In May, 1879, Lyman N. Cole caused notice to be published of his intention to submit proof of his right to purchase the land under the provisions of section 5, act of March 3, 1887 (24 Stat., 556). On July 5, 1889, the day named, he submitted his proof, and no one appeared to offer objections, but afterwards on July 13, 1889, Evan E. Reno filed an affidavit, in which he set forth the fact that he had made entry of the land in December, 1888, and settled on it in March, 1889, and had since resided continuously upon it, cultivating a portion of it, and had made improvements which Cole had destroyed. That he had not seen the notice of Cole's intention to make proof, and had no knowledge of the same until July 12, 1889, and asked for a hearing to enable him to appear and defend his rights. On December 20, 1889, the local officers denied his application for hearing, and an appeal was entered from said action.

On July 31, 1891, your office approved the action of the local officers, holding Reno's entry and the company's list for cancellation, and accepting Cole's proof as satisfactory. The case was appealed to the Department, and on August 9, 1892, the action of your office was affirmed as to the railroad company, but the case was remanded as between Reno and Cole for the purpose of allowing Reno, if he could, to show a valid reason why Cole's application to purchase should be denied, and his entry sustained, it being held that Reno was not properly notified of Cole's intention to make proof. (Reno r. Cole, 15 L. D., 174.) It was further held that the unexpired pre-emption filing of Rand made in 1865, had the effect of excepting the land from the company's grant, and as Reno's filing was not prosecuted to patent, the only other existing claim against that of Cole is the homestead entry of Reno. In accordance with said decision, after the cancellation of the company's list, your office directed the local officers to appoint a day for a hearing, and give notice to Reno and Cole. Hearing was accordingly had, commencing December 8, 1892, and closing January 27, 1893, both parties being present. On May 6, 1893, the local officers found in favor of Cole, and Reno again appealed to your office. On May 3, 1895, your office affirmed the decision of the local officers, and the case is here again on the appeal of Reno from said decision.

The appeal undertakes to specify five grounds of error, but they amount to nothing more than the general allegation that the decision is against the law and the evidence. As no fact found by the local office or your office is shown to be unauthorized, they will stand as correct. The local officers made the following statement of facts in their report. From the testimony presented we find that Mr. Reno has known the land in dispute since the summer of 1883; that on June 17, 1885, he made timber culture application for the land, which was rejected by the local officers, but he claims that he never received notice of the rejection; that he made homestead entry, No. 13,560, for this land on December 28, 1888; that on the 26th or 27th of March, 1889, he hauled lumber on the land with which to build his house; that at the time he made his said entry the land was enclosed with something like 600 to 800 acres of other lands; that he hauled the lumber on this land through a wire gate that was in the fence around this land;

that he commenced to build his house on March 28, 1889, and so far completed it on that date that he commenced his residence therein on the evening of said date; besides the house he built a small barn and some sheds. That he attempted to plant and raise crops on the land and to build a fence round it, but was prevented by Cole and men in his employ; that the value of his improvements is about $200; that he would have made better and more extensive improvements upon the place had he not been interfered with by Cole; that he has maintained a bona fide residence upon the land from the date of his settlement, to the date of the hearing of this cause; that he knew this land had been purchased from the railroad company by William A. Rand; that Rand had sold it to other parties, who in turn sold it to Cole; that Cole had purchased it about the time he (Reno) applied for it as a timber culture entry, and that Cole was in possession of and claiming it at the time he made his homestead entry.

This summary of facts touching Reno's claim seems to be fairly stated, from the record. Of Cole's claim it is said briefly:

On the other hand, it appears that Cole purchased the land in January, 1885, and took possession thereof at once; that he has extensive and valuable improvements thereon in the way of ditches, fences, reservoir, and the land seeded to alfalfa,—all estimated to be worth three thousand dollars.

