It should be observed, that under the act of June 16, 1880, the erroneous allowance of an entry does not alone authorize repayment, the entry must also be one which cannot be confirmed. If, despite the error in its allowance, the entry can be confirmed, there is no reason for repayment, and the statute does not authorize it. The two statutes are in this respect identical. Angell's case does not come within either of them.

Your office decision is hereby affirmed.

SWAZE v. SUPRENANT.

Motion for review of departmental decision of April 21, 1897, 24 L. D., 337, denied by Secretary Bliss, June 29, 1897.

OKLAHOMA TOWNSITES-CHEROKEE OUTLET.

NORTHEAST PERRY.

Townsite entries in the Cherokee Outlet can only be made through townsite boards. Secretary Bliss to the Commissioner of the General Land Office, June 29, (W. V. D.)

1897.

(C. J. W.)

On December 10, 1896, townsite board of trustees No. 6, as successors to board No. 8, filed application in the local land office at Perry, Oklahoma, to purchase and make entry of the SW. of Sec. 14, T. 21 N., R. 1 W., for the benefit of and in trust for the use of occupants thereof, in accordance with the act of May 14, 1890 (26 Stat., 109). After proper notice said board offered final proof, on December 28, 1896, and made cash entry No. 125. On said 28th of December, counsel claiming to represent the occupants of said land appeared and protested against the final proof, cross-examined the witnesses introduced by the board, and introduced testimony which accompanies the final proof and is a part of the record. The local officers dismissed the protest and accepted the final proof, and an appeal was filed in the name of the townsite settlers of Northeast Perry. On February 10, 1897, your office declined to consider said appeal, and approved the final proof offered by the board. A similar appeal has been filed from your office decision.

The land in controversy was a part of the Cherokee Outlet and was originally included in the homestead entry of John J. Malone, and was the subject matter of controversy between certain persons claiming to be townsite settlers and Malone's representatives, which resulted in the cancellation of Malone's entry (23 L. D., 87). The land was at that time within the corporate limits of Perry.

It is said in that case:

For the reasons above given Malone's entry will be canceled, and the corporate authorities of the town of Perry will be advised that upon a proper showing and application, the land may be entered for the several use and benefit of the inhabitants thereof.

The land was treated as set apart and subject to acquisition by the townsite of Perry for the use and benefit of its inhabitants, such inhabitants as were upon the land, having been included within the corporate limits of that town.

One of the grounds of the protest filed is, that the application to make the entry by the board is at the instance of citizens of Perry. The protest is in the form of a petition, and asks for delay in anticipa. tion of changes in the law as to the mode and manner in which townsite entries are to be made. It is said that said entry can be made much more cheaply to the lot occupants through the probate judge than through the townsite board. The protest and appeal contain only grounds which might properly be addressed to Congress in the form of a petition to change the law. This Department has no power to change the law; nor can it suspend public business merely to await desired or contemplated changes. It was announced in instructions issued February 14, 1894 (18 L. D., 122), that townsite entries in the territory known as the Cherokee Outlet could be made only through townsite boards, and that rule has been adhered to, and the local officers as well as your office properly followed it, and overruled the protest in this case. The final proof is satisfactory, and your office decision approving cash entry No. 125, for patenting, is affirmed.

HENLEY ET AL. v. SHARPNACK.

Motion for review of departmental decision of March 25, 1897, 24 L. D., 315, denied by Secretary Bliss, June 29, 1897.

SCHOOL LAND-SETTLEMENT BEFORE SURVEY.

FRANCIS P. CARLISLE.

A purchase, after survey, of the possessory right and improvements of one who settled on school land prior to survey, does not carry with it any right to the land as against the school grant.

Secretary Bliss to the Commissioner of the General Land Office, June 29, (W. V. D.)

1897.

(C. J. G.) The land involved in this case is the W. of NW. and W. of SW. Sec. 36, T. 1 S., R. 1 W., Salt Lake City land district, Utah.

Francis P. Carlisle has appealed to this Department from your office decision of December 9, 1895, holding for cancellation his homestead entry for said land.

It appears from a corroborated affidavit filed with said appeal that one Thomas Howard settled on said land in the year 1851 and had continuous residence thereon until the year 1883, when he sold his improvements to one Ephraim Bayliss. The latter resided upon and

cultivated said tract until the year 1887, when he in turn sold his improvements to the appellant herein, Francis P. Carlisle. Carlisle has resided upon and cultivated said land ever since, and has improvements thereon valued at $2,500.

The land described herein is in a section reserved for school purposes under section 1946 of the Revised Statutes.

The act of February 26, 1859 (11 Stat., 385-now Sec. 2275 R. S.), provides:

That where settlements with a view to pre-emption have been made before the survey of the lands in the field, which shall be found to have been made on sections sixteen or thirty-six, said sections shall be subject to the pre-emption claim of such settler; and if they, or either of them, shall have been or shall be reserved or pledged for the use of schools or colleges in the State or Territory in which the lands lie, other lands of like quantity are hereby appropriated in lieu of such as may be patented by pre-emptors.

It is contended by the appellant that he is protected by the above act. This contention is not well founded. By reference to said act it will be seen that the protection extended therein is limited to those who have made settlement with a view to pre-emption before the survey of the lands in the field. The survey of the land in question was made in the year 1856. This being before Carlisle's settlement he is not protected by the provisions of said act. It is well settled by numerous departmental decisions that "a purchase after survey of the possessory right and improvements of one who settles on school land prior to survey, does not carry with it any right to the land as against the school grant." Hence, the appellant herein, being merely the purchaser of the possessory right and improvements of one who settled prior to survey, does not thereby secure any right to this land as against the school grant. The question is settled by Gonzales v. French (164 U.S., 338).

Your office decision is accordingly affirmed.

