by him long prior to survey; that the local land officers permitted him to make entry of the tract; that relying upon such permission and approval he made other costly improvements, after entry but prior to be. ing directed by your office to relinquish a portion thereof; that the land is so situated that all the lots claimed by him naturally belong together by location and contiguity, while any single relinquished lot. would be likely to be practically valueless to the government; that there is no way in which his entry can be readjusted so as to reduce. it to an even one hundred and sixty acres, but that if compelled to relinquish anything he must suffer great hardship and loss-far beyond any advantage the government could gain-I reverse your decision, and direct that Bouret's entry be approved for the full amount claimed.

TIMBER CULTURE CONTEST-PRACTICE-EVIDENCE.

PRINCE v. WADSWORTH.

The admissibility of evidence is determined by the charge under investigation. The defense is entitled to show acts done in compliance with the law prior to the receipt of notice of the contest.

Acting Secretary Muldrow to Commissioner Sparks, December 20, 1886.

I have considered the case of Henry R. Prince v. Ezra C. Wadsworth, involving timber-culture entry made by the latter January 4, 1876, for the NW. of Sec. 24, T. 14 N., R. 9 W., Grand Island district, Nebraska. Contest was instituted against this entry by said Prince June 20, 1881. Hearing was held August 15, 1881. The local officers decided in favor of contestant. Claimant appealed, and on April 4, 1882, your office affirmed said decision. From your office decision no appeal was taken, and May 8, 1883, you notified the local office that Wadsworth's entry was canceled. On the 17th of the same month Prince made timber-culture entry for said tract.

May 26, same year, you advised the local office that your office letter of May 8th had been written inadvertently, and that as Prince had not applied to enter the tract at the time of initiating contest, the case should have been dismissed; and your office accordingly directed the re-instatement of Wadsworth's entry, and held that of Prince for cancellation. From this decision Prince appealed to the Department. By decision of my predecessor, Mr. Secretary Teller (March 7, 1884), Prince was accorded the right to proceed with a second contest, "such right dating from the time when he filed his application to enter." But the first step in such proceeding, without which jurisdiction could not be acquired, would be notice to the defendant; and it was competent for defendant to introduce evidence tending to show compliance with law prior to notice of (the second) contest.

It may be conceded that the claimant had not fully complied with the law prior to the re-instatement of his entry; but the allegation of

the complaint, of date May 3, 1881, being that claimant had "totally failed to comply with the law, to this extent, that there are now no trees nor cuttings growing on the land," the contestant is bound by that allegation, and it was competent for defendant to introduce evidence relative thereto.

The evidence shows that defendant, after re-instatement of his entry (May 26, 1883), and before the initiation of the second contest, had planted over ten acres of trees, of which, by actual count, over eight thousand four hundred were living and growing when said second contest was initiated.

For the reasons herein given, I reverse said office decision of July 16, 1885, holding Wadsworth's entry for cancellation, and direct that it be again re-instated.

WAMP LANDS-CERTIFICATION.

STATE OF Oregon.

While the certification of lauds as swamp will not be disturbed to correct errors in adjudication, the government will not be concluded if its action was procured through fraud or mistake.

Acting Secretary Muldrow to Hon. Z. F. Moody, governor of Oregon, December 22, 1886.

I am in receipt of your communication of the 16th ultimo, enclosing a copy of a letter from Mr. Charles Shackleford, special agent of the General Land Office, in reference to swamp lands certified to the State of Oregon, embraced in what is known as list No. 5, which I have referred to the Commissioner of the General Land Office, for report thereon.

In reference to your complaint that the special agent, instead of making an examination of lands selected by the State and not acted upon by this Department, is dealing with matters entirely foreign to his instructions, and proposes a procedure entirely at variance with my letter of August 7, 1886 (5 L. D. 31), I have to reply that the action of the special agent in making an examination of the character of the lands embraced in list No. 5, and in investigating the conduct of the former special agent is authorized by my letter of August 7, 1886, which fully appears from that part of the letter quoted in your communication, as follows: "As to the lands reported as not swamp and overflowed, it has been decided by the Department that the State is estopped from further examination of said lands, and can not now be heard to show that such lands are swamp and overflowed, and that the government and all other parties are equally estopped from investigation of the character of the lands reported by said Commission as swamp and overflowed, and which have been approved and certified as inuring to the State under the swamp land grant, unless fraud or mistake be shown."

While it is apparent from the above quoted extract that no further investigation of the lands so certified should be allowed for the purpose of correcting a mere error of adjudication, it was distinctly held that the government would not be concluded, if it was shown that the certification and approval of said list was obtained by fraud or mistake.

When this matter came before me last for consideration, it was alleged that the approval and certification of this list was obtained through the fraudulent conduct of the special agent of the government charged with the duty of making an examination of these lands and reporting them for approval or disapproval to the Department It was for the purpose of determining whether evidence existed to support this charge that the recent investigation of the special agent was ordered, and to this end it was directed.

This charge has again been brought to my attention in such a manner as to put the Department upon inquiry. Since the receipt of your letter of the 16th instant, I have received a letter from Captain John Mullan, agent for the State of Oregon, directing my attention to this subject, and with reference to your letter requesting that, if any report or allegation has been filed in the Department tending to impeach, discredit, or cast a cloud upon the title to the lands embraced in list No. 5, or to delay the issuance of patent therefor, he may be permitted to examine the same before any final recommendation or action is had thereon.

