July 2, 1886, you affirm the decision of the local officers and say:

The application of Iddings without tender of fee and commissions, could not have been allowed; therefore it could not have operated to withdraw the land embraced therein from disposition. February 13, 1886, the entry of Burns was made. On the date, therefore, of the formal presentation of Iddings' application, viz: on February 17, the land was appropriated and you properly rejected it for that reason. From this decision the appeal now before me was taken.

I concur in so much of your decision as holds that the notice given by Sweeney of his intention to make proof was not an appropriation of the land operating to prevent the allowance of Burn's homestead entry. A pre-emption filing does not appropriate the land covered by it so as to preclude a homestead entry for the same tract, subject of course to any rights which the pre-emptor may have in the premises; and the fact that notice of intention to make proof has been given does not alter the fact that it is still a filing and not an entry. When proof has been ac cepted upon a pre-emption claim and cash entry has been made, then as in the case of a homestead entry, the land is appropriated and another entry for the same tract cannot be made. Hence there was no reason why the application made by Iddings January 26th should not have been accepted, or after its rejection that of Burns. Therefore the question to be determined is whether Iddings or Burns has the prior homestead entry of the land. You hold that Iddings made no entry for the reason that he did not pay the fees and commissions. In the case of Gilbert v. Spearing (4 L. D., 463) the definition of the essential parts of a homestead entry given in the case of Thomas v. St. Joseph and Denver City R. R. Company (3 C. L. O., 197) is quoted with approval, viz:

. Each of the three elements of which this transaction is composed forms an essential part thereof, the application, the affidavit and the payment of money; and when the application is presented, the affidavit made and the money paid, and entry is made, a right is vested.

In this case Iddings complied with two of the three requirements by making application to enter this land under the homestead law, and by filing the homestead affidavit. As to the failure to pay the fees and commissions he swears that when on January 26, 1886, he presented his application and affidavit he was

then and there present ready to pay the entry for said land; that he presented said entry papers to A. H. Ainsworth, chief clerk of said land office who informed affiant that the land was not subject to entry by reason of the fact that Patrick Sweeney, who had pre-emption filing thereon had filed in the land office notice of his intention to make final proof thereon on the 17th day of February, 1886, and that the filing of such notice was a part of the final proof and appropriated the land and withdrew it from entry for the time being and until February 17, 1886 when if Sweeney did not offer proof affiant could make entry of the land.

It, therefore, appears that Iddings did not comply with the third requirement, viz: the payment of the legal fees. Not only were the fees not paid but, as the endorsement made on the application by the reg. ister states, no money was tendered. Iddings should have paid the

fees when he made his application; and if, as he alleges, he failed to do so because he was advised at the local office that he would not be permitted to make entry pending the notice of Sweeney of his intention to make proof, yet the mistake was partly his. I hold, therefore, that Iddings made no homestead entry for this tract and that the entry of Burns was properly allowed.

Your decision is, accordingly, affirmed.

HOMESTEAD ENTRY - MILITARY SERVICE-RESIDENCE.

FREDERICK MEISZNER.

In the acceptance of military service in lieu of residence, an entryman is not entitled to credit twice for a period covered by two enlistments.

A settlement upon land covered by the entry of another confers no right as against the entryman who complies with the law, but if such settler subsequently procures the cancellation of the entry he may be allowed credit for residence from the time it actually began.

Secretary Vilas to Commissioner Stockslager, February 18, 1889.

I have considered the appeal of Frederick Meiszner, from your office decision of April 7, 1887, holding for cancellation Samuel Durham's homestead entry for the NW. of Sec. 26, T. 15 N., R. 4 E., Lincoln land district, Nebraska.

Samuel Durham made homestead entry for this land May 2, 1876, and on May 19, 1877, offered final proof thereunder claiming residence from July 6, 1875, and also claiming credit for military service for a longer period than necessary to make up a five years residence. Said proof was approved by the local officers and final certificate issued bearing date of June 8, 1877. Upon examination in your office said entry was suspended, it being held that the proof was prematurely made, the claimant being entitled to credit for military service of three years, five months and four days, which, when added to the actual residence shown, amounted only to four years, six months and four days, and the entryman was required "to furnish supplemental proof at the expiration of the time required by law."

The entryman did not respond to this requirement and no further steps seem to have been taken in the case until December 29, 1886, when the attorney for Frederick Meiszner transmitted to your office an affidavit of said Meiszner, setting up that he (Meiszner) bought the south half of this tract of land February 14, 1882, paying therefor the sum of $460; that he afterwards moved upon said land with his family and had continued to reside there to the date of said affidavit, improving and cultivating the same, and "that affiant has been informed since the purchase of said land and within the last six months that the said tract of land was entered by one Samuel Durham June 8, 1877; and that no patent has ever been issued therefor and that said entry was

and is now suspended for some defect in the compliance with the requirements of the law by the said Samuel Durham ;" and that he had no knowledge of the whereabouts of said Durham or his present place of residence, and asked that said entry might be passed to patent.

The statement contained in this affidavit is corroborated by the affidavit of R. E. Moore, the party from whom Meiszner bought. In the letter of the attorney, transmitting these affidavits, it is said:

In the light of these affidavits it becomes at once apparent that the supplemental proof of Samuel Durham allowed by your office letter of September 14, 1877, to register and receiver at Lincoln, can not be made. It is plain, therefore, that the entry must stand or fall upon the final determination of the length of military service to be credited said Durham under section 2305 Revised Statutes of the United States, unless, in your judgment, the case is one for the Board of Equitable Adjudication as it seems to me it ought to be in view of said Durham having actually resided on and cultivated said land from July 6, 1875, nearly ten months longer than you allow him credit for and he believing that his residence and military service taken together much more than fulfilled the requirements of the law. I respectfully request that you will take final action in the case in order that I may appeal to the Honorable Secretary of the Interior and obtain a final ruling as to the proper construction of Section 2305, Revised Statutes of the United States, in its application to this case.

