of this office in such a case, he may still further prosecute an appeal to the Secretary of the Interior upon such terms as shall be prescribed in each individual case. Proper evidence of notice should be taken by said board in all cases, and a record of all testimony submitted to them should be kept. If an appeal is taken, the same, together with the decision of the board and all papers and evidence affecting the claims of the appellant, should be forwarded direct to this office. Should no appeal be taken, the report of the board should be filed with the United States marshal, ex officio surveyor-general, for his use and guidance, as hereinafter directed.

It shall also be the official duty of said board to approximately fix and determine the metes and bounds of all lots and blocks in any such town site now occupied by the Government for school or other public purposes, and of all unclaimed lots or blocks, which, in their judgment, should be reserved for school or any other purpose; and to make report of such investigations to the ex officio surveyor-general, for his use and guidance, as also hereinafter directed, should no appeal be filed therefrom. Should an appeal from the action or decision of such board be filed in any case, no further action will be taken by the ex officio surveyor-general until the matter has been finally decided by this office or the Department. But, should no appeal be filed, the ex officio surveyor-general will proceed to direct the survey of the outboundaries of the town site to be made, the same in all respects as above directed in the survey of land for trade and manufacturing purposes, except that he will accept the report and recommendations made by said board and exclude and except, by metes and bounds, from the land so survey ed, all the lots and blocks for any purpose recommended to be accepted by said board. The execution of the survey of the lots and blocks thus excepted, shall be made a part of the duties of the surveyor who is deputized to survey the exterior lines of the town site; the survey of such lots or blocks shall be connected by course and distance with a corner of the town-site survey, and also fully described in the field-notes of said survey and protracted upon the plat of said town site; and the limits of such lots or blocks will be permanently marked upon the ground in such manner as the ex officio surveyor-general shall direct. In forwarding the plat and field-notes of the survey of any town site for the approval of this office, the ex officio surveyor-general will also forward any report that said board may have filed with him, for approval in like manner.

Secretary Smith to the Commissioner of the General Land Office, January 29, 1896.

You are hereby instructed to transmit for disposition as current work all cases falling within the several classes specified herein:

1. All appeals allowed from orders granting or refusing hearings. 2. Appeals from the denial of the right of contest, or involving a matter of practice, where the appeal is from action taken prior to the hearing in a contest case.

3. Appeals involving a claimed right of way, either under the act of March 3, 1875, or March 3, 1891, granting right of way for railroads, canals, and reservoirs.

4. All cases where the matter in controversy has before been the subject of decision by the Secretary of the Interior and is again before the Department upon proceedings had in accordance with directions given in the prior decision, or where the same general charge is made against an entry that was adjudicated in a prior decision involving said entry. 5. Matters involving the adjustment of railroad grants arising under the act of March 3, 1887.

Nothing herein shall be taken as extending, or limiting, the right of appeal from your office as now recognized, the sole purpose of these directions being to expedite the disposition of certain work before the Department.

Please give due publicity to these instructions.

OKLAHOMA LANDS-TOWN LOT-POSSESSION.

YOUNG . SEVERY ET AL.

One who enters the Territory in the prosecution of his business (traveling salesman). during the inhibited period, and does not seek to acquire an advantage thereby over other applicants for land, and in fact secures no such advantage, is not disqualified to acquire title to land in said Territory.

The possession of a town lot by a tenant is the possession of his lessor, and entitles the assignee of such lessor to a deed.

Secretary Smith to the Commissioner of the General Land Office, February (J. I. H.)

10, 1896.

(C. W. P.)

The property involved herein is lots 14, 15, 16, 17, and 18, block 83, in El Reno, Oklahoma Territory, and the case comes before the Department on the appeal of C. L. Severy, from the decision of your office of April 29, 1895.

