the land in the act itself, or something equivalent to a withdrawal.

The land department holds that this act is mandatory, and that where a settler has complied with all the requirements of the law he is entitled to a patent even though a patent has previously issued to the railroad company, thus leaving the question with the courts.

Copp's L. O., vol. 7, p. 181.

Secretary Teller also holds that a settlement and filing constitute an entry under the act, and that the language "at a time subsequent to the expiration of such grant" has reference to the dates named in the various granting acts to railroads, as the dates at which the roads should be completed, and not to a time when, by legislative or judicial action, a forfeiture might be declared.

Copp's L. O., Dec. 1882.

And Acting Secretary Joselyn holds, under the facts stated in the opinion, that although a pre-emptor settled upon a tract subsequently to the definite location of the railroad opposite the same, and although he failed to file his declaratory statement within the prescribed time, the remedy conferred by the third section of the act of April 21, 1876, cures the technical defects in his case.

Copp's L. O., Dec. 1882.

§ 535.

Grants in Præsenti.—All the transcontinental railroad grants are grants in præsenti-that is to say, present grants; and as against all parties but settlers when the lands are transferred to the companies by the government, such transfer has relation back to the date of the act, and vests the title as of that date.

In regard to the right of a state to tax the land within the limits of a railroad grant, see Railway Co. v. McShane, 22 Wall. 461; Central P. R. R. Co. v. Howard, 52 Cal. 227.

Contests with Settlers.-When at the time the railroad attached, the granted land prima facie belonged to the road, the burden of proving that the same was excepted from the grant is upon him who affirms the existence of a valid pre-emption or homestead claim thereto at the date the grant took effect. He must show that the pre-emptor not only initiated a prior valid settlement, but that he possessed all the required personal qualifications.

A filing of record is prima facie evidence of a valid right as against the railroad, and to secure the tract, proper evidence

must be furnished by the company to show that the pre-emption claim was abandoned or invalid at the time the right of the road attached.

Copp's L. L., vol. 2, pp. 732, 897.

Certification.-Certification is the last act of the government in transferring lands to states and railroad companies.

As to the effects of certification where there was a land grant to a state for railroad purposes, see Copp's L. L., p. 804; and as to the effect where there has been a certification of school lands to a state, see Id., p. 962; 1 Otto, 130.

Mortgage.-A mortgage of railroad lands is such a sale as to prevent forfeiture of the lands if the road is not built within the time limited.

Overlapping Grants.-Where grants of land are made by the same act of congress to two different railroad companies, and afterwards the grants are found to overlap, the land falling within the overlapping limits inures to them jointly; in other words, they are tenants in common of such land.

Indian Territory.-As to the right of the Atlantic and Pacific Railroad Company to lands in Indian Territory, see Commissioner's Letter, Copp's L. L., p. 764. As to the right of the Northern Pacific Railroad Company to Indian lands, see Id., p. 964.

Practice. After patent has issued, a party may obtain relief in a court of chancery, if he has such an equitable right as will estop the patentee, or those claiming under him, from asserting the legal title to the land; otherwise such party must apply to the officers of the government, who, although not clothed with the power to set the patent aside, may, for that purpose, bring suit in the name of the United States.

Steel v. Smelting Co., 106 U. S. 447.

§ 536.

CHAPTER XXXI.

RULES OF PRACTICE.

Rules of practice in cases before the United States district land offices, the general land office, and the department of the interior, approved December 20, 1880.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., Nov. 26, 1880.

Sir: In compliance with your direction of the twenty-second of September last, I.have the honor to submit herewith, for your consideration and approval, a revised draft of the rules of practice in cases before the district land officers, the general land office, and department of the interior, embracing such modifications and additional rules as the experience of this office has suggested for the good of the practice and the public service; the whole being arranged in a new form by topics, and the consecutive numbering of paragraphs, with a view to greater clearness and convenience.

