under consideration it is stated that in response to a rule served upon said company it was shown that this land had been sold by the company on October 13, 1884, to one J. B. Brown.

In the case of William E. Inman v. Northern Pacific R. R. Co. (28 L. D., 95) it was held that where, prior to the act of April 21, 1876, the legal title to lands had passed to a railroad company such lands are not subject to disposal under said act and that the word "withdrawal" employed in said act must be held to refer to withrawals of lands remaining subject to control and disposition by Congress. It is clear, therefore, that said act can have no application to the land under consideration. Further, it does not appear that this tract was excepted from the operation of the railroad grant, because the preemption settlement by Russell can not be held to have attached to the land until his filing was duly tendered at the local office, which was subsequently to the definite location of the road.

There would seem to be no reason therefore for the confirmation of the title of the purchaser from the railroad company of this land, and the application by Russell for reinstatement of his preemption filing is denied and the papers are herewith returned for the files of your office.

SCHOOL INDEMNITY

SELECTIONS-FOREST RESERVATION-INSTRUC

TIONS OF MARCH 11, 1899, MODIFIED.

INSTRUCTIONS.

Commissioner Hermann to registers and receivers, United States Land Offices, February 21, 1901.

Pursuant to the opinion of the Assistant Attorney-General approved by the Department January 26, 1901, and the decision by the Department in the case of the State of California, decided February 9, 1901, wherein it was held that an indemnity school land selection, on the basis of a surveyed school section within a forest reserve, was such a waiver of the State's right to said school section as to obviate the necessity for a formal relinquishment thereof to the United States, instructions of March 11, 1899 (28 L. D., 195), are modified as follows: 1. Applications for indemnity lands in lieu of school sections sixteen and thirty-six which have been embraced, after survey, within the boundaries of a forest reservation, must designate by specified legal subdivisions the lands in lieu of which indemnity is desired. The mere designation of forty, eighty, or other number of acres, will not be accepted as a sufficient description.

2. The State will be required to file with each list of selections a certificate by the officer, or officers, charged with the care and disposal of such school lands, that the State has not encumbered, sold or disposed of, nor agreed to encumber, sell or dispose of, any of the said

lands, used as bases, and that no part of said lands is in the possession of any third party, under any law of permission of the State. There must also be filed with all lists a certificate from the recorder of deeds, or official custodian of the records of transfers of real estate in the proper county, that no instrument purporting to convey or in any way encumber the title to any of said lands, is on file or of record in his office.

3. All applications pending at the date of the receipt hereof by the respective local land offices must be made to conform to these requirements, and all selections on which final action has not been taken by this office will remain suspended, and the States will be allowed a reasonable time within which to furnish the necessary certificates and otherwise conform with the foregoing requirements.

Approved:

E. A. HITCHCOCK,

Secretary.

RAILROAD LANDS-SECTION 3, ACT OF SEPTEMBER 29, 1890.
HENSON v. BULLY.

The period within which the right to purchase railroad lands forfeited by the act of September 29, 1890, could be exercised under the third section of said act, as extended by the act of December 12, 1893, expired January 1, 1897, and by failure to exercise the right of purchase within that period, rights under a homestead entry of record at that date attached absolutely as against such right of purchase; and nothing in the act of February 18, 1897, reviving and extending the right of purchase accorded by said section, can be so construed as to in anywise interfere with any adverse claim which may have attached prior thereto.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) February 25, 1901.

(E. F. B.)

This case comes before the Department upon the appeal of Ezra Henson, administrator of the estate of Lowell F. Henson, deceased, from the decision of your office of August 14, 1900, dismissing his contest against the homestead entry of Charles Bully for the E. of the NW. and the E. of the SW. of Sec. 17, T. 3 S., R. 14 E., The Dalles, Oregon, and rejecting his application to purchase said land under the 3d section of the act of September 29, 1890 (26 Stat., 196).

The land in controversy is a part of the lands forfeited by said act of September 29, 1890. It was entered February 11, 1896, by Charles Bully as a homestead. Ezra Henson, as administrator of the estate of Lowell F. Henson, filed his application, December 20, 1898, to purchase said lands for the heirs of said estate under the 3d section of said act of September 29, 1890, which was rejected because of the homestead entry of Bully. Upon the rejection of his application he filed a

contest, April 29, 1899, against said entry, alleging priority of right in this: that the said Lowell F. Henson settled upon said land in 1884, with the bona fide intent of purchasing said land of the Northern Pacific Railroad Company, and that contestant, as administrator of his estate, continued to occupy said land after the death of the said Lowell F. Henson.

Upon the testimony taken at the hearing the local officers recommended that the contest be dismissed, for the reason that, as Lowell F. Henson was a minor at the time of his death, his administrator has no right to purchase the land under said act.

Upon appeal your office by decision of August 14, 1900, affirmed the decision of the local officers, dismissed the contest and rejected appellant's application to purchase. From that action he appeals to the Department.

