was obtained as to the number of acres cultivated, or the size and number of trees planted thereon.

Upon appeal, your office affirmed the action of the local land officers, and held that each witness should know the claim from date of entry, and if no such witness can be procured, then the claimant should make an affidavit to that effect.

The claimant appeals, and insists that "the decision was contrary to law." In the argument of counsel it is strenuously contended that the register erred in not giving counsel a copy of the decision of your of fice, instead of stating the effect of it, and that since said entry was made under the timber culture act of March 13, 1874 (18 Stat., 21), under the circular of instructions issued February 1, 1882 (1 L. D., 28), a claimant who made entry under said act of 1874 is not required to show the manner of planting the trees, and if he shows himself quali fied, that the proper number of trees were planted, and cultivated for the required length of time, and that at the time of offering final proof the trees are of ordinary size and thrift, the claimant has complied with the requirements of the timber culture law.

Section 7 of the act of 1878 (supra) provides "that parties who have already made entries under the acts approved March 3, 1873, and March 13, 1874, of which this is amendatory, shall be permitted to complete the same upon full compliance with the provision of this act; that is, they shall, at the time of making their final proof, have had under cultivation, as required by this act, an amount of timber sufficient to make the number of acres required by this act."

The circular of February 1, 1882, (supra,) states that, "Section 7 of the act (June 14, 1878,) defines the meaning of the term 'full compliance,' as used in that section. It is that the parties shall show that they have under cultivation, as required by the act, an amount of timber suffi cient to make the number of acres required therein; that at the time of making final entry the required number of living and thrifty trees are growing on the land."

It is further stated in said circular that in making proof under the act of 1878, it is not necessary that the manner of planting under that act should be shown to have been followed by parties making entry under said prior acts, but that if there have not been eight years of cultivation, or if there are not the requisite number of living, thrifty trees growing on the land at the expiration of eight years from date of entry, then final proof can not be made until these requisites shall have been complied with, and the local land officers are required to carefully examine the evidence when final proof is offered, and if they find the same sufficient, they will issue the final certificate upon payment of the final commissions allowed by law.

The general circular issued March 1, 1884, continues in force the provisions of said circular of February 1, 1882, and prescribes the forms to be used (see pages 31, 93, and 94).

It is clear that the claimant failed to comply with the requirements of said circulars, and the local land officers very properly suspended said proof. It has been repeatedly held by this Department that the claimant is entitled to notice in writing of an adverse decision, either by the local land officers or by your office. Rule of Practice No. 17 (4 L. D., 39); Ballard v. McKinney (1 L. D., 483); Elliott v. Noel (4 L. D., 73); Churchill v. Seeley et al. (Ibid., 589).

It is not enough that the local land officers inform the losing party of the effect of the decision adverse to him, he should be furnished with a copy of the decision, in order that he may fully understand the same and appeal therefrom, if he so desires. In the case at bar, however, it is considered that the claimant has not furnished proof sufficiently explicit, and the decision of your office and the local land office suspending the same is accordingly affirmed.

PRACTICE-APPEAL-CERTIORARI.
CASSIDY v. AREY.

A review of the Commissioner's action cannot be secured by certiorari when the right of appeal is lost through failure to file in time.

Acting Secretary Muldrow to Commissioner Sparks, November 15, 1886. In the case of David W. Cassidy v. Irene H. W. Arey, involving the SE. of Sec. 18, T. 108 N., R. 47 W., Mitchell, Dakota Territory, your office on the 17th of March last rendered a decision adverse to Mrs. Arey, and held for cancellation her cash entry No. 6649 embracing the tract specified.

It appears from the records that the time in which an appeal from the decision could have been filed expired June 6th following. No appeal then having been filed, said cash entry was thereupon canceled. On the 13th of August last an appeal was filed on behalf of Mrs. Arey, but your office refused to accept it, because not filed within the time prescribed by the rules of practice. Thereupon was filed an application for certiorari under the rules, and the same has been very fully considered by me.

The motion alleges that great hardship is imposed upon Mrs. Arey by your said decision of March 17th last, while at the same time admitting that her legal rights in the premises were lost by failure to appeal as above stated. But it is urged that the case is one in which the supervisory power of the Secretary of the Interior should be exercised as provided in Rule 114.

I am unable to see the force of this contention. Whatever rights Mrs. Arey might have had in the land in controversy were lost by her failure to appeal from the said decision holding her entry for cancellation. It is a rule in this Department, grown into use because it is

reasonable and because it subserves the public interests and is for the good of the practice, that certiorari will not lie where the appeal was properly denied because not filed in time. Chicago, Milwaukee & St. Paul R. R. Co. (2 B. L. P., 324). And further it has been lately ruled here that where the rules of practice are not in conflict with the law, and have prescribed a plain and adequate course of procedure, they are to be followed; that in such cases there is no occasion for invoking the supervisory power of the Secretary of the Interior; and that it will not then be exercised. Stevens v. Robinson (5 L. D., 111). Said application is therefore denied.

IOWA SWAMP LANDS

HARDIN COUNTY.

In adjusting claims for swamp indemnity, the Commissioner of the General Land Office is authorized to order re-examinations in the field of the land for which indemnity is claimed.

Secretary Lamar to Commissioner Sparks, November 15, 1886.

