Brown v. State of Idaho (29 L. D., 590). But from the testimony it appears that Zeigler first "went on the land in controversy in the latter part of May, 1895," and that he made an actual settlement thereon in May, 1897, which was continued to the date of the hearing. His settlement was therefore subsequent to the State's application for survey, and he secured no right to the land as against a selection thereof by the State made during the period of sixty days next following the filing of the township plat of survey in the district land office. His homestead application, tendered on February 14, 1898, was during the period of reservation provided for in the statute and no rights were secured thereby nor by reason of the appeal from the rejection thereof by the local officers, as said appeal entitled him to a judgment only upon the correctness of the action taken at the time of the presentation of the application.

The period of the reservation and the preferred right of selection granted the State expired March 26, 1898. As Zeigler was a resident upon the land at this time, the prior and premature selection of the State being ineffectual as. was also his premature application to make homestead entry, his settlement became thenceforth a valid one, and it but remains to be determined whether the government can protect him in his settlement, he having failed, as far as shown by the record before the Department, to make application to enter the land within three months after it became subject to entry, as provided by section three of the act of May 14, 1880 (21 Stat., 140), and sections 2265 and 2266 of the Revised Statutes, or prior to August 12, 1898, when the State filed its new lists of selections.

Under the act of July 3, 1890, supra, making the grant to the State, for State, penitentiary, and normal schools, it is provided, by section 14, that

All lands granted in quantity or as indemnity by this act shall be selected, under the direction of the Secretary of the Interior, from the surveyed unreserved, and unappropriated public lands of the United States within the limits of the State entitled thereto.

The authority of the Secretary of the Interior over the selection of lands granted by this act is similar to that exercised in the matter of the selection of indemnity lands under grants made to aid in the construction of railroads. Relative to the latter class it has been held by this Department that this authority was sufficient to enable the Secretary to protect a qualified settler who has placed valuable improvements upon the tract and who is residing thereon with intent to secure title by compliance with the public land laws at the time an indemnity selection is tendered, even though such settler may have failed to make timely filing or entry prior to the proffer of said selection. (Dunnigan 2. Northern Pacific R. R. Co., 27 L. D., 467.)

It is therefore directed that Zeigler be allowed a reasonable time, to be fixed by your office, within which to make proper application and complete entry of this land, and thereupon the new selection of the State will stand rejected, as to this tract.

With this modification, the decision appealed from is affirmed.

Tow . MANLEY.

Motion for review of departmental decision of February 16, 1900, 29 L. D., 504, denied by Secretary Hitchcock, May 2, 1900.

BURTON ET AL. v. DOCKENDORF.

Motion for review of departmental decision of February 6, 1900, 29 L. D., 479, denied by Secretary Hitchcock, May 2, 1900.

REPAYMENT-CASH ENTRY-ASSIGNMENT.

HENRY J. MCCOMB.

One who takes an assignment of the interest of a cash entryman subsequent to the cancellation of the entry acquires no right to repayment of the purchase money under either section 2362 of the Revised Statutes or section 2 of the act of June 16, 1880.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 7, 1900.

(C. J. G.)

Henry J. McComb has filed a motion for review of departmental decision of February 15, 1900 (not reported), denying his application for repayment of the purchase money paid by Abiram Moore on cash entry No. 23,869, made March 25, 1857, Plattsburg series, for the E. of Lot 2 of the NW. 4, Sec. 5, T. 64, R. 36, Booneville land district, Missouri.

Moore's entry was canceled July 22, 1859, for conflict with warrant location No. 74451, under the act of 1855. McComb made application for repayment as the assignee of Moore through mesne conveyances. The basis of the denial of said application by the Department was that McComb, having acquired his interest subsequently to the cancellation of Moore's entry, namely, on March 27, 1889, is not a qualified applicant for repayment under section 2 of the act of June 16, 1880 (21 Stat., 287).

The contention is made in the motion for review that said act of June 16, 1880, according to its title, is not applicable to this case in which

Moore made a private cash entry under the act of April 24, 1820 (3 Stat., 566); but that the application for repayment by McComb as the assignee of Moore is controlled by the act of January 12, 1825 (4 Stat., 80), as amended by the act of February 28, 1859 (11 Stat., 387).

The said acts of 1825 and 1859 were consolidated in the Revised Statutes as follows:

SEC. 2362. The Secretary of the Interior is authorized, upon proof being made, to his satisfaction, that any tract of land has been erroneously sold by the United States, so that from any cause the sale can not be confirmed, to repay to the purchaser, or to his legal representatives or assignees, the sum of money which was paid therefor, out of any money in the Treasury not otherwise appropriated.

The act of June 16, 1880, is entitled:

An act for the relief of certain settlers on the public lands, and to provide for the repayment of certain fees, purchase money, and commissions paid on void entries of public lands.

The said act provides, among other things, as follows:

SEC. 2. 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, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excess paid upon the same upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall be duly canceled by the Commissioner of the General Land Office.

