chase the same, after baving such lands surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts as required in this section, under regulations to oe provided by the Commissioner of the General Land office.

The construction of said section by this Department has uniformly been to the effect, that it does not confer a right of purchase upon one who has bought a mere undivided interest in a Mexican grant, without designating by particular description the land purchased. Hyatt v. Smith (L. & R., Vol. 14, p. 525); Aurrecochea v. Sinclair et al. (L. & R., Vol. 18, p. 120). In the case of Stevens v. Owens et al. (3 L. D., 401), Mr. Secretary Teller said:

I am satisfied that these conveyances are sufficient to support a claim under the act of 1866, even if the doctrine heretofore held by the Department respecting the disability of a co-tenant to make purchase in his individual name in any case, for any purpose, be adhered to, on which point I express no opinion. The deeds by specific boundary, descriptive of parcels of land with covenants of warranty, and accompanied with absolute and sole possession, are competent in my judgment to enable the claimant to come before the Department and complete the title under the act, leaving questions respecting the interest acquired, which may possibly arise in the future under the possessory laws of the State, to be settled by the judicial tribunals.

In the case of Welch v. Molino et al. (7 L. D., 210), the Department held that the right of purchase under the seventh section of said act is assignable, and, in the absence of any adverse claim, a party has the right of purchase who has bought a tract of land and entered into possession thereof, alter the survey of the grant excluding said land therefrom. In the last named case, the decision states that the purchase was made from the assignees of the Mexican grantees by metes and bounds. The deed to James Taylor does not purport to convey any particular tract of land, only the "interest of the said party of the first part, in or to that certain portion or tract of land situated in the counties of Contra Costa and Alameda, known as the Castro sobrante, which was granted by the Mexican government in the year 1841, to Juan Jose Castro and Victor Castro, bounded on the west by Rancho of San Pablo and San Antonio, and on the east and north by the Ranchos known as the Moraga, Vallencio and Pinole Ranchos, meaning to convey three-fourths of one-twentieth of said rancho, less three hundred and twenty acres," and the deed from Taylor to his wife conveys to his wife his interest in said rancho by the same description.

The uniform construction of said section ought not to be disturbed, unless it is shown to be clearly wrong. United States v. Graham (110 U. S., 219); Brown v. United States (113 U. S., 568); 2 Op. Atty. Gen., 558; 10 Op. Atty. Gen., 52; Thomas B. Hartzell (5 L. D., 124); Heirs of Isham Floyd (ibid.), 531.

The decision of your office rejecting the application of Mrs. Taylor is affirmed.

SUCCESSFUL CONTESTANT-PRIVATE ENTRY.

ALFRED G. PERKINS.

The preferred right of a successful contestant does not entitle him to make a private cash entry of land not subject thereto.

Secretary Vilas to Commissioner Stockslager, March 1, 1889.

December 6, 1880, Patrick Feeley made homestead entry on the S. of NW. and E. of SW. 4, Sec. 24, T. 40, R. 21, Taylor's Falls district, Minnesota. The appellant, Alfred G. Perkins, duly contested said entry, on the ground of abandonment and procured the cancellation thereof, October 25, 1887, and on December 2, of that year, he applied to make private cash entry on a part of said land, to wit, the S. of NW. 4 of said section 24. The local officers denied the application, on the ground, "that the land sought to be purchased is (was) embraced in the former homestead entry of Patrick Feeley, which was canceled . . October 25, 1887, as the result of the contest of said entry by the applicant. The homestead entry took the land out of the market and it can not be entered at private sale until it is restored to market." On appeal, your office affirmed the action of the local officers by decision of January 31, 1888, from which the present appeal is taken to this Department.

It is true, that under the second section of the act of May 14, 1880, the appellant by virtue of his successful contest of the entry of Feeley acquired a preferred right of entry, but the entry thereunder must be such as the land is subject to. Under the ninth regulations of the circular of January 1, 1836, land although once offered (as in the present case) and subsequently temporarily withheld from private sale, is not subject to private sale again until after the notice prescribed by said regulations. 13 Ops., 274; S. N. Putnam (4 C. L. O., 146). The decision of your office is affirmed.

