A-21035, JANUARY 19, 1928, 7 COMP. GEN. 422

A-21035: Jan 19, 1928

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THE ENTRY IS VOLUNTARILY RELINQUISHED BY THE ENTRYMAN WITHOUT SUBMITTING FINAL PROOF AND PERFECTING TITLE TO THE LAND. THERE IS NO AUTHORITY UNDER EITHER THE ACT OF JUNE 16. WHICH WAS RELINQUISHED BY HIM MAY 26. IT APPEARS FROM THE RECORD THAT THE APPLICATION OF BERG TO MAKE HOMESTEAD ENTRY FOR 160 ACRES OF THE FORFEITED OREGON AND CALIFORNIA LAND GRANT LANDS WAS ALLOWED BY THE LOCAL OFFICERS OF THE GENERAL LAND OFFICE NOVEMBER 14. UNDER WHICH THE LANDS WERE OPENED TO ENTRY. IT WAS NECESSARY FOR HIM TO RESIDE UPON AND CULTIVATE THE LAND FOR A PERIOD OF AT LEAST THREE YEARS AND TO SUBMIT FINAL PROOF OF SUCH COMPLIANCE WITH THE LAW AND TO MAKE FURTHER PAYMENTS OF FEES AND COMMISSIONS AND AN ADDITIONAL PAYMENT OF $2 PER ACRE.

A-21035, JANUARY 19, 1928, 7 COMP. GEN. 422

PUBLIC LANDS - REFUNDS ON RELINQUISHMENT WHERE AN APPLICATION TO MAKE HOMESTEAD ENTRY FOR A TRACT OF FORFEITED OREGON AND CALIFORNIA LAND GRANT LANDS HAS BEEN RECEIVED AND ALLOWED BY THE LOCAL LAND OFFICERS AND PERMITTED TO REMAIN INTACT, SEGREGATING THE LAND AND PROTECTING IT FROM OTHER DISPOSITION FOR A NUMBER OF YEARS PENDING COMPLIANCE WITH THE HOMESTEAD LAW AND THE SUBMISSION OF FINAL PROOF, AND THE ENTRY IS VOLUNTARILY RELINQUISHED BY THE ENTRYMAN WITHOUT SUBMITTING FINAL PROOF AND PERFECTING TITLE TO THE LAND, DUE TO THE SICKNESS OF THE ENTRYMAN, THERE IS NO AUTHORITY UNDER EITHER THE ACT OF JUNE 16, 1880, 21 STAT. 287, OR THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, OR ANY OTHER LAW FOR THE RETURN OF THE FEES AND COMMISSIONS AND INSTALLMENT OF THE PURCHASE PRICE PAID ON THE ORIGINAL ENTRY.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 19, 1928:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF LARS BERG FOR REFUND OF THE FEES AND COMMISSIONS AND FIRST INSTALLMENT OF THE PURCHASE PRICE PAID UPON HIS HOMESTEAD ENTRY 014599, ROSEBERG, OREG., SERIES, WHICH WAS RELINQUISHED BY HIM MAY 26, 1927.

