page 442, case Adelphine Hedensky, decision Hon. Secretary of the Interior dated August 25, 1875), although it may appear somewhat extraordinary that one party can carry two homesteads at the same time, there is no escape from this conclusion, in the light of the decision above quoted; for no residence being required in completing the husband's entry, there is nothing to prevent the widow from fulfilling the legal requirements in both entries. LORENZO A. PADDOCK. Cultivation-Sec. 2301 R. S.-Where a homestead claimant applies to purchase, under Sec. 2301 R. S., the land embraced in his entry, he must show cultivation of the land as well as residence thereon. COMMISSIONER MCFARLAND to Reg. and Rec., test in question against Jordan, and on I am of the opinion (without reference DESARCHY VS. JUAREZ. Relinquishment.-Effect of a relinquishment obtained while the homestead party was wholly or partially under the influence of intoxicating liquor. Pre-emptor.-A pre-emptor who settled prior to the homestead entry of another party cannot cite such entryman to a hearing until date of offering his final proof, ACTING SECRETARY JOSLYN to Comm'r McFarland, May 5, 1883. I have considered the case of Ernest Desarchy vs. Biano Juarez, involving the S. W. of the S. E. of Sec. 3, Tp. 10, R. 2, San Francisco, Cal., on appeal by Desarchy from your decision of April 12, 1882, dismissing the contest, restoring the entry of Juarez to its original condition, and leaving the rights of the parties to be determined when Desarchy offers his final proof. The testimony shows that Lown is a brother-in-law of Jordan; that Lown purchased in October, 1878, prior to the contest, Jordan's improvements on the tract, consisting of about fifty broken acres and valued at $150. No part of the purchasemoney was paid at the date of purchase, nor until March 18, 1879, when Lown gave to Jordan his unsecured promissory note for $600, payable in one year, no part of which was paid at maturity nor had been at the date of hearing in June; Lown testifying that its payment was extended by Jordan to await determination of this contest. Jordan immediately after his sale rented the land from Lown and cultivated it for his own use, and has furnished money and also signed a joint note with Lown for the expenses of the contest. The record shows that Desarchy filed Lown applied to enter the tracts at the declaratory statement October 9, 1880, for date of filing Jordan's relinquishment and the W. of the S. E. 4, and the E. of the of initiating the contest, and deposited S. W. of Sec. 3, alleging settlement in with the Register $14, (furnished through 1877, and that Juarez made homestead Jordan) for the fees and commissions on entry October 23, 1880, for the S. of the The application to purchase was rejected his entry, and was advised by this officer S. E. of Sec. 3, and the N. of the N. E. by you on the day presented, for the rea- that his entry would be made of record on of Sec. 10. sons, as shown by your endorsement on cancellation of Jordan's entry, of which he the proof," that the proof does not show would be notified. Annotations on the A citation issued November 1, 1880, at cultivation," and thirty days were allowed local records show that your cancellation for appeal. * * *of this entry was "Received May 7, 1879, the instance of Desarchy, for Juarez to The proof presented by the claimant 9 a. m., notices May 7 and 8, 1879, 4 appear on December 15, and show cause does not only fail to show the cultivation, p. m.," and a clerk in the office testifies why his entry should not be canceled as On December but clearly establishes the fact that no that notice thereof and of Lown's pre- to the tract in contest. portion of the land was cultivated by him. ferred right was mailed and directed to 14th, Desarchy filed in the local office a I am, therefore, of opinion that your deci-him about that date, at his post-office ad-paper purporting to have been executed sion rejecting his application to purchase dress. Lown denies his reception of this and acknowledged by Juarez on the 13th same. was correct. * * * LOWN VS. CRISWELL. Diligence-Good Faith.-In view of the testimony, Criswell's homestead entry is allowed to stand. SECRETARY TELLER to Commissioner Mc Farland, May 21, 1883. notice, or that he knew of Jordan's can- Lown acquired no preferred right to enter the tract by virtue of his purchase, I have considered the case of Erastus (even were that a bona fide transaction) B. Lown vs. Wm. Criswell, involving the nor by reason of his deposit of fees and latter's homestead entry made Oct. 8, commissions with the Register prior to 1879, upon lots 3 and 4 and E. of the S. cancellation of Jordan's entry, the RegisW. 