of registers and receivers, the exercise of their authority to thoroughly scrutinize and test the accuracy and reliability of all proofs presented for their acceptance. Merely formal answers to the interrogatories contained in the printed forms should not be deemed satisfactory without the test of such scrutiny, and sufficient cross examination. The printed forms were designed for the purpose of facilitating business, but were never intended to preclude further inquiry, nor to interdict a verification of the correctness of the answer made.

In the matter of pre-emption entries by non-residents, to which refer. ence is made in your letter, you are authorized to put such inquiries and make such examinations as will enable you to judge of the good faith of the party. The fact that the family of a pre-emptor does not live upon the land, and perhaps not in the same State or Territory, does not necessarily impeach the good faith of the entryman, but is a circumstance of which you should take cognizance as one of the elements to be considered in the case, especially when good faith is questionable.

You will be guided by the foregoing views hereafter, without regard to anything in the decision in the case of Fairbrother, referred to by you, from which you drew contrary deductions.

SOLDIERS' HOMESTEAD-SETTLEMENT.

MILNE v. ELLSWORTH.

On December 15, 1882, circular instructions changed the ruling which had protected a claimant under the soldiers' homestead law from contest for six months after entry; a contestee, who initiated the claim while said ruling was in force, is protected by it.

Secretary Teller to Commissioner McFarland, December 1, 1884.

I have considered the case of Kate Milne v. Eleanor M. Ellsworth, involving the SW. 4 of Sec. 32, T. 113, R. 60, Huron, Dakota, on appeal by the contestant from your decision of January 11, 1884, dismissing the contest.

It appears that Mrs. Ellsworth, a soldier's widow, filed her declaratory statement on July 7, 1882, and made homestead entry on December 14, 1882. On April 27, 1883, Miss Milne filed contest against it, alleging failure to make settlement and cultivation as required by Sections 2304 and 2309 of the Revised Statutes. The contest was dismissed by the local office, and by your office, on the ground that under rulings existing at date of the entry, it was not subject to contest on the ground stated.

Said ruling, as appears by your letter of the 21st instant on file in the case, was changed by circular of December 15, 1882 (1 L. D., 36), but until so changed it was in force and well known in all the land districts.

In the case of Miner v. Marriott (2 L. D., 709), wherein I overruled a long-standing practice in relation to adverse claims against mining lo cations, I remarked that "the rule of this decision should not operate to interfere with or take away any rights acquired under the law as it has heretofore been construed by your office. Until a rule is changed, it has all the force of law, and acts done under it while it is in force must be regarded as legal." Mrs. Ellsworth pleads that she is protected by the aforesaid ruling, which in effect interpreted the law as not requiring her to settle on and improve the land within six months after her filing. She is in a position to plead this protection, because she acquired the incipient right to the land in contest while the ruling was in force. Your decision is therefore affirmed.

DESERT LAND-ASSIGNMENT OF ENTRY.

DAVID B. DOLE.

Assignments of desert-land entries were (erroneously) authorized by instructions of March 12, 1877; said instructions were revoked April 15, 1880; upon the principle that the public have a right to rely on such official interpretations of the law, assignments made prior to date of said revocation, under said instructions, will be recognized, if not otherwise violating the law.

Where two entrymen assigned their entries (640 and 520 acres respectively) to one person, in 1879, he may prove up one of said entries only, under the ruling in the case of Joab Lawrence; but proof of reclamation by himself will be received; whatever title to the other tract remains is in the original entryman.

Secretary Teller to Commissioner McFarland, December 1, 1884.

I have considered the appeal of David B. Dole from your decision of September 13, 1884, declining to accept his final proofs offered December 22, 1883, upon desert-land entries Nos. 52 and 53, made respectively by Charles H. Bussard and Mary Hunt April 16, 1878, upon certain tracts in the Cheyenne, Wyoming, land district, and holding the entries for cancellation for non-compliance with the law by the entrymen, and for attempted conveyance of title before patent in fraud of the law.

