dence. This requirement is equally binding upon one who claims the right of entry in a contest proceeding by reason of prior settlement. So that, while only applications to enter were filed in the case under consideration, it is believed that the rulings announced in the cases last referred to afford sufficient warrant for a further investigation in said case.

The motion for rehearing is hereby denied, and the papers are returned to your office for such action as may be deemed proper in the light of this paper.

SETTLEMENT RIGHT-ADVERSE APPLICANT.

O'HORNETT v. WAUGH ET AL.

As between two applicants for the right of entry where the question of priority depends upon the time of settlement on the part of one, as against the time of application by the other, the settler will be given the precedence, if it can not be satisfactorily determined that the adverse application was regularly tendered prior to the act of settlement shown, and entitled to consideration at such time. No question with respect to the regularity of departmental action in the establishment of a booth, as affecting the qualifications of one holding a certificate issued therefrom, will be entertained, in the absence of a showing of advantage gained thereby.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 12, 1899.

(E. F. B.)

The Department has considered the separate appeals of J. W. Aldrich and Andrew M. Waugh from the decision of your office of October 12, 1897, rejecting the homestead applications of said appellants and awarding the land applied for, to wit, the SE. of Sec. 28, T. 26 N., R. 2 E., Perry, Oklahoma, to Lon O'Hornett, under his settlement claim. O'Hornett's claim is predicated upon a settlement made at 1:08 p. m. September 16, 1893, the day of opening, which has since been maintained. Aldrich claims by virtue of an application to make homestead entry of said tract, which was sent by mail and received at the local office at 1:20 p. m. the day of opening. Waugh claims under an application to make homestead entry, which was received by the local officers at 2 p. m. of that day, but which he contends was tendered to the local officers prior to the initiation of any other claim, and that they refused to receive and act upon it at that time.

No entry was allowed upon either application. The application of Aldrich was rejected because filed by mail and Waugh's application, which was afterward received by the local officers, was suspended to await action on the prior application of Aldrich.

Upon the appeal of Aldrich your office reversed the action of the local officers refusing to accept his application and ordered a hearing to determine the rights of the respective claimants, O'Hornett having in the meantime protested against the granting of either application because of his priority of right as a settler.

The hearing in this case was continued from time to time and was not had until July, 1895. At that time none of the parties to this controversy had made any improvements on the tract or established and maintained residence thereon, except O'Hornett. Aldrich and Waugh rely upon their applications to make entry, which have not been acted upon, and each contends that his application is entitled to priority of right over all other claimants.

The material facts necessary to a clear understanding of the issues involved are sufficiently stated in the decision of your office, in which it is said:

O'Hornett reached and staked this land at about 1:08 p. m. September 16, 1893, and four days later he built a house on the tract and established his residence there. Though occasionally absent, his residence on the land has been maintained ever since. He has on the land a house, barn, about one hundred acres of breaking and other improvements.

Waugh's homestead application was received and filed at 2 p. m. September 16, 1893, but he contends that it should date as of 1:05 p. m., of that day, because he presented it at the window of your office at that time, when the officer to whom he presented it refused to receive it at that time, because there were other "filings which demanded his attention." It appears that at the time he first presented his application your office was engaged in the consideration of other applications that had been received by mail, and that the applications of other parties in line ahead of Waugh had been refused for the same reason and were not received and filed until about 2 p. m. of that day.

Aldrich's application was, as is shown by the records of your office, received by mail at 1:20 p. m., September 16, 1893, and is one of the applications executed before Judge Woodson and mailed at Perry by one David A. Prior, referred to in the report of Mr. Witten which is quoted in the case of Parker et al. v. Lynch (20 L. D., 13).

The appeal of Aldrich assigns error in finding that O'Hornett reached and staked the land at 1:08 p. m., or at any time until after his, Aldrich's, application was received at the local office for filing, and not finding that O'Hornett's settlement was made upon another tract.

Appellant Waugh admits that there is no controversy about the facts in the case, and that the proper disposition of it depends solely upon a correct application of the law.

