on October 20, 1892, the Tacoma Land Company applied to purchase said land under the provisions of the act of March 3, 1887, supra, claiming such right as grantee and bona fide purchaser from the Northern Pacific Railroad Company under deed dated December 30, 1874. The respective claims thus presented, among other claims to the same land, were prosecuted to the Department and, by said departmental decision herein before mentioned, the claim of Shrives to the land in question, under his alleged settlement, was fully considered and his homestead application therefor rejected, and the Tacoma Land Company was accorded the right to purchase said tract in pursuance to its application aforesaid, providing the same was found by your office to be otherwise regular.

October 31, 1898, motion for review of said departmental decision was denied (27 L. D., 575), and on January 19, 1899, your office closed the case as to Shrives and other adverse claimants, found that the proof submitted by said land company in support of its application to purchase was sufficient and in due form, and directed the local officers to allow said company to perfect cash entry for said land, in pursuance of such application, upon receipt of the necessary purchase money.

On November 19, 1898, notwithstanding said departmental decision, Shrives applied to file pre-emption declaratory statement for said tract, alleging settlement thereon October 1, 1885, and on December 12, 1898, the local officers allowed the same to be entered of record. December 20, 1898, Shrives filed notice of his intention to submit final proof, and notice was issued and duly published that such proof would be made before the register and receiver, February 3, 1899.

The Tacoma Land Company, on January 23, 1899, filed a protest against the submission of proof by Shrives, and, on January 25, 1899, said company tendered to the local officers the necessary purchase money for said tract and demanded that the same be accepted and receipt issued in accordance with the decisions of the Department and of your office, hereinbefore mentioned.

February 3, 1899, Shrives submitted final proof in support of his pre-emption claim, and the Tacoma Land Company appeared in support of its protest and cross-examined the witnesses offered by Shrives. At the same time, in response to affidavit filed by Shrives requesting that the authorities of the city of Tacoma be required, in accordance with the act of March 3, 1877 (18 Stat., 392), to elect what portion of the lands embraced within the corporate limits of said city should be withheld from entry, the said city appeared, by its mayor, who filed an answer in the case in the nature of a waiver of any claim to the land in controversy in virtue of the townsite laws. The answer of the city is duly verified, and sets forth, in substance, that the portion of the city of Tacoma, which is or has been settled upon, occupied, inhabited, or used for municipal purposes or purposes of commerce, trade,

or business, embraces fully 5,000 acres and is wholly upon private land; that the land in controversy, although within the corporate lim its of said city, has not been settled upon, occupied, inhabited, improved, or used for municipal purposes or for the purposes of trade or business, and that said city of Tacoma is not and never has been entitled to have said land or any portion thereof withheld from pre-emption or homestead entry.

Upon consideration of the proof submitted by Shrives, the local officers expressed their opinion to the effect that Shrives, in law and equity, was entitled to the land, but, following departmental decision of April 12, 1898, supra, and the instructions contained in your said office decision of January 19, 1899, they rejected Shrives' final proof, accepted the tender of purchase money by the Tacoma Land Company, and allowed said company to make cash entry of the land, which action of the local officers was affirmed by your office decision from which the appeal herein considered was taken.

The errors assigned are, in substance, that your office erred in holding that Shrives had not initiated a valid settlement right prior to passage of the act of March 3, 1887, supra, and in holding that he had not "lawfully initiated" a claim to the land within the saving clause of the act of March 3, 1891 (26 Stat., 1095), repealing the pre-emption law. Upon examination of the case of Tacoma Land Company . Northern Pacific Railroad Company et al., supra, involving this same land and to which case Shrives was a party, it is apparent that the questions now presented by the record herein are substantially identical with those involved in the former case in so far as Shrives was concerned therein. In reference to the claim of Shrives the Department then said:

The land was at the time of the claimed settlement of Shrives, and still is, within the corporate limits of the city of Tacoma, and no proceeding to subject the same to the settlement laws, under the act of March 3, 1877 (19 Stat., 392), was instituted or even requested so far as the record shows, prior to the repeal of the pre-emption law on March 3, 1891 (26 Stat., 1095). Shrives, therefore, had not "lawfully initiated" any claim to the land under the pre-emption law, which can be recognized under the saving clause of the repealing act.

