"coupled with an intention of said party to purchase the land from the government, that such settlement and purchase may be made for the purpose of a home or for the purpose of selling it to another or for the purpose of using it for cultivation or some (meaning any) other purpose." This is not the construction placed upon the act by this Department. Since the rendition of the case of the United States v. Woodbury (supra) this Department has in several cases defined "actual settler" as used in said act to be "one who goes upon the land specified by said act (Usage lands) with the intention of making it his home under the settlement laws." (United States v. Atterbery et al. 8 L. D., 173; same case on review 10 L. D., 36; United States v. Jones, 10 L. D., 23; United States v. Sweeney, 11 L. D., 216).

While the settler on Osage lands is not held to the same rigor as a pre-emptor of other land, in showing continual residence for six months prior to proof, yet his settlement, residence and other acts must be such as to clearly show his intention of making the land his home, and a pretended or colorable residence, as in this case, evidently made for the purpose of securing title to the land, will not satisfy the requirements of the law as construed in the cases above cited.

The evidence on the part of Deemer shows that he settled upon the tract June 20, 1885, erected a comfortable frame house and had been living there and cultivating the land continuously from the date of his settlement to the time of offering his final proof, and I have no doubt from the evidence that his settlement, residence and cultivation were made in good faith and for the purpose of making his home on the claim.

The Osage declaratory statement No. 1039 of Carrie H. Tilton is therefore canceled, and Deemer will be allowed to make payment for the land.

The decision of your office is accordingly affirmed.

RAILROAD GRANT-INDIAN HOMESTEAD-ACT OF JULY 4, 1884.

NORTHERN PACIFIC R. R. Co. v. TEQUda.

The occupancy of public land by an Indian who has not abandoned the tribal relation confers no homestead right under the act of July 4, 1884, as against a railroad grant that becomes effective prior to the passage of said act.

Acting Secretary Chandler to the Commissioner of the General Land Office, September 17, 1890.

The Northern Pacific Railroad Company appeals from your office decision of November 18, 1886, directing the allowance of the application of Peter TeQuda (an Indian) to make homestead entry for lot 10, Sec. 1, T. 20 N., R. 5 E., Olympia land district, in the State (then Territory) of Washington.

The tract in question contains 38.10 acres, and is within the primary limits of the grant to said company under the act of July 2, 1864 (13 Stats., 365), and the joint resolution of May 31, 1870 (16 Stats., 370), as shown by the map of general route of the branch line of its road, filed August 20, 1873, and by the map of definite location of said branch line, filed March 26, 1884. The record does not show any entry or filing therefor.

On March 31, 1886, TeQuda applied to make homestead entry for the tract under the act of July 4, 1884 (23 Stats., 96), and submitted in support of his application a certificate by the United States agent for the Muckleshoot tribe of Indians to which applicant belonged (as required by departmental circular of August 23, 1884, 3 L. D., 91), showing that he is an Indian of the age of twenty one years, the head of a family, and not the subject of any foreign country; also his own affidavit, stating, among other things, that he has "improved and cultivated six acres of said tract for twenty-one years last past."

The local officers notified the company of the pendency of such application, and allowed it a specified time within which to appear and file objections thereto.

On May 11, 1886, the company appeared by its attorneys and filed objections to the allowance of the entry, whereupon the local officers transmitted all the papers in the case to your office for consideration.

Upon examination of the papers, your office held that "the affidavit of TeQuda, prima facie, shows the land applied for to be excepted from the grant to said company," and directed that he be allowed to make entry therefor. It was further stated that "the company will be required to take notice of his published intention to make final proof, and if it has, or claims to have any right thereto, to appear and assert the same."

It is provided by said act of July 4, 1884:

That such Indians as may now be located on public lands, or as may, under the direction of the Secretary of the Interior, or otherwise, hereaftor so locate, may avail themselves of the provisions of the homestead laws as fully and to the same extent as may now be done by citizens of the United States.

I think it is questionable whether the applicant has shown himself entitled to make entry under the provisions of said act. He does not in express terms claim to be "located" on the land, but simply alleges improvement and cultivation of a small portion thereof, which does not necessarily imply that he is " located" thereon. Aside from this question, however, I am unable to concur in the conclusion of your office that the record prima facie shows the land to have been excepted from the company's grant. The maps of general route and definite location, respectively, of the company's road, were filed, the former over ten year's and the latter over three months prior to the passage of said act of July 4, 1884. The company's rights finally attached on definite location, and at that date no provision had been made by which an Indian, 2497-No. 11--20

still retaining his tribal relations, could acquire any rights to the public lands, either by settling thereon, or by occupying the same for pur poses of cultivation. It is true that by departmental regulation of February 11, 1870 (1 C. L. L., 283), and by the act of March 3, 1875 (18 Stats., 420), certain homestead privileges were extended to Indians. These privileges were allowed, however, only to such Indians as had wholly` dissolved, or abandoned, their tribal relations, of which fact satisfactory proof was required. The Indian, TeQuda, had not abandoned his tribal relations, but still retained the same at the date when the company's right attached, and at the date of his application. He cannot, therefore, be held to have acquired any right to the land in question as against the company, by his improvement and cultivation of a portion thereof, as claimed. Whether such long continued improvement and cultivation, if by a citizen of the United States, would serve to except the land from the grant to the railroad company need not be here decided. It is sufficient for the purpose of this opinion to state that the facts alleged by TeQuda do not, for the reasons aforesaid, constitute such a claim to the land as served to except it from the grant, and it must be held, therefore, to have passed to the company thereunder.

Your office decision is accordingly reversed, and the application of TeQuda will be rejected.

PRACTICE-DEATH OF PARTY-NOTICE.

ALLPHIN v. WADE.

Where a claimant dies during the pendency of adverse proceedings in the local office, such proceedings should be discontinued, and the heirs at law and successors in interest of the decedent duly notified of their right to appear and be heard in the premises.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 17, 1890.

The record in the case of Hattie Allphin v. John H. Wade is before me on appeal of the latter, and shows that on July 30, 1884, said Wade filed an Osage declaratory statement No. 4686 for the SW. Sec. 28, T. 28 S., R. 18 W., Larned, Kansas, alleging settlement May 27th of the same year.

September 2, 1884, said Allphin also filed declaratory statement No. 5154 for the same land, alleging settlement July 22d of the same year. Final proof was offered by Wade December 15, 1884, and by Allphin March 5, 1885. Each claimant protested against the proof of the other, and after several continuances and other dilatory motions, the first testimony was taken July 18, 1885, when the hearing was continued by consent until September 14, same year, for the purpose of taking depo

sitions and submitting other oral testimony. On said date the case was closed without additional testimony, for the reason that the defendant Wade failed to appear with his witnesses. November 24th 1885, the defendant moved to re-open the case which motion, as shown from the report of the register and receiver, was at first allowed and subsequently overruled, and on August 15, 1886, the local officers decided in favor of the plaintiff Allphin, holding that her settlement was prior to that of Wade. September 10, 1886, he filed an application for a rehearing, which was granted, and after several motions and continuances the rehearing was had March 10, and 11, 1887.

The evidence discloses that prior to the testimony taken March 10. and 11, 1887, on the re-opening of the case, to wit, September 17, 1886, Hattie Allphin died. Further proceedings should have been discontinued on her death and her heirs at law and successors in interest no. tified to appear and conduct her contest to a conclusion, if they so desired.

This was not done and so all proceedings subsequent to her death are irregular and erroneous. Arnold v. Hildreth (6 L. D., 779); Rohrbough v. Diggins (9 L. D., 308).

All procedings that occurred subsequent to September 17, 1886, are hereby set aside and the case remanded with directions to the register and receiver to proceed as above directed.

The decision of your office is modified accordingly.

PRE-EMPTION-ACT OF FEBRUARY 22, 1889-RESIDENCE-PROTEST. DAYTON v. DAYTON.

The pre-emption law, in the States admitted into the Union under the provisions of the act of February 22, 1890, is not repealed by section 17 of said act.

An absence from the land, occurring after settlement, does not effect the right of the pre-emptor, where he returns to the land prior to the intervention of any adverse claim, and resides thereon in due compliance with the rules and regulations.

The refusal of the Commissioner to order a hearing on a protest filed against final proof will not be disturbed, where such action does not amount to the denial of a right.

Acting Secretary Chandler to the Commissioner of the General Land Office, September 18, 1890.

I have considered the case of Lyman C. Dayton v. James R. Dayton on appeal by the former from your decision of March 21, 1890, dismissing his protest against James R. Dayton's final pre-emption proof for the NE. of Sec. 23 T. 123 N., R. 64 W., Aberdeen, South Dakota land district.

This tract of land has been in dispute between these parties for a number of years, the validity of James R. Dayton's timber culture

entry having been finally affirmed by departmental decision of August 1, 1889 (9 L. D., 193). The former decisions in this matter are to be found in 4 L. D., 263 and 7 L. D., 542.

It appears now that after the decision of August 1, 1889, James R. Dayton on October 5, 1889, relinquished his rights under said timber culture entry and at the same time filed pre-emption declaratory statement for the same land alleging settlement thereon June 20, 1888. He afterwards gave notice that he would on November 19, 1889 submit final proof in support of his said pre-emption filing. On the day adver tised the pre-emptor appeared with his witnesses and presented final proof. On the same day Lyman C. Dayton filed a protest against the acceptance of said final proof upon the following grounds:

First: Because the act admitting South Dakota to the Union, contains clauses which repeal the pre-emption law of the United States as far as the same affects the government land in the said State and no land can be taken under the provisions of the said pre-emption law since the passage of the said act by the Congress of the United States when the pre-emption proof of the claimant has not been made.

Second: Because the said pre-emption is speculative on the part of said J. R. Dayton. The whole of said tract has been surveyed into blocks, streets and alleys and platted by the said James R. Dayton for the purposes of sale, and not for a farm and home; that trees have been planted at the corners of each block and upon the line of the streets to indicate the same upon the whole tract and it is claimed that the blocks are subdivided into lots.

Third: Because after the filing of the pre-emption declaratory statement of the said J. R. Dayton he rented his house to Judge Crofoot until about May 1, 1889, and went to Washington D. C. while his wife boarded in the city of Aberdeen, S. D., away from the said tract.

Fourth: Because the said tract was entered under the timber culture laws of the United States, and the city limits of the city of Aberdeen South Dakota included the east eighty acres of the same; that an attempt was made to withdraw the said limits by a legislative enactment of the legislature of the Territory of Dakota, and by a resolution of the city council of the city of Aberdeen, S. D., so that the said J.R. Dayton could make entry of the tract under the pre-emption law; that the said act of the Legislature of the Territory of Dakota and the resolution of the said city council of the city of Aberdeen were each invalid and void, so that eighty acres of said tract are within the city limits of the city of Aberdeen, South Dakota, and can not be entered under the pre-emption laws of the United States.

Fifth: Because of the surrender of James R. Dayton of his rights under the timber culture laws of the United States, and his relinquishment of the said tract to the government of the United States, the rights of the said Lyman C. Dayton attached to the said tract prior to the pre-emption rights of the said James R. Dayton which were subject thereto.

Sixth: That the said Lyman C. Dayton has a homestead right which he can use upon the said tract and enter the same as a homestead under the homestead laws of the United States.

Seventh: That the said Lyman C. Dayton asks leave to file a homestead applica tion for the said tract, in the event that the cancellation of his entry as a homestead of the SE. of section 14, Township 123 North of Range 64 West in Brown County, Aberdeen U. S. land district S. D-, is not set aside.

The local officers after considering this protest held that there was not a sufficient showing to justify them in ordering a hearing and that