privilege should be exercised is prescribed by the act. The language employed does not purport to transfer to and vest in the State the then present title to any lands of the designated class belonging to the United States, within the State, and there is no means prescribed in the act whereby the lands authorized to be selected could be ascertained until such authority was exercised and such selection was in fact made.

Counsel for appellant cite, among other authorities, the case of Bardon . Northern Pacific Railroad (145 U. S., 535), and also Kansas Pacific Railway Co. . Dunmeyer (113 U. S., 629), in support of their contention herein before mentioned, but an examination of the authorities. cited will show that they do not justify the construction of the act of June 20, 1894, herein contended for by appellant. The case of Bardon e. Northern Pacific Railroad, supra, arose under the act of July 2, 1864 (13 Stat., 365). The land involved was within the place limits of the grant to the Northern Pacific Railroad Company, and at date of the grant was covered by a preemption entry, which was subsequently canceled prior to definite location of the road, and the court held that the land did not pass to the railroad company under its grant, but after cancellation of the preemption entry, remained public lands of the United States.

In the case of Kansas Pacific Railway Co. e. Dunmeyer, supra, the land involved was within the place limits of the grant to the Union Pacific Railroad Company, act of July 1, 1862 (12 Stat., 489), and a homestead entry was of record thereon at date of definite location of the road, which entry was subsequently canceled, the claim having been abandoned, and it was held that notwithstanding the subsequent abandonment of the homestead claim and cancellation of the entry, the land involved was excepted from the grant to the railroad company. Both in the act of July 2, 1864, supra, and in the act of July 1, 1862, supra, Congress used the pertinent language, found in the granting clause of said acts, respectively, "that there be, and hereby is, granted," importing a present grant, and both of said acts contained an express reservation of lands to which preemption or homestead claims had attached at date of definite location of the roads. The cases cited, therefore, involved acts containing language identical with that usually employed in railroad grants, and which, as hereinbefore mentioned, are construed to be grants in præsenti, but which language is materially different from that which Congress deemed proper to use in the act of June 20, 1894. It must be presumed that Congress, at the time of the passage of the act under consideration, had knowledge of the construction which the courts had placed upon the language usually employed in creating grants to aid in the construction of railroads and other similar grants in prosenti, and the fact that materially different language was used in the act of 1894 evidenced a legis

lative purpose to make the provisions of the act applicable to any lands of the United States, within the State, which, at the date of the exercise by the governor of the authority therein conferred, were of the descriptive class designated therein. The right granted by this act is akin to the right to indemnity in lieu of disposals prior to definite location of the road, usually contained in grants of public lands to aid in the construction of railroads, under which no title passes until selection is made in the manner prescribed in the act making the grant. Oregon and California R. R. Co. (28 L. D., 363); Kansas Pacific Railroad v. Atchison Railroad (112 U. S., 414. 421): St. Paul Railroad e. Winona Railroad (ibid., 720); Barney . Winona and St. Peter Railroad (117 U. S., 228, 232); United States v. Missouri, Kansas and Texas Railway Co. (141 U. S., 358).

In view of the foregoing considerations and authorities, therefore, it is apparent that the act of June 20, 1894, supra, was not a grant in præsenti, vesting in the State a then present title to any lands of the United States, within said State, of the designated class, but that title thereto only vested in and accrued to the State thereunder upon selection and certification, legally exercised as therein authorized, and subsequently approved; and inasmuch as no rights to or interest in any lands of the designated class could be acquired by the State, under said act, until the same were selected as therein authorized, the Department is unable to see anything either in the letter or apparent purposes of the statute which would render its provisions inapplicable to any lands of the United States, within said State, which, at date of selection, were of the class designated in said act. The construction heretofore placed upon said act by the Department, therefore, was not erroneous and will be adhered to, and it follows that the land in controversy was subject to the State's selection, if, at date of such selection, it was of the descriptive class designated in said act.

The remaining question, then, for determination is, whether said. land, on May 10, 1895, the date of the State's selection, was "unoccupied and uninhabited" within the meaning of said act of June 20, 1894, supra.

The testimony submitted, on behalf of Whittington, at the hearing shows that he was, at date of hearing, an unmarried man about 26 years of age; that he deadened the trees upon about one and a half acres of said land in 1884, when he was twelve or thirteen years of age, and that he constructed out of pine timber a small house on the land in 1893; that at the date of the hearing his improvements were worth fifty or seventy-five dollars; and that at such time he had his bed and cooking utensils upon the land and slept there when not away at work with his team. The testimony on behalf of the State shows that, in May, 1895, there was no roof on or floor in the house, which the State's witnesses designate as a "pen," unfit for human habitation;

that the house or pen was first covered with a quilt; that a roof was put on it in 1897; that subsequently the roof was blown off and thereafter the house remained in that condition; and that Whittington never occupied or resided upon the land, but lived with his father not far distant from the land in question. It will be seen that the testimony submitted by Whittington is very meagre. In addition to the foregoing he testified that the land in question has been his "homestead" since and including May, 1895, and that he did not apply to make entry thereof until 1897 because he was discouraged, but no testimony in rebuttal of the conditions disclosed by the testimony on behalf of the State was offered. It is evident that the land in question, at date of the State's selection, was not "inhabited" by Whittington, and the nature, character, and extent of his improvements thereon at such time were insufficient to constitute "occupancy" thereof within the meaning of that term as ordinarily used and applied. No part of the land was ever enclosed or cultivated by Whittington, and on May 10, 1895, he was neither in possession nor in the actual use and enjoyment of any part thereof for any of the ordinary farm purposes. In the case of Frank Johnson (28 L. D., 537) it was held by the Department that

An occupant of a tract of land, as the word is ordinarily used, is one who has the "use and possession" thereof, whether he resides upon it or not, and Congress so used the word in the act of January 18, 1897.

