A-35324, MARCH 17, 1931, 10 COMP. GEN. 411

A-35324: Mar 17, 1931

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE APPLICANT IS ENTITLED. THE FORMAL CANCELLATION OF A PORTION OF A MINERAL ENTRY AND THE REJECTION OF THE APPLICATION IN PART BECAUSE OF THE VOLUNTARY RELINQUISHMENT OR WITHDRAWAL OF THAT PORTION OF THE ENTRY IN THE FACE OF CHARGES OF INSUFFICIENT IMPROVEMENTS AND LACK OF DISCOVERY IS NOT SUCH A REJECTION AS TO AUTHORIZE THE REFUND UNDER THE ACT OF DECEMBER 11. THE ENTRY WAS HELD FOR CANCELLATION TO THE EXTENT OF THE OHIO EXTENSION. THE GREATER PORTION OF THE OHIO ALSO WAS IN CONFLICT WITH PATENTED LAND. THE IMPROVEMENTS AND DISCOVERY UPON THE LAST CHANCE LODE WERE LOCATED UPON LANDS IN CONFLICT WITH THE UNSURVEYED FITZSIMMONS LODE CLAIM. THE ENTRY WAS ACCORDINGLY FINALLY CANCELED AS TO THE OHIO AND LAST CHANCE LODES JANUARY 11.

A-35324, MARCH 17, 1931, 10 COMP. GEN. 411

PUBLIC LANDS - MINERAL ENTRIES - REPAYMENTS WHEN A MINERAL ENTRY HAS BEEN ERRONEOUSLY ALLOWED IN PART AND CAN NOT BE CONFIRMED BECAUSE OF CONFLICT WITH PRIOR VALID EXISTING CLAIMS OR PATENTED ENTRIES, THE APPLICANT IS ENTITLED, UPON CANCELLATION OF THE ENTRY TO THE EXTENT OF THE CONFLICT, TO REPAYMENT UNDER THE ACT OF JUNE 16, 1880, 21 STAT. 287, OF THE PURCHASE MONEY PAID UPON THE AREA ELIMINATED FROM THE ENTRY BY SUCH CANCELLATION. THE FORMAL CANCELLATION OF A PORTION OF A MINERAL ENTRY AND THE REJECTION OF THE APPLICATION IN PART BECAUSE OF THE VOLUNTARY RELINQUISHMENT OR WITHDRAWAL OF THAT PORTION OF THE ENTRY IN THE FACE OF CHARGES OF INSUFFICIENT IMPROVEMENTS AND LACK OF DISCOVERY IS NOT SUCH A REJECTION AS TO AUTHORIZE THE REFUND UNDER THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, OF THE PURCHASE PRICE FOR THE LAND SO RELINQUISHED OR WITHDRAWN.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 17, 1931:

GEORGE H. CATTANACH, ADMINISTRATOR OF THE ESTATE OF CLIFFORD M. DOLPH, DECEASED, BY LETTER OF JANUARY 27, 1931, REQUESTED REVIEW OF SETTLEMENT OF THIS OFFICE OF JANUARY 17, 1931, ALLOWING ONLY $465 UPON HIS APPLICATION FOR REPAYMENT OF THE EXCESS PURCHASE MONEYS PAID ON MINERAL ENTRY 026680, THE DALLES, OREG., SERIES.

IT APPEAR THAT IN AUGUST, 1928, CLAIMANT APPLIED TO MAKE MINERAL ENTRY FOR A NUMBER OF LODE CLAIMS COVERING A TOTAL OF 523.284 ACRES FOR WHICH HE PAID $2,620,; THAT ON NOVEMBER 23, 1928, THE ENTRY WAS HELD FOR CANCELLATION TO THE EXTENT OF THE OHIO EXTENSION, VIDI, AND LADY OF THE HILLS LODES FOR CONFLICT IN THEIR ENTIRETY WITH PATENTED LANDS. THE GREATER PORTION OF THE OHIO ALSO WAS IN CONFLICT WITH PATENTED LAND, AND THE IMPROVEMENTS AND DISCOVERY UPON THE LAST CHANCE LODE WERE LOCATED UPON LANDS IN CONFLICT WITH THE UNSURVEYED FITZSIMMONS LODE CLAIM. THE ENTRY WAS ACCORDINGLY FINALLY CANCELED AS TO THE OHIO AND LAST CHANCE LODES JANUARY 11, 1929, AND AS TO THE OHIO EXTENSION, VIDI, AND LADY OF THE HILLS LODES JANUARY 31, 1930. AFTER CANCELLATION FOR THESE CONFLICTS THERE REMAINED AN AREA OF 430.438 ACRES REQUIRING ONLY $2,155 PURCHASE MONEY, OR $465 LESS THAN ORIGINALLY PAID.

