been sustained, and recommended the cancellation of said entry. No appeal was taken and the papers were forwarded in regular order. Your office, on examination of the papers, dismissed the contest, holding that, "the contest was illegal ab initio, for the reason that the contestant applies to make pre-emption filing, instead of homestead or timber culture entry of the tract. See Buttery v. Sprout, 2 L. D., 293.” The case cited holds that Buttery's contest-in all respects similar to that of Kelly-"was initiated without authority of law and must be regarded as nil." This ruling is based on a construction of the third section of the act of June 14, 1878. Said section provides:

That if at any time after the filing of said affidavit, and prior to the issuing of the patent for said land, the claimant shall fail to comply with any of the requirements of this act, then and in that event such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act. (20 Stat., 113.)

Construing this section said case proceeds: "I doubt not that Congress intended the third section of the act of 1878 to restrict the right of contest thereunder to certain species of claimants expessly named, to wit, homestead and timber culture claimants, and to them only upon the condition precedent that they file an application to enter the land themselves."

This ruling has been departed from in subsequent cases, although the case of Buttery v. Sprout has not been specifically overruled. In the case of Satterlee v. Dibble (2 L. D., 307), the successful contestant against a timber culture entry on the allegation of failure to comply with law, was awarded the preference right to enter under the act of May 14, 1880, although he never filed an application to enter the land. In the case of Pierce v. Benson (2 L. D., 319), where such contestant alleged that he had offered an application to enter at the hearing, and was told by the local officers that such application was unnecessary, it was held that "as he was allowed to contest without filing an application, and as be proved his allegation, he is entitled to a preferred right of entry." It certainly cannot be urged that such contestant who files a declaratory statement is in any worse condition than one who fails to file any ap plication to appropriate the land. The strictest rule that could be invoked against him is one that would treat the declaratory statement as mere surplusage. It is therefore clear under rulings of the Department, above quoted, and subsequent to the Buttery case, that the contestant in the case at bar is entitled to the preference right of entry. In other words, it is not a "condition precedent" to the right of contest that such contestant must apply to enter the land under the homestead or timber culture law.

But further, the ruling in said case of Buttery v. Sprout as to the scope of the term "homestead laws" is opposed to the construction of that phrase by this Department in similar instances. In the case of George S. Bishop (1 L. D., 95), it was held that the term "homestead laws" in section 2, act of June 15, 1880 (21 Stat., 237) was used in a

generic sense, and that an intervening timber culture entry, or pre-emption filing, if followed by entry, would defeat the right of purchase under that act. Indeed, to hold otherwise would be to deter pre-emptors or timber culture entrymen from seeking to acquire title to any tract of land that had been covered by a homestead entry made prior to June 15, 1880. This ruling has been steadily followed and is again announced in the case of Charles C. Martin (3 L. D., 373). In the case of Fraser v. Ringold it was held that said term would embrace a desert land entry. (3 L. D., 69.) The rulings of the Department on this question should be reconciled, and made consistent. To follow the ruling in Buttery v. Sprout is to say that Congress intended to suspend the action of the pre-emption law as to all tracts covered by timber culture entries, where the entryman had failed to comply with the law. There is certainly no reason for such action in the nature of the entry, or the contest, or the pre-emption law itself, nor do the words of the statute disclose any intention to interfere with the operation of that law. To secure harmony in the rulings of this Department, and to maintain the integrity of the land law system-for all such laws are construed in pari materia-I find it consistent to hold that the term "homestead laws" in the statute in question was used in a generic sense, and will embrace the pre-emption law.

It is in the interest of good administration of the land laws that abandoned entries should be canceled, and the land covered thereby thrown open to entry to others. Contestants are favored by law, and contests encouraged by the Land Department. It is incongruous to suppose that in the case of an abandoned timber culture entry, Congress departed from this evident policy, unless some reason can be assigned. Said decision is reversed, the entry will be canceled, and the déclaratory statement allowed to go to record. The case of Buttery v. Sprout, in so far as it conflicts herewith, is hereby overruled. I am satisfied that no confusion in the practice can arise from this action, nor will harm be done to any party to a contest.

