rejecting their respective claims to, and allowing Gjuve's application to make homestead entry of, the N. SW. 1, SW. 1 NW. † and SW. SW. 4, Sec. 3, T. 135 N., R. 44 W., 5th P. M., Fergus Falls, Minnesota. The tract in question is geographically within the primary limits of the grants in aid of the Northern Pacific company and the St. Paul, Minneapolis, and Manitoba Railway company, the lines of which were definitely located November 21, 1871, and December 19, 1871, respectively. At those dates the land was covered by Anders Gulbranson's pre-emption declaratory statement, No. 558, filed February 17, 1871. That declaratory statement alleged settlement July 4, 1870, and still remains uncanceled upon the records.

On July 10, 1883, Bjorn C. Gjuve applied to enter the said tract as a homestead, supporting his application by a corroborated affidavit, to the effect that during June, 1871, he (Gjuve) settled on said tract, and in July, 1871, offered to make pre-emption filing for the same, but that the local officers refused his filing because of its being in conflict with the railway grant. Thereupon, in September, 1871, he (Gjuve) settled upon another piece of land, for which he subsequently obtained patent, and then, in 1877, moved back upon the track here in question, with his family, and resided thereon continuously down to the date of his said application to make homestead entry of the same, cultivating the same and making improvements thereon, which, at that date, were estimated at $1,800.

Gjuve's said application to make homestead entry, having been rejected by the local officers, he appealed to your office, and on October 22, 1883, your predecessor, Commissioner McFarland, ordered a hearing "to ascertain the status of the lands (on) September 19, 1871."

On December 29, 1883, the Northern Pacific Company applied to list the land; but the local officers rejected the application, and the company appealed.

On January 11, 1884, the hearing ordered as aforesaid was held. The homestead applicant, and the St. Paul Minneapolis and Manitoba Company, appeared; but the Northern Pacific Company, your letter says, "was not represented and probably was not notified of said hearing, because the Secretary of the Interior had long before (May 13, 1873,) decided that the rights of the St. Paul company to lands in conflicting or overlapping limits of the two grants were superior to those of the Northern Pacific company."

- After said hearing the local officers decided in favor of Gjuve, and the St. Paul company appealed.

On June 16, 1885, the Northern Pacific company applied to list the entire section, embracing the tract in question. This application was rejected, and an appeal was taken.

By its said letter of February 2, 1887, your office held that the preemption filing of Anders Gulbranson excepted the land from the operation of both grants. Both companies appeal; the Northern Pacific

road, in particular, complaining that it has been allowed no "opportunity to show the status of Gulbranson's claim at the date of the definite location of its road," and asking "that a hearing be allowed the company to show whether or not Gulbranson had abandoned his claim at the time of definite location, for, if he had, then the land was not excepted from the grant."

Gulbranson's declaratory statement having been filed in February, 1871-some ten months before the definite location-raised a presumption, on the face of the record, that when the Northern Pacific grant attached, in November, 1871, the pre-emption claim thereby evidenced was in existence and excepted the tract from the operation of the grant. As to the St. Paul company-while a mere claim, without a "right,” might not have excepted the land from the grant-the filing of Gulbranson would raise a presumption of a right, which the company had, at the hearing ordered for the purpose, full opportunity to contradict. Though represented at the hearing, the company made no attempt to prove nor has it indeed, anywhere alleged it a fact that Gulbranson did not, at the date in question, have a pre-emption "right" such as the filing purported to show that he had. The decision appealed from is accordingly affirmed.

RAILROAD GRANT-ACT OF MARCH 3, 1887.

MICHAEL DONOVAN.

The object of section three, act of March 3, 1887, is not only to correct all decisions of the Land Department erroneously canceling the entry of a bona fide settler within the limits of a railroad grant, whether the land in question had been certified to the company or not, but also to re-instate such settler, if qualified under said act, in all his rights to lands for which his application to file or enter may have been erroneously rejected by the local office.

Under said act such settler is entitled to perfect his homestead entry for the entire tract originally applied for, notwithstanding the issuance of patent to him, under the homestead law, for a part of the land included in his original application. The right to re-instatement thus conferred upon the settler, whose application to enter was erroneously rejected, is superior to that of a bona fide purchaser from the railroad company.

A judicial decree awarding possession of the land to such a purchaser as against the settler, is not such an adjudication as will preclude the Department from taking jurisdiction under said act.

Secretary Noble to Commissioner Stockslager, April 1, 1889.

I have before me the report of your office of the 14th instant, adverse to the application of Michael Donovan for the institution of proceedings under the act of March 3, 1887 (24 Stat., 556), to restore to the United States title to the E. of the NW. 4 of Sec, 35, T. 101 N., R. 28 W., fifth principal meridian Worthington, Minnesota, and asking to be re-instated to his right to make homestead entry of said tract.

This tract is within the twenty miles indemnity limits of the Southern Minnesota Railway Company. The withdrawal of lands on account of the grant was made September 10, 1866, and at said date the tract in controversy, together with the E. of the SW. of Sec. 26, was embraced in the homestead entry of one Lyman Barkley, which was canceled January 14, 1868.

The tract in dispute was excepted from the withdrawal for the benefit of said grant by reason of the entry of Barkley, and after the cancellation of his entry the tract became subject to selection by the road, or to entry under the homestead and pre-emption laws by the first legal applicant.

On June 6, 1868, Michael Donovan, the petitioner, presented his ap plication to the local office to make homestead entry of all the land embraced in the former entry of Barkley, and was informed by the local officers that he would be allowed to enter the eighty acres in the even section, but would not be allowed to enter the eighty acres in Sec. 35, as the same was railroad land and not subject to entry. Whereupon, he made entry of the E. of the SW of Sec. 26, upon which final certificate issued May 18, 1875, and which was patented to him July 1, 1875.

