Roberts

The state of California on May 16, 1885, upon the application of the plaintiff, filed with the register of the proper United States land-office its selection of the land described in the complaint in lieu of a portion of a certain thirty-sixth section. This selection was approved by the register of the United States land-office, and on July 25,1885, the state issued to the plaintiff a certificate of purchase of said land. On July 16, 1885, the commissioner of the general land-office canceled the state’s selection, giving as his reason for such action that the land in lieu of which the selection was made had already served as the basis of a prior selection by the state, and on the 23d of the same month the state was notified of such cancellation. No appeal was ever taken from this ruling of the commissioner. On July 23, 1886, the defendant Gebhart was allowed to enter the same land as a homestead entry under the laws of the United States, and on September 22, 1887, he was permitted to commute his homestead entry and to make final proof and payment for the land.

It further appears that in September, 1888, the commissioner of the general land-office discovered that the order of July…