PRIOR DECISION OVERRULED IN PART.

So much of the decision in the case of Sarah V. White (40 L. D., 630), as holds that land restored to the public domain as the result of vacation of patent thereby becomes subject to settlement, if unappropriated, is overruled.

VOGELSANG, First Assistant Secretary:

The California and Oregon Land Company has appealed from the decision of the Commissioner of the General Land Office, dated May 12, 1916, rejecting its forest lieu selection under the act of June 4, 1897 (30 Stat., 36), for Lots 1, 2, 7, 8, 9, 10, 15 and 16 of Sec. 28, T. 21 S., R. 2 W., W. M., Roseburg, Oregon, land district.

The lands described were formerly embraced in two patented entries, which were canceled by decrees of court. The local officers were, by letter of December 9, 1915, advised by the Commissioner of the General Land Office that the decrees had been recorded, and they were directed to post in their office, and to give to the press as a matter of news, a notice to the effect that on a date thirty days hence they would note the restoration of the lands upon the records of their office, and that thereupon they would be subject to all forms of appropriation permitted by the public land laws appropriate thereto.

The local officers issued notice as directed, setting January 18, 1916, at 2 o'clock p. m., as the hour of opening said lands to entry.

Within twenty days prior to January 18, 1916, as provided in the regulations of May 22, 1914 (43 L. D., 254), William Hulen presented his application to make homestead entry for Lots 1, 2, 7, and 8 of said Sec. 28; Ulysses I. Hunnicutt presented a like application for Lots 9, 10, 15, and 16 of said section, and the California and Oregon Land Company, by Robert E. Smith, its attorney in fact, presented its forest lieu selection for all of the lands.

Hulen and Hunnicutt having alleged prior settlement, the local officers allowed their applications, and rejected the forest lieu selection for conflict therewith. The Commissioner held that, the local officers having followed the regulations of May 22, 1914, supra, the applications had been properly disposed of.

The Commissioner's decision is based on the assumption that the lands became subject to settlement when the prior patents were canceled by the court decrees. In this he erred. The correct rule is that when a decree canceling a land patent becomes finally effective, the patented lands are thereby restored to the public domain, but they are not thereby restored to appropriation until the local officers are instructed by the Commissioner that the lands are restored to entry and have in accordance with instructions made notation of restoration upon the records of the local office. See cases of Hiram M. Hamilton (38 L. D., 597) and Sarah V. White (40 L. D., 630). In the latter case it was held:

By a final decree of cancellation of patent, land once patented becomes part of the public domain, subject to settlement, . . . if unappropriated, but does not become subject to entry until opened to entry by the General Land Office.

...

The quoted holding was not necessary to the disposition of the case, and the orderly administration of the land laws forbids any departure by the Department from the salutary rule that land segregated from the public domain, whether by patent, reservation, entry, selection, or otherwise, is not subject to settlement or any other form of appropriation until its restoration to the public domain is noted upon the records of the local land office. So much of the White decision as holds to the contrary is overruled.

It follows that, instead of recognizing any claim of prior settlement, a drawing should have been had, as directed by paragraph 4 of the regulations of May 22, 1914, supra. However, Hulen's entry was canceled on relinquishment filed October 17, 1916, and Hunnicutt's entry was likewise canceled on January 29, 1917. The selection of the California and Oregon Land Company will therefore be allowed, if no other objection exists.

1. Your attention is directed to the act of Congress of February 20, 1917 (39 Stat., 925), which provides:

That any person otherwise qualified who has obtained title under the homestead laws to less than one quarter section of land may make entry and obtain title under the provisions of the act entitled "An act to provide for enlarged homesteads," approved February nineteenth, nineteen hundred and nine, and an act of June seventeenth, nineteen hundred and ten, entitled "An act to provide for an enlarged homestead," for such an area of public land as will, when one-half of such area is added to the area of the lands to which he has already obtained title, not exceed one quarter section: Provided, That this act shall not be construed to apply to soldiers' additional homestead entries made under section twenty-three hundred and six, United States Revised Statutes, or acts amendatory thereof or supplemental thereto.

2. This act permits an additional entry under the enlarged homestead act to be made for a tract designated as subject thereto,

although the land included in the applicant's perfected entry be not thus designated; it is immaterial whether he owns the original tract, and the additional tract may be contiguous thereto or at any distance therefrom.

3. The application must contain a description of all entries theretofore made by the applicant or such data as will serve to identify them.

4. Under section 6 of the act of March 2, 1889 (25 Stat., 854), a person who has partially exhausted his homestead right through a perfected entry is entitled to make an additional entry for so much land as will with the area of the completed entry make 160 acres. The present act supplements that legislation by providing that the additional land, if designated under the enlarged-homestead act, shall be estimated at only one-half its actual area in the calculation under the act of March 2, 1889. To illustrate: If the person has obtained title to 40 acres, he may make additional entry for not exceeding 240 acres of enlarged-homestead land, that is, twice 120; if he has had 80 acres, he may still take 160 acres of such land; if he has had 120 acres, he may now take an additional 80 acres.

