2 of the act of April 28, based upon an original entry made between the dates mentioned in the amendatory act, was prior to the date of that act held for cancellation, upon contest, on the sole ground that it was invalid because based upon an original entry made subsequently to the passage of the act of April 28, the additional entry will be held intact, the invalidity being cured by the amendatory act and the rights of the entryman being superior to those of the contestant.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 2, 1907. (E. O. P.)

James Burnett has appealed to the Department from your office decision of December 5, 1906, holding for cancellation his homestead entry, made June 29, 1904, under the provisions of section 2 of the act of April 28, 1904 (33 Stat., 547), for the E. NE. 1, NW. † NE. 1, NE. 4 NW. 1, W. † NW. 4, W. † SW. 1, SE. † SW. 1, SW. † SE. 1, E. SE., Sec. 28, T. 12 N., R. 34 W., North Platte land district, Nebraska, upon contest instituted by Dee Raney.

The contest involved also the original entry of Burnett, made May 23, 1904, for the SW. NE. 1, SE. 1 NW. 1, NE. † SW. 1, NW. 4 SE. 4, of said Sec. 12, these tracts, together with those embraced in his second entry, being the whole of the section. The right of Burnett to retain the tracts last described has been finally settled favorably to him, and the only question presented by the present appeal concerns his entry under section 2 of the act of April 28, 1904, supra. All the charges made the basis of contest have been determined except the one respecting the invalidity of said entry.

Your office held the same for cancellation because allowed without authority of law, the original entry of Burnett, upon which the right to make such second entry depended, having been made after the passage of the act heretofore mentioned. That the entry was erroneously allowed is practically conceded by counsel for the claimant. That such is the case is settled by numerous decisions of the Department. Robert Knoetzl (34 L. D., 134); David H. Briggs (ib., 60); Circular of April 10, 1906 (ib., 546).

Since the rendition of your said decision Congress passed an act (March 2, 1907-34 Stat., 1224) permitting those persons who made entries between April 28 and June 28, 1904, to make additional entries in the same manner as those who made entry prior to April 28, 1904, “subject to all existing rights." The second entry of Burnett falls clearly within the provisions of this act and unless Raney, by virtue of his contest, initiated such a right as it was the intention of the act of March 2, 1907, supra, to preserve, his contest must be dismissed. In the opinion of the Department the act in question contemplated no more than the preservation of "existing rights to enter the land, which the persons intended to be benefited could.

not enter until relieved of the disqualification resulting from a former entry. The statute is a remedial one, and should be liberally construed. After its passage no person other than an actual settler or prior applicant possessed any existing right of entry. Neither is the right of a contestant superior to the claim of a record entryman whose entry, previously invalid, is validated by the statute. On the contrary, the equities of the claimant are superior to those of a contestant who seeks a cancellation of the entry upon the sole ground of such invalidity, and the authority of Congress to protect such claims is unquestioned. As by said act the basis of the present contest has been destroyed, the other charges made not having been established, the same will be dismissed and the entry of Burnett held intact. The decision appealed from is, for the reasons herein stated, reversed.

DUNCAN . ARCHAMBAULT.

Motion for review of departmental decision of April 11, 1907, 35 L. D., 498, denied by Acting Secretary Woodruff, July 2, 1907.

FINAL CERTIFICATE—VALIDITY-PROCEEDINGS BY GOVERNMENT.

SAMUEL H. SHANNON.

A final certificate is without validity if it be determined by the land department, as the result of proceedings instituted prior to the expiration of two years from issuance thereof, that the person to whom it issued had not, at the date of final proof, earned title to the land by full compliance with all legal requirements, and nothing done after final proof can be accepted as curing such default; nor does the death of the person to whom the certificate issued in any wise affect the right of the land department to investigate the validity of the entry and cancel the same if found to be invalid.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 2, 1907.

(E. P.)

December 3, 1901, Samuel H. Shannon made homestead entry of the NE. of section 26, T. 105 N., R. 73 W., Chamberlain land district, South Dakota, and on November 4, 1904, submitted commutation proof thereon upon which final certificate issued the same day.

December 19, 1904, a special agent of your office reported that from December, 1901, to May, 1904, claimant never resided on or slept a single night on the land, although working about twenty rods from his house from December, 1901, to April, 1903; that he resided on the land from May 9, 1904, to July 14, 1904; that he then went west

and did not again go to the land until he made proof November 4, 1904; that no use was ever made of the land for agricultural or grazing purposes.

By letter of February 4, 1905, your office suspended the entry and directed that notice of the charges contained in the report of the special agent be served upon the entryman.

It appears that the entryman died on or about June 17, 1905, before notice of said charges could be served upon him, but that the notice was served upon the entryman's heirs, and also upon one D. H. Henry, described as mortgagee.

May 19, 1905, Henry filed in the local office an affidavit executed by himself, alleging that on November 4, 1904, he, as president of the Bank of Chamberlain, loaned to the entryman the sum of $350, as security for the payment of which the entryman executed to the bank a mortgage upon the tract in question; that the loan was made in good faith, the affiant believing the entryman to have complied in all respects with the requirements of the homestead law; that the entryman had no resources except the land, and that the said sum of $350 is wholly unpaid. Affiant therefore asked that a hearing be had on the charges, and that he be afforded an opportunity to introduce testimony in support of the entryman's final proof.

