would seem that ample authority is given in the statute, and was intended to be so given, to set apart the cemetery as one of the public lots for the future use of the village as a place of burial. The lot so set apart was in no sense reserved to the United States. It was not designated on the plat by the military authorities, neither was the public square. The lots reserved to the United States were those designated by the military authorities for military and other public purposes connected with the general government. The public square and the cemetery lot were set apart, and marked on the map or plat by the register and receiver, in pursuance of the statute, as a part of the plan of the village, and for the use of its inhabitants and have, therefore, no connection with the lots required to be set apart for military or other public purposes, by the second section of the act.

If these proceedings constitute a dedication to the village of the public square by the United States, the same result must also have been wrought in reference to the cemetery. They both depend upon the statute, and are surrounded by the same facts and circumstances. It will scarcely be claimed that there was no dedication in the case of the public square-such a claim could have no foundation in law or reason.

I am therefore of the opinion that the proceedings under the act of 1850, as herein set forth, did constitute a dedication by the United States of the land in controversy to the use of the inhabitants of the village of Sault Ste. Marie, as a place for the burial of their dead. I am also of the opinion that by virtue of said act, and the proceedings in conformity therewith, the dedication was, technically speaking, a statutory dedication, whereby the title to the land passed from the United States, and, upon the incorporation of the village, vested in its municipal authorities in trust for the purposes of the dedication; that the United States thereby parted with their title to, and jurisdiction and control over the cemetery lot just as effectually as by the same means they parted with their title to and control of the streets, avenues, and public square designated on the plat. There could be no reversion in either case. The tract in question thereupon ceased to be a part of the public domain, and the United States have since had no interest in, or control of the same whatever. It was not, therefore, "public lands of the United States, not other wise appropriated," at the date when Gamble made his application to locate Porterfield scrip thereon.

In this view of the case it is not deemed necessary to consider any questions relative to the action of the village authorities in causing the cemetery to be vacated, inasmuch as, whatever may be the legal effect of such action, as touching the public use to which the land was originally dedicated or the rights of those interested therein, it can make no difference so far as the question here presented is concerned. It may be said, however, that in the exchange of part of the cemetery lot for a larger lot, more suitable for burial purposes, the village authorities seem to have, in the spirit at least, attempted to execute and carry

into effect the original purpose of the dedication, at any rate, as to the part thus exchanged.

Other questions are presented by the record and have been argued by counsel, but owing to the view I have taken of the case, they are not deemed material to the issue involved, and will not, therefore, be discussed.

For the reasons herein already stated, the decision which is the subect of this appeal, to the extent that it rejects the application of Gamble, must be, and the same is hereby, affirmed.

ACCOUNTS-WITNESS FEES-HEARING ON REPORT OF SPECIAL AGENT.

C. L. HIGDAY.

In proceedings by the government against an entry a witness who is summoned by the claimant and testifies in his behalf is not entitled to any fees from the United States.

Secretary Noble to the Commissioner of the General Land Office, March 31, 1890.

C. L. Higday appeals to this Department from the action of your office by letter of November 16, 1888, denying his application for allowance and payment of fees and expenses as a witness for the United States in the case of W. D. Holmes.

It appears from a report dated October 25, 1888, of Special Agent E. L. Thomas, to your office in reference to this matter, that he wrote to one M. S. Ketch, "requesting him to secure reliable witnesses for the government" in said case; that at the hearing, said Ketch, to the surprise of the special agent, appeared as attorney for the claimant, Holmes bringing with him Higday, who claimed to be a witness for the government; that the special agent "at once refused to recognize Hig. day, as a witness for the government, and so told him at the time;" that he charged Ketch "with trying to force witnesses" for the claimant on him (the special agent) "as witnesses for the government. It further appears that Higday, after the special agent had refused to recognize him as a witness for the government, was introduced by Ketch and testified in behalf of the claimant.

By circular of your office of May 25, 1885, and of this Department (Accounts Division) of December 4, 1889, special agents are required, before payment can be made to "certify to the transportation expenses of each witness" summoned by them for the government on hearings. in land entries, "and the time necessarily employed " by them as such witnesses.

The special agent in this case refused to certify to Higday's account. Being summoned by the attorney for the claimant (who, on being requested by the special agent to procure witnesses for the government, 14636-VOL 10-25

does not appear to have disclosed his relation to the case), and knowing when summoned, it must be presumed, that his testimony would be in the interest of the claimant, and having in fact testified as a witness for the claimant, the special agent was justified in refusing to certify to his account as a witness for the government.

The ruling of your office, "that he is not entitled to any fees from the United States," is affirmed.

RAILROAD GRANT-CONFLICTING SETTLEMENT CLAIM.

NORTHERN PACIFIC R. R. Co. v. BOGUE.

Under the grant to this company

66

occupation" by a homestead settler, instead of "entry," is made the test to determine whether lands are withdrawn on general route, or pass to the company under the grant.

Secretary Noble to the Commissioner of the General Land Office, March 31, 1890.

I have considered the motion for review of departmental decision (unreported) rendered April 13, 1889, filed by the Northern Pacific Railroad Company, by which the claim of said company to lots 5 and 6, the S of the SE of Sec. 19 T. 23 N., R. 6 E., Washington Territory, was rejected and Michael Bogue allowed to file his pre-emption declaratory statement for said tract, which was presented at the local office on September 27, 1884.

The grounds of said motion are: (1) Error in ruling "that mere occupancy suffices to except the tract from the operation of the withdrawal on general route, or from the grant on filing map of definite location;" and (2) Error in holding "that at date of Bogue's application to enter, said tracts were public lands subject to such entry."