4 of Sec. 30, Tp. 25, R. 9 W., Wichita, ter's reception thereof being an unauthorKansas, on appeal by Lown from your de-ized act as held in the case of Hodges cision of March 30, 1882, allowing the en- (CoPP, January, 1881); and it is immaterial try of Criswell to remain intact. as respects the right of Criswell that Lown It appears that one Jordan made timber did not (even admitting it) receive notice culture entry of the tract August 7, 1873. of cancellation of Jordan's entry. He Subsequently one Eddy initiated a contest did not offer to make entry of the tracts against Jordan, for failure to comply with within a reasonable time after cancellation the requirements of the law, but after- of Jordan's entry, but, not exercising wards, by an arrangement between the ordinary diligence and inquiry as to his parties which does not appear, withdrew rights, permitted the tracts to lie vacant his charges, and the contest was dismissed. for nearly six months prior to Criswell's On Oct. 17, 1878, Lown initiated the con- ' entry. The township plat was filed January 27, 1880. before a Notary Public, whereby he abandoned and relinquished the tract in dispute; and on the 15th Juarez appeared at the hearing, and filed an affidavit, to the effect that he had never intended to abandon the tract; that he had no recollection of having executed such paper; and that if he did it was fraudulently obtained from him when under the influence of intoxicating liquor, and was not his free and voluntary act; and he asked that it be stricken from the record, and that his entry remain intact. The testimony shows that Juarez has occupied his claim since 1868, with improvements valued at $400 thereon, although not made upon the particular forty acres in dispute. He is a native Californian, seventy years of age, unacquainted with the English language, addicted to intemperate habits, and oftentimes unable intelligently to manage his affairs. On the 12th of December he was with Desarchy and his friends drinking wine, and, according to their testimony, ex- took charge November 4, 1882, of the in the month of June 1881, etc., he deserted pressed a willingness to abandon the tract. homestead papers (application and affi- her, and has not since been heard of, ete. On that night they started with him in a davit), as well as "the government fees wagon for San Jose, twenty-five miles dis- of eighteen dollars and his charges, and he tant, for the purpose of executing the re- was to forward said papers to the land linquishment, which he did on the 13th. office at Fargo, Dak." It does not appear that he was actually intoxicated during these two days, but he was surrounded by and wholly subject to the influences of Desarchy and his friends until, after long search by his own relatives, he was found and removed from them. It is shown that no consideration was paid Juarez for the relinquishment, and it is only claimed that he executed it in order to avoid litigation. Having asked withdrawal of the paper upon the day of hearing, before any action was taken thereon by the local officers, and consequently before it determined any right of Desarchy, and in view of all the facts, I think his motion should have been granted, and therefore direct that the case be determined upon its merits without reference to said relinquishment, when Desarchy offers his final proofs. That she has kept up improvements and cared for the family consisting of three children. That she has built a new house on the tract of land aforesaid, and What became of the homestead papers, she has this year seeded to wheat 23: does not appear. You state-"The papers acres. That at the time of said Erik's are not on file in this office "—and Ven- departure, he left his family wholly destinum at last accounts was in Florida. tute, and that he has not furnished any. thing for the use or benefit of said family since." Heber McHugh, Deputy-Clerk of Stutsman county, Dak., swears that he, on November 4, 1882, in his official character, swore Hosmer to the homestead affidavit above named, which was in Vennum's handwriting. Actual residence and improvement by claimant and family are shown from June 5, 1882. Also military service by Hosmer during the late war, for about four years. From all this it would appear that claimant Hosmer, through no fault of his own, has been deprived of the right he had to make a homestead entry, because it was not made within the six months allowed by law. As held in the like case of Hanson vs. You say, "We make no recommendaBerry, (Copp, March, 1882,) the present tion, as we are in doubt whether any contest was prematurely brought. Des-relief can be afforded the claimant or not. archy's filing was of priority on the record, As an entry is a bar to another entry, and Juarez's entry was subject thereto. Desarchy was therefore in no danger so long as