John D. Troop, on September 25, 1891, made homestead entry for the NE. ‡ of Sec. 6, T. 10 N., R. 4 E., same land district.

On October 3, 1891, Kees applied to amend his entry to the NE. † of Sec. 31, T. 11 N., R. 4 E.

On October 5, 1891, Troop made application to amend to the SE. † of Sec. 31, T. 11 N., R. 4 E., alleging settlement thereon. (This was the tract which Kees had originally entered.)

Kees's application to amend brought him into conflict with one Kennedy; and action on Troop's application to amend was suspended until the contest case of Kees . Kennedy should be closed.

On January 16, 1894, A. J. Giles filed in your office a protest against the allowance of Troop's application to amend.

The contest between Kees and Kennedy resulted in Kees being allowed to amend his entry by substituting the tract in controversy in that case (the NE. of Sec. 31, T. 11 N., R. 4 E.), for that named in his original entry. Thereupon Troop was permitted by your office letter of August 14, 1895, to amend his entry by substituting therein the tract thus relieved from Kees's entry (the SE. 4 of Sec. 31, T. 11 N., R. 4 E.), which is here in controversy. Troop's amendment was consummated on October 31, 1895.

Prior to the last named date, however-to wit, on September 9, 1895Giles, having been notified of the action of your office allowing Troop to amend, filed a second protest against the allowance of such amendment (which protest afterward ripened into a contest). In said protest Giles alleged that he had resided upon and improved said land since September 9, 1892, and that Troop had never established actual residence upon the land, but had abandoned the same.

On January 13, 1896, your office advised the local officers that when your office letter of August 14, 1895, was written, allowing Troop to amend his entry, Giles's protest was overlooked; and your office directed that a hearing be had.

March 13, 1897, was set for such a hearing. On that date both parties appeared in person and by attorney.

The evidence submitted by the contestant (Giles) showed that the defendant (Troop) settled upon the land on September 22, 1891; that in a short time after filing his application to amend (October 5, 1891) he left the land, and did not return thereto again until about October 1, 1895; that the contestant moved on the land with his family September 9, 1892, and continued to live there until the date of the hearing; and that his improvements are worth about $500.

To the above evidence the defendant demurred, alleging, in substance, that as a matter of law he was not required to reside upon the land until his application to make entry of the same had been allowed; that the contestant's evidence showed that, if any default existed, it had been cured by establishing residence on the land prior to the filing of the affidavit of contest; and that since establishing residence he has 2670 VOL 25-29

built a substantial house, and cultivated and improved the land according to law.

The local officers rendered their joint opinion that under the law Troop was not required to reside upon the land pending the consideration of his application to amend"; that "Giles obtained no rights under his settlement in the face of Troop's application and while the land was in contest"; and that, if it should be held that Troop was required to reside upon the land to which he desired to amend, "his laches as to abandonment were cured by his acts of settlement and cultivation prior to the order or notice of hearing in this case." Therefore they sustained the demurrer.

Giles appealed to your office, which affirmed the action of the local officers. Thereupon he appeals to the Department-contending that "the law permitting a homestead applicant to reside and maintain a residence elsewhere than on the land embraced in his homestead application" pending the consideration of the allowance of such application, "does not apply where the representations made to procure the amend ment of the entry were false and fraudulent, and does not apply where the applicant claims the land as an actual settler thereon prior to mak ing his homestead application therefor"; also—

That Troop, having a full knowledge of the settlement and improvement of the tract by Giles in 1892, and making no remonstrance to Giles against the settlement and improvement, but in silence fully acquiescing therein, and thereby leading Giles to believe, as the appearance of the land indicated, that it was abandoned and unclaimed, can not afterward, through the means of a fraudulent homestead application for the land, be heard to assert rights thereto as against Giles.

If the language last above quoted is intended to convey the impres sion that Troop's homestead application was made after Giles's settlement upon the land, it is not warranted by the record facts; which show (supra) that Troop made application for the land October 5, 1891, while Giles does not allege settlement prior to September 9, 1892.

It is contended, furthermore, that whatever right Troop may have had to the tract in controversy was necessarily, under the circumstances, based, not upon his application, but upon his alleged settlement; and that he had, subsequently to such settlement, failed to protect the same by the maintenance and continuance of residence.

There would appear to be some weight in this contention. When Troop filed his application to amend to the tract in controversy it was covered by Kees's entry; hence no right could be gained by said application. He based his right to amend on the ground that he had originally intended to enter the tract, that he had made settlement thereon, and was actually residing there at the date of his application. Action upon his application was suspended. Before action thereon was taken, Giles alleges, Troop had abandoned the land, and at the date.of the cancellation of Kees's prior entry was not living thereon, and had not been for years. Meanwhile, Giles had settled upon the land. The

Department has held (see Clancy et al. v. Hastings and Dakota Ry. Co., on review, syllabus-20 L. D., 135):

An application to enter, properly rejected, on the ground that the land is covered by the existing entry of another, and pending on appeal, confers no right upon the applicant as against a settler upon the land, in the event that the prior entry is subsequently canceled.

This ruling appears to cover squarely the case now under consideration.

Troop contends, however, and the local officers held, that "his laches as to abandonment were cured by his acts of settlement and cultivation prior to the order or notice of hearing in this case." But the testimony (so far as taken) indicates that Giles had settled upon the land long prior to Troop's return thereto. While the land was covered by Kees's entry, Troop could gain no right thereto by his application, nor Giles by his settlement; but when Kees's entry was canceled, then, as between themselves, the date of settlement by them respectively becomes a proper subject for inquiry. (Geer r. Farrington, 4 L. D., 410, and many cases since.)