The material facts shown by the record and as found by the local officers are as follows:

In 1884 Lowell F. Henson, who was then about seventeen years of age, took possession of the tract and built a house thereon, in which he lived up to the time of his death, which occurred October 5, 1888. His improvements consisted of a house, fence and thirty or forty acres in cultivation. The land adjoining was occupied by his father and both tracts were in one inclosure, but were not cultivated in common. Lowell F. Henson owned stock and farming implements and supported himself by his own earnings. He cultivated the land in his own behalf without responsibility to others. At the time of his death he was a minor and was not the head of a family. After his death his father, Ezra F. Henson, who was appointed administrator of his estate October 17, 1888, continued to claim and hold possession of the land until February 11, 1896, when Bully made homestead entry of the tract. When Lowell F. Henson was living on the tract he invited a man named Hamilton to stay on the land with him until he (Hamilton) could get a ranch. After the death of Henson, Hamilton claimed the tract, and the administrator of Henson commenced an action against him for forcible detainer, but, being unsuccessful in the lower courts, he bought him off. With the exception of the claim of Hamilton, the possession of Henson was not disturbed or disputed up to February 11, 1896, when Bully took possession and made his homestead entry. On December 20, 1898, Ezra Henson, as administrator of Lowell F. Henson, filed an application to purchase said land under the third section of the act of September 29, 1890, in behalf of said estate.

The claim of appellant rests upon that portion of the third section of the act of September 29, 1890, which provides that—

where persons may have settled said lands with bona fide intent to secure title thereto by purchase from the State or corporation when earned by compliance with the conditions or requirements of the granting acts of Congress, they shall be entitled to

purchase the same from the United States, in quantities not exceeding three hundred and twenty acres to any one such person, at the rate of one dollar and twenty-five cents per acre, at any time within two years from the passage of this act.

The period within which the right of purchase might be exercised was extended from time to time, it being extended by the act of December 12, 1893 (28 Stat., 15), to January 1, 1897, covering the period in which Bully's entry was allowed. But while the act gave to persons who at the date of the passage of the act were actual settlers on any of the lands forfeited, and are otherwise qualified, the right to purchase the lands so occupied, not exceeding three hundred and twenty acres to any one person, it did not withhold the lands from settlement during the period allowed for the exercise of the right of purchase, but opened all such lands to settlement and entry subject only to the preference right of purchase if exercised within the time prescribed by the act. (Circular, 12 L. D. 308; James M. Dewar, 19 L. D., 575.)

The right of purchase was not exercised by the estate of Henson during the period extended by the act of December 12, 1893, and hence it expired January 1, 1897. At that date the entry of Bully was of record, and although it was subject to the rights of the estate of Henson if exercised within the period limited by the act, the right of Bully under his entry, as against the estate of Henson, attached absolutely upon the expiration of that period, free from any claim or right of purchase by the estate of Henson.

The right of purchase given by the third section of the act of September 29, 1890, was revived by the act of February 18, 1897 (29 Stat., 535), which extended the time for the exercise of the right to January 1, 1899, but with this proviso—

That nothing herein contained shall be so construed as to interfere with any adverse claim that may have attached to the lands or any part thereof.

It is contended by appellant that the preferred right of purchase was a continuing right because there was no hiatus between the last two extension acts, the following direction from your office having been given to the local officers by a telegram dated December 31, 1896: Take no action looking to disposition of any such lands except to receive applications or money tendered by persons protected by said section three prior to January first, ninety-seven: said lands are hereby reserved from settlement and disposition pending action by Congress until further orders from this office or Department.

Without passing upon the validity of the action of the Commissioner, a sufficient reply to the contention of appellant is that the right of Bully does not depend upon whether the right of purchase was a continuing one or not, as the right extended was not a preferred right but was made subject to any adverse claim that may have attached to the land prior to the exercise of the right; and further, while the directions to the local officers were sufficient to prevent any disposition of the lands by them until the further order of your office or the

Department, they could not prevent rights from attaching under entries that had previously been allowed.

An expression in the case of Reith v. Niles (23 L. D., 415, 416), that "the right to purchase these lands is secured to persons entitled to purchase the same between the dates of September 29, 1890, and January 1, 1897, and that no adverse claim could attach between those dates," may seem to be in conflict with the views herein expressed.

In that case the application to purchase was made July 24, 1891, during the period that the preference right was protected. The case first came before the Department upon the appeal of Niles, a homestead entryman, involving the question of the right of an administrator to purchase under said act. The Department, by decision of December 4, 1894 (19 L. D., 449), held that such right could be exercised by an administrator for the benefit of the estate. When the case was returned to your office the local officers were instructed to notify Reith that he would be allowed sixty days in which to make payment for the land. Failing to respond to such notice, your office, on February 1, 1896, without further action, closed the case and held the homestead entry of Niles intact. The case then came before the Department on the appeal of Reith, in which the only question presented was whether your office could require the applicant to complete his payment within sixty days from the notice given by your office. It was held that the applicant was entitled to the full period prescribed by the act of December 12, 1893, in which to complete his purchase. It was with reference to the facts in that case that it was held that the right of purchase was secured to persons entitled to purchase between the dates of September 29, 1890, and January 1, 1897, and that no adverse claim could attach between those dates.

The homestead entry of Bully was made February 11, 1896, and it was not until December 20, 1898, that this claim of Henson's was asserted, though Henson had full knowledge of the improvements and possession of the homesteader.

The decision of your office is affirmed.

REINSTATEMENT OF CANCELED ENTRIES-INSTRUCTIONS OF APRIL 28,

1899.

INSTRUCTIONS.

The departmental instructions of April 28, 1899, relating to the reinstatement of cash entries canceled for supposed conflict with the Houmas private land grant, do not contemplate that such entries shall be reinstated by the land department of its own motion, and where those having rights under those entries do not assert them, but allow the lands to be appropriated by others under the settlement laws, the presumption arises that they have acquiesced in the cancellation of the entries and abandoned any claim thereunder; and in such cases homestead entries for the lands, if the proofs be satisfactory, should be carried to patent regardless of such former canceled entries.