In reply thereto, I state that if after a careful examination I shall conclude that there is sufficient in the charge to warrant action in the premises, calling upon the State to show cause why the approval and certification of said selections embraced in list No. 5 should not be revokedand canceled, Captain Mullan, or any other authorized agent of the State, will be permitted to inspect all papers on file in the Department relating to the charge and will have full and ample opportunity to answer and defend the same.

I have directed that a copy of this letter be furnished to Captain Mullan, the agent for the State of Oregon.

RIGHT OF PURCHASE UNDER ACT OF JUNE 15, 1880.
WILLIAM H. BIZZELL.

Jurisdiction to consider an application under the act of June 15, 1880, to purchase land for which patent has issued, may be conferred upon the Land Department by the surrender of said patent, where the entry falls within the terms of the statute.

The case of Thorp Williams et al. cited and distinguished.

Acting Secretary Muldrow to Commissioner Sparks, December 23, 1886.

I return herewith the letter of United States District Attorney House, of March 2, 1886, relative to the homestead entry of William H. Biz

zell, which was referred to me by your letter of November 6, 1886. This letter was referred to the Commissioner of the General Land Office, who has made report and recommendation thereon, which I also transmit herewith.

From an examination of the files of the General Land Office it ap pears that the entry was made April 17, 1875; final certificate issued thereon September 20, 1880; and the land was patented September 9, 1882.

A bill has been filed to cancel said entry upon the ground that Bizzell never lived on the land as required by the statute. Since the filing of said bill, the heirs of Bizzell, through the administrator of his estate, have made a proposition to purchase said land at $2.50 per acre, and to pay all costs.

The Commissioner recommends that said proposition be not accepted, stating that he knows no authority of law which would permit the purchase of the land under the circumstances of the case, and that there is no equity in the case that would justify the perfection of title in the heirs of Bizzell, if it could be done.

It was held by the Department in the case of Thorp Williams et al., (2 L. D., 114,) that lands entered and patented under the general homestead law are not subject to purchase by the same parties under the act of June 15, 1880. In that case, however, the land was patented prior to the act of June 15, 1880, and at the passage of that act title had passed out of the government; hence lands in that condition were not contemplated by the act. But the entry of Bizzell having been made prior to the act of June 15, 1880, and final proof not having been made at the date of its passage, his entry was of the class contemplated by the act, and hence he could have purchased under it at any time prior to patent. The question now arises whether the issuance of patent abridged or impaired that right.

It is true that while the patent is outstanding the Land Department has no jurisdiction in the premises. But I can see no reason why the Land Department may not be again invested with jurisdiction in the matter by a voluntary relinquishment and surrender of the patent by the administrator or heirs of Bizzell. In that event the Commissioner would, in my opinion, have as full and complete jurisdiction and authority to consider an application to purchase under the act of June 15, 1880, as if the patent had not issued, although he would have no juris diction over the land while the patent remained outstanding.

As the entry in its present status is not subject to the jurisdiction of the Department, I do not intend to be understood by this as making any decision in the matter, or to indicate what might be the action of the Department in this case in the event that the proper parties should determine to voluntarily surrender the patent, and afterward make application to purchase under the act of June 15, 1880.

TIMBER CULTURE ENTRY-NATURAL GROWTH.

ALBERT H. SADLER.

Land rendered "devoid of timber" by the removal of a natural growth is not subject to timber culture entry.

Acting Secretary Muldrow to Commissioner Sparks, December 23, 1886.

I am in receipt of the papers in the case of the appeal of Albert H. Sadler from the rejection, by your office letter of May 23, 1885, of his application to make timber-culture entry for the NW. of Sec. 30, T. 5, R. 21, Kirwin district, Kansas.

1

Sadler, in his application, states that said section 30 is now utterly devoid of timber. His affidavit further states:

That there was originally some timber on said section, but that the same has all been cut, and that there are only the stumps of trees left, leaving said section utterly devoid of timber, as above stated.

This case is ruled by that of my predecessor, Mr. Secretary Teller, in the case of Sellman v. Redding (2 L. D., 270,) wherein it was said:

If the tract at any time was not subject to entry on account of the natural growth of timber on that section, the act of removing the timber would not bring the land under the provisions of the timber-culture laws. It is to be presumed that, if left to itself, the section would again produce timber without artificial cultivation.

I therefore affirm your said office decision rejecting Sadler's applica tion.

OSAGE INDIAN LANDS-ACT OF MAY 23, 1880.

UNITED STATES v. WOODBURY et al.

The statutory oath required of a pre-emptor is not applicable to an entry under the act of May 28, 1880.

By this act the only condition pre-requisite to an entry of these lands is that the purchaser shall be an actual settler with the qualifications of a pre-emptor. The case of Morgan v. Craig overruled.

Acting Secretary Muldrow to Commissioner Sparks, December 23, 1886.

This case involves the validity of Osage Cash Entry No. 52, made by Charles H. Robey, September 12, 1881, for the NE. of Sec. 12, T. 33 S., R. 23 W., Garden City, Kansas, under the act of May 28, 1880. You held this entry for cancellation upon the ground that Robey had made repeated efforts to dispose of his claim before making final proof, showing that he was not a bona-fide pre-emptor, and that his entry was made for a speculative purpose.

From this decision Robey appealed, alleging as error, (1), In holding that Robey settled upon and improved the land for the purpose of speculation, and (2) In holding that said entry was subject to the