copy of the notice of contest, addressed to Carl Kopcke, at 1728 Brown street, Milwaukee, Wisconsin, the last known address of claimant, and prepaid the postage and registry fee; that the receipt for the letter is hereto attached."

An examination of the postmaster's receipt for the letter shows that the same was received on the date sworn to by contestant, but the postmaster's receipt shows the letter to have been received from John Hilton, in place of George J. Hilton, and it further shows the same to have been addressed to "Caryl Kopcke."

It makes no difference who deposits the registered letter in the post office; the material thing required by Practice Rule 14 is that "a copy of the notice shall be mailed by registered letter to the last known address of each person to be notified thirty days before date of hearing." There can be no doubt that this was done; attorneys for contestant refer to an affidavit on file from John Hilton, showing that this letter was mailed. This affidavit can not be found, but it makes little difference, so long as the proof is satisfactory that the letter containing the notice was in fact sent. Nor does the postmaster's receipt containing yet a different spelling of claimant's name make any difference; it was near enough to the correct spelling, and, under the doctrine of idem sonans, it must be held sufficient.

Moreover, the notice appears to have served its purpose, for two weeks before the hearing claimant appointed an attorney "for the purpose of defending my claim to said land (describing it) against the contest of George J. Hilton, and authorize my said attorney to do everything necessary to be done to maintain my rights."

Finally, it is said that there is no sufficient proof that a copy of the notice was posted in a conspicuous place on the land.

In making affidavit of such posting, contestant says that on April 19, 1892, he "posted on a conspicuous place on the land involved in this cause..... a copy," etc. But in describing the land he inadver tently wrote Sec. 30, instead of Sec. 33, the true one, the rest of the description being correct. Accompanying the affidavit, and as exhibit thereto, was a copy of the notice sent to the claimant, which correctly described the land.

It is amply shown that a copy of the notice was in fact posted on the land for the requisite time, and this met the requirement. Actual notice was obtained, and proof thereof sufficiently given; jurisdiction thus being obtained, and the evidence showing that claimant had failed to comply with the law, the entry should be canceled.

It is so ordered, and the decision appealed from is affirmed.

SOLDIERS' ADDITIONAL HOMESTEAD-TRANSFER.

CHARLES D. CRUGGS.

One who admits the "transfer of his right for a valuable consideration" can not be allowed to make a soldier's additional homestead entry in his own person.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 9, 1894.

(W. F. M.)

On December 7, 1892, Charles D. Cruggs applied to make additional soldier's homestead entry of the N. of the NW. of section 13, township 22 S., Range 63 W., of the land district of Pueblo, Colorado.

On the same day the application was transmitted to your office where it was held that the applicant, having admitted the "transfer of his right for a valuable consideration," can not now be allowed "to make additional entry in his own person."

The applicant, Cruggs, has brought the matter, on appeal, to this Department, and alleges as error, substantially, that the decision of your office is contrary to the law of the case.

I concur in the conclusions of the decision appealed from, which contains an exhaustive statement of the reasons therefor, and the same is, therefore, affirmed.

SWAMP LANDS-FIELD NOTES OF SURVEY.

STATE OF MICHIGAN v. POWER'S HEIRS.

If the field notes of the original survey, made prior to the swamp land grant, fail to disclose the real character of land, and a resurvey, made after said grant, and with reference thereto, shows said land to be in fact swamp, the State, relying on the government survey, is entitled to file its supplemental list, with assurance of approval.

The act of March 3, 1857, confirmed selections of swamp and overflowed lands theretofore made and reported to the General Land Office so far as the same were vacant and unappropriated.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 9, 1884. (G. C. R.)

The State of Michigan, by its attorneys, Messrs. Britton and Gray, of this city, has appealed from your office decision of April 22, 1893 holding for cancellation its claim to the SW. 4 of the SE., Sec. 26, and the N. of the NE. 4, Sec. 35, T. 36 N., R. 2 E., Grayling, Michigan, under the swamp land grant of September 28, 1850 (9 Stat., 519).

The lands above described were embraced in supplemental list "D" of swamp land selections, which upon examination appears to have been filed in your office February 24, 1857.

It appears that the original surveys in Michigan were found defective in many of the townships, and new surveys were ordered. Prior to the second surveys, swamp land selections were made from the field

notes of the first surveys, and after the re-surveys were made, and from the plats thereof different selections of swamp lands in the same townships were reported.

Prior to the reception of the selections under the re-surveys, your office, in many instances, had approved and patented to the State the selections made under the old or defective surveys.

It is manifest that new selections could not be admitted in the same townships when selections were made, approved and patented for the same lands under the old surveys.

Michigan is one of the States which elected to take the field notes of the government survey as the basis upon which to make its swamp land selections, and in the appeal of the State from your said office decision, it is alleged that these fields notes show the land in controversy to be swamp land. If that be true, the lands should be certified to the State, unless the same were embraced in a former approved list under the old surveys.

The mere fact that there were two lists from the same township, one made from the old and one from a re-survey, is not a sufficient reason for rejecting a selection in a supplemental list made from the re-survey, if in fact the land was of the character contemplated in the swamp land act, and had not been disposed of.

Said township (36 N., R. 2 E.) was first surveyed in 1841, the survey being approved March 11, of that year; the second or re-survey was approved September 23, 1856. The reasons given in your office decision. for rejecting the selection in said supplemental list "D" are:

1. Because of certain instructions issued by your office June 18, 1864, to the land office at Detroit, to the effect that your office could not recognize two lists of swamp lands, for the same townships, made from different and conflicting surveys, and having acted upon one, the other must necessarily be ignored.

