look to the status of the land at the date of the attempted selection by the company.

In 1877 Spaulding tendered a pre-emption declaratory statement for this land, alleging settlement in November, 1872, which was rejected for conflict with the grant, and upon appeal said action was sustained by your office letter of August 28, 1880.

No further action was taken by Spaulding towards prosecuting his claim under the pre-emption laws, but the case arising upon his application never having been formally closed, the matter was re-considered by your office sua sponte and by letter of November 29, 1886, a hearing was ordered.

At this hearing it was shown that Spaulding, after the adverse decision of your office on August 28, 1880, made application to the company for title, and at his request the company selected the land and contracted to sell to him for $4.50 per acre.

Under said contract he had, at the date of the hearing, made several payments, and admitted that he had leased, for a term of ninety-nine years, to different parties, tracts aggregating forty acres.

When asked at the hearing if it was not his desire and wish that the company should secure title to the land, he replied:

I would state I would prefer if I could get good title from the company that the company be permitted to select the land, but if not, I want to get it under my preemption right from the government. That already I have made several payments on this land.

From a review of the matter, I am of the opinion that Spaulding did not have a valid claim to the land under the settlement laws at the date of the company's attempted selection thereof, which selection was made, in accordance with agreement, for his protection.

Having leased about forty acres of the land he could not acquire title under the settlement laws, and from his own statements he was holding the land at the date of the company's selection, not as a settler under the public land laws, but as a purchaser from the company.

I must, therefore, reverse your office decision and direct the allowance of the company's selection if otherwise regular and valid. Approved:

JOHN I. HALL,

Assistant Attorney General.

PAULSEN. ELLINGWOOD.

Motion for review of departmental decision of July 6, 1893, 17 L. D., 1, denied by Secretary Smith, February 12, 1894.

PENDING CONTEST-RELINQUISHMENT. [

HOLMAN . KNAPPEN.

Failure of the local office to order a hearing on a charge that calls for such action, will not defeat the right of the contestant as against the subsequent relinquishment of the entry under attack and the intervening entry of another.

Secretary Smith to the Commissioner of the General Land Office, February 12, 1894. (J. L.)

I have considered the appeal of William B. Holman from your office decision of September 27, 1892, in the case of William B. Holman r. Theodore F. Knappen, affirming the rejection by the local officers of Holman's application to make homestead entry of the SE. 4 of the NE. of Sec. 21, T. 56 N., R. 24 W., 4th p. m., Duluth, Minnesota, land district.

Your office decision refers to and is based upon your office letter of May 6, 1892, which was a final decision in the case of Theodore S. Knappen v. The State of Minnesota, and necessarily brings before me for supervision the record and proceedings in that case also.

On March 22, 1890, Theodore F. Knappen, of Minneapolis, Minnesota, filed at the St. Cloud land office, an application to make homestead entry of the tract of land in contest, which was not allowed, because said tract had been selected and was claimed as swamp-land under the act of March 12, 1860, by the State of Minnesota, which had elected to make the field notes of the government surveys the basis for determining what lands passed to her under said grant. Whereupon, on the same day, March 22, 1890, Knappen filed his affidavit of contest against the State of Minnesota, duly corroborated, and alleging that the "majority" of said tract is not swamp-land, but high, dry and arable land; and his application to enter was held without action to await the result of the contest.

On June 24, 1890, a hearing of said contest was had at the St. Cloud land office, at which Knappen appeared in person, and the State of Minnesota by attorney.

On May 13, 1891, the local officers made their joint decision recommending that the State's selection of said tract as swamp-land be held for cancellation, and that Knappen's application to make homestead entry be allowed.

The State of Minnesota appealed to your office.

On May 6, 1892, by letter "K" of that date addressed to the local officers at the Duluth land office, your office dismissed the State's appeal, declared the decision of the local officers at St. Cloud as to the character of said tract of land to be final, and rejected the claim of the State in the premises.

No appeal was taken from said decision.

Appended to said decision was a paragraph in the following words: "The application of Knappen is returned herewith, and no valid objection being found to subsist, you will allow him to perfect the same;" which were irrelevant and misleading.

On May 19, 1892, Holman filed at the Duluth land office his application to make homestead entry of said tract of land, which was on May 20, 1892, rejected by an order of the local officers in the following words: "Rejected for conflict with prior application of Theo. F. Knappen; see Commissioner's letter K, May 6, 1892."

On June 15, 1892, Holman appealed. But his appeal was not forwarded to your office until July 28, 1892.

In the meantime, on June 29, 1892, Knappen appeared at the land office in Duluth, and filed his application to make homestead entry of said tract in conformity with sections 2289 and 2290 of the Revised Statutes, as amended by the act of March 3, 1891, and he was allowed to make such entry, the local officers writing on the face of his application and on the face of his duplicate receipts the words: "Allowed by Commissioner's letter K, May 6, 1892."

On September 27, 1892, your office, on consideration of Holman's appeal, affirmed the decision of the local officers at Duluth, rejecting Holman's application.

On October 29, 1892, Holman filed in the local office his appeal to this Department. And at the same time, he filed his affidavit of contest against Knappen's entry, duly and impressively corroborated, in which among other things, he alleged circumstantially and in substance:

That Knappen is an attorney-at-law, residing and practicing his profession at Minneapolis; that his application to make homestead entry of said tract of land was fraudulent, a sham and pretence only; that he never intended to establish a residence thereon, or to adopt the occupation of a farmer in place of his present profession; that he had colluded and combined with a clerk in the land office at St. Cloud and other persons, with intent to scrip the land or otherwise to secure title from the government, and to divide among them the proceeds of the speculation. And he prayed that a hearing be ordered that he may prove said allegations, etc.