Subsequently to the application of Donovan, to make entry of said tract, to wit, the E. of the NW. of Sec. 35, the railroad company selected said tract on account of the grant, and it was certified to the State for the benefit of the railroad company March 25, 1871.

Upon the filing of Donovan's petition, the railroad company was called upon to show cause, within thirty days, why said petition should not be granted, and in response thereto the company on December 16, 1888, filed its answer objecting to the granting of said petition, upon the fol lowing grounds:

1st. The act of March 3, 1879, does not in any sense apply to indemnity lands, and an additional homestead entry under said act is not permissible.

2nd. Donovan when he made homestead entry 5797, for eighty acres in section 26, exhausted his homestead right, and therefore he has no right to the land herein involved which requires the protection referred to in the Rule.

It can not be questioned that at the date of Donovan's application to make entry of said tract it was open public land, subject to entry under the pre-emption or homestead laws by the first legal applicant; that Donovan was the first legal applicant after the cancellation of the homestead entry of Barkley, and that his application was improperly rejected. But you denied the petition, upon the ground that Donovan waived his claim to the tract in the odd section by eliminating the same from his homestead application after its rejection, and perfecting entry for the land in section 26, and that when he perfected said entry he exhausted his right under the homestead law, and was not in a position to assert a legal claim to the land in section 35 after it was selected and certified on account of the grant. It is upon this ground, mainly, thạt

the railroad company, also, defends. But, in addition thereto, the company has filed a certified copy of the record of the district court of the sixth judicial district of Minnesota, in the case of Michael Donovan v. Thomas S. Thompson, involving the right of possession to the land in question, for the purpose of showing that by judicial process the grantee of the railroad company has been declared to be in legal possession of said land.

The third section of the act of March 3, 1887, provides:

That if, in the adjustment of said grants, it shall appear that the homestead or preemption 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 re-instated 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 application to be re-instated 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 lands, if any, and if there be no such purchasers, then to bona fide settlers residing thereon.

It was undoubtedly the intention of the act to protect the bona fide settler in all his rights as against the railroad company, and, therefore, the object and purpose of section three, above quoted, was not only to correct all decisions made by the Department or the General Land Office, erroneously canceling the homestead or pre-emption entry of any bona fide settler to lands within railroad grants, whether said lands had been certified to the company or not, but, also, to re-instate the settler in all his rights to lands upon which he may have settled, and for which his application to file or enter may have been rejected by the local office, provided it be shown that said application to file or enter was erroneously rejected, and that the settler had not located another claim or made entry in lieu of the land for which his application to file or enter had been so erroneously rejected.

In such case, the Department is re-invested with jurisdiction to re-instate the settler in all his rights, and allow him to perfect his entry or filing by complying with the public land laws, if application to be re-instated in such rights be made within a reasonable time.

While it is true that as between the government and the settler, he . acquired no vested right upon the mere application to enter, yet he had an inchoate right as against every one else, and if it appears that the land was subject to entry at the date of his application, and such application has been erroneously rejected, his right to the land under this section is made superior to that of a bona fide purchaser for value from the railroad company.

In this case it appears from the record that, although Donovan's application was rejected, he nevertheless, upon the refusal of the register to allow him to enter the same as a homestead, still remained in possession of said land, and made improvements thereon, by fencing and

cultivating the same; that in 1881 he had fenced about fifteen acres of said land, used the same for pasture, and is still in possession of said land.

These facts are not denied by the company in answer to the rule, and said facts are substantially set forth in the decree of the court in the case of Donovan v. Thompson, above referred to, although the court held that Donovan is not an actual settler on the land, and has not constantly occupied the same, or caused the same to be so occupied, since the year 1868, and that he is not entitled to the possession of the same and has no claim, right, or interest in the same: that the Southern Minnesota Railway Company is the legal owner of said land, and the defendant (Thompson) is the equitable owner of the same and is entitled to the possession of the tract.

This decision is not such an adjudication of the rights of the parties as will prevent the Department from taking jurisdiction of the case under the third section of the act of March 3, 1887, and the only question remaining is, whenever Donovan has exhausted his homestead right and waived all right to the land within the odd section by perfecting homestead entry and receiving patent for the land in section 26.

It is insisted by the company that Donovan would have no right to make an additional entry except under the act of March 3, 1879, which applies to even sections only, and within granted limits, and that as the land in controversy is within the indemnity limits, he was not restricted to eighty acres at the time of making his homestead entry, and can not, therefore, make additional entry under the act of March 3, 1879. In my opinion his rights will not depend upon said act of March 3, 1879, but upon his right under the act of March 3, 1887, to be re-instated to all the rights under his application to enter the same under the homestead law, which was erroneously rejected, and the mere fact that he made entry of part of the land embraced in his application, will not bar him of the right to be re-instated in the same manner as if the entry had been made and was subsequently erroneously canceled.

It is not the making of an additional or a second homestead, but an application to be restored to his original homestead right.

This question seems to have been settled by the decision of the Department in the case of Holmes v. Northern Pacific Railroad Company (5 L. D., 333).

In that case Holmes made entry for a tract of eighty acres in section 24, together with a tract of eighty acres in section 13, being adjoining land. The entry, so far as it covered the land in the odd section, was canceled by the decision of the Department, being in conflict with a railroad grant, and Holmes perfected entry to the eighty acres in the odd section, and received patent therefor. Subsequently, Holmes applied to amend his entry so as to embrace the land in section 13, being part of the tract covered by his original entry and which was canceled as before stated, claiming that said tract was excepted from the grant 16184-VOL 8-25