IT APPEARS FROM THE RECORD THAT THE APPLICATION OF BERG TO MAKE HOMESTEAD ENTRY FOR 160 ACRES OF THE FORFEITED OREGON AND CALIFORNIA LAND GRANT LANDS WAS ALLOWED BY THE LOCAL OFFICERS OF THE GENERAL LAND OFFICE NOVEMBER 14, 1922. HE PAID IN CONNECTION THEREWITH $10 AS FEES, $12, AS COMMISSIONS, AND $80 (50 CENTS PER ACRE) AS THE INITIAL PAYMENT REQUIRED OF HOMESTEAD APPLICANTS BY SECTION 5 OF THE ACT OF JUNE 9, 1916, 39 STAT. 220, UNDER WHICH THE LANDS WERE OPENED TO ENTRY. AFTER THE ALLOWANCE OF HIS ENTRY, IN ORDER TO PERFECT TITLE TO THE LAND, IT WAS NECESSARY FOR HIM TO RESIDE UPON AND CULTIVATE THE LAND FOR A PERIOD OF AT LEAST THREE YEARS AND TO SUBMIT FINAL PROOF OF SUCH COMPLIANCE WITH THE LAW AND TO MAKE FURTHER PAYMENTS OF FEES AND COMMISSIONS AND AN ADDITIONAL PAYMENT OF $2 PER ACRE. INSTEAD OF SO DOING, HOWEVER, HE RELINQUISHED HIS ENTRY MAY 26, 1927, AND IN SUPPORT OF HIS APPLICATION FOR REPAYMENT ALLEGES THAT HE WAS UNABLE TO FULFILL THE REQUIREMENTS OF THE HOMESTEAD LAW DUE TO ILLNESS.

THE ONLY AUTHORITY OF LAW FOR THE REFUNDING OF MONEYS PAID IN CONNECTION WITH SUCH PUBLIC-LAND ENTRIES AS THE ONE HERE INVOLVED, IS THAT FOUND IN SECTION 2 OF THE ACT OF JUNE 16, 1880, 21 STAT. 287, AND IN SECTION 1 OF THE ACT OF MARCH 26, 1908, 35 STAT. 48, AS AMENDED BY THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, WHICH PROVIDE, RESPECTIVELY, AS FOLLOWS:

IN ALL CASES WHERE HOMESTEAD OR TIMBER-CULTURE OR DESERT-LAND ENTRIES OR OTHER ENTRIES OF PUBLIC LANDS HAVE HERETOFORE OR SHALL HEREAFTER BE CANCELED FOR CONFLICT, OR WHERE FROM ANY CAUSE, THE ENTRY HAS BEEN ERRONEOUSLY ALLOWED AND CAN NOT BE CONFIRMED, THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE REPAID TO THE PERSON WHO MADE SUCH ENTRY, OR TO HIS HEIRS, OR ASSIGNS, THE FEES AND COMMISSIONS, AMOUNT OF PURCHASE MONEY, AND EXCESSES PAID UPON THE SAME UPON THE SURRENDER OF THE DUPLICATE RECEIPT AND THE EXECUTION OF A PROPER RELINQUISHMENT OF ALL CLAIMS TO SAID LAND, WHENEVER SUCH ENTRY SHALL HAVE BEEN DULY CANCELED BY THE COMMISSIONER OF THE GENERAL LAND OFFICE, * * *.

THAT WHERE PURCHASE MONEYS AND COMMISSIONS PAID UNDER ANY PUBLIC LAND LAW HAVE BEEN OR SHALL HEREAFTER BE COVERED INTO THE TREASURY OF THE UNITED STATES UNDER ANY APPLICATION TO MAKE ANY FILING, LOCATION, SELECTION, ENTRY, OR PROOF, SUCH PURCHASE MONEYS AND COMMISSIONS SHALL BE REPAID TO THE PERSON WHO MADE SUCH APPLICATION, ENTRY, OR PROOF, OR TO HIS LEGAL REPRESENTATIVES, IN ALL CASES WHERE SUCH APPLICATION, ENTRY, OR PROOF HAS BEEN OR SHALL HEREAFTER BE REJECTED, AND NEITHER SUCH APPLICANT NOR HIS LEGAL REPRESENTATIVES SHALL HAVE BEEN GUILTY OF ANY FRAUD OR ATTEMPTED FRAUD IN CONNECTION WITH SUCH APPLICATION:PROVIDED, THAT SUCH PERSON OR HIS LEGAL REPRESENTATIVES SHALL FILE A REQUEST FOR THE REPAYMENT OF SUCH PURCHASE MONEYS AND COMMISSIONS WITHIN TWO YEARS FROM THE REJECTION OF SUCH APPLICATION, ENTRY, OR PROOF, OR WITHIN TWO YEARS FROM THE PASSAGE OF THIS ACT AS TO SUCH APPLICATIONS, PROOFS, OR ENTRIES, AS HAVE BEEN HERETOFORE REJECTED.

