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The local office declined to accept this latter declaratory statement, and transmitted the whole record to your office, which, by decision dated July 31, 1885, ordered the local office to receive and file said declaratory statement as of date of presentation, and hold said soldier's additional homestead entries subject to it, the rights of the parties to be determined on contest, or when the pre-emptor makes final proof. From this decision an appeal is brought here and the case has been considered.

I am of opinion that the action of your office in this case is erroneous. Where a pre-emptor applies to file a declaratory statement for land embraced in an entry of record, alleging settlement prior to the date of such entry, the proper practice is to order a hearing to determine the respective rights of the parties. The decision of your office is therefore reversed, and you will direct the local office to order a hearing in this case in accordance with the prayer of the pre emptor.

REPAYMENT-DESERT LAND ENTRY.

HIRAM H. STONE.

Repayment may be allowed in case of an entry made in good faith where the same cannot be confirmed in its entirety.

Acting Secretary Muldrow to Commissioner Sparks, March 24, 1887.

On January 15, 1878, Hiram II. Stone made desert land entry at the land office of Bozeman, Montana. On the filing of the plat of survey on February 19, 1879, the entry was found to embrace Lots 1, 2, 3, 4, 5, 6, and 7 of Sec. 4, and Lots 1, 2, 5, 6, and 7, the S. of NE. † and NE. of SW. 1, Sec. 5, T. 2 S., R. 25 E.

On March 31, 1879, William M. Rogers made application to file preemption declaratory statement for the tracts above described in section 4, alleging settlement December 4, 1877. The application was rejected by the local officers on account of the entry of Stone, and Rogers then filed an affidavit of contest, alleging that the land was not desert in character. A bearing was had to determine the truth of said allegation, and also the date of Rogers's settlement. Upon the testimony the local officers recommended that the entry be allowed to stand, and the claim of Rogers be rejected. The case was transmitted to your office.

By letter of June 15, 1880, the local officers forwarded to your office the relinquishment of said entry by Stone. Your office thereupon, by letter of July 8, 1880, closed the case, allowed the filing of Rogers to go to record, and further stated: "The application of Stone for the return of his first payment money will be considered hereafter, and will form the subject of another communication."

By letter of May 11, 1885, your office decided the question of repayment, and held: "The applicant relinquished his entry to avoid a con

test with one Rogers, a pre emptor. The law governing the return of purchase money does not provide for. repayment in cases where parties voluntarily relinquish their entries, and I have therefore to decline to recommend the repayment asked for." Claimant appealed. His appeal admits that he relinquished the entry to avoid further contest." An inspection of the records of your office shows that the lands lie within the limits of the grant to the Northern Pacific Railroad Company; and that said section five is a granted section. The map of general route along this portion of the line was filed February 21, 1872, and the withdrawal thereon was ordered April 22 following, notice of which reached the local office May 6, 1872. After the withdrawal, to wit, on January 15, 1878, Stone made entry. The filing of the plat of survey on February 19, 1879, disclosed the fact that the greater portion of his entry (286.78 acres, he alleges,) fell in a section granted to said railroad company. It seems clear that such portion of the entry could not be confirmed.

The act of June 16, 1880, provides that—

In all cases where homestead or timber-culture or desert land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed, and cannot be confirmed, the Secretary of the Inte rior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excess paid upon the same, upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said lands (21 Stat., 287.)

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I am of opinion that under the statute applicant is entitled to repay. ment of the amount paid on that portion of his entry falling within said section five.

The remainder of the entry, he claims, embraces but 211.32 acres, lying in said section four. There seems to be no reason why that por tion of the entry could not be confirmed. In a contest involving the character of the land, and the priority of right to the tract, the local office had rendered a decision in favor of the entryman, and that decision was never reversed. The relinquishment made under these circumstances was entirely voluntary, and, if no other element entered the case, I agree with your office in holding that repayment could not be made.

The desert land law allows six hundred and forty acres to be taken in one entry. The portion of the entry in question embraces but little over two hundred acres. To hold that the entryman in this case was obliged to complete the entry for that portion lying in section four would be to restrict his statutory allowance, and to punish him for pur suing the law. For the desert land law permitted entries before survey, and at that time it could not be ascertained that a portion of his entry would fall in a section granted to said railroad company. The act of June 16, 1880, provides for repayment in cases where the entry cannot

be confirmed. It seems a consistent construction of that statute to hold that it contemplates repayment in cases where the entry is made in good faith, and cannot be confirmed in its entirety. In this view applicant is entitled to repayment of the money paid on said entry.

Said decision is accordingly reversed.

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RAILROAD GRANT-WITHDRAWAL; ACT OF JUNE 15, 1880.

NORTHERN PAC. R. R. Co. v. MCLEAN.

• The existence of a pre-emption claim, capable of being perfected, at the date of withdrawal on general route, excepts the land covered thereby from the effect of such withdrawal.

The right of purchase, under the act of June 15, 1880, within the limits of the grant, is accorded the widow of an entryman, though the entry was canceled prior to definite location for failure to make final proof, and the application was made subsequently thereto.

Acting Secretary Muldrow to Commissioner Sparks, March 28, 1887. William H. McLean made homestead entry of the W. of NW. 1, SE. of NW. 1, and SW. 1 of NE. 1, Sec. 17, T. 10 N., R. 3 W., Helena, Montana, May 3, 1872. This tract is within the limits of the withdrawal of the odd numbered sections for the benefit of the Northern Pacific Railroad Company, upon map of general route filed February 21, 1872. The withdrawal was made February 21, 1872, notice of which was received at the local office May 6, 1872. It is also within the forty mile limit of said road, as fixed by the map of definite location, filed July 6, 1882.

