seems to me that there is no objection to the fact that in requesting your approval certified copies are presented instead of the original deeds. The loss of the Jeffries deed and the refusal of the custodian of the O'Connor deed to part with the immediate possession thereof is sufficient reason for the non-production of the originals. In the absence of the intervening approved deed to Isaac, there is no doubt that a present approval of the Whitefeather deeds would relate back to the date thereof and give effect and validity thereto, from the time of their execution. (Pickens v. Lomax, 145 U. S., 310; See also George Big Knife, 13 L. D., 511.) No statutory provision will in any event be violated by their present approval, but whether an approval at this time can relate back to the date of the Nancy Whitefeather deeds as against any title which may have been obtained under the intervening approved Isaac deed, is subject to question. If the date of a present approval is clearly shown therein so that upon contrasting it with the approval of the Isaac deed the precedence of the former in the order of time will be apparent, no injury or injustice will be done to Isaac or anyone claiming under him. If, by reason of the approval of the deed to Isaac, you are without jurisdiction and authority to approve the Whitefeather conveyances, that want of authority and the consequent invalidity of a present approval will be apparent and no one can be misled. In this connection it is to be observed that the approval of the Isaac deed is shown not alone by the public records of the Indian Office, but also by the public record of conveyances in the county in which the lands are situate.

Without your approval it may be that the holders of the title under the Nancy Whitefeather deeds will not be able to present to the courts in the pending, or other suits, any equities of their own claim or any infirmity in the Isaac deed growing out of the record state of the title at that time and the existing and long-continued possession thereunder, or growing out of any false representations which may have been made on behalf of Isaac in procuring the approval of his deed.

If the conveyances by Nancy Whitefeather to Brooking Jeffries and John O'Connor are deemed by you to have been of such a character as to merit your approval, in the absence of any intervening approved conveyance, I believe that, in the light of the statement and recommendation of the Indian Office, you will be justified in approving the conveyances shown by the two certified copies, casting upon the applicants the duty of establishing, if they can, that under the facts surrounding this transaction as they may be developed by judicial inquiry, a present approval will relate back to the date of the conveyance approved so as to give it full effect as of that time. Approved, January 13, 1898.

C. N. BLISS, Secretary.

RAILROAD GRANT-SETTLEMENT RIGHTS-ESTOPPEL.

WIGHT v. CENTRAL PACIFIC R. R. Co.

A pre-emptor who has made an affidavit in support of a railroad selection, to the effect that he was not residing upon the tract embraced within said selection, at the date when the company's right attached, is estopped from setting up a contrary state of facts, as against the heirs of one who subsequently purchased said tract from the company.

A pre-emption claim, based on alleged settlement prior to definite location, and filing made prior to notice of withdrawal, can not be held to defeat the operation of a railroad grant, where the fact of settlement is not clearly established, and the pre-emptor has failed to show due maintenance of his claim after his filing, and it further appears that the land involved has been, for a long term of years, in the adverse possession of one against whom the pre-emptor is estopped from setting up his alleged settlement right.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.) 13, 1898.

(F. W. C.) Lyman Wight has appealed from your office decision of June 13, 1895, in which it is held that lots 1 and 2 and the NE. of the SW. (should be NE. † of NW. †) of Sec. 29, T. 10 N., R. 2 W., Salt Lake City land district, Utah, inured to the Central Pacific Railroad Company under its grant made by the act of July 1, 1862 (12 Stat., 489), and July 2, 1864 (13 Stat., 356).

The map showing the line of definite location of the company's road opposite the tract in question was filed on October 20, 1868, at which date the rights under its grant attached.

A land office in the Territory of Utah was not opened until March 9, 1869, and the order of withdrawal on account of the grant to the Central Pacific Railroad Company was not made until May 15, 1869; sothat on April 3, 1869, Lyman Wight was permitted to file pre-emption declaratory statement for this land, in which statement settlement was alleged March 13, 1869.

The company included this tract in its list No. 3, filed November 4, 1884, which list was accompanied by an affidavit made by Wight on the 6th of October, 1883, in which he swears

that he was not residing upon said land at the time the rights of the Central Pacific Railroad Company attached to the same and that he has never resided thereon or any part thereof.

This list stood unchallenged until on December 19, 1893, Lyman Wight filed a corroborated affidavit, in which he alleged that at the time the line of the Central Pacific Railroad was definitely fixed " one Wight was in the open, peaceable, exclusive and notorious, and adverse possession" of the tract involved, as to all the world except the United States, the land at that time being "occupied, appropriated, interdicted and reserved land and was not of the character contemplated by the grant to the aforesaid company."

This affidavit was forwarded to your office, and by letter "F" of January 10, 1894, a hearing was ordered to afford Wight an opportunity to prove the allegations of his affidavit. Hearing was called for March 20, 1894.

On February 7, 1894, Mrs. Mary L. House, widow of Hiram House, filed a petition asking to be allowed to intervene-basing her application upon an affidavit alleging ownership and possession of the tract involved since March 29, 1888, through a deed of conveyance from the Central Pacific Railroad Company.

Hearing was duly held, after several continuances, and upon the testimony adduced the register and receiver were of the opinion that no such claim was shown to exist, to the tract in controversy, at the date of the definite location of the Central Pacific Railroad, as would withdraw the same from the operation of the grant to said company, and therefore held that the land passed to the railroad company; in which opinion your office concurred; and Wight has appealed to this Department.

