notice of intention to make proof as in preemption and homestead cases, and the proof must show:

1. That he is, or has declared his intention to become, a citizen of the United States.

2. That he is a bona fide purchaser from the company or some person claiming title under it, and the character of the instrument conveying the land to him.

3. The amount of purchase money paid to the company.

4. What part, if any, of the purchase money paid to the company has been refunded to him or any person acting as his agent.

5. Whether he has instituted proceedings against the company for the recovery of any portion of the purchase money; if so, for what portion. 6. The value and character of the improvements, if any, made or acquired by him upon the land.

7. Whether there is any person of the first class under the third section entitled to the right of entry under the preëmption or homestead laws.

Upon the submission of satisfactory proof as prescribed above, the register will issue certificate, in duplicate-numbered in the regular cash series-with annotations thereon showing that the entry is allowed without payment under the fourth section of the act of March 3, 1887 (24 Stat., 556).

THE FIFTH SECTION

Relates to lands within the limits of railroad grants, coterminous with constructed portions of the lines of road, not conveyed on account of, but excepted from, the grants.

Under this section, when the company has sold to citizens of the United States or persons who have declared their intention to become such citizens, the numbered sections prescribed in the grant and coterminous with the constructed portions of the road, within either the granted or indemnity limits, and which upon the adjustment of the grant are shown to be excepted from the operation of the grant, it shall be lawful for such purchasers (if their purchases are bona fide) to purchase said land from the Government by payment of the Government price for like lands, unless said lands were at the date of purchase in the bona fide occupancy of adverse claimants under the preëmption or homestead laws, in which case the preemptor or homestead claimant may be permitted to perfect his proof unless he has since voluntarily abandoned the land.

Under the last proviso of said section, however, if a settlement was made on said lands subsequent to December 1, 1882, by persons claiming the same under the settlement laws of the United States, it will defeat the right of the purchaser, whether said purchase was made prior or subsequent to December 1, 1852, and the settler will be allowed to prove up for said lands as in other like cases.

Applicants to purchase under this section will be required to publish

notice of intention as directed by instructions under the third and fourth sections, and the proof must show:

1. That the tract was of the numbered sections prescribed by the grant.

2. That it was coterminous with constructed parts of said road.

3. That it was sold by the company to the applicant, or one under whom he claims, as a part of its grant.

4. That it was excepted from the operation of the grant.

5. That at the date of said sale it was not in the bona fide occupancy of adverse claimants under the preemption or homestead laws, whose claims and occupancy have not since been voluntarily abandoned.

6. That it has not been settled upon subsequent to the first day of December, 1882, by any person or persons claiming the right to enter the same under, the settlement laws.

7. That the applicant is, or has declared his intention to become, a citizen of the United States.

8. And that he, or one under whom he claims, was a bona fide purchaser of the land from the company.

The proof upon these points being found satisfactory, the entry will be allowed and the usual cash certificate and receipts will be issued thereon reciting the fact that the entry is in accordance with the fifth section of the act of March 3, 1887, (24 Stat., 556).

No entry will be allowed under this section until it shall have been finally determined by this Department that the land was excepted from the grant.

THE SIXTH SECTION

Provides that when any such lands have been sold and conveyed as the property of the company for State and county taxes, and the grant to the company has been thereafter forfeited, the purchaser at such sale shall have the preference right for one year from the date of this act, and no longer, in which to purchase said lands from the United States by paying the Government price for said lands, provided said lands were not previous to or at the time of the taking effect of such grant in the possession of or subject to the right of an actual settler.

The period prescribed by the statute for presenting applications under this section having expired, instructions as to methods of procedure are deemed unnecessary.

THE SEVENTH SECTION

Authorizes the Secretary of the Interior to refuse to certify or convey lands on account of any railroad grant where it shall appear to him that to do otherwise would give to the grantee more lands than the granting act contemplated giving.

Very respectfully,

Approved:

WM. F. VILAS,

S. M. STOCKSLAGER,

Commissioner.

Secretary.

PRE-EMPTION ENTRY-RESIDENCE.

JAMES EDWARDS.

If the improvements are shown by the evidence to be commensurate with the means of the claimant, their inferior character should not be taken as an indication of bad faith.

After the establishment of residence, absences occasioned by sickness are excusable and do not interrupt the continuity of the residence.

The fact that the claimant while necessarily absent from the land, on account of sickness, voted in the precinct where he had been taken for treatment, will not in itself raise a conclusive presumption of abandonment, where he subsequently returned to the land.

Secretary Noble to Commissioner Stockslager, March 15, 1889.

I have considered the appeal of James Edwards from the decision of your office of May 10, 1887, rejecting his final proof in the matter of his pre-emption filing, No. 12,435, for N. of NW., NW. of NE., Sec. 19, and SW. of SE., Sec. 18, T. 7 S., R. 17 E., Stockton district, California.