RAILROAD GRANT-ACCEPTANCE OF CONDITIONS.

NEW ORLEANS & PAC. R. R. Co.

It is the duty of the Secretary of the Interior to issue patents to said Company whenever they have filed in the Department satisfactory evidence of full compliance with the act of February 8, 1887.

Acting Secretary Muldrow to F. A. Babcock, New York City, April 23, 1887.

I have considered your petition in the matter of the New Orleans and Pacific Railroad Company, as assignee of the Baton Rouge and Vicksburg Railroad Company's land grant, asking this Department to refuse to issue any further patents to the New Orleans Pacific Railroad 2278 DEC--38

Company until the determination of an action brought by yourself against the New Orleans, Baton Rouge and Vicksburg Railroad Company, and others, or until the New Orleans Pacific Railroad Company shall surrender and deliver unto yourself a certain number of first mortgage bonds secured by the land grant heretofore conveyed to the New Orleans Pacific Road by the New Orleans, Baton Rouge and Vicksburg Railroad Company, for and in lieu of, and as a discharge of an obligation heretofore imposed upon the New Orleans, Baton Rouge and Vicksburg Company.

The third section of the act of February 8, 1887, entitled “An act to declare a forfeiture of lands granted to the New Orleans, Baton Rouge and Vicksburg Railroad Company, to confirm title to certain lands, and for other purposes," provides—

That the relinquishment of the lands and the confirmation of the grant provided for in the second section of this act are made and shall take effect whenever the Secretary of the Interior is notified that said New Orleans Pacific Railroad Company, through the action of a majority of its stockholders, has accepted the provisions of this act, and is satisfied that said company has accepted and agreed to discharge all the duties and obligations imposed upon the New Orleans, Baton Rouge and Vicksburg Railroad Company by act of March third, eighteen hundred and seventy-one, entitled 'An act to incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, and for other purposes.'

I have now to advise you that the New Orleans Pacific Railroad Company have filed in the Department a certified copy of a resolution passed by a majority of the stockholders of said company, at a meeting called for the purpose of accepting the provisions of said act of March 3, 1871, in the following terms, to wit:

Be it resolved by this meeting, representing sixty-seven thousand shares of stock out of the sixty-seven thousand and two hundred shares issued and outstanding, that the above resolution be, and the same hereby is, in all things ratified and confirmed; that this company does hereby accept the provisions of said act of Congress of February 8, 1887; and also accepts and will discharge all the duties and obligations im posed upon the New Orleans, Baton Rouge and Vicksburg Company by said act of Congress of March 3, 1871.

Resolved, that the said board of directors are hereby authorized and directed to adopt any and all resolutions, and the President and Secretary of this Company to execute any and all instruments, under corporate seal or otherwise, necessary to complete, consummate or evidence such acceptance of said act of February 8, 1887, and to execute any instruments required or needful, whereby this company agrees to dis charge all duties and obligations imposed upon the New Orleans, Baton Rouge & Vicksburg Railroad Company by said act of March 3, 1871, entitled "An act to incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, and for other purposes."

Considering that it is the duty of the Secretary of the Interior to is sue patents to said company whenever they have filed in the Depart ment satisfactory evidence of full compliance with the act of February 8, 1887, I must decline to grant your application,

DESERT ENTRY-TIMBER LAND.

RIGGAN v. RILEY.

A tract embracing several acres of timber is not subject to desert entry though the land will not produce an agricultural crop without irrigation.

Acting Secretary Muldrow to Commissioner Sparks, April 12, 1887.

I have considered the case of James M. Riggan v. William T. Riley, as presented by the appeal of the former from the decision of your office, dated March 31, 1885, dismissing his contest against the latter's desert land entry No. 72, made January 7, 1881, at the Boise City land office, in the Territory of Idaho, upon unsurveyed land, containing 462.57 acres.

