Superintendent of Logging will give notice to you as expeditiously as possible after a section has been cut clean and the timber removed.

SIRS: By act approved April 12, 1910 (Public, No. 129), Congress granted right of way through the State of Arkansas for oil and gas pipe lines, subject to certain conditions and restrictions therein indicated, upon application therefor by any citizen of the United States, or any company or corporation authorized by its charter to transport oil, crude or refined, or natural gas.

This act is similar in its requirements to the right of way acts of May 21, 1896 [29 Stat., 127], and March 3, 1891 [26 Stat., 1095], and the regulations approved June 6, 1908 (36 L. D., 567), applicable to such acts, modified to meet the requirements of the case, will govern applications under this act.

While the legal effect of a final decree of a court of competent jurisdiction cancelling a patent issued upon a coal-land entry is to revest title in the government and restore the land to the public domain, no rights are acquired by the presentation of an application to enter the land until notation of the cancellation upon the records of the local office.

First Assistant Secretary Pierce to the Commissioner of the General (O. L.) Land Office, May 23, 1910.

(E. B. C.)

Hiram M. Hamilton, who, by John Pearson, his attorney in fact, applied, pursuant to the act of June 4, 1897 (30 Stat., 36), to select the NW. 1, Sec. 12, T. 12 N., R. 5 E., W. M. (No. 01410), Vancouver. Washington, land district, has appealed from your office decision of October 11, 1909, affirming the action of the local officers in their rejection of the proffered application.

From the record it appears that on November 17, 1908, the above application was presented, accompanied by a certified copy of the decree mentioned below, and was on that date rejected "because of conflict with coal entry No. 28-Joel M. Long & Villa R. Mohler." On the same day Pearson personally acknowledged due service of notice of the rejection and of the right of appeal.

The decree above referred to was rendered November 13, 1908, in the case of United States v. Portland Coal and Coke Company, a corporation, Oregon Railroad and Navigation Company, a corporation, Joel M. Long and Jane Doe Long, his wife, E. E. Lytle and Lizzie M. Lytle, his wife, in the United States Circuit Court for the Western District of Washington, Western Division, and it was therein ordered, adjudged, and decreed that the patent issued by the United States, April 20, 1903, to Joel M. Long and Villa R. Mohler, purporting to convey the NW. and N. SW. of the above section 12 be canceled, annulled, and set aside; the defendants were foreclosed of any interest, right, or title to said lands; and the United States was decreed to be the legal and equitable owner of said lands, and its title was confirmed and quieted. This decree is indorsed as filed November 14, 1908 (in court), and the copy presented was certified by the clerk on November 16, 1908.

According to the opinion handed down October 5, 1908, by C. H. Hanford, District Judge, in this and five other similar cases (173 Fed., 566), it appears that the coal-land patents involved were annulled because of an unlawful combination or "pooling scheme" among the several entrymen for exploiting and operating the coal lands.

December 17, 1908, the applicant's appeal to your office was filed with the local officers, accompanied by a certified copy of a waiver, dated November 28, 1908, by counsel for defendants Lytle and his wife, of their right of appeal from the above decree, and also by a certificate from the clerk of the court that an order pro confesso, for failure to answer, was taken against the two defendant corporations and Joel M. Long and his wife in November, 1907, and that Villa R. Mohler was dismissed as a defendant April 15, 1908. These latter certificates of the clerk bear date December 11, 1908.

Considering the applicant's appeal, your office found that the record of patented coal entry No. 28 was still intact on the books both of the General Land Office and the local office, no instructions having been issued directing the notation of its cancellation as the result of the decree favorable to the Government. Citing the circular of July 14, 1899 (29 L. D., 29), and the case of Young v. Peck (32 L. D., 102), the rejection of the application was affirmed.

In the pending appeal it is contended that your office erred in not holding that the land was vacant when the application was presented, for the reason that the patent issued upon the coal entry had been canceled by the decree, which had become final, as shown by the waiver of the right of appeal furnished; in holding that the land could not be applied for until the cancellation of the coal entry had been noted on the records of the local office; and in not directing the local officers to note the cancellation of such entry and approve appellant's application. In other words, the appellant's theory of the case appears to be that the coal entry, having become merged in the patent, necessarily fell within the judicial annulment of such patent, and that thereupon the land eo instanti was restored to the public domain and necessarily became subject to entry by the first qualified applicant, without any action on the part of the land department affecting its record.

While the legal effect of a final decree canceling a patent is to revest title to the land in the Government and restore it to the public domain, nevertheless the records in the land department still bear the memorandum of the entry and, as it would appear, should be corrected to show the cancellation before other entry of the land is allowed, in the interest of orderly administration.

The local officers have no authority, in the absence of express directions from your office, to note cancellation of entries appearing intact upon their records, with the exception that upon the filing by an entryman of a relinquishment of his entry, the register and receiver are empowered to cancel the relinquished entry and thereupon to receive applications for the land, if the rights of third parties are not affected..

The question now presented is not new to the Department. In the case of Emory H. Marker and eighty-eight others (23 L. D., 407), August 8, 1896, it was held (syllabus):

On the judicial vacation of a patent issued under a railroad grant, the Secretary of the Interior may lawfully fix a day when the lands embraced in such decree shall be opened to entry; and in such case an application to enter filed prior to the time so fixed should not be allowed.

