then provides that the Secretary of the Interior shall demand of the company payment for said lands of an amount equal to the Government price of similar lands, and in case of the neglect or refusal of the company to make payment thereof within ninety days after demand, the Attorney-General shall cause suits to be brought against the company for said amount. Under the act the purchaser of such lands from the company may recover from the company the purchase money paid by him less the amount paid by the company to the United States.

A mortgage or pledge of said lands by the company is not a sale within the meaning of the act.

The object of this section is to confirm to the purchaser the title to the lands therein referred to upon making proof of such purchase, and that the purchaser has the qualifications required by the act without requiring of the purchaser any further payment to the Government of the purchase price of said land.

The fifth section of said act reads as follows:

That where any said company shall have sold to citizens of the United States, or to persons who have declared their intention to become such citizens, as a part of its grant, lands not conveyed to or for the use of such company, said lands being the numbered sections prescribed in the grant, and being coterminous with the constructed parts of said road, and where the lands so sold are for any reason excepted from the operation of the grant to said company, it shall be lawful for the bona fide purchaser thereof from said company to make payment to the United States for said lands at the ordinary Government price for like lands, and thereupon patents shall issue therefor to the said bona fide purchaser, his heirs or assigns: Provided, That all lands shall be excepted from the provisions of this section which at the date of such sales were in the bona fide occupation of adverse claimants under the preemption or homestead laws of the United States, and whose claims and occupation have not since been voluntarily abandoned, as to which excepted lands the said preemption and homestead claimants shall be permitted to perfect their proofs and entries and to receive patent therefor: Provided, further, That this section shall not apply to lands settled upon subsequent to the 1st day of December, 1882, by persons claiming to enter the same under the settlement laws of the United States, as to which lands the parties claiming the same as aforesaid shall be entitled to prove up and enter as in other like cases.

Under this section, when the company has sold to citizens of the United States or persons who have declared their intention to become such citizens the numbered sections prescribed in the grant and coterminous with the constructed portions of the road, within either the granted or indemnity limits, and which upon the adjustment of the grant are shown to be excepted from the operation of the grant, it shall be lawful for such purchasers (if their purchases are bona fide) to purchase said lands from the Government by payment of the Government price for like lands, unless said lands were at the date of purchase in the bona fide occupation of adverse claimants under the preemption or homestead laws, in which case the preemptor or homestead claimant may be permitted to perfect his proof unless he has since voluntarily abandoned the land.

Under the last proviso of said section, however, if a settlement was made on said lands subsequent to December 1, 1882, by persons claiming the same under the settlement laws of the United States, it will defeat the right of the purchaser, whether said purchase was made prior to or subsequent to December 1, 1882, and the settler will be allowed to prove up for said lands as in other like cases.

The sixth section provides that when any such lands have been sold and conveyed as the property of the company for State and county taxes, and the grant to the company has been thereafter forfeited, the purchaser at such sale shall have the preference right for one year from the date of the act in which to purchase said lands from the United

States by paying the Government price for said lands, provided said lands were not previous to or at the time of the taking effect of such grant in the possession of or subject to the right of an actual settler. The seventh section provides:

That no more lands shall be certified or conveyed to any State or to any corporation or individual, for the benefit of either of the companies herein mentioned, where it shall appear to the Secretary of the Interior that such transfers may create an excess over the quantity of lands to which such State, corporation, or individual would be rightfully entitled.

The following instructions under the act of Congress approved March 3, 1887 (24 Stat. L., 556), were issued February 13, 1889 (8 L. D., 348), for the guidance of the registers and receivers, viz:

THE FIRST SECTION directs that all railroad land grants not adjusted heretofore shall be adjusted immediately, that is, without unnecessary delay. The duties thereunder pertain to the General Land Office and Department of the Interior.

THE SECOND SECTION provides for the recovery by the United States of title to lands which from any cause have been erroneously certified or patented "to or for the use or benefit of any company" on account of a railroad grant, whenever the fact may be ascertained that a certificate or patent has been erroneously issued, and prescribes the duties of the Secretary of the Interior and Attorney-General in connection therewith.

