Upon this testimony, your office held that the settlement of Roberts was protected by the company's relinquishment, and held his applica tion for allowance.

From this decision the company appealed, assigning the following errors, to wit:

1. In awarding the land to Roberts without first ascertaining that his settlement was made with the intention of claiming the land under United States laws, or determining that he had such intention prior to March 26, [16] 1881.

2. In holding that a man confined in jail can make homestead entry of land on which neither he nor his family are residing.

3. In allowing him to embrace in such entry more land than he has ever occupied or controlled or claimed.

To the first assignment of error it may be answered that in the absence of any evidence to the contrary, a settlement upon public lands by a person qualified to enter will be presumed to have been made with the intention of entering said lands under the settlement laws, and the mere fact that subsequent to March 16, 1881, he may have attempted to purchase it from the railroad company does not overcome the presumption that his settlement made prior to that date was made with the intention of taking the land under the settlement laws. Wigg v. Florida Ry. & Navigation Co., 12 L. D., 301.

As to the second ground of error, the claimant and his witnesses testified that he settled upon the tract in controversy, which includes the four forties, in 1880, and improved the same, and no evidence was offered by the company showing that he did not settle upon all of the land in controversy. His improvements consisted of a dwelling house, corn crib, stable, smoke house, and eighteen acres cleared, fenced and planted in cotton, corn, peas, and potatoes; but there is no evidence that there was any part of the tract in controversy that was not at some time cultivated or improved.

The mere fact that the claimant was in jail when his application was made will not defeat his right to claim the land under his settlement, and, even if he should fail to perfect his entry, the lands having once been relinquished by the company, by reason of the settlement of Roberts, existing prior to March 16, 1881, they could not be again claimed by it, for the reason that in consideration of said relinquishment the company became entitled to select an equivalent quantity of even sec tious within said limits, under the act of June 22, 1874. Peninsular Railroad Company v. Carlton and Steele, 2 L. D., 531; Florida Railway and Navigation Company e. Dick, 7 L. D., 481.

The decision of your office is affirmed.

ADDITIONAL HOMESTEAD-ALABAMA LANDS-APPEAL.

AVERY v. SMITH.

Under the act of May 6, 1886, an additional entry may pass to patent without proof of settlement and cultivation, where final proof has been made on the original entry, and a contest, therefore, will not lie as against such additional entry on a general charge of abandonment.

The act of March 3, 1883, requiring, prior to entry, public offering of lands theretofore reported as containing coal and iron, under departmental construction is held applicable only to lands reported as "valuable” for coal.

The failure of a homestead applicant to appeal from the rejection of his application will not bar a subsequent assertion of priority of right as against another, where such failure is due to erroneous information received from the local officers as to the record status of the land.

Acting Secretary Chandler to the Commissioner of the General Land Office, May 26, 1891.

I have considered the appeal of Margaret Avery from the decision of your office of October 23, 1889, dismissing her contest against the additional homestead entry of Martha Smith, for the SE. 4 of the NE. and the NE. of the SE. of Sec. 14, T. 14 S., R. 2 W., Huntsville, Alabama.

1

It appears from the record that Martha Smith made original homestead entry for the N. of the NE. of said Sec. 14, T. 14 S., R. 2 W., September 25, 1878, and received patent for the same March 10, 1885. On February 16, 1887, she made additional homestead entry of the SE. of the NE. and the NE. † of the SE. of said section, under the provisions of the act of March 3, 1879 (20 Stat., 472), and the act of May 6, 1886 (24 Stat., 22), amendatory thereof, which provided that homestead settlers, within railroad limits, restricted to less than one hundred and sixty acres, who have made additional entry under the act of March 3, 1879, after having made final proof of settlement and culti vation under the original entry, shall be entitled to have the lands cov ered by the additional entry patented without further cost or proof of settlement and cultivation.

On July 26, 1889, Margaret Avery made affidavit, before a commissioner of the circuit court of the United States for the northern district of Alabama, alleging

that the said Martha Smith has wholly abandoned said tract; that she has changed her residence therefrom for more than six months since making said entry; that said tract is not settled upon and cultivated by said party as required by law. Contestant also claims the prior right to enter said land, she having lived upon said land one year before Martha Smith entered said laud, aud contestant having applied to enter said land prior to Martha Smith's entry.

With said affidavit of contest she also filed a statement, not verified, alleging that she is a widow and actual bona fide settler on the tract in controversy and had been living on the tract for more than two years, upon which she had built a dwelling house and made valuable improve

ments; that she resided on the land one year prior to the entry of Martha Smith, and that the said Martha Smith at the time she made her entry knew that contestant was residing upon and had improved the tract; that she made application at the local land office to enter said land the early part of January, 1887, which was rejected by the local officers, for the reason that it was described as coal and mineral land and was not subject to entry.

You dismissed the contest, for the reason that any rights which the plaintiff may have gained by her alleged prior settlement have been lost by her failure to appeal from the rejection of her application, and it is immaterial whether the defendant settled upon and cultivated the land, or whether she abandoned it. From this decision the contestant appealed.

When the claimant made her entry and when this contest was filed, the act of May 6, 1886, was in force, which allowed the additional entry to pass to patent without proof of settlement and cultivation, where full proof had been made on the original entry, and her entry was therefore not subject to contest upon this ground.

