ABANDONED MILITARY RESERVATION-ACT OF JULY 5, 1884.

OPINION.

Congress having by the act of July 5, 1884, provided for the disposal of lands in abandoned military reservations, the Secretary of the Interior is without authority to dispose of such lands in any other manner, but he may suspend the disposal of the lands under said act with a view to submitting to Congress the question as to whether the lands should be reserved for public uses. Assistant Attorney General Campbell to the Secretary of the Interior, November 12, 1904. (E. F. B.)

I am in receipt of a letter from the Commissioner of the General Land Office recommending that the portion of Graham's Island in North Dakota formerly included in the Fort Totten military reservation be withdrawn from disposal temporarily for State or Federal purposes. The letter has been referred to me for opinion as to whether the withdrawal recommended can legally be made.

It is stated in a letter of the Commissioner that the portion of the island in question is now subject to disposal under the act of July 5, 1884 (23 Stat., 103), providing for the disposal of useless and abandoned military reservations, and has recently been surveyed, but instructions regarding the disposal of said land have not yet been issued to the local officers.

It has been suggested by the superintendent of the Indian Industrial School at Fort Totten that the portion of the island in question be reserved as a park or forest reserve for the benefit of the State of North Dakota, and the Commissioner of the General Land Office recommends that a temporary withdrawal of such lands be authorized so as to prevent illegal occupancy or use of the lands which might otherwise occur.

If these lands are subject to disposal under the act of July 5, 1884, they are not subject to settlement and entry until they have been surveyed and appraised and can only be disposed of under the provisions of that act. But the Secretary has ample authority to suspend the disposal of the lands for the purpose of submitting to Congress the question whether the land should be reserved for public uses.

The same question was involved in the request of the Geological Survey for the withdrawal of lands in the Fort Sherman military reservation in Idaho for a reservoir site. In that case the Department (33 L. D., 130) refused the request for the reason that the lands could only be disposed of under the provisions of the act of July 5, 1884, and had no authority to dispose of them in any other manner, but it added:

There is no reason why these lands may not be temporarily withheld from disposal under said act of 1884 to await congressional action, if it be apparent that they will be required for public use in connection with any project, and that

if disposed of, the Secretary of the Interior would necessarily be compelled, under the authority conferred by the act of June 17, 1902, to re-acquire the title for the United States by purchase or condemnation. In such case it is evident that the withholding of these lands from disposition to await the action of Congress would be in pursuance of the public good and in the interest of sound and prudent administration.

As the lands are not subject to settlement and entry and can only be disposed of under the provisions of the act of July 5, 1884, the withholding of them from disposal temporarily will be as effective as a formal withdrawal. But if any purpose can be served in giving notice to persons who might be disposed to make settlement upon them, no reason is apparent why such notice might not be given. Approved, November 15, 1904:

E. A. HITCHCOCK, Secretary.

REPAYMENT-COAL ENTRY-ASSIGNEE.

JOHN DAVIS.

One claiming under an assignment of a coal land claim executed prior to entry thereof does not occupy the position of an assignee within the meaning of the repayment statute.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.)

November 15, 1904.

(C. J. G.) An appeal has been filed by John Davis, as assignee of Sarah E. Todd, from the decision of your office of August 2, 1904, denying his application for repayment of the purchase money paid on coal entry No. 22, Ute series, for the NE. NE. 1, Sec. 14, T. 13 S., R. 95 W., Montrose, Colorado.

April 14, 1898, the said Sarah E. Todd filed coal declaratory statement No. 431 for the NE. NE. 4, Sec. 14, the E.SE. and the SE. NE. 1, Sec. 11, T. 13 S., R. 95 W., and December 5, 1898, she filed various affidavits under the coal-land law and regulations, but covering only the said NE. NE. 1, Sec. 14, containing 40 acres. The same date, to wit, December 5, 1898, she conveyed by warranty deed the tract covered by the last-named description to John Davis, consideration $500, and December 20, 1899, she made coal entry No. 22 for said tract, paying the purchase price of $400. The same date, to wit, December 20, 1899, Davis gave a trust deed covering said tract to George J. Green to secure a one-year note of even date for $400.

April 12, 1900, your office made the following requirement of Sarah E. Todd:

Claimant will be required to furnish evidence to show whether she is a single or married woman, and, if the latter, she will also be required to furnish her own affidavit that the entry was made for her sole and separate use and benefit and

not for the use and benefit of her husband, and that the money with which she purchased said land was her separate money in which her husband had no interest or control.

It further appears that the application to purchase, and affidavits showing distance of land from a completed railroad, were sworn to on December 5, 1898, more than one year before entry. The coal land regulations, paragraphs 32 and 13, required that these affidavits should be made at date of actual purchase. Said papers are accordingly hereby returned to be resubscribed and sworn to nunc pro tunc.

It appears that claimant received notice of this requirement, and having failed to respond thereto or to appeal, her coal entry No. 22 was canceled by your office October 31, 1902.

July 11, 1903, John Davis quit-claimed the tract in question to the United States, and August 7, 1903, the note above referred to was paid and the trust deed given by him released. August 10, 1903, he applied for repayment of the $400, paid as the purchase price of said tract, claiming to be the assignee of Sarah E. Todd.

