While it is the duty of the government to see that this scrip is delivered to the true owner, as far as it is able to ascertain such ownership, and should cause investigation to be made whenever a claim of ownership adversely to the assignee is made, it can not afford to litigate in the courts as to the ownership of the certificate where no adverse claim is asserted.

The question as to the freedom of the judgment of probate courts in Louisiana from collateral attack was considered by the Circuit Court of Appeals in the cases of Garrett et al. v. Boeing (68 Fed. Rep., 51); Hodge v. Palms (Ib., 61); Fletcher v. McArthur (Ib., 65), and McCants v. Peninsular Land Co. (Ib., 66).

Your attention is called to the decision of the Department of January 31, 1907, in the case of Lawrence W. Simpson (35 L. D., 399), holding that there is no authority for the allowance of locations with this scrip on land not subject to private cash entry. Where land is not subject to entry, the location is absolutely void and, as with all other void acts, there is no room for the application of the doctrine that an innocent purchaser is protected. If the location is void, it is the duty of the Department to so declare it, as long as it retains jurisdiction over the subject matter.

TIMBER AND STONE ACT-LANDS WITHDRAWN UNDER RECLAMATION

ACT-CONFIRMATION.

CHARLES O. DELAND.

No such vested right is acquired by an application to purchase lands under the timber and stone act, prior to making final proof and payment, as will prevent withdrawal thereof under the provisions of the act of June 17, 1902, and an entry erroneously allowed upon final proof and payment made subsequently to such withdrawal confers no rights upon the entryman and is not susceptible of confirmation under the provisions of section 7 of the act of March 3, 1891.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.)

1

Office, July 16, 1907.

(E. J. H.)

May 2, 1904, Charles O. DeLand filed his sworn statement for lots 1, 2, 3 and SE. of NE. and NE. of SE. of Sec. 11, T. 37 S., R. 13 E., Lakeview, Oregon, land district, under the timber and stone act of June 3, 1878 (20 Stat., 89), and on October 5, 1904, he submitted proof thereon and final certificate was issued to him therefor.

November 12, 1906, your office decision held that said entry was erroneously allowed for the reason that the lands were, on August 10, 1904, withdrawn from entry under the first form of withdrawal, for the Klamath irrigation project, under the act of June 17, 1902

(32 Stat., 388). The entry was, upon the authority of the case of Board of Control, etc. v. Torrence (32 L. D., 472), held for cancellation.

It was also held in said decision that while the entry was over two years old, it was not confirmed by section 7, act of March 3, 1891 (26 Stat., 1095), for the reason that the same was void from the beginning. The cases of Mee v. Hughart (13 L. D., 484), and United States v. Smith (id., 533), were cited as authority for such ruling. DeLand appealed therefrom to the Department.

February 1, 1907, counsel for the Weyerhaeuser Land Company filed in your office a deed, executed on August 14, 1906, by Charles O. DeLand and wife, conveying the lands in controversy to said company, which has been forwarded to the Department. It is alleged in the company's brief accompanying said deed that the lands were purchased in good faith for a valuable consideration, after a thorough examination of the papers relating to said timber and stone entry, by reason of which said company was satisfied that the entry was regular and without fraud or collusion, and because of the acceptance of final proof and the issuance of final receipt by the local officers.

The Department has repeatedly held that no such vested right is acquired by an application to purchase lands under the timber and stone laws, prior to the making of final proof and payment, as will deprive Congress of the power to make other disposition of said lands; also that a withdrawal made by the Secretary of the Interior of lands under the provisions of the act of June 17, 1902, has the force of a legislative withdrawal, and is effective as to all lands within the designated limits to which a right has not vested. Departmental Instructions of January 13, 1904 (32 L. D., 387); Board of Control v. Torrence, supra. It is claimed by counsel for the transferees that notice of the withdrawal of the lands should have been given DeLand by the local officers, and that by reason of their failure so to do, and their acceptance of the final proof and payment of the land, and the issuance of final receipt, the right of entry became vested in DeLand, and dated back to the time of the filing of his sworn statement.

The lands were not, however, subject to entry at the time DeLand was allowed to submit his proof and make payment therefor. The action of the local officers in receiving the same and issuing final receipt was erroneous, and did not give him any vested right to the land, though not formally notified of the withdrawal by the local officers.

With reference to the claim of confirmation of the entry under the proviso to section 7 of the act of March 3, 1891, it was held in the case of Mee v. Hughart, supra, that "an entry that is a nullity under

the law as it existed prior to the act of March 3, 1891, is not susceptible of confirmation under the proviso to section 7 of said act." To the same effect, see the case of United States v. Smith, supra. In the case of Mee v. Hughart, the claim was based on a soldiers' additional homestead entry, made under a power of attorney given several years before, and at the time of such entry the soldier was not living. In that of United States v. Smith, the entry was made on lands not subject to entry..

It is also claimed on behalf of said transferees, that

in neither one of these cases could the action or mistakes of the local officers have been the ground for title in the hands of bona fide purchasers, for in both cases were the entries void from the beginning, of which a transferee could be held bound to take notice. But not so in the case at bar where the original entryman entered land open to such entry and where his rights, or those of his transferee, were never questioned until after two years from the date of issuance of final receipt.