Your office, on April 7, 1887, held the entry for cancellation. From that decision Meiszner appealed, alleging error in holding that the entryman "did not reside upon the land fully five years including his time served in the United States Army;" and in computing the time to be allowed the entryman for his military service, and in holding that the entryman should not be allowed credit for residence from the date of his settlement.

The final proof in this case shows that Durham was a qualified homesteader; that he, with his family, consisting of a wife and six children, moved on to this land July 6, 1875, and resided there continuously to date of final proof, May 19, 1877; that his improvements on the land consisted of a wood and sod house fourteen by twenty six feet, containing two rooms, two doors and two windows; a stable, a granary, about one thousand forest trees planted and about one hundred acres under cultivation.

It appears from the proofs that Durham was, on August 12, 1862, enrolled in the 125th regiment of Illinois Volunteers to serve three years or during the war, and was, on July 16, 1863, discharged for disability. On February 2, 1865, he re-inlisted for the term of one year, and was mustered out January 16, 1866, by reason of special order No. 171, military division of Tennessee. Your office gave him credit for service during the three years of his first enlistment and for that period of actual service under his second enlistment occurring after the expiration of the period of his first enlistment, being from August 12, 1865 to January 16, 1866, making a total service of three years, five months and four days. It is contended, however, that the entryman was entitled to credit for the full term of his first enlistment of three years and also for the full term of service under his second enlistment, mak

ing a total of three years eleven months and fourteen days. To allow this claim would be to give him credit twice for the period from the date of his second enlistment to the date when the term of his first enlistment expired amounting to six months and ten days, and this is not contemplated by the law.

At the time Durham settled upon this land and established a residence there, it was covered by a former homestead entry which was canceled for voluntary relinquishment April 22, 1876. Your office held that he was not entitled to credit for residence on the land prior to the cancellation of the former entry, which holding is assigned as error by the appellant here.

This former entry was made November 7, 1872, by one Stephen Brothers, and was canceled April 22, 1876, upon relinquishment dated March 22, 1876, which instrument was witnessed by Samuel Durham. An examination of the records of your office fails to disclose any of the circumstances that led to the execution of this relinquishment. The fact, however, that the name of Durham who was then an adverse claimant by reason of his settlement for the land, appears as a witness to said instrument would indicate that he was instrumental in procuring its execution.

Durham's entry was made, final proof thereunder submitted and the decision of your office of September 14, 1877, rejecting the same rendered prior to the passage of the law of May 14, 1880, and the action then taken was proper.

It seems, however, that the entryman did not receive notice of this de. cision until it had been modified by the later decision allowing him credit for residence from the date of the cancellation of the prior entry, but refusing to allow such credit for the period from date of settlement to such cancellation from which decision the appeal now under consideration was taken. While one who makes a settlement upon land covered by the entry of another can by that settlement acquire no rights as against the former entryman, who complies with the requirements of law and perfects his title to the land, yet if the subsequent settler procure the release of the land from that prior claim either by means of a relinquishment or through a contest, I can see no good reason either in law or equity for refusing to allow him credit for residence from the time it actually began. He took the risk of the former entryman failing to perfect his claim. In this case the period of his actual residence from date of settlement to date of final proof when added to the period of military service for which he is entitled to credit, makes more than the period required by law. It is also shown that the entryman complied in good faith with the other requirements of law, and the final proof should therefore be approved.

The decision appealed from is, therefore, reversed and it is directed that said entry be passed to patent.

REPAYMENT-DESERT LAND ENTRY.

ANNA R. Burdick.

Repayment may be allowed where, through no fault of the entryman, a desert land entry was made for non-irrigable land, and subsequently relinquished on discovery of the mistake.

Secretary Vilas to Commissioner Stockslager, February 18, 1889.

I have considered the appeal of Anna R. Burdick from your office decision of November 1, 1889, denying her application for the re payment of the purchase money paid on desert land entry No. 189, Hailey land district, Idaho.

Mrs. Burdick entered lots 3 and 4, and the SE. 14, of the SW. 4 of Sec. 18 and lot 1 of Sec. 19, T. 2 N., R. 18 E. Hailey, Idaho, under the act of March 3, 1877 providing for the sale of desert lands, May 9, 1886, and paid to the receiver $43.10 being at the rate of twenty-five cents an acre for the land above described.

September 25, 1886, Mrs. Burdick relinquished her said entry to the United States and upon the same day made application for the return of the purchase money paid on said entry.

By letter of November 1, 1886, you denied said application.

It appears from the affidavit of Mrs. Burdick that misled by the advice of a man named Turner, her entry was not for the land she had visited and thought she was entering (which she afterwards found was covered by the pre-emption claim of V. Lamb) but lay to the north of it and higher. There was no source from which to get water and it will

be impossible, she says, to reclaim the land.

It would appear that if the land Mrs. Burdick designed to enter had not been pre-empted, she would have been entitled to amend her entry according to her intention. Her mistake in the proper description probably occasioned her failure to discover that the tract she sought had been filed on. Her entry ought, therefore, equitably and fairly to be treated as if made according to her true intention and as for the land for which it would be amendable to designate; and in that case it would be found in conflict with a prior entry, and be canceled and the money would be returnable. I cannot think the United States may refuse to return the money paid in consequence of an excusable mistake when if the mistake were not made it would be returnable.

For the reasons I have given I think the money paid by Mrs. Burdick should be returned to her. Therefore, I reverse your decision and direct the repayment of the $43.10 paid by her when she made said entry.