and the surveys construction and operation of such railroad shall be conducted with due regard for the rights of the Indians, and in accordance with such rules and regulations as the Secretary of the Interior may make to carry out this provision.

It is further provided in section six as follows:

That the right granted herein shall be lost and forfeited by said company unless the road is constructed and in running order within two years from the passage of this act.

In the application filed, it is said:

An essential step for the complete construction of every railroad, and particularly for the complete construction of any railroad running over the soft and spongy earth found in the valleys of Western Dakota and Northern Montana is the ballasting of the same with gravel, or other similar porous material. This step in construction must follow track-laying and the commencement of operation of the railway, as gravel is usually found deposited in beds at considerable intervals apart, sometimes amounting to many miles, and must consequently be moved by train.

The provisions of the act under consideration as to the right of the company to take from the public land material for the construction of the road is the same as that found in the right of way act of March 3, 1875 (18 Stat., 485). Paragraph one of the circular of instructions issued under said general act on August 25, 1885 (4 L. D., 150) and now in force reads as follows:

1. Such provisions refer exclusively to roads in the process of construction. No public timber or material is permitted to be taken or used for the repair or improvement of a road after its original completion. The right to take such timber or material ceases when the road is open to the public for general use.

This rule should be observed in considering the claim of this company under the special act in question. The application does not state when that portion of the road upon which it is desired to use the material in question was put in operation by being opened to the public for general use, nor does it state definitely upon what part of the road it is desired to use this material, whether within or outside the boundaries of the reservation. In his report upon this application, the Commissioner of Indian Affairs makes the following statement:

The map of definite location of the right of way of said road over and across the Fort Peck Indian reservation in Montana was approved by the Honorable Acting Secretary of the Interior May 26, 1887, and the road has long since been completed and in operation to Great Falls in western Montana.

I think it clear from this statement and the whole tenor of the appli cation that the road has been built and put in operation past this reservation. It is, as remarked by the Commissioner of Indian Affairs, not always an easy matter to determine just when the work of con struction ends. The work of construction in the sense of making the road bed more perfect and the whole line more complete may be said. to have no end. The oldest lines may still be making and carrying into execution plans for a more perfect road bed. For the purposes of these laws some point must be fixed as the end of the work of construction. The Department has fixed this at that point where the road is

thrown open to the public for general use. This determination seems a logical and just one, and I find no good reason for departing from it in this instance. There is force in the suggestion of the Commissioner of Indian Affairs that the provision of section six of this act quoted above is of assistance in determining the right of the company in this act. If this road is now "constructed and in running order" so that the rights conferred by said act are not subject to forfeiture under said section six, it must be held to be constructed in the sense of that term as used in section three. The company itself would be the last to admit that it is so in default in the matter of construction as to leave its rights under said act subject to forfeiture as to that portion of its line over which it is running its trains and transacting the business of the public. It cannot be heard to assert the construction of its road under one section of this act to avoid a forfeiture thereunder and at the same time the non-construction thereof under another section for the purpose of securing further benefits thereunder. For the reasons therein set forth, I am of the opinion, and so advise you, that there is no authority in said act of Congress for granting the application in question.

HOMESTEAD ENTRY-ALIEN-NATURALIZATION.

PHILLIPS v. SERO.

The right of an alien homesteader who submits proof and receives his final certificate relates back to the date of his settlement, where, prior to the intervention of any adverse claim, he is subsequently naturalized.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 23, 1892.

On January 15, 1877, Joseph Sero made homestead entry No. 96, under the provisions of the act of June 8, 1872 (section 2304 Revised Statutes), for the W. of the NW. and the NE. 4 of the NW. # of the NE., Sec. 8, T. 2 N., R. 12 E., The Dalles, Oregon.

He submitted final proof May 23, 1882, and on the same day final certificate No. 281 was issued.

It appears that he enlisted in Company "D," 1st Regiment, Oregon Infantry Volunteers, on November 23, 1864, and was honorably discharged therefrom on the 16th day of January, 1866, having thus served about fourteen months.

It further appears that he was not a citizen of the United States at the date when final certificate was issued (May 23, 1882). He first declared his intention to become a citizen on October 10, 1883, and on September 8, 1884, he was naturalized, as evidenced by a certified copy of the order filed with the papers and affidavits, as to the identity of the Sero so naturalized as being the same person who made said entry. On or about May 1, 1888, he sold the land to the three brothers, Charles J., Edwin U., and Robert E. Phillips. A part of the purchase price

was paid, and notes, amounting to $800, were given for the residue secured by a mortgage on the land. On November 30, 1888, Sero sold the mortgage to one John Baldwin, and soon thereafter died.

In June, 1890, the notes given for the deferred payments fell due, and the Phillips brothers undertook to borrow money to pay off the notes, offering as security a mortgage on the land. It appears that they failed in negotiating the loan upon the security offered, because no patent had been issued for the tract, and, on their failure to pay the notes, then amounting to $1000, Baldwin, the holder of the mortgage, began foreclosure proceedings.

The value of the land and improvements thereon are estimated at $4000.

On March 15, 1890, William O. Phillips filed his affidavit of contest against the entry, corroborated by R. Emmet Phillips (presumably Robert E., one of said brothers), asking for a hearing, with a view to the cancellation of said entry, on the grounds above set forth-namely: that at the time the entry was made, the said Sero was not a citizen of the United States, and that the same was fraudulent and in violation of the homestead laws, etc.

On April 24, 1890, you denied the application to contest, "the charges not being deemed sufficient to warrant an investigation of said entry." Phillips has appealed from that judgment.

Under the facts above given, Sero might have become a citizen of the United States under section 2166 of the Revised Statutes, "without any previous declaration of his intention to become such."

