turned to and filed in the local office, filed his pre-emption declaratory statement therefor.

The application was further supported by the affidavit of said Doyle, in which he states, in effect, that he settled on the land in question with the intention to pre-empt the same, about July 1, 1862, and resided thereon from that date until June, 1875; that he was then sixty-four years of age; that he had, prior to September 30, 1865, duly declared his intention to become a citizen of the United States, in a proper court, and was, on September 30, 1868, regularly naturalized in the district court of the 14th district of California; that in other respects he was a qualified pre-emptor, and had substantial improvements on the land, such as a house, about twelve by twelve feet in size, a stable, and about an acre cultivated to vegetables; and that on June 20, 1868, he filed his declaratory statement for the land, claiming the same under the preemption law.

On the application thus presented, a hearing was ordered by the local officers, to determine the issues raised by the affidavits filed therewith, which, after a number of continuances, by mutual consent of the parties, finally took place on July 21, 1886. Both parties were represented at the hearing by attorney. The testimony taken is that of Odgers, the homestead applicant, and four witnesses introduced in his behalf.

The local officers found in favor of Odgers, and recommended that his application to enter the tract be allowed. On appeal by the company, this finding was affirmed by your office, April 14, 1887. The company, in its appeal from this latter decision, alleges error, (1) in finding that Doyle settled on the land as a pre-emptor in 1862, or at any other time; (2) in finding that Doyle was a qualified pre-emptor prior to the withdrawal for the company, or the definite location of its road, and (3) in not recognizing the rights of the company under its grant.

The records of your office show, that the plat of the survey of said township 16 was filed in the local office, March 21, 1868, and that on June 20, 1868, Thomas Doyle filed his pre-emption declaratory state. ment for the tract in question, describing it as lots 2 and 3, and SE. † of the NW. and NE. of the SW., Sec. 19, of said township and range, alleging settlement July 1, 1862.

By the testimony in the case, it is shown that Doyle settled on the land in the summer or fall of 1862, and that he resided continuously thereon, claiming the same, until several years after the date of filing his pre-emption declaratory statement therefor; that, finally, without ever having made proof under his said filing, he sold his improvements to Odgers and left the premises; that his improvements consisted of a small log cabin, about twelve by fourteen feet in size, situated on the northwest forty of the tract, and two enclosures, of about three acres and fifteen acres respectively, covering portions of each of the three other forties; and that he cultivated a part of the smaller enclosure to

garden vegetables, the larger being used for grazing purposes, and the raising of grain and hay.

Upon the question of his citizenship, Doyle testified at the hearing, that he took out his first naturalization papers in the State of Indiana, in 1855, and that he moved to California in 1859, and took out his second papers in Nevada City, of the latter State; and it is shown by documentary evidence filed in the record, that said Doyle completed his acts of naturalization and became a citizen of the United States, September 30, 1868, in the district court of the 14th judicial district of California. His statement, as to the time he took out his first naturaliza. tion papers, in Indiana, which, as a matter of course, must have been based upon his declaration of intention to become a citizen, though not supported by any record evidence of the date of the filing of such declaration, is not contradicted, nor is there anything in this record tending to impeach the truthfulness thereof. Such statement must, therefore, be taken as true, and it thus appears that at the date when he initiated his claim to the tract in question, and before the rights of the railroad company attached under its grant, Doyle was a qualified preemptor; which disposes of the second error assigned by the appellant. But did Doyle settle on the land as a pre-emptor, in 1862 or at any other date? Upon this question a persistent effort was made by the attorney for the company, in his cross-examination of the witnesses at the hearing, to show that Doyle was living on the land simply as a miner, and that when he filed his pre-emption declaratory statement therefor, in 1868, he did so with a view to acquiring title to the land for mineral, and not for agricultural purposes. As a witness at the hearing Doyle's testimony on this subject is vague and unsatisfactory, and in many respects his answers are evasive and his statements conflicting; while in his affidavit, made March 16, 1886, and filed in support of the present application to enter, as aforesaid, he is emphatic and unequivocal in his statements that he settled on the land in 1862, "with the intent to pre-empt the same," and that in 1868, he filed his declaratory statement for the tract, claiming it "as a pre-emption." In addition to this, his improvements, as testified to by all the other witnesses in the case, are of an agricultural character, and not such as are usually made for mining purposes.

