much of a variance between the selected and the lost lands will be considered sufficient to form the basis for a demand for further designation of losses-it is sufficient to say that where it is made apparent from an examination that a real excess in approvals exists, it is not only within the power of this Department, but becomes its necessary duty, to see that sufficient losses or quantities to which the grant might have been entitled, had they been in place and not otherwise disposed of, equal in amount to previous certifications on account of this grant, approximately, are furnished as a base for such previous approvals or certifications, before other approvals and certifications are made on account of the grant.

A demand by your office in keeping with this rule of adjustment will stand and be respected until complied with on the part of the State, or until, in a proper proceeding before this Department, it is set aside.

From your office letter it appears that the greater part of the apparent excess arises on account of approvals or certifications made to the State prior to March 1, 1877, and on behalf of the State it is claimed, without questioning the excess, that if it existed it was fully settled and satisfied by the confirmatory provisions of the act of March 1, 1877, supra, and can not, for that reason, be made the basis for a demand for further specifications of losses in satisfaction of such previous approvals.

The provisions of this act were fully discussed in Durand v. Martin (120 U. S., 366), and while there is much said to support a claim that all previous certifications on account of the school grant to the State of California were confirmed by its provisions, it is made clear that it was not intended thereby to enlarge or make any new grant to the State, which would be the effect of a concurrence by this Department in the State's contention.

In said case the court said (pages 374-5):

The statute relates only to such selections as had been certified to the state. and, taken as a whole, it meets the requirements of all the cases of defective selection which could be so certified. These are: 1. Cases where the state was entitled to indemnity, but the selection was defective in form; 2. Cases where the original school sections were actually in place, and the state was not entitled to indemnity on their account; and 3. Cases where the state was not entitled to indemnity, because there never had been such a section sixteen or section thirtysix as was represented when the selection was made and the official certificate given. As to the first of these classes, the certificate was simply confirmed because the state was entitled to its indemnity, and nothing was needed to perfect the title but a waiver by the United States of all irregularities in the time and manner of the selections. As to the second, the selection was confirmed, and the United States took in lieu of the selected land that which the state would have been entitled to but for the indemnity it had claimed and got. In its effect this was an exchange of lands between the United States and the state. And as to the third, in lieu of confirmation, bona fide purchasers from the state were given the privilege of perfecting their titles by paying the United

States for the land at a specified price. Under these circumstances, it was a matter of no moment to the United States whether the original selection was invalid for one cause or another. If the state was actually entitled to indemnity, it was got, and the United States only gave what it had agreed to give. If the state claimed and got indemnity when it ought to have taken the original school sections, the United States took the school sections and relinquished their rights to the lands which had been selected in lieu. And if the state had claimed and sold land to which it had no right, and for which it could not give school land in return, and equitable provision was made for the protection of the purchaser by which he could keep the land, and the United States would get its value in money. In this way all defective titles, under the government certificates, would be made good without loss to the United States.

It may be, as was claimed in argument, that when the bill was originally prepared the framer had it in mind only to provide for selections made in lieu of school sections within Mexican grants before the final survey of the grants, and for selections made in lieu of sections not finally included within the survey of a grant; but to our minds it is clear that before the bill finally became a law, Congress saw that, as ample provision had been made for the protection of the United States in all cases, it was best to include all certificates which were defective, no matter for what cause, and so the words "or are otherwise defective or invalid” were added in what seemed to be the most appropriate place to carry that purpose into effect. No selection was made good unless it had been certified, and not then unless the United States got an equivalent either in land or in money, or in carrying out their original school-land grant. In this way the titles of all bona fide purchasers from the state were or could be perfected without loss to the United States, and that, we have no doubt, was the intention of Congress when the statute was enacted.