RAILROAD GRANT-INDEMNITY WITHDRAWAL.

WEIR v. SOUTHERN PACIFIC R. R. Co.

An unauthorized indemnity withdrawal is no bar to a homestead application, and such application will defeat a subsequent selection for the beaefit of the railroad company. Land within the primary limits of the subsisting grant to the Atlantic and Pacific Railroad Company, when the map of designated route was filed on behalf of the Southern Pacific, is excepted from the grant to the latter company.

Secretary Vilas to Commissioner Stockslager, March 1, 1889.

I have before me the appeal of the Southern Pacific Railroad Company from your decision of November 19, 1887, holding for allowance John A. Weir's application to make desert-land entry for section 7, T. 3 N., R. 5 W., S. B. M., Los Angeles district, California.

The north half of said section 7, is within the recently restored indemnity limits of the grant of March 3, 1871, to the Southern Pacific Company (16 Stat., 573). On the supposition that this north half had not been selected by the company, your said decision held that it was subject to entry. In point of fact, however, a selection was made October 5, 1887, (four days before the notice of restoration became effective at the Los Angeles district) though such selection had not been noted in your office at the date of your decision. But under this grant the indemnity withdrawal was unauthorized and of no effect (Simon Leger, 7 L. D., 457), and Weir's application to make entry was made May 17, 1887, nearly five months before the company's selection. The latter, therefore not being protected by a valid withdrawal, cannot prevail to defeat the application to enter, which preceded it in time. Upon this ground I approve your conclusion as to said north half.

"The south half of said section is within the twenty mile (primary) limits of said grant (already mentioned) and also within the primary limits of the prior grant to the Atlantic and Pacific Railroad Company, which was forfeited by act of July 6, 1886. Said grant having been within the limits of the then subsisting grant to the Atlantic and Pacific Railroad Company, at the date when the Southern Pacific Railroad Company's map of designated route was filed (April 3, 1871), was excepted from the grant to the latter company." See case of Southern Pacific R. R. Co. (6 L. D., 816). As to this (southern) half of section 7, accordingly, you correctly hold that Weir's proposed entry may be allowed.

Your said decision is affirmed accordingly.

PROCEEDINGS ON REPORT OF SPECIAL AGENT-TRANSFEREE.

DAVID Y. BRADFORD.*

The right of a transferee to be heard in defense of the entry is recognized, where the entry is canceled on the report of a special agent without notice to the transferee; and such right will not be defeated by the fact that the transfer was not of record.

First Assistant Secretary Muldrow to Commissioner Stockslager, December 5, 1888.

I have considered the appeal of the Maryland Land and Cattle Company, as transferee, from your office decision dated July 26, 1887, rejecting its application for a hearing in the case of pre-emption cash entry No. 2872, for the W. S. W. 1, S. E. 1 S. W. and S. W. S. E. 1, Sec. 7, T. 15 S., R. 56 W., Pueblo land district, Colorado, made August 18, 1883, by David Y. Bradford.

*Not reported in Vol. 7.

The record shows that said Bradford filed declaratory statement for said described tract June 6, 1883, alleging settlement December 20, 1882.

On August 4, 1883, in accordance with published notice, he made final proof and payment before the register at Pueblo, which was approved, and final cash certificate issued thereon to him August 18, same year. Bradford's final proof shows he was thirty-nine years of age, and a naturalized citizen of the United States; he was unmarried; he had never made a pre-emption filing or entry for land other than the tract in dispute. That he made actual settlement on this tract about December 10, 1882, by commencing to build a house and established actual residence on the land about December 15, same year, which was continuous. That the land was unfit for cultivation on account of the absence of water, but he used the tract for grazing exclusively. His improvements consisted of a frame dwelling house one story high, valued at $100.

