Provided, That such applicant shall show to the satisfaction of the Secretary of the Interior that the prior entry or entries were made in good faith, were lost, forfeited, or abandoned because of matters beyond his control, and that he has not speculated in his right nor committed a fraud or attempted fraud in connection with such prior entry or entries.

With respect to the initial question as to whether or not the appellant's application, filed on February 21, 1961, constituted an "entry" within the meaning of the public land laws, an entry has been defined as "that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country by filing his claim" in the proper office. Chotard v. Pope, 25 U.S. (12 Wheat.) 586, 588 (1827). It has been held that:

Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is executed and delivered to him, the entry is made--the land is entered. Hastings and Dakota R.R. Co. v. Whitney, 132 U.S. 357, 363 (1889).

At an early date, the Department held that when land is once entered it becomes segregated from the mass of public lands, that the right of the claimant attaches upon such entry, and that a tract of land covered by a homestead entry is regarded as being reserved from appropriation in any manner by a private citizen prior to the cancellation of the entry. Thomas v. St. Joseph and Denver City R.R. Co., 2 Copp's Public Land Law 869 (1887).

The Department has long held that an application to enter land subject thereto is equivalent to an actual entry so far as the rights of the applicant are concerned and, while pending, reserves the land from other disposition. Goodale v. Olney, 12 L.D. 324 (1891); Rippy v. Snowden, 47 L.D. 321 (1920); E. Clark White v. Alfrod Roos, 55 I.D. 605 (1936). An exception to this rule occurs, and an application for public lands confers no absolute right, where the allowance of such claim is discretionary with the Secretary of the Interior, or classification of the land is a prerequisite to the allowance of an entry. Joseph E. Hatch, 55 I.D. 580 (1936); Lewis Lafon Gourley, A-28497 (November 6, 1961). The classification provisions of section 7 of the Taylor Grazing Act, as amended, 49 Stat. 1976 (1936), 43 U.S.C. § 315f (1958), are not applicable to lands in Alaska, and the allowance or disallowance of a homestead entry application in Alaska is not discretionary with the Secretary. Thus, the principle enunciated in Goodale v. Olney, supra, and succeeding cases is applicable to the appellant's application.

In John J. Maney, 35 L.D. 250 (1906), the Department held that a homestead application does not segregate a tract of land from the

December 2, 1964

public domain but, while pending, it merely protects the applicant against the intervention of a subsequently asserted adverse claim to the land by another person. This rule, however, was modified by the decisions of the Supreme Court in Payne v. Central Pac. Ry. Co., 255 U.S. 228 (1921), and Payne v. State of New Mexico, id. at 367. Circular No. 759, 48 L.D. 153 (1921). Thereafter, the Department applied

* the previously more or less well-settled rule that when a person has done all that the law requires to entitle him to an entry or to obtain a right under the public-land laws, he has, in the eye of the law, obtained that right, even though it has not been acknowledged or recognized by the Land Department. John F. Silver, 52 L.D. 499, 500 (1928);

see Charles C. Conrad, 39 L.D. 432 (1910); Solicitor's opinion, 55 I.D. 205, 210 (1935).

While the Department has long recognized the segregative effect of an allowable application to enter public lands, it does not appear that any pronouncement was made, until September 13, 1923, upon the question as to what effect the filing of an allowable application, without actual allowance, had on the right of the applicant to file another such application.

On that date, the Department issued instructions, with respect to desert land entries, that an allowable application will be treated as an entry within the meaning of the act of September 5, 1914, supra, and that if such an application is withdrawn prior to its allowance the applicant will be required, in connection with any subsequent application, to make the showing required of persons who seek to make second desert land entries. Instructions, 50 L.D. 135, 184 (1923); 43 CFR 2226.0-6(b).

The instructions did not cite any basis for treating an allowable desert land application as an entry other than that:

It appears from data submitted by *** [the Commissioner of the General Land Office] that in at least one land district certain persons are segregating public land by the filing of applications to make desert-land entries, and later withdrawing the applications when purchasers for the "relinquishments" are found. With a view to putting an end to such practices, the following administrative rule is adopted:

In view of the decisions in the cases cited above, and in other related cases, it appears that the rule set forth in the Secretary's instructions of September 13, 1923, is a logical and proper sequence to long-established doctrine. It would appear to be inconsistent to hold that all of the rights of an entry under the public land laws vest in an applicant upon the filing of his application, regardless of the delay between the filing and the allowance of the entry, but, if he should elect to

his application. The land office accepted the relinquishment and accepted another application for the same land which was subsequently allowed. Meanwhile, on March 10, 1961, Gunderson had filed a new application for homestead entry, Anchorage 053965, for the NE of the same section, stating in his application that he had not theretofore made any entry under the nonmineral public land laws. The land office took no action on the application until January 5, 1962, when it notified him that a filing in his name, Anchorage 053871, appeared on the records of the land office and that he was allowed 30 days to indicate whether this was his filing. On February 2, 1962, he acknowledged that Anchorage 053871 was his homestead application and stated that he had denied in his later application that he had made an entry under the nonmineral public land laws because his previous application had never been allowed, so that he had never had an entry. The land office then required him to file an application for second homestead entry under the act of September 5, 1914, 38 Stat. 712, 43 U.S.C. § 182 (1958), which requires a showing that he abandoned or lost his first homestead entry for reasons beyond his control.

