service of notice, the testimony heretofore presented may be presented in evidence, upon which you will render your decision and give the usual notice thereof, and in due time report to this office.

On April 6, 1893, Mrs. Rutledge filed a new affidavit of contest against the entry, alleging that Mr. Stewart died prior to February 24, 1891; that neither Rebecca A. McKeurley nor any other heirs of said Stewart had resided upon or cultivated the land since his death, and that she, the said McKeurley, and the said heirs, had wholly abandoned the land for more than one year.

On that same day (April 6, 1893), but an hour or two earlier, one William H. Gaunt filed affidavit of contest against Stewart's entry, alleging that Stewart had died in the year 1891; that his heirs, if any, were unknown; that they had for more than six months wholly abandoned the land; and praying that he be permitted to prove said allegations. On April 21, 1893, the local officers made an order allowing Gaunt to make service of notice of hearing by publication, making Mrs. Rutledge a party defendant; and May 31, 1893, was fixed as the date of hearing. On the same day, April 21, 1893, counsel for Mrs. Rutledge filed a motion, praying that a notice of hearing of her original contest, filed October 6, 1892, be issued; that said contest be considered prior and superior to that of Gaunt, filed April 6, 1893; and that Gaunt's contest be suspended until after the final termination of her contest.

This motion the local officers overruled, and ordered that all parties claiming any interest in said homestead entry be made parties.

On the day fixed for the hearing in Gaunt's contest (May 31, 1893, supra), both Gaunt and Mrs. Rutledge appeared by their attorneys. Neither Mrs. McKeurley nor any other heirs of Stewart appeared, and their default was entered. Testimony was taken in support of Gaunt's contest affidavit.

It appearing that Mrs. Rutledge had not made service as directed in your office letter of March 14, 1893 (supra) her contest was continued until August 15, 1893. On that day she appeared with her attorneys, and renewed her motion that her contest be considered prior and superior to Gaunt's; and to suspend further action on Gaunt's contest until the termination of her own. This time the local officers sustained said motion. Thereupon Mrs. Rutledge's contest was proceeded with and closed, and decision rendered by the local officers in her favor. From this action and decision Gaunt appealed to your office, contending that Mrs. Rutledge ought not to have been allowed to amend her contest against a deceased entryman in the face of his intervening adverse right.

Your office decision of January 11, 1894, affirmed that of the local officers.

Thereupon Gaunt appeals to the Department.

It is to be observed that Mrs. Rutledge's original contest against Stewart's entry was accepted by the local officers. If there was any error in proceeding to a hearing on her first contest affidavit, it was the

fault of the officers of the government in misleading her by such acceptance. If they had rejected it, and so notified her, a very different question might have arisen. Again, your office, upon receiving the record, returned it, giving her permission to file an amended affidavit which she did within a reasonable period. The manifest trend of departmental decisions is, to allow amendments, even in the face of an intervening claim, unless they introduce a substantially new ground of contest, or otherwise differ essentially from the original affidavit, so as to prejudice the right of the intervening claimant. In the case at bar, on the contrary, if Mrs. Rutledge were inhibited from amending her original affidavit, it would be greatly to her prejudice and loss, she having previously furnished all the proof necessary to show abandonment and to secure the cancellation of Stewart's entry, while the intervening claimant had done nothing whatever.

In the case of Wallace v. Woodruff (19 L. D., 309, syllabus), the Department held:

The amendment of an affidavit of contest relates back to the original, and excludes intervening contests, where the said amendment does not introduce a new ground of contest, but merely makes more specific and definite the original charge.

Still more completely on all-fours with the case at bar was that of Norton v. Thorson et al. (10 L. D., 261), in which the departmental decision is correctly summed up by the syllabus as follows:

The death of the entryman prior to the initiation of contest being shown, . . the contestant should be required to make such heirs parties defendant, by amendment of the charge and due service of notice. The right of the contestant to thus amend on suggestion of the entryman's death is not defeated by an intervening contest.

The decision of your office was correct, and is hereby affirmed.

