On the 8th day of June, 1889, the acting commissioner of your office asked to be advised whether Parker's entry should be canceled outright on the report of the Indian Agent, or the same "be held for cancellation, allowing the entryman to be heard in his own behalf before final action is taken."

On July 28, 1890, you were advised that the instructions given on May 17, 1889, were explicit, and that it was the wish of the Department that action be taken as therein directed.

On the 6th day of August, 1890, your office canceled Parker's entry and directed the local officers to note the cancellation on their records, and allow the Indian Pa-ock-a-tin or Pierre, to enter the tract under the fourth section of the general allotment act (24 Stats., 388).

On the 27th day of August, 1890, your office transmitted a report of the register of the local office at Spokane Falls from which it ap pears that the Indian Pa-ock-a-tin and other Indians voluntarily went to the local office to talk over their land matters with Special Indian Agent Geo. P. Litchfield. It appears that some years ago said Indian agreed to sell to Charles R. Parker, all his claim to the tract of land for the sum of $100; that Parker paid him at different times sums amounting in the aggregate to $55, and that about the 1st of December, 1890, Parker paid him the balance, $45, due on a note given to the Indian by Parker. The Indian stated that he was then entirely satisfied and that he did not desire to make any claim whatever to the land. He said, "When I have sold anything, I am done with it." The Indian also signed a statement, made before the register of the local office, which was witnessed by Hal J. Cole, Indian Agent, and Special Indian Agent Geo. P. Litchfield relinquishing all his right or claim to the tract of land, and reciting the sale of it to Parker.

It appears that Parker is a good citizen, a man of a family and very poor. The register says: "I believe that the Department would be doing an act of justice that would be fully borne out and warranted by the facts in this case, in a re-instatement of Mr. Parker in his claim" on the tract. The register of the local office at the same time transmitted the application of said Parker to have his homestead entry re-instated. On the 15th of December, 1890, the Commissioner of Indian Affairs addressed to you a communication relating to this matter and the report of Special Agent Litchfield upon it, from which it appears that this Indian is old and unable to cultivate the land even if he so desired; that he has no sons and that his daughters are all married and living upon an Indian reservation; that he,the Indian, wishes to remove thereto and live thereon with them. That he does not desire to enter said land. Agent Litchfield recommends that Mr. Parker be allowed to renew his filing on the land and the Commissioner of Indian Affairs says,-"This office can see no reason why the said tract should be held longer for the use and benefit of the Indian Pa-ock-a-tin, or Pierre."

While, as a rule, the law allows only one homestead entry, yet, there 17581-VOL 12-14

are well established exceptions. As was said in Thurlow Weed (8 L. D., 100), "A mistake which involves no wrong, and is attributable to causes reasonably likely to produce it, ought rarely to forfeit the privilege of gaining one homestead, when honestly sought in good faith by a genuine settler with a family." See also Patrick O'Neal. Id., 137. In this case I find that Parker comes clearly in the spirit as well as letter of the rule. You are accordingly instructed to re instate Parker's entry for the tract of land described, as requested by him.

FINAN v. MEEKER.

Motion for review of departmental decision rendered in the case above entitled September 23, 1890, 11 L. D., 319, overruled by Secretary Noble, February 27, 1891.

RAILROAD LANDS-ACT OF MARCH 8, 1887.

UNION PACIFIC RY. Co.

In proceedings for the recovery of title under the act of March 3, 1887, the demand for reconveyance is a statutory requirement to be made only by the direction of the Secretary of the Interior, and should be served either personally, or by registered letter, upon the officers of the company, or some one holding sufficient authority to receive and acknowledge service of such demand.

Secretary Noble to the Commissioner of the General Land Office, February 28, 1891.

By letter of December 11, 1890, your office transmitted three lists of lands to this Department (lists marked "A" "B" and "C"), stated to have been erroneously patented to and for the benefit of the Union Pacific Railway Company. The lands included in list "A" are within the limits of the grant of July 1, 1862 (12 Stats., 489), and July 2, 1864 (13 Stats., 356), to the Kansas Pacific Railway Company, in the State of Kansas.

The lands included in list "B" are within the limits of the grant to said company in the State of Colorado.

The lands included in list "C" are within the limits of the grant of July 1, 1862, and July 2, 1864, supra, to the Union Pacific Railway Company, in the State of Nebraska.

The tracts described in lists "A" "B" and "C" are all of the oddnumbered sections, and are within the limits of the two grants for the benefit of the Union Pacific Railway Company.

Your letter states that on September 10, and October 25, 1890, you gave the Union Pacific Railway Company notice to show cause why demand should not be made on said company to reconvey said land

to the United States. You enclose in your letter the answers of the Company stating its reasons why no steps should be taken by the United States to repossess itself of said land. The company states that long before the passage of the act of Congress of March 3, 1887 (24 Stats., 556), under which proceedings may be had to regain the title to said lands, the company had conveyed the greater part of the lands embraced in said three lists to bona fide purchasers; that another part of said lands has been sold by said company to bona fide purchasers, and that said company is bound by its contracts with said purchasers to convey to them the lands sold to them and a part of whose purchasemoney has been paid; that the remaining portion of said lands still belongs to said company, but the company says that the issue of the patents by the United States government is an adjudication and a determination under the law as to the right of the company under the law to said lands.

