a terminal shall be in one compact body, yet, as a general rule, it would seem that, where a sufficient quantity can be found in a compact body for the necessary uses of the railroad, at or near its terminus, the same should be taken in that form; but the selection of separate bodies, in the aggregate not exceeding the limits of the grant, will be permitted where the necessity therefor is made to appear, the approval resting largely in the discretion of the Secretary of the Interior.

The maps forwarded with your office letter of July 18, 1899, and the papers subsequently transmitted in relation thereto, are herewith returned to await the further action of the company in the matter of making new selections, as indicated in the letter from the president of the company. You will advise him fully of the views herein expressed.

OKLAHOMA LANDS—SECOND ENTRY-SECTION 13, ACT OF MARCH 2, 1889.

WALTON ET AL. v. MONAHAN (ON REVIEW).

One who has abandoned all claim under a former entry is not disqualified as a settler, claiming the right of second entry under section 13, act of March 2, 1889, 25 Stat., 980, by the fact that the first entry had not been canceled of record at the date of his settlement.

Section 10, act of March 3, 1893, makes the provisions of said section 13 applicable to the lands in the Cherokee Outlet, not only as to the manner of opening said lands, but also as to the qualifications of claimants therefor. The case of Newbanks v. Thompson, 22 L. D., 490, overruled.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.)

August 18, 1899.

(C. J. G.)

Motions have been filed by Simeon L. McQuiston and Michael J. Monahan, parties to the above entitled case, for review of departmental decision of June 1, 1899 (28 L. D., 449), involving lots 1, 2, 3 and 4 and N. NE., Sec. 32, T. 26 N., R. 3 E., Perry, Oklahoma, land district. In said decision the Department affirmed the action of your office in holding Monahan's homestead entry for the land described, made October 23, 1893, subject to the superior rights of Burned Helda and Benjamin F. Walton. The last named persons made the race into the Cherokee Outlet, September 16, 1893, from the Chilocco Indian school reservation, which fact the Department subsequently held did not of itself disqualify them from making settlement and entry. McQuiston did not settle on the land until September 23, 1893, and in addition to this testified that he made such settlement with the understanding that if those who made the race from the Chilocco reservation did so "legally" he would vacate the land. It was therefore held that his claim also was defeated by the prior settlements of Helda and Walton. As to the facts of this case, as above set forth, there was very little controversy, the concurring decisions below finding that Helda and Walton were prior settlers and had since complied with the law. It

was alleged, however, that these parties were disqualified from making entry, the former by premature eutry into the Territory and the latter by reason of a prior entry of record. Both motions for review, which will be considered together, are practically confined to a reiteration of Walton's disqualification. McQuiston again alleges Helda's disqualification for the reason above stated, but the Department finds no sufficient reason to give further consideration to that feature of the case. Monahan stands on his entry alone and as that was made subsequently to the settlement of Helda and Walton he can have no rights unless the contention as to the disqualification of Helda and Walton be sustained.

In their appeals Monahan and McQuiston alleged that Walton was disqualified under the circumstances from making "entry," thereby fol lowing the language of the special act of March 2, 1889, and the deci sion complained of was made responsive to such allegation. In their motions for review the word "settlement" is employed instead. The distinction, if any, however, is not regarded as important. There being two modes whereby claims may be initiated under the homestead law, that is, by settlement or by entry, and Walton having made settlement, is also entitled to make entry if he was qualified to make such settlement.

The record shows that Walton made an entry April 21, 1887, at Lamar land office, Colorado. This entry was of record at the time he settled upon the land in controversy and remained so until May 14, 1897. The Department held in the decision complained of that Walton was not disqualified by this circumstance from making a second entry under section 13 of the act of March 2, 1889 (25 Stat., 980, 1005), as it was shown that he had, for satisfactory reasons stated by him, wholly abandoned the Colorado land in August, 1887.

