did not intend to abandon his rights under his pre-emption settlement when he changed his filing to a homestead entry. His manner of doing this may have been irregular, but his intention is clear and it can not be held that he abandoned the rights he had acquired by prior settlement.

Counsel for Berger contends that owing to the failure of Dippert to appeal from the decision of the local officers, it became final as to his rights, and his claim to the land must be rejected.

This proposition can not be successfully maintained.
Section 453, Revised Statutes, provides:

The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands.

and it has been uniformly held that,

The Commissioner of the General Land Office exercises a general superintendence over the subordinate officers of his department, and is clothed with liberal powers of control, to be exercised for the purposes of justice, and to prevent the consequences of inadvertence, irregularity, mistake, and fraud, in the important and extensive operations of that officer for the disposal of the public domain. Bell v. Hearne (19 How., 262).

In the leading case of Barnard's Heirs v. Ashley's Heirs (18 How., 43), the supreme court held that this enlarged power of supervision and control given to the Commissioner of the General Land Office by the act of 1836 (at that time) under the direction of the President of the United States extended to the consideration of matters judicial in character, and that the judgment of the register and receiver was not conclusive upon questions of fact and of law arising after the passage of that act. This construction has been uniformily followed since that time, both in the courts and in this Department, and is too well settled to require further comment. Stephen Sweayze (5 L. D., 570).

The conclusions reached by the local officers did not do justice to the protestant even according to their finding of facts, hence it was the duty of your office to correct the same. The duty of thus correcting the decisions of the local officers has been fully recognized in the rules of practice which are established to promote the orderly transaction of business before the Land Department.

Thus in rule 48, of the rules of practice, it was provided that the decision of the local officers should not become final in the absence of appeal "where the decision is contrary to existing laws and regulations," and the action of your office was in accordance with the rule. Your decision is affirmed.

2565-VOL 13-32

CIRCULAR-DELIVERY OF PATENT.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., September 14, 1891.

REGISTERS AND RECEIVERS U. S. LAND OFFICES:

GENTLEMEN: Numerous instances have come to my knowledge of persons seeking to collect fees from owners of lands as compensation for securing such land owners patents which have been regularly issued by the United States and transmitted to the local land offices for delivery.

When the government issues a patent for land, it undertakes to deliver the instrument to the proper person without charge-all fees chargeable being collected at the time the entry is made.

Persons engaged in collecting fees usually ascertain from the county recorder's office the particular tracts of land for which patents have not been recorded, and then, by tracing down the title, ascertain the present ownership of the land. The owner is then advised that he claims land for which no patent appears of record, but that the same can be secured upon the payment of $10 or other stipulated fee, and by forwarding an affidavit of the ownership of the land and a power of attorney to deal with the United States in the transaction.

In every case where such paper is presented you will ascertain the post-office address of the owner of the land and notify him direct that his patent is on file in your office (if such be a fact) and will be transmitted without charge, upon receipt of an affidavit of the ownership of the land. And you will, in every instance, refuse to deliver patents to any person acting as an agent or attorney in fact, when you know or have reason to believe that such agent or attorney in fact is, as a matter of speculation, attempting to take advantage of the credulity of the person or persons represented.

Very respectfully,

THOS. H. CARTER,
Commissioner

APPLICATION TO ENTER-SEGREGATION.

GOODALE v. OLNEY (ON REVIEW).

The rule that "an application to enter is equivalent to an actual entry so far as the rights of the applicant are concerned, and while pending withdraws the land from any other disposition," includes only cases in which the application is improperly refused, and does not apply where the land is not subject to entry and no right of the applicant is denied.

Acting Secretary Chandler to the Commissioner of the General Land Office, November 3, 1891.

This motion is filed by Frank D. Goodale asking that the decision of the Department of April 3, 1891 (12 L. D., 324) affirming the decision

of your office in refusing to order a hearing in the above stated case be reconsidered and revoked.

The following facts are shown by said decision :

On July 31, 1885, Olney applied to make homestead entry of the E., SE., Sec. 13, T. 33 S., R. 63 W., Pueblo, Colorado, together with adjoining land. His application was rejected by the local officers for the reason that the tract applied for was embraced in the derivative claim of Thomas Leitensdorfer under the Vigil, St. Vrain grant. From this action, Olney appealed, and on May 6, 1887 you reversed the action of the local officers, and Olney made entry for the tract May 28, 1887.

On August 31, 1888, Goodale applied to contest the entry of Olney as to the F. of the SW. of said section 18, alleging that he came into possession of the land on or about the 15th of February, 1886 and had resided there since May, 1886, and had improved it to the extent of twelve hundred dollars, and that Olney had never resided upon the tract before May, 1887. Upon this application, your office, on August 17, 1889, ordered a hearing, but on September 30, following, said order of August 17 was revoked and the hearing was refused. From this decision Goodale appealed. On April 3, 1891, the Department approved said decision upon the ground that Olney's application to enter the tract offered July 1, 1885, was regular and legal, and was pending in May, 1886, when Goodale began his residence upon the land, and that although Olney was not permitt d to enter the tract until May, 1887, his application was equivalent to an actual entry, so far as his rights were concerned and withdrew the land embraced therein from any other disposition until final action thereon.

