tain themselves and families through the winter," and close by requesting permission to publish my reply to your letter.

It would be improper for this Department to express any "opinion," or make any suggestions in regard to the question concerning which you write, other than as required in cases coming before it from the General Land Office, as it could have but a limited knowledge at best of the circumstances surrounding the cases to be affected. The same law which governs the Department in its supervision of all matters pertaining to the public lands controls the settlers upon such lands, determines their rights, liabilities and privileges, and must be the rule to guide them in all their actions in connection therewith.

The fact that the Secretary of the Interior in cases coming before him on appeal is the final judge in the Department of the acts and good faith of settlers seeking to acquire title to the public lands under the laws of Congress, affords another reason why he should not give any opinion such as you desire. In the regular course of the business of the Department the case of the man who would be influenced or controlled by such an opinion, might come before him for decision and final determination.

All I can do in answer to your letter is to refer you to the decisions of the Department rendered and published from time to time, in which the principle involved in the request you make may be directly or indirectly passed upon.

HOMESTEAD CONTEST-QUALIFICATION OF CONTESTANT.

LERNE v. MARTIN.

An alien may contest a homestead entry and secure a preferred right of entry thereby if, after the resulting cancellation, he is qualified to enter.

Secretary Lamar to Commissioner Sparks, November 2, 1886.

I have considered the case of Elery Lerne v. George W. Martin, as presented by the appeal of the latter from the decision of your office, dated May 28, 1885, holding for cancellation his homestead entry No. 7944 of the SW. of Sec. 10, T. 25 N., R. 3 W., made March 22, 1882, at the Neligh land office, in the State of Nebraska, also the appeal from the decision of your office, dated July 7, 1885, denying his application for a rehearing.

The record shows that Lerne initiated contest against said entry on May 27, 1884, and hearing was duly had on July 16, same year. Both parties appeared at the hearing. Upon the evidence submitted the local land officers decided in favor of the contestant. On appeal, your office found that the entryman did not establish and maintain a resi dence on said tract in good faith as required by law, and affirmed the decision of the local land officers, from which decision the claimant duly

appealed. Subsequently, the entryman made application to the local land officers for a rehearing, upon the ground that the contestant at the time of the initiation of the contest was an alien, and therefore disqualified to make said contest. The local land officers rejected said application, and your office, on appeal, affirmed their decision.

It has been repeatedly ruled by this Department that any person can contest a homestead entry, and if after the entry is canceled as the result of the contest, the contestant is duly qualified, he may be allowed to enter the land. Shinnes v. Bates (4 L. D., 203); Lyman v. Fayant et al. (ibid., 424). There was, therefore, no error in refusing the application for a rehearing.

A careful examination of the whole record shows no reason for disturbing said decisions and the same are hereby affirmed.

PRACTICE-FINAL PROOF-PROTEST.

RUE v. FARIBAULT ET AL.

A protestant, who sets up his filing and settlement claim thereunder to defeat the final proof of another, must submit to a judgment of cancellation, if his protest fails, though he has not yet offered his own final proof.

Acting Secretary Hawkins to Commissioner Sparks, November 30, 1886.

I have considered the case of John Rue v. George H. Faribault and Daniel Cavence, involving the SW. of Sec. 17, T. 153 N., R. 64 W., Devil's Lake, Dakota, on appeal by the first named from your decision of June 18, 1885, adverse to him.

It appears from the record that Rue filed pre-emption declaratory statement for the tract described September 29, 1883, with allegation of settlement April 5, 1883. On the same day (September 29, 1883, which seems to be the day when the township plat was filed), Faribault made homestead entry for the W. of NW. and the W. of SW. of said section 17. On the same day Cavence filed pre-emption declaratory statement for the E. of NW. and the E. of SW. of 글 said section 17, alleging settlement May 7, 1883.

After the usual notice, both Faribault and Cavence appeared on January 4, 1884, to make final proof, with a view to the purchase of the lands embraced in their respective claims. They were met by Rue, who appeared as a protestant against their claims, on the ground of conflict with his claim as embraced by his pre-emption declaratory statement.

It will be observed that each of the applications to purchase includes one-half of the tract claimed by Rue, the W. thereof being embraced in Faribault's claim and the E. in the claim of Cavence.

As a result of Rue's protest, hearing was set for January 24, 1884, in the case of Faribault and January 25, 1884, in the case of Cavence.

At the close of the hearing in Faribault's case it was agreed by all parties to submit both cases upon the testimony taken in the case against Faribault. On the testimony submitted, together with the final proof made by Faribault and Cavence respectively, on January 4, 1884, the day advertised for said proof, the local office held that Rue's protest was without good grounds, for the reason that his residence on his claim had not been of such a character as to justify an award to him, and further held that the proof submitted by Faribault and Cavence respectively should be approved. On appeal, you sustained this finding, and held Rue's filing for cancellation; and now comes Rue by counsel and appeals from your said decision.

Objection is made to the consideration at this time of the bona fides of Rue, or to an examination of the question as to his compliance with the law under which he claims to have settled, it being argued that those are questions for determination when he shall apply to make final proof. This objection is without force, since the question as to priority of residence was by the protest made one of the main points in issue, the first allegation in said protest being that Rue was the first bonafide settler.

Among the papers in the case are motions filed by Faribault and Cavence respectively to have Rue's pre-emption declaratory statement canceled from the records, and this contest closed, for the reason that said declaratory statement has expired by limitation, no proof having been submitted by him, and the legal period for submitting his final proof having expired.

