and complicated litigation, resulting in irreparable injury to all concerned.

As a matter of proper administration and of due regard to the interests of settlers and others attempting to acquire these lands, and as a matter of due regard to the possible rights of the railroad company, it is directed that the odd numbered sections available to the company's grant within the primary limits, and those selected within the indemnity limits formerly recognized, to the east of the terminus established by the departmental ruling in question, be suspended from entry pending the judicial determination in the courts of the question in controversy. While entry of these lands will not be allowed during this suspension, yet in all cases where entries have been heretofore allowed, the parties will be permitted to complete the same by making proof thereon, but the issue of patent will be suspended until such judicial determination.

This Department will at once communicate with the Department of Justice respecting the selection of a test case, and urging that it be advanced and expedited in every reasonable way to an early conclusion. You will advise the local officers of this order.

PRE-EMPTION CLAIM-TRANSMUTATION.

HENRY WILD.

The right to transmute a pre-emption claim to a homestead entry can not be recog nized, where the applicant has perfected title to one hundred and sixty acres under the homestead law, and his pre-emption claim was not initiated until after the passage of the act of March 2, 1889.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) February 25, 1898. (J. L. McC.)

Henry Wild has applied to transmute to a homestead entry his preemption declaratory statement for the W. of the SE. of Sec. 31, T. 36 N., R. 8 E., Seattle land district, Washington.

From the records of your office it appears that the pre-emption declaratory statement embracing the land in question was filed on August 22, 1893, alleging settlement January 8, 1891; that said Wild, on January 15, 1883, at Huron, South Dakota, made commutation of his homestead entry, made November 17, 1881, for the SE. of Sec. 23, T. 118, R. 65, containing 160 acres; that patent on said entry issued February 15, 1884; and your office decision of June 29, 1896, holds that,

as Mr. Wild has perfected title to one hundred and sixty acres of land under the homestead law, and as his pre-emption claim to the land now applied for was not initiated until after the passage of the act of March 2, 1889, he is not entitled to transmute said filing to a homestead entry.

From said decison Wild has appealed.

The decision of your office was correct, and is hereby affirmed.

LEAVE OF ABSENCE-ABANDONMENT.

JACOBS v. BRIGHAM.

A leave of absence granted a homesteader under the act of March 2, 1889, protects the entry, as against a charge of abandonment, for the period of six months after the expiration of said leave.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) February 25, 1898. (J. L. McC.) Carrie E. Brigham, on April 1, 1893, made homestead entry for the SE. of Sec. 13, T. 8 S., R. 37 W., Colby land district, Kansas.

Subsequently she applied for, and was granted, leave of absence from December 27, 1894, to December 27, 1895.

On February 17, 1896, William R. Jacobs filed affidavit of contest against her entry, alleging:

That said entryman obtained leave of absence from said land on the 27th day of December, 1894, which leave of absence expired on the 27th day of December, 1895; that said entryman has not re-established her residence since the expiration of said leave of absence.

The local officers rejected the application to contest; thereupon Jacobs appealed to your office, which sustained the action of the local officers, on the ground that the leave of absence "protected the entry against contest for abandonment for six months after the expiration of such leave"-citing in support of your ruling the departmental decision in the case of Hiltner v. Wortler (18 L. D., 331).

The departmental decision above cited holds (see syllabus):

Where a leave of absence is granted a homesteader under the act of March 2, 1889, a charge of abandonment will not lie against the entry until the expiration of six months after the time for which the leave of absence was granted.

Said decision is applicable to the case now under consideration. The decision of your office in dismissing the contest was correct, and is hereby affirmed.

PREFERRED RIGHT-ADVERSE CLAIM-REASONABLE TIME.

CHARLES A. PARROTT.

Where by the decision of the General Land Office the right to enter a certain tract is recognized, but no time is fixed in said decision within which such entry shall be made, the right so allowed may be lost if not asserted within a reasonable time.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) February 25, 1898.

(L. L. B.)

The record of the appeal of Charles A. Parrott, from the rejection of his application to make homestead entry for the SW. of the SW. 1 Sec. 10, and the E.SE. and SE. NE. Sec. 9, T. 36 N., R. 2 W., Lewiston, Idaho District, shows the following facts.

December 19, 1895, the register and receiver by letter reported favorably upon the application of Lawrence Tippie to make a new entry for the E.SE. and SE. NE. Sec. 9, Tp. 36 N. R. 2 W., under the act of December 29, 1894 (28 Stat., 599) providing for a second entry, when, through certain causes therein mentioned the first entry had been forfeited.

By your office letter "C" of April 8, 1896, his application was granted and the register and receiver were directed to proceed under the circular of March 23, 1895, regulating entries under said act of December 29, 1894. In this letter no time was specified within which the entry should be made.

June 1, 1896, Charles A. Parrott, appellant herein applied to make homestead entry of the land first above described which includes the land in Tippie's application and forty acres in section 10. His applica tion was suspended by the local office to await the action of Tippie on the one hundred and twenty acres embraced in his application for second entry and which had been allowed by your letter "C." of April 8, 1896.

From this action of the local office suspending his application, Parrott appealed, his counsel stating that

the principal grievance of this appellant is that forty-four days have now e'apsed and the said Tippie has failed and neglected to file on said land or improve the

same.

July 24, 1896, your office sustained the action of the register and receiver in suspending the application of Parrott on the ground that the time within which Tippie was to make his entry "was not limited by said letter of this office." No limitation as to time when Tippie should make his entry was designated in this letter.