It is not proposed to question approvals or certifications made many years ago on account of school grants whether before or after March 1, 1877. It is well understood that the State only makes selection of its school lands after having found a purchaser for the same. As before stated, the losses set forth in these lists as a base for the indemnity selections, are required primarily for the information of this Department as a check against exceeding the grant, and to require that further losses be supplied where, through mistake, the selections were permitted to exceed the losses, does not affect such previous approved selections, and to exact that losses be supplied to meet such excess before further approvals or certifications are made on account of the grant is the only reasonable course open to this Department in protecting the interests of the United States in the matter.

The matter of the further adjustment of this grant, and other school grants to the several States, in support of common schools, is therefore remanded to the primary consideration of your office. You will advise the State of California of the conclusions herein. reached, and while the State should be afforded an opportunity to bring any matters arising in the adjustment to the attention of this Department, by petition or appeal, it is hoped that the whole matter may be speedily and satisfactorily adjusted.

5194 Vol. 34-05 M-18

HOMESTEAD ENTRY-ADDITIONAL-ACT OF APRIL 28, 1904.

CHARLES E. MYERS.

Where an application to make homestead entry was pending at the date of the act of April 28, 1904, and prior to allowance of entry thereon the applicant presented a supplemental application to enter additional lands under the provisions of said act, requesting that the two applications be considered together, the fact that entry on the original application was inadvertently allowed without considering the supplemental application, does not warrant rejection of the application for additional entry on the ground that the original entry was allowed subsequently to the passage of the act.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 18, 1905. (C. J. G.)

A motion has been filed by Charles E. Myers for review of departmental decision of June 23, 1905, (not reported), sustaining the action of your office in rejecting his application to make homestead entry under the act of April 28, 1904 (33 Stat., 547), for the E.SE. 1, Sec. 23, NE. NE. 1, SW. † NE. 1, and W. SE. 1, Sec. 26, T. 35 N., R. 25 W., Valentine, Nebraska.

The records of your office show that on December 21, 1903, Myers made homestead entry for the S. NE. and E. SE. 1, Sec. 35, T. 35 N., R. 25 W., which he relinquished April 27, 1904, and on the same day applied to make second homestead entry for the E.SE. 1, SE. 1 NE., Sec. 26, and NE. NE. 1, Sec. 35, T. 35 N., R. 25 W. The application was forwarded to your office May 13, 1904.

On July 18, 1904, while his application of April 27, 1904, was pending in your office, Myers applied for the land first described herein, asking that he “be granted a homestead entry upon said land in connection with the land I have applied for on April 27, 1904, which application is now on file, and I ask that the same be made and considered herewith." The following indorsement, under date of August 9, 1904, was made on the back of said application by the local officers:

Charles E. Myers made application for a second homestead entry as stated in his affidavit and on July 18 filed the within as amendment to said homestead application, the land applied for now being vacant, and having recommended his application for a second entry on which the applicant is now residing we would recommend that his application be allowed for the land applied for originally and for the land applied for herein and all be treated as one application under the act of April 28, 1904.

This paper was received in your office August 15, 1904, and October 25, 1904, your office, after stating the reasons given by Myers for relinquishing his entry of December 21, 1903, allowed his application of April 27, 1904, and gave him sixty days from notice in which to make second entry for the land embraced in said application, no reference being made to his application of July 18, 1904, nor the recom

mendation of the local officers. In accordance with these directions Myers, on November 29, 1904, completed his application of April 27, 1904, and made entry for the E.SE. 1, SE. 1 NE. 1, Sec. 26, and NE. NE. 1, Sec. 35, T. 35 N., R. 25 W., accompanying the papers with the following sworn statement dated November 29, 1904:

Comes now the said Charles E. Myers, and, completing his entry said described land by payment fees and commissions therefor, on oath states that he is now and has been residing with his family on said land since about May 5, and commenced making improvements preparatory to establishment of such residence on April 28, 1904; that he does not elect to exhaust his homestead right by entry thereof but asks to be allowed to amend same so as to include the E. SE. 4, Sec. 23, NE. † NE. 1, and W. SE. 1, Sec. 26, said Tp. 35 N., in accordance with an application heretofore filed by him, and the additional land applied for being the only land contiguous to his homestead as allowed which is subject to homestead entry and not embraced in application of any other person.