Having examined the case on the record made at the hearing, and having reached a conclusion, the effect of which is the cancellation of Rue's filing and the acceptance of the proofs of Faribault and Cavence, it is unnecessary to consider these motions. Your decision is affirmed

TIMBER CULTURE ENTRY-DEVOID OF TIMBER.

ALLEN v. COOLEY.

An entry should not be canceled where it was allowed in accordance with departmental rulings then in force, and the entryman relying thereon has proceeded in compliance with the law.

Acting Secretary Hawkins to Commissioner Sparks, November 30, 1886.

I have considered the case of William Allen v. James T. Cooley, as presented by the appeal of the former from the decision of your office, dated January 28, 1885, affirming the decision of the local land officers dismissing Allen's contest against the timber culture entry No. 3019 of

the W. of the NW. 4 of Sec. 30, T. 13 S., R. 4 W., made by said Cooley on April 30, 1881, at the Salina land office, Kansas.

The facts are substantially set forth in the decision appealed from. The only material question involved is, whether said section was "devoid of timber" within the meaning of the act of Congress approved June 14, 1878 (20 Stat., 113).

Your office held that under the departmental decisions of Blenkner v. Sloggy (2 L. D., 267), and Box v. Ulstein (3 L. D., 143), that said tract was subject to entry under said act. To the same effect is the departmental decision in the case of Bartch v. Kennedy (3 L. D., 437), decided on March 3, 1885, by Secretary Teller, and the motion for review, "based upon the assumption of error in the construction of the law of the case," overruled by Acting Secretary Muldrow, on March 20, 1885. Since said entry was allowed by the local land officers in accordance with the construction of the timber culture law by the Department then in force, and upon the faith of such entry the claimant has proceeded to comply with the law, I do not think it in harmony with the principles of justice to deprive him of the fruits of his labor.

The decision appealed from is accordingly affirmed.

HOMESTEAD CONTEST-PRACTICE.

SMITH v. GREEN ET AL.

A contest resting on the charge of abandonment, sale, and relinquishment is not premature though brought within less than six months after entry.

The failure to file a motion in time is not cured by notice thereof served within the proper period.

Secretary Lamar to Commissioner Sparks, December 3, 1886.

This controversy involves the NW. 4 of Sec. 29, T. 106 N., R. 63 W., Mitchell, Dakota Territory, the material facts in the case being as follows: June 27, 1883, Ida Green made homestead entry No. 25,506 of the tract specified, and on September 3d following Calvin M. Young initiated contest against said entry charging that "claimant has entirely abandoned, sold and relinquished said land for a consideration." Hearing was had and testimony submitted November 13 ensuing, claimant failing to appear.

October 22, 1884, the local office dismissed this contest on the ground that it was prematurely brought, citing as authority for such action the case of Bailey v. Olson (2 L. D., 40). Two days thereafter (October 24, 1884), Jessie B. Smith applied to contest the aforesaid entry on the general charge of abandonment. This application was rejected by the local office on the ground that "prior contestant has right of appeal for thirty days from October 22, 1884."

November 13, 1884, Young filed a second contest, which was allowed, notice issued, and hearing was set for December 27, 1884.

December 1, 1884, Smith by her attorneys filed a motion to dismiss the second contest of Young and have her own contest reinstated. This motion was granted by the local office on December 2, 1884, and the contest of Young was thereupon dismissed. From this action Young, December 27, 1884, appealed to your office, at the same time submitting testimony against Green's entry, which testimony, however, was not passed upon by the local office, because Young's contest had been dismissed as aforesaid. Upon consideration of the case as then presented your office on the 23d of April, 1885, rendered the decision from which the appeal here was taken, reversed the action of the local office in dismissing Young's second contest, and in turn dismissed the contest of Smith, because she had failed to appeal from the dismissal of her contest October 24, 1884, as aforesaid.

May 11, 1885, the relinquishment of Green's entry was filed in the local office, and at the same time Young made homestead entry No. 27,436 of the tract in question. The appeal of Smith was transmitted by register's letter of July 17, 1885, and has been given careful consideration.

Recurring to the early proceedings in this case, it is observed that the Mitchell office erred in dismissing Young's first contest. The case of Bailey v. Olson, cited in support of such action, is not applicable. See cases of Lilly v. Thom (4 L. D., 245); Pickett v. Engle (id., 522); and James v. Hall et al. (id., 553); but inasmuch as no appeal was taken from such dismissal, and a new contest was commenced, Young thereby lost whatever rights he might have acquired by virtue of his first contest. Churchill v. Seeley (4 L. D., 589). Again, the dismissal of Smith's application to contest on October 24, 1884, was erroneous. This contest should have been held to await the final result of Young's first contest. See the case last cited. But inasmuch as Smith failed to appeal from the dismissal of her contest within the thirty days required by the rules of practice, she therefore lost whatever rights she might have acquired by virtue of her contest. True, she filed a motion to dismiss Young's contest more than thirty days after the dismissal of her contest, having given Young notice that such motion would be filed. But that was of no avail, and the dismissal of Young's second contest on the 2d of December, 1884, was another error on the part of the local office. Young's second contest should have been sustained and your office properly ruled on that question.

The relinquishment of Green having been since filed, and Young's entry of the tract allowed, such entry should remain intact, and I so direct. The judgment of your office on the material questions involved is affirmed.