to 1879, he built a house and set out about one hundred orange trees, and since that time he "built the fence and worked the grove and kept it along;" and also that after he "knew it was contested he only plowed and worked it a little."

It is contended on appeal both from the local office and your office that the contest should be dismissed for the reason that the contestant, Crumpler, has asserted no claim to the land, and that he was not act ing in good faith. But the evidence does not sustain the claimant's attempt to prove the contest speculative, and there is nothing in the statute requiring the contestant to be also a claimant for the land involved. Nor do I consider the claimant's plea of poverty well taken. He actually did live on the land from 1875 to 1879, and it is not satisfactorily shown that he could not have continued to have made a living on his claim as well as in the immediate vicinity. But the claimant's inhabitancy of the land from 1875 to 1879-during the existence of the Bryant entry-could avail him nothing. The Bryant entry remained of record until long after the claimant's departure from the tract, and Crumpler's affidavit of contest was received at the local office at least a month prior to his return thereto.

The law is well settled that

To establish residence there must be a combination of aot and intent, the act of occupying and living upon the land and the intention of making the same a permanent home. West v. Owen (4 L. D., 412.

Residence is constituted by residing upon the land to the exclusion of a home elsewhere, mere visits to the land are not sufficient. Crosby v. Dall, 13 C. L. O., 210; Elliott v. Lee (4 L. D., 301).

Mere visits to the land to keep alive the fiction of residence do not constitute a compliance with the law. Strawn v. Maher (4 L. D., 235).

A claim of residence is not consistent with the substantial maintenance of a home elsewhere. Van Gordon v. Ems (6 L. D., 422).

It therefore does not appear from the papers before me that the claimant has ever established or maintained a legal residence on the land.

While this decision apparently works a hardship to the defendant on account of the value of his improvements upon the land, yet the Department can not follow equitable principles to protect him, when to do so results in losing sight of the law. He must know substantially what it demands, and in a reasonable manner observe its behests. If he is unmindful of this duty and places improvements upon the tract, of which he is not entitled to avail himself of the benefit, he has himself and not the government to blame.

Finding in the record no reason for disturbing the decision appealed from the same is accordingly hereby affirmed.

SECOND HOMESTEAD ENTRY-RELINQUISHMENT.

JACKSON C. BROWN.

A second homestead entry may be made by one who relinquished his first entry under the belief that he could not maintain the same without danger to his life.

Secretary Noble to Acting Commissioner Stone, June 7, 1889.

I have before me the appeal of Jackson C. Brown, from your decision of May 24, 1886, holding for cancellation his homestead entry of May 29, 1883, for the NW. NE. and NE. NW. of section 32, T. 10 N., R. 9 W., La. M., Natchitoches district, Louisiana.

The ground for your said decision is that Brown having formerly made another homestead entry (No. 2255) and "voluntarily relinquished" the same, his second entry, No. 2571-the one here in question- was on that account illegal.

But, as your said letter states, the following are the facts presented by the record:

On December 13, 1881, Brown made said homestead entry No. 2255, and thereafter built a house and endeavored to improve the land involved, but was prevented by a party claiming to have purchased some improvements then on the land. After making repeated efforts to comply with the law, he believing his life to be really in danger-relinquished said entry to the United States, January 17, 1883. Being ignorant of the fact that he had exhausted his rights under the homestead law, he, on the 29th of May, 1883, made a second entry, No. 2571, for land in section 32, T. 10 N., R. 9 W., La., and has made valuable improvements thereon, raised crops for three seasons and is still improving and cultivating the same. Mr. Brown, fearing that said entry No. 2571 may be canceled on account of involuntary illegality and he and his family thereby be deprived of income and support now prays that the entry be confirmed and he be allowed to submit final proof on same in due time.

Under such circumstances I cannot concur in your view that the former entry was "voluntarily relinquished" in any such sense as would make it necessary or proper to hold that Brown had exhausted his homestead right. In the case of Thurlow Weed (8 L. D., 100), Weed, on being informed that one Sarah Kellogg, claimed the land under the preemption law, abandoned the tract, "because of the uncertainty as to priority of settlement, of his limited financial ability to carry on a contest, of the dissuasions of his wife, of the advice of his friends and because 'it was all along growing more apparent that the threatened contest was liable to engender the most bitter feelings between neighbors, who ought rather to be friends." In view of these facts he was allowed to make a second entry for another tract. Brown, in the present case, had, it seems to me, quite as good a reason for giving up his first entry. I think he should be allowed to make final proof under his second entry in due course. See also James A. Harrison (8 L. D., 98); Chas. Wolters (ibid., 131); Patrick O'Neal (ibid., 137).

Your said decision is accordingly on this ground reversed.

RAILROAD GRANT-ACT OF MARCH 3, 1887.

JOHNSON v. MISSOURI KANSAS & TEXAS RY. Co.

A homestead entry of record at date of indemnity withdrawal excepts the land embraced therein from the operation of said withdrawal.

A settler whose application to enter was erroneously rejected is not entitled to re-instatement under section 3, act of March 3, 1887, if he voluntarily abandoned his claim before title to the land passed under the grant.

Secretary Noble to Acting Commissioner Stone, June 7, 1889.

By letter of December 18, 1888, your office recommended that suit be instituted to set aside the patent issued to the Missouri Kansas and Texas railway company, for the SE.Sec. 10, T. 23 S., R. 12 E., Independence, Kansas.

The land is within the indemnity limits of the grant for said road, the withdrawal for which took effect April 3, 1867.

It appears that one Randall Brown made homestead entry for the tract December 14, 1866, that he afterwards assigned his claim to Sophronius Johnson and thereupon his entry on March 15, 1872, was canceled on relinquishment.