The insistence of Reno is, that the act of March 3, 1887 (24 Stat., 556), will not avail Cole because of the proviso to section 5 of said act, which excepts settlements made subsequent to first of December, 1882. Said proviso has reference to settlements initiated between December 1st, 1882, and March 3, 1887,-the date of said act, and said proviso has no reference or application to a settlement initiated after the passage of said act. This ground of objection to the applicability of the act of March 3, 1887, must therefore fail, since Reno made no settlement upon the land until about March 28, 1889. The settlement then did not affect the operation of the act of March 3, 1887.

These facts stand out prominently: 1st. That Cole was a purchaser in good faith before the passage of said act, deriving title from the railroad company through those from whom he purchased. 2. That Reno had full knowledge of Cole's claim, purchase and improvements, and made his entry after the passage of the act of March, 1887. 3. That he obtained clandestine entrance inside Cole's enclosure when nearly all the land in dispute was in actual use and cultivation by Cole.

In the light of these facts what Reno terms his settlement on the land in March, 1889, looks more like a deliberate trespass than a lawful effort to found a homestead settlement on land subject thereto. He formerly made application to cover the land with a timber culture entry, which was abandoned when he made homestead entry, and is without significance in the case. The authorities cited by your office,-Croke v. Stebbins (14 L. D., 498); Sethman r. Clise, (17 L. D., 307); and Norton v. U. P. Ry. Co. (17 L. D., 314), support your finding, that Reno estab lished no rights superior to those of Cole as a purchaser in good faith from the railroad company, and that the provisions of the act of March 3, 1887, applies to the case.

Your office decision is accordingly affirmed. The papers are herewith returned.

RAILROAD STATION GROUNDS-APPLICATION.

SANTA FE, PRESCOTT AND PHOENIX RY. Co.

An application for station grounds, properly rejected on account of an existing entry of the land involved, and awaiting action on appeal, will not attach on the subsequent cancellation of said entry, as the appeal does not operate to save or create rights not secured by the application itself.

Secretary Smith to the Commissioner of the General Land Office, June 13, 1896. (C. W. P.)

This record involves the right of the Santa Fe, Prescott and Phoenix Railway Company to file a plat showing its selection for station purposes, under the act of March 3, 1876 (18 Stat., 482), of 15.69 acres in the NW. of the NW. of section 12, T. 7 N., R. 5 W., Prescott land district, Arizona.

The record of your office shows that said land is embraced in the homestead entry, No. 1078, of Thomas J. Little, made January 4, 1895.

On May 31, 1895, your office held that the land applied for by the company is not public, and therefore not within the operation of the act of March 3, 1875, supra, and returned the map to the local officers for delivery to the proper officers of the company.

The company appeals to the Department.

This appeal is based upon the following specification of errors:—

The records of the Land office show that the homestead entry of Thomas J. Little, numbered 1078, for the west half of north-west quarter of section 12, township 7 north, range 5 west, dated January 4th, 1896, was relinquished by said Little on the 16th day of July, 1895, and that therefore said land, during the pendency of this application became public land and subject to the right of the said Santa Fé, Prescott and Phoenix Railway Company to make said filing under act of Congress of March 3, 1875.

There is nothing in them. The land was not public land at the date of the decision of your office, May 31, 1895, rejecting the company's application. Since then, the records of your office show, Little relinquished his claim, and on the same day B. B. Castro made homestead entry No. 1169, of the same tract. The company's application was properly rejected by your office, and consequently was not a pending application, that would attach on the cancellation of Little's entry, as its appeal did not operate to save or create rights not secured by the application itself.

The decision appealed from is therefore affirmed.

RAILROAD GRANT-SECTION 2, ACT OF APRIL 21, 1876.

NORTHERN PACIFIC R. R. Co. v. SYMONS.

The confirmatory provisions of section 2, act of April 21, 1876, are not limited to entries made prior to the passage of said act, but are equally applicable to entries made thereafter.

Secretary Smith to the Commissioner of the General Land Office, June

13, 1896.

(F. W. C.) 1895, in the

I am in receipt of your office letter of November 21, matter of the case of the Northern Pacific R. R. Co. v. Nathan D. Symons, involving the W. SW. 1, Sec. 35, T. 15 N., R. 4 W., Olympia, Washington.

