It may be proper in considering this question to refer to the act of October 1, 1890 (26 Stat., 663, entitled "An act for the protection of actual settlers who have made homestead or pre-emption entries upon the public lands of the United States in the State of Florida upon which deposits of phosphate have been discovered since such entries were made."

It appears that as soon as the knowledge of the discovery of phosphate lands and their value was brought to the attention of your office, all entries made for lands containing such deposits were at once suspended, and the legislation referred to directed that those entries made in good faith prior to April 1, 1890, where the entryman had no knowledge of the deposit at the time of his settlement, might pass to patent upon showing compliance with law.

Whatever may be the effect of such legislation as bearing upon the question as to the present classification of lands containing valuable deposits of phosphate, it can not have any bearing upon the question in issue in this case.

Your office decision must therefore be reversed in so far as it holds that selection can not be made on account of the act of June 22, 1874, of land containing deposits of phosphate.

The selection for the company will therefore remain intact, and the protests against the same will be dismissed.

PRIVATE CLAIM-PUBLIC SURVEY.

RANCHO CAÑADA DEL CORRAL.

The owners of a patented private claim will not be heard to dispute the correctness of a public survey, closing the lines thereof on said claim, where such survey excludes from the public domain the full amount of land covered by the patent issued for the private claim.

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

(I. D.)

The owners of the Rancho Cañada del Corral appeal from your office decision of May 19, 1893, accepting a survey of public lands adjoining said rancho on the north, made December 31, 1890, by Deputy-Surveyor Harrington, of California.

October, 1840, Don José Dolores Ortega made written request to the prefect of the jurisdiction of Santa Barbara, California, for a grant to him of "the place known as the Cañada del Corral which is vacant and belongs to the mission of Santa Barbara."

In November, 1841, the grant was made as prayed for for the land known as the Cañada del Corral, bounded by the rancho of Don Antonio Ortega, by the gulch known as the Llagas by the Sierra and the sea. . . . . . . Third, the land herein granted is of two square leagues, more or less, as shown by the sketch annexed to the respective expediente. The judge who shall give possession shall have the land measured agreeable to ordinance leaving the surplus to the nation for its proper use. 1801-VOL 19-27

Juridical possession was given January, 1845, and the grantee continued in possession ever after.

May 30, 1866, patent issued to said Ortega from the United States and, so far as this case is concerned, that patent concluded the jurisdiction of this Department as to the land embraced therein and as to all questions antedating the patent.

In 1890, the then surveyor-general for California, ordered the survey of public lands on the north of this tract, which survey necessitated the closing in of the public land with the Ortega grant on its northern line. This survey was approved by the then surveyor-general of California in 1891, and the owners of the grant covered by the patent aforesaid, protested against the survey on the ground that the old grant, the Terrell survey of 1860, and the patent that issued upon said survey, constituted a grant by boundary and not one of quantity.

The contention is whether the original grant, survey, and patent, covered lands simply known as the Cañada del Corral, bounded by the Sierra on the north and the sea on the south (the side lines being undisputed always) and supposed to contain two square leagues within those named boundaries.

The owners maintain that the Cañada del Corral, the old survey, and the patent, give them to the top of the mountains on the north. The then surveyor-general of California held the grant and patent to be one of quantity and limited to two square leagues, and ordered the survey of public lands on the north to be closed in on that theory, and your office decision sustains that position.

An examination of the records of the proceedings, from the prayer of Ortega in. 1840 to the confirmation of the grant on his petition therein by the court, show that the owners of the lands covered by the grant can not complain of this holding, because under it the grant is held to be one of quantity and for two square leagues, while the description given by the commissioners appointed to fix the original grant, is one by measure and is as follows:

Commencing at the north-west point of said place on the brow of the hills and measured along the edge of the hills from the bijia to the beach, the distance of 2500 varas; thence easterly up to the stream of the Canada de las Llagas, the distance of 6000 varas; then in a northerly direction to the foot of the range of moun tains, the distance of 2100 varas; and thence to the place of beginning, containing in all 1 sitio, 3500 varas. (One sitio is a square league.)

And the patent recites the decree of the United States district court of December, 1855, as follows:

It is ordered, adjudged, and decreed, that the decision of said commissioners be affirmed, and that the claim of the said José del Ortega to the rancho Canada del Corral described in the original grant and the map in this case, situate in the county of Santa Barbara, is a good and valid claim, and the same is hereby confirmed to the extent of two square leagues.

The very able brief of the contestants urges strongly that the words "from the Sierra to the sea" reaches to the top of the mountains; and

relies much upon the words found in the field notes of the Terrell sur; vey, wherein the north-east corner is described as "a mound of rocks, station on top of the mountains," and also because the plat of that survey marks the northern boundary as the "top of high mountain range cut by deep ravines and canons," but an examination of the expediente in the original grant conclusively negatives the theory that the grant was one of boundary and ran to the crest of the ridge upon the north; for the description therein of the north line, as well as in the judicial proceedings, was "in a northerly course up to the base of high range of mountains" and again in recapitulating the boundaries, it gives, as the north line, "the base of the high range of mountains of Santa Ynez," and gives by varas the dimensions and says: "This measurement being concluded there resulted to be contained therein one sitio (square league) and 3500 varas."

The Terrell corners have been obliterated and lost; the survey now in issue was made, and gave the Ortega grant the full amount of two square leagues and closes the public lands on the north on that line.

The owners of said rancho have left to them, by this survey, the full amount of their grant covered by their patent, whether considered as a grant of quantity, or a grant by boundary.

