No. 378. J. A. GORD. Gord filed as a pre-emptor on land, which, after such filing, became double minimum. He then sought to commute his filing to a homestead entry, and to include therein 160 acres. Held-That he could not be allowed to do it, but might be permitted to have his original filing reinstated. DEPARTMENT OF THE INTERIOR, Washington, D. C., June 24, 1873. SIR-I have considered the appeal of John A. Gord, et al., from your decision of February 10th, 1873, relating to certain homestead entries of double minimum lands within the limits of the grant to the Northern Pacific Railroad Company. Gord and fourteen others, subsequently to the withdrawal for railroad purposes, settled as pre-emptors on even numbered sections of double minimum land within the twenty mile limits of the road, and each claimed one hundred and sixty acres. During the months of August and September, 1872, they appeared at the local office, offered proof of settlement and cultivation, and asked to commute their filings to homestead entries for the full amount of land claimed. Their requests were granted, and the entries allowed. You held that these entries should be cancelled for one-half of the quantity entered, on the ground that only eighty acres of double minimum land can be taken under the homestead act of 1862. I affirm your decision, and return herewith the papers transmitted with your letter of the 15th ultimo. The appellants pray that in case they are not allowed to hold the entire quantity claimed under their homestead entries they may be remitted to their original rights as pre-emption claimants. I see no objec tion to this, and direct that it be done in all cases when it is desired. Very respectfully, W. H. SMITH, Acting Secretary. HON. WILLIS DRUMMOND, Commissioner of General Land-Office. No. 379. KEISKER v. JOHNSON AND KING. Land covered by a homestead is subject to a pre-emption claim initiated prior to the homestead, and filing should be received within the legal period after settlement. A purchaser in good faith, and for a valuable consideration, of land covered by a cash entry, afterwards cancelled, is not accounted a trespasser, but is legally in possession. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., April 6, 1874. REGISTER AND RECEIVER, Marysville, Cal. GENTLEMEN :-I am in receipt of your letter of the 17th ult., transmitting appeal and other paper relative to the claim of William Keisker, for S. W. 32, 8 N., 2 E., M. D. M., together with report thereon. From an examination of the same the following facts appear: 4 The records of this office show that Henry W. Keisker made pre emption cash entry 2,587 for above tract March 11, 1868; an investigation as to the fraudulent character of said entry was ordered by my letter "G" of October 18th, 1869, and hearing had September 13th, 1870, wherein said entry was declared fraudulent by the register and receiver; on the 24th June, 1873, said H. W. Keisker filed an abandonment of his said entry, whereupon the same was cancelled by my letter of Oct. 27th, 1873, and the land declared open to pre-emption and homestead entry by the first legal applicant. On the 24th June, 1873, Wm. Keisker, who had previously purchased the land of H. W. Keisker, for a valuable consideration, and who had a residence and valuable improvements thereon, applied to file for same, and his application properly rejected by you for the reason that the tract was at the time covered by the uncancelled entry of H. W. Keisker, above shown. Your action was, on appeal, affirmed by this Office, Oct. 27th, 1873. On the 24th Nov., 1873, W. Neely Johnson made homestead entry 1,386, covering W. of said S. W.; on the 28th same month, Homer King made homestead entry 1, 388, covering E. of same. On the 6th of January, 1874, Wm. Keisker, by his attorney, S. L. Rodgers, renewed his offer to file said tract, and his application was refused by you for the reason that the land was at that time covered by the aforesaid homestead entries of Johnson and King. Wm. Keisker appears to have been on the land and in possession of valuable improvements at the date of receipt by you of my letter cancelling H. W. Keisker's entry, the earliest date at which he could allege settlement, and his offer to file appears to have been made within ninety days from that time. Your action rejecting the same was, therefore, erroneous, as a homestead entry is always subject to any valid pre-emption claim that may have a prior initiation and be filed for the land within the time required by law. You are accordingly directed to receive said filing and transmit the same with your current returns, referring on your abstract to this letter; he should be allowed to allege settlement from date of the cancellation of H. W. Keisker's entry. Very respectfully, WILLIS DRUMMOND, Commissioner. DEPARTMENT OF THE