The petition was referred by the governor to the corporation of Santa Fe, it being stated in the reference that the corporation was clothed with authority to act thereon by decree of the Viceroy of August 23, 1813, and by the royal order of January 4th of the same year. On July 30, 1814, the council of Santa Fe granted the lands petitioned for that 66 may not belong to the natives of the town of Pecos, or to the residents of the Point El Bado;" and ordered that the parties be put in possession of " the boundaries which may be assigned to them as they solicit."

On June 22, 1815, Gov. Mayne approved the grant of the town council,—" provided, that a royal grant to property is only to be considered to be upon lands which they mark, cultivate and fence in, etc."

Subsequently, on December 5, 1815, the Indian lands were measured off and set apart, and the senior justice of Santa Fe placed the petitioners in possession of the lands asked for by them.

It will be seen also by the record that the right of Vigil and his associates to the land in question, was vigorously contested before the surveyor-general by parties claiming adversely, who asserted that possession of the lands had been delivered to them by a public officer having lawful authority to do so. In the objections to the approval of the grant, filed by the contestants before the surveyor general, it is insisted,

2nd. That the grant was only to such portions of the land as should be enclosed, built upon, and cultivated,

3rd. That the proofs show conclusively that the grantees built upon, enclosed and cultivated only a very small portion of the lands included within the limits, etc.

The surveyor-general, in his opinion on the above objections, says that the grant in question was made by the town council of Santa Fe, which had full authority so to do under the Spanish law of January 4, 1813; that grants under said law were in fee simple; by fixed limits and specific boundaries; that the insertion of the clause by Governor Mayne, relative to inclosures and cultivation, was,—

the interpretation of the law by a subsequent governor, made after the grant had been made according to law by the town council, was not binding on the parties, and was therefore null and void, as the law vested in him no authority to impose conditions; and any part taken by him in the premises, with the exception of being the medium between the town council and the grantees, was an assumption of power on his part for which he had no authority of law.

It was therefore held that whilst cultivation was required as an evidence of good faith, and in order to acquire title, and inclosure was advised in order to avoid disputes, "it was optional with the parties whether they should cultivate a portion only or the whole of the land granted," and that the matter of inclosure was also "left to the option of the owner, and not a condition imposed upon him by law," and that "the law certainly does not require every foot of the land to be cultivated and enclosed."

The surveyor-general thereupon found that the boundaries of the grant are proven to be fixed and permanent landmarks, known to all persons familiar with the locality; that the grantees went upon the land, cultivated it in good faith, and that it was always recognized as their property. He was therefore of the opinion that the law gave "a full and perfect title to the land contained within the boundaries of the grant" made by the town council of Santa Fe, and hence recommended that it be thus confirmed to the grantees.

It is thus made plain that the matter of the inclosure and cultivation of the lands was presented to and passed upon by the surveyor-gen. eral, who decided plainly that the provision relating thereto was illegal and of no effect, and that the grantees took "a full and perfect title to the land contained within the boundaries."

With this full and careful report before it Congress confirmed the grant as recommended by the surveyor-general. This seems to me to be a final settlement of the question of enclosure and cultivation, beyond the power of your office or this Department to reopen it. "A full and perfect title to the land contained within the boundaries of the grant" was confirmed by Congress, and the executive has no power to limit that confirmation to such lands only "within the boundaries" as were "actually under cultivation and in the occupancy of the grantees," at the date of the treaty with Mexico.

There is therefore manifest error in the instructions issued to the surveyor general in this respect, and the same are hereby overruled.

The other ground of objection is not passed upon by your office. The testimony taken in relation thereto, or rather, excerpts therefrom, are recited in the decision, but no opinion is expressed thereon, and no instructions are issued to the surveyor-general to guide him in respect to that point. It was doubtless thought, inasmuch as it was decided, only such lands were to be surveyed as were "actually under cultivation and in the occupancy of the grantees" at the date of the treaty, that the area of the grant would be so reduced it could not reach to the point where the alleged conflict is said to take place; therefore, it was unnecessary to decide a question which would not arise on survey. But this Department having now determined that there is manifest error in said ruling of your office, the question of the other alleged error becomes an important one, which should be regularly acted upon and decided. The papers in the case are herewith returned to you that the same may be re-examined and considered in accordance with the views herein expressed, and fully adjudicated, to the end that if said survey be defective, proper steps be taken to reform it; or, if correct, that it be formally approved and patent issued thereon in accordance with the provisions of section 4, act of March 3, 1869 (15 Stat., 342).

RAILROAD GRANT-STATUTORY FORFEITURE-SETTLEMENT.

SOUTHERN PACIFIC R. R. Co. v. HAMMOND.

"The forfeiture declared by the act of September 29, 1890, was complete on the passage of the act, and opened to settlement immediately the lands designated therein. Secretary Noble to the Commissioner of the General Land Office, April 6, 1892.

I have considered the case of the Southern Pacific Railroad company v. Maria S. Hammond, on appeal by the former from your decision of November 12, 1889, holding for confirmation the entry of the latter for the NW., Sec. 27, T. 15 S., R. 7 F., M. D. M., San Francisco, Cali fornia, land district.

This land is within the primary limits of the grant to the said railroad company by act of July 27, 1866 (14 Stat., 292), which attached January 3, 1867.

The township plat of the official survey was filed in the local land office February 3, 1873.

On September 22, 1885, Maria S. Hammond made application to make a homestead entry for said land. She presented the usual affidavits showing her qualifications to make entry, together with the non-mineral affidavit and accompanied the same by several affidavits from which it appears that one Charles Pierce located upon the land in 1868, and built a house thereon and that he resided there continuously until April, 1872, when he sold his improvement to C. Y. Hammond, late husband of this applicant, who immediately established his residence thereon, and lived there until September, 1884, when he died, leaving the applicant and her minor children in possession of the tract, and that they have continued to reside thereon.

