view to obtaining for the government the enhanced value to which such lands had appreciated during their state of reservation. The act of April 18, 1896, as to this particular reservation provided that the lands therein, except one mile square embracing the government buildings

shall be open to the operation of the laws regulating homestead entry, except section twenty-three hundred and one of the Revised Statutes, and to entry under the townsite laws and the laws governing the disposal of coal lands, desert lands, and mineral lands, and shall not be subject to sale under the provisions of any act relating to the sale of abandoned military reservations.

By section 2 all entries theretofore made under "the homestead, townsite, desert land, or mineral land laws" were validated and, if canceled, were directed to be reinstated. Section 2301, Revised Statutes, referred to in the act of April 18, 1896, was that permitting commutation of a homestead entry by payment of the minimum price after fourteen months from date of the entry on proof of settlement and cultivation for that period required by the section as amended by section 6 of the act of March 3, 1891 (26 Stat., 1095, 1098). The policy of securing to the government an enhanced value for the lands in this military reservation was thus abandoned and the restriction. of the classes of entries permitted was with view to securing development of their resources by improvement, cultivation, residence, reclamation from desert character, or mineral exploration, such as was required by the several laws under which entries of them were permitted.

By the act of June 4, 1897, the United States, in furtherance of a public policy, sought to acquire complete title to all lands held in private right in the forest reserves. To secure that object it proposed to the owner of lands in a forest reserve in lieu of such lands the right to select "a tract of vacant land open to settlement," and by the act of June 6, 1900 (31 Stat., 588, 614), "vacant, surveyed non-mineral public lands which are subject to homestead entry." The lands in this abandoned military reservation are of the class thus specified.

It was within the power of Congress to offer any unappropriated lands in such exchange, and a proper construction of the acts of June 4, 1897, and June 6, 1900, later in date than the act of April 18, 1896, is to extend the modes by which such lands may be appropriated, nor does this construction interfere with any declared policy of the former act, which did not confine the modes of appropriation to those requiring settlement, residence and cultivation, nor did it enact in terms that such lands should be appropriated in those modes only. That act in form and terms merely excepted them from operation of the acts of 1884 and 1894, supra, providing generally for disposal of abandoned military reservation lands, and provided that they should be disposed of in other modes specified. It is not inconsistent with

the act of 1896, nor violative of any express or implied policy of Congress, to make them subject to yet other modes of appropriation, and in offering any "vacant land open to settlement," or "vacant, surveyed, non-mineral public lands which are subject to homestead entry," it offered to the owner of lands in a forest reserve any such described lands not in terms reserved for disposal in a specially restricted manner, or for attainment of some declared public purpose.

The cases of William C. Quinlan (30 L. D., 268); Joseph S. White (ib., 536); State of Utah (ib., 301); Webb McCaslin (31 L. D., 243); W. D. Harrigan (29 L. D., 153); Hiram M. Hamilton (32 L. D., 119); James Page (32 L. D., 536), are not inconsistent herewith. Examination of these cases will show that they fall into one or more of three general classes: (1) Where by act of Congress lands are directed to be disposed of under some specific laws only, or (2) for discharge of specific trusts charged thereon, or (3) in a specific manner in furtherance of an indicated policy, as to secure agricultural development by resident owners.

In the act here considered no such intent, object, or policy appears. The act of April 18, 1896, supra, merely excepted the land from operation of the acts of July 5, 1884, and August 23, 1894, and provided for their disposal under other acts, among which were the homestead laws without the commutation privilege. The acts to govern their disposal were of various character, excluding the purpose of assuring a resident agricultural holding. There was no trust requiring their sale for raising of a fund for a particular object; there were no words of exception or limitation to disposal under the acts named to the exclusion of any other law. When Congress by the acts of June 4, 1897, and June 6, 1900, offered " vacant land open to settlement," and vacant, surveyed non-mineral public lands which are subject to homestead entry," these lands being of such class, became subject thereto.

66

Your decision is hereby reversed and the papers are remanded to your office for adjudication upon the merits.

SUIT FOR CANCELLATION OF PATENT-PRACTICE-HEARING.

MARY E. COFFIN.

As between rival applicants for the same land, the prior settler must maintain his prior right by continued compliance with the law.

Suit for the cancellation of a patent will not be advised by the land department merely because such patent was inadvertently issued; but it must appear that some interest of the government, or of some party to whom it is under obligation, has suffered by such inadvertent action. Where patent has inadvertently issued for a tract of land, the land department, notwithstanding the title has passed out of the government, has authority to order a hearing between claimants under the patent and persons asserting

adverse rights to the land, with a view to determining the advisability or necessity for bringing suit for cancellation of the patent.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) December 8, 1905. (J. R. W.)

The Department is in receipt of your letter of September 14, 1905, transmitting exemplified records in Mary E. Coffin's selection, number 1182, your office series, under the act of June 4, 1897 (30 Stat., 36), and John Glode's homestead application, conflicting as to lots 5 and 6, Sec. 13, T. 65 N., R. 18 W., 4th P. M., Duluth, Minnesota.

The record shows that Mrs. Coffin made application, in due form and compliance with existing regulations, October 7, 1899, for these tracts, then unsurveyed, which was found regular and approved for patent April 20, 1902, and May 25, 1902, in inadvertent violation of then existing regulations of December 18, 1899 (29 L. D., 391, 393), patent issued therefor, the lands being then unsurveyed, and the regulations providing that patent should not issue upon selection of unsurveyed lands until four months after receipt at the local office of the approved township plat of survey.