Your office decision is affirmed.

HOMESTEAD ENTRY-REINSTATEMENT.

BAGLEY V. MITCHELL.

A homestead entry, canceled for failure to submit final proof within the statutory period, cannot be subsequently perfected in the presence of an intervening adverse right.

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

ber 1, 1894.

(C. W. P.)

of Sec. 2,

The land involved in this case is the N. of the NE. T. 18 S., R. 2 W., Montgomery land district, Alabama. The record shows that on September 9, 1873, Charles Mitchell made homestead entry of the said tract.

November 27, 1886, Nancy Bagley made additional homestead entry of the same tract, on which final certificate was issued on the same day. June 23, 1881, upon a report of the register and receiver at Montgomery, Alabama, that certain persons who had made homestead entries, therein named, of whom the said Charles Mitchell was one, had permitted the statutory period to expire without making the required proof, and that they had been notified, and had failed to show cause why their entries should not be canceled, your office directed the entries. to be canceled on the records of the land office. Mitchell's entry was thereupon canceled.

May 2, 1887, Mitchell made final proof.

May 2, 1887, Nancy Bagley protested against Mitchell being allowed to make proof on said entry, upon the ground that the records of the land office show that he made homestead entry September 9, 1873, and that his entry was canceled June 23, 1881; that November 27, 1886, protestant entered the land as an additional homestead entry, and holds final duplicate No. 18,700 therefor; and also because the same is not an official or legal proceeding, the register and receiver having official knowledge that Mitchell had no entry or claim upon the land, and that it was covered by the legal entry of protestant.

No action appears to have been taken on this protest, but by your office letter of February 11, 1893, Mitchell's final proof was held to be satisfactory, and Nancy Bagley's additional homestead entry held for cancellation.

Nancy Bagley appeals to the Department.

The case is in a state of inextricable confusion. The letter of the Acting Commissioner of the General Land Office, of June 23, 1881, states that Mitchell had been notified to show cause why his entry should not be canceled. But in your office letter of February 11, 1893, it is said that there is no evidence in the case showing that Mitchell received notice prior to the cancellation of his entry.

The entry of Bagley was, however, properly allowed, and could only bave been vacated at the instance of Mitchell upon showing cause why his entry should not have been canceled. The land at the date of Bagley's application, was subject to entry, and no second entry could properly have been allowed therefor until her entry had been canceled. Mitchell's final proof was improperly allowed, for the reason that there was no entry existing in his name at the date when he offered final proof, and for the further reason that no second entry should have been made (as before stated) until the entry of Bagley had been canceled. If Mitchell allowed the statutory period to expire before offering final proof, without sufficient cause therefor, his entry was properly canceled by the land office, and the entry of Bagley could not be vacated at the instance of Mitchell, although he had not received notice of the cancellation, unless sufficient cause was shown why the entry should not have been canceled.

Although Mitchell had no notice of the order to show cause why his entry should not be canceled, he had ample opportunity to make such showing when the protest was filed by Nancy Bagley against the submission of his final proof, and it not appearing from the record that his entry was improperly canceled, the entry of Nancy Bagley should remain intact.

Your office decision is reversed.

HOMESTEAD CONTEST-SETTLEMENT RIGHT.

RICKERS v. TISHER.

The failure of a settler to assert his settlement right within the statutory period, and consequent loss of priority as against an intervening entry, does not preclude the assertion of his right as against a subsequent entryman, where said settler remains on the land and the intervening entry is canceled.

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

I have considered the case of Richard Rickers against Zach Tisher, on appeal of the latter from the decision of your office of March 25, 1893, holding for cancellation his homestead entry of the SE. of the SW. of section 24, and the N. of the NW. of section 25, T. 33 N., R. 39 E., Spokane land district, Washington.

The record shows that April 15, 1892, Zach Tisher made homestead entry for the E. of the SW. of section 24, and the N. § of the NW. 글 of section 25, in said township and range; that one Charles Herrington made homestead entry October 19, 1891, for the same tracts; that Herrington having died, his entry was canceled April 15, 1892, on relinquishment of his heir at law; that on the same day Tisher made his homestead entry, as aforesaid.

It also appears that January 12, 1892, Richard Rickers applied to enter the SE. of the SW. of said section 24, the E. of the NW. and the NW. of the NW. of said section 25, alleging that he commenced settlement on said tracts in January, 1891, and that his improvements consisted of two frame houses, one sixteen by sixteen, and the other thirty-four by thirty eight, two miles of rail fencing, and forty acres cleared and broken, the whole of the value of $1,500; which application was rejected by the local officers for conflict with the entry of Herrington, and because it was not presented within three months of his alleged settlement.

April 26, 1892, Rickers filed in the local office his duly corroborated affidavit, alleging that he had settled on the land claimed by him in his application for homestead entry, long before Herrington's entry, etc., and asking a hearing for the purpose of showing that his right to the land was superior to the right of Zach Tisher, in so far as concerned the SE. of the SW. of section 24, and the N. of the NW. 4 of section 25. This application was denied by the local officers, but on appeal to your office, a hearing was ordered.

On the hearing, the local officers decided in favor of Rickers. Tisher appealed. Your office affirmed the judgment of the local officers.

The testimony taken at the hearing shows that Rickers continued to reside on the land with his family, after the rejection of his application to enter, and was residing thereon at the time of the relinquishment of Herrington's entry. There is no force in the contention that because Rickers had forfeited his right of prior settlement as against Herring