On July 31, 1888, your office cited said companies to show cause why action should not be taken under the act approved March 3, 1887, to set aside said certification.

In answer the companies show that on March 9, 1888, the tract was transferred to the Southern Kansas Ry. Co., successor to the Leavenworth Lawrence and Galveston R. R. Co., and by that company, on May 1, 1888, by warranty deed, to one C. P. Walker.

The companies contend that Kelley, the original claimant, can take no advantage under the adjustment act for the reason that he voluntarily abandoned his entry, that no third party can acquire any rights in the premises, and that suit to vacate the railroad title can accomplish no practical results inasmuch as the purchaser from the company is protected by said act even if the railroad title should fail. They deny that Kelley had any right of pre-emption in the tract, and state that the company has paid taxes on the same for fourteen years-from 1873 to 1887. They say that a party without color of right is now in possession of the tract. Presumably they refer to one D. K. Caldwell, as an abstract furnished shows a suit pending between the company's grantee and Caldwell, for the possession of the same.

Said act of March 3, 1887 (24 Stat., 556), requires, that in case lands have been from any cause erroneously certified or patented by the United State to or for the use of any company claiming by, through or under grant from the United States to aid in the construction of a railroad, suit shall be brought to cancel such patent or certification, after refusal by such company, on demand, to restore the title of such land to the United States.

The question arises, therefore, was this land erroneously certified? If excepted from said grants it was by virtue of the rights of Kelley. The exception from said grants was of lands to which "the right of pre-emption or homestead settlement has attached" at date of definite location.

The Leavenworth Lawrence and Galveston road was definitely located November 28, 1866; the Missouri Kansas and Texas December 3, 1866.

Your said letter states that,

Kelley was a soldier in the 9th Kans., Cav. Vols., and in the service when the withdrawal of 1863 took effect, but returned to the land and made his homestead entry for the same soon after his muster out. It seems that his declaratory statement filing could not expire during his temporary absence in the army, and when the withdrawal of 1867 was ordered the land was included in his homestead entry which was subsisting at the time of the definite location of the roads of both companies.

It is not shown in the record that Kelley, "returned to the land," indeed, it is not shown that he ever settled upon the tract. His preemption filing was for offered land and in ordinary course would have expired in one year from date of alleged settlement, to wit, on April 17, 1861, prior to the first withdrawal (sec. 2264, R. S.).

In the case of Chicago Milwaukee and St. Paul Ry. Co., v. Amundson (8 L. D., 291) it was said:

In the case of Bright v. Northern Pacific R. R. Co. (6 L. D.,613), the Department held that an expired pre-emption filing at the date of the company's application to select land as indemnity, does not bar the selection unless it be shown that the preemptor had not in fact abandoned his claim.

This principle applies equally to the withdrawal. The filing, therefore, was no bar to the operation of the withdrawal.

It is true the time of his service in the army would not have run against him had he made actual settlement, then been called away into such service, and made proper proof that he was so in the service; and his right in that case might have excepted the tract from the withdrawal of 1863; for section 2268 R. S., provides:

Where a pre-emptor has taken the initiatory steps required by law in regard to actual settlement, and is called away from such settlement by being engaged in the military or naval service of the United States, and by reason of such absence is unable to appear at the district land-office to make before the register or receiver the affidavit, proof, and payment, respectively, required by the preceding provisions of this chapter, the time for filing such affidavit and making final proof and entry or location shall be extended six months after the expiration of his term of service, upon satisfactory proof by affidavit, or the testimony of witnesses, that such preemptor is so in the service, being filed with the register of the land-office for the district in which his settlement is made.

But the proof of his actual settlement is wanting. It does not appear therefore that he had a pre-emption right in the tract at the date of the first withdrawal. It would seem from this record that the land was at that date vacant. The order of withdrawal found the land in that condition and reserved it from sale and pre emption and homestead entry. The withdrawal was never revoked. It follows that no right could be acquired under an entry made subsequent to the date when the order became effective. Julius A. Barnes (6 L. D., 522), and numerous other cases. In your letter of December 12, 1872, cancelling the homestead entry, you found affirmatively that Kelley's filing had expired prior to the making of the entry.

