the final proof submitted by Gonzales in 1893 under the republication made in 1894. It seems to have been contemplated by your office order requiring new publication that the former proof submitted might be received, "if no protest or objection is filed." As a matter of fact, however, there was a protest and objection filed to its reception, upon grounds sufficient in themselves to have excluded such testimony in a trial of a cause in the courts. The further reason that neither the proof nor a copy thereof was presented before the probate clerk, where the hearing was had, so that counsel for Silva could inspect the same to enable him to make an intelligent examination of the witnesses, was, in my judgment, a sufficient reason for him to refuse to cross-examine them upon the facts testified to in the final proof. It would seem also that it was necessary for Gonzales to show in said final proof a compliance with the law between the date of the first submission thereof and the last. As the record stands now, the proof submitted in 1893 is presented under an advertisement made more than a year subsequent, and in the presence of an adverse claim and objection to the manner in which the proof was submitted. It would appear as if this proof was not sufficient.

In view of this conclusion, it is deemed advisable to remand the case, with instructions to require Gonzales to submit final proof as of the date of his second publication. Notice of this should be served on Silva that he may appear and protest against the same and offer such evidence as he may desire.

It may be well to add that all pre-emption laws were repealed by section 4 of the act of March 3, 1891 (26 Stat., 1095), with, however, this provision:

But all bona fide claims lawfully initiated before the passage of this act under any of said provisions of law so repealed may be perfected upon due compliance with law, etc.

Gonzales' pre-emption declaratory statement, alleging settlement in 1885, was not filed until March 6, 1891, subsequent to the repeal above mentioned. The burden is therefore upon him to prove settlement prior to said repeal and as alleged. There is no law in existence permitting pre-emption filings on March 6, 1891, unless the claim had been lawfully initiated prior to March 3, 1891, and if a settlement on the land was sufficient to bring the present filing within the terms of the proviso of said act, it must be shown by a clear preponderance of the evidence that there was a bona fide settlement, and that residence was maintained thereunder as contemplated by law. This is especially true as applied to the case at bar, because at the time Silva made homestead entry the records of the local office were clear as to the fact in controversy; his entry segregated the land, and any one attempting to impeach it by a pre-emption filing based solely upon prior settlement has the onus cast upon him to establish that fact.

The case is therefore remanded for further proceedings, as indicated herein.

PETER DHALIN.

Motion for review of departmental decision of April 24, 1896, 22 L. D., 496, denied by Acting Secretary Reynolds, August 8, 1896.

PRIVATE LAND CLAIM-HOMESTEAD ENTRY.

CONFIRMEES OF DURAN DE CHAVEZ GRANT v. SAABEDRA.

By the terms of section 14, act of March 3, 1891, a claim of ownership, asserted under a Mexican private land grant, cannot be considered as against a homestead entry on which final certificate has issued prior to the confirmation of said grant. Acting Secretary Reynolds to the Commissioner of the General Land Office, August 8, 1896. (E. B., Jr.)

The confirmees of the Nicholas Duran de Chavez grant, a Mexican land grant, appeal from the decision of your office of September 16, 1895, dismissing their protest, filed August 13, 1895, against the homestead entry of Roman Saabedra, No. 3042, made March 24, 1888, for the E. of the NE. of section 30, and the SE. of the SE. of section 19, T. 6 N., R. 2 E., Santa Fe, New Mexico, land district, upon which final certificate No. 1987 issued June 27, 1893.

Appellants assert ownership of the tract covered by Saabedra's entry, under the above named grant, which was made in June, 1739, and within the limits of which said tract lies, and under a decree of the court of private land claims rendered August 22, 1893, confirming the grant to the heirs and legal representatives of the grantee, said Chavez. This claim of ownership, together with the contention that all the lands embraced within said grant were reserved from governmental disposal by the eighth section of the act of July 22, 1854 (10 Stat., 308), and by withdrawal in pursuance thereof in June, 1890, by direction of the Commissioner of the General Land Office, is the basis of said protest. The ground of your office decision is that final homestead certificate having issued to Saabedra prior to the confirmatory decree aforesaid, his entry is validated by the fourteenth section of the act of March 3, 1891 (26 Stat., 854). The appeal insists that it was error to hold the entry valid under said section, reasserts the contention of the protest as above stated, and urges that therefore the final certificate issued to Saabedra is null and void.