Johnson applied to make homestead entry of the land July 16, 1872, and his application was submitted to your office by the local officers without opinion.

Your office rejected the application on December 6, 1872, for the reason that in September, 1866, when the survey of the road in the field was made, the land was free from adverse claims. This was in accordance with the rulings of your office at that time. Johnson was notified of the decision but failed to appeal. On April 14, 1873, the company selected the tract and patent issued for the same November 3, 1873.

On April 16, 1888, the affidavit of Johnson was received by your of fice in which he states that in March, 1872, said Randall Brown assigned to him all his right, title and interest in the land, and that he took possession of the same, built a frame house fourteen by twenty-four feet, valued at $300, set out an orchard of two and one-half acres, broke three acres, dug a well and walled it with stone, enclosed his house and orchard and built a stable; that he continued to reside there for nine months after receiving notice of the rejection of his application to enter, when he left the premises and took up his residence elsewhere. He has not returned to the land.

Thereupon your office, on October 3, 1888, cited the company to show cause why suit should not be instituted under the act of March 3, 1887 (24 Stat., 556) to vacate said patent.

The company responded with an argument and set forth in addition, that on August 31, 1876, said land was sold to one Wm. N. Davis, who subsequently sold to his son Henry Davis "who lives on the land and still continues to improve it."

1

Your office thereupon recommended suit as stated.

I concur in your opinion that the homestead entry of Brown subsisting at the date the withdrawal took effect excepted said tract from the operation thereof. Upon the cancellation of said entry the tract became open to appropriation by the first legal applicant.

Johnson was such applicant, but his entry was never placed of record. It was erroneously rejected, but from that action he took no appeal. His settlement was abandoned without compulsion before title passed to the company. At the time the patent for the tract issued no claim appeared of record and the settlement claim had been abandoned.

Had Johnson remained in possession of the land, a different question would have been presented. But in view of his voluntary abandonment of the claim, I am of opinion that he is not protected under said act. The third section provides :

That if in the adjustment of said grants, it shall appear that the homestead or preemption entry of auy bona fide settler has been erroneously canceled, on account of any railroad graut, 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, also, that he did not volun

tarily abandon said original entry.

....

Under these circumstances I am of opinion that there is no sufficient ground alleged to sustain the suit as recommended.

RAILROAD GRANT-HOMESTEAD ENTRY.

BROWN v. CENTRAL PAC. R. R. Co.

Lands granted to aid in the construction of railroads do not revert after condition broken until a forfeiture thereof has been declared by the government, either through judicial proceedings or legislative enactment.

A homestead entry can not be allowed for land embraced within an unforfeited railroad grant.

Secretary Noble to Acting Commissioner Stone, June 8, 1889.

October 18, 1887, Manley M. Brown made application at the land of fice at Shasta, California, to enter under the homestead law the E. of the NW. and the W. of the NE. of section 25, in township 39 north of range 4 west.

Said application was rejected by the local officers who wrote the following endorsement thereon:

The within application refused filing for the reason that the lands embraced therein are situated within the twenty mile primary limits of the grant of July 25, 1866, to the California and Oregon Railroad Company, now Central Pacific R. R. Co. Said 1ds having been withdrawn for the benefit of said company by letter of Hon. Commi. or of the General Land Office dated August 25, 1871.

Brown appealed, and December 22, 1887, you affirmed the action of the local office.

The appeal from your said decision asks a reversal thereof on the ground

That said grant of July 25, 1866, to said Railroad Company has lapsed by reason of the failure of said company to comply with the terms thereof in this that they, the said company, utterly failed to construct said road or any part thereof within the time prescribed by the act creating said grant. That by reason of such failure they forfeited all rights to the lands so granted and rendered said lands open to settlement and entry by qualified claimants.

The act of July 25, 1866, (14 Stat., 239) provides-" that there be and is hereby granted" to the California and Oregon Railroad Company "every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty sections per mile (ten on each side) of said railroad line" and makes provision for indemnity for lands excepted from the grant. Section 6, of said act provides that within one year from the passage of the act the company shall file their assent thereto in the Department "And shall complete the first section of twenty miles of said railroad and telegraph within two years, and at least twenty miles in each year thereafter, and the whole on or before the first day of July, one thousand and eight hundred and seventyfive; and the said railroad shall be of the same gauge as the "Central Pacific Railroad" of California, and be connected therewith."

Section 8 provides:

That in case the said companies shall fail to comply with the terms and conditions required, namely, by not filing their assent thereto as provided in section six of this act, or by not completing the same as provided in said section, this act shall be null and void, and all the lands not conveyed by patent to said company or companies, as the case may be, at the date of any such failure, shall revert to the United States. June 25, 1868, an act was approved (15 Stat., 80-, amending said granting act as follows:

That section six of an act entitled "An Act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad, in California, to Portland, Oregon," approved July twenty-fifth, eighteen hundred and sixty-six, be so amended as to provide that instead of the times now fixed in said section, the first section of twenty miles of said railroad and telegraph shall be completed within eighteen months from the passage of this act, and at least twenty miles in each two years, thereafter, and the whole on or before the first day of July, Anno Domini, eighteen hundred and eighty.

Although served with notice of the appeal the Central Pacific Railroad Company (successor to the California and Oregon Railroad Company) has not appeared in the case.

Although the record does not contain any evidence that the company has failed to comply with the terms of the grant, the appellant asks that the decision rejecting his application to enter the land in controversy under the homestead law be reversed and the application allowed. The request rests upon the assumptions-(1) That the railroad company has made such default as to justify the forfeiture of the lands granted and (2) That it is within the power of this Department to declare a forfeiture of the lands granted to said company upon its failure