The land in question was excepted from the operation of the grant to the railroad company by the homestead entry of Nettleton, which was in existence at the time the company's right attached, and the same was consequently never withdrawn for the benefit of said company. It is in no sense, land "restored to the public domain,” and for the reasons stated, is not subject to purchase under the provisions of said act. Moreover, it does not appear that Eaton ever made actual settlement on the land he seeks to purchase, and he does not show, as required by said act, that he may not have been entitled to enter and acquire title to the land under the pre-emption, homestead or timber-culture laws of the United States.

He is clearly not entitled to purchase the land involved under said act, and your said decision rejecting his application is affirmed.

PRE-EMPTION CLAIM-PRIVATE CASH ENTRY.

GAINER v. PAAZIG.

The failure of a pre-emptor to file for unoffered land within the statutory period works a forfeiture of his claim only in favor of the "next settler" who has given the required notice and complied with the conditions of the law.

Where such land is subsequently offered, a purchaser at private cash entry is not a "settler" within the meaning of the statute, who can take advantage of the preemptor's default in filing.

The only case in which land "settled and improved " by a pre-emptor becomes "subject to the entry of any other purchaser," by reason of the pre-emptor's failure to file within the specified period, is where the land is subject, "at the time of settlement," to private entry.

Secretary Noble to Commissioner Stockslager, March 15, 1889.

I have before me the appeal of Wiley Gainer, from your decision of August 12, 1887, denying his application to make homestead entry of lot 1, section 30, and lots 5, 6, and 10, section 29, T. 4 S., R. 14 W., Gainesville district, Florida, and also denying his application to contest the private cash entries of Louisa Gargett, Marguerita J. Paazig, and John Casson, for the same tract.

In an affidavit of his own, the statements of which are substantially corroborated by no less than nine of his neighbors, Wiley Gainer sets forth the following facts:

That I settled on this place in 1868 and have been living on it continuously ever since, being eighteen years. Having formerly been a slave, without any education, I did not know my duty under the law, and as nearly all the settlers on St. Andrews Bay were living upon public land without entering the same and were not molested in their rights of settlement, I did not know that it was necessary for me to apply for the land. Last year (1886) when a land excitement was started here I was advised to make application for my homestead. When I had raised the money and got the numbers of my land, I was informed that it was no use, as Van Kirk, Dubois & Webb, three land speculators had entered me out. When the lands near here were surveyed last month I found ont from the surveyor that Van Kirk & Co., had not entered the lot

1 my houses were on, I then made application in proper form through clerk circuit court, Calhoun county. All I have is upon this land, the accumulation of years of toil and poverty. I have put up two houses besides other buildings, eight hundred panels of fencing, dug three hundred yards of ditches, and cleared over twenty acres of land, besides planting an orchard and vineyard. If I am deprived of this land I lose everything and have to begin life anew. The parties entering my land are nonresidents and have homes already up north and want my land for speculation from its enhanced value owing to my improvements.

January 25, 1886, Louisa Gargett made private cash entry No. 11,004 for said lot, Sec. 29; on March 12, 1886, Marguerita Paazig made private cash entry No. 11,185, for said lot 1, Sec. 30; and on March 25, 1886, John J. Casson made private cash entry No. 11,240 for said lots 5 and 6, Sec. 29.

Upon this state of facts you made the following ruling:

At the time Gainer made settlement on the land as claimed by him, he had under section 2265, Rev. Stats., three months from date of settlement to make his claim of record at the proper local office, which he neglected to do, said land being then designated as unoffered. May 20, 1881, this land was offered at public sale and thereafter became subject to private cash entry, and Gainer failed also to avail himself of the right accorded him by section 2264, Rev. Stats., to put his claim on record. The foregoing entries were made at the dates stated. This office is not insensible to the strong equities of Gainer in the premises, and to the great loss he would suffer by being deprived of his claim and the accumulation of years of toil; but the law is plain, and he having failed, albeit through lack of knowledge of his rights and the legal requirements, cannot now invoke the interposition of this office. I must therefore affirm your action rejecting his application to enter the land and also refuse his application to contest said entries on the complaint made, subject to the right of appeal in due time.