INTERIOR, SIR-I have examined the case of William Keisker v. W. Neely Johnson and Homer King, involving title to the S. W. sec. 32, 8 N., R. 2 E., M. D. M., California, on appeal from your decision of April 6, 1874. I affirm your decision on the ground that the said Keisker, in good faith and for a valuable consideration, purchased the premises, by warranty deed, of H. W. Keisker, while the cash entry of the said H. W. Keisker was in full force. (Croft v. Myers, 13 Wall., 291.) I return herewith the papers transmitted with your letter of September 24th last. Very respectfully, C. DELANO, Secretary. To the Commissioner of the General Land-Office. No. 380. PARSONS v. PETIT. By the 15th section pre-emption act of 1841, proof, affidavit and payment, must be made within one year of settlement on "offered" land. A homestead entry having been made subject to existing pre-emption rights, and such pre emption rights having failed by reason of not making proof, payment, etc., within a year, the homestead entry should stand. Decision by Acting Secretary Cowen, July 15, 1871. No. 381. STEVENSON v. GARRETT. Garrett made a homestead entry. Stevenson subsequently settled and was allowed to file. Stevenson caused citation to issue on Garrett to appear on a certain date and "show cause why Stevenson should not be allowed to enter the land." Garrett appeared and offered the records of the land-office as showing his prior homestead. Stevenson then introduced evidence showing that Garrett had abandoned the land. Held That Garrett had interposed a proper defense to Stevenson's claim in accordance with the terms of the citation which, under that notice was all he was required to do, and therefore evidence of his abandonment was not admissible. Decision by the Secretary, July 11, 1873. No. 382. III. VERSUS STATE SELECTIONS. GLOVER v. UNIVERSITY OF CALIFORNIA. Held-That a selection of lands in California made by an agent for the University of California, under the acts of July 2, 1862, and June 8, 1868, was not valid when made upon lands which were claimed and had been improved by a pre-emption settler, the University having instructed its agent to make no selections of such lands; and that a selection thus made should be cancelled. DEPARTMENT OF JUSTICE, OFFICE OF ASSISTANT ATTORNEY GENERAL, Washington, D. C., Aug. 1, 1872. SIR-I have considered the case of James Glover v. University of California, involving the right to the N. W. section 2 T. 5 N. R. 7, W. M. D. M, San Francisco, California, appealed by Glover from the decision of the Commissioner of the General Land-Office. In December, 1853, Robert Scearce settled and filed on this land as a pre-emptor. He sold to one Traverse, who in 1858 sold to Glover. The same year Glover moved upon the land and has continuously resided there up to the present time. He has cultivated the entire tract, and has a house, buildings, fences and other improvements thereon, valued at $3,000 in gold. March 27, 1871, he filed his D. S. for the land. He makes affidavit that until a very short time before his filing he did not know that it was necessary for him to do so, and that he believed that the filing of Scearce was subsisting and protected the land. Sept. 7, 1870, H. A. Higley, Land Agent, for the University of California made application to select the land under the grant for that institution, acts July 2, 1862, June 8, 1868, for the benefit of I. M. Wood, who represented that there were no valid claims of any kind against the land. Higley was appointed agent by the Board of Regents of the University, and acted under instructions from the Board. Among other things he was instructed in making his selections not to interfere with a pre-emption settler, nor take advantage of a non-fulfillment of the law on the part of such settler. Acting on the representations of Wood, he was innocently led into a violation of his instructions, and selected Glover's claim and improve ments. When the facts were brought to the notice of the Board of Regents, it repudiated the selections, and notified the United States local land officers that the University abandoned the same. Wood protests against the abandonment, and claims that the selection having been made, there was no power in the University or her agent to abandon it. This case is different from that of State of California v. Kendall, decided by the Interior Department, in which it was held that the Surveyor General of the State could not abandon a selection once legally made by him. That officer was specially empowered by law to do a certain thing, viz: select lands for the State. When he had properly done that his authority was exhausted. He was functus officio, and could not abandon the selection and divest the State of title. In the present case Higley was an agent appointed by the Board of Regents to carry out their