While the testimony is contradictory on many points, and especially so as to the number of trees, it is in some respects free from conflict. It is agreed that such trees as were found were small, and that they were hidden from view by the dense growth of grass and weeds; that the seeds from which they had grown, instead of having been planted, within the ordinary meaning of that term, had been sown broadcast and harrowed in, and then left to vie with weeds and grass in their growth, there having since said sowing been no cultivation. Weeds and grass and trees were from that time left to grow together.

It is manifest that should the seeds, or any considerable portion thereof, thus placed in the ground grow, the trees would be so distributed on the tract as to render ordinary cultivation impracticable.

The reasons assigned by claimant for sowing the seed broadcast instead of planting in the ordinary way are, that he planted in the usual way within the time prescribed by law after his entry, and that because of the alternate swampy and dry or baked condition of the land, together with the peculiar character of the soil, the seeds planted failed to grow, and that he then determined to, and did, in the spring of 1882, try sowing broadcast with better success, the weeds and grass serving as a mulch to protect the trees. While it is true that tree culture, to secure a successful growth requires different methods and treatment in different sections of the country, and under the varying circumstances as to soil, climate, etc., it is equally true that the law contemplates that the trees, seeds or cuttings should be so placed in the ground as to render practicable whatever method of cultivation the character of the changing seasons may render advisable. It is by no means clear from the evidence in this case that the number of growing trees is such as would meet the requirements of the law, and I do not think there has been or can be such tillage of the ground upon which the seeds have been sown broadcast as wonld constitute cultivation of trees within the meaning and intent of the law.

Such a course as that pursued by Orr amounts practically to leaving such trees as may start after a broadcast sowing to grow wild, without any care or protection whatever by the entryman, and then, if approved, would allow him to come in and say that he did nothing in the way of protection or cultivation because nature by causing the growth of weeds and grass about and over the trees, furnished an all sufficient protectionin fact, better than could result from any act of his.

This would be trifling with the law, and such a condition of fact would in my judgment furnish that evidence of want of good faith which would warrant the cancellation of an entry so held.

The course indicated has been substantially that pursued by Orr, as shown by the testimony and admitted by himself. Finding no reason for disturbing the decision appealed from, I affirm the same.

SOLDIERS' ADDITIONAL HOMESTEAD.

OWEN MCGRANN.

Certificate of right to make additional entry can issue for only the difference between the original entry and one hundred and sixty acres.

The original entry being canceled for failure to make final proof, residence and cultivation will be required in case of entry under additional certificate.

Secretary Lamar to Commissioner Sparks, July 10, 1886.

With your letter of August 1, 1885, were transmitted the papers relative to the application of Owen McGrann for an additional homestead claim under the provisions of Section 2306 of the Revised Statutes.

The record shows that, on June 13, 1863, McGrann made a homestead entry, No. 88, of the NW. of the NW. and Lot 7 of Sec. 20, T. 114 N., R. 26 W., Henderson (now Redwood Falls) land district, Minnesota. Said entry embraced 98.50 acres, and was canceled for failure to make final proof within the time prescribed by law. On December 9, 1884, McGrann purchased the NW. 1 of the NW. 1 of said Sec. 20, under the provisions of the second section of the act of Congress approved June 15, 1880 (21 Stat., 237).

It was decided by your office "that as the original entry was for 98.50 acres, a certificate of right could only be issued for 61.50 acres, and the conditions of said certificate would require residence upon and cultiva tion of land entered thereby." The time of filing said application does not appear in the record, but the affidavit accompanying the same is dated December 15, 1882, and the request of your office to the Adjutant General, U. S. Army, for information, is dated March 15, 1883, and, hence, I assume that the application is within the provision of departmental circular, dated February 13, 1883 (1 L. D., 41).

Section 2306, R. S., provides that "Every person entitled, under the provisions of section twenty-three hundred and four, to enter a homestead, who may have heretofore entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as when added to the quantity previously entered shall not exceed one hundred and sixty acres." Under the provisions of said act, since the original entry was for 98.50 acres, McGrann is entitled to enter as an additional homestead only 61.50 acres, the difference between the amount of the original entry and one hundred and sixty acres.

It is strenuously insisted by appellant that said Sec. 2306 does not require residence and cultivation upon the tract entered, and that by reason of the purchase of a part of the land embraced in his original entry under said act of June 15, 1880, McGrann complied with the law as to his original entry, and is entitied to a certificate free from conditions. But this contention cannot be maintained.

It is clear that the law contemplates that the entry man shall comply with the requirements of the homestead law as to residence upon and

cultivation of the land covered by his original entry, and when it is shown that the entryman has abandoned his original entry, then he must show the required residence and cultivation of the tract covered by the additional entry, in order to complete title thereto. This was expressly ruled by this Department in the case of John W. Hays (3 C. L. 0., 21).

While it may be conceded that the act of June 15, 1880, is a remedial statute, and, therefore, should be construed liberally, yet I do not think it was ever intended by Congress to extend the provisions of that act to cases like the one at bar. Said decision of your office is therefors affirmed.

HOMESTEAD—ACT OF JUNE 15, 1880.

STARBUCK v. KISTLER.

The second section of this act secures the right of purchase only to transferees who became such prior to the passage of said act.

Acting Secretary Muldrow to Commissioner Sparks, July 13, 1886.

On November 11, 1879, John W. Kistler made homestead entry for W. of NE. 4, and E. of NW. 1, Sec. 22, T. 3 N., R. 29 W., North Platte (now McCook) land district, Nebraska.

