On May 14, 1886, and afterwards on June 25, 1886, Benjamin G. Morrill filed in the local office his protest against the allowance of a mineral entry for said land by the Margaret Mining company or any one else alleging his settlement upon and improvement of a claim ou unsurveyed lands in March, 1885. That subsequently a mining company located a mineral claim embracing the same lands, called the Gray Eagle. That the object and purpose of said mining company is to obtain title to some hot springs. That "there is no valuable mine on the claim, and they make no pretensions to one outside of obtaining a patent to Sulphur Springs." He further alleges that he was an occupant of the land in question before any parties interested in the said mining company. That he had erected buildings on the claim and that it had been his home for the past eighteen months.

On the 12th day of November, 1886, a hearing was ordered by the local officers to determine the character of the said "Gray Eagle mining claim." In pursuance thereof the testimony was in part taken before a notary public in King county, Washington Territory, partly in the form of depositions, and the remainder before the local officers.

From the evidence introduced in the case the local officers, on the 7th day of November, 1887, refused the application of said Margaret Mining company, from which said company appealed to your office, which on the 20th day of May, 1889, found "that said claim has not been proven to be of any value for mining purposes, neither is it of any value for agricultural purposes. Hence it must be held to be most valuable for its hot springs thereon and therefore subject to sale under the general laws, and not under the acts relating to the sale of mineral lands." From your said decision both parties appeal.

It appears from the evidence that prior to the organization of said Margaret Mining company, said Benjamin G. Morrill made a settlement upon, and was improving a claim upon unsurveyed public land. That after the organization of the mining company it located the Gray Eagle Lode mining claim upon land embraced in Morrill's claim. In the boundaries of said mining claim there is what the witnesses denominate as the "Hot Springs of Green River," the waters of said springs are supposed to contain valuable medicinal qualities. The value of said springs is not shown by the evidence in this case but Morrill and said mining company seem to value them highly. In fact the acquisition of said springs seems to have been the object of Morrill's settlement, and of the organization of said mining company. After the organization of said company and the location of said mining claim, Morrill was ejected from the land by an officer under some sort of proceedings had before a court at the trial before which he swears he made no appearance, since which time he has been out of the possession. Morrill's improvements consisted chiefly in buildings near said hot springs erected for the ac commodation of guests and people visiting said springs for their health, and the breaking and clearing of about an acre of ground which he planted to garden vegetables and potatoes.

The claim crosses Green River and is shown to be generally covered with timber and brush. It is shown to be broken and rocky generally yet there is a portion of it that can be cultivated successfully and has some value as agricultural lands. Morrill's improvements are shown to have been worth from $800 to $1000.

As to the mineral character of the land embraced in the Gray Eagle claim, the evidence fails to satisfactorily show that mineral in paying quantities exists, or has been found on said claim.

It appears that very little effort has been made by the mining company to develop the mineral resources of the claim, the mineral claimants having turned their attention to the mineral springs, which appear to be their sole incentive for acquiring title to the land. The sole issue presented for determination was the right of the mineral applicants to purchase the land and inasmuch as the land is not shown to be mineral in character, your office decision in rejecting their application to purchase was right and to that extent is hereby affirmed.

The rights of Morrill in the tract can properly be determined when he makes application therefor under the law.

Your said office decision is accordingly modified.

PRACTICE-REVIEW-REHEARING.

CLINE v. DAUL.

An allegation of additional evidence, not newly discovered, if made for the first time on review comes too late to justify a rehearing.

Secretary Noble to the Commissioner of the General Land Office, December 8, 1890.

Frederick Daul has filed a motion for review and reconsideration of departmental decision of June 28, 1890, in the case of Mary Cline v. Frederick Daul, involving a part of Sec. 2, T. 8 N., R. 19 W., Grand Island land district, Nebraska.

The ground of said motion is "that said decision of the Honorable Secretary in canceling the entry was contrary to law and contrary to evidence;" that "the evidence of several witnesses introduced by said contestant . . was false and untrue;" that "the said contestee was taken by surprise at the said trial by the evidence of said contestant and contestant's witnesses."

No attempt is made to show wherein said decision was "contrary to law and contrary to evidence." It is not stated whose testimony was false, nor wherein it was false. No explanation is made of the manner in which the entryman was "taken by surprise." The affidavit of the entryman, and two other persons, Levi P. Wells and his wife Jennie M. Wells, are given, to the effect that the entryman has resided on the tract in question continuously since April 1, 1884. It is not necessary

to analyze the statements contained in these affidavits, and compare them with the testimony taken at the hearing. At best they are but cumulative, and insufficient, when taken in connection with the evidence adduced at the hearing, to authorize a reversal of the former decision. But "affidavits filed after judgment, as a basis for or accompanying applications for review, are to be received with great caution" (Thorp v. McWilliams, 3 L. D., 344). The entryman made no application for a continuance of the hearing on the ground of the absence of the witnesses; no application before your office for a rehearing for that cause; and as this evidence-being in no sense newly discovered evidence-has never been offered before, it comes too late when produced for the first time on motion for review. Should this motion be granted on the grounds here presented, it would encourage the trial of cases piecemeal, and allow a party to keep back a portion of his evidence for an emergency-a course which would be unjust to the opposing party, and a practice not tolerated in courts of law. The motion is without merit, and must be dismissed.

TIMBER CULTURE CONTEST-DESTRUCTION OF TREES AFTER FINAL

PROOF.

BROWNING v. FRY.

