against which entry Simero had initiated a contest. Pending Wagner's appeal from the adverse decision of the local officers, there was filed, on June 28, 1902, his relinquishment of the land, and on July 9, 1902, his withdrawal of his appeal, upon which his entry was canceled by the local office.

July 12, 1902, Kiehlbauch made the homestead application and forest lieu selections now under consideration. By your office letter of July 22, 1902, Simero's contest case against Wagner was closed and on August 15, 1902, Simero, claiming a preference right of entry by virtue of his contest, made his application to enter said lands under section 2306 of the Revised Statutes of the United States.

Kiehlbauch bases his appeal upon the contention--

That contestee Simero could not exercise any preference right and is not entitled to a homestead filing as a successful contestant.

By the act of March 3, 1877 (19 Stat., 377), as amended by the act of March 3, 1891 (26 Stat., 1095), it is provided, in section 2, paragraph 7, thereof, that desert land entries "shall be subject to contest, as provided by the law relating to homestead cases, for illegal inception, abandonment, or failure to comply with the requirements of law," and in paragraph 14, page 44, of the general circular of your office of July 11, 1899, it is said, with reference to desert land entries:

Contestants will be allowed a preference right of entry for thirty days after notice of the cancellation of the contested entry in the same manner as in homestead and preemption cases.

The appellant contends that Simero's preference right of entry terminated with the expiration of thirty days after June 28, 1902, on which date Wagner's relinquishment was filed. The date on which Simero received official notice of the cancellation of Wagner's entry, and of his own preference right of entry, is not shown by the record, but it is not claimed or shown that such notice was issued prior to July 22, 1902, when the contest case was closed by your office. Moreover, the local officers in their rejection of appellant's applications, indicated that they would not issue such notice or proceed farther until the contest case had been "finally closed by the Department." Simero's applications having been presented within thirty days from the last mentioned date were seasonably filed.

The appellant contends further that Simero's said applications for soldiers' additional entries are not excepted from the limitation of 320 acres prescribed in the act of August 30, 1890 (26 Stat., 391), and that Simero had previous filings of record aggregating 320 acres, and questions:

Has he now preference right to file soldiers' additional upon the land in question or upon any land whatever?

In the case of Webster v. Luther (163 U. S., 331) it was held that a soldiers' additional right is transferable without restriction. It would seem to follow that the assignee of such a right may locate the same without reference to his ownership of, or claim to, other lands under any statutes whatever.

In the case of Robeson T. White (30 L. D., 61), the successful contestant in exercising his preference right, located a soldiers' additional homestead certificate upon the land formerly covered by the contested entry, and his right to do so was recognized.

Your said office decision is accordingly hereby affirmed.

REPAYMENT-DESERT-LAND ENTRY-COMPACTNESS.

MANUEL AMADO.

as

The right to repayment of the purchase money paid on a desert land entry made of unsurveyed land will be recognized where the entry as allowed is in form prima facie non-compact, and it is not shown that it was as nearly in compact form "; the situation of the land and its relation to other lands will admit of," and was for that reason, and the further reason that the entry embraced lands on both sides of a river, erroneously allowed and could not have been confirmed. Assistant Attorney-General Campbell to the Secretary of the Interior, (C. J. G.)

January 30, 1904.

The case of Manuel Amado, involving his application for repayment of the purchase money paid on a desert land entry made by him at Florence, Arizona, has been referred to me "for an opinion as to whether or not this application for repayment can be allowed; also as to the applicability thereto of the case of Julia B. Keeler (31 L. D., 354).” The entry was made May 23, 1879, being for a tract of unsurveyed land, and was canceled upon relinquishment September 7, 1887. Repayment is claimed under section 2 of the act of June 16, 1880 (21 Stat., 287), on the ground that the entry was erroneously allowed and could not be confirmed, within the contemplation of said act, because the land embraced therein was not in compact form. The land office, under date of May 12, 1903, made up and submitted the claim with favorable recommendation, it being stated:

The above described entry was in form prima facie non-compact, and the land being unsurveyed the record furnishes no evidence overcoming the applicant's contention that his entry was illegal. It is held, therefore, to have been erroneously allowed and insusceptible of confirmation.

Under date of June 3, 1903, the Department (L. and R. Div.) returned the claim to the land office without approval, on the ground that "there is no affirmative evidence that non-compactness was not excusable because of topography of surrounding lands or prior entry

thereof." That office resubmitted the claim June 10, 1903, under departmental decision in the case of Julia B. Keeler, the syllabus of which is:

The right to repayment of the purchase money paid on a desert land entry will be recognized where the entry as allowed is in form prima facie non-compact, and it does not appear from the record that it was as nearly in compact form "as the situation of the land and its relation to other lands will admit of," and was for that reason erroneously allowed and could not have been confirmed.

The land office stated, referring to the case now under consideration: In this case the entry is prima facie non-compact, and as the tract was unsurveyed the record is silent as to the surrounding lands. There is therefore no evidence in this office contradicting the assertion of claimant that his entry was erroneously allowed and insusceptible of confirmation because it was not in compact form as required by law, and it would appear that he must be held to have established his claim.

