"Service in the United States army during the war," is therefore a condition on which depends the right of a soldier to make an entry of public lands under this section, and until proof of that fact has been offered the soldier can have no legal standing as a claimant before the Department. There is, as has been seen, no statutory provision which makes the right of entry of Kickapoo lands dependent on any particular proof that the law has not been violated by the premature entry thereon. In the Lemmons case the declaratory statement was suspended for proof requirements, while in the case at bar the declaratory statement was received by the local officers and placed of record without requiring the "non-sooner" affidavit, and the applicant may have rested on the assumption that all of the requirements of the law had been met.

It is believed that Beaty's rights attached as of the date of the filing of his declaratory statement. In this view there remains several questions which can not be decided on the present record.

Your office decision is reversed, and you will order a hearing between the parties to determine whether the alleged settlement of Walk was prior to Beaty's filing, and as to the qualifications of both Walk and Beaty, at which hearing Walk will be permitted to show, if he can, that Beaty is disqualified by reason of his agent's presence in the territory during the prohibited period.

PRACTICE-COSTS-RAILROAD GRANT-FILING-SETTLEMENT.

SAVAGE v. CENTRAL PACIFIC R. R. Co.

In a hearing ordered between a railroad company, and one alleging the land in question to have been excepted from the grant, the costs are properly taxable under rule 55 of practice.

A declaratory statement filed after the attachment of rights under definite location is ineffective as against the operation of a railroad grant.

While a railroad company can not attack a declaratory statement of record on the ground of the non-citizenship of the claimant, it will be heard on such charge where acts of settlement are relied upon to defeat the grant.

The Central Pacific Railroad is entitled to the lands opposite the line between Ogden and Promontory Summit, and the line of said road, between said points, was definitely located October 20, 1868.

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

18, 1898.

(C. J. W.)

On December 18, 1893, Herbert Savage filed in the local land office at Salt Lake City, Utah, his corroborated affidavit, alleging his quali fication as a homestead settler:

That on the 20th day of October, 1868, one Savage and other parties, who were qualified to enter the same, were in the open, peaceable, exclusive, notorious, and adverse possession of the same, to all the world except the United States. That at

said time the said tract was occupied, appropriated, interdicted, and reserved lands, and were not of the character contemplated by the grant to the Central Pacific Railroad Company.

He asked that said company's list No. 3 be canceled, and that he be permitted to obtain title to the land described.

Your office reports:

That Mr. Savage filed D. S. 1786, for the tract, June 14, 1869, alleging settlement March 4, 1869.

Savage was an alien and did not declare his intention to become a citizen until March 3, 1869.

On the showing made your office directed that a hearing be had, at which Mr. Savage should be allowed an opportunity to establish his claim by proof, and it was directed that the status of the land on October 20, 1868, be ascertained, this being the date of the definite location of the line of the Central Pacific Railroad. A hearing was ordered for March 20, 1894. On February 7, 1894, Cora House, a daughter and one of the heirs of Hiram House, deceased, filed a corroborated affidavit, alleging her qualification, and that she was in possession of the land involved, and that she claimed through a chain of mesne conveyances from the Central Pacific Railroad company to her father, the deed to her father bearing date March 29, 1888, since which date they have had actual possession of the land, and have grazed and improved the same, and asked that she be allowed to intervene in the case, and to enter the land should the title of the government be found to be paramount to that of the railroad company. The hearing was postponed for various causes until April 27, 1894. The testimony is chiefly in the form of depositions taken in accordance with stipulations entered into between the attorneys of the respective parties.

On May 25, 1894, the local officers, after a summary of the facts. presented and appearing of record, made the following finding:

We must hold that the contestant has failed to make such a showing of right, claim or settlement, to the land in question, as would withdraw it from the operation of the grant to the Central Pacific Railroad Company, and therefore that the tract did pass to the company under its grant on October 20, 1868.

From this decision Savage appealed. On June 12, 1895, your office passed upon the case, under said appeal, and affirmed the decision of the local officers. From said decision Savage again appealed, alleging the following grounds of error:

1st. Error in denying Savage's motion to tax against the Central Pacific Railroad company the costs of taking testimony.

2d. Error in holding that the declaratory statement of Herbert Savage, as shown by the records of the land office, did not except the land in dispute from the grant to the Central Pacific Railroad Company.

3d. Error in holding that said tract was not excepted from said grant by virtue of the claim settlement and improvements of Herbert Savage, made prior to the definite location of said railroad.

4th. In holding that there must be a lawful and valid claim to the land in dispute in order to except it from said grant.

5th. Error in holding that the said grant to the Central Pacific Railroad company took effect on the 20th day of October, 1868, and in awarding the land to said company.

The company's rights are based on the acts of July 1st, 1862 (12 Stat., 492), and July 2d, 1864 (13 Stat., 358).

The aforesaid act of July 1, 1862, making the grant of lands to the company, excepted from the grant lands reserved or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may have attached, at the time the line of said road is definitely fixed. The exception or proviso contained in section 2 of the act of July 2, 1864, amendatory of the act of July 1, 1862, is as follows

And any lands granted by this act or the act to which this is an amendment shall not defeat or impair any pre-emption, homestead, swamp land, or other lawful claim, nor include any government reservation or mineral lands or the improvements of any bona fide settler.

