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same person; that his wife resided with him on said tract for about a month and a half, and then returned to the house on the adjoining farm, which was from twenty-three to thirty rods from the other house, but that he and his son remained on the place until he proved up, which was exactly six months from date of filing, when he returned to the house on the adjoining tract, and afterwards used the house on the land in controversy for a stable. He states that when he moved with his family from Illinois to Kansas, they divided their household goods and put part on the tract in controversy and part on the adjoining land; that his wife came to the claim at times to cook their meals, and when she did not, he and his son went to the house on the adjoining tract to eat; that he filed for the land to make it a home in connection with his other land adjoining.

While the testimony shows that the claimant occupied the tract with his son for six months, yet considering all the facts and circumstances as detailed by his own testimony, I am satisfied that such occupancy did not constitute him an actual settler upon the land within the meaning of that term, as defined by the decision of the Department in the cases. of United States v. Jones, 10 L. D., 23, and United States v. Atterberry, id., 36, in which it is held that the proof required to establish the fact of an actual settlement on Osage lands, is no less in degree than the proof required under the pre-emption law. While it is true the claimant settled upon and occupied the land for six months, yet it is shown by the proof that he did not occupy it for the purpose of making it his home, but solely to add to his adjoining land, which was in fact his home, and to which he removed as soon as he made proof.

Your decision is affirmed, and the papers are herewith returned.

PRACTICE-NOTICE OF CONTEST-OFFICIAL SIGNATURE.

LUNDQUIST. FENTON.

The mere omission of the register to affix to his signature, on a notice of contest, his official designation does not invalidate the process; nor can a defendant who admits the service of such notice, and appears generally, without allegation of prejudice, take advantage of such defect.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 9, 1890.

On June 2, 1885, Eusibus M. Fenton made homestead entry upon the NW., Sec. 14, T. 127 N., R. 46 W., Fergus Falls, Minnesota.

On May 18, 1886, Erik A. Lundquist filed his affidavit of contest against said entry, charging abandonment, change of residence, and no cultivation of the tract.

The hearing was set for July 9, 1886, at nine A. M. Near the hour fixed for the hearing, the register, T. F. Cowing, received a telegram

from the defendant, dated at Burnesville, Minnesota, which reads as follows:

"Please hold open my contest until 10:15 to-day."

The case was called a few minutes after ten o'clock, both parties being present with counsel, when Fenton objected to the service of notice of contest, on the grounds that neither the notice nor the copy thereof left with him had the word "register" written after the signature of the person issuing such notice. The local officers overruled this objection; whereupon Fenton, with his counsel, withdrew from the trial. The evidence was then heard, and the register and receiver recommended the cancellation of the entry.

On appeal by your office letter of December 19, 1888, you vacate that judgment and reverse the action of the local office, sustaining Fenton's objection to service, and direct that a new notice be issued to the parties in interest, fixing a day for a hearing anew the charges in contestaut's affidavit.

From this action Lundquist brings this appeal, alleging the following grounds of error:

1. In holding that plaintiff had not made due and legal service upon defendant to the trial had in the local land office.

2. In directing the local land office to order a new hearing.

There is no question as to the defendant's being served with a notice of this hearing this was done both by a copy and by a notice sent through the mail. The latter notice he acknowledged receiving, when served with a copy of the original notice. Moreover, his telegram to the register, above set out, showed he had notice of the hearing.

The sole question is, whether the defendant can take advantage of the absence of the word "register" on the notice to respond and furnish testimony concerning an alleged failure to comply with the law, after he has acknowledged, both verbally and by telegram, that he has been notified of such hearing.

The notice which defendant received on June 4, 1886, thirty-five days before the hearing, was dated at "U. S. Land Office, Fergus Falls, Minn., May 18, 1886. "

The notice bore on its face the name of the office whence it came. The register and receiver (or one of them) are the only persons authorized by law to sign such notice; the name of the register was duly signed to the same, and the mere omission of the official designation in the term "register" did not invalidate the process.

Rule 8 of the Rules of Practice of this Department requires that the notice of contest be signed by the "register and receiver, or by both of them."

As a matter of fact the register did sign both the notice and the copy thereof, and it would have been better practice had he designated his official character, by writing the same after his name, on both notice and copy. But the absence of such designation can not excuse de

fendant after he has appeared generally and asked that his "contest" be held open until he could reach the place of trial. A technical omission in the process, under such circumstances, and upon such an appearance can not be taken advantage of by him. In this case the entryman had thirty-five days to prepare for this hearing. He voluntarily refused to respond to the charges against his entry, or to furnish testimony to establish his good faith. He does not claim that he was mislead or in any way prejudiced by the failure of the register to designate his official character in the process.

Your order vacating the judgment of the local office is reversed; and I herewith return the papers, with directions that you pass upon the merits of the case as disclosed by record.

RAILROAD GRANT-SELECTION-SETTLEMENT RIGHT.

IOWA RAILROAD LAND Co. v. NOURSE.

The right of the railroad company, under the act of June 2, 1864, to even sections within the six mile limits of the grant of 1856, does not attach until selection, and the right of selection cannot be exercised until after definite location of the mod ified line of road.

The right of selection under said act of 1864, can not be exercised if at the date of selection a right of homestead settlement covers the tract involved.

The failure of a homestead settler to make entry within three months after settlement does not operate to the advantage of the railroad company.

The consent of the company to a judicial decree recognizing the validity of an entry under which settlement rights are alleged, is an abandonment of the company's pending selection so far as the right of the settler is concerned.

