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acre, and the adjoining odd section for one dollar and twenty-five cents per acre, simply because one was an even section and the other an odd section.

A settler on part of an odd section prior to and at date of withdrawal acquired a right to take that land as single minimum, for the reason that his rights were acquired before the lands were raised. As to those settlers, the odd sections settled upon and excepted from the grant were not raised, but when that settlement was abandoned and the land became subject to the settlement and entry of any other settler, it took the character of an even section, and for all purposes contemplated by the grant it was a "reserved alternate section."

The even sections were not reserved in the sense that that term is usually applied in speaking of the reservation of public lands, but, on the contrary, the grant expressly declared that these sections, in common with the odd sections excepted from the grant, should be subject to settlement and entry, under the settlement laws.

Therefore the words "reserved alternate sections" mean those "sections and parts of sections which remain to the United States," this being the language generally used in other grants to indicate what lands within the limits of the grant shall not be sold for less than two dollars and fifty cents per acre, which include all lands remaining to the government within said limits subject to sale under the public laud laws. Clark v. Northern Pacific Railroad Company, 3 L. D., 158; Atlantic and Pacific Railroad Company, 5 L. D., 269.

Not only does this seem to be the true and only reasonable construction of the act, but such construction had previously been given to that grant by the Department in the case of Clark v. Northern Pacific Railroad Company, supra.

The question as to the price of odd sections within the granted limits of the Northern Pacific Railroad Company and excepted from said grant was directly involved in the case last cited. In that case the Secretary held that it is

entirely consonant to reason and good construction, where a grant is made declaring that the alternate even sections reserved to the United States shall not be sold for less than $2.50 per acre, with added provisions excepting out of the grant such odd sections as may fortuitously happen to be found in certain designated conditions, without mentioning the terms upon which such odd sections shall be disposed of, to hold that as the Department is constructively authorized to treat them as public lands in the same category as the even sections, and to dispose of them in the same manner, they should bear the same price.

Then, after observing that it could not have been the intent of Congress to fix a different price for lands lying side by side and governed by the same law as to disposal merely from the fact that one was desig nated as an odd and the other as an even section, he concludes:

I accordingly decide that the law should be so construed, and direct that, for future disposal within railroad limits, where the statute requires the double-minimum to be paid for the alternate sections you hold all the lands at such price, thus pro

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ducing perfect uniformity in all respects as to the tracts in the same circumstances, observing, of course, the right of settlers before withdrawal to pay at the minimum price as provided by law.

This case was not referred to in the Yantis case, although the ruling in the one case was directly contrary to the other, and I can not believe such ruling would have been made, if attention had been called to the case of Clark.

Being satisfied that the construction given to the act by the Secretary in the case of Clark v. Northern Pacific Railroad Company is the true construction, the decision in the case of Yantis v. Northern Pacific Railroad Company is overruled.

It follows that the land entered by Baker is double minimum land, and the application for repayment should therefore be refused.

PRE-EMPTION ENTRY-REPAYMENT.

MARTIN REYNOLDS.

Repayment can not be allowed where a pre-emption entry is canceled on account of the false testimony of the claimant.

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

On April 27, 1883, Martin Reynolds filed his pre-emption declaratory statement No. 3808, for the E. NE. and SW. 4 of NE. 4, Sec. 12, T. 113, R. 60 Huron land district, South Dakota.

November 10, 1883, he offered final proof and cash certificate No. 5589 was issued to him for the land.

In September, 1884, Joel B. Shelton, initiated contest against said. entry alleging that it was perfected through fraud and in violation of law, as Reynolds had, on June 29, 1882, filed his pre-emption declaratory statement for the NE. 4, Sec. 17, T. 112, R. 60, Mitchell series, and thereby exhausted his pre-emption right.

Hearing was duly ordered and had and the local office found in favor of contestant and recommended the cancellation of the entry.

Reynolds appealed, and the action of the local office was approved by your office and, on a second appeal, was finally affirmed by this Department, on April 12, 1888, Shelton . Reynolds (6 L. D., 617).

June 26, 1889, Reynolds, as entryman, and one F. T. Day, as mortga gee and holder of a tax deed, filed a joint application for the repayment of the purchase money.

September 23, 1889, your office rejected this application on the ground that Reynolds in his pre-emption affidavit swore he never had the benefit of any right under section 2259, Revised Statutes; and that in his final proof to the question-"Have you ever made a pre-emption filing or entry of land other than that you now seek to enter?" he answered,

"No," and thereby forfeited under the provisions of section 2262, the money he may have paid for such land.

Reynolds alone appealed, and accompanying his appeal, he filed his own uncorroborated affidavit together with the uncorroborated affidavit of his present attorney for the purpose of showing his good faith in the premises.

At the hearing in the case of Shelton v. Reynolds, supra, claimant's former attorney testified in 1882 that he prepared for Reynolds his declaratory statement, which, having been duly executed, was by him, the attorney, sent to the Mitchell office, where it went of record as declaratory statement No. 18,675, and the receipt therefor was shortly after returned to him; that he delivered the same to Reynolds; that soon af terwards Reynolds came to him and stated that he was going up on the Northern Pacific Railroad, and that he had sold his claim to one Doctor Bullard, and asked him (the attorney) to make out the necessary papers; that he drew a relinquishment and retained the same in his pos session until Reynolds and Bullard completed their trade; that afterwards Reynolds went away, and some time later returned from up north, and upon his said return told witness that "Bullard had beat him out of his claim."

