Said entry was held for cancellation because of the prior timber culture entry No. 3421 of the NW. of said Sec. 12, made January 17, 1884, at the same office, by Thomas Ulven.

The record shows that Mary Hanson filed her pre-emption declaratory statement No. 7554 for the NW. of said section on January 30, 1884, alleging settlement thereon November 22, 1883. On August 11, 1884, after due notice, in which said Ulven was specially cited to show cause why her entry should not be allowed, Miss Hanson offered her final proof and payment, which was accepted by the district land officers, and cash certificate 10,462 was issued for said tract.

It is insisted by the appellant that the settlement and filing of Miss Hanson, having been made prior to the entry of Ulven, and her final proof and payment having been received and cash entry allowed, prior to the entry of Simle, the entry of Ulven was in effect canceled, and there was no obstacle to the allowance of Simle's entry.

It is quite evident that a timber culture entry segregates the land covered thereby so long as it remains uncanceled, and that two timberculture entries cannot be allowed of record at the same time within the same section. (20 Stat., 113).

It is clear that Ulven's entry was made subject to the right of Miss Hanson, and if she failed to make final proof within the time prescribed by law, the timber culture entryman would be permitted to show com. pliance with the law. Lunney v. Darnell (2 L. D., 593).

But Ulven failed to respond when cited by Miss Hanson, upon making her final proof, and the cash entry was allowed prior to the timber culture entry of Simle. If Miss Hanson's entry is confirmed, then it is quite sure that Ulven's entry must be canceled, and in that event there does not seem so be any good reason why Simle's entry should not remain intact. See Richard Griffiths (2 L. D., 256); Shurtleff v. Kelley et al. (4 L. D., 448).

The decision of your office is therefore modified, and you will cause the entry papers of Miss Hanson to be examined in due course of business, and, if there is no valid objection to the same, her entry will be ap proved. Ulven's said entry will be canceled and Simle's said entry will remain intact.

HEARING ON SPECIAL AGENTS' REPORT-RES JUDICATA.
ROBERT HALL ET AL.

The issuance of final certificate on the direction of the Commissioner of the General Land Office will not preclude his successor from ordering a hearing as to the merits of the claim while it is yet pending in his office.

Secretary Lamar to Commissioner Sparks, September 27, 1886.

I have before me an application for certiorari in the matter of proceedings had in the pre-emption entries of Robert Hall, Thaddeus Ellis and Frederick A. McFarlin, of certain lands in sections 11 and 14, T. 130 N., R. 62 W., Fargo, Dakota.

From the application and exhibits furnished therewith, it appears that these entries are based on filings made in March and April 1883. That when final proof was offered action thereon was suspended on account of an adverse report of a special agent to the effect that the pre-emption claims were made in the interest of other parties, but that after some delay during which time no further evidence was secured against the validity of said claims your predecessor directed the local office to accept the final proof and issue certificates thereon, and that such action was accordingly had in October 1884.

Thereafter and while said entries were pending in your office, a second report of said special agent was submitted to the same effect as before, whereupon your office, by letters of March 12th and 15th, 1886, held said entries for cancellation and gave the claimants sixty days within which to show cause why the entries should be sustained.

May 22, 1886, appeals were filed in said cases, but your office by its decision of July 14, 1886, refused to allow the appeals, and ordered hearings instead, grounding such action on the departmental letter of July 6, 1886 (5 L. D., 149) wherein it was said that "in all cases coming to your office hereafter where entries have been held for cancellation on agents' reports, and the parties notified that they will be allowed the right of appeal, you are directed to order hearings in compliance with the amended circular, instead of transmitting the cases on appeal to the Department." See circular of July 31, 1885 (4 L. D., 503), and amendment thereto of May 24, 1886 (ib., 545).

This application was then filed on behalf of the entrymen and certain others alleging an interest in the matters involved as assignees, it being urged in support thereof that (1) under Rule 81 of Practice the appellants were entitled to be heard as such when the appeals were filed; (2) that these cases were not properly included within the terms of the order of July 6, 1886; (3) that said order of July 6th is retrospective and unjust in de priving parties of rights involved in issues then pending and ready for final action; and (4) it is also urged that your decis ion should be reviewed, as the appeal therefrom raised the point that the cases were res judicata by virtue of the action of your predecessor in directing the acceptance of final proof.

The three points of exception first alleged are fully met when it is ob served that the appeal which was refused was from an order to "show cause why the entries should be sustained." In other words, an opportunity was thereby granted to have all matters pertaining to the validity of said entries fully tested before the proper tribunal, and if said cases were properly pending in your office for its action, the order for such investigation was within your discretion, subject only to review under application for certiorari. But it is said that the cases were res judicata on all issues raised by the said reports of the special agent. This position however is not well taken. The cases were before your office for action on the final proof which your predecessor had directed

the local office to receive, but patent had not yet issued on such final proof, and while thus under consideration, the jurisdiction of your office to institute inquiry into the nature of the claim was undoubted, and the manner of its exercise deprived no one of his rights, or opportunity to be fairly heard.

The application is therefore denied.

PRE-EMPTION CONTEST-FINAL PROOF

BAILEY v. TOWNSEND.

A contest against a pre-emption claim should not be permitted before offer to make final proof therefor.

Final proof should not be submitted during the pendency of a contest, though the same was prematurely allowed.

Secretary Lamar to Commissioner Sparks, September 27, 1886.

