the cash entry, No. 1182, of Samuel D. Samuels, on the SW. of Sec. 5, T. 3. N., R. 9 W., McCook district, Nebraska.

November 3, 1879, said Samuels made homestead entry, No. 1693 of said tract, which was canceled for abandonment July 21, 1883, and subsequently, November 20, 1883, Patrick Egan made homestead entry thereon, which was canceled on relinquishment November 11, 1884, and on the same day it was entered under the homestead law by William Fruin, whose entry was like-wise canceled on relinquishment April 18, 1885.

On the day last named, said Samuels, the first entryman, made cash entry of the land, No. 1182, under the second section of the act of June 15, 1880 (21 Stat., 237), and September 13, 1886, John E. Kelley made application to enter the land under the homestead law, which was rejected by the local officers on the ground that the land" was covered by" the said cash entry of Samuels. Kelley having appealed to your office from said action of the local officers, your office in said decision of October 18, 1887, sustained the local officers in rejecting the applica tion of Kelley to enter the land, and also, held the cash entry of Samuels for cancellation "for the reason that the two homestead entries mentioned above (subsequent to the homestead entry of Samuels) withdrew the land from entry under the act of June 15, 1880."

The case is now before this Department on appeal by Helen T. Campbell (who claims as grantee through Samuels), from that part of said decision of your office holding the cash entry of Samuels for cancellation.

The second section of the act of June 15, 1880, under which Samuels' cash entry was made, provides

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That persons who have heretofore under any of the homestead laws, entered lands properly subject to such entry . . . may entitle themselves to said lands by paying the government price therefor.. Provided, This shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws.

"This language is plain and unambiguous, and annexes no conditions or pre-requisities to the purchase of lands theretofore entered under any of the homestead laws, other than the freedom of the tract in question from adverse claim, and the payment by the applicant of the proper government price." (George E. Sanford, 5 L. D., 535.)

Samuels' entry under this law was properly allowed and should be sustained, unless it comes within the operation of said proviso, by interfering with the "rights or claims" of others acquired since his original homestead entry. Egan and Fruin had relinquished their claims and the land was open to settlement and entry (act of May 14, 1880, 21 Stat., 140), and they had no right to make cash entry under the act of June 15, 1880, because their entries were subsequent to said act.

At the date of Samuels' cash entry, then, there were, (so far as the record discloses) no "rights or claims of others" with which said entry

could interfere. The application of Kelley to make homestead entry September 13, 1886, long after Samuels' cash entry, could not of course. affect said cash entry.

That part of the decision of your office holding for cancellation the cash entry of Samuels, is reversed.

PRIVATE ENTRY-REPAYMENT.

E. W. HARRIS.

An applicant for public land who deposits the price thereof with the receiver, to be paid to the government if the entry is allowed, by such act makes the receiver his agent, and is not entitled to repayment from the government if his application to enter is rejected.

Secretary Vilas to Commissioner Stockslager, January 17, 1889.

May 25, 1887, the Department affirmed the decisions of your office dated October 15, and November 20, 1885, refusing to allow E. W. Harris to make private cash entry of lands in T. 4 N., R. 16 E., Detroit land office, in the state of Michigan (E. W. Harris, 5 L. D., 660).

After this decision was rendered Mr. Harris made application to have paid to him the sum of $29.24 which he states he paid to L. G. Willcox, the receiver, and for which he took receiver's receipt. This sum was the amount of the estimated price of the land and having been denied the right to enter he wants his money returned.

December 30, 1887, you denied the application on the ground that the government was in no way responsible for the money paid to the then receiver.

In your letter of February 16, 1888, it is stated the money was not reported or accounted for to the United States.

Section 2355, Revised Statutes, provides that

Every person making application at any of the land offices of the United States, for the purchase at private sale of a tract of land shall produce to the register a memorandum in writing describing the tract which he shall enter by the proper number of the section, half-section, quarter section, half quarter section, or quarter quarter section, as the case may be, and of the township and range subscribing his name thereto, which memorandum the register shall file and preserve in his office.

Section 2356 provides that

The purchaser at private sale shall produce to the register of the land office a receipt from the Treasurer of the United States, or from the receiver of public moneys of the district, for the amount of the purchase money on any tract, before he enters the same at the land office.

In this case there is no compliance with the requirements of the stat utes, there was no entry made and the records of your office fail to show that any money was paid to the government on account of the transaction.

The Department recently decided a similar case, that of Matthiessen and Ward (6 L. D., 713), and held that a payment accepted by the receiver

in advance of the time when the local office is ready to act upon au application and allow entry thereunder, is not in pursuance of any duty enjoined by law; and a failure to account for such money, in the event that the application is refused, is not a default as to any obligation due the government, and the sureties of the receiver would not be liable therefor. It was further held that by a payment thus made the appli cant constitutes the receiver his agent to pay the money to the government, if the application is allowed, and if the application is rejected the receiver is individually liable for repayment, and not the government. Your decision is in accordance with the ruling cited and is affirmed.

SWAMP LAND-ACT OF JULY 23, 1866.

CENTRAL PAC. R. R. Co. v. CALIFORNIA.

Lands segregated by the State as swamp, prior to the act of July 23, 1866, by surveys in conformity with the system adopted by the government, were confirmed to the State by the provisions of said act.

Secretary Vilas to Commissioner Stockslager, January 17, 1889.

I have considered the case of the Central Pacific Railroad Company v. the State of California, as presented on appeal by the former from the decision of your office, dated June 4, 1887, holding for rejection its claim to Lots 15, 17, and 18, of Sec. 3, T. 12 N., R. 3 E., M. D. M., Marysville, land district, California.