The land here involved is within the limits of the withdrawal upon the map of general route of the main line of the Northern Pacific R. R., filed August 13, 1870, and is within the primary or granted limits upon the definite location of the road as shown upon the map filed September 13, 1873.

Prior to the receipt at the local office of the notice of the withdrawal upon the map of general route, to wit, on October 15, 1871, Sylvanus Symons, son of the present claimant, was permitted to make homestead entry of this land, which entry was canceled January 30, 1878.

Sylvanus Symons gave his improvements made upon this land to his father, who on November 22, 1882, filed pre-emption declaratory statement for this land, upon which he made proof and cash certificate issued January 10, 1884.

In considering said entry, as respects the railroad grant, your office decision of March 12, 1888, held, under the authority of the decision in the case of Northern Pacific R. R. Co. v. Burns (6 L. D., 21), that the entry of Sylvanus Symons was confirmed by the act of April 21, 1876 (19 Stat., 35), and served to defeat the railroad grant.

The Burns case was overruled by departmental decision of March 12, 1895 (20 L. D., 192), in which it was held that the confirmation of entries under section 1 of the act of April 21, 1876 (supra), is solely for the benefit of the individual claimant, conditioned upon his compliance with law, and was not intended to confirm the entry absolutely as against the right of the company, so as to except the land from the grant in favor of any other settler.

In view thereof your office decision was reversed by departmental decision of August 9, 1895, not reported, and it was held that Nathan D. Symons' entry

must be canceled unless upon the request of your office the company should relinquish its claim in favor of Symons, under the provisions of the act of June 22, 1874 (18 Stat., 194).

From your report it appears that the company was called upon and requested to relinquish its claim in favor of Symons under the act of

June 22, 1874 (supra), to which the resident attorneys for the company replied:

We advise that in view of the liberal policy pursued by the company towards all contestants against whom the Interior Department decides, in the matter of acquiring land by purchase, we do not deem it advisable to relinquish this land under the act in question.

In view of this action on the part of the attorneys for the company, you submit the matter for further instructions.

After a further consideration of the facts presented by the record in this case, I have concluded that Nathan D. Symons' entry is confirmed. by the provisions of section 2, of the act of April 21, 1876 (supra), and that the company's relinquishment is not necessary to the recognition of his entry.

In your office decision of March 12, 1888, in view of the holding made in the Burns case, then being followed, it was unnecessary to consider more than the first section of the act of 1876, upon which said decision rested.

The reversal of the holding made in the Burns case, while it overrules the ground upon which you recognized the entry in question as against the grant, yet it does not fully dispose of the case, for by the second section of the act of 1876 it is provided:

That when at the time of such withdrawal as aforesaid valid pre-emption or homestead claims existed upon any lands within the limits of any such grants which afterward were abandoned, and, under the decisions and rulings of the Land Department, were re-entered by pre-emption or homestead claimants who have complied with the laws governing pre-emption or homestead entries, and shall make the proper proofs required under such laws, such entries shall be deemed valid, and patents shall issue therefor to the person entitled thereto.

The facts presented in this case would seem to meet the conditions necessary to confirmation under this section.

Sylvanus Symons had an entry capable of confirmation under the provisions of section one, which he abandoned, and under the ruling in the Burns case his father, to whom he had transferred his improvements, was permitted to re-enter the lands under the pre-emption laws, with the requirements of which he has shown full compliance.

If the act is prospective then the second entry is confirmed. In the case of the Northern Pacific R. R. Co. v. Crosswhite (20 L. D., 526), it was held that the confirmatory provisions of section one, act of April 21, 1876, are not limited to entries made prior to the passage of said act, but apply with equal force to entries made thereafter, and from the nature and relation of the two sections, the scope must be the same.

I have therefore to recall and set aside my previous decision in this case and, for the reasons herein given, your said office decision of March 12, 1888, is affirmed and patent will issue on Symons' entry under the provisions of section two of the act of April 21, 1876.