
    ALBERT J. TICTIN v. THE UNITED STATES.
    [No. 21287.
    Decided December 3, 1900.]
    
      On the Proofs.
    
    The benefits of the homestead law (Rev. Stat., § 2290) are restricted to 180 acres of land. Where a subdivision is platted as a quarter section, but does in fact contain an excess of more than 180 acres, it has been the custom of the Land Office to allow the entry under the homestead act, but to make the entryman pay the statutory price per acre for the excess.' In this case the entryman abandoned the entry without requesting the Land Office to reduce the acreage.
    I. The custom of the Land Office in allowing an entry under the Homestead Act (Rev. Stat., §2290) for only 180 acres and making the entrymen pay for an excess in a subdivision platted as a quarter section, but in fact containing more, is not an erroneous practice; and a payment made voluntarily for the excess is not an erroneous payment.
    II. 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.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. Albert <T. Tictin, the claimant in this cause, heretofore, to wit, on the 2d day of May, 1893, made entry at Duluth, Minn., of the fractional NW. i of sec.'18, T. 47 N., R. 17 W., 4 R. M., and received receipts Nos. 8257 and 12305. The latter was the receipt of the receiver for $18 percentage fees, under section 2290 of the Revised Statutes, and the former was the receipt of the receiver for the amount of land embraced in the entry in excess of the area which could be entered under the homestead act. The sum charged for this excess of the area which could be entered under the homestead act was $93.60, being $2.50 per acre for the amount of said excess of land, to wit, 37.44 acres, said land being within the place limits of a railway grant and governed as to price by section 2357 of the Revised Statutes.
    II. On April 29,1895, the claimant voluntarily relinquished and abandoned this entry without any request or requirement so to do, or without any request or requirement to reduce the acreage therof. The tract of land entered was platted as a quarter section, and it has been the uniform custom of the Interior Department to enter land as a technical quarter section under the provisions of the homestead law regardless of its actual area. The entry was properly allowed and would have been confirmed if the claimant had retained the land and complied with the law.
    
      Mr. Harvey Spalding for the claimant:
    There is a supreme obligation on the part of the United States to repay to the applicant the $91.73 for which he has received no consideration whatever. The United States Government can not take from citizens money in this way because to do so is to violate the law. If an illegal act like this is to be permitted, then the laws by which the rights of those who enter the public lands are fixed are without meaning or force. If the courts permit money to be taken in this way in excess of the amount prescribed by law, then there is no longer any control of transactions as to public lands remaining in Congress, and the officers who are charged with the supreme duty of the faithful execution of these laws will have it in their power to exercise supreme control regardless of the law.
    There is a plain contract obligation on the part of the United States to return to the claimant $91.73, for the plain-reason that there was no authority of law requiring him to pay that amount to the United States.
    
      
      Mr. Geoi'ge II. Gorman (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Howry, J.,

delivered the opinion of the court:

Plaintiff brings suit for the recovery of an amount of money paid by him in excess of a sum which it is claimed the officers of the United States were entitled to charge on the making of an entry by the claimant at Duluth of certain lands in the State of Minnesota, under circumstances which show that plaintiff made entry of the land and received two receipts therefor (Nos. 8257 and 12305). One was .the'receipt of the receiver for $18, percentage fees, under section 2290 of the Revised Statutes, and the other was his receipt for the amount of land embraced in the entiy in excess of the area which could be entered under the homestead act. The sum charged for this excessive area was $93.60, being $2.50 per acre for the amount of the excess land, to wit, 37.44 acres — said land being within the place limits of a railway grant and governed as to price by section 2357 of the Revised Statutes.

On April 29, 1895, the claimant voluntarily relinquished and abandoned this entry without any request or requirement so to do, or without any request or requirement to reduce the acreage thereof. The cause of action seems to be predicated upon the theory that it was an ei’roneous charge upon the entryman to cause him to pay for anything platted as a quarter section in excess of the 160 acres beyond percentage fees. The land having reverted to the United States, the plaintiff contends that there should be refunded to him the amount of the erroneous charge, and that, under the act of June 16, 1880 (21 Stat., 237), the Secretary of the Interior was bound to refund upon the relinquishment of the entry the price of the land in excess of that which could be entered by law.

In the subdivisions of public lands in quarter sections it often happens that there are more than 160 acres in the subdivision. It has been the custom and practice of the Land Office to permit the entry of homesteads in excess of the 160 acres which could be entered by law where the subdivision was in excess of the ordinary quarter section upon the payment of the homestead price for the excess area. At the túne of the entry made by the plaintiff in this matter it must be presumed that he knew the practice of the Government. He made no protest apparently.

The tract of land entered was platted as a quarter section, and it has been the uniform custom to enter a technical quarter section under the provisions of the homestead law, regardless of its actual area. (In re Elson, 6 Land Dec., 797; In re Burns, 7 Ib., 20; In re Tingley, 8 Ib., 205; In re Douglas, 10 Ib., 116; Wood v. Bick, 18 Ib., 520.) The entry was therefore properly allowed and would have been confirmed if the claimant had retained the land and complied with the law; and being capable of being confirmed, the entryman would have been entitled to a patent had he desired that a patent issue. We do not think that this custom of the Land Office was erroneous, and must hold that the payment made by plaintiff for the excess area of land was not an erroneous payment.

When the plaintiff undertook to acquire the land the obligation was not unilateral in. character, but reciprocal on the part of the plaintiff as well as upon the part of the Government. It was not within the discretion of plaintiff to enter the land and at pleasure relinquish the land without completing the purchase. In this respect the matter must be treated between the Government and the citizen precisely as if the transaction had arisen between private individuals bargaining to sell and purchase land.

It is true the Government has the land and also the money which the plaintiff originally paid for the entry. But plaintiff could not at his discretion rescind the transaction because he did not care to complete the purchase. W here land properly entered has been canceled by the failure of the entryman to complete the purchase, upon a voluntary relinquishment of his rights no cause of action exists for the sum paid to initiate the entry. (United States v. Ingram, 172 U. S. R., 327.)

It would be establishing a wrong principle and one fraught with great inconvenience and injustice to the Government to hold that the homestead entry could be made and abandoned without reason before completing the purchase, and then permit the entryman to reclaim from the Government the purchase money. This is true with respect to any amount paid for an excess area of land, as for any payment made on land within, the limits fixed by law for homestead entries. •

The petition is dismissed.  