paid by him. His application is in the form of an affidavit. In it he sets out:

That he is the identical person to whom Boonville, Missouri, duplicate receipt No. 40671 for the S. of section 11, in T. 40, of Range 17, dated, January 11, 1869, issued. Affiant further deposes and says that he has been credibly informed and verily believes that the said land had previously been sold to one David D. Miller, per Warsaw duplicate receipt, No. 53,957, December 14, 1857. That the payment of three hundred and twenty dollars ($320) by him paid and for which said duplicate receipt— No. 40671-was issued was, as he verily believes and is credibly informed, an illegal and erroneous payment by him made, of which illegality he had no knowledge at the time the same was made. That he makes the foregoing statement with the view of applying for the refunding of the money thus erroneously paid. He further deposes and says, that he has not sold, assigned, nor in any manner encumbered the tract of land described in said duplicate receipt, No. 40671, so far as his title acquired by his purchase from the United States under said duplicate is concerned.

By your office decision of April 18, 1877, the application of Lamphere was denied. Sixty days were allowed for an appeal.

Here the matter rested for years. On July 5, 1887, one A. C. Widdecombe of Boonville, addressed a letter to your office, in which he asked a reconsideration of your said office decision of April 18, 1877, enclosing a copy of the application of Ared Lamphere to purchase the said land at one dollar per acre; application is dated January 11, 1869.

Your office having considered the matter, on July 28, 1887, rendered a decision declining to modify your said decision of April 18, 1877. From this decision A. T. Lamphere by his attorney, the said Widdecombe, appealed to this department.

It is plain, that the character of the transaction between A. T. Lamphere on the one part and the government on the other, is controlled by the determination of your office, expressed in your office letter of the date of June 18, 1868, in response to which Lamphere paid the said three hundred and twenty dollars, and for which he accepted a receipt clearly disclosing the fact, that such payment was "supplemental over Warsaw graduation entry, No. 53,757, per commissioner's letter of June 18, 1868." The government in absence of any proof of settlement and cultivation received no more than the proper purchase price for the lands, and Lamphere was aware of the facts in the case when he made his said payment. Presumably, he had acquired the interest of Miller in the lands, and the latter's payment of twenty-five cents per acre accrued to his benefit. At any rate, Lamphere's payment completed the purchase of the land, no more, and was made in response to your office letter of June 18, 1868, and in compliance with the conditions therein expressed. Repayment was properly refused.

But should it be concluded, as it is urged on the part of Lamphere, hat the patent to Miller was actually issued April 1860, and the department precluded from further jurisdiction in the matter, still your office decision should not be disturbed.

The decision rendered April 18, 1877, remained unquestioned for ten years, and now after that interval, the same issue is raised again by the

applicant, not upon newly discovered evidence or any new or addi tional facts, but solely on the allegation that your said decision was erroneous. Lamphere failed to appeal, he acquiesced in your office decision for ten years and will not now be permitted to open the case anew. See case State of Kansas (5 L. D., 243); also Rules 77 and 78 of Rules of Practice.

Your office decision is therefore affirmed.

HOMESTEAD-SECOND ENTRY.

PATRICK O'NEAL.

A second entry allowed where the first was made in good faith for land subsequently held not subject thereto, and accordingly canceled on relinquishment.

First Assistant Secretary Muldrow to Commissioner Stockslager, January 30, 1889.

I have considered the case of Patrick O'Neal on his appeal from your office decision of July 12, 1887, holding for cancellation his homestead entry No. 3679 for W.SE. Section 5, T. 33 S., R. 63 W., Pueblo, Colorado, land district.

Your said decision which affirms that of the local officers is based upon the fact that the records of your office show that claimant made homestead entry No. 1371 (Denver series) March 18, 1870, for NE. of the same section, and that he had thereby exhausted his homestead right.

