December 10, 1874, on which final homestead certificate issued February 17, 1881, and patent issued March 30, 1882.

On April 4, 1890, Wallace presented an application to make additional homestead entry for S. of SE. 4, Sec. 27, T. 18 N., R. 18 E. The railroad company was duly notified of said application, and filed objec tions against the acceptance of the same May 23, 1890.

The land applied for is within the limits of the withdrawal upon the map of general route of the branch line of said road, filed August 15, 1873, but was restored in November, 1879, after the limits were adjusted to the line of the amended general route filed June 11, 1879. Upon the definite location of the road, as shown upon the map filed May 24, 1884, the land in controversy fell within the primary or granted limits of said road.

On July 28, 1887, said railroad company listed the land in question under acts of July 2, 1864 (13 Stat., 356), and May 31, 1870 (16 Stat., 378), per list No. 7.

The company filed a map of amended general route on June 11, 1879, which was the basis of the abrogation of the withdrawal of August 15, 1873, and of the restoration of the land then withdrawn, in November, 1879.

The hearing on Wallace's application to make additional homestead entry having been closed, on September 17, 1890, the register at North Yakima rendered the decision of the local office, holding that the claim of Wallace to the tract in August, 1873, was of such character as to except it from the operation of the grant to the company; that his continued claim and cultivation of the land up to the present, excepted it from the withdrawal of June 11, 1879, and also from the withdrawal for the definite location of the road, May 24, 1884. The company appealed from this decision, and on May 11, 1895, your office reversed the finding and held, that Wallace could not claim the benefit of any settlement rights antedating the perfection of his homestead entry, upon which patent issued March 30, 1882, and upon which his application to make additional homestead entry is predicated.

From this decision Wallace appeals.

Upon examination, it appears that Wallace was claiming the land in controversy as early as 1870; that he commenced to work upon it in the fall of 1873, and in 1874 planted several acres of it to crop, and has ever since claimed, cultivated and used it. His original occupancy, he states, was with a view to its acquisition under timber culture laws, but he does not seem to have placed such claim of record at any time, and inasmuch as he was not in the year 1873 residing upon it or contemplating settlement upon it, it would seem that his claim was not of such character on August 15, 1873, as to except it from the grant to the company, if the withdrawal of 1873 had been valid, but the route of 1873 was abandoned and all lands along that line released. (Morrill r. Northern Pacific R. R. Co., 22 L. D., 536.) He continued to cultivat

and claim it, however, and upon the perfection of his homestead entry of the eighty acres adjoining it, he changed his purpose of acquiring title under timber culture laws, and adopted that of covering it by an additional homestead entry, his use and possession of it continuing.

Your office held in effect that he could have no lawful settlement upon this land while residing upon the eighty acres for which he had made homestead entry, and, inferentially, that when he commenced his cultivation and use of the land in question, it was in reservation. It may be safely said upon the authority of Morrill v. Northern Pacific R. R. Co., already quoted, that it was not in reservation by either the withdrawal of 1873 or of 1879, and was not withdrawn, if at all, until May 24, 1884. Wallace's use and cultivation of the land covered the period from August, 1873, to May 24, 1884, the date of the company's definite location, and therefore a period during which such use and cultivation might ripen into a right in Wallace preceding the definite location of the road. Did Wallace predicate such right? The claim of the company to this land is based upon the act of July 2, 1864 (13 Stat., 365). The third section of said act grants to the company every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, subject to the following qualification, viz:

Whenever on the line thereof, the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office.

