Buchman;* special instructions to local officers (3 L. D.,211); instructions to Humboldt, Cal., officers (Idem, 84); to Olympia, W. Ty., officers (Idem, 133).

HOMESTEAD-ABANDONMENT.

CRONAN v. CRIBB.

The homestead settler, after beginning improvements, was led to believe (erroneously), as was generally believed, that the tract he had entered was within railroad limits, and thereupon left the land and remained absent for two years, when, on learning that it was not within railroad limits, he returned, and resumed residence and improvement, prior to initiation of the contest for abandonment; said contest is dismissed.

Secretary Teller to Commissioner McFarland, December 4, 1884.

I have considered the case of Thomas Cronan v. Robert Cribb, involving the latter's homestead entry of May 13, 1881, for the N. of SE. 1, and S. of NE. 4, of Sec. 9, T. 10, R. 25 E., Gainesville, Florida, on appeal by Cribb from your decision of December 19, 1883, holding his entry for cancellation.

This contest was commenced April 5, 1883, upon allegations of Cribb's abandonment of the tract, and the hearing was in June following. The case shows that shortly after his entry Cribb commenced to clear the land with the intention of making it his home, but upon information that it was railroad land-which supposed fact (the railroad company claiming it) was generally believed in the neighborhood-he discontinued his improvements, left the land, and sought employment elsewhere. This absence continued for about two years, when a friend addressed the local officers in his behalf, in order to ascertain its actual status. The register replied, under date of March 14, 1883, that it was "railroad reserve land," but soon thereafter corrected his statement, saying that

HENRY BUCHMAN.

[Secretary Teller, January 30, 1884; (10 C. L. O., 355).]

Buchman's pre-emption final proof was rejected by the Commissioner, though there was neither protest nor contest against his application, on a report made by the local officers that "Buchman's claim is without merit," and that for several years he had lived and carried on business in a town some miles from the land.

"In my judgment it was not only eminently proper, but their duty requires a statement for your consideration of such facts, within their personal knowledge, as in their opinion show or tend to show fraud or non-compliance with the requirements of the law, in all applications to enter public land; and, as agents of the government, they should especially protect its interests when there is no adverse claimant to elicit the facts; (see 3 L. D., 86.) . . . A pre-emptor is not forbidden from carrying on business elsewhere than on the land, provided his actual residence is thereon; but the report in question tends to show that Buchman's residence was in fact in Tucson, and not on the land, and hence its manifest propriety. . . . Ordinarily, under such circumstances, the case might be returned for additional testimony."

it was government land. Thereupon-prior to commencement of the contest-Cribb returned to it, "made a field" which he set out to orange trees, planted vegetables, erected a house, and-after commencement of the contest-moved his family therein.

1 am unwilling to hold on these facts, that Cribb's absence from the land was an abandonment under the law. He is an illiterate man, unable to read or write, and was permitted by the local officers to make his entry when they appear to have supposed that the land had been granted to the company. When advised to the contrary, Cribb immediately returned to the land, resumed his improvements, and commenced his residence thereon as soon as he could erect his house. He appears to have acted in good faith, and there is no reason to believe he would have absented himself from the land, except under this official and popular misapprehension of its status.

I do not think a wise and equitable administration of the law requires, under these circumstances, a forfeiture of his claim-especially in view of the fact that the contestant has no claim of record, and has made no improvements on the tract-and also of his homestead right, which would follow. I therefore modify your decision and dismiss the contest.

HOMESTEAD-RELINQUISHMENT; CHANGE OF CLAIM.

NICHOL v. LITTLER.