Reynolds, on the other hand, testified that after making his declaratory statement, he frequently called on his attorney to learn if said de. claratory statement had been filed in the local office, and was each time told that nothing had been heard from it, and that as soon as it was recorded he would hear from it; that about July 28, 1882, his attorney stated that he did not think the declaratory statement had gone of record and that it probably would not until the land office had gone to Huron; that in about two months claimant told his said attorney to stop the filing and not let it go through; that he did not want to lose his right and would not be there, as he was out of money and could not wait until the Huron office should open; that in August he went to the northern part of the Territory, and afterwards to Illinois, and in short that he had acted in good faith throughout, believing that he had not exercised his pre emption right and that he was therefore entitled to make a second declaratory statement as he did and to have the benefit of the same.

In his uncorroborated affidavit Reynolds alleges

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That the relinquishment to which my name is signed by me, and acknowledged July 31, 1882, was so made and signed . . . . without my knowing what it was, nor the nature of it. That my attorney presented . . . . certain papers for me to sign which he said it was necessary for me to sign to get a filing to record; that I signed whatever he presented to me, that I never knew until years afterwards that I had signed and acknowledged a relinquishment on the NE. 1, Sec. 17, T. 112 N., R. 60 W., until years after. That when I made pre-emption declaratory statement on (the) E. NW., and SW. NE., Sec. 12, T. 113 N., R. 60 W. I was informed and honestly believed that I had never had the benefit of a preemption right; I honestly believed that the declaratory statement on the NE. Sec. 17, T. 112 N., R. 60 W., had never gone to record and had never been received by the

land officers, I was informed of this by the plat clerk of the Huron land office in the spring of 1883, before I made pre-emption on said last quarter and got an abstract from the Huron land office, showing such to be the case. That in making said declaratory statement I believed I was stating the truth and not committing perjury and I make these statements as a reason for the refunding to me of the $150, purchase money paid for said one hundred and twenty acre tract; that I was then an ignorant man as to the land laws and relied entirely on what was told to me by my attorney and the land officers. I never knew until in the year 1885, that my (first)

declaratory statement

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had been accepted by the Mitchell land office aud gone to record, but on the contrary I was informed by my attorney it had never been accepted . . and I thought I had a right to depend on his representations. Upon review of the record herein, I find that claimant has not acted in good faith, that his statements are contradictory and can not be accepted to disprove the record evidence in the case which sufficiently shows that he testified falsely in making his final proof and thereby forfeited the money which he paid for the land covered by his second filing and entry. John Carson (9 L. D., 160).

The alleged mortgagee did not appeal from the decision of your office, nor does it appear from any record in this case that his mortgage was foreclosed either before or since the entry was held for cancellation. I am convinced there was no error in the decision appealed from and the same is accordingly affirmed.

HOMESTEAD ENTRY-ALIENATION.

JAMES C. KANE.

Where one alienates a portion of the land covered by his cash certificate, before patent issues, he does so at his peril, for if the reviewing officers subsequently find the final proof so unsatisfactory that it must be wholly rejected and new proof required, he can not then truthfully make the affidavit required by section 2291, R. S., and his entry must in consequence be canceled.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 6, 1891.

On March 25, 1884, James C. Kane made homestead entry of the S. SE.Sec. 30, and N. NE. † Sec. 31, T. 4 N., R. 29 W., McCook, Nebraska. He made commutation proof April 3, 1885, and final certificate duly issued.

On March 3, 1888, your office suspended his cash entry and rejected the final proof offered in support thereof and allowed the entryman to submit new proof during the lifetime of the entry. Kane appealed, and on March 29, 1889, this Department affirmed the action of your office, and held that the proof then submitted was not satisfactory, in failing to show that he established and maintained a residence in good faith upon the land.

On October 31, 1889, he submitted new proof, in pursuance of the requirement above set out. By your office letter of November 20, 1889,

you reject the same and hold his homestead entry for cancellation. He again appeals to this Department.

His new proof shows additional improvements, consisting of a new house, stable, and ten acres of breaking, valued at $120; that he reestablished his residence on the land April 20, 1889, and continuously resided thereon. But the proof shows that he traded eighty acres of the land for other land in 1885.

The proof submitted on April 3, 1855, having been rejected, proof de novo was required. Although the cash certificate was issued upon the proof, yet claimant was required to make new proof, and the first having been held for uaught, it was the same as if no proof had been submitted. Before the new proof was submitted, he had alienated a part of the land, and was therefore unable to make the affidavit which is expressly required by section 2291-"that no part of said land has been alienated, except as provided in section twenty-two hundred and eighty-eight."

This is such an act as can not be cured, however well he may have complied with the law in other respects; nor will the fact of the issuance of his final certificate protect him, for it was given upon proof which was afterwards deemed unsatisfactory, and new proof was required. A purchaser of land on the faith of a cash certificate takes an equity only, and is charged with notice of all defects in the title. (Richardson r. Moore, 10 L. D., 415). And where one alienates a portion of the land covered by his cash certificate, before patent issues, he does so at his own peril, and if the reviewing officers subsequently find that the proof is so unsatisfactory that it must be wholly rejected and new proof required, he can not then truthfully make the affidavit required by section 2291, and the entry must necessarily be canceled. For the reasons above given, your decision is affirmed, and the cash entry held for cancellation.

RAILROAD GRANT-DEFINITE LOCATION-ACT OF JULY 25, 1866.

CALIFORNIA AND OREGON R. R. Co. v. PICKARD.

The right of the company under the grant of July 25, 1866, attaches to the granted sections when the map designating the line of road is filed with the Secretary of the Interior, and accepted by that officer.

Secretary Noble to the Commissioner of the General Land Office, February 6, 1891.

In the case of the Oregon and California R. R. Co. v. George Pickard, said company appeals from your office decision of July 12, 1889, rejecting its claim to the NE., Sec. 21, T. 2 S., R. 5. E., Oregon City, Oregon.

Said tract is "within the twenty mile granted limits" of the grant to the appellant, act July 25, 1866 (14 Stats., 239), and also within the

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