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 claimant, and is subject to cancellation by the government at its own suggestion, or upon the application of other parties. It was not the intention of Congress to open a controversy between the claimant and the railroad company as to the validity of the former's claim. It was enough that the claim existed, and the question as to its validity was a matter to be settled between the government and the claimant, in respect to which the railroad company was not permitted to be heard.

It is necessary to apply this rule to the case here presented. It is contended in support of the appeal that by omitting the tract here involved from his homestead entry, "Fish, in-law, abandoned all claim and surrendered all the rights he ever had thereto under the pre-emption law"-the case of Nix v. Allen (112 U. S., 129), being cited in support of the contention. In that case the court said specifically that one who, having filed pre-emption declaratory statement for a quartersection of land, afterwards made pre-emption entry for one-fourth of said quarter-section

in law thereby abandoned her settlement on the other three quarters of the quarter section for the purposes of pre-emption and surrendered all the pre-emption rights she ever had in them.

This ruling has been followed by this Department in the case of Holm v. St. Paul, Minneapolis and Manitoba Ry. Co. (16 L. D., 251), and the land thus omitted from final proof was held to have passed under a grant taking effect subsequently to the date of such proof. These cases do not, however, cover the exact question involved here.

The act of May 20, 1862 (12 Stat., 392), known as the "homestead law," and afterwards incorporated into the Revised Statutes as section 2289, declares that one possessing certain prescribed qualifications "shall be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which such person may have filed a pre-emption claim." The ruling of this Department has been from the first that a transmutation of a filing exhausts the pre-emption right. It has further been held that one who makes homestead entry for a part of the land covered by his pre-emption filing thereby abandons his pre-emption claim. In the case of Neilson v. Northern Pacific Railroad Company (9 L. D., 402), it was said:

It is clear, that the making homestead entry of another tract was an abandonment in law of his claim to that part of the tract covered by his pre-emption filing which was not embraced in his homestead entry.

In Northern Pacific Railroad Company v. Harris (12 L. D., 351), it was said:

It appears from the record that Harris-May 1, 1880-changed his pre-emption filing and made homestead entry of that part which embraced the land in the even section. In so doing he abandoned his filing for the land in the odd as well as that in the even section, and exhausted his rights and privileges under the pre-emption law.

If the rule laid down in these decisions is to prevail it must be held that the tract in question here was free from claims at the time the grant took effect and passed to the company.

ence.

The record in this case showed the filing of Fish, because it had not been formally canceled; that is to say, no formal statement appeared upon the record to the effect that said filing, and the claim evidenced thereby, had been abandoned. The same record showed, however, that Fish had taken such action as constituted, in law, an abandonment of his pre-emption claim. It cannot be said in view of this condition of affairs that the record showed an existing claim. If Fish had filed in the local office a formal relinquishment of his claim and this fact had been noted on the record, but no formal cancellation noted, it would not be held that his claim still existed, or that the record showed its existHe did not file a formal relinquishment, but he did that which just as unmistakably and effectually evidences his abandonment of all claim under his filing. As a matter of law Fish had abandoned his claim under the pre-emption filing before the grant to the railroad company took effect, and the records of the land department disclosed this fact. Fish afterwards submitted final proof under his homestead entry in 1876, in which it is shown that he had lived on the land covered by it, from June 10, 1871, to the date of said proof. This shows that he had in fact, as well as in law, abandoned all claim to the tract here in question, prior to the date the grant took effect. The tract involved was free from claim when said grant took effect and passed to the company thereunder.

The decision appealed from is reversed.

RAILROAD GRANT—INDEMNITY SELECTION-SECTION 5, ACT OF MARCH

3, 1887.

HUMISTON V. NORTHERN PACIFIC R. R. Co. et al.

The occupancy of land for the sole purpose of speculating in the improvements thereon does not constitute a bona fide settlement that will except the land from indemnity selection.

An indemnity selection must fail in the absence of a valid basis therefor.

The odd-numbered sections within the limits of the Yakima Indian reservation did not pass under the grant to the Northern Pacific company, and afford legal bases for indemnity selections by the company.