OKLAHOMA TOWNSITE-TRUSTEES-DISCHARGE.

TOWNSITE BOARD NUMBER SIX.

A townsite board of trustees should not be discharged from any portion of the trust imposed upon it, until the whole purpose of the trust is accomplished, or until such time as it may be relieved entirely from its duties.

Secretary Bliss to the Commissioner of the General Land Office, June 29, (W. V.D.)

1897.

(P. J. C.)

I am in receipt of your office letter ("G") of May 25, 1897, wherein is transmitted certain correspondence of Horace Speed, of Guthrie, Oklahoma, and townsite board No. 6.

It appears that Mr. Speed addressed said board as to the advisability of the board asking for its discharge as a board for further service as to the south half of East Guthrie. In so far as the government would

be interested in the discharge of the board from this service, it is stated that all their duties in relation to this particular portion of Guthrie are at an end, for the reason that all the lots have been transferred. In addition to this, it is suggested that if the board were discharged certain litigation now pending in the courts of the Territory, wherein is involved the title to the south half of East Guthrie, would lapse.

By letter of May 18, 1897, to Mr. Speed, the chairman of the board doubted the advisability of the board making such a recommendation to the Secretary of the Interior.

On May 19, Mr. Speed forwarded the former correspondence with the request that the board be discharged as to the portion of East Guthrie mentioned, and on its receipt the matter was, by the First Assistant Secretary, referred to your office for an early report. Your said office letter of May 25, is in answer to this request.

It appears that the predecessors to the present board made entry of the west half of Sec. 9, Tp. 16 N., R. 2 W., as the townsite of East Guthrie, under the act of May 14, 1890 (26 Stat., 109), and the land was patented to them as trustees, in trust for the several use and benefit of the occupants thereof according to their respective interests. In your said office letter it is said:

It appears that Mr. Speed's statement, that the duties of the board as to the south half of East Guthrie are ended, is correct, all lot occupants in same having been ascertained and deeds issued to them. As to said land, then, if the trust, by the execution of the power by the trustees, has ended, the action of this office attempting to discharge them from such trust would be of no avail.

But, if the members of said board could be considered to yet be trustees for said south half of East Guthrie, and it be yet necessary to formally absolve them from their trust as to said land before such trust could cease, there would be an obstacle in the way of taking that action. The trustees of townsite board No. 6 were appointed trustees for the whole townsite of East Guthrie. They should not be discharged, then, from any portion of said trust until the whole purpose of the trust is accomplished, and said trustees yet have work in the north half of the townsite from which it would be impracticable to discharge them.

For the reasons stated above, and for the further reason that I hold it doubtful if the Department would be justified in granting a request of a nature calculated to interfere with the administration of justice by the courts, I have respectfully to report that I think Mr. Speed's request should be denied.

I concur in your recommendation. Aside from the impropriety of the Department taking any action that might interfere with the status of a case in the courts, it seems to me that the board should not be relieved of its duties until the trust is executed. By operation of law the board would not have any jurisdiction, perhaps, over any lots, title to which had passed from it, but the trust reposed in it is an enduring one as long as there remains anything to be done, or until such time as it may be relieved entirely from its duties. Because one lot or any other portion of the townsite has been conveyed and the board's jurisdiction thus ended as to the portion so conveyed, is no reason for making a formal order of discharge. If the transmission of title to any

portion of the townsite operates to divest the board's jurisdiction as to said portion, such an order is not needed, would be superfluous, and the making thereof would unnecessarily consume time which is required for other purposes.

HOMESTEAD CONTEST SETTLEMENT RIGHTS.

HALL V. MITCHELL.

Acts of settlement performed by one claiming the right to make a second homestead entry, prior to his application for the exercise of such privilege, are not invalid, if it is found that the settler is in fact entitled to make such entry.

The case of Cawood v. Dumas, 22 L. D., 586, cited and distinguished.

A contest against a homestead entry, on the ground of priority of settlement, must fail, if the allegation is not made good by some preponderance of the evidence. Secretary Bliss to the Commissioner of the General Land Office, June 30, (W. V. D.)

1897.

(C. J. W.)

W. N. Mitchell, on September 19, 1893, made homestead entry, No. 277, for NE. 4, Sec. 11, T. 21 N., R. 2 E., at Perry, Oklahoma, which tract was a part of the Cherokee Outlet, opened to settlement September 16, 1893. On September 27, 1893, Aurelius C. Hall filed affidavit of contest against said entry, alleging prior settlement and petition to make second homestead entry. A hearing was had, at which both parties appeared, and the plaintiff submitted his testimony, at the close of which defendant moved to dismiss the contest on the ground that plaintiff was not a qualified settler at the time of his alleged settlement. This motion was sustained by the local officers, they holding that Hall was disqualified by reason of his having passed over a part of the Cherokee Outlet subsequent to March 3, 1893, and prior to August 19, 1893, and that he had made homestead entry on October 28. 1891, for the NW. 4, Sec. 33, T. 16 N., R. 5 E., at Guthrie, Oklahoma, which he subsequently relinquished. This action was appealed from, and on February 2, 1895, your office reversed the local officers and directed that the defendant be allowed to submit his testimony, and that a decision be then rendered on the merits of the case. This hearing was duly had, and defendant submitted his testimony, and plaintiff submitted rebutting testimony, and on June 20, 1895, the local officers rendered a decision in favor of defendant.

From this decision plaintiff appealed, and on February 20, 1896, your office modified said decision, substituting therefor, an equitable division of the land between the parties. From this decision both parties have appealed. Each party insists that he was the first settler and therefore entitled to the whole tract, and this is the vital issue in the case. Each party raises a collateral issue against the other, Mitchell insisting that Hall was not qualified to make settlement because his alleged settlement artedated his application to make second homestead