July 9, 1884, Moses T. Starbuck initiated contest, alleging abandonment. Hearing was set for August 22. On that day one J. E. Cochran appeared, asked to be made party defendant, and to be allowed to purchase under section two of the act of June 15, 1880, alleging that on August 1, 1884, he had purchased from said Kistler all his right, title and interest to said homestead for a valuable consideration and in good faith. Without passing on the rights of Cochran, the local officers proceeded to hear the testimony in the case. Claimant did not appear. On September 30th following the local officers recommended cancellation of said homestead entry on the proof submitted, and transmitted with the papers the application of Cochran, for instructions.

Your office held said entry for cancellation on the proof, and denied Cochran's application to purchase. I am of opinion that such action was proper. The second section of said act of June 15, 1880, provides: "That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing may entitle themselves to said lands by paying the government price therefor," etc. This section secures the right of purchase only to transferees, who became such prior to the passage of said act. The transfer in this case was made August 1, 1884, and hence does not fall within the provision of said act.

For the reason herein stated, said decision is affirmed.

PRACTICE-AFFIDAVIT OF CONTEST.

PEDERSON V. JORGENSON ET AL.

The omission of the venue from an affidavit of contest is not such a defect as to invalidate the contest, nor can a stranger to the record take advantage thereof.

Acting Secretary Muldrow to Commissioner Sparks, July 14, 1886.

On September 4, 1877, Hendrik Jorgenson made timber-culture entry for the NE. of Sec. 30, T. 109, R. 43, Tracy, Minnesota. On January 21, 1884, Charles E. Carlson brought contest against the same for failure to comply with the law. On the same day, but later, Cornelius Peder. son applied to contest said entry, on the same grounds, alleging that the prior contest of Carlson was void in that there was no venue in the affidavit. The local officers rejected the application to contest. On appeal your office affirmed the action of the register and receiver, and held that "Carlson, who furnished sufficient information to give him a prima facie standing, should not be deprived of an opportunity to complete his case on the ground of a mere technicality, and you will therefore allow him to amend by filing a new affidavit of contest." Pederson alone appealed.

The ruling of your office as far as it affects him was correct, and is hereby affirmed.

The omission of the venue from the affidavit of contest, it being perfect in all other respects, was not such a defect as to render the contest void, or to allow a stranger to take advantage of it.

RAILROAD GRANT-RES JUDICATA.

GRIFFIN v. CENTRAL PAC. R. R. Co.

A decision of the General Land Office, not appealed from, erroneously holding that a tract of land passed under the grant, will not preclude the Department from considering the legal status of such tract, under said grant, on the subsequent application of a new party claiming the right of entry.

Acting Secretary Muldrow to Commissioner Sparks, July 15, 1886.

This case comes before me on appeal by the Central Pacific R. R. Co., from the decisions of your office, dated, respectively, September 11 and October 1, 1884, rejecting its claim to the SE. 4 of SE. 4, N. of SE. 1, and SE. of NE. of Sec. 9, T. 14 N., R. 6. E., M. D. M., Marysville, California, and awarding the same to William Griffin.

The tracts involved are within the primary limits of the grant to the Central Pacific Railroad Company, under the acts of Congress approved July 1, 1862 (12 Stat., 489), and July 2, 1864 (13 Stat., 356), the right of which is held by your office to have attached to its granted lands in

this district, at the date of the latter granting act, its road having been definitely located at a date prior thereto. The withdrawal for the benefit of the grant became effective in the Marysville district, October 3, 1864.

The township plat was filed in the local office September 18, 1868.

The records show that one Alfred Hodnett filed pre-emption declaratory statement, No. 5562, for the tracts in question December 17, 1863, alleging settlement thereon November 1, 1857. This claim was never perfected.

Subsequently, to wit, on December 7, 1873, one Felix G. Hendrix made application to file a pre-emption declaratory statement for the lands herein, and a hearing was had January 15, following, for the purpose of determining whether or not the tracts were excepted from the grant to the railroad company, by reason of the said claim of Hodnett. The evidence adduced at that hearing clearly established the fact that Hodnett settled upon this land at or about the time alleged in his said declaratory statement; that he was a qualified pre-emption claimant; and that he had continuously occupied and improved the same up until some time in the year 1870, when he abandoned it. By decision of your office, dated July 31, 1880, the application of Hendrix was rejected, it being held following the ruling in the "Gates" case (5 C. L. O., 150)— that although Hodnett had had a claim which might have been perfected, and would then have been a bar to the railroad grant, yet it having been abandoned by him in 1870, the right of the company then became effective, and by the doctrine of relation was carried back to the date of the grant. From this decision there was no appeal, and the case was finally closed November 1, 1880.

The decision in the "Gates" case (supra) was overruled by my immediate predecessor in the famous "Perkins" case (1 L. D., 357), and it was therein announced that lands within the granted limits to which a pre-emption claim had attached at the time the line of the road was definitely fixed were not granted at all, even though the claim should be afterwards abandoned. This ruling has been followed since in the Department, and is now well settled.

On the 16th of April, 1884, the local office at Marysville rejected the homestead application of Griffin (the appellee herein), holding that the land having been awarded to the railroad company by the Commissioner's decision of July 31, 1880, before mentioned, the case was res adjudicata, and no jurisdiction remained in the United States government to make further disposition of the lands involved. From this decision Griffin duly appealed, and the same was reversed by your office on September 11, 1884, in the decision herein appealed from. The before mentioned decision of October 1, following, also appealed from, was an overruling of a motion for review and reconsideration, filed on behalf of the company, of said decision of September 11 preceding, which was still adhered to. There is but one question of importance involved in this case, as pre