o'clock, noon, on the day of the hearing, was not touched upon in your office decision of February 5, 1895, by appeal from which the case was brought before the Department; neither does it appear that the Department has ever definitely passed upon that question.

The Department will not interfere with the action of the local officers in directing a hearing in any case unless it be shown that by such action they have exceeded their authority. It does not appear that they have erred in directing a hearing in the case at bar to determine whether or not Cagle entered the territory prematurely.

In view of the facts set forth, and of the long time during which the case has been under litigation, you are hereby directed to instruct the local officers to proceed with the hearing heretofore ordered by them; and after such hearing to pass judgment upon the case with the greatest expedition consistent with its careful consideration. Should the case come to your office on appeal, you will take prompt action thereon. This contest will be treated as one under the second section of the act of May 14, 1880 (21 Stat., 140), and Mendenhall will be required to pay the expenses of the trial, as is usual in such cases.

Cagle's petition is denied, and, with the accompanying documents, herewith transmitted for the files of your office.

HOMESTEAD CONTEST-VOID MARRIAGE.

CRANDALL v. GRAY.

A charge that an entrywoman at the date of her entry was, by reason of marriage, disqualified to make entry must fail where it appears that the alleged marriage was illegal and void ab initio.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.)

25, 1899.

(G. R. O.)

Cyprian U. Crandall has appealed to this Department from your office decision of May 11, 1897, dismissing his contest against homestead entry No. 5268, made March 31, 1890, by Susan Gray, for the SE of Sec. 8, T. 15 S., R. 2 W., in the Los Angeles, California, land district. This contest was begun by Crandall on February 24, 1896, the substance of his charges being that Susan Gray at the date of her entry was the wife of William Gray and therefore not a qualified entryman. Hearing was had, and on July 28, 1896, the local officers recommended the dismissal of the contest. On appeal your office affirmed their decision.

There is no dispute between the parties as to the material facts of this case. It appears that in December, 1869, William Gray was married to one Martha Titherington in Yorkshire, England. He left her immediately after the marriage and came to this country. He was told, in 1870, that this woman was dead, and believing this to be true,

in December, 1872, he married Susan Gray, the defendant in this case. In February, 1886, he made homestead entry of the land in question. He lived with Susan Gray as her husband for many years, and had seven children by her. In the latter part of 1889 he learned that Martha Gray was still living, and in March, 1890, after the birth of their youngest child, he told Susan Gray of this fact. They then abandoned their marital relations. He relinquished his homestead entry for the land in dispute and allowed her to make entry of it so that she would have a home for herself and her children, and since then he has contributed to their support. He has made occasional visits to the house where she lived, but they both deny that they have lived together as husband and wife since March, 1890. Their neighbors and their own children have always looked upon them as husband and wife.

Sec. 61 of the civil code of California provides:

A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless:

1. The former marriage has been annulled or dissolved;

2. Unless such former husband or wife was absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted; in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal.

The marriage of Gray with Martha Titherington has not been annulled or dissolved; Gray has known his wife, Martha Gray, to be living at a time less than three years before the date of his marriage with Susan Gray, and it was not "generally reputed," at such time, that his former wife was dead, nor does it appear that he had any good reason for believing that she was dead. Under these circumstances his marriage with Susan Gray was illegal and void, ab initio, and she was not, therefore, disqualified by such marriage from making this entry. Your decision is affirmed.

HOMESTEAD CONTEST-WIDOW-ADMINISTRATOR.
BUCHER v. BENHAM.

The temporary separation of a homestead entryman and his wife will not defeat the right of the latter, as the widow of the entryman, to submit final proof on his entry.

The administrator of the estate of a deceased homesteader is not entitled under the law to perfect the entry of the decedent.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.) (G. R. O.)

25, 1899.

On September 20, 1890, Elias C. Benham made homestead entry No. 8789, for the W of NW1, SE of NW and NW of SW of Sec. 12, T. 2 N., R. 5 W., in the Oregon City, Oregon, land district. On Sep

tember 12, 1893, after giving notice, Evaline Benham, claiming to be the widow of said entryman, appeared at the local office and submitted final proof. On the same date Joseph Bucher, administrator of the estate of Elias C. Benham, deceased, filed a protest against the allowance of said proof, alleging:

First. The said Evaline Benham is not the widow of the said E. C. Benham, but is the wife of Charles Buckingham, and at the time she went through the form of a marriage with said E. C. Benham, she had a living husband, to wit, the said Charles Buckingham.

Second. The said Evaline Benham was not living with said E. C. Benham as his wife at the time of his death and had not been for a long time.

Third. Said Evaline Benham is not attempting to make said proof for her own benefit but for the benefit of certain persons living at Noquin in the State of Washngton and said Evaline Benham has sold or agreed to sell said land in advance to said persons.

Hearing was had on this protest before the local officers on June 26, 1896, both parties appearing. On September 29, 1896, the local officers rendered a decision finding that Evaline Benham was the person legally entitled to submit final proof under E. C. Benham's homestead entry. On appeal your office affirmed this decision. A further appeal brings the case before this Department.