The finding of your office that O'Hornett reached the land at about 1:08 p. m., which was practically the finding of the local office, is warranted by the testimony offered in his behalf, and no testimony upon this point was offered by defendants. Aldrich's filing was not taken up by the local officers for consideration until 1:20 p. m., although it appears that the mail was delivered at the local office prior to that time.

The case of Lewis v. Morris (27 L. D., 113) is cited by Waugh as decisive of his right in this controversy, inasmuch as the defendant, Morris, in that case, whose entry was allowed in preference to a settler who reached the land at 1:10 p. m., is the same person referred to by Waugh in his testimony.

Waugh testified as follows:

I reached the said land office about 24 minutes after 12 o'clock, P. M., of September 16th, 1893, and about one o'clock J. H. Morris and myself, standing at the head of the line at the window of the land office, made an attempt to have our filing papers received, but they were refused. Morris first tendered his application, and was refused. I then handed my application in at the window, and demanded that it should be received. Said application was shoved back to me by Mr. Malone, stating there were filings which demanded his attention. I again demanded that my application be received, and protested strenuously against the action of Mr. Malone, and on his again refusing to accept my application I appealed to the men in line to witness that I had made every effort to have my application received without effect, and that it was at this time five minutes after one o'clock, P. M., September 16th, 1893. After a long delay my application was finally accepted, I think about 20 minutes after 2 o'clock, P. M., on the same day.

I occupied the position of number 8 in said line from the head of same, but on account of a man ahead of me leaving the line before he filed, I filed as number 7. I tendered the money required for filing my papers, together with the papers, at 5 minutes after 1 o'clock, P. M., as before stated.

By reference to the decision in the case of Lewis v. Morris, it appears that Waugh testified in that case that he saw Morris tender his papers to the register and demand that they be received. He said:

Mr. Malone must have refused him, and Mr. Morris called on me and Mr. Severns, of Guthrie, who was directly behind me, to witness that he had offered his papers at 1:05, and I looked at my watch and saw that I had that time.

The Department said that "if Morris' place in line had been reached in regular order prior to 1:10 o'clock p. m., the time of Lewis' settlement, then he is entitled to have his entry remain intact," and it was upon the finding that his place in line had been reached in its regular order prior to the initiation of the settlement right of Lewis that entitled him to priority.

It is apparent from this that Waugh could not have presented his claim until after 1:05 p. m.

Whether, if the claim of Morris and Waugh had each been regularly presented and duly acted upon, respectively, by local officers, the application of Waugh would have been presented to the receiving officers prior to the time O'Hornett staked the land, can not be said with any certainty under the circumstances.

While Waugh may have attempted to press his application upon the local officers at 1:05 p. m., it is evident that if the applications of others in line ahead of him had been considered, his would not have been reached in its order until after O'Hornett had initiated his claim by settlement.

It is contended by appellants that O'Hornett is disqualified by reason of having obtained the booth certificate from the booth at Arkansas. City, which was illegally established by the Secretary of the Interior, such location not having been provided for by the proclamation. Conceding the irregularity of this action, it could not tend to disqualify

O'Hornett, and appellants can not be heard to question the validity of the order of the Secretary, as it is not shown that O'Hornett gained any advantage over appellants by reason of having obtained his certifi cate at that place.

A careful consideration of the record discloses no error in the decision of your office, and it is therefore affirmed.

RAILROAD LANDS-ACT OF MARCH 2, 1896.

WILLIAM THORPE.

The confirmatory operation of the act of March 2, 1896, for the benefit of a bona fide purchaser of patented railroad lands, is not affected by the fact that said lands are included within a timber land reservation, where, prior to the establishment of said reservation, the lands had been patented to the company.

Secretary Hitchcock to the Commissioner of the General Land Office, April (W. V.D.) 13, 1899. (J. I. P.)

