ated in an adjoining township, but contiguous to the lots entered by him. In support of said application he filed his affidavit, corroborated by two witnesses, in which he alleged:

That at the time he made said entry he applied for lots 1 and 2 of Sec. 18, T. 11 N., R. 5 E., and also for lot 1 of Sec. 13, T. 11 N., R. 4 E., all of said tracts being contiguous; that at the time he presented said application he was informed by the clerk in charge at the U. S. Land Office that lot 1 in Sec. 13, T. 11 N., R. 4 E., was not open to entry but was allotted land, and your affiant was shown a schedule which appeared to indicate that said land was not open to entry. That your affiant was only allowed to make entry of said lots 1 and 2 in Sec. 18; that your affiant established his residence on said lots 1 and 2 of said Sec. 18, T. 11 N., R. 5 E.; has built a house thereon, reduced a portion of said tract to cultivation and has in all respects complied with the homestead law as to residence and improvement; that he has cleared and reduced to cultivation some two or three acres upon said lot 1 in Sec. 13; that a short time ago your affiant was informed by his former attorney, L. P. Hudson, that a mistake had been made in telling him that lot 1 in Sec. 13 was allotted land, and that the same was in truth and in fact, government land and open to entry; that no person other than your affiant has occupied or improved said lot 1 in Sec. 13, and that the same is also clear of any adverse claims of record.

The local officers recommended that the application be allowed. But on December 21, 1893, your office reversed the decision of the local officers, saying:

There appears to be no law or regulation of this department, under which Orr's application to amend may be properly allowed; and the application is therefore rejected subject to the usual right of appeal.

From said decision Orr appealed; and on July 6, 1895, this Depart ment reversed your office decision, saying:

In view of the facts set forth, and especially of the improper restriction through the erroneous action of the local land office, it is my opinion that Orr should be allowed to amend his homestead entry in accordance with his original application. (See Northern Pacific Railroad Company v. Yantis, 8 L. D. 58).

And your office proceeded by letter "C" of August 17, 1895, to carry said departmental decision into effect.

In the meantime, while Orr's appeal was pending, to wit: On May 3, 1894, Lewis Hudson had been permitted by the local officers to make homestead entry of the aforesaid lot 1 of section 13, T. 11 N., R. 4 E., containing 13.55 acres of land, which were awarded to Orr by the departmental decision aforesaid. Whereupon your office by letter "C" of October 3, 1895, directed the local officers to advise Lewis Hudson that he will be allowed thirty days from notice within which to show cause why his said entry should not be cancelled, having been improperly allowed when the tract was reserved by the pending application for amendment of Joseph C. Orr, party to homestead entry 3267, made March 15, 1892, for lots 1 and 2, sec. 18, T. 11 N., R. 5 E. Within the thirty days prescribed, Hudson filed under his oath, but uncorroborated, an answer to the rule, and a protest against the allow ance of Orr's application to amend, in which he alleged:

That at the time he made said homestead entry he was informed by a Mr. Watts a clerk in the said Land Office, that said tract was vacant government land subject to

homestead entry, aud that he has since date of said entry settled and resided upon said tract in good faith and made valuable improvements thereon.

That the records of the said Land Office show that said Joseph C. Orr made his homestead entry upon lots 1 and 2 of section 18, in township 11 N. of range 5, east of the I. M. and that on August 17, 1895 he was allowed to have his said homestead entry amended, by direction of the Honorable Secretary of the Interior. That your affiant is informed that said Orr, has represented in his application for said amendment that he went to the U. S. Land Office aforesaid, at the time he made his original entry (No. 3267) and “applied to enter also lot 1 of Sec. 13 in township 11 N. of range 4 east I. M." That this affiant is informed and verily believes that said Joseph C. Orr never applied nor offered to enter said lot 1 of section 13 T. P. 11 N. of range 4 east, until after he made his original entry as aforesaid. That this affiant made settlement upon said tract during the month of August 1894, and about the same time established his residence thereon. That said Orr, has resided upon and improved the tract he originally entered and confined his improvements to the same, except that he has built his fence across the line in one place, so as to enclose about a half or three fourths of an acre of the tract in controversy.

