The Union Pacific Road is the successor to both lines, and by reason thereof the real party in interest, and no reason is apparent why a patent should not issue to it, if in law the land was included in the grant and passed to either or both of the roads as a whole or as moieties to each of them.

The land in question was included within the withdrawal of July 9, 1863, and within the limits of the grant as extended by the act of July 2, 1864. This withdrawal remained in force until the definite location of the respective roads, when the land in question passed under the grant to them, for at the time Frederick Abramson made his homestead entry, May 28, 1868, the land covered by his entry was included in said withdrawal. His entry was allowed without authority of law, as the land was not subject to entry by reason of being withdrawn for the benefit of the railroad companies under their grants.

It is a well established doctrine in this Department as well as the courts, that no rights, either legal or equitable, as against a railroad grant are acquired by settlement upon lands withdrawn by executive order for the benefit of such grant. Caldwell v. Missouri, Kansas and Texas R'y et al., 8 L. D., 570; Shire et al. v. Chicago, St. Paul, Minneapolis and Omaha R'y Co., 10 L. D., 85; Ard v. Missouri, Kansas, and Texas R'y Co., 14 L. D., 369; Woolcott v. Des Moines Co., 72 U. S., 681; Woolsey v. Chapman, 101 U. S., 755; and United States v. Des Moines Navigation and Railway Co., 142 U. S., 510.

The case of Kansas Pacific Railway Company v. Dunmeyer (113 U. S., 629), cited in your office decision is not in conflict with the foregoing authorities.

By the third section of the act of 1862, supra, there was excepted from the grant all lands which at the time the definite location of the road is fixed had been sold, reserved, or otherwise disposed of, and to which a pre-emption or homestead claim had attached. Abramson's homestead entry was made after the land was reserved for the purposes of the grant and while such reservation was in full force, and was therefore void and could not serve to except the land from the operation of the grant.

It follows that the departmental decision heretofore rendered in this case was erroneous. It is accordingly recalled and set aside, and your office decision appealed from is reversed.

CONFIRMATION—SECTION 7, ACT OF MARCH 3, 1891.

CASTELLO v. BONNIE.

The cancellation of an entry without notice to the entryman is void for the want of jurisdiction, and an entry so canceled at the passage of the act of March 3, 1891, is in law an existing entry, and confirmed by section 7, of said act, if otherwise within the provisions of said act.

Secretary Smith to the Commissioner of the General Land Office, August (W. A. L.) 4, 1896. (J. L. McC.)

Your office, by letter of April 29, 1896, transmitted the papers in the case of Patrick Castello v. William Bonnie, and the Boston Safe Deposit and Trust Company, transferee, involving Bonnie's pre-emption cash entry for the SE. 4 of the NE. 4 of Sec. 30, and the S. of the NW. 4, and the NE. of the SW. 1, of Sec. 29, T. 59 N., R. 17 W., Duluth land district, Minnesota.

The entry in question was canceled upon the report of a special agent, without notice to the entryman. After such cancellation, Castello was allowed to make homestead entry of the land. On October 23, 1891, your office reinstated Bonnie's entry-deciding further that as two entries of the same land at the same time were not permissible, and as Bonnie's entry had been reinstated because of having been canceled illegally, Castello's entry must be canceled.

On June 16, 1891, the Boston Safe Deposit and Trust Company filed an application to intervene, and asked for the confirmation of Bonnie's entry under section 7 of the act of March 3, 1891, alleging that, after the issuance of the receiver's receipt (March 21, 1885), and prior to March 1, 1888, it became a bona fide incumbrancer of said land for a valuable consideration. Your office, on June 17, 1891, granted the application; and on October 23, 1891, your office held that the case came within the provisions of said act. From said decision Castello appealed to the Department, which, on October 11, 1892 (15 L. D., 354), held that the cancellation of Bonnie's entry was an error, and its reinstatement was proper; nevertheless Castello's entry ought not to have been canceled without notice to him, and an opportunity being afforded him to be heard in its defense; and inasmuch as no such opportunity had been afforded him, he should be allowed sixty days after notice of the decision to show cause why his entry should not be canceled. You were further directed that if, in your judgment, sufficient cause be shown, you should re-adjudicate the case accordingly; if he failed to make such showing, the decision of your office holding that the case came within the provisions of said section 7 should be affirmed, and the entry confirmed.

