only by personal service of notice, on him, and that notice by registered letter is not personal service, and confers no jurisdiction on the local offiee. In view of this fact it is evident that in the case at bar the local office acquired no jurisdiction over the defendant. (Elting v. Terhune, 18 L. D., 586.)

Your decision is therefore reversed, with instructions to return the case to the local office for proceedings de novo on the affidavit of the plaintiff.

HOMESTEAD CONTEST-LEAVE OF ABSENCE.

TAYLOR v. HENRY.

A leave of absence procured by an entryman, who in fact had not established residence on the land, will not operate to defeat a subsequent contest in which abandonment is charged against the entry.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.) ber 1, 1894. (F. W. C.)

I have considered the appeal by Fred C. Taylor from your office decision of February 14, 1893, dismissing his contest against the homestead entry made by Henry L. Henry on June 24, 1891, embracing the SE., Sec. 21, T. 3 N., R. 1 E., Boise City land district, Idaho.

Said contest was filed December 29, 1891, alleging abandonment and the notice issued thereon was served the next day.

With the said entry papers is an affidavit for leave of absence under the third section of the act of March 2, 1889 (25 Stat., 854), which bears the following endorsement:

Filed December 28, 1891, and leave of absence granted for six months from date hereof.

CHAS. S. KINGSLEY, Register. The hearing upon Taylor's contest was set for February 8, 1892, but, upon motion by Henry, was continued to March 8, 1892.

On that day Henry appeared with Alfred A. Frazier who, acting as Henry's attorney, moved to dismiss the contest, but after the motion had been argued, it was denied.

A stipulation as to the facts was then drawn up and signed by Frazier, in which it was admitted that Henry had never established a residence upon the land, but had placed improvements thereon, consisting of a house valued at $400, which was only partially completed. It was agreed in said stipulation that the contestant might offer further testimony if he desired.

The case was continued from time to time until February 15, 1892, when the local officers called Frazier's attention to the fact that he had never qualified as required by the rules and regulations governing the recognition of attorneys before the local office, and had never filed written authority to represent Henry.

He thereupon complied and witnesses on both sides were examined, the case being continued to next day.

On the following day he moved to strike the stipulation from the record, and in the decision of the local office upon the case, said motion was granted, their decision stating:

That the facts, as stipulated, do not agree with those developed by the examination of the witnesses, and all parties having been allowed a full opportunity to testify in the case, the said stipulation is not considered in the matter of this decision.

Their decision recommended that the contest be dismissed. Said decision was sustained by your office decision of February 14, 1893, an appeal from which brings the case before this Department.

From a careful review of the entire record, I deem it unnecessary to consider the question as to whether the defendant is bound by said stipulation, for its only effect would be to strike out the testimony subsequently offered in his behalf, a consideration of which does not affect the disposition of the case.

In the case of Yarneau v. Graham (16 L. D., 348) it was held thatLeave of absence granted to a homesteader under section three, act of March 2, 1889, does not preclude the initiation of a contest during such period on account of non-compliance with law prior thereto. (Syllabus.)

And in the case of Sylvester Gehr (14 L. D., 95), it was held thatSection three, act of March 2, 1889, permits, under certain circumstances, a leave of absence after settlement, but does not authorize an extension of time for the establishment of residence. (Syllabus.)

It is shown that Henry, prior to the initiation of these proceedings, resided in an addition to Boise City, distant about seven miles from the land in question, where he was engaged in the lumber business.

He had a house, consisting of three rooms, built upon this land, which was without chimney and otherwise incomplete at the time of the filing of this contest.

During the absence of his wife, on a visit east, he, on October 10th or 11th, 1891, visited the land, and began a residence, the nature of which is shown by his own testimony:

Direct examination.

Q. Did you ever since filing upon this land go upon it for the purpose and with the intention of taking up your residence there and making it your home? If so, when?

A. I did; I went onto the land some time between the 5th and 15th of October, I think it was the tenth or eleventh, 1891.

Q. Were you ever on these premises and remained there over night since you have filed upon the land?

A. I was, I think it was the 10th or 11th of October, 1891.

Q. Where was your family at the time you went upon this land for the purpose of making it your residence?

Q. What is the condition of the house on the land as to being completed!

A. The house is all completed except the papering, ceiling up under the porch one little place, building a chimney, and painting it.

Q. Were the shavings ever cleared out after the carpenters left it?
A. No.

Q. Did you ever put any furniture into it?

A. Nothing but a bunk there; that is all.

Q. What did you do when you first went upon that land on the 10th or 11th of October?

A. I went there and picketed my horse and built a fire and went to sleep.

Q. Where did you build the fire?

A. Outside, between the house and the ditch.

Q. About what time a day was this?

A. This was in the evening.

Q. Your family went east partly on a visit did they not?

A. Yes sir.

His wife returned later in October, but did not go to the land on account of sickness, the nature of which is shown by defendant's testimony:

Q. What was the matter of your wife during the time you say she was in ill health? A. Nervous trouble brought on by a felon.

Q. Where was the felon?

A. On her right thumb.

He admits that prior to the filing of this contest he had heard that such contest was likely to be filed, and when asked: "Was it before you filed the affidavit for a leave of absence?" he replied, "I could not say as to that."

It is plain that Henry had never begun an actual residence upon this land prior to the initiation of this contest, and that the application for leave of absence was filed with a view to forestalling contest.