It is shown, too, that Doyle was induced to attend the trial as a witness, and his expenses thereat were paid by one Joe Thomas, who appears to have made a contract with the railroad company in reference to the land in question, with a view to acquiring the same from the company, and was trying to secure the defeat of Odgers's claim thereto; and who had agreed with Doyle to give him a portion of the land, if the hearing should result in a decision in favor of the railroad company. Doyle's manifest attempt to color his testimony in favor of the company, though introduced as a witness in behalf of the homestead applicant, and notwithstanding the statement in his said affidavit, which

was sworn to before he made the said agreement with Thomas, is thus explained.

Moreover, lands known to be mineral in character have never been subject to entry under the pre-emption law, but have always been expressly excepted from such entry, and this fact, which must have been known to Doyle when he filed his pre-emption declaratory statement for this land, when considered in connection with the apparent motives which prompted his testimony at the hearing, utterly discredits his statements then made, to the effect that he filed for the land with the intention of obtaining title thereto for mineral purposes. I think, therefore, there can be no question that the statements of Doyle in his affidavit of March 16, 1886, to the effect that he settled on the land in 1862, as a pre-emptor, and that when he filed his declaratory statement in 1868, he was claiming the land as a pre-emption are true, and this view is supported by the testimony of the other witnesses in the case. This disposes of appellant's first assignment of error.

The only remaining question to be determined is, whether the claim of Doyle was sufficient to except the land from the grant to the railroad company.

This grant is of every alternate odd numbered section of public land, not mineral, within certain prescribed limits, "not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached," at the time the line of the company's road is definitely fixed. A withdrawal for the benefit of the company, embracing the tract in question, was made, as we have seen, October 3, 1864, and the line of its road opposite thereto was definitely fixed, October 27, 1866.

It is seen from the foregoing, that the settlement claim of Doyle had attached to the land prior to the date of said withdrawal, and that such claim was continued by occupancy, residence and improvement until after the definite location of the road, and was followed up by the filing of his pre-emption declaratory statement for the land within three months after the township plat was filed in the local office.

This, in my judgment, was such a pre-emption claim as comes clearly within the excepting clause of the statute. A claim resting on settlement, residence and improvement, covering the dates of withdrawal on general route and definite location of its road, is sufficient to except lands covered thereby from the operation of the grant to the railroad company. Southern Pacific Railroad Company v. Lopez (3 L. D., 130); Central Pacific R. R. Co. v. Wolford (id., 264); Brown v. Central Pacific R. R. Co. (6 L. D., 151). Such was the claim of Doyle to the land in question, and I am clearly of the opinion that, by reason thereof, the land was excepted from the grant to the railroad company. Your office decision to this effect is accordingly affirmed.

The evidence further shows that Odgers is in all respects qualified to make homestead entry; that he and his family, consisting of his

wife and seven children, have resided on the land ever since 1875, and that his improvements thereon are worth from $1,500 to $2,000. There is no reason, therefore, why his application to make homestead entry should not be allowed.

PRACTICE-NOTICE-PRE-EMPTION-INNOCENT PURCHASER.

WILLIAM R. STONE.

The defendant will not be heard to plead insufficient notice, after obtaining, on his own motion, a continuance of the case to a day certain.

One who purchases land covered by a pre-emption entry, prior to issuance of patent therefor, takes but an equity, and subject to the subsequent action of the Land Department.

A pre-emption entry found to be fraudulent in character, and based on false final proof must be canceled.

