ing an additional grant of lands to the State of Minnesota in alternate sections to aid in the construction of railroads in said State," approved July fourth, eighteen hundred and sixty-six, so far as said sections are applicable to lands embraced within the indemnity limits of said grants, be, and the same are hereby, repealed; and so much of the provisions of section four of an act approved June second, eighteen hundred and sixty-four, and entitled "An act to amend an act entitled 'An act making a grant of lands to the State of Iowa in alternate sections to aid in the construction of certain railroads in said State,'" approved May fifteenth, eighteen hundred and fifty-six, be, and the same are hereby, repealed so far as they require the Secretary of the Interior to reserve any lands but the odd sections within the primary or six miles granted limits of the roads mentioned in said act of June second, eighteen hundred and sixtyfour, or the act of which the same is amendatory.

SEC. 5. That if it shall be found that any lands heretofore granted to the Northern Pacific Railroad Company and so resumed by the United States and restored to the public domain lie north of the line known as the "Harrison line," being a line drawn from Wallula, Washington, easterly to the southeast corner of the northeast onefourth of the southeast quarter of section twenty-seven, in township seven north, of range thirty-seven east, of the Willamette meridian, all persons who had acquired in good faith the title of the Northern Pacific Railroad Company to any portion of said lands prior to July first, eighteen hundred and eighty-five, or who at said date were in possession of any portion of said lands or had improved the same, claiming the same under written contract with said company, executed in good faith, or their heirs or assigns, as the case may be, shall be entitled to purchase the lands so acquired, possessed, or improved, from the United States, at any time prior to the expiration of one year after it shall be finally determined that such lands are restored to the public domain by the provisions of this act, at the rate of two dollars and fifty cents per acre, and to receive patents therefor upon proof before the proper land office of the fact of such acquisition, possession, or improvement, and payment therefor, without limitation as to quantity: Provided, That the rights of way and riparian rights heretofore attempted to be conveyed to the city of Portland, in the State of Oregon, by the Northern Pacific Railroad Company and the Central Trust Company of New York, by deed of conveyance dated August eighth, eighteen hundred and eighty-six, and which are described as follows: A strip of land fifty feet in width, being twentyfive feet on each side of the center line of a water-pipe line, as the same is staked ont and located, or as it shall be hereafter finally located according to the provisions of an act of the legislative assembly of the State of Oregon approved November twenty fifth, eighteen hundred and eighty-five, providing for the means to supply the city of Portland with an abundance of good, pure, and wholesome water over and across the following described tracts of land: Sectious nineteen and thirty-one in township one south, of range six east; sections twenty-five, thirty-one, thirty-three, and thirty-five, in township one south, of range five east; sections three and five in township two south, of range five east; section one in township two south, of range four east; sections twenty-three, twenty-five, and thirty-five in township one south, of range four east, of the Willamette meridian, in the State of Oregon, forfeited by this act, are hereby confirmed unto the said city of Portland, in the State of Oregon, its successors and assigns forever, with the right to enter on the herein before-described strip of land, over and across the above-described sections for the purpose of constructing. maintaining, and repairing a water-pipe line aforesaid.

SEC. 6. That no lands declared forfeited to the United States by this act shall by reason of such forfeiture inure to the benefit of any State or corporation to which lands may have been granted by Congress, except as herein otherwise provided; nor shall this act be construed to enlarge the area of land originally covered by any such grant, or to confer any right upon any State, corporation or person to lands which were excepted from such grant. Nor shall the moiety of the lands granted to any railroad company on account of a main and a branch line appertaining to uncompleted road, and hereby forfeited, within the conflicting limits of the grants for such

main and branch lines, when but one of such lines has been completed, inure by virtue of the forfeiture hereby declared, to the benefit of the completed line.