In his appeal from the decision of the local officers claimant states under oath that he made entry of the NE. of said section five in good faith but was shortly after informed by the register and receiver of the local office at Denver, that the Commissioner of the Land Office had written the said local officers that all the homestead entries and preemption filings made within the limits of the Vigil and St. Vrain grant were unauthorized, illegal and void, and that said Commissioner had directed the local officers not to permit settlers to make final proof on such lands, and that his said homestead entry No. 1371 was within the limits of said grant. That claimant further states that in the year 1873, he and others, being satisfied by the said statement of the local officers that they could not obtain title to the lands upon which they had settled and made entry, removed from the limits of said grant, and claimant took a pre-emption claim in section 25, T. 33, R. 61 W., not within the limits of said grant, and in April, 1877, he filed a relinquishment of his said entry No. 1371,

Claimant further states that nothing but the fact that he was led to believe his first entry void by the said statements of the local officers induced him to abandon the same and that when he made his entry

for the land now claimed, he did so in good faith believing that his right had been in no manner affected by his former void entry.

It appears from the final proof submitted that claimant has lived continuously upon the land he now claims, since 1879, has buildings worth more than $500 thereon, and has cultivated nearly the whole of said tract each year.

The record discloses the fact that in March, 1870, your office directed to the local officers at Denver, a letter stating to them the following:

Intimation having been made to this office, from a source entitled to credit, that you have allowed parties to file declaratory statements under the pre-emption and homestead laws for lands situated south of the Arkansas river, and falling within the Cornelio Vigil and Ceran St. Vrain private claims originally confirmed by Congress, June 21, 1860 and since amended February 25, 1869, vide U. S. Laws, 1868-9, pages 90 and 91-I have to inform you that if such is the fact, your action is unauthorized and without validity.

Then follows an analysis of the laws governing settlements upon the said grant made prior to February 25, 1869, and the indemnity to which the original proprietors or their grantees should be entitled on account of such settlement and there appears in said letter the following, viz:

When the foregoing claims are certified according to their respective priority, then, and not till then, the remaining public lands which have been and are now being surveyed under the special act of Congress approved February 25, 1869, will be in a condition to be disposed of according to existing laws.

It has been the ruling of the Department that the law allows but one homestead privilege, and that privilege is generally exercised when a qualified claimant makes entry under the homestead law, and if he abandons his claim or fails to meet the requirements of law relative to homestead entries, he cannot get title to the land covered by his entry, and said entry will be canceled, and although in such case he has acquired no land, his rights under the homestead law are as a general rule exhausted and he can not again make entry of that or any other land. Stephens v. Ray (5 L. D., 133).

But it has been held that if the first entry is canceled through no fault of the entryman his right is not exhausted thereby.

In Thurlow Weed, signed January 25, 1889 (8 L. D. 100) it is said: If exceptions are to be allowed to the rule of but one homestead entry—and the exception appears to be well established doctrine and quite as supportable as the rule itself-they should be admitted whenever justice clearly requires, and no bad faith is shown, and the failure to discover the obstacle to the first entry is fairly excusable. A mistake which involves no wrong and is attributable to causes reasonably likely to produce it, ought rarely to forfeit the privilege of gaining one homestead when honestly sought in good faith by a genuine settler with a family.

Claimant was not bound to adhere to his first entry after discovering that it had been pronounced illegal and void by the Land Department. Orlando Starkey (7 L. D., 385).

Your said decision is accordingly reversed and his entry may be passed to patent.

CONTEST-PROCEEDINGS ON SPECIAL AGENT'S REPORT.

GAGE v. LEMIEUX.

It is within the discretion of the Commissioner of the General Land Office to refuse to entertain a contest, where the entry in question is under investigation by a special agent; and such action of the Commissioner is not the denial of a statutory right.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 5, 1889.

I have considered the appeal of Frank W. Gage from the decision of your office, dated October 13, 1887, refusing to accept his application tocontest pre-emption cash entry No. 3546 of Lots 2, 3 & 4, of Sec. 14, and Lots 3 & 4 of Sec. 13, T. 62 N., R. 14 W., made by Timothy W. Lemieux at the Duluth land office in the State of Minnesota. Your office refused said application for the reason that the special agent's report on the entry dated September 1, 1886, had been held up, awaiting the disposi tion of the two contests, which had been subsequently dismissed upon the application of the contestant; that, as an agent's report was in the nature of a contest, your office had the right to act upon it, in preference to a subsequent application to contest if deemed advisable.

