be that the "counsel" spoken of was Frank's. If these inferences be not correct, there is clearly nothing in the record to show that the proceedings were not regular, and therefore they must be presumed to have been regular.

I therefore dismiss this objection, with the remark that it is singular that Frank should have slept upon his rights under the approved Tracy survey-alleged by him to be wrong-from January, 1860, until March, 1878, a period of eighteen years, without knowing or endeavoring to find out the condition of his claim, and this too, notwithstanding public notice of the approval of said survey was given by the surveyor general in 1862.

In accordance with these views, the judgment of your office is modified, and a survey of Frank's claim, made in accordance with the decree of the district court, will be approved and patent issued thereon. If, on examination, the Dewoody survey is found to conform to said decree, I see no reason why it may not be approved; otherwise another should be made. So far as the Alisal case and others conflict with the views herein expressed they are overruled.

- It is stated in behalf of Frank that there are grantees from Vallejo and Wohler, prior to the deed from the latter to Frank for the residue of the Napa Rancho, whose claims, owing to various causes, have not yet been located, and that it would be a hardship upon him to proceed with a survey of his claim under such circumstances, and therefore he asks for delay until such prior claims are properly located. I do not well see, as at present advised, how this request can be complied with. It would seem that the district court having jurisdiction to determine the matter, and having ordered a survey of Frank's claims according to certain metes and bounds, courses and distances, prescribed in its decree, it becomes the duty of the Land Department to make survey and issue patent thereon, leaving Frank and other parties to settle their conflicting claims, if any, in the proper courts.

TIMBER CULTURE CONTEST-EVIDENCE.

NELSON v. PHELPS.

Under a charge of failure to comply with the law the third year of the entry, evidence is not admissible as to improper preparation of the soil during the preceding

years.

Acting Secretary Muldrow to Commissioner Sparks, December 28, 1886.

I have considered the case of Swan Nelson v. William T. Phelps, involving timber-culture entry made by the latter, September 11, 1880, for the N. E. of Sec. 19, T. 121, R. 64, Aberdeen land district, Dakota, on appeal by the latter from your office decision of March 3, 1885, holding said entry for cancellation.

Contest was initiated December 3, 1883, the affidavit charging

That claimant Phelps wholly failed to plant, sow, or cultivate five acres of timber trees, seeds, or cuttings, during the third year of entry, to wit, between September 11, 1882, and September 11, 1883, and wholly failed to cause the same to be done up to the present time; and wholly failed during the third year after the date of entry to cultivate the five acres broken the second year after said entry.

Hearing was had March 6, 1884. At the very outset inquiry was made as to the manner in which the first year's breaking was done, and whether the land broken the first year was properly backset and cultivated the second year. To this claimant at once objected, on the ground that contestant's allegations in no way referred to the first or second year's operations, and that he had not brought with him the persons who had done the breaking the first year, or the cultivating the second year, and who would have been witnesses in his behalf had he been notified that his operations during those years were to be brought into question. The local officers sustained the objection, but the examination relative to those two years (as well as the third) proceeded.

With regard to the first five acres broken: The testimony tends to show that the tract was injudiciously selected, through lack of experi ence and foresight on the part either of the entryman or the person who did the plowing for him; it was such low ground that in the spring it was too wet, from receiving the drainage of the adjacent water sheds, and later in the season it was too dry-positively "baked," as one witness words it so that the roots of young trees planted therein would be left for weeks, if not months, without a particle of moisture.

The testimony adduced (under objection, as aforesaid,) tends to show that the breaking of this first five acres was poorly done-strips of various widths being left unturned or uncovered. Of course, on attempting, the second year, to cultivate this breaking, no sod could be "backset" where no sod had been turned the first year; and the testimony is very contradictory as to whether indeed this first year's breaking was "backset" or cultivated in any manner the second year.

The planting of the first five acres the third year was entrusted, under contract, to a company (R. W. Day & Co.), who had seven or eight years' experience in planting throughout Iowa, Nebraska, and Kansas. They were to receive a stated compensation for securing ten acres of growing trees on the tract; and in case of failure they were, without extra charge to continue replanting until that result was attained. It was for their own interests to do the work faithfully and well, and the testimony shows that they did so; that is, they planted more than the requisite number of trees, and took pains to plant them as well as was possible in land a portion of which had not been properly broken two years before, and hence not properly backset a year before. The trees were culti vated, a short time after planting. One witness states that ninety per cent of them leaved out and began to grow. Afterward there came on

a severe and long-continued drought, and a large proportion of them died. It is in evidence that the attempt to raise trees in this region that season was an almost universal failure.

The second five acres broken was also upon too low ground, and upon advice of one of the witnesses-the manager of the gang that was doing the planting-other five acres were broken elsewhere. This wit

ness says:

The ground was too wet in a wet season and too dry in a dry season for any success in tree-growing; at the time the trees were planted, the second five acres was so dry that you couldn't backset it with two We therefore broke another, a second five acres.

teams.

We had extra pay for that; we had orders to do so from the owner of the claim, Mr. Phelps, after stating the facts of the case to him, which he evidently didn't know at the time.

Thereupon the claimant forwarded to your office an application for a year's extension of time, in order that this last-ploughed tract might be brought under cultivation and planted.

