having clouded the title, can not reasonably expect the United States to remove the cloud or to accept the land offered in exchange unless the title thereto is undisputed. The only difficulty to the exchange arises out of the action of the State, and before the Department will consent to the completion thereof on the part of the United States, the State will be expected to remove the obstructions of its own creation.

The action of your office is hereby affirmed.

HAGMAN V. KLAMMER.

Motion for review of departmental decision of November 15, 1907, 36 L. D., 168, denied by First Assistant Secretary Pierce, May 21, 1908.

HOMESTEADS IN ALASKA-ACT OF MARCH 3, 1903.

REGISTERS AND RECEIVERS,

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., May 21, 1908.

United States Land Offices,

Nome, Juneau, and Fairbanks, Alaska.

SIRS: The following instructions are issued for your information and guidance in cases involving homestead locations in your respective districts.

1. Every person who initiates a claim to a homestead and records his location thereof, under act of March 3, 1903 (32 Stat., 1028), must within six months after the date of his location establish his bona fide residence on the land covered thereby to the exclusion of a home elsewhere, and thereafter he must continuously reside upon the land and cultivate and improve it, as required by the general provisions of the homestead laws, to such an extent and in such manner as will show that he is honestly seeking title in order to secure a home for himself and not for the purpose of speculating in the land or the timber thereon, and his failure to do this may result in the cancellation of his location or entry, or the rejection of his application for a patent.

2. The making and recording of one homestead location exhausts all the locator's rights to acquire title to other lands under that act, and he cannot thereafter make another location or entry in the District of Alaska, or elsewhere, under the homestead laws.

3. A homestead locator's right to cut and remove timber from the lands covered by his location within the District of Alaska, or to per

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form any other act affecting them, is no greater than the rights possessed by persons who make homestead entry of land elsewhere, under section 2289, R. S., and if he cuts or removes such timber for any other than for purposes necessary and incident to his residence upon the land and to the cultivation and improvement of it, he does so illegally, and not only subjects his location to cancellation but renders himself liable to be proceded against both civilly and criminally by the Government.

4. Homestead locations of lands in the District of Alaska may be contested and canceled upon any ground which would warrant the cancellation of a homestead entry of land elsewhere, made under section 2289, R. S., and contests of this character may be initiated in your offices by either the Government or any private person, and should be proceeded with in the same manner and given the same effect as contests against homestead entries made elsewhere.

Petition for reconsideration of departmental decision of December 10, 1903, 32 L. D., 348, denied by First Assistant Secretary Pierce, May 22, 1908.

SOLDIERS' ADDITIONAL RIGHTS-CERTIFICATION-ACT AUGUST 18,

1894.

JOHN M. RANKIN.

The act of August 18, 1894, validated all soldiers' additional certificates outstanding at its date and all transfers thereof, whether past or subsequent, in the hands of bona fide innocent purchasers, but does not require or contemplate the issuance of new certificates, in the name of subsequent assignees, for any remaining portions of rights formerly evidenced by certificates which have been surrendered and canceled as satisfied, which remaining portions can only be asserted, established, and allowed as personal rights and without reference to the provisions of said act.

First Assistant Secretary Pierce to the Commissioner of the General (G. W. W.) Land Office, May 22, 1908. (P. E. W.)

John M. Rankin has filed a motion for a review of the unreported departmental decision of November 8, 1907, affirming your office de

cision of July 8, 1907, wherein you rejected his application for a recertification to him and in his name, under act of August 18, 1894 (28 Stat., 397), of the unused 40-acre portion of the 80-acre certificate of right, issued August 4, 1880, to Isaac Warren.

It appears that said Isaac Warren and wife, on January 26, 1875, executed in favor of T. B. Walker a power to sell any land to which they might be entitled under section 2306 of the Revised Statutes, which power, for the sum of $5,200, the receipt of which was acknowledged, was made irrevocable.

March 12, 1879, and before said certificate of right issued to Warren, homestead entry, No. 2685, was made in his name, as a soldiers' additional homestead entry, for 80 acres of land in the Taylors Falls, Minnesota, district. This entry was canceled May 21, 1879, as made contrary to the orders of the Department, for the reason that the land involved was part of the former Mille Lac Indian Reservation, and thereupon the said certificate of right for 80 acres was issued in the name of Isaac Warren in accordance with the then practice of certifying the additional right to a soldier whose additional entry had been canceled for any reason which prevented patent thereon. After said certificate issued, the rulings of the Department as to said Mille Lac Indian land were modified and said entry, No. 2685, was reinstated, but on June 23, 1891, it was canceled for conflict, as to 40 acres, with the patented claim of a Mille Lac Indian. By your office letter of October 29, 1891, the history of this entry was set out, the entry was reinstated, the said certificate of right for 80 acres which had been filed therewith was revoked and canceled in view of such reinstatement, and the entry was approved for patent as to the portion not in conflict, in all of which Warren and Walker acquiesced. Thus it was with said certificate revoked and canceled in toto, and with the right itself exhausted as to 40 acres, that Walker on February 7, 1907, by bill of sale, conveyed to the movant herein "all his right, title, and interest in and to the unused 40 acres of the aforesaid certificate." The act invoked by movant provides:

That all soldiers' additional homestead certificates heretofore issued... shall be, and are hereby declared, valid, notwithstanding any attempted sale or transfer thereof; and where such certificates have been or may hereafter be sold or transferred, such sale or transfer shall not be regarded as invalidating the right, but the same shall be good and valid in the hands of bona fide purchasers for value.

