I find no evidence to show that this tract was used for purposes of trade prior to the initiation of the defendant's entry. The fact that a man by the name of Hougham has kept a small country store on the land for several years does not, in my opinion, prove such charge; furthermore, the evidence fails to disclose any facts showing fraud on the part of the claimants. Your office decision is modified accordingly, and you will cancel said entry to the extent of lot 2, allowing Mrs. Settoon a preference right to make entry of the same, and as the final proof in said homestead entry appears to be satisfactory, you will proceed as is usual in such cases. MINERAL LANDS-AMENDED REGULATIONS. CIRCULAR. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., July 2, 1894. REGISTERS AND RECEIVERS, UNITED STATES LAND OFFICES, SIRS: Paragraphs 109 and 110 of the "United States Mining Laws and Regulations Thereunder" approved December 10, 1891, are amended to read as follows: 109. No public land shall be withheld from entry as agricultural land on account of its mineral character, except such as is returned by the surveyor-general as mineral; and the presumption arising from such a return may be overcome by testimony taken in the manner hereinafter described. 110.-Hearings to determine the character of lands are practically of two kinds, as follows: 1. When lands are returned as mineral by the surveyor-general. When such lands are sought to be entered as agricultural, under laws which require the submission of final proof after due notice by publication and posting, the filing of the proper non-mineral affidavit in the absence of allegations that the land is mineral will be deemed sufficient, as a preliminary requirement. A satisfactory showing as to character of land must be made when final proof is submitted. In case of application to enter, locate, or select such lands as agricultural, under laws in which the submission of final proof after due publication and posting, is not required, notice thereof must first be given by publication for thirty days and posting in the local office during the same period, and affirmative proof as to the character of the land submitted. In the absence of allegations that the land is mineral, and upon compliance with this requirement, the entry, location, or selection will be allowed, if otherwise regular. 2. When lands which are sought to be entered as agricultural are alleged by affidavit to be mineral or when sought as mineral their nonmineral character is alleged. The proceedings in this class of cases. are in the nature of a contest between two or more known parties and are provided for in the rules of practice. Very respectfully, DEPARTMENT OF THE INTERIOR, July 2, 1894. Approved, HOKE SMITH, Secretary. S. W. LAMOREUX, RELINQUISHMENT-INSANITY. KAY V. KAY. An entry must be reinstated where the cancellation thereof is due to a relinquishment procured from the entryman while in a condition of insanity. Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1894. (J. L.) I have considered the appeal of William Kay from your office decision of February 13, 1893, in the case of Thomas Kay v. William Kay, reversing the decision of the local officers, and holding for cancellation William Kay's homestead entry No. 9117, and for re-instatement Thomas Kay's homestead entry No. 8243, of the N. of the SE. 4, the SE. of the SE. ; and the SE. 4 of the NE. of Sec. 17, T. 11 S., R..1 E., Salt Lake City land district, Utah Territory. On October 25, 1888, Thomas Kay made homestead entry of said land. On May 29, 1891, his relinquishment dated May 18, 1891, was filed in the local office. And on the same day William Kay made homestead entry of said land. On January 5, 1892, Thomas Kay filed his affidavit, corroborated by three witnesses, alleging that his relinquishment aforesaid was fraudulently procured by William Kay while he, the said Thomas, was insane, and praying that a hearing be ordered; that William Kay's entry be canceled; that said relinquishment be held for naught and of no effect; and that his, Thomas Kay's, entry be re-instated. Whereupon your office on March 24, 1892, directed the local officers to notify William Kay to show cause within sixty days why his entry should not be canceled. In response to said notice William Kay filed his affidavit, in which he denied Thomas Kay's insanity on the day he made his relinquishment, and alleged that said Thomas Kay had abandoned his homestead in the year 1890. In reply, Thomas filed his second affidavit, corroborated by the affidavits of his wife and five other persons, repeating the allegation of his insanity at the date of his relinquishment, denying William's charge of abandonment, and alleging that William, since the date of his entry, had not complied with the provisions of the homestead laws. All of ex-parte affidavits were more or less circumstantial. On consideration whereof, your office, by letter "C" of May 27, 1892, directed the local officers to order a hearing to obtain additional information, to the end that your office might be able to properly determine whether Thomas Kay's relinquishment on May 18, 1891, was made with full knowledge of its real import. The hearing was had, and on September 3, 1892, the local officers rendered their joint decision recommending that the prayer of Thomas Kay be denied, and that the homestead entry of William Kay be allowed to remain intact. Thomas Kay appealed to your office. On February 13, 1893, your office reversed the decision of the local officers, and held William Kay's homestead entry No. 9117 for cancellation, and the homestead entry of Thomas Kay, No. 8243, for re-instatement. William Kay has appealed to this Department. I agree with your office in holding that the only issue now pending in this case, relates to the sanity or insanity of Thomas Kay on May 18, 1891. Testimony relating to transactions before or after that date is