It thus appears, clearly, that all three of the appraisers must qual ify by being sworn, and must all unite in the duty of examining and appraising the lands. It does not follow, however, that they must all unite in making a joint report, or that they must all agree in their judg ment as to the value of the lands. There might be a majority and mi nority report, as in many other cases. But they should act together in examining the lands and forming their opinion as to their value. Each one is entitled to the judgment of the other in the discharge of this duty.

The papers accompanying your letter show that only two of the appraisers, Hays and Covington, proceeded to the lands to make an examination and appraisement, while the third, Mr. Ely, remained away entirely. He afterwards wrote a letter explaining his absence, and objecting to the price at which the lands were appraised by the two. No evidence appears in the report of the two appraisers that they were sworn before entering upon the discharge of their duties. This is a necessary pre-requisite, and in the absence of such qualification by the appraisers their work would be invalid. The report should state that the appraisers were duly sworn, and the oath taken by each, before an officer authorized to administer oaths, should be transmitted therewith. An appraiser has been appointed in the place of Mr. Ely, and his commission is transmitted herewith.

You will instruct the appraisers to re-examine the lands and make an appraisement thereof in accordance with the suggestions herein, submit ting their report through your office.

HOMESTEAD ENTRY-CONTEST.

GREER v. Brown.

Final proof not having been submitted, a contest is allowed, though not begun within seven years from the date of entry.

Secretary Lamar to Commissioner Sparks, November 15, 1886.

This record presents the case of J. H. Greer v. William E. Brown, on appeal by the former from the decision of your office, dated June 5 1885, dismissing his contest against the latter's homestead entry No. 3294, of the NE. of Sec. 14, T. 9 S., R. 1 E., made November 12, 1877, at the Salt Lake land office, Utah Territory.

It appears that on December 8, 1884, said Greer filed in the local land office his affidavit of contest against said entry, alleging abandonment, change of residence, and failure to settle and cultivate said tract as required by law. Due notice was made by publication, fixing January 10, 1885, for the hearing of said case. The hearing was duly held, the entryman making default, and the contestant offered his testimony tending to show, among other things, that said Brown never resided

continuously on said tract, and that the present condition of the land is barren, grown up to woods, and without any improvements whatever. Upon the testimony submitted, the local land officers recommended the cancellation of said entry, and reported on March 12, 1885, that they had mailed notice of said decision to the entryman, informing him that thirty days were allowed for appeal; that in case he did not appeal, said decision would become final; that the time allowed for appeal had expired, and no appeal had been filed. On May 22, 1885, the local land officers transmitted the application of said Brown to purchase said tract under the provisions of the second section of the act of June 15, 1880 (21 Stat., 237), filed May 18, 1885, and rejected by them for the reason that "contestant's right of entry attaches when the judgment in his favor becomes final, either of the local officers or on appeal." From this decision of the local land officers rejecting said application Brown appealed, and alleged that he never received notice of the decision of the local land officers.

Your office, on June 5, 1885, considered said appeal and held that the decision of the local land officers in holding said entry for cancellation was erroneous, for the reason that the entryman, according to the evidence presented by the contestant, complied with the requirements of the homestead law, and your office directed that Brown be allowed to perfect his entry, either by making final proof thereon, or, if he should so elect, he could purchase under said act.

A careful examination of the record fails to sustain the conclusion of your office. The testimony offered shows that Brown never complied with the homestead law as to residence, and although Brown avers that he did not get notice of the decision canceling his entry until after the expiration of the time allowed for appeal, yet he did not at any time file an appeal from said decision, nor did he allege that said decision was erroneous, or that he had complied with the requirements of the homestead law. On the contrary, Brown applied to make cash entry of said tract.

Although more than seven years had elapsed from the date of said entry prior to the initiation of said contest, yet the entryman had failed to make the final proof within the time required by law, and under the ruling of your office, in the case of Kincaid v. Jefferson, decided October 7, 1881, (3 L. D., 136,) the entry was subject to contest. The application to purchase was made after the contestant had furnished the testimony upon which the local officers recommended the cancellation of said entry, and no appeal was taken from their decision, and the application therefore came too late. See Friese v. Hobson (4 L. D., 580).

It appears that said application to purchase was returned to the local land officers by said decision of your office without any mention of the right of appeal, and they allowed the application and issued cash certificate No. 2814 on July 3, 1885. It follows that said cash entry must be suspended, the entry of Brown canceled, and if Mr. Greer shall duly

apply to enter said tract, his application should be allowed, and in that event Brown's cash entry should be canceled. The decision appealed from is modified accordingly.

PRACTICE-TIMBER CULTURE CONTEST.

GALLAGHER v. TARBOX ET AL.

A contest falling within the terms of the circular order of dismissal issued on the ruling in the Bundy case, and subsequently expressly held void from inception, was no bar to the reception of a second contest which should have been received and held for the final disposition of the former.

Secretary Lamar to Commissioner Sparks, November 15, 1886.

I have considered the case of Thomas Gallagher v. William H. Tarbox and Nelson Waldron, as presented by the appeal of the former from the decision of your office, dated August 20, 1883, sustaining the action. of the district land officers of the Watertown office, Dakota Territory, rejecting his affidavit of contest against timber culture entry No. 2686 of the SW. of Sec. 34, T. 112, R. 56 W., made September 3, 1879, by said Tarbox. The record shows that on February 16, 1882, Michael Todhunter filed his affidavit of contest against said entry, alleging that the entryman had failed to break and cultivate said tract as required by the timber culture law. Notice by publication was made, and the entryman failing to appear, the contestant submitted his testimony tending to prove the truth of his allegations. The papers were transmitted to your office on December 27, 1882, as appears from your office letter dated August 20, 1883.

