The entry was made March 10, 1892, and canceled June 10, 1897, because the statutory period in which to submit proof had expired. Repayment is claimed on two grounds, viz: That the entry was noncompact in form, and the land was not desert in character. With respect to the first ground the case is clearly covered by that of Chester Call (32 L. D., 471), wherein it was said: "Upon its face the entry does not show such a departure from any reasonable requirement of compactness as would necessarily preclude its confirmation." There is nothing in the desert land act or in the regulations thereunder that requires an entry to be absolutely in square form. Under the second ground it is alleged that the land entered was "high bench or mesa land, fully 140 feet above the level of any stream, and therefore irreclaimable." Notwithstanding these alleged conditions the entryman stated in his declaration that he applied to enter the land after an actual personal examination of each and every legal subdivision thereof, and undoubtedly on the assumption that it was susceptible of irrigation. In paragraph 10 of the circular of your office of June 27, 1887 (5 L. D., 708), it is stated, among other things, that a person who makes a desert land entry before he has secured a water right does so at his own risk. In the case of Lucy C. Hallack (24 L. D., 542), wherein repayment was denied, it was said:

The land was subject to entry and was regularly entered. No error or mistake of any kind, with respect to the entry, was made on the part of the government. If any error or mistake was made, it was simply an error of judgment on the part of the entryman, as to whether the portion of the entry afterwards canceled, could be reasonably and successfully reclaimed. The land embraced by the entry was voluntarily selected by the entryman, but failing to reclaim a portion of the entry, she executed a relinquishment of that portion and, hence, the cancellation.

The act of entering land under the desert land law carries with it the necessary implication that the land is susceptible of reclamation. The act of March 3, 1877 (19 Stat., 377), places the burden of proof as to the character of the land entered thereunder upon the entryman and his witnesses. Section 2 of said act is as follows:

That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated.

This feature is controlled by the rule in the case of George A. Stone (on review, 25 L. D., 111), the syllabus of which is:

If the land entered is not of the character contemplated by the law under which the entry is made, but is expressly represented by the entryman to be of such character, and the allowance of the entry is procured by such representation, the entry in such case is wrongfully procured, and not "erroneously allowed, within the meaning of the repayment law.

In the case of William M. Bernard (2 L. D., 693), it was held, syllabus:

Where one relinquishes a desert land claim on the assumption that the land is in fact agricultural land, he is estopped by his prior proofs from denying its desert land character, and is not entitled to repayment.

That an abandonment is equivalent in effect to a relinquishment needs no demonstration. In the case of Kern Oil Co. et al. v. Clarke (on review, 31 L. D., 288, 300), it was said:

The land officers are not required, and from the nature of things could not be required, to take judicial cognizance of the physical condition of lands with respect to which, in the discharge of their duties, they are called upon to act.

The decision of your office herein is affirmed.

HOMESTEAD-NEBRASKA LANDS-ACT OF APRIL 28, 1904.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., May 31, 1904.

Registers and Receivers U. S. Land Offices, Nebraska.

GENTLEMEN: I inclose herewith a printed copy of the act of Congress, approved April 28, 1904 (33 Stat., 547), entitled "An act to amend the homestead laws as to certain unappropriated and unreserved lands in Nebraska."

It is directed by the law that in that portion of the State of Nebraska lying west and north of the line described therein, and marked in red ink upon the map transmitted herewith, upon and after June 28, 1904, except for such lands as may be hereafter and prior to said date excluded under the proviso contained in the first section thereof, homestead entries may be made for and not to exceed in area 640 acres, the same to be in as nearly a compact form as possible, and must not in any event exceed 2 miles in extreme length.

Under the provisions of the second section, a person who within the described territory has made entry prior to April 28, 1904, under the homestead laws of the United States, and who now owns and occupies the lands theretofore entered by him, may make an additional entry of a quantity of land contiguous to his said homestead entry, which, added to the area of the original entry, shall make an aggregate area of not to exceed 640 acres; and he will not be required to reside upon the additional land so entered, residence upon the original homestead being accepted as equivalent thereto; but final entry will not be allowed on such additional land until five years have elapsed after making the entry.

Such additional entry must be for contiguous lands and the tracts embraced therein must be in as compact a form as possible, and the extreme length of the combined entries must not in any event exceed 2 miles.

In accepting entries under this act the compliance thereof with the requirement as to compactness of form should be determined by the relative location of the vacant and unappropriated lands, rather than by the quality and desirability of the desired tracts.

By the second proviso of section 3, such entrymen who now own and occupy their homesteads are allowed a preferential right for ninety days after April 28, 1904, within which to make the additional entry allowed by section 2 of the law.

Until the period of ninety days after the passage of the act has elapsed you will require parties making entry to furnish a special affidavit to the effect that the lands applied for are not adjoining the land of any entryman, other than himself or herself, who is entitled to the preferential right under said law.