RAILROAD GRANT-INDEMNITY WITHDRAWAL-CONFLICTING GRANTS—

FORFEITURE.

TOBIN ET AL. . TRIPP.

The status of lands withdrawn by executive order for indemnity purposes under the grant of 1856, for the benefit of the Omaha company, and afterwards falling within the primary limits of the grant of 1864, to the Wisconsin Central, was changed by operation of the latter grant, and definite location thereunder, from lands reserved by executive order for indemnity purposes, to granted lands, and, on the failure of the latter company to construct its road opposite said lands, the grant therefor was forfeited, and the title to the lands embraced therein restored to the United States; and by the terms of the act of forfeiture said lands were made subject to settlement after the passage thereof. Secretary Smith to the Commissioner of the General Land Office, July (F. W. C.)

7, 1896.

With your office letter of May 16, 1896, was forwarded a motion for review of departmental decision of March 27, 1896, in the case of

Thomas Tobin and Claud Goff v. Winfield Tripp, involving the SE. 1 of Sec. 21, T. 48 N., R. 8 W., Ashland land district, Wisconsin.

With your office letter of May 22, 1896, was also forwarded a motion for review of said decision, filed on behalf of Robert W. Parsons, intervenor; also a letter from Claud Goff in which he asks for a "review or re-hearing of said decision."

As stated in the previous opinion in this case this tract is within the fifteen-mile indemnity limits of the grant made by the act of June 3, 1856, to aid in the construction of the Bayfield Branch of the Chicago, St. Paul, Minneapolis and Omaha Railroad, and is also within the ten-mile primary limits of the grant made by the act of May 5, 1864, to aid in the construction of the Wisconsin Central Railroad.

At the time of the adjustment of the Omaha grant it was held that the reservation for indemnity purposes on account of that grant was sufficient to defeat the attachment of rights under the grant of May 5, 1864, for the Wisconsin Central Railroad, and this tract, with others, not being needed in the satisfaction of the Omaha grant, was ordered restored to entry on November 2, 1891.

Under the terms of this order of restoration acts performed prior to the day set for the opening were held to be ineffectual as the initiation of a settlement right.

By the decision of the Supreme Court in the case of the Wisconsin Central Railroad Company v. Forsythe (159 U. S., 46) the previous construction of this Department, as to the effect of the indemnity reservation under the act of 1856 upon the grant made by the act of 1864 for the Wisconsin Central Railroad, was reversed; and following the interpretation of the acts of 1856 and 1864, made by the court, it was held, that the land in question was a part of that granted to aid in the construction of the Wisconsin Central Railroad, and as it was opposite the unconstructed part of that road it was further held, that it was restored to the public domain by operation of the forfeiture declared in the act of Congress approved September 29, 1890, commonly known as the general forfeiture act.

Under the provisions of the act of 1890 settlement rights were protected, and in the decision under review, as it was shown that Tripp was the prior settler and claimant for this land, he was accorded the right of entry under his application, which was presented on November 2, 1891.

In said decision it was stated that:

Your office decision further held that Tobin's settlement made upon the S. 4 of the NW. did not protect him in any claim to any part of the SE. 1, the tract here in question. . . . . Tobin failed to appeal from your office decision, so he is not a party to the present controversy.

In his motion Tobin alleges that an appeal was duly filed, and upon inquiry at your office it is learned that such is a fact. Said appeal bears date of having been filed in the local office on March 14, 1893,

within time. It was not forwarded, however, to this Department, with the record made, but appears to have been in some way mislaid. Its consideration, however, will not alter the judgment previously rendered in favor of Tripp, for the reason that Tobin does not claim to have settled upon the land until after midnight of the day preceding the opening, namely, November 2, 1891, while Tripp was shown to have settled upon the land in 1890.

Goff's request for a review or re-hearing presents nothing in support thereof and is accordingly denied.

The motion filed on behalf of Robert W. Parsons, intervenor, does not disclose the nature of his interest in the tract, otherwise than, in concluding, said motion states:

We therefore, for these reasons, respectfully move review and reconsideration of your decision of March 27, 1896; the rejection of the pending applications to enter, and the allowance of the application of Robert W. Parsons.

