The case at bar is in all material respects similar to that of Dean v. Peterson (11 L. D., 102), involving land in the same district, wherein the Department held that no rights could be acquired under an affidavit of contest filed during the pendency of proceedings by the government against the entry. See also Canning v. Fail (10 L. D., 657); Drury v. Shetterly (9 L. D., 211); Arthur B. Cornish (Id., 569).

The decision appealed from is in accordance with the foregoing and is hereby affirmed.

MOTION FOR REVIEW-TRANSFEREE.

OTTO SOLDAN.

A transferee who desires to be heard on review must set up facts sufficient to show that he is entitled to such hearing.

Secretary Noble to the Commissioner of the General Land Office, August 19, 1890.

The attorney for D. Rhomberg claiming to be the assignee of the mortgage of Otto Soldan has filed a motion for review of departmental decision of October 23, 1888, rejecting Soldan's commutation proof under his homestead entry for the E. of the SE.Sec. 21 and the W. of the SW. of Sec. 22, T. 113 N., R. 61 W., Huron South Dakota land district.

In support of this motion for review the following allegations are made:

First: Said decision is not in accordance with the law, as construed by the Department in many decisions.

Second: That the rule of law as established in the decisions of the Honorable Secretary of the Interior, was ignored and not applied to the case herein. We ask that the case be reviewed in the light of the established rule of law.

This motion was not however filed until February 20, 1890, a year and four months after the rendition of the decision complained of.

In support of his right to appear in the case Rhomberg files his affidavit dated February 13, 1890, as follows:

I, D. Rhomberg being duly sworn depose and say that said Otto Soldan, executed a mortgage to F. T. Walker, that said mortgage was duly assigned to affiant; that this affiant has had no notice of the decision of the Hon. Secretary, from the local land office at Huron S. D., but only learned of said decision indirectly.

That affiant is informed and believes such information to be true, that the claimant Otto Soldan is dead; that it will be impossible for that reason to comply with the said decision requiring new proof to be made; that affiant is now the owner and assignee of the said mortgage.

The facts presented by this affidavit are not sufficient to show the right of this party to be heard. It is not stated when this mortgage was executed or when the petitioner here became the owner thereof by assignment. One or both of these events may have occurred after the

time prescribed for the filing of motions of this character had expired. Again it is not shown that the petitioner ever filed in the local office a statement showing his interest in the entry as is required to entitle him to notice of any action had in regard thereto. John J. Dean (10 L. D., 446). If he purchased after the decision complained of was rendered or if he failed to take such action as was necessary to entitle him to receive notice, he can not be heard to complain of not receiving notice of that decision. He fails to state when he came to a knowledge of the decision complained of or that the motion now presented was within a reasonable time thereafter.

On account of the failure to set up such facts as show he is entitled to be now heard the motion for review must be and is hereby denied.

RAILROAD GRANT-PRE-EMPTION FILING.

CENTRAL PACIFIC R. R. Co.

A prima facie valid pre emption filing of record, at the date when the grant becomes effective, excepts the land covered thereby from the operation of the grant. Under the pre-emption act of March 3, 1843, a filing for unoffered land protected the claim of the settler until the commencement of public sale, and this protection was not modified until the passage of the acts of July 14, 1870, and March 3, 1871.

Secretary Noble to the Commissioner of the General Land Office, August 19, 1890.

I have considered the appeal of the Central Pacific railroad company from your office decision of March 12, 1889, affirming the action of the local officers in rejecting list 25, embracing the SE.Sec. 33, T. 12 N., R. 7 E., M. D. M., Sacramento, California.

The tract is within the limits of the grant for said company as shown by the map designating the route of the road, filed June 30, 1862, upon which a withdrawal was ordered August 2, 1862, and as shown by the map of definite location filed March 26, 1864.

The township plat was filed in the local office in the year 1856. It appears from the records that on May 28, 1857, one H. H. Jones filed declaratory statement for the tract, alleging settlement on January 16, 1854.

On September 12, 1885, the company offered testimony before the local officers to show that Jones had never actually made settlement on the tract and those officers decided that he had never lived on the land. The papers were forwarded, and your office on January 23, 1886, held that Jones' filing subsisting at the date the company's rights attached excepted the tract from the grant. On appeal that decision was affirmed by the Department July 17, 1888, on the authority of the case of Malone . Union Pacific Railroad Company (7 L. D., 13). Notice of this decis

ion was given the company on August 27, 1887. It appears that onAugust 28, 1888, one Frank C. Taylor made homestead entry for the tract which on July 1, 1889, he commuted to cash entry. On January 14, 1889, the company presented said list 25 to the local officers. It embraced only the land in question, and was rejected on the authority of the decision of the Department, supra.

On this appeal the attorney for the company states that on March 28, 1889, he discovered that this tract was proclaimed for sale by the President's proclamation of June 30, 1858, and urges that as Jones had not made proof and payment on the date fixed for the opening of the sales, February 14, 1859, his filing was thereafter invalid.

While it is true that the proclamation included said township 12 N., of range 7 E., it also declared that—

Nomineral lands', or tracts containing mineral deposits are to be offered at the public sales, such mineral lands being hereby expressly excepted and excluded from sale or other disposal, pursuant to the requirements of the act of Congress approved March 3, 1853.

Pursuant to this direction the local officers withheld from offering and sale all of said section 33, as appears by their report dated March 18, 1859. After stating all the offerings and sales made in said township and range, the report concludes, "All the balance of the township reserved, mineral lands." All of section 33 was so reserved.

