was based was not in the army of the United States," and yet it was also held that the transferee of Freuch's right by a bona fide instru ment in writing was entitled to the benefit of the act of June 15, 1880 (21 Stat., 257) and might purchase said land from the government.

The provisions of said act relating to matters of this character are as follows:

That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the government price therefor, and in no case less than one dollar and twenty-five cents per acre, and the amount heretofore paid the government upon said lands shall be taken as part payment of said price.

This act was doubtless intended for the relief of persons who had made homestead entries and had failed to comply fully with the law in regard to residence and cultivation, and those to whom homesteaders had attempted to convey their rights in such homestead entries.

The decision in the French case, supra, that persons whose military service was performed in the Missouri Home Guards are not entitled to the benefits of Section 2306, R. S., has been continuously followed; Wilson Miller (6 L. O., 190); Smith Hatfield, et al (6 L. D., 561); Chauncey Carpenter (7 L. D., 236). And while this is the case the claimant in the case at bar, Jamison, occupies the position of the transferee in the French case, supra. In the Chauncey Carpenter case, supra the facts, as stated, do not show that the transferee purchased from the entryman prior to the passage of the act of June 15, 1880, and the construction of said act does not appear to have been involved in the case while in the case at bar it is the sole question for decision.

The soldiers' additional homestead entry in controversy was made by an attorney in fact, but it was made November 25, 1878, under the practice prescribed by circular of this Department of May 17, 1877, which in subdivision three thereof provided:

To allow entries to be made by the agents or attorneys of the party originally entitled to the entry, but only after the claim has been presented to you and certified as valid and that the party is entitled to the amount of land claimed, under such circumstances and regulations as you may prescribe.

No change of practice was made, or different construction given the law until the circular of February 13, 1883 (1 L. D., 654), was issued, which abolished entries by attorney in fact and required the party entitled to make entry to appear in person at the local office as in other homestead entries, but in this circular it was provided that, "these rules shall not apply to cases where the additional right has heretofore been certified by this office, nor to cases now pending, or which may be filed in this office prior to March 16, 1883."

The case at bar is clearly within the above proviso and must be de cided under the circular of May 17, 1877, and the law as construed in the case of French (on review).

The entry of Jamison for the land in question having been made and allowed under the rulings at the time in force, and under the express direction of the Commissioner of the General Land Office and before any change in the rulings, and not being in conflict with the law as then interpreted, should under the rule in Oliver v. Thomas et al. (5 L. D., 292), and Wachter et al v. Sutherland (7 L. D., 165) be allowed to stand.

Your said office decision is therefore reversed and patent will issue on claimant's cash entry.

RAILROAD GRANT-REVOCATION OF INDEMNITY WITHDRAWAL.

COUNTERMAN v. MISSOURI, KANSAS & TEXAS RY. Co.

Under the procedure provided in the order revoking the indemnity withdrawal, made for the benefit of this company, it is incumbent upon the General Land Office, in cases of unapproved selections for lands covered by applications to file or enter, to pass upon "the right of the company to make selection."

Secretary Vilas to Commissioner Stockslager, February 19, 1889.

By letter of March 9, 1888, your office subinitted for re-adjudication the case of Gilbert J. Counterman . Missouri, Kansas & Texas railway company, involving the W. SW. 4, Sec. 28, and E. SE. 4, Sec. 29, T. 25 S., R. 14 E., Independence, Kansas.

The tracts are within the indemnity limits of the grant for said company the withdrawal for which became effective April 6, 1867. The company selected the tracts September 25, 1882, which selection has not yet been approved.

November 27, 1882, Counterman applied to enter the tracts under the homestead law. His application was rejected by the local office on account of said selection. On appeal he alleged that the land was excepted from said withdrawal by reason of the claim of one Marion Kingston, under declaratory statement filed March 24, 1866, alleging settlement the same day. Your office thereupon by letter of January 3, 1883, ordered a hearing in the premises. There was also of record on the tract the declaratory statement of Mahlon C. Putnam filed April 2, 1878, alleging settlement the first of the same month and of Albert Anderson filed April 30, 1879, alleging settlement the 18th of that month.

Notice of the hearing was published specially citing all of said preemption claimants.

At the hearing held March 13, 1883, the pre-emption claimants failed to appear, and there were present Counterman and a representative of the company. The testimony showed that Kingston had established residence on the tract in the summer of 1866, and remained there cultivating the land until about July, 1867, after the withdrawal, when he left. The local officers rejected the application of Counterman. Your office

by letter of February 29, 1884, affirmed that decision and awarded the tracts to the company.

On appeal that decision was affirmed by this Department on August 19, 1886.

In said latter decision it was said:

But the land in this case being offered land and at the time of the hearing nearly four years having elapsed since the filing of the latest declaratory statement, and your office having found that the parties were duly cited, and had made default, I affirm the conclusion that they had abandoned the land prior to the date of selection by the railroad company and that Counterman's subsequent application was rightfully rejected.

On August 17, 1887, the withdrawal for said indemnity limits was revoked, and October 15, 1887, was fixed in the notice as the date when the lands thereby affected would be thrown open to entry.

On that day Counterman again applied to enter said land, the company was notified and February 13, 1888, set for hearing at which time both parties appeared. Counterman submitted homestead proof and the company filed protest and cross examined the witnesses.

The proof showed that in March, 1884, claimant built a house on the cact and in 1885 broke five acres; that in the spring of 1886, he took ip his residence there with his family and has since lived there; and that his improvements are valued at $620.

The local officers decided that the entry should be allowed on the ground that "the railroad selections had been forfeited." The company appealed.

