landless; so much so that where an applicant to make entry is shown to have been the owner at one time of one hundred and sixty acres of land, stronger evidence that he has become divested of title thereto will be required than is present in this case.

It is unnecessary to consider the evidence touching Mason's alleged settlement on and improvement of the land in question prior to Cromwell's entry, in view of the fact that he is found to be disqualified by reason of his ownership of one hundred and sixty acres of land in the State of Kansas at the date of said settlement. Your office decision is hereby affirmed.

REPAYMENT-FEES AND COMMISSIONS.

LESLIE O. HUSTED.

Repayment of the fees and commissions paid on an entry will not be allowed where the entry is relinquished on account of the undesirable character of the land, -and a second entry made.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.) 15, 1897. (J. L. McC.)

Leslie O. Husted, on March 26, 1889, made homestead entry for the SE. of Sec. 15, T. 7 N., R. 49 W., Denver land district, Colorado.

Finding it was impossible to obtain water fit for use, he was, upon his own request, permitted to relinquish the land and make a second entry. Afterward he applied for repayment of the fees and commissions paid upon his former entry. This application your office refused, by letter of March 4, 1896. He now appeals to the Department. He quotes from the General Circular of October 30, 1895, which states that, where an entry is canceled as invalid for some reason other than abandonment, and not the wilful act of the party, he . . . . may have the fee and commissions paid on the canceled entry refunded on proper application, under the act of June 16, 1880.

The paragraph quoted from the General Circular expressly refers to an entry "canceled as invalid;" the entry in the case at bar was not canceled because invalid. The act of June 16, 1880, provides for repayment where entries have "been erroneously allowed and can not be confirmed;" the entry here in question could have been confirmed, but the entryman did not wish that it should be; he preferred to relinquish it and select other land.

The decision of your office was correct, and is hereby affirmed.

REPAYMENT-PATENTEE-SURRENDER OF PATENT.

HENRY H. HARRISON.

On application for the return of purchase money by a patentee who was required to purchase under section 5, act of March 3, 1887, when in fact the land passed by the railroad grant under which he held, the applicant should surrender the patent, but should not be required to execute a deed of relinquishment.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.) 15, 1897. (J. L.)

This case involves the repayment of the sum of two hundred dollars, the purchase money paid to the United States by Henry H. Harrison for the E. of the NE. of section 9, T. 47 N., R. 4 W., Ashland land district, Wisconsin, containing eighty acres of land.

Said tract was granted by the acts of June 3, 1856 (11 Statutes 20), and May 5, 1864 (13 Statutes 66), to the State of Wisconsin to aid in the construction of railroads. Decisions of the supreme court rendered on June 3, 1895, and reported in 159 U. S. reports-Wisconsin Central Railroad Co. v. Forsythe, p. 46, and Spencer v. McDougal, p. 62-finally adjudged that the Wisconsin Central Railroad Company acquired from the State of Wisconsin a good title to said tract of land under said grants. And it appears that Harrison by sundry intermediate conveyances had acquired and was owner of the title of the company.

Previous to the publication of said decisions, your office and this Department had held that the tract in contest (and other lands in consimili casu), did not pass under the grants aforesaid, and was subject to entry under the general land laws. Your office thereupon advised Mr. Harrison, that it would be necessary for him to purchase said tract from the government under the fifth section of the act of March 3, 1887 (24 Statutes, 556). Consequently Harrison, on June 8, 1893, paid the government two hundred dollars for the tract, as appears by certificate No. 5728-of that date issued at Ashland, Wisconsin. And on August 31, 1894, a patent for the land was issued to him.

After the promulgation of said decisions, to wit: on July 3, 1895, Harrison filed his application for repayment of the two hundred dollars aforesaid in accordance with section 2362 of the Revised Statutes of the United States. On December 6, 1895, (by letter "F"), your office required Harrison (1) to surrender the patent issued to him, (2) to furnish a duly executed deed relinquishing to the United States all right and claim to the land under said patent, (3) to have said deed duly recorded, and (4) to furnish a supplemental abstract of title continued from June 27, 1895-the date of the abstract now on file-down to and including the date of recording said deed.

On January 15, 1896, Harrison filed a motion for a review of said decision. On July 2, 1896 (letter "F"), your office denied said motion, and declined to modify the former decision.

Whereupon Harrison appealed to this Department.

By section 2362 of the Revised Statutes it is enacted that:

The Secretary of the Interior is authorized, upon proof being made to his satisfaction that any tract of land has been erroneously sold by the United States so that from any cause the sale can not be confirmed, to repay to the purchaser or to his legal representatives or assigns, the sum of money which was paid therefor, out of any money in the Treasury not otherwise appropriated.

It is conceded, that before he applied to purchase under the act of March 3, 1887, Harrison had acquired the valid title already conveyed by the United States to the State of Wisconsin; that the patent issued to him conveyed no title, because the land therein described did not belong to the United States; and that his right to be repaid the purchase money is unquestionable. The only question involved is merely a matter of administration to be determined by reference to the regulations.

The General Land Office circular of February 6, 1892, on page 86, and the circular of October 30, 1895, on page 98, both prescribe as follows:

If however, the applicant has acquired the valid title already conveyed by the United States, it will not be necessary for him to reconvey the land, but he may make a full statement, with corroborative evidence of the facts, waiving all claim under the invalid entry, and thereupon receive repayment of the amount erroneously paid.

