its application is not at all difficult in the administration of either law. For instance, if a timber application should cover timbered land whose soil was so thin or so poor, or whose surface was so precipitous, rocky, or broken, as to unfit it for raising crops in the ordinary manuer and quantity, it would be valuable chiefly for timber.

The other ground of error alleged, to wit,-that the question as to the character of the land, was not involved in the trial of the case, and Fitzgerald had no notice that testimony upon that point was necessary -is, I think, sufficient ground for ordering a rehearing in this case. In the case of F. E. Habersham (4 L. D., 282), it was said: When there is an adverse claim of file at the date of the application, a contest should be ordered, and the sole question then involved is the validity of such adverse claim. When there is no adverse claim of file at the date of the application, a simple protest will make an issue, and the sole question then involved is the bona fides of the application and the character of the land, and this issue must be made by protest filed for that purpose. Martin v. Henderson (2 L. D., 172); Rowland v. Clemens (Id., 633); Showers v. Friend (3 L. D., 210); Crooks v. Hadsell (Id., 258); Merritt v. Short et al., (Id., 435); Jones v. Finley (10 C. L. O., 365).

While it is true that the question as to the character of the land might have been raised on the hearing ordered to determine the priority of Reed's settlement, yet it is clear that such issue was not raised, and Fitzgerald was not called upon to meet it, the investigation being ordered solely upon Reed's allegation of prior right to the land and of compliance with the law on his part, no question as to the character of the land being raised until the decision rendered by the Commissioner.

She now asks that she may have an opportunity to meet that issue with proof, and to show that the land is absolutely unfit for cultivation and to have the decision of the Department modified to that extent.

While this motion was pending before the Department, you for warded to the Department the application of Thomas Reed to make homestead entry of said tract, and you ask that said application be considered in connection with this motion for review, said application having been rejected by the local officers, and an appeal filed therefrom to your office.

In view of the uncertainty of the testimony as to the character of this land, and the application of Reed to enter the same under the homestead law, I have thought proper to modify the decision of the Department of June 9th, and to order a hearing in said case, for the purpose of determining the character of said land, of which hearing all parties should be notified and full opportunity should be allowed to show the character of said land, in connection with the respective applications of the parties to enter the same under the timber cash entry and homestead laws.

16184-VOL 8- -11

REPAYMENT-COMMUTED HOMESTEAD-ENTRY,

E. L. CHOATE.

Repayment may be allowed where commutation proof, made and accepted in good faith, is found insufficient by the Department in the matter of residence, and the entryman, not being able to show further compliance with law as required, relinquishes his claim to the land.

Secretary Vilas to Commissioner Stockslager, February 7, 1889.

In the matter of the application of E. L. Choate for repayment of the purchase money paid by him on commuted cash entry, No. 10,172, for the NE. of Sec. 32, T. 110 N., R. 62 W., Huron land district, Dakota, appealed from the decision of your office (of June 23, 1887,) denying said application, the record discloses the following facts:

On August 28, 1884, appellant made final commutation proof on his homestead entry No. 8733, paid two hundred dollars for said tract, and obtained from the local officers his final certificate of entry.

On August 27, 1885, your office rejected this proof, suspended the cash entry, and required appellant to make new proof, showing" that he had for a period of six months maintained an actual, bona fide, continuous residence" on said land.

On February 27, 1887, on appeal, this decision was affirmed by the Department. On April 12 following, Choate relinquished his entrywhich was then canceled by the local officers-and made application for repayment of the purchase money. In denying the application you

say:

Choate could have perfected his entry; reasonable time was given him to do so, but he would not avail himself of that privilege, alleging that it was impossible to leave his work and reside on the land. The law governing the return of purchase money does not provide for repayment in a case of this character, when parties voluntarily relinquish their entries.

It appears that appellant is a locomotive engineer, and in an affidavit accompanying his application he swears that, being a poor man, he can not show the required residence on said land without giving up his only means of living, and that in making final proof, "he made no attempt to conceal or evade anything relating to his improvements, residence, or his or his family's temporary absences from said land, and that said proof was all made in his own words and own handwriting, stating all facts in the case just as they were, believing it all to have been done in accordance with legal requirements."

To the common understanding, and in the absence of any rule or law on the subject, it would appear that justice demanded the return of appellant's money, and if the law, which does not generally favor forfeitures, does not clearly forfeit this money to the government, it should be returned to him.

There is nothing in the record showing that the applicant's final proof was false or fraudulent, or that he imposed upon or in any manner

deceived the local officers. His good faith and the good faith of the officers who received payment for the land and issued to him a final certificate of purchase stand unimpeached. Nor does there appear to have been any concealment of the facts as to the character of applicant's residence, and these facts, showing the real state of the case at the time proof was made, were regarded by the applicant and by the local officers as a substantial compliance with the settlement laws. Your office and the Department were of the opinion that the facts as to residence did not show such compliance. The entry, therefore, appears to have been erroneously allowed by the local officers. The proof was finally rejected by the Department, two and a half years after it was submitted and the final certificate issued thereon, and though the applicant was allowed a reasonable time in which to make new proof, he was then so situated as to make it impracticable to do so. He has surrendered the duplicate receipt issued to him and executed a proper relinquishment of all claims to said tract of land as required by statute, and his entry has been duly canceled and can not now be confirmed. The second section of the act of June 16, 1880 (21 Stat., 287), provides that: In all cases where homestead or timber-culture or desert land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excess paid upon the same upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall have been duly canceled by the Commissioner of the General Land Office.