On the 17th day of August, 1896, counsel for Parrott filed with the register a paper designated by him as "An application for review to the Honorable Secretary of the Interior from decision of the Honorable Commissioner," in which he asks for a review of all the proceedings had in the premises appertaining to and affecting the same by the Honorable Commissioner and the register and receiver in passing upon and denying said application. This paper was transmitted by the register to your office August 18, 1896.

September 21, following, the register forwarded a report to the Commissioner of the General Land Office, showing that Tippie "has failed to make entry of the land after due notice from this office," and enclosed a registered return receipt signed by Tippie, June 19, 1896, more than ninety days previous thereto.

On the same day counsel for Parrott filed with the receiver of the local office a protest against allowing Tippie to make entry of the land until Parrott's case "is disposed of on appeal before the Honorable Secretary of the Interior," for the reason that Tippie is acting in bad faith; that he has failed to make his entry within a reasonable time; and that

the "record will disclose the fact that the said Tippie is seeking to defraud the government by speculating in this land."

Parrott's application for review was accompanied by his own affidavit substantially corroborated by that of another witness stating that he had placed improvements upon the land to the value of three hundred dollars; that he is informed and believes that Tippie is not acting in good faith, and that he is now and for some time past has been doing some work and engaged in business in Pierce City, seventy miles away from the land, and that it is not his intention to attempt to file on the land, but he is holding it for the purpose of speculation.

As appears from the foregoing, more than five months elapsed after Tippie was allowed by the Commissioner to make entry and more than ninety days elapsed after he received notice thereof when the receiver reported that he had "failed to make entry of the land."

It is true that in your office letter allowing his entry no time was designated within which the entry should be made, but it is a rule of law that when an act is agreed, or allowed, to be done and the time of performance is not specified it must be done within a reasonable time. What is a reasonable time in this case?

The time allowed for the exercise of a preference right of entry given. a successful contestant is thirty days from date of notice. There is nothing in the nature of this case that would seem to require a greater length of time than that awarded to a successful contestant, and by the custom of your office, when a time is limited at the discretion of the Commissioner, more than thirty days is rarely allowed, in which to make entry, and when a homestead claim is initiated on surveyed land by settlement, the claimant is required to make his entry within three months from date of settlement. Certainly no reason appears in this case why Tippie should be allowed more time in which to make his entry than is allowed a homesteader who claims by settlement.

The local office was open to receive Tippie's filing from April until September, and more than three months had elapsed after he had been notified of the right to enter before the protest of Parrott was filed, and still his entry papers were not presented, and for aught that appears in the record he has not yet made entry of the land.

To allow him indefinitely to withhold this land from settlement and entry, at his own caprice, would be contrary to the spirit of the laws relating to the disposal of the public lands.

Your decision of July 24th, 1896, from which this appeal was prosecuted was right in view of the facts then before you, for the record shows that at the time Parrott (the applicant for original entry) made his application, Tippie had not received notice of the allowance of his application by your office letter of April 8th, and the only notice shown to have been received by him was of date June 19, 1896, and even this notice was not before you when said decision was rendered.

By the record here presented, for the first time, however, it appears

that Tippie received notice of his right to enter June 19, 1896, more than thirty days prior to your office decision (July 24,) and, as above stated, it was made known to this Department that his entry had not been made September 21, 1896, more than three months after notice to him of its allowance.

From the record thus presented, it would appear that Tippie has not only neglected his rights but has shown a disregard of his duties and lack of good faith in connection with his claim to the land, and this Department might be justified in reversing your office decision and directing the allowance of Parrott's application to make entry for the land claimed by him.

Inasmuch, however, as Tippie has not had notice of the proceedings on the part of Parrott, this Department, in the exercise of its supervisory authority, directs that you allow Tippie twenty days after notice to show cause, if any he has, why he failed to make his entry within ninety days after receipt of notice of your office letter of April 8, 1896, and in default of such showing, you will direct his application to be rejected and that of Parrott allowed.

The decision of your office is accordingly modified.

RAILROAD LANDS-ACT OF MARCH 3, 1887.

HINKELL v. HOWLAND.

A purchase in good faith of patented railroad land, based on a contract entered into after the issuance of patent, entitles the purchaser to a patent under section 4, act of March 3, 1887, if it subsequently appears that the land was erroneously patented under the grant, and the patent is set aside.

Section 3 of said act does not contemplate the recognition of entries made, or claims initiated, after patent has issued under the grant and the land has been sold to a bona fide purchaser, as against the right of such purchaser.

Secretary Bliss to the Commissioner of the General Land Office, February (W. V.D.)

28, 1898.

(F. W. C.)

Joseph Hinkell has appealed from your office decision of June 7, 1897, in which it was held that the claim made by James L. Howland for confirmation of title under the fourth section of the act of March 3, 1887 (24 Stat., 556), to the SE of Sec. 33, T. 1 N., R. 8 W., S. B. M., Los Angeles land district, California, is superior to the claim set up by Hinkell as a settler upon said tract.

This tract is within the conflicting limits of the grants for the Atlantic and Pacific railroad and the grant for the Southern Pacific railroad, on account of its branch line, which latter grant was made by the act of March 3, 1871 (16 Stat., 573) It was patented to the Southern Pacific Railroad company April 4, 1879, on account of the grant made by the act of 1871, and was involved in the case of the United States v. Southern Pacific Railroad Company et al. (146 U. S., 570). That suit