record showed that the corroborating witness had been convicted of perjury in swearing to the allegations contained in said affidavit of contest. I am of the opinion that such evidence of a court of record is properly admissible to impeach the testimony of the contestant, or his witnesses, in such a case. It rests within the sound discretion of the Commissioner of the General Land Office in the first instance, as to whether a hearing should be allowed on a contest affidavit; it is certainly within the supervisory authority of the Secretary of the Interior to take cognizance at any time of the action of a court of record convicting the contestant of the offense of perjury committed in the testimony offered by him in support of the allegations of his affidavit of contest.

The motion for review is hereby denied.

HEINRICHS . BAKKENE ET AL.

Motion for review of departmental decision of August 27, 1896, 23 L. D., 234, denied by Secretary Francis.

PRIVATE CASH ENTRY - ACT OF APRIL 7, 1896.

JARED MARTIN ET AL.

Applications for reinstatement of private cash entries under the act of April 7, 1896, should not be rejected on account of adverse claims, without due notice, and opportunity to be heard as against said claims.

The act of April 7, 1896, providing for the reinstatement and confirmation of certain canceled private cash entries on condition that such action should only be taken in the absence of intervening adverse claims, contemplated, by such exception, valid adverse claims, and inquiry as to the character of apparent adverse claims may therefore be properly made on application for action under said statute.

Secretary Francis to the Commissioner of the General Land Office, Decem(I. H. L.) ber 26, 1896. (E. B., JR.)

The joint resolution of May 14, 1888 (25 Stat., 622), withdrew from private sale public lands in the State of Arkansas and directed their disposition under the homestead laws after that date for the period therein indicated. On May 18, 1888, prior to the promulgation of said act and within said period, Jared Martin made cash entries in the local office at Camden, Arkansas, as follows: of the SE. and the SE. of the NE. of of the NW. and the W. of the NE. † W., 5th P. M.;

No. 18709, for the E. section 19, and the E.

of section 20, T. 13 S., R. 8

No. 18710, for the NW. and range; and

of the SE. of section 29, said township

No. 18711, for the NE. of the NE. NE. of section 32, and the NW. township and range.

of section 30, the NE. of the of the NW. of section 33, said

These entries were each canceled by your office September 12, 1891, for invalidity under said act.

On April 7, 1896 (29 Stat., 90), an act was passed confirming, and directing your office to reinstate, under certain conditions therein specified, upon application of the purchaser, his representatives or assigns, all such canceled entries in Arkansas, Alabama, and Mississippi, made after the passage of said joint resolution and prior to "its promulgation," May 29, 1888, provided no adverse claim attached "prior to such application." Thereupon, April 14, 1896, Horatio N. Hovey and John B. McCracken, comprising the firm of Hovey and McCracken, as assignees of said Martin, applied for reinstatement of the said cash entries, which application was by your office decisions of June 5, and 7, 1896, granted as to the tracts in sections 32 and 33, but was rejected as to all the other tracts on the ground that adverse claims thereto had attached as follows:

H. E. 16478, James P. Burton, E. of NW. and SW. of NE. 4, Sec. 20, August 30, 1892;

H. E. 17493, W. H. Bailey, NW. 1 of NE. 4, Sec. 20, and SW. of SE. 1, Sec. 17, May 20, 1894;

H. E. 17683, Lydia Minor, SE. of NE. 4, Sec. 19, November 9, 1894; H. E. 16639, Clifton H. Drinker, N. of SW. and NW. 4 of SE. 4, Sec. 29, December 19, 1892;

H. E. 16562, November 2, 1892, David C. Willett, E. . of SE. 4, Sec. 19, and E. of NE. 1, Sec. 30; patented June 29, 1895, as cash entry No. 19077.

From these rejections Hovey and McCracken appealed August 12, 1896.