In forwarding the papers you fail to make any reference to Parsons' connection with this case, but it is presumed from the above statement that Parsons has applied to make entry of the land involved. His motion might be denied for the reason that he is not a proper party to the controversy which was before the matter of consideration by this Department, but as this case was the first in which the decision of the court in the case of the Wisconsin Central R. R. Co. v. Forsythe (supra) was applied, as affecting the status of settlers, and as the motion raises a question as to the correctness of the application made in said decision, which affects many other tracts having a similar status, I have considered the grounds of error set forth in the motion. In effect the motion urges that the withdrawal made in 1856, of these lands, for indemnity purposes, continued in full force until the restoration ordered on November 2, 1891. With this position I am unable to agree, for, as the grant made by the act of May 5, 1864, was a present grant, acquiring precision by the definite location of the Wisconsin Central Railroad, the status of the lands, which were before reserved lands for indemnity purposes to satisfy the Omaha grant, was changed to granted lands, the title to which passed by the definite location of the Wisconsin Central Railroad, and upon the failure of the Wisconsin Central Railroad Company to construct its road opposite this land, it was necessary, either by judicial proceeding or an act of Congress, to forfeit said grant and restore title to the United States. To hold that, after the grant of 1864, these lands yet remained reserved under the act of 1856, would be to hold, in effect, that the indemnity reservation under the act of 1856, resting entirely upon executive action, could not be annulled by Congress, for its action in making other disposition of the land must be construed as nullifying such previous reservation. That such was the effect of the act of 1864, I have no doubt, as it would be inconsistent to hold that the same lands were granted to one company and yet remained reserved to satisfy the grant for another company.

It is further urged that, whether reserved under the act of 1856 or 1861, the reservation continued until the lands were restored on November 2, 1891.

This position is equally untenable, for, in view of the plain terms of the act of September 29, 1890, recognizing the rights of settlers on the lands forfeited by said act, while it might be possible to hold that they were not formally opened to entry until notice had been given by the Land Department, which I do not mean to hold in this case, yet there can be no doubt but that after the passage of said act all lands restored to the public domain thereby were at once subject to settlement. For the reasons herein given the several motions are denied.

REPAYMENT-DESERT LAND ENTRY.

SIMEON D. WYATT.

A desert land entry made in good faith under the general act of 1877 by one who has theretofore had the benefit of the special act of 1875, is an entry "erroneously allowed," and repayment of the money paid thereon may be properly allowed. Secretary Smith to the Commissioner of the General Land Office, July 7, 1896. (G. C. R.)

Simeon D. Wyatt has appealed from your office decision of January 19, 1895, rejecting his application for repayment of purchase money paid on desert land entry, No. 428, made January 16, 1890, (final certificate No. 164,) for the S. of the NE. 4; the S. of the NW. 4, and the S. of Sec. 20; and the N. of the NE. 4, the N. of the NW. 1, Sec. 29, T. 29 N., R. 14 E., M. D. M., Susanville, California.

Said entry was canceled because the entryman had exhausted his rights by previously filing his declaration to make entry of the S. of the NE. 4, the S. of the NW. and the S., Sec. 29, T. 29 N., R. 14 E., under Lassen county act of March 3, 1875 (18 Stat., 99).

Your office declined to recommend said application for repayment, because there was evidence of mala fides on Wyatt's part, in that he either swore falsely or concealed the facts of his prior entry when he applied to make the entry in question, also when he submitted his final proof thereon.

Appellant insists that there is nothing in the record which justifies the finding that he concealed the facts of his former entry, or that he made any false statements in his final proof.

It appears that Wyatt was allowed to make the entry in question, which is under the act of March 3, 1877 (19 Stat. 377), after he had made a desert land entry for four hundred and eighty acres under the Lassen county act of March 3, 1875, supra. He undoubtedly made an erroneous statement when he applied to make his second entry, for he then swore that he had "made no other declaration for desert lands."