March 23, 1885, William L. Crocker made homestead entry for the SE. of the SW. ‡ of said section 7, and this entry was commuted to cash on December 4, 1886.

By your office letter of March 19, 1895, the railroad company's list was held for cancellation in so far as it covered the tracts above described, for the reason that said tracts were included, at the date of the definite location of the road, in the uncanceled donation claim of one Jacob Minter.

From this action the company has appealed.

The records show that on November 30, 1855, Jacob Minter filed notification under section 5 of the Oregon donation act of September 27, 1850 (9 Stat., 486), as amended by the act of February 14, 1853 (10 Stat., 158), for these tracts in section 7, together with adjoining lands in section 1, the whole being estimated at "about 320 acres," the amount of land that a married man and his wife could take under section 5 of said act as amended; that as a matter of fact said donation claim covered more than the legal three hundred and twenty acres, but that it remained intact up to December 17, 1876, when, at the request of the heir of said Minter, the tracts in section 7 were excluded, and patent issued for the remainder.

The railroad company contends:

1. That a donation notification does not except the land covered thereby from the operation of the grant to said company.

2. That section 5 of the donation act confined a married claimant to three hundred and twenty acres, one hundred and sixty for himself and one hundred and sixty for his wife, and as Minter's claim covered more than three hundred and twenty acres, it was invalid as to the excess and the company's grant took effect upon the excess.

It has recently been held by the Department that land embraced within a notification of a donation claim, at the time when a railroad grant becomes effective, is excepted from the operation of said grant, though claims of such character are not specifically named in the excepting clause of the grant. Oregon and California R. R. Co. v. Kuebel, 22 L. D., 308; Oregon and California R. R. Co. v. Bagley, 23 L. D., 392.

This ruling disposes of the first contention of the railroad company, and renders further comment thereon unnecessary.

In the case of John J. Elliott, 1 L. D., 303, it was held that the filing of the original notification was an ipso facto segregation of the tract there described from the lands contiguous thereto. A donation notification had the effect, therefore, of an entry in the matter of segregating the land covered thereby.

The Department has held that a homestead entry exceeding one hundred and sixty acres is voidable only, and while of record is an appropriation of the land. Charles Hoffman, 4 L. D., 92; Legan v. Thomas et al., id., 441.

It follows that Minter's donation notification, during the time it embraced more than the legal three hundred and twenty acres, was voidable only, and was an appropriation of the entire amount of land covered thereby.

On January 29, 1870, when the grant took effect, these tracts in section 7 were covered by Minter's notification, and consequently were excepted from the operation of the grant.

Your office decision is affirmed.

OSAGE CEDED LANDS-FORFEITURE OF ENTRY.

MARS TAYLOR.

The Department has authority to cancel entries of Osage ceded lands where default exists as to the payment of the purchase price.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) (W. C. P.)

uary 8, 1897.

I am in receipt of your letter of October 10, 1896, asking for instructions as to the proper procedure in the matter of the purchase by Mars Taylor of the NW. 4 of the SW. 4 of Sec. 33, T. 31 S., R. 18 E., Kansas, being a part of the body known as the "Osage ceded lands."

By the treaty of September 29, 1865 (14 Stat., 687), the Osage Indians granted and sold to the United States certain lands in Kansas for which the United States agreed to pay the sum of $300,000 to be placed to the credit of said Indians in the Treasury and interest to be paid thereon at five per centum per annum. Said treaty further provided:

Said lands shall be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms for cash, as public lands are surveyed and sold under existing laws including any act granting lands to the State of Kansas in aid of the construction of a railroad through said lands but no pre-emption claim or homestead settlement shall be recognized; and after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the Treasury of the United States to the credit of the "civilization fund" to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States.

By the second article of said treaty certain other lands were ceded to the United States to be held in trust for said Osage Indians and surveyed and sold for their benefit.

By joint resolution of April 10, 1869 (16 Stat., 55), it was provided that any bona fide settler residing upon any portion of the lands by virtue of the first and second articles of said treaty being a citizen of the United States or having declared his intention to become a citizen should be entitled to purchase the same in quantity not exceeding one hundred and sixty acres, at one dollar and twenty-five cents per acre, within two years from the date of said resolution under such rules and regulations as may be prescribed by the Secretary of the Interior.

The next legislation affecting these lands is found in the act of August 11, 1876 (19 Stat. 27). It was there provided by section one that any bona fide settler residing at the time of completing his or her entry, as hereinafter provided, upon any portion of the land sold to the United States, by virtue of the first article" (of said treaty of 1865, who is a citizen of the United States, &c.) "shall be and hereby is, entitled to purchase the same in quantity not to exceed one hundred and sixty acres at the price of one dollar and twenty-five cents per acre within one year from the passage of this act, under such rules and regulations as may be prescribed by the Secretary of the Interior and on the terms hereinafter provided.

The second section of said act makes provision for the protection of persons who had purchased any portion of said lands from railroad companies claiming the same.

Section three prescribes the terms of purchase, and reads as follows: That the parties desiring to make entries under the provisions of this act who will, within twelve months after the passage of the same make payment at the rate of one dollar and twenty-five cents per acre, for the land claimed by said purchaser, under such rules and regulations as the Commissioner of the General Land Office may prescribe, as follows, that is to say: said purchaser shall pay for the land he or she is entitled to purchase one-fourth the price of the land at the time the entry is made, and the remainder in three annual payments, drawing interest at the rate of five per centum per annum, which payment shall be secured by notes of said purchaser, payable to the United States; and the Secretary of the Interior shall with-' hold title until the last payment is made; and the Secretary of the Interior shall cause patents to issue to all parties who shall complete their purchases under the provisions of this act, and if any claimant fails to complete his or her entry at the proper land office within twelve months from the passage of this act, he or she shall forfeit all right to the land by him or her so claimed, except in cases where the land is in contest: Provided further, That nothing in this act shall be construed to prevent any purchaser of said land from making payment at any time of the whole or any portion of the purchase money.

