cultivate and improve the land, but were prevented solely by Cuddy who remained continuously in possession and used the land.

Cuddy cannot sustain the charge that the heirs failed to enter the land and cultivate it, and therefore abandoned it, when their failure was caused by his own acts.

Your office decision is affirmed; the contest will be dismissed, and the entry held intact.

TIMBER LAND ENTRY-CONTIGUOUS TRACTS.

DANIEL J. HEYFRAN.

A timber land entry under the act of June 3, 1878, may not embrace non-contiguous

tracts.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.) ber 14, 1894.

(F. W. C.)

With your office letter of September 16, 1893, was forwarded the appeal by Daniel J. Heyfran from the action taken by your office letter of June 13, 1893, in suspending his timber land cash entry No. 393, made on January 18, 1893, for the W. SW. 4, Sec. 28 and N. § NE. †, Sec. 32, T. 14 N., R. 16 W., Missoula land district, Montana, because the said tracts are not contiguous.

The appeal urges that there is nothing in the act of June 3, 1878 (20 Stat., 89), under which this entry was made, requiring that the lands entered be contiguous, and that said action is in conflict with the holding in 2 L. D., 332.

Said reference is to a letter from your office addressed to the local officers at Shasta, California, in which it is stated "that it is the prac tice of this office to allow entries under the timber-land act of June 3, 1878, to embrace non-contiguous tracts."

I am unable to find any reported case in which this question has ever been considered by this Department, but the discussion made in the matter of the entry of coal lands under section 2347 R. S., would seem to apply with equal force to the case in hand. C. P. Masterson (7 L. D., 172); Same on review (id., 577).

Said section does not in specific terms require that the lands entered shall be contiguous, but the entryman is restricted to one right of entry, and it was held that such entry must be made of contiguous lands.

In the case of private cash entries there is no limitation upon the number of entries and, consequently, the right of entry is not restricted to contiguous lands.

Under the act of June 3, 1878 (supra), persons are restricted to one right of entry and I therefore affirm your office decision holding that such entry must embrace contiguous lands.

Subsequent to forwarding Heyfran's appeal, to wit, on December 13, 1893, you transmitted a relinquishment by Heyfran of the W. SW. 4,

Sec. 28, T. 14 N., R. 16 W., which was made conditional upon his right to amend his entry so as to embrace the SW. NE. and NW. SE., Sec. 32, T. 14 N., R. 16 W., in lieu thereof.

Under the circumstances, I can see no objection to allowing the amendment, if the lands desired to be included by the amendment are subject to the entry, but if the amendment cannot be allowed it will be necessary for the entryman to elect which of the tracts now covered by his entry he desires to retain, and in the event of his failure to make such election, your office will cancel the entry as to one of the tracts.

TIMBER LAND ENTRY-UNOFFERED LANDS.

ANWAY v. PHINNEY.

The withdrawal of offered lands in aid of a railroad grant abrogates the original offering, and brings them within the category of unoffered lands, and hence, subject to timber land entry if restored to the public domain.

The burden of proof rests upon a timber land applicant to show that the land has its principal value in the timber thereon, and is, moreover, unfit for cultivation. Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.)

ber 14, 1894.

(W. F. M.)

It appears from the record that on April 1, 1884, James F. Phinney made a cash timber land entry, under the act of June 3, 1878, of the SW. of the SE. of section 20, and the W. of the NE. of section 29, township 23 N., R. 3 E., within the land district of Seattle, Washington, Olympia series.

On May 5, 1887, Loren B. Anway filed an affidavit of contest alleg. ing that the land covered by the entry is agricultural in character, and not chiefly valuable for its timber, and, therefore, not subject to entry under the timber and stone act.

A hearing was had on this issue on February 8, 1888, and on December 9, 1889, the register and receiver rendered their joint decision recommending the cancellation of Phinney's entry.

The case is now before me on appeal from your office decision holding that the land in controversy falls in the category of offered lands, and pretermitting, therefore, a finding on the facts.

The records of your office show that the land in controversy was offered at public sale, at the minimum price of one dollar and twentyfive cents an acre, on July 13, 1863, under the authority of an executive proclamation of date March 20, 1863.

Under the grant of 1864, the Northern Pacific Railroad Company filed their map of general route of its main line on August 13, 1870, and it appears that these lands fell within the primary limits under said location. It is also within the limits of the withdrawal upon the map of general route of the branch line filed August 20, 1873. The main line in 1875 fixed its terminal south of this land, and the limits upon 1801-VOL 19—33

the map of amended general route of the branch line excluded it, so that the portion in the odd numbered section was restored to entry, after due notice by publication, on September 1, 1879, in accordance with your office letter ("F") of July 3, 1879.

It has been held by this Department that the withdrawal of offered lands in aid of a railroad grant abrogates the original offering, and on the revocation of such withdrawal the lands are restored to the public domain free of their previous offered condition, and hence not subject to private cash entry. Julius A. Barnes, 6 L. D., 522, syllabus.

This is now the settled rule, and, under its operation, the restored lands reverted to the government free of the character impressed upon them by the original offering.

The fact that the hearing in this cause was had so long ago as February, 1888, and that it has been pending here for more than two years, is deemed sufficient reason for deciding it now on the merits instead of remanding it to your office for that purpose, as is the usual practice.

The register and receiver, before whom the hearing was held found that the land embraced in Phinney's entry "is not unfit for cultivation and chiefly valuable for its timber; that the same is not and was not of the class of lands contemplated to be entered under the act of June 3, 1878, known as the timber land act," and recommended the cancellation of the entry.