Acting Secretary Chandler to the Commissioner of the General Land Office, September 9, 1890.

This appeal is filed by the Iowa Railroad Land Company, successors in interest to the Cedar Rapids and Missouri River Railroad Company, from the decision of your office holding for cancellation the selection made by said company of the NW. of Sec. 2, T. 85 N., R. 43 W., Des Moines, Iowa, and allowing Horace D. Nourse to make homestead entry of the same.

The tract in controversy is an even numbered section, lying within the six mile limits of the line of the Iowa Air Line, now Cedar Rapids and Missouri River Railroad Company, as originally located under the act of May 15, 1856 (11 Stat., 9), and was selected by the company December 31, 1884, under the act of June 2, 1864, (13 Stat., 95).

The right of the company to the even sections within said limits attaches only from the date of selection, and no right of selection could be exercised until the modified line was definitely located. See Iowa Railroad Land Company v. Ertel, 10 L. D., 176.

ant.

The records of your office show that Simeon Lightfoot made homestead entry of this tract October 31, 1870, which was canceled July 25, 1884, for failure to make proof within seven years from date of entry. Prior to the cancellation of the entry, the railroad company brought suit against Lightfoot to determine the right of possession and the validity of his entry, and in this suit Nourse was joined as a co-defendThe suit was pending at the date of the cancellation of the entry of Lightfoot, and also at the date when the company selected the tract. After the decision of the supreme court of the United States, in the case of Cedar Rapids, etc., Railroad Company . Herring et al. (110 U. S., 27), which held that the right of the company to the even sections within said limits attached only from date of selection, and after the company had made selection of the tract, it allowed the following consent decree to be entered up in the suit against Lightfoot and Nourse:

It is ordered, adjudged and decreed as upon a full hearing upon the merits that the entry under which defendants claim is legal and valid, and that the petition of plaintiffs be dismissed for want of equity.

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Your office held that this act of the company disposed of its claim to the land, while the company, in its appeal from said ruling, contends that the only question settled by said decree was that Lightfoot's entry was valid and legal, and that so long as that entry remained of record, rights acquired under and by force of it could not be called in question by the company. But at the date of said decree, the entry of Lightfoot had been canceled, and the company had made selection of the Nourse was then the only defendant claiming the land. While the decree did not so dispose of the claim of the company, as to prevent it from afterwards asserting its right to select the tract, if it should be found free from any other claim, it was such a recognition of the settlement right of Nourse then existing as to estop them from afterwards asserting any claim under its selection of December 31, 1884, as against the validity of his claim. The recognition of the claim of Nourse was practically an abandonment of its selection, so far as it conflicted with his settlement right. But, independently of this, the tract was not subject to selection, if, at the date of selection, a right of homestead settlement had attached thereto.

The act of July 2, 1864, supra, provides that

The Secretary of the Interior shall reserve and cause to be certified and conveyed to said company from time to time, as the work progresses on the main line, out of any public lands now belonging to the United States, not sold, reserved, or otherwise disposed of, or to which a pre-emption right or right of homestead settlement has not attached, and on which a bona fide settlement and improvement has not been made under color of title derived from the United States or from the State of Jowa.

Nourse's right to make homestead entry of this tract as against the right of the company is therefore not dependent upon the decree, if he is a qualified homesteader, and was at the date of selection a settler

upon the tract, occupying and improving it, with the intention of entering it under the homestead law.

It appears from the record that on July 23, 1887, Nourse applied to make final proof on the entry of Lightfoot, or to make entry of the land under the homestead law, which was rejected by the local officers. On August 27, 1887, he again applied to enter the land under the homestead law, which was also refused, because of conflict with the company, and from both refusals he appealed. With his first application he filed a corroborated affidavit, in which he states that in 1873 he purchased the relinquishment of Lightfoot, and went into possession of the tract and has been living on it continuously ever since; that he had cultivated the land, built a dwelling house, and made other permanent and valuable improvements, valued at about $1,000, and has occupied it for the purpose of making a home thereon under the homestead law. While he could claim no right whatever under the entry of Lightfoot, or under his purchase of the relinquishment, as against the government, yet he was a settler upon the land at the date of selection, occupying and cultivating it with the intention of acquiring title to it as a home under the homestead laws; and these allegations are not denied by the company. At that time he could initiate a claim to the land under the homestead laws by mere settlement, and his failure to make entry within three months of his settlement could not be taken advantage of by the railroad company, but only as in settlements under the pre-emption laws by the next settler who perfected his claim in time.

The decision of your office is therefore affirmed, and the application of Nourse to make homestead entry of the tract will be allowed.

FINAL PROOF PROCEEDINGS_PROTEST_HEARING.

WILDER v. PARKER.

The Department will not interfere with the Commissioner's discretion, in refusing to order a hearing on a protest filed against final proof, unless there is such an abusė thereof as to work an injustice, or the inequitable denial of a legal right. First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 9, 1890.

I have considered the case of John Wilder v. Moses H. Parker on appeal of the former from your decision of May 27, 1889, dismissing his protest against the final proof of the latter on his pre-emption cash entry for the NW. of Sec. 18, T. 6 S., R. 65 W., Denver, Colorado land district.

On August 27, 1888, Parker made pre-emption proof and on same day Wilder filed protest against the same averring in his affidavit that he had made some discoveries of gold in the land and that it was valuable as a placer mine. This affidavit was written by the officer taking the final proof, and with it was also taken the affidavit of Parker corrobo2497-No. 11-18

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