B. procured a relinquishment of A's homestead entry (W. of SE. †) in July 1879, and, without filing it, went upon the land, where he has since resided; C. began contest against A's entry in December 1883, and made pre-emption filing on the adjoining eighty (E. Į of SE. †) January 10, 1884; B. filed the relit quishment January 17, 1884, and made homestead entry of the quarter; C. made homestead application for the quarter January 23, 1884, which was rejected, and thereupon he appealed; C. also made default at the hearing in February 1884, under his contest, which was dismissed: held (1) that the filing of A's relinquishment was the result of C.'s contest, and, if the contest had been successfully prosecuted, would have given C. the preferred right of entry; (2) that C's rejected application for the land pending his contest was, in view of his subsequent default, an abandonment of the contest, which left the tract as if no contest had been commenced; (3) that C's homestead application for a tract whereon he already had a subsisting pre-emption filing was not allowable; and (4) that B's entry for the entire quarter must be held intact, subject to C's filing.

Secretary Teller to Commissioner McFarland, December 4, 1884.

I have considered the case of Robert Nichol v. Elisha Littler, involving the SE. of Sec. 24, T. 16, R. 20 W., Wa Keeney, Kansas, on appeal appeal by Nichol from your decision of March 17, 1884.

It appears that December 13, 1883, Robert Nichol instituted a contest against the homestead entry of one Thompson, made April 18, 1879, upon the W. of said SE. 4, that hearing of the same was set for February 14 following, but that, Nichol not appearing, the contest was

dismissed for want of prosecution. It also appears that William Nichol, father of Robert, made homestead entry of the E. of said SE. on April 8, 1882, and that his relinquishment thereof, dated December 29, 1883, was filed in the local office January 10, 1884, by Robert, who in-. tended by the two proceedings to enter the whole SE. upon cancellation of Thompson's entry; and to this end, he filed upon that day a preemption declaratory statement upon said E. 2, in order to secure the same to himself pending his contest with Thompson for the W.. It also appears that July 29, 1879, Littler procured from Thompson a relinquishment of his entry upon said W., upon which tract he has since resided and made improvements. He retained this relinquishment, not filing it until January 17, 1884, at which time he was allowed to make homestead entry for the whole S. E. 4, and at which date it is presumed (but does not appear) Thompson's entry was canceled. Prior to this time he had no claim of record.

Nichol applied January 23, 1884, to enter the whole SE. under the homestead law, but his application was rejected by reason of the prior entry of Littler.

Your decision held, on these facts, that the procuring and filing of Thompson's relinquishment by Littler was an independent transaction. not resulting from Nichol's contest; that, consequently, Nichol did not acquire a preference right to enter said W. under the Act of May 14, 1880; and that Littler's entry for the whole SE. should stand subject to Nichol's pre-emption claim to said E. .

I concur in your ruling that this procuring of Thompson's relinquishment did not result from the contest, but I think its filing did so result. Littler retained it in his own possession for three and one-half years, not filing it until after commencement of the contest. It did not take legal effect and change the status of the tract until placed on the records, and as it does not appear that Nichol knew of it at the date of his contest, (the record then showing Thompson's entry and claim), he had reason to suppose they were still maintained, and that a contest was necessary for their extinguishment. I find no reason to think the relinquishment would have been filed when it was except for this contest, and consequently that the results flowing from its filing would inure to the benefit of Nichol. If any one, Littler should suffer from his laches in not before filing the relinquishment, and not Nichol, who was misled into the expense of a contest by such laches. It appears, however, that prior to the day named for hearing of the contest (February 14, 1883) Nichol, January 23, 1883, applied to enter the whole SE. under the homestead law, which, in view also of his failure to prosecute his contest and his default thereat, must be held to be an abandonment thereof; and such abandonment would relate back to its initiation, leaving the status of the tract as if no contest had been commenced. Nichol has no right, therefore, by reason of the contest, and the claim of both parties must be determined upon other considerations.

7747 LAND--15

Nichol made a pre-emption filing upon said E. § on January 10, 1884, alleging settlement the same day, and also on January 23 applied to make homestead entry upon the whole SE. 4, his filing being still in force. This is not allowable. One can not maintain a claim for the same tract at the same time, under the two laws. For this reason his homestead claim to said E. must be rejected and his right thereto rest solely upon his filing; and as Littler's homestead entry for the W. was prior to Nichol's homestead application for the same tract, and so far as appears was a valid entry, his claim to this tract (without reference to the relinquishment) must be held the superior one. I affirm your decision directing his entry for the whole SE. to stand intact, subject nevertheless to the rights of Nichol under his filing as respects the E. of said SE. 4.