THE ADMINISTRATIVE OFFICE HAS RECOMMENDED THE ALLOWANCE OF THE REFUND UPON THE THEORY THAT A RELINQUISHMENT UNDER SUCH CONDITIONS CONSTITUTED A CANCELLATION OF THE ENTRY WITHIN THE MEANING OF THE ACTS CITED.

IN THE CASE OF THE UNITED STATES V. INGRAHAM, 172 U.S. 327, 43 L.ED. 465, IT WAS HELD, QUOTING FROM THE SYLLABUS:

ONE WHO VOLUNTARILY ABANDONS A VALID ENTRY OF PUBLIC LANDS UNDER THE DESERT LAND ACT CAN NOT RECOVER BACK THE MONEY WHICH HE PAID TO THE LOCAL LAND OFFICERS TO INITIATE IT.

THIS DECISION WAS CITED WITH APPROVAL IN THE CASE OF TICTIN V. UNITED STATES, 36 CT.CLS. 1, IN WHICH IT WAS HELD (SYLLABUS):

AN ENTRY IN THE LAND OFFICE IS NOT UNILATERAL, BUT RECIPROCAL IN CHARACTER ON THE PART OF THE ENTRYMAN. HE CAN NOT ENTER LAND AND RELINQUISH IT AT PLEASURE. WHERE HE VOLUNTARILY ABANDONS IT HE CAN NOT RECOVER BACK THE MONEY WHICH HE PAID.

SEE ALSO THE CASE OF HEIRS OF JAMES BYRNE, 51 L.D. 161.

THE ENTRY IN THIS CASE WAS NOT CANCELED FOR CONFLICT NOR WAS IT ERRONEOUSLY ALLOWED, AND IT IS CLEAR THEREFORE THAT THE ACT OF JUNE 16, 1880, SUPRA, DOES NOT AUTHORIZE THE REFUND. NEITHER WAS THE APPLICATION, ENTRY, OR PROOF REJECTED WITHIN THE MEANING OF THE ACT OF DECEMBER 11, 1919, SUPRA. THE ENTRY WAS REGULARLY ALLOWED AND REMAINED OF RECORD FOR NEARLY FIVE YEARS, THE STATUTORY LIMIT FOR THE SUBMISSION OF FINAL PROOF, AND ANY FAILURE TO COMPLETE TITLE UNDER SUCH ENTRY WAS DUE TO NO FAULT OF THE GOVERNMENT OR ANY THIRD PARTY, BUT TO THE PERSONAL INABILITY OF THE ENTRYMAN. THE RIGHT OF THE UNITED STATES TO THE FEES, COMMISSIONS, AND THE 50 CENTS PER ACRE WAS COMPLETE WHEN THE ORIGINAL ENTRY WAS ALLOWED AND THE ENTRYMAN HAS HAD THE BENEFIT THEREOF AS HIS ENTRY SEGREGATED THE LAND FROM FURTHER DISPOSITION FOR THE PERIOD OF APPROXIMATELY FIVE YEARS THAT IT REMAINED OF RECORD, AND WAS VOLUNTARILY RELINQUISHED BY THE ENTRYMAN IN ORDER THAT HE MIGHT REENTER THE SAME LAND AND THUS SECURE ADDITIONAL TIME WITHIN WHICH TO COMPLY WITH THE REQUIREMENTS OF LAW NECESSARY TO PERFECT TITLE.

UNDER SUCH CIRCUMSTANCES THERE IS NO AUTHORITY IN EITHER OF THE ACTS CITED FOR THE REFUND OF THE FEES, COMMISSIONS, OR INITIAL INSTALLMENT OF THE PURCHASE PRICE PAID IN CONNECTION WITH THE ORIGINAL ENTRY.