It thus appears that the tract in question remained in the category of unoffered lands, and was not proclaimed for sale. The pre-emption act of March 3, 1843 (5 Stat., 620), provided that the settler on unoffered land might make proof and payment at any time before the commencement of the public sale, which should embrace his land. Until such time arrived the filing protected the claim of the settler. This was the status of the law at the time said company's rights attached, and it so continued until modified by the act of July 14, 1870 (16 Stat. 279), which provided that—

All claimants of pre-emption rights shall hereafter, when no shorter period of time is now prescribed by law, make the proper proof and payment for the lands claimed, within eighteen months after the date prescribed for filing their declaratory notices shall have expired: Provided, That where said date shall have elapsed before the passage of this act, said pre-emptors shall have one year after the passage hereof in which to make such proof and payment.

By joint resolution of March 3, 1871 (Ibid. 601), the time was still further extended twelve months, making in all the thirty months now incorporated in section 2267 of the Revised Statutes.

From this it appears that the filing in question did not expire by limitation until July 14, 1872. As it was of record and prima facie valid at the date the company's rights attached it served to except the tract from the operation of the grant, under the ruling announced in the Malone case supra. See also Northern Pacific R. R. Co. v. Stovenour (10 L. D., 645).

Other questions are suggested by the record in the case, but this disposition renders it unnecessary to consider them.

The decision appealed from is affirmed.

HOMESTEAD CONTEST-SETTLEMENT RIGHTS.

POOL v. MOLOUGHNEY.

A settlement claim on land covered by the entry of another attaches instantly on the cancellation of such entry.

No rights are secured as against the government by settlement on land withdrawn from entry, but, as between two claimants for such land priority of settlement may be considered.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, August 20, 1890.

I have considered the case of Joseph Pool v. Patrick Moloughney, involving the S. of the SE. 4, the NW. of the SE. 4, and the NE. 4 of the SW., of Sec. 9, T. 26 S., R. 10 E., San Francisco land district, California.

Moloughney made soldier's homestead entry of tract described on May 24, 1886-the same day upon which it was restored to the public domain from a reservation theretofore made for the benefit of the Atlantic and Pacific Railroad.

On July 23, 1886—within two months after the tract had been restored to the public domain-Joseph Pool filed his homestead application, accompanied by the proper affidavits, alleging settlement May 14, 1886.

The local office issued notice to Moloughney, summoning him to appear, on October 11th ensuing, before the county clerk of the county in which the land was situated, and show cause why his entry should not be canceled, and Pool be allowed to make entry of said land.

Testimony in the case was taken at the time and place mentioned in the notice, both parties appearing in person and by counsel. The testimony shows that in 1885 Pool's brother rented the land from a third party who owned the improvements thereon; that Pool and his brother cultivated crops thereon in partnership; that in October, 1885, the brother bought the improvements, and sold them to Pool on May 14, 1886; that said improvements consisted of a four-room dwelling-house, a barn, and about sixty-five acres under fence-the most of which was under cultivation; that when Moloughney made his entry, Pool had twenty-five acres of barley and twelve acres of wheat on the land;, that after the date when Pool purchased the improvements of his brother, and before Moloughney's entry, Pool had been much of the time employed on the tract, cutting hay and doing other farm work-although he did not establish actual residence thereon until June 10, 1886, for the reason that his brother could not sooner vacate the house, because of sickness in his family.

As to Moloughney, it appeared that he never saw the tract until some time in August, 1886; and that he established residence thereon in September of the same year.

The notice of the hearing failed to fix a time for a final hearing before the local officers; but they rendered judgment January 21, 1887, in favor of Pool. If there were any irregularities in the mode of procedure, no objection was made thereto at the time.

Your office, on January 24, 1889, rendered a decision affirming the judgment of the local officers.

From your decision Moloughney appeals on the following grounds:

(1) The decision is contrary to the law and the evidence.

(2) The original notice addressed to Moloughney, fixed no time for a hearing before the register and receiver; and the informality or want of such notice was not waived by Moloughney.

(3) The soldier's homestead entry, No. 7533, filed by Patrick Moloughney on May 24, 1886, was the only legal filing upon the land in question, as the land was only restored to the public domain on the 24th of May, 1886, and prior to that date could not have been located upon as public land.

The appeal does not question the finding of your office as to facts. The first allegation is so general in its nature-failing to "clearly and concisely designate the error" complained of—that it requires no notice (Rule 88 of Practice).

The second objection is raised for the first time on the appeal from your office. As Moloughney appeared in obedience to the notice at the time and place fixed therein, without protest or objection, and in his appeal from the decision of the local office to your office still omitted to make any protest or objection as to the sufficiency of the notice, he must be held to have waived such objection, and it is too late to raise it now. As said in Gumaer v. Carine (9 L. D., 643), "this is too well settled to require the citation of authorities."

The third objection, if literally true, does not necessarily carry with it a decision in favor of Moloughney. While it may be conceded that Moloughney's homestead was the only legal "filing" on the land (on May 24, 1886), it by no means follows that such filing constituted the only legal claim. The Department has repeatedly held that, where land had been covered by a homestead or other entry that was afterward canceled, settlement upon the tract prior to such cancellation, especially if attended by the possession and ownership of valuable improvements, whether made or purchased, was sufficient to constitute a legal claim, that would attach to the land the instant it become again a part of the public domain. See McAvinney v McNamara (3 L. D., 552); Millis v. Burge (4 L. D., 446); Cathran v. Davis (5 L. D., 249); Wiley v. Raymond (6 L. D., 246); Kruger v. Dumbolton (7 L. D., 212). The same rule has been applied where land has been withdrawn for the benefit of a railroad company. See Peterson v. Kitchen (2, C. L. O., 181); Houf v. Gilbert (5 L. D., 239).