1866 (14 Stat., 292), the order for the withdrawal on account of which was made by your office letter of March 3, 1877. On September 7, 1880, Crist C. Baer filed pre-emption declaratory statement for the SE. of said section 13, alleging settlement thereon February 15, 1880. After due notice he offered final proof in support of his claim to the entire quarter section, but this proof was rejected by the register and receiver as to the S. of said SE. † on account of the indemnity withdrawal for the benefit of the Southern Pacific Railroad Company. The local officers informed him, however, that they would accept his proof as to the N. of the SE. 4, which was not embraced in the indemnity withdrawal, if he desired to take that. after having tendered payment for the entire SE. tested against the rejection of his proof as to the S. sented to purchase the N. of said quarter section, and on December 10, 1881, patent was issued to him. August 9, 1884, the S. of the SE. of said section was selected by the railroad company in its list of that date. Baer accordingly, and formally proof the SE. 1, con March 26, 1886, Baer filed petition asking that he be allowed to purchase the S. of said quarter section, in accordance with his original application, on the proof already offered by him. In support of this petition he submitted his own affidavit in which he alleges that he settled on the land in question on the 15th of February, 1880, prior to survey, and was instrumental in having it surveyed; that he filed preemption declaratory statement for the entire SE. of said section and offered proof and payment therefor; that he agreed that final certificate should issue for the N. of the SE. 4 only at the suggestion and by the advice of the local officers; that he never consented to nor acquiesced in the rejection of his claim to the S. of said SE. 1, but employed a lawyer to appeal from such action; that he believed appeal had been duly filed, and rested on his rights in the premises until he learned that the Southern Pacific Railroad Company had sold said tract; that he has never abandoned his claim to the entire tract originally entered by him, but stands ready at any time to pay the additional money that was refused by the local officers. Your office held, by letter of February 19, 1895, that Baer was entitled to the entire tract originally applied for by him, that the company's selection of the S. of the SE. 4 should be canceled, and that upon the surrender by Baer of his patent for the N. of the SE. 1, new patent would issue to him for the entire SE. of said section 13. From this action the railroad company has appealed, assigning as error: 1. That the case is res judicata by the former action of the register and receiver, and the issue and acceptance of a patent by Mr. Baer for said N.SE. 1. 2. That it was error to hold that Mr. Baer could now pay for said S. SE. and receive a patent on preemption proof made nearly fifteen years ago. 3. That it was error to refuse to recognize and affirm the right of said company under its selection of August 9, 1884, which selection was made after a final decision in favor of the company. In the case of Holmes v. Northern Pacific Railroad Company (5 L. D., 333), Holmes made homestead entry for a tract of eighty acres in an even section, together with a tract of eighty acres in an adjoining odd section. This entry was canceled by decision of the Department in so far as it covered the land in the odd section, being in conflict with a railroad grant, and Holmes received patent for the eighty acres in the even section. Subsequently, he filed petition asking to have his entry reinstated as to the land in the odd section, which had been canceled as aforesaid, claiming that said tract was excepted from the grant to the railroad company by the homestead entry of one Miller that existed at the date of withdrawal, and which was canceled after withdrawal and prior to Holmes' entry. The railroad company opposed this petition on the grounds that the question as to whether Holmes or the company had the better right to this tract was res judicata; that Holmes, by his acceptance of patent for eighty acres had shown his acquiescence in the decision of the Department; and that he had exhausted his homestead right. On investigation it was found that the allegations contained in Holmes' petition were true, and, further, that he had remained in possession of said tract and continued to improve it up to the date of his petition. The Department thereupon held that said tract was excepted from the grant to the company and the question of reinstatement was one solely between Holmes and the government; that his entry had been erroneously canceled as to said tract and it was accordingly directed that upon his surrender of the patent already held by him that patent issue to him for the entire tract embraced in his original entry, it appearing that his final proof covered the entire one hundred and sixty acres. The case of Michael Donovan (8 L. D., 382,) is even more directly in point, being