The homestead entry of Kelley, therefore, made April 4, 1863, after the withdrawal of the land, was erroneously allowed, as far as shown by this record. Kelley is not asserting any claim to the tract.

In order to sustain this suit under said act it would be necessary to show to the court that this land has been "erroneously certified." I am of opinion this showing can not be made on the present record. The entry was allowed subsequent to the order of withdrawal and in violation of its terms. No settlement is shown. Had the validity of the entry been put in issue, immediately after its allowance the law would have declared its cancellation. The withdrawal was a matter of record equally with the entry and was prior in time. As the land was reserved the entry was invalid. At the date of certification no adverse claim appeared of record for the tract and Kelley had long since abandoned

his claim. I, therefore, conclude that the suit as recommended could not be sustained.

In any event, it would seem the right of the purchaser is paramount. Section 4, of said act of 1887, gives to the purchaser in good faith from the company, the preference right in lands so erroneously certified, and the right to patent upon proper proof.

It does not seem that Caldwell could profit by such suit. Furthermore, it is not shown that he has settled on the tract, nor has he applied to enter.

The attorneys for Caldwell urge that the act of 1863, excepts from the grant lands covered by "pre-emption or homestead settlements." While this may be true the settlement of Kelley is not shown and would be a necessary element in the proposed suit. They further urge the provision of the grant "that settlers on any of the reserved sections" who "comply with the several conditions and requirements of said act, (homestead,) shall be entitled to patents for an amount not exceeding eighty acres each, anything in this act to the contrary notwithstanding." This provision is found in section two of the grant of 1863. But it refers to the reserved sections, or even numbered sections. This grant was of odd numbered sections. Said provision has, therefore, no relevancy to the case.

In conclusion, I am of opinion that no sufficient basis for suit is furnished.

DESERT LAND ENTRY-EQUITABLE ADJUDICATION-CONTEST.

GEORGE F. STEARNS.

Substantial proof of reclamation through actual irrigation of the land is the essential requisite of final proof under the desert land act.

In the absence of conclusive evidence of laches in the matter of reclamation, an entryman whose proof was submitted after the statutory period provided therefor, and found insufficient, may make new proof, if no adverse claim has attached to any part of the land, and if such proof is found satisfactory, and the delay in its submission is duly explained, the entry may be sent to the Board of Equitable Adjudication.

An application to contest an entry should not be allowed, pending proceedings instituted against the same by the government.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 7, 1889.

In the case of George A. Stearns, before me on appeal from the decision of your office dated April 28, 1888, the record discloses the following facts:

February 16, 1884, George A. Stearns, filed in the Visalia California land office, his declaration of intention to reclaim section 32 T. 25 S., R. 25 E., Mount Diablo meridian, and at the same time showed, to the satisfaction of the register and receiver of said office that the described

tract was desert land, and then paid to the receiver one hundred and sixty dollars, being at the rate of twenty-five cents per acre on said tract.

February 28, 1887, Stearns was notified by the local land officers to show cause within ninety days why his claim should not be declared forfeited, and his entry canceled for non-compliance with the provision of the desert land act requiring proof of reclamation of the land and final payment to be made within three years from date of entry.

May 13, 1887, Stearns made proof of what he had done towards reclaiming said tract from its alleged desert condition, and asked to be allowed to make final entry thereof. The evidence tendered was unsatisfactory and final entry was refused by the local officers. On appeal the action of said officers was sustained by your office, and appellant's original filing, or entry, was held for cancellation.

Appellant insists that this decision is erroneous, and that great injustice will be done him if it is permitted to stand; and he also asks, should the proof offered be deemed insufficient by the Department, that he be allowed to present further proof.

