Hearing was had November 22, 1888. After considering the testimony, the local officers recommended the cancellation of the entry. Naylor appealed to your office, which decided in his favor. Thereupon the contestant appealed to the Department.

The testimony shows that the entryman was an unmarried man; that after a long sickness with typhoid fever he died, on September 4, 1885; that his only heir at law was his father, Samuel Naylor; that the latter, in May and June, 1886, caused ten acres of the land to be broken and planted to corn-and that this was the first cultivation of the land; that in 1887 said ten acres were sown to millet, and five acres more were broken; and that in 1888 the fifteen acres previously broken were planted to millet, corn, and cane, and five acres more were broken.

Your decision held that, as the entryman had died before the expiration of the first six months after his entry, no cause of action would lie against him on the ground of abandonment; that no contest should have been prosecuted against the entry until notice had been served upon his legal representatives; "jurisdiction over the parties in interest must therefore date from the time service of notice was had upon the heir and legal representative of the entryman"-which was on October 4, 1888; that the heir caused the tract to be cultivated every year after the death of the entryman to the time of the contest; that the law does not require the heir of a deceased entryman to reside upon his homestead claim, provided he cultivates the same; and you therefore dismissed the contest.

I concur in the conclusion reached by you in all respects, except as to your holding that, under the circumstances of this case, jurisdiction must date from the time when service of notice was had upon the heir and legal representative of the entryman.

When said heir and legal representative, on July 9, 1887, filed application for a rehearing, he made himself a party in the case, and must be considered as having notice from that date. (See Smith v. Washburn, 12 L. D., 14; Anderson v. Rey, ib., 620).

Your error in this respect, however, in no way invalidates the conclusion reached by you that the contest should be dismissed. More than a year prior to the date last named he had proceeded in good faith to cultivate the tract; and if he can be considered as having at any time been in laches, such laches was cured before the date when the local office acquired jurisdiction.

Your decision dismissing the contest is therefore affirmed.

UNIVERSITY LANDS-EVIDENCE OF TITLE.

STATE OF MONTANA.

University selections located and approved under the act of February 18, 1881, prior to the admission of the Territory as a State in the Union, required no further act to complete title thereto except the admission of the Territory, and the certification of such lands to the governor of the Territory is sufficient evidence of title.

Secretary Noble to the Commissioner of the General Land Office, February 6, 1892.

I am in receipt of your communication of January 16, 1892, transmitting a list of selections made for the Territory of Montana, under the provisions of the act of February 18, 1881 (21 Stat., 326), granting to the Territories of Dakota, Montana, Arizona, Idaho, and Wyoming seventy-two sections of land for university purposes. Said list of selections was approved by the President, March 18, 1889, and the lands embraced in said list were withdrawn for the purposes indicated in said grant.

You submit the question, as to whether the certification of said list of selections by your office, on April 8, 1889, to the governor of Montana, conveyed the legal title to said land.

The act of February 18, 1881, granted to each of the territories named therein seventy-two sections of unappropriated public lands, for the use and support of a university in each of said territories when they shall be admitted as states into the Union, to be selected and withdrawn from sale and located under the direction of the Secretary of the Interior and with the approval of the President.

The lands embraced in list No. 1, transmitted with your letter, were selected by a duly authorized agent of the Department, and withdrawn from sale and located, with the approval of the President, on March 18, 1889, in full compliance with the provisions of the act of February 18, 1881. No further action was necessary to perfect and complete the title to these lands under the grant, except the admission of the territory as a state in the Union, and the selection and location of said tracts in part satisfaction of the grant to said territory being intact November 8, 1889, when the admission of said state into the Union became complete under the enabling act of February 22, 1889 (25 Stat., 676), the title of the state to said lands became complete and related back to the date of the selection and location of the same, and the certification of said list by your office to the governor of Montana was sufficient evidence of the title of the state to such land, without further action on the part of the government.