Goodale asks for a review of this decision assigning error in not considering the fact that fraud was practiced by Olney in obtaining the acceptance of his homestead application upon a false affidavit accompanying said application, alleging residence upon and improvement of the land at the date of his application; that the land being within the limits of the derivative claim of Leitensdorfer under the Vigil and St. Vrain grant was not subject to homestead entry until May 19, 1888, when said reservation was formally vacated, and the land embraced therein opened to entry; that no application made prior to that time could secure any right except in favor of an actual settler residing thereon at the date of said application, and that as between conflicting settlers at the date of the restoration of said reservation to the public domain, priorities of settlement and occupation should govern.

The rule announced in the decision sought to be reviewed that "An application to enter is equivalent to an actual entry so far as the rights of the applicant are concerned and while pending withdraws the land from any other disposition until final action therein" has reference solely to cases in which the application was improperly refused, and does not apply where the land was not subject to entry and no right of the ap plicant is denied.

In the case of Pfaff v. Williams (4 L. D., 455) and in all other cases where the rule has been followed, the rejection of the application was a denial of a right. The appeal of the applicant therefrom merely preserved that right against any other disposition of the land until it could be determined. The rule as laid down in Pfaff v. Williams supra is that a legal application to enter is, while pending, equivalent to actual entry so far as applicant's rights are concerned, and its effect is to withdraw the land embraced therein from any other disposition until such time as it may be finally acted upon.

See also Maria C. Arter (7 L. D., 136); Hughey v. Dougherty (9 L. D., 29); Peterson v. Ward (ib., 92).

In the case of Hughey v. Dougherty supra, the Department referring to the rule in Pfaff v. Williams said it

was made concerning land subject to entry and upon the right of an applicant possessing the necessary qualifications. It protects the applicant whose application was improperly rejected from the intervention of any subsequent claim until his rights are formally passed upon.

So in the case of McKenzie v. Richards (13 L. D., 71), the Department, in referring to said rule, said:

McKenzie's application was, while pending, equivalent to actual entry, so far as the applicant's rights were concerned, but it was not intended by said decision to hold that McKenzie's rights to the land were superior to the claim of Richards, merely by vir tue of his application, irrespective of whether said application had been properly or improperly rejected. While that application was pending on appeal, it preserved the rights of the applicant against any further disposition of the land, until such rights could be determined, and Richards could therefore acquire no right by her entry, so far as it affected the rights of McKenzie; but said entry was subject to whatever rights he had, which must depend, however, not upon his application for the land, but whether his application was rightly rejected by the local officers.

It will be seen from an examination of these cases that the mere application to enter land covered by a homestead entry or other reservation does not of itself withdraw the land or in any manner affect its status for the reason, land so reserved is already segregated, nor is it the equivalent of an entry. It is only the equivalent of an entry "so far as applicant's rights are concerned,” and it has merely the effect “to withdraw the land from other disposition" that the right of the appli cant may be protected, but such right is dependent upon his showing that the land was subject to entry at the date of his application.

In this motion it is alleged that at the date of Olney's application the land was not subject to entry, being embraced in the reservation on account of the Vigil and St. Vrain grant, and that Olney had no superior right to others, unless he was then an actual settler on the tract; that the settlement could not ripen into a legal right until the removal of the reservation which was not formally opened to entry until May 19, 1888; that in order to establish his priority over all other applicant's he filed an affidavit alleging possession and occupancy of said tract for years prior to the date thereof, and that he had placed valuable improvements on the land.

Goodale asked that he be allowed to contest the entry of Olney alleging that the facts stated in the affidavit are untrue and that a hearing be ordered to allow him an opportunity of showing that the entry of Olney was allowed by means of false and fraudulent statements.

At the date of Oluey's application to enter, the land was not subject to entry and he could have acquired no right by virtue of his application to enter that could have reserved the land from other disposition when it became subject to entry, unless he was then a settler on the land, having priority over all others. His right would rest, however, upon the settlement and not upon his application.

The act of February 25, 1869 (15 Stat., 275) protected the claims of all actual settlers within the limits of the located claim of Vigil and St. Vrain other than those claiming to derive titles from the grantees, and although the land was not subject to entry at any time prior to May 19, 1888, yet when the land became subject to entry, the Department, in determining the priority of claims, could take into consideration a settlement made after the act of February 25, 1869, and prior to the restoration of the land to the public domain.

Goodale alleges that he was the prior settler on the tract, and offered to contest the entry of Olney upon the ground that it was allowed upon false and fraudulent statements, and in violation of his rights.

I am of the opinion that the hearing should have been ordered that Goodale may have the opportunity of showing that he is the prior settler as alleged in his contest.

A motion has been filed by Olney to dismiss the motion for review, upon the ground that it was not filed within thirty days from notice of the decision. Rule 87 is a general rule applying in all cases where service is allowed to be made through the mails, and as this motion was filed within the ten days allowed for transmission through the mails, it was within the time required by the rules.

He also moves to strike from the files the affidavits of Goodale, Shryock, and others, for the reason that they were not served upon him or his attorneys.

In the view taken of this case, it was not necessary to consider said affidavits, and, hence, no further action upon this motion is necessary. The decision of the Department of April 3, 1891, is revoked, and your decision of September 30, 1889, is reversed and a hearing ordered, after notice to all parties.