And again, it was further said:

The record does not sustain the claim that Shrives initiated any settlement right to the land prior to the act of March 3, 1887, upon which the Tacoma Land Company's right to purchase is based, knowing that the land was claimed by the railroad company under its grant, and having at least constructive notice of its sale to the land company, as shown by the recorded deed, Shrives could not thereafter initiate any settlement right which would defeat the land company's right to purchase under the fifth section of the act. His settlement is not, therefore, protected by the proviso to that section and his application to make homestead entry will stand rejected.

It will be noted that while the claim of Shrives in said former case was presented under his application to make homestead entry, yet such

application was made under favor of the proviso contained in section 2 of the act of March 2, 1889 (25 Stat., 854), and was based upon the claim that he was, at the date of the passage of said act, a "pre-emption settler" upon said land and had initiated a valid claim thereto by reason thereof. It is therefore quite clear that all the rights of Shrives under his alleged settlement, both pre-emption and homestead, were fully considered, discussed, and adversely determined in said case, and there is nothing in the present record to cause the Department to in any manner modify or change its former ruling.

Moreover, section 2258 of the Revised Statutes of the United States expressly excludes from pre-emption "lands included within the limits of any incorporated town or selected as the site of a city or town." The land in controversy, at date of Shrives' alleged settlement, was, and ever since has been, within the incorporated limits of the city of Tacoma. In the case of Burfenning v. Chicago, St. Paul, Minneapolis and Omaha Railway Company (163 U. S., 321) a soldiers' additional homestead entry had been allowed and patent had been issued thereon for certain lands within the corporate limits of the city of Minneapolis, and the court held that, said lands having been reserved by act of Congress from homestead and pre-emption entry, the proceedings of the land department, in defiance of such reservation, although culminating in a patent, did not operate to transfer title to said lands.

The action of the local officers, therefore, in allowing Shrives to file declaratory statement and submit proof for the land in controversy under the circumstances hereinbefore set forth, in the absence of further instructions from your office or the Department, was erroneous, and your decision, affirming their subsequent action in rejecting said proof and allowing the Tacoma Land Company to make cash entry, is accordingly affirmed.

REPAYMENT-HOMESTEAD ENTRY CANCELED FOR CONFLICT.

WILLIAM H. CONLEY.

A homestead entry, made for land covered by a pre-emption declaratory statement, and subsequently canceled on the allowance of the pre-emption entry, is “canceled for conflict" within the meaning of the repayment act of June 16, 1880. Acting Secretary Campbell to the Commissioner of the General Land (S. V. P.) Office, September 19, 1900. (C. J. G.)

The Department has considered the appeal of William H. Conley from your office decision of July 25, 1900, denying his application for repayment of the fees and commissions paid by him on his homestead entry (Sioux Indian series) for the N. E. of Sec. 22, T. 104 N., R. 69 W., Chamberlain, South Dakota, land district.

The record of the case, as presented here, shows that on April 5,

1890, Charles J. Ashley filed pre-emption declaratory statement for the land described; that on February 24, 1899, William H. Conley made homestead entry for the land; that Conley filed a protest against the acceptance of the pre-emption proof offered by Ashley's heirs; that after a hearing upon said protest the land was awarded to said heirs; that Conley's entry was canceled by your office on August 10, 1899; and that on August 14, 1899, he applied for repayment of his fees and commissions, and on October 28, 1899, executed a relinquish

ment.

Your office denied the application for repayment on the ground

that

Conley's entry did not fail because of conflict with rights that had been established on February 24, 1899, nor because it had been erroneously allowed. It failed because he was mistaken in his judgment as to what constituted compliance with the pre-emption law. The repayment act was not framed to remedy mistakes of entrymen; but to afford relief when their claims have failed, or would have failed through fault or error upon the part of the government.

