TIMBER CULTURE APPLICATION-REPEALING ACT.

THOMAS M. SPARROW.

A timber culture application that is not received at the local office until after the repeal of the timber culture act, is not a "lawfully initiated" claim protected by the repealing statute.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 18, 1892.

Thomas M. Sparrow has appealed from your decision of June 19, 1891, sustaining the action of the local officers in rejecting his application to make timber-culture entry of the S. W. of Sec. 6, T. 19 S., R. 27 W., Wa-Keeney land district, Kansas.

Applicant alleges that he made the application, with the other entry papers at Dighton, Kansas, on March 3, 1891; that it reached the local office on March 5; and that it was rejected because you had on the 4th of that month instructed the local officers to allow no more timber-culture entries- the timber-culture law having been repealed on March 3, 1891, (26 Stat. 1095).

He alleges that he had "lawfully initiated" a timber-culture entry prior to the passage of the act, and that therefore the local officers and your office were in error in rejecting his application.

The question as to what constitutes the "lawful initiation" of a timber-culture entry is fully discussed in the case of August W. Hendrickson (13 L. D., 169). It is clear that the applicant had not "lawfully initiated" a timber-culture entry at the date of the passage of the repealing act.

Your decision is affirmed.

SCHOOL INDEMNITY-HOMESTEAD SETTLEMENT.

FOUNTAIN v. STATE OF CALIFORNIA.

An intervening school indemnity selection does not defeat the right of a homesteader, who settles prior to survey, but fails to make entry within the statutory period. Acting Secretary Chandler to the Commissioner of the General Land Of fice, April 18, 1892.

of

With your letter of January 27, 1891, you transmitted the appeal of Joseph Fountain from your decision of December 19, 1890, holding for cancellation the homestead entry of said Fountain, for the NW. NE. 1, Sec. 34, T. 14 N., R. 1 E., Humboldt, California, by reason of a prior State selection for said tract which was authorized by your decision of December 19, on the appeal of Marcus J. McNamara and others.

14561-VOL 14- -27

It does not appear from the record before me when the State selection was made, but, as the survey of said section 34, T. 14 N., R. 1 E., was not made until 1888, the selection could not have been made prior to that time.

It is true that Fountain's entry was not made until November 13, 1889, which you state was subsequent to the filing of the State's appli cation, but he made final proof upon said entry May 10, 1890, and received final certificate. In said proof it was shown that he first settled upon the tract November 1, 1884, and on the 15th of that month he moved his family upon it and camped; on the 25th of December thereafter, he built a house, and has made an actual and continuous residence upon said tract with his family ever since.

It is true that the claimant did not make his entry within three months from the filing of the township plat, but the failure to comply with the law in this particular could only forfeit his right in favor of the next settler in the order of time, who had complied with the law.

The selection of the State was therefore subject to the right of the claimant, and it should be called upon to show cause why the selection as to this tract should not be canceled. If it fails to show cause, you will cancel the selection, and take such action upon the final proof of Fountain as may be proper. Your decision is reversed.

RAILROAD GRANT-INDEMNITY SELECTION-SETTLEMENT-FILING. MARY J. FLIPPEN v. SOUTHERN PACIFIC R. R. Co.

During the pendency of an appeal from the rejection of an indemnity selection no rights can be acquired to the land involved by settlement or filing, and a filing allowed for land in such status should be suspended, and no action taken thereon until final disposition of the application to select.

Secretary Noble to the Commissioner of the General Land Office, April 20, 1892.

I have considered the case of Mary J. Flippen v. Southern Pacific Railroad Company on appeal by the former from your decision of November 15, 1890, rejecting her application to transmute to homestead entry her pre-emption filing for the ENE of Sec. 22, the SE of the SE, Sec. 15, and NW of the NW, Sec. 23, T. 25 S., R. 30 E., M. D. M., Visalia, California, land district.

The tracts in sections 15 and 23 lie within the indemnity limits of the grant to the Southern Pacific Railroad Company, and in 1885, prior to the settlement of Mrs. Flippen, the railroad company applied to select these in lieu of land lost within the primary limits of its grant. The applications to select, it appears, were rejected, and an appeal was taken to your office. Pending this appeal, Mrs. Flippen settled upon the land

and filed pre-emption declaratory statement for it, and afterward she applied to transmute her filing to homestead entry. The company filed an objection to this, and the local officers rejected her application, from which action she appealed to your office. On November 15, 1890, you sustained the local officers, affirmed their decision and rejected the application to transmute, from which action she appealed to the Department.

It is useless to discuss the effect of the withdrawal of the land. The fact that the company had an application to select pending before the Department, was sufficient to prevent Mrs. Flippen from acquiring any right to the land thus selected until that matter was disposed of.

It was said in Southern Pacific R. R. Co. v. Nancy A. Flippen (12 L. D., 18) "The proper practice is to suspend the filing and proof until the final disposition of the appeal of said company now pending before your office. Mrs. Flippen, however, may be allowed to intervene under the rules of practice." In that case a pre-emption filing had been allowed and final proof had been submitted while an application to select the land as indemnity was pending on appeal before your office. The rule is equally applicable to the case now under consideration, where a pre-emption filing had been allowed and an application to transmute the same to a homestead entry presented while the railroad company's claim to the land as indemnity was pending in your office. Mrs. Flippen's application to transmute, and her pre-emption filing will remain suspended until the final disposition of the railroad company's applica tion which should be considered with the least possible delay. The decision appealed from is accordingly modified.