The record shows that the township plat of survey was filed in the local land office on March 9, 1883, and said entry was adjusted by the register and receiver to cover the W. and W. of SE. 4 of Sec. 4, and the SE. of the NE. of Sec. 5, T. 2 N., R. 18 E.

On June 22, 1883, Riggan filed his affidavit of contest, duly corroborated, in which he alleged that he was a "bona fide" settler upon the W. of the SW. of Sec. 4, and the E. of the SE. 4 of Sec. 5, in said township; that he offered to file a pre-emption declaratory statement upon said tract, alleging settlement May 6, 1881, which was rejected by the local land officers on account of conflict with said desert land entry; that since his said settlement he has made valuable improvements upon said tracts and has continued to reside thereon with his family; that said entry was not made in good faith to reclaim the land, but for speculative purposes; that the land in controversy is non-desert in character, and a great part of it covered with timber and grasses, and that the entryman has already alienated the land covered by said entry.

It also appears from the decision of the local land officers that one A. M. Purdam made a similar allegation against said entry, and claiming for himself said tract in Sec. 5. Your office, on August 31, 1883, directed the local land officers to order a bearing to determine the character of the land and the good faith of the entryman in the premises. The hearing was duly had, both parties being present in person and represented by counsel.

It appears that after said hearing had commenced, Riley relinquished all claim to the tract in Section 5, and the contest so far as Purdam was concerned was dismissed by the local land officers, and the case proceeded upon the allegations made by Riggan, as aforesaid. From the testimony submitted, the register and receiver found that the land was desert land in character; that it will not produce crops in paying quantities without artificial irrigation; that the adjustment of said entry so changed the location on the west side as to include some timber lands; that there are a few cottonwood trees growing along the western edge of said lands, where the lands approach the river; that

this fact is shown by a preponderance of the evidence, and it is corroborated by the personal observation of the local land officers, made while passing along the public road near said land; that said entry was made in good faith and not for speculative purposes, and that the contest should be dismissed. Your office, on March 31, 1885, affirmed the action of the local land officers, and held that "it appears from the evidence that the entryman has acted in perfect good faith in the matter of the reclamation of the land embraced in his entry."

This record has been carefully examined. The testimony is exceed ingly voluminous, covering about fifteen hundred pages, a large portion of which is quite irrelevant, and many of the statements wholly irreconcilable. The evidence shows that said entry was made upon unsurveyed land, along Wood River, as above stated, and that some mouths after, but prior to survey, said Riggan settled upon the W. of the SE. of said Sec. 4, made valuable improvements thereon and has continuously resided upon the land to the date of said hearing. While a large number of witnesses were examined in the case and their testimony upon many material points is directly in conflict, yet a careful examination of the whole evidence shows by a fair preponderence that the south forty in dispute is timber land, and therefore not subject to entry under said desert land act. The witnesses for the contestant estimate the number of acres upon which there are timber trees to be from fifteen to thirty-five acres, and the size of the trees from two to three feet in diameter and forty to sixty feet in height. The testimony of the contestee shows that there are some trees on both forties in dispute, but he claims that the growth is scrubby and does not exceed one acre on the north forty and five acres on the south forty in controversy. Other witnesses for the contestee state that there are from two or three acres of timber on the north forty and from eight to ten acres on the south forty.

Section second of the desert land act, approved March 3, 1877 (19 Stat., 377), provides "that all lands exclusive of timber lands and mineral lands, which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands within the meaning of this act."

It is clear that, even if it be shown that the land will not produce some agricultural crop without irrigation, yet, if the testimony shows that there are several acres of timber on the land, such land can not be entered under said act.

But there is another element in the case that requires careful and serious consideration. It appears that on June 7, 1882, said Riley, with four others, entered into an agreement with the Idaho and Cregon Land Improvement Company, by which, for and in consideration of the sum of four thousand dollars to them in hand paid by said company, the receipt thereof being duly acknowledged, and in consideration of the further sum of six thousand dollars, to be paid as stipulated in said agreement,