Section fourteen of the act of March 3, 1891 (supra) provides, among other things:

That if in any case it shall appear that the lands or any part thereof decreed to any claimant under the provisions of this act shall have been sold or granted by the United States to any other person, such title from the United States to such other person shall remain valid, notwithstanding such decree.

The issuance of final certificate to Saabedra for said tract amounted to a sale or grant thereof within the meaning and intent of the 1814-VOL 23—13

language quoted. Such certificate vested a right to patent, or in other words, an equitable title, in him for all the interest of the United States in the said tract (Simmons v. Wagner, 101 U. S., 260; Deffebach v. Hawke, 115 U. S., 392; and Cornelius v. Kessel, 128 U. S., 456).

It is unnecessary under the view the Department takes of the effect of said fourteenth section, as applied to the facts of this case, to consider any claim of ownership under said Mexican grant, or the reservation contained in the eighth section of the act of July 22, 1854 (supra), and the said withdrawal thereunder. Furthermore, said eighth section was expressly repealed by the fifteenth section of the said act of March 3, 1891, thus terminating whatever jurisdiction this Department had thereunder relative to Spanish and Mexican land grants. It is not incumbent upon the Department to go behind the language above quoted from the act last mentioned to inquire whether the tract in question was public land, or into the title of the United States thereto at the time Saabedra made his final entry. That title, upon the payment by him of the lawful fees, and the issuing of the receiver's receipt and the register's final certificate prior to the decree of the court of private land claims, vested equitably in him and is validated by the express terms of the act.

The question whether Saabedra has complied with the provisions of the homestead law otherwise than as alleged in said protest is not before the Department. Subject to such question, his final certificate entitles him to patent for the said tract. The decision of your office is affirmed.

ALASKA-FINAL PROOF.

GEORGE W. GRAYSON.

The territory of Alaska is constituted a land district by statute, and final proof on entries therein must be made within said district.

Acting Secretary Reynolds to the Commissioner of the General Land Office, (P. J. C.)

August 12, 1896.

By the record it is shown that George W. Grayson made application to enter a tract of land, described as survey No. 53, on Wood Island, in Sitka, Alaska, land district, containing 4.88 acres. Notice of publication was published in a paper nearest the land, the first insertion being on July 22, 1893, and "the 21st day of December, 1893, at 10 o'clock A. M., is appointed for such proceedings before this (the local) office." The period of publication expired September 9th. On September 26, following, an affidavit, dated and executed at San Francisco, California, was forwarded to the local office, setting forth that all of the witnesses reside out of Alaska and at or near San Francisco, a

distance of about 1,784 miles from the land," and it is apprehended that said witnesses may be unable or will refuse to attend before said land office." On this affidavit, the local officers, on October 13, 1893, issued a commission

to the United States Commissioner for the Northern district of California, and the elerk of the United States circuit court of appeals for the ninth circuit, at San Francisco, California, to take the testimony

of the witnesses named. The testimony of the witnesses was taken before this commissioner, etc., November 23, 24 and 25, and, it is stated, "cash papers No. 5 issued December 27, 1893."

On consideration of this matter, your office by letter of April 8, 1895, directed the local officers to

require the claimant Grayson to re-advertise, post and publish notice of his intention to submit final proof, and to submit the same at the time and place advertised, and as required by said regulations, and if said final proof shall show that he is entitled to a cash entry, the certificate and receipt, which are herewith returned, will be corrected so as to describe the land by metes and bounds.

A motion for review of this decision was overruled, whereupon the claimant prosecutes this appeal, assigning errors as follows:

1. That such proof shows the bona fide occupation of said tract for trading

purposes.