By the first proviso of section 3, any person who has made a homestead entry prior to his application for entry under this act, and has resided upon and cultivated the same for the period required by law, will be allowed to make an additional entry for a quantity of land, which added to the area of the land embraced in the former entry shall not exceed 640 acres, but residence and cultivation of the additional land will be required to be made and proved as in ordinary homestead entries.

Under said act no bar is interposed to the making of second homesteads for the full area of 640 acres by parties entitled thereto under existing laws, and applications therefor will be considered under the instructions of the respective laws under which they are made.

Upon final proof, which may be made after five years and within seven years from date of entry, the entryman must prove affirmatively that he has placed upon the lands entered permanent improvements of the value of not less than $1.25 per acre for each acre, and, with the exception of those entitled to make additional entries of adjoining land under section 2, such proof must also show residence upon and cultivation of the land for the five-year period as in ordinary homestead entries.

A person who has a homestead entry upon which final proof has not been submitted and who makes additional entry under the provisions of section 2 of the act will be required to submit his final proof in the original entry within the statutory period therefor, and final proof upon the additional entry will also have to be submitted as hereinbefore set forth.

In the making of final proofs the homestead proof forms will be used, modified when necessary in case of additional entries made under the provisions of section 2.

It is provided by section 3 that the fees and commissions on all entries under the act shall be uniformly the same as those charged under the present law for a maximum entry at the minimum price, viz, at the time application is made, $14, and at the time of making final proof, $4, to be payable without regard to the area embraced in the entry.

In case the combined area of the subdivisions selected should upon applying the rule of approximation thereto be found to exceed in area the aggregate of 640 acres, the entryman will be required to pay the minimum price per acre for the excess in area.

Entries made under this act are not subject to the commutation provisions of the homestead law.

Before said act shall become operative you will be advised as to the lands that it may be deemed practicable to irrigate under the national irrigation law or by private enterprise which will be excluded from entry under the proviso contained in the first section thereof.

Very respectfully,

Approved, May 25, 1904.

THOS. RYAN, Acting Secretary.

J. H. FIMPLE, Acting Commissioner.

[PUBLIC-No. 233.]

AN ACT To amend the homestead laws as to certain unappropriated and unreserved lands in Nebraska.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after sixty days after the approval of this act entries made under the homestead laws in the State of Nebraska west and north of the following line, to wit: Beginning at a point on the boundary line between the States of South Dakota and Nebraska where the first guide meridian west of the sixth principal meridian strikes said boundary; thence running south along said guide meridian to its intersection with the fourth standard parallel north of the base line between the States of Nebraska and Kansas; thence west along said fourth standard parallel to its intersection with the second guide meridian west of the sixth principal meridian; thence south along said second guide meridian to its intersection with the third standard parallel north of the said base line; thence west along said third standard parallel to its intersection with the range line between ranges twenty-five and twenty-six west of the sixth principal meridian; thence south along said line to its intersection with the second standard parallel north of the said base line; thence west on said standard parallel to its intersection with the range line between ranges thirty and thirty-one west; thence south along said line to its intersection with the boundary line between the States of Nebraska and Kansas, shall not exceed in area six hundred and forty acres, and shall be as nearly compact in form as possible, and in no event over two miles in extreme

length: Provided, That there shall be excluded from the provisions of this act such lands within the territory herein described as in the opinion of the Secretary of the Interior it may be reasonably practicable to irrigate under the national irrigation law, or by private enterprise; and that said Secretary shall, prior to the date above mentioned, designate and exclude from entry under this act the lands, particularly along the North Platte River, which in his opinion it may be possible to irrigate as aforesaid; and shall thereafter, from time to time, open to entry under this act any of the lands so excluded, which, upon further investigation, he may conclude can not be practically irrigated in the manner aforesaid.

SEC. 2. That entrymen under the homestead laws of the United States within the territory above described who own and occupy the land heretofore entered by them, may, under the provisions of this act and subject to its conditions, enter other lands contiguous to their said homestead entry, which shall not, with the land so already entered, owned, and occupied, exceed in the aggregate six hundred and forty acres; ánd residence upon the original homestead shall be accepted as equivalent to residence upon the additional land so entered, but final entry shall not be allowed of such additional land until five years after first entering the same.

SEC. 3. That the fees and commissions on all entries under this act shall be uniformly the same as those charged under the present law for a maximum entry at the minimum price. That the commutation provisions of the homestead law shall not apply to entries under this act, and at the time of making final proof the entryman must prove affirmatively that he has placed upon the lands entered permanent improvements of the value of not less than one dollar and twenty-five cents per acre for each acre included in his entry: Provided, That a former homestead entry shall not be a bar to the entry under the provisions of this act of a tract which, together with the former entry, shall not exceed six hundred and forty acres: Provided, That any former homestead entryman who shall be entitled to an additional entry under section two of this act shall have for ninety days after the passage of this act the preferential right to make additional entry as provided in said section. Approved, April 28, 1904.

23286 Vol. 32-03-43