In your office letter of transmittal, reference is made to letter dated October 13, 1887, holding said entry for cancellation, and also the cancellation of said entry upon relinquishment on November 4th same year. Counsel for appellant insists that your office erred because,

First, At the time the application to contest was filed, no order of the Land Office touching the entry was pending, but the entry was open to and subject to contest. Second, The refusal of the application to contest is the denial of a right, to which contestant is entitled under the law and the rules of the Land Department. (Act of May 14, 1880.)

The contention of counsel can not be maintained. The contestant under the first section of said act secures the rights of a successful contestant when he has contested and "procured the cancellation of any pre-emption, homestead, or timber-culture entry," and if the cancellation of the entry is not the result of his action, he has no right to insist that he has acquired any preference right of entry. This has been the uniform ruling of this Department. John Powers (1 L. D., 103); Houston r. Coyle (2 L. D., 58); Mitchell v. Robinson (3 L. D., 546); Krichbaum c. Perry (4 L. D., 517); Gotthelf v. Swinson (5 L. D., 657); Perkins v. Robson (6 L. D., 828); Strout v. Yeager (7 L. D., 41); Kurtz v. Summers (id., 46); Lundy v. Hoebel (idem., 49); Stayton v. Carroll (idem., 198); Campbell v. Middleton (idem., 400).

The record fails to show that said Gage filed any application to enter said land, and not having procured the cancellation of said entry, he has sustained no injury by the action of your office, of which he can justly complain.

The decision of your office, must be and it is hereby affirmed.

REPAYMENT-COAL ENTRY-SECTION 2348, R. S.

GERARD B. ALLEN.

No right of repayment exists in favor of an entryman who has procured the allowance of an entry through false testimony, and a transferee under such an entry can have no better right than the entryman.

A coal entry under section 2348, R. S., voidable for illegality in that it was made for the benefit of another, and that coal had not been found on the land covered thereby, may be passed to patent for the benefit of a transferee, in consideration of the price paid for the land and the fact that repayment cannot be allowed.

Secretary Vilas to Commissioner Stockslager, January 30, 1889.

December 15, 1885, Gerard B. Allen, the appellant, filed in your office his petition, under oath, for the cancellation of certain coal land entries, made January 15, 1883, and for the repayment to him of the money paid the United States for the lands embraced therein. Said entries are as

follows:

of Sec. 14;

No. 23, entry of T. J. Lynch, for the SW. 4 of the NE. No. 26, entry of Scace L. Maultby, for the W. of the NW. † of Sec. 14; No. 27, entry of John J. McClusky for the N. of the NE. of Sec. 14; No. 28, entry of James Love for the SE. 4 of the SW. of Sec. 11, and the E. of the NW. of Sec. 14-all in township 14 S., range, 86 W., 6th P. M., Leadville district, Colorado.

He, in substance, sets forth in said petition, as grounds for the relief asked, that, being largely engaged in the manufacture of iron in the city of St. Louis, Missouri, and being desirous of extending his operations into the State of Colorado, he instructed his agent, John McCoy, to ascertain if suitable mines of coal and iron could be purchased in Gunnison county, Colorado; that upon the representations of said McCoy that large tracts of land in said county, containing valuable. mines of coal could be procured from parties who had filed upon the same under the law providing for a preference entry of coal lands, he furnished McCoy money to make such purchases and McCoy paid to said pre-emptors (above named) the amounts (to wit, twenty dollars per acre) necessary to complete the entry and purchase from the United States of said lands (above described) together with an additional amount for the use and benefit of the said pre emptors, taking their warranty deeds to him (petitioner) and an assignment to him of the United States receiver's receipts for the purchase moneys so paid the United States; that soon thereafter he employed, through an agent, Louis R. Fry, a large force of practical miners, at an expense of sev eral thousand dollars, to develop said lands by opening mines and building ovens for coking coal thereon, and to examine and prospect said lands by means of shafts and tunnels, and after a thorough examination thereof, lasting through the summer of 1883, said Fry reported that there were no valuable mines of coal therein and that no mines of