attachment of any right, by selection, under said act, to the evennumbered sections involved. But irrespective of any prejudice that might result to the railway company by the reservation directed by your office letter of July 18, 1899, the Department is of opinion that the survey of the lands embraced in the company's application having been determined upon by your office and sanctioned by the Department prior to the filing of the application of the State, said lands, at date of the State's application, were not then within the purview of the provisions of said act of August 18, 1894.

The fact that contracts for the execution of such survey had not been actually awarded can not be held to alter the conclusion herein reached in view of the other controlling steps that had been taken by your office, with the approval of the Department, prior to the filing of the State's applications. Those proceedings amounted to an order for said survey, and under them, especially by reason of the accepted deposit of the railway company, an obligation to the company had been incurred which under the act of February 27, 1899, could be satisfied only by the survey of the lands according to the provisions of

that act.

Your decisions of November 13, 1899, and February 8, 1900, revoking the reservations previously directed by your office letters of June 23, and July 18, 1899, as to the lands in conflict, are accordingly affirmed.

RAILROAD LAND-CONFIRMATORY PATENT-SECTION 4, ACT OF MARCH

The good faith of a purchaser who is asking for confirmatory patent under section four of the act of March 3, 1887, is not affected by the fact that there were settlers on the land at the time of his purchase who were attempting to claim the same under the homestead law, and that the purchaser knew of their presence there, or was charged with constructive notice thereof, where the lands at such time were not subject to homestead settlement or entry, but were included in outstanding patents, regularly issued for the use and benefit of the railroad company, and the defect in the company's title as ultimately determined by the supreme court was in no respect affected by the presence or absence of settlers or settlement claims.

Acting Secretary Campbell to the Commissioner of the General Land (W. V. D.) Office, September 29, 1900.

The Department has considered the appeals of H. C. Lane, William Schultz and John A. Larson from your office decision of September 1, 1899, rejecting the application of Lane under section 4 of the act of March 3, 1887 (24 Stat., 556), for a confirmatory patent for the S. § of Sec. 11, T. 95 N., R. 42 W., Des Moines, Iowa, land district, award

ing the right to make homestead entry of the SE. of said section to Samuel A. Wilson, rejecting the homestead application of William Schultz for said SE. 4, awarding Theodore Kluver the right to make homestead entry of the N. of the SW. of said section, awarding the right to make homestead entry of the S. of said SW. 4 to John A. Larson, and rejecting his homestead application as to the N. of said SW. 4. Said land is in O'Brien county, Iowa, and is in like situation as the lands involved. in Schneider. Linkswiller et al. (26 L. D., 407), Linkswiller e. Schneider (95 Fed. Rep., 203), and Tow . Manley (29 L. D., 504).

A hearing was had in the local office May 5, 1896, at which all the claimants appeared in person and by counsel, as a result of which the local officers recommended that the application of Lane for a confirmatory patent be rejected. the homestead application of Wilson for the SE. of said section be allowed, the homestead application of Schultz for said SE. 4 be rejected, the homestead application of Kluver for the N. of the SW. ‡ be allowed, and that the homestead application of John A. Larson for the whole of said SW. ‡ be rejected as to the N.thereof and be allowed as to the S. . Upon appeal, your office. by decision of September 1, 1899, sustained the action of the local officers. The matter is now before the Department upon the further appeal of Lane, Schultz, and Larson.

The evidence shows that Lane purchased the SE. of said section from the railroad company October 11, 1888, under a contract providing for the payment of the purchase price in deferred payments; that at the time of entering into the contract he paid $160 thereon and thereafter paid in interest and deferred payments $373.91 thereon; that he purchased the SW. of said section from the railroad company October 15, 1888, under a contract providing for the payment of the purchase price in deferred payments; that he paid thereon at the time of entering into the contract $160, and thereafter paid in interest and deferred payments thereon $306.52, making a total payment upon the lands in controversy of $1,000.43; that pursuant to the terms of the contract he also paid the taxes upon the land for the years 1889 to 1894, inclusive, amounting to $359.01, the last payment of taxes being made September 24, 1895. No part of the purchase money has been refunded to Mr. Lane, or sued for or demanded by nim, and neither contract has ever been surrendered or canceled. Both contracts were entered into after the land had been patented to the State of Iowa for the use and benefit of the railroad company, and before the institution of the suit October 4, 1889, whereby the United States sought to recover, and ultimately did recover, the title.

After the payments upon the purchase price hereinbefore recited. and after the commencement of said suit by the United States the railroad company notified Lane that he would not be required to make further deferred payments during the pendency of the suit affecting

title. There is no affirmative showing that Lane's purchase was not made in good faith, and his conduct in making deferred payments and in performing his obligation to pay the taxes upon the land is strong evidence that his purchase was an honest transaction on his part, entered into for the purpose and with the expectation of obtaining title to the land. The fact that there were settlers on the land who were attempting to claim the same under the homestead law and that Lane knew of their presence there, or was charged with constructive notice thereof, did not detract from the good faith of his purchase. The lands were not then subject to homestead settlement or entry but were included in outstanding patents regularly issued by the United States to the State for the use and benefit of the railroad company, and the defect in the company's title as ultimately determined by the supreme court was in no respect affected by the presence or absence of settlers or settlement claims. Tow. Manley (29 L. D., 504).

Your office decision is therefore reversed, with instructions to sustain the application of Lane, under section 4 of the act of March 3, 1887, and to reject the several homestead applications.

ALASKAN LANDS-SURVEY-HOMESTEAD CLAIMS.

INSTRUCTIONS.

Acting Secretary Campbell to the Commissioner of the General Land (W.V.D.) Office, September 29, 1900.

