COAL LAND ENTRY-SECOND DECLARATORY STATEMENT.

JOHN MCMILLAN.

The failure of the entryman to apply for leave to file a second declaratory statement, being satisfactorily explained, and it appearing that such filing would have been authorized, and that no adverse claims exist, it is accordingly authorized nunc pro tunc and the entry based thereon confirmed.

The statute provides that only one entry shall be made by the same person; but this prohibition does not relate to the filing of the declaratory statement provided for, as is the case in the pre-emption laws.

Secretary Vilas to Commissioner Stockslager, August 13, 1888.

I have before me the appeal of John McMillan from your office decis. · ion of February 28, 1887, holding for cancellation his coal entry No. 7, made May 3, 1884, for the W. of the SW. of Sec. 34, T. 16 N., R. 18 W., Santa Fe district, New Mexico.

Said entry was based upon coal declaratory statement No. 97, covering the whole of the SW. of said section, and executed and filed April 11, 1883; and the ground of your action is that said McMillan had · previously to wit, on June 19, 1832-filed another coal declaratory statement No. 61, covering the SE. of the same section.

Such declaratory statement No. 61 not having been canceled, and it not appearing that McMillan ever applied to be allowed a change of filing, you hold that "in view of paragraph 9 of the circular approved by the Honorable Secretary July 31, 1882 ", said entry must be canceled. The paragraph cited says that "one person can have the benefit of one entry or filing only."

The circumstances under which the second filing in this case was made, are thus set forth by McMillan himself, in an affidavit dated May 17, 1887:

Some time after (he filed D. S., No. 61, for the SE. of Sec. 34) he learned that a prior filing had been made for said tract, by one John J. Phelan (Coal D. S., No. 56, made May 31, 1882. On hearing this, deponent went to the Land Office again, and explained his case to the register and receiver, and they advised him that he could contest said Phelan's filing No. 56, or that he had not had the benefit of the coal land laws and could file on another tract: On this advice deponent filed coal D. S., No. 97, for the SW. Sec. 34, T. 16 N., R. 18 W., April 11, 1883; He (deponent) was then in actual possession of said land and has been in continuous and uninterrupted possession from that time until the present, and is now in possession. On the 3d of May, 1884, he made cash entry (No. 7) of the same, and paid the government its price; He has made valuable improvements in developing the same, and in such developments and improvements he has expended fifty thousand dollars and upwards; said improvements consist in shafts, tunnels, drifts (&c.) and all the necessary machinery for such improvements in and about such coal land. He has built up a good trade in the coal business and made permanent improvements on said land relying on the good faith of the government to perfect his title. Should his title not be perfected by issuance of his patent, his business will be materially ruined (and) his earnings of the past five years taken from him without any fault, bad faith, or laches on his part, so far as he has been advised in the premises. He was never

advised by the officers of the local land office, when he made his final proof or at any other time that it was necessary for him to file a relinquishment or cancellation of the coal D. S., No. 61 (or) he would have done so, and he is now ready and willing to do so, and herewith tenders the relinquishment in due form.

The relinquishment thus tendered is on file with the affidavit just quoted from. The ex-register corroborates the allegations as to the advice given to McMillan.

In another affidavit, dated December 17, 1886, McMillan swore "that he, in making his filing, declaratory statement No. 97, for a different tract than the tract described in declaratory statement No. 61, acted in good faith, upon competent advice and because his improvements were made upon the tract contained in declaratory statement No. 97, and the coal upon that tract, W. SW. 4, Sec. 34, T. 16 N., R. 18 W., was of better quality, easier handled more valuable and in much larger quantity than upon SE. " of said section.

The prior claim of Phelan to the SE. having been in the way, McMillan would have been allowed, on application to change his filing to a vacant tract. His not having applied is explained and excused by his having been advised by the local officers in effect that the failure of his first filing of itself entitled him to file again for a different tract. No adverse claims to the W. of SW. having intervened, and MeMillan's good faith not being impeached, and his improvements on the tract actually entered being very valuable the authorization of the filing for said last mentioned tract the W. SW. 1-may be and is hereby made nunc pro tune and the cash entry No. 7, on the basis thereof, confirmed. It is unnecessary to go further in this case, and the question is reserved for further consideration when it shall arise, whether in any case a mere filing will defeat a second entry. The statute says a qualified person shall have the right to enter" etc., "upon payment to the receiver" etc., but provides that "only one entry" shall be made by the same person. This prohibition does not relate to the filing of the declaratory statement provided for, as is the case in the pre emption law. Your decision is accordingly reversed.

