the persons with whom it contracts. It can not undertake to follow the transfers of the grantees, and to settle questions that may arise upon such transfers, but must leave such matters for determination in the courts.

Your decision in these cases is therefore affirmed.

PROCEEDINGS ON SPECIAL AGENT'S REPORT-TRANSFEREE.

JOHN A. MCKAY.

On the application of a transferee, who alleges want of notice of a decision cancelling the entry, a hearing may be ordered to determine whether the entryman did in fact comply with the law, although the transfer was not of record, and the entrymau had due notice of the proceedings against the entry.

In proceeding against an entry the burden of proof is upon the government.

A homestead entry of land chiefly valuable for the timber thereon should be carefully scrutinized in order to ascertain whether the entryman is in fact a bona fide settler.

First Assistant Secretary Muldrow to Commissioner Stockslager, April 3, 1889.

I have considered the appeal of John A. McKay, transferee of Charles V. Marsh, from your office decision of December 20, 1887, denying his application for a hearing to determine the validity of the commuted homestead cash entry made by said Marsh for the SE. of section 11, T. 11 N., R. 1 E., Humboldt land district, California.

The entry was made July 8, 1884, and, after proper publication of notice, commutation proof was offered April 7, 1885, and cash certificate issued the same day.

May 18. 1886, special agent Bergen visited the tract and reported that it was very rough, mountainous land, densely covered with redwood timber and unfit for cultivation; that final certificate issued April 7, 1885, and that there was no transfer of record; that there were no improvements whatsoever excepting a shanty ten by ten, without floor, fire-place or window, with brush growing inside, no fencing and no land in cultivation; that the entryman never resided on the land and that the fraud was willful. He recommended the cancellation of the entry. The report is accompanied by the affidavits of Edward Dickey aud James B. Watkins. The former swears—

"that to his own personal knowledge the said Marsh never lived on said claim" and the latter that the said Marsh does not now and never did live in said house or on said land excepting while he was building said shanty and that the said land is heavily timbered with redwood and that it would cost five hundred dollars per acre more than the said land is worth to remove the timber therefrom.

Upon the report of said special agent you based your letter of November 20, 1886, in which you held the entry for cancellation and directed

the local officers to give claimant due notice of your action, to inform him of the nature and substance of the special agent's report and to advise him that he will be allowed sixty days in which to apply for a hearing to show cause why his entry should be sustained, in accordance with circular instructions of July 31, 1885, as amended by the circular of May 24, 1886, and that if he fails to apply for a hearing to show cause why his entry should be sustained the same will be finally canceled.

By letters of February 18, and March 8, 1887, the local officers reported that the claimant had been duly notified of the action of your office and that the time had expired without his taking any action in the matter. The return registry receipt signed by Marsh was forwarded with the register's letter. March 25, 1887, your predecessor canceled the entry.

August 20, 1887, the local officers transmitted the application of John A. McKay for a hearing in the matter of the cash entry of Marsh. Said application is accompanied by an affidavit in which McKay sets forth that

Between the dates of said entry by said Charles V. Marsh and the cancellation thereof by said Commissioner of the General Land Office this affiant became the owner, by purchase, through mesne conveyances, in good faith, for a valuable consideration, all of the right, title, and interest of the said Charles V. Marsh in and to said lands and premises; that this affiant is now the owner therof; that this affiant is informed and verily believes the said Charles V. Marsh duly complied with the laws of the United States relative to settlement, improvement and cultivation....; that the records . . show that a notice of said cancella

tion was delivered to said Charles V. Marsh on November 23, 1886, but as to whether the same was received by him this affiant has no knowledge, information or belief other than what said records show; that this affiant only knew of said cancellation within a few days last past and then learned it by mere accident in searching the records of said land office relative to other matters; that said Charles V. Marsh although he well knew who the owner of said lands and premises was did not at any time inform the affiant of said cancellation or of said notice thereof or of any proceedings relative thereto;

wherefore McKay asks that the cancellation of the entry be set aside and a hearing be ordered at which he may be allowed to prove, as he is willing and ready to do, that Marsh complied with all the requirements of law.

December 20, 1887, you denied the application for a hearing for the reason that at the date of the cancellation of the entry there was nothing of record to show that any one other than the entryman had any interest in the entry; that the entryman had acknowledged receipt of notice of your letter holding the entry for cancellation and had not availed himself of the permission granted therein of showing cause why such action should not be taken, and that he was the only party upon whom notice was required to be served.

From your said decision McKay appeals.

In view of the statements of the transferee that he had no notice of the action of your office in holding the entry for cancellation and of the opportunity afforded for the submission of testimony showing that the

law had been complied with and the cash entry properly allowed, and that the failure of the entryman to notify him of the action of your office deprived him, to his serious injury, of the opportunity of defending the entry, I see no objection to allowing the hearing asked for. Case of David Y. Bradford (8 L. D., 283).

I therefore, re-instate the entry and direct that a hearing he had to determine the validity thereof, at which the burden of proof will be upon the government. As this land is said to be densely covered with redwood and chiefly valuable therefor, all the facts and circumstances connected with Marsh's settlement and residence should be most carefully scrutinized so that it may be determined whether he was in fact a bona fide settler who made the land his home or whether his settlement was a pretended, or at most a colorable settlement made with the view of securing the timber thereon. Porter v. Throop (6 L. D., 691); Wright v. Larson (7 L. D., 555).

The record before me discloses no adverse claim to the tract. has attached, its rights will also be determined at the hearing. Your decision is modified accordingly.

If one

PRE-EMPTION-SECOND ENTRY.

JAMES A. FORWARD.

A pre-emption filing should not be received for land included within an existing homestead entry.