By letter of December 20, 1890, your office transmitted three lists of lands to this Department: list "D" including lands in the State of Nebraska, "E" lands in the State of Wyoming, and "F" lands in the Territory of Utah. The lands embraced in these three lists are situated within even-numbered sections and are within the limits of the grant for the benefit of said Union Pacific Railway Company.

The lands embraced within these lists were erroneously patented to said company under the provisions of the act of June 22, 1874 (18 Stats., 194).

Your letter states that, on November 7, 1890, you gave the Union Pacific Railway Company notice to show cause within thirty days why the United States should not begin proceedings under the act of March 3, 1887, to have said erroneously patented lands restored to the public domain. You enclose also a statement from said company in answer to your letter to show cause, as above. This statement is substantially the same as made by said company in relation to the lists marked "A" "B" and "C."

The tracts made the basis for the selections in lists "D” “E” and "F," were covered at the date of definite location with settlement claims; consequently were excepted from the grant, and do not come within the purview of the act of June 22, 1874, supra, which provided only for the case where the settlement claims were recognized and allowed "subsequent" to the company's rights.

The lands included in lists "A" "B" and "C" were excepted from the operations of the grants for the benefit of the railway company because they are shown by your records to have been claimed by homestead and pre-emption settlers at the date of the filing of the map of definite location of said road in your office.

The Department has heretofore passed upon all the points raised by the company in its answers to the rule laid upon it to show cause. See Winona and St. Peter R. R. Co. (9 L. D., 649); St. Paul and Sioux

City R. R. Co. (10 L. D., 50); Central Pacific R. R. Co. v. Rees (id., 281); Prindeville v. Dubuque and Pacific R. R. Co., (id., 575); Central Pacific R. R. Co. et al. v. Valentine (11 L. D., 238).

It appears that the attorneys for the railway company have construed your notice to show cause why demand should not be made, as the demand itself. You have, however, in the matter of said notice, very properly followed the rule established in the case of Winona and St. Peter R. R. Co. et al. (6 L. D., 544), where it is made the duty of your office, in any case where it appears that lands have been erroneously patented by the United States to or for the use of any railroad company, to serve notice on said company to show cause within thirty days why proceedings should not be taken in accordance with the provisions of the act of March 3, 1887, to secure the restoration of said lands to the government. This notice to show cause should not be confused or confounded with the demand to be made by you on said company to reconvey said lands to the United States. This demand is a statutory requirement, to be made only by direction of the Secretary of the Interior, and should be served either personally or by registered letter upon the officers of said company or some one holding sufficient authority to receive and acknowledge service of said demand.

It appears from the records of your office that the lands embraced in lists "A" " B " " ( " 6 D""E" and " F" have been erroneously patented to and for the use of said Union Pacific Railway Company; and, in answer to the rule to show cause, it has failed to assign any legal reason why proceedings should not be instituted against it under the act of March 3, 1887.

You are therefore directed to demand from the Union Pacific Railway company a reconveyance of the lands described in said lists; and if the company neglect or fail to make said reconveyance within ninety days after demand, you will prepare and transmit to this Department a report of the fact and a record of all the proceedings in relation to the matter, to be forwarded to the Attorney-General that he may take proper action in the premises.

NORTHERN PACIFIC R. R. Co. v. POTTER ET AL.

Motion for review of departmental decision rendered in the case above entitled November 29, 1890, 11 L. D., 531, overruled by Acting Secretary Chandler February 26, 1891.

FINAL PROOF-NEW PUBLICATION.

SARAH A. LARKIN.

Where final proof is submitted on indefinite notice, it may be accepted in the absence of protest, after new notice given in due form.

Secretary Noble to the Commissioner of the General Land Office, February 27, 1891.

Your office, on January 31, 1887, rejected the final proof of Sarah A. Larkin (a soldier's widow), upon the homestead entry made by her husband for the SW. of Sec. 17, T. 101, R. 63, Mitchell land district, South Dakota.

Mrs. Larkin appealed to the Department, which held that her proof was insufficient, for the reason that in the published notice of claimant's intention to offer final proof no date was fixed; and she was required “to publish a new notice, and furnish new proof as of the date of her former proof."

Said departmental decision was dated September 26, 1888; but for some reason unknown (and under the circumstances not important) it was not promulgated by your office until October 8, 1890.

The claimant now directs attention to the fact that since the rendition of said decision some slight changes have been made in the prac tice of this Department, in the direction of more liberal rulings in favor of settlers upon the public lands; and applies (within thirty days from receipt of notice of said decision) for a review thereof, and an application of present rulings to the claimant's case-especially in view of the fact that seven years (lacking less than a month) have passed since she made final proof and received final certificate, and that for other reasons it would now be difficult to reproduce the proof which the Department has already held to be in itself sufficient-the notice only being defective.

Under the peculiar circumstances of the case, I see no reason why this application should not be granted. ·

The rule of the Department now is:

Where final proof is submitted on indefinite notice, it may be accepted, in the absence of protest, after new notice given in due form. (Alice Summerfield, 10 L. D., 372; Frank Aldrich, ib., 587.)

In the cases above cited the proof was indefinite as to the officer before whom the proof was to be taken; in the case at bar it was indefinite as to the date upon which it was to be taken. There appears no reason why the same practice should not obtain in the one case as in the other.

You will therefore direct that new notice be published, in due form, of the claimant's intention to offer final proof; and if, upon the day so