On December 14, 1885, Special Agent R. G. Dill reported that he visited the tract, found it to be agricultural land, but would not produce crops without artificial irrigation. He also reported that the land was not enclosed; that there was no timber on the tract; that he found a frame cabin there about twelve by fourteen feet in size, but no other improvements or evidence of cultivation. He could not ascertain who built the cabin, or whether the entryman was in the employ of any one or not; that "no transfer is on record on the books of Bent County, Colorado. I am unprepared to say that a fraud was com No legal proceedings have been instituted, but

mitted.

recommend that the entry be held for cancellation."

On June 27, 1886, your office held the entry for cancellation and on February 2, 1887, the entry was finally canceled upon the report of said special agent.

On April 12, 1887, The Maryland Land and Cattle Company, by its attorney, F. M. Heaton, esq., filed an application to re-open the case in order to prove Bradford's good faith and compliance with the law, and that the said company is a bona fide purchaser and owner of the tract in dispute, and in support of said application the following affidavit was also filed at the same time, viz:

STATE OF MARYLAND, Baltimore City,

I hereby certify that upon this first day of April in the year one thousand eight hundred and eighty-seven, before me the subscriber, the clerk of the superior court of Baltimore city, Maryland, personally appeared Bernard Gilpin, Jr., the president of The Maryland Land and Cattle Company, and made oath on the Holy Evangelists of Almighty God, that in or about the month of March, 1886, the said The Maryland Land and Cattle Company purchased from J. F. Seldomridge, who has duly executed a good and sufficient deed unto said company, of the land covered by David Y. Bradford's Pueblo, Colorado, cash entry No. 2872. . . . And another oath that said David Y. Bradford previously sold and conveyed the same by deed duly executed unto the said J. F. Seldomridge. And that The Maryland Land and Cattle Company has

been at no time officially notified of any action looking toward the cancellation of Bradford's entry as aforesaid, and especially ask that a hearing be ordered, in order that said cancellation be set aside. And I also certify that the said Bernard Gilpin, Jr., is personally known to me, and that he is the president of The Maryland Land and Cattle Company of the State of Colorado. (Signed)

BERNARD GILPIN, JR.,

President of The Maryland Land and Cattle Company.

Sworn to and subscribed before me this 1st day of April, A. D., 1887.

JAMES BOND,

Clerk of Superior Court of Baltimore City.

On July 26, 1887, your office decided that

Neither Seldomridge nor The Maryland Land and Cattle Company were parties to the record and no transfers had been entered in the county records at the date of the special agent's examination, and while transferees, when known, are accorded the right to be heard to sustain the validity of the entry, the provisions made in the Rules of Practice whereby they may become parties to the record and thus insured timely notice, it is incumbent upon them to take advantage of such provisions and make their claims known,

and declined to re-open the case or order a hearing.

On September 23, 1887, The Maryland Land and Cattle Company appealed from said decision.

Upon review of the final proof in this case I am convinced that the same is not sufficient to show a compliance with the requirements of the pre-emption law. But as the local officers accepted the same, and in view of the allegations made on behalf of the appellant, which is a fair compliance with Rule 102 of the Rules of Practice, a hearing may be had in the premises for the purpose of ascertaining whether Bradford in fact complied with the law in good faith. It is suggested that a special agent of the government should be in attendance at such hearing. Your decision is modified accordingly.

COMMUTATION PROOF-RESIDENCE.

SYDNEY F. THOMPSON.

Six months of occasional or periodic visits, or even continuous presence on the land, not with the view of making it a permanent home, to the exclusion of one elsewhere, but merely for the purpose of carrying out the letter of the departmental rule requiring six months residence, and with the intent to discontinue inhabitancy at the end of that period, is not, in any proper sense a compliance with said rule.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 23, 1889.

I have considered the appeal of Sydney F. Thompson from the decision of your office of December 13, 1887, involving his commutation cash entry, No. 925, on Lots 1 and 2 and the N. of SW. 1, Sec. 13, T. 154 N., R. 64 W., Devil's Lake district, Dakota Territory. By said de