or extent of the improvements and only requires that they should be such as would indicate the good faith of the entryman." In the case of John E. Tyrl (3 L. D., 49), where it appears that the entryman had cleared about one half acre of the land but cultivated no portion of it nor raised any crop thereon, it is held that clearing the land of timber for the purpose of planting it, is cultivation within the meaning of section 2301 Revised Statutes. Under these decisions and this testimony Ford's proof should be accepted, but as Terrill has not had his day in court, your decision is modified as follows: The protest of Findley and others is dismissed. Ford will make new publication of notice and specially cite Elisha Terrill, and in the absence of protest, and the failure of Terrill to show cause, if any, why his declaratory statement should not be canceled and Ford's proof allowed, the proof already made will be accepted and if there is no other legal objection, the entry will be passed to patent. PRACTICE-STARE DECISIS. JOHN T. NAFF. The General Land Office in the disposition of cases that fall within well settled rulings of the Department must be governed by such rulings until they are reversed by departmental authority. Secretary Noble to the Commissioner of the General Land Office, August 8, 1890. I am in receipt of a communication from Acting Commissioner Stone, dated August 5, 1890, calling the attention of the Secretary of the Interior, "with a view to repayment, to the pre-emption filing No. 4,813 of John T. Naff, made at the Spokane Falls land office, on the 15th day of July, 1884, for the E. SE., SW. † SE. 4, and the SE. SW. † of Sec. 12, T. 19 N., R. 43 E., W. M." After making a statement relative to the final proof and payment for said land, the embezzlement by the absconding receiver of the local office of the $400 first paid by the pre-emptor, and the making of new proof and payment for said land, the Acting Commissioner states: Heretofore the decisions of this Department have been to the effect that no repayments of purchase money can be made unless strictly provided for by statutes; even when the money has been paid twice (see 5 L. D., 114). If this be the spirit of the rulings of the Department, there can be no doubt that great injustice is being done to settlers, and has been done in the past. It is not to be presumed that there shall be a particular statute to cover every particular right, wrong, or remedy. The Commissioner further says:— It was not the intention of Congress to pass so many many wise, just and liberal laws providing homes for settlers, and then permit them to be harassed, and their rights injured by harsh implications of this department. The mass of unwritten laws are as great, and of as much weight, as the written laws. Many rights are not re-enforced by statutes. He is therefore of the opinion, "in view of the circumstances of this . that repayment should be made." case No application by said Naff for repayment accompanies said communication, nor, indeed, is it expressly stated that he has made any. The Acting Commissioner makes an argument in support of the right of Naff to repayment, but does not specifically request any instructions in the premises. It is true he cites the case of the Heirs of Isaac W. Talkington (5 L. D., 114), which holds a contrary view to that expressed by him. It is not intended to express any opinion herein relative to the right of Mr. Naff to repayment. If he has such right, he must show it prima. rily to your office, and, if its decision be adverse to him, he has the right of appeal. But, in passing upon the question, your office must be governed by the well settled rulings of the Department, which alone has the authority to overrule its own decisions. Any other procedure would make the appellate tribunal inferior to the subordinate and necessarily create inextricable confusion. Troy's Heirs v. Southern Pacific Railroad Company (2 L. D., 523); J. H. Kopperud, 10 L. D., 93. No unwritten law can overturn the departmental decisions, duly rendered and promulgated for the guidance of all concerned. If Mr. Naff has made application for repayment, the same should be duly considered by your office in the light of the departmental rulings, and, if adverse to him, he should be advised of his right of appeal to the Secretary of the Interior, and if he exercise such right, his case will be carefully considered. CONTESTANT-PREFERENCE RIGHT-SETTLEMENT. POWERS v. ADY. A successful contestant, who has due notice of the cancellation of the entry and fails to exercise the preference right within the statutory period, has thereafter no right of entry that can be asserted in the presence of a valid intervening adverse claim. Personal acts of the settler are essential to the acquisition of settlement rights. I have considered the appeal of Anna V. Powers from your decision of December 27, 1888, rejecting her application to enter the SW. 1 of Sec. 11, T. 122, R. 77, Aberdeen, Dakota. The facts in the case are stated in your office letter. The contestant Powers had full notice of the cancellation of the prior entry on the land which she had contested, and failed to exercise the right given her by the statute of making entry for the tract within thirty days from the date of the receipt of said notice, and even if this failure was the result of ill health and want of means, it is beyond the power of this Department to afford relief in the presence of a valid adverse claim. From an examination of the evidence I am not satisfied that she acted in perfect good faith in the matter of delaying her application to enter. The explanation given by the contestant and her father of the attempted sale of the right to enter the land is not satisfactory. It is, however, unnecessary to discuss that question at length. Up to the date of hearing the contestant had not made a bona fide settlement on the land or established a residence thereon. The slight improvement put upon the tract by the father at the request of the contestant, consisting of a little breaking and the commencement of a sod shanty, can not be considered a personal settlement. McLean v. Foster (2 L. D., 175): Byer v. Burrill (6 L. D., 521). The contestant did not even go upon the land after the improvements were made until more than a month after Ady had made his homestead entry, and her presence for two separate nights only, in a sod shanty without a floor and without a stove or any article of furniture, or any of the appliances for housekeeping, can not be considered a settlement in the absence of any subsequent act indicating a desire to make