I therefore hold that the land was not a part of the public domain until the act of April 11, 1882, and that it was in a state of reservation at the date of the filing of the map of definite location, July 27, 1881, and hence was excepted from the operation of the grant.

NOTICE AS EFFECTED BY SETTLEMENT; PATENT.

L. R. HALL.

The notice given by settlement and improvement extends only to the quarter section as defined by the public surveys.

Suit to vacate a patent on behalf of an alleged prior settler not advised, it appearing that he has an adequate remedy of his own if his allegations of priority are true. Acting Secretary Muldrow to Commissioner Sparks, September 9, 1886.

On October 14, 1880, Lewellyn R. Hall filed declaratory statement for the E. of SE. 4 of Sec. 26, and E. of NE. of Sec. 35, T. 120, R. "63," Watertown, Dakota, alleging settlement September 1, 1880.

On November 15, 1880, William Pascoe made additional homestead entry for the NE. † of NE. † of Sec. 35, T. 120, R. “64,” final certificate issuing the same day. At the same time Dudley Hix made additional homestead entry for the SE. † of NE. † of Sec. 35, T. 120, R. “64,” and final certificate issued the same day. On December 7, 1880, the local officers forwarded the corroborated affidavit of Hall, setting forth that he had settled on the E. of SE. of Sec. 26, and E. of NE. of Sec. 35, T. 120, R. "64," and that through mistake he had filed as above indicated. On February 3, 1881, he was allowed by your office to amend his filing so as to describe the tracts covered by his alleged actual settlement.

On July 20, 1881, the homestead entries were patented.

On March 9, 1882, Hall offered final proof, which was rejected by the local officers, because of conflict with the patented homestead entries. On appeal your office on July 10, 1882, held that Hall could not enter while the patents were outstanding, and advised that the patentees be requested to surrender said patents. The request was made, and C. H. Prior, the representative of said Pascoe and Hix, reported that he had sold the quarter section of land, part of which was included in said filing of Hall, and that the whole tract in contest had been sold in good faith. By letter of March 27, 1886, Hall, by attorney, represents that he has continued to live on said land in peaceable possession since filing, that he has the whole tract in cultivation, and that his possession is now threatened by the holder of the patents.

Your office, on the present application of Hall, recommends that proceedings be initiated looking to the cancellation of said patents, or that your office be "instructed whether Hall should be permitted, notwithstanding the outstanding patents to renew his proof and make entry of

the land, in order to give him a standing in court as against the claimants under the patents." Said letter further reports that the proof submitted by Hall has been lost.

I am unable to concur in said recommendation.

The four quarter-quarter sections now claimed by Hall are in a line running north and south, two of them being in section 26 and two in section 35. It does not appear in which section settlement was made, nor on which subdivisions the improvements were located. In the case of Quinby r. Conlan (104 U. S., 420), it is ruled that "a settlement upon a portion of a quarter section, and making the improvements required by law, will sustain a pre emptive claim to the whole quarter section as against subsequent settlers." Following this rule, I am of opinion that the settlement and improvements of Hall, if confined to section 26, would not be such notice as the entrymen in section 35 would be bound to regard. The notice given by settlement and improvement applies only to the quarter section as defined by the public surveys. If therefore the rights of the entrymen attached before notice of the claim of Hail was given, he is without remedy. If, however, Hall had given notice by settlement or improvement, or in any competent manner, of his claim to the tracts in section 35 prior to the making of said entries, then he has an adequate remedy in his own hands. The case then presented will be in all material respects similar to the case of Samson v. Smiley (13 Wall., 91-more fully reported in 1 Nebraska, 57).

Smiley made settlement, filed his declaratory statement, and resided on the land. Afterwards Samson settled on the tract and filed declaratory statement therefor. A contest arose and the land was awarded to Samson by the Secretary under an erroneous construction of the preemption law. Patent issued to Samson, and Smiley filed his bill to recover the legal title from him and his grantees. A decree was rendered in favor of Smiley, according to the prayer of his bill.

