It is

receive the same action when reached in the course of business. apparent, therefore, that whatever the opinion or practice of the local office at which this entry was made may have been, your office has promptly corrected errors of the character in question whenever the facts were brought to its attention by canceling as illegal homestead entries made under the circumstances indicated.

The contention that Perry's homestead entry should be recognized and treated as valid, because the register and receiver, knowing the facts relative to his pre-emption claim, misled him by allowing his homestead entry, can not be sustained. This Department has no power or authority to legalize an illegal act, even though that act was done with the permission of one of its officers. On the other hand, one of its duties in cases relating to the public lands is to correct errors of law or of fact committed in the local land offices, when properly brought to its attention.

It is therefore clear on the theory on which the motion for review was filed, to wit, that whatever of irregularity or illegality appeared in Perry's homestead entry as made should be excused and condoned because of the part taken in such illegality by the register and receiver, that this Department cannot furnish the entryman any relief. But in an argument recently filed in behalf of Perry it is contended in effect that his homes tead entry was legal; that under section 2297 of the Revised Statutes a settler is allowed six months in which to commence his residence on land entered by him under the homestead law, and therefore that this entryman had a legal right to make his homestead entry while he had a pre-emption claim pending upon which he afterward made final proof, and then, before the expiration of six months from date of homestead entry, established his residence on the land covered by said homestead entry.

This Department cannot recognize this as a correct exposition of the law. It has never recognized the right of a person to at the same time claim one tract as a pre-emptor and another as a homestead entryman, for the very good reason that both the pre-emption law and the homestead law require residence, and a person cannot maintain two resi dences at one and the same time.

While a homestead entryman is allowed six months within which to establish his actual residence upon the tract embraced in his entry, the law regards his residence as commencing from the date of his entry, and if it appears, or as in this case is shown by proof, that residence after that date was elsewhere, then clearly the homestead entry was illegal. Rufus McConliss (2 L. D., 622); J. J. Caward (3 L. D., 505); Collar v. Collar (4 L. D., 26); Austin v. Norin (4 L. D., 461).

The motion for review and rehearing must be denied, and the decis ion of May 12, 1886, is adhered to.

RAILROAD GRANT-FINAL PROOF.

BRADY V. SOUTHERN PAC. R. R. Co.

The notice of intention to make final proof given in accordance with the act of March 3, 1879, is an invitation to any and all parties to appear and show cause why the entry should not be allowed.

The failure of a railroad company, claiming, previous to selection, under a prior indemnity withdrawal, to thus appear and assert its claim is conclusive.

Acting Secretary Muldrow to Commissioner Sparks, February 8, 1887.

I have considered the case of Peter F. Brady v. the Southern Pacific Railroad Company, transmitted by your office letter, dated November 10, 1885, in accordance with departmental instructions, dated October 29, 1886.

The record shows that said Brady made homestead entry No. 45 of the SW. of the NE. 4, the NW. of the SE. and S. of the NW. of Sec. 13, T. 26 S., R. 33 E., M. D. M., at the Bodie land office, California, on March 15, 1878, upon which final proof was made and final certificate No. 168 issued on April 13, 1885, at the Bodie land office, in said State.

The decision appealed from states that the land is within the thirty mile or indemnity limits of the grant to said company by act of Congress approved July 27, 1866 (14 Stat., 292); that the map of designated route of the line of said company's road was filed in your office on January 3, 1867, and the lands were ordered to be withdrawn by letter, dated March 22, 1867, which letter was received at the local land office on May 21, 1867. Your office held that, as the company had never selected said lands, its right to the land in controversy had never attached, and that by its failure to appear at the time of making final proof by Brady, the company had waived whatever right it might have. asserted in the premises.

Notice was given by your office to the resident attorney of said company of said decision. Thereupon, the company on September 12, 1885, filed an appeal from said decision, which was dismissed by your office on September 25th ensuing. Upon application of the company, your office was directed to certify the papers to this Department under Rules of Practice Nos. 83 and 84.

It is contended by the company that Brady could acquire no right of entry of said land, because of said withdrawal, and that the notice given by Brady of his intention to make final proof was not a legal notice to the company, and that the company waived no right by not appearing at the local land office. This contention cannot be maintained.

By the act of Congress approved March 3, 1879 (20 Stat., 472), persons seeking to enter agricultural lands, under the pre-emption and homestead laws, are required to file with the register of the proper land office notice of their intention to make final proof, describing the land and giving the names of the witnesses by whom said proof will be made. Thereupon the register is required to make due publication and posting

of such notices, and at the expiration of the period required for the publication and posting of the same, the claimants are entitled by law to make proof showing their right to enter the tracts claimed by them. This notice has been invariably held to be an invitation to any and all parties to appear at the time and place designated therein and contest the applicant's right to enter the land claimed by him. Brady gave this notice as required by law, and the company failed to appear and contest his right, and hence, having failed to speak when it should have spoken if it claimed any right to the lands covered by said entry, it can not now be heard to set up a claim after the settler has made proof and payment and received his certificate from the proper officers. No good reason is given why the company did not appear at the time and place designated and assert its rights to the land in controversy, if it had any.

In the case of the Atlantic and Pacific Railroad Company v. Andrew J. Forrester, decided by this Department on December 5, 1882 (1 L. D., 481), upon the authority of the case of Gilbert v. the Saint Joseph and Denver City Railroad Company (ibid., 472), it was held that the company, because it failed to appear "to answer the regular citation issued upon Forrester's motion, was guilty of laches, by reason of which it may be held to have waived its right to assert title to the tract in question, or to object to the consummation of his claim to the same."

