"embraced within the limits of said grant for the completed portions of said road," are also "adjacent to and coterminous with the uncompleted portions of said road" between Forest Grove and Astoria.

The grant of so much as lies within conflicting limits applied equally to both portions of the definitely located lines, thus limiting the volume of the grant for either portion of the road to the extent that the same land fell within the limits of the other portion.

The question presented by this condition of the grant is whether the act of January 31, 1885, contemplated the forfeiture of the whole of the original grant of lands "adjacent to and coterminous with the uncompleted portions of said roads," irrespective of so much as falls within the 20-mile limits of the constructed portion, or whether the act intended to reserve from forfeiture all the lands within the latter limits irrespective of the portion that is adjacent to and coterminous with the uncompleted road.

Construing the whole act it appears to me that Congress intended to reserve from forfeiture the lands within granted limits along the whole of the constructed portion of the road. For the present, therefore, the restoration of lands under the act of January 31, 1885, will be limited to the lines shown on the diagram, which is prepared in accordance with the foregoing view.

Your attention is called to the provisions of the act protecting the rights of actual settlers and allowing such as are not entitled to make entry under existing laws to purchase, within one year, not to exceed 160 acres at $1.25 per acre.

The persons who, under the provisions of the second section of the foregoing act, have a preference right of entry of restored lands, are hose who, on January 31, 1885, were actual settlers in good faith on the lands claimed by them, and are qualified to make the entry applied for. The preference right may be exercised within six months from date of promulgation of these instructions.

If any such person is not entitled to make entry under the homestead, pre-emption, or other laws, he may purchase, within one year From date of the act, not exceeding 160 acres of the land embraced in his settlement or occupation, at the price of $1.25 per acre.

Persons applying for the preference right of entry under the homestead, pre-emption, or other general laws, or for the right of purchase ander the special provisions of this act, will be required to prove their actual settlement and occupation of the lands so claimed.

Such proof must be made to your satisfaction, and may be by affidavit executed before you, corroborated by witnesses, setting forth the date of settlement, the facts relative to actual occupation of the land, and the nature, extent, and value of improvements.

Final proof under the settlement and improvement laws will be made in the manner provided under these laws respectively.

In case of purchase under the act, you will, upon your acceptance of

the required proof, and the payment of the purchase price, issue the usual certificate and receipt as in other cash cases, noting on each that the entry is allowed under act of January 31, 1885.

The price of all lands within restored limits is $1.25 per acre, but the same are not subject to sale at ordinary private cash entry.

You will give public information by posting notice in your office, and as a matter of news through the press in your district, that the restored lands are subject to settlement and entry as provided in said act.

Approved.

H. L. MULDROW,

Acting Secretary.

MINING CLAIM-IMPROVEMENT.

LITTLE PET LODE.

The allowance of an entry is erroneous where the applicant did not at the time of application, or within the period of publication, file the certificate of the surveyor-general showing the expenditure of $500 upon the claim.

Acting Secretary Muldrow to Commissioner Sparks, July 9, 1885.

I have considered the appeal of J. Henry Weil, John Coleman, and Fingley S. Wood, applicants for patent for the Little Pet lode claim, from the decision of your office, dated August 30, 1884, holding for cancellation mineral entry No. 986, California mining district, and Leadville land district, Colorado.

It appears that said parties made application for patent for said claim on October 20, 1881, and notice thereof was given by publication and posting, as required by law. During the period of publication, Henry Ambler, P. M. Gallagher, and Edward O. Hare, claimants of the "Deposit lode," filed their adverse claim and protest against the issuance of patent to said Weil and his co-claimants. On January 17, 1882, there was filed in the district land office the certificate of the clerk of the district court of Colorado, duly signed, sealed, and dated the same day, showing that "there is now a suit or action, now filed in said court, involving the right of possession to that portion of the Deposit lode which is in conflict with the Little Pet lode."

There was filed with the register on January 24, 1882, a second certificate from the same clerk, duly signed and sealed, in which he certifies that "there was no suit or action of any character whatsoever pending in said court involving the right of possession to any portion of 'Little Pet' mining load or claim; and that there has been no litigation before said court affecting the title to said mining load or claim, or any part thereof for two years and eleven months previous to and including January 16, 1882, other than what has been finally decided in favor of" Weil et al.

On February 14, 1882, said entry was allowed. On March 8, 1882, the claimants of the Deposit lode filed in the district land office a protest, against the issuance of patent upon the Little Pet claim, upon several grounds, to wit:

(1) That no mineral had been discovered by the locators of the Little Pet claim or their successors in interest, within the limits of their locatio.

(2) That the applicants had not expended $500 in labor and improvements on the claim.

(3) That the premises in conflict were not the property of the claimants, but belonged exclusively to the protestants.

The protestants also aver that the reason that they did not commence suit upon their adverse claim within thirty days was because their counsel was seriously ill.

Your office, on December 16, 1882, held that it was only necessary to pass upon the question whether the required value in labor and improvements had been expended upon said claim, and that the record failed to show that any certificate of the United States surveyor-general showing that the required labor or improvements had been expended upon said claim had been filed in the case. It was also shown by the report of the United States deputy mineral surveyor, relative to his survey of said claim, that there had not been expended thereon in labor and improvements the value of $500. It also appeared that the portion relative to the value of labor and improvements in the certificate of the United States surveyor-general accompanying the plat of survey and field-notes of said claim was crossed out. It was, therefore, decided by your office that, unless the proper certificate of the surveyor-general was filed with the register, the action of the district land officers in allowing the entry was erroneous, and such entry, in view of the protest and adverse claim, could not be confirmed, but in the event that said certificate was duly filed the register and receiver were directed to order a hearing to determine the nature, extent, and value of the improvements made by the applicants for patent and their grantors. No appeal appears to have been taken from said decision.