The tracts in question are claimed by said company, as suœessor to the California and Oregon Railroad Company, under the latter's grant of July 25, 1866 (14 Stat., 239) and lie within the primary limits of said grant.

These tracts are also claimed by the State of California as swamp lands, under the act of September 28, 1850 (Revised Statutes, Sec. 2479) and certificate and patent are now sought by the State under the provisions of sections four and five of the act of July 23, 1866 (14 Stat., 218).

It appears that these lands, along with several other tracts in said township 12 N., R. 3 E., were involved in the case of the California and Oregon Railroad Company v. the State of California, decided by this Department September 5, 1885 (4 L. D., 142), in which the State's sole claim, then presented, was that the land had enured to it under the provisions of section one of said act of July 23, 1866.

In that case the Department overruled the award to the State made by your office, of the several tracts therein involved, holding that the first section of said act had no application to swamp land claims, but stating that your office was at liberty to consider all claims, under the laws applicable to the lands, without reference to the decision in the case as then presented.

The record shows that the tracts here in question were segregated by the State as swamp lands prior to July 23, 1866, by surveys made in conformity with the system of surveys adopted by the United States. An approved amended map of said township 12, showing such segre. gation was returned to the General Land Office by the United States surveyor general for California, January 14, 1887, and to the extent of the tracts now in controversy was approved by your predecessor, Commissioner Sparks, May 27, 1887.

The rejection of the company's claim by your office is based upon the theory that the lands in question, having been thus segregated as swamp lands were confirmed to the State by said act of July 23, 1866.

Upon consideration of the record as here presented, I see no reason for disturbing your said office decision and the same is therefore affirmed.

PRE-EMPTION ENTRY-APPROXIMATION.

VERNON B. MATTHEWS.

Where the difference between the excess, and the deficiency that would be produced by approximation is but slight, the entry may be allowed to stand as made.

Secretary Vilas to Commissioner Stockslager, January 17, 1889.

On October 12, 1887, your office suspended the pre-emption cash entry of Vernon B. Matthews, made June 25, 1884, for the W. of the SW., and lots 8 and 9, of Sec. 2, T. 151 N., R. 67 W., Devil's Lake, Dakota, embracing an area of 180.27 acres, and required him to relinquish to the United States some legal subdivision of his claim, because of the excessive acreage thereof.

From this action of your office claimant appeals.

It appears from the record that said lots 8 and 9 contain respectively, 45.89 acres, and 54.38 acres.

These lots are situated on the western line of the Devil's Lake Indian reservation, said line passing north and south through the W. of the SE. of said Sec. 2, and are made up by attaching to each of the two forties which constitute the E. of the SW. 4 of said Sec. 2, the adjoining parts of that portion of said W. of the SE. of Sec. 2, which falls outside of said reservation.

Claimant asserts on appeal that the 20.27 acres of land which consti. tute the excess of area mentioned, is principally "barren hills, covered with rocks, and valueless;" that either of the two regular forties embraced in his entry, is much more valuable than either of said lots; that there are not more than twenty-five acres of desirable land in lot 8, nor more than thirty acres in lot 9; that he has been continuously residing on his claim and improving the same, since the date of his entry, and that he can not, at this late day, relinquish to the government, either

of the legal subdivisions thereof without great loss and consequent hardship and embarrassment.

It will be observed that if one of said forty-acres subdivisions be relinquished by claimant, the deficiency in his entry will be 19.73 acres, which is only fifty-four one hundredths of an acre less than the present excess of area embraced in said entry; and if on the other hand, the smallest of said lots be relinquished, the deficiency will be 25.62 acres or 5.35 acres more than the present excess.

In view of the circumstances of this case I am constrained to hold that the entry in question should be sustained.

I do not think that the spirit of the rule of approximation, heretofore uniformly applied to entries covering excessive areas, is violated in allowing this entry, as originally made, to stand. There would seem to be no equity, or justice in so rigid an application of the rule, as to require the claimant in this case at this late day to relinquish forty acres or more of entry, and thereby suffer great hardship and loss, simply because of the difference against him, under a strict application of the rule, of only a fractional part of one acre of land.

I must, therefore, reverse your said office decision. Claimant's proof being in all respects satisfactory, the same will be approved and his entry passed to patent.

PRIVATE CLAIM-SCRIP-ACT OF JUNE 2, 1858.

WILLIAM GOFORTH.

The mistaken classification of a claim, by the register and receiver in their report thereon, as among those already confirmed by law, will not bring it within the confirmatory provisions of the act of May 11, 1820.

There is no legal authority for the issuance of scrip under section 3, act of June 2, 1858, if the private claim, on which the right of indemnity is based, had not been confirmed by act of Congress.

Secretary Vilas to Commissioner Stockslager, January 17, 1889.

I have considered the appeal filed in behalf of C. G. Boudousquie, as legal representative of William Goforth, from your office decision, dated October 22, 1887, refusing to authenticate and issue, under the provisions of section three of the act of June 2, 1858, certificates of location on account of a private land claim of said William Goforth.

Said claim, it appears, was entered as No. 462 in the report dated November 20, 1816, made by Harper and Lorrain, register and receiver for the eastern district of Louisiana. See American State Papers (Green's Edition) Vol. 3, p. 225. Said register and receiver were acting as commissioners to examine and report upon claims to lands in the eastern district of Louisiana, and their report was made for the information and action of Congress as well as of your office.