APPLICATION-ENTRY OF RECORD-RELINQUISHMENT-CANCELLA

TION.

O'SHEE v. LA CROIX.

Where proceedings are instituted on behalf of the Government solely for the purpose of clearing the record of an existing entry, no question of a preference right is involved, and where a relinquishment is subsequently filed and there are no valid adverse rights outstanding, the rule that no application to enter shall be received until proper notation of the cancellation of the entry is made upon the records of the local office, has no application. Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) February 9, 1906. (E. O. P.)

James L. O'Shee has appealed to the Department from your office decision of November 17, 1904, denying his application to locate military bounty land warrant, No. 115,616, upon the NW. 4, Sec. 22, T. 7 N., R. 2 W., New Orleans land district, Louisiana, because of conflict with the prior application of John L. La Croix to locate military bounty land warrant No. 19,719, upon the same tract.

The land involved was formerly embraced in the homestead entry of one James M. Arrington, against which entry proceedings had been instituted on behalf of the government looking to its cancellation. On February 24, 1904, subsequent to the hearing, but prior to final action by your office upon the testimony submitted, the relinquishment of Arrington and the application of La Croix to locate, were filed in the local office, but no notation of said relinquishment was then made upon the record. This notation was not made until May 23, 1904, following the direction contained in your office letter of May 19, 1904. On May 21, 1904, O'Shee filed his said application, which was rejected by the local officers for conflict with the prior application of La Croix. On June 3, 1904, O'Shee again made similar application, which was likewise rejected for the same reason.

In the decision appealed from, affirming this action of the local officers, the case of Walters v. Northern Pacific Railroad Company (23 L. D., 492), is cited, but no reference is made to the rule announced in departmental decision in the case of Stewart . Peterson (28 L. D., 515), nor to the case relied upon by appellant to sustain the contentions urged in his appeal, viz., Young . Peck (32 L. D., 102).

In the case of Stewart . Peterson, supra, it was held and directed that

In order that this important matter of regulation may be perfectly clear, it is directed that no application will be received, or any rights recognized as initiated by the tender of an application for a tract embraced in an entry of record, until said entry has been canceled upon the records of the local office. Thereafter, and until the period afforded a successful contestant has expired. or he has waived his preferred right, applications may be received, entered, and

held subject to the rights of the contestant, the same to be disposed of in the order of filing upon the expiration of the period accorded the successful contestant or upon the filing of his waiver of his preferred right.

Circular of instructions, containing language equally broad, was prepared in accordance with the direction contained in this decision (29 L. D., 29).

The broad language used would appear to extend to all cases, but an examination of these cases, out of which the necessity of the rule seems to have arisen, discloses that it was not intended to apply in cases where no action on the part of your office was necessary to clear the record of an existing entry and restore the land covered thereby to the public domain.

So long as no final action had been taken by your office upon the proceedings had before the local officers, and there had been no transfer of the interest in the land, the right of the entryman to relinquish is unquestioned, and upon the filing of such relinquishment it was the duty of the local officers to make proper notation thereof upon the record. On the filing of such relinquishment, by operation of law the entry was canceled and no further action was necessary to effect that end. The making of the notation thereof was purely a ministerial act and it was clearly the duty of the local officers to promptly perform it. Had the proceedings here involved been brought by a party having a potential preference right of entry, as in the case of an ordinary contest, the benefit flowing from the filing of the relinquishment might have inured to him, and the acceptance of another application, pending the exercise of that right, would cause embarrassment; yet this would have had no bearing upon the plain ministerial duty of the local officers to note the filing thereof upon the record.

Clearly the rule announced in the case of Stewart v. Peterson, supra, was not intended to permit the local officers, in their discretion, to decline to make such notation. The effect of a relinquishment duly executed and filed before final cancellation of an entry is well settled, and it attaches eo instanti the filing thereof (Walters 7. Northern Pacific Railroad Company, supra) and there is no discretion vested in the local officers relative to the action to be taken by them. Final certificate had been issued in the case at bar, yet it does not appear, nor is it contended, that there had been any transfer or incumbrance of the equitable title of the claimant. On the contrary, Arrington states in his affidavit of April 27, 1904—

that he has never sold, conveyed or disposed of, nor incumbered in any manner, the land embraced in his relinquished homestead entry.

While it is true the government will refuse to recognize relinquishments made after issuance of final certificate and in fraud upon bona fide incumbrancers or transferees (Addison W. Hastie, 8 L. D., 618;

Harlan P. Allen, 14 L. D., 224, Richard F. Hafeman, ib., 644; Paul v. Wiseman, 21 L. D., 12; Alfred A. Anscomb, 26 L. D., 337), it seems clear that no such adverse claims existed in this case nor was the action of the local officers based upon any such claim. In any event the local officers, upon the filing of such relinquishment, should have accepted applications to enter, subject to any adverse claim that might have been presented.

