TIMBER CULTURE ENTRY-SETTLEMENT RIGHTS.

MAYFIELD v. LEE.

One who settles upon and files for a tract of land under the pre-emption law, can not hold another at the same time by virtue of a previous settlement under the homestead law; the later settlement is in contemplation of law an abandonment of all rights acquired under the first.

A timber culture entry held for cancellation on account of conflict with the prior settlement right of another, may be allowed to stand, on the subsequent abandonment of the settlement claim.

Secretary Noble to Commissioner Stockslager, May 4, 1889.

By decision of October 19, 1888, in the above stated case the Department affirmed the action of your office holding for cancellation the timber culture entry of Lee for the SW Section 8 T. 7 N., R. 25 W., North Platte, Nebraska, upon the ground of the prior right of Mayfield by virtue of his settlement upon said claim.

Lee made timber-culture entry of the tract July 3, 1884, and on July 24, 1884, Mayfield contested said entry upon the ground that said tract was not subject to the timber culture entry of Lee for the reason that Mayfield had, prior thereto broke a furrow around said claim to mark boundaries and had put monuments thereon with a view to making homestead entry of said tract.

The sole question determined by the Department was that the act of settlement made by Mayfield in marking the boundaries of his claim was sufficient to defeat the entry of Lee so far as it conflicted with the prior settlement right of Mayfield.

A motion has been filed by Lee asking for a reconsideration of said decision of October 19, 1888, upon the ground namely-that Mayfield has abandoned his settlement upon the tract, and has never since the contest established a residence upon the tract, and that claimant having knowledge of said abandonment, and acting in good faith, proceeded to comply with the timber-culture laws and has placed improvements upon said tract of great value.

In view of the fact that the sole question passed upon by the Department was as to the prior right of Mayfield by virtue of his alleged prior settlement-the only ground upon which his timber-culture entry was held for cancellation-and having shown that Mayfield has abandoned the claim, he asks that the decision of the Department of October 19th, be so modified as to suspend the judgment of cancellation and to order a hearing to determine the truth of these charges.

In reply to this motion the contestant makes the following admission: While it is true that contestant has filed on a pre-emption in Colorado he has never abandoned the land in controversy-always expecting after he filed said pre-emption to enter the land in controversy as a timber claim.

The long delay in awaiting a final decision in said case is one reason contestant filed a pre-emption in Colorado.

Claimant placed all the improvements he has on the land since the initiation of the contest upon the land in question and certainly did so at his peril.

Mayfield's contest did not question the integrity of the entry of Lee, but was predicated solely upon the ground of his prior right by virtue of settlement. So long as he continued to claim the tract by virtue of that right, the entry of Lee could not avail as against him; but if he afterwards abandoned it, Lee would have the right to perfect his timber-culture entry.

It is true that Mayfield claims that he never abandoned the land in controversy, always expecting after he made his pre-emption filing to enter the land in controversy as a timber claim. But as the claim of Mayfield to the tract was by virtue of his settlement right, and the settlement laws will not permit two settlement claims to exist at the same time, the settlement upon and filing of his declaratory statement for another tract of land while his rights under his alleged settlement upon the tract in controversy was pending before the Department, was, in contemplation of law, an abandonment of all rights to said tract by virtue of his settlement, and although he might have intended to take said tract subsequently under the timber-culture law, his claim thereunder could only attach from the date of entry under that law.

He does not pretend that he intends to take the land under the settlement laws--the sole ground upon which his rights to the tract were recognized-but asks that the timber culture entry of Lee be canceled in order to allow him to make entry of the land under the same law.

In view of all the facts in the case as shown by the affidavits filed with this motion, and the admission of the contestant, I am satisfied that the right of Lee is superior to that of Mayfield, and I therefore revoke the decision of the Department of October 19, 1888, and direct that the entry of Lee remain intact.

REPAYMENT.

AMBROSE W. GIVENS.

The Department is not clothed with power to allow repayment, when the money has been paid into the Treasury, unless specially authorized by statute.

There is no authority for the allowance of repayment if the entry can be confirmed.