In this conclusion I do not concur. While of course Gainer can not be allowed to enter the tract so long as the latter is actually covered by the uncanceled cash entries mentioned, I am of the opinion that he should be permitted to contest those entries in a proceeding to which the owners of said entries should be specially cited.

In the absence of a statutory provision attaching such a consequence to a settler's failure to file declaratory statement or make homestead entry within the period allowed him for so doing, the forfeiture or de. struction of his (the settler's) interest in his claim can not properly be enforced by the Department simply on the ground that he (the settler) has in fact failed to make filing or entry in accordance with the direction upon the subject.

The statutory provision for the filing of a record claim "by every claimant for laud not yet proclaimed for sale" is contained in Sec. 2265 of the Revised Statutes, and that expressly states the consequence of a default upon the settler's claim, to wit: That that "claim shall be forfeited and the tract awarded to the next settler, in the order of time, on the same tract of land who has given (the required) notice and otherwise complied with the conditions of the law." Except as against such a "next settler who has given notice, etc.," the filing (or entry) may be made after the expiration of the three months period, and no forfeiture

is incurred: Johnson v. Towsley (13 Wall., 72). The cash entrymen here are not "settlers" at all, and therefore cannot insist that Gainer shall be deprived of his claim and improvements, for their benefit, simply because he omitted to file within three months after his settlement (i. e. thirteen years before the land was "offered" and eighteen years before these particular entrymen applied to purchase). The only case in which the statute provides that "land settled and improved" by a pre-emption claimant shall, because of his failure to file within the specified period, become "subject to the entry of any other purchaser," is the case mentioned in Sec. 2264, to wit, one in which the land is "subject at the time of settlement to private entry." The present case is not touched by that, inasmuch as Gainer's settlement was made some thirteen years before the land first became "subject to private entry."

There being no provision in the law for forfeiting such a claim upon this ground, except in favor of "the next settler who has given notice etc.," and there being in this case no settlers at all, other than Gainer himself, I see no reason why the latter should not be allowed to make entry, after he shall have duly established the facts alleged in a proper proceeding against the adverse claimants. A hearing should be ordered for this purpose.

Your said decision is modified accordingly.

CIRCULAR-ACT OF MARCH 3, 1887.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., February 13, 1889.

Registers and Receivers, United States Land Offices:

GENTLEMEN: The following instructions under the act of Congress approved March 3, 1887 (24 Stat., 556), are forwarded for your guid

ance.

THE FIRST SECTION

Directs that all railroad land grants not adjusted heretofore shall be adjusted immediately, that is without unnecessary delay. The duties thereunder pertain to the General Land Office and Department of the Interior.

THE SECOND SECTION

Provides for the recovery by the United States of title to lands which from any cause have been erroneously certified or patented "to or for the use or benefit of any company" on account of a railroad grant, whenever the fact may be ascertained that a certificate o patent has been erroneously issued, and prescribes the duties of the Secretary of the Interior and Attorney-General in connection therewith.

THE THIRD SECTION

Provides "That, if in the adjustment of said grants, it shall appear that the homestead or preëmption entry of any bona fide settler has been

erroneously canceled on account of any railroad grant, or the withdrawal of public lands from market, such settler, upon application, shall be reinstated in all his rights and allowed to perfect his entry by complying with the public land laws; provided, that he has not located another claim or made an entry in lieu of the one so erroneously canceled; and provided also, that he did not voluntarily abandon said original entry; and provided further, that if any of said settlers do not renew their ap plication to be reinstated within a reasonable time, to be fixed by the Secretary of the Interior, then all such unclaimed lands shall be disposed of under the public land laws, with priority of right given to bona fide purchasers of said unclaimed land, if any, and if there be no such purchasers then to bona fide settlers residing thereon."

