I hereby certify that the foregoing affidavit was read to or by affiant in my presence before affiant affixed signature thereto; that affiant is to me personally known, or has been satisfactorily identified before me by

--; that

(Give full name and post-office address.) I verily believe affiant to be a qualified applicant and the identical person hereinbefore described, and that said affidavit was duly subscribed and sworn to before me, at my office, in within the land district,

This form of proof can be accepted only where the land embraced in the application to purchase has been appraised or reappraised pursuant to the provisions of the Timber and Stone Regulations approved November 30, 1908, by the Secretary of the Interior.

Proof supporting applications to purchase under section 19 of the said regulations or under applications pending November 30, 1908, must be made by the applicant and two witnesses, as required by the regulations in force prior to December 1, 1908. (See Forms 4-370 and 4—371.)

WILLIAM DUFFIELD.

Instructions, January 9, 1914.

INSANE ENTRYMAN-ACT OF JUNE 8, 1880-DESERT LAND ENTRY.

The act of June 8, 1880, providing for completion of the claims of settlers and entrymen who become insane, has no application to desert land entries. INSANE DESERT LAND ENTRYMAN-RELINQUISHMENT.

The relinquishment of a desert land entry executed by the guardian of the insane entryman under direction of a court of competent jurisdiction may be accepted and the entry thereupon canceled.

COMPLETION OF CLAIM OF INSANE ENTRYMan-RelinquiSHMENT.

In the absence of charges against the homestead entry of one who becomes insane, the entry should as a rule be perfected and title taken under the act of June 8, 1880; but if it appear to a court of competent jurisdiction that the entryman has a doubtful right which should be sold rather than attempt proof to obtain patent, the judgment of the court in that respect should ordinarily be followed and relinquishment of the claim permitted. CONFLICTING DEPARTMENTAL DECISION MODIFIED.

Departmental decision in Dyche v. Beleele, 24 L. D., 494, so modified that if there be a pending charge against the entry and reasonable doubt of the validity of the entry or of entryman's compliance with law to the time he became insane, relinquishment may be permitted, upon judgment of a court of competent jurisdiction, in order that the estate may realize the most possible out of the doubtful claim; but if no question exist in that respect, the entry should be perfected and patent issued to the entryman under the act of June 8, 1880.

JONES, First Assistant Secretary:

The Department is in receipt of your letter of October 22, 1913, respecting homestead entry of William Duffield, made June 6, 1908,

for lots 2, 3, 4 and SW. 4 NE. 4, Sec. 4, T. 138 N., R. 99 W., 5th P. M., Dickinson, North Dakota.

You state that Duffield made entry June 6, 1908, and October 25, 1911, proceedings were directed against the entry by your office under circular of January 19, 1911 (39 L. D., 458), charging:

1. That claimant was not qualified to make homestead entry, in that at date of filing he was hopelessly insane.

2. That entry was not made for the use and benefit of the claimant, but for the use and benefit of Gus Anderson and his wife Ellen L. Anderson.

August 7, 1912, relinquishment was filed, executed by Anton Anderson, guardian of William Duffield, entryman, with certified copy of letters of guardianship, dated October 31, 1911, of Anderson, guardian of Duffield, insane, but no authority by the court for the guardian to make relinquishment. Notwithstanding lack of such action of the court, cancellation of the entry was noted on your office records August 31, 1912. April 3, 1913, you called upon the local office for report upon claim of Alvin E. Haskins that he filed homestead application for the land, and August 9, 1913, the local office reported

that on August 7, 1912, Anton Anderson, guardian of William Duffield, insane, filed a relinquishment of said entry, and on the same day, Alvin E. Haskins filed homestead application 018497 for the same land. That at said date adverse charges by the United States were then pending against said entry. Accordingly, the application of Haskins was suspended and the relinquishment transmitted to your office without action. The application remains suspended pending the acceptance of the relinquishment by your office.