Gunderson filed an application for second homestead entry, stating that he had made a personal examination of the land described in his first application from the air and on foot. He said, however, that he had been cautioned about revealing the location of any land available for settlement lest someone file an application while he was examining it. His examination was thus limited to what he could see in the month of February, which appeared to be 80 acres of land suitable for agricultural purposes. Shortly after his filing, he was told that most of the area was hopelessly wet with no possibility of drainage. He returned to the land with tools and found that this land was, indeed, unfit for the most part for agricultural purposes. He then searched the land office records and found that the N2 of section 28 was open for settlement. He examined the NE1⁄4 of this land and found slightly over 80 acres that would be more expensive to clear than the land described in his first application but suitable for agricultural purposes and, accordingly, filed on this land.

In a subsequent letter, he stated that he established residence on the land described in the second application on May 12, 1961; that he had constructed a dwelling house and 134 miles of access road, had commenced construction of a barn, made an agreement with a contractor for clearing and cultivating 22 acres, consulted with the Soil Conservation office on soils, crops, and prospective crop yields; and that he felt he had invested as much as he could without an allowance of the entry.

December 2, 1964

On March 1, 1963, the land office rejected Gunderson's application for second entry on the grounds that he had not abandoned or forfeited his first entry because of matters beyond his control and supported this conclusion with the observation that the Soil Conservation Service records show that 55 percent of the land in the first application is suitable for agricultural purposes and only approximately 35 percent of the land in the second application is suitable, so that the second tract would not appear to be as well adapted to agricultural use as the relinquished tract.

The Division of Appeals sustained the rejection of the application for second entry on the grounds given by the land office. It also held that the appellant's initial homestead application was rightly construed as an entry and that the appellant was properly required to make the necessary showing for a second homestead entry under the act of September 5, 1914, supra, as a condition to the allowance of his second application, citing the Department's decision in Arouni v. Vance, 48 L.D. 543 (1922).

The appeal to the Secretary presents essentially two questions, (1) whether an application for homestead entry may exhaust the applicant's right to make such entry even though the application is withdrawn or relinquished prior to any action thereon by the land office or actual entry on the land by the entryman, and (2) if so, whether the appellant has shown himself to be qualified to make a second entry under the act of September 5, 1914.

The appellant contends, in substance, that the Division of Appeals has erroneonusly applied the principle set forth in Arouni v. Vance, supra, that if an entry is allowed, the allowance dates from the date of the application. The appellant asserts that, if the entry is not allowed, the applicant has no rights whatsoever and, therefore, has not exhausted his rights under the homestead law. In the alternative, he contends that he is entitled to make a second entry, that the act of September 5, 1914, is remedial in character and should be liberally construed and applied, that an applicant is not required to demonstrate obstacles which would amount to a complete and absolute bar to holding and perfecting a former entry in order to qualify for a second entry, and that he did abandon the first entry in good faith because of matters beyond his control.

The act of September 5, 1914, supra, provides as follows:

That any person otherwise duly qualified to make entry or entries of public lands under the homestead or desert-land laws, who has heretofore made or may hereafter make entry under said laws, and who, through no fault of his own, may have lost, forfeited, or abandoned the same, or who may hereafter lose, forfeit, or abandon same, shall be entitled to the benefits of the homestead or desert-land laws as though such former entry or entries had never been made:

Provided, That such applicant shall show to the satisfaction of the Secretary of the Interior that the prior entry or entries were made in good faith, were lost, forfeited, or abandoned because of matters beyond his control, and that he has not speculated in his right nor committed a fraud or attempted fraud in connection with such prior entry or entries.

With respect to the initial question as to whether or not the appellant's application, filed on February 21, 1961, constituted an "entry" within the meaning of the public land laws, an entry has been defined as "that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country by filing his claim" in the proper office. Chotard v. Pope, 25 U.S. (12 Wheat.) 586, 588 (1827). It has been held that:

Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is executed and delivered to him, the entry is made the land is entered. Hastings and Dakota R.R. Co. v. Whitney, 132 U.S. 357, 363 (1889).

At an early date, the Department held that when land is once entered it becomes segregated from the mass of public lands, that the right of the claimant attaches upon such entry, and that a tract of land covered by a homestead entry is regarded as being reserved from appropriation in any manner by a private citizen prior to the cancellation of the entry. Thomas v. St. Joseph and Denver City R.R. Co., 2 Copp's Public Land Law 869 (1887).

The Department has long held that an application to enter land subject thereto is equivalent to an actual entry so far as the rights of the applicant are concerned and, while pending, reserves the land from other disposition. Goodale v. Olney, 12 L.D. 324 (1891); Rippy v. Snowden, 47 L.D. 321 (1920); E. Clark White v. Alfrod Roos, 55 I.D. 605 (1936). An exception to this rule occurs, and an application for public lands confers no absolute right, where the allowance of such claim is discretionary with the Secretary of the Interior, or classification of the land is a prerequisite to the allowance of an entry. Joseph E. Hatch, 55 I.D. 580 (1936); Lewis Lafon Gourley, A-28497 (November 6, 1961). The classification provisions of section 7 of the Taylor Grazing Act, as amended, 49 Stat. 1976 (1936), 43 U.S.C. § 315f (1958), are not applicable to lands in Alaska, and the allowance or disallowance of a homestead entry application in Alaska is not discretionary with the Secretary. Thus, the principle enunciated in Goodale v. Olney, supra, and succeeding cases is applicable to the appellant's application.

În John J. Maney, 35 L.D. 250 (1906), the Department held that a homestead application does not segregate a tract of land from the