While his proof was made when he was an alien, yet the defect of alienage was cured by his becoming a citizen before any adverse claim or contest was initiated, and in such cases the Department has ruled that the right of the claimant relates back to the date of his settlement. Kelly v. Quast, 2 L. D., 627; Mann v. Huk, 3 L. D., 452; Ole O. Krogstad, 4 L. D., 564; Jacob H. Edens, 7 L. D., 229; Paulus Kundert, id., 362; Rougeot v. Weir, 13 L. D., 242; Lyman v. Elling, 10 L. D., 474. The decision appealed from is accordingly affirmed;

HOMESTEAD ENTRY-PAYMENT FOR EXCESS.

JAMES L. KENNEDY.

A timber culture entryman who pays cash for an excess in acreage and subsequently relinquishes his entry and applies for the land under the settlement laws is not entitled to credit for the payment made under the former entry.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 26, 1892.

The land involved in this appeal is the E. of NW.

and lots 1 and

2, of Sec. 18, T. 135 N., R. 74 W., (containing 166.76 acres) in Bismark, North Dakota, land district.

The record shows that James L. Kennedy made timber culture entry on said tract in May, 1884, and paid $16.90 for the excess over 160 acres. In May, 1888, he relinquished the same and filed his pre-emption declaratory statement for the land in question, alleging settlement April 10, 1888, and on October 9, 1890, applied to transmute his preemption filing to a homestead entry, under Sec. 2, of the act of March 2, 1889. The local officers rejected this application "for the reason of an excess of 6.76 acres, which applicant refuses to pay."

Kennedy appealed, and you by letter of December 5, 1890, affirmed their decision, whereupon he prosecutes this appeal, assigning as error that you have misconstrued the law and rulings relative to excess.

Counsel for appellant argues that inasmuch as his client paid the excess under his timber-culture entry, he should not be required to pay it again for his homestead entry. This position is not tenable. He voluntarily relinquished to the government the land under the timberculture entry. His subsequent entry bears no relation whatever to the former, no more than if he were a stranger to the land, or than if he had sought to take another tract. In other words, when the government again became vested with the title to the tract, it was subject to the entry under the law and regulations by the first qualified applicant, regardless of what may have been done by the former entryman. Your judgment is therefore affirmed.

HOMESTEAD ENTRY-DIVORCED WOMAN-JUDGMENT.

LEONARD v. Goodwin.

In determining the rights of third parties, set up as against the homestead entry of a divorced woman, it is competent for the Department to inquire into the good faith of the divorce proceedings.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 28, 1892.

The land involved in this appeal is the SW. of Sec. 30, T. 96 N., R. 66 W., Yankton, South Dakota, land district, formally in the limits of the Ft. Randall military reservation.

The record in this case shows that Martha Goodwin made homestead entry for said tract September 9, 1885, under section 2289 (R. S., 419), and the act of July 5, 1884 (23 Stat., 103), alleging settlement April 17, 1883. On August 27, 1886, she submitted final commutation proof which was accepted and cash entry made September 7, following.

Much of the subsequent history of the case is immaterial and for the sake of brevity, will be omitted. Suffice it to say, that the final proof shows that the applicant had been divorced from her husband on the ground of desertion, and by letter of October 25, 1886, you required proof of this to be furnished, and also required Amy H. Leonard, to file

formal charges, if she desired to contest the entry, within sixty days. Accordingly, Leonard on January 12, 1887, filed an affidavit of herself and two corroborated witnesses, including twenty pages of manuscript, the substance of which is that she settled on and claimed the W. of the SW. of said described land (and others) September 14, 1883; that the claimant Goodwin, was not a qualified homestead entryman for the reason that the divorce proceeding was fraudulent and collusive between the claimant and her husband; that the object and purpose of said divorce proceeding was simply to permit the claimant to secure said land, because the husband had exhausted all his rights under the land laws.

On May 3, 1887, the contestant presented her homestead application for the W. of the NW. and W. 1⁄2 of the SW. 4, said section, township, and range, which was refused for partial conflict with the defendant's cash entry.

By letter of February 21, 1887, you ordered a hearing, which was had before the local officers, and as a result they held that the claimant was not qualified to make said entry. On appeal, you by letter of May 29, 1889, reversed that decision. A motion for a rehearing was made on the ground of newly discovered evidence. By letter of August 8, 1889, said motion was denied, but on your own motion, on September 6, following, you ordered a new hearing "to determine contestant's charge of disqualification and fraud of contestee." After several delays, hearing was finally had before the local officers, and as a result thereof they held that there was no evidence of fraud on the part of the claimant and recommended that her entry be allowed to stand. Contestant appealed, and you, by letter of April 25, 1891, affirmed their decision, whereupon contestant prosecutes this appeal, assigning as error your action in not finding that the divorce was procured through fraud and collusion between husband and wife, and was a mere sham to enable the wife to enter the land as a feme sole.

It is a well settled principle of law that the judgment of a court of competent jurisdiction is conclusive between the parties and can not be attacked collaterally or by a stranger to the record, yet, I take it, where the rights of third parties are imperilled and it is shown that by fraud and collusion a decree of divorce is obtained and by reason thereof the wife is enabled to do, as a feme sole, that which her husband or herself could not do while the marital relation existed, the Department may inquire into the bona fides of the judgment, and if it is found that for the purpose of acquiring title to public lands, it was procured by fraud and collusion, the entry may be canceled. It is only on this theory that this divorce proceeding will be considered.

The testimony shows that James Goodwin, with his wife, the claimant, and five children, settled on the land in controversy in April, 1883; that in February, 1885, James left his family for a short time, went away again in June, and remained away permanently; that on March 10,