ions of the circular of March 10, 1880, should have been followed. From that circular I quote:

Therefore, if it has been your practice, after an entry or declaratory statement has been permitted, to allow the party making the same to relinquish the tract and substitute other lands therefor, at any time prior to the expiration of the month during which the entry or filing was made, you are informed that such practice must not be continued except in case of clear illegality or mistake.

Eaton's entry does not present as strong equities as those permitted by the practice forbidden by the circular. He did not relinquish the entry in section "24" and substitute an entry in section "32," nor did he apply to have his entry changed until, as he testifies, more than a month had elapsed from the date upon which it was made. Moreover when his entry was canceled by letter of June 18, 1883, he did not appeal Both the law and the equities in the case being with Shafer I affirm your decision awarding him the superior right to the tract.

RAILROAD GRANT-ACT OF APRIL 21, 1876.

CATES v. HASTINGS & DAKOTA Ry. Co.

The right of the company under its grant attached to lands that were disembarassed at the date of detinite location, notwithstanding they were reserved at the date of the grant.

The phrase "at a time subsequent to the expiration of such grant" usd in section 3, act of April 21, 1876, has reference to the date at which the road should be completed, and not to the time when by legislative or judicial action a forfeiture might be declared.

An entry made within the limits of a railroad grant, at a time subsequent to the expiration of such grant, is confirmed by the third section of the act of April 21, 1876.

Secretary Vilas to Commissioner Stockslager, August 18, 1888.

The E. NW. 4, Sec. 31, T. 116, R. 32, Benson, Minnesota, lies within the granted limits of the grant for the Hastings & Dakota railroad made July 4, 1866, the map of definite location of which was filed June 26, 1867.

It appears that on May 24, 1865, one Merit B. Case made homestead entry for the tract, which was canceled January 22, 1867; that on March 16, 1878, Arnold Cates made homestead entry No. 8249, for the same which was canceled May 21, 1881, by your office under the ruling then in force as announced in the case of Kniskern v. Hastings & Dakota Ry. Co. (5 C. L. O., 50), which held that an entry made under section 2293, Revised Statutes by a single man in the military service of the United States, who had not made a bona fide settlement and improvement on the tract, was illegal, and would not defeat the right of a rail. road company attaching during the existence of such entry.

This ruling was adhered to but a short time, and it is now the estab lished ruling of this Department and of the courts that a homestead

entry subsisting at the date of the attachment of the company's rights will except the land covered thereby from the operation of the grant. Cates' entry was therefore wrongfully canceled.

In the case of Whitnall v. Hastings & Dakota Ry. Co. (4 L. D., 249), it was held that, (syllabus)

Although under a decision that became final the claim of an entryman was rejected and the land awarded to the railroad company, it now appearing that the company has no valid claim to the land, thus leaving the question between the government and the entryman, he is allowed to make new entry for the land.

On April 6, 1883, Cates was allowed to make homestead entry No. 11,411 for the tract, and on May 19, 1883, he made final proof and received final certificate.

By your office decision of March 7, 1884, the tract was awarded to Cates on the ground that the said homestead entry of Case subsisting at the date of the grant excepted the tract from the operation thereof, citing the case of White v. Hasting & Dakota Ry. Co. (6 C. L. O., 54). The company appealed.

While it seems your office ruling on the legal question involved was fully justified by the case cited, the doctrine therein announced has been departed from in the subsequent case of Rees v. Central Pac. R. R. Co., (5 L. D., 62) and on review, (idem 277) wherein it was held that the right of the company attached to lands that were disembarrassed at the date of definite location notwithstanding they were reserved at the date of the grant.

The question there presented was in all material respects similar to that here. As the entry of Case was canceled prior to definite location, the ruling of your office cannot be sustained on the ground stated. Another consideration however presents itself.

The grant for the Hastings & Dakota road provided :

That if said roads are not completed within ten years from the acceptance of this grant the said lands here granted and not patented shall revert to the United States. The grant was accepted by the State March 7, 1867. (Pub. Domain 804).

