annexed); that on May 2, 1893, deceased conveyed to her by deed all his estate, personal and real; that in the year 1881 the said Hunt began to use and occupy the land in question, and in 1882 cultivated and raised grain on ten acres thereof; in 1883, he enclosed the land with other lands belonging to him, and the same was in his possession until his death in March, 1894, and since that date the land was in her possession; recites the fact of the land being within the limits of the railroad company's grant; also the decision of your office of February 3, 1887, awarding the land to the company; that relying on that decision the said Hunt purchased one hundred and twenty acres of the land (described) from the railroad company, on May 26, 1890, for the sum of $600, and at that time paid $120, balance payable May 26, 1895, with added interest at seven per cent; that said Hunt purchased the remaining forty acre tract (described) on November 12, 1890, for the sum of $200, paid in hand $40, and agreed to pay the balance with interest on November 12, 1895; that Maxwell began his contest against the company October 20, 1891, long after Hunt was in possession of the land and after Hunt had purchased the same from the company. Exhibits purporting to be copies of the contract of sale by the company, and copy of deed from her husband, accompanied her application to purchase, and the right of purchase was claimed under the 5th section of the act of March 3, 1887 (24 Stat., 556). The statements made in her application were corroborated.

The register and receiver denied Mrs. Hunt's application to purchase, and held Maxwell's final proof to await the final disposition of the case.

On appeal, your office, by decision dated May 21, 1895, affirmed the action of the register and receiver, and in doing so held, as a reason therefor,

that an original purchaser, after the passage of the act (March 3, 1887), in cases where the purchase was not otherwise shown to be bona fide, is not protected thereby.

A further appeal brings the case here.

The 5th section of the act of March 3, 1887 (supra), under which Mrs. Hunt claims the right of purchase, reads as follows:

That where any said company shall have sold to citizens of the United States, or to persons who have declared their intention to become such citizens, as a part of its grant, lands not conveyed to or for the use of such company, said lands being the numbered sections prescribed in the grant, and being coterminous with the constructed parts of said road, and where the lands so sold are for any reason excepted from the operation of the grant to said company, it shall be lawful for the bona fide purchaser thereof from said company to make payment to the United States for said lands at the ordinary government price for like lands, and thereupon patents shall issue therefor to the said bona fide purchaser, his heirs or assigns: Provided, That all lands shall be excepted from the provisions of this section which at the date of such sales were in the bona fide occupation of adverse claimants under the pre-emption or homestead laws of the United States, and whose claims and occupation have not since been voluntarily abandoned, as to which excepted lands the said pre-emption

and homestead claimants shall be permitted to perfect their proofs and entries and receive patents therefor: Provided further, That this section shall not apply to lands settled upon subsequent to the first day of December, eighteen hundred and eightytwo, by persons claiming to enter the same under the settlement laws of the United States, as to which lands the parties claiming the same shall be entitled to prove up and enter as in other like cases.

The fact that Hunt purchased the land from the railroad company subsequent to the date of the passage of the act of March 3, 1887, does not, as held by your office, preclude him or his heirs or assigns from the benefits of said act. Sethman v. Clise, 17 L. D., 307; Stephan et al. v. Morris, 21 L. D., 557.

The land was, 1: Of the numbered sections prescribed in the grant; 2: It is coterminous with constructed parts of said road; 3: It was excepted from the operation of the grant.

The applicant to purchase makes a prima facie showing that the land was sold by the company to her immediate grantor; that the sale was made in good faith, and that at date of the sale the land was not in the bona fide occupancy of an adverse claimant under any of the land laws. From this showing it also appears that the company sold the land to Hunt, who was in possession of the same at the date of Maxwell's alleged.settlement on the land; that the latter was cognizant of Hunt's claim and possession when he made settlement and brought his contest against the company. Maxwell's settlement, therefore, although made after December 1, 1882, would not, even under the second proviso to the 5th section of the act of 1887 (supra) defeat Hunt's right of purchase. Chicago, St. Paul, Minneapolis and Omaha Railway Company, 11 L. D., 607; Holton v. Rutledge, 20 L. D., 227.