SEC. 7. That in all cases where lands included in a grant of land to the State of Mississippi, for the purpose of aiding in the construction of a railroad from Brandon to the Gulf of Mexico, commonly known as the Gulf and Ship Island Railroad, have heretofore been sold by the officers of the United States for cash, or with the allowance or approval of such officers have entered in good faith under the preëmption or homestead laws, or upon which there were bona fide preëmption or homestead claims on the first day of January, eighteen hundred and ninety, arising or asserted by occupation of the land under color of the laws of the United States, the right and title of the persons holding or claiming any such lands under such sales or entries are hereby confirmed, and persons claiming the right to enter as aforesaid may perfect their entry under the law. And on condition that the Gulf and Ship Island Railroad Company within ninety days from the passage of this act shall, by resolution of its board of directors, duly accept the provisions of the same and file with the Secretary of the Interior a valid relinquishment of all said company's interest, right, title, and claim in and to all such lands as have been sold, entered, or claimed, as aforesaid, then the forfeiture declared in the first section of this act shall not apply to or in anywise affect so much and such parts of said grant of lands to the State of Mississippi as lie south of a line drawn east and west through the point where the Gulf and Ship Island Railroad may cross the New Orleans and Northeastern Railroad in said State, until one year after the passage of this act. And there may be selected and certified to or in behalf of said company lands in lieu of those herein before required to be surrendered to be taken within the indemnity limits of the original grant nearest to and opposite such part of the line as may be constructed at the date of selection.

SEC. 8. That the Mobile and Girard Railroad Company, of Alabama, shall be entitled to the quantity of land earned by the construction of its road from Girard to Troy, a distance of eighty-four miles. And the Secretary of the Interior in making settlement and certifying to or for the benefit of the said company the lands earned thereby shall include therein all the lands sold, conveyed or otherwise disposed of by said company not to exceed the total amount earned by said company as aforesaid. And the title of the purchasers to all such lands are hereby confirmed so far as the United States are concerned.

But such settlement and certification shall not include any lands upon which there were bona fide preemptors or homestead claims on the first day of January, eighteen hundred and ninety, arising or asserted by actual occupation of the land under color of the laws of the United States.

The right hereby given to the said railroad company is on condition that it shall within ninety days from the passage of this act, by resolution of its board of directors, duly accept the provisions of the same and file with the Secretary of the Interior a valid relinquishment of all said company's interest, right, title, and claim in and to all such lands within the limits of its grant, as have heretofore been sold by the officers of the United States for cash, where the government still retains the purchase money, or with the allowance or approval of such officers have been entered in good faith under the preëmption or homestead laws, or as are claimed under the homestead or preemption laws as aforesaid, and the right and title of the persons holding or claiming any such lands under such sales or entries are hereby confirmed, and all such claims under the preemption or homestead laws may be perfected as provided by law. Said company to have the right to select other lauds, as near as practicable to constructed road, and within indemnity limits in lieu of the lands so relinquished. And the title of the United States is hereby relinquished in favor of all persons holding under any sales by the local land officers, of the lands in the granted limits of the Alabama and Florida Railroad grant, where the United States still retains the purchase money but without liability on the part of the United States.

Approved, September 29, 1890.

HOMESTEAD APPLICATION-PENDING CONTEST.

RYAN v. CENTRAL PACIFIC R. R. Co. ET AL.

An application to make homestead entry cannot be allowed for land embraced in a pending contest.

Secretary Noble to the Commissioner of the General Land Office, January 5, 1891.

I have considered the appeal of Patrick R. Ryan from your office decision, dated April 11, 1889, rejecting his application to enter, under the homestead law, lots 1 and 2, Sec. 7, T. 2 S., R. 2 W., San Francisco, California.

His application was made February 25, 1889, and was "rejected because the land embraced is in the twenty-mile limit of reservation for the Central Pacific R. R. Co."

An appeal having been taken your office on April 11, 1889, affirmed the action of the local office, because the land described in Ryan's application is embraced in the case of Manuel G. Fie v. Central Pacific R. R. Co., now pending before your office.

Applicant appealed to this Department.

The record shows that there was filed in your office a number of affidavits showing that the lands embraced in this homestead application have been occupied, claimed and cultivated by parties claiming the same, under the pre-emption or homestead laws, and that the same was so occupied and claimed by settlers, at the date of the definite location of said road and at the date of the withdrawal for the benefit of said road. These affidavits make a prima facie showing at least that said tracts were exempted from the operation of said withdrawal. Your office decision, however, is correct. Rule 53, of the Rules of Practice, provides that after a contest has been had and the papers forwarded to your office "The local officers will thereafter take no further action affecting the disposal of the land in contest until instructed by the Commissioner."

It follows that the land embraced in Ryan's application being in controversy in the case of Fie v. Central Pacific Railroad Company, the local officers did right in rejecting his application.

Your said office decision is accordingly affirmed.

OSAGE LAND-RESIDENCE-ACTUAL SETTLEMENT.

DUSENBERRY v. WALL.

Six months continuous residence preceding final proof is not required of the purchaser of Osage land, but he must show actual settlement by acts that indicate an intent to take the land for a home to the exclusion of one elsewhere.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 5, 1891.