The time limited for the completion of the road therefore expired March 7, 1877, prior to Cates' entry. The road had not then been completed.

Section 3 of the act of April 21, 1876, (19 Stat., 35), provides:

That all such pre-emption and homestead entries which may have been made by permission of the Land Department, or in pursuance of the rules and instructions thereof, within the limits of any land grant at a time subsequent to expiration of such grant, shall be deemed valid, and a compliance with the laws and the making of the proof required shall entitle the holder of such claims to a patent therefor.

In the case of Wenzel v. St. Paul, M. & M. Ry. Co. (1 L. D., 533), it was held that in using the language "at a time subsequent to the expiration of such grant" Congress has reference to the dates named in the various granting acts to railroads, as the dates at which the roads should be completed, and not to the time when by legislative or judicial

action a forfeiture might be declared, and further that a settlement and filing made under the pre-emption laws, or lands within the limits of a railroad grant, at a time subsequent to the expiration of such grant, is an entry which is confirmed by the third section of the act of April 21, 1876.

This ruling was followed in the case of Alabama & Chattanooga R. R. Co. v. Clabourn (6 L. D., 427), in which it was said that under the third section of the act of April 21, 1876, an entry, in other respects satisfactory to the Department, should not be rejected because of a prior withdrawal, if at the time of such entry the grant under which the withdrawal was ordered had expired by lapse of time.

The proof shows that Cates has resided continuously on the tract since. 1878, and has valuable improvements.

On the authority of the cases above cited the conclusion reached by your office awarding the tract to Cates is affirmed.

HOMESTEAD SOLDIERS' DECLARATORY STATEMENT.

ROBINSON v. PACKARD.

The law does not permit a person to hold one tract of land as a pre-emptor, and at the same time hold another as a homestead entrymau, for the reason that both the pre-emption law, and the homestead law require residence, and a person can not maintain two residences at one and the same time.

If a soldiers' declaratory statement is illegal because filed when the claimant was residing on a tract claimed under the pre-emption law, such illegality may be considered as cured by subsequent entry under such filing, after the submission of pre-emption final proof, and in the absence of any intervening right.

First Assistant Secretary Muldrow to Commissioner Stockslager, August 18, 1888.

In the case of Zury Robinson v. Harlan P. Packard, involving the SW. 4, Sec. 4, T. 116 N., R. 64 W., Huron land district, Dakota. I have considered the appeal of the latter from your office decision of May 1, 1886, adverse to him.

Harlan P. Packard filed soldiers homestead declaratory statement for said tract July 2, 1881, and made homestead entry thereon December 31, 1881, and commuted the same to cash entry December 28, 1882.

June 29, 1881, Packard made settlement upon the SE. 1, Sec. 5, of the township and range above named and on July 6, 1881 filed his declaratory statement therefor, and October 19, 1881 gave notice of his intention to make final proof upon his pre-emption claim.

Zury Robinson filed a protest against said proof charging fraud and bad faith, upon which a hearing was ordered by the local office December 31, 1881, on which day Packard tendered proof. The case coming up for final determination the Department decided February 11, 1884, that no fraud had been shown and that the proof was sufficient to justify 3263-VOL 7--15

the allowance of the cash entry. Cash entry-No. 7932-was, accordingly made March 1, 1884.

Pending the determination of the sufficiency of the proof submitted by Packard on his pre-emption claim, he on the day he made the proof and before entry was allowed, perfected his soldiers declaratory statement for the SW. 4, Sec. 4, which he had filed July 2, 1881, by making entry thereof December 31, 1881.

The local officers found that Packard's soldiers declaratory statement was illegal because it was made while he was living on and before he had proved up on his pre emption claim. They decided in favor of Robinson. You decide that Robinson's alleged residence was a mere pretense, and that Packard's homestead declaratory statement was illegal and the original and cash entries based upon it were also illegal.

