WASHINGTON SCHOOL LANDS-SETTLEMENT BEFORE SURVEY.

ELDER v. STATE OF WASHINGTON.

Under the provisions of the act of March 2, 1853, the occupancy of school lands prior to survey by actual settlers operates to exclude from the reservation for school purposes only such parts of sections sixteen and thirty-six as are included within said occupancy.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 7, 1891.

On March 11, 1887, William Elder made application to file a preemption declaratory statement for lot 11 and the W. of the SW. 4 of Sec. 36, T. 22 N., R. 4 E., Olympia (now Seattle), Washington.

The same was refused for the reason that the tracts therein described are in section 36, and are reserved for the purpose of being applied to common schools in Washington Territory by section 1947 of the Revised Statutes of the United States.

On appeal, you, by your decision of September 21, 1888, affirm that judgment, and he appeals therefrom to this Department, assigning the following grounds of error:

1. In not finding from the records of the General Land Office that the greater portion of said section 36 had been legally and duly entered prior to the date of said application, under the donation and other land laws of the United States, and that thereby said section 36, or the portion thereof remaining unentered, remained public lands of the United States, subject to entry under the land laws of the same, and said Honorable Commissioner erred in not so deciding.

2. In not deciding that the act of March 2, 1853, reserving sections 16 and 36 in the Territory of Washington for school purposes provided that, when either of such sections was settled upon prior to survey thereof, and any portion of the same entered under any of the land laws of the United States, such section was and remained public land of the United States and subject to entry under the land laws of the United States.

3. Error in deciding that parts of sections 16 and 36 are reserved or were reserved for school purposes.

4. In rejecting said application to enter said lands.

On examination of the records of your office, I find that the greater part of said section 36 is covered by the donation claims of Beaty, Cox, and Thomas, aggregating 376.90 acres, "settled upon prior to survey.”

These claims were so located as to subdivide each one of the remaining forty acre tracts in the section, with the exception of the W. of the SW. 4. When the survey was made and approved, there remained in place in said section 263.10 acres―183.10 acres of which are desig nated on the official plat as lots 1, 2, 3, etc.

The act of March 2, 1853 (10 Stat., 172), establishing the territorial government of Washington, in its 10th section provides as follows:

That when the lands in said Territory shall be surveyed, under the direction of the government of the United States, preparatory to bringing the same into market, or otherwise disposing thereof, sections numbered sixteen and thirty-six, in each township in said Territory, shall be, and the same are hereby, reserved for the purpose of being applied to common schools in said Territory.

And in all cases where said sections sixteen and thirty-six, or either or any of them, shall be occupied by actual settlers prior to survey thereof, the county commissioners of the counties in which said sections so occupied as aforesaid are situated, be and they are hereby authorized to locate other lands to an equal amount in sections or fractional sections as the case may be, within their respective counties, in lieu of . said sections so occupied as aforesaid.

It does not follow from this act that, because a portion of a school section has been excepted from reservation, indemnity must be selected for the entire section. Sections sixteen and thirty-six in each township were by the act organizing the territory" reserved for the purpose of being applied to common schools." That part of section thirty six which was appropriated by donation claims "prior to survey" was thereby lost to the school grant, subsequently to be made. Authority for selecting an equal area "or lands of like quantity" was given; but a part of the section, remaining in place amounting to 263.10 acres, was reserved for the common schools, and the county commissioners were not authorized, much less required, to select indemnity for the lands thus found in place and "not wanting, by reason of the township be ing fractional or from any natural cause whatever."

It follows that the tracts applied for, having been reserved by legis lative authority for the purpose of being applied to the common schools. in the territory, were not public lands, and therefore not subject to entry, and the application was properly rejected.

The decision appealed from is accordingly affirmed.

HOMESTEAD CONTEST-DEPARTMENTAL JURISDICTION.

GATES v. SCOTT.

The action of the local office in accepting final proof and issuing final certificate thereon does not preclude the Land Department from subsequently inquiring into the good faith of the transaction and canceling the entry, if obtained through fraud, or allowed in violation of law.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 7, 1891.

I have considered the case of Elmer D. Gates v. Edwin C. Scott, upon the appeal of the latter from your decision, holding for cancellation, and denying a re-instatement of his homestead entry for the SW. of Sec. 14, T. 133 N., R. 60 W., Fargo land district, North Dakota. He made homestead entry for the land on the 29th of June, 1882, and after due notice by publication, made final proof before the clerk of the district court, at Grand Rapids, La Moure county, N. D., on the

9th of October, 1883, which was filed in the local office on the 13th of that month.

On the 26th of March, 1884, Gates filed affidavit of contest, alleging abandonment. Being unable to make personal service upon Scott, notice of contest was served by publication. This notice did not come to the knowledge of Scott, and at the hearing he made default. Upon the evidence submitted the register and receiver recommended the cancellation of the entry, which was ordered by your office on the 24th of March, 1885, and on the 10th of April of that year, Gates filed declaratory statement for the land, claiming settlement on the 17th of November, 1884.

It appears that the final proof of Scott was not considered by the local officers, when it was filed with them in October, 1883, for want of payment, and on the 16th of May, 1884, over seven months after proof was made, and nearly two months after contest was initiated, a clerk in the local office inadvertently accepted the proof, and issued final certificate and receipt.

On the 15th of July, 1886, Scott made affidavit and motion for a rehearing in the case, which was ordered by your office on the 11th of March, 1887. On the 12th of March, 1888, the register and receiver, after considering the evidence submitted upon such rehearing, rendered a decision which your office considered as meaning that the entry of Scott should not be re-instated. From that ruling, an appeal was taken to your office, where it was affirmed on the 3d of March, 1890, and a further appeal brings the case to this Department.

