the form in which it was allowed. Accepting this report the Department held that the entry was not in compact form. The entry in question is equally as irregular in shape. It appears to have been the uniform practice of your office, certainly since the regulations of Sep tember 3, 1880 (2 C. L. L., 1378), and is the practice now, in cases where a desert-land entry was prima facie non-compact in form, to call upon the entryman to adjust the same so as to embrace a compact body of land, and in the event of his failure to do so, or to show cause why he should not be required to do so, to cancel the entry. No such call was made in this case, consequently no showing has been made by the entryman, or in his behalf.

The plats of survey show that the land in question is bounded on the south and west by Owens Lake. To that extent the statement contained in your office decision relative to the boundaries of said land is correct. But the statement that said land is bounded on the north and east by mountains, except possibly at the extreme southeastern portion, is not borne out by the plats of survey. On the contrary, the mountains to the north are a mile or more distant from the north line of the entry, leaving more than enough land before the mountains are reached to enable the entryman to adjust his entry in that direction without sacrificing quantity. The field notes show that the lands to the north and east of this entry, along the lines of survey, are of the same general character, "level" and "rolling," as that embraced in said entry. The adjacent and surrounding lands were vacant when this entry was made. The records of your office therefore are not at all conclusive 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, etc." It was evidently the purpose of the entryman in this case to secure as much land on the shore line or water front of the lake as possible, and this must have been apparent to the local officers when they allowed the entry.

The requirement of compactness of form is statutory, and the regulations above referred to are in part as follows:

The requirement of compactness of form will be held to be complied with on surveyed lands when a section, or part thereof, is described by legal subdivisions compact with each other, as nearly in the form of a technical section as the situation of the land and its relation to other lands will admit of, although parts of two or more sections be taken to make up the quantity or equivalent of one section. But entries which show upon their face an absolute departure from all reasonable requirements of compactness, and being merely contiguous by the joining of ends to each other, will not be admitted, whether on surveyed or unsurveyed lands.

In no case will the side lines be permitted to exceed one mile and a quarter, when the full quantity of six hundred and forty acres is entered. Where the entry embraces a less quantity than a whole section, or its equivalent, the limit to the side lines will be proportionately decreased.

The only material modification made in these regulations was in the case of Francis M. Bishop (5 L. D., 429), wherein the last paragraph

above was eliminated, it being held that the residue of said regulations was ample for the protection of the government and for the proper administration of the law. These regulations apply to entries made before as well as after their promulgation. Joseph Shineberger (on review, 9 L. D., 379). Their necessary corollary is that where an entry by legal subdivisions is not in the form of a technical section, or prima facie non-compact, in order to stand at all it must appear that it is as nearly in such form "as the situation of the land and its rela tion to other lands will admit of." In the cases cited by your office the entries were allowed to stand though irregular in shape, because it was conclusively shown to be impossible for the entrymen to adjust their entries, without sacrificing a portion thereof, owing to the presence of adjacent or surrounding entries, precipitous mountains, or such elevation of the land as to render it non-irrigable. So far as the record here discloses there never has been any evidence of this character in the present case. It is too violent a presumption to assume that the local officers were in possession of such evidence when they allowed the entry, especially as it appears to have been the practice at the time to receive applications to enter like the present one without objection. As stated, the plats and field notes fail to disclose any valid reason why the entry might not have been made more nearly in the form of a technical section, nor is any reason otherwise shown. The irresistible conclusion therefore is that, upon the face of the entry which shows a gross departure from any reasonable requirement of compactness, the entry was in fact non-compact in form and therefore allowed in violation of the statutory requirement, which precluded its confirmation. This is deemed sufficient to bring the case within the terms of the repayment statute.

The decision of your office is reversed, and, if there be no other objection, repayment will be allowed as applied for.

HOMESTEAD-SOLDIERS' ADDITIONAL-DECLARATORY STATEMENT.

FRED W. ASHTON.

The filing of a soldier's declaratory statement is not the equivalent of an entry, within the meaning of section 2306 of the Revised Statutes, granting the right to make a soldier's additional homestead entry to persons "who may have heretofore entered under the homestead laws less than one hundred and sixty acres of land."

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 19, 1902. (D. C. H.)

Fred W. Ashton, as assignee of George Turbush, has appealed from the decision of your office, rendered April 12, 1902, rejecting his appli

cation to enter, under section 2306 of the Revised Statutes, lot 5 of Sec. 2, T. 11 N., R. 8 W., Lincoln, Nebraska, land district, containing

8.80 acres.

The record shows that, April 25, 1874, Turbush filed a soldier's declaratory statement for lots 1 and 2 and the E. of the NW. of Sec. 18, T. 24 S., R. 6 W., Wichita, Kansas; that he made homestead entry of said land August 13, 1874, submitted final proof thereon May 7, 1881, and patent issued April 20, 1882.

The only question presented for consideration by the appeal is, whether or not, under a proper construction of the homestead laws, the filing of the declaratory statement is an entry and brings the case within the terms of section 2306 of the Revised Statutes, which limits. the right of additional entry to persons who may have heretofore entered under the homestead laws less than one hundred and sixty acres of land.”

It will be noted that although the declaratory statement was filed April 25, 1874, the entry of the land was not made until August 13, 1874, subsequent to the date of the approval of the Revised Statutes (June 22, 1874).

