The tract in question had not at the date of the definite location of the line of road been sold, nor had any right of pre-emption or homestead settlement attached to it; and, so far as the records show, it does not appear that application had ever been made for it by any settler or claimant whatsoever. Neither had it been reserved by the United States for any purpose whatever. The mere inadvertent marking on the books of the local office could in no sense be regarded as a disposal of the land. No one was seeking its ownership, consequently there was no one to whom disposal could be made. It could not be construed as a reservation within the meaning of the law (Cole v. Markley, 2 L. D., 847), for this would imply a purpose, while inadvertence denotes the absence of purpose, or that a thing is done contrary to purpose and intention.

This tract could have been claimed under the settlement laws by any one qualified at any time prior to said definite location, and had it been. so claimed attention would have been called to the erroneous marking and the correction would have been made, as has now been done. This being true, the conclusion must be that the tract was public land, subject to disposal under the general laws, and therefore that it was subject to the railroad grant.

Your office decision denying McAndrew's pre emption application is affirmed.

NOTICE OF HEARINGS AND DECISIONS.

CIRCULAR.

Commissioner Sparks, to registers and receivers, and surveyors-general, October 28, 1886.

In addition to the registration of notices of hearings and decisions, as provided in circular of October 15, 1884 (3 L. D., 140) it is hereby di rected that all notices required to be given by you of your decisions, or of decisions of this office, involving the right of appeal, or the exercise of other rights within a certain time or compliance with some official requirement, will hereafter be served by you personally or by registered letter.

When personal service is had you will transmit to this office the ac knowledgment of such service or evidence thereof. When service is made by registered letter the return letter receipt, or returned letter as the case may be, must, in every instance, be sent up with the papers in the case.

The costs of registration will be paid out of the advances from the proper appropriations, and estimates therefor will be embraced in the usual requisitions.

Approved:

L. Q. C. LAMAR,

Secretary.

REVIEW DENIED.

EBBOTT v. SCHAETZEL ET AL.

Motion for review of decision herein (4 L. D., 587), denied by Secre tary Lamar, October 30, 1886.

PRACTICE-APPEAL: ACT OF APRIL 21, 1876.

ST. PAUL M. & M. RY. Co., ET AL. v. VANNEST.

Though the General Land Office may refuse to receive an appeal from its decision not filed in time, it has no authority to dismiss such appeal if it is received without objection.

There is no authority under the first section of the act April 21, 1876, for the confir mation of an entry and issue of patent where title has already passed from the government.

Secretary Lamar to Commissioner Sparks, October 30, 1886.

On September 16, 1886, counsel for Orlando Vannest filed an application for an order directing you to certify to this Department the proceedings in the case of the Saint Paul, Minneapolis and Manitoba Railway Company and the Crookston Improvement Company v. said Vannest, involving lots 6 and 7 of Sec. 25, T. 150 N., R. 47 W., and lot 4 of Sec. 30, T. 150 N., R. 46 W., Crookston land district, Minnesota.

It is averred that your office on May 28, 1886, erroneously decided that the application of Vannest for the issuance of a patent for said lands under the act of April 21, 1876, (19 Stat., 35), must be denied, because patents for the same land had been issued by the Department on September 4, 1879, and February 19, 1881, which were still outstanding, and also that your office, on September 1, 1886, erroneously and unlawfully held and decided that an appeal from its decision, dated May 28, same year, filed by Vannest on July 29, 1886, was not filed within the time prescribed by the Rules of Practice (4 L. D., 35), and therefore could not be recognized or entertained.

It is insisted by the applicant that (1) the appeal was filed in time, and (2) that by said act of April 21, 1876, this Department is compelled to issue patents for lands when the entries fall within the class mentioned therein, notwithstanding the fact that patents have already is sued, and are outstanding for the same land.

It appears that the appeal was filed on the 29th day of July, 1886, and the decision states that "notice was mailed to Messrs. Drummond and Bradford, of this city, the recognized attorneys for said Vannest, on May 28." If that statement is correct, then it is clear that the appeal was not filed within the prescribed time, and could be dismissed by the proper tribunal. It is strenuously urged that the finding in said decision that the notice was mailed on May 28th is not warranted by

the practice of your office. No evidence is offered that said letter was not mailed as alleged, and hence there is no reason for disturbing said decision upon a question of fact.

The appeal was filed in your office on July 29, 1886, and was not rejected until September 17 ensuing, as appears from the record. After the appeal had been received without objection, the only jurisdiction that could be exercised by your office was to transmit the case to this Department for final action. King v. Lietensdorfer (3 L. D., 110).

Rule of Practice No. 82 provides that" When the Commissioner cousiders an appeal defective he may notify the party of the defect and if not amended within fifteen days from the date of service of such notice, the appeal may be dismissed by the Secretary of the Interior, and the case closed."

Unquestionably your office may refuse to receive and file an appeal when the same is not presented within the time prescribed by the Rules of Practice, but after the appeal has been filed and no objection made thereto, then the appeal can only be dismissed by this Department.

But independently of the foregoing it does not appear that there was any error in said decision refusing to issue patent for said lands, or that Vannest has suffered material injury from the rulings of your office.

It is well settled that a writ of certiorari can not be demanded as a matter of right, but will issue in the discretion of the tribunal on a prima facie showing of substantial injustice to the applicant. F. P. Harrison (2 L. D., 767); N. P. R. R. Co. v. Schoebe (3 L. D., 183); Jacob Schaetzel (4 L. D., 28).

