The record shows that Arcius Vidrine made adjoining farm homestead entry for this land on December 14, 1881, claiming as his original farm the S. of SW. 1, same section, township and range. It seems that Vidrine had lived on his original farm since 1876. He continued to reside thereon until November 1, 1884, when, as he claims, finding opportunity to sell at a good price, he sold his original farm and moved away. He remained away until March 10, 1890, when he returned and established residence on the adjoining farm.

On April 25, 1892, he submitted final proof in support of his adjoining farm entry. He claims to have believed that he would receive credit for the time he lived on his original farm after making his adjoining farm entry. Vidrine's said final proof was rejected by the local office, and he appealed to your office. In your office letter of July 27, 1893, you decided as follows:

In adjoining farm homestead entries the party must fulfil the requirements of the homestead law as to residence and cultivation, but will not be required to remove from the land which he originally owned in order to reside upon and cultivate that which he thus acquires under the homestead law, since the whole 160 acres are considered as containing one farm or body of land, residence upon and cultivation of a portion of which is equivalent to residence upon and cultivation of the whole. Mr. Vidrine having disposed of his original farm, his adjoining farm homestead entry must fall as it has no basis on which to stand. Mr. Vidrine could not be allowed credit for residence on his original farm for the three years (nearly) from December 14, 1881, to November 1, 1884, and add the same to the two years residence upon and cultivation of the land from March 10, 1890, to April 25, 1892.

By your said office decision of July 27, 1893, Vidrine was allowed to make application to have the character of his entry changed to that of one for settlement and cultivation, and when he could show five years residence upon and cultivation of this land as required by law, he would be allowed to submit final proof. He was informed through said decision that in the event of his failure to appeal therefrom or make application for change of entry, the proper steps would be taken looking to the cancellation of the same.

Vidrine never appealed from your said decision, and he claims that it was impossible for him to comply with the requirements therein as to change of entry. He thereupon began looking about for some one to whom he could sell the improvements he had placed on the land. He found a purchaser in the person of Arcade Buller to whom he disposed of his improvements for the sum of about $450.

In the mean time, on September 1, 1893, John L. Guillory filed an application dated August 30, 1890, for entry of said land. He made the proper deposit of fees, the receipt of which was duly acknowledged on same date.

On November 6, 1893, Arcade D. Buller filed his application dated September 25, 1893, for the same tract, accompanied by the proper deposit. It is stated by Buller's counsel that his application was presented at the local office prior to that date, but that the same together

with the fees was returned. This action was attributed to the change of officers at the New Orleans Office which occurred about that time. The indorsement, however shows that Buller's application was filed on November 6, 1893.

Neither of the above applications was rejected upon presentation. On March 3, 1894, a relinquishment by Vidrine was filed in the local office bearing the note in type-writing, "To be used in the matter of homestead application of Arcade D. Buller for the land relinquished by Vidrine, and applied for at the same moment by Buller." It seems that this relinquishment was made September 5, 1893, but was not filed until above date. In view of said relinquishment, the local office on April 7, 1894, rejected the application of Guillory, for the reason that the tract applied for was embraced in the homestead entry of Arcade D. Buller.

Guillory appealed to your office, and by letter of May 22, 1894, you affirmed the action of the local office, and in said decision you stated as follows:

Since an application to enter land which is not subject to entry at the time the application is made, confers no rights upon applicant (Hall et al v. Stone, 16 L. D., 199), and as the applications of Guillory and Buller should have been rejected upon presentation, they could not be recognized as pending applications at the date of Vidrine's relinquishment. Therefore, Buller, by renewing his application (as appears from the note on Vidrine's relinquishment), on March 3, 1894, appeared as the first legal applicant, and it was proper that his entry was allowed.

This decision was on the principle that Vidrine's adjoining farm homestead entry was still alive, and so remained until March 3, 1894, when cancelled for relinquishment; hence, no rights were gained by filing applications prior to that date.

Under date of June 21, 1894, resident counsel for Guillory filed in your office a motion for review of your said office decision of May 22, 1894. The principal errors assigued were substantially as follows: In holding that Buller had the prior legal application on file when the land became vacant; in not holding that the land was public and subject to entry when Vidrine's final proof on his adjoining farm homestead entry was rejected by your letter of July 27, 1893; in allowing Buller's entry upon his application of September 25, 1893, when the record shows that he did not make a new application on March 3, 1894. Resident counsel for Guillory contends, among other things, that if the land was not public until the relinquishment was filed, then Buller's entry was illegal, the application being made prior thereto, citing Mills v. Daly (17 L. D., 347); that, upon the theory that a new application on the part of Buller was necessary, it is insisted in the absence of an appeal by Vidrine or an application on his part for change of entry as allowed by the action of July 27, 1893, said decision of July 27, 1893, was a final judgment and took effect from that date, citing Perrott v. Connick (13 L. D., 598).

By your office decision of September 6, 1894, you reiterated and reasserted your conclusions of May 22, 1894, but modified said decision to the extent of saying that in the presence of the adverse claim of Guillory, your office could not allow Buller to perfect his entry by now filing an affidavit, as it were nunc pro tunc showing that he was qualified on March 3, 1894, to make entry. You therefore directed the local office to call upon the respective parties and allow them thirty days in which to file new applications and new affidavits, for entry of said tract. On receipt of such applications within the time prescribed, they were to be treated as simultaneously made, and the local office was then to allow said parties to bid for the privilege of perfecting entry. The right of entry was to be awarded to the highest bidder, and the local office was to allow his entry of record.

