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The first question to be disposed of is Bumgardner's right to make homestead entry of the land.

It will be noticed that Bumgardner has no equities in the case, and claims none. He stands on a bare technicality-the fact that Turner, after the rejection of his entry by the local officers, failed to appeal within the time prescribed by your rules.

The case of Atherton v. Fowler (96 U. S.,513), although not in all respects parallel to the one at bar, contains much reasoning that is equally applicable herein:

"It is not to be presumed that Congress intended, in the remote region where these settlements are made, to invite forcible invasion of the premises of another, in order to confer the gratuitous right of preference of purchase on the invaders. In the parts of the country where these pre-emptions are usually made" says the court-and the same is equally true of homestead entries-" the protection of the law to rights of persons and property is generally but imperfect under the best of circumstances. It cannot, therefore, be believed, without the strongest evidence, that Congress has extended a standing invitation to the strong, the daring, and the unscrupulous, to dispossess by force the weak and the timid from actual improvements on the public land."

In Rector v. Gibbon (111 U. S., 276), the supreme court, speaking of the system of public land laws as a whole, says:

"Its aim has been to protect those who in good faith have settled upon public land and made improvements thereon, and not those who by violence or fraud or breaches of contract have intruded upon the possessions of original settlers and endeavored to appropriate the benefit of their labors. There has been in this respect in the whole legislation of the country a consistent observance of the rules of natural right and justice."

It was in pursuance of these general principles of right and justice that this Department, in the case of Johnson v. Johnson (4 L. D., 158), ruled that "the wrongful act of an entryman, whereby the settlement rights of another claimant for the same tract were not protected by filing or entry, will not be allowed to enure to the benefit of such entryman," adding that "this Department . . . under no circumstances will permit itself knowingly to be made an instrument to further the fraudulent designs of an individual who is seeking to acquire title to land to which he has no right."

Bumgardner is not in a position to demand the protection of the Department for an entry knowingly initiated in fraud of the rights of a prior settler, and attempted to be consummated through force and lawlessness. And an entry which has been erroneously allowed, or which conflicts with previously acquired rights, is voidable, and upon proper showing may be set aside and annulled (Wolf v. Struble, 1 L. D., 457). In my opinion Turner has made such a showing as to justify the setting

aside and annulment of Bumgardner's entry; and I affirm your office decision holding the same for cancellation.

Rule 66 of Practice provides that in case of every rejected application to file upon or enter any of the public lands, the register and receiver shall "promptly advise the party in interest of their action, and of his right of appeal. But in the case at bar the local officers, when they rejected Turner's application to enter, neglected to notify him of his right to appeal." He was thus left in ignorance of the proper course to pursue for the protection of his rights. Therefore in my opinion he ought not to be considered to have lost his right of appeal because of his failure to do so within the time prescribed by the rules of your office. For the reasons herein given, and in view of the good faith manifested by Turner in fulfilling the requirements of the law as regards residence, improvement, and cultivation, I affirm your decision awarding him the tract in controversy. You will direct the local officers to accept his application.

RAILROAD GRANT-JOINT RESOLUTION OF JUNE 28, 1870.

SOUTHERN PAC. R. R. Co. v. Dooley.

A settlement, within the limits of the indemnity withdrawal for the benefit of this company, made prior to the passage of the joint resolution of June 28, 1870, is fully protected thereby.

Acting Secretary Muldrow to Commissioner Sparks, January 20, 1887.

I have considered the case of the Southern Pacific Railroad Company v. Obed D. Dooley, as presented by the appeal of the former from the decision of your office, dated July 29, 1885, allowing Dooley to make homestead entry No. 2655 of the SW. 4 of the NE. 4, the SE. 4 of the NW. }, the NW. of the SE. and the NE. of the SW. of Sec. 25, T. 25 S., R. 29 E., upon which final certificate No. 1695 issued on August 26, 1885, at the Visalia land district, in the State of California.

The record shows that the land in controversy is within the thirty mile, or indemnity, limits of the grant by act of Congress approved July 27, 1866 (14 Stat., 292); that it was ordered to be withdrawn by your office letter, dated March 22, 1867, received at the local land office on May 21, 1867. The township plat of survey was filed in the local land office on August 2, 1879. On October 29, 1879, said Dooley filed his pre-emption declaratory statement No. 6797 for said tracts, alleg ing settlement on May 1, 1870. On October 30, 1879, Dooley trans. muted his filing to said homestead entry, and on April 11, 1885, made final proof after due notice, the company appearing and contesting his right to enter said tracts.

From the evidence submitted the register and receiver found that Dooley was duly qualified to make homestead entry, that, as he settled upon said land prior to May 1, 1870, and had complied with all of the

requirements of the homestead laws, his final proof must be accepted and the claim of the company must be rejected.

The company appealed, and your office, on July 9, 1885, affirmed the decision of the local land office, upon the authority of departmental decisions in the cases of Langan v. said company (10 C. L. O., 300), and said company v. Wiggs, decided November 27, 1883 (43 L. & R., 146). The local land office based its decision upon the case of Tome et al. v. said company, decided by this Department on August 2, 1878 (5 C. L. O. 85), in which it was held that the lands upon which the grant to said company would operate were not identified until the date of the passage of the joint resolution of June 28, 1870, authorizing the company to construct its road upon the line designated on the map filed in the Interior Department January 3, 1867, and that the rights of all parties who were actual settlers June 28, 1870, were saved.