February 8, 1905, the approved township plat of survey was filed in the local office, and on that day John Glode filed his homestead application for these and other tracts, alleging settlement thereon June 13, 1898. He further filed affidavit, corroborated by two witnesses, that

....

he continued to reside on, improve and cultivate said land with the intention of entering the same as a homestead until November 15, 1899, raised two crops on said land and made improvements thereon of the value of from $100 to $150, . . . . viz: a house about 12 x 14 feet in size, comfortable to live in at all seasons, about an acre cleared, about two rods square in cultivation, and about of a mile of trail cut; as a settler on the land affiant was one of the petitioners for survey of said township, but on or about the 1st day of November, 1899, affiant learned that said land had been scripped, and was advised that said scrip filing on said land would bar his settlement; but affiant says that at the time said scrip application for said land was made he was an actual settler thereon.

He prayed a hearing and cancellation of the selection.

June 3, 1905, your office ruled Mrs. Coffin to surrender her patent, demanded reconveyance of the land within sixty days and an abstract of title, showing revestiture of the United States with good title. August 31, 1905, the local office returned proof of service, and reported no action had been taken. Upon these facts your office recommended that suit be brought to annul the patent.

September 16, 1905, counsel for Mrs. Coffin filed in the Department a request that

the matter of establishing the right to the land patented be first considered and the rights of the respective applicants considered before further action is taken; as the selector . . . . is willing to make any reconveyance possible and consistent with what is lawful in the matter.

This communication was referred to your office for recommendation and report, and November 4, 1905, your office reported that:

Considering all the facts and circumstances in connection with this case, this office would not recommend that a hearing be ordered, in the absence of a written pledge from the patentee, Coffin, that she will faithfully abide by the final judgment of the Department in the premises, and deed the land to the Government, freed from incumbrances in case it is finally held that the rights of the homestead claimant are paramount.

Glode fails to set out facts entitling him to annulment of Mrs. Coffin's patent. While he alleges settlement, residence, improvement and cultivation, he fails to allege that the prior right thereby acquired has been prosecuted and maintained. It is well settled that between rival applicants for the same land, the prior settler must maintain his prior right by continued compliance with the law. Northern Pacific R. R. Company v. McCabe (29 L. D., 30); McInnes . Cotter (21 L. D., 97, 98); Meyer . Northern Pacific Railway Company (31 L. D., 196). This the affidavit does not assert. Its implication is that on being advised of the selection he no longer prosecuted and maintained his settlement. This is amendable, and though the affidavit is clearly defective, it is assumed for purposes of this decision that such amendment is made.

While the land department by issue of patent loses jurisdiction to adjudicate the rights of the parties to the land, yet there remains a duty to be performed by the Department when its aid is sought by a request to bring suit for cancellation of a patent. It does not follow as a matter of course that such suit should be brought merely because patent issued inadvertently. It would be mere formalism to obtain cancellation of the patent if the Department must on the existing facts at once again issue patent to the same party. (See O'Shee v. Coach, 33 L. D., 295.) It is the duty of this Department, before asking aid of the Department of Justice for correction of its errors, to ascertain whether the interests of the United States, or of some party to whom it is under obligation, have suffered by its own. misprision. It is clear that no interest of the United States has suffered because no question is raised but that the United States got good title to the tract relinquished in the exchange, nor yet that the land selected and patented was not of the kind and character offered by the United States. The principles applicable are the same as apply in controversies between private parties for cancellation of conveyances, and if there be no substantial equity in the government to demand relief, it must be defeated in such suit. East Omaha Land Company (21 L. D., 179).

It is, moreover, one of the established powers of the land department to order hearings in such cases for obtaining information necessary for its action, as well after patent has gone out to determine the

advisability or necessity of bringing suit for cancellation, as to determining questions arising as to rights in public lands not patented. Thomas J. Laney (9 L. D., 83, 85); Bullock v. Central Pacific Railroad Company (11 L. D., 590, 592).

If Glode be willing to assert and will undertake to prove the maintenance of his residence and due compliance with the law up to issue of the patent, a hearing will be granted, on notice to the selector, and the local office will find the facts as upon a contest against an existing entry. Such finding will be examined by your office as upon an appeal by the party whose right may be found, prior to issue of the patent, the inferior one, and the proceeding will be transmitted to the Department for its information in determining the advisability of instituting suit for cancellation of patent. Should Glode not allege residence in compliance with law to the time that patent issued, and renew his request for a hearing within sixty days from service hereof, the patent, though inadvertently issued, will be allowed to stand.

STATE SELECTION-PREFERENCE RIGHT-FOREST RESERVE LIEU SELECTION-ACT OF JUNE 4, 1897.

CRONAN v. WEST ET AE.

The preference right, for a period of sixty days from the filing of the township plat of survey, accorded the State by the act of March 3, 1893, within which to make selection of lands under grants to the State, does not segregate the lands against other applications, but they should be received, subject to the State's right, and, if that be not exercised, take effect, if otherwise entitled to approval, as of the date of their presentation. Where a selection tendered under the exchange provisions of the act of June 4,

1897, is in conflict, in part, with prior pending applications, it should not, for that reason, be rejected in its entirety, but the selector should be afforded opportunity to protect his rights by proper proceedings.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) December 9, 1905. (J. R. W.)

John Cronan appealed from your decision of February 8, 1905, rejecting his application under the act of June 4, 1897 (30 Stat., 36), to select lands in lieu of land relinquished to the United States in a forest reserve, as to certain lands therein included described as the SE. SW. 1, Sec. 3, and W. Į NE. 1, Sec. 4, T. 43 N., R. 2 E., B. M., Coeur d'Alene, Idaho.

August 21, 1903, the township plat of survey was filed in the local office. On that day Samuel J. Gilbert presented his application for homestead entry for the SE. SE., Sec. 5, with other land, which was suspended pending the State's sixty days preference right under the act of March 3, 1893 (27 Stat., 572, 592).