against the entry, alleging that the entryman died on or about July 1, 1889, "leaving no heirs."

Subsequently Abraham Clement, William Lewis, Valentine Balzer, and Edwin H. Hall filed contests against the entry, alleging substantially the death of the entryman, and that the unknown heirs abandoned the tract.

The hearing was had August 12, 1891, the contestant Clement making default. Service by publication on the unknown heirs was filed by each of the remaining contestants, and the heirs failing to appear, were declared in default. The several contests were consolidated.

The register and receiver decided that Patterson had failed to establish the truth of his charge, namely, that the deceased entryman had left no heir, and dismissed his contest. That the charges of Lewis, Balzer and Hall, namely, that the heirs of the deceased entryman had abandoned said tract and failed to cultivate or improve the same, was sustained by each of said contestants, and the entry was accordingly recommended for cancellation.

The local officers further held that Balzer was the first to file a contest, the charges of which were established by the evidence; his contest was therefore sustained, and all others were dismissed.

From that action Patterson, Hall and Lewis appealed.

Your office, by decision dated June 8, 1893, affirmed the action of the local office dismissing Patterson's contest. Your office further held that "the consolidation of separate contests is not allowable," and for that reason reversed the action of the local officers in sustaining the contest of Balzer, while a prior one was under consideration, and remanded the case, that "the contest initiated by a second contestant may be taken up and decided from the record transmitted by you.”

From that judgment Patterson has appealed.

The record has been very carefully examined. I concur in the finding of your office and the local office that Patterson failed to sustain his charges, and his contest was therefore properly dismissed.

The evidence shows that the entryman died on or about June 30, 1889. Service was had by publication upon the unknown heirs, and the hearing thereafter had established the fact that the heirs, if any, abandoned the land.

The evidence on the part of each of the contestants, Hall, Lewis and Balzer, is sufficient upon which to base a judgment of cancellation, and the only question now to be determined is as to which of the three last named is to be awarded the first or preference right of entry.

In all cases, the first contestant in time is entitled to the first process and hearing; if for any cause he fails to sustain his charges, the second contestant is then entitled to his day in court; but these contests should not be consolidated or heard at the same time; such practice results oftimes, as in the case at bar, in disputations and wordy conflicts among the several contestants themselves.

The second and all subsequent contests may be received and filed, but no action should be taken thereon until the first is disposed of; if the first contest fails, the subsequent contests may be taken up in their order.

Since the evidence amply justifies a cancellation of the entry, and inasmuch as the register and receiver have decided that Balzer is the second contestant, and decided in favor of him, and Hall and Lewis have appealed from that action, I see no reason why the case should be returned to the local office, "where the contest initiated by the second contestant may be taken up and decided from the record transmitted by you."

The record is therefore returned, with directions that you pass upon the case as presented by the appeals of Hall and Lewis. The decision appealed from is accordingly modified.

RAILROAD LANDS-SETTLEMENT RIGHT.

STRYKER ET AL. v. BRINKLEY.

The validity of a settlement, as affected by its having been made within the enclosure of another, cannot be questioned by one who at such time had no interest in the land, nor in the improvements thereon.

The right of purchase under section 5, act of March 3, 1887, can not be exercised by one who has rescinded and surrendered his contract of purchase made with the railroad company.

Secretary Smith to the Commissioner of the General Land Office, Decem. (J. I. H.)

ber 13, 1894.

(F. W. C.) With your office letter of August 25, 1893, were forwarded the papers in the case of J. V. S. Stryker v. John H. Brinkley, involving the W. of the SE. of Sec. 21, T. 4 N., R. 68 W., Denver land district, Colorado, on appeal by Stryker from your office decision in favor of Brinkley.

This land is within the limits of the grant for the Union Pacific Railway Company, and was held to be excepted from that grant upon the application by Cornelius V. Stryker to make pre-emption filing for the same.

Cornelius V. Stryker is the father of J. V. S. Stryker, and it appears that he entered into a contract with the Union Pacific Railway Company in February, 1885, for the purchase of the entire SE. 1 of said section 21. In the following October, learning that there was some question as to the company's right to the W. of the SE., being the land in controversy, he instituted a contest against the company as to said tract by applying to file pre-emption declaratory statement for the same, which resulted in his favor, as before stated. This decision was rendered in 1888, and before filing his pre-emption declaratory statement on January 17, 1889, he agreed with the company to surrender his old contract covering the entire SE. 4, and was given a

contract for the E. of the SE. 4, and the money previously paid upon the whole SE. was applied on account of the new contract for the E. of the SE. 4.

On September 12, 1890, John H. Brinkley filed pre-emption declaratory statement for the W. of the SE. 1, being the land in question, alleging settlement September 6, 1890, and on November 17th following, J. V. S. Stryker made homestead entry for the same land.

In accordance with published notice, Brinkley offered final proof under his filing on September 19, 1891, when he was met by J. V. S. Stryker, who protested against the acceptance of the same, alleging that Brinkley had never made a valid settlement upon the land. At this hearing Cornelius V. Stryker made no appearance in his own behalf, but was present as a witness for his son.

Upon the record as made the local officers recommended the acceptance of Brinkley's proof and the cancellation of the filing by Cornelius Stryker and the homestead entry by John V. S. Stryker. From this decision John V. S. Stryker appealed, which appeal was considered in your office decision of March 20, 1893, which sustained the decision of the local officers and held for cancellation the homestead entry by J. V. S. Stryker.

