7,1859, been certified to the State of Louisiana under the grant of June 3, 1856 (11 Stat., 18), to aid in the construction of the road from New Orleans by Opelousas to the State of Texas, which was forfeited by the act of July 14, 1870 (16 Stat., 277), and on February 24, 1888, the State of Louisiana made a formal reconveyance of said lands to the United States.

The forfeiture of said grant restored said lands to the public domain, without the formal act of conveyance by the State, and hence the right that had been acquired by said certification was no bar to the selection of said tract by the New Orleans Pacific Railway Company December 28, 1883. New Orleans Pacific Ry. Co., 14 L. D., 321; New Orleans Pacific Ry. Co. v. Saucier, 14 L. D., 328.

John P. Scanlon claims the right to enter this tract as assignee of his mother, Mary Lynch, who was the widow of M. C. Scanlon, under the proviso to the 2d section of the act of February 8, 1887, supra. With his application he filed a copy of a deed from the said Mary Lynch, conveying to him all the right, title and interest of her deceased husband, including the improvements thereon, accompanied by certified copies of affidavits to show settlement and improvements upon the tract prior to selection by the railroad company.

As John P. Scanlon claims the right to enter said tract as assignee of M. C. Scanlon, he can have no better right than his assignor, and it is necessary to show that M. C. Scanlon was entitled to the benefit of the proviso to the 2d section of the act of February 8, 1887.

This tract of land was in controversy before the Department in the case of M. C. Scanlon v. New Orleans Pacific Railway Company, which involved the right of M. C. Scanlon to enter said tract under the provisions of said act of February 8, 1887, and was decided adversely to Scanlon February 3, 1893 (unreported). A motion for review of said decision was denied September 28, 1895.

In that decision every question presented by this application, so far as it involved the right of M. C. Scanlon to enter said tract under the proviso to the 2d section of the act of February 8, 1887, was disposed of.

When M. C. Scanlon tendered his application to make timber culture entry of said tract, he filed in support of it an affidavit, alleging that he had the entire tract under fence and more than one hundred acres under cultivation. Upon these allegations a hearing was ordered, but the Department held that there is nothing to show that Scanlon, or any one through whom he claims, was in possession of this land claiming the same under the settlement laws at the time of the company's selection.

In support of the motion for review and application for a rehearing, affidavits were filed, to the effect that Scanlon was residing on the adjoining land in 1876, and during that year had constructed a ditch, which drained the land in controversy; that in 1887 he fenced a part

of the land with his adjoining land, and in 1889 included the whole tract in his fence, which tract he afterwards cultivated.

It was also shown that one McCoy claimed part of the land which he fenced and improved, and afterwards sold to the wife of M. C. Scanlon. This application is supported alone by these affidavits, and it is practically an application to have the case readjudicated upon the same testimony to determine his right as assignee that was before the Department in the case of M. C. Scanlon, when it was held that the proviso to section 2 clearly defines the character of persons in whose favor the exception is made, and that the affidavits filed in support of the motion for rehearing did not show that Scanlon or any one through whom he claims was in possession of this land claiming the same under the settlement laws when the company's selection was made.

The act of April 14, 1896, 29 Stat., 91, authorizing the New Orleans Pacific Railway Company to relinquish lands within its indemnity limits in favor of settlers, and to select other lands in lieu thereof, is a privilege conferred upon the company which it may exercise at its pleasure, and confers no authority upon the Department to dispose of such lands to settlers without the consent of the company.

As J. P. Scanlon can have no better right than his assignor, the decision of your office rejecting his application is affirmed.

CIRCULAR.

EXPORT OF PUBLIC TIMBER FROM WESTERN WYOMING INTO IDAHO.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., July 23, 1898. 1. The act of Congress, approved July 1, 1898, entitled "An Act making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and ninety-nine, and for other purposes," provides as follows: "That section eight of an Act entitled 'An Act to repeal the timber culture laws, and for other purposes,' approved March third, eighteen hundred and ninety-one, be, and the same is hereby, amended as follows: That it shall be lawful for the Secretary of the Interior, to grant permits, under the provisions of the eighth section of the act of March third, eighteen hundred and ninety-one, to citizens of Idaho and Wyoming to cut timber in the State of Wyoming west of the continental divide, on the Snake River and its tributaries to the boundary line of Idaho for agricultural, mining, or other domestic purposes, and to remove the timber so cut to the State of Idaho.

2. Under the authority vested in the Secretary of the Interior by the above cited act of July 1, 1898, the following amendment to the Rules and

Regulations issued March 17, 1898 (26 L. D., 399), under the said act of March 3, 1891 (26 Stat., 1093), is hereby prescribed and promulgated:

The restriction contained in said Rules and Regulations of March 17, 1898, confining the use of timber cut thereunder to the State in which the same is cut, is so far modified as to allow citizens of Idaho and Wyoming to cut timber in the State of Wyoming west of the continental divide, on the Snake River and its tributaries to the boundary line of Idaho for agricultural, mining, or other domestic purposes, and to remove the timber so cut to the State of Idaho.

BINGER HERMANN,

Approved, July 23, 1898,

THOS. RYAN,

Acting Secretary.

Commissioner.

CESAR v. SALES.

Motion for re-review denied by Secretary Bliss July 26, 1898. See departmental decisions of February 12, 1898, 26 L. D., 190, and 604.

OKLAHOMA LANDS-QUALIFICATIONS OF ENTRYMAN.
BYERS v. ALLISON.

One who at the hour of opening is within the Territory, engaged by authority in the survey of a townsite, is disqualified by such presence from making the run on the day of opening, but not necessarily disqualified from thereafter entering lands in said Territory, if by such presence therein he secured no advantage over others.

Secretary Bliss to the Commissioner of the General Land Office, July 26, (W. V.D.) 1898.