OKLAHOMA LANDS-TOWNSITE LAWS.

JAMES T. FARRALL ET AL.

Lands acquired from the Sac and Fox Nation under the agreement approved February 13, 1891, and included within a homestead entry, may be purchased for townsite purposes under the second proviso of section 22, act of May 2, 1890. Payment for such land should be made either in currency, or by draft on New York, exchange paid. Secretary Noble to the Commissioner of the General Land Office, April 20,

1892.

I am in receipt of your letter of March 21, 1892, transmitting for my consideration the final proofs and triplicate plats of James T. Farrall and Etta B. Beard, née Ray, made and submitted under the provisions of the second proviso of section 22, of the act of May 2, 1890, covering the SW. and NW. of section 19, T. 10 N., R. 4 E., respectively, Oklahoma City, Oklahoma.

These lands are portions of the tract acquired from the Sac and Fox Nation of Indians and opened to settlement at noon on the twentysecond day of September, 1891.

By the seventh section of the act ratifying the agreement made with said Indians, approved February 13, 1891 (26 Stat., 759) said lands were made subject to disposal "to actual settlers only, under the provisions of the homestead laws."

You express the opinion that no portion of said lands can be entered under any of the Oklahoma townsite laws.

The first question therefore to be determined is this: Can an entry be made on these lands under the second proviso of section 22 of the act of May 2, 1890 (26 Stat., 81).

This question was discussed at length in an opinion rendered October 12, 1891, by the Assistant Attorney General, assigned to this Department, and he held that the lands obtained from the Sac and Fox Nation of Indians, were subject to entry under the provisions of the act in question. A copy of this opinion was sent to the United States district attorney for Oklahoma, on October 17, 1891, with a statement that in view of the fact that the question had not been fully heard before the Department, I did not deem it proper to formally adopt the same, or to consider it binding upon myself, in the event of a conflict of opinion.

Since that date no argument has been advanced in opposition to the views taken by the Assistant Attorney General, and upon further consideration of the case, I am of the opinion that the views expressed by that officer are correct, and it is therefore held, that entries of the lands in question may be made under the second proviso of section 22 of the act of May 2, 1890.

As you have expressed no opinion as to the sufficiency of the proofs submitted by the applicants, I herewith return the papers for such action as may be deemed proper in the premises, especially calling your attention to the affidavits of contest filed against the entry of Etta B. Beard, also calling your attention to the manner of payment for the lands in question.

Said payment should be made either in currency, or by draft on New York exchange paid, and not by cashier's check on a bank in Arkansas City, Kansas.

CONTEST-RELINQUISHMENT-SECOND CONTESTANT.

BARNABY V. LAZIER ET AL.

A relinquishment filed during the pendency of a contest, and as the result thereof, inures to the benefit of the contestant, and excludes all rights under the subsequent application of another to proceed against the entry in question.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 20, 1892.

I have considered the appeal of Healy A. Watuston from your decis ion on February 24, 1891, in the case of Nelson Barnaby v. George B.

Lazier, involving the latter's entry under the homestead law, for NW. 4, Sec. 23, T. 63 N., R. 11 W. Duluth, Minnesota.

Defendant made entry of said tract February 3, 1887, and on March 13, 1888, Barnaby filed affidavit of contestant against the entry alleging that the defendant had never settled upon or cultivated any portion of the S. of NW. and NE. of NW. 1 of said section 23, but had wholly abandoned the same.

May 1, 1888, the day set for the hearing, both parties appeared with counsel, defendant moved to dismiss the contest on the ground that the affidavit was void, it failing to describe all the land in said entry; this motion was overruled by the local officers, and the contestant submitted testimony to show abandonment by the homestead party, the defendant offering no testimony in defense.

The local officers sustained the contest, whereupon the defendant appealed. On December 19, 1890, you decided that the overruling of defendant's motion was in error, and therefore sustained the appeal, remanding the contest affidavit as a basis for a new hearing, instructed the local officers to allow thirty days within which to file a new or amended affidavit of contest and issue new notice of hearing in the case. December 26, 1890, Healy A. Watuston filed application to contest said entry, asking that notice of contest be issued, which was refused by the local officers for the reason that you had on the 19th of the same month, remanded the former contest by Barnaby for the same land to the local office for a new hearing. December 30, following Watuston appealed on the ground that he was an adverse claimant and therefore Barnaby should not be allowed to amend his application or to file a new affidavit of contest. On February 24, 1891, you affirmed the decision below, when the party again appealed.

It appears that the contestant Barnaby filed an amended contest affidavit within the time allowed and a hearing was had March 24, 1891, at which time the contestant appeared and produced testimony-the defendant in default.

On March 27, 1891, before the local officers rendered a decision in the case, the defendant filed a relinquishment of his entry and the contestant filed a withdrawal of the contest, whereupon Barnaby was allowed to enter the land in controversy.

The local officers reported the above fact to you April 10, 1891, and on April 29, following, you dismissed and closed the case, thereby approving the action of the register and receiver in allowing the homestead entry of contestant Barnaby.

Subsequently, on May 29, 1891, you directed the local officers to suspend action on the Barnaby entry until the pending appeal of Watuston be disposed of, and on July 2, 1891, the local officers reported to you that on June 22, 1891, said Barnaby had relinquished his entry and that at the same time Edward E. Murphy filed application for the same land. The local officers furthermore report that the Murphy application is