United States was responsible for its loss, so far as his rights were concerned. The gratuitous statement by the Commissioner that he had no reason to doubt Simmons was an innocent purchaser could not validate his location, nor confirm in him any title to the scrip. He was merely determining that Webber was entitled to complete his location, notwithstanding the invalidity of the location by Simmons. But whatever protection Simmons, or the purchaser under him of the land located, might claim by reason of his ignorance of any fraud or want of title in his assignors, the same can not be invoked by appellant, who purchased more than twenty years after the completion of the original and only valid location of the scrip, and after all the facts as to the felonious abstracting of the scrip by which Simmons was enabled to make his location had been made known. The records of your office show that this scrip was fully satisfied upon the location made by Webber in 1874, and that it is a part of the records of your office as the basis of that location. There is no scrip upon which the validity of Simmons's location can be based. Even a purchaser of the land located must look to every part of the title which is essential to its validity. An essential part of a title acquired under a location by an assignee of a land warrant is the validity of the assignment. Brush v. Ware (15 Peters, 93); Bouldin and wife. Massie's Heirs (7 Wheat., 121); Galt e. Galloway (4 Peters, 332.)

Your decision is affirmed.

DESERT LAND ENTRY-IMPROVEMENTS-PRIOR HOMESTEAD ENTRY.

HOLCOMB . WILLIAMS.

A desert-land entryman is entitled to credit for improvements placed upon the land by him in compliance with the requirements of the homestead law while holding the land under a prior homestead entry, provided they are of a character required by the desert-land law.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) (J. L. M'C.)

May 11, 1905.

On May 6, 1895, Nelson Williams made homestead entry for the S. of the N. of Sec. 8, T. & N., R. 30 E., Walla Walla land district. Washington.

On September 3, 1895, he relinquished his right, title, and interest to a portion of said land; but he retained possession of the remainder until, on June 9, 1898, he relinquished his right to the remainder under the homestead law, and made desert-land entry of the SW. 4 of the NE. of said section S.

On March 25, 1899, he offered proof setting forth that he had,

during the first, second, and third years, made the improvements required by the desert-land law, specifying in each case a house which he had built upon the land during the time he held the same under the homestead law. Said yearly proof was approved by your office March 30, 1899; and endorsement was made upon the entry papers as follows: "First proof sufficient for 3 years." The decision of your office, however, appears to have overlooked the fact that such proof was among the records.

On January 22, 1902, Oscar R. Holcomb filed affidavit of conte-t. alleging :

That said Nelson Williams has failed, during each and every year since the date of said entry, to expend the sum of one dollar per acre upon said land in the necessary irrigation, reclamation, and cultivation of said land by means of main canals and branch ditches, and in permanent improvements upon the land; and that none of said land is in cultivation or reclaimed.

A hearing was had in the case, on March 11, 1902. At said hearing the contestee testified that he had built on the land a comfortable frame house, sixteen by twenty feet; had dug a well twenty-six feet deep, to water; and had made certain other improvements. He added that he lived in said house for two years, while holding the land under the homestead law, when he was compelled to leave because of the drying up of the canal that had previously supplied the place with water.

The local officers, on February 23, 1903, rendered joint decision. in which they gave a summary of the evidence-which showed that the entryman had made improvements on the land to the value of from $360 to $400;" and therefore held that the contestant had not proved his allegations.

Prior to said action, however, the entryman, on June 9, 1902. filed in the local land office a document setting forth that, inasmuch as the four years within which he must make final proof expired on that day, and as he had been unable to reclaim the land because of failure on the part of others to operate the irrigating ditch upon which he had depended for a supply of water, he desired to relinquish his claim to said land under the desert-land act, and to enter the same under the homestead law-i. e., a second homestead entry, by virtue of the third section of the act approved June 5, 1900. " For the relief of the Colorado Cooperative Colony."

This application was held by the local officers pending action on the contest. When they decided in favor of the entryman (supra). the contestant appealed to your office; which, on April 27, 1904. rendered a decision, finding that the only improvements made upon the land by Williams were put there during the lifetime of his homestead entry; that his relinquishment was manifestly the result of

Holcomb's contest; and therefore held that Williams's entry should be canceled, and that Holcomb should be permitted to enter the land by virtue of his preference right.

From this action the contestee appealed to the Department, which, on November 30, 1904, rendered a decision (unreported) affirming that of your office.

Contestee has filed a motion for review. The motion was entertained, and returned to your office to be served on the contestant. It has now been retransmitted to the Department, with argument in support of the same-contending, in substance, that the finding and ruling of your office (April 27, 1904, supra) were incorrect.

Said office decision found," that from the date of entry to the cancellation of the same, no system of irrigation or water-supply was secured and made available for the reclamation of the land."

This statement is conceded by the entryman to be true. But the language of the contest affidavit should be carefully noted. It alleges that the defendant "has failed, during each and every year since the date of said entry, to expend the sum of one dollar per acre on said land in the necessary irrigation," etc. The local officers found, and the Department now finds, that he had made such expenditure-aside from the dwelling-house (which could not properly be considered as compliance with the desert-land act). The allegation of the contest affidavit has not been proved. Said affidavit was filed January 22, 1902 (supra). Any laches on the part of the entryman at any subsequent date is a question solely between him and the government, and can not confer a preference right of entry upon the

contestant.

