payment on his books of account, and he shall deposit all sums received by him at least once a week, and, when practicable, daily, in some bank designated by the Board, and he shall pay the same out only on his checks countersigned by the Chairman of the Board of which he is Secretary, which checks, after they are honored, shall be filed with his accounts as vouchers.

20. Upon the payment to the disbursing officer of all sums assessed by you upon any lot, block, or parcel of land by the person entitled thereto, and not before, you will proceed to execute him a deed therefor pursuant to the terms of said act. All conveyances made by you shall be acknowledged before an officer duly authorized in said Territory to take acknowledgments of deeds. The form of deed and acknowledg ment will be forwarded you.

21. All lots occupied by any religious organization will, upon the payment of the assessments thereon, be conveyed by you to it directly, or in trust for the use and benefit of the same at its option.

22. You will ascertain and submit to the Secretary of the Interior a statement showing separately,

First. All lots not disposed of under the provisions of said act which are subject to be sold under the direction of the Secretary of the Interior for the benefit of the municipal government of the town or city controlling the town site which you are directed to allot.

Second. Such part thereof as may be reserved for public use as sites for public buildings.

Third. For the purpose of public parks.

23. You will be allowed ten dollars per day for each day's service when you are actually engaged and employed in the performance of your duties as such trustee; your necessary traveling expenses; and three dollars per day for your subsistence. But these sums may be reduced in either board at the will of the Secretary of the Interior if he deems it for any cause necessary.

24. The Clerk of the Board, when not a clerk already in government employment and assigned to the Board for duty, will be allowed as compensation for his services at the rate of one hundred dollars a month; he will also be allowed his actual necessary traveling expenses. All expenses of members of the board and the clerk shall be reported to and adjusted by the Commissioner of the General Land Office at the end of each week after you commence executing conveyances for the lots and blocks on the town site; before that, monthly on the first day of the month.

25. The account of all your expenses and expenditures, together with a record of your proceedings, which, with your oath of office, and all papers filed with you, the records in each case, and all evidence of your official acts, except conveyances, you will file in the office of the Commissioner of the General Land Office to become a part of the records therein.

26. Where any one occupying and filing for a homestead obtains a patent for a town site under section 22 of the Oklahoma Territorial act, approved May 2, 1890, such town site will not be affected by the provisions under which you are appointed, and you can not act in any such

case.

27. You will correspond with the Commissioner of the General Land Office, and only through him with the Secretary, so that a complete record thereby may be kept in the Land Office.

It is believed that the foregoing regulations, together with copies of the laws referred to therein, and copies of the rules and regulations. furnished registers and receivers in contested cases and appeals will be found sufficient for the proper determination of all cases which may arise, but should unforeseen difficulties present themselves, you will submit the same for special instructions.

In view of the fact that the expenses incident to the allotment of town sites by the provisions of this act are necessarily burdensome to those interested therein, you will be expected to proceed as expeditiously as is consistent with a due regard to the proper performance of your duties in disposing of the trust herein imposed upon you. It is hoped that you will, from a sense of duty, relieve as much as possible the inhabitants of the town sites under your control from unnecessary delays, fees, and expenses.

Very respectfully,

JOHN W. NOBLE,

Secretary.

DESERT LAND ENTRY-RELINQUISHMENT.

YATES v. GLAFCKE.

A desert land entry should be canceled at once, when a relinquishment thereof is filed in the local office, and the land held open to the first legal applicant.

The failure of the local office to promptly cancel a desert entry, after due relinquishment thereof has been filed, will not prejudice the rights of a subsequent applicant for the land involved therein.

First Assistant Secretarg Chandler to the Commissioner of the General Land Office, June 19, 1890.

I have considered the appeal of Elmer Yates from your decision of February 25, 1889, rejecting his application to file a declaratory statement for the NE. 4 of Sec. 34, T. 14 N., R. 66 W., Cheyenne, Wyoming.

The facts in this case are as follows: The tract in question was embraced in desert land entry No. 697, made July 9, 1883, by Malinda Butler, which entry also embraced the S. of the same section. On July 9, 1886, Butler executed a relinquishment of the said NE. and on October 14, 1886, made final proof for the said S. of the section. In your letter of February 7, 1889, addressed to the local officers at Cheyenne, you state that there is nothing on the relinquishment to show 14639-VOL 10—43

when it was filed in said local office, but the presumption is, that it was received with the final proof papers for the S. of the section on which final certificate issued October 14, 1886.

This relinquishment was not noted on the records of the local office, neither was said entry canceled by your office until May 10, 1887, when such action was taken.

On April 27, 1887, Herman Glafcke made application to enter said. tract under the timber culture law, but his application was rejected by the local officers for the reason that the tract was embraced in the desert land entry of Butler which at that time was intact on their records. Glafcke filed an appeal which was transmitted to your office June 4, 1887.

On May 18, Elmer Yates made application to file a declaratory statement for said tract alleging settlement thereon May 6, 1887. This was rejected by the local officers for the reason that the timber culture application of Glafcke was pending for said tract. Appeal was taken which was also transmitted to your office on June 4, 1887.

By letter of February 7, 1889, your office allowed the timber culture entry of Glafcke, and by letter of February 25, 1889, rejected the application of Yates for said tract.