Besides, the 14th section of the act of February 22, 1889, provides that the lands granted to Dakota and Montana by the act of February 18, 1881,

are hereby vested in the states of South Dakota, North Dakota, and Montana, respectively, if such states are admitted into the Union, as provided in this act, to the extent of the full quantity of seventy-two sections to each of said states, and any portion of said lands that may not have been selected by either of said territories of Dakota or Montana, may be selected by the respective states aforesaid.

It is apparent that it was intended that the absolute title to the specific tracts selected and located, in compliance with the requirements of the grant of February 18, 1881, should, upon its admission, immediately vest in the state, as it required no further action on the part of

the government to give the grant precision as to those tracts, and as to any portion of said lands that had not been selected provision was made for the selection of such lands by the state authorities.

I see no reason for any other action of the Department upon said list, there being no statutory provision requiring the issuance of patent, and said list is therefore herewith returned.

RELINQUISHMENT-APPLICATION TO ENTER-CONTEST.
GILTNER v. HUESTIS ET AL.

A relinquishment, accompanied with an application to enter, filed simultaneously with an affidavit of contest defeats the right of the contestant to proceed against the entry thus vacated.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 5, 1892.

This record presents the appeal of Charles E. Giltner from your judgment affirming the action of the local officers rejecting his affidavit of contest against the timber-culture entry of Henry M. Huestis for the W. NE. 1, Sec. 5, T. 6 N., R. 38 W., McCook, Nebraska, and canceling said entry upon relinquishment presented by Henrie F. Hole and allowing the latter to make homestead entry for said land.

Huestis made his timber-culture entry for the entire NE. of said Sec. 5, May 6, 1885. Said entry was canceled by relinquishment as to the E. of said quarter February 19, 1887.

On February 27, 1889, Huestis executed a relinquishment of the remainder of his entry, to wit, the "eighty" here in question.

On the morning of March 1, 1889, upon the opening of the local office Giltner presented his contest-affidavit and Hole presented with said last relinquishment his homestead application for the land. The local office rejected Giltner's affidavit and allowed Hole's entry. Giltner appealed. By letter dated September 23, 1889, you directed a hearing to determine the rights of the parties. Such hearing, at which parties appeared with counsel, was commenced at the local office December 6, and proceeded with upon different days until December 9, 1889, when it was concluded. The local officers rendered their joint opinion that Hole's entry should remain intact and that Giltner's contest should be dismissed. Giltner appealed from this ruling, whereupon by decision dated July 3, 1890, you affirmed the ruling below. On July 31, 1890, Giltner filed a motion to review said decision.

On October 13, 1890, you denied this motion, whereupon Giltner filed the pending appeal.

It appears that for a consideration of $900 Hole bought Huestis's improvements on the land; that February 27, 1889, Huestis delivered to him his said relinquishment; that Giltner, hearing of said

transaction, started same day overland to the local office to contest the Huestis entry; that the following day Hole proceeded by rail to the local office to present said relinquishment and make applica tion to enter the land; that Giltner arrived in McCook about 11 p. m., February 28, and Hole about 4 a. m., March 1, 1889; that both parties were at the local office at 9 a. m., March 1, 1889, when it was opened for business and that they entered the office together. Giltner then presented his contest affidavit, alleging the Huestis entry to be speculative, to a clerk who endorsed it "filed at 9 a. m., sharp, March 1, 1889." In the meantime Hole inquired of another clerk for the tract book and after examining it, presented with Huestis' relinquishment his said homestead application.

Hole's application was then received and endorsed "filed March 1, 1889, at 9 o'clock and 4 minutes."

Shortly thereafter the receiver declined to ratify the said endorsements, finding that Giltner's affidavit and Hole's application were presented simultaneously. Giltner's affidavit was accordingly endorsed: "Affidavit of contest and application rejected for the reason that Henrie P. Hole made homestead application with relinquishment and was in the office at the same time being the first party to look up said claim on the plat record both being filed at or about the same time."