I am therefore of opinion that it is unnecessary to institute suit in the name of the United States in favor of applicant, in any aspect of his case, and said recommendations are accordingly rejected.

PRACTICE-AFFIDAVIT FOR CONTINUANCE.

COUGHLIN . DONAN.

Under the instructions of December 27, 1882, an affidavit for continuance is sufficient though executed before the day set for hearing and before some officer other than the register or receiver.

Acting Secretary Muldrow to Commissioner Sparks, September 11, 1886.

December 20, 1883, Peter Donan made homestead entry for the SE. of SW., and Lot 1, Sec. 17, Lot 5, Sec. 18, and Lot 1, Sec. 20, T. 353 N., R. 63 W., Grand Forks, Dakota Territory.

February 27, 1885, Thomas Coughlin initiated contest against said entry, charging abandonment, and hearing was fixed for April 30th following. On that day claimant, with his attorney and witnesses, ap peared; contestant did not appear personally, but was represented by attorney, who filed an affidavit sworn to by contestant on the preceding day before a notary public. In said affidavit contestant asked for a continuance of the case to a day to be fixed by the local officers, and for cause alleged that the attendance of certain material witnesses could not be procured. Claimant opposed the continuance, and after argument the local office overruled the motion and dismissed the contest, because the affidavit filed did not conform to Rule of Practice No. 20, in that it was not made before the register and receiver, and in that it was not sufficiently specific. Contestant thereupon appealed to your office, which on August 1, 1885, reversed the action of the local officers, and remanded the case to them for further proceedings under the affidavit of contest

Upon consideration of a motion for review and reconsideration of said decision, filed on behalf of Donan, your office on November 12th following adhered to the said ruling of August 1, 1885, and stated that said decision "was rendered in accordance with instructious from this office under date of December 27, 1882, 1 L. D., 134 and 135." Donan thereupon filed an appeal. On January 13, 1886, your office held the appeal would not lie, as no decision on the merits of the case had yet been rendered, the ordering of a hearing being merely an interlocutory action. Hence the present application for certiorari under Rule 83 is filed.

Upon examination of the affidavit for continuance I find the allega. tions therein to be sufficient. The said instructions of December 27, 1882, are in answer to an inquiry from the local officers at Montgomery, Alabama: "5. Can the affidavit required in Rule 20, Rules of Practice, be made prior to the day of trial, and before an officer other than the register and receiver?" The Commissioner says: "5. The most natural time to make the affidavit would seem to be on the day set for trial; but there could be no valid objection to the party making it at any time prior thereto. The proper time, however, to consider the affidavit is when the case comes up for trial. The rule presumes the affidavit to be made before the register and receiver. If the party is represented by counsel, an affidavit by said representative made before the register and receiver is satisfactory, or it may be made before any other officer qualified to administer oaths and using an official seal." Under these instructions said affidavit for continuance was authorized, and the case was improperly dismissed. The case will now proceed to hearing as directed in your said office letter. The papers transmitted by your letter of March 2, 1886, are herewith returned.

RAILROAD GRANT-ACT OF APRIL 21, 1876.

ST. PAUL, M. & M. Ry. Co. v. EVENSON.

An entry made after the map of definite location had been filed and accepted, but before notice of withdrawal thereunder was received at the local office, is confirmed by the first section of the act of April 21, 1876.

Acting Secretary Muldrow to Commissioner Sparks, September 11, 1886.

I have considered the case of Lars Evenson v. St. Paul, Minneapolis and Manitoba Railway Company, on appeal by the latter from your office decision of April 13, 1885.