Section 13 of the act of March 2, 1889, supra, is special legislation relating to the opening to settlement and entry of the Seminole lands in Oklahoma. The first proviso of said section is as follows:

That any person who having attempted to, but for any cause, failed to secure a title in fee to a homestead under existing law, or who made entry under what is known as the commuted provision of the homestead law, shall be qualified to make a homestead entry upon said lands.

Said act authorizes the two classes of persons therein described to make second entry, and, in the absence of anything to the contrary, the reasonable implication is that such persons may also make settlement with a view to such entry. The only distinction in Walton's case from certain others where second entries have been allowed, is that his origi nal entry was not actually canceled at the date of his settlement on the land in question. It is not believed, under the circumstances of the case, that the distinction is of sufficient force to materially affect the rights of Walton.

In the case of Smith et al. v. Taylor (23 L. D., 440), it was held (syllabus):

A homestead settlement, made by one who has at such time an existing homestead entry for another tract, must be held valid where the settler is entitled to make a second entry; and a second entry based on such settlement, and allowed prior to the actual cancellation of the first, though irregular, may stand.

The land involved was in the Cherokee Outlet as in this case. It appears that Taylor made entry for said land on the day of opening. He was contested by Smith and one Maupin on the ground of prior settlement, the latter subsequently filing a supplementary affidavit alleging that Taylor had an entry of record, for another tract, at Guthrie, Oklahoma, land office, at the time he made entry of the said involved land. After finding that Taylor was first to arrive on the land the Department concluded as follows:

Unless the first entry made by Taylor disqualified him for making settlement on said tract his settlement was prior to that of either Smith or Maupin. He was first on the land and first laid claim thereto in the manner recognized and approved by the custom in Oklahoma Territory, and warranted by the law, and has shown full compliance with the law in the matters of residence and cultivation since. It must be conceded that his second entry, while the first was yet uncanceled-and perhaps his settlement also for the same reason-was irregular. But were both settlement and entry, or either of them nullities-absolutely void-on that account? The Department does not so hold in view of all the circumstances of the case. Judgment of cancellation on the ground already indicated had been entered by the Department against his first entry February 24, 1893 (262 L. and R., 359). This judgment would have been executed by the cancellation of the entry upon the records, but for Taylor's motion for review which only suspended its operation. The testimony shows that subsequent to the filing of such motion, Taylor manifested an intention to accept and acquiesce in said judgment. In his homestead affidavit filed September 16, 1893, he swears that his application for the tract in contest "is honestly and in good faith made for the purpose of actual settlement and cultivation ... and in good faith to obtain a home for myself." This is only consistent with the view that he regarded his former entry as lost to him and to all intents and purposes the same as if then already canceled.

His first entry was defeated through no fault of his, but by reason of a superior right in another to the land covered thereby. It is well settled doctrine that he did not therefore lose his homestead right. The Department has frequently upheld the right to make a second entry in cases where the equities were, to say the least, no stronger than in this case (James M. Frost et al., and cases cited therein, 18 L. D., 145). If the right to make a second entry were not lost to Taylor he certainly was not disqualified to make settlement on the tract. His settlement being valid and prior to the alleged settlements of Smith and Maupin, his right to the tract in controversy must be held superior to their claims. So far as they are concerned, standing upon his settlement alone, he must prevail. The irregularity of his second entry would not defeat his superior right as a settler. If that entry should be canceled for such irregularity it would be without prejudice to his right to make again entry for the same tract. Cancellation under these conditions would be a vain act.

A distinction between that case and the one being considered is that there had been a judgment of cancellation entered against Taylor's first entry, but the same had not been executed at the date of his settlement

or when his second entry was allowed. This is the only distinction worth considering. Otherwise there is a marked similarity in the facts in the two cases. Walton had not made second entry, and therefore no irregularity in that respect had been committed in his case. The only other mode of initiating a claim under the act was by settlement which he made, and this may in a measure be accepted as evidence that "he regarded his former entry as lost to him and to all intents and purposes the same as if then already canceled." He not only alleges that he abandoned the land embraced in his entry but said entry has for years been subject to cancellation on the ground of such abandonment, and would have been defeated upon contest based upon such charge. The distinction referred to is not regarded as sufficiently material to prevent the Smith-Taylor case from controlling the one under consideration. One of the contentions in the motions for review is that it was "error to hold that Walton had not, in any bone fide manner, 'attempted to secure title to a homestead under existing law,' as to his entry in the Lamar, Colo., district, and, for this reason, was not within the terms of section 13 of the act of March 2, 1889."

