proceedings for procuring a patent to a mining claim, it was certainly not intended to dispense with the requirements of section 2325, whereby the existence of an adverse claim is made known to the land department, and due protection is accorded to adverse rights.

The views so expressed are decisive against the contention made respecting the meaning and intent of the section 2332.

The Puzzle claimant also asserts title to the land in controversy as grantee of the townsite of Black Hawk, and it is urged in the motion for review, in effect, that the title to the land passed out of the United States under the townsite patent, notwithstanding the same may have been known to be valuable mineral land at the date of the townsite entry, as held in the decision complained of, it being insisted that the statutory exclusion in such cases is only of "known mines."

In the decisions of the supreme court, in the cases of Steel v. Smelt-. ing Co. (106 U. S., 447, 449-50); Deffeback v. Hawke (115 U. S., 392, 404); Davis' Administrator v. Weibold (139 U. S., 507, 524); and Dower v. Richards (151 U. S., 658, 663); all of which cases involved controversies between parties claiming public lands under the townsite and mining laws, respectively, the court repeatedly used the terms "lands. known to be valuable for minerals," or "for mineral deposits," and "known mines," or "land containing known mines," as equivalent in meaning, and held, in effect, that all such lands and mines were excluded from entry and patent under the townsite laws, and that no title to such lands could pass thereunder, if they were known to be of that character when the townsite entry was made.

In the case of the Pacific Slope Lode v. Butte Townsite (25 L. D., 518), and in the case of the Gregory Lode Claim (26 L. D., 144), which involved controversies between claimants for the same land under the townsite and mining laws, respectively, it was held by the Department that, the issuance of townsite patent for land known at the date of the townsite entry to contain a valuable lode claim, does not pass title to such claim, but leaves it in the United States, subject to the jurisdiction of the land department. These authorities furnish a sufficient answer to the contention of the Puzzle claimants upon this branch of the case.

The motion for review seeks again to raise the question of the validity of the Parole and Morning Star locations upon the charge of want of discovery to support them. Nothing new is presented on this point and no reason appears for doubting the conclusions reached in the former decision in respect thereto.

The Department is satisfied that the decision complained of is right and that the same can work no injustice to the Puzzle claimants. The motion for review is accordingly denied.

Since the filing of the said motion, there has been filed by said Harris, for herself as executrix as aforesaid, and Kate T. Wylie who, it is now alleged, owns an interest in the Puzzle claim, a further protest 2967-VOL 29-28

against the issuance of patent to the Parole and Morning Star claims. This protest alleges nothing new, except that, "on November 10, 1887, William Brady conveyed all his interest in the ground in conflict between the Parole and Puzzle lodes to the Puzzle Mining Company, the then nominal owner of the Puzzle lode claim," and that, "Tinsley, the subsequent mortgagee of Brady, has had at all times full knowledge of their deed." This new allegation furnishes no objection to the entry. If true, it only shows that after the application for patent was filed the Puzzle Mining Company became a co-tenant with Brady as to the Parole claim. It is not shown or even alleged what became of the interest so conveyed. If it was subsequently acquired by the present protestants the issue of patent as applied for will not injuriously affect them, as the patentee or patentees will hold the title in trust for them to the extent of their interest. Turner v. Sawyer (150 U. S., 578). If they have not acquired the interest conveyed to the Puzzle Mining Company they are strangers to the title and it can make no difference to them in whose name patent issues. The present protest is, therefore, dismissed.

RAILROAD LANDS-BONA FIDE PURCHASER.

HASTINGS AND DAKOTA RY. Co.

A purchaser from a railroad company of land certified on account of its indemnity grant, but in the actual possession of a settler, and embraced in his pending application to enter at the time of such certification, takes with notice of such possession and of the rights of the settler in the premises.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) January 22, 1900.

(F. W. C.)

With your office letter of the 5th instant was transmitted the answer filed on behalf of the Hastings and Dakota Railway Company to the rule issued by your office on November 10, 1899, requiring said company to show cause why proceedings should not be instituted in accordance with the provisions of the act of March 3, 1887 (24 Stat., 556), to restore to the United States the title to the NW. of Sec. 21, T. 123 N., R. 44 W., Marshall land district, Minnesota, erroneously certified to the State for the benefit of said company in list approved March 29, 1897. This tract is within the indemnity limits of the grant for said company, and was included in its list of selections filed October 29, 1891. On December 12, 1891, Herbert J. Northcott tendered at the local office a homestead application for this land. The same was not accompanied by any allegation of settlement prior to the tender of said application, and was therefore rejected by the local officers for conflict with the previous selection made on account of the railroad grant. This action was affirmed by your office decision of September 11, 1894, from which Northcott did not appeal, because, on April 21, 1894, he had ten

dered another application to make homestead entry of this land, accompanying the same by his affidavit, duly corroborated, to the effect that he had established residence upon the land in the month of May, 1890, and had continued to reside thereon, making the same his home, and that he had improvements upon the land to the value of $2,000, consisting of a house and outbuildings, a good well, and one hundred acres of breaking. This second application, together with the accompanying showing, was forwarded to your office, and was pending, undisposed of, at the time of the approval and certification of the lands on account of the railroad grant. It was because of this fact that your office held that said certification was erroneous and rule was laid upon the company to show cause, as before stated, on November 10, 1899.

In response to the rule the affidavit of the land commissioner of said company is furnished, to the effect that this tract was sold on August 25, 1898, and conveyed by a deed of that date to William H. Kelly, for the consideration of one dollar and services rendered, which services. had been at that time rendered to the company by said Kelly. It is submitted that the title to the tract is confirmed in the hands of the grantee from the railway company under the provisions of the act of March 2, 1896 (29 Stat., 42). Said act extends the time for the bringing of suit by the United States to vacate and annul any patents errroneously issued under a railroad or wagon-road grant, providing that

no patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed.