As heretofore shown, your office held that the land in question was reserved from entry until the filing of Vidrine's relinquishment on March 3, 1894. This was error. Any rights that Vidrine may have had ceased upon his failure to appeal from your office decision of July 27, 1893, or to change his entry in accordance with the instructions contained therein. He had sixty days within which to comply with the terms of said decision. Upon his failure to do so the said decision became a final judgment, and the land thereby became subject to entry by the first legal applicant. Within that time and to that extent your office was correct in holding that the land was not subject to entry, and that applications made within that time should have been rejected.

It will be observed that Guillory's application was filed September 1, 1893, which was prior to the expiration of the time allowed Vidrine by your office decision to exercise his alternative right of appeal or to change his entry, which said decision did not of necessity become a final judgment until the expiration of sixty days from the date it was rendered. Guillory never renewed his said application. Buller's application was filed November 6, 1893, after the expiration of the sixty days, when the judgment of your office had become final and the land thereby released from any rights Vidrine may have had, and subject to entry. Hence, the application of Buller to enter the land having been made after it became subject to entry, his rights are superior to those of Guillory.

As previously set out herein, counsel for Guillory contends that, under the ruling in the case of Perrott v. Connick (13 L. D., 598), in the absence of an appeal by Vidrine on an application on his part for change of entry, your office decision of July 27, 1893, was a final judgment and took effect from that date. This contention is not well made, for the reason that, as heretofore shown, your said office decision could not become a final judgment until the expiration of the time allowed Vidrine to appeal or change his entry. Hence, the doctrine announced in Perrott v. Connick, supra, can not be made to apply to this case. At the same time, no rights could be secured by filing applications to

enter during the period allowed Vidrine to appeal or change his entry, as the land was thereby reserved subject to his rights, and no such applications should have been received. The proper procedure in such cases is stated in the recent case of Cowles v. Huff et al. (24 L. D., 81), as follows:

That no application to make entry will be received by the local officers during the time allowed for appeal from a judgment of cancellation of an entry; but in all such cases the land involved will not be subject to entry or application to enter until the rights of the entryman have been finally determined, until which time no other rights, inchoate or otherwise, can attach.

It has been determined that your decision of July 27, 1893, was a judgment of cancellation, which became final upon Vidrine's failure to appeal within the time allowed. No application to enter could attach within that time. Buller was the first to file after the land became subject to entry; hence, he was the first legal applicant.

In support of the holding that your office decision of July 27, 1893, was a judgment of cancellation, it will be observed that by said decision Vidrine was served with notice of what he might expect from your office. He was presented with the alternative of changing his adjoining farm entry to a settlement entry, to be followed by residence and cultivation sufficient to make a five years' showing, or in the event of his failure to do this, or to appeal from your said decision, he was informed that proper steps would be taken looking to the cancellation of his entry. Vidrine took no action. The language of your said office decision is construed to be equivalent to a judgment holding Vidrine's entry for cancellation, unless within sixty days from notice he should comply with the requirements contained in said decision.

It will thus be seen that there is no middle ground for these parties as suggested in your office decision of September 6, 1894. Buller's application must either be accepted or rejected. He either has rights sufficient to entitle him to entry of this land or he has none. Any rights he may have were secured by his application filed November 6, 1893. If he secured any rights whatever by his said application, they were such as to entitle him to the land in toto, and not merely such as would entitle him to an equal bid for it with some other party.

Your decision of September 6, 1884, is accordingly so modified as to allow Buller's application to make entry, and the same will be made of record.

INDIAN LANDS--ALLOTMENT-TRUST PATENT-CANCELLATION.

HULL ET AL. v. INGLE.

The issuance of a trust patent on an Indian allotment terminates the jurisdiction of the Secretary of the Interior over the lands covered thereby as public lands, and he consequently has no authority, in the absence of special statutory provision, to cancel such patents for the purpose of correcting erroneous allotments. The authority conferred upon the Secretary of the Interior by the act of January 26, 1895, to cancel a trust patent, in order to correct a mistake in the allotment, is limited to cases in which the alleged error is one of those specifically named in said act.

Assistant Attorney-General Lionberger to the Secretary of the Interior, February 15, 1897. (W. C. P.)

On October 12, 1896, Acting Secretary Sims referred to me certain papers in the matter of Sylvester Hull et al. c. Jane Ingle, involving the NE. of Sec. 24, T. 37 N., R. 5 W., M. D. M., California, with a request for an opinion thereon. Afterwards on November 20, 1896, the papers in regard to hearings ordered on certain approved Indian allotments involving a similar question were also referred to me for an opinion. Still later on December 3, 1896, the papers in the matter of an allotment to Lizzie Bergen involving a similar question were also referred to me for an opinion. The Commissioner of the General Land Office has since requested that all these matters be considered together. The question inv. lved is as to the effect of a trust patent issued upon an Indian allotment under the provisions of the act of February 8, 1887 (24 Stat., 388), and the act amendatory thereof approved February 28, 1891 (26 Stat., 794) and the jurisdiction of this Department to cancel the same.

In the case of Hull . Ingle the Commissioner of the General Land Office recommended that a hearing be ordered to determine the character of the land with a view to the cancellation of Ingle's trust patent, if it should be determined it was mineral in character as alleged by Hull, reference being made to the act of January 26, 1895 (28 Stat., 641), as authorizing such action. The papers being referred to this office for an opinion my predecessor on June 8, 1896, submitted his opinion holding that the case did not come within the purview of said act of 1895.

The Commissioner resubmits the matter and states his reasons for so doing as follows:

After a careful consideration of the matter I feel constrained to direct attention to the fact that the Hon. Assistant Attorney General, in rendering the opinion referred to omitted to consider what is regarded by this office, with all deference, as the determining point in the matter, viz: the particular nature of the so-called patent in question, and it is in view of this that I venture to again direct attention to the

case.

This is, as the Commissioner of the General Land Office says, a very important question, but it must be borne in mind that the interest of