the pre-emption law, while evading its plainest requirements. He testified, in making final proof, that he had done no breaking on the tract; that his only improvements were a house, eight by ten, and a well, and that said improvements were worth $150.

The testimony taken at the hearing shows that the value of the improvements was not to exceed $25; that the entryman never occupied the house as a place of residence, in fact that it was not habitable, and that what the proof termed a well is not worthy of the name. No furniture, stove, nor cooking utensils were ever seen in the shanty. On the outside, looking from a distance, one might suppose there was a stove inside, because a stove pipe appeared to project through the roof, but a closer examination showed that there was no hole in the roof through which it could pass, but that it was tacked to the roof, thus giving the shanty the appearance of having a stove within. Such a subterfuge as this, of itself goes far to show a premeditated purpose to mislead and deceive.

Upon a full consideration of all the facts and circumstances, I have no hesitation in concluding that the entry was made in bad faith, without compliance with the law, and with a studied purpose to evade its requirements.

I therefore affirm your office decision.

RAILROAD GRANT-SETTLEMENT CLAIM.

RAMAGE v. CENTRAL PAC. R. R. Co.

The pre-emption law not only conferred a preferred right of purchase, but also legalized settlement on the public lands with a view to cash entry, and made such settlement, by a qualified person, the basis of a claim against the United States.

The residence and possession of a qualified pre-emptor covering the date of the grant, withdrawal, and definite location excepted the land from the operation of the grant, though the settler subsequently abandoned said land and perfected a preemption claim elsewhere.

Secretary Lamar to Commissioner Sparks, December 14, 1886.

I have considered the case of Charles Ramage v. The Central Pacific Railroad Company, on appeal from your office decision of May 8, 1885, adverse to the company.

The tract involved consists of lots 1 and 2, and the S. of NE. † of Sec. 3, T. 2 S., R. 2 W., M. D. M., San Francisco, California, and is claimed by Ramage under the pre-emption law, while the company asserts claim to it under the grant of July 1, 1862 (12 Stat., 489). The facts as disclosed by the record in the case appear substantially as stated in the decision appealed from, and are not denied by appellant. It is

admitted by the company that James Ramage occupied the tract, residing upon and improving the same from 1860 to 1869, when he sold his possessory claim and improvements; but it is alleged that because he, while holding said tract, purchased the possessory right to certain land in section 2, adjoining, which he subsequently, in 1878, filed upon as a pre-emptor, and afterwards transmuted to homestead, upon which he made final proof in April, 1884, therefore his occupation of the tract in dispute did not confer such a right thereto as would except it from the operation of the grant.

This contention can not be sustained. James Ramage appears to have been a qualified pre-emptor. He testified at the hearing that he established his residence upon the tract in 1860, with the intention of pre-empting the same as soon as he could do so, and that he resided there with his family until 1869. It is in evidence that his house and other improvements were worth at least $1,000. He could not during the time he resided there file for the land, for the reason that it had not been surveyed. The survey was not made until 1878. His possession of and residence upon the tract covered the date of the grant to the railroad company, the date of the withdrawal on account thereof, and the date of definite location of the line of road. The fact that he changed his intention in 1869 and left this land, and afterwards, in 1878, settled upon and claimed under the pre-emption law another tract, does not, as argued, affect the question at issue. It does not change the fact that the settler had during the time he was upon the land a pre-emption right to said land by virtue of his settlement and residence thereon. The pre-emption law did more than create a right of pre-emption, or of purchase before others; it legalized settlement on the public lands with a view to cash entry, and made such settlement by a qualified person the basis of a claim against the United States; "it protected settlements already made, and allowed future settlements to be made with a right of pre-emption." Emmerson v. Central Pacific R. R. Co. (3 L. D., 271); Johnson v. Towsley (13 Wall., 72). That James Ramage did not remain on the land until survey and consummate his claim, does not change the rule above enunciated, nor prevent its application to this case.

It is sufficient to know that he had a settlement claim capable of be ing perfected, in order to determine that the tract did not pass to the company under its grant. This being determined, it follows that the tract is subject to pre-emption and that Charles Ramage, who it appears came into possession by purchase of the improvements, and who made settlement in 1872, and has since resided upon the tract with his family, is not barred by any claim of the railroad company from filing for and entering the same under the pre-emption law.

Your office decision is affirmed.

PRACTICE-REVIEW-STANDING OF TRANSFEREE.

CYRUS H. HILL.

A decision, rendered on the appeal of an entryman, rejecting his final proof, will not be reviewed on the allegation of a transferee that he did not receive notice of such decision.

Secretary Lamar to Commissioner Sparks, December 14, 1886.

I am asked by Mr. L. H. Hole, attorney for the U. S. Mortgage Co. and Elizabeth H. Richardson, to review and revoke departmental decision of October 6, 1886, directing the cancellation of the homestead entry of Cyrus H. Hill, made December 6, 1883, at Huron, Dakota, for the SE. of Sec. 26, T. 111, R. 67, which was commuted to cash, final proof made thereon, and certificate issued December 9, 1884. And it appears, by the present application, that on the day after the issue of the final certificate, the land was mortgaged by Hill to the Mortgage Company, for the sum of $300; and that on May 5, 1885, the Company assigned the mortgage, received from Hill, to Elizabeth H. Richardson. The application for review is based substantially upon two general grounds: 1st, that said Richardson had no notice of the Commissioner's decision, nor an opportunity to present her rights or equities, or to show that the claimant has complied with the law. 2d, That the cancellation of said entry was contrary to law and the evidence.

