This notice was served upon the contestant, Mrs. Jane R. Beall, on the 7th day of April, 1887, as shown by the return registry receipt. Service of the notice is not denied by contestant, and instead of taking exceptions to the failure of the claimant to file an appeal, as required by law, prior to the rendering of the decision by the Department, or at the time when it was considered by the Department, he now asks, after the Department has decided the case upon its merits, that the sufficiency of said appeal be now considered.

Rule 82 of Rules of Practice provides, that where the Commissioner considers an appeal defective, he shall give notice to the party of said defect, who shall be required to cure said defect within the time therein prescribed, and upon failure to do so, said appeal will be dismissed by the Department. As no notice was given the Commissioner of said defect, and the contestant having failed to take exceptions thereto after notice that appeal had been filed, I see no reason why the case should now be re-opened to pass upon a defect that should have been taken advantage of while the case was pending before the Department.

AILROAD GRANT-CERTIFICATION.

PATRICK DALY.

The title to land within the grant of July 4, 1866, passes by certification to the State, and such action on the part of the Department exhausts its jurisdiction over the land.

Secretary Noble to Commissioner Stockslager, May 6, 1889.

I have considered the appeal of Patrick Daly from your office decis ion of June 26, 1856, rejecting his application to enter NW. 4, Sec. 17, T. 102 N., R. 28 W., 5th P. M., Worthington, Minnesota, land district.

It appears from the record that the land in controversy is within the twenty-mile granted limits of the Southern Minnesota Railroad, and was certified to the State of Minnesota, for the benefit of said road November 14, 1868, under the acts of July 4, and 13, 1866.

Appellant claims that one Sullivan had homestead entry on the tract at the time of the grant to said road, which was a grant in præsenti, and that therefore said tract did not pass under the grant.

Whatever weight might be given to the facts alleged on appeal, if this Department had now jurisdiction of the disposal of the said land, no consideration whatever can now be given them for the reason that the record of your office shows that said tract was included in the list of selections presented by said Southern Minnesota R. R. Co., July 8, 1868, and was approved to the State of Minnesota for the benefit of said company November 14, 1868.

Under the rule in The Southern Minnesota Railway Extension Co. v. Kufner (2 L. D., 492) title has vested in the said company by the grant and approval to the State, and the Department can not disturb the

same.

Your said decision is accordingly affirmed.

RAILROAD GRANT-INDEMNITY-ACT OF JUNE 22, 1874.

SOUTHERN MINNESOTA R. R. Co., ET AL.

Selections under the act of June 22, 1874, are not authorized on relinquishment of indemnity lands to which the right of the company had not attached.

The acceptance of the relinquishment by the local office, does not amount to an approval of the selections based thereon.

Secretary Noble to Commissioner Stockslager, May 6, 1889.

I have before me the case of Southern Minnesota R. R. Co., et al, on appeal from your office decision of January 20, 1887, which held for cancellation the following list of selections made by the said railroad company under the act of June 22, 1874, viz: W. SE. 1, Sec. 6, Lot 7, Sec. 8, E. SW. 1 and SE. 4, Sec. 30, in T. 106 N., R. 38 W., and Lot 4, Sec. 18 T. 109 N., R. 45 W., of 5th P. M., Tracy, Minnesota land district the list of said selections having been filed in the local office May 1, 1877.

These selections were all claimed under the act of June 22, 1874, and the alleged basis on account of which they were claimed, was the relinquishment by said company attached to said list, for the following described lands lying wholly within the indemnity limits of said road, viz: E. NE. and NE. SE. and lots 2 and 3 in Sec. 3 and SE. NE. and NW. SE. and lots 5 and 6, in Sec. 5-and lots 3 and 4 and SE. NW., and S. NE. Sec. 7, all in T. 109 N., R. 45 W., also SW. SW. and lot 4 in Sec. 35, T. 110 N., R. 45 W., 5th P. M., in same district; said relinquishment being in favor of certain parties therein named and alleged to be actual settlers thereon.