Thereunder, and by reason of the foregoing facts, there exists in favor of movant an unimpaired additional right to make entry for 40 acres of land.

But the Department does not find therein or elsewhere direction. for the recertification of such right in the name of the movant as herein requested. The certification of soldiers' additional rights has

never been directed or authorized by statute, but has been done under departmental regulations, and the practice was discontinued by circular of February 13, 1883. Such certificate was only the evidence of the soldier's right and not the right itself. The act in question merely declares that such evidential certificates are not invalidated by "any attempted sale or transfer thereof " and adds that "the same [certificates] shall be good and valid in the hands of bona fide purchasers for value." In this case such certificate is not in the hands of the purchaser of that portion of the right which remains, but is shown to have been revoked and canceled before the passage of the act invoked. In the precisely similar case of F. W. McReynolds (33 L. D., 112) it was held that

The provision in the act of August 18, 1894, validating certain soldiers' additional homestead certificates therein described, applies only to such certificates in existence at the date of the passage of the act.

It is insisted in the present motion that in said case of McReynolds and in the case before us the certificate issued to the soldier "was, in law and in fact, in existence and outstanding on the 18th day of August, 1894, and was, therefore, validated by the remedial act of that date." In support of this contention movant cites the cases of J. S. Pillsbury et al. (22 L. D., 699); John H. Howell (24 L. D., 35), and Herman C. Ilfeld (34 L. D., 685).

Upon a comparative examination thereof it is at once apparent that the facts and conditions shown therein were such that they afford no reason or precedent for the recertification asked herein. In the present case the additional right was used by making a personal entry for 80 acres. Thereafter said entry was erroneously canceled but the cancellation was at a later date rescinded and the entry reinstated. During the period of its cancellation a certificate of additional right for 80 acres was issued to the soldier under the practice then prevailing of issuing certificates of right, a practice long since discontinued. But before said personal entry, made prior to the issue of said certificate, was reinstated it was required that the certificate should be surrendered for cancellation. Had it not been for the mistake made in first canceling the additional entry no certificate of additional right would have been issued. All parties acquiesced in the surrender and cancellation of the certificate preliminary to the reinstatement of the additional entry, and it was only because of the subsequent cancellation of said additional entry as to a part in conflict with an Indian allotment, that the soldier's right was not fully satisfied by the approval and patenting of the additional entry. It results, because of said cancellation, that there is a right to an additional entry yet remaining unsatisfied, for 40 acres.

This is conceded in the decision sought to be reviewed, but it denied the claim for a reissue and recertification of the certificate, issued, and

canceled, under the circumstances stated, to one whose sole connection with this right is based upon a purchase made long after the surrender and cancellation of the certificate, and not until six years after the passage of the act of 1894 under which the recertification is requested. This remedial statute is to be liberally construed but only within its manifest purpose and scope, that of validating certificates in the hands of those who purchased them in good faith while in legal existence and force. Thus the Department said in the case of John M. Rankin (21 L. D., 404), in which the history and purpose of the act are fully stated:

Thus it will be seen that both houses of Congress acted upon the idea that the bill was intended to and would validate all outstanding soldiers' additional homestead certificates in the hands of bona fide holders.

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Subsequently, in the case of Henry N. Copp (23 L. D., 123, 126), the Department, quoting the foregoing language, defined an outstanding" certificate to be "one that has been issued and has not been located, canceled or surrendered." In this case the certificate was issued only because the entry made upon the personal right had been erroneously canceled, and it was surrendered and canceled upon, and as a condition of, the reinstatement of said personal entry. When that personal entry was reinstated it was in the use and exercise of the additional right itself and all parties recognized the fact that such user of the right could not leave "outstanding" a certificate of the same right. There is here no question of a merger of the personal right in a certificate of right but an agreed user of the personal right upon surrender and cancellation of the certificate which for a time. evidenced that personal right. And when it developed that only 40 acres of the entry thus made could be patented to him, this did not revive the canceled certificate, but restored the personal right, to the extent of 40 acres.

The Department is clearly of the opinion that while the remedial and curative act invoked herein validated all certificates outstanding at its date and all transfers, whether past or subsequent, of such certificates found in the hands of a bona fide purchaser, it does not direct or contemplate the issuance of a new certificate, in the name of the subsequent assignee, for the remaining portion of the right formerly evidenced by a certificate which has been surrendered and canceled as satisfied under the circumstances disclosed herein. Neither do the regulations nor the decisions of the Department relating to said act. Like any such additional right for which no certificate ever issued, any portion of such right, restored after the surrender and cancellation of a certificate which for a time evidenced the right but had not been transferred, is to be asserted, established, and allowed as a personal right and without reference to the act herein invoked.