This entry at the time of claimant's abandonment, as at all times, was in conflict with the railroad grant, and the act of May 17, 1906, was passed for the relief of those who had been erroneously allowed to enter lands covered by such grant, but that legislation applied only to those who had not abandoned their claims. While it is true claimant's entry was still of record at the time of the passage of the act of May 17, 1906, yet according to the facts in the case as expressly found by your office, he had actually abandoned said entry, which was in conflict with the railroad grant, before the passage of said act. In this view the case is controlled by the principles announced in the case of Monroe Morrow (36 L. D., 155). The only distinction between the facts of this and the Morrow case is that in that case the entry was canceled on the record for abandonment prior to the passage of the act of May 17, 1906, while here, although the entry remained of record at date of said act the land had nevertheless, as per the express finding of your office, been abandoned prior thereto. Under this finding the principles of the Morrow case, as stated, are controlling as there was in fact abandonment of the entry in face of the conflicting grant to the railroad company and prior to any legislation for the relief of those who were erroneously allowed to make entry of lands covered by such grant. In the view of your office the homestead entry might have been confirmed regardless of the conflict if claimant had continued to comply with law up to the passage of the act of May 17, 1906. As stated in the Morrow case, claimant's entry being always in conflict with the railroad grant, confirmation made possible only under such circumstances as the above, is clearly not the confirmation contemplated by the repay

ment act.

The decision of your office herein is reversed and if there be no other objection repayment of the fee and commissions as applied for will be allowed.

TIMBER AND STONE ENTRY-UNSURVEYED LAND-CONFIRMATION.

COBB v. OREGON AND CALIFORNIA R. R. Co.

Land not included in the approved plat of survey of surrounding lands, as returned and filed, is not surveyed; and a timber and stone entry allowed for such land is a nullity and not subject to confirmation under the proviso to section 7 of the act of March 3, 1891.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, February 8, 1908.

(E. O. P.)

James A. Cobb has appealed to the Department from your office decision of August 15, 1907, holding for cancellation his timber and

stone entry of the SE. of Sec. 21, T. 26 S., R. 10 W., Roseburg land district, Oregon.

The entry in question was allowed by the local officers September 1, 1904, subsequent to the date of the filing of plat of survey of said township 26. Said plat, however, shows that this particular tract was not surveyed.. Counsel insists that, even though the plat as returned and approved specifically excepts the land from the survey of the township, yet inasmuch as it is possible to locate and establish all corners by a private survey, so that the subdivisional lines can be extended by protraction, the land is in fact surveyed. There is no force in this contention. The determination of the extent of a survey is a matter vested exclusively in the land department. If for any reason the lines have not been run and a tract is excluded from a survey which might have been extended over it, this action can not be questioned by one seeking to make entry of the land. Land not included in an approved plat of survey as returned and filed is not surveyed. Land intentionally and specifically excluded from an approved plat of surrounding lands can not upon any theory be treated as surveyed. The right to make timber and stone entry is by the law authorizing such entry restricted to surveyed lands. It follows therefore that the action of the local officers in allowing this particular entry was erroneous. It is urged, however, that inasmuch as no other objection is raised to the allowance of the entry, and as no steps looking to its cancellation were taken until after the expiration of two years from the issuance of final receipt thereon, the same is confirmed under the terms of the proviso to section 7 of the act of March 3, 1891 (26 Stat., 1095).

This presents the question as to the jurisdiction of the Department to dispose of unsurveyed land under the timber and stone law. If without jurisdiction the allowance of such an entry was a mere nullity and conferred no rights whatever upon the entryman, nor does such entry come within the confirmatory provision of the statute cited. If, on the other hand, title to unsurveyed land might be acquired under the timber and stone law, and the allowance of the entry was merely irregular and voidable only, then the same falls within the saving provisions of the statute. To this latter class of cases the decision of the Department in the case of Montana Implement Company (35 L. D., 576), cited and relied upon by counsel, applies. The Department was careful in this case not to extend the rule to entries. void in their inception, and allowed confirmation upon the ground that the land was subject to the particular kind of entry involved. In the present case the Department is without authority to permit timber and stone entry of unsurveyed lands and the attempted entry of this particular tract by Cobb was a mere nullity. There was in fact no entry upon which the confirmatory provisions of the statute

could operate. (Mee v. Hughart, 13 L. D., 484; United States. Smith, Ib., 533.)

The decision apealed from is hereby affirmed and confirmation of the entry denied.

NORTHERN PACIFIC GRANT—ADJUSTMENT-ACT OF JULY 1, 1898.

HEUSLER. NORTHERN PACIFIC RY. Co.

A settler upon lands within the limits of the Northern Pacific grant who prior to the act of July 1, 1898, sold to another his right to purchase the lands from the company, and abandoned his residence thereon, thereby recognized the company's superior right and terminated his own interest in the land, and therefore has no claim subject to adjustment under said act.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, February 10, 1908. (E. O. P.) Charles Heusler has appealed to the Department from your office decision of August 5, 1907, declining to accept a relinquishment of his claim to the S. NW. 1, SW. † NE. 4, NW. 4 SE. 4, Sec. 35, T. 5 N., R. 3 E., Vancouver land district, Washington, preliminary to a transfer thereof to other lands under the provisions of the act of July 1, 1898 (30 Stat., 597, 620).

