On June 12, 1896, by letter "G" of that date, referring to office letters "K" of December 21, 1895, and March 24, 1896, in which school indemnity selection R. & R. No. 216 (State No. 2934) was canceled, your office instructed the local officers, as follows:

I now advise you that the action abo ve set out is revoked because it was founded upon a misapprehension of facts and consequently was erroneous. The said application is therefore reinstated. You will note such reinstatement upon the records of your office, referring to this letter, and notify the State surveyor general of California accordingly. And give notice of this action also to W. W. Wright, who filed in your office a protest against the said selection on November 2, 1895. The misapprehension above mentioned was caused or at least contributed to by the U. S. surveyor general for California, who furnished Mr. Wright with a certificate to the effect that the only surveyed land in the township was section 24, while, as a matter of fact, the whole township was surveyed, and a portion of school section 36 therein returned as mineral in character.

After the cancellation of the selection and before its reinstatement, the surveyor general of the State of California made application for its reinstatement, and on April 21, 1896, your office, in passing upon the same, said in reference to the cancellation formerly ordered: “As I can see no reason for doubting the propriety of this action, I must decline to revoke it, and to reinstate the selection upon the records." Afterwards, in the letter of June 12, 1896, your office, of its own motion, as for the correction of a mistake in fact, reinstated the State's canceled application.

On November 2, 1895, W. W. Wright filed application to have the E. of the NE. of Sec. 20 reserved for his use for reservoir and right of way, under the act of March 3, 1891 (26 Stat., 1095), and appended to said application is the certificate of W. S. Green, U. S. surveyor general for California, in which it is stated that the plat of township 9 north, range 22 west, S. B. M., on file in his office, approved by Theo. Wagner, U. S. surveyor general, December 12, 1879, shows the only portion of said township surveyed to be section 24, and that a copy of said plat was duly filed in the United States land office at Los Angeles, January 19, 1880.

On November 16, 1896, your office forwarded a map and papers filed in the Stockton, California, land office, by W. W. Wright, in which you recommend that the map be considered in connection with this case, and be approved subject to all valid subsisting rights, with or without exception, as to the E. of the NE. of Sec. 20, so as to harmonize with the disposition to be made of said land.

W. W. Wright has appealed from your office decision of June 12, 1896, reinstating the said school indemnity selection, which was canceled March 24, 1896.

The errors specified are:

1. In failing to adhere to and sustain the decision of December 21, 1895, which held that there was no valid basis for said indemnity selection at the date when it was filed, and held the same for cancellation.

2. Due notice of said decision of December 21, 1895, having been given to the proper officer of the State of California, and no appeal having been taken from said decision, the same became final, and said indemnity selection was duly canceled by office letter "K" March 24, 1896, and it should not be disturbed.

3. After said final action of March 24, 1896, had been taken, an application to reinstate the selection was made by the surveyor general for the State of California, which, on April 21, 1896, was refused, and should have been final.

4. Error in undertaking to reinstate said selection upon the ex-parte application of the attorney here for the State of California, improperly made, and filed without any notice thereof to applicant Wright.

5. Error not to deny action on such application until due notice was given to Wright.

6. It was error, after having, on June 1, 1896, recognized Wright as an applicant for reservoir rights on the land, to reinstate the selection without considering his intervening rights.

7. In not holding that said alleged basis, T. 9 N., R. 22 W., was not surveyed until the official township plat and field notes thereof had been duly approved by the United States surveyor general on January 8, 1896.

The last proposition announced, if found to be true, would control the case, and render unnecessary the consideration of the minor grounds of error.

Your office allowed the State's selection in the first instance on an apparent state of facts, which entitled it to such selection. Afterwards, your office canceled the selection, on the ground that the facts were not as alleged, and that no proper basis for the selection existed; subsequently, your office reached the conclusion that a mistake was made in the facts, which demanded the reinstatement of said canceled selection, and thereupon ordered its reinstatement.

In office letter "K" of December 21, 1895, it is stated that the plat of township 9 north, range 22 west, S. B. M., on file in your office, shows the only portion of the township surveyed to be section 24. This was the reason for holding the application for cancellation. In your office letter "G" of June 12, 1896, it is stated: "I now advise you that the action above set out is revoked, because it was founded upon a misapprehension of facts, and consequently was erroneous." The application was for this reason reinstated.

The township map referred to has been examined. The surveys included in it run through a series of several years, the actual surveys in the field closing January 2, 1894, thus antedating the application of the State to make the selection in question. The plat, however, was not approved by the surveyor general of the United States for California and filed in office until January 8, 1896, which is after the filing of Wright's application to have the land reserved for reservoir purposes,

this application having been filed November 2, 1895. The fact to which your office refers, as having been misapprehended, is not purely a question of fact, but one of mixed law and fact.

The actual survey of the township in question had been made at the time the State filed application to make indemnity selection, but the survey had not been approved and the map filed, so the question remains: Was the township surveyed at the time the State's application was filed. The basis of the selection is the mineral character of a part of section 36 of said township. In the case of Pereira v. Jacks (15 L. D., 273), it is held, that if land is shown to be mineral in character by return of the surveyor-general at completion of the survey, it is excepted from the school grant to California. In the case of Niven v. State of California (6 L. D., 439), it is held that the grant to the State takes effect as of the date of the survey.

In the cases cited it is clearly indicated that the date of a survey is fixed not by the date of the work in the field, but by the approval and filing of the map. In the case of Southern Pacific Railroad Company . Burlingame (5 L. D., 415), it is held that the date of a survey is determined by the date of its approval. This ruling is not only well founded, but has been very uniformly followed by the Department, which is in accord with the ruling of the courts.

