proclamation opening the lands in that Territory to settlement and entry.

I am further of the opinion that the act of Penwell on September 16th, followed as it was by residence on the 5th and 6th of October, 1893, and continuous residence and cultivation, should be held to entitle him to rights superior to those of Christian, and your said office decision is accordingly reversed.

OWENS v. STATE OF CALIFORNIA.

Motion for review of departmental decision of March 26, 1896, 22 L. D., 369, denied by Acting Secretary Reynolds, July 1, 1896.

BOSWELL ET AL. v. WATKINS.

Motion for review of departmental decision of March 11, 1896, 22 L. D., 297, denied by Acting Secretary Reynolds, July 1, 1896.

PRACTICE-INTERVENER-RIGHT OF APPEAL.

BARBOUR v. WILSON ET AL.

The right to intervene, and be heard on appeal, may be properly accorded a protestant who shows an interest in the subject matter of a contest.

Acting Secretary Reynolds to the Commissioner of the General Land Office, July 1, 1896.

(A. B. P.)

This is an application by George H. Barbour asking that the record and proceedings in the case of Arthur P. Heywood v. William Wilson and the Castle Land Company, involving the N. of the SW. 4 (lots 5 and 6), Sec. 24, T. 8 N., R. 8 E., Helena, Montana, be certified to this Department for consideration and action.

It appears that the case referred to is the sequel of the case of McGregor et al. v. Quinn, decided by this Department April 5, 1894 (18 L. D., 368), wherein Sioux half-breed scrip location made by one William T. Quinn, covering the land in question was canceled-motion for review having been denied October 10, 1894 (19 L. D., 295).

It further appears that prior to the date of said decision of April 5, 1894, the Castle Land Company became the transferee of the land in question by deed of conveyance executed by one Messena Bullard, its attorney, to whom the land had been conveyed by Quinn the day after his said scrip location was made.

In support of the present application it is alleged, in substance, that the said Castle Land Company had, prior to the said decision in McGregor et al. v. Quinn, sold and conveyed to applicant and various and

sundry other parties by deeds of general warranty a large number of town lots from said land, the title whereto necessarily failed upon the cancellation of said scrip location made by said Quinn, and that thereupon a number of suits had been brought in the courts against the said company by its said lot grantees, seeking to recover the purchase money paid by them; that immediately after the said adverse decision upon the company's said motion for review in McGregor et al. v. Quinn, it set about to procure title to the land by some other means, and in its endeavor so to do it had procured the entry of said land for its own benefit through the aid of one William Moses, a professional scrip dealer and entry maker of Denver, Colorado, under soldier's additional homestead application filed October 30, 1894, by one William Wilson who had been brought from the State of Illinois for the purpose; that as soon as Wilson's entry was made he conveyed the land to said Moses, whereupon Moses at once conveyed the same to the company, and as soon as the company had obtained its deed from Moses it proceeded to set up its newly acquired title as a defence in all the suits brought against it by its said lot grantees, as aforesaid, of whom this applicant was one; that thereupon a contest was instituted by Arthur P. Heywood against said Wilson entry, based upon the facts aforesaid, alleging the same to have been fraudulently made; that a hearing was had upon the contest, whereat the entry was defended by the Castle Land Com. pany, Wilson not appearing. It is the record in that case which is now asked to be certified here.

As grounds for the writ of certiorari it is alleged, in substance, that the Heywood contest was carried on partly at the expense of applicant and other lot grantees similarly situated; that the local officers found for the defendant company, and the company thereupon induced Heywood to waive his right of appeal, which he did; that an application to intervene, accompanied by an appeal from the decision of the local officers, was filed by this applicant, but the same was denied by your office, the decision of the local officers held to be final in view of Heywood's waiver of his right of appeal, and the Wilson entry confirmed. An appeal from your said office decision was thereupon filed by H. F. Collett and this applicant, as interveners and parties in interest, but your office held that they had no such interest as entitled them to the right of appeal, or to intervene and be heard, and declined to recognize their said appeal. Certiorari is now asked by Barbour on the ground of his alleged standing as a party in interest, and also, as a friend of the government.

Barbour and Collett appear from the facts alleged to be lot purchas ers from the said company and to have furnished part of the money to carry on the Heywood contest, being interested in the subject matter thereof because the title to their lots was necessarily involved in the controversy. I think they have shown such an interest as entitles them to be heard and that their application to intervene and appeal, in

view of the circumstances, should have been allowed. Clearly it is to their interest to see that the company furnishes them a good title, and in view thereof it is their right to protest against the title which the company is endeavoring to procure, if it is in fact defective as they allege. The validity of that title was directly in issue in the Heywood contest, and it is now averred that Heywood was induced by the company not to appeal, thus leaving those who had aided him in carrying on the contest, because of their interest in the same, without remedy, unless they are allowed to intervene and be heard. The applicants to intervene stand in the position of protestants in interest. They are interested in the title which it is proposed to acquire from the government, and in my judgment that interest is such as entitles them to be heard before the title passes out of the government. If tainted with fraud the title would not be good, and might be assailed and overthrown even after patent.

Moreover, the application presents such a case, in my opinion, as calls for the exercise of the supervisory authority vested in the Secretary of the Interior in matters involving the disposition of the public lands. You are therefore directed to certify the record and proceedings in the case to this Department for consideration and such action as may be found necessary and proper.

JABEZ B. SIMPSON ET AL.

Motion for review of departmental decision of February 4, 1896, 22 L. D., 97, denied by Acting Secretary Reynolds, July 1, 1896.