Said decision refusing to issue patent for the land claimed by Vannest was based upon the authority of the decision of this Department in the case of the Wisconsin Railroad Company v. Stinka (4 L. D., 344), decided on January 25th last, wherein said act was fully considered, and upon authority of numerous decisions of the United States supreme court, therein cited, it was held that "application for the confirmation of an entry and the issuance of patent thereon under the first section of the act of April 21, 1876, must be denied, where it appears that title has already passed from the government."

Counsel for the applicant have cited several departmental decisions announcing a contrary doctrine. But said decisions though not expressly named, yet in effect were overruled by the case of the Wisconsin R. R. Co. v. Stinka (supra).

There is nothing in said act to indicate that Congress intended that this Department should issue a patent for lands to which the United States have no title. If the applicant has complied with the terms of said act, his rights must be asserted or defended in the courts of the country, for this Department has no further jurisdiction over the land in controversy.

It is therefore considered that said application be, and it is hereby, denied.

HOMESTEAD ENTRY-ACT OF JUNE 8, 1872.

ELISHA B. GATES.

Under section 2305 of the Revised Statutes the time allowed for military service is deducted from the five years residence required before final proof, but the quality of residence and cultivation provided for in said section is the same as under the general homestead law.

As in every case the entryman must show good faith, it is not of itself a suspicious circumstance that he offers final proof at the earliest period permissible under the

law.

Secretary Lamar to Commissioner Sparks, October 30, 1886.

This case presents the appeal of Elisha B. Gates from the decision of your office, dated August 28, 1885, refusing to revoke and modify the decision of your office dated June 17, 1885, holding for cancellation his homestead entry of the SE. of Sec. 23, T. 114 N., R. 60 W., Huron land district, Dakota Territory.

It appears that on April 16, 1883, (not April 6th, as stated in decision dated June 17, 1885,) Gates made homestead entry No. 3331 of said tract under the act of Congress approved June 8, 1872 (Section 2304, R. S.), giving homesteads to honorably discharged soldiers and sailors, their widows and orphan children.

On April 21, 1884, after due notice, Gates made his final proof before the receiver of the local land office, which was accepted, and final certificate No. 139 was issued for said land on the same day. The final proof showed that the entryman was a native born citizen of the United States, and the head of a family; that he settled upon said land on April 17, 1883, and built a house thereon, ten by twelve feet, one story with board roof; that he has broken and back-set twenty-eight acres of said tract; that his improvements were worth $300.00, and that he has resided continuously upon said tract since making his said entry, with the exception of three months of temporary absence. With said proof is filed a special affidavit, corroborated by two witnesses, alleging that said Gates slipped and fell on the ice on the 8th day of February, 1884; that in consequence of the injury thus received, he was disabled for six weeks, and unable to return to his home on said land; that said Gates was in the military service of the United States and lost a foot and part of his leg above the ankle joint in said service.

On June 17, 1885, your office, having verified the allegation of military service from the records of the War Department, examined said entry papers and held the entry for cancellation, "because the evidence sub. mitted fails to show good faith in the premises." On January 7, 1885, counsel for Gates made a motion for a review of said decision, and sub mitted additional affidavits tending to show compliance with the home stead law.

In such affidavits Gates and his three witnesses swear, that he commenced an actual bona fide residence on said tract on April 17, 1883, in a good house, ten by twelve feet, having a double board roof and tarred paper between the boards; that during the months of May and June of said year he had twenty-eight acres of the land broken, the stones dug out and drawn off; that during the fall of 1883 he had the same breaking back-set, pulverized and cultivated, ready for crop, during the season of 1884; that in addition to this twenty-eight acres he contracted to have about one hundred additional acres broken on the tract; that he raised no crop during the year 1883, for the reason that it was necessary to put the ground in proper condition; that he did not sow the twenty-eight acres until the first of May, 1884; that he had purchased the seed-wheat with which to sow the land, and had the same on hand at the time of making his final proof; that it was impossible to prepare the bald prairie for a crop during 1883; that in May, 1884, he sowed the twenty-eight acres in wheat and harvested therefrom five hundred bushels; that during the month of June, 1884, he had twenty-three acres additional of said land broken and ready for crop in 1885; that in the spring of 1885 said Gates had twenty acres additional broken, twelve of which were planted in corn on the sod; that at the time of making said affidavit he had fifty-one acres of wheat and twelve acres of corn growing in good condition upon said land; that since he established his residence upon said tract on April 17, 1883, up to the time of making said affidavit, he has resided on said tract, and has only been absent about three months during the fall of 1883; that when he went away he intended to be absent only one month to attend an important law suit in Pennsylvania, his former home; that while so absent he slipped and fell on the ice and injured his hip, upon the same side on which he has a wooden leg in place of one lost by amputation on account of a wound received while in the army of the United States; that said injury laid him up for six weeks, so that in consequence thereof he failed to return to his home in Dakota for three months; that he has a wife, but no children, and that his wife refused to come to Dakota to live under any circumstances, on account of her fear of storms and cyclones.

It is further alleged in said affidavit that Gates is fifty-nine years old; that while serving in the nrmy he lost his left leg below the knee, and uses an artificial limb; that he is the present owner of said land and has never transferred or mortgaged the same; that said tract is the only land he owns and that he has all of his money invested thereon; that he has no intention of abandoning the land, but that it is now, and he intends to keep it, his home and further improve it as he becomes able to do so; that since establishing his residence upon said tract he has had no other home or claimed any other; that this is the only claim he has, and that he has not dug a well on the premises, because he gets his water from a well across the road, on the land of a neighbor; that