THE THIRD SECTION provides "that if in the adjustment of said grants, it shall appear that the homestead or preemption entry of any bona fide settler has been erroneously canceled on account of any railroad grant, or the withdrawal of public lands from market, such settler, upon application, shall be reinstated in all his rights, and allowed to perfect his entry by complying with the public land laws; provided, that he has not located another claim or made an entry in lieu of the one so erroneously canceled; and provided also, that he did not voluntarily abandon said original entry; and provided further, that if any of said settlers do not renew their application to be reinstated within a reasonable time, to be fixed by the Secretary of the Interior, then all such unclaimed lands shall be disposed of under the public land laws, with priority of right given to bona fide purchasers of said unclaimed land, if any, and if there be no such purchasers, then to bona fide settlers residing thercon."

Three classes of persons are provided for under this section.

First. Bona fide settlers whose homestead or preemption entries have been erroneously canceled on account of a railroad grant or withdrawal.

Second. Bona fide purchasers of such unclaimed lands.

Third. Bona fide settlers residing thereon.

The rights of the several classes to the lands referred to in the section are successive in the order stated in the section. The first in right is the homestead or preemption settler whose entry has been wrongfully canceled. If he elects to assert his right, and has not been disqualified by locating another claim or making another entry in lieu of the entry erroneously canceled, his right is absolute, and the successive rights of the remaining two classes can not attach if he lawfully asserts his claim. If he fail to claim the land, or is disqualified under the act, the second class of persons, who are the bona fide purchasers of the land unclaimed by him, attach, and have precedence over the third class. The bona fide purchasers here referred to are those who, without knowledge of wrong or error, have purchased from the railroad company lands which have been previously entered by a preemption or homestead settler, whose entry has been erroneously canceled, as described in the first clause of the third section, and which land the preemption or homestead settler did not elect to claim after the recovery by the proceedings prescribed by the second section of the act.-Attorney-General's Opinion, November 17, 1887 (6 L. D., 272).

Parties of the first class desiring to avail themselves of the benefits of this section should present their applications without unnecessary delay, after notice of intention as required by the act of March 3, 1879, in preemption and homestead cases. The application must in every instance be accompanied by proof showing

1. The facts respecting the date of the applicant's settlement, duration of residence, and value of improvements upon the land.

2. Whether he has located any other claim under any of the laws of the United States authorizing settlements upon public lands.

3. Whether he has abandoned the land embraced in his canceled entry or filing; if so, the causes which led to the abandonment.

4. Whether any other person or persons are residing upon the land.

5. That such persons as may be so residing upon the land have been notified of the intention of the claimant to apply for the reinstatement of his filing or entry, and the manner of giving such notice must be shown.

Should an adverse claimant appear to dispute or contest the right of reinstatement proceedings will be had in accordance with Rules of Practice as in ordinary contests. While the act contains no provision relative to persons whose entries or filings have not 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 reinstatement of entry; but in such case proceedings will be deferred until the title has been restored to the United States as provided by section 2 of the act. The instructions of November 22, 1887, under this section, are hereby modified in accordance with the foregoing.

Proceedings on applications by parties of the second class will be governed by instructions under the fourth section.

Applicants of the third class will be required to submit evidence, in addition to that relating to their own settlement or claims, showing whether there are persons of the first or second class residing upon, in possession of, or claiming lands.

THE FOURTH SECTION relates to all lands which have been erroneously certified or patented on account of railroad grants, except those mentioned in the third section, and by the grantee company sold to citizens or to persons who have declared their intention to become citizens of the United States; and provides that after the title to such lands has been restored to the United States as contemplated by the second section of the act, persons who have purchased such land in good faith, their heirs or assigns, shall be entitled to the lands upon making proof at the proper land office, whereupon patents shall issue relating back to the date of the original certification or patenting, and the grantee company will be required to pay the United States for such lands at the price at which other similar lands are legally held by the Government.