2. The State has presented no other evidence in support of its claim. Admitting that selections from the township were made and approved under the old surveys, such action on the part of the State did not debar it from making supplemental selections from that township, if the first selections did not embrace all the swamp lands which passed under the act.

Again, if the field notes of the old or imperfect, survey failed to disclose the real nature of the land, and the more perfect re survey, made after the passage of the swamp land act and with reference thereto, shows the land to be in fact swamp, the State, relying on the government surveys, is entitled to file its supplemental list, with assurances of approval.

The act of March 3, 1857 (11 Stat., 251), confirmed to the several states the [selections of] swamp and overflowed lands,

Heretofore made and reported to the Commissioner of the General Land Office, so far as the same shall remain vacant and unappropriated, and not interfered with by an actual settlement under any existing law of the United States.

Scrip No. K, 25, was on February 24, 1876, issued to Thompson Smith for the S. of SW. 4 of Sec. 25; the SE. of Sec. 26; the N. of NE. 4 of Sec. 35, and the N. of NW. of Sec. 36, in said township, under a decree rendered December 16, 1873, by the supreme court of the United States for the claim of the heirs of Thomas Power, deceased, or his legal representatives, and in the decision appealed from your office suspended the same for conflict with "an apparent claim of the State of Michigan under the swamp laud grant," etc.

This conflict relates to the SW. of the SE. of said Sec. 26, and the N. of the NE. † of said Sec. 35, which lands are embraced both in the scrip location and the State's selection under the swamp land grant. If the land passed to the State under the grant, it will necessarily result in the cancellation of so much of the scrip location as is in conflict therewith.

The case is herewith returned, with directions that an examination of the records of your office may be made. If the State's selection was made prior to March 3, 1857, and if, at that time, the land was vacant and unappropriated, and not interfered with by an actual settlement under existing law, the selection is confirmed. If the selection was made and filed subsequent to that date, and it still appears from the field notes of your office that the land is of the character contemplated in the swamp land act, and that the same has not been finally disposed of, it belongs to the State. If upon examination it should appear from your records, in either case, that the land belongs to the State, you will call upon the scrip claimant to show cause why his location should not be canceled for conflict with the prior claim of the State. The decision appealed from is modified.

RAILROAD GRANT-CONFLICTING SETTLEMENT CLAIM.

NORTHERN PACIFIC R. R. Co. v. CHASE.

The expiration of a pre-emption filing without final proof and payment will not alone be accepted as proof of abandonment of the settlement claim at such time, so as to relieve a railroad grant therefrom.

The residence upon, occupancy and cultivation of a tract at the date of a railroad grant, by a qualified pre-emptor, will except the land covered thereby from the operation of said grant.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 9, 1894. (P. J. C.)

The land involved in this appeal are lots 5 and 6 of Sec. 3, T. 2 N., R. 1 E., Vancouver, Washington, land district, and is within the primary limits of the grant to the Northern Pacific Railroad Company under joint resolution of May 31, 1870 (16 Stat., 378), as indicated by map of general route filed August 13, 1870, and as fixed by map of definite location filed September 22, 1882.

1801-VOL 19—15

It appears that Irwin E. Chase filed his pre-emption declaratory statement for said tract October 16, 1886, and made final proof and cash entry of the same August 19, 1887, without objection on the part of any one.

Your office, by letter of March 23, 1893, considered the matter, at whose instigation or suggestion it is not shown. It is stated in said letter that one Frederick Miller filed pre-emption declaratory statement for said land December 16, 1868, (offered series); that he also filed another declaratory statement for the same land July 25, 1870, upon which he made cash entry April 21, 1871. It seems that this entry was canceled December 11, 1872,

because of his failure to make proof and pay for the land within one year from date of settlement alleged in his original declaratory statement, it being held that the adverse right of the railroad company had attached to the land after the expiration of the period for making proof and payment, and that the second filing was illegal.

It is stated in your said office letter that

Miller's pre-emption proof shows that he was fully qualified to enter lands under the pre-emption laws; that he had resided upon, cultivated and improved the land from December 15, 1868 to the date of said proof, April 21, 1871.

It was therefore decided that the land, being actually occupied by a qualified pre-emption entryman at the date of the grant, was excepted from its operation, and held Chase's entry intact.

Your said office decision was based on the theory of the continued occupancy by the pre-emptor, and that the railroad company would not be heard to plead against a settler that he had not performed his obligations to the government, following the doctrine announced in Schetka v. Northern Pacific Railroad Co. (5 L. D., 473), and others on that line.

I am unable, however, to find any evidence whatever of Miller's continued residence and cultivation of the land during the period mentioned. His final proof is confined solely to his acts from and after July 25, 1870, the date of his second filing. His presence or absence from the land prior to that date is not in any wise suggested, either by the proof or any allegation by Chase.

This being the fact, what is the status of the land in reference to Miller's settlement? At the date of the grant-May 31, 1870,-the pre-emption filing had expired. It having been made on offered land, proof and payment should have been made within one year from date of settlement, to wit: December 15, 1869. This filing never ripened into an entry. Neither was it formally canceled. The mere fact that the pre-emptor's filing had lapsed is not sufficient evidence of the abandonment of his claim (Allen v. Northern Pacific Railroad Co., 6 L. D., 520). By reason of the fact that Miller made a second filing and entry thereunder, it might be fair to assume that he did not abandon the land; but I do not think in the absence of any showing on this