I am in receipt of your office letter of the 30th ultimo, submitting for my consideration, the petition of William Thorpe, through his duly authorized agent, C. Cabot, "for confirmation" of title, under the act of March 2, 1896 (29 Stat., 42), to the S. SW. 4, section 15, township

1 N., range 9 W., S. B. M., Los Angeles land district, California. The tract lies within the overlapping indemnity limits of the forfeited portion of the grant to the Atlantic and Pacific Railroad Company under the act of July 27, 1866 (14 Stat., 292), and the primary limits of the grant to the Southern Pacific Railroad Company (branch line) under the act of March 3, 1871 (16 Stat., 573), and was embraced in a patent issued to the Southern Pacific Railroad Company December 27, 1883.

Under the ruling of the United States supreme court in the case of the Southern Pacific Railroad Company r. The United States (168 U. S., 1) said tract was excepted from the operation of the grant to the Southern Pacific Railroad Company, and hence was erroneously patented to it.

The evidence of the bona fide sale and purchase of said tract consists of the affidavits of the Land Commissioner of said company and of his chief clerk attached to a schedule of the lands embracing these, on file in your office, to the effect that said tract was sold in good faith and for the full value thereof; also the affidavit of the petitioner herein that he purchased said lands in good faith and for a valuable consideration from the Southern Pacific Railroad Company, that the patent to said company has not been canceled by any court of competent jurisdiction, and that no suit to cancel it is now pending, and that no part of the purchase money has been refunded to him or to his grantors by said company, and that no proceedings have been instituted by him or his

grantors for the recovery of said purchase money; also the certificate of the recorder of the county where the land lies that all interest acquired by the Southern Pacific Railroad Company to said lands by said patent is by mesne conveyances now vested in the petitioner.

The evidence of the sale and bona fide purchase of the tract herein involved being satisfactory to the Department the title of the purchaser, the petitioner herein, is held to be confirmed by section 1 of the act of March 2, 1896 (supra), (Chicago, Milwaukee and St. Paul Railroad Company, 27 L. D., 552), and your office is hereby directed to make demand under the statute of said Southern Pacific Railroad Company for the value of said lands the title to which is herein held to be confirmed, as the basis of a suit against the company in the event that the demand is not complied with. For the purpose of such demand the minimum government price will be treated as the value of the lands.

It appears that this tract is within the limits of the San Gabriel timber land reserve, established by the President's proclamation of December 20, 1892; but as said tract was embraced in a patent issued to the railroad company prior to the establishment of the reservation, it was excepted therefrom and hence said reservation is no bar to the confirmation of title to said tract.

SOUTHERN UTE INDIAN LANDS OPENED TO SETTLEMENT.

INSTRUCTIONS.

Commissioner Hermann to the register and receiver, Durango, Colorado, April 15, 1899.

In view of a proclamation issued by the President, April 13, 1899, opening to settlement and entry at 12 o'clock noon, May 4th next, the unallotted and unreserved lands within the present reservation of the Southern Ute Indians, you will consider section 4 of the act of Congress approved February 20, 1895 (28 Stat., 677), which provides:

That at the expiration of six months from the passage of this act the President of the United States shall issue his proclamation declaring the lands embraced within the present reservation of said Indians except such portions as may have been allotted or reserved under the provision of the preceding sections of this act, open to occupancy and settlement, and thereupon said lands shall be and become a part of the public domain of the United States, and shall be subject to entry under the desert, homestead, and town-site laws and the laws governing the disposal of coal, mineral, stone, and timber lands; but no homestead settler shall receive a title to any portion of such lands at less than one dollar and twenty-five cents per acre, and shall be required to make a cash payment of fifty cents per acre at the time filing is made upon any of said lands: Provided, That before said lands shall be open to public settlement the Secretary of the Interior shall cause the improvements belonging to the Indians on the lands now occupied by them to be appraised and sold at public sale to the highest bidder, except improvements on lands allotted to the Indians in accordance with the provisions of this act. No sale of such improvements shall be made for less than the appraised value, and the several purchasers of said improve