This claim, however, is not sound. There is in fact no such distinction between the case at bar and those cited. In the case at bar DeLand had no entry of the land at the time of its withdrawal on August 10, 1904, and his entry therefor, erroneously allowed subsequently to the withdrawal, was void, and the transferees were bound to take notice thereof. Said entry is not therefore confirmed under the act of March 3, 1891.

Your office decision is affirmed.

DAVID K. EMMONS.

Motion for review of departmental decision of June 17, 1907, 35 L. D., 599, denied by Acting Secretary Woodruff, July 17, 1907.

STATE SELECTION—APPLICATION FOR SURVEY-NOTICE-ACT OF AUGUST 18, 1894.

WILLIAMS V. STATE OF IDAHO.

The filing on behalf of a State of an application for the survey of lands under the act of August 18, 1894, and the publication of notice thereof as provided by the act, operate as a withdrawal thereof, notwithstanding no formal notice of withdrawal was given the local officers.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 17, 1907. (F. W. C.)

The Department has considered the appeal of J. Emerson Williams from your office decision of June 16, 1906, holding for cancellation

his homestead entry covering the W. SW. of Sec. 15, and E. SE. 4, Sec. 16, T. 44 N., R. 3 E., B. M., Coeur d'Alene land district, Idaho, for conflict with selection made of said land by the State as school indemnity within the period of preference right granted the State by the act of August 18, 1894 (26 Stat., 372, 394).

In this case the governor made application for the survey of this township July 5, 1901, and publication thereof was made in the "Idaho State Tribune," of Wallace, Idaho, for six weeks, commencing July 10, 1901, and continuing up to and including August 14,

1901.

Williams alleges settlement on this land April 1, 1902, subsequently to the filing of the governor's application for the survey of the township. Williams made entry July 17, 1905, the day the plat of the township was officially filed.

The State's list of indemnity selections was filed within the 60 days following the filing of the township plat of survey, so that the only question presented by this record is: Were the lands withdrawn under the act of 1894 upon the governor's application? Your office decision finds that the State had complied with all the conditions of the act of 1894, but a formal notice of the withdrawal was not forwarded by your office to the local officers. This is presumably due to the fact that at the time of the filing of the governor's application, which covered more than 18 townships, an inquiry was instituted on the part of your office to ascertain whether the withdrawals theretofore made under the statute were not sufficient to satisfy the several grants to the State. Response was made thereto on behalf of the State, which was considered satisfactory because many other applications have since been filed and notice of withdrawals issued thereon by your office.

In the case of Stephen A. Thorpe et al. v. State of Idaho, a somewhat similar question was presented. In that case an application for survey had been filed in 1899, upon which your office issued a notice of withdrawal to the local officers, but the State never entitled itself to the withdrawal upon said application because no publication was made thereon as required by the statute. The notice of withdrawal stood unrevoked, and at a later date a second application for survey of the same township was filed, due publication being made, but no formal notice of the withdrawal upon the second application was given the local officers. In disposing of that case it was stated in a decision rendered June 27, 1907 (35 L. D., 640), that

If the State had fully performed the conditions upon which a reservation was directed by the statute, the mere failure on the part of your office to give proper notice to the local officers or the miscarriage of said notice, in the event it was directed to your office, should not prejudice the rights of the State. The law prescribes the publication for the purpose of giving information to

the public of each application for survey, and the direction with respect to the notice to be given the local officers, while it would serve, in a measure, the same purpose, was primarily intended for information to the local officers that their records might be properly noted.

Applying this holding to the case under consideration, it must be held that a withdrawal attached upon the State's application for the survey of this township upon the filing of the application by the governor, and as a consequence all subsequent settlements were subject to the superior claim of the State, if proper selection was filed within the period of preferential right granted by the act of 1894.

The State's application appears to be a proper one and upon its final acceptance by your office, Williams's entry will be canceled. The State's claim to the tract in section 16 is on account of its grant in place and not dependent upon a selection. Under the act of February 28, 1891 (26 Stat., 796), settlements made upon sections 16 and 36 prior to survey in the field are protected, but this application was made for the survey of this township under the act of 1894. In view of the decision in the case of Ensign v. State of Montana (34 L. D., 433), such settlements only are protected as were made prior to the withdrawal upon the governor's application for the survey of the township. This is in lieu of the decision of June 27th, last, not promulgated, which is hereby recalled and vacated.

DELLAGE V. LARKIN.

Motion for review of departmental decision of January 17, 1907, 35 L. D., 378, denied by Acting Secretary Woodruff, July 20, 1907.

CALIFORNIA SCHOOL LAND-ACT OF MARCH 1, 1877.

WHITE v. SWISHER.

An indemnity selection by the State of California, approved prior to the act of March 1, 1887, in lieu of lands in a school section supposed to be lost to the State by reason of being included in a Mexican grant, but subsequently upon final survey found not to be within the grant, was confirmed by section 2 of said act, and the base land thereupon became a part of the public lands of the United States, subject to disposal as other public lands; but where the base land is in possession of one claiming under a patent from the State, such possession, although conferring no right as against the United States, should, if bona fide and notorious, be recognized as reasonable ground for according the claimant priority of right to secure title under the public land laws, if qualified, or for affording the State an opportunity to make good the title purported to have been conveyed by it, by assigning a proper and sufficient basis and making selection of the land under its school grant.