At the day of trial, November 25, 1889, both parties appeared with counsel and sub nitted testimony, upon which the local officers decided in favor of the defendant, recommending the dismissal of contest and that the entry be held intact.

From this action the plaintiff appealed, when, under date of March 10, 1892, your office affirmed the judgment of the register and receiver, whereupon plaintiff again appeals, alleging the following grounds of

error:

1st. In holding that the land involved was legally open to entry under the general homestead laws on August 7, 1884, when the entry of Tschirn was allowed." 2d. In holding that said entry was not fraudulent and therefore void ab initio. 3d. In holding that the act of Congress approved March 2, 1889 (25 Stat., 877), did not for the first time subject the land involved to the operation of the homestead law and release it from the reservation created by former laws and by executive orders.

4th. In construing said act of March 2, 1889, as a legislative confirmation of the alleged "incomplete title" of Tschirn and a defeasance of the right to make entry by Settoon in virtue of her ancient settlement and improvements.

5th. In holding that though Mrs. Settoon was in a position as prior settler to have asserted an adverse claim to the land that the record did not show she did so.

6th. And in holding that lot 2 of Sec. 7, had not prior to the entry of Tschirn been actually settled and occupied for purposes of trade and business and not for agriculture.

It appears from the record that the plaintiff originally settled upon lot 2, some time in 1823; after residing there for a number of years, she abandoned the land. Subsequently, two or three parties successively occupied it for several years, and finally, some time during the late war, she purchased the improvements of the occupant, consisting of a house and garden, and returned to the land, where she has resided up to the present time.

This tract was supposed to lie within the limits of a French grant, known as the John McDonogh and Co. claim, also within the Conway grant, and therefore it was not subject to entry.

It also appears that said lots were within the limits of the grant for the New Orleans and Pacific Railroad, under the act of Congress, March 3, 1871 (16 Stat., 573), and finally the tracts were selected with others by the State of Louisiana as swamp and overflowed lands. It is unnecessary to state further than that the grant was decided not to embrace said lots; that the railroad company relinquished all claim to the same, and that under date of December 8, 1885, a contest was had between the defendant and the State of Louisiana in relation to the swamp character of the land, wherein your office rejected the claim of the State, and under date of November 2, 1887, the judgment of your office was affirmed by this Department.

This brings the case down to the present contest.

The plaintiff contends that at the date the defendant made his entry, the land was not subject thereto, and that the e try of claimant is void.

It is true that when said entry was made, the lots were still embraced in the State selection of swamp and overflowed land, and that by Commissioner's letter, dated November 1, 1882, the local officers were directed that these lots and other lands covered by said private claim should be withheld from entry, until further notice, on account of the suits pending in the United States supreme court, as to the validity of said claim, but it should be remembered that the contest against the State selection was entirely in relation to the swamp character of the land, and did not raise any other question; therefore the decision of the Department against the State selection could not, in any manner, be deemed a judgment in favor of the validity of the homestead entry. The entry simply remained "in statu quo," the character of the land only having been determined.

It is unnecessary for the purposes of this case to examine the status of the private grant to Conway. It is sufficient to say that the Department has for years recognized the reservation of this claim, as against any other disposition of the land. In November, 1881, the Houmas suits in relation to this grant were begun and while pending before the supreme court your office order of November 1, 1882, was promulgated.

If there remained any doubt of the reservation of these lands by law and also by Commissioner's order, the act of March 2, 1889 (supra), passed for the purpose of restoring the same to the public domain, must have settled the question. Congress, no doubt, when this act was passed, was in possession of all the facts in relation to this grant, and there is no question that the lands were considered in a state of reservation or there would have been no necessity for the passage of the act restoring them to entry.

From a careful examination of said act of March 2, 1889 (25 Stat., 877), I find that it only refers to lands by description in townships 8 and 9, in ranges 1, 2, 3 and 4, all lying west of range 5, within which the tracts in question are located.

Why the description given in the statute only covered a part of the Conway grant and stopped at range 4, does not appear. It can not be denied, however, that the third proviso in said act may include the land in controversy, to wit:

That the provisions of this act shall be and are hereby extended to embrace all settlers upon public lands, and for the disposition of all public lands embraced in the grant to Daniel Clark, so far as decreed invalid by the supreme court of the United States and the unconfirmed Conway claim.

The land in dispute is unquestionably within the limits of the Conway claim, and notwithstanding the fact that the descriptive part of the statute stopped at the east line of range 4, and did not include lands in range 5, yet I am unable to see any reason why Congress should intend one rule or construction for lands west of said line and another for lands east of it, in the Conway claim; therefore, I am satis

fied that the intent of Congress in said act was to embrace all the lands within said claim.

At the date Tschirn made entry of the land, it was covered by the Conway claim, and also by the State selection, as swamp and overflowed land; furthermore, your office order directing that these lands should be reserved from entry-evidently a precautionary measure— was still in force, in fact it has never been revoked, and therefore there can be no doubt that Tschirn's entry was erroneously allowed, and should not, by reason of such error, prejudice the rights of other settlers.

No rights are secured as against the government by settlement on land withdrawn from entry, but, as between two claimants for such land priority of settlement may be considered. Pool v. Moloughney (11 L. D., 197); Etnier v. Zook (ib., 452); hence, in the case under consideration, the defendant should acquire no right by virtue of his entry, but priority of settlement of the claimants may be considered.