On the 10th of September last, Hon. D. B. Henderson, of Iowa, addressed to this Department a communication, inclosing letters from J. Q. Rathbone, Auditor of Hardin County, Iowa, and Isaac R. Hitt, agent, respectively, relative to certain claims for swamp land indemnity under the provisions of acts of Congress of September 28, 1850 (9 Stat., 519), and March 2, 1855 (10 Stat., 634). These letters were called out by a communication, dated August 23, 1886, from your office to Mr. Rathbone, in which he was advised that certain lands on account of which indemnity is claimed "must be re-examined by special agent before the account can be satisfactorily made up, which examination will be made at the earliest practicable day." The communications from the parties herein mentioned constitute a protest against the proposed action of your office as indicated in the quotation above made from your office letter of the 23d of August last, and ask of me a review and reversal of that decision on the ground, substantially, that the law has been complied with in the examination and report already made, and that there is no warrant of law in forcing a settlement upon the basis of a re-examination. The matter was referred to your office for report, and in response to the reference I have before me your report, dated October 20th ultimo.

Said report, after reference to the provisions of the act of 1850 granting swamp lands, and to the act of 1855 providing for indemnity for lands granted by the act of 1850, but subsequently sold or otherwise disposed of, proceeds to discuss the claim covered by this protest. It

states that the report of the special agent of your office, who made an examination in the field of the lands for which indemnity is claimed, together with the testimony taken in his presence as to the character of the lands, and submitted by the county of Hardin, the grantee of the State of Iowa, reached your office in March last. It further states that "It was found that a large percentage of the lands is shown by the field notes not to be swamp or overflowed within the true intent and meaning' of the grant of 1855, and in view of this it was deemed best for the interests of the government to have the lands covered by all pending claims of this class re-examined in the field by new agents." You state that where re-examinations have been made the result has been a great saving to the government. The contention of protestants that there is no authority of law for ordering a re-examination in these cases can not, in my judgment, be maintained. The evidence already presented as to the claim under consideration certainly does not bind your office or the Department to a final adjudication in case said evidence is not deemed satisfactory or sufficient for that purpose. To hold that it does would be contrary to reason and would, in effect, lead to the final adjudication, certification and passing of rights and titles in violation of the law, which, as to claims of the class here in question, requires "due proof before the Commissioner of the General Land Office." Who is to be the judge as to whether the evidence constitutes due proof? Manifestly the Commissioner of the General Land Office, who is to pass upon the proof, and whose action thereon is subject to approval by the Secretary of the Interior.

The Department recently had before it in the case of certain swamp land claims in the State of Oregon (5 L. D., 31), questions kindred to that here involved. In that case I took occasion to use the following language relative to lands granted by the swamp-land act: "While the Department has adopted general methods for designating such lands, the Secretary is not restricted to any plan, but may adopt and employ such agencies as may in his judgment satisfactorily determine what lands are of the character granted by the act." If the method of ascertaining the character of the land may be changed at any time in order to reach a satisfactory determination, and thus meet the requirements of the law, I see no reason why a method in vogue may not be employed to its fullest extent, even to further examination in the field, as proposed in this case, if that is deemed necessary. As stated by you, the law does not limit the scope of the inquiry; neither does it prescribe the manner in which it shall be prosecuted.

Concurring in the views expressed in your report, and finding nothing which would justify my interference with your discretion in the matter, I must decline to accede to the request contained in the protest before me.

HOMESTEAD CONTEST-ABANDONMENT.

HOUF v. GILBERT.

Abandonment is not established by evidence showing frequent and protracted absences following entry, where the entryman had, prior to entry, resided upon and improved the land for a term of six years under contract with a railroad company for whose benefit the land was then withdrawn.

Secretary Lamar to Commissioner Sparks, November 15, 1886.

I have considered the case of Milton Houf v. John R. Gilbert, as presented by the appeal of the latter from the decision of your office, dated May 21, 1885, holding for cancellation his homestead entry No. 2213 of the SW. of Sec. 21, T. 6 S., R. 8 W., made August 1, 1883, at the Helena land office, Montana Territory.

The record shows that said tract was within the limits of the withdrawal for the benefit of the Northern Pacific Railroad Company, upon the filing of its map of general route April 22, 1872, that Gilbert settled upon said tract in 1876, made valuable improvements upon the same, and continued to reside thereon with his family until July, 1882, under a contract of purchase from said company. On August 1, 1883, said land was restored to the public domain, and on that day said Gilbert made said homestead entry, his affidavit having been executed before an officer of the county in which said tract is situated.

On March 15, 1884, Houf filed his affidavit of contest against said entry, alleging that said Gilbert had wholly abandoned said tract; that he has not resided thereon for more than six months since making said entry, and that Gilbert has not resided on said land with his family since he made his homestead entry on August 1, 1883. On March 20, 1884, notice issued, summoning said Gilbert to appear at the local land office on April 30th ensuing, and answer the charge "that he has wholly abandoned said land for more than six months last past." The testimony was taken before an officer in the county where the land was situated, and that of the claimant tends to show that said Gilbert settled upon said land in 1876, and made improvements of the value of more than two thousand dollars; that he lived upon the land continuously with his family from 1876 until 1882; that his leg was broken in 1880 and he was unable to do manual labor in consequence thereof; that in 1882 he sought and obtained employment as superintendent of the Helena Mining and Reduction Company, some seventy miles away; that he removed his family to the place where he was engaged as a superintendent; that his wife was sick and unable to come back to said land until April, 1884, and that the claimant was on the land at the time of making said entry, and that his absence was only temporary. The testimony of contestant tends to prove that said Gilbert has not resided upon said land with his family since the date of his entry and prior to the initiation of the contest.