The right of a purchaser from a railroad company to perfect title under section 5, act of March 3, 1887, where the title of the company fails, takes precedence over a subsequent adverse timber culture application.

Secretary Francis to the Commissioner of the General Land Office, Decem(I. H. L.)

ber 23, 1896.

(J. L.)

This case involves the S. of the NW. and the N. of the SW. of section 3, T. 15 N., R. 45 E., Walla Walla land district, Washington. On August 18, 1890, Henry Humiston filed his application to make

timber culture entry of said tracts, which was received, noted, and held by the local officers subject to the claims of the Northern Pacific Rail road Company, who were immediately notified of said application.

On September 2, 1890, the company filed a written protest against said application to enter, alleging:

That its map of definite location was filed on October 4, 1880: (2) That said tracts were embraced in its indemnity selection list No. 2, which was on December 17, 1883, filed in the district office, and approved and certified by the local officers: And (3) that said tracts are within the indemnity limits of the company's grant, and have never been and are not now, subject to any rights or claims adverse to the company's right to select them as indemnity.

A hearing was ordered and had; at which Thomas J. Adams as purchaser of said tracts from the railroad company, was permitted to intervene; and witnesses were examined in the presence of all parties.

On May 8, 1891, the local officers found that said tracts were not subject to selection by the company, and recommended that Humiston's application to make timber culture entry of them, be allowed.

An appeal was taken, and on April 30, 1895, your office found that the tracts in controversy, on December 17, 1883, were not occupied by a bona fide settler within the meaning of the settlement laws, and were subject to selection by the company on that date. Consequently, your office reversed the decision of the local officers, and rejected Humiston's timber culture application.

Humiston appealed to this Department and specified as errors:

(1) That the finding of your office that the tracts in controversy on December 17, 1883, were not occupied by a bona fide settler, and were subject to selection by the company was erroneous: (2) That the company's selection list No. 2 filed December 17, 1883, was illegal, and ineffective, because no lands lost in place were specified therein as a basis for the selection of the tracts in question as indemnity: (3) That notwithstanding subsequent orders, rules and regulations of the Land Department, the company did not specify any lands lost in place as basis for the selection of the tracts aforesaid, until August 30, 1892,-more than two years after the filing of Humiston's application to make entry: (4) That the lands finally specified as basis for the selection, to wit: odd-numbered sections within the Yakima Indian reservation, were not a lawful sufficient basis, inasmuch as no lands in place were ever lost by the company within said Indian reservation: And (5) that on August 18, 1890, the date of Humiston's application, said tracts were part of the public domain, and legally subject to entry by him.

It was proved that in the year 1887, Thomas J. Adams bought the tracts of land in controversy from the Northern Pacific Railroad company, paid for them, and received a warranty deed therefor. He also bought and paid for the improvements on said land of one S. G. King, who claimed to have been a bona fide and duly qualified settler on said tracts, on December 17, 1883, the date of the company's selection. The evidence by a clear preponderance justified your office in finding that said S. G. King was not a bona fide settler and that he occupied and held possession of the land solely for the purpose of speculating on the improvements thereon; and in holding that said tracts were subject to the selection made by the company, Provided, such selection

were made in accordance with law and the rules and regulations of the Land Department, and prior to the filing of Humiston's application to make entry.

It appears by the records of your office that the original selection list No. 2 of December 17, 1883, designated no bases in support of the selections contained therein: That on October 26, 1887, the company in support of said selections, filed a list of alleged losses in bulk, not arranged tract for tract with the selections, and consisting wholly of -odd-numbered sections of land lying within the Yakima Indian reservation which was then unsurveyed: That on August 3, 1892, the company filed an amended list of its selections of December 17, 1883, rearranged so as to designate the losses tract for tract with the selected lands: According to said rearrangement, a "part of section 35, T. 8 N., R. 15 E.," was designated as the basis for the selection of the SW. of the NW. of section 3, T. 15 N., R. 45 E. (part of the land involved herein); and part of section 1, T. 9 N., R. 15 E., was designated as basis for the selection of the other three forties of the land involved.

