The record shows that Kelley made homestead entry of above tract October 22, 1881, made proof and received final certificate November 29, 1886.

The proof not being satisfactory to your office, a call was made upon the homesteader to furnish a duly corroborated affidavit, testifying to certain facts referred to in said call.

Upon an examination of the facts contained in said affidavit, your office, on June 16, 1887, rendered a decision, which concluded as follows:

In my opinion Mrs. Kelly has not acted in good faith, and never had any intention of settling upon the land permanently, and the meager character of the improvements, and the utter absence of all farm machinery and stock still further convinces me that she is seeking to obtain title to the land by a colorable compliance with the law only and through fraud. Therefore her final proof is rejected and her original homestead entry and final certificate are held for cancellation.

August 4, 1887, Lydia Kelley was duly notified of the above decision, and one week thereafter her attorney presented at the local office a relinquishment of all her right, title and interest in and to said tract, a quitclaim deed of the same to the United States, an abstract of title thereto, and an application for the repayment of the fees and commissions paid on her said homestead.

January 23, 1888, your office denied the application for repayment, on the ground," that the law governing the return of fees and commissions. does not provide repayment in cases of this character." From this decision Kelley appealed to the Department.

The act of June 16, 1880 (21 Stat., 287), provides that:

In all cases where homestead, or timber culture, or desert land entries, or other entries of public lands, have heretofore or shall hereafter be canceled for conflict, or where for any cause, the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money and excess paid upon the same, upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said lands.

It is evident from the language of the statute, that the case at bar does not come within the purview of the above act. Kelley upon being informed of your decision rejecting her final proof and holding her original homestead entry and final certificate for cancellation, voluntarily relinquished her claim. It is clear that whatever loss she may sustain was the result of her fraudulent effort to obtain title to public land without complying with the provisions of law, and the Department will not under such circumstances grant the relief prayed for.

Your decision is accordingly affirmed.

RAILROAD GRANT-ACT OF MARCH 3, 1887.

PARKER . NORTHERN PACIFIC R. R. Co.

The relinquishment of an entry, on receipt of notice from the local office that it had been suspended under departmental direction, on account of conflict with a railroad grant, is not such a "voluntary" abandonment as will bar re-instatement under the act of March 3, 1887.

The act in question is remedial in its nature, and should be construed liberally in favor of the bona fide settler as against a grantee of the government.

Secretary Vilas to Commissioner Stockslager, March 2, 1889.

This is an application by John G. Parker, for the re-instatement of his homestead entry No. 1126, On lots 1 and 2 and S. NW. Sec. 31, T. 21 N., R. 5 E., Olympia district Washington Territory, and is made under section 3, of the act of March 3, 1887, entitled "An act to provide for the adjustment of land grants made by Congress to aid in the construction of railroads, and for the forfeiture of unearned lands and for other purposes." (24 Stat., 556).

So much of section 3 of the act as is material to the present case is as follows:

That if in adjustment of said grants it shall appear that the homestead or pre-emption entry of any bona fide settler has been erroneously canceled on account of any railroad grant or the withdrawal of public lands, from market, such settler upon application shall be re-instated in all his rights and allowed to perfect his entry by complying with the public land laws: Provided, That he has not located another claim or made an entry in lieu of the one so erroneously canceled: And provided also, That he did not voluntarily abandon said original entry...

The lands involved in the application and described above are within the granted limits of the grant of July 2, 1864 (13 Stat., 365), to the Northern Pacific Railroad Company, withdrawal of which took effect on filing map of general route, August 13, 1870. They are also within the limits of the withdrawal for the amended location of the general route, which it was claimed took effect, July 19, 1879. Parker's entry was made the same day, August 13, 1870, that the rights of the company attached under said first named withdrawal, and, as has been held by this Department, said "entry must be regarded as the superior right and its existence "at the time of filing the map of general route excluded the tracts from the said withdrawal of August 13, 1870." Northern Pacific R. R. Co. v. Parker and Hopkins (2 L. D., 569); St. Paul Minneapolis & Manitoba Ry. Co., v. Gjuve (1 L. D., 331); Talbert v. Northern Pac. R. R. Co. (2 L. D., 536).