J. V. S. Stryker has further appealed to this Department.

Since transmitting the record upon the appeal by J. V. S. Stryker you have forwarded the papers relative to the case of John H. Brinkley v. Cornelius V. Stryker, which arose upon the application by Stryker to purchase the land under the 5th section of the act of March 3, 1887 (24 Stat., 556).

At the time of the offer of proof under said application, Brinkley appeared and moved that the same be dismissed, which motion was granted by the local officers, and Stryker appealed therefrom.

As to the first case arising upon the offer of proof by Brinkley, after a careful consideration of the matter, I must affirm your office decision, for the reason that the enclosure of the land by the elder Stryker could not prevent Brinkley from making a valid settlement thereon as against J. V. S. Stryker, who had at that time not attained his majority, and who had no interest in the land nor the improvements thereon until after Brinkley had established an actual residence upon the land.

As between J. V. S. Stryker and John H. Brinkley, I have, therefore, to direct that Stryker's homestead entry be canceled, and that Brinkley be permitted to complete entry upon the proof already made.

In the matter of the case arising upon the application of Cornelius V. Stryker to purchase the land under the 5th section of the act of March 3, 1887, I must hold that no such right of purchase exists, for the reason that by the rescission and surrender of the contract originally made by the company for the entire SE. (with the view of transferring the payments previously made under said contract to the E. of the SE., for the purchase of which a new contract was entered

into), any right of purchase which may have previously existed under the act of 1887 as to the W. of the SE. was abandoned, and the

case arising upon Stryker's application is therefore dismissed.

Your office decision is accordingly affirmed.

ENTRY-SUBMERGED LANDS.

JESSE BURKE.

There is no law authorizing the entry of submerged lands lying within a navigable

stream.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.) ber 13, 1894.

(P. J. C.)

The record shows that Jesse Burke made soldier's additional homestead application for certain lands which are described as "Belle Isle Middle Ground," in T. 2 S., R. 12 E., Grayling, Michigan, land district April 25, 1892, which was rejected by the local officers, because "the records of this office show no land as within described subject to homestead entry."

On appeal your office, by letter of April 27, 1893, affirmed their decision, whereupon the applicant prosecutes this appeal.

It is conceded by the applicant in his voluminous correspondence in reference to this matter, that what he terms the "parcel of land" applied for is under the waters of Detroit River, from three to five feet deep. It is shown by the chart made under the direction of the War Department, on file in your office, and approved in 1876, that there is no land in the vicinity described except such as submerged at the depth above mentioned. By the original survey of this township, approved in 1818, two small islands, possibly covering part of that sought to be entered, are indicated, but they were not surveyed. These small islands, it is shown by affidavits filed by the applicant, have long since disappeared from the surface of the water.

There is no law to my knowledge that would justify the entry of a "parcel of land" thus submerged in a navigable stream. Your decision is therefore affirmed.

REPAYMENT-DESERT LAND ENTRY.

S. V. REHART.

Repayment of the first installment paid on a desert land entry, on the ground that the entryman is unable to secure a water supply, will not be allowed, where the applicant makes entry prior to having secured a water right.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.)

ber 13, 1894.

(J. I. P.)

On November 8, 1888, S. V. Rehart filed in the local office at Lakeview, Oregon, a declaration of his intention to reclaim Sec. 14, T. 33

S., R. 18 E., under the provisions of the desert land act of March 3, 1877 (19 Stat., 377), and on the 9th day of June, 1893, he filed in the same office his relinquishment of said tract, together with an application for the repayment of the purchase money paid by him on November 8, 1888, amounting to the sum of $160.

Said application was transmitted by the local office to your office, which, on July 5, 1893, rejected the application, for the reason that the entryman had relinquished his entry because he was unable to obtain water to irrigate the land, and that the law governing the return of purchase money does not provide for repayment in cases where the parties failed to comply with the law under which they have made their entries.

Paragraph 10 of the instructions of your office of July 27, 1887 (5 L. D., 708), provides that a person who makes a desert land entry before he has secured a water right does so at his own risk, and as one entry exhausts his right of entry, such right cannot be restored or again exercised because of failure to obtain water to irrigate the land selected by him.

The appeal by Rehart from your office decision is substantially upon the ground that he endeavored in good faith to obtain water with which to irrigate said tract, but failed to do so, through no fault of his, and that therefore his application should be approved, and repayment of his purchase money should be directed by this Department.

In the case of Frank A. White (17 L. D., 339), reference is had to all of the legislation of Congress on the subject of repayment of purchase money and fees, and it is there declared that no public officer has power to pay money out of Treasury of the United States without a statute expressly authorizing him so to do, and however just a claim for repayment may be unless there is in existence a statute authorizing repayment by the Secretary of the Interior, no relief can be granted.

The facts in this case are that Rehart purchased an interest in an irrigating ditch prior to the date of filing his declaration of intention to reclaim the tract in question, and after he had expended quite a sum of money in completing said ditch, he was enjoined by certain land owners whose lands lay below Rehart and on both sides of the stream from which he expected to get the water to irrigate said tract. He claims that said injunction prevented him from irrigating his land, although, in fact, he had in good faith done all he could to secure water for that purpose. It will be observed that the purchase by Rehart of the irrigating ditch was not obtaining a water right, and that while he is peculiarly unfortunate in having expended the amount of money he did on said improvements, and still failing to secure water for irrigation purposes, yet he did not comply with paragraph 10 of the order of June 27, 1887, supra, in that he did not acquire a water right prior to entry, and hence proceeded at his own risk. His failure is due to no fault on the part of the government. Nor does it appear that the government