he complied with the law, and should not have been allowed to cite Juarez except for the purpose of offering his own final proof and payment. I affirm your decision. ACTING COMM'R HARRISON to Reg. and Rec., I am in receipt of your letter of April 7,1883, in which you submit for the consideration of this office an application of John H. Hosmer [who, on May 8, 1882, filed homestead declaratory statement No. 1218, S. E. 34, 143, 66] to be allowed to make a homestead entry under act of June 8, 1872. From testimony submitted, it appears he has been prevented from doing so by the interposition of H. E., No. 10,786, for the same tract, made June 15, 1882, by Amund Nilson, and who, it also appears, "has never resided upon or in any way improved said tract," although in homestead affidavit, made June 2, 1882, he swears [Sec. 2294], "I am actually residing on said land, and have bona fide improvements thereon." Mrs. Smithbak asks that she may be allowed to enter said land and make final entry of the same "with credit for the time she has resided thereon." She adds that she has brought an action in the District Court of Traill county, Dakota, against said Erik Thoresen Smithbak asking for absolute divorce. This testimony is duly corroborated by two witnesses. You submitted the case, and in your letter said: "If she should continue to occupy the premises with her family we do not see how she can be disturbed by any one as the laws now stand, and should the husband return and make proof under the Act of June 15th, he could not under the laws of the territory convey the land withfor the same tract, as long as it remains out her consent, which if she will forego uncanceled, it will be necessary for Hosmer her divorce proceedings, will insure her to enter a contest for the tract in question, the possession of the land and protect the S. E. † 34, 143, 66 against Amund Nilson, family in their home." for abandonment, and if the facts warrant, the H. E. 10,786 will in due process be canceled, and John H. Hosmer will be allowed to make a homestead entry, under act of May 14, 1880, and his military service during the war of the rebellion may be utilized in making final proof. ERIK THORESEN SMITHBAK. Act of June 15, 1880-Deserted Wife.-In view the act of June 15, 1880, does not apply on Whereupon-You were instructed in my letter "C," July 22, 1882. "The facts as shown are not sufficient to justify this office in now allowing the party to perfect her husband's entry. "Should it, however, hereafter appear that this absence of the husband is continued for a time sufficient to warrant the conclusion of complete desertion, or should the wife succeed in procuring a divorce on the ground of desertion, she may then upon proof of such facts, and by showing a compliance with the law in other respects, be allowed to make final proof as a serted wife.'" 'de In view of this decision, therefore, the tract in question is not subject to purchase under the Act of June 15, 1880, unless it can be shown that this "Deserted Wife " has failed to comply with the offer made her by this Office, and you will so advise the parties in interest. Referring to Cash Entry 4881, Sept. 8, 1882, by means of which Erik Thoresen Smithbak seeks to purchase under the act of June 15, 1880, tracts described in Homestead Entry 3099, made by him May 22, 1879, viz., S. E. 4, 24, 148, 55. I find said THORP WILLIAMS et al. cash entry suspended and held for cancella- Patented Lands-Act of June 15, 1880.-This act tion because said homestead is now subject to the benefits derived from act in question, pending its disposal by this oflice, as hereinafter described. In your letter of July 12, 1882, you transmitted affidavit of Mrs. Ingebar Thoresen Smithbak, which set forth "that Hosmer also makes it appear, in a duly she is now," (July 10, 1882,) "and for corroborated affidavit, that he used all more than four years last past," has been due diligence in seeking to effect his the wife of one Erik Thoresen Smithbak, homestead entry, during the life-time of "who made homestead entry No. 3099," the Homestead Declaratory Statement, etc. "That from and since said date this deponent has continuously resided upon For his attorney, Geo. W, Vennum, said tract, and cultivated the same. That No. 1218. It does was not intended to legalize fraud. not apply to patented lands. COMMISSIONER MCFARLAND to Reg. and Rec., Montgomery, Ala., May 18, 1883. (C. T. Y.) I have carefully considered the appeal of A. Munter on behalf of Thorp Williams, Paul Brothers and Alfred Billingslea, from your decision of May 7, 1883, rejecting their applications to purchase, under the act of June 15, 1880, the land embraced in their respective homestead entries, on the ground that patent had issued to said parties for said lands, etc. The records show that Thorp Williams made homestead entry No. 3145. March 20th, 1870, for the E. S. W. of Sec. 2, 17 S., 3 W., on which final proof was made Jan. 14, 1876, per final certificate No. 753, and patented April 9, 1878; also that Paul Brothers made homestead entry No. 3146, March 23, 1870, for the E.S. E. of Sec. 2, 17 S., 3 W., final certificate No. 769, Jan. 21, 1876, and patented April 9, 1878; and that Alfred Billingslea made homestead entry No. 3144, March 23, 1870, for the W. N. W. of Sec. 2, 17 S., 3 W., final certificate No. 633, Jan. 4. 