lowed, and the party making the same is entitled to a return of the purchase money.

Vague and erroneous notions as to just what is required to constitute residence under our settlement laws are quite common among those who are unlearned in the law. Indeed, it is frequently a very perplexing question not only to the unlearned, but to their legal advisers, and to the tribunals called upon to finally determine such questions. To punish a mere error of judgment on this question by forfeiting to the government an entryman's purchase money, would be a harsh rule and one not sanctioned by the law.

The evidence before me does not show bad faith on the part of ap pellant. In fact, the testimony produced on making final proof is unu sually frank and straightforward. In answer to the question, "Has claimant resided on the land continuously ever since?" (since settlement), one of his witnesses says: "I have seen him there time and again He is deputy United States surveyor, and has been off several times on surveys. I should say he was ou the land a quarter of the time." His other witness, in answer to the same question, says: "He has not." Appellant says, in answer to this question, "I have resided upon the land and made it my home, with the exception when I have been absent employed on government work—have been absent in the employ of the government at various times, in all between three and four months surveying government land." In this testimony there does not seem to be any disposition whatever on the part of appellant or his witnesses to conceal the real state of facts, and he evidently supposed them sufficient. The then Secretary of the Interior also thought them sufficient in the absence of an adverse claim to the land, and consequently allowed the entry.

In your decision of the case of Anna M. Livingston v. George J. Ruskrudge, July 12, 1886, you come to the conclusion that Ruskrudge "never established a bona fide residence on the land." The facts from which this conclusion was reached, as set out in said decision, do not differ very materially from the state of facts shown by appellant's final proof, as set out in the Secretary's decision quoted above. They are as follows:

The testimony shows that Ruskrudge is a qualified pre-emptor, that he made his settlement at the time alleged; that he put up a common shanty, dug a well, did some little clearing and fencing. He had none of the usual implements of agriculture to found on a claim, no teams, etc. Just before he made his final proof he broke up about an acre of land with a spade and planted it in corn, which it appears never matured . . . . He admits that he was absent from the tract from the time he made his settlement and final proof, a period of a little over seven months, from three to four months. He also admits that after the rejection of his final proof by this office, that he left the land and has never pretended to live there since; also that his house was removed from the tract.

These facts, in my opinion, do not show mala fides.

As far as I can discover from the record in this case, the pre-emption cash entry made by appellant was-in the sense the phrase is used

in the act quoted-" erroneously made," and that he is therefore entitled to a return of the purchase money.

For the reasons given, the decision of your office is reversed.

ALABAMA LANDS-ACT OF MARCH 3, 1883.

NATHANIEL BANKS.

After the passage of the act of March 3, 1883, land theretofore reported as valuable for coal, could not be entered under the second section of the act of June 15, 1880, until it had been first offered at public sale.

First Assistant Secretary Muldrow to Commissioner Stockslager, December 12, 1888.

November 16, 1869, Nathaniel Banks made homestead entry for the W. of the SW. of section 7, T. 18 S., R. 9 W., Montgomery, Alabama. Said entry was canceled March 5, 1879, because final proof had not been made.

March 28, 1887, Nathaniel Banks made cash entry No. 21006, of said land under the second section of the act of June 15, 1880.

July 18, 1887, the local officers transmitted the petition of Columbus E. Rice and Thomas F. Rice, to have canceled the said cash entry of Nathaniel Banks and praying that they be allowed to enter said tract, under the provisions of the act of June 15, 1880, as assignees of Lewis Phillips who purchased the land of said Banks in 1871, under his prior homestead entry made in 1869. Petitioners enclosed the deed of Banks conveying the land to Lewis Phillips, in 1871 and the deed of Phillips conveying the tract to themselves in 1874.

September 12, 1887, you held for cancellation the cash entry of Banks. You say:

The act of March 3, 1883, to exclude the public lands in Alabama from the operations of the laws relating to mineral lands provides that the lands shall first be offered if they have been heretofore reported to this office as containing coal or iron before they can be entered.