The act of June 22, 1874 (18 Stat., 194) provides as follows:

That in the adjustment of all railroad grants, whether made directly to any railroad company or to any State for railroad purposes, if any of the lands granted be found in the possession of an actual settler whose entry or filing has been allowed under the pre-emption or homestead laws of the United States subsequent to the time at which, by the decision of the land office, the right of said railroad was declared to have attached to said lands, the grantees, upon a proper relinquishment of the lands so entered or filed for, shall be entitled to select an equal quantity of other lands, in lieu thereof, from any of the public lands, not mineral and within the limits of the grant, not otherwise appropriated at the date of selection, to which they shall receive title the same as though originally granted. And any such entries and filings thus relieved from conflict may be perfected into complete title as if such lands had not been granted: Provided, That nothing herein contained shall in any manner be so construed as to enlarge or extend any grant to any such railroad or to extend to any

lands reserved in any land grant made for railroad purposes: And provided further, That this act shall not be construed so as in any manner to confirm or legalize any decision or ruling of the Interior Department under which lands have been certified to any railroad company when such lands have been entered by a pre-emption or homestead settler after the location of the line of the road and prior to the notice to the local land office of the withdrawal of such lands from market.

On March 19, 1886, August Jahnke made application to make timber culture entry for E. SW. and W. SE. † Sec. 30, T. 106 N., R. 38, and on the same day Adolph Grams made application to make homestead entry for E.SE. of said Sec. 30, which applications were refused by the local officers, and in regard to these applications you say in said letter of January 20, 1887—

Should the railroad selections be canceled, and the parties named at that time be found in possession of the lands, no adverse claims existing, I see no reason why they may not be permitted to make the entries applied for though they have acquired no right to the tracts by virtue of the presentation of their applications at a time when the lands were not subject to entry.

The lands relinquished are not within the granted limits of the grant to said road but are within the indemnity limits only, and they had never made selection of said lands in lieu of granted land sold by the United States or to which the rights of pre-emption had attached as specified in the grant, and the rights of the company could not attach to specific tracts within the indemnity limits prior to such selection. The said company, therefore, had no claim as against said relinquished tracts, such as contemplated in the act of June 22, 1874. Dubuque & Sioux City R. R. Co. (2 L. D., 542).

It does not even appear that the lands relinquished would be neces sary to satisfy the grant to said company. Its right had not in any sense attached to said lands. Hastings & Dakota R. R. Co. (2 L. D., 527).

Unless the company was entitled to the lands relinquished there was no basis for the relinquishment and hence there could be none for the lieu selection. Whitcher v. Southern Pacific R. R. Co. (3 L. D., 459).

A railroad company is not authorized under the act of June 22, 1874, to relinquish unselected lands lying within the indemnity limits of the grant and select other lands in lieu thereof. St. Paul, M. & M. R. R. Co. (4 L. D., 127).

It is only when the lands relinquished are in such condition as to warrant a relinquishment that lieu selections thereof can be made under the act of June 22, 1874. Hastings & Dakota R. R. Co. (6 L. D., 716). It is claimed by counsel for the railroad company in their argument both in the case at bar and in the case of the Chicago, Milwaukee & St. Paul R. R. Co., on appeal from the Commissioner's decision of October 1, 1886, and the argument in which is specially referred to and made part of the argument in this case, that because the local officers accepted the list containing the relinquishments and selections in 1877, and no objection was made thereto until your said letter of January 20, 1887,

the whole matter was definitely determined in 1877, and your office has now no jurisdiction to re-open and re-try the case. And further that having accepted the relinquishment and marked the same restored to the public domain on the plat and tract books the said action amounted to an approval of selections also. This does not follow; on the contrary in Peninsular R. R. Co. v. Carlton (2 L. D., 534) where the relinquishments specifically reserved the right to indemnity under the act of 1874, it was held that the relinquishment was unconditional.

In the Chicago, Milwaukee and St. Paul R. R. Co., case above referred to, which was decided by this Department on appeal July 9, 1888, the selections were not allowed.

