except to receive from time to time the rent agreed to be paid." 43, 175, October, 1890. 1588. Where rent was due by the United States for the occupation of a house which it had leased for a recruiting rendezvous, and the title to the premises was claimed both by the lessor and another person as parties to a pending suit in a court of chancery, adrised that if the rights of the parties to the rent were so involved in the litigation as to enable the United States to pay the amount of the rent into court and receive an acquittance therefor, this course would properly be pursued; otherwise that the payment should be withheld entirely until the question of title be determined and the United States be enabled to receive a final receipt from one of the parties or both jointly. 64, 15, 300, February and April, 1894. 1589. Where land was leased by the United States for a target range in the State of Texas and the lease contained a covenant for renewal at the end of the year at the option of the United States, held that unless the lease were acknowledged (or proved) and recorded as provided by the Statutes of Texas, such covenant would not be binding upon a purchaser for value without notice thereof.3 Card 2439, July, 1896. 'Taylor's Landlord and Tenant, eighth ed., § 489; Am. and Eng. Ency, of Law (1st edition), vol. 12, p. 758k. 2127 U. S., 494; 4 Comp. Dec., 43. As to how a lease containing a covenant for renewal should be renewed, see § 882, ante. 1590. Under the act of Congress approved July 28, 1892 (27 Stats. 321), the Secretary of War has authority, when in his discretion it will be for the public good, to lease for a period not exceeding five years and revocable at any time such property of the United States under his control as may not for the time be required for public use, and for the leasing of which there is no authority under existing law, provided that nothing in the act should be held to apply to mineral or phosphate lands. Under this act revocable leases have been granted in a number of instances. Cards 851, January and April, 1895; 1790, November, 1895; 2102, March and October, 1896; 4100, May, 1898. In practice the leases or assignments thereof are required to be in duplicate. Cards 178, 179, August, 1894; 414, October, 1894. Under the express terms of the act the Secretary of War has no authority to lease mineral or phosphate lands. Cards 3619, November, 1897; 6389, 6721, May and July, 1899. In a certain class of cases, to wit, where the parties applied for permission to construct certain buildings upon reservations and to build docks in a government harbor, revocable leases were granted in lieu of licenses.' Cards 3350, 3356, 3378, July, 1897. 1591. As there is no law requiring the Secretary of War to call for bids in leasing property under the act of July 28, 1892, the amount for which it shall be leased rests in his discretion. Card 273, September, 1894. 1592. The Secretary of War leased a part of a military reservation, the rent to be paid monthly during the continuance of the lease. The lease provided that the term should be three years from the twelfth day of July, 1894, but it was not in fact executed by the Secretary until Sept. 12, 1894. The lessee entered upon the reservation about the latter date and vacated the same on July 12, 1897, the date of the termination of the lease. Held that in point of computation the three years term dated from July 12, 1894, but that in point of interest the lease took effect only from the delivery of the instrument, and that therefore rent could be collected for only about two years and ten months. Card 273, July and October, 1897. LEAVE OF ABSENCE. 1593. The provision of the act of July 29, 1876, to the effect that officers shall enjoy the extended leaves of absence accorded by the act, "without deduction of pay or allowance," held to entitle such officers to receive their allowance for quarters, as well as their full pay for and See Opins. Atty. Gen. of May 19, and July 7, 1897, 21 Opins., 537, 565. 'See Taylor's Landlord and Tenant, eighth ed., § 70. 16906-01-28 during the period of absence. The word "allowance" must mean something must mean some pecuniary emolument distinct from pay: and the only allowance or pecuniary emolument allowed to officers, at the date of the act or since, is the allowance for quarters. XLIII, 277, April, 1880. 1594. Held, in estimating the period of the leave of absence to which a certain officer would be entitled under the provisions of Sec. 1265, Rev. Sts., and the act of July 29, 1876, without incurring a deduction from his pay, that a period during which he was permitted to be absent from his post, while under a sentence of suspension from rank, was not properly to be taken into account; such absence not being an absence of an "officer on duty" in the sense of the act of 1876, but an absence pending the execution of a sentence which, during its term, separated the officer from all duty. XLII, 306, May, 1879. 1595. Where an officer was granted by his department commander a specific leave of absence from his station, and was thereupon furnished with an order to proceed on a special detail to Washington, with authority to date his leave from his arrival at Washington; held that he was not thereby authorized to consider his leave as terminating at Washington, or his case as excepted from the general rule of par. 176 of the Army Regulations, which requires that the expiration of an officer's leave "must find him at his station;" and therefore that, on his return to Washington at the end of his leave, he did not revert to the status of being on duty, and was not entitled to an order (drawing mileage) to return to his station, but was in a status of being absent without leave, and was subject to a consequent loss of pay till he duly reported at his station. XLIII, 281, April, 1880. 1596. Held that G. O. 77 of 1886, and par. 1460, A. R. (1317 of 1895; 1468 of 1901), constituted a correct interpretation of the act of July 29, 1876, and a rule of application now to be observed in all cases of officers availing themselves of the privilege of cumulative leave of absence. 44, 271, December, 1890. 1597. Held that the Chief of Engineers was not a "department commander" within the meaning of A. R. 46 (see 56 of 1901) and was therefore without authority to grant leaves of absence to officers stationed at Willets Point, N. Y. Card 15, July, 1894. 1598. Held that to allow such student officers on duty at Fort Leavenworth, Kansas, as have made satisfactory records to absent themselves during the vacation after the June examinations at the end of 1A counter opinion of the Solicitor-General, in 16 Opins. At. Gen., 619, was not adopted by the Secretary of War. See par. 1337, A. R. of 1895 (1491 of 1901). 2 Compare opinion Court of Claims in Andrews r. United States, 15 Ct. Cls., 264. As to the right to mileage of an officer whose leave of absence is terminated by an order requiring him to return to his station, &c., see §§ 1669-1671, post. the first year without having such absences counted as regular leaves, would be inconsistent with the legislation of Congress on the subject of full pay leaves of absence and would amount to a substantial evasion of the law in any case where the granting of such a privilege would have the effect of allowing full pay absence in excess of what the law authorizes. Card 2307, May, 1896. LICENSE. 1599. A license is defined as a bare authority to do a certain act or series of acts upon the land of the licensor without possessing or acquiring any estate therein.' L, 619, August, 1886. The Secretary of War may, by revocable license, permit a temporary use, terminable at his discretion, as the public interests may require, of U. S. lands under his control, provided such license conveys no usufructuary interest in the land, and such use does not conflict with the purpose for which the land is held. XLIX, 490, November, 1885; Cards 285, September, 1894; 2961, February, 1897. The Secretary of War may grant to a civilian, not a government employee, a revocable license to reside and do business on a military reservation. Cards 304, 315, September, 1894. A formal acceptance of a license is not in general necessary: the grantee, by acting under it, sufficiently indicates its acceptance. 59, 418, May, 1893; Cards 155, December, 1894; 639, March, 1895. 1600. An instrument termed a revocable license, but which in effect is a grant of an interest, is in excess of executive authority and inoperative. Thus an executive permit to erect upon U. S. land a building amounting to a permanent improvement to be used and occupied, or disposed of, by the licensee at his discretion as his property, is not a legitimate revocable license; is in fact (or, if valid, would be) irrevocable as conveying a usufructuary interest. 38, 49, January, 1890; 56, 366, November, 1892. So, a so-called revocable license to reside upon and cultivate certain land of the United States at a fixed rental named, held really a lease at will, conveying a usufructuary interest and not legal in the absence of authority from Congress. 54, 212, June, 1892. 1601. A license to go upon land of the United States will not authorize the licensee to take public property therefrom. Held that the Secretary of War was not empowered to grant a revocable license allowing the licensee to gather the fruit from trees growing upon 1 Angell on Watercourses, 457. "A license confers no interest whatever in the land itself." 16 Opins. At. Ger:, 212. See also 19 id., 628. |