Section 2304 of the Revised Statutes provides that a soldier homestead settler "shall be allowed six months after locating his homestead, and filing his declaratory statement, within which to make his entry and commence his settlement and improvement," and section 2309 provides that "such claimant under section 2304 in person shall within the time prescribed make his actual entry, commence settlements and improvements on the same, and thereafter fulfill all the requirements of the law." The aforesaid sections of the Revised Statutes plainly show that the filing of a soldier's declaratory statement is not an entry but simply the initiation of a right by which the land described in the statement is held for six months for the benefit of the declarant, and that to secure the right thus initiated entry, settlement, and improvement must follow the filing of the declaratory statement within six months. Snyder ». Ellison (5 L. D., 353); Joseph M. Adair (8 L. D., 200); Wood v. Tyler (22 L. D., 679).

66

As the statute (Sec. 2306, R. S.) limits the right of additional entry to persons who may have heretofore entered under the homestead laws less than one hundred and sixty acres of land," and as it appears that the entry here in question was made after the date of the approval of the Revised Statutes, it follows that this case does not come within the terms of the aforesaid section of said statutes, and that the action of your office in rejecting Ashton's application was right and proper. Your office decision is accordingly affirmed.

COMMUTATION OF AND SECOND HOMESTEAD ENTRIES-ACT OF MAY

22, 1902.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., June 19, 1902.

Registers and Receivers, United States Land Offices.

GENTLEMEN: Your attention is called to the provisions of section 2 of the act of Congress of May 22, 1902 (Public-No. 122), entitled, "An act to allow the commutation of and second homestead entries in certain cases," which reads as follows:

That any person who, prior to the passage of an act entitled “An act providing for free homesteads on the public lands for actual and bona fide settlers, and reserving the public lands for that purpose," approved May seventeenth, nineteen hundred, having made a homestead entry and perfected the same and acquired title to the land by final entry by having paid the price provided in the law opening the land to settlement, and who would have been entitled to the provisions of the act before cited had final entry not been made prior to the passage of said act, may make another homestead entry of not exceeding one hundred and sixty acres of any of the public lands in any State or Territory subject to homestead entry: Provided, That any person desiring to make another entry under this act will be required to make affidavit, to be transmitted with the other filing papers now required by law, giving the description of the tract formerly entered, date and number of entry, and name of the land office where made, or other sufficient data to admit of readily identifying it on the official records: And provided further, That said person has all the other proper qualifications of a homestead entryman: And provided also, That commutation under section twenty-three hundred and one of the Revised Statutes or any amendment thereto, or any similar statute, shall not be permitted of an entry made under this act, excepting where the final proof, submitted on the former entry hereinbefore described, shows a residence upon the land covered thereby for the full period of five years or such term of residence thereon as added to any properly credited military or naval service shall equal such period of five years.

Under said section any person may make another homestead entry who, prior to the passage of said act of May 17, 1900 (31 Stat., 179), made a homestead entry for lands in the ceded Indian reservations affected by said act of 1900, supra, and perfected the same and acquired title to the land by final entry under section 2291, U. S. R. S., or by commutation under section 2301, U. S. R. S., or any amendment thereto, or any similar statute, by having paid the price provided in the law opening the land to settlement.

You will require each applicant for another entry hereunder to furnish sufficient data whereby his former entry may be identified, and show that he has all the other qualifications of a homestead entryman.

It will be observed that an entry made hereunder can not be perfected by commutation under section 2301, R. S., or any amendment thereto, or any similar statute, excepting where the final proof, submitted on the former entry "hereinbefore described," show a resi

dence upon the land covered thereby for the full period of five years, or such term of residence thereon as added to any properly credited military or naval service shall equal such period of five years.

An application for patent to a lode mining claim may embrace ground lying on opposite sides of an intersecting patented millsite, provided the lode or vein upon which the location is based has been discovered in both parts of the lode claim. Departmental decision herein of February 10, 1899, 28 L. D., 120, modified.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 19, 1902.

(A. B. P.)

This is a motion for review of the decision of the Department, dated February 10, 1899 (28 L. D., 120), in the matter of mineral entry, No. 28, made by the Combination Mining and Milling Company, for the Paul Jones lode mining claim, Missoula, Montana, land district.

The published decision contains a diagram showing the relative positions of said lode claim and the Gladstone mill site, the latter dividing the former into two parts, the smaller or northerly part containing the discovery tunnel and all other improvements. The lode claim was located January 19, 1891, and application for patent thereto filed June 1. 1893. The mill-site claim was located September 17, 1886, application for patent thereto, embracing also the Gladstone lode claim, was filed August 29, 1887, entry was made December 29, 1887, and patent was issued thereon December 2, 1892. In view of these facts, and the patent as to the mill site being for non-mineral land, your office held that the entry for the Paul Jones lode claim could only stand for one or the other of the two parts of the claim, giving the claimant, however, the privilege of retaining the larger or southerly part, provided it should show a discovery of mineral thereon, and that $500 have been expended in labor or improvements upon that part of the claim." Upon appeal, such holding was affirmed by the Department in its said decision; and at the same time there was declined therein the proposed surrender to the United States of the title to the ground in conflict between the said mill site and the Paul Jones lode claim, with a view to embracing such ground in a patent to be issued for the lode claim, said company claiming to have acquired the title to such ground and alleging that the same was known to be mineral land at the date of application for patent to the mill site.