Instead of ordering a hearing, the local officers, on November 9, 1892, forwarded said affidavit of contest to your office, attached to Holman's appeal, and your office transmitted it to this Department, with your letter "C" of December 5, 1892.

While Holman's appeal was pending here, and his prayer for a hearing of his contest against Knappen's entry was under consideration, on December 27, 1892, Kappen filed in the land office at Duluth, his original duplicate receipt of June 29, 1892, with a relinquishment to the United States of all his right, title and interest in said land, endorsed thereon, and subscribed and sworn to by him, on the 22d day of December, 1892, before a notary public in Hennepin county, Minnesota.

And thereupon, on said December 27, 1892, Knappen's entry was canceled; and one Stillman Reed filed his application to make home

stead entry of said land; which application was, on December 31, 1892, transmitted by the local officers without action, to your office for consideration and direction. Your office transmitted the same with other papers belonging to the case, to this Department with your office letter "C" of February 9, 1893.

Your office decision of September 27, 1892, holding that the local officers were correct in rejecting Holman's application to make homestead entry, was erroneous. It ought to have been received subject to Knappen's preference right as contestant against the State of Minnesota. (16 L. D., 334, 15 L. D., 424, 1 L. D., 162, 2 L. D., 321). When Knappen exercised said preference right and made entry on June 29, 1892, Holman's application became of no effect; and it might properly have been rejected then.

When Holman, on October 29, 1892, filed his affidavit of contest against Knappen's entry, it should have been entertained by the local officers, and a time for hearing should have been set. That contest must be considered as pending. When Knappen on December 27, 1892, filed his relinquishment to the United States, Holman, as successful contestant, became entitled to his preference right, and had precedence of Stillman Reed's application.

Your office will, therefore, direct that the application of Stillman Reed be rejected; that the cancellation of Knappen's entry on December 27, 1892, stand approved; and that Holman's application to make homestead entry of the tract of land aforesaid, be allowed; subject, as in other cases, to contest, and to any legal objections that may appear. Approved,

JOHN I. HALL,

Assistant Attorney-General.

SOLDIERS' ADDITIONAL HOMESTEAD-CERTIFICATE.

FREDERICK ROSE.

A soldier's additional homestead entry made by an attorney in fact, and based on a certification of the additional right, and regularly allowed under the regulations then existing, exhausts the additional right of the soldier.

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

Counsel for Frederick Rose presented you a petition dated March 23, 1889, asking for the restoration of Frederick Rose's additional homestead right, alleging that he made final entry of eighty acres at Boonville, Missouri, August 30, 1872; that by virtue of his military service he is entitled to make an additional entry of eighty acres;

That on March 12, 1879, he made a soldier's additional homestead entry, numbered 2799, final certificate numbered 1641 for the NE. of NE. and SW. † of NE. †, Sec. 29, Tp. 42, R. 27 in Taylors Falls, Minn., district;

That on May 27, 1879, said entry was canceled because it was within the Mille Lac Indian Reservation; that on October 25, 1880, a certificate of right to make a new location was prepared, "but is now preserved in the possession of the General Land Office;" that on August 15, 1882, without your petitioner's request, knowledge or consent his said entry" was re-instated on the records of the General Land Office that a patent has not issued, "nor has he ever enjoyed any benefits from said entry;"

That by act of Congress approved July 4, 1884, (23 Stats., 89) it is expressly provided that said land "shall not be patented or disposed of in any manner until further legislation by Congress."

Such legislation has not yet been had.

In view of these facts, it being manifestly inequitable and unjust to require your petitioner any longer to await the action of Congress in this matter, and for a still longer period remain without the enjoyment of the benefits of the right conferred upon him by said section 2306 R. S. U. S., your petitioner prays that said entry numbered 2799 in Taylor's Falls district may be finally canceled and the said certificate, heretofore mentioned, be issued to him, or if more fully in accord with the practice in vogue in your office, that his soldiers additional right may be restored to him without prejudice.

Subsequently Rose filled a relinquishment of said entry, dated April 22, 1889, accompanied by an affidavit, in which he swears "that he has received no certificate for the soldier's additional homestead entry" described above, and that the "entry was made without his knowledge, authority or consent;" and under date of September 9, 1889, he filed the following affidavit

Frederick Rose, being first duly sworn, deposes and says-That he did not sign any papers before W. T. Shafer, deputy clerk under William C. Evans, clerk of the Crawford county circuit court, Steelville, Missouri, on April 5th, 1879, for the purpose of making soldier's additional homestead, and that he never gave at any time power of attorney to T. B. Walker to act in such matter, and that he has in no manner, either by entry, application, or by sale, transfer, or power of attorney, exercised his additional right of soldier's homestead entry.

By an affidavit filed September 30, 1891, sworn to by the President of the Mississippi River Logging Company, it is shown that said company purchased for a valuable consideration the lands covered by Rose's entry" and that it is the owner of the same.

By letter of October 22, 1891, you rejected Pose's petition, and decided that the entry made in his name is confirmed by virtue of the proviso of Sec. 7 of the act of March 3, 1891. The matter is now before me on the appeal of the petitioner, and he assigns as error—

1. In holding that the local officers had not, (and by implication the Commissioner has not now) any means of determining whether the homestead application and other papers filed in the name of Rose were actually executed by him or filed by his authority.

The other assignments of error are addressed entirely to your judg ment that the entry was confirmed under said act of Congress.

It seems to me that there is but one question presented here for consideration, and that is as to whether or not Rose is entitled to the res