in the Sierra Lumber Company case that it would not, and this ruling seems to be in accordance with law and equity.

It is a well established rule of the Department that rights of parties are not impaired through the negligence of the local officers.

As the present case (which has not yet been closed) is identical in all essential particulars with the Sierra Lumber Company case, and as the former holding of the Department that Walters's said additional entry was not confirmed under the act of March 3, 1891, was erroneously based upon the ruling in the Bush case, the former action of the Department herein is revoked and set aside, and the entry will be passed to patent.

It is not intended by this ruling to change the procedure heretofore followed in regard to soldiers' additional homestead entries. In other words, you will still require the receiver to issue "final receipt," and the register to issue "final certificate," in accordance with the circular instructions. This ruling merely protects the entryman against the consequences of neglect on the part of the local officers.

HOMESTEAD - PRE-EMPTION-ALIENAGE.

BUTLER v. DAVIS.

A pre-emption filing, or application to make homestead entry, made by an alien prior to declaration of intention to become a citizen, confers no right either under the pre-emption or homestead law, and a settler occupying such status is without protection as against an intervening adverse claim of record.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 30, 1897.

(A. E.)

On June 17, 1886, James J. Butler filed a pre-emption declaratory statement of his intention to purchase the W. of the SW. †, Sec. 28, and the S. of the SE. 4, Sec. 29, T. 4 N., R. 24 W., S. B. M., Los Angeles, California. On December 11, 1891, Butler applied to make homestead entry of the same land; his application was rejected because he failed to show that he was a citizen, or had declared his intention to become such. On February 12, 1892, Butler declared his intention to become a citizen, but did not make new application to enter the land, nor offer to make proof on his pre-emption filing.

On February 9, 1894, Silas R. Davis made homestead entry for the land.

On February 17, 1894, Butler's naturalization being completed, he applied to make homestead entry of the land, and his application was rejected, because covered by Davis's entry.

On March 4, 1894, Butler filed a contest against Davis's entry, alleg ing that Davis had full knowledge of Butler's residence and improvements when he made his entry.

After a hearing the local office recommended that the entry of Davis be canceled.

On appeal, your office, on August 21, 1895, held that the declaration of intention made by Butler to become a citizen

could not relate back to the filing of his pre-emption declaratory statement, and thus bene.it him; and his settlement and declaratory statement could not become operative from its date, because the pre-emption law had been repealed prior thereto. While it is true that defendant knew of the residence, improvement and claim of plaintiff at the time he made his entry, yet the plaintiff's failure to properly assert his claim in time is in no manner due to any act of the defendant.

Your office then decreed that the contest of Butler be dismissed and the entry held intact.

From this Butler has appealed to the Department.

No argument accompanies the appeal, and the appellant does not show specifically wherein your holding was contrary to law.

The case has, however, been carefully considered. While the loss of his home is a misfortune to the appellant, this Department is without authority under the law to protect him in the face of the intervening adverse claim of record, which claim was initiated in accordance with law. The homestead entry of Davis was made at a time when the land was subject to entry.

Butler was not a citizen and had not declared his intention to become a citizen at the time of making his pre-emption filing in 1886, or when he first applied to make homestead entry in 1891.

Said filing and application were therefore without any force or validity whatever and he could acquire no right thereunder. Before he applied as a qualified claimant to make homestead entry of the tract it had been entered by Davis, whose entry is protected by the law, provided he complies with its requirements in the matter of settlement, residence and cultivation.

Your office decision must be and it is therefore affirmed.

SECOND CONTEST OKLAHOMA LANDS.

CLARK v. RENFRO ET AL.

In a contest between applicants for land in Oklahoma, involving priority of settlement, the question of "soonerism" is necessarily raised as to each party thereto, whether formally charged or not, and where, in such a contest, evidence is submitted on said question, and a decision rendered thereon, a second contest should not be allowed on that question.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.)

uary 30, 1897.

(J. L. McC.)

On May 25, 1889, William T. Renfro made homestead entry for lots 6, 8, 9, and 10, of Sec. 31, T. 12 N., R. 2 W., Oklahoma City land district, O. T.

On June 14, 1889, Daniel Page, Jr., initiated contest against Renfro's entry, alleging prior settlement.

The local officers found that Renfro was the prior settler. Your office, on January 23, 1892, sustained the local officers, and dismissed the contest.

Ten days later-to wit, on February 2, 1892-Will H. Clark filed an application to contest Renfro's entry. No action was taken thereon except to note the date of filing.

On April 3, 1893, Clark filed an amended affidavit, in which he charged upon information and belief, that Page's claim and contest were fraudulent, illegal and void, for the reason that he went into the territory during the prohibited period. His charges were corroborated merely upon information and belief. This amended complaint was not acted upon by the local office.

Page in due time appealed from your office decision of January 23, 1892; and on December 5, 1894, the Department reversed said decision, held that Page had a prior adverse claim, and directed that Renfro's entry should he canceled upon the completion of entry by Page.

Renfro filed a motion for review of said departmental decision; but said motion was denied, and the decision of December 5, 1894, re-affirmed on September 12, 1895 (314 L. and R., 314).

On April 10, 1896, Clark renewed his charges against Page, in a "supplemental and amended affidavit of contest," in which he alleged that Page's homestead entry was illegal, for the reason that at the time it was allowed he (Clark) had a contest pending, which charged that Page had occupied a portion of the land described in the President's proclamation of March 23, 1889, during the prohibited period; therefore Clark asked a hearing.

Your office on August 19, 1896, denied a hearing, holding:

Inasmuch as Renfro's entry has been canceled, Clark's application to contest the same is hereby dismissed.

The matter of Page's entering upon the territory during the prohibited period has been adjudicated; therefore Clark's application to contest Page's entry is dismissed.

