entitled, therefore, to make entry of that land when he made the mistaken entry, he is still entitled to make entry therefor, unless he has forfeited his right to the land by laches, or by some act or representation has so misled Dumas as to raise against himself an estoppel in Dumas' favor. If Cawood had made no entry, the only question in this case would be (1) whether he was the prior settler on the land, and, if he was, (2) whether he had complied with the homestead law since. The first question has already been answered in the affirmative.

When Cawood started for Guthrie on September 23d, as above stated, he left his stake with his flag thereon, a board, on which was written his name, driven in the ground, the stakes which had supported his temporary tent, and his foundation of poles, on the land at the place where he made settlement. Returning to the land September 27, 1891, after making entry therefor, as he supposed, he at once commenced making permanent improvements thereon and continued to reside thereon and improve the same up to the time of the hearing, having moved his family to the claim in October, 1891. At the time of the hearing he had on the claim a house of hewn logs, sixteen by twentytwo feet, a new house, not so large as the other, nearly completed, about thirty acres broken on which he had already raised a crop, a stable, cornerib, and other outbuildings-all valued at about five hundred dollars. It would appear, therefore, relative to the second question, that Cawood had fully complied with the homestead law since his settlement.

It was not necessary that Dumas should have had actual notice of Cawood's settlement when the former attempted to make his settlement, as seems to have been the holding in the decision denying the motion for review in this case, but only that Cawood's acts of settlement were sufficient to have given Dumas notice. In the case of Trainor r. Stitzel (7 L. D., 387), cited, it happened that Stitzel had actual notice, and the case was decided according to the facts there. But it does not follow therefrom that the prior settler in any case like the one at bar, must give actual notice of his settlement. Dumas, it appears, was absent from the land from September 25, 1891, until some time in November following. When he returned he found Cawood on the land.

When Cawood, on October 10, 1891, discovered that he had misdescribed the land he claimed, he was prompt to apply to amend his entry, filing application therefor two days afterward. This application was far within the time allowed him by the third section of the act of May 14, 1880, supra, to make entry. He did all he could do to rectify his mistake, and it does not appear that Dumas was misled in any way by any act or representation of Cawood.

The cases of Brown v. West (3 L. D., 413) and Callicotte v. Gear (24 L. D., 135) are directly in point in support of the views herein expressed. It is not deemed necessary to discuss and explain the inapplicability of most of the numerous cases cited by counsel for Dumas. It is suffi2670 VOL 25-34

cient that none of them controvert the conclusion reached in this case. The cases that are applicable are in Cawood's favor.

The decision of May 14, 1896, supra, must be recalled and vacated, and the decision of your office in this case affirmed; and it is so ordered.

HOLCOMB 2. STATE OF CALIFORNIA.

Motion for review of departmental decision of January 18, 1897 (24 L. D., 26), denied by Acting Secretary Ryan, December 20, 1897.

RAILROAD GRANT-SETTLEMENT CLAIM--ACT OF JUNE 22, 1871.

BIGAREL . ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co. A homestead settler, who by alienation of the land has disqualified himself as an entryman, is not entitled to relief under the act of June 22, 1874, extending the time for the completion of certain railroads in Minnesota, and protecting the rights of settlers prior thereto.

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

21, 1897.

(C. W. P.) Charles W. Bigarel has appealed from the decision of your office of May 9, 1896, in the case of said Bigarel against the St. Paul, Minneapolis and Manitoba Railway Company, rejecting his homestead appli cation for the NW. of Sec. 35, T. 131 N., R. 14 W., St. Cloud land district, Minnesota.

The record history of the case is stated in your office decision as follows: Said tract is within the twenty miles indemnity limits common to the St. Paul, Minneapolis and Manitoba, main line, and the St. Vincent Extension Railways. It was selected for the St. Vincent grant, November 25, 1873, and certified to the State for said grant April 30, 1874. But this certification was revoked by the Secretary of the Interior, November 14, 1874.