It would thus appear that an unwise selection of ground, an inadequate preparation of the ground during the first and second years, and the long drought, are three factors which contributed (to how great an extent respectively can not be decided) to the death of the trees on this claim. In short, the facts shown at the hearing are summed up with substantial correctness in the letter of the register and receiver to your office, as follows:

It is clearly established that the requisite number of trees were planted within the proper time, and that their failure to grow was due to the fact that the land was not properly prepared or cultivated to make it fit for tree-culture. To this defect the severe drought contributed. For the latter the claimant is not responsible-with the first he is not charged. We find as facts that said claimant did not fail to plant or cultivate five acres of timber, trees, seeds, or cuttings, on said tract during the third year after entry.

For the reasons above given, the local officers dismissed the contest. Your office, however, reversed the decision of the local officers, on the ground that

The allegation contained in the affidavit of contest of necessity relates back to the proper preparation of the land for tree-culture during the first and second years, as the planting can not be properly or legally done unless the law has been complied with during those two years.

I am clearly of the opinion that the local officers were correct in holding that the claimant could not be called upon to defend himself against an accusation that had not been alleged, and which it could not be presumed he would come to trial prepared to meet. The government, however, being a party in interest, might very properly take notice of any failure to comply with the requirements of the law which might be disclosed in the course of the proceedings; but in such case a new hearing would be necessary, with notice to claimant of charges bearing upon

the first and second year's operations. If this course were to be pursued, however, it is safe to presume that the same evidence with reference to the poor plowing of the first five acres would be offered that has already been introduced; the only additional evidence likely to be of fered would be by the claimant in his own defense. In my opinion such a hearing is not necessary in order to arrive at substantial justice in this case, without any violation of the ordinary rules of legal practice. Taking the testimony against the defendant as it stands, it indicates poor judgment on his part, coming into the Territory a stranger, in the selection of ground for the growth of timber, and the failure on the part of the person hired by him to do the first year's breaking to perform that work properly. Even holding him responsible for the imperfection of the work done by his employé, we find him thereafter using every effort to remedy the evils resulting therefrom; so that not only is no bad faith manifest, but good faith and an earnest attempt to fulfill the requirements of the law is affirmatively shown. I therefore reverse your office decision of March 3, 1885, holding said entry for cancellation,

RAILROAD GRANT-INDEMNITY WITHDRAWAL.

GRAHAM v. SOUTHERN PAC. R. R. Co.

The appropriation of land for a public purpose that had been, prior thereto, withdrawn as within the indemnity limits of a railroad grant, and its subsequent restoration to the public domain, works a revocation of the withdrawal and leaves the land open to the first legal applicant.

Acting Secretary Muldrow to Commissioner Sparks, December 31, 1886.

SIR: I have considered the case of Joseph R. Graham v. the Southern Pacific Railroad Company, as presented by the appeal of the company from the decision of your office, dated April 28, 1885, rejecting its claim for the W. of the NE. 4 and the E. of the NW. † of Sec. 23, T. 21 S., R. 29 E., M. D. M., Visalia land district, California.

The record shows that said tracts are within the indemnity limits of the grant to said company by act of Congress approved July 27, 1866 (14 Stat., 292). The withdrawal of the odd numbered sections within said limits was ordered by your office letter, dated March 22, 1867, and was received at the local land office May 21st same year.

It appears that on January 4, 1875, the land in controversy was (with other tracts) withdrawn by the United States surveyor general, for the Tule River Indian Reservation, and remained a part of said reservation until August 3, 1878, when it was restored to the public domain by executive order, due notice of which was given to the local land officers on August 15, 1878.

It does not appear when the first township plat of survey was filed in the local land office, but an amended plat of survey under said execu

tive order was filed in the local land office on September 4, 1878. Graham made homestead entry of the land in question on November 29, 1878, and on December 3, 1883, made final proof. The local officers found the proof sufficient, and recommended that it be accepted. Your office, on appeal by the company, sustained the recommendation of the local land officers.

It is insisted by the company that said tracts have been continuously withdrawn since May 21, 1867, and Graham could acquire no rights while the withdrawal remained in force, and also that the company will need all of the lands in the odd numbered sections within the indemnity limits to satisfy the losses within the grading limits. But it must be remembered that the lands in question are in the indemnity limits and the company can acquire no right to the same, unless by selection. The company has not selected the tracts in controversy.

The effect of the withdrawal for said Indian reservation and the subsequent restoration to the public domain must be held to operate as a revocation of the withdrawal for the benefit of said company, so far as to allow the land to be selected by the first legal applicant. Graham appears to be the first legal applicant. His entry was allowed and he has made valuable improvements upon the land to the amount of $1,000 or $1,200. His claim must be held superior to that of the company. The decision appealed from is accordingly affirmed.

RAILROAD GRANT-RES JUDICATA.

HOLMES v. NORTHERN PAC. R. R. Co.

By a decision that became final that portion of the claimant's entry which lay within the railroad limits was canceled. On application for re-instatement it is held that the matter is not res judicata as the question now is solely between the government and the entryman.

Land appropriated at the filing of the map of general route, but released from such appropriation prior to definite location, is not held to await the same, but is open to the first legal applicant.

The right to purchase under the act of June 15, 1880, existing at definite location serves to except the tract covered thereby from the operation of the grant. Acting Secretary Muldrow to Commissioner Sparks, January 4, 1887. I have considered the case of Charles Holmes v. the Northern Pacific Railroad Company, involving the S. of SW. 1, Sec. 13, T. 2 S., R. 5 E., Bozeman, Montana Territory, on appeal from your office decision of October 23, 1883, refusing his application to amend his homestead entry, No. 4, made January 2, 1875, for the N. of NW. of Sec. 24, same township, so as to include the tract first described. It appears that his entry as originally made covered both of the tracts described, and that final proof was made and final certificate, No. 142, issued thereon October 9, 1877. When the case came up to your office for its action,