It was quite doubtful upon the testimony whether said defendant showed settlement on the tract in question, but I am relieved of considering the question of fact, by the former admitted declaratory statement, followed by homestead entry, final proof and certificate.

Section 2261, of the Revised Statutes, provides that

When a party has filed his declaration of intention to claim the benefit of such provisions for one tract of land, he shall not file, at any future time, a second declaration for another tract.

It is claimed by defendant that he has not had, by his first filing, the benefit of the pre-emption law, but the evidence shows that this is not true, and it is quite a suggestive fact that on April 20, 1892, the very day when he was endeavoring to make final proof on his second entry, following his second declaratory statement, a patent issued upon the original claim for which declaratory statement was made August 1, 1884, and homestead entry June 18, 1890. The original homestead entry was allowed without formal proceedings for transmutation, but it was treated as such, and credit was given Shafer for residence from the date of settlement.

Under these circumstances, it must be held that said defendant had exhausted his pre-emption right previous to the initiation of the claim to the land in controversy in this cause, even though settlement had been satisfactorily proven. Brooks v. Tobien (4 L. D., 560); Todd Knepple (5 L. D., 537); Bywater v. Hill, et al. (5 L. D., 15). Your office decision is therefore affirmed.

AMENDMENT OF CASH ENTRY-SECTION 2372 R. 8.

B. F. BYNUM ET AL.

An application under section 2372 R. S., for the amendment of a cash entry must be supported by the affidavit of the original purchaser or his legal representative. Secretary Smith to the Commissioner of the General Land Office, August (J. I. H.) (J. W. T.)

18, 1894.

I have examined the case presented by the appeal of B. F. Bynum and W. H. Hall, from your office decision of April 22, 1893, rejecting their application to amend cash entry No. 32201, made July 26, 1860, for the NE. of the NW. 4, and the SW. 4 of the NE. of Sec. 11, T. 4 N., R. 5 E., Huntsville land district, Alabama, so as to have that portion of said entry described as the SW. 4 of the NE. 4, changed, so as to describe it as the N. of the NW. of the same section.

Said application to amend, was made in March, 1893, by affidavit, a copy of the material portion of which is in the words and figures following:

STATE OF ALABAMA,

County of Jackson:

W. H. Hall (assignee of James M., deceased,) and Benjamin F. Bynum.

L. F. Knight and Benjamin F. Bynum being sworn on oath, say that said Bynum, are the same persons who made graduation cash entry No. 32201, for the NE. † of the NW. and the SW. of the NE. of Sec. 11, T. 4 N., R. 5 E. That said entry was a mistake as to the SW. of the NE. that they intended to enter, and thought they did enter the N. of the NW. † of said section, township and range. That the mistake, we suppose, was made by the scribe in writing down the numbers; that we have been paying taxes upon, and cultivating said N. of the NW. 4, and claiming the same ever since. We have never claimed the SW. of the NE. 1, and further, that we have never sold the SW. of the NE. 1, nor any of said land above mentioned, and we desire that our said entry be changed to the N. 4 of the NW. †, and patented to us.

Section 2372, United States Revised Statutes, authorizing amendments of entries, provides, that:

Where the certificate of the original purchaser has not been assigned, or his right in any way transferred, the purchaser, or in case of his death, the legal representatives, not being assignees, or transferees, may in any case, coming within the provisions of this section, file his own affidavit, etc.

The record shows that this was a graduation cash entry, jointly made, of the SW. of the NE. 4, by James M. Bynum and Benjamin F. Bynum. It also shows in the caption of the affidavit hereinbefore set forth, that said James M. Bynum, one of the original entrymen, is deceased, and that he was so deceased at the time of the making of this application. The statute in terms required the affidavit of the original purchaser, in support of the claim for amendment. There is, however, only the oath of Benjamin F. Bynum, one of the entrymen, who does not swear that he is agent or representative of the deceased James M. Bynum, whose "legal representative", under the statute, is the only one who could be sworn in this behalf.