Three classes of persons are provided for under this section.

First. Bona fide settlers whose homestead or preemption entries have beer erroneously canceled on account of a railroad grant or withdrawal.

Second. Bona fide purchasers of such unclaimed lands.

Third. Bona fide settlers residing thereon.

The rights of the several classes to the lands referred to in the section are successive in the order stated in the section. The first in right is the homestead or preëmption settler whose entry has been wrongfully canceled. If he elects to assert his right, and has not been disqualified by locating another claim or making another entry in lieu of the entry erroneously canceled, his right is absolute, and the successive rights of the remaining two classes can not attach if he lawfully asserts his claim. If he fail to claim the land, or is disqualified under the act, the second class of persons, who are the bona fide purchasers of the land unclaimed by him, attach, and have precedence over the third class. The bona fide purchasers here referred to are those who, without knowledge of wrong or error, have purchased from the railroad company lands which have been previously entered by a preëmption or homestead settler, whose entry has been erroneously canceled, as described in the first clause of the third section, and which land the preëmption or homestead settler did not elect to claim after the recovery by the proceedings prescribed by the second section of the act.Attorney-General's Opinion, Nov. 17, 1887 (6 L. D., 272).

Parties of the first class desiring to avail themselves of the benefits of this section should present their applications without unnecessary delay, after notice of intention as required by the act of March 3, 1879, in preëmption and homestead cases. The application must in every instance be accompanied by proof showing:

1. The facts respecting the date of the applicant's settlement, duration of residence, and value of improvements upon the public land.

2. Whether he has located any other claim under any of the laws of the United States authorizing settlements upon public lands.

3. Whether he has abandoned the land embraced in his canceled entry or filing, if so, the causes which led to the abandonment.

4. Whether any other person or persons are residing upon the land. 5. That such persons as may be so residing upon the land have been notified of the intention of the claimant to apply for the re-instatement of his filing or entry, and the manner of giving such notice must be shown,

Should an adverse claimant appear to dispute or contest the right of re-instatement proceedings will be had in accordance with Rules of Practice as in ordinary contests.

While the act contains no provision relative to persons whose entries or filings have not been canceled, but whose lands have been certified or patented on account of railroad grants, it follows as a matter of course, that their rights should be protected, and the mode of procedure in such cases will be the same as in the cases where cancellation has been made, except that the parties should apply to make final proof and payment instead of for re-instatement of entry; but in such case proceedings will be deferred until the title has been restored to the United States as provided by section two of the act. The instructions of Nov. 22, 1887 (6 L. D., 276), under this section, are hereby modified in accordance with the foregoing.

Proceedings on applications by parties of the second class will be governed by instructions under the fourth section.

Applicants of the third class will be required to submit evidence, in addition to that relating to their own settlement or claims, showing whether there are persons of the first or second class residing upon, in possession of, or claiming lands.

THE FOURTH SECTION

Relates to all lands which have been erroneously certified or patented on account of railroad grants, except those mentioned in the third section, and by the grantee company sold to citizens or to persons who have declared their intention to become citizens of the United States; and provides that after the title to such lands has been restored to the United States as contemplated by the second section of the act, persons who have purchased such land in good faith, their heirs or assigns, shall be entitled to the lands upon making proof at the proper land office, whereupon patents shall issue relating back to the date of the original certification or patenting, and the grantee company will be required to pay the United States for such lands at the price at which other similar lands are legally held by the Government.

The purchaser from the company is not debarred by the act from recovering from the company the amount of purchase money paid by him less the amount paid by the company to the United States for the land.

A mortgage or pledge of such lands is not a sale within the intention of the act.

No forfeiture is declared by this act against any land grant for conditions broken (and no entry is authorized for lands legally within such grant), but no rights of the United States on account of breach of conditions are waived by the act.

An applicant for land under this section will be required to publish