That he has only occupied said tract by cutting and disposing of all the valuable timber thereon, and has at no time disputed the right of this affiant to said tract until after the amendment of his said entry was allowed as aforesaid, and that said Orr has resided within about a quarter of a mile of this affiant during all of the time he (affiant) resided upon and claimed said tract and was fully advised of the fact that your affiant had entered and claimed said tract as his homestead. Wherefore. He protests against the cancellation of his said homestead entry No. 8680, and asks that a hearing be ordered and that this affiant may be allowed to prove the allegations herein set forth, and to show that said Joseph C. Orr did not apply to enter the tract in controversy until after date of his original entry.

On January 13, 1896, your office denied Hudson's application for a hearing and held his entry for cancellation saying:

The application for amendment by Orr, reserved the land until the final disposition thereof, and Hudson could acquire no rights thereto as against Orr. It is therefore unnecessary to order a hearing, and the entry having been improperly allowed, is this day held for cancellation.

Hudson appealed to this Department:

It is a well settled principle that a legal application to enter land, is while pending, equivalent to actual entry, so far as the applicant's rights are concerned, and its effect is to withdraw the land embraced therein from any other disposition, until such time as it may be finally acted upon. The fact that the application of appellant was not an original, but only for amendment of a former entry to embrace the land in dispute, does not alter the case (Mack Long, 15 L. D., 579).

Land covered by one entry, or by an application to enter by amendment or otherwise, is not subject to another entry at the same time; and an application to enter land not subject to entry at the time the application is made, confers no rights upon an applicant. (Rumbley v. Causey, 16 L. D., 266). A legal application to enter land subject to entry, while pending, is equal to actual entry, so far as the applicant's rights are concerned, and withdraws the land embraced therein from any other disposition, until final action thereon. (Hamilton v. Harris, 18 L. D., 45 and Pfaff v. Williams, 4 L. D., 455).

Orr's application to enter by amendment the lot of land in controversy, was filed and put on record on December 2, 1893. The lot was

thereby withdrawn from any other disposition. The act of the loca' officers in permitting Hudson to make entry of the lot on May 3, 1894, was beyond their authority, and Hudson acquired no rights thereby. The fact that Mr. Watts, the clerk, was mistaken and misled Mr. Hudson as to the status of the tract, cannot impair the rights of Mr. Orr. The purpose of this proceeding against Mr. Hudson is to remove from the records his entry which was unlawfully made pendente lite, and which is inconsistent with the entry which the Department authorized Orr to make of the same tract. Mr. Hudson, who acquired no interest by his unlawful entry, cannot be permitted in this collateral proceed ing to impeach the decision of the Department in Orr's case, to which he, Hudson, was not a party. The facts alleged in his answer and protest are not sufficient to entitle him to a hearing in this case. Your office decision is hereby affirmed.

SETTLEMENT CLAIM—SUCCESSFUL CONTESTANT.

HINE v. CLIFF.

A settlement on land covered by the entry of another, confers no right as against a successful contestant who secures the cancellation of such entry.

Secretary Bliss to the Commissioner of the General Land Office, May 11, (W. V. D.)

1897.

(J. L. McC.)

On September 19, 1893, David A. Kittleman made homestead entry for the NW. of Sec. 26, T. 28 N., R. 1 W., Perry land district, O. T. Twenty-seven days afterward-to wit, on October 16, 1893-Meredith A. Tarleton filed affidavit of contest against said entry, alleging prior settlement. No action appears to have been taken on said affidavit.

On June 4, 1894, Frank D. Cliff filed affidavit of contest against said entry on the ground of abandonment; and afterward an additional affidavit of contest, charging that Tarleton had never established residence on the land.

This case was set for a hearing, at which time Cliff appeared, but both Kittleman and Tarleton defaulted.

From the testimony taken it appeared that the entryman, Kittleman, had failed to establish residence on the tract, or to cultivate or improve the same, and had abandoned it for more than six months prior to the filing of the contest affidavit; and that Tarleton had never established residence upon the land, although more than six months had passed since he had filed an affidavit alleging prior settlement. The local officers therefore recommended the cancellation of Kittleman's entry and the dismissal of Tarleton's contest. From their decision no appeal was taken, and on May 20, 1895, your office canceled Kittleman's entry. On June 13, 1895, Cliff exercised the preference right earned by his successful contest, and made homestead entry of the land.