1876, and patented April 9, 1878. SHANLEY VS. MORAN. Entry Subject to Preferred Right.-Where a tim- land, March 12, 1883. I have considered the case of Charles It seems that the above parties received their patents in due course, but wish to ob-cancellation. tain another patent for the same lands, under the act of June 15, 1880; not for any fault in the existing patents, but as they allege "to save the expense and trouble of answering and defending against a bill filed in chancery in the U. S. Court at Huntsville, Ala., with a view to vacating said patents," etc. The records further show that each of said appellants made an additional entry under act of March 3, 1879,, to which they sought title by invoking the act of June 15, 1880; subsequently a hearing was had at the local office on the charge that the entries were fraudulent in their inception, and maintenance, etc., which inter alia developed the fact that the original entries were not free from fraud, thus leading to the conclusion that the applications to purchase said original entries are more in the nature of an attempt to defeat the ends of justice, than to avoid expense and trouble as alleged. The land in contest was formerly covered by timber culture entry No. 913, made by John Shanley, March 9, 1878. Such entry was contested by C. S. Moran, and as a result thereof was cancelled by your letter of October 1, 1881, and said Moran, contestant, was advised, by the Register, of such cancellation by letter of October 13, 1881. November 14, 1881, Charles B. Shanley, the plaintiff, applied to make timber culture entry of said land. This application was refused by the Register, upon the ground that the contestant, C. S. Moran, had forty-five days' preferred right to make such entry; that is, that he had thirty days under the act of June 14, 1880, and fifteen additional days according to the custom in such Register's office, because the notice was served by mail. vice of notice by mail, and we hold that the time allowed by the Act of May 14, 1880, to the contestant in which to make entry, does not expire until Nov. 27, 1881. We therefore decline to allow the land to be entered by any other party than the contestant, until the expiration of fortyfive days from the date of the notice to him. Fees tendered and refused. D. S HALL, Register." In reply I have to state that I know of no rule established by this office giving you authority to allow the contestant 15 days in addition to the 30 days allowed by the statute, when the notice is served by mail. I am of the opinion that a period of 30 days is sufficient for the contestant to receive notice by mail, and to reach your oflice for the purpose of making entry, if he uses due diligence. Furthermore it is now held by this office that a tract of land, embraced in an entry which has been canceled as the result of a contest, should not be withheld from entry for 30 days subsequent to the date of notice of cancellation given to the contestant, but that the first legal applicant should be allowed to enter the tract, subject to the right of contestant to make entry within the time allowed. It appears that the contestant in this case did not enter the land within the 45 days from date of notice allowed by you; the tract being now embraced in the timber culture entry of Patrick Moran, No. 1943, dated Nov. 28, 1881. Your decision in this case is reversed, and with a view to allowing Charles B. Shanly to make entry, the entry of Patrick Moran above described is held for cancellation. BOYSON US. BORN. It is not necessary to consider the question presented in your decision as to the authority of the Register under the rules The act of June 15, 1880, is remedial in of practice to allow any time additional its effects and broad in its terms; it is in- to the statutory time on account of sertended to remedy ordinary defects, the ex-vice being made by mail, because in this istence of which inhibit the party from ob- case it appears that the contestant has taining title to his homestead. It does not never applied to enter such land. attempt to legalize fraud, nor was it the The plaintiff, being the first legal appli- Settlement-Preference Right. Upon the cancelintention of Congress that the statute cant, under the well-established practice should confer title upon parties who had of your office, should have been permitted fraudulently acquired a color of right to to enter, even during the thirty days, subany of the public lands; furthermore, there ject to the right of such contestant to is no law, authorizing the reissue of pat- enter within the time allowed by law. ent, except it be for the purpose of correcting a mistake. Therefore, in view of the premises, I have decided to confirm your decision and dismiss the appeal. TIMBER CULTURE. Quarter Section.