court of Ventura county, California, which recited, among other things, that "the said applicant has heretofore, and more than two years since, and in due form of law declared his intention to become a citizen of the United States."

It thus affirmatively appears from the record that Conniff was a qualified pre-emptor when he filed said declaratory statement, and it does not clearly appear that Conniff was not a qualified settler at the date of settlement, prior to said withdrawal. Moreover, the company did not, in said protest, raise the question of Conniff's citizenship at the date of his said settlement, and it will not be heard to do so on appeal, nor will the Department reject his proof, since it does not affirmatively appear that he is not entitled to the land. It is, therefore, unnecessary in this case to consider the question whether the natu ralization of a pre-emptor relates back to the date of his settlement so as to defeat the indemnity withdrawal.

The record shows that, prior to the selection by the company, Conniff was a qualified pre-emptor and his filing was then of record: that the company appeared and offered no objection to his qualifications to make said settlement on the date alleged, and it will therefore be assumed, on appeal, that Conniff was a qualified settler prior to said withdrawal, on the date of his alleged settlement.

For the foregoing reasons the decision of your office holding said selection for cancellation was correct, and the decision appealed from to that effect must be, and it is hereby, affirmed.

PRACTICE SERVICE OF NOTICE-RESIDENT ATTORNEY

PETERSON V. FORT.

The time within which an appeal from the decision of the Commissioner must be filed begins to run from the date that service is first made, whether it be upon the party himself or upon his attorney, either local, or resident in Washington. Acting Secretary Chandler to the Commissioner of the General Land Office, November 13, 1890.

Catharine Peterson files this application, praying that the record in the above stated case may be certified to the Department under rules 83 and 84 of Rules of Practice. Said application presents the following case:

On October 1, 1889, your office rendered a decision in the case of Catharine Peterson v. George W. Fort, rejecting the final pre-emption proof of said Peterson for the E. of the NW. 4, NW. 4 of the NW. 4, Sec. 20, and NE. of the NE. 1, Sec. 19, T. 32 N., R. 15 W., Niobrara, Nebraska, and allowing the homestead entry of George W. Fort for said tract; that on December 28, 1889, the applicant, by her said attorney, filed in the

General Land Office an appeal from said decision, which your office declined to transmit to the Department, for the reason that "it was not filed within sixty-one days from the date of the decision."

The applicant contends that under the rule laid down in the case of Boggs v. West Las Animas Townsite, 5 L. D., and in King v. Leitensdorfer, 2 L. D., 374, the time for filing such appeal did not expire until on or about January 6, 1870, or seventy days from the day when notice of the decision was mailed by the local officers.

In the letter of your office of January 10, 1890, declining to transmit said appeal, it is stated that "said appeal is denied under rules 86 and 97 of practice."

Rule 86 is as follows:

Notice of an appeal from the Commissioner's decision must be filed in the General Land Office, and served on the appellee or his counsel within sixty days from the date of the service of notice of such decision.

Rule 97 provides that:

Fifteen days, exclusive of the day of mailing, will be allowed for the transmission of notices and papers by mail, except in case of notice to resident attorneys, when one day will be allowed.

It is not stated in the application when or how notice of the decision of your office of October 24, 1889, was served, but from the fact that it was decided under rule 97, it may be assumed that the service was made on the resident counsel in this city.

The rule that the time for filing an appeal from the Commissioner's decision does not expire until after seventy days from date of notice, only applies where notice of said decision is sent through the mails by the local office. This was the ruling in the case of Boggs v. West Las Animas Townsite, supra. The case is not controlled by that ruling, for the reason that this notice was not sent through the local office, but was served on the resident counsel in Washington. In the former case, the time allowed for appeal is controlled by rule 87, but in the latter case it is controlled by rule 97. It is, however, contended by counsel that rule 87 is made applicable to this case by the ruling in the case of King v. Leitensdorfer, 2 L. D., 374. This was a decision of the Commissioner, in which it was held that, where notices of the decision of the Commissioner is served on resident attorneys in Washington, and also by the local office on the party or his local attorney, the time for appeal will commence to run from date of the latter service. Also to the same effect is another decision by the same Commissioner: that of Roach v. Myers et al., 1 L. D., 464.

This construction of the rule, which is not evolved from any sound principle or process of reasoning, has not been followed by the Depart ment; but, on the contrary, the reverse has been the ruling. (Case of John G. Parker, Lands and Railroad Div., Vol. 70, page 3).

It is a well settled rule that service may be made upon either the party in interest or his attorney, and service upon the attorney is suffi

cient service upon the party. It is also a well settled rule that where there are several attorneys of record, service upon any one of them is sufficient service to bind the client. Rule 106, Rules of Practice; Thomas Howard, 3 L. D., 409; George Premo, 9 L. D., 70; Thomas C. Cook, 10 L. D., 324. Now, if service upon either of the attorneys of record "will be deemed notice to the party in interest, it must necessarily follow that the time within which the appeal must be filed commences to run from the date that service is first made, whether it be upon the party himself, or upon his attorney, either local, or resident in Washington.

The petition is denied.

MINING CLAIM-RES JUDICATA-MINERAL LAND.

SEARLE PLACER.

A departmental decision that land is mineral in character does not preclude subsequent investigation, on the part of the Department, as to the character of such land, as the Department retains jurisdiction to consider and determine the character of land claimed under the mineral laws until deprived thereof by the issuance of patent.

A placer application will not be allowed if the evidence does not show as a present fact the placer character of the land involved.

Acting Secretary Chandler to the Commissioner of the General Land Office, November 13, 1890.

