the lines of public surveys shall have been extended over the same. age Circular, October 1, 1880. § 468. Desert Lands may be Purchased. It shall be lawful for any citizen of the United States, or any person of requisite "who may be entitled to become a citizen, and who has filed his declaration to become such," and upon payment of twentyfive cents per acre, to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter; provided, however, that the right to the use of water by the person so conducting the same, on or to any tract of desert land of 640 acres, shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding 640 acres to any one person, a patent for the same shall be issued to him; provided, that no person shall be permitted to enter more than one tract of land, and not to exceed 640 acres, which shall be in compact form. 18 Stat. 497; 19 Id. 377. § 469. Definition of Desert Lands.-All lands, exclusive of timber lands and mineral lands, which will not without irrigation produce some agricultural crop, shall be deemed desert lands within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated. 18 Stat. 497; 19 Id. 377. $470. Localities to Which the Law Applies.-This chapter shall only apply to and take effect in the states of California, Oregon, and Nevada, and the territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the commissioner of the general land office. 18 Stat. 497; 19 Id. 377. CHAPTER XXIV. REPAYMENTS. § 472. Applications, where Patent has been Issued-Mode of Proceeding. Applications for Repayment where Patent has not been Issued. Who are Assignees in Good Faith. § 473. § 474. § 476. § 477. Purchase Money Refunded where Sale can not be Confirmed. § 478. Repayments on Soldiers' Void Additional Homestead Locations. § 479. Purchase Money, Fees, and Commissions on Erroneous Entries, or where Sales can not be Confirmed. § 480. Regulations for Repayments-Warrants on Treasury for Same. § 471. The act of congress, approved June 16, 1880, being additional to the provisions of sections 2362 and 2363, revised statutes of the United States, provides in its first section for the repayment" to innocent parties" of the fees, commissions, etc., paid by them on fraudulent and void additional soldiers' and sailors' homestead entries which have been canceled. Applications for repayment under this section must be accompanied by the duplicate receipt, or evidence of the loss of the same, and by a concise statement under oath setting forth all the facts and circumstances connected with the procurement and use of the fraudulent papers upon which the canceled entries were based, together with such documentary or other proof as may tend to establish the innocence of the parties relative thereto. Repayment of fees, commissions, and excesses, under section 1, can be made only to the party who paid the same. A conveyance of the land in these cases will not be deemed to carry with it the right to repayment. The second section of the act provides: 1. For the repayment of purchase money, and of fees, commissions, and excess payments, where entries of public lands are canceled for conflict, "or where, from any cause, the entry has been erroneously allowed and can not be confirmed;" and, 2. For the repayment of the excess purchase money paid on lands sold at double minimum prices which are afterwards found to have been salable at one dollar and twenty-five cents per acre. § 472. Applications, where Patent has been Issued-Mode of Proceeding. Under section 2362 of the revised statutes, repay ment is authorized upon satisfactory proof " that any tract of land has been erroneously sold by the United States, so that from any cause the sale can not be confirmed," while in section 2 of the act of June 16, 1880, it is provided that the secretary of the interior shall cause repayment to be made "when from any cause the entry has been erroneously allowed and can not be confirmed." Under the former law, repayment was not authorized when the sale could be confirmed, but for failure of compliance with legal requirements on the part of the person making the same. The act aforesaid seems to change the old law in this, that it authorizes repayment, when from any cause the entry has been erroneously allowed and can not be confirmed. If the records of the land office or the proofs furnished should show that the entry ought not to be allowed, it would be error to allow it. In such a case repayment would be authorized. But if a tract of land were subject to entry and the proofs showed a compliance with law, and the entry should be canceled because the proofs were false, it could not be held that the entry was erroneously allowed, and in such a case repayment would not be authorized. § 473. Applications for Repayment where Patent has not been Issued. In cases of application for repayment under the second section, where patent has not been issued, the duplicate receipt must be surrendered. The applicant must also make affidavit that he has not transferred or otherwise incumbered the title to the land, and that said title has not become a matter of record. This affidavit may be made before either the register or receiver of the district land office, or before a notary public, or a justice of the peace, or other officer authorized to administer oaths. When made before a notary public or justice of the peace, a certificate of official character is required. If the duplicate receipt has been lost or destroyed, the party applying must advertise it, giving notice of his intention to apply for a repayment of the purchase money. This advertisement must be inserted weekly for six weeks in some newspaper circulating in the vicinity of the land. A copy of the advertisement, with the affidavit of the publisher that it was inserted the requisite number of times attached thereto, must accompany the papers in the case. Where the duplicate receipt has been lost or destroyed, a certificate will also be required from the proper recording officer, showing that the same has not become a matter of record, and that there is no incumbrance of the title to the land thereunder. A like certificate must be furnished when the application is made by another than the original purchaser. Where a patent has been executed and delivered, it must be surrendered. Where the title has become a matter of record, and in all cases where patent has issued, a duly executed deed, relinquishing to the United States all right and claim to the land under the entry or patent must accompany the application. This deed must be duly recorded, and a certificate must also be produced from the proper recording officer where the land is situated, showing that said deed is so recorded, and that the records of his office do not exhibit any other conveyance or incumbrance of the title to the land. Where a valid title has been conveyed by the United States to any part of the tract embraced in a canceled entry, a duly executed and recorded deed, reconveying to the United States the title derived therefrom, must accompany the application. The reconveyance to the United States must conform in every particular to the laws of the state relative to transfers of real property: in the case of a married man, a release of dower by the wife; and in case of executors or administrators, due proof of authority to alienate the estate. Where application is made by heirs, satisfactory proof of heirship is required. This must be the best evidence that can be obtained, and must show that the parties applying are the heirs and the only heirs of the deceased. Where application is made by executors, a certificate of executorship from the probate court must accompany the application. Where application is made by administrators, the original, or a certified copy of the letters of administration, must be furnished. $ 474. Who are Assignees in Good Faith.-Those persons are assignees, within the meaning of the statutes authorizing the repayment of purchase money, who purchase the land after the entries thereof are completed and assignments of the title under such entries prior to complete cancellation thereof, when the entries fail of confirmation for reasons contemplated by the law. To construe said statute so as to recognize the assignment or transfer of the mere claim against the United States for repayment of purchase money, or fees and commissions, disconnected from a sale of the land or an attempted transfer of title thereto, would be against the settled policy of the government, and repugnant to section 3477 of the revised statutes. Where applications are made by assignees, the applicants must show their right to repayment by furnishing properly authenticated abstracts of title, or the original deeds or instru |