On November 3, 1896, they filed an application for a hearing, alleging that they had no notice of said adverse claims nor any opportunity to contest the validity of the same prior to said decisions, and

that immediately after receiving notice of said decisions the applicants proceeded to investigate the circumstances connected with said adverse claims, and satisfied themselves from the facts which they were able to obtain that said claims were not made in good faith, but were fraudulently made for the purpose of obtaining possession of the timber upon the lands covered by said entries.

Wherefore they pray that a hearing be ordered and opportunity given them

to present the proofs to substantiate the claim made by them that said adverse claims are in fact and in law fraudulent and void, and that they are entitled to reinstatement of the entries covered by said appeal.

This application is sworn to by said Hovey.

The record before the Department sustains the allegation of rejection of the application for reinstatement, without actual notice of the adverse

claims or opportunity given to be heard against them. This was too summary action. Appellants should have been notified by your office, upon filing such application, of the existence of said adverse claims and given a reasonable time to show cause why their application should not be rejected. This much, at least, I am convinced was due them as applicants under the said act.

It is elsewhere further alleged by appellants that:

All said lands are flat, low and wet, unsuitable for farm lands, and of value only for the pine timber thereon at the time of entry. At and prior to the time when said pretended adverse claims attached they were all covered in whole or in part by pine timber suitable for lumber. Near said lands there was located shortly before the first of said entries was made the saw mill of the Gates Lumber Company. The adverse claimants, W. H. Bailey, Clifton H. Drinker, James P. Burton and David C. Willett, were employes of said Gates Lumber Company and came to that vicinity with said Lumber Company. When the Gates Lumber Company commenced preparations to extend its railroad south from its mill for logging purposes, the said Bailey, Drinker, Burton, Willett and other employes of said Lumber Company made application to enter lands located near the south terminus of said road, including the lands in question on this appeal. As soon as they could they sold or allowed the Gates Lumber Company to cut and haul off from said lands all the pine timber thereon that was valuable for sawing. Said David C. Willett went on the lands applied for by him and made small improvements and lived on the place until the timber was sold and cut and has not resided thereon since and is not now residing thereon nor in the county in which said land is situated. W. H. Bailey never resided on the land for which he applied, but soon after he made his entry be began cutting the pine timber on the land and allowed the Gates Lumber Company to take off all that was suitable for lumber. The only improvement ever made on his farm was the enclosing of about of an acre of land and the erection of a board barn. Said Bailey is not engaged in farming, but in hauling logs. No part of the land entered by Clifton H. Drinker has been cleared for cultivation or put in cultivation and no improvements of any sort have been made thereon, and no one lives there. While Burton has cleared a few acres of his land, and is living on the land, he took the land for the sake of selling the timber to the Gates Lumber Company, and did sell the timber and cut it off before he had any right or authority so to do. The entry made by Lydia Minor adjoined other land belonging to a kinsman of hers. The only improvements on said land consist of a small log cabin and stable and about fifteen acres fenced and in cultivation, and those improvements were not made by Lydia Minor, but were made by her kinsman by mistake, supposing that he was improving other land entered by himself, and the entry made by Lydia Minor was made in part for the purpose of giving him the benefit of that mistake and in part for the purpose of obtaining said pine timber and selling the same to the Gates Lumber Company. A large part of said timber has been cut and removed from said land, but not for the purpose or in process of clearing the land for cultivation.

Appellants further state that they are informed and believe that the Gates Lumber Company procured said parties to make the entries aforesaid in order that it might obtain the timber on said lands, and furnished the money for the expenses incident to the making of said entries.

These further allegations, as to matters of fact, are well supported by the affidavit of Frank Haynes, as surveyor of Drew county, Arkansas, wherein the said lands are situated, and the affidavit of said James P. Burton, except that his affidavit relates only to tracts covered by the entries of Bailey, Minor, Drinker and Willett.

