REPAYMENT-DESERT LAND ENTRY-COMPACTNESS.

CHESTER CALL.

Repayment of the purchase money paid on a desert land entry will not be allowed where the entry upon its face does not show such a departure from a reasonable requirement of compactness as would necessarily preclude its confirmation, and it is not shown by the record, or otherwise disclosed, that said entry was not as nearly in the form of a technical section as the situation of the land and its relation to other lands would admit of.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) February 29, 1904.

(C. J. G.)

A motion has been filed by Chester Call for review of departmental decision of June 27, 1903 (not reported), denying his application for repayment of the purchase money paid by him on desert land entry for the SE. NE. 4, NE. SE. 4, Sec. 30, S. NW. 1, S. † NE. 4, W. † SE., and SW. 4, Sec. 29, E. † NW. 4, W. NE. 4, Sec. 32, T. 6 S., R. 39 E., Oxford, Idaho.

Repayment is claimed on the ground that the entry as made was erroneously allowed and could not be confirmed, within the meaning of section 2362 of the Revised Statutes and section 2 of the act of June 16, 1880 (21 Stat., 287), because the tract of land embraced therein was not in compact form as required by the desert land act of March 3, 1877 (19 Stat., 377).

The regulations issued under the last-named act September 3, 1880 (2 C. L. L., 1378), and which have remained substantially in force since, are in part as follows:

The requirement of compactness of form will be held to be complied with on surveyed lands when a section, or part thereof, is described by legal subdivisions compact with each other, as nearly in the form of a technical section as the situation of the land and its relation to other lands will admit of, although parts of two or more sections be taken to make up the quantity or equivalent of one section. But entries which show upon their face an absolute departure from all reasonable requirements of compactness, and being merely contiguous by the joining of ends to each other, will not be admitted, whether on surveyed or unsurveyed lands.

This case is clearly distinguishable from those cited in support of the motion for review. In Julia B. Keeler (31 L. D., 354), which is one of the latest decisions on the subject, and relied on in the motion, it was held (syllabus):

The right to repayment of the purchase money paid on a desert land entry will be recognized where the entry as allowed is in form prima facie non-compact, and it does not appear from the record that it was as nearly in compact form "as the situation of the land and its relation to other lands will admit of," and was for that reason erroneously allowed and could not have been confirmed.

With respect to the facts in that case it was said:

As stated, the plats and field notes fail to disclose any valid reason why the entry might not have been made more nearly in the form of a technical section, nor is any

reason otherwise shown. The irresistible conclusion therefore is that, upon the face of the entry which shows a gross departure from any reasonable requirement of compactness, the entry was in fact non-compact in form and therefore allowed in violation of the statutory requirement, which precluded its confirmation. This is deemed sufficient to bring the case within the terms of the repayment statute.

On the contrary, as was said in passing upon the case under consideration on appeal—

It is not at all conclusive that there was a violation of the statutory requirement of compactness in the allowance of this entry. It is not clearly determinable from the plat of survey and field notes, nor is it otherwise disclosed, that said entry was not as nearly in the form of a technical section as the situation of the land and its relation to other lands would admit of. Besides, upon its face the entry does not show such a departure from any reasonable requirement of compactness as would necessarily preclude its confirmation.

Upon careful examination of the matters presented by the motion for review no good reason is seen for disturbing the decision complained of. The facts of this case are essentially different from those in the cases cited in support of the motion, and in the opinion of the Department the case is not one wherein it satisfactorily appears that repayment is authorized under the statute. Said motion is hereby denied.

TIMBER AND STONE APPLICATION-EFFECT OF WITHDRAWAL-ACT OF JUNE 17, 1902.

BOARD OF CONTROL, CANAL No. 3, STATE OF COLORADO. TORRENCE. No such vested right is acquired by an application to purchase lands under the timber and stone laws, prior to the submission and acceptance of final proof and the payment of the purchase price and the necessary fees, as will except such lands from an order of the Secretary of the Interior suspending the same with other lands from disposition and sale under the public land laws.

A withdrawal of lands under the provisions of the act of June 17, 1902, will defeat a prior application to purchase the same under the timber and stone laws, where at the date of withdrawal the applicant had acquired no vested right to the lands embraced in his application.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) February 29, 1904. (A. C. C.)

November 22, 1901, William Torrence filed in due form his application to purchase, under the timber and stone act of June 3, 1878 (20 Stat., 89), as amended by the act of August 4, 1892 (27 Stat.,348), the W.SW. 4, Sec. 24, and S. SE. 4, Sec. 23, T. 50 N., R. 8, Montrose, Colorado, as chiefly valuable for timber and stone. Notice of intention to submit final proof on February 3, 1902, was duly given.

December 28, 1901, the Board of Control, State Canal No. 3, State of Colorado, filed its corroborated protest against the application. alleging, among other things, in effect, that the tract is not valuable for stone or timber; and that it is of known mineral character.

December 30, 1901, the local officers ordered a hearing on the protest, fixing February 4, 1902, as the date for the hearing.

February 1, 1902, by order of the Secretary of the Interior, the tract, with others, was suspended from disposition and sale, which order of suspension was in force on April 20, 1903, at which time, by order of the Secretary of the Interior, said tract, with others, was withdrawn from entry under the provisions of section 3 of the act of June 17, 1902 (32 Stat., 388, 389), entitled

An act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works, for the reclamation of arid lands.

February 3, 1902, in accordance with the notice previously given, the applicant appeared at the local land office with his witnesses and offered to submit his final proof. The protestant also appeared. The testimony of the applicant and his witnesses was taken, and he and they were cross-examined by the attorney for protestant, whereupon the applicant tendered payment for the tract and made request that entry be allowed. The local officers declined the tender and refused the request, because of the pending protest. February 4, 1902, the hearing was postponed until March 3, 1902, and thereafter continued from time to time until June 16, 1902, when all parties appeared and some testimony was offered by the protestant. The hearing was then continued until June 24, 1902, at which time it was again continued and thereafter from time to time continued until November 19, 1902, when the testimony of one witness was submitted. The hearing was resumed November 24, 1902, all parties appearing, and ended November 25, 1902.