The contestant insists upon the correctness of the ruling of your office that the improvements made upon the land could not be considered as inuring to the defendant's benefit under his desert-land entry, because they were placed thereon during his previous homestead entry. But in the case of Holcomb . Scott your office held, in substance, and the Department affirmed said decision (33 L. D., 287, syllabus):

A desert-land entryman who becomes the owner of improvements placed upon the land by a prior entry man in compliance with the requirement of the desertland law, is entitled to credit for such improvements the same as if placed upon the land by himself.

Counsel for the contestant, however, contends, in substance, that this ruling does not apply to the case here under consideration, inasmuch as this defendant's improvements were not placed upon the land in compliance with the requirements of the desert-land law." but of the homestead law. The Department is of the opinion, however, that the reasons adduced in support of the conclusion reached

in said decision in the case of Holcomb v. Scott are equally applicable in case of improvements made by the desert-land entryman upon land while it was held by himself under the homestead law-provided such improvements are of a character required by the desert-land law. Counsel for the contestant, in his answer to the motion for review, earnestly contends that his contest, and nothing else, induced the defendant to relinquish his desert-land entry.

Contestee's proof for the first three years of his entry had been accepted; and his entry-papers had received the endorsement," First proof sufficient for three years." So far as those three years are concerned, therefore, it would appear that he had no reason to fear an adverse decision. His acts in connection with the land during the fourth year of the entry could not at the date of initiation of contest, nor yet at the date of the hearing, be called in question; for the fourth year had not expired. Upon the expiration of the fourth year, however, his entry was open to attack, for the reason that he had not, at any time during the period covered by his entry, complied with the law as to irrigation; and under the circumstances could not do so. His only hope of retaining possession of the land lay in his making a second homestead entry thereof, under the act of June 5, 1900 (supra). He states, under oath, that this was the reason why he made the relinquishment; and the attendant circumstances corroborate such statement.

The contestant evidently confuses two widely different things: to wit, the contest filed by him January 22, 1902, which has been herein held not to have been sustained by the evidence, and a hypothetical contest that he or some one else might file on or after the date of the expiration of the period of Williams's desert-land entry, June 9, 1902, at which failure to reclaim the land within four years as required by law might be shown. It is very clearly conceivable that Williams might relinquish his entry in view of a possible contest on or after the last-named date, and on the last-named ground, and yet his entry be in no way imperiled by a contest initiated on a prior date, and on a different ground.

For the reasons herein set forth, the departmental decision heretofore rendered, holding Williams's application to make homestead entry of the tract in controversy subject to Holcomb's preference right to make entry thereof, is hereby recalled, revoked, and vacated; Holcomb's contest is dismissed; and Williams's application to make homestead entry thereof will be allowed, unless some other reason to the contrary shall appear.

COMMUTATION OF ENTRIES OF CHIPPEWA LANDS-ACT OF MARCH 3,

Registers and Receivers,

1905.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., April 17, 1905.

Crookston, Cass Lake, and Duluth, Minnesota.

GENTLEMEN: Your attention is called to the act of March 3, 1905 (33 Stat., 1005), entitled "An act extending the provisions of section. twenty-three hundred and one of the Revised Statutes of the United States to homestead settlers on lands in the State of Minnesota ceded under the act of Congress entitled 'An act for the relief and civilization of the Chippewa Indians in the State of Minnesota,' approved January fourteenth, eighteen hundred and eighty-nine."

By the terms of said act the right of commutation under section 2301, Revised Statutes, is extended to all lands which have been, or which may hereafter be, opened to homestead entry under said act of January 14, 1889 (25 Stat., 642).

You will, in allowing entries under this act, give them current numbers in your Chippewa series of cash entries, requiring the entrymen in each case to pay, in addition to the purchase price of the land at $1.25 per acre, the final homestead commissions. See instructions August 17, 1901 (31 L. D., 72), and September 6, 1901 (31 L. D., 106).

Very respectfully,

Approved:

E. A. HITCHCOCK, Secretary.

J. H. FIMPLE, Acting Commissioner.

[33 Stat., 1005.]

AN ACT Extending the provisions of section twenty-three hundred and one of the Revised Statutes of the United States to homestead settlers on lands in the State of Minnesota ceded under the act of Congress entitled "An act for the relief and civilization of the Chippewa Indians in the State of Minnesota," approved January fourteenth, eighteen hundred and eighty-nine.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the provisions of section twenty-three hundred and one, Revised Statutes of the United States, as amended, be, and the same are hereby, extended to all homestead settlers who have made or shall hereafter make homestead entries under the provisions of the act entitled "An act for the relief and civilization of the Chippewa Indians in the State of MinLesota," approved January fourteen, eighteen hundred and eighty-nine. Approved, March 3, 1905.