This definition seems applicable to the act under consideration, and so applying it, the land in question was, at the date of the State's selection, "unoccupied and uninhabited" within the meaning of the act of June 20, 1894, supra.

In this connection, it is contended by counsel for the State that the words "unoccupied and uninhabited," found in the act of 1894, supra, and the provisions of the act of March 2, 1895, supra, according to bona fide settlers a preference right of entry of the lands restored by the latter act, should be construed in pari materia, and that when so construed, residence upon the land is essential in order to defeat the State's selection.

This contention is unsound. The preference right provision of the act of 1895 is as follows:

A preference right of entry for a period of six months from the date of this act shall be given all bona fide settlers who are qualified to enter under the homestead law and have made improvements and are now residing upon any agricultural lands in said reservations and for a period of six months from the date of settlement when that shall occur after the date of this act.

The preference right of entry accorded bona fide settlers on said lands at date of the passage of said act applied only to qualified homesteaders who were then actually residing upon said lands, to the exclusion of a home elsewhere (Carillo . Romero et al., 28 L. D., 2)

Whittington, however, could not in any event avail himself of the preference right accorded by said act because he failed to assert any claim to the land in question by filing an application to enter within the period prescribed therein. (Diaz v. Glover, 27 L. D., 144.) But because Whittington was not residing upon the land at date of the passage of said act, and failed to file an application to enter within the statutory period, it does not necessarily follow that the land was of the descriptive class subject to the State's selection. The designated lands authorized to be selected by the State are defined by the language of the act of June 20, 1894, supra, and not by the provisions of the act of March 2, 1895. Both counsel for appellant and the State complain of the rule applied by your office, in consideration of the case, touching the burden of proof. The Department is unable to find in your decision any direct expression in this regard.

It devolved upon the State, upon selection made, to show affirmatively in the first instance that the lands so selected were of the character designated in the act of 1894, supra, but such showing having been made according to the requirements of your office and the Department, and such selection having been approved, it was thereafter incumbent upon the party attacking the validity of the approved selection to assume the burden of proof. Johns v. Marsh et al. (15 L. D., 196); Willis v. Parker (8 L. D., 623).

There being no error apparent in the record, your decision is affirmed.

HOMESTEAD ENTRY-QUALIFICATIONS—ACT OF JUNE 6, 1900.

BOLIN. MCCULLY.

Under the act of June 6, 1900, amending section three of the act of May 14, 1880, an unmarried woman who settles upon, improves, and establishes and maintains a bona fide residence upon a tract of public land, with the intention of obtaining title thereto under the homestead law, and thereafter marries, is not by her marriage disqualified from making entry for said tract.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) July 18, 1900.

(V. B.)

Joseph B. McCully has made application for a rehearing in the case of Amanda Bolin against him, wherein, by departmental decision of March 29, 1900 (unreported), was affirmed that of your office, holding for cancellation the homestead entry of said McCully for the SW. 4 of Sec. 21, T. 33 N., R. 2 E., Lewiston, Idaho, and awarding to the contestant the superior right to said land.

As a basis for said rehearing McCully alleges that Amanda Bolin, on February 5, 1900, married John Bolin, who had theretofore made homestead entry for another tract of land, which he thereafter relin

quished for a valuable consideration, thereby, it is alleged, exhausting his homestead right. Accompanying said petition is filed what purports to be a certified copy of the marriage license and marriage certificate of said Amanda Bolin and John Bolin, dated February 5, 1900. In the answer of Mrs. Bolin to the petition the marriage to John Bolin is not denied, but it is insisted that inasmuch as the marriage took place after her application to enter the tract in controversy was made, the subsequent marriage cannot deprive her of the right she acquired by her prior settlement and application, and further, that the alleged disqualification of her husband, if it exists, can have no effect upon her rights in the premises.

Without entering upon a discussion of the questions thus presented, the application for a rehearing must be denied.

Since said application was filed, Congress passed an act, June 6, 1900 (Public-193), amending section 3 of the act of May 14, 1880 (21 Stat., 140), as follows:

Where an unmarried woman who has heretofore settled, or may hereafter settle, upon a tract of public land, improved, established, and maintained a bona fide residence thereon, with the intention of appropriating the same for a home, subject to the homestead law, and has married, or shall hereafter marry, before making entry of said land, or before making application to enter said land, she shall not on account of her marriage forfeit her right to make entry and receive patent for the land: Provided, That she does not abandon her residence on said land, and is otherwise qualified to make homestead entry: Provided further, That the man whom she marries is not, at the time of their marriage, claiming a separate tract of land under the homestead law.

It appears from the decisions in the case that Mrs. Bolin, a widow, with seven children, settled upon the tract in controversy, then vacant and unsurveyed, in December, 1895, and erected a small house; in March thereafter she established residence, with her family, therein, and commenced to enclose and improve the tract, posting notices stating that she had taken the land as a home; that she remained upon the tract until she and her hired help were driven away by the threats and intimidating conduct of McCully, who subsequently made homestead entry of the tract, the day the same became subject to entry, and she forthwith filed contest against his entry. The Department declared that her

settlement was clearly prior to that of McCully, and her right superior. Her failure to maintain residence on the tract, in view of McCully's threats and conduct, was excusable.

In view of the finding of facts and the ruling of the Department, it is apparent that Mrs. Bolin comes within the description and purview of the cited act. As an unmarried woman she settled upon a tract of public land, improved, established and maintained (in contemplation of law) a bona fide residence thereon, with the intention of obtaining title thereto under, and by compliance with the requirements of, the