relevant only so far as it may tend to show his state of mind on that date. It is a presumption of law that all men are sane, and the burden of proof is upon the person alleging insanity. Where, however, a person has been proven to be insane, the presumption is that the insanity continues, and the burden of proof shifts to the party alleging sanity. (11 Am. and Eng. Encyclopedia of Law, 159–160.) On March 18, 1891, Thomas Kay was carried to the office of Dr. D. O. Miner, suffering with sub-acute meningitis, in a condition of imbecility bordering on idiocy; all his mental faculties were blunted. When Dr. Miner last saw him, on May 5, 1891, he had so far improved as to apparently be able to take care of himself, although at that time in asking any question, it required considerable time for him to perceive what you were speaking about. There was a dulness or blunting of his mental faculties at that time. He was seen to go into a chicken coop and catch a chicken, and pull the feathers from the living fowl and eat the feathers. Other instances of insane conduct are related by the witnesses. The proof is clear that Thomas Kay was insane during the months of March, April, May and June, 1891. The testimony tending to prove a lucid interval on May 18, 1891, is insufficient. Your office decision is hereby affirmed. CONTEST-RELINQUISHMENT-CONTESTANT. YOUNG v. MASON. If a relinquishment is filed as the result of a contest the contestant should have the benefit thereof, even though the contest affidavit is technically insufficient to warrant a hearing. Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1894. (W. F. M.) On May 1, 1889, Walter Page made homestead entry of the SE. of section 26, township 12 N., range 3 W., of the Oklahoma City land district. On January 3, 1891, George Young filed an affidavit of contest, alleging that Page had violated the law by premature entrance into the Territory. On March 19, 1892, Page's relinquishment of his entry was filed in the local office, and on the same day Susan Mason was allowed to make homestead entry for the same land. It appears that contestant Young's corroborating witness, on February 4, 1892, filed in the local office a further affidavit, stating "that since the corroboration of said contest affidavit aforesaid, he has become satisfied that he was mistaken in the identity of the said Walter Page, and that he did not see the said Walter Page as sworn to by him. He now desires to withdraw said corroboration, and asks same be not considered." From your office decision finding that Young's affidavit disclosed no personal knowledge as to the facts alleged, and holding it to be technically insufficient and dismissing said contest, the matter has been brought here on appeal. It appears to be true that from a technical point of view, the contest of Young is insufficient, yet this Department has held that the filing of a defective affidavit may become the efficient cause of a relinquishment, and in that event the contestant should have the benefit thereof; and in a case similar to the one at bar a hearing was ordered for the purpose of determining whether or not such a defective affidavit had brought about a relinquishment after the institution of the contest. Hay v. Yager et al., 10 L. D. 105. The decision of your office is, therefore, modified, and it is now directed that a hearing be ordered for the purpose of determining whether or not Page's relinquishment was the result of the contest initiated by Young. ADY v. BOYLE. Motion for the review of departmental decision of December 15, 1893, 17 L. D., 529, denied by Secretary Smith, July 2, 1894. RAILROAD LANDS. ACT OF MARCH 3, 1887. SWINEFORD ET AL. v. PIPER. The last proviso to section 5, act of March 3, 1887, only applies to settlers whose rights were acquired after December 1, 1882, and prior to the passage of said act. Section 5 of said act is not repealed by the act of March 2, 1889. That a deed of the land purchased from a railroad company is not delivered until after the passage of said act, does not defeat the right of such purchaser, or his assignee, to perfect title under section 5 thereof, if the sale by the company was in fact made prior to the passage of said act. Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.) 2, 1894. (A. E.) The record in this cause shows that on September 23, 1890, George F. Piper filed an application to purchase Sec. 25, Tp. 48, R. 15 W., Ashland (Wisconsin) land district, by virtue of the 5th section of the act of March 3, 1887, and gave notice of his intention to submit proof in support of his application, on November 5, 1890. This proof, though made on the day fixed, being declared premature by your office, Piper gave new notice and made new proof on March 3, 1891. On this date Curtis A Swineford, Charles M. Bird, Charles D. Bell and Benjamin M. Paddock appeared and protested. The local office having recommended that the applicant be allowed to purchase, the protestants appealed to your office. By decision of December 6, 1892, your office affirmed the action of the local office. From this Swineford, Paddock, Bell and Bird appealed to this Department. The land in controversy was within the grant of May 5, 1864, to the State of Wisconsin to aid in the construction of railroads, and under that grant fell within the ten miles limit of the Chicago, St. Paul, Minneapolis and Omaha Railroad. By the adjustment, the railroad company only received one half of the land, the other reverting to the United States. The company and the United States did not take this land in common where it came within the Wisconsin Central Railroad grant, made by the act of 1864, nor did the latter road take it in common with the Omaha Company. But it was held by this Department, that the Wisconsin Central could not go within fifteen miles of the Omaha road for any lands whatever because the lands within those limits were reserved from the Central |