On January 25 the certificate of the United States surveyor-general, dated January 23, 1883, was filed with the register, to the effect that the value of labor and improvements upon the Little Pet claim is not iess than $500.

Your office, however, on August 30, 1884, held that said certificate was not duly filed, and that said mineral entry ought to be canceled under the decision of your office dated December 16, 1882, but that, owing to the peculiar wording of said decision, "it may have been misunderstood by the claimants or their attorneys," and, therefore, an additional period of thirty days was allowed for an appeal.

The appellants insist that, although the surveyor-general's certificate was not filed in due time, yet since the improvements were actually

made upon the claim prior to entry, and the certificate filed as soon as called for, the entry should not be canceled. It is provided in section 2325 of the Revised Statutes (inter alia) that "The claimant at the time of filing his application or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyor-general that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors." This requirement of the law was not complied with, and, although the register, as he states, "overlooked" it, the allowance of said entry was erroneous. The decision of your office is accordingly affirmed.

CONTEST-PREFERENCE RIGHT OF ENTRY.

DUPRAT v. EWING.

Under section 2 of the act of May 14, 1880, the preferred right of entry accrues not by virtue of any prior claim the contestant has to the land, but through the fact that he has successfully contested the entry and paid the costs of contest. Acting Secretary Muldrow to Commissioner Sparks, July 11, 1885.

I have considered the case of Frank Duprat v. William Ewing, on appeal by the former from your predecessor's decision of October 17, 1884, holding for cancellation his homestead entry of the S. of NE. 1 and N. of SE. of Sec. 2, T. 2 N., R. 32 E., La Graude district, Oregon. As long ago as April 18, 1876, Ewing filed pre-emption declaratory statement No. 1228 for certain lands in said Section 2.

On the 22d of August, 1881, one Arthur G. Webb filed pre-emption declaratory statement No. 3219, claiming settlement August 20, 1881, for a tract in large part the same as that covered by Ewing's filing, and exactly the same as that described above.

In July, 1882, Webb offered final proof, which was accepted, and on the 29th of that month his entry was allowed and final certificate issued to him.

Subsequently, upon application of Ewing, a hearing was ordered to determine the facts as to Webb's residence and improvements upon the land. Your office, moreover, directed that at said hearing inquiry be also made as to Ewing's compliance with the pre-emption law. The hearing resulted in a recommendation by the local officers. and a decision by your office (August 16, 1883), that the filing of both parties be canceled, upon the ground that neither of them complied with the law in the matter of residence, cultivation, and improvement. From this decision both parties appealed to the Department, which (February 21, 1884) affirmed said decision. In pursuance thereof Ewing's filing and Webb's pre-emption entry were canceled by your office letter of February 29, 1884, the same being noted on the records of the local office March

14, 1884 (being the earliest, or among the earliest, acts of the local officers on the morning of that day).

Afterwards, about half-past 9 o'clock on the morning of that day, as noted upon the records of the local office, Frank Duprat made homestead entry No. 2711 for the tract which had been covered by Webb's entry, to wit, the S. of NE. and the N. of SE. 1.

Five days later, on the 19th of the same month, Ewing's application to make homestead entry for the S. of NE. 4, the NW. 1 of SE. 1, and lot 7 (fractional NE. of SE. 4) reached the local office, and was there rejected for conflict with the homestead entry of Duprat. It will be observed that Ewing's application covers the same land embraced in Duprat's entry, except one forty (NE. 1 of SE. 4). Said application was accompanied by the proper affidavit, sworn to before the deputy clerk of Umatilla County, at 8.30 a. m., of March 17, 1884.

In this affidavit Ewing claimed residence upon the tract (in a good dwelling-house which he had erected) since the preceding September. His application having been rejected by the local office for conflict with Duprat's homestead entry of March 14, he appealed to your office.

Your predecessor decided that "Ewing could receive no credit on account of his settlement prior to the cancellation of Webb's entry; but having contested said entry and procured the cancellation of the same, he is entitled to a preference right of entry under the provisions of the act of May 14, 1880." He therefore held Duprat's homestead entry for cancellation for conflict with such preference right.

It is from this decision of your office that Duprat now appeals. The question at issue in the case is one solely of construction of law, to wit: Does the act of May 14, 1880, apply under the circumstances hereinbefore set forth?

The second section of the act in question says:

In all cases where any person has contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead, or timber culture entry, he shall be notified by the register of the land office of the district in which the land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said land.

Ewing's agency in bringing about the cancellation of Webb's entry, I think, clearly brings him within the purview of the section of the law quoted, and entitles him to the benefits of its provisions. The litiga tion in which he was engaged with Webb was in all its essential features a "contest" within the meaning and intent of the law, initiated in the same manner, conducted before the same parties, governed by the same rules, appealed from to the same tribunal as all other contests. Ewing, inasmuch as he contested the pre-emption claim of Webb, was a "contestant." The law, however, does not use this term, but says "any person," which certainly includes Ewing. He possessed all the qualifications and had performed all the duties required by law to enti tle him to its benefits; i. c., he had "contested," had "paid the land