Two members of the townsite board found for Severy, and one member held that

Eddie C. Young and C. L. Severy, assignee of S. W. Sawyer, as contestee, having each failed to establish a legal claim of occupancy of lots 14, 15, 16, 17, and 18, in block 83, they cannot be considered as beneficiaries of the trust, and the said lots should have been ordered reported to the Secretary of the Interior for sale for the benefit of the municipal government of the city of El Reno, or for such other disposition under section 4 of the act of May 14, 1890, as the Secretary may direct. Eddie C. Young appealed. Your office reversed the judgement of the townsite board, and awarded the lots to Eddie C. Young. All the evidence necessary to recite is as follows:

In April, 1890, S. W. Sawyer purchased the lots in controversy from the Rock Island Railroad Company, and received certificates or contracts from the Oklahoma Homestead and Town Company. Immediately thereafter he placed valuable and permanent improvements on

the lots, and occupied them as a lumber yard until about October 1, 1891. On August 4, 1891, John A. Foreman and wife executed and delivered to Sawyer a warranty deed for the lots. In October, 1891, Sawyer leased the lots, with the improvements thereon, to Seawell, Waggoner and Benton, and sold to them his stock of lumber, they to continue in business upon the lots under the lease. A few days thereafter this firm was merged into the E. C. Young Lumber Company, of which Eddie C. Young was a member, who, while in possession of said lots under the lease, appeared before the board as an applicant for title, on the ground of possession and occupancy.

Young, or his firm, appears to have placed some slight improvements on the lots, while in possession under the lease from Sawyer.

The townsite of El Reno was entered on May 23, 1892.

In July, 1892, Sawyer made an assignment of these lots, with other property, to C. L. Severy, for the benefit of his creditors. Severy claimed deed under this assignment.

Sawyer appears to have been in Oklahoma Territory during the prohibited period.

Asa Jones, for Young, swore that he met him in the forepart of April, 1889, at Oklahoma Station, and that Sawyer told him that he was an advance agent for a townsite company, whose headquarters were at Arkansas City; that Dr. Rogers, who represented the same company, was with him; that he (Jones) wrote a contract for him and Rogers for land adjoining what was supposed would be Oklahoma City; that the contract was with George Severy and William Stevens. Henry S. Summers testified that he saw Sawyer at Oklahoma Station in March, 1889, in company with Dr. Rogers, and that he supposed they were looking for a townsite; that he understood Sawyer was there in the interest of some lumber business; that he did not know of any scheme or proposition of Sawyer or Rogers to obtain control of lands for townsite purposes. S. H. Radebaugh testified that he saw Sawyer at Oklahoma Station in the forepart of March, 1889; that he stayed at his (Radebaugh's) hotel twice; that Dr. Rogers was with him; that Dr. Rogers said he was looking up townsites, and to the best of his recol lection Sawyer was a lumber man, or claimed to be one. T. M. Echelberger testified that he met Sawyer at Oklahoma Station in the forepart of March, 1889; that Sawyer said "we" were looking for a place to locate a townsite. E. C. Hamil testified that he saw Sawyer at Oklahoma Station, and at Guthrie a week or so before the opening; he was there with Dr. Rogers trying to get land to start a town. George Robinson testified that he saw Sawyer at Oklahoma Station a few days before the opening. Joseph Blackburn testified that he saw Sawyer at Oklahoma Station in the forepart of March, 1889; that Sawyer told him he was a lumber man from Lawrence, Kansas, he believes, and was in the lumber business at that place. Frank Wolf testified, that he saw Sawyer in Oklahoma Territory during the prohibited period.

Sawyer, in his testimony, admits that he was in the Oklahoma Territory at Oklahoma Station and at Guthrie, in March, 1889, on his way to Texas, in furtherance of his business of buying and selling lumber, and that he was looking at the country. He swore that he tried to sell lumber at Oklahoma Station and at Guthrie while there, but was unsuccessful, that "he was not in luck." He said he was also at Purcell. But he denied that he selected or attempted to select land for townsite or other purposes. There is no evidence that Sawyer ever made any examination of these lots, or had been upon them or within twenty-five miles of them previous to the opening. He bought them. from the Rock Island Railroad Company in April, 1890,-a year after the opening.

With the exception of the testimony of Asa Jones, the evidence that Sawyer was looking for land for a townsite or for any other purpose is of the most vague and inconclusive character. And there is not a tittle of evidence that he used any information he may have acquired during his presence in Oklahoma Territory to his own advantage, or that he obtained any advantage over other persons seeking land in the Territory. Was he then disqualified to acquire title to land in the Territory? I think not.

