sented, namely, of persons who had theretofore settled upon the lands forfeited with intention of entering the same under the general land laws, and those who had purchased, or contracted with the railroad grantee or settled the lands with the intention of buying of such grantee. The several provisions found in the act of 1890, for the disposal of lands thus forfeited, are clearly portions of the land laws, and any title acquired thereunder must be reckoned in determining the quantity of lands to which title may be acquired under the public land laws within the limitations provided by the acts of 1890 and 1891, above quoted. As Crocker had practically exhausted his rights to acquire agricultural public lands by the purchase made under the act of September 29, 1890, prior to the tender of his homestead application, your office and the local officers properly rejected that application, and the decision appealed from is therefore affirmed.

REPAYMENT-TIMBER-CULTURE ENTRY-FRACTIONAL SECTION.

WEBSTER C. BELKNAP.

A timber culture entry is limited in acreage to one fourth of the land embraced in any section, except where the entry is of a technical quarter-section; and an entry not of a technical quarter-section, but embracing all of a fractional section, is in violation of law and can not be confirmed, and repayment of the fee, commissions and excess purchase money paid thereon may be allowed.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) January 24, 1905. (C. J. G.)

An appeal has been filed by Webster C. Belknap from the decisions of your office of January 30, 1902, and December 17, 1904, denying his application for repayment of the fee, commissions and excess purchase money paid by him on timber-culture entry No. 638 for lots 1, 2, 3 and 4, Sec. 18, T. 22 N., R. 46 E., Colfax, Washington.

It appears from said decisions that the entry was made February 5, 1880, and that contest was brought against the same on the ground, among other things, that it was illegal because covering all the land in the section. The contest was dismissed by your office November 3, 1881, for the reason:

It is true that Belknap's entry embraced all the land in section 18 shown to be in Washington Territory, but the section was made fractional by the boundary line between Washington and Idaho Territories, the residue of which is in Idaho, and no timber culture entry has been made therein as shown by our records, and I am therefore of the opinion that you erred when you decided that said entry was void ab initio. . . . Your decision is ... modified as to that portion which required the applicant to relinquish a part of his entry.

and the same will be allowed to remain of record without relinquishing any part thereof.

An appeal was taken to the Department and while the same was pending here Belknap relinquished his entry. Thereupon the Department merely dismissed the appeal and directed the cancellation of the entry. Repayment is denied by your office for the reason that

the entry was not in conflict. The question of its legality is a matter res adjudicata, in that the said decision of November 3, 1881, adjudging the entry valid still stands and has not been overruled.

It is provided in section 1 of the timber-culture act (20 Stat., 113): That not more than one quarter of any section shall be thus granted, and that no person shall make more than one entry under the provisions of this act.

In the case of George M. Simpson (29 L. D., 407), which followed the cases of John W. Snode (13 L. D., 53), Weaver v. Price (16 L. D., 522), and Elbert S. Lamon (20 L. D., 337)., it was held that a timberculture entry is limited in acreage to one-fourth of the land embraced in the section, except where such entry is of a technical quartersection. The entry in question is not for a "technical quartersection" but embraces several lots. The plats of survey and field notes show that section 18, T. 32 N., R. 46 E., in Washington, is on the line between that State and Idaho, while the adjoining lands in Idaho are located in fractional Sec. 24, T. 57 N., R. 6 W. The theory of the decision of your office of November 3, 1881, that the land in question constitutes a portion of Sec. 18 in Idaho, appears therefore to be incorrect. The fact is that section 18 in Washington, the land in question, is itself a technical section, and the adjoining land in Idaho is in a different section. Section 24 in Idaho is also made up of different lots aggregating 149.76 acres, while the area of the lots in Sec. 18 in Washington is 178.82 acres, the total being 328.58 acres. So that, even if the theory of the decision of your office of November 3, 1881, were correct as to the location of these lands, still under the decisions above referred to Belknap should not have been allowed to enter all of lots 1, 2, 3 and 4, as they would cover more than half of the section, his entry not being for a "technical quarter section." One-quarter of the section under such circumstances would be about 82.14 acres. It appears that in the allowance of the entry herein there was a violation of the statutory prohibition, which precluded its confirmation.

The decision of your office is reversed, and repayment will be allowed.

REPAYMENT-STATE SELECTION-SECTION 4, ACT OF AUGUST 18, 1894.

STATE OF OREGON.

In making selections of desert lands under the provisions of section 4 of the act of August 18, 1894, the burden of proof is upon the State to show that the selected lands are of the character contemplated by the act; and where the lands selected are not of such character, but are expressly represented by the State to be of that character, and upon such representations the selec tions are accepted by the local officers, such selections are not “erroneously allowed" within the meaning of the repayment act, and the State is not entitled to repayment of the fees paid thereon.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) January 24, 1904. (C. J. G.)

The State of Oregon, by its selecting agent, has appealed from the decision of your office of October 18, 1904, denying an application for repayment of a portion of the fees paid on selection list No. 11, being for lands within the districts of Lakeview and The Dalles, Oregon.

The selections were made under the "Carey Act" of August 18, 1894 (28 Stat., 372, 422)-amended by acts of June 11, 1896 (29 Stat., 434), and March 3, 1901 (31 Stat., 1133, 1188)-which provided in section 4 thereof:

*

That to aid the public land States in the reclamation of the desert lands therein, and the settlement, cultivation and sale thereof in small tracts to actual settlers, the Secretary of the Interior is authorized and empowered, upon proper application of the State to contract and agree of the States in which there may be situated desert lands United States to donate, grant and patent to the State free of cost for survey or price such desert lands, etc.

