therefore, find that by the law as well as the equity of the case, that the several purchasers by their purchases took the land to the shore line of the lake, and that the government has no land betwen said pretended "meander line" and the lake shore to sell or dispose of.

Your decision is accordingly reversed, and the entry of Girtman will be canceled.

SOLDIERS' ADDITIONAL ENTRY-MISSOURI HOME GUARD.

JOSEPH RUSH ET AL.

A soldier's additional homestead entry, based on service in the Missouri Home Guards, may be confirmed under section 7, act of March 3, 1891, for the benefit of a bona fide purchaser.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 16, 1892.

I have considered the appeal by E. S. Johnson, transferee of Joseph Rush, from your decision of May 19, 1891, holding for cancellation soldier's additional homestead entry No. 4344, final certificate No. 1564, made March 30, 1881, for lot No. 2, Sec. 1, T. 5 N., R. 6 W., lots 2 and 3, Sec. 24, T. 10 N., R. 9 W., and the NE. 4 of NW. 4, Sec. 34, T. 24S., R. 8 E., in the name of Rush, for the reason that the military service, on account of which the right to make the entry is based, was performed in the Missouri Home Guards, the members of which organization are not entitled to the benefits of section 2306 of the Revised Statutes.

On September 26, 1883, Elijah S. Johnson made affidavit that he was the owner of said tract through purchase from Rush, and it was through his appeal that the case is now brought before me.

Your decision refused to confirm this entry under the 7th section of the act of March 3, 1891 (26 Stat., 1095), for the reason that the entry is void ab initio.

Said section provides that

All entries made under the pre-emption, homestead, desert-land, or timber-culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry to bona fide purchasers, or incumbrancers, for a valuable consideration, shall, unless upon an investigation by a government agent fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the land department of such sale or incumbrance.

In the case of the United States v. Samuel C. Coonsy (14 L. D., 457), it was held that the confirmatory operation of section 7 of the act of March 3, 1891 (supra), extends to soldier's additional homestead entry, based on service in the Missouri Home Guards. No fraud has been

found on the part of the purchaser. You are therefore directed to call upon the transferee to furnish proof as required by the circular of May 8, 1891 (12 L. D., 450), and upon receipt of the same you will re-adjudicate the case in the light of the above decision.

SUCCESSFUL CONTESTANT-SCRIP LOCATION-PREFERENCE RIGHT.

MCGEE ET AL v. ORTLEY ET AL.

The successful contestant of a scrip location is entitled to a preference right of entry, if qualified to exercise such privilege.

The qualifications of the applicant must appear at the time he applies to exercise the preferred right of entry secured by a successful contest.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 16, 1892.

In 1883 John F. McGee made application for a homestead entry for the E. of N. E. section 34 T. 154 N. R. 64 W. At the same time Sarah D. Keys applied to make a timber culture entry for the W. of said N. E. of said section and Emmett Orr applied to make a homestead entry for the S. of S. W. and N. E. † of S. W. of section 35, T. 154 N. R. 64 W., and George H. Stokes applied to make a timber culture entry of said section 35.

for the N. W. of S. W. All of these applications were made at the Devils Lake land office, North Dakota, but were rejected by the local land officers, because each of said tracts applied for was covered by the location of certain Sioux half breed script.

Appeals were taken by all of said applicants and upon allegations made by them a hearing was duly had at their expense, the result of which was that all of said scrip locations were finally canceled by the judgment of this Department of February 18, 1889. Thereupon the applications were returned to you for appropriate action and by your letter of February 28, 1889, you promulgated the departmental decision and directed the register and receiver to allow said applications as of the date when offered. On March 6, 1889, the local land officers allowed John F. McGee to make entry for the E. of N. E. of section 34, T. 154 N. R. 64 W., and on the same day they allowed Orr and Stokes to enter the respective tracts applied for by them but no entry was made by Sarah D. Keys.

On February 21, 1889, before the register and receiver had been notified of the decision of this Department of February 18, 1889, cancelling the scrip locations, George H. Locke applied to make homestead entry for the N. E. of said section 34. His application was rejected because of the scrip locations.

On March 5, 1889, he renewed his application but it was rejected on the following day "for the reason that land is covered by Hd. 2600 of John F. McGee."

Locke filed an appeal purporting to be taken from the rejection of February 21, and that of March 6, but as the appeal was not taken in time from the first order of rejection it was considered by you as having been taken only from the rejection of March 6, 1889. On March 18, 1889, Sarah D. Gifford, formerly Sarah D. Keys, renewed her application made in 1883, for the W. of the N. E. of section 34, T. 154 N. R. 64 W., which was rejected on March 23d following, "for the reason that applicant is not qualified to make timber culture entry."

On the same day George J. Juergens was alowed to enter said tract under the homestead law.

On March 9, 1891, you considered the appeal of Locke, holding that the local land officers were right in rejecting his application and that McGee was entitled to the preference right to enter the E. of the N. E. of said section and that his entry therefor on March 6, 1889, segregated the land. You also stated that, as to the W. of the N. E. of said section, also claimed by Locke, you had received from the attorney of Sarah D. Keys, now Mrs. Sarah D. Gifford, a protest against Juergens' homestead entry and claiming as the contestant of

the scrip location, a preference right to enter the land.

You also held that "until the appeal of Locke is finally disposed of, the matter of disputed claim to W. of N. E. of said section 34 as between the present entryman Juergens and the claimant Keys and possibly Locke, will be suspended."

You also suspended the entries of McGee and Juergens.
Locke has appealed from said judgment to this Department.

