to the railroad company by the homestead entry of one Miller that ex isted at the date of withdrawal, and which was canceled after with drawal and prior to Holmes's entry.

Your office held, that under existing rulings, the entry should have been allowed, but as Holmes's right to the tract in controversy was fully considered and adjudicated under the rulings in force at the date of the cancellation, it could not now be re opened. The Department, however, held that although the case as then presented, between the railroad company and Holmes, was res adjudicata, yet that as it appeared at the date of the application to amend the company was not entitled to the land, having been excepted therefrom by the entry of Miller under the rulings of the Department then in force, there was no reason why the case should not be considered as one solely between Holmes and the government, and that he should be allowed to amend his entry so as to embrace all the land originally covered by it. It was, therefore, held that no other rights having intervened, and the question being one solely between Holmes and the government, he was entitled to such favorable action as would secure to him the benefits of his original entry and the improvements made thereon. It was accordingly directed that his original entry should be re-instated, and that patent should issue to him for the entire one hundred and sixty acres, upon surren dering the patent that had been issued for the eighty acres, it appear. ing that his final proof covered the entire one hundred and sixty acres.

But independently of this, the act of Congress of March 2, 1889, allows an additional homestead entry for such a quantity of land as with the land already entered shall not exceed one hundred and sixty acres, in all cases where a person has hertofore made entry and final proof for a less quantity than one hundred and sixty acres.

Considering that it was the purpose of the act of March 3, 1887, to protect all bona fide settlers in their rights to lands covered by their settlements and improvements, whether the application to enter or file had been rejected, or, having been allowed, was afterwards erroneously canceled, or for any part thereof, by the officers of the Land Department, and where the application was rejected or erroneously canceled as to part of an entry made, such settler would be entitled to perfect his entry to the entire tract originally applied for, notwithstanding the issuance of patent for part of the land, I am of opinion that this case should be re-instated, and that Donovan should be allowed to perfect his entry of the remaining portion of the land covered by his original application in accordance with the fifth section of the act of March 2, 1889.

This class of cases seems to be provided for by that part of the circular to registers and receivers of February 13, 1889 (8 L. D., 348), which is as follows:

While the act contains no provision relative to persons whose entries or filings havnot been canceled, but whose lands have been certified or patented on account of

railroad grants, it follows, as a matter of course, that their rights should be protected, and the mode of procedure in such cases will be the same as in the cases where cancellation has been made, except that the parties should apply to make final proof and payment instead of for re-instatement of entry; but in such case proceedings will be deferred until the title has been restored to the United States as provided by section two of the act. The instructions of November 22, 1887, under this section, are hereby modified in accordance with the foregoing.

The decision of your office is reversed, and you are hereby directed to make demand upon the Chicago, Milwaukee and St. Paul R. R. Company for reconveyance of said land, and if the company refuse to reconvey you will return the papers to the Department to be submitted to the Attorney General for the purpose of instituting proceedings against the company to have said certification canceled as provided for by the second section of the act of March 3, 1887.

Further action on the application of Donovan will be suspended until said land has been reconveyed, or until the final determination of the question by court, in the event the company shall refuse to reconvey said land.

SWAMP LAND-ACT OF MARCH 3, 1857.
STATE OF ARKANSAS.

A list of swamp-land selections filed, and finally rejected, prior to the passage of the act of March 3, 1857, is not within the confirmatory provisions of said act.

Secretary Noble to Commissioner Stockslager, April 1, 1889.

I have before me the appeal of the State of Arkansas from your office decision of January 30, 1888, refusing to approve a list of lands which the State claims to have "selected and reported to the General Land Office as swamp and overflowed lands prior to March third,

A. D., eighteen hundred and fifty-seven."

The act of March 3, 1857 (11 Stat., 251; Rev. Stat., 2484) provides that:

Lands selected and reported to the General Land Office as swamp and overflowed land by the several States entitled to the provisions of said act of September 28, 1850, prior to March third, A. D., eighteen hundred and fifty-seven, are confirmed to said States respectively so far as the same remained vacant and unappropriated and not interfered with by an actual settlement under any law of the United States.