You refer to decision in Dyche v. Beleele (24 L. D., 494), holding that a relinquishment executed by the guardian of an insane entryman under directions of a probate court is unauthorized by law and invalid, which, if followed, will necessitate rejection of the relinquishment and proceedings against the entry on charges preferred by the special agent, but in view of the recent departmental adjudication in Bruington, administrator of the estate of Marion A. Young, dated October 1, 1912, unreported, it was held that where a court of competent jurisdiction has passed on right of the administrator to sell the entryman's interest in the property involved and has directed that the right of decedent be sold for benefit of creditors and heirs, there is no reason why the Department should go behind the judgment of the court or why the relinquishment should not be accepted. Based on this decision you state that you believe the Department does not now entertain the view of the law expressed in Dyche v. Beleele, supra, as the reasons which justify acceptance of the relinquishment in the Bruington case apply equally as well in case of Duffield's entry. You, therefore, request instructions whether or not the decision in case of Dyche v. Beleele shall be followed in this and similar cases.

The act of June 8, 1880 (21 Stat., 166), provides that:

In all cases in which parties who regularly initiated claims to public lands as settlers thereon, according to the provisions of the preemption or homestead laws, have become insane or shall hereafter become insane before the expiration of the time during which their residence, cultivation or improvement of the land claimed by them is required by law to be continued in order to entitle them to make the proper proof and perfect their claims, it shall be lawful for the required proof and payment to be made for their benefit by any person who may be legally authorized to act for them during their disability, and thereupon their claims shall be confirmed and patented, provided it shall be shown by proof satisfactory to the Commissioner of the General Land Office that the parties complied in good faith with the legal requirements up to the time of their becoming insane, and the requirements in homestead entries of an affidavit of allegiance by the applicant in certain cases as a prerequisite to the issuing of the patents shall be dispensed with so far as regards such insane parties.

This statute applies only to preemption and homestead entries. It does not apply to desert-land entries which was the form of entry involved in Bruington's case, cited by the Commissioner of the General Land Office. At initiation of a desert-land entry the entryman. pays 25 cents per acre to the Government and thereby acquires inchoate title. Such right to acquire title is property. The form of entry, however, requires proof of annual expenditures, and before it can be consummated requires proof of water right and actual or potential reclamation of the land. It might well be that an insane entryman would not have means from which to make annual expenditure, or to acquire water right so as to effect reclamation. Respecting such a property, the decision of October 1, 1912, in Bruington case was a proper one. The statute referred to had no reference to such a case, for reasons stated, and the interest of the entryman being a property right, capable of being perfected, might properly be sold under direction of the proper court having jurisdiction of estates of insane persons.

Coming now to the act of June 8, 1880, supra, it refers only to preemption and homestead entries. The construction proper to be given thereto is that it provides a concurrent remedy or relief for an insane entryman and not an exclusive one. If there is no charge against the entry and it be valid, the act of 1880, supra, provides that legal title may issue to him without further proof of compliance with the law. Obviously this is more valuable to the entryman than a mere claim of inchoate right. Therefore, in ordinary cases, the remedy given by the act of June 8, 1880, should be pursued as most advantageous to the unfortunate entryman.

If, however, there be question, as in this case, whether the entryman was qualified to make an entry or whether it was not attended by a fraudulent agreement, in such cases, obviously a relinquishment

should be allowed, for something may thereby be saved to the estate of the insane. Therefore, if it appear to the court having proper jurisdiction of the estates of insane persons that the doubtful right of an entryman should be sold rather than attempt proof to obtain a patent, in ordinary cases the judgment of the court in that respect will be followed and a relinquishment permitted.

The decision of Dyche v. Beleele, supra, is, therefore, so far modified that, if there be a pending charge, reasonable doubt of the validity of the entry or of the entryman's compliance with the law to time he became insane, relinquishment will be allowed, in order that the estate may realize the most possible out of the doubtful claim. If no question exists in that respect, title by patent will be granted to the entryman, rather than permit relinquishment, as full title will be more valuable than an inchoate claim.