First Assistant Secretary Muldrow to Commissioner Stockslager, March 8, 1889.

I have considered the appeal of Ambrose W. Givens from your office decision of February 11, 1888, rejecting his application for the cancel lation of his cash entry for the S. E. of Sec. 10, T. 23 S., R. 19 W., Larned land district, Kansas, and for the return of the purchase money for the said tract.

The facts are fully stated in your office letter of the said date. I concur in the conclusion therein expressed.

There is another reason why your action in the case should not be disturbed. This Department is not clothed with power to make repay

ment where the money has been paid into the Treasury, unless specially authorized by statute so to do. Sarah D. Smith (7 L. D., 295); Joseph Brown (5 idem., 316).

The existing legislation on the subject is as follows:

Section 2362 of the Revised Statutes provides for repayment in cases where a tract of land "has been erroneously sold by the United States so that from any cause the sale can not be confirmed."

The act of June 16, 1880 (21 Stat., 287), provides that repayment may be made of fees and commissions and excess payments upon the location of claims under section 2306, where said claims were after said location found to be fraudulent and void, and the entries or locations made thereon canceled, or where entries are canceled for conflict, "or, where from any cause the entry has been erroneously allowed and can not be confirmed," or where double minimum price has been paid for lands afterwards found not to be within the limits of a railroad grant, the excess, $1.25 per acre, may be returned.

After the dismissal of the contest, no obstacle remains to the confir mation of Givens' cash entry, though it should be held that the same, pending his appeal, was erroneous under Rule 53 of the Rules of Practice.

By the initiation of the contest Givens' right to purchase was suspended until the final disposition of the contest. Freise v. Hobson, 4 L. D., 580. The contestant being out of the case, Givens' cash entry can now be confirmed; it follows that the application for the repayment of the money paid for the purchase of the said lands is not authorized by any of the provisions of the statutes above referred to, and must, therefore, be denied.

Your office decision is accordingly affirmed.

RES JUDICATA-PRIVATE CLAIM-ACT OF JUNE 2, 1858.

JOHN MCDONOGH SCHOOL FUND.

Whether the Commissioner of the General Land Office has authority to revoke a decision of his predecessor or not, such action will not preclude the Department from exercising full jurisdiction over the matters involved when the case comes up for final disposition.

The surveyor general's action in issuing certificates of location, under the act of June 2, 1858, is subject to the supervision and control of the General Land Office, under the direction of the Secretary of the Interior.

Indemnity under section 2 of said act will only issue to the owner of the claim to which title has failed; and if the applicant has parted with a portion of the land, alleged as a basis therefor, he can only receive indemnity for that portion of the claim which he yet owns, and to which title has failed.

Secretary Noble to Commissioner Stockslager, May 4, 1889.

By applications, dated July 7, 10, and September 3, 1883, the "Board of commissioners John McDonogh school fund of the city of New

Orleans," claiming as legatee under the will of John McDonogh, deceased, applied through its designated attorney for the issue of certain indemnity warrants of location, agreeably to the third section of the act of June 2, 1858, in satisfaction of three private land claims duly confirmed to said McDonogh, and more particularly described as B 20 and B 21, American State Papers (Gale and Seaton's edition), Vol. 6, p. 675, and C 86, Id., Vol. 8, p. 370. The claims first named were duly confirmed by the act of March 3, 1835 (4 Stat., 779). The latter by the act of July, 1836 (6 Stat., 682), and located in townships 14 and 15 S., R. 23 E., and 15 S., R. 24 E., west of the Mississippi river. These claims as located conflicted with superior confirmations and also with one another, except as to about 104.81 acres.

Claim B 20 is for a tract of land situate on the bayou des Familles, in the parish of Jefferson, district of Barataria, containing twenty arpens, frout on said bayou by the ordinary depth of forty arpens, bounded, etc.

Claim B 21 is for a tract of land situate on the left bank of the said bayou des Familles, containing twelve arpens front on the said bayou by the ordinary depth of forty arpens, and bounded, etc.