The letter of withdrawal directed that it should take effect from the date of its receipt at the local office. Subsequently the Secretary decided that said withdrawal took effect upon the filing and acceptance of the map of general route. Whereupon, on December 1, 1874, McLean's entry was held for cancellation, subject to appeal, but no appeal was taken from said decision.

July 3, 1879, the local officers reported that McLean had been noti fied, pursuant to office circular of December 20, 1873, to show cause within thirty days why his entry should not be canceled for failure to make proof of compliance with the law within the statutory period, and failing to respond to such notice, his entry was canceled September 11, 1879, and no appeal was taken from that action.

McLean died the 20th day of August, 1882, and Maria McLean-his widow-on March 15, 1883, made application to purchase said tract under the act of June 15, 1880, upon the ground that her husband's entry was confirmed by the first section of the act of April 21, 1876 (19 Stat., 35), and that payment for the land under the act of June 15, 1880, 2278 DEC--34

is equivalent to proof of compliance with the provisions of the homestead law.

Your office awarded to Mrs. McLean the right to purchase, holding that under the act of June 15, 1880, it became optional with a homestead entryman either to make proof of compliance with the provisions of the homestead law, or to purchase the land, and that payment for the land is accepted in lieu of such proof, from which decision the company appealed.

At the date of the withdrawal this tract was covered by the following pre emption filings:

A. J. Wetter for the NW. of NW. 4, with other tracts, May 13, 1868, alleging settlement same day.

William M. Scott, S. of NW. 4, with other tracts, October 5, 1868, alleging settlement same day, amended October 14, 1872, excluding said tract.

Jerome S. Glick, SW. of NE., with other tracts, November 27, 1868, alleging settlement same day.

Robert C. Wallace, SW. of NE. 1, with other tracts, December 13, 1869, alleging settlement same day.

Prior to the act of July 14, 1870, no time had been prescribed within which pre-emptors were required to make proof and payment for their claims on unoffered lands; but that act provided that nothing in the act of March 27, 1854, "shall be construed to relieve settlers on lands reserved for railroad purposes from the obligation to file the proper notices of their claims, as in other cases, and all claimants of pre-emption rights shall hereafter, when no shorter period of time is now prescribed by law, make proof and payment for the lands claimed within eighteen months after the date prescribed for filing their declaratory notices shall have expired."

The act of March 3, 1871, extended the time within which proof and payment shall be made, one year; and this provision has since been in force and was subsequently incorporated in the Revised Statutes as section 2267, which provides that all claimants of pre emption rights upon unoffered lands shall make proper proof and payment for the land claimed within thirty months after the date prescribed for filing their declaratory notices has expired.

It therefore appears that at the date of the withdrawal a pre-emption claim to the land in controversy was subsisting, capable of being perfected, and hence this tract of land not being affected by the withdrawal for the benefit of the road, the homestead entry of McLean was not controlled by the act of April 21, 1876.

In the case of the Northern Pacific Railroad Company v. Burt (3 L. D., 490), the Department held that the widow of an entryman had the ight to purchase under the act of June 15, 1880, although the entry had been canceled for failure to make proof within the statutory period prior to the definite location of the road, and although the application to purchase was made subsequent thereto, following a long line of de

partmental decisions. See also Gilbert v. Spearing (4 L. D., 463), Holmes v. Northern Pacific R. R. Co. (5 id., 333.)

Applying this rule to the case at bar, Mrs. McLean should be allowed to purchase, and for this reason I affirm your decision.

VIRGINIA MILITARY LAND WARRANT-SCRIP.

HEIRS OF ISHAM FLOYD.

All claims properly allowed under the laws of the State, prior to March 1, 1852, are entitled to recoguition and to satisfaction in scrip, without respect to the time when the warrant was issued by the register of the State land office.

Acting Secretary Muldrow to Commissioner Sparks, March 28, 1887.

I have considered the appeal filed in behalf of the heirs of Isham Floyd from your decision, dated August 10, 1886, refusing to recommend the issuance of scrip on account of land office military warrant No. 9956, allowed and issued, under the laws of Virginia, to L. Floyd Nock, administrator of Isham Floyd, deceased, his heirs or assigns.

This claim is brought under the acts of Congress, approved respectively August 31, 1852 (10 Stat., 148), and June 22, 1860 (12 Stat., 84). The act of 1852 was entitled: An act making further provisions for the satisfaction of Virginia land warrants," and section one thereof provided:

That all unsatisfied outstanding military land warrants, or parts of warrants, issued or allowed prior to the first day of March, eighteen hundred and fifty-two, by the proper authorities of the Commonwealth of Virginia, for military services performed by the officers and soldiers, seamen or marines, of the Virginia State and Continental lines, in the army or navy of the Revolution, may be surrendered to the Secretary of the Interior, who, upon being satisfied, by a revision of the proofs, or by additional testimony, that any warrant thus surrendered was fairly and justly issued in pursuance of the laws of said Commonwealth, for military services so rendered, shall issue land-scrip in favor of the present proprietors of any warrant thus surrendered, for the whole or any portion thereof yet unsatisfied, etc.

In the administration of this law, the land department ruled, following an opinion of the Attorney-General on the subject, that the words "allowed" and "issued," as used in the act, were synonymous, and that scrip could issue only in those cases in which the warrants upon which it rested had been allowed an issued prior to March 1, 1852.

It appears there were many cases in which there having been an allowance of land bounty by the governor of Virginia prior to March 1, 1852, the warrants on said allowances did not actually issue until after said date. The warrants were issued by the register of the State land office on the finding of the governor. Under the ruling above indicated, the Department refused to issue scrip in all cases where the State warrants had not been actually issued prior to March 1, 1852.

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