As James M. Bynum could not make the necessary affidavit, under the statute, and his "personal representative" has not done so, neither he nor his heirs nor representatives are here upon this record, asking for the amendment sought by the application, nor do they give any indication that they desire it. It logically follows that it is not yet shown that James M. Bynum, deceased, made any mistake in the entry claimed to have been erroneously made.

Your office decision, rejecting said application, is affirmed.

1801-VOL. 19—8

RAILROAD LANDS-HOMESTEAD-COMMUTATION.

HERBERT H. AUGUSTA.

A homestead entry made under section 2, of the forfeiture act of September 29, 1890 can not be commuted until after a period of fourteen months residence and cultivation from the date of entry, if such entry is made subsequently to the passage of the act of March 3, 1891, amending section 2301 R. S.

Secretary Smith to the Commissioner of the General Land Office, August (J. I. H.) 18, 1894.

(A. E.)

This is an appeal from your office decision of April 1, 1893. Said decision held, substantially, that the entry of Augusta, for the SE. 1, Sec. 7, Tp. 48 N., R. 8 W., Ashland, Wisconsin, made on May 13, 1891, could not be commuted to cash entry until after fourteen months from the date of entry, and instructed the local officers to require Augusta to furnish supplemental proof showing residence and cultivation for a period of fourteen months subsequent to May 13, 1891, the date of entry.

From this decision, which was based on the 6th section of the act of March 3, 1891, 26 Stat., 1095, Augusta has appealed to the Department. The laud involved is within the conditional grant of May 5, 1864, to the State of Wisconsin to aid in the construction of railroads, which vested finally in the Wisconsin Central Railroad Company, for its line between Bayfield and Superior.

On September 29, 1890 (26 Stat., 496), the Congress passed an act to forfeit certain lands theretofore granted for the purpose of aiding in the construction of railroads. This act forfeited all lands opposite the unconstructed portions of said roads, and declared the same part of the public domain, excepting, however, the right of way and station grounds. The 2d section of this act provided:

That all persons who, at the date of the passage of this act, are actual settlers in good faith on any of the lands hereby forfeited, and are otherwise qualified, on making due claim on said lands under the homestead law within six months after the passage of this act, shall be entitled to a preference right to enter the same under the provisions of the homestead law and this act, and shall be regarded as such actual settlers from the date of actual settlement or occupation; and any person who has not heretofore had the benefit of the homestead or pre-emption law, or who has failed from any cause to perfect the title to a tract of land heretofore entered by him under either of said laws, may make a second homestead entry under the provisions of this act. The Secretary of the Interior shall make such rules as will secure to such actual settlers these rights.

On January 16, 1891, the Commissioner of the General Land Office issued an order to the registers and receivers to publish in a newspaper the fact that the lands designated by odd-numbers, included within the limits of the grant for the Wisconsin Central between Ashland and Superior, and outside the fifteen mile indemnity limits of both the main and branch lines of the Omaha Company,

have been restored, and that such lands will be opened to entry upon a day to be fixed by you, not less than thirty days from the date of the notice, with preference

right of entry, under the homestead laws, within six months after the passage of said act (September 29, 1890), to all persons who at the date of the passage of the act were actual settlers in good faith upon any of the lands restored, and are otherwise qualified . . . . . that the provisions of the forfeiture act, in regard to actual settlers, may have immediate application, I have, with the approval of the Hon. Secretary of the Interior, to direct that in the notice of restoration under the forfeiture there be inserted a notice to prior applicants for such lands that such prior applications confer upon them no right to the lands, and that upon the date set by you and mentioned in the notice, all lands included in the forfeiture will be open to entry under the provisions of the forfeiture act, without regard to such applications, which applications shall be held to be rejected by said notice.