April 1, 1905, your office passed upon Myers's application of July 18, 1904, referring to the recommendation of the local officers. thereon, and treating said application as one for additional entry under the act of April 28, 1904, supra, and concluded as follows:

The former application having been already considered by this office and the entry allowed of record, as above stated, the application does not come within the provisions of section 2 of the act of April 28, 1904, supra, for the reason that the original entry was made subsequent to the date of said act. The application is, therefore, hereby rejected, subject to the right of appeal.

Upon appeal, departmental decision of June 23, 1905, a review of which is now asked, was rendered, which followed and affirmed the foregoing action of your office without discussing or referring to Myers's application of July 18, 1904, or to his sworn statement of November 29, 1904.

Under the provisions of section 2 of the act of April 28, 1904, supra, known as the Kinkaid Act, and subject to its conditions, "entrymen. under the homestead laws. . . . who own and occupy the lands heretofore entered by them, may . . . . enter other lands contiguous." This, however, is not the provision of the act which Myers in effect invoked. While, prior to said act he had applied to enter 160 acres, which was all that was allowable at the time, yet his application had not been acted upon at the passage of the act nor prior to the time he applied for the benefits of said act in connection with his former application. It was manifest error to thus ignore his application of July 18, 1904, as the applications which he asked to be considered together were both pending at the date your office acted upon his first application, and he was clearly entitled to the provisions of the act of April 28, 1904, which in the meantime had been passed, as the circular instructions issued under said act May 31, 1904 (32 L. D., 670), contains this paragraph:

Under said act no bar is interposed to the making of second homesteads for the full area of 640 acres by parties entitled thereto under existing laws, and

applications therefor will be considered under the instructions of the respective laws under which they are made.

If, therefore, Myers was qualified to make entry of 160 acres under his application of April 27, 1904, as found, he was likewise entitled to the benefits of the act of April 28, 1904, said act having been passed before final action upon said application. It follows, too, that his rights in this respect are not prejudiced by the error in failing to consider and pass upon said rights, which were timely asserted by the filing of his second application of July 18, 1904.

The motion for review is therefore granted, departmental decision of June 23, 1905, is hereby vacated, the decision of your office of April 1, 1905, is reversed, and your office will allow Myers to amend his entry of November 29, 1904, in accordance with his application of July 18, 1904, so as to include in addition to the land embraced in said entry the land described in said application.

TOWNSITE ENTRY-MINERAL LAND-SECTION 16, ACT OF MARCH

3, 1891.

NOME AND SINOOK COMPANY ET AL. v. TOWNSITE OF NOME (ON REVIEW).

The owners of unpatented mining claims located upon the mineral lands of the United States are entitled to the exclusive and peaceable possession of their claims so long as they continue to comply with the requirements of the law respecting possessory rights, and are not required to apply for patent at any time, or ever, in order to preserve such possessory rights. Locations upon the mineral lands of the United States, lawfully possessed and held under the mining laws at the date of a townsite entry embracing such locations, are within the meaning of the language of section 16 of the act of March 3, 1891, "any valid mining claim or possession held under existing law," and can not be injuriously affected by the allowance of such entry; and the mineral claimant may, upon proper proceedings and proofs as in other cases, obtain patent for his claim notwithstanding the townsite entry or the issuance of patent thereon.

In the administration of the public land laws the land department has no authority to determine on their behalf alleged rights of claimants thereunder except where such claimants seek to obtain the legal or paramount title to the lands claimed; and where a claimant seeks to obtain the legal title to a tract of public land the inquiry by the land department is directed to questions affecting his right to have such legal title conveyed to him and not to questions relating to possessory or other rights unrelated to and disconnected with his application for the legal title.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 24, 1905. (S. V. P.)

This is a motion by the Nome and Sinook Company and R. T. Lyng for review of departmental decision of August 25, 1905, in the case of