On this appeal your office submitted the case as stated. Your said office letter states:

As to the jurisdiction of this office in the premises the case is res adjudicata, but since all the lands in the indemnity limits of the company, not included in an approved selection come within the terms of the withdrawal revocation dated August 17, 1887, it is respectfully submitted for re-adjudication.

The method of procedure to be followed in this class of cases is set out in said order of revocation of August 17, 1887*, as follows:

As to the lands covered by unapproved selections, application to make filings and entries thereon may be received, noted, and held subject to the claim of the company, of which claim the applicant must be distinctly informed, and memorauda thereof entered upon his papers. Whenever such application to file or enter is presented, alleging upon sufficient prima facie showing that the land is from any cause not subject to the company's right of selection, notice thereof will be given to the proper representative of the company, which will be allowed thirty days after service of said notice within which to present objections to the allowance of such filing or entry. Should the company fail to respond or show cause before the local officers why the application should not be allowed, said application for filing or entry will be admitted and the selection held for cancellation; but should the company appear and show cause, an investigation will be ordered under the rules of practice to determine whether said land is subject to the right of the company to make selection of the same, which shall be determined by the register and receiver, subject to the right of appeal in either party.

*See Atlantic and Pacific R. R. Co., 6 L. D., 91.

When appeals are taken from the decision of the register and receiver to your office in the class of cases herein provided for, you will dispose of them without delay; and if the decision of your office shall be in favor of the company, and no appeal be taken, the land shall be approved or certified for patent, without requiring further action on the part of the company except the payment of fees and dues. If the decision of your office should be adverse to the company, and no appeal taken, the selection will be canceled, and the filing or entry allowed, subject to compliance with the law.

In this case your office has not followed the course prescribed by said instructions, in that the validity of the company's selection was not passed upon. The local officers held that "the railroad selections had been forfeited."

Said instructions, however, do not justify this conclusion. Your office has made no judgment on "the right of the company to make selection." This question should have been decided by your office.

The case is therefore returned for such disposition of said selection as may be proper in the light of the application of Counterman.

SECOND TIMBER CULTURE ENTRY-REPAYMENT.

JAMES C. KEEN.

A second timber culture entry may be allowed where the first, through no fault of the entryman, did not cover the land intended to be entered, and amendment is barred by the adverse claim of another.

Credit on the second entry, for fees and commissions paid on the first, can not be allowed, but repayment of such fees and commissions will be considered on application therefor.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 21, 1889.

The record in this case shows that on July 6, 1886, James C. Keen made timber culture entry for the NW. of Sec. 22, T. 12 N., R. 32 W., North Platte land district, Nebraska.

On or about July 1, 1887, Keen filed in the local office an application, accompanied by his affidavit, duly corroborated, in effect asking that his said entry be canceled without prejudice to his right to make another timber culture entry for a different tract of land. He filed at the same time his written relinquishment of his original entry, and along with it, a formal application to make timber culture entry for the E. of the NW. and the W. of the NE. of Sec. 24, T. 15 N., R. 30 W., of the same series.

The facts stated by Keen in support of his application are, substan tially, that on July 4, 1886, desiring to select a tract of land suitable for timber culture entry, he employed one Frank Gapen, who then had an office in North Platte, and represented himself to be a competent surveyor and locator, to show him a desirable tract for the purpose named. That Gapen took him to a tract of land, which at the time was devoid of improvements, and affiant being pleased therewith, and being

informed by said Gapen that the same was the NW. 4 of Sec. 22, T. 12 N. R. 32, W., he made his application therefor, and upon this application his said original entry was allowed; that subsequently, about the 15th of September, 1886, affiant again went to the tract for the purpose of showing the same to his family and determining what portion thereof he would plow for the planting of trees, and found a settler thereon by the name of John Spies, who informed affiant that the tract in question was not the tract embraced in his said timber culture entry. He afterwards ascertained that the land he had thus selected and supposed he had entered, was the SE. of Sec. 26, T. 13 N., R. 32 W., and that the tract he had actually entered, as aforesaid, was entirely worthless, being situated on the sand hills, and for that reason utterly unfit for cultivation; that affiaut, when he made the selection aforesaid, was entirely ignorant of the government surveys, but believed said Gapen to be a competent surveyor and locator, and relied upon him as such and as a man of honesty and fair dealing, incapable of deception in the matter of locating him on the tract in question. Affiant further states that he agreed to take the claim, in good faith believing it to have been properly described to him by Gapen, and that when he made his application to enter, he honestly believed he was applying for the identical tract he had thus examined; that he has caused the records of the land office at North Platte to be examined and finds that the SE. of Sec. 26, T. 13 N., R. 32 W., the tract on which he had been located, as the NW. of Sec. 22, T. 12 N., R. 32 W., as aforesaid, is embraced in the homestead entry of said John Spies, made March 22, 1886, several months prior to affiant's selection thereof. The affidavit of one A. J. Slootskey, dated May 12, 1887, is filed in the papers, in which Sloots key states, among other things, that he had recently had a conversation with Gapen, in which the latter admitted that at the time he located Mr. Keen on the tract above mentioned, he knew the same had been previously covered by the homestead entry of Spies.

Upon the showing thus made, your office treated the application of Keen as an application to amend his original entry, and, on October 4, 1887, rejected the same, for the reason that the land now sought to be entered was not intended to have been embraced in the applicant's original entry.

The papers are now before me on Keen's appeal from your said decision.

This is not, as construed by your office, an application to amend an existing entry, but is an application by Keen to be allowed to make a timber culture entry, for another and different tract from that he originally intended to enter, on the ground of mistake in making his first entry, caused by the deception practiced upon him by the surveyor whom he employed to assist him in locating his claim, and upon whom he relied; it being shown that the tract he originally intended to enter was at the date of his examination and selection thereof covered by the homestead entry of another party.