RECLAMATION—OKANOGAN PROJECT-PAYMENT.

PUBLIC NOTICE.

DEPARTMENT OF THE INTERIOR, Washington, January 16, 1914. Whereas, under the acts of Congress approved June 17, 1902 (32 Stat., 388), and February 13, 1911 (36 Stat., 902), a stay of proceedings looking to the cancellation of entries or water-right applications for failure to make payments when due, was, on April 29, 1912 [41 L. D., 616], offered to landholders under the Okanogan project, Washington, and such stay of proceedings was in general accepted, and the conditions thereof complied with by such landholders; and

Whereas, it is the desire of many such landholders to secure patents or water-right certificates under the act of Congress approved August 9, 1912 (37 Stat., 265), which contains the provision that "no such patent or certificate shall issue until all sums due the United States on account of such land or water right at the time of issuance of patent or certificate shall have been paid ";

Now, therefore, it is hereby ordered that for all lands under the said project, the entrymen or owners of which shall have validly accepted the stay of proceedings offered by the said order of April 29, 1912, in the manner and form therein prescribed, and shall be and remain in good standing thereunder by having made the payments required thereby, the charges for building, operation and maintenance which may have accrued or which would hereafter accrue against their lands under the provisions of public notices and orders theretofore issued shall be, and they are hereby postponed until further announcement by public notice or otherwise.

Nothing herein shall be construed as a waiver or release of any payment of charges for water or water rentals prescribed by the said order of April 29, 1912.

ANDRIEUS A. JONES,

First Assistant Secretary of Interior.

NORTHERN PACIFIC RY. CO. v. MORTON.

Decided January 17, 1914.

SETTLEMENT-Unsurveyed LAND-ENLARGED HOMESTEAD.

The right acquired by settlement upon public lands under the act of May 14, 1880, is coextensive with the right of entry conferred by the homestead laws; and a settler upon unsurveyed land subsequently designated under the enlarged homestead act is, upon the filing of the township plat of survey, entitled to make entry of the land embraced in his settlement claim to the full area of 320 acres permitted by the enlarged homestead act. CONFLICTING DECISION OVERRULED.

Cate v. Northern Pacific Ry. Co., 41 L. D., 316, overruled in so far as in conflict.

JONES, First Assistant Secretary:

Motion for rehearing has been filed on behalf of the Northern Pacific Railway Company of departmental decision of March 22, 1913, affirming a decision of the Commissioner of the General Land Office, dated February 5, 1912, canceling its indemnity selection for the N. 1 NW. 1, SE. 1 SW. 1, SE. 1, Sec. 3, T. 4 N., R. 50 E., M. M., Miles City, Montana, land district.

The land is within the indemnity limits of the grant to the Northern Pacific Railroad, now Railway, Company. May 1, 1909, the township was designated under the enlarged homestead act of February 19, 1909 (35 Stat., 639). March 8, 1910, the plat of survey was filed in the local office, and the railway company filed its list for these tracts. March 16, 1910, Dale Morton filed application to make homestead entry under the act of February 19, 1909, supra, for these tracts, together with the NW. 1 SW. 1, Sec. 2, and on March 21, 1910, filed his duly corroborated affidavit, alleging settlement in April, 1907; that he resided thereon each summer thereafter; that he has improved the land by constructing a fence around 200 acres, plowed and cultivated 35 acres to crop in section 3. October 3, 1911, hearing was had between the railway company and claimant, at which both parties appeared represented by counsel, and submitted testimony.

It appears from the evidence disclosed that Morton's original settlement was on what on survey proved to be the SE. SW. 1, Sec. 3. In 1907 he dug a well thirty-three feet deep, planted some fruit trees and made hay upon the tracts. Not finding water thereon, he later put his buildings on what is now the NW. SW. 1, Sec. 2. In the motion for rehearing, it is insisted that the settlement rights of claimant could not attach to more than 160 acres, and that he should