On June 23, 1880, the governor of Minnesota, under the act of the legislature of the State, approved March 1, 1877 (Special Laws of Minnesota, 1877, p. 257), executed a deed of reconveyance to the United States for said land, for the benefit of Charles W. Bigarel.

On April 3, 1883, your office having no knowledge respecting the reconveyance of the land for Bigarel's benefit, again listed the land for the purpose of the railway grant. The listing was re-approved by the Secretary of the Interior April 3, 1883, and patent was issued thereon April 23, 1883, for the benefit of the St. Vincent Extension Railway Company, and the same was conveyed by the State to the said company, May 9, 1883.

On October 16, 1889, Charles W. Bigarel's application to make home

stead entry for the said tract was rejected by the local officers, because of conflict with said company's claim; and he appealed to your office.

Accompanying the application of Bigarel to make homestead entry is the evidence submitted by him to the State Board in 1879, in support of his application for the relief afforded by the State law of 1877, from which it appears that he settled on the said land in 1873, and has been continuously residing thereon from that time, and your office held that Bigarel is entitled to relief under the act of June 22, 1874 (18 Stat., 203), providing for an extension of time for the completion of said St. Vincent Extension and other railway lines in Minnesota, and cited the cases of Tronnes r. St. Paul, Minneapolis and Manitoba Railway Company (18 L. D., 201), and Ellingson v. the same (21 L. D., 254).

On June 6, 1894, Bigarel's case was examined by your office, and it appearing that the railway company was not present or represented at the time, he submitted his proof before the State Board, and in order that all parties might be heard in the matter, the local officers were directed to order a hearing, with notice to Bigarel and the railway company of the time and place for the same, for the purpose of ascertaining the precise condition of said NW. 1, Sec. 35, T. 131 N., R. 44 W., as to occupancy and residence by Bigarel at and subsequent to said act approved June 22, 1874.

A hearing was had, September 20, 1894, all parties in interest being present; and, upon the testimony taken, the local officers decided that Bigarel should be allowed to enter the land; from which the company appealed to your office.

The testimony shows that Bigarel is a citizen of the United States, and a qualified homestead claimant; that he settled on this land in June, 1873, and continued to reside thereon and cultivate a crop every season until 1889, when he made application to enter the land under the homestead law, and initiated the present contest.

It appearing that Bigarel was a settler on the land June 22, 1874, the date of the act extending the time for the completion of the said road (18 Stat., 203), your office held that his rights as an actual settler were saved and secured thereunder, the same as if said land had never been granted to aid in the construction of said railroad.

The time within which the said road should have been built under the granting act, and the extension of June 22, 1874, expired March 3, 1876. The road not having been completed, the State of Minnesota, by act of its legislature, dated March 1, 1877, extended the time on condition that the company or corporation taking the benefits thereof should not acquire, directly or indirectly, any right, title, interest, claim or demand in or to any tract or parcel of land within its granted or indemnity limits, to which legal and full title had not been perfected in said company or its successors or assigns.

At the date of this act, the land in question had not been patented to the State, and Bigarel having shown to the satisfaction of the State

Board of Commissioners that he had been an actual settler on the land since June, 18.3, the governor made the deed of relinquishment, in his favor, as aforesaid. But Bigarel did not make his homestead applica tion for the land until October, 1889. In the meantime, it had been approved and patented to the State, and by the State to the railroad company. And by papers filed at the hearing, it is shown that Bigarel purchased the tract in question, and the NE. 4 of said Sec. 35, T. 131 N., R. 44 W., from the railroad company, October 4, 1883, and received a deed for the same. And on April 22, 1892, he and his wife transferred the land by warranty deed to one E. J. Webber, who is now in possession of the same. Your office held that

Bigarel, by his alienation of the land by sale to Webber, whatever right he hitherto may have had under his homestead claim, disqualified himself as a homestead claimant under sections 2290 and 2291 of the Revised Statutes, and forfeited his right to relief under the act of June 22, 1874; that the sale to Webber being a direct and absolute alienation of the land, disqualified him from making the affidavits required under the sections of the Revised Statutes referred to.