The protestant contends that the marriage of the defendant with the entryman, Elias C. Benham, on December 21, 1891, was invalid, because she was, at that time, the wife of Charles Buckingham. The testimony shows that she was married to said Buckingham on July 3, 1889, and that on February 26, 1891, she was granted a decree of divorce by the circuit court of Multnomah county, Oregon. This decree, through an inadvertence, was not entered of record at that time, but on January 28, 1895, it was, by order of said court, "entered as of said 28th day of February, 1891." Her divorce from Buckingham took effect therefore on this last-mentioned date, and her marriage with Benham on December 21, 1891, was valid. She was his wife at the time of his death and, as his widow, was entitled to make final proof on his entry. The fact that she had not lived with him for about six months prior to his death will not, under the circumstances, deprive her of this right. Their separation was made with his consent, for the purpose of earning money to support the family, and was not intended to be permanent.

There is nothing whatever in the testimony to sustain the charge. that the defendant is seeking to secure title to the land in the interest of any person other than herself.

The appellant alleges error in your decision in holding that the proof was regularly submitted and that said proof is sufficient. These are questions that are not in issue in this controversy, and they need not be discussed in this decision.

Error is also alleged in your decision "in not dismissing the proof submitted, and allowing Joseph Bucher, as administrator, to make proof thereon." The administrator of the estate of a deceased home

stead entryman who dies before making final proof, has no interest whatever, as such administrator, in the land embraced in such entry. In such cases the right to make final proof and receive patent for the land is given to his widow, or, in the event of her death, to his heirs or devisee, and to no other person. (Sec. 2291, Revised Statutes.) The protestant in this case can be regarded only as a mere objector, or amicus curiae. Even were it held that the proof should be dismissed Bucher would not be entitled to perfect Benham's entry.

If in other respects regular, the final proof of the defendant may be approved. Your decision is affirmed.

SOUTHERN PACIFIC R. R. Co. v. CHERRY.

Motion for review of departmental decision of September 30, 1898, 27 L. D., 470, denied by Acting Secretary Ryan, January 30, 1899.

ALASKAN LAND--OCCUPANCY-PAYMENT.

ALASKA IMPROVEMENT CO. (ON REVIEW).

A supplemental showing of improvements made after survey may be accepted in proof of the actual occupancy of land applied for under the act of March 3, 1891, where the necessity for such occupancy, the use of the land prior to application, and the good faith of the applicant are manifest.

Certificates issued on account of the deposit made to secure a survey can not be accepted in payment for lands purchased for purposes of trade and manufacture. Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) January 30, 1899. (E. F. B.)

The Department by decision of September 23, 1898, (27 L. D., 451) affirmed the decision of your office, upon the application of the Alaska Improvement Co. to purchase land in the Territory of Alaska occupied for the purposes of trade and manufacture, as far as it required the applicant to amend the survey so as to cover only the land actually used and occupied by it for trade and manufacture.

This ruling was based upon the decision of the Department in the case of John G. Brady, which held that an entry of lands in Alaska for the purpose of trade or manufacture under the act of March 3, 1898, must be limited to the land possessed and actually occupied for such purpose. In this case the official survey showed that the improvements did not occupy a frontage on the Karluk river exceeding onehalf of the frontage claimed, and the company was required to amend its survey to conform to the rule above stated.

A motion for review of this decision has been filed by the company, supported by affidavits, plats and photographs, showing that all of said frontage is actually occupied by said company in the prosecution of its

business, and that owing to a high and very steep bluff along the entire front varying from two hundred to two hundred and fifty feet above the line of ordinary high water-mark, the character of the frontage is such that buildings and other structures must be placed on the narrow rim between the bluff and the shore.

It is further shown that the entire frontage is occupied by improvements of the company which have been made from time to time by said company since said survey, at a cost of about $46,000, and about a million feet of lumber was used in their construction; that the full frontage of the survey on said river is occupied by such improvements as shown by the plat exhibited with said affidavits, and that all of said frontage is necessary for the convenient and successful carrying on of the business of a fishery canning company.

These facts are shown by the affidavits filed with said motion, from which it now appears that all of said frontage was actually occupied and is necessary for the business of said company, and it is now shown that the part of the frontage which did not appear to be occupied by improvements when the case first came before the Department is now occupied by a fisherman's lookout, posts, piles, net racks, capstans, tanks for coal oil, and other structures necessary to the use of the business carried on by said company.

While it is true that most of these improvements have been made since the survey, they were made upon the space that has always been used by the company in hauling its seines, and spreading the nets, for the purpose of facilitating the operations and uses to which the land theretofore had been applied.

The good faith of the applicant being abundantly shown, and it appearing that the entire frontage claimed is actually necessary for the successful prosecution of the business, and has always been used for the purpose in aid of which the improvements placed thereon since survey, the application comes within the spirit of the act and no further survey should be required.

The decision of September 23, 1898, so far as it required the applicant to amend the survey is revoked.

It appears from your letter that the ex officio surveyor general "issued his receipt for the money tendered in payment for the land, being triplicate certificate of deposit for the survey." Your attention is called to the case of John G. Brady, 26 L. D., 305, in which it is held that there is no statutory authority for accepting in payment for lands purchased for trade and manufacture the certificates issued on account of the deposit made to secure the survey of said land. You will therefore require payment to be made for said land in accordance with said ruling before approving the entry.

FEELEY . HENSLEY.

Motion for review of departmental decision of October 4, 1898, 27 L. D., 502, denied by Acting Secretary Ryan, January 30, 1899.