The facts, as disclosed by the testimony, show that there was no ground for granting the leave of absence, and his intentions are made plain by his subsequent acts in relation to the land.

The decision of the local officers recommending the dismissal of the contest was rendered July 16, 1892, and on the 21st of same month he relinquished his homestead and on the same day made desert entry of the land.

From a review of the entire matter, I must hold that the homestead entry was subject to contest on December 29, 1891, and that upon its cancellation Taylor should have been accorded a preferred right of entry.

I must, therefore, reverse your office decision, and direct that Taylor be advised of his rights, and if he make entry within the thirty days granted him as a preferred right, Henry's desert land entry will be canceled.

RAILROAD GRANT-MINERAL LANDS-PATENT.

COURTRIGHT v. WISCONSIN CENTRAL R. R. Co.

Under a railroad grant which provides that "all mineral lands be and the same are hereby reserved and excluded from the operation of this act," a patent issued for lands, "excepting and excluding all mineral lands should any such be found to exist," does not reserve to the Department the power and authority to subsequently inquire into the character of the lands embraced in said patent. Secretary Smith to the Commissioner of the General Land Office, December 1, 1894. (J. I. H.)

The E. of the NW. of Sec. 33, T. 46 N., R. 2 E., Wausau, Wisconsin, is within the indemnity limits of the grant to the State of Wisconsin in aid of the Wisconsin Central Railroad Company.

By the terms of the granting act (13 Stat., 67, Sec. 6), all mineral lands were reserved and excluded from the operation of the act, except so much thereof as was embraced in the right of way through such reserved mineral lands.

October 21, 1882, patent was issued to said company, conveying this and other lands, described by legal subdivisions, selected within its defined indemnity limits, but excepting and excluding therefrom “all mineral lands, should any such be found to exist in the tracts embraced in the foregoing description."

August 22, 1889, John B. Courtright, by William H. Jacobs, his attorney in fact, applied to make soldier's additional homestead entry for the tract. With his said application, he filed the following paper:

I, John B. Courtright, do hereby offer to prove, in connection with and in support of my application herewith made to enter the east half of the north west quarter of section number thirty-three (33) of township No. forty-six (46) of range No. two (2) east, containing eighty acres, that on the 5th day of May, 1864, and ever since, the said land was, has been, and now is mineral land, containing extensive and valuable mines of iron ore in every part of the same, and valuable chiefly or altogether for such mines, and that the said lands were expressly reserved and excluded from the operation of the act of Congress, entitled "An act granting lands to aid in the construction of certain railroads in the State of Wisconsin," approved May 5, 1864, and expressly reserved and excepted from the patent to the Wisconsin Central R. R. Co., and are now public lands of the United States, subject to my entry as applied for. S. E. Thayer, register of the Wausau office, rejected his said application, as follows:

Application rejected, for the reason that the land applied for is within the indemnity limits of the grant for the Wisconsin Central R. R. Co., and was patented to the company October 21, 1882, and the same is not therefore subject to entry. Entry fees duly tendered.

Courtright appealed, and by your decision of October 30, 1890, you affirmed the action of the local officers, and he now further prosecutes his appeal to this Department, and asks that a hearing be allowed him to show that the land is mineral, and, in the event he does, that his entry may be allowed. In the paper accompanying his application, he

does not offer to prove that the tract in question was known to be mineral at the date the grant took effect, but in his brief, filed in the case, counsel for applicant (Hon. William F. Vilas) offers, in the event that such showing is deemed necessary, to amend his statement of facts so as to show, that "in fact, before the Wisconsin Central Railroad Company acquired any right or title to the land, large quantities of iron ore were regularly taken from the mines upon the lands, and shipped to market, which the agents of that company very well knew, but concealed from the Department," and asks to be allowed to do so. Elaborate briefs have been filed by counsel in the case.

It is contended by counsel for the company that the land, having been patented by the executive department of the government, this Department has parted with its jurisdiction, and can not entertain the application; that if the patent was issued in violation of the granting act, resort must be had to the court to set aside and vacate the patent, so far as it embraces the land in controversy; that the reservation and exclusion of mineral lands in the granting act had reference to lands known to be mineral at the date of the grant, and that the discovery of mineral years after the grant had attached and patent had issued could not defeat the title; also, that iron is not mineral within the meaning of the words of reservation in the granting act.

On the part of counsel for the applicant, it is contended, in substance, that iron is mineral within the meaning of the act; that the act, having expressly "reserved and excluded " mineral land from the grant, the executive department properly excepted such lands from the patent, and having so excepted them, they are not patented lands, but remain a part of the public domain and subject to the jurisdiction of this Department.

When a patent has issued for any portion of the public domain, the jurisdiction of this Department ceases as to the land so patented. This has been so repeatedly decided by the courts and this Department that it has long since ceased to be a question in dispute, but has become a maxim of the law pertaining to the disposal of the public lands.

It is pretty well settled that if the patent to the company contained no words of exception or reservation as to mineral lands, such a patent would have deprived the Department of jurisdiction over all the land so patented, and left to the courts the determination of the rights of the company, in case they were disputed.

But counsel for the applicant insists that under the terms of the exceptions contained in the patent, the mineral lands within the limits of the grant have never been patented to the railroad company, and that the Department still has jurisdiction over these lands.

On the other hand, counsel for the company contend that, because the grant can not be affected by any words of reservation in the patent, such words must be regarded as superfluous, and the patent consid