The question thus arises, whether the lands now asked for were in fact "selected and reported to the General Land Office as swamp and over. flowed lands prior to March third, A. D., eighteen hundred and fiftyseven."

Said lands are part of those named in a list, embracing 277,053.01, acres, which was marked "Supplemental 'C'", and dated August 27, 1853. As to this list, your said decision says:

The only evidence on file or of record in this office that said list was ever sent to the Commissioner of the General Land Office by the surveyor-general, is a letter from the surveyor-general of the same date as the list-August 27, 1853-stating that he sent a list of lands in that district-" Red River"-and four other lists. Said letter

was answered in this office September 13, 1853, informing the surveyor-general that said lists were defective, there being no certificate that the lands therein described were of the character contemplated by the swamp grant and that they could not be acted on until properly certified and they were therewith returned to the surveyorgeneral. There is nothing to show that the list in question was ever returned by the surveyor-general to this office; on the contrary, there is strong presumptive evidence, not only that it was not returned, but that the surveyor-general did not intend to return it. Much the larger portion of the land embraced in said list was subsequently reported in other lists, and the fair presumption is, that the surveyor-general could not truly make the required certificate and consequently place such lands as he could properly certify in the lists.

It thus seems that said list of August 27, 1853,-including the lands now in question,-was received at your office between that date and the 13th of September, 1853, and, on the latter date returned, with other lists, to the surveyor-general, on the ground that the certificate was defective, and at the same time it was answered that, "until properly certified," it "could not be acted on." This, in effect, was a rejection of the list at that time, and it in no way appears that between that time and the date of the passage of the confirming act (March 3, 1857) anything was done to re-instate this list as one pending in the Department for approval: On the contrary, it appears that many of the tracts mentioned were subsequently selected by other lists, to that extent implying the abandonment of the rejected list of August 27, 1853.

In the Michigan swamp grant adjustment (7 L. D., 525), my predeces sor, Secretary Vilas, held that the act of 1857, did not operate to confirm lists of lands, which had been filed in your office before the 3rd of March, 1857, but to replace which certain revised or amended lists had, before that date, been made out and filed. The principle of this decision is that only selections pending, as such at the date of the passage of the act, and not also all lists before that time finally disposed of, were intended to be confirmed.

Applying this principle to the case in hand, I am of the opinion that the list of August 27, 1853, having been rejected in September, 1853, and having never been re-instated, was not, on the 3rd of March, 1857, in a condition to be confirmed by the act passed on that day. Your said decision is accordingly affirmed.

MINING CLAIM-RELOCATION-SECTION 2324 R. S.

ANDERSON ET AL. v. BYAM ET AL.

If work is renewed on a claim, after it has once been open to re-location, but before a re-location is actually made, the rights of the original owners stand as they would if there had been no failure to comply with the statutory condition.

Secretary Noble to Commissioner Stockslager, April 2, 1889.

I have considered the appeal of George Anderson et al. from the decision of your office of February 28, 1888, allowing the application of

Byam et al, original locators, for patent of the "Bonanza Placer," and in effect denying the application of said Anderson et al. to re-locate said claim under the name of the "Arkansaw Placer"-the said claim, or claims, being situate in the Sacramento Land District, California. The material facts are sufficiently stated in said office decision, to which reference is hereby made.

