27, 1866, "granting land to aid in the construction of a railroad and telegraph line from the States of Missouri and Arkansas to the Pacific coast" (14 Stat., 292), and an executive withdrawal of certain lands within said limits was made for the benefit of said company on March 26, 1877. Prior to this withdrawal, to wit: on February 10, 1872, the State of California selected said tract as indemnity for a supposed deficiency in the grant to the State for school purposes. This selection was of record at the date of said withdrawal, and remained of record until May 15, 1878, when it was canceled, because said supposed deficiency had been made good to the State by prior approved selections.

On April 27, 1883, the defendant, Cline, entered the tract in controversy under the homestead laws, and, on April 11, 1887, he commuted his homestead entry, paid two hundred dollars for said tract, and received a final certificate, which prima facie entitles him to a patent for the same. On October 4, 1887, appellant applied, "per list 27," to select said tract.

Your office found that the selection of the tract in controversy by the State of California was invalid, but, notwithstanding this fact, held that, so long as said selection was of record and uncanceled, it was such an appropriation of the tract by the State as prevented any other disposition of it by the government, and, therefore, that such selection excepted it from the operation of appellant's grant.

For the reason stated, your office rejected appellant's application, and directed the local officers to notify Cline that, if said decision became final, action would be taken looking to the confirmation of his entry. The errors assigned by appellant are as follows:

1. Error in holding the invalid State selection was a bar to the withdrawal or selection of the said land by the company.

2. Error in holding Cline's entry could be confirmed.

3. Error in holding the company's selection for cancellation.

4. Error in not canceling Cline's entry and approving the company's selection. In argument, appellant, by its attorney, insists that the selection of the land in controversy by the State of California was illegal and void from its inception, and in no manner interfered with the right of the government to dispose of said land as a part of the public domain.

As supporting this position, appellant cites: Taylor et al. v. State of California (2 C. L. O., 19); Jackson et al. v. State of California (4 C. L. O., 87); Aurrecoechea v. Bangs (114 U. S., 381), and McLaughlin v. United States (127 U. S., 428).

I can discover no analogy between the case of McLaughlin v. United States and the case under consideration. That case, it seems to me, is clearly not in point. In each of the other three cases (supra) State selections had been made of lands which, at the time of selection, were embraced in the claimed limits of unadjusted Mexican grants, or al leged grants, and were subsequently restored to the public domain, because, in one case, the claim of the alleged Mexican grantee was finally

rejected as invalid, and in the other cases the lands, by final survey, were found not to be within the limits of the grant.

The United States supreme court and this Department, respectively, in the cases above cited, held these selections by the State to be of no effect, null, and void, because the lands, when selected, were claimed under a Mexican grant. The Department, in the cases cited, held, that lands so claimed, until the claim was finally adjudicated, were in a state of reservation, and were not subject to disposition under the land laws. In other words, that an invalid claim to land, asserted under the laws of the United States, reserves such land from disposition under the general land laws, so long as the invalid claim remains of record and unadjudicated.

These cases, instead of supporting appellant's assignments of error, seem to me to be in harmony with the decision of your office. The same principle runs through and controls all of these cases. The land selected by the State in this case was beyond question subject to disposition at the time it was selected, and therein consists the difference in this case and the cases above cited.

Appellant also cites Selby et al. v. State of California (3 C. L. O., 89) and State of Nebraska v. Dorrington (ib., 122). In the case of Selby et al. v. State of California, the selections there under consideration were not treated by the Department as being void from the inception of the State's claim, but only as being voidable. The pre-emptors in that case were required to regularly contest these selections and procure their cancellation, before the pre-emption entries were allowed. And said selections, though held to have been made prematurely and without authority of law, were still held to have been rendered valid by the approval of the Secretary of the Interior. A selection, entry, or other claim to land absolutely void from its inception can not be rendered valid by executive authority. That case, therefore, is not in conflict with your office decision herein.

The case of the State of Nebraska v. Dorrington (supra), decided August 3, 1876, seems to me to be the only case cited which countenances and supports the position contended for by appellant, and as that case was decided by the same Secretary (Hon. Z. Chandler) who decided the case of Selby et al. v. State of California, and in the same month, it may well be doubted whether it was intended to go any further than the latter case. At all events, the decision of your office herein is in harmony with the more recent decisions of this Department. See Southern Pacific R. R. Company v. State of California (3 L. D., 88), and cases cited, Niven v. State of California (6 L. D., 439), and Early v. State of California (7. L. D., 347). The decision of the United States supreme court in the case of the Hastings and Dakota R. R. Company v. Julia D. Whitney and John Whitney (132 U. S., 357), is to the same effect.

The conclusion reached herein, therefore, is, that the said selection 14639-VOL 10-3

of the land in dispute, though invalid, was not absolutely void, but was only voidable, and that, while it remained intact upon the record, it was a bar to any other disposition of said land by this Department; and, consequently, that said selection excepted the tract in dispute from the withdrawal made for appellant's benefit.

In addition to this, it may be remarked, that appellant's application to select said tract-made October 4, 1887-came too late to be available against a prior bona fide settler thereon, as the withdrawal aforesaid was revoked by my predecessor in office (Secretary Lamar) on August 15, 1887. See note, 6 L. D., 92. The decision of your office herein is affirmed.

REPAYMENT-RELINQUISHMENT-HOMESTEAD.

J. H. THOMPSON.

Where it is impracticable for the claimant to comply with an order requiring new final proof to be made, and good faith is apparent, repayment may be allowed. A relinquishment filed with an application for repayment is in accordance with departmental regulations and does not defeat the right of repayment.

Secretary Noble to the Commissioner of the General Land Office, January 14, 1890.