Your office issued a rule as above directed upon Castello, who thereupon filed an affidavit alleging that Bonnie's entry was not made in good faith, but in the interest of the C. N. Nelson Lumber Company, and that said company was not therefore a bona fide purchaser; also that the Boston Safe Deposit and Trust Company was not a bona fide incumbrancer, and he asked for a hearing at which to prove such to be the facts. This application your office denied, on February 10, 1893. Castello appealed to the Department, which, on August 7, 1894, directed that the case

be remanded to the local officers for a hearing upon the allegation that Bonnie's entry was made in the interest of the C. N. Nelson Lumber Company, and upon any

other charge that may be then presented tending to show that Bonnie's entry was properly canceled.

A motion for review of the above departmental decision was filed, but denied on April 12, 1895 (20 L. D., 311).

Your office decision of April 29, 1896 (supra), in adjudicating the case upon the basis of the testimony taken at the hearing ordered in accordance with the departmental directions above referred to, found as a fact "that Bonnie had never complied with the law in any respect. The facts stated in his final proof must have been untrue, and his entry, therefore, fraudulent and invalid;" and adds that,

inasmuch as Bonnie's entry has not been reinstated, and no reason appearing why it should be, it would be useless, as well as a disregard of said departmental ruling, to further consider the case. Said entry will therefore remain canceled.

1896—

The above conclusion was correct, in view of the departmental rulings then subsisting. Recently, however-to-wit, on February 17, 1896the Department has decided the case of Drew v. Comisky (22 L. D., 174), which is in all essential respects similar to the one under consideration. In that case the departmental decision of Castello v. Bonnie, on review (20 L. D., 311, supra), was discussed. The statement in said last named decision that

Such cancellation, without giving such notice (that is, cancellation on report of a government agent, without giving the entryman his day in court), was improper, and to all intents and purposes, so far as the transferee is concerned, it may be considered as an existing entry,

was quoted, and re-affirmed as being correct doctrine. The further statement in said decision that

The reinstatement of the entry on the record would give the transferee only such right as he would have had in case notice had been given,

was quoted, but declared to be erroneous. It was further decided regarding Bonnie's entry that, inasmuch as it had already been held therein that so far as the transferee is concerned, it may be considered an existing entry," and that, if existing, it was protected under the law, and should be confirmed. Finally said departmental decision in Castello v. Bonnie was explicitly overruled, in so far as it conflicted with the ruling in said case of Drew v. Comisky.

The case now under consideration was thus explicitly decided in advance. The entry was an existing entry at the date of the passage of the act of March 3, 1891, and was of a character to be confirmed thereunder.

Your office decision of February 25, 1896, to the effect that Bonnie's entry should remain canceled, is therefore reversed. Your office decision of October 23, 1891, holding that the case comes within the provisions of said act, is hereby affirmed, and the entry will pass to patent accordingly.

PATENT-JURISDICTION=CONFLICTING ENTRIES.
FIELDS. KENEDY.

The inadvertent issuance of a patent on an entry that is in partial conflict with a prior entry deprives the Department of further jurisdiction over the tract in controversy; and a final certificate therefor, subsequently issued on the earlier entry, must be canceled, though the original entry on which such certificate rests may be permitted to remain of record.

Secretary Smith to the Commissioner of the General Land Office, August (W. A. L.) 4, 1896. (C. W. P.)

On February 16, 1880, Nelson Fields made homestead entry 5391, of the W. of the W. of section 24, township 8 S., range 14 E., St. Helena meridian, New Orleans land district, Louisiana.