Section 2324 of the Revised Statutes provides, that, upon a failure by the original locator, or locators, of a mineral claim to comply with the requirements of said section as to labor to be performed or improvements to be made thereon annually, "the claim or mine upon which such failure occurred shall be open to re-location in the same manner as if no location of the same had ever been made, provided, that the origi nal locators, their heirs, assigns or legal representatives, have not resumed work upon the claim after failure and before such location." In discussing this statute, the supreme court of the United States say, "Mining claims are not open to re-location until the rights of a former locator have come to an end. A re-locator seeks to avail himself of mineral in the public lands which another has discovered. This he can not do until the discoverer has in law abandoned his claim, and left the property open for another to take up," and "if work is renewed on a claim after it has once been open to re-location, but before a re-location is actually made, the rights of the original owners stand as they would if there had been no failure to comply with the condition" imposed by the statute. Belk v. Meagher (104 U. S., 282).

I have carefully considered the voluminous evidence in the case and the entire record, and concur in the finding of your office, that Byam et al. resumed work upon said "Bonanza Placer" within the meaning of the statute prior to the location of Anderson et al. The decision of your office is affirmed.

RAILROAD GRANT-FINAL PROOF-ACT OF MARCH 3, 1879.

NORTHERN PAC. R. R. Co. v. Dow.

The failure of a railroad company to appear in response to final proof notice, given in accordance with the act of March 3, 1879, and assert its right to land claimed by virtue of its being within granted limits, precludes the subsequent assertion of such right.

Secretary Noble to Commissioner Stockslager, April 2, 1889.

I have considered the appeal of the Northern Pacific Railroad Company against William Dow from your decision of July 23, 1887, rejecting its claim to the N of NE and E of NW Sec. 13 T. 134 N., R. 41 W., Fergus Falls, Minnesota.

The tract in question is within the twenty mile granted limits of the Northern Pacific Railroad Company and within the twenty mile indem nity limits of the St. Paul, Minneapolis and Manitoba, St. Vincent Ex

tension Railway. The line of the former was definitely located Novem ber 21, 1871, and lands in the indemnity limits of the latter were ordered withdrawn by your office letter of February 6, 1872.

The plat of survey of said township was filed in the local office April 27, 1872, and the records of your office show that Michael Huss filed pre-emption declaratory statement on said tract June 8, 1872, alleging settlement October 5, 1869, and that William Dow filed declaratory statement on said tract March 26, 1877, alleging settlement October 1, 1873.

November 8, 1883, Dow gave notice, in accordance with the act of Congress of March 3, 1879, of his intention to transmute his pre-emption to a homestead entry on January 9, 1884, and claiming the benefits of the act of March 3, 1877, and May 27, 1878, would offer final proof and perfect his claim on the same day, which notice was duly posted and published in accordance with law and regulations, and was served by the register and receiver upon the St. Paul, Minneapolis and Manitoba Railway Company.

On the day fixed Dow appeared at the district land office, with the witnesses named in the published notice. The St. Paul, Minneapolis and Manitoba Railway Company was represented by attorney, and a hearing was held. The Northern Pacific Railroad Company failed to appear at the hearing.

The evidence adduced at the hearing shows that Huss-the original pre-emptor-settled upon the land in the fall of 1870. Benjamin Grath, one of claimant's witnesses, testified that Huss made settlement in the month of October or November 1870, and Levi H. Berry, the other witness, testified that Huss made settlement in the year 1870 or in 1871.

Upon this testimony and the homestead proof made on that day, the local officers, on January 19, 1884, rendered an opinion in favor of Dow. From this action the company duly appealed, and on July 23, 1887, your office rendered a decision awarding the tract to Dow. From this decision the St. Paul, Minneapolis and Manitoba Railway Company failed to appeal.

September 14, 1887, the Northern Pacific Railroad Company filed an appeal from your said decision, and the issue is therefore to determine the respective rights of the latter company and the claimant William Dow.

It will be observed that the Northern Pacific Railroad Company failed to appear on the day appointed for offering final proof and perfecting his claim by the entryman, neither did it appeal from the decision of the local officers in favor of claimant.

The question therefore arises whether by its failure to do so, it thereby waived all right to appear afterwards and assert a claim to the land adverse to Dow.

The Department has uniformly held, that the failure to thus appear and assert its claim is conclusive.