entries for townsite purposes, when it is made to appear that the same is needed for such use, and that the same reservations are to be made therefrom for like public purposes.

The territorial act of February 27, 1895, above referred to, and by authority of which said plat was vacated, is as follows:

Section 1. That in all cases where a homestead entryman has perfected his title to the land embraced in his homestead entry or any subdivision thereof, under the provisions of section 22 of the organic act, and in so doing has made reservations for parks and for schools and other public purposes, and the patentee or proprietor or proprietors of all the lots in any such townsite or addition thereto, desire to vacate the same or the plat thereof, it shall be lawful so to do as in this act hereinafter provided.

Sec. 2. Any plat of any townsite or addition thereto or any subdivision of land mentioned in section 1 of this act (except the reservations for parks and for schools and other public purposes and one street leading to any interior reservation), may be vacated by the original patentee thereof, at any time before the sale of any lots therein by a written instrument declaring the same to be vacated, duly executed, acknowledged or proved and recorded in the same office with the plat to be vacated; and the execution and recording of such writing shall operate to destroy the force and effect of the plat and the recording of the plat so vacated (except the reservations for parks and for schools and other public purposes and the excepted street leading to any interior reservation), and to divest all public rights in the streets and alleys laid out as described in such plat; and shall also operate to withdraw the lands so vacated from the corporate limits of the city, town or village of which it may have theretofore constituted a part or been included. And in case where any lots have been sold the plat may be vacated as herein provided, by all the owners of lots in such plat joining in the execution of such written instrument.

The application of the city for patent was rejected by your office in virtue of the act of Congress of May 11, 1896 (29 Stat., 116-117), which act is as follows:

That in all cases where a town site, or an addition to a town site, entered under the provisions of section twenty-two of an act entitled "An act to provide a temporary government for the Territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes," approved May second, eighteen hundred and ninety, shall be vacated in accordance with the laws of the Territory of Oklahoma, and patents for the public reservations in such vacated town site, or addition thereto, have not been issued, it shall be lawful for the Commissioner of the General Land Office, upon an official showing that such townsite, or addition thereto, has been vacated, and upon payment of the homestead price for such reservations, to issue a patent for such reservations to the original entryman.

If the original entryman shall fail or neglect to make application for the reservations within six months from the vacation of such townsite, or from the passage of this act, the reservations shall be subject to disposal under the provisions of section twenty-four hundred and fifty-five of the Revised Statutes of the United States, as amended by the act approved February twenty-sixth, eighteen hundred and ninetyfive.

Sec. 2. That if a patent has already issued, or shall hereafter issue, for any such reservation, to any town or municipality, such town or municipality, upon the vacation of the town site or addition thereto, as aforesaid, may sell the same at public or private sale to the highest bidder after thirty days' public notice of such sale, and convey said lands to the purchaser by proper deed of conveyance, and cover the pro24368-Vol. 30—23

ceeds of such sale into the school fund of such town or municipality: Provided, That where, by reason of the vacation of an entire town site and all its additions, the municipal organization has ceased to exist, the reservations in such vacated town site which may have been patented to the town may be disposed of as isolated tracts under the provisions of section twenty-four hundred and fifty-five of the Revised Statutes of the United States, as amended by the act approved February twenty-sixth, eighteen hundred and ninety-five.

This statute provides a mode, exclusive of all others, for the disposition of public reservations within vacated townsites and additions thereto, where "patents for the public reservations in such vacated townsite, or addition thereto, has not been issued." First, a preferred right of purchase is accorded the original entryman; second, if such right is not exercised the land then becomes subject to sale as an isolated tract. In this case no patent for the reservation in question has issued, and its future disposition must be governed by section 2455 of the Revised Statutes as amended February 26, 1895.

The decision of your office is affirmed.

There is in the record an application by Henry J. Sturgis to enter the tract in question under the homestead law. This application is returned, with the record, for appropriate action by your office.

GREAT SIOUX LANDS-SECTION 21, ACT OF MARCH 2, 1889.

CIRCULAR.

Commissioner Hermann to registers and receivers, Bismarck, North Dakota, Huron, Pierre, Chamberlain, Rapid City, South Dakota, and O'Neill, Nebraska, April 21, 1900.

The second proviso to section 21 of the act of March 2, 1889 (25 Stat., 888), reads in part as follows:

That all lands herein opened to settlement under this act remaining undisposed of at the end of ten years from the taking effect of this act, shall be taken and accepted by the United States and paid for by said United States at fifty cents per acre, which amount shall be added to and credited to said Indians as part of their permanent fund, and said land shall thereafter be part of the public domain of the United States, to be disposed of under the homestead laws of the United States and the provisions of this act.

By President's proclamation of February 10, 1890, said act was declared to be in full force and effect. The period of ten years mentioned consequently expired on February 10th last.

The lands in said reservation not appropriated prior to February 11, 1900, are, by reason of the legislation quoted, a part of the public domain, and entries therefor will hereafter be reported under the publie land series, but settlers will be required to pay the price fixed in

section 21 of said act of March 2, 1889, for all lands not previously entered, the language of the act in regard thereto being as follows:

That each settler, under and in accordance with the provisions of said homestead acts, shall pay to the United States, for the land so taken by him, in addition to the fees provided by law, the sum of one dollar and twenty-five cents per acre for all lands disposed of within the first three years after the taking effect of this act, and the sum of seventy-five cents per acre for all lands disposed of within the next two years following thereafter, and fifty cents per acre for the residue of the lands then undisposed of.

As regards lands entered prior to February 11, 1900, the prices to be paid by settlers are as stated on page 61 of office circular of July 11. 1899, and entries will be reported as heretofore under the Sioux Indian Series.