ABANDONED MILITARY RESERVATION-PRICE OF LANDS.

FORT CUMMINGS.

Lands within an abandoned military reservation subject to disposition under the act of August 23, 1894, belonging to the single minimum class, must be sold at $1.25 per acre, though appraised at a less figure.

Acting Secretary Reynolds to the Commissioner of the General Land Office, (A. M.)

July 1, 1896.

Under cover of your letter of the 1st instant you submitted the report of the appraisers appointed to appraise the lands in the aban doned military reservation of Fort Cummings, New Mexico, under the provisions of the act of July 5, 1884, 23 Stat. 103.

The area of the reservation is 23,150 acres, and, with the exception of a few subdivisions valued at $1.25 per acre, the lands have been valued by the appraisers at ten cents and twenty-five cents per acre in about equal proportions. The general appraiser reports that the

appraisers look on the lands as valueless, because there is no water with which to irrigate them, that so far as known the lands contain no minerals and that there is but one person living on the entire reservation. These conditions account for the low valuation.

By reason of the area and date of transfer of the reservation the lands thus appraised are subject to disposal under the act of August 23, 1894, 28 Stat., 491. This act opens the lands to settlement under the public land laws, and requires parties making homestead entries thereof to pay for the lands "not less than the value heretofore or hereafter determined on by appraisement nor less than the price of the land at the time of the entry."

Under the circumstances of the case you have expressed the opinion that, as the lands are of the single minimum class, valued at $1.25 per acre, they cannot be disposed of at a less figure, notwithstanding the lesser valuation placed thereon by the appraisers, in view of the wording in the act, viz: "nor less than the price of the land at the time of the entry." In accordance with this view you have recommended that the price be fixed at $1.25 per acre and have prepared and submitted instructions to the local officers at Las Cruces, New Mexico, for the disposal of the lands, with the necessary exception of certain named tracts, on that basis.

I concur in your view respecting the price that must govern the disposal of the lands and it is hereby fixed at $1.25 per acre.

The instructions refer to those of the 25th ultimo to the same officers respecting the disposal of the lands in the Fort Craig abandoned military reservation as a guide in the disposal of the lands in this reservation. They thus follow the ruling laid down in departmental decision of April 9, 1895, 20 L. D., 303, and have been approved.

FYFFE v. MOOERS.

Motion for review of departmental decision of September 23, 1895, 21 L. D., 167, denied by Acting Secretary Reynolds, July 1, 1896.

RAILROAD GRANT-LANDS EXCEPTED-PRE-EMPTION FILING.

FISH. NORTHERN PACIFIC R. R. Co. (ON REVIEW).

An uncanceled pre-emption filing of record at the date when a railroad grant becomes effective excepts the land covered thereby from the operation of the grant, even though at such time the statutory life of the filing has expired. Secretary Smith to the Commissioner of the General Land Office, July (F. W. C.)

7, 1896.

With your office letter of November 23, 1895, was forwarded a motion filed on behalf of the Northern Pacific R. R. Company, for the review

of departmental decision of September 23, 1895 (21 L. D., 165), in the case of George Fish against said company, in which it was held (syllabus) that

An uncanceled pre-emption filing of record at the date when a railroad grant becomes effective excepts the land covered thereby from the operation of the grant, even though at such time the statutory life of the filing has expired.

This land is within the primary limits of the grant for the road extending from Portland, Oregon, to Tacoma, Washington, as shown by the map of definite location filed May 14, 1874. It is also within the pri mary limits of the grant for the Cascade branch of said road, as shown by the map of definite location filed March 26, 1884.

One Edward Davis filed a pre-emption declaratory statement covering this land on January 13, 1870, in which settlement was alleged December 21, 1869.

Said filing was never consummated to cash entry, but was of record uncanceled at the date of the filing of the map of definite location on account of both lines named, and was, under the authority of the decision of the Supreme Court in the case of Whitney v. Taylor (158 U.S., 85), held to be sufficient to except the land covered thereby from the operation of the grant for said company.

The motion questions the correctness of the application of the decision of the court in the case named, to the facts in this case, urging that the filing in question was an expired filing, that is, the pre-emptor had failed to make payment within the statutory period, which expired before the filing of said maps of definite location, while in the case before the court, the filing by Jones had not expired at the date of the filing of the map of definite location. Further, that the construction placed upon the decision of the court reversed the uniform decisions of this Department for the past thirty years upon mere dicta.

We will first look to the decision of the court. In said decision the court first reviews its previous decisions holding lands to be excepted from railroad grants on account of certain claims, viz: (1) In the case of Kansas and Pacific Ry. Co. v. Dunmeyer (113 U. S., 629), an abandoned homestead entry of record at the date of definite location; (2) Hastings and Dakota R. R. Co. v. Whitney (132 U. S., 357), a homestead entry based upon an illegal affidavit; (3) Bardon v. Northern Pacific R. R. Co. (145 U. S., 535), an illegal pre-emption entry of record at the date of the passage of the act making the grant, and (4) Newhall v. Sanger (92 U. S., 761), a claim under an invalid Mexican grant undetermined at the date of definite location, and thus proceeds:

Although these cases are none of them exactly like the one before us, yet the principle to be deduced from them is that when on the records of the local land office there is an existing claim on the part of an individual under the homestead or preemption law, which has been recognized by the officers of the government and has not been canceled or set aside, the tract in respect to which that claim is existing is excepted from the operation of a railroad land grant containing the ordinary excepting clauses, and this notwithstanding such claim may not be enforceable by the