REPAYMENT--OBITER DICTUM.

THOMAS MADIGAN.

Repayment may be properly allowed where through mistake the settlement and improvements of the entryman were not on the land covered by the entry, and it was accordingly canceled.

A ruling of the Department on a question not involved in the case under consideration will be treated as mere dictum and not conclusive.

Secretary Vilas to Commissioner Stockslager, February 7, 1889.

By letter of September 27, 1888, your office transmitted the papers in the case of Thomas Madigan with the recommendation that the decision of the Department therein made May 5, 1881, be modified to the extent of allowing repayment.

It appears that Madigan filed declaratory statement for Lots 3 and 4, Sec. 24, T. 13 S., R. 39 W., Wa Keeney, Kansas, and on December 20, 1875, made proof and payment for the same, and cash certificate issued. The entry was approved for patent June 20, 1876, the proofs being satisfactory, but the Union Pacific railway company contested the claim, alleging that Madigan's house and improvements were not situated on said lots 3 and 4.

Under instructions from your office a hearing was then had at the local office, on November 15, 1876.

It appears that the Fort Wallace military reservation lies immediately east of said lots; that Madigan first settled within the limits of said reservation by mistake; that the military authorities in 1875, moved him therefrom beyond the line which they then recognized as the western boundary of the reservation, to the land which he now occupies; that this second location was also within the boundaries of said reservation as shown by the government survey, the improvements being about a quarter of a mile east of the actual boundary and consequently the same distance from said lots; and that Madigan believing that he occupied the land applied for, made valuable improvements and has since been allowed to remain there undisturbed.

Your office by letter of June 10, 1880, after consideration of the testimony taken at said hearing, directed the suspension of said entry and said;

In consideration of the fact however, that Madigan had good reasons for believing his settlement to be upon said lots and his manifest good faith toward the govern ment, . . . . . he will be permitted to establish his residence thereon.

Madigan appealed and the Department finding the improvements were not on said lots, directed that the entry be canceled "without recourse to the United States for the purchase money."

Madigan's application for repayment is dated July 11, 1887. He asks further,

That I may be permitted to enter or purchase the same number of acres (as are) contained in lots 3 and 4, adjoining those lots on the east of them. This is the land my improvements are on, and that I have resided on for over twelve years, with credit for the purchase money already paid the government in 1875 for lots 3 and 4.

When the case was first before the Department the only point presented by the record was the legality of the entry. There was no application for repayment, and that subject was not properly before the Department. I therefore find that the ruling of the Department on that question was mere dictum and not of binding force in this proceeding. The facts as now presented make a proper case for repayment under the rulings of the department. You will therefore cause to be repaid to said claimant the money paid by him on account of said entry. Said decision of May 5, 1881, is accordingly modified.

The application to be permitted to enter or purchase as many acres as are contained in said lots, is not in proper shape to be passed upon. No formal application is presented and the land desired is not specified, nor are the qualifications of the applicant shown. Furthermore, on October 19, 1888, Congress passed an act for the disposition of said military reservation, under which instructions were issued December 8, 1888.

You will notify said claimant of the contents hereof, and that he will be allowed to present a formal application for the land he desires, upon receipt of which the case will be disposed of anew in accordance with existing law and regulations.

PRIVATE ENTRY-RE-OFFERING-RESTORATION NOTICE.

GEORGE M. WAKEFIELD.

Private cash entries of even numbered sections within the granted limits of the grant of June 3, 1856, held voidable for the want of a restoration notice, may be referred to the Board of Equitable Adjudication for confirmation; but private entries of odd sections within said limits, held void for want of re-offering must be canceled.

Secretary Vilas to Commissioner Stockslager, February 9, 1889.

I have considered the case of George M. Wakefield on appeal from your office decision of July 16, 1887, holding for cancellation his private. cash entry for E. NE. Sec. 10, the SE. 4, Sec. 17, and the NE. and NE., NW. 4, Sec. 20, all in T. 42 N., R. 34 W., Marquette, Michigan, land district.

The private cash entry for the above lands was allowed by the local officers March 22, 1880, and on May 24, 1887, the entryman requested that patents issue therefor.

Upon this request your office, as above' stated, held the said entry for cancellation and entryman appealed.

The said land is all within the granted limits of the grant by act of June 3, 1856 (11 Stat. 20) to the State of Michigan to aid in the construction of a road from Marquette to the Wisconsin State line, which grant was conferred upon the Marquette and State Line Railroad Company, and its rights, by changes and consolidations, were subsequently vested in the Chicago and Northwestern Railroad Company.

In section 2 of said act of June 3, 1856, it was provided that the even numbered sections within said granted limits should not be sold for less than double minimum price; "nor shall any of said lands become subject to private entry until the same have been first offered at public sale at the increased price."

By joint resolution of July 5, 1862 (12 Stat., 620) a change of route was authorized and it was provided that they should receive new lands adjacent to the new route to the same width on each side of the new line and that the State of Michigan should certify back to the United States the lands certified to it for the benefit of the said railroad under the old route.

Said resolution also provided that the even numbered sections lying within the granted limits of the old route, shall hereafter be subject to sale at one dollar and twenty-five cents per acre," and in the third sec tion providing for the disposal of the odd numbered rections thus restored to the public domain, it was made the duty of the Commissioner of the General Land Office to "re-offer for public sale, in the usual manner, the lands embraced in the lists of surrendered lands aforesaid."