Harrison filed a full statement, which is corroborated by the records. of your office. He is willing and offers to surrender his patent, and waive all claims under it, and the invalid entry on which it was issued. Your office erred in requiring him to execute a deed of relinquishment, and have the same recorded, and to furnish a supplemental abstract of title continued from the date of the abstract on file down to the date of such recordation.

The patent is null and void to all intents and purposes. It conveyed no right, title, interest or estate which Harrison can consistently undertake to relinquish. He should be repaid the money upon the return and surrender of the patent with his receipt for the money duly attested endorsed thereon, in full payment and satisfaction of all his claims thereunder, in such form as your office may prescribe.

Your office decision is hereby modified as above indicated.

10671-VOL 24-17

ADJOINING FARM ENTRY-TOWNSITE-MINERAL LAND.

CALDWELL v. GOLD BAR MINING COMPANY.

An adjoining farm entry is invalid, and will not be allowed to stand, if the entryman was not in fact the owner of the alleged original farm at the time of entry. An application to make townsite entry under section 2389 R. S., will not be allowed, where the number of bona fide occupants is not given, and it is not manifest that the occupants in fact desire in good faith to make such entry, and also where the application covers land apparently mineral in character, and in close proximity to another town.

In case of an attack on a mineral location of land that has once been adjudged mineral in character, the abandonment or forfeiture of the claim must be shown by clear and unmistakable evidence.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.)

15, 1897.

(P. J. C.) The record shows that the Gold Bar Quartz Mining Company made application for patent for the Gold Bar mining claim, lot No. 206, Sacramento, California, land district, on November 24, 1893. Notice by publication was duly given of this application, which ran from November 26, 1893, to February 3, 1894.

John Caldwell, a superior judge of Nevada county, California, filed in the local office an application to enter, for townsite purposes, “in accordance with the provisions of sections 2388-9 inclusive (R. S.),” lot 3 in Sec. 33, lot 6 in Sec. 28, lot 12 in Sec. 27, and fractional NW. 1 of NW. (also described as lot 20) in Sec. 34, T. 16 N., R. 8 E., M. D. M., in trust for the uses and purposes of the occupants and dwellers thereon. He represented that the land was then used and occupied for townsite purposes and had been since 1860. This application is not dated, but the local officers say it was presented January 23, 1894. It appears that they declined to accept the application because of conflict with the mineral application "and with the homestead entry of Richard Ryan." It is also stated by the local officers that on the same day Judge Caldwell filed a protest against the mineral entry. It seems that this protest was against the "mineral applicants the Gold Bar Quartz Mining Company, Richard Ryan, homestead claimant, and Central Pacific Railroad Company." It is dated January 15, 1894, and alleges that he desires to make entry of the land for the use and benefit of the inhabitants thereof; that the land is entirely enclosed and occupied by persons residing thereon; that there are more than fifteen dwellings and families thereon, the total number of inhabitants being one hundred and fifty; that the land has been used for townsite purposes for more than thirty years; "that the majority of the occupants of said premises have requested me to make application in trust for them under the United States Revised Statutes;" that he files "this adverse claim and protest against the said application by said Gold Bar Quartz Mining Company for said Gold Bar Quartz Mine," because

"the land embraced therein is agricultural land, and that no part of it is mineral and that no mineral or quartz of any kind has ever been discovered thereon;" that the land is settled upon and occupied as a townsite; and that "that portion in section 27 is excepted from the railroad grant by reason of the pre-emption claim of J. J. Collins."

This protest is not sworn to by the judge, but he states "that the facts upon which said adverse claim and protest are based being (are) fully set forth in the affidavits hereto annexed."

The affidavits referred to were made by Richard Ryan, one of the defendants in the protest, and John Thomas, in which they swear that there are niue dwellings etc. on the land; that there is no lode existing within the limits of the Gold Bar claim; that no gold nor quartz has been extracted from the premises; that the ground embraced is nonmineral in character, and that there are no indications of mineral upon the same; and that Collins settled upon lot 12 in Sec. 27 prior to 1862 and filed his declaratory statement therefor in 1868. This affidavit was sworn to on January 12, 1894.

On January 24, following, the local officers issued notice calling for a hearing on this protest.

On February 3, 1894, the mining compauy made application to purchase the land applied for, which was denied because of the pending contest. Subsequently, in the same month, the mining company applied for a re-hearing on its application to purchase and to reconsider the respective orders issued, and that the notice might be dismissed and quashed. The local officers thereupon modified their former decision to the extent of quashing the notice which had been issued; and thereupon transmitted the record to your office with the recommendation that a hearing be ordered. The mineral claimants appealed from their action.

Your office, by letter of January 20, 1894, considered this appeal, and in doing so recited the prior history of lot 3, included in the tract, as follows:

In deciding this question it becomes necessary to consider briefly the facts of record relative to said lot 3, of section 33.

This office by decision dated November 27, 1885, (letter F), in the case of S. J. Alderman v. C. P. R. R. Co., involving said lot 3, decided: "The residence of Irish antedating the railroad grant, and extending beyond the date of definite location, excepted the land from the operation of the grant, the same is therefore subject to disposal under the general laws of the United States."

Said office decision was affirmed by the departmental decision of September 28, 1887. It appears from the record in quasi contest No. 601, W. H. Weldon claiming the Gold Bar Quartz mine v. C. P. R. R. Co. that Weldon on October 8, 1890, filed a petition alleging that the land in said lot 3, is mineral in character.

Upon said petition a hearing, which was ordered by this office, was held March 27, 1891.

Said hearing resulted in a final decision by this office, dated February 26, 1892, from which I quote: "You decided that the land was mineral in character and recommended that it be excluded from the grant to the said respondent.