In the Keeler case the land was surveyed and the plats of survey and field notes failed to disclose any valid reason why the entry might not have been made more nearly in compact form, nor was any reason otherwise shown. Under these circumstances, and as upon its face the entry showed a gross departure from any reasonable requirement of compactness, it was held that the case came within the terms of the repayment statute.

The requirement of compactness in the matter of desert land entries is statutory (act of March 3, 1877, 19 Stat., 377). The regulations of September 3, 1880 (2 C. L. L., 1378), issued under said act, declared among other things:

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.

On unsurveyed lands the degree of compactness required will be such as, upon the adjustment of the lines after survey, will bring the lands within the limits and general form of a technical section, or part thereof, as may be.

These regulations apply to entries made before as well as after their promulgation. Joseph Shineberger (on review, 9 L. D., 379). The entry in question was relinquished prior to the time the lands embraced therein were surveyed. Said entry comes within the prohibition contained in the above regulations, as upon its face it departs from what may fairly be regarded as a reasonable requirement of compactness. The land being at the time unsurveyed, however, there is nothing in the way of plats or field notes to show whether the entry was made in as compact form "as the situation of the land and its relation to other lands" would admit of, nor is such fact otherwise shown. It has been

the practice of the land office in cases where desert land entries are prima facie non-compact, to call upon the entrymen to adjust the same, and in the event of their failure to do so, or to show cause why they should not be required to do so, to cancel the entries. It does not appear that any such call was made by the land office in this case, nor does it appear that the local officers laid any such requirement upon the entryman. In the case of Julia B. Keeler, supra, it was said:

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 this entry, especially as it appears to have been the practice at the time to receive applications to enter like the present one without objection.

The entry in question evidencing upon its face a violation of a reasonable requirement of compactness under the statute, the local officers were fully justified, without some showing that the entryman ought not to be required for recognized reasons to amend his entry, in rejecting the application therefor, and in the absence of such showing it was error to allow the same.

There is another reason why an error was apparently committed in allowing this entry to stand as made. The regulations referred to also declare:

Entries heretofore made, whether by legal subdivisions on surveyed lands, or of an irregular form on unsurveyed lands, running along the margins or including both sides of streams, and not being compact in any true sense, will be suspended by this office, and the parties will be called upon to amend their entries so as to conform to the law; failing to do which after proper notice, such entries will be held for cancellation.

In describing the tract of land embraced in this entry, by metes and bounds, the applicant specifically stated that it "covers land on both sides of the river." Yet there is nothing to indicate that the entryman was ever called upon to amend his entry in accordance with the regulations. The entry was finally canceled upon relinquishment and not because it was irregular in shape or because it covered land on both sides of a river.

While this entry differs from that in the Keeler case, in that the land in that case had been surveyed at date of entry, plats of survey and field notes consequently being accessible, while in this case such was not the fact, yet the principles announced in the Keeler case are deemed equally applicable here. I am therefore of opinion that this case comes within the terms of the repayment statute and that the money applied for should be refunded.

Approved:

E. A. HITCHCOCK, Secretary.

SCHOOL INDEMNITY SELECTIONS-FOREST RESERVE-PARAGRAPH 2 OF INSTRUCTIONS OF FEBRUARY 21, 1901, AMENDED.

CIRCULAR.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) January 30, 1904. (W. C. P.)

The Department has considered your report of January 20, 1904, upon the letter from the State surveyor-general of California of October 26, 1903, asking a modification of paragraph 2, circular of instructions approved February 21, 1901 (30 L. D., 491), relating to indemnity. school land selections on the basis of surveyed school sections subsequently included within a forest reserve. Those regulations provided that there should be filed with all such selections a certificate from the recorder of deeds or official custodian of records of transfers of real estate, in the proper county, that no instrument purporting to convey or in any way incumber the title to any of said lands is on file or of record in his office.

The surveyor-general of California states that it is frequently a matter of difficulty to obtain the required certificates and that this rule puts the State to much inconvenience that might be avoided if the rule were modified to allow the certificate to be presented within a reasonable time after the lists are filed. He further suggests that under the rule of your office a State selection has never been examined for approval until six months after the same is presented and that if the rule shall provide that at any time before such examination recorders' certificates are presented, it would be satisfactory to the State. You report that the request is a reasonable one and that the time for filing the certificates may very properly be extended for a period of three months after the presentation of the lists of selection. You suggest, however, that the experience of your office shows that the certificate of the State surveyor-general should be more specific than is required by existing regulations.

Upon consideration of the facts presented by the letter of the surveyor-general of California and by your report, the Department is of opinion that the regulations in question should be amended in the direction suggested by your office as well as in that suggested by the surveyor-general. In accordance with your suggestion and recommendation paragraph 2 of said circular of instructions of February 21, 1901, is hereby amended to read as follows:

The State will be required to file with each list of selections a certificate by the officer, or officers, charged with the care and disposal of such school lands, that the State has not previously sold or disposed of, nor contracted to sell or dispose of, any of said lands used as bases, nor any part thereof; that said lands and every part thereof are free of all liens for taxes, costs, interest and judgments or any incumbrance of any nature whatsoever, and that the said lands are not in the possession