On January 13, 1883, Gallagher filed his affidavit of contest against said entry, alleging failure to comply with the timber culture law, and, at the same time, filed his application to enter said tract under the timber culture law. The register made the following indorsement upon said application: "Rejected, case to Commissioner December 27, 1882, subject to appeal." On January 25, 1883, Gallagher by his attorney appealed from the register's decision rejecting his contest affidavit and application to enter said tract, upon the ground that the prior contest was illegal from its inception, for the reason that the contestant failed to make application to enter said tract at the time he initiated his contest.

On August 20, 1883, your office dismissed Todhunter's contest, "on account of the contestant not having filed an application to enter the land as required under section 3 of the act of June 14, 1878," and af firmed the action of the register rejecting Gallagher's application to contest. Todhunter did not appeal, and he is claiming no rights in this

case.

On February 4, 1884, the register reported that Gallagher was notified of the decision of your office adverse to him, and of his right of appeal, that the time allowed for appeal has expired, and no appeal has been filed in the local land office.

On September 8, 1883, said Waldron filed his affidavit of contest against said entry, with an application to enter said tract, alleging failure to comply with the requirements of the timber culture law as to breaking, cultivation and planting. Notice was made by publication and November 14, 1883, was set for the hearing of the case. The entryman did not appear, but the contestant offered his testimony in support of his allegations, and the local officers held that said entry was for feited and should be canceled.

On April 23, 1884, Gallagher by his attorney filed two affidavits, alleging that he never received any notice whatever of the decision of your office rejecting his application to contest said entry, and asked that the same be re-opened. On October 13, 1884, in response to your office letter of October 1, same year, the receiver reported that the records of the local land office "do not show the address of Thomas Gallagher, nor his attorneys, at the time of your decision dismissing his appeal from the action of the local office in rejecting his application to contest timber culture entry 2686 of Wm. H. Tarbox," and that by a mistake of their clerk notice of said decision was sent to the wrong attorneys by letter, dated August 28, 1883.

On January 15, 1885, your office, reviewing the proceedings heretofore had in the case, directed the local officers to allow Gallagher sixty days from notice hereof to appeal, and that he must serve notice of the same upon the adverse contestant Waldron. Gallagher filed his appeal in the local land office, with the acceptance of service, dated February 4th, same year, by the attorney of said Waldron.

The grounds of error alleged are:

(1) That Todhunter's contest was illegal in its inception;

(2) That the pendency of an illegal contest is no bar to the initiation of a legal contest.

No answer has been made or brief filed by the adverse contestant Waldron.

The record fails to show just what action was taken by the local officers upon Todhunter's contest, except that the papers were transmitted to your office, by letter dated December 27, 1882. It also appears that seven days prior to the transmission of the papers in Todhunter's contest, your office issued a circular to the registers and receivers, approved by the Secretary of the Interior, directing the dismissal of all contests similar to that of Todhunter's. This was twenty-four days prior to the application of Gallagher to contest said entry, and, besides, your office expressly ruled that Todhunter's contest was illegal in its inception, and said decision became final by failure of the contestant to appeal. Todhunter's contest having been found to be illegal, was no bar to the

receipt of the application of Gallagher to contest. Tripp et al. v. Stewart (2 C. L. L., 707). It should have been received, and when the judg ment of your office, that the prior contest was illegal in its inception, had become final, Gallagher should have been allowed to proceed with his contest. Durkee v. Teets (4 L. D., 99); Melcher v. Clark (ibid., 504); Churchill v. Seeley (ibidem, 589).

It is clear that Gallagher could not be deprived of his rights by the failure of the local land officers to notify him of the decision of your office. Since Waldron filed his affidavit of contest long prior to the expiration of the time within which Gallagher had the right of appeal, his rights must be held subject to those of Gallagher, who should be allowed to proceed with his contest, and in the meantime action upon the contest proceedings of Waldron will be suspended. You will therefore direct the local land officers to advise Gallagher that he will be allowed to proceed with his contest within a reasonable time (say ninety days), and submit testimony in support of his allegations. The decision appealed from is modified accordingly.

TIMBER CULTURE ENTRY-FINAL PROOF.

GEORGE STEARLE.

Whether the final proof be submitted on an entry made under the act of 1874, or one of the subsequent acts, it must be specific with respect to the planting, cultivation, and growth of timber trees.

The written notice to a losing party should include a copy of the adverse decision. Acting Secretary Muldrow to Commissioner Sparks, November 15, 1886.

This record presents the appeal of George Stearle from the decision of your office, dated October 1, 1885, affirming the action of the local land office suspending his final proof on timber culture entry No. 781 of the W. of SE. 4 of Sec. 22, T. 9 N., R. 13 W., made August 22, 1874, at the Grand Island land office, in the State of Nebraska.

It appears that the entryman offered his final proof made before the clerk (ex officio) of the county court in said State, and the same was suspended by the local land officers, because the name of the entryman was spelled in a different manner in the proof from that in the entry papers, also for the reason that the proof failed, in answer to printed questions Nos. 3, 4, 5 and 6, to state how the witness knows the number of acres planted each year, or how he measured the ground, and also fails to state fully in answer to question No. 9 the number of trees growing upon each acre, and the means of knowledge by which the witness answers said questions. The local land officers also found that one of the witnesses had no knowledge of the claimant, or of the land at the time said entry was made, nor for several years subsequently, and that neither of the witnesses states in what manner their knowledge