The purchaser from the company is not debarred by the act from recovering from the company the amount of purchase money paid by him less the amount paid by the company to the United States for the land.

A mortgage or pledge of such lands is not a sale within the intention of the act. No forfeiture is declared by this act against any land grant for conditions broken (and no entry is authorized for lands legally within such grant), but no rights of the United States on account of breach of conditions are waived by the act.

An applicant for land under this section will be required to publish notice of intention to make proof as in preemption and homestead cases, and the proof must show1. That he is or has declared his intention to become a citizen of the United States. 2. That he is a bona fide purchaser from the company or some person claiming title under it, and the character of the instrument conveying the land to him.

3. The amount of purchase money paid to the company.

4. What part, if any, of the purchase money paid to the company has been refunded to him or any person acting as his agent.

5. Whether he has instituted proceedings against the company for the recovery of any portion of the purchase money; if so, for what portion.

6. The value and character of the improvements, if any, made or acquired by him upon the land.

7. Whether there is any person of the first class under the third section entitled to the right of entry under the preemption or homestead laws.

Upon the submission of satisfactory proof as prescribed above the register will issue certificate in duplicate, numbered in the regular cash series, with annotations thereon showing that the entry is allowed without payment under the fourth section of the act of March 3, 1887. (24 Stat. L., 556.)

THE FIFTH SECTION relates to lands within the limits of railroad grants, coterminous with constructed portions of the lines of road, not conveyed on account of, but excepted from, the grants.

Under this section, when the company has sold to citizens of the United States or persons who have declared their intention to become such citizens, the numbered sections prescribed in the grant and coterminous with the constructed portions of the road, within either the granted or indemnity limits, and which upon the adjustment of the grant are shown to be excepted from the operation of the grant, it shall be lawful for such purchasers (if their purchases are bona fide) to purchase said land from the Government by payment of the Government price for like lands, unless said lands were at the date of purchase in the bona fide occupancy of adverse claimants under the preemption or homestead laws, in which case the preemptor or homestead claimant may be permitted to perfect his proof, unless he has since voluntarily abandoned the land.

Under the last proviso of said section, however, if a settlement was made on said lands subsequent to December 1, 1882, by persons claiming the same under the settlement laws of the United States, it will defeat the right of the purchaser, whether

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said purchase was made prior or subsequent to December 1, 1882, and the settler will be allowed to prove up for said lands as in other like cases.

Applicants to purchase under this section will be required to publish notice of intention as directed by instructions under the third and fourth sections, and the proof must show:

1. That the tract was of the numbered sections prescribed by the grant.

2. That it was coterminous with constructed parts of said road.

3. That it was sold by the company to the applicant, or one under whom he claims, as a part of its grant.

4. That it was excepted from the operation of the grant.

5. That at the date of said sale it was not in the bona fide occupancy of adverse claimants under the preemption or homestead laws, whose claims and occupancy have not since been voluntarily abandoned.

6. That it has not been settled upon subsequent to the 1st day of December, 1882, by any person or persons claiming the right to enter the same under the settlement laws.

7. That the applicant is, or has declared his intention to become, a citizen of the United States.

8. And that he, or one under whom he claims, was a bona fide purchaser of the land from the company.

The proof upon these points being found satisfactory, the entry will be allowed and the usual cash certificate and receipts will be issued thereon reciting the fact that the entry is in accordance with the fifth section of the act of March 3, 1887 (24 Stat. L., 556).

No entry will be allowed under this section until it shall have been finally determined by this Department that the land was excepted from the grant.

THE SIXTH SECTION provides that when any such lands have been sold and conveyed as the property of the company for State and county taxes, and the grant to the company has been thereafter forfeited, the purchaser at such sale shall have the preference right for one year from the date of this act, and no longer, in which to purchase said lands from the United States by paying the Government price for said lands, provided said lands were not previous to or at the time of the taking effect of such grant in the possession of or subject to the rights of an actual settler.