The only question for consideration upon this appeal is, whether the contestant was debarred from contesting this entry upon the ground of priority of right by reason of her failure to appeal from the rejection of her application to enter.

The act of March 3, 1883 (22 Stat., 487), provided that all lands that had been reported as containing coal and iron should not thereafter be subject to homestead entry, until said lands had first been offered at public sale.

In the circular of April 9, 1883 (1 L. D., 655), the local officers were directed not to allow entries of tracts that had been investigated and reported as valuable for minerals. The tract in controversy was within the limits of the belt of lands so reported, but upon investigation it was classed as "coal not valuable," and, hence, was subject to entry under the terms of the circular, although it was reported as containing coal.

It appears that the local officers, at the time when the contestant applied to enter the land, considered that the records of their office showed that the land was not subject to entry, and the application was therefore refused.

There can be no question that if the land was not subject to entry at the date of her application, the failure to appeal therefrom would not affect her right to contest the entry of another, which had been subsequently allowed upon the ground of priority of claim and settlement, and the only question that arises is, whether the mistake of the local officers in refusing to allow her application, upon the ground that the land was classed as coal or mineral and not subject to homestead entry, was a bar to the further assertion of a claim to the land after it had been entered by another.

I am of the opinion that her failure to appeal from this action of the local officers is not a bar to her right to assert priority of claim.

The act provided that lands reported as containing coal and iron should not be subject to entry until after public offering, and this tract was reported as containing coal. While the Department construed said act to embrace only such lands as were reported "valuable for minerals," and although this tract was designated on the list of lands sent to the local office as "coal not valuable," the contestant was justified in acting upon the information given to her by the local officers as to the status of said land, as shown by their records, and that it was not then subject to entry. Her failure to appeal therefrom should not deprive her of the right to have the error of the local officers corrected by contesting, upon the ground of priority, the claim of another who was allowed to enter the land.

If the contestant had improved the tract and was residing upon it at the date of entry, as alleged, the claimant had notice of the prior occu pancy and improvements of the contestant, and made her entry subject to whatever right the contestant might have. Her rights should not be defeated upon mere technical grounds.

Your decision is reversed, and a hearing will be ordered upon the contest to determine the question of the priority of claim.

RIGHT OF WAY-MAP OF DEFINITE LOCATION.

MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RY. Co.

The map submitted on application for right of way must be in the form of one continuous map, and not in detached sections.

Acting Secretary Chandler to the Commissioner of the General Land Office, May 28, 1891.

With your letter of the 9th instant to the Department, you transmitted, what is stated to be, a map divided into six detached sections, for convenience in handling and transmission to appropriate land districts, showing 38.24 miles of the definitely located line of road of the Minneapolis, St. Paul and Sault Ste Marie Railway Company in North Dakota and filed under the provisions of the right of way act of March 3, 1875.

This map as submitted, is not satisfactory to the Department and it is herewith returned without approval.

The regulations under the above act are to the effect that maps filed for the purpose of securing its benefits, should be drawn to a scale of not less than two thousand feet to one inch. An adherence to this scale has not been held to be imperative when maps drawn to a lesser one have been filed, if in other respects properly submitted, but in no instance have such been approved that have not formed one continuous map.

The map in hand is drawn to a scale of eight hundred feet to one inch. This fact, however, does not warrant its submission other than in the customary way as an entirety to which the required affidavit and certificate alone relate.

RAILROAD GRANT-ARMED OCCUPATION ACTS.

FLORIDA RY. AND NAVIGATION CO.

Directions given for the publication of railroad selections that embrace lands that may be covered by former entries under the "armed occupation acts."

Acting Secretary Chandler to the Commissioner of the General Land Office, May 28, 1891.

I am in receipt of your communication of the 20th instant, relative to entries made under the acts of August 4, 1842 (5 Stat., 502), June 15, 1844 (5 Stat., 671), and July 1, 1848 (9 Stat., 243), known as the Armed Occupation Acts, stating that the Florida Railway and Navigation Company has selected several hundred thousand acres of land under the grant to said road, which are now being examined with a view of certifying the same to the company; that inasmuch as a large number of these entries which lie within the limits of the grant to said road have not been ascertained and entered upon the tract books of the General Land Office and the local office, it will be impossible to protect such settlers, unless some action is taken to ascertain and locate these entries, before acting upon said selections.

In view of these facts, you request my opinion upon the propriety and advisability of detailing some one thoroughly familiar with these cases and the facts connected therewith to proceed to said State, and make a thorough examination of said entries, taking such testimony as may be submitted in support thereof, and to ascertain and locate the same with reference to the public surveys, to the end that such settlers or their heirs may be protected in their rights.

I am of the opinion that the rights of all settlers or the heirs of persons who settle under said acts will be better protected by directing the local officers to advertise a list of all lands selected within the limits aforesaid in the several papers published nearest to the lands, for the period of three months, requiring all claimants of the lands so selected to file notice of their claims in the local office within four months from the date of publication of such notice. At the expiration of that time, if no such claims are filed, I think the selections may then be approved.

This plan will dispense with the necessity of detailing a special agent to make examination into these entries, and in my opinion will be the more practical and feasible manner of protecting the rights of all settlers or the heirs of such settlers, who may still claim any lands now selected by the road which were settled upon under the acts aforesaid.