5. In connection with an application pursuant to the provisions of this act, a petition for designation of the land sought may be filed as provided in other cases of applications under the enlarged-homestead act, and the proceedings with relation to the application and petition will be as in other cases.

6. Where an application is filed for additional entry under either section 3 or section 7 of the enlarged-homestead act, and the Secretary of the Interior refuses to designate thereunder the tract included in the original perfected entry, the application may be allowed for so much of the land sought as the claimant is entitled to enter under this act, provided said land be designated as subject to the enlarged-homestead act.

7. In proof on an entry allowed pursuant to the provisions of the present act there must be shown the existence of a dwelling house upon the land entered and the usual residence and cultivation. Residence must be for not less than three years, subject to the privilege of being absent five months in each year, in two periods if desired. There must be cultivation of not less than one-sixteenth of the land entered during the second year after the date of the entry and not less than one-eighth of its area during the third year and until submission of proof. However, credit for military service will be allowed as in other cases. Proof must be submitted within five years after the date of the entry.

8. The present act does not in anywise affect the right of additional entry under the stock-raising homestead act; under the pro

visions of that law no additional entry can be made unless the land originally entered has been designated as subject thereto.

Approved:

ALEXANDER T. VOGELSANG,

First Assistant Secretary.

CLAY TALLMAN,

Commissioner.

UMATILLA INDIAN GRAZING LANDS—ACT OF FEBRUARY 17, 1917.

REGISTER AND RECEIVER,

INSTRUCTIONS.

[Circular No. 536.]

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., March 20, 1917.

UNITED STATES LAND OFFICE, LA GRANDE, OREGON:

Your attention is directed to the act of February 17, 1917 (39 Stat., 923), which reads as follows:

That all persons who have heretofore purchased or may hereafter purchase any of the lands of the Umatilla Indian Reservation in the State of Oregon, and have made or shall make full and final payment therefor in conformity with the acts of Congress of March third, eighteen hundred and eighty-five, and of July first, nineteen hundred and two, and subsequent acts respecting the sale of said lands, shall be entitled to receive patents therefor upon submitting satisfactory proof to the Secretary of the Interior that the untimbered lands so purchased are not susceptible of cultivation or residence and are exclusively grazing lands, incapable of any profitable use other than for grazing purposes.

SEC. 2. That where a party entitled to claim the benefits of this act dies before securing a patent therefor it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to make the necessary proofs and payments therefor to complete the same; and the patent in such cases shall be made in favor of the heirs of the deceased purchaser, and the title to said lands shall inure to such heirs as if their names had been especially mentioned.

1. This act is identical in its terms with that of February 11, 1913 (37 Stat., 665), except that its provisions are now extended to all entries heretofore or hereafter made. Proofs may be submitted only after publication and posting of notice, as in ordinary homestead cases. If the regularly introduced testimony shows that a tract is not susceptible of cultivation or residence and is exclusively grazing land, incapable of any profitable use other than for grazing purposes, the entryman is, by the act, relieved of the requirement of residence.

Moreover, such proof entitles him to issuance of final certificate, upon payment of the unpaid installments of the price, and it is not necessary to show that the land has been actually used for grazing purposes.

2. Section 2 of the act allows submission of proof by one of the heirs, or by the executor or administrator of the estate of the entryman, if he be dead. However, the certificate is to be issued in favor of the heirs. The executor or administrator, offering proof, must produce record evidence of his appointment and qualification as such. CLAY TALLMAN,

Approved:

ALEXANDER T. VOGELSANG,

First Assistant Secretary.

Commissioner.

H. STELLA SAMUELSON.

Decided March 22, 1917.

REPAYMENT-ERRONEOUS ENTRY INCAPABLE OF AMENDMENT ACT OF MARCH 26, 1908.

Where entry is made of land not intended to be taken, and amendment is rendered impossible because the land desired has been disposed of, the entryman, upon relinquishment, is entitled, under Section 2 of the act of March 26, 1908 (35 Stat., 48), to return of all moneys paid in connection with such entry.

VOGELSANG, First Assistant Secretary:

H. Stella Samuelson has appealed from the decision of August 16, 1916, denying repayment of moneys paid on her desert-land entry for the S. SW. 1, S. 1 SE. 1, Sec. 20, N. NE. 1, SW. NE. 1, SE. † NW., Sec. 29, T. 6 N., R. 3 W., S. B. M., Los Angeles, California, land district, which was canceled on her relinquishment.

Mrs. Samuelson found she had entered land some distance from and entirely inferior to that which she had selected, and not susceptible of reclamation. She alleged that this was due to fraud practiced upon her. She was advised of her right to amend the description, but it was then found that the tract she had in fact selected was covered by another entry; nor was she able to locate any other practicable land. She then relinquished the entry as an essential incident to her application for repayment.

Since it appears that the land which she had originally intended to enter, and which she supposed she applied for, has been otherwise appropriated, it follows that she is entitled to relief under the provisions of the act of March 26, 1908 (35 Stat., 48). An error in the