By the pre-emption law it is required that every claimant thereunder, for unoffered land, shall "make known his claim in writing to the register of the proper land office within three months from the time of the settlement, giving the designation of the tract and the time of settlement; otherwise his claim shall be forfeited and the tract awarded to the next settler, in the order of time, on the same tract of land, who has given such notice and otherwise complied with the law;" and that every such claimant shall "make the proper proof and payment for the land claimed within thirty months after the date prescribed" for filing his declaratory notice, has expired. (Sections 2265 and 2267 Revised Statutes.)

It will be observed that Pare and Yeaman each filed his declaratory statement for the land within three months from the date of his alleged settlement thereon, and that at the date when the general route of the company's road was fixed, the time within which proof and payment were required to be made under such filings had not elapsed. These filings were, therefore, at that date, in point of time, unexpired. They had expired, however, at the date when the company's road was definitely located, in the sense that the statutory period allowed for making proof and payment in such cases had elapsed.

The grant to the company, by the third section of said act of July 2, 1864, was of

Every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office.

The sixth section of the act provided for the survey of the lands for forty miles in width on both sides of the road, after the general route should be fixed, and as fast as might be required for the construction of the road, and that the odd sections of land thereby granted should not be liable to sale, entry, or pre emption, before or after the survey, except by the company. This section operated, proprio vigore, to withdraw from sale, entry, or pre-emption, the odd sections subject to the grant, to the extent of forty miles on each side of the road, from and after the date of filing of the map of general route, which, in this case, as we have seen, was the 21st of February, 1872. Buttz v. Northern Pacific Railroad (119 U. S. 55).

Under the facts stated, it is first to be considered whether the land in dispute was free from pre-emption or other claims or rights at the date of the statutory withdrawal on general route? If so, it was subject to that withdrawal, and under the authority of the Buttz case, supra, no claims or rights could thereafter attach thereto, and, hence, it must be held to have passed to the company under its grant, upon the definite

location of the road. But if not free from such claims or rights at the date of said statutory withdrawal, the land was excepted from the operation thereof by the terms of the grant, and in that event it is further to be considered, whether it was free from such claims or rights at the date of the definite location of the company's road.

I am of the opinion that the pre-emption filings of Pare and Yeaman constituted pre-emption claims, within the meaning of the excepting clause of the grant, such as served to except and did except the land in dispute from the operation of the statutory withdrawal on general route. These filings were in all respects prima facie valid, when made, and at the date of such withdrawal they had not expired by lapse of time, but were still in full force and vigor. They operated, therefore, to raise a presumption on the face of the record, of settlement as therein alleged, and of the actual existence of pre-emption claims to the land; and this presumption is conclusive against the company, especially in the absence of any allegation in reference to said filings, such as, if proven, would render them absolutely void in their inception, and, for that reason, not amounting, at any time, to claims of any character whatsoever. This was substantially the holding of the Department in the case of Malone v. Union Pacific Railway Company (7 L. D., 13), and it has since been followed in the case of Millican v. Northern Pacific Railroad Company (7 L. D., 85); Sioux City and Pacific Railroad Company v. Lewis et al. (8 L. D., 292); Northern Pacific R. R. Co. v. Gjuve (8 L. D., 380); Payne v. Atlantic and Pacific Railroad Company (7 L. D., 405); Union Pacific Railway Company v. Haines (9 L. D., 595); and other similar cases.

The question as to whether these pre-emptors, or either of them, inhabited and improved the land, and performed other duties required by the pre-emption law, is not a matter that concerns the company. With the performance of these conditions, the company has nothing to do, and it is not competent for it to inquire into them. Kansas Pacific Railway Company v. Dunmeyer (113 U. S., 629-641); Northern Pacific Railroad Company v. Wiley (7 L. D., 354). It is sufficient that there was, at the date of the withdrawal, a claim to the land in dispute, of such a nature and character as the act defines, and any question as to the lawfulness of such claim at that date, or as to the performance by the claimant of certain prescribed conditions, is immaterial. Dunmeyer case, supra; Newhall v. Sanger (92 U. S., 761).

This conclusion renders it necessary further to consider whether the land was "free from pre-emption, or other claims or rights," at the date when the line of the company's road was definitely located, to wit: July 6, 1882. At that date, it will be observed, the time prescribed by statute, within which proof and payment were required to be made under the declaratory statements of Pare and Yeaman, had elapsed, without proof and payment having been made. These declaratory statements were, therefore, at the date when the company's rights attached under its grant, what are usually denominated "expired filings;" and

there is no evidence, or allegation even, that the parties named were then settlers, or residents, on the land.

Were these filings, nevertheless, "pre-emption claims," such as served to except the land from the grant? I am of the opinion that they were not. Upon the expiration of the time limited by statute for the making of proof and payment, without such proof and payment having been made, the presumption arose that whatever claim, or claims, had previously attached to the land, under or by reason of such filings, had been abandoned, and no longer in fact existed. This presumption, however, was not conclusive, but was open to rebuttal by any one claiming an interest in or right to the land, who might allege the contrary. The claimant, Stovenour, has made no such allegation in this case. So far as the record shows, the land in dispute wasprima facie subject to the grant to the company at the date of the definite location of its road, and must be held, therefore, in the absence of any allegation or showing to the contrary, to have passed under the grant. Caldwell v. Missouri, Kansas and Texas Railway Company et al. (8 L. D., 570).

Your office decision is accordingly reversed, and the application of Stovenour to make homestead entry for the land is rejected.

HOMESTEAD ENTRY-"TRADE AND BUSINESS."

