his right to make homestead entry and recommended the entry in controversy for cancellation, from which action Alexander appealed to your office and on April 27, 1889, you affirmed said decision and held the entry for cancellation, whereupon he appealed to this Department. He assigns as error: First: That the Commissioner erred in holding that claimant had exhausted his rights, etc. Second: In holding that a person who had borne arms against the government of the U. S. could, prior to revision of the statutes of the U. S. make a homestead entry. The so called first homestead entry having been made under the act of Congress approved May 20, 1862 and before the enactment of Sec. 2239 (Rev. Stat.). Third: In not holding that the entryman was entitled to make a homestead entry under Sec. 2289 (Rev. Stat.) even though he had made an entry under the act of Congress approved May 20, 1862. Pending this appeal, Henry N. Copp, attorney for Nehemiah Fine, filed, on September 14, 1889 in your office, an application that Fine be allowed to appear in the case as an intervenor, and the same is sup ported by the affidavit of Fine corroborated by several witnesses setting forth that in 1888, immediately after the local officers had recommended the cancellation of Alexander's entry he (Fine) had gone upon the land to make a settlement and that he had built a house thereon and moved his family into the same, and that he had earnestly tried to make a settlement and residence on the land and had applied to enter the same; that Alexander and his hired men had torn down his (affiant's) house and carried away the material at two different times; that he had rebuilt each time and was continuing to live on the land; that Alexander had transferred his interest in the land to one H. C. Wilson, and that Wilson had brought an action in a justice's court and upon a judgment of restitution had caused him to be ejected from the premises, but that he had again returned and was attempting to retain his settlement; that Wilson had brought suit against him in the United States court at Portland, Oregon (Wilson being a citizen of California) and that the same was still pending. It is insisted by counsel for Fine that the appeal of Alexander is made in bad faith and is fraudulent; that it is for delay merely and to harrass a settler, and he moves that the appeal be dismissed. Also: That Alexander's entry being fraudulent is therefore absolutely void; that it did not segregate this land from the public domain. and was therefore no bar to Fine's settlement, and that Fine being a legal settler in possession of the land, has rights in the premises that should be protected. On October 15, 1889, Cogswell and Ross, attorneys for Alexander filed in your office objections to Fine's application to he allowed to intervene, and among other objections they allege that the contest was not initiated by Fine, but by the general government and that he could acquire no rights thereunder, or claim to the land thereby, other than could any other citizen-they deny that his settlement gives him any prior right to enter the land. Upon the appeal of Alexander they raise the question of the jurisdiction of the Land Department of the government to try this cause, and to show their good faith in this objection to jurisdiction, which they say can be raised at any time, and than it is not "frivolous" they offered a newspaper clipping which they say is the printed decision of Circuit Judge M. P. Deady, involving this identical land. The decision purports to be the decision of the United States circuit court, district of Oregon.-Henry C. Wilson v. Nehemiah Fine-Action to recover possession of real property, heard upon demurrer to answer. In this decision the court held that: An entry and certificate issued to a settler under the homestead act for land subject to entry thereunder, can not be set aside or canceled by the land Department on its own motion for fraud or mistake committed or occurring in obtaining or issuing it. In such case the government must seek redress in the courts, etc. This is substantially the case as it appears of record. The right of Fine to make entry by reason of his settlement can be determined when the question as to the legality of his settlement arises. A decision of the question before me, viz, the validity of Alexander's entry, does not involve the rights of third persons, except they should claim under Alexander, and I therefore see no reason for considering Fine's claim at this time, or for making him a party hereto. This being so, the motion to dismiss the appeal is not properly before me. This leaves only the question of the jurisdiction of the Land Department of the government to try this cause. This question has been so well settled that it does not require discussion. I note the fact however, that the supreme court of the United States in the case cited by counsel herein, to wit, Cornelius v. Kessel (128 U. S., 456) say— The power of supervision possessed by the Commissioner of the General Land Office over the acts of the register and receiver of the local land office in the disposition of the public lands, undoubtedly authorizes him to correct and annul entries of land allowed by them But the power of supervision and correction can be exerted only when the entry was made upon false testimony or without authority of law. This implies authority to inquire into, to try and determine whether the entry was made on false testimony and if so to cancel it, as this is all the jurisdiction that is sought to be exercised in the case at bar, I shall proceed to dispose of the case. The first assignment of error, is a mere assumption that your office decision was wrong; it does not specify any error. The second and third amount to one assignment, and are not well taken. An entryman can not make a second homestead entry, he having perfected title under the first. One having made an entry, is estopped to plead his own wrong-to say that it was fraudulent and procured by his own perjury. This entryman admits that he was an instrument in the hands of a "land speculator" to aid in defrauding the government, the record shows that he, himself, made the entry and perfected his title, to secure a hearing he swears that if such entry was made it was made without his knowledge and was a fraud upon his rights and the rights of the government, this too after deliberation and consultation with his counsel. When confronted with the proof, he attempts to plead ignorance of law when the first entry was made, but he no where explains his affidavit for a hearing. Taking the case as it stands it illustrates the wisdom of the law that gives the Land Department authority to cancel a fraudulent entry, procured by false swearing. Your decision is affirmed and the entry of Alexander will be canceled. PRACTICE-MOTION FOR REVIEW-HYPOTHETICAL CASE. CATLIN . NORTHERN PACIFIC R. R. Co. (ON REVIEW). In the absence of sufficient reason shown, a motion for review will not be considered, if not filed within the period prescribed by the rules of practice. The Department will not render an opinion in a hypothetical case. Secretary Noble to the Commissioner of the General Land