The alleged errors will be considered in the order in which they are stated. The first one contains, negatively expressed, the affirmative proposition that the railroad company should have been taxed with all the costs of taking testimony. Under what rule, by what authority, or for what reason, this should have been done, is not stated. The local officers state that the costs were taxed under and in accordance with Rule 55 of Practice. Your office seems to have made no specific ruling in reference to the costs, but the costs appear to have been properly taxed. The second ground of complaint is, substantially, that your office held that the declaratory statement of Savage, of record, was not sufficient to except the land from the grant. Upon examination of that part of the decision complained of, which relates to the declaratory statement and to the qualifications of Savage, it is found to be so expressed as to convey the impression that your office held the filing of Savage to be nugatory and of no effect, since it is now made to appear that he is an alien, and was disqualified at the time of said filing, and that the company could take advantage of his disqualification now disclosed. If such is a proper interpretation of the language used, it does not state the law correctly. It was, in substance, held by the supreme court in the case of Kansas Pacific R. R. Co. v. Dunmeyer (113 U. S., 629), that a pre-emption filing made before the filing of the map of definite location, excepted the land filed on from the operation of the grant, and this rule has been followed here. In the case of Fish v. Northern Pacific R. R. Co. (on review), 23 L. D., 15, it was held that an uncanceled pre-emption filing of record at the date when a railroad grant becomes effective, excepts the land from the operation of the grant, even though, at such time, the statutory life of the filing has expired. Thus, while the homestead right is denied to an alien, yet if an alien applies, and is permitted to file, this is such an adjudication of his right, as estops the railroad company from disputing its validity, although

the right to do so remains in the government, and this doubtless for the reason that, as between the government and such person, this default might be cured before final proof.

Your office found that the filing of Savage passed to record June 14, 1869, and that the company's map of definite location was filed October 20, 1868, and then proceeded to find that Savage acquired no right under his filing, because he was at that time an alien, when the finding should have been that the filing did not except the land from the operation of the grant, for the reason that it was made subsequent to the filing of the company's map, but this error was harmless to the company.

The next proposition insisted upon is that the settlement and improvements of Savage, made before the definite location of the company's line had the effect of excepting the land from the grant. Your office found in reference to the matter of settlement, that the evidence of such settlement was not sufficient, to authorize the conclusion that such settlement prevented the company's right from attaching under the grant, but if the evidence was more satisfactory on this point, the evidence that Savage was at that time an alien would destroy the effect of the settlement; for while the company cannot attack a filing of record, by proof of non-citizenship, it will be heard on such charge where acts of settlement are relied on to defeat the grant.

No separate consideration of the fourth assignment is necessary. The fifth and last assignment of error attacks the basis on which your office decision rests, by denying the fact found by your office, as to the date of the definite location of the company's line. The argument under this specification asserts that the land in question was covered by the grant to the Union Pacific Railroad Company, which did not take effect until April 10, 1869. The question thus presented is not an open one, it having been considered in the case of Central Pacific R. R. Co., ex parte (5 L. D., 661), in which it was specifically held that the Central Pacific railroad was entitled to the lands opposite the line between Ogden and Promontory Summit and that the company's line between these points was definitely located October 20, 1868. This ruling is adverse to the present contention, and must stand. The claim of Miss Cora House is insisted upon only in the event it is found that the land was excepted from the company's grant, she being, as she alleges, a bona fide purchaser from the company, and holding its deed. As it is now held that the rights of the company attached on the filing of its map of definite location October 20, 1868, it is not necessary to make further reference to her claim.

With the modifications indicated herein your office decision is affirmed.

HOMESTEAD ENTRY--QUALIFICATIONS OF ENTRYMAN.

BONNETT v. JONES.

The privilege of making a homestead entry, without regard to the ownership of other land, was not one of the rights of soldiers and sailors defined and described in sections 2304 and 2305 R. S., hence the subsequent legislation making the ownership of other lands a general disqualification does not abridge any right conferred by said sections.

The disqualification resulting from the ownership of other lands is general, with no exception as to the ownership of arid lands, and operative without respect to the manner in which title to the land is obtained.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.) 18, 1897.

This case involves the SE. 4 of Sec. 5, T. 16 N., R. 7 W., Kingfisher land district, Oklahoma Territory, and is before the Department upon petition by James Jones for re-review of departmental decision of December 23, 1896 (23 L. D., 547), which was on March 15, 1896 (24 L. D., 242), on motion for review, re-affirmed.

In the decision first cited, it was held that Jones was the owner of one hundred and sixty acres of land in the State of Kansas, and that such ownership disqualified him, under the law pertaining to Oklahoma, from making homestead entry in that Territory, and it was, therefore, directed that his entry made May 14, 1892, be canceled, and that a preference right of entry be accorded to William J. Bonnett, who had filed affidavit of contest May 20, 1892, alleging prior settlement.

On motion for review it was urged by Jones that the act of March 3, 1891, (26 Stat., 989-1026) served to except the lands in the Cheyenne and Arapahoe reservation from the abridgment of the right of entry contained in the act of May 2, 1890, (25 Stat., 81). It was determined, however, that no conflict necessarily existed between these statutes and that the language of the act of May 2, 1890, was not affected by anything contained in said act of March 3, 1891.

The act of May 2, 1890, section 20, provides:

and no person who shall at the time be seized in fee simple of one hundred and sixty acres of land in any State or Territory, shall hereafter be entitled to enter land in said Territory of Oklahoma.

The act of March 3, 1891, (26 Stat., 989-1026) providing among other things, for the disposition of the lands acquired from the Cheyenne and Arapahoe Indians, declares:

That whenever any of the lands acquired by either of the three foregoing agreements respecting lands in the Indian or Oklahoma Territory shall by operation of law or proclamation of the President of the United States be open to settlement, they shall be disposed of to actual settlers only, under the provisions of the homestead and townsite laws (except section twenty-three hundred and one of the Revised Statutes of the United States, which shall not apply).