This statute is remedial in its nature, and its language is broad and liberal. "Where from any cause the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid," etc., is the language used. To restrict and limit this language so as to exclude the appellant from its benefits would defeat what seems to me to be the plain object of the statute in cases like the one under consideration. In my opinion the appellant has brought himself within the statute, and is entitled to a repayment of the purchase money for said tract.

The decision of your office is therefore reversed, and the repayment asked is hereby directed to be made.

DESERT LAND ENTRY-CHARACTER OF LAND.

FREEMAN v. LIND.

Land which produces native grasses in sufficient quantity to make an ordinary crop of hay in usual seasons is not subject to desert entry.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 6, 1889.

I have considered the case of Horace M. Freeman v. John S. Lind involving the validity of the latter's entry under the desert land law of

the W. of the SE. of section 31 T. 4 N., R. 18 E., in the Hailey land district, Idaho.

The entry was made May 3, 1883, and the case arose upon a contest affidavit filed by Horace M. Freeman alleging that the land was not desert land. A hearing was ordered and had and both parties appeared and offered testimony. The local officers found in favor of the contestant and held that the land was not desert in character. The decision of your office was rendered September 24, 1886, and held that the south forty of the land was not desert land and that the evidence does not show that the north forty "will produce an agricultural crop without irrigation in paying quantities "-You affirmed the finding of the local office as to the south forty and reversed it as to the north forty. From your said decision the contestant Freeman appealed.

The eighty acres in controversy are situated on the road from Hailey to Ketchum in the valley of Wood River and directly west of the preemption claim of Lind. At its nearest point it is about twenty rods from the river and at its most distant eighty rods, and its altitude varies from five to forty feet above the level of the stream. Upon the south forty there are about twelve acres of standing timber and from six to ten acres that are periodically overflowed by Wood River. The north forty extends to the foot hills and is watered by a branch that flows from a spring outside the tract and spreading, is distributed in the soil. It also forms a part of the water shed of the mountainous county adjoining it and receives considerable amount of water from the melting of the snow, which accumulates to the depth of three feet and more, and is also touched by a small rivulet on its western boundary.

The testimony shows that for three years Lind has cut the native grasses and sold the hay. The estimates of hay grown per acre, without irrigation, varies from sixty pounds to twelve hundred. It is shown that the average price of hay per ton at Ketchum, the nearest town, was $25 and if the land produced five hundred pounds per acre, it was a source of profit to the entryman. One of the contestees witnesses paid him $25 a ton for hay cut upon the place; and it is also shown that the land was valuable for pasturing horses and cattle and was used for that purpose. The hay was cut upon both forties.

The second section of the act of March 3, 1877 providing for the sale of desert lands provides "that all lands exclusive of timber lands and mineral lands which will not without artificial irrigation produce some agricultural crops shall be deemed desert lands within the meaning of this act," and the third section provides that "the determination of what may be considered desert land shall be subject to the decision and regulation of the Commissioner of the General Land Office." In pursuance of the duty imposed by said act the circular of June 27, 1887 (5 L. D. 708) was issued in which it was prescribed that "Land which produces native grasses sufficient in quantity, if unfed by grazing animals, to make an ordinary crop of hay in usual seasons is not desert land."

Both of the forty acre tracts involved herein produced native grasses sufficient to make an ordinary crop of hay. Your decision holding for cancellation the entry as to the south forty embraced in his entry is affirmed and your decision sustaining the entry as to the north forty thereof is reversed. The contest of Freeman is sustained and the entry of Lind will be canceled.

RAILROAD GRANT - SUIT TO VACATE PATENT.

THE ATLANTIC & PACIFIC R. R. Co.

The odd sections within the granted limits of the act of June 10, 1852, excepted therefrom, but withdrawn under said grant, having been “offered" after the adjustment thereof, and prior to the grant of July 27, 1866, were not reserved from the operation of the latter grant.

The deduction required from the lands granted by the act of 1866, in so far as the road located thereunder was upon the same line as that provided for by the grant of 1852, should be made from the aggregate amount of the later grant.

Suit to set aside patent will not be advised where title passed under a full knowledge of the facts in the case, and has remained undisturbed for a long term of years, and the land covered thereby is now held by purchasers who bought in good faith, relying upon the title issued by the government. The case of Rogers v. Atlantic & Pacific R. R. Co. overruled.

Secretary Vilas to Commissioner Stockslager, February 6, 1889.

On June 3, 1886, your immediate predecessor forwarded to this Department a list of certain lands, situated in the State of Missouri, alleged to have been erroneously patented to the Atlantic and Pacific Railroad Company, accompanied by a recommendation that suit be instituted to restore the title to said lands to the United States. On July 24, 1886, in compliance with instructions from this Department, a rule was laid upon said company to show cause before you, on a day named, why proceedings should not be instituted, in accordance with section two of the act of March 3, 1887 (24 Stat., 556), to restore said title as recommended. Return and answer to the rule were duly made; and, on consideration of the showing then made, on December 7, 1888, you rec ommended that proceedings be instituted to recover title to such lands, as at the date of the definite location of said road were covered by claims of record a list of which lands, marked "C," aggregating 9,105.14 acres, was forwarded. In regard to the other lands alleged to have been improperly patented by your predecessor, you state that you "prefer to make no recommendation," and the papers are transmitted for my consideration and such action as may be directed.

It appears that, in aid of the construction of a railroad from the city of St. Louis to a point to be designated on the western boundary of the State of Missouri, Congress by act of June 10, 1852 (10 Stat., 8), granted to said State "every alternate section of land designated by even numbers, for six sections in width on each side of said road," with a provis