The very same errors, with others, were insisted upon by the company in its appeal from the decision of your office. No new evidence is offered, and the motion for review, in effect, concedes that the land in question was occupied by settlers at the date of withdrawal on general route and at the date of the definite location of the line of its road. If this be true, the land was excepted from the withdrawal and from the grant. It will be unnecessary to consider the effect of the two alleged withdrawals on general route subsequent to the withdrawal of August 13, 1870, on general route, for it appears that at the date of each the land was so occupied as to except it therefrom.

In the case of said company v. Anrys (on review, 10 L. D., 258), the Department declined to grant the motion for review filed by the company, and held that under the terms of the grant to said company Congress "made occupation the test, instead of entry," to determine whether lands were withdrawn on general route or passed to the company under its grant.

Said ruling is decisive of the question presented by the motion in this case. The motion, therefore, must be, and it is hereby, denied.

PRE-EMPTION-FILING-PAYMENT.

RANEY v. EDMONDSTON.

Failure to file declaratory statement for offered land, within the statutory period, does not defeat the right of purchase, if the defect is cured prior to the intervention of an adverse right.

In the presence of an intervening adverse right, failure to make payment for offered land within twelve months from date of settlement defeats the right of pre-emption.

Secretary Noble to the Commissioner of the General Land Office, April 1, 1890.

I have considered the case of G. F. Raney v. Abner Edmondston on appeal of the former from your office decision of November 30, 1888, holding for cancellation his cash entry for NW. 1 SW. 1, Sec. 10, T. 24 N., R. 19 W., of 5th P. M., Springfield, Mo., land district.

It appears from the record that on March 15, 1887, Edmondston with his family settled and established residence upon, and on November 17, 1887, he filed his pre-emption declaratory statement for S. NE., Sec. 9, and SW. NW., and NW. 1, SW. 1, Sec. 10, T. 24 N., R. 19, and on July 24, 1888, Raney made private cash entry for NW. said section 10.

SW. 1, of

On September 3, 1888, Edmondston made application to transmute his pre-emption to a homestead claim, but said application was rejected by the local officers as to said NW. SW. 1, upon the protest of Raney who had been notified by claimant of his intention to apply to transmute, because he had settled in the spring of 1887, but had not filed his declaratory statement until November and they held that he had not complied with the requirements of law in regard to the time within which he should file after settlement.

On appeal your office overruled their decision and held that,

As Edmondston applied to transmute his filing within a year after making it, with notice to Mr. Raney, who has made response, and as there was no adverse claim on the land when he made the filing, he could not be deprived of his right to homestead the land merely on account of the delay in filing.

The land was offered January 17, 1878, and Raney's cash entry was made subject to the filing of Edmondston.

Edmondston having filed his declaratory statement before the intervention of Raney's private cash entry his laches in respect to filing was cured under the rule in Johnson v. Towsley (13 Wall., 72), wherein it was held in construing a similar provision of section 2265, in regard to the time for filing a declaratory statement upon unoffered land, that,—

If no other party has made a settlement or has given notice of such intention, then no one has been injured by the delay beyond three months, and if at any time after the three months, while the party is still in possession, he makes his declaration, and this is done before any one else has initiated a right of pre-emption by settlement or declaration, we can see no purpose in forbidding him to made his declaration or in making it void when made.

In Emmerson v. Central Pacific Railroad Company (3 L. D., 117) it was said,

Now the provision relating to offered land (Sec. 2264 R. S.), is so similar in language that the same construction must necessarily be given it. On default in filing, "the tract of land so settled and improved shall be subject to the entry of any other purchaser." There is no declaration of forfeiture here, as in the former section, and nothing to indicate that Congress intended to provide for an absolute forfeiture; and it follows inevitably that, as justly remarked by Mr. Secretary Delano, in Walker and Walker (1 C. L. L., 293), the construction in Johnson v. Towsley applies a fortiori to claims upon offered land. Such land therefore is subject to entry by other purchasers, after laches in filing by the settler, but is not forfeited as against the government.

But section 2264 Revised Statutes which provides the method of exercising the pre-emption right upon offered lands, requires that payment shall be made within a certain time after settlement, and this seems to have been entirely overlooked by your office in your said decision. Said section is as follows,

When any person settles or improves a tract of land subject at the time of settlement to private entry, and intends to purchase the same under the preceding provisions of this chapter, he shall, within thirty days after the date of such settlement, file with the register of the proper district a written statement, describing the land settled upon, and declaring his intention to claim the same under the pre-emption laws; and he shall, moreover, within twelve months after the date of such settlement, make the proof, affidavit, and payment herein before required. If he fails to file such written statement, or to make such affidavit, proof and payment within the several periods named above, the tract of land so settled and improved shall be subject to the entry of any other purchaser.

It is, therefore true that a failure to pay for such land within the time provided in said section renders it subject to entry by other purchasers. Edmondston settled March 15, 1887, and it was necessary for him to make payment for the land "within twelve months after the date of such settlement," but having failed to do so, the tract of land in controversy, "became subject to the entry of any other purchaser," and Raney having made entry thereof has the superior right and Edmonston's entry will be canceled as to said NW. 1, SW. 1, Sec. 10. Your said decision is accordingly reversed.

PRACTICE NOTICE; RESIDENCE.

ANDERSON v. TANNEHILL ET AL.

Service of notice by registered letter is personal service as required by rule 15 of Practice.

Residence in good faith requires the establishment and maintenance of a home on the land to the exclusion of one elsewhere.

Secretary Noble to the Commissioner of the General Land Office, April 1,

1890.

I have considered the case of Andrew Anderson v. Alfred Tannehill pon the appeal of Olaf Stenson, transferee, from your office decision