April 9, 1903, the local officers, from the evidence submitted, found, in effect, that the tract was chiefly valuable for its timber, and recommended that the protest be dismissed.

Protestant appealed. June 11, 1903, by decision of your office the application was held for rejection because of the order of suspension of February 1, 1902, and in view of such holding, decided that it was not necessary to pass upon the issues raised by the protest.

The applicant has appealed to the Department. He contends, in effect, (1) that the order of suspension of February 1, 1902, was illegal in so far as it applied to the tract in question, because in violation of the rights of applicant to said tract under the timber and stone act; and (2) that your office should have considered and passed upon the issues raised by the protest, in determining his right to make entry on his application.

In respect to the first contention, the Department has held that no right vests under the so-called timber and stone act until the applicant has, in due form, submitted his final proofs; paid the purchase price for the land and the necessary fees to the local officers. See instructions to the Director of the Geological Survey of January 13, 1904 (32 L. D.,

387). And it would seem that unless and until such proofs have been passed upon and approved by the land department, no vested rights can attach to land applied for under said act. See Cosmos Co. v. Gray Eagle Co. (190 U. S., 301, 311, 312). Until a vested right does attach to a tract of public land, the same may be suspended from disposition and sale under the public land laws by the order or with the approval of the Secretary of the Interior. See Leaming v. McKenna (31 L. D., 318, 320, and authorities there cited). The tract in question was suspended from disposition and sale prior to the time fixed by the notice. for the submission of final proofs, hence no rights to the tract were vested in the applicant at the date of the order of suspension. It follows that the order of suspension of February 1, 1902, in so far as it affected the tract in question, was within the power of the Secretary of the Interior to make. But, independently of this order of suspension, the order of withdrawal of April 20, 1903, was sufficient to defeat the application, as the applicant at that time had not acquired any vested right to the tract, inasmuch as his final proofs had not been approved or accepted by any officer of the land department. See instructions to the Director of the Geological Survey, supra, wherein it was held that:

Withdrawals made by the Secretary of the Interior under authority of the act of June 17, 1902, of lands which, in his judgment, are required for any irrigation works contemplated under the provisions of said act, have the force of legislative withdrawals and are therefore effective to withdraw from other disposition all lands within the designated limits to which a right has not vested.

In respect to the second contention of the applicant, in view of the above holdings, the consideration and determination by your office of the issues raised by the protest could have served no good purpose and therefore were unnecessary.

Your office decision is accordingly affirmed.

SURVEY-ISLANDS-NOTICE.

ROBERT L. SHEPPARD.

Notice of applications for the survey of islands not designated upon the township plats of survey must be served on the owners of the opposite shores and upon the authorities of the State within which such islands are situated. The approval of a township survey which purports to show that all public lands within the limits of such township have been surveyed, raises such a strong presumption in favor of the correctness of such survey that no additional surveys should be made, except upon clear proof of evident mistake or fraudulent conduct on the part of those charged with the execution of the surveys. Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) March 2, 1904. (E. F. B.)

With your letter of April 15, 1903, you transmit the application of Robert L. Sheppard for the survey of several islands in the State of Wisconsin.

The matter originally came before your office upon the application of said Sheppard to locate Valentine scrip upon certain described islands, to wit:

Five islands in Crab Lake and two islands in Armour Lake, located in T. 43 N., R. 6 E.

Five islands in Ox Bow Lake, which lies partly in townships 44 north, ranges 6 and 7 east, and township 43, R. 6 E.

One island in Lynx Lake in T. 43 N., R. 7 E.

Three islands in Tenderfoot Lake, and three islands in Big Lake, in T. 43 N., R. 8 E.

One island in Lake Mamie in T. 43 N., R. 9 E.

Upon receipt of said application your office, by letter of March 7, 1903, notified the applicant that the Department had previously approved an application for the survey of three of said islands in Crab Lake, filed by J. W. Whiteside, of Bessemer, Michigan, and that before action could be taken upon his application to locate the scrip he must file an application for the survey of the islands not embraced in Whiteside's application, and that in the meantime his application to locate the scrip would be suspended. Sheppard thereupon filed an application for the survey of all of said islands, except the three embraced in Whiteside's application, but he did not serve it upon the owners of the lands on the opposite shores and upon the State authorities. Because of such failure you refused to recommend it for approval.

While Sheppard's application was pending before your office Will T. Walter filed eleven applications for the survey of islands in said townships 43 north, ranges 6 and 7 east, including four islands in Crab Lake and two islands in Lynx Lake, which you state may possibly be different from the islands in those lakes described in Sheppard's application. Walter also failed to serve notice of his application upon the owners of the lands on the opposite shores and upon the State authorities, both applicants giving as a reason for their failure to serve such notice that under the decision of the Department in Patrick Brazil et al. (17 L. D., 326) it is not required.

Townships 43 north, ranges 6, 7, 8 and 9 east, and 44 north, 6 and 7 east, were all surveyed as early as 1865. Most of them in 1862. The islands described in the applications are not designated upon the township plats of survey, but from the character of the land as described in the affidavits filed in support of the application there is at least a fair prima facie showing that the islands were in existence at the date. of the township surveys.

The only question now presented is simply whether these and similar applications will be disposed of upon an ex parte showing, without service upon any one, or whether the applicant will be required in all cases to serve notice of his intention to apply for such surveys upon the owners of lands on the opposite shores and upon the State, in