The record shows that said application was made to the local land officers and refused by them on December 2, 1882, for the reason that said section was patented to the Central Pacific Railroad Company on the 27th day of June, 1867. Your office on appeal affirmed said decis ion, upon the ground that the exception in the grant to said company and in said patent is construed to mean lands known to contain valuable minerals prior to the issuing of the patent, and that subsequent discoveries would not affect the title of the company to the lands and mines subsequently discovered.

The section embracing said lot is designated by an odd number within the limits of the grant made by the act of Congress approved July 1, 1862 (12 Stat., 489), and amended by the act approved July 2, 1864 (13 Stat., 356), to said railroad company. In section three of the act of July 1, 1862, it is provided that "all mineral lands shall be excepted from the operation of this act ;" and in section four of the amendatory act it is provided that "the term mineral land shall not be construed to include coal and iron land."

It is strenuously insisted by counsel for the appellant, that Congress did not grant mineral lands to said company; that said patent, although including said section in terms, did not operate as a conveyance of the title to any land that may at any time be found to be mineral. It is not denied that said section was returned as agricultural by the United States surveyor; that it was regularly patented to said company, with out fraud or mistake on the part of the land officers or said company, so far as is shown by the record. The issue of said patent was a determination by the proper tribunal that the lands covered by the patent were granted to said company, and hence, under the proviso of said act, were not mineral at the date of the issuance of said patent.

It has been repeatedly held by the supreme court of the United States that a patent executed in the required form and by the proper officers for such a portion of the public domain as is by law subject to sale or other disposal passes the title thereto, and the finding of the facts by the Land Department which authorizes its issue is conclusive in a court of law and can not be collaterally assailed. Steel v. Smelting Company (106 U. S., 447).

In the case of Smelting Company . Kemp (104 U. S., 636–641), the same court say, "It is this unassailable character of the patent which gives to it its chief, indeed its only, value as a means of quieting its possessor in the enjoyment of the lands it embraces. If intruders upon them could compel him, in every suit for possession, to establish the validity of the action of the Land Department and the correctness of its ruling upon matters submitted to it, the patent, instead of being a means of peace and security, would subject his rights to constant and ruinous litigation."

In the case of McLaughlin v. United States (107 U. S., 527), the court affirmed the decree of the circuit court canceling a patent issued

to said company, on the ground that the tract in question, at the time of the grant, was known to be mineral land by the appellant, and that, therefore, the patent was issued by inadvertence and mistake without authority of law. In the opinion of the court the inquiry is made, "Suppose that when such land has been conveyed by the government it is afterwards discovered that it contains valuable deposits of the precious metals unknown to the patentee or to the officers of the government at the time of the conveyance, will such subsequent discovery enable the government to sustain a suit to set aside the patent or the grant? If so, what are the rights of innocent purchasers from the grantee and what limitations exist upon the exercise of the government's right?" The court, however, declined to give any answer to said inquiries. In the case of Deffeback v. Hawke (115 U. S., 393), the court reviewed and commented on the several acts of Congress relative to the disposition of mineral lands, and held that the officers of the Land Department have no authority to insert in a patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed, and that no title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, cinnabar, or copper, can be obtained under the preemption or homestead laws, or the town-site laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands.

In said opinion the court say: "We also say lands known at the time of their sale to be thus valuable, in order to avoid any possible conclusion against the validity of titles which may be issued for other kinds of land, in which, years afterward, rich deposits of mineral may be dis covered. It is quite possible that lands settled upon as suitable only for agricultural purposes, entered by the settler and patented by the government under the pre-emption laws, may be found, years after the patent has been issued, to contain valuable minerals. Indeed, this has often happened. We, therefore, use the term known to be valuable at the time of sale, to prevent any doubt being cast upon titles to lands afterwards found to be different in their mineral character from what was supposed when the entry of them was made and the patent issued." In the case of Merrill v. Dixon (15 Nev., 405), the supreme court of Nevada, commenting upon the issuance of patents to railroad companies, containing the clause excluding mineral lands, should any such be found to exist in the tracts described in the patents, said: "For the purposes of this case, we shall consider that all mineral lands which were intended by Congress to be excluded and excepted from the operation of the grant to the railroad company were excluded and excepted by the patent conveying the lands to the said company."

To the same effect is the decision of the United States circuit court for the District of California, in the case of the Pacific Coast Mining and Milling Company v. Spargo et al., reported in 8 Sawyer, 645.

While the exception of mineral lands from the grant to said company is clear and explicit, yet it does not appear from a careful consideration of the language of said grant that Congress intended to grant only such lands which may after the lapse of an indefinite number of years prove to be agricultural in character.

A careful examination of the whole record shows no error in the decision appealed from, and it is accordingly affirmed.

HOMESTEAD ENTRY-SINGLE WOMAN.

MARIA GOOD.

The right acquired by the original homestead entry of a single woman is not affected by her marriage prior to final proof.

Secretary Lamar to Commissioner Sparks, October 22, 1886.

I have considered the appeal of Maria Good, nee Wilcox, from your decision, dated July 14, 1886, holding for cancellation her homestead entry, No. 15,552. Said entry, it appears, was made September 28, 1880, and covers the NE. of Sec. 22, T. 3 S., R. 23 W., Kirwin, Kansas. November 7, 1885, claimant made final proof before the clerk of the district court, which proof was on the 11th of the same month rejected by the local office "because of insufficient residence."