RAILROAD GRANT-INDEMNITY SELECTION-SETTLEMENT RIGHT.

NORTHERN PAC. R. R. Co. v. WALDon.

A homestead settlement right, existing at the date of indemnity selection, excepts the land covered thereby from the operation of such selection, and warrants the rejection thereof.

Secretary Vilas to Commissioner Stockslager, August 13, 1888.

I have considered the case of the Northern Pacific Railroad Co. v. John S. Waldon, on appeal of said railroad company from your office decision of June 17, 1886, allowing homestead entry to be made by said Waldon for W. SW. 1, Sec. 5, T. 30 N., R. 79 W., Bismarck, Dakota.

The said land is not within the granted limits of the said railroad company, but is within the fifty mile indemnity limit, and was included in the land selected by said company January 8, 1885, under the act of July 2, 1864.

On April 6, 1886, Waldon, who is qualified to enter, applied at the local office to make homestead entry of said land presenting the necessary affidavit and tendering the proper fees.

His application was refused by the local officers for the reason that said land had been selected by said railroad company on March 7, 1885. From Waldon's affidavit filed with said application, it appears that on July 25, 1884, he went upon said land for the purpose of effecting a settlement and began his improvements thereon, and that he began the erection of this house thereon August 2, 1884; that said house is two stories high and twenty-four by fifty feet; that he dug and curbed a well, built stables and made other permanent improvements amounting in value to $2500.

That said land had not been surveyed at the time of such settlement and improvement and was not in fact surveyed until December 13, 1884, township plat being filed December 26, 1884.

That at the time he made such settlement and improvement, he intended and still intends in good faith to make said land his permanent home and residence, and to enter and acquire title thereto under the homestead laws.

The claim of the railroad company is based upon the fact that Waldon failed to make his entry within three months after the filing of the township plat in the local office and that his right so to do became extinguished. The township plat was filed December 26, 1884, and consequently no question of Waldon's rights could arise before March 26, 1885. The railroad company made its selection of indemnity lands, including the land in controversy, January S, 1885, within a few days after the filing of the township plat and before the expiration of the three months allowed the settler for making entry.

Waldon being a settler upon said land at the date of its selection by said railroad company, and there being at the time no legal reason why his settlement should not ripen into a title, said land did not pass to the said railroad company by the same being included in their list of selec tions No. 26.

A settlement right, existing at the date when the grant became effective, excepts the land covered thereby from the operation of the grant. These principles are so well settled by decisions of this Department that the citation of authorities is unnecessary. While the same rule is not declared by the statute to apply to selections, yet it is provided that no selection shall be operative until approved by the Department, and it may well be laid down as a rule that what was esteemed by the Congress as sufficient to prevent land passing by the grant shall be suffi cient to deny approval of a selection.

Wald

The fact of Waldon's bona fide settlement and actual residence upon the land at the time said railroad company made its selection, which fact is practically conceded by the railroad company, with a legal right at that time to make homestead entry, is sufficient to deny the right of selection claimed, and the consideration of the other questions raised becomes unnecessary.

Your said decision is accordingly affirmed.

RAILROAD GRANT-STATE RELINQUISHMENT.

ST. PAUL M. & M. RY. Co. v. MOLING.

By the acceptance of the terms fixed by the State legislature, in extending the time for the completion of the road, the company relinquished all rights in lands to which it had not acquired full and legal title, and that were occupied by actual settlers prior to the passage of said act, and authorized the Governor of the State to reconvey such lands to the United States.

Secretary Vilas to Commissioner Stockslager, August 13, 1888.

The St. Paul, Minneapolis and Manitoba Railway Company appeals from your office decision of date November 1, 1886, holding for cancellation its selection of the W. of SE. and SW. of NE. and SE. 1 of NW. 1, Sec. 29, T. 131 N., R. 39 W., Fergus Falls, Minnesota.