On July 10, 1895, Lewis P. Hine applied to make homestead entry of the land; but the local officers rejected his application because of conflict with Cliff's homestead entry, made June 13, 1895 (supra). Hine appealed to your office, alleging that he was a settler upon the land prior to the settlement of Cliff; and that the local officers should have ordered a hearing to determine the fact as to priority. Your office, by decision of March 13, 1896, held:

Although Hine alleges settlement on the tract on May 30, 1894, he made no attempt to establish a claim to the land until July 10, 1896-fourteen months after the date of settlement; and by failing to assert his claim within three months from such settlement he lost all right he might have acquired thereunder:

Therefore your office refused his application for a hearing.

Hine has appealed to the Department. He contends, in substance, that Cliff filed his contest against Kittleman within a few days after Hine's settlement on the land, and within three months allowed him (Hine) in which to place his application of record; that after the contest had been filed by Cliff, he (Hine) had no way of placing himself on record prior to Cliff; that an application by Hine for said land would have been rejected on account of Kittleman's then existing entry, and a contest for abandonment would have been held in abeyance until the disposition of Cliff's contest for abandonment; that it was not until Cliff made entry under his preference right that he (Hine) had an opportunity under the rules to assert his claim, which he did by apply. ing to make entry of the land, within a month after Cliff's entry; and he asks that a hearing be ordered to determine, as between him and Cliff, which was the prior settler.

It is clear that Hine, for the same reason that he could not have been permitted to make entry of the land at the date when he went upon it (because it was segregated by Kittleman's homestead entry), could not make a legal settlement or establish a legal residence thereon while said entry remained of record. (Turner v. Robinson, 3 L. D., 562, and many cases since).

After Cliff had initiated contest against Kittleman, Hine's settlement (whether made before or after the initiation of Cliff's contest) was subject to Cliff's preference right in case such contest should result in the cancellation of the entry. When the entry was canceled as the result of said contest, and Cliff made entry of the land, Hine's settlement (even conceding it to have been made earlier than that of Cliff) conferred upon him no rights in the premises.

The decision of your office denying Hine's application for a hearing is therefore affirmed.

10671-VOL 24-28

HARDING v. Moss.

Motion for review of departmental decision of February 13, 1897, 24 L. D., 160, denied by Secretary Bliss, May 13, 1897.

TIMBER CULTURE APPLICATION-INDEMNITY WITHDRAWAL.

GORDER v. ST. PAUL, MINNEAPOLIS AND MANITOBA Ry. Co.

An application to make timber culture entry of land withdrawn for the benefit of a railroad grant confers no right as against the grant or the government, and if the land, so applied for, is subsequently restored to the public domain, after the repeal of the timber culture law, there is no right in the applicant that brings him within the protective terms of said repeal.

Secretary Bliss to the Commissioner of the General Land Office, May 13, (W. V. D.) 1897. (W. A. E.)

The plaintiff in the case of Christian C. Gorder r. St. Paul, Minneapolis and Manitoba Railroad Company has appealed from your office decision of January 5, 1895, holding for cancellation his timber culture entry, allowed January 7, 1893, for the SE. of the NE. of Sec. 35, T. 125 N., R. 39 W., St. Cloud, Minnesota, land district.

Said tract is within the indemnity limits of the grant for the benefit of the main line of said road, the withdrawal on account of which was made August 14, 1868. This withdrawal remained in force until May 22, 1891, when it was revoked (12 L. D., 541), under the authority of section 4 of the act of Congress approved September 29, 1890 (26 Stat., 496).

It is also within the indemnity limits of the grant for the benefit of the St. Vincent Extension of said road, the withdrawal for which was made February 6, 1872.

November 25, 1873, it was selected by the company on account of the St. Vincent Extension grant. No losses were specified as a basis for said selection, it not being required at that date, but on June 6, 1894, a rearranged list was filed, in which losses were specified, tract for tract.

November 21, 1876, said tract was claimed as swamp by the State of Minnesota,

January 3, 1887, Christian C. Gorder tendered his timber culture application for the land and said application was rejected for conflict with the claim of the State.

Gorder appealed, and a hearing was ordered to determine the character of the land. As a result of the hearing the claim of the State was finally rejected by your office on September 9, 1892, and on January 7, 1893, Gorder was permitted to perfect his timber culture appli cation.