Manning filed D. S. on the land January 25th, 1871, alleging settle ment August 6th, 1870. At the time of filing he was half owner of over eight hundred acres of land in that Territory, but disposed of the same before offering his proof and payment. It is admitted that he could not take the necessary affidavit to complete his claim until he had dispossessed himself of this land, but it is argued that the ownership of it at the time of filing did not disqualify him from initiating his claim by filing. "The right of pre-emption" is well defined by counsel to be "a preference right to purchase a particular tract of land," and this right is acquired by a qualified person duly filing in the proper land office for the land sought. * * * * The 10th section of the pre-emption act provides that 16 no person who is the proprietor of three hundred and twenty acres of land in any State or Territory of the United States shall acquire any right of pre-emption under this act," thus distinctly requiring this qualification as a condition precedent to acquiring any rights, or initiating any claim thereunder. I affirm your decision rejecting Manning's filing, and consequently his claim, as invalid, and return the papers in the case transmitted with your letter of February 27th. Very respectfully, your obedient servant, C. DELANO, Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office. No. 349. (B) SETTLEMENT AND FILING. CIRCULAR. PUBLIC NOTICE TO SETTLERS ON LANDS NOT RESERVED FOR RAILROAD PURPOSES. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, February 10, 1870. WHEREAS the first section of the Act of Congress, approved 2d June, 1862, provides "That all the lands belonging to the United States, to which the Indian title has been, or shall be, extinguished, shall be subject to the operation of the pre-emption Act of the fourth of September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned: Provided, however, That when unsurveyed lands are claimed by pre-emption, notice of the specific tracts claimed shall be filed within six months after the survey has been made in the field; and, on failure to file such notice, or to pay for the tract claimed within twelve months from the filing of such notice, the parties claiming such lands shall forfeit all right thereto; provided said notices may be filed with the Surveyor General, and to be noted by him on the township plats, until other arrangements have been made. by law for that purpose." Therefore, in accordance with the instructions of the Secretary of the Interior, it is ordered that, from and after the publication of this notice for thirty days by the Register and Receiver, all settlers on unsurveyed lands will be required, within six months after the survey in the field (or, if surveyed before said publication, within six months. after publication), to file their declaratory statements with the Register of the proper local Land-Office, and make proof and payment within twelve months from the filing of such notice. If a Land-Office has not been opened, or if the plat has not been returned to the local office, the settler will be required to file his notice with the Surveyor General within six months after the survey in the field, and, upon the LandOffice being opened, and the plat filed therein, to make his proof and payment at such office within twelve months thereafter. 2d. That where settlers on unsurveyed lands have already filed their declaratory statements with the Register of the proper Land-Office, they will be required to make proof and payment within twelve months from and after the publication of this notice, and a failure to file and make proof and payment as specified herein will forfeit the claim. 3d. These rules will become operative, and be enforced in the several land districts from and after their publication for thirty days by the Register and Receiver, a copy of the published notice will be forwarded for the information of this office. Acknowledge date of receipt hereof. Very respectfully, your obedient servant, JOS. S. WILSON, Commissioner. TO REGISTERS AND RECEIVERS U. S. Land Offices, and Surveyors General of the United States. CIRCULAR. No. 350. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, March 22, 1870. WHEREAS, By Act of Congress approved 27th March, 1854, entitled, "An Act for the relief of settlers on lands reserved for railroad purposes," " 'every settler on lands which have been, or may be, withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to preemption at the ordinary minimum to the lands settled on and cultivated by them: Provided, They shall prove up their rights according to such rules and regulations as may be prescribed by the Secretary of the Interior." AND WHEREAS the first section of the Act approved June 2, 1862 (12th Stat., 413), provides, "That all the lands belonging to the United States to which the Indian title has been or shall be extinguished shall be subject to the operations of the pre-emption act of the fourth of, September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned: Provided, however, That when unsurveyed lands are claimed by pre-emption, notice of the specific tracts claimed shall be filed within six months after the survey has been made in the field; and on failure to file such notice, or to pay for the tract claimed within twelve months from the filing of such notice, the parties claiming such lands shall forfeit all right thereto, provided said notices may be filed with the Surveyor General, and to be noted by him on the township plats, until other arrangements have been made by law for that purpose." Therefore, in accordance with instructions from the Secretary of the Interior, it is ordered that all settlers on lands surveyed at date of set tlement, and within the lateral limits of withdrawals for railroad purposes, where settlement was made prior to date of withdrawal, shall be required to file their declaratory statements within three months from thefirst day of June, 1870, and thereafter make proof and payment as required by law. And in all cases hereafter, settlers claiming preemption rights upon surveyed lands under the act of March 27, 1854, aforesaid, shall be required to file their declaratory statements, and make proofand payment in like manner as other pre-emptors, in conformity with the requirements of the pre-emption laws of 1841 and 1843. 2d. That settlers upon unsurveyed lands, including those within the lateral limits of withdrawals for railroad purposes settled upon prior to withdrawal, will be required within six months after survey in the feld (or, if surveyed before the publication of this circular, within six months from the first day of June, 1870, aforesaid) to file their declaratory statements with the Register of the proper land office, or with the Surveyor General, where the plat of survey has not been filed with such Register, and thereafter to make proof and payment for the tract within twelve months from the date of filing, as required by the act of June 2, 1862, aforesaid. And where settlers on lands unsurveyed at date of settlement have already filed their declaratory statements with the register of the proper land office, they will be required to make proof and payment within twelve months from the first day of June next, as aforesaid. Settlers failing to comply with the requirements of this circular will be held to have forfeited their claims as pre-emptors under the law. JOS. S. WILSON, Commissioner. TO REGISTERS AND RECEIVERS U. S. Land Offices, and Surveyor General of the United States. No. 351. PUBLIC NOTICE No. 742. DEPARTMENT OF THE INTERIOR, July 30, 1870. The following is an act approved July 14, 1870, to extend the provisions of the pre-emption laws to the Territory of Colorado, and for other purposes: [Part II., No. 26.] This act leaves the provisions of law as heretofore respecting "offered lands," viz: filing within thirty days and payment within twelve months after settlement. The settler on surveyed "unoffered land" must file his or her declaratory statement within three months from the date of his or her settlement on such land, and, within eighteen months from the expiration of said three months, make the proper proof, and pay for such land. Where settlers had already filed before the passage of the act, they are required to make proof and payment within one year from such passage; therefore, all filings made prior to that date will expire, by limitation of law, upon unoffered lands, on the 14th of July, 1871. The settler on "unsurveyed land" must file his or her declaratory statement within three months from the date of the receipt at the district land office of the approved plat of the township embracing the tract upon which he or she has settled, and, within eighteen months from the expiration of said three months, make the proper proof, and pay for such tract. The proviso of the act of June 2, 1862, requiring filing within six months from survey in the field, and providing for filing with the Surveyor General, is repealed. Circular instructions to registers and receivers, giving more specific details, will shortly be issued. In the meantime, those officers will be governed by this notice. JOS. S. WILSON, Commissioner. No. 352. SCHAFER v. SCHEIBEL AND STEINBAUER. Held-That the pendency of a contest between pre-emption claimants does not exclude pre-emption settlement and filing. They can be made subject to the decision in the contest pending. DEPARTMENT OF JUSTICE, OFFICE OF ASSISTANT ATTORNEY GENERAL, Washington, Aug. 14, 1871. SIR-I have considered