The act of May 14, 1880 (21 Stat., 140), gives thirty days preference right of entry to a successful contestant, and Maxwell by his contest defeated the right of the company to the land, and under ordinary circumstances would be allowed the preference right. But if Hunt purchased the land in good faith from the company, and was in possession of the land under that purchase prior to Maxwell's settlement, and all other conditions referred to in said section 5 were in Hunt's favor, the preference right would not be awarded to Maxwell, for in such case he would be charged with notice and information of the open possession of the land by the purchaser from the company. Austin v. Luey, 21 L. D., 507.

A sufficient prima facie showing having been made of Hunt's right of purchase under the act of 1887 (supra), the case will be returned for a hearing, when evidence of Hunt's purchase, its good faith, etc., will be taken, and the case adjudicated in conformity with the principles hereinabove given.

The decision appealed from is accordingly modified.

SWAMP LANDS-INDEMNITY --WAIVER.

JEFFERSON COUNTY, ILLINOIS.

A claim for swamp indemnity must be rejected where it appears that the tracts of land employed as a basis therefor are included within a prior waiver of all claims thereto executed by a duly authorized agent of the county.

Secretary Smith to the Commissioner of the General Land Office, August (G. C. R.)

4, 1896.

Your office decision ("K") of June 26, 1895, holds for rejection the claim of the county of Jefferson, State of Illinois, for swamp land indemnity under the acts of March 2, 1855, and March 3, 1857.

The tracts of land employed as a basis for the claim are in number three hundred and seventeen, and fully described in the decision appealed from.

The reason given for rejecting the claim is, that Green P. Garner, the duly authorized agent of the county, on December 12, 1891, waived and abandoned "all right, title and interest to the same forever,” and on the same day duly acknowledged the waiver to be "his free act and deed."

Mr. Garner, the agent of the county, has appealed from your said office decision, and while he admits that he signed the waiver, he insists in avoidance of the same that the special agent representing the government did not act fairly with him, and refused to adjust the claim of the county as to certain tracts then under consideration, and admittedly swamp, unless Mr. Garner would waive the claim of the county to said three hundred and seventeen tracts.

It is rather strange that Mr. Garner should thus surrender the bulk of his claim for the sake of possible cash indemnity to about eightyeight tracts. He appears to have been acting for and on behalf of the county, whose agent he was. As such agent, he had full power to waive the claim of the county to the tracts in question, in order that there might be a complete adjustment of all the claims growing out of the swamp land act.

The waiver seems to have been a complete abandonment of the claim of the county to cash indemnity on the tracts waived, and Mr. Garner's reasons for asking that the same be disregarded can not be accepted. Nor does the fact that a few of the tracts were reported to your office by the United States surveyor-general in 1853 and 1854 as swamp lands confirm Mr. Garner in his right to indemnity therefor. Before cash indemnity can be allowed, "due proof" would still have to be made of their actual swampy condition at date of the grant; and Mr. Garner by his waiver acknowledges in behalf of the county that the tracts were not of the character contemplated in the swamp land act, and are, therefore, not the proper bases upon which to claim cash indemnity.

The decision appealed from is affirmed.

PENDING APPLICATION-MILITARY RESERVATION.

SPENCER v. STATE OF FLORIDA.

The departmental decision of June 22, 1893, refusing to recognize the private land claim of Jesse Fish, and directing that appropriate action be taken upon all pending claims to the lands embraced therein under the public land laws, did not contemplate final action thereon, until due opportunity had been given for the assertion of rights thereunder.

It is within the scope of executive authority to reduce the area of a military reservation, created by executive order, so as to exclude lands on which improvements had been made prior to the establishment of said reservation.

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

4, 1896.

(A. E.)