I have considered the case of George W. Dusenberry v. Drewery S. Wall, on appeal by the former from your office decision of May 17, 1889, on which you hold for cancellation Osage declaratory statement No. 9078, made by him May 27, 1885, for the NW. of Sec. 35, T. 28 S., R. 20 W., Larned, Kansas. His alleged settlement was on May 5, of that year. Wall filed Osage declaratory statement No. 6207, for the same laud, November 6, 1884, alleging settlement October 30, 1884; on March 23, 1885, he gave notice of his intention to make final proof before the register and receiver on May 25, 1885.

On May 1, 1885, Dusenberry filed a corroborated affidavit, protesting against the acceptance of Wall's final proof, and charged that defendant "never did reside upon or cultivate any portion of said tract. . . . and does not reside upon or cultivate the same at the present time." Wall made his final proof on the day advertised.

On June 18, 1885, a hearing was ordered on plaintiff's protest. Due notice was given, and, on April 1, 1886, the register and receiver found in favor of the defendant. April 17, thereafter, plaintiff made a motion for a new trial, which was overruled. Thereupon, he appealed.

On August 14, 1886, your office ordered a rehearing. Notice was given to all parties; depositions were taken, and case again closed, and on July 22, 1887, the register and receiver again found in favor of defendant, and on appeal you affirm that judgment.

There is no question raised as to defendant's settlement and improvements. The evidence discloses that he is an actual settler on the land, and has made valuable improvements.

Wall went on the land in 1884; he was unable to find the corners of the land, and he joined with others to have a survey made of that and the adjoining tracts. The survey was completed, and about October 20, 1884, he settled upon the tract, building a sod-house. This house was twelve by fourteen feet, with double board roof, one door and one window. He also broke about three acres of ground and sowed the same to rye during that fall. He slept a part of the time in that house, during the months of October, November, and December of 1884, taking his meals at some of the neighbors. He was a single man. While sleeping in his house he contracted a severe cold, resulting in hem. orrhage, and he went to Batte county, Kansas, for treatment.

ruary, 1885, he returned to the land and erected a frame house, twelve by fourteen feet, shingle roof, door, two windows, and board floor. He broke and cultivated more ground and planted a few trees. He slept in his house a part of the time; his health continued very poor. He took his meals as before with the neighbors and at a hotel in the town of Mulinville, near the land. The winter of 1834 and '85 was very severe, and he spent considerable time at the hotel, keeping warm. His health becoming precarious again, he went to his brother's in Butler county, Kansas, and returned again to the land May 5. He did no cooking on his land; his reason for not doing so was because his health required delicacies which he could not prepare himself. He swears that he had no other home.

These improvements were made long before plaintiff filed or settled on the land. Wall's occupancy of the land was not continuous, and the protest was doubtless made because he did not eat and cook and sleep on the place continuously.

His qualifications as a pre-emptor are not denied. The act relating to the Osage trust and diminished reserve lands, approved May 28, 1880 (21 Stat., 143), provides in its second section that said lands, "remaining unsold," "shall be subject to disposal to actual settlers only having the qualifications of pre-emptors on the public lands."

"An actual settler is one who goes upon the public lands with the in. tention of making it his home under the settlement laws, and does some act in execution of such intention." United States et al. v. Atterbery et al., 8 L. D., 173. While six months continuous residence next preceding ate of proof would be corroborative, if not positive proof of actual settlement on Osage lands, yet such continuous residence is not an essential requirement. Circular, April 26, 1887, 5 L. D., 580.

So that, while the settler on Osage lands must have all the qualifications of a pre-emptor, neither the statute, nor the rules of this Department require "in evidence of the genuineness of settlement, that six months of actual residence shall be passed before proof and payment." But it is essential that the settlement be shown to be actual and bona fide.

The settler must go upon the land with the the intention of making it his home. The mere verbal expression of that intention is not suffi cient. "He must do some act in execution of that intention" "sufficient to give notice thereof to the public." United States et al. v. Atterbery et al., 8 L. D., 173.

The number of days he has actually spent on the land, the quality, value, and extent of his furniture and cooking apparatus; the extent of his cultivation; the number or days he has been absent, the causes therefor-may all be shown, but only in proof of one fact and in answer to one question: "Is he an actual settler?”

Claimants for Osage lands are required to file a declaratory statement within three months from date of settlement, and to make proof