and non-encumbrance by the State of such base tracts need be furnished.

You will not allow State selections to be made in the present Standing Rock reservation based on losses in the Cheyenne River reservation, or selections to be made in the Cheyenne River based on losses in the Standing Rock reservation, but you will require selections in each reservation to be based on losses in the same reservation as that in which the losses are sustained.

You will soon be furnished with a list of lands reserved for townsite purposes. You will allow no selection by the State of lands so reserved.

Lists of selections of the lands considered herein, accepted by you, will be given proper serial numbers and will be transmitted to this office in special letters. Care must be taken to place notations showing the fact and date of transmittal in each case in the column for remarks in the "schedule of serial numbers" for the month in which the lists are accepted and transmitted.

There is inclosed herewith for your information and the files of your office a copy of office letter "G" of December 9, 1909, addressed to the Governor of South Dakota.

The local officers at Pierre, to whom the copies of all Cheyenne River and part of the Standing Rock allotments have been sent, have been directed to forward the said copies to your office, for proper notation on your records, in so far as they affect lands in your district, and for the files of your office.

A copy of the remaining Standing Rock allotments in your district will also be sent you for the like purpose.

Very respectfully,

Approved:

R. A. BALLINGER, Secretary.

S. V. PROUDFIT, Acting Commissioner.

APPLICATION-APPEAL FROM REJECTION SECOND RECEIVED AND SUSPENDED.

DECOURCY V. VANDEVERT.

An appeal from the rejection of an application to enter entitles the applicant to judgment only as to the correctness of such action at the time taken and upon the showing made when the application was presented to and passed upon by the local officers; and if properly rejected when presented, it should not thereafter be allowed, upon a supplemental showing filed with the appeal, to the prejudice of an intervening application filed prior to such appeal and supplemental showing.

Instructions of September 22, 1884, modified to permit applications to enter to be received and suspended subject to the disposition of prior rejected applications; but entries thereunder should not be allowed until the prior applications have been finally disposed of.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, February 17, 1910. (J. H. T.)

Robert L. DeCourcy has appealed to the Department from your decision of September 27, 1909, holding his homestead entry for cancellation in part because of conflict with a prior application by Thomas W. Vandevert. DeCourcy's entry was made November 18, 1908, for the E. SW. 1, W. SE. 1, Sec. 19, T. 20 S., R. 11 E., The Dalles, Oregon, land district.

It appears that on October 30, 1908, Vandevert applied to enter the W. SE. 1, W. NE., Sec. 19, T. 20 S., R. 11 E., W. M., as a second homestead entry under the act of February 8, 1908 (35 Stat., 6). His application was rejected by the local officers and appeal was taken to your office. On August 14, 1909, you modified the decision of the local office in view of supplemental showing made by Vandevert, and directed allowance of his application.

Because of the conflicting claims to the land involved, it has been necessary for the Department to consider the facts in connection with the application of Vandevert. The papers in that case have been considered, except the application and papers in support thereof, which you returned to the local office when you directed allowance of the application. The facts, however, appear to be sufficiently stated in the decision of the local office and in your decision. The local officers in their decision of October 30, 1908, assigned as a reason for the rejection of Vandevert's application that it did not show that the former entry was abandoned prior to the passage of the act of February 8, 1908. They found that the former entry was relinquished on March 24, 1908, and that the land was entered the same day under the timber and stone law, by Maude E. Vandevert, who appears to be a sister of the present claimant, and they stated that in view of this fact, together with the fact that the six months allowed within which to establish residence on the former entry had not expired at date of its relinquishment, the strongest possible corroborative evidence was required that he received no consideration for abandoning the former entry. Instead of filing new application or making proper showing, Vandevert appealed to your office and submitted supplemental affidavit, which you considered sufficient to show that he received no consideration for relinquishing his former entry, and that he had abandoned the same prior to February 8, 1908. Therefore, in view of the facts shown by said supplemental testimony,

you modified the decision of the local office and directed that Vandevert be allowed to make entry.

DeCourcy filed his application November 18, 1908, for the E. SW. 1, W. SE. 4, said section, township, and range, and entry No. 01711 was made. By your said decision of September 27, 1909, you held that the local officers erroneously allowed said entry in conflict with the application of Vandevert, and you accordingly held the entry for cancellation in so far as it conflicted with the prior application of Vandevert.

The act of Febuary 8, 1908, supra, allows a person otherwise qualified to make a second homestead entry where such person has made and lost, forfeited, or abandoned a former entry prior to the passage of said act, and such former entry was not canceled for fraud, nor abandoned or relinquished for a consideration.

Vandevert relinquished his former entry on March 24, 1908, and when he made his application for second entry, he did not show that he had abandoned his former entry prior to the date of the said act. The local officers therefore correctly rejected the same. See Instructions of February 29, 1908 (36 L. D., 291). On appeal to your office, Vandevert made a supplemental showing which was considered sufficient to show his qualifications to make entry, and you directed that entry be allowed in view of said showing. This action could have been properly taken only in case there was no intervening adverse claim. Upon appeal Vandevert was entitled to judgment only upon the action taken by the local officers in rejecting his application upon the showing made at the time they rejected it. Your office appears to have concurred in their action as you directed allowance because of the supplemental showing. The action of the local officers in allowing DeCourcy to make entry for the land, which was in part embraced in the rejected application of Vandevert, was not good practice. Vandevert had not at that time filed appeal, but the period within which appeal could be taken had not then expired. DeCourcy should have been notified that entry could not at that time be allowed for the entire area applied for on account of the prior application of Vandevert, and that he would be allowed thirty days from notice within which to elect whether he would amend his application so as to eliminate the part in conflict or have his application suspended to await final action on the application of Vandevert. The instructions of September 22, 1884 (3 L. D., 119), are modified so as to permit applications to be received and suspended subject to the disposition of any prior rejected application, but entry will not be permitted until such prior application is finally disposed of. See case of Jerry Watkins (17 L. D., 148).