It further appears that on January 25, 1896, the company filed another amended list from which it omitted "part of section 35, T. 8 N., R. 15 E.," as a basis for the SW. of the NW. of section 3 aforesaid, and substituted in lieu thereof the SE. of the SE. of section 3, T. 6 N., R. 16 E., which was also within the Yakima Indian reservation, and which for other reasons stated in your office letter of October 27, 1896, filed in this case, was not a legal basis for an indemnity selection.

It follows that the company's selection of the SW. of the NW. of section 3, T. 15 N., R. 45 E., is invalid, and must be rejected, because it is not supported by any sufficient basis.

Ever since the case of Dellone v. Northern Pacific Railroad company, decided March 2, 1893, and reported in 16 L. D., 229, this Department has held that odd-numbered sections of land within the limits of the Yakima Indian reservation did not pass under the grant to the Northern Pacific Railroad Company, and that they afford proper and legal bases for indemnity selections by the company. It follows, therefore, that the company's selections of the SE. 4 of the NW. 4, and the NE. of the SW. and the NW. of the SW. of section 3, T. 15 N., R. 45 E., are valid and must be approved, and that Humiston's application to make timber culture entry must be rejected as to the three forty-acre tracts last above described.

It appears by the evidence that the intervenor, Thomas J. Adams, on July 15, 1887, in good faith purchased from the railroad company the SW. of the NW. of section 3, T. 15 N., R. 45 E., (together with the other three forty-acre tracts, above described), for valuable consideration which has been duly paid, and has improved and cultivated the same at great expense. Therefore, your office is hereby directed, to permit said Adams, at any time within sixty days after service of notice that this decision has become final, to make application to 1814-VOL 23—35

purchase said SW. of the NW. 4 of section 3, T. 15 N., R. 45 E., from the government under the fifth section of the act of March 5, 1887 (24 Stat., 556); and in the meantime, and until the result of such application shall have been determined, action on Humiston's application to make timber-culture entry of said SW. 4 of the NW. of section 3, shall be suspended.

Your office decision of April 30, 1895, is hereby modified as indicated by the foregoing directions.

MINING CLAIM-ADVERSE-TIME OF FILING.

GIROUX v. SCHEURMAN.

The local officers are not required to transact business out of office hours, and may therefore properly refuse to accept and file an adverse claim tendered out of office hours on the sixtieth day of publication; but if such claim, so tendered, is accepted and filed it must be regarded as filed in time.

Secretary Francis to the Commissioner of the General Land Office, Decem (I. H. L.) ber 23, 1896. (P. J. C.)

It appears that George Scheurman made application for patent for the Tough Nut lode claim in Prescott, Arizona, land district; that notice thereof was given by publication, commencing June 14, 1895. The sixty days period within which adverse claims should be filed, as provided by section 2325 (Revised Statutes), expired August 13.

Joseph L. Giroux presented an adverse, which was endorsed as follows: "Filed in U. S. Land Office, August 13, 1895, at 8:30. P. M." Then follows this endorsement:

Rejected as an adverse this 14th day of August, 1895, being filed out of time, but allowed as a quasi contest.

From this action of the register Giroux appealed, and your office, by letter of November 6, 1895, reversed his action, whereupon the applicant prosecutes this appeal.

The General Circular (February 6, 1892), on page 107, in reference to the duties of registers and receivers, says:

They will be in attendance regularly at their offices, keeping the same open for the transaction of business from 9 o'clock A. M., till 4 o'clock P. M., etc.; applications to make entry can not be received by the register or receiver out of office hours, nor elsewhere than at their offices, etc.

The register rejected the adverse doubtless on the theory that the official day closed at 4 o'clock P. M. While this is true, and while he might under the rule have refused to accept and file the adverse after that hour, he did not so refuse, and having accepted and filed said adverse after office hours on the sixtieth day of publication, it will be treated as having been filed in time. In the case of the "Dolly Varden" mine (Copp's U. S. M. L., 262) the adverse claim was presented on