From the evidence submitted at a hearing duly and regularly had on the 19th of May following, the local officers found that the material charges in the affidavit of contest had been sustained, and they therefore recommended the cancellation of the entry. Upon appeal, you reversed their decision and dismissed the contest by letter of May 1, 1885. From your decision an appeal is brought here.

The evidence shows, and the register and receiver so found, that in June, 1883, the defendant caused to be planted about five acres in trees and cuttings. Nearly all of these failed to leaf out and grow, for the very obvious reason that the ground was not in proper condition for planting, and the season was too far advanced when said planting was done. The tract was not protected, as is the custom of tree growers in that country, and in the fall of that year a fire swept over the tract and destroyed all or nearly all of the trees that grew. So that when contest was initiated, there were but a few trees of any kind or character upon the land-some say not more than ten, others say possibly nearly a hundred.

You hold that the evidence offered to prove no cultivation the third year was inadmissible. In this you erred, as one of the charges in the affidavit of contest was failure to cultivate a second five acres of said claim during the third year of the entry. This charge is sustained by an abundance of testimony, in fact, is not denied anywhere or by any body.

It is thus seen that the material charges in the affidavit of contest are sustained. There had been no cultivation of a second five acres during the third year of the entry, and there were but few trees, and they of a very inferior character on the claim nearly three and a half years after the entry was made. These being established, the burden of proof is upon the entryman to show his good faith and satisfactory reasons for the evident failure to meet the requirements of the law. This was distinctly ruled by the local officers, and I think correctly, too. Donly v. Spring (4 L. D., 542). In this I think the claimant has fallen far short in his evidence. For, as already stated, while the evidence shows that some planting was done, it shows that such work was done when the ground was in no condition conducive to the growth of plants and trees. This is surely no evidence of good faith. It was expressly ruled by this Department, in the case of Caviness v. Harrah (4 L. D., 174), that the planting of trees should be done when the ground is in such condition as will, under ordinary circumstances, be favorable to their growth.

Finding the facts as I do, I agree with the local officers in that said entry should be canceled. The decision of your office is therefore reversed.

PRACTICE-HEARING; RELINQUISHMENT.

DEMING v. CUTHBERT ET AL.

It is competent for the Department to investigate and determine whether a relinquishment was executed in good faith, or whether in such matter fraud was practiced upon the government.

Acting Secretary Muldrow to Commissioner Sparks, January 14, 1887.

On the 12th of June, 1878, the local officers at Yankton, Dakota Territory, rendered a decision refusing to allow one John N. Johnson to contest the timber culture entry of one A. R. Wells, for the SE. of Sec. 24, T. 117, R. 53. On December 14, 1878, your office modified said decision of the local officers, and directed that Johnson be allowed a preference right to enter the tract. Long before this, however-to wit, July 30, 1878-the local officers had allowed Charles L. Deming to make timber-culture entry of said tract; and as Johnson took advantage of the preference right allowed him by your office, Deming's entry was held for cancellation by your office letter of February 4, 1879. No formal permission was given Deming to make a new entry, but he seems to have been tacitly allowed to do so; for on the 4th of June, 1880, he made timber-culture entry of the NE. 1 of Sec. 26, T. 123, R. 64 (Watertown series), Aberdeen, Dakota Territory.

On January 13, 1885, Deming's relinquishment of the tract last-named was presented at the land office at Aberdeen, Dakota Territory, whereupon his said entry was canceled, and David S. Cuthbert, on the same date, made timber-culture entry of the same. On learning of this fact, Deming forwards to your office an application for re-instatement of said entry, accompanying his application by an affidavit, in which he asserts that his attorneys, learning that he had had one timber-culture entry canceled, and had afterwards made another, informed him that this was an irregular proceeding and would probably lead him into trouble, but that they would endeavor to have the same "legalized," if he would send them certain documents, among the rest an executed relinquishment; that thereupon affiant did so, solely in order to have his entry legalized, and without the remotest intention of actually relinquishing it; but that after having obtained possession of the document on the pretense above set forth, said attorneys sold it, and pocketed the proceeds. This affidavit is corroborated by that of claimant's brother, and by a third party. All these affidavits affirm, moreover, that claimant has planted and cultivated trees in compliance with law, up to the present time.

You decide that you "see no reason for granting Deming's request, thereby disturbing an innocent party, nor can "your" office undertake to adjust difficulties arising between client and attorney." From your decision claimant appeals.