The Marker case was cited and the principle therein announced applied in the case of Matthews et al. v. Lines (29 L. D., 178), where the Department awarded the land involved to the first qualified appli

C

cant presenting his application after the notation upon the local records of the cancellation of the patented cash entry as result of the judicial vacation of the patent. It was there said:

It is insisted that two leading propositions announced in your office decision are inconsistent the one with the other.

1st. That the land in dispute became subject to entry upon the signing of the decree of the court canceling the patent; and

2d. That the local officers did not err in rejecting applications while the entry remained of record in their office after the signing of the decree.

The contention is suggestive that the propositions may have been too broadly stated. As an administrative rule the latter proposition is in accordance with the latest instructions of the Department to registers and receivers on the subject (29 L. D., 29).

The first proposition is too broad in this: that it assumes that the decree of the court canceling the patent operated to cancel the entry on the records of the Department also, and allowed of no time within which to take the necessary steps to have the records of the land department conformed to the decree. In such a case it would be more in accord with the general purpose of disposing of the public lands through the land department to hold that the decree of the court canceling the patent took effect so as to open the land to entry on the cancellation of the entry on the records of the local office, pursuant to notice through your office of the decree.

The departmental instructions referred to in the above quotation are those of July 14, 1899 (29 L. D., 29), which are as follows:

In accordance with departmental instructions in the case of John Stewart r. Minnie S. Peterson (28 L. D., 515), it is hereby directed that no application will be received, or any rights recognized as initiated by the tender of an application for a tract embraced in an entry of record, until said entry has been canceled upon the records of the local office. Thereafter, and until the period accorded a successful contestant has expired, or he has waived his preferred right, applications may be received, entered, and held subject to the rights of the contestant, the same to be disposed of in the order of filing upon the expiration of the period accorded the successful contestant or upon the filing of his waiver of his preferred right.

Cancellation of entries should be promptly noted upon your records upon receipt of instructions by this office to that effect.

The case of Young v. Peck (32 L. D., 102), cited by your office, involved a desert-land entry canceled as the result of a departmental adjudication and the above administrative rule was strictly applied. In the case of Alice M. Reason (36 L. D., 279) it was said:

It is the final judgment of a court of competent jurisdiction that operates to revest title to the land in the United States and to restore to the public domain land once patented. No action of the land department is necessary. When and how it becomes open to entry depends, as in respect to all other parts of the public domain, on action of the land department.

In the late case, August 19, 1908, of Gunderson v. N. P. Ry. Co. (37 L. D., 115), involving a contest between a homestead applicant, who had filed immediately after the notation of cancellation, and the company, which had presented a premature application to select lands

embraced in a patent annulled by judicial decree, the Department said:

It is observed that at the time the company's selection was tendered the entry of Holland still remained of record in the local office though the decree of the court cancelling the patent issued thereon had been rendered and the local officers had notice thereof. Counsel while admitting the existence of the settled rule that no rights can be initiated by the filing of an application to enter or select land covered by an entry of record, contend that the decree of the court of its own force operated to clear the record and that no further action by the land department was necessary, and that the tract in question thereafter became subject to entry by the first legal applicant.

This position is not warranted by any of the decisions of the Department and is contrary to the well-settled practice obtaining in analogous cases. Though the decree of the court operated to revest the title in the United States, it still remained for the land department to restore the land to entry by taking such steps, in conformity with the decree, as would clear its records of the entry on which the patent vacated by the court was based. The local officers very properly declined to take these steps until directed by your office and the selection of the company tendered before the land was restored to entry was properly rejected. The rule of administration adopted in similar cases has the sanction of the courts and the Department is of opinion the case under consideration falls within it. (Holt v. Murphy, 207 U. S., 407, 415.)

It is urged that the local officers did not, as reported by them, reject the selection immediately but deferred action until after the land had been restored to entry. Even though this could be established it would be immaterial as the company is entitled to a decision only upon the facts as they existed at the date the selection was tendered and as before stated the land was not then subject to selection by it. (Eaton et al. v. Northern Pacific Ry. Co., 33

L. D., 426, 432, and cases cited.)

The administrative rule and practice of the land department, to the effect "that after a decision of the Secretary had been rendered that a former entry was void and should be canceled, no subsequent entry of the land could be made until that decision was officially communicated to the local land officers and the notation of the cancellation was made on their plats and records," was, in the case of Germania Iron Co. v. James (89 Fed., 811), by the Circuit Court of Appeals, Eighth Circuit, held reasonable and just, and the failure of the Department to follow such rule and practice was adjudged to be error in law, entitling the party aggrieved to invoke relief through the courts in a trusteeship proceeding against the patentee of the land.

This rule was also commented upon in Holt ». Murphy (207 U. S., 407, 415), where the court said:

Such a rule, when established in the land department, will not be overthrown or ignored by the courts, unless they are clearly convinced that it is wrong. So far from this being true of this rule, we are of opinion that to enforce it will tend to prevent confusion and conflict of claims.

The Department is unable to perceive any good reason for undertaking to make any distinction, as appellant's contention suggests,