Section four provides for entries on said lands for townsites. Section five provides for the re-establishment of entries theretofore canceled by the Secretary of the Interior. Section six reads as follows:

That all declaratory statements made by persons desiring to purchase any portion of said land under the provisions of this act, shall be filed with the register of the proper land office within sixty days after the passage of the same: Provided, however, That those who may settle on said land after the passage of this act shall file their declaratory statement within twenty days after the settlement, and complete their purchase under the provisions of this act within one year thereafter.

Section seven reads as follows:

That nothing in this act shall be so construed as to prevent said land from being taxed under the laws of the State of Kansas as other lands are or may be taxed in said State from and after the time the first payment is made on said land, according to the provisions of this act.

Section eight, the last of said act, provides for the purchase by certain railroad companies of certain tracts.

On October 26, 1876, instructions were given to the local officers calling attention to the various provisions of said law and telling them of their duties thereunder.

The right given to settlers to purchase these lands is in the nature of a pre-emption right, and by parity of reasoning the authority of this Department to declare and enforce a forfeiture for failure of the purchaser under this law to comply with the provisions thereof would be the same as in pre emption cases. While the law under consideration contains no express declaration of forfeiture for default in making the deferred payments, it does contain the provision that "the Secretary of the Interior shall withhold title until the last payment is made.” The contract was one of sale, by which the United States agreed to convey the title upon certain conditions, one of which was the payment by the purchaser of the specified price within three years from the date of his entry. The failure of a purchaser to comply with the obligations he had assumed would relieve the United States of all obligations under such contract and would render the claim of the defaulting purchaser liable to a declaration of forfeiture. Furthermore, the authority to declare a forfeiture of such claims, and to enforce it by cancellation of the entries, is necessary to a proper administration of the law directing the sale of these lands.

The provisions of this law are very like those of the law providing for the sale of the Otoe and Missouria lands, of which my predecessor, Secretary Smith, after discussing the question, said (23 L. D., 143):

I am fully persuaded, therefore, of the power of the Secretary of the Interior to cancel the entries of these purchasers of Otoe and Missouria lands who are in default in the deferred payments.

So in the case of Osage ceded lands this Department has authority to cancel entries where default exists as to the payment of the purchase price.

It is, and should be, the policy to allow the purchaser of public lands opportunity to cure his default before final action is taken upon his claim, and in these cases notice should be given the purchaser, by service upon him personally if he can be reached in that way, and, if not, then by publication in such manner as will most likely reach him, that his entry will be canceled unless he shall, within some reasonable time, to be specified, complete his purchase.

Your attention is also called to the fact that said law specifically provides that nothing therein "shall be so construed as to prevent said land from being taxed under the laws of the State of Kansas." In view of this provision, you should ascertain whether the land has been sold for taxes, and at the same time, whether any transfer of any kind has been made. The present claimant of the land should be served with notice of the contemplated cancellation of the entry.

REPAYMENT-COMMON GRANTED LIMITS.

THOMAS HAWLEY.

An even numbered section lying within the common granted limits of two railroad grants remains at double minimumn though one of such grants may have been forfeited, and an application for repayment on the ground of double minimum excess must be accordingly denied.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 8, 1897. (E. M. R.)

This is an application by Thomas Hawley for the repayment of the double minimum excess paid in the Ashland, Wisconsin, land district, on cash entry No. 5037, for the S. of the SW. of Sec. 14, T. 49 N., R. 7 W., and is before the Department on appeal from your office decision of October 31, 1895, denying said application.

This land is within the common ten mile limits of the Omaha railroad and the Wisconsin Central railroad. The appeal is based upon the authority of the case of James McVicar (21 L. D., 128).

On June 3, 1856 (11 Stat., 20), Congress passed an act to aid in the construction of the Chicago, St. Paul, Minneapolis and Omaha railroad. On May 5, 1864 (13 Stat., 56), Congress passed an act by which the grant to the said Omaha railroad company was enlarged from six to ten sections per mile. By the same act a grant was made to aid in the construction of the railroad now known as the Wisconsin Central railroad. The tract of land upon which re-payment is now asked, as has been stated, is within the common ten mile limits of these two roads.

This Department has held that the grant made by the act of 1864 was of a moiety to each road of the lands so lying within the common limits of both, but held that in view of the fact of the withdrawal for indemnity purposes in behalf of the Omaha railroad in 1856, the grant to the Central company was defeated as to land so situated. (Wiscon sin Central R. R. Co., 10 L. D., 63; and Chicago, St. Paul, Minneapolis and Omaha R. R. Co., Id., 147.)

In the decision of the Department in the case of James McVicar (supra) it was said

In the adjustment of the Omaha grant said company was required to make selection of lands within the common limit equal to its moiety, to which it was given full title, the remaining lands being held to apply to the moiety for the Central company's grant, which being defeated by the reservation under the act of 1856, as before stated, were opened to entry. The land in question is a portion of that restored, and in completing entry therefor, McVicar was required to pay at the rate of $2.50 per acre or the double minimum price.

Section 4 of the act of Congress of May 5, 1864 (13 Stat., 66–page 67 thereof), provides:

And be it further enacted, That the sections and parts of sections of lands which shall remain to the United States within ten miles on each side of said roads shall not be sold for less than double the minimun price of the public lands when sold;