-160 acres may be embraced in Your decision is therefore aflirmed. SHANLY VS. MORAN. COMMISSIONER MCFARLAND to Reg. and Rec., Benson, Minn., Jan. 20, 1882. (W. M. B.) I am in receipt of your letter of the 12th ultimo, transmitting the application of Chas B. Shanly to make timber culture entry of the N.N. E. 4, S. E. of N. E. 4, and Lot 1 Section 10, Tp. 124, R. 47, on only 342 acres. appeal from your action in rejecting the COMM'R MCFARLAND to Reg. and Rec., Susan- same Nov. 14, 1881, for reasons written on ville, Cala., May 16, 1883. (W. M. B.) the back thereof as follows: "The tract Notwithstanding the proviso to section applied for was formerly covered by timone of the timber-culture act of June 14, ber culture entry 913, made March 9, 1878, 1878, to the effect that not more than one- by John Shanly. This entry was conquarter of any section shall be granted tested by C. S. Moran, and cancelled by thereunder, this office holds that a quali- reason of such contest by the Commisfied person has the right to make a timber- sioner's letter "C" dated Oct. 1, 1881. culture entry of 160 acres of vacant land The contestant Moran was advised of such in any section devoid of timber, even cancellation by letter on the 13th Oct. 1881. though said section may contain a less It has been the uniform practice of this area than 640 acres. (your) office to allow fifteen days for ser lation of a timber culture entry as the result of a contest, settlement on the land and entry thereof may be made by a stranger, subject to the contestant's preference right. SECRETARY TELLER to Commissioner McFarland, May 21, 1883. I have considered the case of Broder Boyson rs. Otto Born, involving the N. of the N. W. 4 of Sec. 25, Tp. 21, R. 3 W., Neligh, Nebraska, on appeal by Boy son from your decision of April 17, 1882, holding his entry for cancellation, and awarding the tract to Born, This tract was formerly embraced in the timber culture entry of one Nathan, which was contested by one Fedderson, and canceled on the local records April 14, 1881. Fedderson was notified of his preference right to enter the tract within thirty days from the notice, under the provisions of the act of May 14, 1880. He did not apply to enter it, but instead, assigned his right to Boyson, who, April 19th, presented the assignment to the local officers, and applied to enter the tract under the homestead law. Regarding this assignment as a valid transfer of Fedderson's right of entry, and as conferring upon Boyson the same right the the Born filed application May 27, alleging settlement April 15, 1881. act conferred on Fedderson, they per- try without prejudice, and permitting him oflice October 10, 1881, asking that you mitted his entry. to make another. You will accordingly direct the local officers to accept the fees permit him to make such entry upon the and certify the list. You by letter of Dec. usual terms and conditions. The applica- 15, 1881, refused the request, for the reason tion for remission of fees cannot be al-that the company had not completed its lowed. road within the time limited by the granting act and the act amendatory thereof. Your decision is therefore reversed. RAILROADS. ALBERT W. FRY. March 1, 1882, you denied an application for a reconsideration of your said decision, and the company thereupon brought appeal to this Department. said road to be completed "on or before The original act required the whole of the first day of July, 1875." The amendatory act extended the time for completing the whole road to July 1, 1880. By the act of May 14th, this tract was subject to Fedderson's preferred right for thirty days from notice to him of cancellation of Nathan's entry. The right was personal to Fedderson-the act not recognizing an assignment of a preference right ---and during that time no one else could file upon or enter it, except subject to his Surveyor-General's Scrip.