almost exactly parallel with the present case. In 1866, certain lands within the indemnity limits of the Southern Minnesota Railroad were withdrawn on account of the grant to said railroad company. At the date of withdrawal the E. of the NW. 4 of a certain odd section within said indemnity limits, together with an adjoining eighty acre tract in an even section, was embraced in the homestead entry of one Lyman Barkley, which was canceled January 14, 1868. On June 6, 1868, Michael Donovan presented his homestead application for all of the land embraced in the former entry of Barkley, and was informed by the local officers that he would be allowed to enter the eighty acres in the even section, but would not be allowed to enter the eighty acres in the odd section, as the same was railroad land and not subject to entry. He thereupon made entry of the land in the even section, and on July 1, 1875, received patent therefor. Subsequently to the application of Donovan, the railroad company selected said tract in the odd section, and on March 25, 1871, it was certified to the State for the benefit of the railroad company. In 1888, Donovan filed petition asking that proceedings be instituted under the act of March 3, 1887 (24 Stat., 556), to restore to the United States title to the eighty acre tract in the odd section aforesaid, and that he be permitted to perfect entry therefor according to his original application. The third section of said act of March 3, 1887, reads as follows: That if, in the adjustment of said grants, it shall appear that the homestead or preemption entry of any bona fide settler has been erroneously canceled on account of any railroad grant or the withdrawal of public lands from market, such settler upon application shall be re-instated in all his rights and allowed to perfect his entry by complying with the public land laws: Provided, That he has not located another claim or made an entry in lieu of the one so erroneously canceled: And provided also, That he did not voluntarily abandon said original entry: And provided further, That if any of said settlers do not renew their application to be re-instated within a reasonable time, to be fixed by the Secretary of the Interior, then all such unclaimed lands shall be disposed of under the public land laws, with priority of right given to bona fide purchasers of said unclaimed lands, if any, and if there be no such purchasers, then to bona fide settlers residing thereon. The Department held that: It was undoubtedly the intention of the act to protect the bona fide settler in all his rights as against the railroad company, and, therefore, the object and purpose of section three, above quoted, was not only to correct all decisions made by the Department or the General Land Office, erroneously canceling the homestead or pre-emption entry of any bona fide settler to lands within railroad grants, whether said lands had been certified to the company or not, but, also, to re-instate the settler in all his rights to lands upon which he may have settled, and for which his application to file or enter may have been rejected by the local office, provided it be shown that said application to file or enter was erroneously rejected, and that the settler had not located another claim or made entry in lieu of the land for which his application to file or enter had been so erroneously rejected. In such case, the Department is re-invested with jurisdiction to re-instate the settler in all his rights, and allow him to perfect his entry or filing by complying with the public land laws, if application to be re-instated in such rights be made within a reasonable time. It was accordingly directed that demand be made upon the railroad company for reconveyance of the land, and in case the company refused to reconvey, the matter was to be submitted to the Attorney General for the purpose of instituting proceedings against the company to have said certification canceled, as provided for by the second section of said act of March 3, 1887, Donovan's application being suspended in the meantime. In the present case, it is clear that when Baer filed his pre-emption declaratory statement for the SE. of section 13, the whole of said tract was open public land, subject to entry under the pre-emption. or homestead laws. (Titamore v. Southern Pacific R. R. Company, 19 L. D., 249.) His filing was erroneously canceled, therefore, as to the S. of said SE. 4. He comes fully within the remedial provisions of Ttv the act of March 3, 1887, and is entitled to a restoration of his original rights. Your office decision is accordingly affirmed, and upon the surrender by Baer of the patent now held by him for the N. of the SE. of said section 13, and payment by him for the S. of the SE. of said section, you will cancel the railroad company's selection, and issue patent to Baer for the entire SE. 4, it appearing that the proof submitted by him covered the entire one hundred and sixty acres. PRACTICE-PROCEEDINGS ON REPORT OF SPECIAL AGENT. EVA MAUD FERGUSON. Where an