The specification of errors complained of by the appellant are as follows:

First. It was error on the part of the Hon. Commissioner, in finding that defendant never established his residence upon the tract involved.

Second. The Hon. Commissioner erred in finding that defendant had failed to comply with the requirements of the law, prior to his making final proof for said tract.

Third. It was error on the part of the Hon. Commissioner in not considering the evidence submitted in behalf of the defendant.

Fourth. The Hon. Commissioner erred in not taking into consideration the fact that the burden of proof is upon the plaintiff as the moving party.

Fifth. Final certificate having been issued in this case, the Hon. Commissioner erred in assuming jurisdiction of the subject matter.

Sixth. The Hon. Commissioner erred in not holding that the entry was not subject to contest at the time this action was initiated.

Seventh. It was error on the part of the Hon. Commissioner in rendering a decision adverse to the defendant.

The first four grounds of error, and the last, are disposed of by care. fully considering the facts in the case, as established by all the evidence submitted at the trial. These facts are stated very fairly, and with sufficient fullness in your decision from which this appeal is taken. On the part of the defendant no evidence was produced except his own deposition, and in all particulars in which he testifies as to settlement

and residence, he is directly at variance with the evidence of the plaintiff and the five witnesses who testify in his behalf. Holding that the burden of proof is upon the plaintiff to establish his case, I find that the preponderance of evidence is very largely in his favor, and fully justified a decision adverse to the defendant.

The questions raised by the fifth and sixth specifications of error have been fully discussed, and the principles of law applicable thereto, stated in numerous decisions by this Department and the courts. In the case of Samuel H. Vandivoort (7 L. D., 86), it was held that a final certificate, until approved by the General Land Office, is only prima facie evidence of equitable title, and that the official acts of the register and receiver are subject to supervision and may be approved or disapproved by the Commissioner. The same doctrine was held in the case of Traveler's Insurance Company (9 L. D., 316) where it was held that

The action of the local officers in accepting final proof and payment does not preclude the Land Department from subsequently inquiring into the good faith of the transaction, and canceling the entry, if obtained through fraud, or allowed in violation of law.

The position assumed by the counsel for the appellant, in his elaborate argument on this appeal, has not been followed by this Department, or by the United States courts, so far as I am aware, in any case where the questions involved were similar to those in the one at bar. In the case of Frisbie v. Whitney (9 Wallace, 187), in discussing this question the court say:

When all these prerequisites (settlement, improvements, payment of entrance money, etc.,) are complied with, and the claimant has paid the price of the land, he is entitled to a certificate of entry from the register and receiver; and after a reasonable time to enable the land officer to ascertain if there are superior claims, and if in any other respects the claimant has made out his case he is entitled to receive a patent, which for the first time invests him with the legal title to the land.

In the case of Carroll v. Safford (3 Howard, 460), cited by counsel to support his position that after certificate has issued the case is beyond the jurisdiction of the Department, the court say: "But where there has been fraud or mistake the patent may be withheld."

That decision covers the case at bar, where the certificate was issued inadvertently, by a clerk in the local office, after contest had been initiated, and without the knowledge of the register and receiver.

In the case of Smith v. Custer et al. (8 L. D., 269), it was held that a claimant acquires no title to public land, until he has fully complied with all the prerequisite requirements, and paid for the land, and he takes by final proof, payment and the receipt of final certificate, only a right to a patent, in the event that the General Land Office, or the Department on appeal, find that the facts warrant the issuance thereof. The language used by the court in the case of Steel v. Smelting Co. (106 U. S., 450), which is one of the cases cited by the appellant to sustain his position, partakes almost of the nature of a personal rebuke. In that case, the court say:

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We have so often had occasion to speak of the Land Department, the object of its creation, and the powers it possesses in the alienation by patent of portions of the public lands, that it creates an unpleasant surprise to find that counsel, in discussing the effect to be given to the action of that department, overlook our decisions on the subject. That department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of differ ent acts of Congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is una3sailable except by direct proceedings for its annulment or limitation. Such has been the uniform language of this court in repeated decisions.

It is unnecessary to multiply authorities on this question. The courts and the Department are in harmony on the subject, and the decision appealed from is affirmed.

APPLICATION TO ENTER-SECTION 7, ACT OF MARCH 3, 1891.

UNITED STATES v. PUGET MILL CO.

An application to enter lands included within the existing entry of another confers no rights upon the applicant.

Where the validity of an entry is questioned, and the matter is before the Department on appeal from an order holding the same for cancellation, no rights can be acquired by appealing from the rejection of an application to enter the land covered by said entry, and urging the invalidity thereof.

The case of the Puget Mill Company, 13 L. D., 118, cited and followed.

Acting Secretary Chandler to the Commissioner of the General Land Office, October 8, 1891..

I have considered the motion of the Puget Mill Company in the case of the United States v. said company, asking that said case be disposed of under the 7th section of the act of March 3, 1891 (26 Stat., 1095).

The record shows that on February 9, 1876, Charles M. Jacobs made soldier's additional homestead entry for the tract in question, to wit, the E. of the SW. and the SE. of the NW. of Sec. 18, T. 26 N., R. 7 E., Seattle, Washington. Soon after said entry was made, the tract was purchased by the Puget Mill Company, and, on December 18, 1876, said entry was held for cancellation by your office, for the reason that it was based on spurious and forged papers.

An appeal was taken from this ruling by the Puget Mill Company, and while this appeal was yet undisposed of the act of June 15, 1880, was passed (21 Stat., 237).

As a transferee under the original soldier's additional homestead entry, said company applied, and was allowed to purchase the tract in question under the second section of said act. This purchase was