This is an appeal by A. D. Searle from your office decision of March 6, 1886, rejecting his application to make mineral entry for the Searle placer claim, amended survey No. 435, Leadville, Colorado.'

His original application was filed July 5, 1879, for 150.02 acres. By the pending application filed March 10, 1882, his claim was reduced to 101,918 acres, thereby excluding certain conflicting lode claims.

It appears from the statements of your office that prior to the original application the county judge having applied on behalf of the inhabitants of North Leadville to enter the land as a townsite, a hearing was ordered to determine its character and the priority of right, that upon the evidence adduced your office decided in favor of Searle, and that on appeal, this Department on April 17, 1880 (7 C. L. O., 36), affirmed that decision and held that the surveyor general's return as to the mineral character of the land had not been overcome. The townsite application was accordingly dismissed.

Subsequently, on the report of a special agent of your office and the representations of certain residents of Leadville, alleging among other things that the ground was not placer, the Department, December 27, 1882, finding a "great doubt whether or not the ground claimed is more valuable for placer mining than for other purposes" ordered a

hearing to ascertain the character of the land and the status of all existing claims and interests and suspended all prior orders and proceedings.

Upon the evidence adduced at the hearing had (November, 1883), in pursuance of the above order the local officers found that the land was not distinctively valuable for placer mining and that the same had not been improved as required by law and recommended the rejection of the pending application.

On Searle's appeal from this ruling, the same was affirmed by your said office decision of March 6, 1886.

In his appeal here he alleges that the question as to the character of the land became res adjudicata by reason of the action of the Department (7 C. L. O., 36, supra) upon the former hearing.

This contention is disposed of adversely to him by the departmental decision in the case of the Central Pacific R. R. Co. v. Valentine (11 L. D., 238), wherein it was held (p. 246), that the Land Department had jurisdiction to ascertain and determine what lands were subject to the railroad grant (from which mineral land was expressly excepted) and that such jurisdiction continues "until the lands have been either patented or certified to, or for the use of, the railroad company."

The matters touching the merits of the case are sufficiently stated by your office in the decision appealed from and reference is had thereto. It, will therefore be quite unnecessary for me to comment in detail, upon the voluminous testimony submitted in this case.

It is the rule of the department that the "first care in recognizing an application for patent upon a placer claim must be exercised in determining the exact classification of the lands," which are sought to be acquired as such. (Sec. 1, Circular September 22, 1882, 1 L. D., 685.)

The testimony produced at the rehearing had before the local officers. in November, 1883, although conflicting in its character, I think by a fair preponderance, establishes the fact that continued prospecting for several years failed to disclose in any appreciable quantity, the pres ence of valuable placer mineral in the claim or to establish as a “present fact" within the meaning of section 2329, R. S., the "placer" character of the land. Peirano et al. v. Pendola, 10 L. D., 536. It further appears that while the appellant has constructed some ditches on the tract, he has brought no water thereon and that the work on the claim consisted mainly in making a considerable number of shafts with the view to the discovery of "lodes" and not for the purpose of "placer" development.

The testimony was taken before the register and receiver, who saw and heard the witnesses on the stand, observed their demeanor and could judge therefrom who is most worthy of credit.

Their joint opinion is accordingly entitled to special consideration. Kelly v. Halvorson (6 L. D.,225); Morfey v. Barrows (4 L. D., 135).

In accordance therefore with the views heretofore expressed, I must

find that no sufficient warrant is shown for disturbing the concurring decisions of the local and your office, which under like circumstances are generally accepted by this Department as conclusive. Chichester v. Allen (9 L. D. 302); Conly v. Price (id., 490). Cleveland v. North, 11 L. D., 344.

The judgment of your office is affirmed.

RAILROAD GRANT-PRE-EMPTION FILING-SETTLEMENT CLAIM.

NORTHERN PACIFIC R. R. Co. v. MARSHALL.

A prima facie valid pre-emption filing of record, at date of statutory withdrawal on general route, excepts the land covered thereby from the operation of such withdrawal.

A claim based on settlement, residence, and cultivation, existing at the date when the grant becomes effective, excepts the land covered thereby from the grant. Acting Secretary Chandler to the Commissioner of the General Land Of fice, November 15, 1890.

With your letter of October 9, 1889, you transmit the appeal of the Northern Pacific Railroad Company from your office decision of April 9th of that year, wherein you hold that the NW. 1 of Sec. 29, T. 1 S., R. 1 W., Bozeman, Montana, is excepted from the operation of the grant to said company, by act of July 2, 1864 (13 Stats., 365). It appears from the record that on June 5, 1885, Ira M. Marshall made homestead entry of said tract. That the land is within the granted limits of the Northern Pacific Railroad Company. The withdrawal of the odd numbered sections for the benefit of which became effective February 11, 1872, upon the filing of the map of general route. The line of road opposite the land in question was definitely located July 6, 1882, and the right of the company is held to have attached at that date.

When the land was withdrawn from market, it was occupied by one Jerome Bishop, a citizen of the United States, who had filed a declaratory statement for the tract January 29, 1872. He built a house and barn, and cultivated about twelve acres to wheat in 1871, and cut forty or fifty acres of grass in the year 1872. He also dug an irrigating ditch and extended it through the land the same year. Bishop lived on the claim until the fall of 1873, when he sold his possessory right to Alonzo Gillam, who was a single man, over twenty-one years of age, and a citi zen of the United States. Gillam occupied the tract until the spring of 1874, when he sold the improvements to the defendant for $500, and he has been in possession of the tract since that date, cultivating and improving the same every year.

On the 31st day of May, 1881, Marshall appeared at the local land office and applied to file on the land. He was informed by the receiver, John V. Bogert, that the tract belonged to the Northern Pacific Railroad