This ruling appears to have been invariably followed by this Department, as is shown by the reported cases of the St. Paul, Minneapolis and Manitoba R. R. Co. v. Cowles (3 L. D., 226), the Atlantic and Pacific R. R. Co. v. Buckman (ibid., 276), and Matthew Sturm v. the Northern Pacific Railroad (5 L. D., 295), besides numerous other cases not reported.

While it is true that in the cases of Gilbert, Forrester and Sturm (supra), the lands were within. the granted limits, the reason of the rule laid down in those cases applies with equal, if not more, force to cases of settlers within the limits of the withdrawal for indemnity purposes. Prest v. The Northern Pacific R. R. Company (2 L. D., 506).

A careful consideration of the whole record shows no good reason why the decision appealed from should be disturbed, and it is accordingly affirmed.

SCHOOL SECTION-SETTLEMENT BEFORE SURVEY.

JOHN JOHANSEN.

The right to assert a settlement claim for land within a school section is confined to the settler before survey.

Acting Secretary Muldrow to Commissioner Sparks, February 9, 1887. I have considered the case of John Johansen, involving the NE. 4 of Sec. 16, T. 5 S., R. 23 E. Salt Lake district, Utah.

One Charles P. Smith originally filed pre-emption declaratory statement on the tract, September 26, 1879, alleging settlement November 1,

1878-prior to filing of township map, in December, 1878, which dis closed the fact that the tract was a portion of a school section. In June, 1882, Smith sold the improvements to Johansen, who at once took possession, and at a later date applied to make homestead entry of the same. This application the local officers rejected; and on appeal, your office affirms their action. Johansen now appeals to the Department. Johansen makes affidavit-sworn to before the register of the land office at Salt Lake City-that the improvements on the tract consist of two miles of irrigating ditches; a fence about the whole tract; thirty acres under cultivation; a log house with three doors, three windows, board floor, and otherwise comfortable as a residence; a log stable, a granary twelve by twenty-eight feet; a well seventeen feet deep; and other improvements, the whole being worth between $1500 and $2000, all of which belong to him, and he is the sole occupant of the tract.

Both the homestead and pre-emption laws require personal settlement on public land, in order to recognition of a claim thereunder. Hence in the present case the only person who could successfully contest the reservation in favor of the territory would be Smith, who settled upon the tract prior to survey-providing he had maintained residence since such settlement. But Johansen, settling subsequently to the survey could not defeat the claim of the Territory (Thomas E. Watson, 4 L. D., 169).

The decision of Mr. Secretary Teller, in the case of Christian P. Willingbeck (3 L. D., 383), upon which counsel for Johansen strongly relies in his appeal, declares the rule requiring personal settlement of the ap plicant to be technically correct. The decision in the case of Thomas E. Watson (supra) is believed to be a right interpretation of the law. I affirm your decision.

PRACTICE-APPEAL-REPAYMENT.

DEFFEBACH v. BONHAM ET AL.

Application for repayment and restoration of homestead right, filed pending appeal from a judgment cancelling a former homestead entry, is an abandonment of the appeal.

Acting Secretary Muldrow to Commissioner Sparks, February 9, 1887.

In the contest case of Lewis C. Deffebach against the homestead entry of William H. Bonham for the NW. of Sec. 30, T. 16 N., R. 14 W., Grand Island, Nebraska, in which the relinquishment of claimant was filed by Thomas M. Reed, and the latter was allowed to make homestead entry, your office, by letter of February 25, 1885, decided that said relinquishment was filed as a result of the contest, and accordingly held for cancellation said entry of Reed, and awarded the preference right to Deffebach. An appeal on behalf of Reed was filed.

Afterwards, on April 22, 1886, your office transmitted the application of said Reed for restoration of his homestead right and repayment of fees.

It is clear that Reed can not consistently maintain his appeal and this application at the same time. Only in the event of the failure of his appeal could the application referred to be considered. I must therefore hold, since the application was filed after the appeal, that the filing of the application for restoration of the homestead right and for return of fees amounts to an abandonment of the appeal.

This disposition of the case leaves nothing further to be considered by me. Said application is returned for the action of your office.

PRACTICE-APPEAL-REVIEW.

GRAY v. WARD ET AL.

The refusal of the General Land Office to review a decision is not appealable. In case of a decision in the General Land Office where the rights of two or more of the parties are adversely affected thereby, the appeal of one will not preclude the consideration of a motion for review filed by another.

But the refusal of the Commissioner to entertain the motion for review affords no ground for the dismissal of the appeal.

Acting Secretary Muldrow to Commissioner Sparks, February 9, 1887.

I have considered the motion of counsel for Charles R. Gray, filed in this Department on December 24, 1886, to dismiss the appeal of John S. Ward from the decision of your office, dated August 27, 1886, cancelling his desert land entry No. 5 of Sec. 8, T. 2 S., R. 4 W., S. B. M., made at the Los Angeles land office, in the State of California, on May 4, 1877, and allowing Ward's homestead and timber culture applications for a portion of said section subject to the preference right of entry of John A. Dixon and Thomas C. Kendall.

It is alleged in said motion that said appeal by Ward was filed in your office without serving a copy of the same upon Gray or his counsel, as required by Rule of Practice No. 86 (4 L. D., 47); that prior to the filing of said appeal counsel for Gray had filed in your office a motion for a review and reconsideration of said decision, and served a copy thereof on the counsel for Ward; that said counsel recognized said Gray as a party to the record by serving a copy of their answer to said motion upon his said counsel, in which it was claimed that the appeal filed by Ward took precedence over the motion for review, and that your office held that under the departmental decision in the case of W. F. Hawes et al. (5 L. D., 284) that the filing of the appeal by Ward oustel your office of any jurisdiction over said case, and the papers were accordingly transmitted to this Department on December 18, 1886.