The tract in question has been reported to this office as valuable for coal. The question suggested is--Does the act of March 3, 1883, prevent the purchase? I am of opinion that it does because it provides that all public lands which have been reported to this office as containing coal or iron shall first be offered at public sale. On the cancellation of that homestead entry the land merged and became public and being in the mineral list as aforesaid, came under and is subject to the provisions of the act of 1883.

You further hold that only those persons who have entered lands properly subject to entry may purchase lands under the second section of the act of June 15, 1880, and that this tract being valuable for coal and consequently classed as mineral, was not properly subject to the entry made by Banks in 1869 and, therefore, no right to purchase resulted therefrom.

When the application to purchase the land under the act of June 15, 1880, was made the act of March 3 1883 (22 Stat., 487), had been passed, and it provides "that all lands which have heretofore been reported to the General Land Office as containing coal and iron, shall first be offered at public sale," before becoming subject to disposal. The tract involved herein was reported in 1879, as valuable for coal. Therefore, under said act it could not be entered until it had been first offered at public sale.

Your decision is accordingly affirmed.

PRE-EMPTION ENTRY-SECTION 2260 R. S.

ANDERSON v. BAILEY.

A pretended sale of the land from which the pre-emptor removed will not relieve him from the statutory inhibition.

First Assistant Secretary Muldrow to Commissioner Stockslager, December 13, 1888.

I have considered the case of John Anderson v. Frank W. Bailey, on appeal of the latter from your office decision of March 26, 1887, rejecting his proof and holding for cancellation his pre-emption declaratory statement for SW. section 26, T. 103 N., R. 62 W., Mitchell, Dakota land district.

It appears from the record that Bailey filed declaratory statement for said land November 24, 1883, alleging settlement same date, and on November 28, 1885, Anderson made homestead entry for the same tract.

Bailey offered his proof on May 27, 1886, at which time Anderson filed a protest alleging that Bailey was not a qualified pre-emptor for the reason that he had moved from land of his own, to reside upon the tract in dispute.

The record shows that on February 6, 1883, Bailey received his final certificate for the land entered as a homestead and that on November 23, 1883, the day before filing his declaratory statement for the land in controversy, he conveyed the said homestead tract to his wife, by warranty deed, and on August 21, 1884, she conveyed the same to one Emmons, Bailey joining in the deed.

Bailey made settlement upon the tract in dispute on November 24, 1883, by building a house into which he removed with his family on December 20, remaining in the interim with his wife in the house upon the homestead conveyed to her.

Bailey admits that he transferred the tract from which he removed to his wife, in order to qualify himself to take a pre-emption claim.

The local officers found that the transfer of Bailey to his wife "was only a shallow subterfuge" and for that reason rejected his proof and recommended his entry for cancellation.

3263 VOL 7—.—33

Bailey testified that the deed to his wife was made in consideration of her assuming the payment of a mortgage of four hundred and fifty dollars on the land, and love and affection. He says she subsequently paid this mortgage although by mistake the release was made out in his name, and he made another conveyance to his wife of the homestead to correct an incorrect spelling of her name in the former deed. Bailey further says that when the homestead tract was sold to Emmons, the mortgage for the unpaid portion of the purchase price was made to him on the request of his wife, her health being at the time poor. Bailey also testifies that the contract between himself and wife was made that he might be able to make a pre-emption filing and was so talked over be tween himself and wife.

At the time he made settlement upon the tract in controversy he remained there three days and two nights and then returned to the land conveyed to his wife which was little more than half a mile distant.

Bailey testifies that when he was married his wife had about three thousand, five hundred dollars which she let him have and he had all along intended to convey the said homestead to her on that account.

The fact that when the land was sold to Emmons the mortgage back was made to Bailey and not to his wife, taken in connection with the other circumstances in the case, satisfies me, that the alleged sale was a subterfuge and that he was the real owner of the land from which he removed to the land in controversy, at the time of such removal. It follows that he comes within the inhibition of section 2260, of the Revised Statutes.

Your said decision is accordingly affirmed.