It is insisted by the company that said decision is erroneous, and if correct should have no application to settlements within the indemnity limits, and that Dooley could acquire no settlement rights on land withdrawn for the benefit of the company. The contention of the company cannot be maintained. The effect of said joint resolution upon the rights of settlers within the limits of said grant was very carefully considered by my predecessor, Secretary Schurz, in the Tome case (supra), in which he states that "the grant is to be adjusted in the same manner as though the filing of the map in this Department on January 3, 1867, was an act authorized by law, except that the rights of persons who were actual settlers on the 28th of June, 1870, are to be protected." This ruling, based upon the opinion of the Attorney-General (16 Op., 80), has been uniformly followed by this Department.

In the case of said company v. Rahall (3 L. D., 321), Acting Secretary Joslyn, on January 17, 1885, approved of the Tome decision (supra), and said "the ruling in the Tome case has been uniformly followed by this Department, and I see no good reason for changing it in the present case."

It must be remembered that the land in controversy is within the indemnity limits of said grant; that the right of the company attaches to the odd numbered sections, within said limits, by selection; that no selection of said tract has been made by the company, and it would be a strained construction to hold that Congress intended to relieve actual settlers upon lands within the granted limits, and deprive them of their equitable rights, if their settlements were within the indemnity limits. And this Department held in the case of said company v. McCarthy, (9 C. L. O., 176,) that said joint resolution saved the rights of settlers upon lands within the indemnity limits of the withdrawal for the benefit of said grant. See also Fox v. Southern Pacific R. R. Co. (2 L. D., 558.)

Again, if there is any doubt as to the construction of said resolution, it must be resolved in favor of the government and against the com

pany. To hold that a settler who has made valuable improvements on the public land and entered the same under the homestead law in accordance with the uniform construction of the law for many years by this Department, must be deprived of his home by a changed construction of the law, is not consistent with any principle of law or equity.

It is unnecessary to consider the question whether the Department had any authority to order a withdrawal of lands within the indemnity imits. It is sufficient for the case at bar to hold that since Dooley was an actual settler prior to and at the date of the passage of said joint res olution his rights were saved thereby, and having shown full compli ance with the requirements of the homestead law, his said entry should be passed to patent.

The decision appealed from is accordingly affirmed.

SCRIP LOCATION; RES JUDICATA.

THOMAS B. VALENTINE ET AL.

By the former action of the Department, the right to locate Valentine Scrip on land is now res judicata and will not be further considered.

Secretary Lamar to Commissioner Sparks, January 24, 1887.

this

I transmit herewith the application of Thomas B. Valentine, of San Francisco, California, and David W. Kean, of Chicago, Illinois, for a reconsideration of the departmental decision, rendered by my predecessor, Mr. Secretary Schurz, February 28, 1879 (6 C. L. O., 22), denying the alleged right of said parties to locate Valentine scrip on certain lands lying on the Lake front in the City of Chicago. The decision referred to rested substantially upon the conclusions that the disposition of this land through the action of the War Department in 1839 was final, and not to be inquired into by this Department; and that in any event the lands applied for were not subject to appropriation with Valentine scrip.

It is now alleged as grounds for opening said decision and the re-ar gument of the whole case, (1) that Secretary Schurz was entirely mistaken in the facts upon which he based his decision. (2) That the decision of Secretary Schurz, in holding that this land had been dedicated to the City of Chicago and was therefore unoccupied public land, was in direct violation of the law, in that it was an attempt to divest the United States of its title to these lands by an executive decision, and thereby usurped the power of Congress to dispose of the public property. (3) That a dedication, if lawfully made, only conveys an easement and not the fee, hence though the City of Chicago may have the use of the land the title thereto yet remains in the government.

This motion could not be entertained, as now presented, even if the reasons urged for such action were in themselves found sufficient, for so far as disclosed by the papers accompanying the motion, no notice of its pendency has been served, or attempted to be served, on the ad

verse party of record. The case when before the Department formerly came up on the appeal of the City of Chicago from a decision of your office allowing the scrip location, and it is the judgment the Department then rendered, on such appeal, that the motion seeks to re-open. Applications for reconsideration are only entertained after due notice to the opposite party. Rule 76 of Practice.

Again, no reason is given for the delay in applying for a rehearing. Motions for review, except in case of newly discovered evidence, must be filed within thirty days after receiving notice of the decision. (Rule 76.) There is herein no pretense that the facts in the case were not all fairly before the Department when the decision complained of was rendered.

The determination of the case by my predecessor's decision that became final also precludes further action in the matter. The rule in such cases being that a decision by the head of a Department, with certain exceptions, is binding upon his successor, and there is nothing in this case to make it an exception to the general rule.

It is proper to say that since the rendition of the decision now under consideration, it has been followed without exception, so far as I am aware, in all cases of application to locate this scrip within the corporate limits of a city or townsite. Townsite of Seattle v. Valentine et al. (6 C. L. O., 135). In the case of Merrifield v. Illinois Central Railroad Company (9 C. L. O., 219), which involved the location of Porterfield scrip on this same tract, my predecessor, Mr. Secretary Teller, followed the ruling now in question, and held that the land was not subject to such appropriation. Again, on the application of John Farson, to locate Valentine scrip on this tract, the Department adhered to its former rulings, and rejected the application (2 L. D., 338).

It is therefore apparent that, aside from any objection as to the want of formality attendant upon the present petition, the question raised thereby is no longer a proper subject for adjudication by the Department, as the status of this land, under this and other cases, is now res judicata. For the reasons assigned, the motion is denied.

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