entry is held for cancellation on the report of a special agent, subject to the right of the entryman to apply for a hearing, and the entryman declines to ask for such hearing but appeals, such action on his part will be taken as an admission of the facts as found below, on which final judgment may be properly rendered by the Department. Acting Secretary Reynolds to the Commissioner of the General Land Office, On May 27, 1893, Eva Maud Ferguson made homestead entry for said land, and on August 8, 1894, commuted the same to cash entry. On November 10, 1894, upon the report of a special agent, your office held said entry for cancellation, at the same time advising claimant that she would be allowed sixty days in which to apply for a hearing to show cause why her entry should be sustained. Claimant neglected to apply for a hearing, but on January 5, 1895, appealed to this Department from your said office decision, claiming that said decision allowed her sixty days within which either to apply for a hearing before the local office, or to appeal to this Department. By your office letter of January 29, 1895, said appeal was denied, on the ground that under the rules of practice your office decision of November 10, 1894, was an interlocutory order from which an appeal does not lie. It was also denied that there was anything in the order of November 10, 1894, to warrant the statement that claimant would be allowed to appeal from said order to this Department. Claimant, however, was granted another sixty days within which to apply for a hearing before the local office in accordance with the terms of said order. Upon the refusal of claimant to take advantage of the second opportunity afforded her to submit testimony in support of her claim, your office by letter of March 20, 1895, canceled her entry, and the local office was instructed to hold the land in question subject to entry by the first legal applicant. Claimant has again appealed to this Department from your said office decisions. Acting under the rules of practice, your office treated its decision of November 10, 1894, as an interlocutory order, and denied appeal therefrom. In the recent case of Patrick Fox (20 L. D., 468) the Department held however that: Where an entry is held for cancellation on the report of a special agent, subject to the right of the entryman to apply for a hearing to show cause why his entry should be sustained, the entryman may decline to apply for a hearing, and appeal to the Department for a consideration of his case as it stands on the record. 10332-VOL 22-28 In view of this authority, and in view of the fact that claimant elected to treat your office decision of November 10, 1894, as a final judgment, this Department under its supervisory authority may properly render decision on the record submitted. The special agent in his report alleged that claimant never established residence on the land in question, was never on it but twice, and that she made the entry at the instance and in the interest of another person. In the case of United States v. Northern Pacific Coal Company (16 L. D., 259), it was held that a refusal and neglect to apply for a hearing, under an order of your office holding an entry for cancellation on the report of a special agent, constitutes an admission of the truthfulness of the charges on which said order is predicated. Accompanying claimant's appeal to this Department are several affidavits filed for the purpose of refuting the charges contained in the special agent's report. But there is nothing in said affidavits to show that claimant's residence, if established, has been maintained, and no refutation whatever of the charge that the entry was made for speculative purposes. In the case of W. H. H. Findley (6 L. D., 777) it was held (syllabus): If an entry is held for cancellation on the report of a special agent charging sufficient cause therefor, and the entryman, after the notice, fails to apply for a bearing, such failure is taken as a confession of the charge, and a waiver of any claims of to the land; and if the entry is finally canceled, the entryman has no just ground for complaint. Your office proceedings in this case have been regular, and the decision of March 20, 1895, canceling claimant's entry is hereby affirmed. TOWNSITE v. TRAUGH ET AL. Motion for review of departmental decision of December 18, 1895, 21 L. D., 496, and for rehearing in the case, granted by Acting Secretary Reynolds, April 6, 1896, PRACTICE-APPEAL-ATTORNEY. ELIJAH D. STEEN. An appeal taken by an attorney who has not been admitted to practice before the Department will be dismissed, if after due notice to him, and to the appellant, he fails to take the requisite steps to secure recognition. Acting Secretary Reynolds to the Commissioner of the General Land Office, (G. C. R.) April 6, 1896. With your office letter of March 12, 1896, you transmit the papers in the case of ex parte Elijah D. Steen, including an appeal filed in the local office at Valentine, Nebraska, July 23, 1896, from your office deci |