If, as appears from the showing filed in support of Northcott's application, which was pending, undisposed of, at the time of the certification of this land on account of the railroad grant, he was in the actual possession of this land, the alleged purchase by Kelly was with a notice of such possession and of the rights of Northcott in the premises.

But for the improvident action of your office in submitting for the approval of this Department a list of lands on account of this grant without notice of the pending application by Northcott, upon the estab lishment of his claim to the land, as alleged, his right would, under the repeated decisions of this Department, have been held to be superior to that of the company under its selection. (Vandeberg v. Hastings and Dakota Ry. Co. et al., 26 L. D., 390.)

In the case of Winona and St. Peter R. R. Co. v. United States (165 U. S., 483), considering the act of March 3, 1887, and the act of March 2, 1896, it was held by the court, in reference to the claim of the Winona and St. Peter Land Company, as purchaser of the lands therein involved from the Winona and St. Peter Railroad Company, that

Such a purchaser can not claim to be one in good faith if he has notice of facts outside the records of the land department disclosing a prior right. The protection goes only to matters anterior to the certification and patent. The statute was not intended to cut off the rights of parties continuing after the certification, and of

which at the time of his purchase the purchaser had notice. Only the purely technical claims of the government were waived.

Here the claimant Marshall was in possession; had been in possession for twenty years; the land was not wild and vacant land. His possession was under a recorded claim of title, and under such a claim as forbade the issue of a patent. In other words, the land was erroneously certified. There was, and continued to be, an individual claimant for the land. There was no cancellation on the records of the land department of his claim. He continued in possession, and was in possession not only when the certification was made but when the land company purchased. Its purchase, therefore, was not made in good faith, and there is nothing disclosed to stay the mandate of the statute for the adjustment of the land grant, and a suit to set aside the certificate erroneously issued.

A hearing should therefore be ordered, with notice to the purchaser from the railway company, to determine the facts in this case, to the end that suit may be instituted for the recovery of the title to this tract, if the allegations made in the affidavit filed in support of Northcott's application are sustained at such hearing.

The papers are herewith returned for action in accordance with the direction herein given, and as the time within which suit can be brought is limited, the disposition of the matter should be facilitated as far as possible.

RAILROAD LANDS-ACT OF SEPTEMBER 29, 1890.

ANGUS CAMPBELL.

The time within which the right of purchase under section 3, act of September 29, 1890, and the acts amendatory thereof, may be exercised is fixed by statute and can not be extended by the Land Department.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V.D.) January 25, 1900.

(F. W. C.)

An appeal has been filed on behalf of Angus Campbell from your office decision of March 15, 1899, affirming the action of the local officers in rejecting his application to purchase the SW. 4 of Sec. 3, T. 3 N., R. 13 E., Vancouver land district, Washington, as part of the Northern Pacific railroad grant forfeited by the act of September 29, 1890 (26 Stat., 496).

The third section of the forfeiture act provides that in all cases where persons, being citizens of the United States, or who have declared their intention to become such, in accordance with the naturalization laws of the United States, are in possession of any of the lands affected by any such grant, and hereby resumed by and restored to the United States, under deed, written contract with, or license from the State or corporation to which such grant was made, or its assignees, executed prior to January first, eighteen hundred and eighty-eight, or where persons may have settled said lands with bona fide intent to secure title thereto by purchase from the State or corporation, when earned

by compliance with the conditions or requirements of the granting acts of Congress, they shall be entitled to purchase the same from the United States in quantities not exceeding three hundred and twenty acres to any one such person, at the rate of one dollar and twenty-five cents per acre, at any time within two years from the passage of this act, and on making said payment to receive patents therefor.

In accordance with published notice Campbell made proof in support of an application to purchase this land under said section three on January 26, 1893, before a United States circuit court commissioner. Whether this proof was at that time presented at the local office accompanied by a tender of payment, and, if so, what action, if any, was taken thereon, does not appear from the record submitted. It accompanied an application to purchase filed by Campbell on January 6, 1899, when tender of the required amount of purchase money was made.

This proof shows that Campbell was not a resident upon the land applied for, and that his improvements thereon consisted of fencing and a small house. No portion of the land was broken or cultivated, it being useful only as pasture land. He did not purchase the land of the railroad company, nor is it alleged that he had any contract or license from said company, but his claim rests upon an alleged settlement of the land with an intention to purchase it from the railroad company. As he was not an actual resident upon the land, he was not entitled to purchase under the provisions of section three of said forfeiture act as originally enacted. (James C. Daly, 17 L. D., 498, on review, 18 L. D., 571; Shafer v. Butler, 19 L. D., 486.)

By the act of January 23, 1896 (29 Stat., 4), said section three of the forfeiture act was amended by adding thereto the following:

Provided, That actual residence upon the lands by persons claiming the right to purchase the same shall not be required where such lands have been fenced, cultivated, or otherwise improved by such claimants, and such persons shall be permitted to purchase two or more tracts of such lands by legal subdivisions, whether contig. uous or not, but not exceeding three hundred and twenty acres in the aggregate.

Under this amendment he became entitled to purchase this land within the time specified in the act of 1890 and amendments thereto. By the original act the purchase was permitted to be made "at any time within two years from the passage of this act." Said period has been extended from time to time, the last extension being made by the act of February 18, 1897 (29 Stat., 535), which amended the act of September 29, 1890,

so as to extend the time within which persons entitled to purchase lands forfeited by said act shall be permitted to purchase the same, in the quantities and upon the terms provided in said section and the amendments thereto, at any time prior to January first, eighteen hundred and ninety-nine.

On January 7, 1899, the local officers rejected the application to purchase, "because the time in which such entries could be made expired December 31, 1898."