Reference is hereby made to the decision of your office for the material facts shown by the proof already offered. These facts are clearly insufficient to show a compliance with the requirements of the desert land act (19 Stat. 377), as said act is construed by the Department. See Wallace v. Boyce (1 L. D., 26); Miller v. Noble (3 L. D., 9); Secretary Teller to Commissioner McFarland (id., 385); George Ramsey (5 L. D., 120); Charles H. Schick (ib., 151); Adam Schindler (7 L. D., 253). The described section of land is not shown to have been reclaimed by irrigation as contemplated by the statute, and the rejection of appellant's proof by the local land office and by your office is fully concurred in by the Department.

The remaining question presented by the record for determination is, can appellant legally be permitted to make new proof in support of his claim. The desert land act (supra) allows a party who has filed his declaration of intention to reclaim a tract of desert land, and made the preliminary payment of twenty-five cents per acre, three years within which to make proof of reclamation, and to pay the additional one dollar per acre. This period expired nearly three months before proof was offered in this case. Rule 30 of the rules established for submitting certain entries to the Board of Equitable Adjudication is as follows:

All desert land entries in which neither the reclamation nor the proof and payment were made within three years from date of entry, but where the entryman was duly qualified, the land properly subject to entry under the statute, the legal requirements as to reclamation complied with, and the failure to do so in time was the result of ignorance, accident or mistake, or obstacle which he could not control, and where there is no adverse claim. (6 L. D., 799).

If appellant can bring himself within this rule by making new proof to the satisfaction of your office, he may do so, and then have his entry submitted to the Board of Equitable Adjudication. Is there anything

in this record which conclusively shows that appellant can not bring himself within this rule? If not, it was error to hold his entry for cancellation on the proof offered. The evidence tends strongly to show that appellant has been guilty of laches in the reclamation of this land, but such fact is not conclusively shown, and if no legal adverse claim has attached to said section, or any part of it, he should be allowed to make new proof.

Bearing on the question of an adverse claim or claims, the record shows the following facts: June 20, 1887, Thomas Kelly and Henry Hamilton each filed their separate affidavits in the local land office, in which they say that Stearns has not irrigated and reclaimed said tract of land; that they do not believe it to be desert land, or that it was at the time of Stearns' entry; that they have each settled on said tract, and have resided thereon since May 4, 1887, and that they seek to enter the same as actual settlers. At the same time Kelly and Hamilton filed a formal protest, directed to the Commissioner of the General Land Of fice, against the acceptance of the proof offered by Stearns.

February 17, 1888, Henry Hamilton made a second affidavit in which he says, that in April, 1887, there was growing on said section of land a fiue crop of "filaree" (a native grass), which would have made a good crop of hay had it not been eaten down by the sheep; that there was then, February 1888, a fine growth of grass on said section and that it was fine agricultural land; and that said land had not been irrigated up to that time. This affidavit is strongly corroborated by that of A. J. Monroe, who says that:

The said section 32 has produced good crops of native grasses each year since 1879, which would have made good crops of hay if cut. It is good agricultural land and would have produced good crops of wheat or barley during that time if it had been sown and properly cultivated.

These affidavits were made before John P. Gallagher, a notary public, and Hamilton, in his affidavit, asks that a day be set for a hearing in the matter, and that Stearns be notified.

On February 28, 1888, before the same office, Thomas Hamilton and P. H. Fogarty, or Hogarty, made oath to their certain complaint or petition to the Commissioner of the General Land Office, wherein they allege, among other things, that said Sec. 32 has not been reclaimed by Stearns, and the same is not desert land, as they believe, and they ask that Stearns' entry may be canceled, or that a hearing in the matter may be had, etc.

September 27, 1888, Mary V. Creasey made application to contest said entry, and to enter, under the homestead law, the SW. of said section. This application was refused by the local officers, because said desert land entry was then before the Secretary of the Interior on appeal, and because the government had initiated steps to secure the cancellation of said entry.

October 13, 1888, William B. Crawford asked to file his pre-emption