The supreme court of California, in the case of Michael Finney v. James N. Berger (50 Cal., 249), say:

The statutes of this State do not contemplate a sale of the sixteenth and thirtysixth sections until the title to the same has vested in the State, and the title to said sections does not vest in the State until the plat of the survey is approved by the United States surveyor general.

In the case of Medley v. Robertson et al. (55 Cal., 396), the court hold: The title to a particular sixteenth or thirty-sixth section does not vest in the State before the plat of the survey of the township has been approved by the United States surveyor general; and an application to purchase such land made before the approval of the survey is unauthorized and void.

The application of the State, as was first held by your office, showed no proper basis for the selection applied for, for the reason that the township in which the alleged deficit existed was unsurveyed, and such application was unauthorized and void, and the selection under it was properly canceled. It would seem to follow that its reinstatement was

erroneous.

Your office decision of June 12, 1896, is accordingly reversed, and selection R. & R. No. 216, State No. 2934, is canceled; the map filed by W. W. Wright is in accordance with your recommendation approved.

CONFIRMATION-SOLDIERS' ADDITIONAL HOMESTEAD.

DAVID WALTERS.

The confirmation of a soldier's additional homestead entry under section 7, act of March 3, 1891, is not defeated by the failure of the register to issue the formal final certificate, where it appears from the record that the soldier complied with all the requirements of the law and regulations thereunder.

The departmental decision herein of August 3, 1892, 15 L. D., 136, revoked.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 30, 1897. (W. A. E.)

The Department is in receipt of your office letter of September 24, 1896, asking for instructions relative to the soldier's additional homestead entry of David Walters, made July 1, 1875, for the N. of the NE. of Sec. 29, T. 28 N., R. 6 E., Susanville, California, land district. It appears that your office suspended said entry, for reasons not necessary to set out here, and called for additional affidavits; that the Sierra Lumber Company, claiming to be the transferee of Walters, applied to have said entry confirmed under the act of March 3, 1891, or to purchase the land under section 2 of the act of June 15, 1880; that your office denied this application, and held the entry for cancellation, the reason assigned for the ruling that said entry had not become confirmed under the act of March 3, 1891, being that no final certificate had issued on said entry; that on appeal to the Department your office decision was affirmed, in so far as it refused to hold said entry confirmed, but the company was awarded the right to purchase the land under the act of June 15, 1880 (see 15 L. D., 136).

The company having failed to perfect the entry as authorized by said departmental decision, instructions are now asked as to what action shall be taken in regard to said entry, in view of the recent decision of the Department in the case of the Sierra Lumber Company (22 L. D., 690), wherein it was held that a soldier's additional homestead entry, similar to this, and upon which, as stated by your office, no "final certificate" had issued, was confirmed under the seventh section of the act of March 3, 1891.

The original holding of the Department in this case, that Walters's said additional entry was not confirmed under the act of March 3, 1891, was based upon the ruling in the case of the United States v. Bush (13 L. D., 529). The Bush case, however, involved a cash entry made under the act of May 23, 1880 (21 Stat., 143), for Osage Indian lands. This act provided that actual settlers on the Osage Indian trust and diminished reserve lands in Kansas might, within a certain fixed time, make proof of their claims, and pay one fourth of the purchase price, the balance of the purchase price to be paid in three equal annual installments thereafter. It was held in the case cited that an entry of Osage

land is not confirmed under the proviso to section 7 of the act of March 3, 1891, until two years have elapsed from date of final payment, as "final certificate" is not issued until all the payments have been made.

Afterwards, in the case of William R. Sisemore (18 L. D., 441), the Bush case was overruled, and it was held that when a claimant for Osage land under the act of May 28, 1880, submits proof of his qualifications to enter, shows due compliance with law, and makes his first payment for the land, his right thereto is a vested interest, subject to the lien of the government for the unpaid purchase money; and the receipt then issued to him is a "final receipt" that entitles a subsequent purchaser of the land to the benefit of the confirmatory provisions of section 7, act of March 3, 1891, if otherwise within the terms of said section.

Clearly, these rulings in regard to entries for Osage lands have no direct bearing upon the question of confirmation of soldiers' additional homestead entries. There are no annual payments, no final proof, to be made on the latter. All that is required of the soldier is that at the time he makes his application for an additional entry, he shall file, in addition to the regular homestead affidavits, special affidavits showing his identity as the soldier he represents himself to be, his military service, the description of his original entry, his compliance with law in regard to said original entry, and his unimpaired right to make additional entry. He then pays the fees and commissions prescribed by law, and the receiver's receipt and the register's certificate are issued. "Final certificate" should also be issued at the same time (General Circular of 1895, page 29).

The difference between an Osage entry and a soldier's additional entry is thus very apparent, and the question as to what is sufficient to bring the latter within the confirmatory provisions of the act of March 3, 1891, is entirely distinct from the question involved in the Bush and Sisemore cases.

The seventh section of the act of March 3, 1891, provides that:

All entries made under the pre-emption, homestead, desert land, or timber culture laws, in which final proof and payment may have been made and certificates issued, and to which there is no adverse claim originating prior to final entry, and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty, and after final entry to bona fide purchasers, or incumbrancers, for a valuable consideration, shall, unless upon an investigation of a government agent, fraud on the part of the purchaser has been found, be confirmed and patented.

As said above, no final proof is required on a soldier's additional homestead entry, and the soldier is supposed to do, at the time of making entry, all that the law requires of him in the matter of filing the proper affidavits and paying the prescribed fees and commissions.

When the record shows, as it does in the present case and the Sierra Lumber Company case, that the soldier has complied with all the requirements, will the failure of the register to issue formal final certificate defeat confirmation under the act of March 3, 1891? It was held