It appears that these entries were each assigned March 3, 1879, by the entrymen to one Irvinson, and subsequently (at a date which does not appear) by Irvinson to Dole. No improvement of the tracts was made by either of the entrymen; that made was made by Irvinson or Dole.

Your circular instructions of March 12, 1877 (4 C. L. O., 22), under the desert-land act of March 3, 1877 (19 Stat., 377), required the local officers, after proof of the desert character of the land, the filing of the proper declaration, and the payment of a certain sum of money, to issue a certificate to the declarant, stating, among other things, that if within three years therefrom the declarant "or his assignee or legal representatives" should reclaim the land as required by the act, and pay an

additional sum of money, "he or they" should be entitled to a patent for the land. They also provided that, at any time within three years from the date of the certificate, "the proper party" might make the required proof. I understand from this that your office recognized the right of assignment of a desert-land entry, and that the assignee might make the proof required of the entryman and become entitled to a patent in his own name. Although I find nothing in the act to warrant so broad a construction of its provisions-especially as it expressly provides that the declarant shall make oath that he intends to reclaim the land and that upon proof of reclamation patent shall issue to him, and as the right of assignment is not directly authorized-yet these instructions had the force of law, and parties bad the right to assume that this was the legal construction of the act, and that assignees of such entries would be protected in their purchases and have the rights of entrymen. I think it immaterial that the construction was erroneous and unwarranted, so long as it was the official announcement of the law by the Land Department. These instructions continued as the rule and practice of your office until April 15, 1880, when Secretary Schurz ruled, in the case of S. W. Downey (7 C. L. O., 26), that desert-land entries were not assignable. I concur in that ruling, except as to that part which says "there is no discretion either in this act, or by any other law, which authorizes me to treat such claims as assignable, because the assignment was made under a misapprehension." I do not understand that a party acts under a misapprehension of the law, so as to lose any right, when he acts under its official interpretation. The misapprehension in such case is upon the part of the interpreting authority, and not upon him who in the prosecution of a claim conforms to such interpretation. A different rule would permit every person to construe the law for himself; and hence, your office being a proper exponent of this law, entrymen and their assignees acting under such exposition should not be required to forfeit any right by subsequent construction inconsistent with the first.

The ruling of Secretary Schurz has governed this Department and your office since its date. I think therefore that assiguments made prior to that date, under your instructions, should be sustained; and I should sustain both those now in question, made prior thereto, were there no further provision of the act of March 3, 1877, requiring a different ruling. This statute provides "that no person shall be permitted to enter more than one tract of land, and not to exceed six hundred and forty acres, which shall be in compact form." In my decisions of April 24 and June 30, 1884, in the case of Joab Lawrence (2 L. D., 22), it was held that as the acquisition of desert land by one person is directly limited by theact to 640 acres, one person may not acquire by circumvention and indirectly a larger acreage of such land. The same ruling must apply in this case. After different persons have acquired title, each to 640 acres, they may undoubtedly sell or assign their rights to the same person, so

that he may own a much larger acreage than 640 acres. But so long as the title remains in the government, the law in respect to the land must be enforced, and no one may be allowed to acquire, directly or indirectly, more than the acreage to which he is expressly restricted. That is sought to be done in the present case. The land embraced in Bussard's entry covers 640 acres, and that in Hunt's 520 acres, the two aggregating 1160 acres. Recognition of these assignments would therefore allow to Dole 520 acres more than the act permits one person to acquire, and would contravene an express provision.

As an assignment of an entry prior to April 15, 1880, is held valid under the views here expressed, it would be a vain thing to admit the legality of the assignment, and then, refusing to allow the assignee to reclaim the land, to exact the reclamation from the entryman. Your decision, however, directs cancellation of these entries in part "for non-compliance with the law by the entrymen." It is true that the act requires reclamation by the entryman; but when an assignment is recognized, the assignee should be entitled to all the rights of the entryman. To cancel the entry because he, and not the entryman, has done the work, would be wholly inconsistent with the right which the assignee has been permitted to acquire under the assignment.