Where proceedings are instituted on behalf of the government solely for the purpose of clearing the record of an existing entry, no question of a preference right is involved, and where a relinquishment is subsequently filed and there are no valid adverse rights outstanding, the rule that no application to enter shall be received until proper notation of the cancellation of the entry is made upon the records of the local office, has no application.

The case under consideration is therefore not covered by departmental circular of July 14, 1899 (29 L. D., 29), and the contention of appellant, based upon departmental decision in the case of Young . Peck, supra, can not be sustained.

For the reasons herein stated the decision appealed from is hereby affirmed.

MANNER OF PROCEEDING ON SPECIAL AGENTS' REPORTS.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., February 14, 1906.

To Special Agents and Registers and Receivers,

United States Land Offices:

The following rules are prescribed for the Government of proceedings had upon the reports of special agents of this office. All existing instructions in conflict herewith are superseded.

1. The purpose hereof is to secure speedy action upon special agents' adverse reports upon claims to the public lands, and to allow entryman, or other claimant of record, opportunity to file a denial of the charges against the entry or claim, and to be heard thereon if he so desires.

2. Upon receipt of the special agent's report this office will consider the same and determine there from whether the charges, if true, would warrant the rejection or cancellation of the entry or claim.

3. Should the charges, if not disputed, justify the rejection or cancellation of the entry or claim the local officers will be duly notified thereof and directed to issue notice of such charges in the manner and form hereinafter provided for, which notice must be served upon

the entryman and other parties in interest shown to be entitled to notice.

4. The notice must be written or printed and must state fully the charges as contained in the letter of this office, the number of the entry or claim, subdivision of land involved, name of entryman or claimant or other known parties in interest.

5. The notice must also state that the charges will be accepted as true, (a) unless the entryman or claimant files in the local office within thirty days from receipt of notice a written denial of said charges with an application for a hearing, (b) or if he fails to appear at any hearing that may be ordered in the case. If the entryman or claimant applies for a hearing he may indicate therein the time and place for such hearing, subject to the approval of the local officers, the time to be not less than 60 days from date of his application therefor.

6. Notice of the charges may be personally served upon the proper party by the local officers at their office, but if this can not be done they will deliver the notice to the special agent for service under the rules. If the special agent can not secure personal service, notice may be served, upon sufficient showing by the special agent or other qualified person, by publication. The register will require such publication to be made under the rules.

7. If a hearing is asked for, the local officers will consider the same and confer with the special agent relative thereto and fix the hearing for the date and place stated in the application, if practicable under the rules, due notice of which must be given entryman or claimant. The above notice may be served by registered mail.

8. The special agent will duly submit, upon the form provided therefor, to the Receiver of Public Moneys an estimate of the probable expense required on behalf of the Government. The special agent will also serve subpoenas upon the Government witnesses and take such other steps as are necessary to prepare the case for prosecution.

9. The special agent must appear with his witnesses on the date and at the place fixed for said hearing, unless he has reason to believe that no appearance for the defense will be made, in which event no appearance on behalf of the Government will be required. The special agent must, therefore, keep advised as to whether the defendant intends to appear at the hearing.

10. If the entryman or claimant fails to apply for a hearing, or fails to appear at the hearing ordered, without showing good cause therefor, such failure will be taken as an admission of the truth of the charges contained in the special agent's report and will obviate any necessity for the Government's submitting evidence in support thereof.

11. Upon the day set for the hearing and the day to which it may be continued the testimony of witnesses for either party may be submitted, and both parties, if present, may examine and cross-examine the witnesses, under the rules, the Government to assume the burden of proving the special agent's charges.

12. If the entryman or claimant fails to apply for a hearing or to appear at a hearing applied for, as provided in paragraph 10, or if a hearing is had, as provided in paragraph 11, the local officers will render their decision upon the record, giving due notice thereof in the usual manner.

13. Appeals or briefs must be filed under the rules, but need not be served upon the special agent, nor will the special agent file any appeal or brief unless directed to do so by this office.

14. The above proceedings will be governed by the Rules of Practice. All notices served on claimants or entrymen must likewise be served upon transferees or mortgagees, as provided in Rules 8 of Practice.

Only one application of the rule of approximation is allowed to each original right of soldiers' additional entry, and where the right is divided, the rule may be applied only in the location of one portion thereof; but where a portion of a right is located for a tract of land embracing merely a fraction of an acre excess, such small excess will not, under the rule de minimis non curat ler, be regarded as preventing the holder of the remainder of the right, in making location thereof, from applying the rule of approximation.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) February 16, 1906. (P. E. W.)

John S. Morton has appealed to the Department from your office decision of April 24, 1905, rejecting his application, as assignee of Anna McNally, widow of William McNally, to enter, under section 2307 of the Revised Statutes of the United States, lot 7, Sec. 28, T. 33 N., R. 31 E., Great falls, Montana, containing 7.60 acres.

Said application is based on a military service of said William McNally and the homestead entry, No. 3281, made by him April 22, 1869, at Omaha, Nebraska, for eighty acres of land. His additional