The lands therefore covered by the granting act are subject to the lawful claims and rights of settlers existing at the time of the passage of the act or which may exist at the time the line of the road is definitely fixed, and the map of location filed. Wallace's claim on the land as a timber culture entry would have excepted the land from the grant, if it had been of record. He changed his purpose of entering it for timber culture and continued to cultivate and use it with a view to entering as additional homestead. Could he lawfully do this? This change of purpose seems to have occurred in March, 1882. At the time Wallace made his homestead entry in an even section within the limits of the company's grant, he was restricted to an entry of eighty acres only. The act of March 3, 1879, provides:

That from and after the passage of this act, the even sections within the limits of any grant of public lands to any railroad company, or to any military road company, or to any State in aid of any railroad or military road shall be open to settlers under the homestead laws to the extent of one hundred and sixty acres to each settler, and any person who has, under existing laws, taken a homestead on any even section within the limits of any railroad or military road land grant, and who by existing laws shall have been restricted to eighty acres, may enter under the homestead laws an additional eighty acres adjoining the land embraced in his original entry if such additional land be subject to entry; or if such person so elect, he may surrender his entry to the United States for cancellation, and thereupon be entitled to enter lands under the homestead laws the same as if the surrendered entry had

not been made. And any person so making additional entry of eighty acres, or new entry after the surrender and cancellation of his original entry, shall be permitted so to do without payment of fees and commission; and the residence and cultivation of such person upon and of the land embraced in his original entry shall be considered residence and cultivation for the same length of time upon and of the land embraced in his additional or new entry, and shall be deducted from the five years' residence and cultivation required by law: Provided, That in no case shall patent issue upon an additional or new homestead entry under this act until the person has actually, and in conformity with the homestead laws, occupied, resided upon, and cultivated the land embraced therein at least one year. (20 Stat., 472.)

It seems clear that when in March, 1882, Wallace commenced to use and cultivate the land with a view to its incorporation with his original homestead adjoining thereto, that he had a right under the law to do so, and that from that date his residence on and cultivation of his original homestead in connection therewith, would be deemed residence on and cultivation of this land. The right thus predicated existed when the company definitely located the line of its road, May 24, 1884, and the land was thereby excepted from the grant.

Your office decision is accordingly reversed, and Wallace's applica tion to make additional homestead entry for the land in question is accepted, subject to his compliance with the law in such cases.

DREWICKE v. THE STATE OF MINNESOTA.

Motion for review of departmental decision of July 23, 1896, 23 L. D., 148, denied by Secretary Francis, October 16, 1896.

OKLAHOMA TOWN LOTS-TRANSFEREE-DEED.

HARRINGTON ET AL. v. HEGARTY.

The right of an assignee claiming through a town lot occupant, who has complied with the law, to receive a deed, is not affected by the fact that the application of such assignee is in the interest of one who was disqualified as an original lot occupant on account of being inside the Territory at the hour of opening. Secretary Francis to the Commissioner of the General Land Office, October (W. A. L.) 16, 1896. (C. J. W.)

John Harrington, William Reaves, Martha Blanchard, and Charles E. Hegarty, filed applications adverse to each other for a deed to lot 19, block B, Perry, Oklahoma, and on the 8th of October, 1894, a hearing was had between said parties before the townsite board, at which they found that one W. J. Taylor was the first legal occupant of the lot, and that his occupancy was maintained and was continuing at the date of the townsite entry, and that Hegarty was a bona fide purchaser from him, since that date, had made valuable improvements, and was therefore entitled to a deed. From this decision the losing applicants all appealed.

On July 1, 1895, your office affirmed the finding of the board. The losing applicants made further appeal, and on February 17, 1896, your office decision was affirmed here. On June 19, 1896, Harrington filed a motion for new trial, based on alleged newly discovered evidence, which alleged evidence is substantially—

That at the date of Hegarty's application for a deed J. E. Malone was owner of a half interest in said lot, and that since the application Hegarty has conveyed the other half to the wife of J. E. Malone; that said application is for the benefit of Malone, who was a "sooner" and disqualified.

The motion was entertained here, has been served, and is now to be considered.