Section 2 of the act of June 16, 1880 (21 Stat., 287), authorizes repayment in the following instances:

In all cases where . . . . homestead entries . . . have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and cannot be confirmed.

Your office properly held that Conley's entry was not erroneously allowed" within the meaning of this section, as it is well settled that the filing of a pre-emption declaratory statement does not segregate the land covered thereby from the public domain; and hence Ashley's filing was no bar to the allowance of Conley's homestead entry. The Department does not concur, however, in the holding of your office that Conley's entry was not "canceled for conflict," within the meaning of said section. The ease of John C. Angell (24 L. D., 575, 577) contains an expression of the views of the Department in this matter. which may be readily adopted as pertinent to the case under consideration, as follows:

The filing of a pre-emption declaratory statement was not an entry of the land. Ever since the enactment of the pre-emption law it has been uniformly held by the land department that the filing of such declaratory statement does not segregate the land involved and does not withdraw it from entry. No decision to the contrary is attempted to be cited. A declaratory statement was an assertion by the pre-emptor of an intention to thereafter enter the land. That intention might be either carried into execution or abandoned. It has been the uniform practice in the land department to permit entries under the homestead, desert, and timber-culture laws of land embraced within existing pre-emption declaratory statements. These entries have always been treated as subject to the claim of the pre-emptor, and if he seasonably made his cash entry thereunder, any intervening entry of the same land was thereby defeated. If the pre-emptor failed to make his cash entry, the intervening entryman took the land. As to all persons other than the pre-emptor the intervening entryman had the prior and better right.

The allowance, therfore, of Angell's entry by the local land office was proper. It was not the case of an entry "erroneously allowed" within the meaning of the repayment statute. It was an entry in the allowance of which no error was committed. Angell's desert entry was not "canceled for conflict" but was canceled because of his voluntary relinquishment. Had either of the pre-emption claims rightfully proceeded to final proof, payment and entry before Angell's relinquishment, then, and not until then, there would have been a conflict between such pre-emption entry and the desert entry of Angell. The conflict so resulting would have required the cancellation of the desert entry to the extent that the same included land embraced within the pre-emption entry, and upon such cancellation a right to repayment would have accrued under the statute.

In Conley's case a relinquishment, which is required by the repayment statute, was not filed until after he had made application for repayment, and after the land had been awarded to Ashley's heirs and the pre-emption claim had “proceeded to final proof, payment and entry." At that time there arose a conflict between the pre-emption entry and the homestead entry, which necessitated the cancellation of the latter. Your office evidently failed to observe the distinction between the act of filing the declaratory statement. which did not operate to segregate the land, and the act of consummating the same by making final proof and payment, which was a segregation and ultimately defeated the homestead entry. It is true there was no conflict. until the pre-emption claim was perfected, but the statute does not provide that the conflict shall occur at the moment the homestead entry is allowed for land embraced in a pre-emption filing in order to warrant repayment, as appears to be the interpretation of your office, but it provides for repayment where the entry is canceled for conflict." which conflict, in a case like the one under consideration, is contingent on the completion of his filing by the pre-emption claimant. Prior to that time the land remained subject to entry, and it might be that the pre-emption claimant would not complete his filing, in which event no conflict would arise and the intervening homestead entryman would take the land. But if the pre-emption claimant should prove up while the homestead entry was still of record, then said entry would have to be canceled for conflict, and upon such cancellation a right to repayment would have accrued under the statute." It was upon this theory and understanding, implied at least, that Conley's homestead entry was made.

It is difficult to see in what respect the homestead entryman in this case is any more chargeable with error or mistake in making his entry, under the circumstances, than is the government in allowing him to make it. Both had equal knowledge of the conditions under which the entry was made. No deception or fraud was attempted or practiced, so far as the record shows.

As to the fact of Ashley's pre-emption declaratory statement being of record at the time Conley made his homestead entry, and that the 24368--Vol. 30—17