This is an appeal by Spencer from your office decision of July 27, 1895, rejecting his application to make homestead entry of lot 9 of Sec. 27 and the S. of the SE. of Sec. 28, Tp. 7 S., R. 30 E., Gainesville, Florida.

The records relating to this land show that on July 28, 1888, the State of Florida filed an application to locate the SE. and the W. 1⁄2 of the SW. of Sec. 28, with Palatka scrip. This application was rejected because the land was claimed as a private land grant from Spain made prior to 1763 to one Jesse Fish (see case of Jesse Fish, 16 L. D., 550). From this rejection the State appealed.

On June 22, 1893, (16 L. D., 550,) the Department declared the private land grant to be barred, because not asserted within the period specified by Congress, and directed your office to take such action upon the applications pending as might be right and proper. At that time. there was pending the application, among others, of George H. Spencer. Spencer claims to have made settlement and built a house and improved the lands in controversy, and to have made an application to enter the same as early as August, 1888; and again on January 24, 1890, and still again on May 14, 1895.

Your office does not appear to have passed upon the claims of Spencer until July 27, 1895, on which date you rejected his last application because the State had been allowed to select the SE. of Sec. 28 on May 18, 1895, and because lot 9 of Sec. 27 was included in a military reservation set aside by the Executive on May 14, 1893.

Spencer does not appear to have ever been given an opportunity to assert his claims to this land, and in not affording him this opportunity, the directions of this Department, in the Jesse Fish case, supra, were not carried out by your office.

You will order a hearing in this case, affording all parties an opportunity to be heard, with a view to determining who has the prior right to that portion of the land in controversy which lies without the military reservation, at the same time getting the status of Mr. Spencer's claim at the date when the military reservation was extended over it,

as it is quite clear that if he had improvements which were included within the military reservation, at the date when it was made, that it is within the power of the executive to reduce that reservation so as to exclude them.

Your office decision is thus modified.

RHODES ET AL. v. TREAS

Motion for review of departmental decision of December 28, 1895, 21 L. D., 502, denied by Acting Secretary Reynolds, August 8, 1896.

HOMESTEAD CONTEST-OKLAHOMA LANDS.

TIPTON . MALONEY.

One who assists another to procure an entry, by furnishing the money for the requisite fees, will not be permitted to attack the good faith of said entry in his own interest.

Entry within the territory during the prohibited period by passing through the country over a public highway does not operate to disqualify an applicant for land within the Sac and Fox country.

Secretary Smith to the Commissioner of the General Land Office, August 4, 1896.

(C. W. P.) On September 29, 1891, Landon P. Tipton made homestead entry, No. 8096, of lots 3 and 4 and the S. of the NW. of section 2, township 17 N., range 4 E., Guthrie land district, Oklahoma Territory.

On January 29, 1892, Tipton applied to enter the NE. 4 of section 11, township 17 N., range 5 E., which was rejected by the local officers. From this rejection Tipton appealed, and Thomas Maloney having made homestead entry, No. 10,531, on February 3, 1892, of said land, your office, on August 11, 1892, ordered a hearing, which was had on May 15, 1894, both parties appearing and submitting testimony; and on September 25, 1894, the local officers considered the case, and found (1) that Tipton had never established a residence on the land; (2) that Tipton entered into the lands embraced in the act of Congress of February 13, 1891, subsequent to the passage of said act and prior to twelve o'clock, noon, September 22, 1891, and is therefore disqualified to make homestead entry upon said land. Therefore they recommended that Maloney's homestead entry, No. 10,531, remain intact.

Tipton appealed.

Your office held as follows:

If (Maloney's) entry was made at the request of Tipton and for the purpose of protecting the land for him, he should not be permitted to say that Maloney was not a bona fide entryman, but a mere dummy, who had made an entry at his (Tipton's) instance. He should be estopped from so doing, so long as Maloney contends that it was made for his own use and benefit.