The above language has reference to the fact that, on the trial of the case of Page v. Renfro, Page, on cross-examination by counsel for Renfro, acknowledged that he passed through the territory in the night, on a railroad train, two or three days (or nights) before the land was opened to settlement.

Clark has appealed from said decision on the following grounds:

First. The Honorable Commissioner erred in holding and finding that the question of defendant Page's qualifications was res judicata, for the reason that the qualifications of Page as. charged in this affidavit of contest were never adjudicated except upon the statements of the said Page, no disqualification ever having been charged against him or evidence introduced against him in the trial of the case of Page v. Renfro, the sole issue in that case being prior settlement.

Second. The Honorable Commissioner erred in holding and finding that the decision of the government or any officer thereof upon an ex parte showing is an

adjudication binding upon claimants not parties to that suit, unless the charge of disqualification was formerly made by way of contest, and evidence introduced thereunder.

The departmental decision of September 12, 1895 (on review), explained how the question of Page's premature entry into the Territory arose:

A motion (for review) has been filed on behalf of Renfro, the only ground of error in which that was not considered in the previous decision is the first, namely: "in not considering the testimony of the contestant, Daniel Page, Jr. (see page 37 of the record, question 2), in that contestant admits that he crossed the corner of Oklahoma Territory in travelling from Purcell to the Pottawatomie country, April 18, 1889."

A further examination has been made of the testimony upon this point, and it is found, as alleged, that Page admits that, on April 18, 1889, he crossed from the Chickasaw country at Purcell, passing through Oklahoma Territory to the Pottawatomie country. The distance across the Oklahoma Territory at this point to the Pottawatomie country is about five miles. After reaching the Pottawatomie country he appears to have followed the Pottawatomie line, travelling north until about opposite the land in question, being a distance of about thirty-five miles. It was from this point in the Pottawatomie country that he made his run to the land in question.

I am of the opinion that the fact of his having crossed the Territory from Purcell to the Pottawatomie country after which he traveled about thirty-five miles north within the Pottawatomie country to the point from which he made his run on April 22, did not disqualify him. He certainly gained no advantage by reason of knowledge of the country acquired in crossing from Purcell to the Pottawatomie country; and while he may be within the strict letter of the law, having entered the country after the President's proclamation and prior to the day set for the opening, yet under the peculiar circumstances, I do not think he transgressed the spirit of the law, and should not be held to be disqualified thereby.

It will be seen that the question of Page's disqualification upon the allegation of premature entry has been adjudicated; but the applicant herein contends that such adjudication is not "binding upon claimants not parties to that suit, unless the charge of disqualification was formally made by way of contest."

The case (between Page and Renfro) arose upon Page's allegation of priority of settlement. Before either of them could be permitted to make entry, he must take the following oath (see General Circular, page 239):

I,

of -, applying to enter a homestead, do solemnly swear that I did not enter upon and occupy any portion of the lands described and declared open to entry in the President's proclamation dated March 23, 1889, prior to 12 o'clock, noon, of March 22, 1889.

When the hearing was ordered to determine whether Page or Renfro was the prior settler, the question as to whether either of them could take that oath (without which he could not be a legal settler) was necessarily involved-whether "formally" raised or not. It was raised; testimony bearing upon that point was taken; and the question has been adjudicated by the Department. The case at bar, in my opinion,

comes within the rule that an issue once tried and determined will not be made the issue of a second contest (Curtin et al. v. Morton, 22 L. D., 91). And this rule is applicable to contestants, claiming a prior right to lands, as was held in the case of McEvers v. Johnson, 23 L. D., 472. The decision of your office denying a hearing is affirmed.

SMITH ET AL. v. TAYLOR.

Motion for review of departmental decision of November 12, 1896, 23 L. D., 440, denied by Secretary Francis, January 30, 1897.

RAILROAD LANDS-REIMBURSEMENT-ACT OF MARCH 3, 1887.
JOSEPH PRETZEL.

The right to reimbursement under the act of March 3, 1887, cannot be recognized if the title conveyed by the government is paramount to the claim of the railroad company.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.)

uary 30, 1897.

(P. J. C.)

This is an application for reimbursement under the act of March 3, 1887, 24 Stat., 550 (5 L. D., 627), made by Joseph Pretzel. The gov ernment issued its patent to him, August 20, 1881, for the E. of the NW. 1, Sec. 27, Tp. 3 N., R. 1 E., 6th P. M., Beatrice, Nebraska.

He alleges that the tract was embraced in the grant to the State of Kansas for the use of the St. Joseph and Denver City Railroad Company, by act of July 23, 1866 (14 Stat., 210); that the Kansas and Nebraska Railway Company of Kansas, the transferee of the grant, by its trustees, on November 15, 1881, conveyed the tract to one W. Pringle Mitchell; that, in order to remove the cloud from his title, he did, on June 7, 1883, pay to Mitchell, "who claimed prior and paramount title to said land" by virtue of his deed aforesaid, the sum of eighty dollars, and received a quitclaim deed from Mitchell for the land; "that he has not been sued and subjected to any judgment, but that he paid the sum demanded of him," and believes he ought to be reimbursed under said act of March 3, 1887.

It appears that your office, by letter of May 16, 1895, addressed to an attorney in Nebraska, in relation to "the claims of Franz Rothemier and Joseph Pretzel for reimbursement," stated,

that the title held by said parties from the railroad company is paramount to the title given by the government, as the land had passed to the railroad company prior to the date of the patents issued to Rothemier and Pretzel.

Your office required some additional evidence to show no transfer or incumbrance of their title under government patents. This additional evidence was also required by letter of July 25, to the Nebraska attorney, also of August 22, 1895, to local attorneys.