FOUTS v. THOMPSON (ON REVIEW).

A homestead entry of land occupied by the entryman at the time of entry for purposes of trade and business is illegal, and such illegality is not limited to the land actually covered by the buildings and improvements under such occupancy but extends to the entire entry.

Residence, cultivation, and improvements will not legalize a homestead entry of land that is declared by law to be not subject thereto.

Secretary Noble to the Commissioner of the General Land Office, June 9, 1890.

John F. Fouts, in the former decision erroneously named Fonts, has filed a motion for review of the decision of my predecessor of November 22, 1887 (6 L. D., 332) affirming the decision of the Commissioner of the General Land Office, holding for cancellation Fout's homestead entry for the S. SW. 1, SW. SE. of section 5, and the NW. of the NE., of section 8, T. 17 N., R. 7 W., M. D. M., San Francisco land district, California.

The former attorney of James C. Thompson signs an admission of service of the notice as follows: "I accept service of a copy of the above motion and decline to reply as the death of James C. Thompson ended my employment as attorney."

The motion will, therefore be considered.

The grounds upon which the motion is based are:

I. The death of the adverse claimant and the withdrawal by his attorney of all objections to the awarding of the land to Fouts.

II. The changed conditions of Fouts' use and occupation of the land.

Attached to the motion is the affidavit of Fouts bearing date August 9, 1889, from which it appears

that the contestant Thompson has died, leaving no known heirs, and the attorneys have informed me that they do not longer intend to contest or claim the land; that since the evidence was taken deponent has used the land for agricultural purposes, having cleared and grubbed ten acres, having two acres in alfalfa, three acres of grapevines, two acres in vegetables, fifty-seven fruit trees and the balance plowed; that deponent and his family have resided continuously on the land since the date of hearing and have had no other home or stopping place; that the land not cultivated is used by deponent for grazing purposes, and no other person has had any use, possession or occupation of the land.

The homestead entry of Fouts was canceled because the land covered thereby was at the date of entry "actually settled and occupied for the purpose of trade and business" and therefore according to sections. 2258 and 2289 of the Revised Statutes not subject to such entry.

The death of Thompson or his withdrawal from the contest cannot affect this case nor can the residence of Fouts on the land and his cultivation and improvements of the same legalize an entry for lands that is declared by the law not to be subject thereto. See the recent case of Doud et al v. Slocomb (9 L. D., 532).

In the course of the argument Fouts' attorney requests that the motion be granted "for the reason that the evidence does not clearly show which legal subdivision was used for trade and business and the inhibition of entry of land so used cannot apply to more than the legal subdivision so used."

If any part of the land covered by the entry was not properly subject to the said objection, Fouts had the opportunity to show such fact at the hearing. If he neglected it then it is now too late to re-open the case for such a purpose, when he fails to point out what parts of the land he claims not to fall under such objection.

Besides it appears from the departmental decision in this case, that Fouts began in May, 1874, to improve the tract, putting up in that year a hotel and other buildings and continuing until at the time of hearing May, 1883, he had twenty cottages, hotel, bath house, store etc.; that he since 1874, made use of the land for the purpose of maintaining a health resort thereon.

When the land was settled upon with the object of establishing thereon a health resort as shown in this case, and when the land was used and occupied for such a purpose, it seems, that the illegality of the sub sequent entry must affect the whole of it. The illegality is not limited to the parts of the land actually covered by the buildings and other improvements erected and made in pursuance of the general purpose. For the reasons stated the motion must be denied.

GONZALES v. TOWNSITE OF FLAGSTAFF.

Motion for review of departmental decision rendered March 24; 1890, 10 L. D., 348, overruled by Secretary Noble, June 9, 1890.

REVIEW-FINAL PROOF PROCEEDINGS-NEW PROOF.

WILLIAM H. KEIGAN.

Where the claimant or transferee is afforded a further opportunity to support an entry, a motion for review will not be granted unless there is a palpable abuse of discretion, as shown by the record, in directing the hearing or requiring new proof Secretary Noble to the Commissioner of the General Land Office, June 9, 1890.

R. H. McClellan, transferee, has filed a motion for review of departmental decision of March 7, 1890, affirming your office decisions of May 17, and December 26, 1888, requiring new proof upon the pre-emption cash entry of William H. Keigan for the W. of the NW.

of Sec. 23, and the E. of the NE. 4 of Sec. 22, T. 105, R. 54, Mitchell land district, South Dakota.

The grounds of said motion for review are the following:

(1) Said decision is clearly contrary to law, and is not sustained by the present rulings of the Department;

(2) Error in holding that it was necessary to make an attempt to crop the land prior to final proof;

(3) Error in holding that a sale of the land made four months after final proof tended to impeach the integrity of the entry;

(4) Error in holding that the entry should not be passed to patent as it stands; (5) Error in holding that in default of further proof the entry should stand canceled.

The decision complained of does not hold "that it was necessary to make an attempt to crop the land prior to final proof." The fact that "it does not appear that entryman made any attempt to crop the tract in question" is incidentally mentioned as a part of the statement of the facts in the case, but it is not held that it was 66 necessary" to crop the land. The sale of the land four months after final proof is "considered in connection with the unsatisfactory character of his pre-emption proof." The conclusion reached by the Department was based, not upon any single item in the evidence but upon the weakness of the final proof taken as a whole.

All the questions raised by the motion for review are the same as those adjudicated in the decision, and no additional evidence is offered (Charles W. McKallor, 9 L. D., 580). "There is no denial that the facts are correctly stated, nor is there any allegation of newly discovered evidence, or of any material fact not considered in the original decision;