The period prescribed by the statute for presenting applications under this section having expired, instructions as to methods of procedure are deemed unnecessary. THE SEVENTH SECTION authorizes the Secretary of the Interior to refuse to certify or convey lands on account of any railroad grant where it shall appear to him that to do otherwise would give to the grantee more lands than the granting act contemplated giving.

The protection granted to settlers by the last proviso to section 5 of this act is restricted to those persons who in good faith settled upon the land subsequent to December 1, 1882, and prior to the passage of the act, in ignorance of the rights or equities of others in the premises. (11 L. D., 607.)

FOR THE RELIEF OF SETTLERS ON RAILROAD LANDS.

By the act of Congress approved June 22, 1874 (18 Stat. L., 194), an inducement was offered to such railroad companies as may be found entitled to lands embraced in filings and entries by settlers to relinquish in favor of such settlers, and receive other lands in lieu of those surrendered.

By the act of Congress approved August 29, 1890 (26 Stat. L., 369), the above-mentioned act was amended.

It appears to be the intention of this amendment to enlarge the class of cases in which relinquishment by the company will be permissible under the act of June 22, 1874, by removing the requirement that an entry or filing should have been allowed, thus aiding the adjustment of claims growing out of settlements made upon railroad lands subsequent to the attachment of the rights of the companies under the grants.

Upon the filing of a relinquishment under this act, it being shown that the person in whose favor it is made is entitled to the right of homestead or preemption, and has resided upon and improved the land for a period of five years, the register and receiver will permit entry to

be made as in the case of other public lands, it being held by this Department that a relinquishment under the act of June 22, 1874, releases the land from all claim of the company, and it thereby becomes subject to disposal under the general land laws. (6 L. D., 716; 7 L. D., 481.)

The right to select indemnity under this act extends to any nonmineral public lands within the limits of the grant (18 L. D., 275); but the acceptance of the relinquishment does not amount to an approval of the selection based thereon (8 L. D., 472), as a relinquishment confers no right upon the company if the land covered thereby was, in fact, excepted from the grant (10 L. D., 264).

The relinquishment may be made by a simple waiver of claim when the land has not been certified or patented to, or for, the benefit of the company; but when the title has passed, formal reconveyance will be required.

This act is not mandatory upon the companies, and confers no right upon the settler, as against the company, in the absence of a relinquishment.

It simply provides a mode of adjustment dependent upon the voluntary action of the companies, and it is hoped that by a liberal and mutual spirit of compromise and concession the benefits intended for the settler may be made available. (11 L. D., 434.)

FORFEITED RAILROAD LANDS.

Attention is called to the provisions of an act of Congress entitled "An act to forfeit certain lands heretofore granted for the purpose of aiding in the construction of railroads, and for other purposes," approved September 29, 1890 (26 Stat. L., 496; Appendix No. 41, p. 197). The first section provides for the forfeiture of all lands heretofore granted to any State or to any corporation to aid in the construction of a railroad opposite to and coterminous with the portion of any such railroad not now constructed and in operation, and declares the lands forfeited to be a part of the public domain, excepting, however, from the forfeiture the right of way and station grounds heretofore granted. The second section provides that all persons who, at the date of the passage of this act, are actual settlers in good faith on any of the lands forfeited, and are otherwise qualified, on making due claim on said lands under the homestead law within six months after the passage of this act, shall be entitled to a preference right to enter the same under the provisions of the homestead law and this act, and shall be regarded as actual settlers from the date of actual settlement or occupation.

It is clear that this clause of the section allows the actual settler, if qualified, to make a homestead entry of the tract upon which he had made settlement, and this as a preference right to be exercised within six months after the passage of the act.

It is further provided by said section that any person who has not heretofore had the benefit of the homestead or preemption law, or who has failed from any cause to perfect the title to a tract of land hereto. fore entered by him under either of said laws, may make a second homestead entry under the provisions of this act.

The language of this clause of the section authorizing "a second homestead entry" refers only to those persons who have heretofore made a homestead entry, but failed from any cause to perfect the same. In other words, the object of this clause is to allow any one qualified who had not theretofore secured a piece of land under the homestead law to obtain a tract of these forfeited lands under that law.