a bona fide residence. Your decision is affirmed. PROCEEDINGS ON SPECIAL AGENT'S REPORT-EVIDENCE. UNITED STATES v. O'Dowd. In a hearing ordered to test the validity of an entry the testimony offered on final proof can not be considered, but due weight should be given to the legal presumption that the entry is valid. First Assistant Secretary Chandler to the Commissioner of the General Land Office, August 8, 1890. I have considered the appeal of Anthony O'Dowd from the decision of your office dated May 15, 1889, holding for cancellation his pre-emp. tion cash entry, for the NW, Sec. 5, T. 122 N., R. 65 W., Aberdeen Land District, South Dakota. As it appears from the record in the case at bar, the claimant and his transferees were duly notified of the time and place of the hearing, and failed to appear thereat, either in person or by attorney. While the evidence given by the witnesses for the government at said hearing is general in its character, and was drawn out by leading questions, yet it establishes a prima facie case against said entry. Under these circumstances it was incumbent upon the entryman to offer proof in support of his entry, if he desires to uphold the same. James Copeland (4 L. D., 275); Etienne Martel (6 L. D., 285). The testimony submitted as final proof can not be considered in arriv ing at a conclusion in this case, but due weight should be given to the fact that an entry had been allowed. Tangerman et al. v. Aurora Hill Mining Co. (9 L. D., 538). For the reasons herein given the decision appealed from is affirmed. TIMBER CULTURE CONTEST-GOOD FAITH OF CONTESTANT. MCANULTY v. WOOD. A contestant will not be permitted to take advantage of his own wrong to establish a charge of non-compliance with law, and thus secure a preference right of entry. First Assistant Secretary Chandler to the Commissioner of the General Land Office, August 10, 1890. On August 25, 1886, Wm. A. McAnulty filed a contest against the timber culture entry of Seeley C. Wood, made November 30, 1883, for the N. NE. and N. NW. Sec. 33, T. 21 S., R. 21 W., Larned, Kansas, charging that said entryman "failed to break the ten acres required by law during the first two years of his said entry and up to the present time, and said Seeley C. Wood has offered for sale, and has sold his right and title to said tract of land for a valuable consideration." The testimony taken at the hearing upon said contest shows that there were not ten acres broken on the tract in controversy during the first and second years of the entry. McAnulty, the contestant swears that Wood the entryman broke what was supposed to be five acres the first year and employed him (McAnulty) to break the other five the second year. He states that he measured the breaking done by Wood, and broke the same quantity; that he agreed to complete the amount of breaking required by law with the understanding that Wood had five acres broken, and he, witness, was to break the same amount, but he did not break five acres because there was not five acres broken by the entryman. He testified that there were about eight acres and twelve rods in the piece measured by him, but there was also an acre of breaking on the tract not included in the breaking measured by him. The local officers found that There appears to have been the full amount of breaking done to meet the requirements of the law, but the plaintiff and some other parties, by a system of horse back survey' starting from a point that they were not positive was an established corner by the government survey, throw a portion of the breaking intended to have been on tract in dispute, upon an adjoining quarter section, which finding was affirmed by your office. While it is true that the plan adopted by contestant to find the exact line of the claim was too uncertain to establish definitely the line-the north-east corner having been located by mere conjecture—yet one of the witnesses testified that he saw the corner stone before it was re2497-VOL 11-12 moved, and knew the line from having built a fence on the prolongation of the east line of the claim. There was also no evidence offered by Wood denying the accuracy of the line as found, or to show where the true line was or that the breaking was all upon the claim in controversy. But it is shown by the testimony of contestant that he was employed by the entryman to break five acres the second year, both parties supposing that the first breaking embraced the full quantity of five acres, and that it was understood that the breaking to be done by contestant would complete the full quantity required by law. He swears that he knew there was only eight acres and twelve rods broken, but he failed to communicate it to Wood. He further swears that W. S. Wood, a son of the entryman, offered to sell him the tract and then offered to sell it to another, when he, the contestant, told W. S. Wood that he could get it cheaper by contesting it. I do not think the contestant has shown such good faith in the premises as to prevent the entryman from curing the default, even in face of this contest, and as it is shown by the testimony that prior to the hearing the defendant had two more acres broken, thus completing the amount required by law, to cancel this entry and award to contestant the preference right of entry would be to aid him in taking advantage of his own wrong. There was no testimony showing that the entryman had offered to sell the tract, the only testimony upon this point being that W. S. Wood, a son of the entrymen, had offered to sell, but there was no evidence showing that he was the agent of the entryman, or had authority to make such an offer. For the reasons above stated the decision of your office dismissing the contest is affirmed. SETTLEMENT RIGHTS-RELINQUISHMENT. CASON v. LADD. One who is occupying land as the tenant of an entryman, acquires no right as a settler, on the relinquishment of the entry, that can be set up to defeat the intervening entry of another. First Assistant Secretary Chandler to the Commissioner of the General Land Office, August 11, 1890. The tract in controversy, to wit, the S. SE. Sec. 31, T. 18 S., R. 6 W., Larned land district, Kansas, was formerly embraced in the timber culture entry of Joseph H. Leavitt which was relinquished November 12, 1885. On the same day Zachius E. Ladd made timber culture entry of said tract and on November 20th following Daniel E. Cason applied to make homestead entry of the tract alleging settlement April 15, 1885, which was also allowed. Ladd then filed application to have the homestead entry of Cason canceled and upon a hearing had thereon |