In the case of Miller v. Craig (15 L. D., 154), it is held (syllabus):

Failure to secure title under the first homestead entry on account of bad faith or non-compliance with law does not defeat the right to a second entry under the act of March 3, 1889.

That case is one coming under the general act relative to second entries (25 Stat., 854), but the principle announced therein is believed to be applicable to cases coming under the special act under consideration, and this reference to said case is therefore a sufficient answer to the contention made.

It is likewise contended that the holding of the Department in the decision complained of is in conflict with the decision in the case of Newbanks v. Thompson (22 L. D., 490), wherein it was held (syllabus):

The right to make a second homestead entry under section 2, act of March 2, 1889, can not be invoked for the protection of a settler who at the time of his settlement has an entry of record for another tract.

That case is also one that came under the general act, but in so far as the principles announced therein are in conflict with the principles announced in this case, the same will not, for the reasons stated herein, be followed.

Error is also alleged in applying section 13 of the act of March 2, 1889, to lands in the Cherokee Outlet, so far as the qualification of claimants are concerned, Sec. 10 of the act of March 3, 1893 (27 Stat., 642), making said act of March 2, 1889, applicable to said Outlet only as to the manner of opening the lands to settlement and entry etc.

Said section 10 makes section 13 of the act of March 2, 1889, applicable to the Cherokee Outlet, in the following language:

The President of the United States is hereby authorized, at any time within six months after the approval of this act and the acceptance of the same by the Chero

kee nation as herein provided, by proclamation, to open to settlement any or all of the lands not allotted or reserved, in the manner provided in section thirteen of the act of Congress approved March second, eighteen hundred and eighty-nine, entitled 'An Act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes, for the year ending June thirtieth, eighteen hundred and ninety, and for other purposes.'

A fair construction of the language quoted is, that it was intended thereby to make applicable the provisions of said section 13, in the disposal of lands in the Cherokee Outlet, not only as to the manner of opening said lands to settlement and entry, but also as to the qualifi cations of claimants. This is the interpretation put upon said section 10 in the proclamation of the President issued in pursuance thereof, as well as in the rules and regulations prescribed by the Secretary of the Interior and incorporated in said proclamation. 17 L. D., 230, 234 and 242.

The motions for review are hereby denied.

MCDONALD ET AL. . HARTMAN ET AL.

See

Motion for re-review of departmental decision of August 2, 1898, 27 L. D., 290, denied August 21, 1899, by Acting Secretary Ryan. also 27 L. D., 580.

RIGHT OF WAY-RESERVOIR SITES-MAP OF LOCATION.

BATTLEMENT RESERVOIR COMPANY.

The provision contained in the act of March 3, 1891, requiring a map of location to be filed within twelve months after the location of a canal, ditch or reservoir, if upon surveyed lands, or within twelve months after survey, if upon unsurveyed lands, is directory, with respect to the time so fixed, and not mandatory. The case of Milwaukee, Lake Shore and Western Ry. Co., 12 L. D., 79, overruled. Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) August 21, 1899. (E. F. B.)

By your office decision of June 25, 1897, the application of the Battlement Reservoir Company for right of way or sites for five reservoirs in township 8 south, ranges 94 and 95 west, Glenwood Springs, Colorado, land district, presented under sections 18 and 21, inclusive, of the act of March 3, 1891 (26 Stat., 1095), was rejected for the reason that the map of such right of way or sites was not filed in the local land office within the period of twelve months after the location thereof, as prescribed in section 19 of said act. The sites for the reservoirs were located September 9, 1895, but the map of location was not filed in the local office until March 30, 1897.

The provision of the statute requiring the map to be filed within twelve months after the location of the canal, ditch or reservoir, if