I am, sir, very respectfully, your obedient servant,

J. A. WILLIAMSON, Commissioner.

HON. C. SCHURZ, Secretary of the Interior.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, Dec. 20, 1880.}

Sir: I herewith return with my approval the draft of the revised rules of practice in land cases, received with your letter of November 26, 1880. Very respectfully,

C. SCHURZ, Secretary. To the Commissioner of the General Land Office.

RULES OF PRACTICE.

PROCEEDINGS BEFORE REGISTERS AND RECEIVERS.

I. CONTESTS AND HEARINGS.

1.-INITIATION OF CONTEST.

§ 537. Rule 1.-Contests may be initiated by a party in interest, or by any other person, in the following cases:

1. Alleged abandoned homestead entries.

R. S. 2297.

2. Alleged abandoned or forfeited timber-culture entries. 20 Stat. 113, sec. 3.

Rule 2.-In all other cases contests can be initiated only by a party in interest.

Rule 3.-In every case of application for a hearing, an affidavit must be filed by the contestant with the register and receiver, fully setting forth the facts which constitute the grounds of contest.

Rule 4.-Where an entry has been allowed and remains of record, the affidavit of the contestant must be accompanied by the affidavits of one or more witnesses in support of the allegations made.

2.-HEARINGS IN CONTESTED CASES.

Rule 5.-Registers and receivers may order hearings in the following cases wherein entry has not been perfected, and no certificate has been issued as a basis for patent, namely:

1. Contests between pre-emption claimants.

2. Contests between homestead and pre-emption claimants. 3. Contests to clear the record of abandoned homestead entries.

4. Contests to clear the record of abandoned or forfeited timber-culture lands.

Rule 6.-In cases of an entry or location of record, on which final certificate has been issued, the hearing will be ordered only by direction of the commissioner of the general land office. Rule 7.-Applications for hearings under the preceding section must be transmitted by the register and receiver, with special report and recommendation, to the commissioner for his determination and instructions.

3.-NOTICE OF CONTESTS.

Rule 8.-At least thirty days' notice shall be given of all hearings before the register and receiver, unless, by written consent, an earlier shall be agreed upon.

Rule 9.-The notice of contest and hearing must conform to the following requirements:

1. It must be written or printed.

2. It must be signed by the register and receiver, or by one of them.

3. It must state the time and place of hearing.

4. It must describe the land involved.

5. It must state the range and range number of the entry,

and the land office where and the date when made, and the name of the party making the same.

6. It must give the name of the contestant, and briefly state the grounds and purpose of the contest.

7. It may contain any other information pertinent to the contest.

4.-SERVICE OF NOTICE.

Rule 10.-Personal service shall be made in all cases when possible, if the party to be served is resident in the state or territory in which the land is situated, and shall consist in the delivery of a copy of the notice to each person to be served.

Rule 11.-Personal service may be executed by any officer or person.

Rule 12.-Notice may be given by publication alone, only when it is shown by affidavit of the contestant, and by such other evidence as the register and receiver may require, that personal service can not be made.

5.-NOTICE BY PUBLICATION.

Rule 13.-Notice by publication shall be made by advertising the notice at least once a week for four successive weeks, in some newspaper published in the county wherein the land in contest lies; and if no newspaper be published in such county, then in the newspaper published in the county nearest to such · land.

Rule 14.—Where notice is given by publication, a copy of the notice shall be mailed by registered letter to the last known address of each person to be notified, and a like copy shall be posted in a conspicuous place on the land during the period of publication, for at least two weeks prior to the day set for hearing.

6.-PROOF OF SERVICE OF NOTICE.

Rule 15.-Proof of personal service shall be the written acknowledgment of the person served, or the affidavit of the person who served the notice attached thereto, stating the time, place, and manner of service.

Rule 16.-When service is by publication, the proof of service shall be a copy of the advertisement, with the affidavit of the publisher or foreman attached thereto, showing that the same was successively inserted the requisite number of times, and the date thereof.

7.-NOTICE OF INTERLOCUTORY PROCEEDINGS.

Rule 17.-Notice of interlocutory motions, proceedings, or