Claim C 86 is for a tract situate on the bank of the bayou Ouachas in the said parish of Jefferson, containing about thirty arpens, front on said bayou by a depth of about one hundred and ten arpens.

The surveyor general at New Orleans rendered his decision Septemtember 15, 1884. After stating that "agreeably to custom, this office referred these various conflicts to the register and receiver of the United States land office here for decision under section 6 of the act of March 3,1831, and in due course these officers made and transmitted two decisions, one of November 7, 1883, and the other of June 16, 1884," the said official, following the decisions named, found

1st. That the claim C 86 is a "confirmed located private land claim, totally unsatisfied by reasons founding the right under the 3d section of the act of June 2, 1853, to indemuity lands for the whole area embraced in its location."

2d. That claim B 20 is entitled to patent as to section 55, containing 63.61 acres, T. 15 S., R. 23 E., and to indemnity lands as to the residue of its location.”

3d. That claim B 21 is entitled to patent as to section 51, T. 15 S., R. 23, containing 41.20 acres, and to indemnity lauds as to the residue of its location; and

4th. That these rights to indemnity lands are to be enjoyed by those parties who are under the laws of Louisiana the true owners in law and equity of the land in place, to the extent of the interest of each, and not by the city of New Orleans, or the Trustees of the McDonogh School Fund, admitted by their counsel to have long since sold all the land involved.

September 27, 1884, the said attorney appealed from the said decision adverse "to the right of the applicants to such indemnity warrants."

December 6, 1884, the Commissioner of the General Land Office considered said appeal, and found that the present applicants, being only intermediaries between the claimant, John McDonogh, and the present holders of the title are not entitled to indemnity on account of the land sold and conveyed as aforesaid; and said:

But in view of and controlled by the Toups case (2 L. D., 431), I think they are entitled to indemnity to the extent represented by the several conflicts between the three McDonogh claims.

The surveyor-general was instructed to ascertain the quantity of land by which the area of the McDonogh claims have been diminished by their interferences with each other, and to issue certificates of location. in the usual manner (which will be in the name of the claimant John McDonogh, and result to the benefit of the present applicants, if they are legally entitled thereto), for the deficiency in quantity, so determined as with the amount sold will make the whole quantity equal to what would have been received under the three claims if they had been capable of location without interference with each other, and had been so located by independent survey. See 3 L. D., 238.

February 10, 1885, the surveyor-general transmitted, in pursuance of the foregoing, certificates of location for 1,526.26 acres.

By letter, dated October 22, 1885, your office directed the surveyor. general to require the applicants for said certificates to show in whom the title to said lands now rests.

July 20, 1886, your office held that

The trustees of the McDonogh school fund having conveyed all the land with full warranty and subrogation, without reference to their claim under any particular confirmation, conveyed any and all right they may have had, whether acquired under one confirmation or three confirmations, and hence they are not entitled to any indemnity under the act of June 2, 1858, in my opinion—

and by the same decision declined to authenticate and deliver the said certificates of location, and held the same for cancellation.

The applicants on appeal from the foregoing claim error 1st. In assuming jurisdiction of the issue of scrip.

2d. In re-opening without new evidence a question already decided. 3d. In holding that deeds from the applicants under valid grants passed to the grantees named in said deeds, all right of recovery against the United States growing out of invalid grants and confirmations of the same land.

The appellant's first specification of error is disposed of adversely to him in the decision of this Department in the case of Stephen Sweayze (5 L. D., 570), wherein it was held after a thorough discussion, that the act of 1858 (supra), when considered in pari materia with the general laws on the same subject, clearly contemplates that the surveyor-general's action in issuing certificates of location is subject to the supervision and control of the Commissioner of the General Land Office, under the direction of the Secretary of the Interior.

As to his second allegation of error, it is sufficient to say that, waiving the question whether or not the Commissioner of the General Land Office had authority to set aside and revoke the decision of his predecessor, involving the same matter, yet the question being now here, the Secretary of the Interior by virtue of "that just supervision which 16184-VOĽ 8-30