(L. L. B.)

Lots 3 and 4 and the S. of the NW. 1, Sec. 3, T. 14 N., R. 4 E., Guthrie, Oklahoma Territory, were opened to settlement, by the procla mation of the President, at noon of September 22, 1891. Sometime afterward (date not given in your office decision) James H. Hamilton made homestead entry therefor.

March 12, 1892, the defendant herein, William H. Allison, bought Hamilton's relinquishment for $450, and Hamilton's entry was canceled and Allison made entry of the same.

April 25, 1895, Charles A. Byers brought contest against said entry of Allison, charging that he.was disqualified to make entry for the reason that he was in the territory opened to settlement at the hour of opening, in violation of the proclamation.

The case was set for hearing October 23, 1895, and was that day submitted upon an agreed statement of facts, in substance following:

That on the day of the opening Allison was assisting, by commission

of the governor of Oklahoma, in the survey of the townsite of Chandler, which was not concluded until the 27th of September, 1891; that he did not make the race for land nor any attempt, on the day of the opening, to secure a claim, and never was on the land in controversy until sometime in February, 1892, a short time prior to buying Hamilton's relinquishment; that he gained no advantage by his presence in the territory, and that there was no collusion between him and Hamilton regarding said land. It was also agreed that his improvements were worth about $1100.

The above statement, except as to his improvements, was submitted in a supplemental affidavit filed with his entry papers in 1892. Upon these facts the local officers sustained the contest and held Allison disqualified to make entry.

Allison appealed, and by your office decision of July 3, 1896, the action of the local office was reversed.

September 19, 1896, Byers moved a review of your said office deci sion, which motion was sustained by decision of your office of November 11, 1896, from which decision on review Allison has appealed to the Department.

This case is controlled by that of Hershey v. Bickford et al., 23 L. D., 522, wherein it is said (syllabus):

A person who at the hour of opening Oklahoma lands to settlement is rightfully on reserved land within said Territory is by reason of such presence disqualified from making the run on the day of opening, but is not necessarily disqualified from thereafter making entry of lands in said Territory, if by his presence therein he secured no advantage over others.

The decision appealed from is reversed, and the contest of Byers is dismissed.

JOHN S. SMITH.

Motion for review of departmental decision of May 10, 1898, 26 L. D., 637, denied by Secretary Bliss, July 27, 1898.

PRIVATE CLAIM-SMALL HOLDING-HOMESTEAD.

CANTREL v. BURRUSS.

A homestead entry made when the land embraced therein is covered by a "small holding" claim, duly filed with the surveyor general and on which proof is subsequently submitted, is invalid and must be canceled.

Secretary Bliss to the Commissioner of the General Land Office, July 27, (W. V. D.) (F. C. D.)

1898.

Elie A. Cantrel has appealed from the decision of your office in the case of Elie A. Cantrel v. Frederick Burruss, wherein your office

reversed the decision of the local office and held for cancellation Cantrel's homestead entry, made May 16, 1895, for lot 4 and the SE. 4 of the SW. of Sec. 7, T. 9 N., R. 3 E., Santa Fe, New Mexico, land district, in so far as the same conflicts with the "small holding" claim of Frederick Burruss.

On May 16, 1895, the same day Cantrel made his said homestead entry, he relinquished his timber-culture entry, made January 26, 1887, for the same tracts.

It appears from the record that on March 2, 1893, Frederick Burruss filed his "small holding" claim, No. 1257, with the United States surveyor-general for New Mexico, at Santa Fe, New Mexico, under the provisions of sections 17 and 18 of the act of March 3, 1891 (26 Stat., 854), entitled, "An Act to establish a Court of Private Land Claims, and to provide for the settlement of private land claims in certain States and Territories," as amended by the act of February 21, 1893 (27 Stat., 470); that on February 4, 1896, Burruss filed his proof on his said claim, which proof was "suspended on protest of Elie A. Cantrel, filed January 10, 1896"; and that on June 3, 1896, the said proof was by the local officers rejected as to that part in S. SW. † and S. § SE. 1, Sec. 7, and S. SW. 4, Sec. 8, as existing entries covered those tracts at date of act March 3, 1891, and land therein was not subject to appropriation as a small holding claim.

Your office, on appeal, found that patents had issued for the land in said section eight, embraced in the said claim of Burruss, and therefore, as to that land, your office was without jurisdiction; and from that holding Burruss has not appealed.

As to that part of the said claim of Burruss that conflicts with the homestead entry, your office held that when Cantrel

relinquished his timber-culture entry he lost all rights thereunder and initiated a new claim under the homestead law. At that date the claim of Mr. Burruss had been filed with the surveyor-general, as provided by law, a survey of the tract claimed had been duly made and approved, and the lands covered thereby were not subject to entry.

The protest of Cantrel was then dismissed.

The plat of the township embracing the land in controversy was filed in July, 1881. The survey of Burruss' claim was made in 1894.

Said section seventeen of said act of March 3, 1891, was amended by the act of February 21, 1893 (27 Stat., 470), so as to read as follows: That in the case of townships heretofore surveyed in the Territories of New Mexico, Arizona, and Utah, and the States of Colorado, Nevada, and Wyoming, all persons who, or whose ancestors, grantors, or their lawful successors in title or possession, became citizens of the United States by reason of the treaty of Guadalupe Hidalgo, or the terms of the Gadsden purchase, and who have been in the actual continuous adverse possession of tracts, not to exceed one hundred and sixty acres each, for twenty years next preceding such survey, shall be entitled, upon making proof of such facts to the satisfaction of the register and receiver of the proper land district, and of the Commissioner of the General Land Office, upon such investigation as is provided for in section sixteen of this act, to enter without payment of purchase