title to the land so settled upon, not exceeding one hundred and sixty acres, upon the payment therefor of one dollar and twenty-five cents an acre, and such settler shall have three months after public notice given that such lands are subject to entry within which to file in the proper land office his application therefor.

Notice was given that the lands were open to entry on May 31, 1894, and as Jackson did not file his application within three months from that date, your office decided that he was not entitled to the right to elect whether he would pay cash for the land or make homestead entry, and therefore held his cash entry No. 27 for cancellation.

From this action Peter Emetsberg, Lymon Alexander, and Thomas F. McNamara, transferees of the said Andrew Jackson, have appealed.

By the act referred to the preferred right to purchase lands within said reservation is conferred upon actual settlers with intent to enter the same under the homestead law, and they are given three months after notice is given that the lands are subject to entry within which to file their claims and exercise their preferred right of purchase under the act. During that period the lands are subject to such preferred right of purchase, as against all other claimants. But as between the gov ernment and the settler, in a case like this, where there is no intervening adverse claim to the land, I see no good reason why the settler may not be allowed to purchase after the expiration of said three months. You will therefore allow Jackson to purchase the land applied for in accordance with the provisions of the act.

Your office decision is reversed.

HOMESTEAD CONTEST-FAILURE TO ESTABLISH RESIDENCE.

MASON. WILSON.

Acts in compliance with law performed by an entryman after the initiation of a contest, and prior to the service of notice thereof, can not be accepted as curing a prior default on the part of the entryman, if said acts were induced by knowledge of the impending contest.

The poverty of an entryman may excuse his absence from the land after the establishment of residence, but does not constitute a sufficient excuse for failure to establish residence within the prescribed period, where such default is charged by an intervening contestant.

Secretary Bliss to the Commissioner of the General Land Office, July 17, (W. V. D.) 1897. (C. J. W.)

Andrew L. Wilson made homestead entry No. 20560, for the SE. 1, Sec. 6, T. 141 N., R. 80 W., Fargo, North Dakota, on May 18, 1893. On the 21st of November, 1894, Hulbert Mason filed affidavit of contest against said entry, in which it is alleged that defendant has abandoned the land for more than six months since making the entry, and next prior to the date of said affidavit, and that as a matter of fact he had never resided upon the land since his entry, and had never had a building on the same fit for habitation, or that was used for a

dwelling, and that said tract was not settled upon and cultivated as required by law. A hearing was asked that contestant might prove his allegations. Notice issued directing the parties to appear at the office of Hiram O. Stert, clerk of the district court of Barnes county, and submit their testimony on January 9, 1895, and that the same be reported to the register and receiver on January 16, 1895. The hearing was had and the evidence reported in accordance with said order, when the final hearing occurred before the local officers on January 16, 1895. On July 22, 1895, said officers rendered a decision, finding the charges sustained and recommending the cancellation of the entry.

The defendant appealed, and on February 26, 1896, your office affirmed the decision of the local officers, and held the entry for cancellation.

The case comes before the Department on further appeal of the defendant from your office decision. The grounds of the appeal are as follows:

1st. That said decision is contrary to the law and the evidence, in that the evidence shows that the defendant was actually residing upon and cultivating the land, previously and at the time of service of notice of contest.

2d. The testimony shows that the defendant resided upon and cultivated the tract to the best of his means and ability.

3d. The testimony shows that defendant intended to fully comply with the homestead laws, but could not strictly comply with them because of his poverty.

The evidence discloses the fact that defendant had no habitable building on the land, and had never resided on it prior to the filing of contest, about eighteen months after the date of his entry. He had in fact cultivated five acres of the land for a year and had prepared ten for cultivation and cannot be held to be in default in reference to cultivation, considering his financial condition; but his failure to establish residence and reside upon the land is another matter. (Davis r. Kaminsky, 10 L. D., 346.) Inasmuch as he finally took up his residence upon the land, that is the turning point in the case. If the case was proceeding between the entryman and the government alone, it might be held that he had cured his default, but the rule is not the same when the rights of a contestant have intervened. In such case the default may be cured at any time before the initiation of a contest, and the date at which the rights of a contestant may be said generally to be initiated is from the date of the filing of the affidavit of contest, but the date of notice to the entryman of the commencement of such proceedings is the date from which the entryman's rights will be affected. In this case the entryman commenced to reside upon the land between the date of the filing of the contest and its formal service upon him. On this subject he himself testifies that he slept on the land the first time the 25th or 26th of November, 1894, and that the date of the written notice is about 21st of November, though not served on that day. He is asked if he did not have information that the claim was contested before the written notice was served upon him, to which he answers,

"I had heard something about it." He is asked again, "Is it a fact or is it not that after you got information that your claim was contested you for the first time took some bedding over to the shanty?" to which he answers, "that is the first time." Again he is asked, "It is a fact is it not that you never cooked or caused to be cooked a meal of victuals on the tract in question prior to the month of December, 1894?" to which he answers, "Yes sir."

The defendant was a single man and resided with his mother on a farm one and three-quarters miles from the claim in question and had done so for about eighteen months after his entry, and it is apparent that it was the information he received that his claim was contested which caused him to carry bedding and commence to sleep on his claim. In cases where entrymen have failed to establish residence within the time required by law after making entry, and are called upon to show cause why the entry should not be cancelled, and show, for cause, that they have cured the default by establishing residence before the hearing, the case being entirely between the government and the entryman, the default may be excused, if good faith is otherwise manifested, but it is not a legal right upon which the defendant may rely. Where the showing is the result of a contest initiated with a view to entry by the contestant, the default cannot be excused, if the acts of late compliance with law relied upon were caused by and are directly traceable to the contest, and are not voluntary acts of good faith upon the part of the entryman. The poverty of the entryman in this case is the chief ground relied upon to excuse his failure to establish residence within the prescribed time. The showing made would have force as an excuse for absence after the establishment of residence, but is not a sufficient excuse for failure to establish residence.

