Sec. 14, T. 8 S., R. 88 W., was held for cancellation based on proceedings instituted by George L. Young; and January 31, 1902, a motion for review of said decision was denied.

Notice of this final decision of the Department was received in the local office February 25, 1902, but prior thereto and subsequent to the date of said decision, to wit, February 11, 1902, Joseph F. Peck and Sarah F. Peck, his assignee, filed a relinquishment, which was accompanied by an application of the latter to make desert-land entry for the same tract in her own name. The relinquishment and application were held in the local office to await notice of the action of the Department on the motion for review.

Prior to initiating contest against the Peck entry, George L. Young had made application to enter the land embraced therein under the desert-land law, which was rejected for conflict with said entry, and from which action he appealed. When notice of the denial by the Department of Sarah F. Peck's motion for review was received in the local office, Young again applied to make desert-land entry for the land involved, together with other land. The local officers on March 3, 1902, concluding that Young had secured a preference right by reason of the proceedings he had instituted, allowed him to enter the land, at the same time rejecting Sarah F. Peck's application. The latter appealed March 24, 1902.

In the decision of your office of May 21, 1902, it was held that Young had not secured a preference right. His entry was accordingly held for cancellation as to the land in question and it was directed that the application of Sarah F. Peck, as modified by a relinquishment filed by her March 29, 1902, be accepted. Young appealed to the Department, where, after fully stating the facts of the case, it was held:

After a careful examination of the entire record, the Department is unable to sustain the conclusion reached in the decision of your office. All rights under the former desert-land entry, assigned to Mrs. Peck, were extinguished by the final decision of this Department on January 31, 1902. Under the practice in such cases, no application to enter the land formerly embraced in that entry could be accepted until notice of this decision had been received and the entry formally canceled upon the records of the local land office. Stewart v. Peterson (28 L. D., 515). At the time of the presentation of the relinquishment by Mrs. Peck, to wit, on February 11, 1902, she had nothing to relinquish, and her act in filing said paper did not hasten the time when, under the practice, the land covered by her former entry would become subject to disposition. The new application in her name, which accompanied said relinquishment, was prematurely filed, and no right was secured by this action. The entry was not canceled upon the records of the local office until more than a week thereafter.

The application presented by Young on February 25, 1902, was the first legal application tendered for this land, and this fact was sufficient to warrant the local officers in accepting said application, without consideration of any question as to whether Young secured a preference right by his contest of the former entry covering this land.

It will be seen that the conclusion of the Department adverse to Sarah F. Peck was reached "without consideration of any question as to whether Young secured a preference right by his contest of the former entry covering this land," although it appears to be conceded that he had no such right. In the motion for review certain familiar principles are contended for as being applicable to and controlling the claim of Sarah F. Peck, namely, that so long as an entry remains of record it constitutes a segregation of the land; and furthermore, that a relinquishment takes effect upon the date of its filing thereby immediately releasing the land. The instructions issued to local officers by your office in accordance with the decision in the case of Stewart e. Peterson, supra, are in part as follows (29 L. D., 29):

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.

These instructions were not formulated with the idea of modifying or overruling any well-established principles governing such matters. They grew out of what was deemed a wise, expedient and necessary administrative policy. Valid entries of record remain just as potent, judgments of cancellation become operative upon their rendition, and relinquishments are effective upon their filing, as before. The only change or innovation is one of practice, and for the sake of good practice it is deemed well that the cancellation of an entry, so far as releasing the land is concerned, shall take effect from the time the same is noted on the records of the local office. The cancellation is operative and effective, so far as any validity of and vitality in the entry itself or any claim or right left in the entryman, are concerned, from the moment of the rendition of the final and adverse judgment. As to the initiation of other claims or rights, the Department has said that they must await the notation of the cancellation of the prior entry on the records of the local office, thus changing in that respect and to that extent only the former practice.

It may be that the language in the instructions, "until said entry has been canceled upon the records of the local office," is susceptible of misconstruction. It may be that to have said, until the cancellation of the entry has been noted on the records of the local office, would have more aptly and clearly expressed what was intended in said instructions. The latter is undoubtedly what was meant, as no reasonable contention could be made that it was the purpose in said instructions to delegate the actual and final cancellation of an entry to the local officers. The said instructions conclude with this direction: Cancellation of entries should be promptly noted upon your records upon receipt of instructions by this office to that effect.

In the case under consideration there had been a final judgment against Sarah F. Peck, and her entry was in effect canceled, at the

time she filed her relinquishment. The only thing remaining was the purely ministerial act of noting such cancellation on the records of the local office. Until this was done the Department deemed it good policy not to allow other claims to attach. Sarah F. Peck literally had nothing to relinquish after the final judgment of the Department overruling her motion for review. The instrument she presented as a relinquishment had nothing to operate upon and was wholly ineffective to change the status of the land.

The Department finds no valid reason in the motion now filed for disturbing its decision of Jannary 10, 1903, and none appearing otherwise, said decision is adhered to and the motion for review is denied.

SCHOOL LANDS-MINERAL CHARACTER-INDEMNITY.

STATE OF OREGON.

The title to school lands returned as non-mineral at the time of survey, and for which no claim was asserted under the mining or other public land laws at the date when, if at all, the right of the State would attach, presumptively passed to the State, and the State will not be permitted to make indemnity selection in lieu of such lands, on the ground that they are mineral in character, except upon a clear and satisfactory showing that the base land was known to be chiefly valuable for mineral at the date when the State's right thereto would have attached, if at all.