Your office, by letter of July 13, 1889, transmitted a motion, by J. Hurd Thompson, for a review of departmental decision denying his application for return of purchase money paid by him on his commuted homestead entry for lots 3 and 4 and the SE. of the NW. of Sec. 112, R. 61, Huron land district, Dakota,

Said departmental decision was rendered July 24, 1888; notice of the same was sent by your office to the local office (with directions to notify the entryman), August 3, 1888. The motion for review bore no date, but the argument attached was dated, "Huron, July 2, 1889." It appeared sufficiently certain from the face of the record, that the motion was not filed within thirty days from receipt of notice by the applicant, and the motion was therefore dismissed.

But now comes S. M. West, attorney for said Thompson, and files affidavit that notice of said adverse decision was not given him until "June 4, 1889"-bearing that date-and that his motion for review was filed July 2, 1889, within the thirty days demanded by the rule.

The Department of course could not presume that it would require nearly eight months for the local officers to notify an attorney residing in the same village with them of the substance of a decision affecting his client.

It now appearing that the appeal was filed in time, the same will be considered upon its merits.

Said Thompson, on March 22, 1883, applied to enter the NW. † of Sec. 6, T. 112, R. 61, Huron land district, Dakota. This was a fractional quarter-section, embracing one hundred and seventy-four acres. He was informed that he must relinquish a portion of the tract, and was allowed to amend his entry by omitting one subdivision; his application, thus amended, describing, "the NW. fr'l quarter and lots 3 and 4, Sec. 6, T. 112, R. 61." Commutation proof was offered, and final certificate No. 10,125 issued for the tract last described.

Long afterward, when your office, in the regular course of business, reached said proof for examination, it was disclosed that the local officers had furnished the newspaper, for advertisement of intention to offer said commutation proof, the erroneous description, "the N. of the NE. of the NE. " of said Sec. 6. By letter of April 9, 1885, the proof was suspended by your office; and afterward, by your office letter of January 22, 1886, was rejected, and the cash entry held for cancellation-the entryman being informed that upon publishing notice properly describing the land, he would be allowed to submit new proof. By the same letter he was allowed to amend his entry, if he so desired, so as to include the entire NW. of said Sec. 6.

By this time, however, Thompson had left the land and engaged in business elsewhere. Under the construction then given by your office to the homestead law-requiring six months uninterrupted residence on the tract immediately preceding proof-he could not make such proof as your office demanded. Indeed, if he had understood that it would be permitted, the condition of his business was such that it would have involved great loss for him to return and make six months' residence on the tract. So (January 5, 1887,) he applied to your office to be permitted to relinquish the land and be repaid the fees and purchase money paid thereon.

Your office accepted the relinquishment, and directed the entry to be canceled; but refused to return the fees and purchase money, on the ground that "the law governing the return of purchase money does not provide for repayment in cases where parties voluntarily relinquish or abandon their entries."

Thompson appealed to the Department, which, on July 24, 1888, affirmed said decision.

Your office decision of February 2, 1887, and that of this Department, July 24, 1888, were in accordance with the construction of the law relative to repayments then held by your office and the Department. But since then it has been deemed by the Department that a more liberal construction of said law would be both justifiable and just.

In the case of E. L. Choate (8. L. D., 162,) the proof-commutation proof, as in the case at bar-was suspended by your office, and he was required to make new proof, showing "that he had for a period of six months maintained an actual, bona fide, continuous residence" on the tract. Before the rendition of said decision, however, appellant had

found employment as locomotive engineer; to return and reside upon the tract-if, indeed, your decision could have been interpreted as permitting him to do so-would have involved the forfeiture of his posi tion on the railroad, and great pecuniary loss. The Department held that he was entitled to a return of his fees, commissions, and purchase money.

The equities in the case at bar would seem to be even stronger than in the case of Choate; for your office held that Choate's residence was insufficient to satisfy the requirements of the law; in the case at bar there is no question as to Thompson's residence, nor is failure in any other respect to fulfill the law alleged; the trouble resulted mainly from the carelessness of the local officers in furnishing the newspaper that printed the notice an erroneous description of the tract upon which he desired to make proof.

Thompson's application is made in accordance with the requirements of your office circular of January 1, 1889 (p. 68):

In the case of application for the repayment of fees, commissions, etc., on canceled homestead and other entries, under the second section of the act (of June 16, 1880), the duplicate receipt must be surrendered, with a relinquishment of all right, title, and claim in and to the land described in the receipt endorsed thereon, etc.

It would seem hardly the proper practice to officially direct an entryman to file a relinquishment of a tract as a prerequisite to the return of his purchase money, and thereafter refuse to return said purchase money because in obedience to official direction he had filed the relinquishment.

In accordance with the ruling in the case of E. L. Choate (supra), and others of recent date, departmental decision of July 24, 1888, in the case of J. Hurd Thompson, is hereby recalled and revoked, and the repayment asked by him is directed to be made.

OSAGE LANDS-ACT OF MAY 28, 1880-PRACTICE-REVIEW.

UNITED STATES v. ATTERBERY ET. AL. (ON REVIEW).

The only condition and qualification required to authorize an entry under the act of May 28, 1880 is that the claimant must be an actual settler and have the qualifications of a pre-emptor.

The proof required to establish the fact of an actual settlement under said act is no less in degree than the proof required under the pre-emption law.

The fact that the evidence is such that fair minds might reasonably differ as to the conclusion that should be drawn therefrom will not warrant a review.

Secretary Noble to the Commissioner of the General Land Office, January

14, 1890.

This is a motion by R. J. Simpson, transferee, for review and recon. sideration of departmental decision of February 6, 1889, in the case of the United States v. Robert W. Atterbery et al., (8 L. D. 173).