The Department is in receipt of your office letter of the 30th ultimo, making inquiry respecting proofs required to be filed with the returns of the survey of homestead claims in Alaska, made under authority of the act of May 14, 1898 (30 Stat., 409), and the regulations issued thereunder (27 L. D., 248).

By paragraphs 3 and 4 of said regulations special survey of homestead claims in Alaska can only be made where they are taken in the exercise of soldiers' additional homestead rights. Settlement, residence, cultivation and improvement are none of them conditions to the exercise of this right. While the special survey of these claims is to be made in the manner provided for in section 10 of said act, this does not mean that the surveyor's certificate or return should include any of the matters embraced in the first, second or third subdivisions of paragraph 34 of said regulations. These three subdivisions relate exclusively to claims sought to be acquired for the purpose of trade. manufacturing or other productive industry, and do not apply to soldiers' additional homestead claims. The surveyor's certificate or return should however include the matters embraced in the fourth, fifth and sixth subdivisions of said paragraph 34, but need not include

any of the matters embraced in the seventh, eighth, and ninth subdivisions thereof. In the case of soldiers' additional homestead claims the surveyor's oath to the essential matters required by the fourth, fifth, and sixth subdivisions of said paragraph 34 may be accepted for purposes of the survey, but other appropriate and satisfactory proof thereof should also be made by or on behalf of the claimant at the local land office at the time of presenting the proof otherwise required in such claims.

ABANDONED MILITARY RESERVATION-SETTLEMENT,ACT OF MARCH

3, 1893.

BLAIR. STATE OF NEBRASKA (ON REVIEW).

A settlement on an odd-numbered section within Fort Randall abandoned military reservation, and an application to enter the tract settled upon filed prior to the expiration of the period accorded the State by the act of March 3, 1893, within which to exercise a preferred right of school indemnity selection, can not defeat the assertion of such right on the part of the State, unless the settler was an actual occupant of said tract prior to the establishment of the reservation or had settled thereon prior to January 1, 1884, in good faith, for the purpose of securing a home and entering the same under the general land laws.

Acting Secretary Ryan to the Commissioner of the General Land (W. V. D.) Office, October 4, 1900. (G. B. G.)

This is a duly entertained and matured motion for review of departmental decision of June 27, 1899 (28 L. D., 569), which affirmed the decision of your office denying the application of Alexander H. Blair to make homestead entry of the NW. of Sec. 3, T. 34, R. 11 W., O'Neill land district, Nebraska.

This land is within the abandoned Fort Randall military reservation, and Blair's application, which alleged settlement thereon March 9. 1893, was rejected because of a selection of the tract, November 11, 1897, by the State of Nebraska, on account of its school grant, under an act of Congress of March 3, 1893 (27 Stat., 555), entitled "An act to provide for the survey and transfer of that part of the Fort Randall military reservation in the State of Nebraska to said State for school and other purposes," section one of which act is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the odd-numbered sections in the portion of the Fort Randall military reservation situated in the State of Nebraska, after the same shall have been surveyed as herein provided, may be selected by the State of Nebraska at any time within one year after the filing of the official plats of survey in the district land office as a part of the lands granted to said State as school indemnity for school lands lost in place under the provisions of "An act to provide for the admission of the State of Nebraska into the Union," approved February ninth, eighteen hundred and sixty-seven: Provided, That no existing lawful rights under any of the land laws

of the United States providing for the disposition of the public lands shall be prejudiced by this act: And provided further, That said lands shall be accepted by said State of Nebraska in full satisfaction of lawful claims now existing, or that may hereafter arise, for school-land indemnity for a corresponding number of acres, upon assignment of the bases of the claims by description and selection in accordance with the regulations of the Interior Department within the period of limitation aforesaid; such selections to be equally distributed, so far as practicable, among the several townships.

The settlement as alleged by Blair in his said application having been made subsequent to the passage of said act, it was held by the decision under review that a settlement on an odd-numbered section within said reservation after the passage of the act of March 3, 1893, supra, and an application to enter the tract thus settled upon, filed prior to the expiration of the period accorded to the State by said act within which to exercise a preference right of school indemnity selection, cannot defeat the assertion of such right on the part of the State. The motion for review proper presents no question which was not fully and carefully considered when the decision under review was rendered, and nothing which casts doubt upon the correctness of that decision upon the facts as then presented. But a reconsideration and modification of said decision is asked because of alleged newly-discovered evidence, and in an affidavit in support of said motion, Blair states:

That at the date of his application for the tract of land involved herein, affiant was misled in the showing made as to the exact date of his settlement and residence upon said tract, in that affiant was laboring under the belief that his settlement right began to run from the date he removed his family upon the said tract, to wit, March 9, 1893, whereas the true date of affiant's settlement upon said tract was on the 19th day of February, 1893; that on the 22nd day of February, 1893, affiant commenced the construction of a dwelling house and stable upon the said tract of land, and resided upon and occupied the said land the greater portion of the time from February 22, 1893, to March 9, 1893, at which time affiant moved his family, consisting of wife and two children, upon the said tract, and have continued to reside thereon to the present time and cultivate and utilize said premises under the homestead laws of the United States.

These statements are corroborated by an affidavit signed by two persons, who aver personal knowledge of the facts therein stated, and, inasmuch as they are not controverted by the State, will be taken as true. The question, therefore, arises as to the effect of a settlement upon an odd-numbered section of land within the abandoned Fort Randall military reservation, made prior to the passage of the act of March 3, 1893, and existing at the date of the passage of that act.

If Blair's settlement upon said land was an existing lawful right under any land law of the United States providing for the disposition of the public lands, it is protected by the first proviso to section one of said act; otherwise such settlement was no bar to the State's right of selection. At the date of said settlement the land in controversy