This act is additional to the provisions of Sec. 2362 of the Revised Statutes, and its manifest purpose was to enlarge the scope of said section by extending to entrymen under homestead, timber-culture, desertland, and other laws the same remedy as to repayment that had been previously provided for cash entrymen under the statutes relating to public and private land sales.

The circular instructions of August 6, 1880, and the General Circular issued October 1, 1880, after referring to section 2362 of the Revised Statutes, and the act of June 16, 1880, contain the following definition:

Those persons are assignees, within the meaning of the statutes authorizing the repayment of purchase money, who purchase the land after the entries thereof are completed and take assignments of the title under such entries prior to complete cancellation thereof, when the entries fail of confirmation for reasons contemplated by the law.

This definition and construction has been uniformly adhered to. The reasons for limiting an assignee's claim to repayment, upon failure of confirmation, to the period after completion of entry, and prior to cancellation thereof, are the same under either statute, viz, prior to entry no legal, assignable, or transferable interest in or title to public lands is recognized; and after cancellation of the entry no such interest or title exists. As to this there is, and can properly be, no distinction between the prior statutes and the act of June 16, 1880, the intention

of the latter merely being, as stated, to enlarge the scope of the former. Hence McComb, having acquired his interest subsequently to the cancellation of Moore's entry, is not the party to whom repayment may be made.

The motion for review is hereby denied.

BARKLAGE ET AL. . RUSSELL.

Motion for review of departmental decision of January 9, 1900, 29 L. D., 401, denied by Secretary Hitchcock, May 7, 1900.

REINS. MONTANA COPPER CO. ET AL.

Motion for review of departmental decision of February 5, 1900, 29 L. D., 461, denied by Secretary Hitchcock, May 7, 1900.

RESERVATION-PREFERRED RIGHT OF CONTESTANT.

WILLIAM H. SCHMITH.

Whatever preferred right a contestant may have on the cancellation of the entry under attack, is defeated by an intervening proclamation by the president declaring the establishment of a forest reservation that includes the land embraced within the contested entry.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 9, 1900. (J. L. McC.)

William H. Schmith has appealed from the decision of your office, dated December 18, 1899, sustaining the action of the local officers in rejecting his application to make homestead entry for the E. of the N. E. and the E. of the S. E. of Sec. 30, T. 29 N., R. 3 W., Seattle land district, Washington.

The ground of said rejection was that the land described lies within the limits of the Olympic Forest reserve, and became subject to the operation of the executive order of February 22, 1897, creating said reserve, on March 1, 1898 (See 29 Stat., 901; 30 Stat., 34).

Schmith's application is accompanied by his affidavit, setting forth that when he moved upon the land in January, 1895, it was embraced in the homestead entry of one Cummings, who had abandoned it. Schmith has, since that date, made improvements on the land to the value of about fifteen hundred dollars. All the money he could earn was needed for the support of his family; but as soon as he could afford to do so-to wit, on February 25, 1898-he filed affidavit of

contest against Cummings' entry, as a result of which said entry was canceled on January 14, 1899. He asks to be permitted to make homestead entry by virtue of his preference right.

Your office decision quotes the excepting clause of the executive order of February 22, 1897, which is as follows:

Excepting from the force and effect of this proclamation all lands which may have been, prior to the date hereof, embraced in any legal entry, or covered by any lawful filing duly of record in the proper United States land office, or upon which any valid settlement has been made pursuant to law, and the statutory period within which to make entry or filing of record has not expired; ... Provided, that this exception shall not continue to apply to any particular tract of land unless the entryman, settler, or claimant continues to comply with the law under which the entry, filing, settlement, or location, was made.

.

Commenting upon the above-quoted extract from the proclamation your office decision says:

Schmith's settlement was not a "valid settlement," made "pursuant to law," for the reason that at the time he settled the land was covered by Cummings' homestead entry, and was not, therefore, subject to such settlement. He initiated contest against Cummings' entry during the time when the order creating the reserve was suspended by act of June 4, 1897 (30 Stat., 34–36); but when, on January 14, 1899, the entry was finally canceled as a result of such contest, the order was again in effect. As the proclamation contained no provisions excepting the rights of successful contestants from the force and effect of the reservation, it destroyed any privilege which he might have had, had the reservation not been made.

In his appeal from said decision Schmith sets forth the undeniable equities in his behalf, and contends that, "by reason of his successful contest against the homestead entry of Cummings the said tract was segregated from the public domain, subject to the application of Schmith within the period prescribed by the laws and regulations governing contests."

The Department concurs in the conclusion of your office in this respect. "Whatever preferred right a contestant may have on the cancellation of the entry under attack, is defeated by an intervening proclamation by the president declaring the establishment of a forest reservation that includes the land embraced within the contested entry" (Jefferson E. Davis, syllabus, 19 L. D., 489).

Said decision of your office is therefore hereby affirmed.

LABATHE. ROBORDS.

Motion for review of departmental decision of October 30, 1899, 29 L. D., 281, denied by Secretary Hitchcock, May 9, 1900.