In the case of Redding e. Riley (9 L. D., 523), it was held

that the failure of a homesteader to establish residence within six months from entry warrants cancellation, if such default is not cured prior to the initiation of contest.

2. That official duty cannot be accepted as an excuse for absence from the land, if residence in good faith was not acquired prior thereto.

The same legal necessity suggests the holding that poverty is not an excuse for absence until after residence is established, as held by your office. It is to be said to the credit of the defendant that he has manifested no bad faith, except in the matter of residence, and for his default in this respect he offers such excuse as might be accepted but for the intervening rights of the contestant which are legal and must be recognized.

Your office decision is affirmed, and the defendant's entry held for cancellation, subject to the contestant's right of entry.

RAILROAD LANDS-NOTICE OF RESTORATION-INDEMNITY SELECTIONS.

NORTHERN PACIFIC R. R. Co.

The Northern Pacific company should be allowed to specify new bases for selections made on account of lands within the limits formerly recognized east of the terminal established at Duluth.

Secretary Bliss to the Commissioner of the General Land Office, July 17, (W. V. D.) (F. W. C.)

1897.

I am in receipt of your office letter "F", of the 13th instant, transmitting for my approval directions to the local officers at Duluth, Minnesota, and Ashland, Wisconsin, to publish for thirty days in some newspaper of general circulation in the vicinity of the lands affected, a notice of departmental decision of August 27, 1896 (23 L. D., 204), in the case of the Northern Pacific Railroad Company, to the effect that all lands lying east of the terminus of said company's grant established at Duluth, and theretofore withdrawn, have been restored to the public domain and are subject to entry.

In this connection I note that in the decision of August 27, 1896, supra, no directions were given permitting the company to specify new bases for selections theretofore made on account of lands within the limits formerly recognized east of the terminal established at Duluth. In departmental decision of November 13, 1895 (21 L. D., 412), which directed the temporary establishment of a terminal line at Superior City, Wisconsin, it was said:

I further learn upon inquiry at your office that the lands east of Superior City were made the basis for the selection of a large quantity of lands from the indemnity belt of the company's grant in North Dakota. These selections having been made some while ago, many, if not all, of the lands selected have, perhaps, been sold by the company.

The previous action of this Department giving color to the company's right to a grant east of Superior City, and the application of the rule that the indemnity lands should be selected nearest to those lost, were the probable causes for the specification of these lands as a basis for the selections referred to.

In view thereof, I have to direct that the company be allowed sixty days from notice of this decision within which to specify a new basis for any of its indemnity selections avoided by this decision, and that during that period no contests against such selections, where the charge is that the basis was made of lands east of Superior City, or application to enter under the settlement laws, will be received.

This same rule should be adopted and I have to direct that the company be notified accordingly.

The directions to the local officers at Duluth, Minnesota, and Ashland, Wisconsin, are returned herewith approved.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., July 17, 1897.

REGISTER AND RECEIVER,

Duluth, Minn.

SIRS: On August 27, 1896 (23 L. D., 204) the Secretary of the Interior rendered a decision wherein he held that the initial point on Lake Superior or the eastern terminus of the grant to the Northern Pacific Railroad Company was at Duluth, Minnesota, and on December 24, 1896 he approved a diagram prepared by this office showing the eastern terminal of the grant.

On January 23, 1897 a copy of so much of said diagram as related to, or affected lands within, your district, was transmitted to you for the use and guidance of your office.

The decision of the Secretary aforesaid had the effect of restoring to the public domain all lands lying east of said terminal which had theretofore been withdrawn on account of the grant to said railroad company. Therefore, to the end that all persons interested may have opportunity to present any claims they may have to any of these lands, you will cause to be published for the period of thirty days in some newspaper of general circulation in their vicinity, a notice referring to said Secretary's decision which in effect declared that all lands previously withdrawn on account of the grant to the Northern Pacific Railroad Company and lying east of the terminal established at Duluth, are restored to the public domain and are subject to disposal at your office. It should be specifically stated in said notice that all persons claiming rights, under the provisions of the act of March 3, 1887 (24 Stat. 556), through purchase from the railroad company, should come forward and assert their claims at the earliest possible date in order to avoid conflicts which will necessarily arise through entries made under the general land laws, your office having no information as to the tracts likely to be claimed under said act.

The receiver, as disbursing officer, will pay the cost of the publication and forward a copy of the notice, with proof of publication as his voucher for the disbursement. Very respectfully,

Approved,

C. N. BLISS,

Secretary of the Interior.

BINGER HERMANN,

Commissioner.

Note: Similar directions were given on the same date as above to the local office at Ashland, Wisconsin.

FOREST RESERVATION—YOSEMITE NATIONAL PARK-MINING CLAIM.

OPINION.

The act of October 1, 1890, directing the establishment of the forest reservation, known as the Yosemite National Park, did not affect or impair rights acquired under a mineral location duly made prior to the passage of said act; and the owner of such a claim should be permitted the necessary use, for purposes of ingress and egress, of lands reserved by said act, subject to such reasonable rules as may be made by the Secretary of the Interior.

The right of a miner to cut timber within said reservation is restricted to the land embraced within his mining claim.

Assistant Attorney General Van Devanter to the Secretary of the Interior, (E. B., Jr.)

July 20, 1897.

I have the honor to acknowledge the receipt, by reference of the 7th instant from Mr. Acting Secretary Ryan, of a letter from the acting