-This scrip located on railroad land prior to withdrawal, and right. He could, nevertheless, at any canceled sometime thereafter, excepts the time, waive and release his right. His land involved from the railroad grant. assignment conferred no right upon Boy-COM'R MCFARLAND to Register and Receiver, son, but operated only as a relinquishment Olympia, Wash. Ty., May 17, 1883. (F. B.) of his own. I am in receipt of yours of the 18th The testimony shows that Born settled ultimo, transmitting for instructions the and erected a house on the tract April 15, declaratory statement presented by Albert 1881, which he has since inhabited, and W. Fry, on the 16th ultimo, for the N. that at the date of hearing in November S. W., and W. & N. W. 4 of Sec. 21, 16 following, he had thirteen acres plowed N.. 10 W., Washington Territory. The President as completed January 3, 1871; and in cultivation. The land is un- land is within the indemnity limits, be- and the same having been accepted by offered," and as Born's filing was within tween forty and fifty miles of the with-him, he ordered patents to be issued to three months from the date of his settle-drawal of September 13, 1873, for the the company for lands due on account of ment, he must be held the prior settler. Northern Pacific Railroad, and it has not (Shanley es. Moran, March 12, 1883.) been selected for the railroad company. Boyson's entry will be allowed to stand, The company was notified, on the 18th subject to the right of Born to make final ultimo, of the application of Mr. Fry, and proof and payment, and your decision is allowed the usual time in which to state modified accordingly. objections. The records of this office show that said tracts were embraced in the location (R. and R. No. 24) made February 17, 1873, by Wm. H. Dodge, with Surveyor-General's Serip Cert. No. 288, which location was canceled by office letter "C" of Octo SECRETARY TELLER to Commissioner McFarber 11, 1876. land, May 10, 1883. I have considered the appeal of Frederick C. Zimmerman from your decision of November 17, 1882, denying his application to make another entry in lieu of his timber culture entry No. 1397, of the N. W. of Sec. 20, Tp. 26.S., R. 25 W., Larned district, Kansas, which he asks may be canceled with remission of fees. It appears that he made said entry December 29, 1877; that he made the application in question October 10, 1882. basing the same upon the following state of facts, as set forth by him under oath : that in the spring of 1878, just after he had broken ten acres of his claim, what is known as the "Texas cattle trail." was established across the same, whereby large herds of cattle are herded upon and driven over his land, thus preventing him from further cultivating and planting in compliance with legal requirements; that he is not endeavoring to evade such requirements, but that he has done everything possible under the circumstances to comply therewith. This location served to except the land from the grant for the railroad, and Mr. Fry will be allowed to file for the same. You will so advise him. The railroad through its resident attorney, and allowed company will be informed by this office, the usual time for appeal. CENTRAL PACIFIC RAILROAD COMPANY, SUC- Null and Void-Notwithstanding the peculiar The road opposite the lands in question was definitely located September 13, 1867, and the granted lands were ordered to be withdrawn November 25, same year. The first 77.6 miles were reported to the such construction. The road has not been completed, and the time fixed by the acts for its completion, as before recited, expired July 1, 1880. A large amount of land had been patented to said company on account of such construction before the time had expired for the completion of the whole road, and the land now in question would probably have been patented in like manner, but for the want of the necessary government surveys. Section 4 of the act provides that "if it shall appear that twenty consecutive miles of railroad and telegraph shall have been completed and equipped in all respects as * * * patents required by this act shall issue * * * for the lands hereinbefore granted, to the extent of and coterminous with the completed section." Section 8 provides that in case the comthe time mentioned, the "act shall be pany shall not complete the road within null and void, and all lands not conveyed by patent to said company or companies, as the case may be. at the date of any such failure, shall revert to the United States." It is because of this supposed prohibition that you decline to issue the patents for which application is now made. This leads me to an examination of the In June, 1880, the Central Pacific Railroad Company, successor to the California and Oregon Railroad Company, made ap-decisions bearing upon the question. plication to the local office at Marysville, California, to select, in List No. 11, the S. of Sec. 11, all of sections 13 and 23, the E. of Sec. 15, the N. and the S. W. of Sec 25, and the E. of Sec. 27, in Tp. 16 N., R. 1 E., under the grant