BY LETTER OF APRIL 29, 1930, OF THE GENERAL LAND OFFICE, ADVERSE PROCEEDINGS WERE ORDERED UPON A REPORT BY A FIELD INSPECTOR CHARGING INSUFFICIENT IMPROVEMENTS AND LACK OF DISCOVERY INVOLVING 11 OF THE REMAINING LODE CLAIMS. MAY 27, 1930, THE CLAIMANT EXECUTED A FORMAL WAIVER OF ALL RIGHTS TO THE LODE CLAIMS UNDER CONTEST, CONSENTED TO THEIR CANCELLATION, AND REQUESTED PATENT UPON THE REMAINING CLAIMS BY LETTER OF JUNE 10, 1930, THE GENERAL LAND OFFICE CANCELED THE ENTRY AS TO THE 11 LODE CLAIMS UNDER CONTEST AND APPROVED THE ENTRY FOR PATENTING AS TO THE REMAINING AREA OF 267.015 ACRES. THE CLAIMANT APPLIED FOR REPAYMENT OF $1,280 WAS COVERING THE DIFFERENCE BETWEEN THE AMOUNT PAID BY HIM AND THE PURCHASE MONEYS REQUIRED FOR THE AREA ACTUALLY PATENTED. THE CLAIM WAS ADMINISTRATIVELY APPROVED FOR $465 ONLY.

THE PROVISIONS OF LAW FOR REFUND OF MONEYS PAID IN CONNECTION WITH PUBLIC LAND ENTRIES UNDER THE CIRCUMSTANCES HERE INVOLVED ARE FOUND IN SECTION 2 OF THE ACT OF JUNE 16, 1880, 21 STAT. 287, AND 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, THAT---

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 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. 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.

TO THE EXTENT OF THE AREA CANCELED FOR CONFLICT, THE ENTRY HAD BEEN ERRONEOUSLY ALLOWED AND COULD NOT HAVE BEEN CONFIRMED WITHIN THE PURVIEW OF THE ACT OF JUNE 16, 1880, SUPRA. ACCORDINGLY, THE PARTIAL CANCELLATION OF THE ENTRY FOR CONFLICT ENTITLED THE CLAIMANT TO A REPAYMENT OF THE PURCHASE MONEYS RENDERED EXCESS BY SUCH CANCELLATION.

IN ORDER THAT A REPAYMENT OF PURCHASE MONEYS MAY BE MADE UNDER THE 1919 STATUTE, THERE MUST HAVE BEEN A REJECTION BY THE GOVERNMENT OF THE APPLICATION. WHILE THE PARTIAL CANCELLATION OF THE MINERAL ENTRY AS TO THE 11 LODE CLAIMS UNDER CONTEST CARRIED WITH IT A REJECTION OF THE APPLICATION TO THAT EXTENT, SUCH A REJECTION WAS MERELY PRO FORMA, THE REAL TRANSACTION BEING THE VOLUNTARY RELINQUISHMENT OR WITHDRAWAL OF THE APPLICATION AND ENTRY BY THE CLAIMANT TO THE EXTENT OF THE LODES UNDER CONTEST. THE FORMAL CANCELLATION OF THE PORTION OF THE ENTRY AND THE REJECTION OF THE APPLICATION IN PART BECAUSE OF THE VOLUNTARY RELINQUISHMENT DUE TO A FAILURE TO COMPLY WITH THE LAW REQUIRING A SPECIFIC AMOUNT OF IMPROVEMENTS AND FOR THE LACK OF DISCOVERY IS NOT SUCH A REJECTION AS TO AUTHORIZE A REFUND OF THE PURCHASE PRICE UNDER THE 1919 ACT FOR THE LAND SO RELINQUISHED OR WITHDRAWN. A-30525, MARCH 24, 1930, AND A-323888, JULY 17, 1930. THE SETTLEMENT IN THIS CASE ALLOWED THE CLAIMANT $465 WITH PURCHASE PRICE RENDERED EXCESS BY THE CANCELLATION FOR CONFLICT WHICH WAS ALL THAT HE WAS ENTITLED TO AS INDICATED ABOVE.