*

*

with each binding the

Under date of September 9, 1901, the State land agent of Oregon addressed a letter of inquiry to the Department in which he stated, among other things, referring to a large tract of land the State contemplated selecting under the above act:

It is entirely destitute of water and is strictly a desert, but on certain portions of it there is a scattering growth of Junipers. The Juniper, and especially the scrubby variety growing on this desert, is not suitable for lumber, can be used only for wood and fence posts, and there is no more of such wood on any quarter section than will be necessary for the use of the settler on that quarter section; it can not be made into lumber and shipped away, and can be used only in the immediate vicinity of its growth. The question now arises, does this scattering Juniper make these lands not subject to selection by the State. In every respect they are strictly desert.

After receiving a report on said letter from your office, the Department on December 5, 1901 (31 L. D., 149), instructed your office, among other things, as follows:

A growth of ordinary forest trees on land in the arid region may, as a general rule, be accepted as evidence of the non-desert character of the land. It is,

however, a mere presumption that lands containing sufficient moisture to produce trees will produce agricultural crops, but, like all presumptions of fact, it may be rebutted by proof showing that the land is actually desert in character and will not produce agricultural crops without irrigation.

A sparse and stunted growth of trees which may exist with little moisture and is frequently found upon arid lands actually unfit without irrigation for ordinary agricultural purposes, is not within the spirit and intent of the rule.

There being no application before the Department for its approval as to any particular tract or tracts, no decision is hereby made with reference to the tracts referred to by the State agent.

It appears that on January 9, 1902, your office communicated the substance of the above instructions to the State land agent, it being concluded as follows:

In the selections which may be made on behalf of the State where such timber may be found, the proper affidavits and showings should be made in order to advise this office of the true character of the land, and upon consideration of the selections, these facts will be duly taken into consideration.

The list of selections was filed by the selecting agent February 13, 1902, accompanied by his affidavit to the effect:

That the lands are vacant, unappropriated, are not interdicted timber nor mineral lands, and are desert lands as contemplated by the said act of Congress.

Subsequently, upon the report of an inspector of the Department as to the character of the lands selected, who found that said lands should properly be classed as forest lands, the State was called upon to show cause why its list should not be rejected. Thereupon the State flled relinquishments of a portion of the land selected, which were accepted October 3, 1904.

In the application for repayment it is recited:

That after said lands had been so selected and the selection fees paid and after said list had been forwarded to the General Land Office, Colonel A. R. Greene, as agent of the United States, inspected said lands and reported that they were not eligible to selection under the provisions of the said act of Congress hereinbefore recited and the acts amendatory thereto, as certain areas of said land contained merchantable timber, contrary to the intent of said act and regulations thereunder.

The application was denied by your office for the reason that no error was committed by the local officers in accepting the list of selections in face of the sworn statement of the selecting agent that the lands were desert in character. The appeal here contains the following specifications of error:

First: That the decision of the Honorable Commissioner of the General Land Office refusing the repayment of the money claimed by the State of Oregon was erroneous in that said decision amounts to an act of forfeiture by the United States of the property of the State of Oregon.

Second: That the said decision is erroneous for the reason that the fees which

the State of Oregon is now seeking to have repaid to it were demanded and received by the register and receiver in violation of law.

Third: That the said decision is erroneous for the reason that under the circumstances of this case the obligation to repay the money in question was tantamount to a contract which the United States is estopped from repudiating. Fourth: That the said decision is erroneous because the facts here bring the matter clearly within the letter as well as the spirit of the statute of June 16, 1880 (21 Stat,, 287), as to "erroneously allowed."

It is not necessary to discuss all of these specifications. So far as the terms of the repayment statute are concerned, the State does not occupy a different position from any other claimant thereunder. In the case of T. J. Foster et al. (24 L. D., 66), it is held that on the location of desert lands by a State under section 4 of the act of August 18, 1894, the register and receiver are each entitled to the fees provided for in section 2238 of the Revised Statutes. It was said in said case:

There is nothing in this act tending to repeal, modify or in any way affect the law contained in section 2238 aforesaid. The express limitations-free of cost for survey, and free of price-by necessary implication exclude any other exemption from the usual costs, fees, charges and expenses attending the administration of the land department in such matters.

In the absence of express statutory authority money once covered into the United States Treasury can not be repaid. It will not do to say that the Department may refund simply because it is just that the money should be repaid, or that it is in the hands of the Government by mistake or without consideration (4 Op. Atty. Genl., 233). There was nothing in the instructions of the Department nor in the communication from your office that could possibly mislead the State agent into selecting lands containing merchantable timber. In the case of George A. Stone (25 L. D., 110), it is said:

Stone's desert land entry was not " erroneously allowed." The "allowance " is the act of the local officers, and not the act of the entryman. Upon the showing made by Stone and his two witnesses, the land appeared to be desert in character and it became the duty of the local officers to allow his application to enter. Had the entryman sustained the allegations made in his application, the entry would not have been canceled. Unfortunately for him these allegations were not sustained, and the entry was canceled because the land was not desert in character. Upon the proofs presented the allowance of the entry was correct. The error was not in the allowance," but in the proofs presented by the entryman. This, then, is not a case where the entry was "erroneously allowed," and it is not one in which the law authorizes me to cause repayment to be made. The application is, therefore, denied.

And in the same case on review (25 L. D., 111), is:

Where the land entered is not of the character contemplated by the law under which the entry is made, but is expressly represented by the entryman to be of that character, and the allowance of the entry is procured by such representations, the entry is wrongfully procured and is not erroneously allowed" within the meaning of the repayment law.

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