of July 25, 1866, (14 Stat., 239,) and the amendatory act of June 25, 1868, (15 Stat., 80.) These lands lie opposite the completed section of said road. Although the law doubtless contemplates that under ordinary circumstances no one shall be permitted to make more than one entry, I am of opinion that under the peculiar circumstances of this case *** it being a matter solely be- The local officers denied the application tween the Government and this petitioner upon the ground that the surveys were not ***the general rule ought to be re- then completed. The surveys having been laxed to the extent of cancelling his en- completed, the company applied to your In the case of Schulenberg vs. Harriman, (21 Wall., 44,) the land grant to the State of Wisconsin to aid in the construction of railroads within that state was under consideration. The forfeiture clause in that grant was: "If said road is not completed within ten years, no further sales shall be made, and the lands unsold shall revert to the United States." That grant, like the one under consideration, was a present grant, and it was held that the clause cited was a condition subsequent, the non-performance of which no one but the grantor could take ad vantage of; and that if the condition be not enforced by legislative or judicial action, "the power to sell continues as before its breach, limited only by the objects of the grant and the manner of sale prescribed in the act." This doctrine has not been departed from, but was reaffirmed in Van Wyck vs. Knevals, (106 U. S., 30,) decided at the last term of the Supreme Court. The forfeiture clause there under consideration was, "That if said road is not completed within ten years from the date of the acceptance of the grant herein before made, the lands remaining unpatented shall revert to the United States." The court cites with approval the case of Schulenberg vs. Harriman (supra,) and say: "If the whole of the proposed road has not been completed, any forfeiture thereon can be asserted only by the grantor, the United States, through judicial proceedings or through the action of Congress." I therefore reverse your decision, and direct that patents be issued for the lands in question. laws. In the case under consideration there said withdrawal by reason of the pendency seems to be no course left except to issue of the Millijo grant claim, and that upon patents for the granted lands as earned its rejection said tract reverted to the by the construction and acceptance of United States. a portion of the road in the manner I am of the opinion, however, that the specified in the act, although the entire rancho claim having been finally rejected road has not been completed within the in the year 1855. as aforesaid, the tract in time named in the act. question was not excepted from the operation of the railroad grant, and that the temporary suspension pending the consideration of Mrs. Arguello's application to purchase the tract, embracing the one DANERI VS. TEXAS AND PACIFIC RAILWAY in question, did not affect the railroad COMPANY. withdrawal, since which date the lands Rejected Pricate Grant - Reservation Public thus withdrawn have been in a state of Land.-A certain private land claim having reservation, and not, therefore, subject been rejected by the authorized tribunal, the land therein became public land. Soon after to disposal under the preemption or other the withdrawal for this railroad was made, such land was in a temporary state of reser- This may be a case of hardship for the vation from pre-emption and other disposal, settler; but unfortunately the executive pending the claimant's application to purchase has no option in the matter. The Suunder the act of July 23, 1866. Upon the rejection of said application, the land in ques-preme Court, in Schulenberg vs. Harrition passed to the railroad under its grant. man (21 Wall., 44,) having laid down the SECRETARY TELLER to Commissioner McFar- rule that there could be no effective exIn the grant now under consideraland, May 22, 1883. ecutive declaration of forfeiture, even upon tion the additional words not usually found I have considered the case of Emanuelle condition broken, the grant to the comin the forfeiture clause of railroad grants Daneri vs. the Texas and Pacific Railway pany must be held intact until the legislaare, that the "act shall be null and void." Company, involving the N. of S. W. 4. tive or judicial branch declares the grant It will be found upon examination that S. W. of N. E., and the N. W. of to be inoperative because of failure to the use of these words adds nothing to the S. E. of Sec. 19, Tp. 18 S., R. 1 W., construct within the time prescribed. legal effect of the forfeiture clause. The ne- S. B. M., Los Angeles district, California, The