2. That the taking of final proof at San Francisco under a commission issued by the register and receiver at Sitka is in pursuance of the practice of all courts and tribunals, for the taking of testimony of witnesses at a distance.

3. That the officer before whom such testimony was taken, and who administered the oaths therefor, was and is authorized by law as clerk of the circuit court of appeals to administer oaths in the district of Alaska

4. That the date mentioned in the published notice of intention to make final proof was notice to all contestants, protestants and adverse claimants, to appear before said land office at the date advertised; that in the event of any such adverse claimants appearing, of course such person would be entitled to cross-examine the witnesses, whose testimony is returned with the commission; that such testimony taken without such appearance of an adverse claimant should be received as evidence in the case; that the fact of no adverse claimant appearing, renders it immaterial what competent officer took the same, so that it was in pursuance of the order of the register and receiver of the Land Office.

5. That it is impracticable for claimants at the westward in Alaska to make a trip of 1500 miles to Sitka land office to submit their final proofs, especially as the parties interested and the witnesses to be examined are mostly residents of the City of San Francisco, and make their summer occupations on the coast of Alaska, by direct trips to and from said City of San Francisco.

6. That it appears from the affidavits filed with the said proof that the notice of intention was posted on the land long prior to the date advertised for taking the same and remained so posted long subsequent to the taking of said proof.

7. That the act of March 3, 1891, allows the Hon. Secretary to establish such regulations with reference to taking final proofs under said act as he may deem proper; that the regulations of June 3rd, 1891, can be modified, if necessary, by said Secretary, the officer promulgating the same, to conform to the necessities of claimants making proof.

8. That the readvertisement and posting of notice of intention would be an onerous and unnecessary expense, as shown by the fact that no opposition was made by

any contestant, protestant or adverse claimant to the acceptance of such proof on behalf of claimant at said land office, at the date named in the published notice of intention, or since filed therein.

By section 8, act of May 17, 1884 (23 Stat., 24), the district of Alaska is "created a land district, and a United States land office for said district is hereby located at Sitka." There is no law by which final proof on entries in that Territory may be made outside of the land district thus created. The universal rule has been that final proof must be made in the land district where the land is situated, and at the time and place, and before the officers, named in the notice. This is specifically contemplated by rule 22 (12 L. D., 591), of the circular of "nonmineral entries in Alaska," which provides that:

If upon the day appointed for making proof and payment for any tract of land by a person, association or corporation, any other person or the representative of any association or corporation, should appear and protest against the allowance of the entry, such protestant should be heard and permitted to cross-examine the claimant and his witnesses, and the complaint and the facts thus developed will be duly considered by the ex officio register and surveyor-general and such action taken as they may deem proper. Should the protestant desire to carry his action into a contest so as to introduce the testimony of witnesses either for the government or in his own behalf, he should be required by said officers to file a sworn and corroborated statement of his grounds of action, and that the contest is not initiated for the purpose of harassing the claimant and extorting money from him under a compromise, but in good faith to prosecute the same to a final determination; and this affidavit being filed, the said officers will immediately proceed to determine the controversy, fixing a time and place for the hearing of the respective claims of the interested parties, giving each the usual notice thereof and a fair opportunity to present their interests, in accordance with the principles of law and equity applicable to the case, as prescribed by the rules for the conduct of such cases before registers and receivers of other local offices.

It is difficult to conceive how any one claiming an adverse right to the land sought to be entered could protect himself when the witnesses appeared at a different time and place, outside the land district and gave their evidence. Such a method would be doing violence to the law and regulations, and is without authority or precedent. Your office judgment is, therefore, affirmed.

Occupancy of a town lot as the tenant of another, at the date of a townsite entry, confers no right to a deed upon such occupant.

Occupancy of a town lot as the basis of a claim thereto, to be effective, must be maintained up to the date of the townsite entry.

The municipality may become a party to a contest between applicants for a town lot with a view to the assertion of its own rights under section 4, act of May 14, 1890.