The local officers and yourself both find that Giltner's affidavit was filed a few minutes before Hole's application, but concur in the conclusion that the rights of Hole are the better. This conclusion is reached upon the theory that Giltner's contest was initiated with knowledge of Hole's purchase of Huestis' improvements and that the latter's relinquishment was not induced by said contest.

It is urged on appeal that Giltner's contest affidavit being presented before Hole's application, the latter's rights are inferior. It is true that a contestant's rights attach with the filing of his affidavit and are prior to those of a subsequent applicant who presents a relinquishment. Webb v. Loughrey et al. (10 L. D., 302). But it is also true that the filing of a relinquishment accompanied by a pre-emption declaratory statement defeats a simultaneous application to contest the entry thus vacated. Lee v. Goodmanson (4 L. D., 363).

Giltner's contest affidavit was, it appears, handed over the counter at the local office a few moments before Hole's application. But this was done while the latter was examining the tract books to ascertain the status of the land. Such examination being manifestly a proper preliminary to Hole's application and being immediately followed by the same, constituted the initial act in making it. Consequently his rights as applicant began with his inspection of the tract book.

Hole's application with Huestis' relinquishment may thus be consid ered as simultaneous with Giltner's application to contest. Under the doctrine announced in the case of Lee v. Goodmanson, supra, the Huestis entry, by reason of said relinquishment (section 1, act May 14, 1880, 14561-VOL 14-10

21 Stat., 140), "expired simultaneously" with the filing of Giltner's affidavit which, consequently, "found no entry to contest." It follows, I think, that Giltner's contest has been properly rejected for conflict with Hole's application to enter.

Your judgment is affirmed.

OKLAHOMA LANDS-HOMESTEAD-TOWNSITE.

DAVIS v. FOREMAN.

An application of a homesteader to purchase, for townsite purposes, under section 22, act of May 2, 1890, lands embraced within his homestead entry, can not be allowed except on due showing that the applicant is entitled to perfect entry under the homestead law, and this question must be determined without reference to the fact that the land is occupied and required for townsite purposes. A homesteader who has voluntarily ceased to exercise control over the greater part of his land, and entered into a lease of such part, to a townsite company, by the terms of which he agrees to convey title to such part of the land, when his claim thereto is perfected, is disqualified to perfect title as a homesteader, and hence can not purchase under section 22 of said act.

Secretary Noble to the Commissioner of the General Land Office, February 6, 1892.

On April 23, 1889, John A. Foreman filed soldiers' declaratory statement at the Kingfisher, Oklahoma, land office, for the NW. of Sec. 9, T. 12, R. 7, and on the 11th day of May, 1889, he made homestead entry for the same. On August 9, 1890, he made application to purchase said tract under the second proviso to section 22 of the act of May 2, 1890, 26 Stat., 81, alleging that said land was occupied for townsite purposes, and he filed plats of said land as a part of the townsite of El Reno, which plats was approved by me.

On December 16, 1890, he submitted final proof in support of said application. At the hearing, Anson A. Davis appeared as a protestant, and cross examined the claimant and his witnesses, and afterwards, viz., on December 17, 1890, filed a duly corroborated affidavit of contest as provided by section seven of the circular of instructions under the proviso above mentioned (11 L. D., 68).

In this affidavit Davis charges on information and belief, that said homestead entry was illegal and void, for the following reasons:

First, That said entryman, John A. Foreman, did enter upon and occupy a portion of the lands open to settlement under the act of Congress of March 2, 1889, by the President's proclamation of March 23, 1889, prior to the hour of 12 o'clock noon, of the 22d day of April, 1889, and subsequent to the date of said act, and contrary to its provisions;

Second, That said entry was not made for the sole use and benefit of said Foreman, nor was it made for the purposes of cultivation and other agricultural operations, but was made with the view and purpose of locating and establishing a town upon said tract, and with a view and purpose of speculating in the sale of portions of said tract for townsite purposes, and said entry was made in the interest of other