With regard to the first point made, it is sufficient to refer to the case of John C. Featherspil (4 L. D., 570) wherein it was said that in the determination of that case, "the fact that there is a mortgagee now interested in maintaining the validity of the entry brings no new element into the consideration thereof, inasmuch as he can have no better right than the entryman would have if present, and with whose rights the government deals only, regardless of any sale, assignment, or lien made by him to third parties; recognizing, however, the right of said third parties, where their rights have been acquired subsequently to the issue of final certificate, to appear and protect the same by showing proper compliance with the requirements of the law on the part of the entryman."

In the case under consideration, there was nothing in the record to show that Hill had mortgaged the tract in question; and it was no part of the duty of the United States officers to search the records in the proper territorial office to ascertain whether any transfer of said land had been made or lien placed thereon by him, in order to send notice of the rejection of the final proof to such transferee, or lienor. Notice was sent to the entryman, an appeal was taken by him, and on said appeal the judgment of your office was affirmed. There is, therefore, nothing in the first point to require the revocation of my former decision.

The second ground relates entirely to the sufficiency of the testimony submitted by Hill, in relation to his residence upon the land. A re. examination of said testimony, so far from showing any cause for revoking the former decision, serves to confirm strongly the views therein expressed.

I therefore deny the present application.

PRACTICE-STARE DECISIS-ACTING SECRETARY OF THE INTERIOR. REES v. CENTRAL PAC. R. R. Co. (ON REVIEW.)

When a point has been settled by decision it forms a precedent, which the Department will not depart from, unless clearly contrary to principle.

In accordance with the law creating the office of Acting Secretary of the Interior, the decision of such officer is in effect the act of the Secretary.

Cases will not be referred to the Attorney-General for his opinion, except where the Secretary is in doubt as to the correct conclusion.

Secretary Lamar to Commissioner Sparks, December 15, 1886.

I herewith transmit the papers accompanying motions of counsel for plaintiff in the case of Thomas Rees v. The Central Pacific R. R. Co., for a review of departmental decision of August 14th, last, adverse to him. Said motion and the argument in support of it I have carefully considered, and I fail to find any good reason for granting it.

In that opinion the Acting Secretary held that nearly all the questions involved in the case had already been ruled upon by this Department in other cases, and the patented and out boundaries of the Mexican grants therein referred to defined thereby, as well as the construction to be given to the particular railroad grants under consideration. He might well have rested his conclusions upon the well recognized doctrine of stare decisis, for it is a general maxim when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from, unless clearly contrary to principle. It should require very controlling considerations to break down a former decision and lay anew the foundations of the law. He held, however, that inasmuch as Rees was not a party to the proceedings in any former case, nor the particular tract of land the subject of controversy, and that other interests in similar cases were before the Department, he would consider anew all the matters presented by the record. The decision proceeded at great length to consider seriatim all the questions involved. After full consideration of all the testimony in the case, and the arguments of counsel presented in their respective briefs, the conclusions of that decision were, first, that the land in controversy was never within the granted, claimed, or confirmed limits of the Moraga grant; second, that it was never within the granted, claimed, or confirmed limits of the Sobrante grant; and third, that it was within the claimed limits of the San

Lorenzo grant, but was excluded therefrom by the final survey of that rancho at a date anterior to the time when the grant to the railroad company became operative, and that the land passed to the railroad company under its grant.

On the 7th day of October, 1886, B. B. Newman, attorney for Thomas Rees, filed before A. C. Blanchard, register of the land office at San Francisco, California, a motion for review and re-consideration of the decision of the Acting Secretary which has been duly transmitted to this Department. It presents substantially the following points for my consideration:

First. That Rees et al. were not afforded any opportunity to present evidence or argue their cases before the Acting Secretary, by whom the decision of August 14th, 1886, was made.

Second. That the cases were argued before the Secretary, by whom no decision was made.

Third. That the decision of the Acting Secretary is against and contrary to the law and the evidence referred to in it.

The decision of the Acting Secretary was made upon a full consideration of the evidence and arguments adduced by Thomas Rees et al., and after full consultation with the Secretary who concurred in the conclusion reached. His decision was the act of the Secretary in every sense, and to hold otherwise would defeat the object of the law in providing such an officer for this Department. The other assignment that the decision was contrary to the law and the facts is considered and adjudged unfounded.

I notice the forcible effort made by counsel to show that the true location of the southern boundary of the Moraga grant, when properly located, did embrace the land in controversy. This position was strenu ously contended for in the argument of counsel before, both orally and by printed brief. I have fully considered this question, have examined all the facts disclosed, and I can find no error in the conclusion reached by the Acting Secretary. To meet and answer anew all the assertions of fact, made in the present motion, would require a re-statement of the whole case and at last end in repetition of the decision already made, which is wholly unnecessary.

The only new matter presented by the motion is that certain lands in township 2 S., range 1 W., M. D. M., surrounding the land in controversy, are opposite the first completed section of twenty miles of road extending from San Jose northward, and were selected by the Western Union Pacific Railroad Company, to which the Central Pacific is successor, on December 11, 1866.

The records of the Land Office show that list numbered two, referred to in the motion of counsel, was selected December 11, 1866, and did embrace lands in township 2, 3, 5 and 7 S., and range 1 W. and 1 E., but the records also show that this list, on receipt at the General Land Office, was suspended, and across it was written "suspended because selected beyond the completed first section of twenty miles."