Here are clear, positive, and specific allegations of fraud, which, if duly proven, will invalidate the homestead entries above indicated. These entries are apparently the only claims adverse to the said cash entries. I do not think it can be successfully maintained that after confirming and directing the reinstatement of such cash entries Congress by adding thereto the proviso "That no adverse claim has attached or shall attach prior to such application for reinstatement" (act of April 7, 1896, supra) intended that, ipso facto, an adverse claim of record should preclude an inquiry into its validity as against such application, or in other words, that such adverse claim as against such application should be conclusive whatever might be alleged or proven against its validity. To so hold would be, in effect, to impute an intention to Congress to uphold illegal claims and not only to condone fraud but to offer a reward for it, at least as against such applications. I am satisfied that by "adverse claims" in said proviso Congress intended iawful or valid adverse claims, only. No other intention could be imputed; to be successfully maintained otherwise, express words to that effect would be necessary.

Upon consideration of the premises the rejection of the application for reinstatement is vacated and your office is directed to order a hearing as applied for to determine whether, all or singular, the said homestead entries Nos. 16478, 17493, 17683, 16639, and 16562, of said Burton, Bailey, Minor, Drinker and Willett, respectively, were made in bad faith and for speculative and fraudulent purposes by the several parties, as charged by said Hovey and McCracken.

Although by the issuance of patent for the tract embraced by Willett's entry this Department is deprived of jurisdiction over the title thereto, it is still desirable that all the facts touching the charges against the same may be disclosed for the further guidance of the Department relative to the institution of suit to vacate the patent in the event the evidence produced at the hearing may seem to require a recommendation to that effect.

NEWMAN C. BARNES.

Motion for review of departmental decision of August 28, 1896, 23 L. D., 258, denied by Secretary Francis, December 26, 1896.

RAILROAD LANDS-ACT OF AUGUST 5, 1892.
MADS JENSEN.

The operation of the remedial act of August 5, 1892, as to an entry that falls within the terms of said act at the date of its passage, is not defeated by a subsequent relinquishment of the entry.

Secretary Francis to the Commissioner of the General Land Office, Decem(I. H. L.) ber 26, 1896. (R. W. H.)

In your letter of July 15, 1896, is submitted for departmental consideration the application of Mads Jensen to have his canceled homestead entry for the W. of the NW. 4 of Sec. 9, T. 139 N., R. 47 W., Fargo land district, North Dakota, reinstated, and you ask to be advised respecting the same.

Said tract of land is situated in North. Dakota and is within ten miles of the line of the St. Paul, Minneapolis and Manitoba Railway Company in Minnesota, as shown by its map of definite location.

The land department held that the grant, made to aid in the construction of said road, by the act of March 3, 1857 (11 Stat., 195), and the act of March 3, 1865 (13 Stat., 536), being to the Territory and State of Minnesota, respectively, was limited to the confines of said Territory and State, and consequently did not pass title to any of the odd numbered sections so situated in Dakota.

Under this ruling many persons were allowed to settle upon, enter and improve the lands in Dakota within ten miles of the line of said road, among whom was Nehemiah Davis, who, on July 28, 1890, made timber culture entry for the tract heretofore described.

Subsequently, on December 22, 1890, the supreme court, in the case of the St. Paul, Minneapolis and Manitoba Railway Company v. Phelps (137 U. S., 528), decided that the ruling of the land department in relation to the odd numbered sections within ten miles of the railroad, situated in Dakota, was wrong, and that title thereto vested, under the grant, in said company upon the definite location of its line of road, which was made prior to May 25, 1869.

In this condition of affairs, the act of August 5, 1892 (27 Stat., 390), was passed, for the purpose of protecting those, who, in good faith, had gone upon said lands, from the hardship of being deprived of the same under the circumstances stated.

It was therein enacted, in substance, that the Secretary of the Interior should cause to be prepared and delivered to the railway company a list of the said odd numbered sections, or parts thereof, which, prior to January 1, 1891, any person had purchased, occupied, or improved in good faith, under color of title or right to do so, derived from the laws of the United States relating to the public domain, and upon the relinquishment by said company to the United States of its claims to the lands described in said list, the right and title of the railway company