SWAMP GRANT-PLAN OF ADJUSTMENT-EFFECT OF CERTIFICATION.

STATE OF MICHIGAN.

In view of the fact that prior to the swamp grant many of the surveys in the State were found erroneous and re-surveys made, some at the suggestion of the State, and others under special appropriations by Congress for the correction of such erroneous surveys, "the notes of the surveys on file," which was the basis of adjustment accepted by the State, must be interpreted as meaning the notes of the surveys finally adopted and approved by the government. The contemporaneous and long continued construction in accordance with such interpretation of the agreement is fairly conclusive as to the actual intention of the parties thereto. The ascertainment of the specific tracts granted, is a question of fact to be settled by the Secretary of the Interior; and the terms of the grant cannot be enlarged by the adoption of a plan for its adjustment, nor the government bound thereby to pursue the same, if it be found to be incorrect in operation.

The State is not entitled to lands that were not of the character granted, though said lands were erroneously embraced in certifications based on the original surveys that were incorrect; and the Secretary of the Interior in the exercise of a rightful jurisdiction was authorized to correct such certification in accordance with the facts.

The instructions issued to the surveyors-general to make out lists based on the field notes of survey, do not amount to a contract, but are only to be held as the declaration of a rule of evidence which the Department would follow, if the State was willing to accept it, and no more obligatory than other instructions of the Department to officers under its jurisdiction. The assent of the State, which was the condition of the instructions becoming operative, did not give them the character of law, or render them a binding obligation.

As the erroneous certifications, based on the original surveys, had been corrected, on the evidence furnished by the re-surveys, prior to the passage of the confirmatory act of March 3, 1857, it must be presumed that said act had reference to the amended lists as then existing. It follows that said act did not confirm the original selections based on the erroneous surveys.

Secretary Vilas to Commissioner Stockslager, December 17, 1888.

By your letter of the 13th of July, 1886, addressed to the land officers at Reed City, Michigan, you rejected the claim of the State under the swamp land grant of 1850 to the following tracts of land in that district, to wit: N. SE., section 26, township 23 N., range 3 W.; NE. NW. 1, section 14, township 27 N., range 3 W.; Lot No. 2, section 5, township 37 N., range 3 W.; SE. NE. 1, section 26, township 21 N., range 4 W.; SW. † SW. 4, section 34, township 21 N., range 4 W.; SE. NW. 4, section 30, township 23 N., range 4 W.; N. frl. SW., section 30, township 23 N., range 4 W.; SE. SW. 1, section 30, township 23 N, range 4 W.; SE. SW. 4, section 22, township 23 N., range 5 W.; W. NE. 4, section 28, township 23 N., range 5 W.; S. ↓ NE. 4, section 32, township 23 N., range 5 W.; SE. NW. 4, section 32, township 23 N., range 5 W.; NE. SW. 4, section 32, township 23 N., range 5 W.; NW. SE., section 32, township 23 N., range 5 W.; NW. SE., section 34, township 23 N., range 5 W.; W. frl. SW. frl. 4, section 30, township 24 N., range 5 W.; S. NE. 1, section 35, township 21 N., range 6 W.; N. SE. 1, section 35, township 21 N., range 6 W; stating that under date of March 29th, 1852, the United States surveyor-general of Michigan reported to your office the said tracts as swamp and overflowed land, and under date of October 27th, 1853, a list embracing all of these tracts except the west fractional half of the southwest fractional quarter of section 30, in township 24 north, range 5 west, was approved by the Secretary of the Interior, but that none of said tracts have been patented; that it was subsequently discovered that the surveys from which such selection and proof were made, were erroneous, and under the date of October 29th, 1853, August 28th, 1854, and July 15th, 1856, supplementary lists of lands in townships re-surveyed under the direction of your office, abrogating and superseding all lists of land prior thereto, were made and reported, which embraced all the townships above named, but did not embrace the foregoing described tracts; and that said tracts are not shown by the field-notes to be swamp land within the meaning of the grant.

And by your letter of the same date to the land officers at Marquette, Michigan, you rejected the following described tracts of land, to wit: