whose decision the company did not appeal; that the company selected said N. of the SW. 1, on July 26, 1882, upon which patent issued on June 23, 1883; that your office, upon consideration of Bernhard's said application, allowed him to file for said SW. of the SW. of said section, but held that "the record being clear of conflicting claims, at the date of the examination of the railroad selections, this office could know nothing of the application of Bernhard and the hearing at the local office. The appellant having slept upon his rights, the land was properly patented to the railroad company," and that "the attention of your office is called to the allegation in the record that the N. of said SW. of Sec. 15, was settled upon and improved prior to the date of the grant to the railroad company, with the suggestion that an investigation be made with a view to recommending suit to set aside the patent to the company for said tract, if the facts justify such recommendation." Acting upon said suggestion, your office, on May 6th last, issued a rule to said company to show cause why said proceedings to recover title of said tract should not be duly instituted.

The company, on June 4th following, through its resident attorney, filed its answer, in which it alleged, in brief, that the Department has no jurisdiction to institute proceedings under said act, for the reason that at the date of its selection and at the date of the issuance of said patent, there was no claim of record for said land, and said Bernhard, if he made any settlement in 1865, as alleged, "was under legal obligation to present his claim at the local land office, in accordance with law, within three months after settlement."

This contention can not be maintained. The record shows that said N. of said SW. was settled upon and occupied by a bona fide settler, both at the date of the grant and also continuously to the date of the definite location of its road, when its right attached, as well as when said "selection" was made and patent issued. It was therefore excepted from the operation of said grant and was improperly patented to the company. Emmerson v. Central Pacific R. R. Co., 3 L. D., 271; Pointard v. Central Pacific R. R. Co 4 L. D., 353; Ramage v. Central Pacific R. R. Co. 5 L. D., 274; Central Pacific R. R. Co. v. Shepherd, 9 L. D., 213; Icard v. Central Pacific R. R. Co., 10 L. D., 464.

Since said act of March 3, 1887, is considered to be mandatory (9 L. D., 649), the recommendations of the present claimants of the land that the patent to the company should not be disturbed can not prevail, and the recommendation of your office, "that a demand be made on the company to reconvey said land to the United States," is concurred in by the Department; and you are hereby directed to demand from said company a reconveyance to the United States of said N. of the SW. of said section 15, and at the expiration of ninety days from date of such demand, you will make due report to this Department of the action of the company in the premises.

RAILROAD LANDS-ACT OF MARCH 3, 1887.

WELLS v. SOUTHERN PACIFIC R. R. Co.

An application under section 5, act of March 3, 1887, to purchase lands erroneously patented to a railroad company can not be entertained until the government has secured a reconveyance of the title.

Secretary Noble to the Commissioner of the General Land Office, December 12, 1890.

I have considered the appeal of C. M. Wells from the decision of your office dated November 19, 1888, rejecting his application to purchase all of Sec. 21, T. 7. N., R. 14 W., S. B. M., Los Angeles, California, under the provisions of the act of Congress approved March 3, 1887 (24 Stats., 556); for the reason that the land applied for was patented to the Southern Pacific Railroad Company on January 9, 1885, per list No. 9, as being within the primary limits of the grant to said company (branch line) by act of Congress approved March 3, 1871 (16 Stats., 573). Your office decision also states that the land in question is within "the primary limits of the forfeited grant to the Atlantic and Pacific Railroad Company;" that, although said patent was erroneously issued, yet, pending the result of the proceedings intended to secure a reconveyance of said land to the United States, the land can not be disposed of under the fifth section of said act of 1887.

The appellant asks that, in the event that it shall be decided that said application is premature, the rejection of the same "shall be held in abeyance until the proper time for presenting the same shali have arrived, and that it then be allowed."

The application is clearly prematurely made, but this will not prevent the applicant from renewing the same when the land shall be subject to disposal by the United States. Said appeal is accordingly dismissed without prejudice to the appellant's right to renew his application at the proper time.

RAILROAD GRANT-MINERAL LANDS-SUIT TO VACATE PATENT.

BULLOCK ET AL. v. CENTRAL PACIFIC R. R. Co. et al.

On the allegation duly corroborated that certain land patented to a railroad copany was in fact excepted from the grant, by reason of its known mineral character, a hearing may be directed to ascertain whether the facts justify judicial proceedings for the recovery of title.

Secretary Noble to the Commissioner of the General Land Office, December 12, 1890.

By your office letter dated August 20, 1890, was transmitted the petition of W. H. Bullock, D. W. Spear, R. Greenwood, and J. S. Rees, filed in the Sacramento, California, land office and forwarded to your office on August 5th, last, asking that proceedings be instituted by the United

States to set aside a patent issued to the Central Pacific Railroad Company on April 30, 1885, for lot No. 12 of the SE of Sec. 23, T. 14 N., R. 10 E., M. D. M., on the ground that said tract was known to be mineral long prior to and at the date of the grant to said company, and also at the date when the rights of said company attached to its granted lands, and was therefore excepted from its graut.

Your office letter states that said lot 12 contains an area of 22.75 acres and covers the SE. corner of the SE. of said section; that it is within the primary limits of the grant to said company under the acts of Congress approved July 1, 1862 (12 Stats., 489), and July 2, 1864 (13 Stats., 356); that the township plat of survey was duly approved on June 9, 1870, and said section was returned as agricultural land; that said lot 12 was listed by said company on July 29, 1884, per list 6, and patented to said company on April 30, 1885, per list 43; that there was nothing upon the records of your office to show that said land was mineral, and in the absence of any objection said patent was regularly issued.

Your office further finds that "the petitioners allege possession and ownership of said lot through succession to the title thereto from the original locators, whom they allege located the same as a placer in the year 1885;" that said patent issued on April 30, 1885; it does not ap pear that any mineral claim was initiated prior thereto, or that, at the date of said patent, there was any adverse right thereto; that it is not alleged that the Mayflower Gravel Mining Company purchased said lot from said railroad company with a knowledge of any fraud having been perpetrated on the part of said railroad company in procuring title. thereto, and the presumption must be that it "is a bona fide purchaser without notice, in which event proof of the fraud must be clear and convincing to justify the cancellation of the patent."

Your office, therefore, in view of the insufficiency of the petition and upon the principles enunciated by the United States supreme court in San Jacinto Company (125 U. S., 273), and United States v. Beebe (127 U. S., 338), declines to recommend the institution of suit to set aside said patent.

The affidavits filed in support of the petition allege that

said lot 12 now is and for said (the last) twenty-eight years has been well known valuable mineral land bearing gold; that the same was held, claimed and pos-essed under the mining laws and customs at the time of the passage of the act granting lands to the Central Pacific Railroad Company of California, and that the same has yielded a larger amount of gold than almost any other tract of like area in the State of California, reaching probably from $5,000 to $10,000 per acre, and that the same is yet very highly valuable mineral land. That the same at the time of the attachment of the grant to the railroad company, and of the survey thereof and of the issue of the patent thereto in 1885 to said company was actually claimed and worked as mining land and was notoriously known to be valuable as such.

The affiants, twelve in number, swear that they have resided in the vicinity of said tract for the last twenty-eight years and know each part thereof.

If said allegations as to the known mineral character of said lot be true, then the land was expressly excepted from the grant to said company, and the United States has an interest in the land which would fully warrant the institution of proceedings to set aside said patent under the mandatory act of Congress approved March 3, 1887 (24 Stats., 556). McLaughlin v. United States, 107 U. S., 526; Western Pacific R. R. Co. v. United States, 108 U.S., 510; Mullan et al. v. United States, 118 U. S., 271; Winona & St. Peter R. R. Co., 9 L. D., 649; Central Pacific R. R. Co. et al. v. Valentine, 11 L. D., 238.

The petitioners offer to bear the necessary expenses, and, in my judg ment, they should have an opportunity of establishing the truth of said allegations at a hearing to be duly had before the local office in order that the Department may have the requisite evidence to warrant the institution of proceedings to set aside said patent. (Alexander Moore et al., 2 L. D., 761).

You are therefore directed to cause a hearing to be had before the local land officers, after due notice to all parties in interest, and upon receipt of the testimony taken thereat, together with the report of the local officers thereon, you will consider the same and make due report to the Department.

TIMBER CULTURE CONTEST-RELINQUISHMENT.
ROBERTS v. GASTON ET AL.

A contest against an entry that appears of record through the failure of the local office to act upon the previous relinquishment thereof, must fail where the party filing such relinquishment has thereafter proceeded in compliance with the timber culture law in the honest belief that his application to enter thereunder has been allowed, and the contestant begins proceedings with full knowledge of the facts.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 13, 1890.

I have considered the case of James Roberts v. Thaddeus B. Gaston and Washington I. Anderson, upon appeal by Roberts from the decision of your office dated June 10, 1889, dismissing his contest against Gaston's timber culture entry for the NE. Sec. 33, T. 24 S., R. 10 W., Wichita, land district, Kansas.

January 23, 1879, Gaston made timber culture entry for said tract and on February 5, 1887, Roberts initiated contest against said entry, alleg ing as follows:

That he was well acquainted with the tract of land embraced in said timber culture entry and knows the present condition of the same; also that said Thaddeus B. Gaston failed to do any breaking in the years of 1879, 1880, 1881, and 1882, and that he sold his claim to Thos. Anderson who has done or caused to be done all the work that has been done on said claim, and that there has never been ten acres broken on said claim to this date.

Hearing was ordered and set for March 15, 1887, and Gaston was notified of the same.

On the day appointed for the hearing, Gaston failed to appear either in person or by attorney, but Washington I. Anderson appeared in person and by attorney and having first disclosed on oath the nature of his interest in the tract as required by rule 102 of the Rules of Practice, he was made a party defendant, and on motion of contestant the case was continued to April 14, 1885, at which time both the contestant and intervenor appeared and submitted testimony, and on April 22, 1887, the local office found in favor of contestant.

The intervenor appealed, and your office dismissed the contest and decided that Anderson was entitled to make entry for the land, whereupon contestant appealed.

The record of the hearing shows that contestant testified he resided at Sylvia, Reno County, Kansas, and had known the tract in dispute since September 1886; that before he initiated this contest he had heard that Washington I. Anderson was the owner of this tree claim, but that the record of the local office showed Gaston's entry to be still uncanceled.

On his cross examination he admitted that on the day he went to serve Gaston with notice of this contest, Gaston informed him that he had sold his improvements to Anderson, and had executed and delivered to Anderson a relinquishment of his interest in the land years before, receiving from Anderson two cows as payment therefor. He further admitted that he induced Gaston (by paying him twenty-five dollars) to execute and deliver to him (contestant) February 5, 1887, a second relinquishment of his timber culture entry, and that Gaston at the same time had promised to testify at the hearing that he had not done any work on the claim since he sold it in 1881; that Gaston afterwards declined to do so.

Only one other person was sworn and examined on the part of contestant, and the most material part of his testimony was to the effect that there were not more than about three thousand trees growing on this claim at the time of the hearing.

The intervenor and several other persons were sworn and testified on his behalf, and their testimony shows that about October 18, 1881, the intervenor purchased of Gaston his improvements on the tract in dispute consisting of five acres of plowed land, paying therefore the value of about one hundred dollars, viz: two cows and two calves. At the same time Gaston executed a relinquishment of his said entry before a justice of the peace in and for Stafford county, Kansas, which relinquishment was written on a portion of the back of the duplicate receiver's receipt.

October 25, 1881, Anderson went to Hutchinson, Kansas, and there employed a firm of reputable lawyers to prepare the usual application to make entry for said tract under the act of June 14, 1878 (20 Stat., 2497-VOL 11-38