1

From that action appeal was taken to your office.

Your decision sets out the following facts as shown by the record in the case, to wit, that claimant was a native born citizen of the United States and a single woman over twenty-one years of age at date of entry, soon after which she married; that her husband was a mechanic and worked in Norton, three miles distant; that claimant's statements are that she staid in Norton during the bad weather in winter, aside from which she resided continuously on the land; that the testimony of her witnesses make it appear that she staid in Norton winters and on the homestead summers; that she was never absent for more than three months at a time; that she has never moved her household goods from the land, and that the improvements, which are valued at $600, consist of a house, a well, wind-mill, sheds, an orchard of one hundred and twenty-eight trees, and fifteen acres under cultivation. Without passing upon the question of residence further than to say that "the testimony as to residence is not very clear, except that it was established in November, 1880," your decision proceeds to rule the case upon the fact of the marriage of appellant after having made her entry.

On this question you hold that "a woman who makes a homestead entry and subsequently marries before completing the same, forfeits her right thereby to acquire title to the land," and for that reason you dismiss the appeal from the action of the local office and hold the entry for cancellation.

Section 2289 of the Revised Statutes contains the following provis ious as to who may enter public lands under the homestead laws:

"Every person who is the head of a family, or who has arrived at the age of twenty one years, and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter section, or a less quantity, of unappropriated public lands, upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption at one dollar and twentyfive cents per acre," &c.

Your decision tacitly admits that the applicant, as a single woman, over twenty-one years of age, and native born, was at the date of her entry qualified under the law quoted to make said entry.

The sole question before me for consideration, therefore, is, whether the fact of her marriage after entry and before final proof of itself worked a forfeiture of such rights as she acquired by her entry.

I am unable to concur in the conclusion arrived at by you on this proposition. The original homestead act of May 20, 1862, was entitled "An Act to secure Homesteads to actual settlers on the Public Domain." That act, which is substantially embodied in the Revised Statutes-Sec. 2289, et seq., — prescribed certain prerequisite qualifications which must exist in settlers under that law. Those qualifications have already been mentioned. If found to exist, then what?

Actual continuous residence and cultivation must follow, and no certificate shall be given or patent issued until the expiration of five years from date of entry, and then, or within two years thereafter, proof may be made showing continuous residence and cultivation, and that no part of the tract with reference to which the proof is offered has been alienated, except as provided in section twenty-two hundred and eightyeight of the Revised Statutes. (2291, R. S.)

From the foregoing it seems clear that when once legal qualification to make homestead entry is established, and the land applied for is subject to such entry, then the only remaining questions for the Land Department to consider are those relative to residence, cultivation and alienation.

This being true, the fact of the marriage of the claimant in this case after she made her entry can not of itself work a forfeiture of any right which she may have acquired by virtue of said entry.

It only remains for her to show compliance with the positive requirements of the homestead law, which are conditions subsequent, in order to entitle her to full legal title by patent. Her marriage did not of necessity prevent her remaining upon and improving the tract. The marriage of a woman who has made homestead entry may result in her leaving the land which she has entered and establishing a residence elsewhere, and thus indirectly furnish a reason for forfeiture, but the ground of forfeiture in such case would be abandonment and not the fact of marriage. I am clearly of the opinion that the fact of Maria

Good's marriage did not in any degree impair the right which she acquired under her entry.

Upon reference to the decisions of your office on the question here involved, I find that the practice has, so far as I have been able to discover, heretofore been uniform in recognizing the right of a married woman to complete a homestead claim, initiated by entry before mar riage.

On the 10th of February, 1874, your office, in passing upon this question, ruled that a single woman who makes an entry under the homestead laws "does not forfeit her rights under the homestead laws by marriage, provided she fulfils the requirements of the statute as regards settlement and cultivation of the land embraced in her homestead entry." (1 C. L. O. 3). See also the following cases: Mary Latt, decided by your office August 25, 1877 (4 C. L. O., 103); Eda M. Carnochan, decided September 29, 1881 (8 C. L. O., 121); Herman L. Phelps, decided January 9, 1883 (9 C. L. O., 196). In the case of Rosanna Kennedy (10 C. L. O., 152) my predecessor, Secretary Kirkwood, having under consideration the effect of a pre-emption entry and discussing the difference between that and a homestead entry, held, as to a homestead entry, that "the marriage of a single woman subsequent to her entry is not a waiver or forfeiture of her rights." Believing, as I do, that the practice as indicated by the decisions cited has been in accordance with the law, and that appellant by her marriage lost no right acquired through her homestead entry, I must reverse your de cision.

I do not pass upon the proof made as to residence and cultivation, as that has not been acted upon by your office.

APPLICATION TO ENTER-POST OFFICE ADDRESS-RESIDENCE.

CIRCULAR.

Commissioner Sparks to registers and receivers, October 25, 1886.

The returns from many district land offices show that the regulations of this office requiring applicants under the homestead, pre-emption, timber culture, and other laws, to state in their applications the place of their actual residence and their post-office addresses are not being satisfactorily complied with, particularly in cases in which residence upon the land or residence within the State or Territory is not required.

It is often impossible, and in timber-culture, desert land, and timber land entries especially so, to ascertain from the papers in the case the place of residence of claimants, and personal service of notice cannot be obtained, for this reason, in many cases in which it is important that personal service should be had. Necessary investigations are also seri ously impeded for want of this essential information.