The testimony tends to show that Pierce was a qualified entryman. From the best information the witnesses have, he was born in Massachusetts, he was over 21 years of age, and none of them have any knowledge of his ever exercising his right to "pre-empt" or "homestead" any other tract of land.

Mrs. Hammond is qualified to make homestead entry.

On July 17, 1886, your office by letter of that date directed the local officers to permit Mrs. Hammond to make entry for said land, in pursuance of which on August 11, 1886, she filed her pre-emption declaratory statement, alleging settlement September 26, 1869, and on November 14, (not the 16th as stated) 1888, she submitted final proof in support of her claim, and the same was accepted and a cash certificate was issued accordingly.

On November 12, 1889, your office held said entry for confirmation and notified said railroad company of your action and of its right of appeal.

On December 7, following, the company filed its appeal from said decision, and assigns the following errors:

1st. Error in not sustaining the right of said company under its grant.

2. Error in finding the land excepted from the grant by the occupation of a settler. The final proof shows that Pierce settled upon the land in the fall of 1866, and lived there till 1872, when he sold his improvements to C. Y. Hammond, who resided there continuously until his death in 1884, and that Maria S., his widow, with his minor children have maintained continuous residence thereon since that time.

This land lies opposite a portion of the line of the railroad between Tres Pinos and Huron as shown by the said company's map of desig nated route filed in the general land office January 3, 1867.

The testimony is somewhat conflicting as to the year that Pierce went upon this land. In one affidavit it is fixed 1868; two fix it in 1866. Mrs. Hammond did not know Pierce till 1872, another witness says Pierce lived on the land in 1870, when he first knew him; nor is the evidence very satisfactory as to his right to make entry or pre-empt the land even if living upon it.

But if the road was not completed and in operation on September 29, 1890, these questions cease to be material. The first section of the act of Congress, approved September 29, 1890 (26 Stats., 496), reads as follows:

Be it enacted, etc. That there is hereby forfeited to the United States, and the United States hereby resumes the title thereto, all lands heretofore granted to any State or to any corporation to aid in the construction of a railroad opposite to and coterminous with the portion of any such railroad not now completed, and in operation, for the construction or benefit of which such lands were granted; and all such lands are declared to be a part of the public domain: Provided, That this act shall not be construed as forfeiting the right of way or station grounds of any railroad company heretofore granted.

The second and third sections of the act relate to the settlement of the lands so forfeited, and provide for their disposition by the government.

This act rendered the lands designated therein subject to settlement immediately on its passage,-the forfeiture was complete on the passage of the act. Victorien v. New Orleans Pacific Ry. Co. (on review) (10 L. D., 637); Van Wyck v. Knevals (106 U. S., 360-368); McMicken v. United States (97 U. S., 204-218).

It appears by the records of your office that said railroad has not been constructed opposite T. 15 S., R. 7 E., M. D. M., and therefore this land comes within the terms of the said act of September 29, 1890.

Your decision, in so far as it holds Mrs. Hammond's entry for confirmation, is affirmed.

ADJOINING FARM HOMESTEAD-SECTION 2289 R. S.

WILLIS v. Messenger.

The statute authorizing adjoining farm entries contemplates that the original farm as well as the adjoining farm must be held for agricultural purposes, and that the entryman must be the owner in his own right of the original farm.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 7, 1892.

On May 26, 1887, Joseph Messenger made adjoining farm entry of the NE. of the SE. of Sec. 1, T. 19 S., R. 2 W., S. B. M., Los Angeles, California, containing forty acres, based upon his application, alleging that he was the owner of and then residing upon an original farm containing 67.30 acres, which comprised lots 1, 2, and 3 of said section 1.

On November 12, 1887, William D. Willis filed contest against said entry, charging that:

Joseph Messenger has subdivided and surveyed all the land described above into city or town blocks and streets; that the plat of same had been filed in the county recorder's office of said San Diego, thus dedicating the streets as therein represented to the public; that said Messenger has thus by intervening streets cut himself off and separated himself from the said NE. of SE., Sec. 1, 19 S., 2 W., S. B. M.; that the official plat now filed represents the whole of said land above described divided into lots, blocks and streets, and that further said Messenger has sold an undivided half interest in the whole of lots 1, 2, 3, Sec. 1, 19 S., 2 W., S. B. M., to which said Messenger claims the said NE. SE. 4, Sec. 1, to be adjoining; that said Messenger holds none of said lands as a farm, or farming property, but as speculative city lots, and that many of said lots have been sold, and they are yet offered for sale upon the market.

Upon the evidence taken at said hearing, the local officers found "that the land embraced in the additional farm homestead entry of Joseph Messenger had been subdivided into town lots and sold at public sale," which placed it beyond his power to comply with the requirements of the homestead law. They therefore recommended that his "adjoining farm homestead entry be canceled." Upon appeal, you reversed said decision and dismissed the contest, and contestant appealed therefrom.

The evidence shows beyond all controversy, that the tract in ques tion was laid off into blocks, lots, streets, and alleys, shortly after entry, with the corners staked on the ground, and a plat of said subdivision was made and the lots offered for sale. It is also shown that part of the alleged original farm had also been subdivided, and part of it had been offered for sale.

There is not in this case a single element of good faith. Section 2289 of the Revised Statutes, under which this entry was made, contemplates that the original farm, as well as the adjoining farm, must be held for