A timber culture entryman who has complied with the law, submitted proof, and received final certificate thereon, is not required by law or any regulation of the Department to replant the tract where the trees are subsequently destroyed by fire.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 10, 1890.

I have considered the case of William F. Browning v. Stephen J. Fry, upon appeal by the latter from the decision of your office dated May 25, 1889, holding for cancellation his timber culture entry for the SE.Sec. 23, T. 5 S., R. 16 W., Kirwin land district, Kansas.

May 26, 1876, Fry made timber culture entry for said tract under the provisions of the act of March 13, 1874.

June 2, 1884, in accordance with published notice he offered final proof before the register and receiver (under the provisions of the act of June 14, 1878), which was approved, and final certificate issued for the land February 14, 1887, Browning initiated contest against Fry's entry, alleging substantially as follows:-That the final proof was fraudulently made; that at the date thereof there was not the required amount of thrifty growing timber on said tract, and that the timber had not been cultivated and protected as contemplated by the timber culture act.

Hearing was ordered and had, the local officers found in favor of

contestant and recommended the entry for cancellation, whereupon claimant appealed.

May 25, 1889, your office affirmed the action of the local office, and claimant again appealed alleging the following grounds of error, viz:1. In concluding that the lack of fire-breaks evidenced bad faith.

2. In treating the breaking of the tract denuded of its timber by fire after proof as evidencing bad faith.

3. In concluding that the planting of about two thousand additional trees before proof on an addition to the timbered tract evidenced an intention to prepare for proof in evasion of law.

4. In not considering the equities of Fry.

5. In not concluding that there were a sufficient number of thrifty trees on the laud at date of proof to entitle Fry to a patent.

6. In not applying the well known departmental rule that the matter of the acceptance of the proof after entry is governed by the rules in force when the proof was made.

On the trial both parties were personally present, attended by their respective attorneys. A large amount of testimony was offered by them, and therefrom it appears that at the time claimant offered final proof he had about thirty acres under cultivation, and about twelve acres planted to timber ranging from six inches to twelve feet in height, and numbering about thirteen thousand trees.

Several of contestant's witnesses did not know claimant and had not seen the tract in dispute until several years after he had made his entry. Contestant admitted that he first saw section 31, October 13, 1886, and that he had no personal knowledge regarding claimant's efforts to comply with the requirements of law before he proved up on his claim. Joseph Edwards, one of contestant's witnesses testified that he resided for over ten years within forty rods of the tract in dispute; that claimant had about twelve acres planted to timber; that the trees growing thereon June 2, 1884, would average from six inches to twelve feet in height consisting of cottonwood, box elder and walnut; they were planted four feet apart each way; he believed fifteen hundred of them were over nine feet high; that one third or more of all the timber was from five to six years old; the larger trees were growing all over the plat. Witness had personal knowledge that the timber was cultivated both in 1883 and 1884 and that it was in a thrifty condition and compared favorably with other tree claims in that neighborhood, and that at the time of final proof there were at least six thousand seven hundred and fifty trees from six inches to twelve feet in height growing on this claim; and that the land was in a good state of cultivation. The undisputed evidence also shows that claimant had repeatedly replanted or refilled his tree plat with either tree seeds or cuttings whenever he discovered that the seeds or cuttings previously planted had failed to germinate or grow.

The weight of affirmative evidence shows that claimant had broken a fire guard around three sides of his tree plat prior to 1888, but that no

ordinary fire guard could have stopped the ravages of the fire which destroyed his timber in the fall of the year 1884.

It is shown by uncontradicted evidence that the fire which destroyed claimant's timber started on land owned by one C. B. Nichols about three miles northwest from the tract in dispute. There was a strong wind blowing at the time which carried the burning tumble weeds and grass along, destroying everything combustible in its track.

In the case of Reynolds v. Sampson (2 L. D., 305) it was held that the entryman should not be held responsible for the results of incendiarism nor for the destruction caused by floods; and in the case of Hupp v. Overall (7 L. D., 11) it was held that if a claimant was in good faith attempting to comply with the law, under which his entry was made, and that a devastating fire had swept over the land destroying the major portion of his trees, it appearing that no ordinary precaution could have prevented such destruction, that his entry should not be cancelled.

Upon review of the record in the case at bar, I am convinced that claimant's final proof was honestly made; and as it was accepted by the local officers, and final certificate had issued thereon, he was not required by law nor by any rule of this Department to replant the tree plat destroyed by fire, and as it appears that final certificate was issued to claimant in accordance with the rules then in force (Jacob E. English, 10 L. D., 409), I must reverse the decision appealed from and direct that the entry pass to patent.

RAILROAD GRANT-WITHDRAWAL-ENTRY-SETTLEMENT CLAIM.

STEWART v. NORTHERN PACIFIC R. R. Co.

The withdrawal on general route does not take effect upon land covered by a homestead entry, even though the statutory life of such entry may have expired prior to said withdrawal.

When occupancy alone is relied upon to except land from a railroad grant it must be affirmatively shown that the person in possession could have asserted a claim to such land under the settlement laws.

Secretary Noble to the Commissioner of the General Land Office, December

11, 1890.

This is an appeal by the Northern Pacific Railroad Company from your office decision of November 18, 1887, wherein you affirm the local office and reject the company's claim to the E. NW. and E. † SW. † Sec. 21, T. 18 N., R. 1 W., W. M., Olympia, now Seattle, land district, Washington Territory, "with a view to allowing" the application of William A. Stewart to file a pre-emption declaratory statement for the tracts named.

The land involved is within the limits of the withdrawal upon the map of general route of the company's road filed August 13, 1870, and