November 1, 1906, there was filed in the local office what purports to be supplemental proof on behalf of the heirs of the entryman, the so-called supplemental proof consisting of a corroborated affidavit executed October 24, 1906, by Missouri King, who alleges that the entryman died June 17, 1905, unmarried and without issue, leaving as his sole heirs the affiant (his sister), and two brothers, William and Robert Shannon; that the entryman has never sold or alienated the land, but that on November 4, 1904, he mortgaged the same to the Bank of Chamberlain to secure the payment of a note for the sum of $350 held by said bank; that the affiant lives with her husband on the land adjoining the tract in question; that at all times since the entryman's death the affiant, as one of the heirs of the entryman, has had possession and full control of the land, and has each year thereafter used and utilized the same for the grazing of stock and for the cutting of hay thereon, it being better adapted for grazing and hay purposes than for tillage; that affiant has about sixtyfive acres of the land fenced; that the said heirs of the entryman are citizens of the United States.

By decision of February 11, 1907, adhered to on motion for review April 15, 1907, your office rejected the so-called supplemental proof submitted on behalf of the heirs and directed the local officers to fix a day for a hearing on the charges preferred by the special agent. and give due notice thereof to the heirs and the Bank of Chamber

lain. It was added, however, that should the parties in interest file written consent on the part of the heirs that the final proof submitted by the entryman be rejected and the final certificate issued to him be canceled, such action would be taken and the original entry held intact, with permission to the heirs to submit new proof in the regular way, showing compliance on their own part with the requirements of the law.

From these decisions the heirs and mortgagee have filed a joint appeal, wherein it is urged that, the entryman being dead, a cancellation of the final certificate will result in the mortgagee losing its security for the money loaned by it to the entryman, even should the original entry be held intact and the heirs submit new and satisfactory proof. It is therefore contended that, for the protection of the mortgagee, the final certificate should be held intact on the informal showing already made by the heirs, and patent issued thereon, irrespective of the truth or falsity of the charges preferred by the special agent.

This contention cannot be sustained. A final certificate is without any validity if, upon proceedings instituted against it within two years after the date of its issuance, it be determined by the land department that the person to whom it issued had not, at the date of final proof, earned title to the land by full compliance with all legal requirements. Nothing done after final proof can be accepted as curing such a default. Hence upon its being charged in due time, and properely shown, that a person to whom a final certificate issued had not so earned title, the final certificate must be canceled, regardless of what may have been done upon the land after the submission of final proof. And neither the death of any person, nor any other cause, save failure to commence proceedings in due time, can affect the right of the land department to investigate a final entry, and, upon its being determined by it, after notice to all parties entitled thereto, and an opportunity to be heard afforded them, that the certificate issued on the final entry is from any cause invalid, to cancel the same. Your office therefore correctly held that a hearing should be had upon the charges preferred by the special agent against this final entry.

Irrespective, however, of any action the heirs may desire to take, the mortgagee should be afforded an opportunity to show, if it can, that the entryman had earned title to the land at the time his final proof was submitted. With this modification the decisions appealed from are affirmed.

BELLIGERENT AND OTHER LODE MINING CLAIMS.

Motion for review of departmental decision of July 16, 1906, 35 L. D., 22, denied by Acting Secretary Woodruff, July 9, 1907.

INDIAN LANDS-RAILROAD GRANT-INDEMNITY SELECTION.

BRADLEY V. NORTHERN PACIFIC RY. Co.

Lands within that portion of the ceded Gros Ventre, Piegan, Blood, Blackfeet, and River Crow Indian reservation established by executive order of April 13, 1875, and opened to entry by and in accordance with the provisions of the act of May 1, 1888, are not subject to selection as indemnity by the Northern Pacific Railway Company.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 10, 1907. (G. B. G.)

This is an appeal on behalf of Reuben Bradley from your office decision of October 17, 1906, rejecting his application for transfer of homestead right under the provisions of the act of February 24, 1905 (33 Stat., 813), for conflict with an indemnity selection of the Northern Pacific Railway Company as to the NW. of the NE. of Sec. 25, T. 25 N., R. 50 E., Miles City land district, Montana.

No question is made as to Bradley having a transfer right under said statute, but the railway company's selection of the tract in question was seemingly regular and admittedly prior in time to Bradley's application therefor, and the only question presented by the appeal upon this record is, whether this land is subject to the company's selection, it being within the indemnity limits of the grant to the company and free from other claims or rights.

The land lies within that portion of the ceded Gros Ventres, Piegan, Blood, Blackfoot, and River Crow Indian reservation, established by executive order of April 13, 1875, and restored to the public domain by the act of May 1, 1888 (25 Stat., 113, 133), and is "to be disposed of in the manner therein indicated." See departmental letter of instructions dated May 11, 1903 (L. & R. Misc. 485, pp. 325, 330).

Section 3 of the act of May 1, 1888, supra, is as follows:

That lands to which the right of the Indians is extinguished under the foregoing agreement are a part of the public domain of the United States and are open to the operation of the laws regulating homestead entry, except section twenty-three hundred and one of the Revised Statutes, and to entry under the town site laws and the laws governing the disposal of coal lands, desert lands, and mineral lands; but are not open to entry under any other laws regulating the sale or disposal of the public domain.