It appears from the record that Evenson on the 25th of January, 1872, made homestead entry for lot 11 of section 27 and lot 2 of section 34, T. 128 N., R. 39 W., Fergus Falls land district, Minnesota; that he made final proof in 1878, which was accepted as satisfactory, and on May 25, 1885, the register and receiver, acting under authority of your office decision, the appeal from which is now before me, issued final certificate and receipt to Evenson.

It further appears that the tract in question is within the ten miles or granted limits of the line of the St. Paul, Minneapolis and Manitoba Railway (formerly St. Paul and Pacific, St. Vincent Extension). The grant referred to was made to Minnesota to aid in the construction of certain railroads. The act of Congress making the grant was approved March 3, 1857. It granted every alternate section of land, designated by odd numbers, for six sections in width on each side of the lines of road provided for by the act, and required that the roads be completed within ten years. (11 Stat., 195.)

The act of March 3, 1865 (13 Stat., 526), increased the grant from six to ten sections per mile, and extended the time for the completion of the roads to a period eight years after the passage of said act.

The act of 1857 provided for the selection of indemnity land in lieu of any sections or parts of sections granted which it should be found had been sold, or to which the right of pre-emption had attached when the lines or routes of said roads were definitely fixed.

The act of 1865 (Sec. 7) provided that "as soon as the governor of Minnesota shall file or cause to be filed with the Secretary of the Interior maps designating the routes of said road and branches, then it shall be the duty of the Secretary of the Interior to withdraw from market the lands embraced within the provisions of this act."

It appears from the recital in your office decision that the map of definite location of the line of route was accepted and approved by the Secretary of the Interior December 19, 1871, and that diagram showing the line of the road, together with the ten and twenty miles limits, were transmitted to the local office by your office letter of February 6, 1872, which also ordered the withdrawal of the odd-numbered sections

in both the granted and indemnity limits. Said letter was received at the local office February 15, 1872.

As already stated, Evenson made his homestead entry January 25, 1872, covering a tract, a portion of which is in an odd numbered section, within the ten miles limit of the grant for the benefit of the railroad.

It is to be observed that said homestead entry was made after the date of the acceptance of the map of definite location of the line of road by the Secretary of the Interior, but prior to the date when notice of said acceptance was received at the local land office.

In March, 1874, your office held the homestead entry for cancellation, in so far as it embraced land in the odd-numbered section, because of conflict with the railroad grant. In January, 1875, acting under authority of the act of June 22, 1874 (18 Stat., 203), it changed its action above indicated and allowed the entry to stand intact as to all the lands originally embraced therein, subject to final proof.

July 1, 1878, Evenson made final proof showing compliance with the homestead law in all respects, and instead of relying on your office decision of January, 1875, and the act of June 22, 1874, above mentioned, he invoked relief under the provisions of the act of April 21, 1876 (19 Stat., 35). The first section of said act provides:

"That all pre-emption and homestead entries, or entries in compli ance with any law of the United States, of the public lands, made in good faith by actual settlers upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant, prior to time when the notice of the withdrawal of the lands embraced in such grant was received at the local land-office of the district in which such lands are situated, or after their restoration to market by order of the General Land Office, and where the pre-emption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed and patents for the same shall issue to the parties entitled thereto."

The entryman's reason for invoking the provision of law just quoted instead of relying upon the act of June, 1874, to which he was referred by your office letter of January 14, 1875, is not stated, but it may be found in the fact that the Department has held the act of 1874 to be inoperative, because certain conditions named therein had not been complied with. The second section of that act required that the company before it could acquire any rights under the act should, by a certificate, duly executed and filed as therein provided, accept the terms and conditions of the act. As long ago as December 11, 1876, my predecessor, Secretary Chandler, held, in the case of Kemper v. St. Paul and Pacific R. R. Company (3 C. L. O., 170), that as the company had not accepted or complied with the terms and conditions of the act, it was therefore inoperative for any purpose. The company has never to this date accepted the terms of said act of 1874, and the decision of 1876, above mentioned, has since been followed by this Department.

2278 DEC-10