The question of private cash entries of the even sections thus restored to the public domain, was presented to this department in the case of Pecard v. Camens et al. (4 L. D., 152), and it was therein held so far as said even numbered sections were concerned, that,

Where land had been once offered, then increased in price and again offered, and while in that condition declared by Congress to be subject to sale at the first price, and private entries were allowed therefor, without further offering, such entries are not void but voidable, for the want of a restoration notice, and may be confirmed by the Board of Equitable Adjudication.

The lands in the case at bar being in the same township with part of those in controversy in Pecard v. Camens, are properly subject to the rule therein applied.

Therefore the application of entrymen for patents will so far as the said lands in sections ten and twenty are concerned be referred to the Board of Equitable Adjudication.

The question of the method of disposal of the odd numbered sections restored to the public domain by the change of route of said railroad and the resolution of July 5, 1862, was decided by this department in Wakefield v. Cutter et al. (6 L. D., 451).

In said case the status of such odd numbered sections was fully discussed and it was held that "as Congress had in the act providing for their restoration to the public domain, affixed as a condition to their acquisition by a purchaser, the requirement that they be re-offered at public sale, this re-offering at public auction was a condition precedent to the right of entry of such sections."

It follows then, that under the rule in Wakefield v. Cutter, supra, claimant's private cash entry for the SE. 4 of Sec. 17, must be canceled. Your said decision is modified accordingly.

TIMBER CULTURE ENTRY-FINAL PROOF.

ROBERT M. WINSLOW.

There is no provision in the timber culture law requiring that the trees should attain any particular height or size before certificate and patent can issue for the land. The eight years of cultivation required by the statute, must be computed from the time the full acreage of trees, seeds, or cuttings are planted.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 9, 1889.

Robert M. Winslow appeals from your office decision, dated December 6, 1887, rejecting the final proof tendered by him under his timber culture entry, No. 1395, for the NW. 4, Sec. 26, T. 141 N., R. 64 W., Fargo land district, Dakota.

The record discloses the following facts:

Entry was made July 5, 1878. Final proof was offered June 11, 1887.

The proof was rejected by the local officers, "for the reason that we do not think the trees have reached such size as will reasonably ensure their maturity without further protection."

This action was affirmed by your office, but claimant's entry was allowed to stand subject to his making new proof when he can show that the trees "have attained a growth such as will insure their permanent existence."

I can not assent to the reasons given for the rejection of this claimant's final proof. There is no provision in the timber culture law requiring that the trees should necessarily attain any particular height or size before certificate and patent can issue for the land, and in this respect the proof in this case is not necessarily defective.

The proof submitted, however, fails to show that the trees have been cultivated and kept in a healthy growing condition for the period of eight years plainly required by the law. The eight years of cultivation required by the timber culture act must be computed from the time the full required acreage of trees, seeds, or cuttings are planted. Departmental circular, June 27, 1887 (6 L. D., 284). This interpretation is manifestly in accord with the plain and positive terms of the act, and under it the claimant's proof is clearly insufficient, inasmuch as it shows a cultivation of less than seven years, instead of eight years, since the trees were planted. The proof must, therefore, for that reason, be rejected, and your decision to that effect is affirmed. The claimant will be allowed to submit new proof within the lifetime of his entry, when he can show the full eight years cultivation required.

This case is, in many respects, similar to that of Henry Hooper (6 L. D., 624), to which reference is made.

PRACTICE-APPEAL-RELINQUISHMENT-RESIDENCE.
O'BRIEN v. RICHTARIK.

Failure to file specifications of error within the required time will not defeat an appeal where such failure was caused by the appellant's inability to secure a copy of the decision.

A motion to dismiss an appeal, filed by a former attorney of the appellant, will not be considered where it is apparent that said attorney, at the date of said motion, had ceased to represent the appellant.,

A relinquishment to be effective must be the voluntary act of the entryman. In the absence of an intervening adverse claim, credit may be allowed a homesteader for residence on the land while covered by his previous timber culture entry. First Assistant Secretary Muldrow to Commissioner Stockslager, February 9, 1889.

On January 13, 1874, Jcseph Schumcker made timber-culture entry for the SE. of Sec. 8, T. 5 N., R. 3 E., Beatrice, Nebraska. This entry was, on October 22, 1883, canceled upon Schumcker's relinquishment and same day Frank Richtarik made timber-culture entry for the tract named. On November 12, 1883, John O'Brien filed against the entry of Richtarik his affidavit of contest, alleging that the land was not naturally devoid of timber and on the same day he (O'Brien) applied to make homestead entry thereon.

A hearing upon said contest was had at the local office on January 8, 1884, at which time Richtarik made default. Upon the testimony submitted the local office found "that at least twenty-five acres of natural timber is growing upon said section and at least five acres upon the SE. of said section; that said SE. was not subject to entry under the timber-culture act." No appeal was taken from this finding.

By office letter of August 16, 1884, you state, "that there is also now before me for action, certain affidavits submitted . . . in support of the application of said Schumcker for the re-instatement of his said canceled timber culture entry on the ground that its cancellation was brought about through fraud."

By the same letter, your office held that "a rehearing should be had in the case of O'Brien v. Richtarik and that Schumcker should be allowed to interplead therein, this with the view to arriving at all the facts bearing upon Schumcker's alleged fraudulent relinquishment of his entry and permanent right to the land so that ample justice may be done in the matter."

By letter of July 12, 1885, the local office transmitted the testimony taken at a hearing had before the local office on October 6 and 7, 1884, also the testimony taken before a justice of the peace at Wilber, Nebraska, on October 31, 1884, and before the local office in June, 1885. They also forward by the same letter, the application of Schumcker, dated October 7, 1884, whereby he asked that his timber-culture entry