instructions, and in the supposed performance of his duty, violated these instructions. It is a principle of law, too well established, that a principal is not bound by an act of an agentd one in violation of his authority. The Board acted properly in repudiating the unauthorized action of its agent Higley. His acts were valid only so far as they conformed to his instructions, and the selection in this case having been made contrary to instructions, was properly repudiated by the Board and should be cancelled. There being no other adverse claim to the land, Glover should be permitted to take it in compliance with the pre-emption law. I advise that the decision of the Commissioner be reversed. Very respectfully, Ŵ. H. SMITH, Asst. Atty. General. HON. C. DELANO, Secretary of Interior. Decision of the Secretary, August 2, 1872, adopting this opinion. No. 383. UNIVERSITY OF CALIFORNIA v. BLOCK. A declaratory statement on file in the proper office is notice to the world of the location and extent of a pre-emption claim; and no subsequent amendment, except for error or mistake, can operate to defeat a right initiated prior to such amendment. DEPARTMENT OF THE INTERIOR, Washington, D. C., Aug. 26, 1874. SIR: I have examined the case of the University of California v. Alfred Block, involving title to N. E. S. E. sec. 2, T. 9 S., R. 2 W., M. D. M., California, on appeal from your decision of March 27, 1873 You rejected the claim of the University on two grounds: first, because at the date of selection the tract was double minimum land; second, because at the date of selection the land was reserved for a public purpose, and was not therefore under the 12th section of the act of 1853 (10 Stat., 248,) subject to selection. You erred upon the first point mentioned in your application of the law to the facts. The selection in question was not made under the act of 1853, but under that of July 2, 1862, (12 Stat., 505,) as amended by that of June 8, 1868, (15 Stat., 68,) and March 3, 1871, (16 Stat., 581,) the latter of which expressly confers the right to select double minimum land, acre for acre, the difference in price to be paid by the State to the United States when the land shall be patented. You erred on the second point named both in your finding of fact and your application of the law thereto. The records of your office show that at the date of the selection the land in question was not reserved for any purpose whatever. It is an even section within railroad limits, and was erroneously withdrawn in 1867, but was restored in 1868. In 1871 it was open to pre-emption and homestead settlement. It was not, therefore, within a reservation for public purposes. The act of March 3, 1871, expressly gives to the State the right to select any lands "subject to pre-emption, settlement, entry, sale, or location under any laws of the United States." The land in contest was subject to pre-emption, settlement, and entry under general laws on the 1st day of June, 1871. It was therefore subject to selection by the State under the act of July 1, 1862. Even if reserved for railroad purposes, the selection would still have been regular and valid if subject to pre-emption.. A proviso to the act of 1862, however, excepts from location land covered by rightful claims under the pre-emption and homestead laws. Did Block, the claimant herein, have a rightful pre-emption claim at the date of the selection? I think not. He had previously settled and filed for the full quantity of one hundred and sixty acres upon tracts contiguous to that in controversy. There is no question whatever that the tracts filed for were the ones actually claimed. He does not claim to have made any mistake, either in description or otherwise. August 31, 1871, upon the State selection, he filed an amended declaratory statement abandoning 80 acres of his former claim, and including in lieu thereof the forty acres in contest. It is claimed that on or about the 18th of May, 1871, finding that the eighty acres referred to were claimed by another settler, and being advised that there was no valid claim to the forty acres in contest, he then concluded to abandon the eighty acres and take the forty acres in dispute. However this may have been, it is clear that prior to the State selection the only work he did in connection with this forty was to clear out and widen an old road through the land, which led to and was the nearest route from his original claim to the public road. This work was done partly in April, when, according to his own testimony, he did not claim the land. A small barn stood upon the dividing line between two forties, partly on the land in contest. There is nothing, however, to show that it was intentionally so placed, and having been built prior to the first declaratory statement, it is evident that it was not then con |