July 11, 1873, however, Parker relinquished his entry and abandoned the lands, and said entry was canceled, July 22, 1875, and it was held by this Department, April 15, 1884, in the case of the Northern Pacific R. R. Co. v. Parker and Hopkins, supra, that by said cancellation, the land covered by the entry "passed to the United States and was included in said withdrawal of July 19, 1879."

The statute above quoted under which the application under consid eration is made, provides for the re-instatement of the homestead or pre-emption entries of bona fide settlers, which have been "erroneously canceled on account of any railroad grant or the withdrawal of public lands from the market," provided, among other things, such settler "did not voluntarily abandon said original entry." The application of Parker is resisted by the railroad company on the grounds-1st. That the entry was not "erroneously canceled" because the cancellation "followed as a consequence of a relinquishment" voluntarily made by Parker, and, 2nd. That Parker "voluntarily abandoned said original entry" and hence "comes within the exception" of said proviso.

Parker set forth in his application "that in May 1873, while improving and cultivating said land under the homestead law, he received notice from the local officers, to the effect, that said land was within the grant of the Northern Pacific R. R. Co., under the 6th section of the act of incorporation of said company, approved July 2, 1864, and that his homestead entry had been suspended, and if said entry was found within the grant, it would be canceled; that having ascertained from the register and receiver that they were acting under instructions of the Commissioner, by approval of the Secretary, and having no redress therefrom, he accordingly relinquished his claim to said land, and that said relinquishment was made under duress and compulsion at the instance of the Department of the Interior, and was not voluntary."

From a copy of the blank used by the local officer in giving such notice, it appears that the notice to Parker referred to by him in his application, recited that "pursuant to instruction from the Commissioner of the General Land Office " he (Parker) was notified that the Hon. Secretary of the Interior has decided relative to the rights of the Northern Pacific R. R. Co., under the 6th section of the act organizing said company, approved July 2, 1861, that said section operates as a withdrawal of the lands within the limits of such grant from the day of 187- . . . and then concluded with notice that "whereas" he had "under date of day of 1870, made homestead entry" on land "embraced within said grant, therefore his said entry was sus pended," etc.

Since the cancellation of his entry, Parker has twice made application to purchase the land under the second section of the act of June 15, 1880 (21 Stat., 237),—the first time, July 9, 1885, and the last time in 1887-both of which applications were denied; and July 14, 1888, he made his present application for re-instatement of his entry under the third section of the act of March 3, 1887. The last application is transmitted without recommendation by your office to this Department for its consideration.

Parker's entire conduct shows, that he has throughout desired to secure the land and would not have abandoned it or relinquished his entry" voluntarily." The character of the notice served on him was such

as to convince him, that by an express decision of this Department relating to the land covered by his entry, it would be impossible for him to hold it, and it would therefore be a useless expenditure of time and money to attempt to do so. This, if it did not, in contemplation of law amount to duress or compulsion, was at least sufficient to render the act of relinquishment and abandonment involuntary within the meaning of the statute, which is remedial in its nature, and should be liberally construed in favor of the bona fide settler claiming its benefits as against a mere grantee of the government.

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The relinquishment of the entry was made because of the supposed superiority of the rights of the railroad company under its said grant, and the cancellation of the entry following the relinquishment was in reality on account of" said grant. The right of Parker under his entry was, however, superior to that of the company, under its grant, as hereinbefore shown, and therefore said entry was "erroneously canceled on account of" said grant.

I am of the opinion, that the application for re-instatement of the entry of Parker should be granted, and you are accordingly so instructed.