Approved:

E. A. HITCHCOCK, Secretary.

REPAYMENT-DESERT-LAND ENTRY.

WILLIAM D. WHEELER.

Repayment of the first instalment of the purchase money paid on a desert-land entry will be allowed where the entry did not conform to the statutory requirement in the matter of compactness and was for that reason erroneously allowed and could not have been confirmed.

Where an entry was erroneously allowed, and could not have been confirmed, the reason which led the entryman to relinquish his entry is of no moment and can not affect the right of repayment given to him by the express terms of the statute.

Departmental decision in the case of Francis E. Easton, 27 L. D., 600, overruled. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) November 28, 1900. (C. J. G.) December 22, 1879, William D. Wheeler made desert-land entry No. 266, for the S. of NW. and S. of NE. 4 of Sec. 5; the S. of NW. 4, S. of NE. 4, the SE. 4, and the SW. of Sec. 4, T. 20 N., R. 3 E. (containing 640 acres), Helena, Montana, land district.

July 31, 1884, your office canceled said entry for failure on part of the entryman to make final proof and payment.

February 7, 1899, Wheeler made application for repayment of the first instalment of the purchase money paid by him upon said entry, alleging that the same was not in "compact form" as required by the desert-land act, and therefore was erroneously allowed and could not be confirmed.

December 14, 1899, your office, having reference to the case of Francis E. Easton (27 L. D., 600), made the following requirement of Wheeler:

It will also be necessary for the applicant to demonstrate under oath in what respect his entry was not in the compact form required by the act of March 3, 1877

(19 Stat., 377), and to show that he abandoned his entry solely because of his knowledge or belief that it could not be lawfully confirmed.

The case is here now on appeal from this requirement.

The provision requiring compactness in a desert-land entry is found in the last proviso to the first section of the desert-land act of March 3, 1877 (19 Stat., 377), and is in the following words:

Provided, That no person shall be permitted to enter more than one tract of land which shall be in compact form.

...

September 29, 1900, your office was requested to report (1) whether Wheeler's entry as made was in compact form, (2) whether an entry in this form was permitted under the practice in force at the time his entry was made, and (3) whether, had compliance with law in other respects been shown, said entry would, under the rulings, have passed to patent.

October 5, 1900, your office reported (1) that the entry was not in compact form, (2) that prior to the issuance of the circular of instructions, dated September 3, and approved September 14, 1880 (Vol. 2, Copp's Public Land Laws, p. 1378), many entries had been allowed that were not in compact form, little attention being given to this requirement of the law and entries such as that of Wheeler having, apparently, been received without objection by your office, (3) that unless it had been clearly shown that the entry was as compact as the surrounding entries and the topography of adjacent lands would permit, the entry could not have been confirmed, that is, passed to patent, (4) that the records of your office do not disclose any reason for the allowance of this entry in the form in which it was allowed.

Under the instructions referred to, desert-land entries were required to be 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." In the case of Joseph Shineberger (on review, 9 L. D., 379), it was held (syllabus):

The requirement of "compactness" is statutory, and an entry in obvious violation thereof is not protected by the fact that it was made prior to the issuance of departmental instructions with respect to said requirement.

Accepting the report of your office, it appears that the land embraced in Wheeler's entry was not in compact form. The entry was apparently therefore erroneously allowed and could not have been confirmed.

These facts bring the case within the terms of the second section of the act of June 16, 1880 (21 Stat., 287), which authorizes repayment

In all cases where homestead or timber-culture or desert-land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and can not be confirmed.

In the case of Francis E. Easton, supra, cited by your office, right to repayment was denied, although it appeared that the entry was made for land that did not belong to the United States either at the time when the entry was allowed, or when it was subsequently relinquished, and the reason assigned in said decision for such denial was that the entry had been relinquished by the entryman and that the relinquishment was due to an intention to abandon and surrender all riglats under the entry, and not to any knowledge or belief that the entry was erroneously allowed and could not be confirmed. That decision fails to give effect to the plain language of the repayment act. Easton's entry was erroneously allowed, and could not have been confirmed, and the reason which led him to relinquish his entry was under these circumstances of no moment and did not affect the right to repayment given to him by the express terms of the statute. That decision is overruled.

The action of your office in requiring Wheeler to show that he abandoned his entry solely because of his knowledge or belief that it could not be lawfully confirmed, is accordingly vacated, and if upon further consideration, your office is still of opinion that the entry did not conform to the statutory requirement in the matter of compactness, and was hence erroneously allowed and could not have been confirmed, repayment will be allowed as applied for.

MINERAL LAND-CRYSTALLINE DEPOSITS-NATURAL CURIOSITIES.

SOUTH DAKOTA MINING Co. . McDONALD.

Land not shown to contain deposits, in paying quantities, of any of the mineral substances usually developed by mining operations, but which appears to be valuable and to be desired by the parties attempting to secure title thereto chiefly because of a cave or cavern the entrance to which is situated thereon, and for the crystalline deposits, and formations of various kinds, such as stalactites, stalagmites, geodes, etc., found therein, which are made the subject of sale by the parties not as minerals but as natural curiosities, is not mineral land within the meaning of the mining laws.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) November 30, 1900.

(A. B. P.)

January 15, 1894, Jesse D. McDonald made homestead entry, No. 4149, for the S. of the NW. 4 and lots 3 and 4 of Sec. 1, T. 6 S., R. 5 E., Rapid City, South Dakota. He alleged settlement June 1, 1890. June 4, 1895, he submitted his proofs, and final certificate was thereupon issued to him.

October 4, 1895, R. B. Moss, agent of the South Dakota Mining Company, filed a protest against McDonald's entry, wherein it was