In the case of Houghton v. Junett, 4 L. D., 238, it was held that With the language of the timber act as a guide as to what must be proven by the purchaser thereunder, there can be no doubt but that the burden of proof is with him to show that the land applied for has its principal value in the timber thereon and is, moreover, unfit for cultivation. Both of these conditions must be shown to exist before the land is subject to purchase under the act.

Leaving out of view the testimony of the contestant, I do not think the contestee has met either of the requirements imposed by the doctrine as thus stated. Phinney's own estimate of eight hundred thousand feet of merchantable timber on the one hundred and twenty acres in controversy discloses such a sparseness of growth as to throw suspicion upon his entry, in order to sustain which, under such a state of facts, its utter worthlessness for agricultural purposes, would have to be shown.

On the other hand, the witnesses of the contestant, most of whom were farmers living in the vicinage, testified that the land is adapted to the successful cultivation of such agricultural crops as are usually grown in that country. This evidence possesses peculiar weight, and in my opinion should control the case.

In determining what constitutes "land unfit for cultivation," resort must always be had to evidence drawn from the neighborhood of the land, and in such case the testimony of men engaged in tilling the soil must of necessity be held as entitled to the first consideration. Houghton v. Junett, supra.

The decision of your office is, therefore, affirmed.

HOMESTEAD CONTEST-ABANDONMENT-RELINQUISHMENT.

BLACKSHEAR v. GRIFFIN.

Under a homestead contest, on the ground of abandonment, the default will be held to have been cured, where, prior to the issuance of notice the wife of the entryman returns to the land, and it does not appear that he has established a residence elsewhere.

There is no authority under the law for the wife of the entryman to file a relinquishment, binding her husband, where it does not appear that the same is done with his consent.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.) ber 14, 1894. (E. W.)

The plaintiff in the above mentioned case appeals from your office decision of June 27, 1894, in which you sustain the action of the local officers in recommending the dismissal of plaintiff's contest.

The land involved in this case is the SE. of Sec. 18, T. 4 N., R. 10 W., Gainesville land district, Florida.

It appears that defendant made homestead entry of the tract in controversy on the 23d of November, 1891, and established his residence thereon. It further appears that sometime in the spring of 1892 he left the tract, his wife about the same time, or very soon thereafter, also moving away therefrom.

On the 17th of October, 1892, plaintiff filed his affidavit of contest upon the ground of abandonment. Upon this notice issued from the local office on March 24, 1893.

Between the date of filing the affidavit of contest and the issuing of notice thereon, the wife of defendant returned to the land in controversy.

It does not appear whether defendant did establish a residence elsewhere, nor does his whereabouts seem to be known.

The above stated facts appearing in the testimony taken before the local officers at the trial of the contest, they held that the return of the wife to the land in controversy before notice issued upon plaintiff's contest, cured the laches of the defendant; whereupon they recommended that plaintiff's contest be dismissed.

In this ruling your office concurs.

The law fixes a man's domicil where his family permanently resides, and it nowhere appearing that the defendant after leaving the land in controversy, had established a residence at any other place, I concur in the conclusion at which you have arrived.

Accompanying the record of this case is a letter which purports to be a relinquishment on the part of the defendant's wife, requesting that decision be rendered in favor of contestant.

I know of no authority of law authorizing the wife to file a relinquishment binding her husband, where it does not appear that the same is done with his consent.

Your office decision is accordingly affirmed.

RAILROAD GRANT-INDEMNITY SELECTION-SETTLEMENT RIGHT.

NORTHERN PACIFIC R. R. Co. v. TRIPP.

A settlement claim will not defeat an indemnity selection of the land, where at such time the settler was asserting a similar claim, under another law and for a different tract, which he subsequently perfected.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.) ber 14, 1894. (F. W. C.)

I have considered the appeal by the Northern Pacific R. R. Co. from your office decision of October 18, 1888, holding for cancellation its indemnity selection of lots 1, 2, 3 and 4, Sec. 1, T. 26 N., R. 33 E., Spokane Falls, Washington, on account of the settlement claim of A. W. Tripp. The land involved is within the indemnity limits of the grant for said railroad company and was selected on account thereof May 14, 1885.

Upon an application by Tripp to make homestead entry, accompanied by an affidavit in which settlement was alleged February 15, 1885, hearing was duly had, the testimony taken thereat showing that Tripp settled upon the land prior to selection, claiming the same as a homestead, and that he has since continued to claim and improve the land until the date of hearing. But it was also shown that at the time of settling upon this tract he was claiming another tract under the preemption law, upon which he made proof in July, 1885.

From this state of facts you hold that Tripp had such a claim to the land at the date of selection as would defeat the company's right and its selection is therefore held for cancellation, with a view to allowing Tripp's application; from said decision the company appeals.

The only question presented for consideration in view of the recent decision of the Department in the case of Jennie L. Davis v. Northern Pacific R. R. Co. (19 L. D., 87), is as to whether the fact that Tripp made proof upon his pre-emption claim subsequent to date of selection by the company would defeat his rights in the premises under his settlement made upon the land in question under the homestead law prior to the offering of such pre-emption proof.

It is well established by the repeated rulings of this Department that a person can not maintain two claims arising under the settlement laws at one and the same time, and while a person attempting to hold two such claims might abandon one or the other, and thus legalize his claim to the tract retained, the nature of his claim asserted at any given time must be arrived at by a consideration of the facts proven in each given case.

In the case under consideration Tripp had, prior to the date of the company's selection and his alleged settlement upon the tract in question, made pre-emption filing for another tract upon which he made proof in July, 1885, two months after the company had made selection of the land in question. By so doing he abandoned any right of election