In the act of March 2, 1889 (supra), it is expressly provided that it relates to

Lands claimed by actual settlers for purposes of cultivation whose titles are incomplete within the limits of the Donaldson and Scott, Daniel Clark and Conway grant, and that after setting apart to each of said settlers, not to exceed one hundred and sixty acres, the residue of the public lands within said grant, shall continue to be as they are now, a part of the public domain.

The act of 1889, supra, provided for the restoration to the public domain of certain lands, in Louisiana, including the tract in question, and for the protection of bona fide settlers on any of said lands by giving them a preference right of entry.

In the case at bar, Mrs. Settoon and Tschirn both claim to be settlers upon the land, and, therefore, under the rule laid down in the above cited cases, the question is one of priority of settlement.

It appears from the evidence, that Mrs. Settoon was born in the French settlement in Louisiana; that she is a poor widow, about eighty-seven years old, and understands the English language very indifferently; that her home and improvements, worth about $300, are on lot 2; that she has no other home; that soon after the passage of the act of March 2, 1889, she applied to make entry of said lot 2, and her application was rejected on account of the prior entry of the defendant.

Thus, it appears, that Mrs. Settoon exercised due diligence in trying to secure her home and improvements, and there is no question that her long residence upon the land fully establishes her prior claim to said lot; therefore, the entry of Tschirn, to the extent of lot 2, must. necessarily give way to her superior right.

Although the homestead entry, in view of the then existing reservation, should not have been allowed, yet, as the reservation has now been removed and no adverse interest appears, I see no just reason why the entry, as to lot 1, may not be allowed to stand.

I find no evidence to show that this tract was used for purposes of trade prior to the initiation of the defendant's entry. The fact that a man by the name of Hougham has kept a small country store on the land for several years does not, in my opinion, prove such charge; furthermore, the evidence fails to disclose any facts showing fraud on the part of the claimants.

Your office decision is modified accordingly, and you will cancel said entry to the extent of lot 2, allowing Mrs. Settoon a preference right to make entry of the same, and as the final proof in said homestead entry appears to be satisfactory, you will proceed as is usual in such

cases.

MINERAL LANDS-AMENDED REGULATIONS.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., July 2, 1894.

REGISTERS AND RECEIVERS, UNITED STATES LAND Offices, SIRS: Paragraphs 109 and 110 of the "United States Mining Laws and Regulations Thereunder" approved December 10, 1891, are amended to read as follows:

109.-No public land shall be withheld from entry as agricultural land on account of its mineral character, except such as is returned by the surveyor general as mineral; and the presumption arising from such a return may be overcome by testimony taken in the manner hereinafter described.

110.-Hearings to determine the character of lands are practically of two kinds, as follows:

1. When lands are returned as mineral by the surveyor-general. When such lands are sought to be entered as agricultural, under laws which require the submission of final proof after due notice by publication and posting, the filing of the proper non-mineral affidavit in the absence of allegations that the land is mineral will be deemed sufficient, as a preliminary requirement. A satisfactory showing as to character of land must be made when final proof is submitted.

In case of application to enter, locate, or select such lands as agricultural, under laws in which the submission of final proof after due publication and posting, is not required, notice thereof must first be given by publication for thirty days and posting in the local office during the same period, and affirmative proof as to the character of the land submitted. In the absence of allegations that the land is mineral, and upon compliance with this requirement, the entry, location, or selection will be allowed, if otherwise regular.

2. When lands which are sought to be entered as agricultural are alleged by affidavit to be mineral or when sought as mineral their nonmineral character is alleged. The proceedings in this class of cases are in the nature of a contest between two or more known parties and are provided for in the rules of practice. Very respectfully,

DEPARTMENT OF THE INTERIOR,

July 2, 1894.

Approved,

HOKE SMITH,

S. W. LAMOREUX,
Commissioner

Secretary.

RELINQUISHMENT-INSANITY.

KAY v. KAY.

An entry must be reinstated where the cancellation thereof is due to a relinquishment procured from the entryman while in a condition of insanity.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.)

1894.

(J. L.)

I have considered the appeal of William Kay from your office decision of February 13, 1893, in the case of Thomas Kay v. William Kay, reversing the decision of the local officers, and holding for cancellation William Kay's homestead entry No. 9117, and for re-instatement Thomas Kay's homestead entry No. 8243, of the N. of the SE. 4, the SE. 4 of the SE. ; and the SE. of the NE. 4 of Sec. 17, T. 11 S., R. 1 E., Salt Lake City land district, Utah Territory.

On October 25, 1888, Thomas Kay made homestead entry of said. land. On May 29, 1891, his relinquishment dated May 18, 1891, was filed in the local office. And on the same day William Kay made homestead entry of said land.

On January 5, 1892, Thomas Kay filed his affidavit, corroborated by three witnesses, alleging that his relinquishment aforesaid was fraudulently procured by William Kay while he, the said Thomas, was insane, and praying that a hearing be ordered; that William Kay's entry be canceled; that said relinquishment be held for naught and of no effect; and that his, Thomas Kay's, entry be re-instated.

Whereupon your office on March 24, 1892, directed the local officers to notify William Kay to show cause within sixty days why his entry should not be canceled. In response to said notice William Kay filed his affidavit, in which he denied Thomas Kay's insanity on the day he made his relinquishment, and alleged that said Thomas Kay had abandoned his homestead in the year 1890. In reply, Thomas filed his second