stead papers issued on such testimony, and also where a fee is paid for allowing entries under the timber-lands act of June 3, 1878, the receiver shall indorse on both the original and duplicate receipt, or certificate of location, where there is no receipt in the case, as acknowledgment of the amount of fees received for reducing testimony to writing, examining and approving the same, or other special account as the case may be; and that in contested cases where testimony is taken, as also in cases where transcripts of records are furnished under section 2239, R. S., or fees received under the act of March 3, 1883, he shall issue a receipt for the money to any party paying the same (it being the duty of the receiver to receive and receipt for the money in every case), but no duplicate of the special receipt so issued need be transmitted to this office.

This circular is designed to take the place of circulars "M" of July 20, 1883, August 18, 1886, and November 6, 1886.

Approved:

H. L. MULDROW,

Acting Secretary.

OSAGE TRUST LANDS-ENTRY.

CIRCULAR.

Commissioner Sparks to registers and receivers, April 26, 1887.

The Osage Indian trust and diminished reserve lands are subject to sale to parties having the qualifications of preemptors on the public lands.

Claimants are required to file a declaratory statement within three months from date of settlement, and to make proof and payment within six months from date of filing.

The proof must be made after notice by publication, before the offi cers authorized to take proof in preëmption cases, and must show that the claimant is a qualified preëmptor and an actual settler on the land. at the date of application to enter. Six months continuous residence next preceding date of proof, is not an essential requirement, but it is essential that the settlement be shown to be actual and bona fide.

Payment for these lands must be made in cash at the rate of $1.25 per acre, and may be made by installments, one-fourth the purchase price when proof is made, the remainder in three equal annual installments with interest on the deferred payments at the rate of five per cent. per annum.

Section 3, of the act of May 28, 1880, provides that when default in payment of any installment of the purchase money, when it becomes due, continues, the land may be offered at public sale, after advertisement, unless before the date fixed for the offering, payment of the whole purchase price is completed.

After payment of the first installment of purchase money has been made, the lands are subject to taxation according to the laws of the State of Kansas.

Payment of the remaining installments must be made by the entryman or in his behalf, and patents can be issued to entrymen only.

By filing Osage declaratory statements in accordance with the act of May 28, 1880, the right of preëmption to such-or any other lands—is thereby exhausted.

Approved:

H. L. MULDROW,

Acting Secretary.

RAILROAD GRANT-INDEMNITY SELECTION.

ALABAMA AND CHATTANOOGA R. R. Co. v. TENNESSEE AND COOSA R. R. Co.

Land within the granted limits of a road not constructed within the required time, but definitely located and not forfeited by Congress, is not subject to the indemnity selection of another road.

Acting Secretary Muldrow to Commissioner Sparks, January 29, 1887.

The attorney for the Alabama and Chattanooga Railroad Company has filed an informal motion asking a modification of departmental decision, dated the 13th instant, in the case of said Company v. Tennessee and Coosa Railroad Company, involving certain lands in the Huntsville land district, Alabama. Said decision merely affirmed that of your office, dated July 28, 1885, which concluded as follows:

The tracts in question are within the six mile (granted) limits of the grant to the State of Alabama by Act of June 3, 1856, to aid in the construction of the Tennessee and Coosa Railroad. The grant for the road has not been declared forfeited and the lands are not subject to selection by the Alabama and Chattanooga Railroad Company as indemnity.

This motion is not served upon the opposite party as is required by the rules; but inasmuch as the modification asked for would not change the conclusion reached in said decision, but would only base it upon other grounds, I have concluded to give the matter consideration.

It is insisted that while the conclusion reached, to wit: that the Alabama and Chattanooga Railroad Company's selection of the particular lands here in controversy should be rejected, is correct, it is based upon wrong grounds. As already stated, the rejection rested upon the ground that the Alabama and Chattanooga road could not select as indemnity lands within the granted limits of the Tennessee and Coosa road, although as a matter of fact the latter road had not been built within the time required by the granting act, it appearing that the road had been definitely located and the grant never having been forfeited by

Congress. This ruling rested upon the authority of the well known case of Schulenberg v. Harriman (21 Wall., 44), although no mention was made of said case in said decision. It is further insisted that said decision is "foreign" to the real question involved in this case, for this reason, viz: That the lands here in controversy had been certified over to the State in 1860 for the benefit of the Tennessee and Coosa Road, and therefore this Department has no authority and jurisdiction to pass upon the merits of the case at all. Now, while it may be true that these lands have been certified over to the State of Alabama for the benefit of the Tennessee and Coosa Road, and while it may be admitted for the sake of further inquiry that such certification would carry title as completely as patents. yet it must be admitted that those facts did not appear in your said office decision, neither were they raised by counsel in his appeal from said decision to this Department. On the contrary, no mention was made of that fact in said appeal and argument based thereon, but argument was strenuously made that, upon the record as then presented, the Alabama and Chattanooga road was entitled to the lands in question as indemnity lands. These additional facts (if such they may be called) were known by counsel when his said appeal was taken; and while if they had appeared in the record, the decision complained of might have been based upon a somewhat different ground from the one stated, yet I can not see that said deci sion is in any particular incorrect. The question before the Department when said decision was rendered was fully argued upon brief by counsel for each party to the case, and the whole matter was then given a very careful examination and a thorough consideration.