HOMESTEAD-NOTICE OF FINAL PROOF.

ST. PAUL, MINN. & MAN. R. R. Co. v. COWLES.

The usual statutory notice by publication of intention to make final (homestead) proof, by a settler within the indemnity limits of a railroad, is notice to the company, as to the public at large; the failure of the company to appear and protest, at the date set for final proof, bars subsequent objection to the Commissioner's action.

Secretary Teller to Commissioner McFarland, December 4, 1884.

I have considered the case of the St. Paul, Minneapolis & Manitoba Railway Company v. Orren M. Cowles, involving the right to the S. of S. W. 4 of Sec. 31, T. 137, R. 42, Crookston, Minnesota, on appeal by the company from your decision of December 14, 1883, awarding the land to Cowles.

The tract in question is within the twenty-mile (indemnity) limits of said railway, withdrawal for the benefit of which became effective February 15, 1872. One Antonio Dijarley filed declaratory statement covering the tract in question, July 23, 1872, alleging settlement April 15, 1870. On July 9, 1877, said Cowles made homestead entry of the land, and in due time applied to make final proof. Your office, by letter of March 29, 1883, directed the local officers to "permit Cowles to make final proof on his entry, after due notice by publication, of which all parties claiming adversely will be required to take notice." In pursuance of the above instructions Cowles gave, on April 18, 1883, the proper notice, by newspaper publication, of his intention to make final proof June 1, 1883. On the last-named date he appeared, with his witnesses, and submitted his proof, which was in all respects satisfactory to your office. No one appeared to assert an adverse interest. Accord ingly, by letter of December 14, 1883, you approved his entry for patent, and declared the case closed.

From this decision the company appeals, alleging that the Commissioner erred, first, "in permitting Cowles to make final proof on his entry after the usual notice by publication;" second, "in not notifying the railway company, or its attorney, of the application of Cowles; " third, "in holding that, as there was no appearance by any one asserting an adverse interest to the land in question, at the time when Cowles made his final proof, his entry is approved for patent"; fourth, "in holding that the land was subject under the homestead law"; and, fifth, "in not holding that the land was reserved from settlement or entry until the grant to the appellant company should be satisfied."

Referring to the first three assignments of error, it seems to me sufficient to say that, the entryman having done all the law requires in the matter of giving notification of his intention to make final proof, (see 20 Stat., 472), his rights-whatever they may be-cannot be prejudiced because of his not giving to any party special notice not required by law. The fact that, in case it should appear that the pre-emption claim had not attached at the date of the withdrawal, the railroad might eventually find insufficient land within its granted limits to satisfy the provisions of its grant, and that in such case, in order to make up the deficiency by selection of lands from within its indemnity limits, it might possibly, at some indefinite period in the future, desire to select this particular piece of land, was too vague and remote a contingent interest to entitle it to special notice of the pending hearing between the United States and the pre-emptor to determine, as between themselves, their respective rights on the 15th of February, 1872. sonably might every separate creditor-and indeed every individual who at some future period might become a creditor-of the pre-emptor demand special notification on the ground of possible future interest in the case; since if the tract were adjudged to belong to the United States it might reduce the amount of the pre-emptor's property to such an extent as to interfere with their obtaining from him the payment of his indebtedness to them. I can discover no reason why the general notice by newspaper publication, which is by the statute considered sufficient for the public at large, should not be considered sufficient also for a railroad company. In regard to the last two assignments of error, it will be seen that they come under my ruling in the case of Prest v. Nor. Pac. R. R. Co., made May 23 last, (2 L. D., 506). The tract in question having been, at the date of the withdrawal for the benefit of the company, embarrassed by a valid, subsisting pre-emption claim, upon the subsequent extinction of such claim the land reverted to the United States, and became again subject to entry by the first legal applicant.

I therefore affirm your decision approving Cowle's entry for patent.