The land in question is within the ten mile granted limits of the grant to the State of Minnesota of March 3, 1857 (11 Stat., 195), as amended by act of March 3, 1865 (13 Stat., 526), for the benefit of the St. Paul, Minneapolis and Manitoba Railway Company (St. Vincent Extension), and is also within the thirty mile indemnity limits of the grant to the Northern Pacific Railroad Company of July 2, 1864 (13 Stat., 365).

The rights of the St. Paul, Minneapolis and Manitoba Railway Company attached on filing map of definite location of the St. Vincent Extension, December 20, 1871. The indemnity lands of the Northern Pacific Railroad Company were ordered withdrawn by letter of your office, received at the local office January 10, 1872.

The tracts in dispute were listed by the St. Paul, Minneapolis and Manitoba Railway Company, on account of the St. Vincent extension, October 28, 1879, and such listing is still intact upon the official records, but the land has never been certified to the State as enuring to the benefit of the company under said grant.

On November 24, 1883, August Moling applied to file pre-emption declaratory statement for the land in controversy, alleging settlement thereon August 1, 1872, and basing his right to make such filing on an act of the legislature of the State of Minnesota, approved March 1, 1877. (See Special Laws Minn., 1877, p. 257.) Upon the presentation of said application the local officers ordered a hearing to ascertain the facts respecting the applicant's settlement and residence on the land. Notice of said hearing was duly given to said Moling and the St. Paul, Minne

apolis and Manitoba Railway Company, and the same was regularly had on February 8, 1884.

Upon the testimony taken, the local officers found that Moling had settled on the land in controversy prior to the date of the passage of the said act of March 1, 1877, by the legislature of Minnesota, and that the same was thereby excepted from the operation of the grant to the company-and they thereupon held that Moling's application to file should be allowed.

On appeal by the company, from this finding, your office affirmed the same, and held the company's listing of the tracts involved for cancellation.

The testimony in the case shows that Moling erected a dwelling house on the land and did some breaking in the year 1871; that he resided on the land during a part of the year 1872, cultivating the same, and established his permanent residence thereon early in 1873, which he maintained continuously up to date of the hearing. He was legally qualified to make a pre emption entry, and had on March 1, 1877, improvements on the land worth from $500 to $600.

The company of which the present company is the successor, having failed to build its road within the time first prescribed, the legislature of Minnesota, by the act of March 1, 1877, aforesaid, provided, among other things, for an extension of time within which the road could be built, imposing certain conditions and limitations to the enjoyment of the privilege therein granted.

Among the conditions and limitations imposed by said act was the following:

SEC. 10. The Saint Paul and Pacific Railroad Company, or any company or corporation taking the benefits of this act, shall not in any manner, directly or indirectly, acquire or become seized of any right, title, interest, claim or demand in or to any piece or parcel of land lying or being within the granted or indemnity limits of said branch lines of road, to which legal and full title has not been perfected in said Saint Paul and Pacific Railroad Company, or their successors or assigns, upon which any person or persons have in good faith settled and made or acquired valuable improvements thereon, on or before the passage of this act, or upon any of said lands upon which has been filed any valid pre-emption or homestead filing or entries—not to exceed one hundred and sixty acres to any one actual settler; and the Governor of this State shall deed and relinquish to the United States all pieces or parcels of said lands so settled upon by any and all actual settlers as aforesaid, to the end that all such actual settlers may acquire title to the lands upon which they actually reside, from the United States, as homesteads or otherwise, and upon the acceptance of the provisions of this act by said company, it shall be deemed by the Governor of this State as a relinquishment by said company of all such lands so occupied by such actual settlers; and in deeding to the United States such lands, the Governor shall receive as prima facie evidence, of actual settlement on said lands, the testimony and evidence or copies thereof heretofore or which may be hereafter taken in cases before the local United States land offices, and decided in favor of such settlers.

The portion of the company's road opposite the land in controversy was not constructed until after the passage of said act of March 1, 1877, and it thus appears that, at the date of the passage of said act, by the