It is not insisted that at the date of Hegarty's purchase from W. J. Taylor, who was found to be the occupant in his own right of the town lot in question, at the date of the townsite entry, Malone had any interest in it, but that after Hegarty's purchase from Taylor, and before Hegarty as assignee of Taylor applied for a deed, Malone became interested in the lot to the extent of one half. That the conveyance from Taylor to Hegarty was a valid transfer of his right to a deed seems free from doubt. The entry of the land for townsite purposes, by trustees, is by the law declared to be for the benefit and use of its occupants, at the date of such entry, according to their respective interests. Taylor then had earned a deed to the lot in question, nineteen days before the execution of his deed to Hegarty. Under date of November 30, 1894, the Secretary of the Interior promulgated certain rules for the guidance of township trustees in the execution of their trusts (19 L. D., 334). The first paragraph of Rule No. 7 thereof is as follows:

The entry having been made for the use and benefit of the occupants, only those who were occupants of lots at the date of entry, or their assignees thereafter, are entitled to the allotments hereinafter provided for.

Hegarty then, at the time he became the assignee of Taylor, was vested with the right to a deed for the lot in lieu of Taylor.

The motion presents this question—

Was Malone by reason of his presence inside the Territory to be opened, at the hour of opening, disqualified from becoming thereafter the owner by purchase of any land in the Territory, after title to the same had been earned by a qualified settler, acting for himself?

The last clause of the proviso to Sec. 13 of the act of March 2, 1889 (25 Stat., 980), is as follows:

And provided further, That each entry shall be in square form as nearly as practicable, and no person be permitted to enter more than one-quarter section thereof, but until said lands are opened to settlement by proclamation of the President, no persons shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands, or acquire any right thereto.

1814-VOL 23-25

The town lot in question is in the Cherokee Outlet, and was opened to settlement September 16, 1893 (27 Stat., 612). The prohibitory clause in said act is as follows:

No person shall be permitted to occupy or enter upon any of the lands herein referred to, except in the manner prescribed by the proclamation of the President opening the same to settlement; and any person otherwise occupying or entering upon any of said lands shall forfeit all right to acquire any of said lands. (27 Stat., 643.)

In the proclamation of the President issued August 19, 1893, opening the Cherokee Outlet (28 Stat., 1222), the inhibition above quoted was set out in the precise language of the statute. It may be then said that the inhibition against "soonerism" applies to lands in the Cherokee Outlet. The words "any of these lands" used in said prohibitory clause include town lots, so that the inhibition applies to entry or occupancy of town lots in said Territory.

The prohibitory clauses quoted will be more fully understood by considering them in connection with the act of March 1, 1889 (25 Stat., 757), the act ratifying and confirming an agreement with the Muscogee (or Creek) Indians, whereby a large body of their lands had been ceded to the United States. The second section of the act is as follows:

That the lands acquired by the United States, under said agreement, shall be a part of the public domain, but they shall only be disposed of in accordance with the laws regulating homestead entries, and to the persons qualified to make such homestead entries, not exceeding one hundred and sixty acres to one qualified claimant. And the provisions of section twenty-three hundred and one of the Revised Statutes of the United States shall not apply to any lands acquired under said agreement. Any person who may enter upon any part of said lands in said agreement mentioned prior to the time that the same are opened to settlement by act of Congress shall not be permitted to occupy or to make entry of such lands or lay any claim thereto.

In the case of Smith v. Townsend (U. S., 148-490), the supreme court construed the prohibitory clause last quoted, together with the one contained in the act of March 2, 1889, and treated them as signifying the same thing, and that under them, presence in the Territory at the hour of opening, disqualified a person to take a homestead therein. The court declares it was

the evident intent of Congress by this legislation to put a wall around this entire territory, and disqualify from the right to acquire under the homestead laws, any tract within its limits, every one who was not outside of that wall on April 22. When the hour came the wall was thrown down, and it was a race between all outside, for the various tracts they might desire to take to themselves as homesteads.

It would therefore seem that the purpose of the prohibition was to secure fair play amongst all homeseekers under the homestead laws, and that the prohibition would cease to operate as to any particular tract when it ceased to be subject to the homestead or settlement laws. The town lot in question ceased to be subject to occupancy and settlement under townsite laws before Malone sought to acquire any interest in it; nor does it appear that he seeks to acquire any right to it through