On March 11, 1891, McGee relinquished his claim to the E. of the N. E. of section 34, the tract entered by him on March 6, 1889. This action left Locke alone the claimant of said tract and he might now be allowed to enter the same were it not for the fact that on May 25, 1891, he also relinquished any claim he might have to said tract, but expressly provided in said relinquishment that he still claims the right to enter the W. of the N. E. of section 34, the tract entered by Juergens and claimed by Keys. These relinquishments remove from the controversy all question concerning the disposition of the E. of the N. E. of said section 34. The scrip location for the W. of the N. E. of section 34, T. 154, N. R. 64 W., was canceled, as we have seen, on February 18, 1889, by judgment of this Department and Sarah D. Keys, if qualified, would be allowed thirty days from notice thereof, in which to exercise her preference right of entry. The application of Locke made on February 21, 1889, would then be subject to whatever rights she may have had as a successful contestant. I think there can be no doubt but that the location of scrip on this tract was in the nature of a pre-emption entry and that after successfully contesting the validity of said location and procuring its cancellation, at her expense, Miss Keys was entitled to a preference right of entry under the law, provided always that she was qualified to make it.

The fact of her being qualified to make entry in 1883, when she ap. plied to enter the tract is not material now since in 1889, when the tract was finally cleared from the scrip locations, and when for the first time it might have been entered by her she is found not qualified by reason of her marriage. No entry can be allowed of the public lands unless two conditions meet. One is that the land be subject to entry and the other is that the party be qualified to make entry. In 1883, when Miss Keys applied to enter the tract she was qualified to make entry but the land was covered by scrip location and was not then subject to entry; it was first made subject to entry in 1889, when said locations were canceled by competent authority and at that time Miss Keys was a married woman and hence disqualified, as it is not claimed that she is the head of a family. Her claim to enter the land is therefore rejected. Locke applied for the whole of the N. E. of section 34 on February 21, 1889, and again on March 5, 1889.

McGee as successful contestant against the scrip location was entitled to a preference right of entry for the E. of said tract and Keys as successful contestant was entitled to a preference right of entry for the W. thereof, but as Locke was the first applicant for the tract his entry should have been allowed and held to be subject to the rights of McGee and Keys.

Keys waived her preference right of entry by becoming the wife of Gifford, or rather by so doing she disqualified herself from making the entry, hence Locke as the prior applicant is entitled to make entry for the W. of the N. E. of Section 34, T. 154 N. R. 64 W.

You will therefore reject the claim of Sarah D. Gifford and call on Juergens to show cause within sixty days why his entry should not be canceled and the application of Locke to enter the land be allowed. Your judgment is accordingly modified.

RAILROAD GRANT-WITHDRAWAL-INDEMNITY SELECTION-FORFEITURE ACT.

HANSE v. NORTHERN PACIFIC R. R. Co.

Lands reserved under withdrawal on general route for the benefit of the Northern Pacific main line are not subject to selection as indemnity for lands lost along either the main or branch line.

The rejection of a homestead application for lands thus withdrawn does not preclude the settler from making entry thereof on their subsequent restoration by the forfeiture act of September 29, 1890.

Acting Secretary Chandler to the Commissioner of the General Land Office, May 16, 1892.

This record presents the appeal of the Northern Pacific Railroad Company from your decision of October 27, 1887, in the case of John

Hanse against said company, involving the SE. of Sec. 11, T. 4 N., R. 15 E., Vancouver, Washington.

You state that

Said tract is within the limits of the withdrawal upon the filing of map of general route of the main line of the Northern Pacific Railroad, held to have become effective August 13, 1870, also within the indemnity limits, as defined upon the map filed June 29, 1883, purporting to show the definite location of the branch line of said road opposite this tract.

On June 12, 1886, Hanse, alleging a bona fide settlement " commenced May 20, 1872," and improvements valued at $1500, applied to make homestead entry for the land. This application was as shown by endorsement rejected at the local office for the reason that the land was withdrawn as stated in August, 1870, and for the further reason that it was May 18, 1885, selected as indemnity for loss along the company's branch line "from a point near Ainsworth . . to Yakima City."

Hanse appealed, and reviewing the case you found that by making said indemnity selection the company abandoned "all claim as to this tract under the main line;" that its claim thereto was therefore based upon such selection and that Hanse by reason of his prior settlement and improvement had the better right. You accordingly held the company's selection for cancellation and Hanse's application for approval. The company appeals from this action.

When it filed its map of general route, the land within the primary limits of its grant became withdrawn from settlement and entry by operation of law. Buttz v. Northern Pacific Railroad Company (119 U. S., 55); Northern Pac. v. Vaughn (6 L. D., 11).

The effect of this withdrawal was to hold the land embraced therein in reserve until the grant acquired precision by the line of the company's road being, in accordance with the terms of the granting act of July 2, 1864 (13 Stat., 365), "definitely fixed and a plat thereof filed in the office of the Commissioner of the General Land Office." Being thus, at the date of said selection, reserved solely for the benefit of the grant along its main line, the land in question could not, as a matter of course, be properly taken by the company as indemnity lands lost along either main or branch line. Its selection of the same was therefore improperly allowed and must accordingly be canceled.

By the act of September 29, 1890 (26 Stat., 496), it is provided that there is hereby forfeited to the United States and the United States hereby resumes the title thereto, all lands heretofore granted to any State or to any corporation to aid in the construction of a railroad opposite to and coterminous with the portion of any such railroad not now completed, and in operation, for the construction or benefit of which such lands were granted; and all such lands are declared to be a part of the public domain.

The company's said main line of road opposite the tract in question, was not completed at the passage of the said act and the same was thereby restored to the public domain.