Under the above mentioned instructions, the local office published a notice, and the lands were opened to entry on February 23, 1891. Just prior to this date, however, Congress, on February 18, 1891, passed an act extending the time within which those who were bona fide settlers on September 29, 1890, would "be entitled to a preference right to the same under the provisions of the homestead law and this act," to six months from the date of the promulgation by the Commissioner of the General Land Office of the instructions to the officers of the local land offices for their direction in the disposition of said lands. As the date of the promulgation by the Commissioner was, as heretofore shown, January 16, 1891, the act extended the time until six months from that date, excluding the day of its date, within which this preference right could be exercised.

On February 24, 1891, Math. W. Miller made homestead entry of the SE. 4, Sec. 7, Tp. 48 N., R. 8 W., being a part of the forfeited Wisconsin Central lands. On May 13, 1891, Miller filed a relinquishment, and Herbert H. Augusta, appellant herein, made homestead entry.

In his affidavit to sustain his application, Augusta stated that he had made settlement on the land in question on July 17, 1888, and maintained said residence ever since that date.

On May 14, 1891, the day after making homestead entry, Augusta filed a notice in the local office that he intended making final proof of his claim on July 8, 1891. After due publication in a newspaper of his intention as aforesaid, Augusta was allowed to make proof and purchase the land, receiving the usual certificate.

In passing upon this case, the Commissioner made the decision hereinbefore mentioned, the appeal from which brings the case here.

The contention of attorney for Augusta is, that the forfeiture act gave a right to make homestead entry immediately after the passage of that act, and that as it was the delay of the Department which prevented Augusta making entry, and not his own neglect, his entry made May 13, 1891, should be considered as relating back to that time, and thus he would not come within the provision of the act of March 3, 1891, which restricted the time of making proof to fourteen months after entry; and that if said entry were considered as made when Augusta was ready to make it, that his proof as made July 8, 1891, was sufficient.

The objection to this contention is that it is not based on what must be considered a proper construction of the act of September 29, 1890, of section 2301 of the Revised Statutes, and of the act of March 3, 1891.

In passing the forfeiture act Congress recognized that there were persons on these lands who, though there as trespassers, had in some cases made what were to them extensive improvements. It likewise recognized the fact that, as the act would throw the land open to settlement, these settlers would be subjected to conflicts from new comers. To prevent this, the preference right was given to actual settlers at the date of the act over new comers. But these new comers, in anticipation of the passage of this act, were crowding on the lands already occupied by old settlers, knowing said old settlers were trespassers and could claim no rights prior to the passage of the act. To add still further protection to the old settlers, Congress declared that such actual settlers on the land at the passage of the act should "be regarded as such actual settlers from the date of actual settlement or occupation." The object of these words was not to give any rights as against the government, but to establish a criterion by which the rights of settlers should be determined as between themselves, just as the preference right determined the rights of settlers as against future entrymen. If Congress had not made this provision that these persons should "be regarded as such actual settlers from the date of settlement or occupation," the thousands of persons who went on these lands just prior to the passage of this bill, in order to obtain its benefits, would have stood on exactly the same footing as those who had been there three years, and it was to legalize this long settlement, in order that the old settler might be protected as against the new comer, that the words were used. It was applying the rule used in determining preference rights where on lands being surveyed two settlers are found on the same land. Here, the oldest settler is accorded the preference right, and in throwing these forfeited lands upon the market Congress applied this doctrine, in the act.

This did not affect the relations existing between the government and settlers as to the time when the latter could make homestead entry. Congress left the time when these entries should be allowed to the discretion of the officers having such matters in charge. These officers could not tell what lands were subject to entry until after examination, and hence it was impossible to allow entries immediately. Congress fully recognized a good reason for delay when it passed the act extending the time within which to exercise the preference right. That act was passed in order that the necessary delay by the land office should not defeat the preference right under the forfeiture act.

In the case under consideration there is nothing to show that Augusta attempted to exert his preference right promptly. The land was open to entry on February 23, 1891, yet Augusta did not make