If a pre-emptor applies to file a declaratory statement for land embraced within an entry of record, alleging settlement prior to the date of such entry, a hearing should be ordered to determine the respective rights of the parties.

A second filing is permissible where the first was for land not subject thereto, and the pre-emptor, in good faith, abandoned the same on discovery of such fact.

Secretary Noble to Commissioner Stockslager, May 27, 1889.

I have considered the appeal of James A. Forward from the decision of your office of October 31, 1885, holding for cancellation his pre-emption cash entry No. 1433, for the SW. of Sec. 28, T. 26 N., R. 33 E., Spokane Falls district, Washington Territory.

Forward's declaratory statement for said land was filed April 26, 1883, and alleged settlement the 24th of that month, and it appears that he had a few days before, on the 20th of said month, filed a declaratory statement for another tract, namely,-the SE. 4 of said Sec. 28, alleging settlement thereon on the 14th of said month.

The action of your office in holding his said pre-emption cash entry for cancellation was upon the ground that he had "exhausted his right to make a pre-emption filing" by said prior filing.

Forward made proof, December 3, 1883, on his second filing now under consideration, showing compliance with the law as to residence on and improvement and cultivation of, the land covered by said filing,

and said proof was approved by the local officers, who on January 2, 1884, received payment for said land ($400.) and issued to Forward final receipt and certificate. He accompanied his proof with an affidavit setting forth the facts as to his said prior filing, and from said affidavit and another attached to his appeal to this Department, it appears that "being sixty miles away from the land office, he made application to make his first filing at Cheney, Washington Territory, before the clerk of the county court; that sometime afterwards he was informed by said clerk that a homestead entry (No. 3124) had already been made on the land embraced in said filing " and that his application (to file thereon) would undoubtedly be returned to him as he could not file over a homestead;" and "relying upon said information," he afterwards went to the land office at Colorado and made said second filing now under consideration.

It is stated in your office decision that the records of your office show that said homestead entry, No. 3124, referred to by Forward in said affidavits, was made by one, James W. McCord, April 16, 1883, on said land covered by Forward's first filing. While Forward's first declaratory statement alleged settlement, April 14, 1883, two days prior to said homestead eutry it was not filed until April 20, 1883, four days subsequent to said homestead entry. At the time said declaratory statement was filed, therefore, the land had been segregated by said entry of record, and said filing should not have been allowed by the local officers while said entry remained intact. (Grove v. Crooks 7 L. D. 140). Where a pre-emptor applies to file a declaratory statement for land embraced in an entry of record, alleging settlement prior to the date of such entry, the proper practice is to order a hearing to determine the respective rights of the parties. (James et al. v. Nolan, 5 L. D., 526).

On such hearing, the homestead claimant might sustain his entry as against a party claiming a prior pre-emptive right, by showing settlement under section 3, of the act of May 14, 1880 (21 Stat., 140), before the alleged settlement of the pre-emption claimant and within the time prescribed in said act, or by showing that the alleged settlement of the pre-emption claimant was not in fact made or if made, that it was not made at the time alleged and was subsequent to the homestead entry. If, however, none of these facts appeared and the pre-emption claimant's right was proven to be superior, then the homestead entry would be held for cancellation, subject to appeal in due order to your office and to this Department. If the entry was finally canceled, then, and not until then would the land be subject to the pre-emption filing.

Forward had a right to assume, that the local officers had acted in accordance with the law, and had not allowed a filing on land not subject thereto, and hence that said filing had not in fact been placed of record and, they not having ordered a hearing to determine the respective rights of himself and the homestead entryman, it was not compulsory on him to demand such hearing and enter into a contest, which 16184-VOL 8-34

might be not only prolonged and expensive, but of doubtful issue. There being nothing to indicate collusion for the purpose of evading the law or fraud in any particular, the government looks with favor upon the adjustment without contest of conflicting claims to the public domain.

Forward made a full disclosure to the local officers of the facts as to his first filing at the time of his entry on the land embraced in his second filing, and there is nothing in the record inconsistent with entire good faith on his part; the land embraced in his first filing was not in fact "open to such filing," and in making his second filing, he acted upon the idea, that the local officers had observed the law and that said first filing had not been allowed. Under all the circumstances of the case, even if the placing of record a declaratory statement for land already appropriated and hence not open to filing, can in law be held to be a filing, he can not be charged with culpable negligence and should not be held to have "exhausted his pre-emptive right." Hannah M. Brown (4 L. D., 9).

The decision of your office holding said pre-emption cash entry for cancellation because of said prior filing, is reversed, and, there being no other objection thereto, said entry will be passed to patent.

DOUBLE MINIMUM LANDS--REPAYMENT.

TEXAS PACIFIC GRANT.

All lands subject to entry within the limits of the forfeited Texas Pacifie grant were double minimum in price from the date of withdrawal on general route to the passage of the act of March 2, 1889; hence such price was properly charged in case of entries prior to said act, and there is no authority for the repayment of any part thereof.

Secretary Noble to Commissioner Stockslager, May 29, 1889.

I am in receipt of your communication of the 20th instaut, submitting a memorandum of authorities upon the question of repayment of the excess of $1.25, paid upon lands within the limits of forfeited railroad grants.

With reference to lands within the limits of the forfeited grant to the Texas Pacific Railroad company, you say that but for a recent decision of Secretary Vilas in the case of Thomas Kearney (7 L. D., 29), you would not hesitate to say that no repayment of the excess of $1.25 paid for lands within the limits of this grant could be allowed; but that if it is my opinion that the decision in the Kearney case is good law and will be followed, it is possible that payment would be authorized in cases of lands within the grant of the Texas Pacific Railroad company under the principle decided in that case.

I have examined the decision referred to, and am of opinion that it is not authority for repayment of the excess where double minimum bas