The declaratory statement was filed April 24, 1884, alleging settlement April 1, of that year. Proof was made February 14, 1887, from which it appears, as stated in your office decision, that "actual residence was established, September 11, 1885," and the claimant remained continuously on the land from that time until April, 1886, a period of about seven months. About the latter date he was found sick in his house on the tract by a neighbor, who carried him provisions during his sickness, and subsequently he was taken to the hospital in Merced City, about thirty miles distant from his claim. He remained in the hospital about two months at that time, and several times since has been there a month at a time, but the witnesses testify positively, that he has never been absent from the land since he established residence, as above stated, in September, 1885, except when sick and carried to the hospital. While in the hospital in Merced, November 2, 1886, he voted in a general State election. When discharged from the hospital, however, he returned to his claim and was living there at the time he made proof. His improvements consist of a dwelling house, twelve by fourteen feet, "shake" roof, board floor, stone chimney and fire-place, two windows and a door, of the value of $50.00, and a corral about two hundred feet in diameter, valued at $50.00. The house was furnished with a bunk and bedding, a table, two or three benches, dishes, cooking utensils and a bake-oven. The claimant was a single man, with no family, and old, poor, and sickly. The land was suitable for grazing. The claimant had no farming implements or stock, but had cultivated two acres as a garden.

Your office sustained the action of the local officers in rejecting the proof, on the grounds, that "the pre-emptor must prove six months uninterrupted residence next prior to application to enter and the making 16184-VOL S- -23

of such improvements as shall make it apparent that he has taken the land for a permanent home."

The improvements of the claimant, while meagre, are shown by the evidence to be all that the claimant had the means of making, and, being commensurate with his ability, their inferior character and extent do not indicate bad faith. As to residence, it is shown, and found in your said decision, that he established it upon the land in September, 1885, and remained continuously upon the land for seven months thereafter, and has never since been absent except when sick and carried to the hospital, from which when discharged he invariably returned to the land. Residence being once established, subsequent absences necessitated by sickness are excusable, and do not show or tend to show abandonment of such residence, and, therefore, the continuity of the residence is not broken thereby. Patrick Manning (7 L. D., 144).

It is true, the claimant voted at Merced, while in the hospital there, November 2, 1886. This is a circumstance to be considered in connec. tion with all the other facts of the case, as bearing upon the question of the claimant's abandonment vel non of the residence which he had acquired upon the tract entered. Did it.show an intent to make the hospital or the election precinct in which it was located his home, and thus prove such abandonment?

The claimant testifies that before voting at Merced, November 2, 1886, he had voted in Mariposa county where the claim is located, and that when he voted at Merced his name was on the "great register" of Merced county. Previous to that time it must have been upon the register of Mariposa county. The "Political Code" of California forbids registration in different counties at the same time. (Codes and Statutes of California, Vol. 1 Sec. 1104). That code also provides that before a person's name can be entered on the register of one county, in case of former registration in another county, there must be presented a certificate showing the cancellation of such prior registration, and in addition thereto, "Proof, by the affidavit of the party, that he is an elector of the county in which he seeks to be registered," and one of the qualifications of an elector is that he "shall have been a resident

of the precinct in which he claims his vote thirty days, next preceding the election." (Ib. sections 1097 1083).

The claimant, therefore, must in order to have had his name placed upon the "great register" of Merced county, have procured a certificate showing the cancellation of his registration in Mariposa county, and have made affidavit that he had been a resident of the precinct at Merced for thirty days preceding the election at which he voted.

A strong presumption is raised by these facts, that, at the time he voted and had his name placed on the register at Merced, he had abandoned his residence on his claim, but this presumption is to a large extent rebutted by the fact, that after so voting and registering and as soon as he was discharged from the hospital he returned to the land.

It being conceded that he had once acquired residence on the claim, his subsequent voting and registering at another place to which he had been carried on account of sickness and where he was under treatment in a hospital-in view of his return to the claim after so voting and registering and as soon as discharged from the hospital-might be held to be evidence tending to show illegal voting, rather than a change of residence.

Your office and the local officers, while rejecting the claimant's proof do not find that there was bad faith as to residence or hold the entry for cancellation, and the claimant in his appeal to this Department prays, if his proof cannot be accepted that at least he be allowed to make proof of further and continual residence and additional improvements, and that upon such further showing the land be awarded him.

In view of the conflicting facts and circumstances of the case bearing on the question of abandonment of residence, and in the absence of an intervening adverse claim, I am of the opinion that the claimant's entry should be suspended, and he be allowed to make proof as requested by him, and if said proof be otherwise sufficient, that said entry-inasmuch as its life time has expired-be then submitted to the Board of Equitable Adjudication for action thereon under the appropriate rule. You are accordingly so instructed, and the decision of your office is modified accordingly.

RAILROAD GRANT-INDEMNITY WITHDRAWAL.

CENTRAL PACIFIC R. R. Co. v. DOLL.

A settlement made on land included within an indemnity withdrawal is unavailing as against the right of selection on the part of the company; but the company cannot be heard to object to such settlement, after the revocation of the withdrawal and in the absence of a selection.

The order revoking the indemnity withdrawal, made for the benefit of this company, took effect as soon as issued; and a settlement on land included within said order, existing at the date of its issuance, will be protected as against a subsequent selection.

Secretary Noble to Commissioner Stockslager, March 15, 1889.

I have considered the case of the Central Pacific Railroad Company v. Josiah Doll, on appeal of the said railroad company from your office decision of November 19, 1887, approving the pre-emption cash entry of said Doll for the N., NE. 1, Sec. 15, T. 41 N., R. 9 W., M. D. M., Shasta, California, land district.

The record shows that said land is within the indemnity limits of the grant of July 25, 1866, to the California and Oregon (now Central Pacific) Railroad Company, the withdrawal for which took effect September 6, 1871.