Acting Secretary Ryan to the Commissioner of the General Land (F. L. C.) Office, April 25, 1903.

(F. W. C.)

With your office letter of the 9th instant was transmitted what is denominated as clear list No. 19, covering 720 acres within the Roseburg land district, Oregon, selected by the State in lieu of an equal amount of land, being portions of Sees. 16 and 36 in place, which are claimed to have been lost to the State because mineral in character.

In your said office letter is set forth the proceedings initiated by the State and the summary of the testimony offered, tending to establish the mineral character of the base lands; from which it appears that hearings were held in 1894, under a practice then pursued permitting an inquiry as to the character of the base lands before selection had been made of lieu lands; that these hearings were r parte, no one having been detailed to represent the government, and in each instance two witnesses were introduced on behalf of the State, their testimony being largely speculative as to the value of the lands for mining purposes, no actual development of valuable mineral deposits being shown. Upon these records both your office and the local officers adjudged these base lands to be mineral, and in 1899 and 1900 the lieu selections in question were made.

The base lands were surveyed between the years 1881 and 1885, and in each instance were returned as non-mineral by the deputy mineral surveyor, and your office letter of the 9th instant reports that there are no mining or other claims of record covering any portion or these base lands.

The following are taken from the circular of March 6, last (32 L. D., 39), prescribing rules and regulations to be observed in the adjustment of the grants to the several States and Territories, made in aid of the support of the common schools, namely:

RULE 1. When a school section is identified by the government survey and no claim is at the date when the right of the State would attach, if at all, asserted thereto under the mining or other public land laws, the presumption arises that the title to the land has passed to the State, but this presumption may be overcome by the submission of a satisfactory showing to the contrary. Applications presented under the mining laws covering parts of a school section will be disposed of in the same manner as other contest cases.

RULE 2. The State will not be permitted to make selection in lieu of land within a school section alleged to be mineral in character and for that reason excepted from its grant, whether returned by the surveyor-general as mineral or otherwise, in the absence of satisfactory proof that the base land was known to be chiefly valuable for mineral at the date when the State's right thereto would have attached, if at all. The proof must show the kind of mineral discovered upon the land and the extent thereof, when and by whom the discoveries were made, as far as practicable, whether any claim to the land was asserted under the mining laws at the date when the State's right thereto attached, if at all, and if so by whom, the nature and extent of the mining improvements placed upon the land by the mineral claimant, and what efforts have been and are being made to develop the land in good faith for mineral purposes. If, in any case, the proof does not clearly show that the base land was known to contain valuable mineral deposits, and to be chiefly valuable on account of such deposits at the date the State's right would have attached thereto, a selection in lieu thereof will not be permitted. A certificate of the proper authorities that the base lands have not been sold, encumbered or otherwise disposed of must also be furnished.

The list submitted for approval and now under consideration is the result of the proceedings originally instituted by the State to establish the character of the base lands, and is the first consideration thereof by the Secretary of the Interior.

The proof offered by the State for the purpose of establishing the mineral character of the lands made bases for the selections in question, falls far short of showing such lands were of known mineral character at the date of survey or at all, and does not overcome the presumption that the title thereto passed to the State upon their identification by survey. There were at that time no adverse claims asserted to any portion of these lands under the mining or other public land laws. The Department therefore returns the list in question without approval.

UNION PACIFIC RAILROAD Co.

Request of the Union Pacific Railroad Company that the departmental decision of March 16, 1903, 32 L. D., 48, be so modified as to permit the issuance of patents to said company, without further delay, for lands within its grant situate in ranges 115 and 116 west. Evanston land district, Wyoming, denied by Acting Secretary Ryan April 25, 1903.

STATE SELECTION-PREFERENCE RIGHT-ACT OF MARCH 3, 1893.

MCFARLAND . STATE OF IDAHO.

The preference right over any person or corporation, for the period of sixty days from the filing of the township plat of survey, accorded to certain States by the act of March 3, 1893, within which to select lands under grants made by the act of February 22, 1889, applies to the State of Idaho as much as to the other States named in said act of 1893, notwithstanding said State was not included among those to which grants were made by the act of 1889.

Failure on the part of the State to publish notice of an application for the survey of lands within thirty days from the date of such application, as provided by the act of August 18, 1894, does not affect its preference right to select such lands, for the period of sixty days from the filing of the township plat of survey, conferred by the act of March 3, 1893.

The fact that land sought to be selected by the State for university purposes was returned and classified as mineral is no bar to such selection, if there is not within the limits of such tract any known valuable mineral deposit; and any question as to the tract lying within six miles of a known mining claim is wholly between the State and the United States.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) May 1, 1903. (G. B. G.)

This is the appeal of Robert E. McFarland from your office decision of September 13, 1902, denying his timber and stone application for the S. of the SW. and the S. of the SE. of Sec. 5, T. 38 N., R. 4 E., Lewiston land district, Idaho.

This township was surveyed upon the application of the governor of the State of Idaho under the act of August 18, 1894 (28 Stat., 372, 394-395), and the lands therein were withdrawn from settlement and entry in accordance with an order of your office of March 29, 1899. The plat of survey was filed in the local land office April 17, 1902, and on that day the said application of McFarland was filed, but was suspended by the local officers pending the sixty days' preference right period to select said tract accorded to the State under the act of March 3, 1893 (27 Stat., 572, 592-593).

June 6, 1902, which was prior to the expiration of the sixty days' period from the filing of the township plat of survey, the State selected said land for university purposes, per list No. 4, whereupon the local