Office, November 26, 1890. On March 27th last, the attorney for the Northern Pacific railroad company submitted a letter asking for "a re-examination of the law of April 21, 1876, as applied in the case of Wm. Catlin" decided September 26, 1889 (9 L. D., 423). The attorney says that,— While the time for filing an application for review of that case has elapsed, and we may not now obtain a reversal of said decision to the extent of an award of said land to us, we respectfully ask that you will re-examine the law of the case in connection with the accompanying argument, and that you may reach and adopt the conclusion therein contended for. This we ask because the decision will reach a large number of other cases along the line of the road. Should you coincide with our view of the law, we would ask that you will so instruct the Commissioner, to the end that your decision in said case of Catlin may not be taken by him as controlling in other like cases which are now before him, aud to which he will of course apply the rule of said decision. He further states: By a reference to the case of Catlin it will be observed that his claim was initiated April 13, 1883. The plat of definite location of the line of road opposite said land was filed in the Office of the Commissioner of the General Land Office, July 6, 1882, but the withdrawal was not ordered until June 9, 1883. Now our contention is that the 1st section of the law of 1876 is not prospective in its provisions; it cannot and was not intended to apply to entries mitiated since its passage as it was enacted with the view to remedy an evil then existing-to relieve certain settlers who had been brought into misfortune by conflicting rulings of the Land Department. No reason is assigned by the company for its failure to file a motion for review within the time prescribed by the rules of practice. Had such motion been filed the alleged errors would have been fully examined. To grant this request now before me would be to invite applications for the reconsideration of many decisions without reference to the rules of practice. Such an undertaking cannot be assumed in justice to the many cases pending and awaiting examination in regular order. Furthermore, eliminating the facts in the Catlin case, the question becomes merely hypothetical. It is the practice of the Department to decline to answer such questions. Neil A. Hill (9 L. D., 194); W. H. Miller (7 L. D., 254). The wisdom of this practice must be obvious. For the reasons herein stated the request is denied. PRIVATE CLAIM-INDEMNITY SELECTION. RANCHO PUNTA DE LA LAGUNA. Selections under the act of October 1, 1890, in lieu of lands belonging to said rancho, and disposed of by the United States, must be made within one year from the date of said act, and may be made by duly appointed attorney, or authorized agent, under appropriate instructions to the local officers. Secretary Noble to the Commissioner of the General Land Office, November 26, 1890. I am in receipt of your office report dated the 13th instant upon the communication of the attorney for the beneficiaries under the act of Congress entitled "An act relative to the Rancho Punta de la Laguna,” approved October 1, 1890 (26 Stat., 644), requesting that an order may be issued at an early date authorizing selections to be made under the provisions of said act, on account of the limited time within which said selections can be made. The preamble of said act recites that: Whereas it is alleged that five thousand and ninety-nine and ninety-three one-hundredths acres of land embraced in the Rancho Punta de la Laguna, in the counties of Santa Barbara and San Luis Obispo, State of California, granted and confirmed to Luis Arellanes and Emidio Miguel Ortega, have been appropriated to the use and disposed of by the United States, and that the said confirmees, claimants, and owners have been deprived of the use of the same. The enacting clause authorizes and directs the Secretary of the Interior to carefully investigate the said allegation in the preamble of this act mentioned, and if he shall find that said allegation is true he is hereby authorized and directed to make good any such deficiency so found to exist to the persons justly entitled thereto, by issuing to them patents for an equal quantity of the unoccupied, unappropriated, and unreserved public lands of the United States in the State of California, not mineral, to be selected by them, respectively, within one year next after the passage of this act, and not afterward, and in tracts not less than the subdivis ions provided for in the United States land laws, and if not surveyed when taken, to conform, when surveyed, to the general system of the United States land surveys; and the issuance and acceptance of patents under this act shall be deemed and taken as a release to the United States of all claims of all persons so found to be entitled as aforesaid to any and all lands not embraced in the survey made under the confirmation of the said grant in the preamble of this act mentioned. In support of his said application, said attorney filed with the Department an abstract of title to said rancho, also affidavits of the alleged owners, and beneficiaries under said act, and the affidavits of the local attorneys giving the names of the parties entitled to the benefits of said act, together with a copy of court record in a partition suit to determine the relative rights of the several claimants to said Rancho. There is also filed a power of attorney appointing W. E. Dargie, of the city of Oakland, in California, attorney in fact with full power to act for all of said beneficiaries, except one, and another power of attorney from said Dargie constituting George C. Hazleton, of the District of Columbia, his attorney in fact to act for him and the said beneficiaries under said act. Upon the evidence submitted and from the records of your office, you report: (1) That the Punta de la Rancho was legally entitled to six square leagues of land in amount to equal 26,632.08 acres; (2) That by reason of an erroneous survey, including lands "within the grant and juridical possession of the 'Guadalupe' its area has, therefore, been reduced to 21,530.14;" (3) That the lands within the juridical possession of the Punta la Laguna rancho, erroneously excluded from the final survey and patent thereof have been disposed of by the United States as public lands, and (4) you therefore find that said allegation in the preamble of said act is sustained by the evidence. In this view I fully concur. I am also of the opinion that the finding in said report relative to the proportionate shares of the several claimants and owners is sustained by the evidence. Said finding is based upon the final decree of the Superior Court of the county of Santa Barbara, in said State, in a suit for partition of the interests of the several claimants as tenants in common of said "Rancho Punta de la Laguna," and transfers subsequently made by some of the parties in interest. At the date of said act the record shows prima facie that the following persons were each entitled to indemnity under its provisions to the amount set opposite each name, to wit: |