It is said in the case of the Townsite of Kingfisher v. Wood (11 L. D., 330):

I do not think it was the intention of Congress, that a man who happened to be legally in the Territory, but did not use his position to his own advantage, or to the disadvantage of his fellow citizens, should be forever prohibited from acquiring any rights in the territory. [It is then said] Each case must be determined on its own merits and evidence; but it may be said generally that the presence in the territory before the opening, under the proclamation, and the actual settlement and entry at the land office must be so widely and obviously separated in every detail as to render it impossible to reasonably conclude that the one was the result of the other, or in any wise dependent upon it.

In the recent case of Curnutt v. Jones (21 L. D., 40), it is said:

If the broad doctrine of Laughlin v. Martin, supra, that one who knowingly entered the territory prior to the hour of opening becomes by such entry disqualified as a homesteader, is to be rigidly followed, there is no escape from the conclusion that James E. Jones, the defendant in the case at bar, is within the inhibition, and is, therefore, precluded as an entryman.

I am inclined, however, to the less procrustean and more liberal view that the circumstances of each case, albeit there may have been a premature entry, should control its decision.

And the passage last above cited from the case of the Townsite of Kingfisher r. Wood is quoted with approval, and it is said:

That is but a different statement of the doctrine for a long time adhered to that one is disqualified who gains an advantage by entering the territory himself, or through an agent, or who enters for the purpose of gaining an advantage though none may result therefrom, the cases all appearing to turn upon the question of advantage, vel non.

In the case of Sullivan v. McPeek (17 L. D., 402), the defendant was in the Territory during the first half of the month of March, 1889, and

while he was outside at the moment of the opening, the testimony disclosed circumstances which justified the inference that the land subsequently entered had been selected by himself or an agent, and the route to the same adopted. It was concluded, therefore, that he had taken advantage of his previous sojourn in the Territory, and was, accordingly, held disqualified.

In Dean v. Simmons (17 L. D., 526) the evidence showed that Simmons "was within the Territory of Oklahoma in the month of March, and the forepart of April, 1889, and engaged in examining and selecting tracts of land" suitable for homesteads. It appeared, however, that when he had been made aware of the provisions of the act opening the lands to settlement, and of the pursuant executive proclamation, he went outside the Territory and there remained until 12 o'clock, noon, April 22, 1889; but it also appeared that the land settled on by him, and then in contest was the identical land or in the immediate vicinity thereof, upon which he had previously encamped. Upon these facts, though Simmons' good faith was not impugned, he was held to have been advantaged by his unlawful presence in the Territory, and his entry was, therefore, canceled.

These cases are both cited in the case of Curnutt v. Jones, without criticism, and, I think, were correctly decided.

It admits of no doubt that Eddie C. Young and his copartners were occupying the lots as tenants of Sawyer, at the time of the townsite entry; and their possession was the possession of Sawyer, their lessor. (Ricks r. Reed, 19 Cal., 531; Rector v. Gibbon, 11 U. S. R., 276; Willison v. Watkins, 3 Peters, 43.)

I am, therefore, of opinion that C. L. Severy, assignee of S. W. Sawyer, is entitled to deed, and your office decision is reversed.

HOMESTEAD-FINAL PROOF-CITIZENSHIP-WIDOW.

VIDAL v. BENNIS.

There is no statutory authority under which an administrator may submit final homestead proof.

A homestead entry made by one who is not a citizen of the United States, and has not at such time declared his intention of becoming a citizen, is not void, but voidable, and his subsequent declaration of intention, made prior to the intervention of an adverse claim, cures the defect.

As between two claimants, each asserting the right to perfect a homestead entry as the widow of a deceased homesteader, the Department, in the absence of a judicial determination of the legal status of the parties, will recognize the one who made her home on the land with the entryman, and who was married to him in the belief that his former wife was not then living.

Secretary Smith to the Commissioner of the General Land Office, February (J. I. H.) (E. M. R.)

10, 1896.

This case involves the S. of the SE. and the S. of SW. of section 25, T. 17 S., R. 1 W., Los Angeles land district, California.