And his application to make homestead entry for the said NW. † of Sec. 35, T. 131 N., R. 44 W., was rejected by your office decision. There appears to be no error in the decision of your office.

By the act of June 22, 1874, supra, the time for the completion of the road was extended, upon the following conditions:

That all rights of actual settlers and their grantees who have heretofore in good faith entered upon and actually resided on any of said lands prior to the passage of this act, or who otherwise have legal rights in any of such lands, shall be saved and secured to such settlers or such other persons in all respects the same as if said lands had never been granted to aid in the construction of the said lines of railroad.

The deed to Webber is a warranty deed from Charles W. Bigarel and wife to E. J. Webber. In explanation of the deed, Bigarel testified that he went to Webber and told him of the existence of a mortgage on the land and of certain other debts; and asked him to step in and help him lift the indebtedness; that Webber took the matter under consideration and finally proposed that Bigarel should give him (Webber) a deed of the land, and that he (Webber) and wife would give Bigarel a contract to reconvey to him one half the property when the indebtedness was paid; that he accepted said proposal; conveyed the land to Webber and received from the latter a contract for the reconveyance of one half of the land when the indebtedness was paid; that he (Bigarel) went east during the following spring, with the intention of raising money to buy Webber out; that while there he traded his contract to one Thayer, and that Webber subsequently bought the contract from Thayer for little or nothing.

It thus appears from Bigarel's own statement that the absolute title to the land is now in Webber, as he not only holds Bigarel's deed, but also the contract given by him to Bigarel. The amount of the consideration passing from Webber to Thayer is of no consequence to Bigarel, for by his own testimony he traded the contract to Thayer, and

he does not claim that he did not receive value, or that there was any collusion between Webber and Thayer.

It is held in the case of Crawford . Furguson, 10 L. D., 274, that the sale of an undivided half interest of the land covered by a homestead entry prior to final proof renders the homesteader incompetent to perfect his entry, and that the defect can not be cured by a reconveyance in the presence of an intervening contest charging incompetency. The decision of your office is therefore affirmed.

PRACTICE-NOTICE-REVIEW-DESERT LAND CONTEST.

VRADENBURG'S HEIRS ET AL. v. ORR ET AL.

(ON REVIEW.)

A mere docket entry of notice by registered letter is not evidence that service of a notice of decision was in fact so made.

Evidence not newly discovered comes too late when offered for the first time on motion for review.

A contest against a desert land entry on the ground of non-reclamation is premature, if the entry in question was at one time suspended, and the statutory life of the entry has not expired exclusive of the period of suspension.

Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) 21, 1897. (C. W. P.)

By letter of November 30, 1897, your office transmitted a motion by Hiram L. Waits, John L. Wasson, Teresa Parero, W. B. Timmons, and James Herington, for review of departmental decision of October 12, 1897, in the case of Heirs of L. C. Vradenburg et al. against T. B. Orr, entryman, and Emile Chauvin, transferee (25 L. D., 323); and on the same day you transmitted a separate motion for review of said decision, on the part of Thomas E. Taggart. The land involved is Sec. 10, T. 25 S., R. 25 E., Visalia land district, California.

The motion for review, on the part of Waits and others, contains tem specifications of error; but it is unnecessary to consider any of these specifications (with the exception of the first and second specifications), as no questions in the case are presented by them which were not fully considered by the Department when the case was decided upon the merits. In such cases motions for review are denied. Shields v. McDonald, 18 L. D., 478, and cases cited.

It is alleged, in substance, in the first and second assignments of error, that the Department erred in not finding from the official records, to wit, a certified copy of the entries on the contest docket of the land office at Visalia, which was filed with their joint appeal from your office decision of April 9, 1897, that the defendant Orr was served with due notice of the departmental order of January 12, 1891, revoking the suspension ordered by the Department on September 12, 1877, by registered letters, dated May 22, 1891, and August 6, 1891.