provisions of the act of July 1, 1898 (30 Stat., 597, 620), to settlements, entries or claims initiated upon lands having the status above described prior to May 31, 1905, and in your decision denying claimant's petition to be excused from making further improvements upon this land you allowed her 60 days within which to make her election under the act of 1898. This she does not appear to have done as far as appears from the record before the Department. Had she elected to transfer her claim to other lands the decision upon her present application would have been unnecessary. She should therefore be treated as having elected to retain the land and the matter of the conflict with the railroad company adjudicated accordingly. MANNER OF PROCEEDING ON SPECIAL AGENTS' REPORTS. INSTRUCTIONS. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., November 25, 1907. To Special Agents and Registers and Receivers, United States Land Offices: GENTLEMEN: Paragraph 6 of instructions relative to the manner of proceeding upon Special Agents' reports, approved September 30, 1907 [36 L. D., 112], is hereby amended to read as follows: 6. Notice of the charges may in all cases be served personally upon the proper party by any officer or person, or by registered letter mailed to the last address of the party to be notified, as shown by the record, and to the post office nearest to the land. Proof of personal service shall be the written acknowledgment of the person served, or the affidavit of the person who served the notice attached thereto, stating the time, place and manner of service. Proof of service of notice by registered mail shall consist of the affidavit of the person who mailed the notices, attached to the post office receipts for the registered letters, the post-office registry return receipts, or the returned unclaimed registered letters. The purpose and effect of the above amendment is to obviate the necessity of personal service, or of service by publication in government proceedings, and local officers are enjoined to exercise care in properly identifying and preserving the evidence of service in such cases, and in forwarding same to this office with the record. Very respectfully, Approved: R. A. BALLINGER, Commissioner. JAMES RUDOLPH GARFIELD, Secretary. TOWNSITE OF CEMENT. Motion for review of departmental decision of September 16, 1907, 36 L. D., 85, denied by Acting Secretary Pierce, November 25, 1907. CONTEST-NOTICE-DEFECTIVE SERVICE. MEEGAARD V. HARVEY. Service of notice of a contest is fatally defective where the purported copy of the original notice served upon the entryman does not show the date of the hearing as fixed in the original notice. Acting Secretary Pierce to the Commissioner of the General Land (G. W. W.) Office, November 25, 1907. (E. F. B.) Anna Harvey has appealed from the decision of your office of May 24, 1907, holding for cancellation her homestead entry made April 21, 1903, for the SE. 4 of Sec. 34, T. 133 N., R. 75 W., Bismarck, North Dakota, upon the contest of M. G. Meegaard, filed July 2, 1906, charging failure to reside upon and cultivate the land as required by law. The proof clearly shows that the entryman never resided on the land, and no error is alleged on the finding of the local officers and of your office upon that question. The only ground of alleged error is in not holding that the local officers had no jurisdiction to hear and determine the case for the reason that the notice of the contest served upon her did not state the time and place fixed for the taking of the testimony, and in not sustaining her motion to dismiss the contest. The original contest notice cited the parties to appear "at 10 o'clock a. m., on September 18, 1906, before P. G. Books, clerk of District Court, at Linton, North Dakota, and that final hearing will be held at 10 o'clock a. m., on September 25, 1906, before the Register and Receiver at the United States land office in Bismarck, North Dakota." The return of the Sheriff of Emmons County, North Dakota, is that he served said notice "by delivering a true copy thereof to contestee on August 11, 1906, at Linton, Dakota." The local officers refused claimant's motion to dismiss the contest because the return of the sheriff shows that a true copy of the original notice had been served upon her. Your office affirmed their ruling for the reason that the copy of the notice served on claimant was not exhibited to the local officers, so as to enable them to decide whether the copy of notice was defective, as alleged. As the record failed to contain sufficient evidence to impeach the return of the officer who served the notice, there was no error in the decision of your office sustaining the ruling of the local office. But in the appeal it is alleged that the copy of notice was exhibited to the local office, but was not filed, as it was the only evidence to prove the correctness of the averment. There is now filed with the appeal the copy of the notice served upon claimant, which does not give the date either for the taking of the testimony before the Clerk of the District Court or the hearing before the local officers, the blank space for the insertion of said date not having been filled in. Under the rulings of the Department the service of notice is fatally defective where the purported copy of the original notice served upon the claimant does not show any date for the hearing, or does not show the true date. Morgan v. Riley (12 L. D., 44). The case must therefore be remanded to the local officers with directions to set aside the service with leave to contestant to proceed with his contest by a new summons, within such time as may be fixed by your office, following the ruling in Milne v. Dowling (4 L. D., 378). Your decision is modified accordingly. WHITE v. SWISHER. Motion for review of departmental decision of July 22, 1907, 36 L. D., 22, denied by Acting Secretary Pierce, November 25, 1907. HOMESTEAD-AMENDMENT-SECOND ENTRY-SECTION 2372, R. S. PATRICK O'NEILL. The provisions of section 2372 of the Revised Statutes, authorizing a cash entryman who by mistake in description made entry of a tract not intended to be entered "to change the entry and transfer the payment from the tract erroneously entered to that intended to be entered, if unsold, or, if