It is admitted by the applicant that he sold his right to purchase the land from the railroad company prior to July 1, 1898, and abandoned his residence thereon, which he alleges was estableshed in 1891.

Counsel insists, however, that this was not an abandonment of his homestead claim, which it is contended might thereafter be asserted even though residence on the land was discontinued. To this the Department can not assent. It is clear from the applicant's own statement that at the time of the sale of this right he believed it was the only claim he had to the land and that he intended to pass to his transferee all his right thereto. No other intention could well have been entertained by the parties to the transaction, for it is improbable that the purchaser would have paid his money for a claim which his vendor reserved the right to dispute. It amounted to a virtual admission that the railroad company had a right to sell and must be held to have terminated any adverse claim which he might theretofore have been asserting as effectually as though he had recognized the superiority of the railroad's claim by himself purchasing the land from it. The Department in the unreported case of Charles Peterson v. Northern Pacific Railway Company, decided May 6, 1907, held that one who purchased from the railroad company prior to the passage of the act of July 1, 1898, supra, had no such claim as was subject. to adjustment under said act. The same would be equally true in the case of one who had prior to that time sold such right of purchase

to another, there being no proof that he did not by such sale intend to recognize the railroad's claim and pass whatever right he had to the land.

It is urged in argument, while denying that this case is such a one, that even though the adverse claim was not being asserted at the date of said act, yet it may properly be subject to adjustment thereunder. Counsel asserts that there is nothing in the act which warrants its limitation to claims in existence at the date of its passage. The contrary has already been decided by the Department (Newkirk v. Northern Pac. Ry. Co., 32 L. D., 369; Neil v. same, 34 L. D., 209, 210), and this construction is in accord with the plain provisions and evident purpose of the act. Only settlers "who have occupied and may be on said lands" at the date of the passage of the act are entitled to prove their claims upon the relinquishment by the railroad company of its claim, and the right to transfer such claim to other lands can only be exercised by such persons as might have been entitled to perfect them had the railroad company relinquished. The decision appealed from is hereby affirmed.

MATHISON. COLQUHOUN.

Petition for rehearing in this case, wherein the Department rendered decision September 12, 1907, 36 L. D., 82, denied by First Assistant Secretary Pierce, February 10, 1908.

WITHDRAWAL-EFFECT OF ERRONEOUS INCLUSION OF LAND NOT INTENDED TO BE WITHDRAWN.

IRA J. NEWTON.

A withdrawal erroneously made to include lands not intended to be embraced therein is nevertheless effective as to such lands, and unless and until released from withdrawal no rights inconsistent therewith will be recognized as attaching to any of the land actually withdrawn.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, February 10, 1908. (E. O. P.)

Counsel for Ira J. Newton has filed motion for review of unreported departmental decision of September 28, 1907, affirming the action of your office rejecting his application to make homestead entry of the E. § NE. †, E. SE. 1, Sec. 25, T. 2 N., R. 9 W., I. M., Lawton land district, Oklahoma.

The application was rejected upon the ground that the land applied for was included in the Fort Sill wood reserve, and not subject to homestead entry.

It is contended that the said reserve as described by metes and bounds in the order creating it does not embrace the tracts described, and it is insisted that such description is controlling and that the Department is without authority to recognize any extension of the reserve beyond said boundaries, notwithstanding the platted location thereof as well as the general description contained in the order of withdrawal has been accepted as correctly defining the area of the reserve, and conforms to the notations made upon the official records. It is clear that the actual withdrawal made in the establishment of said reserve extended beyond the limits defined by the designated metes and bounds and included the land sought to be entered by Newton. Whether or not the interpretation placed upon the order creating said reserve is correct is immaterial so far as the question here involved is concerned. Of course if it were satisfactorily established that the withdrawal had been erroneously made to include lands not intended to be embraced therein, this would present a reason for modifying the order of withdrawal, but until such action is taken no rights, inconsistent with the order of withdrawal, can be recognized as attaching to the land actually withdrawn.

This applicant has no equitable ground upon which to base his claim to recognition. He could not have been misled as to the extent of the withdrawal actually made, as the records defining it were open to him and of their contents he was bound to take notice. No vested right of his has been affected, as no such right can be gained by the mere presentation of an application to make homestead entry.

After carefully considering the matters set up in support of said motion the Department finds no sufficient reason for disturbing the decision complained of, and the motion is accordingly hereby denied.

CONTESTANT-PREFERENCE RIGHT-APPLICATION TO PURCHASE UNDER TIMBER AND STONE ACT.

HARRIS v. HEIRS OF RALPH H. CHAPMAN.

An application to purchase under the timber and stone act, filed in due time, is a valid exercise of the preference right of entry obtained by a successful contest against a homestead entry covering the same land.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, February 14, 1908.

(J. F. T.)

Mary J. Harris has appealed to the Department from your decision of November 4, 1907, sustaining the action of the local officers and dismissing her protest against the timber and stone application of the heirs of Ralph Chapman, deceased, made July 2, 1907, under the act of June 3, 1878, for lots 1 and 2, and the E. NW. 4, Sec. 30,