While the entry of DeCourcy was prematurely allowed, yet the rights of neither party are prejudiced by the allowance of said entry,

and the controversy will be disposed of the same as though DeCourcy's application had been suspended. It must be held that DeCourcy has superior right to the land in conflict. His entry will be allowed to stand. The application of Vandevert, in so far as it conflicts with said entry, is rejected. Your decision is accordingly reversed.

BIESANZ V. JACOBSON.

Motion for review of departmental decision of November 26, 1909, 38 L. D., 317, denied by First Assistant Secretary Pierce, February 19, 1910.

RAILROAD LANDS-HOMESTEAD SETTLER--SECTION 6, ACT OF MAY

29, 1908.

LEOPOLD BAUER.

The purpose of section 6 of the act of May 29, 1908, was to place homestead settlers upon lands in odd-numbered sections within the conflicting limits of the railroad grants therein mentioned, who were prevented from completing title to the lands by reason of the decision of the Supreme Court in the case of Wisconsin Central R. R. Co. v. Forsythe, in the same situation, relatively, as to other lands entered by them within the prescribed period, as they up to the time of the court's decision had assumed they occupied with reference to the lands settled upon within the railroad grants.

Where prior to actual knowledge that the land he had settled upon was not subject to homestead entry the homesteader had so far complied with the law as to have acquired a vendible interest in the land if it had been subject to such entry, the right conferred upon him by the act of May 29, 1908, would be transferable to the same extent as his interest in the land settled upon would have been; but any attempted transfer of such right by one who had not prior to such knowledge sufficiently complied with the law to acquire a vendible interest, confers no right upon the purchaser, and an entry allowed under such attempted transfer, in the name of the homesteader but in the interest and for the benefit of the transferee, is void.

First Assistant Secretary Pierce to the Commissioner of the General ((. L.) Land Office, February 21, 1910. (S. W. W.)

This case involves the construction of section six of the act of May 29, 1908 (35 Stat., 465), passed for the relief of certain homestead entrymen who settled on railroad lands in Wisconsin, and is before the Department on appeal from your office decision of November 26, 1909, holding for cancelation final homestead entry made under said

act, embracing lot 7, SE. 4 SW. and lot 9 of Sec. 14, and lot 3 of Sec. 23, T. 4 N., R. 93 W., containing 164.10 acres, Glenwood Springs, Colorado, land district.

The facts are as follows: Under departmental order of October 22, 1891, effective November 2, following, all lands in the Ashland, Wisconsin, land district, under withdrawals theretofore made and held for indemnity purposes under the grants for the benefit of the Chicago, St. Paul, Minneapolis and Omaha Railway Company, were "restored to the public domain and opened to settlement and entry under the general land laws."

June 12, 1893, Bauer made homestead entry, No. 3369, at Ashland, Wisconsin, for the W. NW. 4, and NW. SW. 1, Sec. 17, T. 46 N., R. 4 W., containing 120 acres, said tracts being a portion of those restored by the above mentioned order. The Supreme Court in the case of Wisconsin Central Railroad Company v. Forsythe (159 U. S., 46), by decisions rendered June 3, 1895, determined that the lands involved belonged to the Wisconsin Central Railroad Company, and Bauer's entry was, accordingly, held for cancellation by your office letter "F" of November 13, 1895, and was, pursuant to notice and order to show cause, served on Bauer on November 26, 1895, finally canceled March 24, 1896. The fees and commissions paid on this entry were ordered refunded December 10, 1904.

May 29, 1908, the act referred to was passed, section 6 of which is as follows:

That all qualified homesteaders who, under an order issued by the Land Department bearing date October twenty-second, eighteen hundred and ninetyone, and taking effect November second, eighteen hundred and ninety-one, made settlement upon and improved any portion of an odd-numbered section within the conflicting limits of the grants made in aid of the construction of the Chicago, Saint Paul, Minneapolis and Omaha Railway and the Wisconsin Central Railroad and were thereafter prevented from completing title to the land, so settled upon and improved by reason of the decision of the Supreme Court in the case of Wisconsin Central Railroad Company against Forsythe (one hundred and fifty-ninth United States, page forty-six), shall, in making final proof upon homestead entries made for other lands, be given credit for the period of their bona fide residence upon and the amount of their improvements made on the lands for which they were unable to complete title. In the event that any entryman entitled to the benefits of this act, shall have died the right to make such second entry shall inure to his surviving widow, and if there be no widow living then to his minor child or children, if any, in the manner hereinbefore provided: Provided, That no such person shall be entitled to the benefits of this act who shall fail to make entry within two years after the passage of this act: And provided further, That this act shall not be considered as entitling any person to make another homestead entry who shall have received the benefits of the homestead law since being prevented, as aforesaid, from completing title to the lands as aforesaid settled upon and improved by him.