In view of his good faith, however, you allow the original entry to stand subject to future compliance with the law. I concur in your conclusion as to Robinson. The testimony shows that in October, 1881, (his entry bearing date August 25, 1881) Robinson built a small house on the tract but merely made a pretense of living there by sleeping in the house at very rare intervals between October 1881, and May 1882. After May 1882, he abandoned even the pretense of living on the place. His homestead entry should be canceled.

The Department has frequently ruled that while a homestead entrymau has six months within which to establish his actual residence upon the tract embraced in his entry, the law regards his residence as commencing from the date of his entry and if residence after entry is shown to be elsewhere the entry is illegal. It has never recognized the right of a person to at the same time claim one tract as a pre-emptor and another as a homestead entryman for the reason that both the preemption law and the homestead law require residence, and a person cannot maintain two residences at one and the same time. Krichbaum v. Perry (5 L. D., 403); Rufus McConliss (2 L. D., 622); J. J. Caward (3 L. D., 505); Collar v. Collar (4 L. D., 26); Austin v. Norin (4 L. D., 461). But the law is different in regard to soldiers homestead entries. They are allowed to locate the land in person or by agent by filing a declaratory statement and to make entry within six months thereafter. If the declaratory statement in this case was illegal because, when made, the claimant was residing on a tract claimed under the pre-emption law, such illegality may be considered cured when he made entry, after he had submitted proof on his pre-emption claim, in the absence of any intervening right, as the case of Mann e. Huk (3 L. D., 452) rules can be done in case of filing by aliens.

If Packard's filing was illegal such an intervening right was the homestead entry made by Robinson; and if he had made bona fide settlement and improvement upon the land his would have been the superior claim to the tract. But the testimony shows that he did not comply with the law and your decision holding his entry for cancellation.

was a proper one. Robinson's claim being out of the way and the parties being the United States and Packard, in view of the latters good faith and valuable improvements, the irregularity of his filing will not be insisted upon. Snyder v. Ellison (5 L. D., 354.)

The holding of two claims at the same time naturally raises a doubt as to Packard's good faith, but this doubt goes to the bona fides of his inhabitancy on the pre-emption claim and was resolved in his favor by the decision of my predecessor. There is nothing to indicate bad faith in relation to the homestead entry.

The cash entry is approved.

DESERT LAND ENTRY-RELINQUISHMENT PREFERENCE RIGHT.

MARY STANTON.*

On relinquishment of a desert land entry the land covered thereby is held open to entry and settlement without further action on the part of the Commissioner of the General Land Office.

A desert land entry may be allowed subject to the preference right of a successful contestant.

Secretary Vilas to Acting Commissioner Stockslager, March 15, 1883.

I have before me the appeal of Mary Stanton from your decision of August 5, 1886, affirming the action of the local office at Cheyenne, Wyoming, in rejecting her application to make desert land entry of Sec. 8, T. 13 R. 66 W., "because of conflict with desert land entry 632." The said last mentioned entry ("desert land entry 632") was made by Frederick J. Stanton on the 25th of May, 1883.

March 17, 1886, Wm. Constantine applied to contest said entry on the ground that the land was not really" desert," etc.

March 18, 1886, the register and receiver issued notice of said contest, and personal service was effected April 5, 1886, the hearing being set down for May 7, 1886, at the Cheyenne land office.

March 23, 1886, said Frederick J. Stanton filed a relinquishment of his entry (632), and at the same time, as agent for Mary Stanton, made application to enter the same tract in her name under the desert land

act.

March 25, 1886, the register and receiver rejected said application, because of conflict with Frederick J. Stanton's entry (which they declined to cancel on the relinquishment until after action by the Commissioner).

August 5, 1886, on appeal from the local officers, your office sustained their action, on the ground that the cancellation of a desert land entry upon relinquishment must first be ordered by the General Land Office. From this decision of your office the present appeal was taken.

It is the ruling of this Department that a desert land entryman is a "pre-emption claimant" within the meaning of the provisions as to such *Not reported in Vol. VI.