the case of John Schafer v. John Scheibel and Theresa Steinbauer. The land in controversy is the W., N. W., Sec. 12, T. 125, R, 29, W. St. Cloud Minnesota. The tract was formerly covered by a homestead entry now cancelled. Before its cancellation two of the claimants in this case, Schafer and Mrs. Steinbauer, settled upon this land. The cancellation was ordered March 7th, 1867. On that day Schafer filed a declaratory statement as a pre-emptor, and Mrs. Steinbauer applied to enter the tract as a homestead. The decision of the commissioner rejecting both the claim and the application, was affirmed by the secretary June 1st, 1868. Pending the appeal before the secretary on the 13th day of January, 1868, Schafer filed another declaratory statement alleging settlement March 7th, 1867. Scheibel also filed a declaratory statement April 24th, 1868, alleging settlement April 18th, 1868. On the 15th day of June, 1868, after the decision of the secretary rejecting finally her homestead claim, Mrs. Steinbauer filed a declaratory statement as a pre-emptor, alleging settlement the same day. The decision of the local officers in favor of Scheibel was overruled by the commissioner, who awarded the tract to Mrs. Steinbauer, on the ground that Scheibel's settlement was made with full knowledge of the adverse claim and pending the contest. From this decision Scheibel has appealed. Schafer expressly waives his right to a review. The pendency of a contest between pre-emption claimants does not operate to exclude pre-emption settlement and filing. Such settlement and filing can be made subject to the decision in the pending contro versy. If the decision should recognize any valid adverse right, then the filing will be entirely inoperative; but if all claims in controversy should be rejected, then such filing would have full force and effect as in other cases. (See decision of Secretary Cox in Ralston v. McCandless, Vol. 12, p. 370 of Land Records.) Both Steinbauer and Scheibel show good faith, and have valuable improvements on the land and the only question now presented is that of priority of pre-emption right. Scheibel's settlement is alleged and proved to have been made on the 18th day of April, 1868. Within thirty days from that date and on the 24th of April, 1868, he made his declaratory statement. Mrs. Steinbauer claimed a homestead right until June 1st, 1868, when it was finally rejected by the secretary. Subsequently, and on the 15th day of June, 1868, she initiated a pre-emption right by filing a declaratory statement, alleging settlement that day. Her settlement as a preemptor is therefore subsequent to that of Scheibel. Even if allowed to take advantage of ber homestead settlement in proof of the pre-emption claim, she could not ante-date Scheibel's settlement without defeating her claim by showing non-compliance with the provision of law requir ing a declaratory statement on offered land to be filed within thirty days of settlement. I recommend that the decision of the commissioner be reversed, and that Scheibel be allowed to enter the land upon showing a full compliance with all the requirements of the pre-emption law. Very respectfully, W. H. SMITH, Asst. Atty. General. HON. C. DELANO, Secretary of the Interior. Concurred in by Acting Secretary Cowen, Aug. 20, 1871. No. 353. WALKER AND WALKER. The 5th section of the Act of March 3, 1843, allows a pre-emption claimant to file his declaratory statement after the three months from time of settlement had expired, provided it was done before any one else had initiated a pre-emption right. DEPARTMENT OF JUSTICE, OFFICE OF ASSISSTANT ATTORNEY GENERAL, Washington, D. C., Jan. 10, 1872. SIR-I have considered the appeal of E. D. Walker and I. D. Walker from the decision of the Commissioner of the General LandOffice, refusing to permit them to make payment for certain lands, claimed under the pre-emption law, on the ground that more than a year had expired from the time of settlement before their offer was made. It appears that E. D. Walker settled on the S. W., and I. D. Walker on the S. E. 4, Sec. 12, 3 N. 8 E., Mt. Diablo Meridian, California, on the 1st day of April, 1868. These tracts were offered Feb. 15, 1859, and withdrawn Jan. 31, 1865, for the Western Pacific Railroad, being within its twenty mile limits. They were restored by act of March 6, 1868, 15 Stat., 39. The parties filed their declaratory statements in time, and on the 6th of June, 1871, made application to prove up and make payment. There are no adverse claims. The only question presented is, were these parties too late in making their application; more than one year having expired from the date of their respective settlements. The 15th Section of the act of 1841, provides that the claimant shall make affida |