First-Assistant Secretary Muldrow to Commissioner Stockslager, April 1, 1888.

I have considered the case arising upon the appeal of William R. Stone from your office decision of February 8, 1887, holding for cancellation the following [seventeen] pre-emption cash entries in the Duluth land district, Minnesota :

The final proofs in these cases were made in November and December, 1881. In said proofs the entrymen alleged that they settled on the lands in May and June, 1881; that they resided thereon continuously until making final proof; and that, in each case, the improvements consisted of a good log house, one and a half or two acres cleared, and half an acre to an acre cultivated to vegetables.

The entries above named were examined by William R. Marshall, a special agent of your office, and reported fraudulent. Thereupon your office ordered a hearing.

At the above hearing the entryman defaulted; but Messrs. Ensign and Cash appeared specially, as attorneys for one William R. Stone, an alleged bona fide purchaser of the land in question, for a valuable consideration. At their request, with consent of the government, the hearing was continued until November 23, 1882.

At the date last named, Stone, the transferee, submitted testimonywhich was in substance, that he was a wholesale grocer residing in Duluth; that he bought the lands in good faith; that he never saw the lands or the entryman, but paid the money to one Bassett, a land explorer (or Thompson, Bassett's attorney); that he never had any talk about buying the land until about "November 15, 1881," and that he made the purchase some time after that; and that he had transferred said lands to other parties, whose names he refused to divulge.

A comparison of dates will show that Stone acknowledges having conversation with Bassett about the purchase of the tracts entered before proof was made in any of the cases. The entrymen are witnesses for each other, except where Bassett is a witness; in other words, the only witness to any of the final proofs are parties who are also impli cated in the frauds if the entry be fraudulent. In each case the tract was transferred to Stone on the same day the entry was made.

The numerous assignments of error alleged by counsel for the defense may be summed up as follows: "Insufficient notice, in that no copy of the notice of the hearing was posted on the tract."

The Secretary of the Interior, by letter of September 15, 1882, directed that, in view of the notoriously-known fact that no person lived upon or within many miles of the tracts in controversy, the requirement of Rule 14 of Practice with respect to posting notices upon the land might be waived. Whether or not he had authority to do this, certainly when counsel for the defendant appeared October 25, 1882, and upon his own motion obtained a continuance of the hearing until November 23, he can not claim that at the last-named date he had not sufficient notice of the hearing. It is further alleged that your office erred: In giving any consideration whatever to the testimony offered in behalf of the United States; in holding that the testimony offered is sufficient to overcome the final proof of the entryman; in holding, in the absence of any direct testimony whatever of persons having knowledge of the facts covered by the final proof, that the same was false and fraudulent; in inferring fraud from mere general statements of witness who admittedly had no personal knowledge of the facts shown by the final proof. When the final proof alleged that on each of the seventeen described tracts there was a log house, a clearing of from one to two acres, and other improvements, in December, 1881, and within four months later not a vestige of a habitation could be found, not a tree cut, not an indication that any human being had ever before been (much less lived) on any one of these seventeen tracts, this alone (to say nothing of corroborating circumstances above set forth) was prima facie evidence of the falsity of the final proofs in said cases, sufficient to justify the conclusion of fraud, in the absence of any evidence in rebuttal. No such evidence on the part of defendant having been offered, and the testimony on part of the governmeut remaining uncontradicted, your office was justified in holding that such final proof was false, and the entry fraudulent.

Finally, the defendant alleges that your office erred

In denying to the appellant the relief and pretection afforded him by the law as an innocent purchaser of the land.

This Department decided, in the case of R. M. Chrisinger (4 L. D., 347)-followed by hundreds of other cases since:

Conceding the right of sale after the issuance of final certificate and prior to patent, the purchaser takes no better claim for title than the entryman has to confer; and whatever right is thus acquired is subject to the subsequent action of the land department. Again: the Department must deal directly with its own vendees-with