From these considerations it is evident that the local officers and your office erred in sustaining Troop's demurrer to the testimony submitted by Giles bearing upon the matter of his settlement and residence upon the tract. It is conceded by Troop that he did not live on the land in controversy from the latter part of the year 1891, until about October 1, 1895; and it does not clearly appear that he ever actually lived thereon. In view of these circumstances, the Department is of the opinion that his entry should be held subject to Giles's right to make entry of the land, in case the latter shall apply to make such entry within a reasonable time, and it is so ordered.

The decision of your office is modified as above indicated.

This decision will be substituted for that of October 2, 1897, which was informally recalled prior to promulgation by your office, and which is hereby revoked and annulled.

RAILROAD GRANT-DEFINITE LOCATION.

FISHER . STATE OF WISCONSIN ET AL.

The proclamation of the President under the act of June 18, 1878, withdrawing from sale and disposal certain lands required for reservoir purposes, did not affect the status of lands to which rights under a railroad grant had attached by definite location.

Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.)

4, 1897.

(C. W. P.)

This case involves the SE. 4 of the NW. 1, or lot 3, of Sec. 33, T. 41 N., R. 1 W., Ashland land district, Wisconsin.

It is shown by the record that on March 17, 1896, your office, in the

contest case of John Fisher v. State of Wisconsin, rejected the claim of the State of Wisconsin, under the swamp-land grant of September 28, 1850, to the land covered by Fisher's homestead entry, No. 2860, viz., the SE. of the NW. and the W. of the NE. 4 of Sec. 33, T. 41 N., R. 1 W., 4th P. M., all of said land being apparently involved in the contest.

When, after said rejection, the posting of the same on the records of your office was attempted, it was found that only one of the tracts, as described, viz., the SE. of the NW. of said Sec. 33, appeared of record as a swamp claim of the State, and the proper notation of rejection was made as to said tract. It appeared further that the State claimed lot 3, of said Sec. 33, as swamp land, and that said lot 3 had been listed by the Wisconsin Central Railroad Company on July 12, 1882, and that the railroad claim thereto had been held for rejection on July 18, 1889, on a prima facie showing of the swampy character of the land; but that no report, under said decision, had been received from the local office.

It further appears that it has since been found that lot 3 of Sec. 33 is identical with the SE. 1 of the NW. of said listing, and the swamp claim thereto appears to have been properly rejected by your office decision of March 17, 1896. By your office decision of May 12, 1896, it was held that the action, taken by your office as the result of a hearing, in a regular contest and disposing finally of the State's swamp claim, warranted your office in revoking the decision of July 18, 1889, holding the railroad's claim to said lot 3 for rejection, and it was so ordered.

Mr. Fisher has appealed from this decision to the Department, alleg. ing as error in said decision, (1) that the company failed to appeal from the rejection by the local officers of its application to list said lot 3, and also (2) failed to appeal from your office decision of July 18, 1889, rejecting said application to list; (3) that the land was reserved for reservoir purposes at the date the company applied to list, and having been subsequently restored, was open to homestead entry, and finally (4) that the company has (doubtlessly) secured indemnity for the land, and for that reason has failed to apply for it, or to appeal from the several rejections of its application to list said land.

Upon the first two objections to the decision of your office it is sufficient to say that there is no evidence that the company had notice of either of these rejections. The third allegation of error is not well taken. The records of your office showing that the land in controversy is within the primary limits of the grant to the company as definitely located November 10, 1869, and passed to the company by the force of the grant, if at all, listing and approval could add nothing to the company's title. Tronnes r. St. Paul, Minneapolis and Manitoba Railway Company, 18 L. D., 101. The act of June 18, 1878 (20 Stat., 152), and the President's proclamation of March 22, 1880, withdrawing from sale and disposal certain land in the State of Wisconsin, although in terms

embracing the land in question, could not affect said land, as the right of the company under its grant had attached by the filing of its map of definite location, and must be held to have passed thereunder. The fourth ground of objection to your office decision has nothing to support it.

For these reasons your office decision is affirmed.

HOMESTEAD ENTRY-CANCELLATION-HEIRS-CREDITORS.

PATTEN T. KATZ.

A homestead entry must be canceled where it is duly shown, after the expiration of the statutory life of the entry, that the entryman died prior to the completion of his entry, and that there are no heirs of the entryman who are entitled to perfect said claim.

Where a homesteader dies prior to the completion of his entry there is no authority for the perfection thereof for the benefit of creditors.

The right of purchase under Section 2, Act of June 15, 1880, is limited to entries made prior to the passage of said act.

Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) 4, 1897.

(G. B. G.)

I have considered the appeal of D. Buchanan, administrator of the estate of Christian Katz, deceased, and agent of the heirs of said Katz, from your office decision of September 18, 1895, affirming the decision of the local officers herein and holding for cancellation homestead entry, No. 5859, for the NW. of Sec. 34, T. 19 N., R. 34 E., Spokane land district, Washington.

It appears that the said Christian Katz made homestead entry for said land on November 15, 1887, that he died on or about October 6, 1892, and that the said D. Buchanan was appointed administrator of his estate on December 11, 1892.

On October 22, 1894, the plaintiff, Wallace E. Patten, initiated a contest against said entry, alleging the death of said Katz as aforesaid; that since his death the heirs had failed to cultivate the land; that he had no heir, who was a citizen of the United States and entitled to inherit said land, and that the entryman was not a citizen of the United States.

After due notice by publication, under the rules of practice in such cases made and provided (see rules 11, 12, 13, 14, 15 and 16), a hearing was had on January 22, 1895.

The local officers held:

That as it has been shown that Christian Katz died before earning his homestead, and that there are no heirs, or heirs entitled to inherit, and under the circumstances no person or persons who can purchase or make proof; that the said homestead entry should be canceled, and that Wallace E. Patten should be allowed the preference right of entry.