Acting Secretary Ryan to the Commissioner of the General Land (W. V. D.) Office, June 4, 1902. (J. R. W.) The Sierra Lumber Company, transferee of Augusta Romanoski, appealed from your office decision of March 25, 1902, denying reinstatement of the soldier's additional homestead entry of Augusta Romanoski, for the S. NE. 4, Sec. 27, T. 27 N., R. 6 E., M. D. M., Susanville, California. Frederick W. Romanoski was enrolled as a soldier in Company I, 10th Regiment of Cavalry, Missouri Volunteers, September 12, 1862, and was discharged, September 19, 1865, upon the muster out of Company H, 2d Mo. Cav. Vol., to which he had been transferred, and died in Crawford county, Missouri, March 11, 1869. July 10, 1869, Augusta Romanoski, in her own name, as the head of a family, at Boonville, Missouri, made homestead entry for the NW. NE. ‡ and NE. NW., Sec. 27, T. 40 N., R. 4 W., which was canceled, July 10, 1880, for abandonment. October 1, 1875, at Susanville, California, she made soldier's additional homestead entry, as widow of Frederick Romanoski, for the S.NE., Sec. 27, T. 27 N., R. 6 E., M. D. M., which was canceled by your office September 28, 1885, because the basis entry above mentioned had been previously canceled for abandonment. March 15, 1900, after an interval of about fourteen and a half years, as assignee of Augusta Romanoski, the movant made application for reinstatement of the additional entry so canceled. Your office decision of December 20, 1901, held that The right to an additional homestead under section 2306, R. S., is predicated upon a previous entry by the soldier for less than one hundred and sixty acres, and said soldier having failed to exercise said right during his lifetime, his widow by the provisions of Sec. 2307, R. S., did not become, as such widow, entitled to an additional homestead right under existing homestead laws, as the right had not become vested in him at the time of his decease. It is apparent that Augusta Romanoski, at the time of making such entry No. 1045, did not have any additional homestead right, that said entry was invalid and should never have been allowed by the local officers. Said application is therefore rejected. January 17, 1902, the Sierra Lumber Company filed its motion for review and reconsideration of said decision, and March 25, 1902, your office decision held that until the soldier dies the benefits conferred by section 2307 can not accrue; that upon his death, his widow, if unmarried, may exercise whatever right the soldier had; that if the soldier had not previous to his death made an entry under the homestead laws, he did not have an additional right, and she became entitled to enter and perfect title to 160 acres under sections 2304 and 2307, R. S., receiving the benefits from his military service to which he was entitled. She did not, however, become entitled to an additional entry under section 2306, a prior entry, by the sol dier, for less than 160 acres, being a conditional precedent to the benefits conferred thereby. See case of William Deary (31 L. D., 19), and departmental decision March 5, 1902, in case of Coffin, assignee of Gaffield. Said motion is therefore denied. The ground assigned for cancellation of the additional entry was erroneous. It is not essential to the additional right that the original entry should have been consummated. Instructions, 24 L. D., 502, 504; Ricard L. Powel, 28 L. D., 216. The fact that Mrs. Romanoski abandoned her original entry was, therefore, no ground for cancellation of the additional entry. Nor, in view of the Department, upon a proper construction of the act of June 8, 1872 (17 Stat., 333), was the ground assigned in your office decision of December 20, 1901, a proper reason to refuse reinstatement of the entry. The act of June 8, 1872, supra, gave to honorably discharged soldiers and sailors, and in case of their death to their widows and orphan children, the right to enter one hundred and sixty acres of land, irrespective of its classification as double minimum land. By the general homestead act the homestead right was restricted to eighty acres, or a half quarter section, of double minimum land. The act of June 8, 1872, granted an increased and more valuable right to the classes of persons therein named. The widow and orphan children of a deceased soldier or sailor were expressly named by the first section to be beneficiaries under it. Section 2 as amended March 3, 1873 (17 Stat., 605), then provides: That any person entitled under the provisions of the foregoing sections 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. Under this section, if Augusta Romanoski was the widow of an honorably discharged soldier or sailor and unmarried, she was by its express terms "entitled to all the benefits enumerated in this act," as belonging to one of the classes of persons to whom the right was granted. Had she taken no original homestead prior to the act of June 8, 1872, she might have entered in her own right a full quarter section of double minimum land, while under the general homestead act she could take only a half quarter section. Before passage of the act she had exercised her right under the general law and was by section 2 entitled to an additional entry, as she would be entitled to an original entry of one hundred and sixty acres under the provisions of section 1, except for the fact that she had previously made entry for a half quarter section only. Having made such entry, she was entitled under the act to an additional entry. This construction of the act is not inconsistent with departmental decision in William Deary (31 L. D., 19), as in that case no entry had been made by Samuel Meadow. He wandered away insane, and his wife, Mary A. Meadow, in his lifetime, in her own right as a deserted wife, and head of the family, made the entry upon which the additional right was claimed. Her husband had never exercised his right of homestead, and, had he recovered his reason, might have claimed the full benefits of the homestead act, notwithstanding her entry. Your office decision of March 25, 1902, in so far as it holds that no additional right arises under the act of June 8, 1872, to the widow unless an original entry was made by the soldier or sailor himself, is erroneous, and is reversed. It is not, however, clear upon the present state of the record that the additional entry in question should be reinstated. The movant appears to have allowed the erroneous cancellation of the entry to stand unquestioned from September 28, 1885, until March 13, 1900, and other rights may have in good faith intervened superior in equity to the movant's right. The movant should be required to make a showing that no adverse claim exists, or that the adverse claimant, if there be one, has been notified and given opportunity to be heard. The case is remanded to your office for further proceedings in accordance with this opinion. HUTTON ET AL. . FORBES. Motion for review of departmental decision of May 3, 1902, 31 L. D., 325, denied by Acting Secretary Ryan, June 7, 1902. LIEU SELECTION UNDER THE ACT OF JUNE 4, 1897. An entry or selection of public lands which is not so far perfected as to confer an equitable title or vested right, does not take the land included therein out of the operation of the mining laws; but, ordinarily, where an entry or selection of public lands is received and recognized by the local officers, it will, while pending, prevent the receipt or recognition of other applications for the same land, until such entry or selection is disposed of. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 9, 1902. (G. F. P.) April 23, 1900, Henry M. Porter filed selection, under the act of June 4, 1897 (30 Stat., 11, 36), for the NE. 4 of the NW. ‡ and S. 4 of the NW. of Sec. 26, the SE. of the NE. 4, the NW. 4 of the SE. of the SW. of Sec. 27, T. 6 N., R. 54 W., and the SE. 4, and NE. of the NE. of Sec. 18, and NW. of the SE. of Sec. 8, T. 6 N., R. 53 W., Sterling, Colorado, land district, in lieu of an equal quantity of land in a public forest reservation. The selection was accompanied by a duly recorded deed from the selector, purporting to relinquish and reconvey to the United States the base lands, an abstract of title, and an affidavit stating that the selected lands were non-mineral; but there was no proof that they were unoccupied. This imperfect selection, instead of being rejected at the time of its presentation, as it should have been, was erroneously received by the local officers and regularly forwarded to your office for consideration and action. It appears, however, that before said selection was acted upon by your office, to wit, on August 20, 1900, the local officers permitted one Thomas J. Landrum to make homestead entry for the SE. of NE. of Sec. 27, a portion of the land included in this selection. The selection was not acted upon by your office until May 16, 1901, when the absence of the required proof, showing the lands selected to be vacant, was noted, and also the conflict with Landrum's homestead entry, and, by your office decision rendered on that day, the selection was rejected for the reason that the failure to furnish non-occupancy proof could not be cured on account of the intervening homestead entry; from which decision the selector has appealed to this Department. Were the matter one solely between the government and the selector, the selection might be completed by the submission of the requisite proofs showing the lands to be of the character and condition subject to selection, the rights of the selector to be determined as of the date of the completion of the selection. Kern Oil Co. v. Clarke (30 L.D., 550); Gray Eagle Oil Co. v. Clarke (30 L.D., 570); Gary B. Peavey (31 L. D., 186); Charles H. Cobb (31 L.D., 220). Any entry or selection of public lands which is not so far perfected as to confer an equitable title or vested right, does not take the land included in such entry or selection out of the operation of the mining laws, but, ordinarily, where an entry or selection of public lands is received and recognized by the local officers such entry or selection will prevent the receipt or recognition of other applications for the same land, until such entry or selection is disposed of; and good administration therefore required that. pending the disposition of the selection in question, even though erroneously received, no other application including any portion of the lands embraced in said pending selection should have been accepted, and no rights will be accorded any subsequent applicant based merely upon the erroneous action of the local officers in accepting his application. The selector will, therefore, be allowed a reasonable time within which to complete his selection, by filing the requisite proofs, if he can do so, concurring in point of time, showing the lands selected to 6855-Vol. 31-01-23 be both non-mineral in character and unoccupied. If Landrum, misled by the erroneous action of the local officers, has settled upon the land covered by his homestead entry, he will be fully protected in his settlement, as the selector will be unable to make the required proof as to non-occupancy of the tract so settled upon. Your office decision is accordingly modified, and the record in the case is herewith returned to be disposed of in accordance with the views herein expressed. REPAYMENT-DESERT-LAND ENTRY-COMPACTNESS. JULIA B. Keeler. 64 The right to repayment of the purchase money paid on a desert-land entry will be recognized where the entry as allowed is in form prima facie non-compact, and it does not appear from the record that it was as nearly in compact from as the situation of the land and its relation to other lands will admit of," and was for that reason erroneously allowed and could not have been confirmed. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 16, 1902. (C. J.. G.) Julia B. Keeler, widow and heir of Julius M. Keeler, deceased, appeals from the decisions of your office of March 8, 1901, and May 6, 1902, denying her application for repayment of the purchase money paid by said Julius M. Keeler on entry made under the desert-land act of March 3, 1877 (19 Stat., 377), for fractional E. SW. 4, SE. 1, Sec. 31, W. SW. 4, SE. 4 SW. 4, SW. 4 SE. 4, Sec. 32, T. 16 S., R. 38 E., fractional W. NW. 4, Sec. 4, and fractional NE. 4, Sec. 5, T. 17 S., R. 38 E., Bodie, California, land district. The entry was made March 15, 1880, and canceled upon relinquishment March 31, 1884. Repayment is claimed under section 2 of the act of June 16, 1880 (21 Stat., 287), on the ground that “the entry was erroneously allowed and could not be confirmed" because the land embraced therein was not in compact form. The basis of your said office decision is as follows: Reference to the plat of survey of the tract embraced in Keeler's entry reveals the fact that it is bounded on the south and west by Owens Lake, and on the north and east by mountains, and that it was impracticable to readjust the boundaries of the entry in any way so as to bring it more completely within the rule of compactness as approved by this office without violating the statutory right of the entryman by requiring him to surrender a portion of the tract for want of compactness. In The Wheeler case (30 L. D., 355) clearly expresses the rule intended to govern in such matters where the facts are essentially the same. that case your office had reported, among other things, that the entry therein was not in compact form as made and that the records of your office failed to disclose any reason for the allowance of the entry in |