I think Dole should be protected so far as the law will permit. This may not extend beyond his acquisition of 640 acres. I therefore modify your decision, and allow him to elect in writing, within sixty days from notice hereof, under which of these entries he will claim; that one he will be allowed to perfect. As to the remaining tract, if the assignment is void, then the title, whatever it may be, that is created by the partial compliance with the law, must still remain in the entryman; but what his rights are cannot be definitely determined until an attempt is made to make final proof by the entryman, or by a direct attack on the bona fides of his entry. But as the law requires patent to issue to the entryman, it will so issue in this case regardless of the assignment. Your order, therefore, cancelling the remaining or other tract is reversed, and the entry will stand for final proof.

PRE-EMPTION ENTRY-CANCELLATION; APPROPRIATION.
HENRY CLIFF.

The Commissioner canceled a pre-emption entry for fraud (the proofs showing a violation of Sec. 2260, R. S.) without hearing, but allowed A., the entryman, sixty days wherein to show cause for reinstatement, and directed that in the mean time no other disposition of the land should be made; before A.'s refusal to show cause, and before the expiration of the sixty days, B. made application to locate a warrant on the land: held, (1) that the Commissioner had authority to order that no other disposition of the land should be made pending determination of the entry's legality; (2) that, by reason of said order, the entry had the same force and effect as if the order of cancellation had not been made; and (3) that entries of record prima-facie valid appropriate the lands covered thereby, which are not subject to further appropriation whilst the entries remain uncanceled.

Secretary Teller to Commissioner McFarland, December 2, 1884.

I have considered the appeal of Henry Cliff from your decision of January 17, 1884, affirming the action of the register and receiver, Marquette, Michigan, rejecting his application of August 24, 1883, to enter with Porterfield warrant No. 87, Lots 1 and 2 of Sec. 32, T. 41 N. R., 16 W. The record shows said tracts were embraced in Joseph Walsh's preemption cash entry No. 11943, made May 25, 1881, for the NE. † (fractional) of said Section 32, based on pre-emption declaratory statement No. 468, filed October 9, 1880, alleging settlement October 5, preceding, and that said entry was canceled by your letter of August 16, 1883. In said letter you directed the local land officers to notify Walsh of said cancellation and allow him sixty days within which to show cause why his entry should be reinstated, and "in the mean time to allow no disposition of the land." "In the event of an application for reinstatement within the time named," it proceeded, "you will forward the same with the accompanying papers to this (your) office and await instructions; otherwise, at the expiration of the sixty days allowed, the land will be held as open to entry by the first legal applicant." You canceled said entry upon the report of special agent L. J. Barnes, alleging that it was speculative and fraudulent, and because Walsh testified, in his pre-emption proof, that he had left or abandoned a residence on land of his own to reside upon the land embraced in said entry.

It appears that Walsh, after obtaining his certificate of entry, leased a portion of the land (Lots 1 and 2) covered by his said entry to the Delta Lumber Company, and that said company has put upon said Lot 2 improvements valued at seventy-five thousand dollars. In response to the notice from the register and receiver to show cause why his entry should be reinstated, Walsh filed his affidavit, dated October 30, 1883, admitting that he removed from land of his own to settle upon said tracts, and declining to show cause why his entry should be reinstated. In said affidavit Walsh earnestly denies the allegations of fraud made in said report, and solemnly avers, and offers to prove, that his settlement and entry were made in good faith, and that he was not told by the local land officers, and did not know, that removing from his own land in the same State disqualified him from making a pre-emption entry for said land.

You rejected Cliff's application on the ground that the lands applied for were not subject to entry pending the determination of the rights of Walsh.

The contention is that said entry did not except the lands covered thereby from entry and purchase under the laws of the United States, and had no force or validity whatever; and that the cancellation of said entry, subject to the right of Walsh to show cause for reinstatement within sixty days, although the register and receiver were directed not to allow any disposition of said land, operated to render said tracts subject to location with said Porterfield warrant.