Your said decision is accordingly affirmed.

ADDITIONAL HOMESTEAD ENTRY-ACT OF MARCH 2, 1889.
JOHN SCHNABELIN.

The right to apply for an additional entry under the act of March 2, 1889, may be treated as a preferred right, in the case of an application for amendment, covering tracts adjoining the land included in the original entry, and pending at the passage of said act.

Secretary Noble to Commissioner Stockslager, May 8, 1889.

I have considered the appeal of John Schnabelin, from your office decision of January 18, 1888, rejecting his application to so amend his homestead entry made September 20, 1887, for SW. 1, SE. 4, Sec. 24, T. 45 N., R. 6 E., as to include with the above land the SE. 1, SE. 1, Sec. 24, and NE. 4, NE. 4, section 25, same township and range, Del Norte, Colorado, land district.

With his application, which was made October 5, 1887, but two weeks after his said entry, applicant files an affidavit in which he sets forth, substantially, that at the time he made his said entry he was informed that the land which he now desires to have included in his entry was not vacant but was patented to or claimed by others and as the same was under fence and he had no official plat at command, he believed the same to be true and made entry for forty acres, but had he known as he now does that the eighty acres described in his present application were vacant he would gladly have availed himself of the opportunity to have included the same in his entry. He says further that he considers the homestead right one of great value and is reluctant to lose eighty acres of valuable land which he might have included in his original entry, and if he had known at the time of his entry that he could just as well have had eighty acres more, he would certainly have taken it. He says he used ordinary diligence and that any ordinary man would have believed the "current talk" that said land was already patented or occupied land. He further states that he is a German and that his means and his knowledge of English are both limited.

In the conclusion reached in your said decision I can not concur as the law now stands.

In section 5, of the act of March 2, 1889, it is provided:

That any homestead settler who has heretofore entered less than one-quarter section of land may enter other and additional land lying contiguous to the original entry, which shall not, with the land first entered and occupied exceed in the aggregate one hundred and sixty acres, without proof of residence upon and cultivation of the additional entry; and if final proof of settlement and cultivation had been made for the original entry, when the additional entry is made, then the patent shall issue without further proof:

Provided, That this section shall not apply to or for the benefit of any person who at the date of making application for entry hereunder does not own and occupy the lands covered by his original entry: and provided, that if the original entry shall fail for any reason prior to patent or should appear to be illegal or fraudulent, the additional entry shall not be permitted, or, if having been initiated, shall be canceled." On March 5, 1889, a circular was promulgated by you and approved by the Department providing for the carrying into effect of said act. The entryman will, therefore, be allowed the preference right for ninety days after notice of this decision to make application for the said land under section five of said act in the manner prescribed in said circular.

Your decision is modified accordingly.

FINAL PROOF PROCEEDINGS-PROOF OF NON-ALIENATION.
WENZEL PAOURS.

Proof of non-alienation between the date of making final proof and the issuance of certificate should not be required, if such proof was sufficient when made, and the claimant had at that time duly complied with the requirements of the law. A defect in final proof, caused by the substitution of a witness, may be cured by new publication, and the proof accepted as made in the absence of protest.

First Assistant Secretary Chandler to Commissioner Stockslager, May 8, 1889.

I have considered the appeal of Wenzel Paours from the decision of your office dated February 6, 1889, requiring new proof and new publication in support of his pre-emption cash entry No. 10777 of the SW. of Sec. 21, T. 156 N., R. 58 W., Grand Forks, Dakota, land district. The record shows that on August 13, 1884, the register gave notice of claimants intention to make final proof in support of his claim before J. H. McCullough, a notary public at Park River, in said Territory on October 3, 1884. On the day, and before the officer designated, came the claimant and one of the witnesses named in the notice. The others being absent a witness not named in the notice was substituted. The proof shows that the claimant was duly qualified; that the land was subject to settlement and entry, and that the claimant had complied with the requirements of the pre-emption laws and the regula