I have considered the case of Charles A. Bailey v. Winfield P. Town send, as presented by the appeal of the latter from the decision of your office, dated June 4, 1885, rejecting his final proof for Lots 3, 4, and 5, and the SE. of the NW. of Sec. 6, T. 30 N., R. 22 W., Valentine land district, Nebraska.

The record shows that on November 28, 1883, Bailey filed his soldier's homestead declaratory statement for said land, and on April 22, 1884, made homestead entry No. 1344 of the same.

On February 8, 1884, Townsend filed his pre-emption declaratory statement No. 770 for said tracts, alleging settlement thereon October 31, 1883. On May 19, 1884, Bailey filed his affidavit of contest against said filing, alleging that Townsend commenced settlement and improvement upon said land on or about June 1, 1883; that he did not make said settlement in good faith, but for the purpose of speculation, and that he failed to file his pre-emption declaratory statement until after the expiration of three months from his date of settlement, and until after the filing of the soldier's homestead declaratory statement by said. Bailey.

Notice issued charging Townsend with "abandoning his pre-emption filing and failing to file in time," and July 1st was fixed for the hearing of the case.

On May 20, 1884, Townsend gave due notice of his intention to make final proof before the county judge of Brown County, in said State, on July 2d ensuing. Bailey was not specially cited in said notice, and did not appear at the time said proof was made, but filed his protest against the same, alleging substantially the same reasons as those contained in his contest affidavit. The register made the following indorsement

upon the final proof: "This tract being under contest, approval is withheld till contest is decided." Townsend did not appear at said contest, alleging as a reason that he could not make his final proof at one place and attend the contest at another place a considerable distance away. At the hearing counsel for Townsend filed a plea denying that he had abandoned his pre-emption filing, or failed to file in time; and also alleging that the notice does not show that contestant is an adverse claimant. After the hearing had commenced, counsel for Townsend made a motion to dismiss said contest, which motion was overruled by the district land officers.

Upon the testimony submitted the register and receiver rendered their joint opinion that Townsend failed to file his declaratory statement within the time required by law; that the evidence fails to show the good faith of Townsend, and that his filing should be canceled. On appeal your office, without passing specially upon the alleged irregularities in the record, affirmed the decision of the local land officers.

It is clear that said contest was commenced prematurely. Bailey should have waited until Townsend gave notice of his intention to make his final proof. Nichols v. Benoit (2 L. D. 583); Percival v. Doheney (4 L. D., 134). Although the contest was prematurely commenced, yet, having been allowed and the day set for hearing, Townsend should not have been permitted to make his final proof until said contest had been determined. Stroud v. De Wolf (4 L. D., 394).

The published notice failed to cite Townsend to appear, and the notice of contest failed to charge any bad faith on the part of Townsend. Townsend was only called upon to answer the charge of abandonment and a failure to file in time, and his counsel strenuously objected to the evidence outside of the charges contained in the contest notice. It has been held by this Department that the evidence must follow the charges as laid in the notice. Shinnes v. Bates (4 L. D., 424). Townsend offered affidavits tending to show that he sent his declaratory statement to the local land office and the same was received prior to the expiration of the three months from the date of his alleged settlement.

While these affidavits could not properly be considered by the local land officers as evidence, yet, in view of the many irregularities and errors as shown in the record, I am of the opinion that the final proof of Townsend should be rejected, the contest of Bailey should be dis missed without prejudice, and Townsend should be permitted to make new proof after giving due notice, citing Bailey specially. (See instructions, November 25, 1884, 3 L. D., 196.)

The decision of your office is modified accordingly.

2278 DEC-12

FINAL PROOF-CROSS-EXAMINATION OF WITNESSES.

CIRCULAR.

Commissioner Sparks to registers and receivers, September 23, 1886.

Your attention is called to the circular of December 15, 1885 (4 L. D., 297), regarding cross-examination of claimants and witnesses in final proofs. Claimants and witnesses must be cross-examined in all cases of final proof; and you are instructed to reject all proofs not accom. panied with the required cross-examination.

The paper containing the record of the cross-examination for transmission to this office must show that the statements therein have been sworn to and subscribed by the witnesses, by their signatures appearing thereon, and the jurats of the officers administering the oaths, the same as in the formal proofs made on the regular printed blanks.

Approved:

L. Q. C. LAMAR,

Secretary.

BOUNTY LAND WARRANTS.

To whom it may concern:

CIRCULAR.

Washington, D. C., September 24, 1886.

The practice of examining and certifying military bounty land warrants, in advance of offer to locate, as free from objections on the records, and the assignments thereof as sufficient in form, is hereby discontinued. There is no such duty imposed on the Commissioner by law, but it is a matter entirely within his discretion, (Secretary Thompson's decision of August 9, 1858, Lester, vol. 1, p. 619), and he finds that time cannot be spared from imperative duties for this gratuitous business. In future, he will pass upon the status of bounty land warrants, and the assignments thereof, as he does upon other official matters, not in advance, but when they come regularly before him for action, in dispos ing of warrant locations reported by the district land officers, or appeals by interested parties from decisions of the same officers, refusing to per mit locations.

Warrants now on file, or any that may hereafter be filed, for certification, will be returned to the parties forwarding them, with information of the foregoing action.

Approved:

L. Q. C. LAMAR,

WM. A. J. SPARKS,
Commissioner.

Secretary.