attention of Congress has been cessity of legislative or judicial action still on appeal by Daneri from your predeces-called, by some of my predecessors as well remains, in order to declare the forfeiture. sor's decision of Febuary 5, 1881, rejecting as by myself, to the fact that large tracts In Schulenberg vs. Harriman it was held his application to file a pre-emption declar- of public lands are reserved for the benefit that the provision "that all lands remain-atory statement for said tract The record of certain railroad companies under the ing unsold after ten years shall revert to shows that the tract in question is within provisions of acts of Congress donating the United States, if the road is not then the limits of the withdrawal under the act lands to states and corporations, and that completed, is no more than a provision of March 3, 1871, (16 Stat., 573,) granting many of these companies (including the that the grant shall be void if a condition lands to said company, which was made Texas and Pacific) have not complied with subsequent be not performed." October 15, 1871, upon a preliminary line the law which provides for the compleThe grant under consideration in that not as yet definitely located. The said tion of their roads within a specified case had been made to the State of Wis-tract was also within the limits of the sup- time. consin, to aid in the construction of rail-posed Rancho Millijo or La Punta, which roads in that State. No part of the par- was finally rejected by the U. S. District ticular road for which the grant was Court of California, September 20, 1855, claimed had been constructed, and the time no appeal having been taken to the U. S. within which it was to be built had long Supreme Court. since expired. 4 No action having been taken by Congress, I can but accept its failure to act as an expression of the legislative will that the decisions of the courts and the opinions of attorneys general bearing upon the By decision of Acting Secretary points involved shall be my guide in adThe court held that when the grant on Cowen, rendered under date of October ministering the law. This being the case, condition had proceeded from the Govern-28, 1873, the application of Guadaloupe I do not find any sufficient reason for refusment, it bound the government like any E. de Arguello to purchase the land ing to affirm your decision, and it is acother grantor; that if the government formerly supposed to have been embraced cordingly affirmed. does not see fit to enforce the forfeiture within the limits of said rancho, under "the title remains unimpaired in the the provisions of the 7th section of the grantee * * * as completely as it existed act of July 23, 1866, (14 Stat., 218,) was on the day when the title by location of rejected. Pending this action, the lands the route of the road acquired precision embraced in Mrs. Arguello's claim were and became attached to the adjoining al- suspended from sale by your office October ternate sections." 29, 1872. This case was decided by the Supreme Court of the United States more than 8 years ago, and since then has been the law of all the state and federal courts. The attention of Congress has been repeatedly called to the effect of the decision, but no action has been taken by that body, and it must be presumed that Congress intends that the land-grant companies shall have the benefit of the decision. At all events these decisions bind the land department, and rule and control its action, leaving it in this respect without discretion or power. The records of your office show that the township plat embracing the tract in question was filed in the local office October 28, 1879. On December 26, 1879, Daneri made application at said office to file a declaratory statement for such tract, alleging settlement thereon January 29, 1879; but the Register and Receiver refused the same on the ground that said tract was embraced in the withdrawal for the railroad. From this action Daneri appealed, basing his appeal upon the ground that the tract in question was suspended from CIRCULAR. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., May 22, 1883. REGISTERS AND Receivers. It appears that under certain decisions of this Office and the Department, a practice has grown up at several district land oflices of admitting preemption claims or homestead entries for land in sections withdrawn for indemnity under grants to aid in the construction of railroads, to remain of record awaiting the final adjustment of the grant, when, if the land is not needed in satisfaction thereof, such entries or claims may be perfected. Under date 17th inst., the Hon. Secretary of the Interior decided that he had authority to order withdrawals of land within the indemnity limits of the grant |