The reason for allowing the former was that under the decision of the Department in the case of Fraser v. Ringgold (3 L. D., 69), and in the case of Sears v. Almy (6 L. D., 1), the relinquishment of Butler for said tract should have been received and noted on the records of the local office when filed, which was assumed to be October 14, 1886, when final proof was made by Butler, and that the tract should have been considered vacant public land at the date of his [Glafcke's] application, and his entry should have been allowed. It, of course, followed that the application of Yates must be rejected, as the land was appropriated by the entry of Glafcke.

In the case of Fraser v. Ringgold decided by the Department August 13, 1884, it was held that desert land entries were included within the act of May 14, 1880, and should be held subject to the rules of practice in the matter of hearings and contests. Under this decision it was the practice of your office, while recognizing the rights of contestants of desert land entries to be the same as contestants of homestead and pre-emption entries, to require the relinquishment of a desert land entry to be sent to your office to be canceled; in other words, the local officers were not permitted to cancel a desert land entry upon the filing of a relinquishment of the same in their office, as provided by said act of May 14, 1880, and this practice continued until June 3, 1887, when the decision of the Department was rendered in the case of Sears v. Almy, which held that when the relinquishment of a desert land entry is filed in the local office, the entry should at once be canceled, and the land thereafter held open to settlement and entry without further action,

We are met with these facts in the case at bar: Glafcke made his application for the land after the relinquishment was filed, but the entry not canceled, while Yates waited until the order of cancellation before he made application to file his declaratory statement, although he made settlement a few days prior, and the question to be determined is, does the prior application of Glafcke give him the better right to the land? It must be so held unless he was disqualified, or the land was not subject to appropriation under said application. He appears to have been a legally qualified applicant, and I am unable to conclude that, under the rulings of the Department, the land was not properly subject to entry.

The decision in the case of Sears v. Almy is clearly a statement by the head of the Land Department that the practice of your office requiring relinquishments to be transmitted for cancellation subsequent to the decision in the case of Fraser v. Ringgold was erroneous, and contrary to the ruling in said case. Had the decision of the Department been followed, as it should have been, the entry of Butler would have been canceled on the records of the local office at the date of Glafcke's application. In making his application Glafcke simply did what he had a legal right to do, viz., to make application for land which, under the ruling of the Department, was properly subject to entry, and the action of the local officers in rejecting the same, even though such action was taken under the erroneous instructions from your office, can not defeat his right.

Counsel for Yates contends that at the time Glafcke made his application, April 27, 1887, the land was segregated by the desert land entry of Butler, and that said reservation continued until the entry was canceled, May 10, 1887, and that the subsequent change in the rule made by the decision in the case of Sears v. Almy, June 3, 1887, should not be permitted to operate in such a manner as to defeat the right of Yates, who refrained from presenting his application until the letter of cancellation was received at the local office; or, in other words, that the change of rule by said decision should not have a retroactive effect, but that the rights of both applicants should be adjudged under the rule in force at the date of their applications, and that the application of Glafcke should be rejected, and the rights of Yates recognized, as a settler on the land when the same became subject to appropriation, viz., at the date of the cancellation of the entry upon the relinquishment of Butler, May 10, 1887.

It is true that Glafcke made his application at a time when the land was regarded as segregated; but Yates is in the same condition, for he made his settlement, upon which he bases his right to file, at a time when the land was considered segregated, so that both are on an equal footing, neither was governed by the rule in force, but both attempted to gain a right by some act prior to the restoration of the land to market, and if we take this view it would seem that the proper disposition of

the case would be to regard the application of Glafcke (who took an appeal from the action of the local officers) as pending the instant the cancellation was made, and if so, his right was certainly equal to that of Yates, who could claim no right as a settler prior to said date of cancellation.

In my opinion, however, the only correct rule that can be applied in this case is the one recognizing the principle laid down in the case of Fraser v. Ringgold, that desert land entries are included in the provisions of the act of May 14, 1880, and that the entry of Butler should have been canceled on the filing of the relinquishment, and the land rendered subject to entry by the first legal applicant.

The erroneous interpretation by your office of the principle announced in said decision can not be allowed to defeat the rights of an applicant for the public lands.

Glafcke was the prior applicant for the tract in question, and his right must be recognized.

Your decisions are therefore affirmed.

RAILROAD GRANT-ADJUSTMENT-INDEMNITY.

GRAND RAPIDS AND INDIANA R. R. Co.

The grant for the benefit of this road, as amended by the act of June 7, 1864, provides for a continuous line of road from Fort Wayne, on the south, to Traverse Bay, the northern terminus of the road, and for one grant of land along the line of said road, with the right to take indemnity, for lands lost in place, from other lands anywhere along the line of said continuous road, within a lateral limit of twenty miles. Secretary Noble to the Commissioner of the General Land Office, June 20, 1890,

I have considered, and herewith send my conclusions, in the matter, submitted by your letter of February 28, 1890, relating to the adjustment of the grant made to the State of Michigan by acts of June 3. 1856 (11 Stat., 21), and June 7, 1864 (13 Stat., 119), to aid in the construction of certain railroads.

The act of 1856, supra, granted to the State of Michigan, "to aid in the construction of railroads" therein described, including one "from Grand Rapids to some point on or near Traverse Bay," "every alternate section of land designated by odd numbers; for six sections in width on each side of said roads;" and provided further, that if, when the lines of said roads "are definitely fixed," the United States have sold any of the granted lands, or "the right of pre-emption has attached to the same," then indemnity lands therefor shall be selected, subject to the approval of the Secretary of the Interior, " from lands of the United States nearest to the tiers" of the granted sections, and within fifteen miles of the line of the road.