sold, to any other tract liable to entry," have no application to homestead entries. While the land department has applied the principle of section 2372 to homestead and other non-cash entries and permitted amendment to carry out the original intention of the entryman, it has never been extended to permit an entryman to change his entry from the tract actually entered to one not originally intended to be entered. Acting Secretary Pierce to the Commissioner of the General Land (G. W. W.) Office, November 25, 1907. (E. P.) Patrick O'Neill has appealed from your office decision of July 2, 1907, rejecting his application to make a second homestead entry of lots 1, 2 and 3, Sec. 2, T. 6 S., R. 30 E., Roswell land district, New Mexico. It appears that on July 24, 1906, O'Neill made homestead entry of the SE. of Sec. 25, T. 5 S., R. 30 E., in the land district aforesaid. His application to make a second entry, which was presented January 22, 1907, was based upon a corroborated showing to the effect that, through a mistake of description, the land actually entered by him, as aforesaid, was not the land that he had examined and thought he had entered, but a particularly worthless tract situated more than a mile from the tract that he intended to enter; and that the latter tract is covered by the homestead entry of another person, and therefore is not now subject to entry. Your office rejected the application on the ground that, O'Neill's original entry having been made subsequently to the approval of the act of April 28, 1904 (33 Stat., 527), the land department is without authority to permit him to make a second entry, citing instructions of June 11, 1907 (35 L. D., 590). In his appeal O'Neill invokes the aid of section 2372 of the Revised Statutes, and contends that, in view of the facts disclosed herein, he is entitled, under the provisions of said section, to have his entry changed to the tract he now desires to enter. That section provides that in certain circumstances and upon a compliance being made with certain rules, a purchaser, who, by a mistake of the true number of a tract intended to be entered, has made entry of a tract not intended to be entered is authorized to change the entry and transfer the payment from the tract erroneously entered to that intended to be entered, if unsold; but, if sold, to any other tract liable to entry. It is manifest that this section, which was carried into the Revised Statutes from the act of May 24, 1824 (4 Stat., 31), is applicable only to cash entries of the public lands, and not, therefore, to a homestead entry. It is true that, applying the principle of the statute, the Department has permitted homestead and other non-cash entries to be changed by way of amendment, from one tract to another in certain cases where, by such change, the original intention of the entryman might be effectuated. But, so far as the Department is aware, that principle has never been applied, nor is it believed there is any authority for its application, to a case, like the one at bar, where an entryman is seeking, not to correct a mistake of description so as to make his homestead entry conform to his original intentions, but, rather, to receive compensation for the loss occasioned by such mistake, by being permitted to enter, in lieu of the tract actually entered, a tract different from the one he originally intended to enter. For the reasons stated, it must be held that the applicant is not entitled to have his entry changed from the tract covered thereby to the one he now desires to enter. His right to enter the tract in question, therefore, must be governed solely by the act of April 28, 1904, supra, which is the last general law relating to second homestead entries. That act authorizes the making of such entries only in cases where the applicant's original entry was made prior to the date of its approval. O'Neill's original entry was made July 24, 1906, or long subsequent to the approval of the act. Hence it is clear that he does not come within the purview of the act. The decision appealed from is therefore affirmed. NORTHERN PACIFIC GRANT-ADJUSTMENT-SETTLEMENT OF UNSURVEYED NORTHERN PACIFIC RY. Co. v. VIOLETTE. The provision in the act of July 1, 1898, respecting relinquishments by the railway company in favor of settlements made upon unsurveyed lands after January 1, 1898, is not mandatory upon the company, but merely extends a privilege to the company to select other lands for such as it may relinquish, upon such favorable terms as should reasonably induce the relinquishment, and thus protect settlements made at a time when it could not be reasonably ascertained whether they would fall upon odd- or even-numbered sections. Acting Secretary Pierce to the Commissioner of the General Land (G. W. W.) Office, November 26, 1907. (F. W. C.) June 9, 1905, this Department approved a list of lands preliminary to a request upon the Northern Pacific Railway Company for relinquishment under the act of July 1, 1898 (30 Stat., 597, 620), and among the tracts included in said list, which was known as Montana list No. 46, was lot 1, Sec. 15, T. 13 N., R. 18 W., within the primary limits of the Northern Pacific land grant and included in the individual claim of Frank K. Violette. Upon being advised thereof and requested to relinquish the lands the company responded that the same had been sold to the Blackfoot Milling Company and that the company was endeavoring to secure a reconveyance with a view to making the relinquishment, as requested. Subsequently, the company filed a statement wherein it was claimed that the land embraced in the present claim should not have been included in the demand under the act of July 1, 1898, and should be eliminated from the list previously approved, and in support thereof argument was filed which your office submitted for departmental consideration. The plat of the township in question was officially filed May 17, 1905, and thereafter Violette filed a homestead application for the lot in question, alleging settlement thereon with continuous residence since September, 1902. So far as disclosed by the record there was no pending controversy arising by settlement, entry, or claim under the land laws involving the tract in question, either January 1, 1898, or |