On May 18, 1880, Samuel Kenedy made homestead entry 5486 of the S. of the SW. of Sec. 13, the NW. of the NW. of Sec. 24, and the SE. of the SE. of Sec. 14, of the same township and range, on which final proof was made and final certificate 2015 issued July 5, 1887, patent issuing thereon June 25, 1890.

On August 3, 1891, Nelson Fields made final proof on his homestead entry, and final certificate issued thereon August 7, 1893.

On February 20, 1894, your office notified Fields that his entry was held for cancellation as to the NW. of the NW. of Sec. 24, for the reason that it conflicts to that extent with Kenedy's patent.

Nelson Fields appeals to the Department.

The record shows that Kenedy made his entry of the land in question more than three months subsequent to Fields' entry which segregated the land, and Kenedy's entry was improperly allowed. patent having issued to Kenedy, the Department cannot now determine the conflicting claims of the parties respecting the land. If the patent issued to Kenedy is invalid, and Fields has been injured by the action of the Land Department, the courts are the proper tribunals to adjudicate the matter.

But it appearing that Fields' final proof was made and final certificate issued thereon subsequent to the issuance of patent to Kenedy, the final certificate issued to Fields should be canceled, but his entry will be allowed to remain of record.

Your office decision is modified accordingly.

DAWSON ET AL. . HIGGINS.

Motion for review of departmental decision of May 13, 1896, 22 L. D., 544, denied by Secretary Smith, August 4, 1896.

DONATION CLAIM-HEIRS-FINAL PROOF-ADVERSE CLAIM.

STONE ET AL. . CONNELL'S HEIRS.

On the death of a qualified donation claimant who has complied with all the requirements of the law in the initiation of his claim, and subsequent maintenance thereof, up to the date of his death, the heirs of such claimant become qualified grantees irrespective of any question as to their citizenship. Under section 8, act of September 27, 1850, proof of compliance with law up to the date of the donee's death is all that is required in the matter of final proof on the part of the heirs, and it is not material in such case by whom said proof is submitted.

A plea of equitable estoppel set up by intervening adverse claimants, as against the rights of heirs under a donation claim, on account of their alleged failure to assert their rights in due season, and thereafter prosecute their claims with diligence, cannot be considered by the Department, if it finds that under the donation law said heirs are entitled to a patent; and especially is the Department limited to such course, in view of the fact that said law prescribes no limit of time within which final proof may be made by the claimant or his heirs at law. The provisions of the act of July 26, 1894, are not applicable to a donation claim pending before the Land Department at the passage of said act, and in which final proof had been submitted prior thereto.

Secretary Smith to the Commissioner of the General Land Office, August (W. A. L.)

4, 1896.

(A. B. P.)

The land involved in this case consists of parts of sections 25 and 26, T. 20 N., R. 5 E., Olympia land district, Washington, known as the Michael Connell donation claim, and contains three hundred and twenty acres.

It is shown by the record that on December 12, 1853, Michael Connell filed with the proper officer his notification, No. 518, claiming the land in question under the donation act of September 27, 1850 (9 Stat., 496). By that act, after providing, among other things, for the appointment of a surveyor-general for the Territory of Oregon, then embracing this land, it was (section 4) declared:

....

That there shall be, and hereby is, granted to every white settler or occupant of the public lands, above the age of eighteen years, being a citizen of the United States, or having made a declaration according to law, of his intention to become a citizen, now residing in said Territory, or who shall become a resident thereof on or before the first day of December, eighteen hundred and fifty, and who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act, the quantity of one half section, or three hundred and twenty acres of land, if a single man, and if a married man, or if he shall become married within one year from the first day of December, eighteen hundred and fifty, the quantity of one section, or six hundred and forty acres, one half to himself and the other half to his wife, to be held by her in her own right.

It was further provided (sections 6 and 7) that the settler, within certain prescribed periods, respectively, should notify the surveyor-general of the tract claimed under the act, and submit proof of the fact and time of commencement of his settlement and cultivation; and also, that