From a review of the testimony it appears that the present claimant, together with his father, Louis Wight, now deceased, made a joint settlement prior to the filing of the map of definite location and to the extension of the operation of the homestead and pre-emption laws to the lands in this Territory. Under the Territorial law the present claimant in 1868 applied to the county surveyor, who made a survey of the land included in this joint occupation. The claimant was at this time a duly qualified pre-emptor and undoubtedly intended to claim laud in his own right in addition to that to be claimed by his father. He and his father occupied the same house and used the same stable and other buildings jointly, and cultivated the greater part of the tract, which, according to the survey made at that time embraced about 158 acres. After the government survey of the land in 1869 it was found that the buidlings were all upon section 20 and that the cultivated field extended across the tract here in dispute. At this time the father and son made a division of the land claimed, the father entering under the homestead law the land in section 20, and the present claimant filing his preemption declaratory statement, as before stated, for the tract in question.

Several nice questions would be thus presented for consideration by the record made in this case were it not for the fact that Wight made the affidavit before referred to, in 1883, in which he swears, as before stated, that he was not residing upon the land at the time the rights of the company attached under its grant, and that he never resided upon any part thereof; and the only explanation offered as to the making of said affidavit is that the agent for the company who secured said affidavit informed him that that was the only way he might secure the tract, and that the inference gathered from the representations made by the agent for the company led him to believe that he would have the preferred right of purchase from the company in the event of its securing patent for this land.

Following the filing of said affidavit, together with the company's list, in 1884, to wit, on the 29th of March, 1888, Hiram House purchased this land, together with other tracts in the same section, from the Central Pacific Railroad Company, and he immediately thereafter enclosed the entire tract within a common fence and has maintained undisputed possession since said purchase.

As against the claimed rights and equities of the heirs of House, who has since died, Wight alleges that he had an agreement with House to the effect that upon purchasing this land, together with other tracts in the same section, from the railroad company, he (House) would convey to claimant the tracts here involved, Wight to pay House the amount paid the company.

The showing upon this question, resting as it does upon the claimant's own testimony, can not be considered.

Upon the record as made it must be held, whatever be the effect of Wight's filing and settlement as regards the company's grant, that he would be estopped from claiming the tract as against those claiming under the purchase made by Hiram House. Even should it be held, therefore, that the tract was excepted from the operation of the company's grant by reason of the alleged claim of Wight existing at the date of definite location, the equities of the purchaser, which are duly protected by the act of March 3, 1887 (24 Stat., 556), would be clearly superior to the claim now sought to be asserted by Wight under his filing made, as before stated, in 1869.

After a careful review of the entire record, in view of the doubtful character of the settlement shown at the date of the attachment of rights under the grant; of the fact that Wight had failed to show that his pre-emption claim had been duly maintained since his filing made in 1869; that House or his heirs have been in undisputed possession of the land since 1888, under purchase from the railroad company, and that Wight is estopped by his own action from now claiming as against the heirs of such purchaser, it is directed that Wight's filing be canceled and the tract included in a list and submitted for approval as the basis for patent to be issued on account of the grant.

For the reasons given your office decision must be and is accordingly affirmed.

DURESS-SENTENCE OF IMPRISONMENT-SETTLEMENT RIGHTS.

SKAGGS ET AL. v. MURRAY.

It can not be held, under a local statute that suspends civil rights during the term of a sentence of imprisonment, that a decision of the General Land Office is ineffective for the reason that the party adversely affected thereby had been convicted and was imprisoned at the time the judgment of the local office was rendered.

The preferred right of a successful contestant can not be defeated by an adverse settlement claim acquired subsequently to the initiation of the contest.

A minor can not acquire settlement rights under the homestead law.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.) 17, 1898. (C. W. P.)

The appeal of Sarah E. Skaggs, James Skaggs, William Skaggs, Jr., Cora Skaggs, and Edith Skaggs, from your office decisions of February 19, 1897, and June 4, 1897, rejecting their application to contest the homestead entry, No. 12,743, of William Murray, of lots 5 and 6, and the S. of the SW. of Sec. 32, T. 17 N., R. 2 W., Guthrie land district, Oklahoma Territory, made December 26, 1895, is before the Department.

On March 17, 1897, the said Sarah E. Skaggs and others filed their application to contest said entry, alleging, in substance, (1) that the said Sarah is the wife of William Skaggs; that the other contestants are the minor children of the said William Skaggs; that on the 22d of April, 1889, at about thirty minutes past two o'clock P. M., the said Sarah and said minor children, in company with their father, the said William, settled upon said land; that said settlement was made prior to the settlement of said entryman; that on the 30th of April, 1889, Robert M. McKenzie made homestead entry of said land; and on the 30th of April, 1889, the said William Skaggs filed a contest against said last mentioned entry, alleging prior settlement; that subsequently the said Murray filed a contest, alleging that both Skaggs and McKenzie were disqualified as "sooners"; that on the 3d of October, 1890, prior to the trial of said contests, the said William Skaggs was arrested on a charge of felony and convicted thereof on the 12th of February, 1891, and sentenced to the penitentiary at Columbus, Ohio, for six years, and thereby prevented from prosecuting his own contest, and defending against the contest of the said Murray; that by means of said conviction and imprisonment, the said William Skaggs "became civilly dead, and that the life of his said contest died or expired with the said conviction and sentence and confinement for the commission of said felony," and that the contest of said Murray also "became functus officio, and that all the rights of property of said William Skaggs vested in his wife and minor children, and that upon the conviction and expiration of the contest aforesaid, the U. S. Land Office was divested of jurisdiction, by operation of law, of both the person and the subject matter of the aforesaid contests; that by reason of the conviction of the said William Skaggs, the said Sarah "became the head of the family," "but was prevented from asserting her rights by reason of the status of the litigation at the time;" that the acts of settlement made by the contestants, and those acquired through the said William Skaggs are as follows: "By William Skaggs, assisted by these plaintiffs," one dugout, two wells, twenty-four apple trees, one sod house,