CALIFORNIA SCHOOL INDEMNITY—ACT OF MARCH 1, 1877.

HAMBLETON . DUHAIN ET AL.

The cancellation of an indemnity selection on the erroneous conclusion that the State "had not sold the land, or if it had, the purchaser did not desire to perfect his claim thereto," would not divest a purchaser of his possession, or right of purchase under the act of March 1, 1877.

The rejection of an application to purchase under said act will not bar a second application, by the same party, based on a different claim of right.

An applicant for the right of purchase under said act, may be regarded as “an innocent purchaser for valuable consideration," if his vendor held without notice of defect in the State's title.

Secretary Vilas to Commissioner Stockslager, March 2, 1889.

In the case of James W. Hambleton v. C. C. Duhain and James Whalen, appealed by the defendants from the decision of your office dated November 24, 1886, the record shows the following facts:

On May 30, 1861, the State of California selected the SE., and the SE. of the SW. of Sec. 1, and the NE. of the SW. of Sec. 12, all in T. 9 N., R. 2 W., M. D. M., California, in lieu of the same quantity of land in Sec. 16, T. 24 N., R. 6 W., same town and range, at that time included in the Nome Lacke Indian reservation. This selection was approved to the State January 20, 1873. Under proper instructions said reservation was surveyed in 1857, but the land embraced in the survey, from some cause, was never set apart as an Indian reservation by executive order, and it was formally abandoned on July 7, 1870. H. I. Willey, the surveyor general of California, in a letter, dated January 23, 1884,

Ex. D.,” states that the records of his office show approved locations made by different parties in 1871 and 1872 for said section sixteen, and that two hundred acres of the same were patented by the State December 11, 1874, to one of said locators, and that the balance was so patented to the other locators September 30, 1882. On June 3, 1874, the State of California patented the land in controversy to the heirs of M. A. Wood. On March 9, 1877, Kate V. Wood deeded an undivided one-third interest in said lands to James W. Hambleton, and on September 22, 1879, Edward C. Wood, deeded to the same party an undivided one-third interest in same. On November 18, 1881, Hambleton, by his attorney, applied to purchase the land in controversy under the provisions of the act of March 1, 1877 (19 Stat., 267), relating to indemnity school selections in the State of California. This application was rejected by the local officers on two grounds: 1st, because their records did not show that the State's selection was invalid; and, 2d, because Hambleton was the owner of only two-thirds of the State's title. On appeal to your office the decision was, on January 26, 1883, affirmed, on the ground last stated. No appeal was taken from that decision. On January 23, 1883, the State's selection of the land in controversy was canceled by your office and the State surveyor-general duly notified of the action taken, and he was requested to notify the vendees of the State, if there should be any, that they would be allowed ninety days from receipt of notice within which to make the required proof, and to perfect their titles under the provisions of the second section of said act.

The State surveyor-general, through inadvertence, failed to give Hambleton this notice till subsequent to July 7, 1884. He was, however, notified in February, 1883, by the local officers of said cancellation of the State's selection.

On April 25, 1884, your office addressed the local officers as follows: As no application to purchase the land (the land in controversy) has been received through your office, it is to be presumed that the State had not sold the same; or if it had, the purchaser did not desire to perfect his title thereto in the manner provided; and in view thereof I am of the opinion that the said land should be treated as vacant public land.

On May 12, 1884, Duhain entered one hundred and sixty and Whalen eighty acres of the said land under the homestead law.

Hambleton having in 1882-3 acquired the remaining undivided onethird interest in the State's title, made a second application to purchase early in June, 1884, which was rejected by the local officers because of said homestead entries.

On June 23, 1884, the State surveyor-general "requested that the case might be re-opened to enable him to protect the holders of the State titles," which request was granted July 7, 1884. On October 6, following, Hambleton made a third application to purchase, which was rejected by the local officers on the same grounds they rejected his second application. On appeal from this decision you find that Hamble