Your office denied the application for repayment on the ground that-

The entry in question was not "canceled for conflict," nor does there appear to have been any error in its allowance that would not have been cured by compliance with the repeated demands of this office upon Todd, the only party known to the government in the entry. There is therefore no lawful basis for the application.

Your office also held that Davis is not an assignee within the meaning of the repayment statute, as the term is defined in section 13 of the Instructions of January 22, 1901 (30 L. D., 430, 434).

The facts of this case, with respect to the requirements laid upon the entryman by your office, are similar to those in the case of The Anthracite Mesa Coal-Mining Company . The United States (38 Court of Claims Reports, 56), except that in that case the entryman could not be found, whereas in this case it appears that the entryman was actually served with notice of said requirements. In that case it was said:

Meantime the entryman had sold the premises without notice of any irregu larity. With notice, and failure on his part to comply with the requirements of the statute, it might well be said that he was in default and bound to submit to forfeiture of the amount paid for the entry. In such case his assignee would be equally bound. But the entryman having disposed of his interest and being inaccesible, and for that reason without notice, did his assignee forfeit the right to reclamation?

The court held that, in the absence of evidence of fraud, the fact that the defective entry could be corrected by the production of the proper affidavit of the entryman should not defeat the assignee's right to recover if the entryman could not be found to make the affidavit. The court accordingly granted the assignee's claim for repayment not

withstanding the assignment in that case, as in this, was made prior to date of entry. But there was no reference by the court to, nor discussion of, the well established rule of this Department as to who are assignees within the purview of the repayment statute, which is as follows:

Those persons are assignees, within the meaning of the statute authorizing the repayment of purchase money, who purchase the land after the entries thereof are completed and take assignments of the title under such entries prior to complete cancellation thereof, when the entries fail of confirmation for reasons contemplated by law.

As the assignment under which Davis claims was made prior to the completion of his assignor's entry, he clearly does not occupy the position of an assignee within the meaning of the repayment statute.

The facts of this case indicate that the purchase money in question may have been furnished by John Davis, the name of Sarah E. Todd merely being used for the purpose of entry. At that time she had no personal interest in or connection with the land. If this be true, repayment could not be made to her even though it should be determined that this is otherwise a case for repayment under the statutes. The decision of your office is hereby affirmed.

APPLICATION FOR RETURN OF SURVEYOR-GENERAL'S SCRIP.

ROBERT M. STITT.

The granting of applications for the return of scrip rests in the sound discretion of the head of the land department, and is controlled substantially by the same principle that governs in applications for the return of purchase money covered into the Treasury.

An entryman will not be permitted to relinquish his entry or to allow it to be canceled and withdraw his scrip where the entry can be confirmed and where the only obstacle to confirmation is the arbitrary refusal of the entryman to supply the necessary proof.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V.P.) November 15, 1904. (E. F. B.)

With your letter of October 18, 1904, you transmit, in obedience to a writ of certiorari, the appeal of Robert M. Stitt from the decision of your office of July 22, 1904, refusing his application for the return of surveyor-general's scrip for eighty acres surrendered by him in payment for the SW. NW. 1, Sec. 9, T. 69 N., R. 20 W., Duluth, Minnesota, entered by him September 21, 1896, under the timber and

stone act.

In the final proof, upon which the final certificate was issued, he was asked: "Are you a native born citizen of the United States, and

if so, in what State or Territory were you born." To that question he answered: "My father was a naturalized citizen before I became of age."

In a footnote upon the final proof blank the substance of rule 6 of instructions to local officers in passing upon final proofs (9 L. D., 123) is set out as follows:

In case the party is of foreign birth a certified transcript from the court records of his declaration of intention to become a citizen, or naturalization, or a copy thereof, certified by the officer taking this proof, must be filed.

As the applicant claimed his citizenship under the naturalization of his father, it was incumbent upon him to submit record proof of such acts performed by his father as would entitle him (appellant) by reason thereof to the rights of citizenship. The local officers, failing to observe the regulations, accepted the scrip in payment of the land and issued the final certificate without evidence of his qualifications other than his oral testimony and the affidavit accompanying his application.

Your office directed the local officers to require applicant to furnish record or other evidence of his own or his father's naturalization, or declaration of intention to become a citizen of the United States, and further, that he, appellant, was residing in the United States at the time of his father's naturalization. To this appellant responded that he was unable to prove that his father was naturalized for the reason that the records were burnt. He was again notified that in the absence of evidence of his father's naturalization it would be necessary for him to furnish record evidence of having filed his declaration. of intention to become a citizen of the United States.

Appellant failed to furnish proof but applied for the return of the scrip. Your office canceled the entry for want of sufficient proof and refused to return the scrip for the reason that the land was subject to entry as timber and stone land and that as no reason appears why the entryman could not have perfected his entry, unless he had submitted false statements as to his qualification, the application did not come under the provisions of section 2362, Revised Statutes, as an entry erroneously allowed.

This action was taken by your office April 26, 1898, and no appeal was taken from said decision.

October 30, 1903, Stitt renewed his application, which you denied for the reason that the case had been closed and for the further reason that the applicant was alone responsible for his failure to obtain the land, having refused to submit testimony as to his qualifications.

This is not an application for the return of actual money that has been covered into the Treasury and hence is not controlled by the strict rules governing applications under the second section of the act