I see no reason either for receding from the views expressed in said decision of the 13th instant, or for modifying them. The application of counsel is therefore denied.

HOMESTEAD ENTRY—AMENDMENT.

HENRY E. BARNUM.

The right of amendment recognized where the entry was not for the tract intended and due care and prudence had been exercised.

Acting Secretary Muldrow to Commissioner Sparks, March 11, 1887.

May 9, 1885, Henry E. Barnum made homestead entry No. 7375 of the SE. of Sec. 4, T. 11, R. 36, North Platte, Nebraska. June 3d following the local office transmitted the duly corroborated application of said entryman, asking that he be allowed to amend his entry so as to embrace in lieu of the tract entered the S. of NW. and N. of SW. , same section, or in case said tracts had been already entered, then he asked that his said entry be canceled without prejudice and he be

allowed to enter the SW. of Sec. S, same township and range, with credit for fee and commissions.

In said application claimant alleged that being a stranger in that country, before making his entry he in company with one James Stanley, who was a kind of land locator" and appeared to be familiar with all the land thereabouts, looked over various tracts of land so as to secure a suitable tract for a home; that Stanley showed him a good smooth quarter section and informed him that he well knew the boundaries of the land in that section, having previously surveyed all the land in that vicinity and that the land shown him was properly described as the SE. of Sec. 4, T. 11, R. 36; that relying upon the statements made by Stanley, and not being able to find any "land marks" or "survey stakes," he made his entry as aforesaid, and immediately went to one of the eastern counties in the State and brought his family and household goods to the land, with the intention of establishing a home there; that he then for the first time ascertained that the land he had entered was not the tract he supposed he had entered, but was a worthless tract composed of nothing but a waste of sand; and that the tracts to which he now seeks to amend are the tracts that he intended to enter, and which he supposed he had entered. Stanley corroborates this application.

July 9th following your office considered the case and rejected Barnum's application, for the reason that the tracts to which he seeks to amend had already been entered by other persons, and for the further reason that the field notes of the tract entered show said last mentioned tract to be "rolling soil second rate,' which is generally regarded as good soil."

Barnum thereupon moved for a reconsideration of said decision, and filed with his motion therefor two affidavits, showing clearly the worthless character of the tract entered by him, and the error in the field notes in relation to the same.

Thereupon, by decision dated September 22, 1-85, you reconsidered said decision of July 9th preceding, and found that the tract embraced in Barnum's entry "is composed of fine sand and is unfit for agricultural purposes." You, however, adhered to the conclusion in the former decision and again denied the application to amend, holding that "It does not appear to the satisfaction of this office that Barnum used the proper care in making his entry."

From this decision an appeal has been brought here and the case has been duly considered. The allegations in the appeal are substantially the same as those in the original application; and from a careful examination of the entire record, I am of opinion the present application should be granted. The applicant appears to have acted in the best of faith, and his mistake, I take it, is such a one as is liable to be made by a man exercising ordinary care and prudence.

If, as stated by you, the tracts which he intended to enter, to wit, S. of NW. and N. of SW. of said section 4, had been entered by 4 other persons prior to the present application to amend, I see no objec tion to allowing him the privilege of making entry of the SW. of said Sec. 8, subject to any valid adverse claim attaching prior to the date of the present application.

The decision appealed from is therefore reversed.

PRACTICE-APPEAL-DECISION OF LOCAL OFFICE.
MCSHERRY v. GILDEA.

A decision of the local office, not coming within any of the exceptions in rule 48, in the absence of appeal becomes final, and should not be reversed by the General Land Office.

Acting Secretary Muldrow to Commissioner Sparks, April 11, 1887.

December 20, 1882, John Gildea made homestead entry No. 11283, of the SW. of Sec. 34, T. 107 N., R. 43 W., Tracy, Minnesota. Against this entry Peter McSherry, on the 23d of July, 1883, brought contest on the general charge of abandonment. Hearing was had November 15, 1883. Upon the evidence then adduced the register and receiver rendered a decision holding that the entryman had never established residence on the tract as required by the homestead law; that his claim was made in bad faith, his very slight improvements being made for the purpose of "holding the claim down"; and that therefore said entry ought to be canceled. From this decision no appeal was taken by claim ant, and the case came up to your office under the rules. June 10. 1885, your office rendered a decision holding that the entryman had substantially complied with the law, although no residence was shown; that he had acted in good faith; and that therefore the contest should be dismissed. Thereupon appeal is brought here and the case has been given due consideration.

It is insisted on behalf of appellant that the decision of the local office upon the facts in the case became final for want of appeal, and that therefore your office erred in reversing said decision, or in even considering the evidence in the case, citing rule 48.

This rule provides:

In case of a failure to appeal from the decision of the local officers, their decision will be considered final as to the facts in the case, and will be disturbed by the Commissioner only as follows:

1. Where fraud or gross irregularity is suggested on the face of the papers.

2. Where the decision is contrary to existing laws or regulations. 3. In the event of disagreeing decisions by the local officers.