In my opinion, it is competent for the land department to investigate and determine whether a relinquishment has been made in good faith, or whether the department has been imposed upon by fraud. In the present case the affidavits of the claimant and others present strong prima facie proof of fraud; but they are wholly ex parte. In order that this Department may take intelligent action in the case, you will direct that a hearing be had, to which all parties in interest, including the attorneys accused of the fraud, shall be cited, to determine whether said Deming relinquished said timber-culture entry in good faith, or whether it was made, as he alleges, "for the purpose of enabling him to make in place thereof a technically legal entry of the same tract under the timber-culture laws."

RIGHT OF PURCHASE UNDER THE ACT OF JUNE 3, 1878.

CUTTEN v. ROBLES.

The right of purchase under the act of June 3, 1878, will not be allowed to defeat or impair a prior valid pre-emption claim.

But if the timber applicant show such claim to be invalid it will thereafter constitute no bar to his purchase.

Acting Secretary Muldrow to Commissioner Sparks, January 14, 1887.

On the 12th of March, 1883, Jesus Robles filed pre-emption declaratory statement for the SW. of Sec. 12, T. 3 N., R. 1 E., Humboldt land district, California; and on the 21st of September, same year, he filed application to publish notice of intention to make proof for the same on the 20th of October ensuing.

On August 8, 1883, Joseph F. Cutten applied for the land under the act of June 3, 1878 ("For the sale of timber lands in the State of California, etc.), and subsequently filed a protest against Robles' being allowed to make proof and payment for the land, alleging that said Robles had not in good faith settled upon, inhabited, or improved said land. Hearing was had December 3, 1883.

As the result of said hearing, the local officers found, as a matter of fact, "that the land in controversy is timber-land, and chiefly valuable for its timber," but reject Cutten's application for the reason that "the filing of the timber application of Cutten was an error, while Robles' pre-emption filing was of record "-citing as authority the case of Rowland v. Clemens (2 L. D., 633).

On appeal by Cutten, your office (June 27, 1885) reversed the decision of the local officers; whereupon Robles appeals to the Department. The testimony is in many respects contradictory beyond reconciling. Robles and his witnesses testify that in March, 1883, he cut logs and laid the foundation for a house; also cut some brush. In June he again

went on the land with the same witnesses, and partly raised the walls of his house; made a small clearing, less than an acre, in the brush; sowed oats on the surface and brushed them in, and planted a few peas. Two of Robles' own witnesses testify that this cultivation appeared to be done only "to comply with the law, and not for a crop." In August Robles again went to the land; finished raising the walls of his house, and partly roofed it, put in a floor of hewed poles, made a door" that was never hung," and put in one small pane of glass. On each of these occasions Robles went to the place one day, stayed all night on the tract, and returned next day. He testifies to remaining all night on the tract twice when no one was with him-making five times altogether, according to his own account, that he visited the tract in the nine months between his settlement and the hearing.

On the other hand, three of Cutten's witnesses, surveyors, testify that they repeatedly, as late as October and December, traveled all over the land, in various directions, searching for indications of settlement, but could find no house, clearing, or any indication whatever of inhabit

ancy.

It is furthermore evident from the testimony that the land is chiefly valuable for its timber-competent witnesses estimating that it contains from seven to ten million feet, board measure; and that if the timber was cleared from the land it would be almost or quite valueless for agricultural purposes.

In my opinion, Robles failed to comply with the pre-emption law in respect either of residence, cultivation, or improvement; but that his object was to acquire a valuable tract of timber-land at the price of ordinary agricultural land, rather than purchase it at the increased price of timber land. In the case of Rowland v. Clemens, cited by the local officers (s pra), it was decided that the Department would not allow a timber claim to impair a prima facie valid pre-emption claim. But by this it was not intended to hold that an applicant to purchase under the timber-act could not contest the legality of such pre-emption claim; and if as the result of such contest it appeared that the claim were founded in bad faith, and that the pre-emptor had failed in essential respects to comply with the requirements of the law, such filing would be no bar to a timber application-as was directly held in the case of Showers v. Friend (3 L. D., 210).

I therefore affirm your office decision holding Robles' filing for cancellation. Cutten's application will remain on file, and he will be allowed to purchase upon giving notice, submitting proof, and in other respects complying with the requirements of the act of June 3, 1878.

PRACTICE-APPEAL-LOCAL OFFICE.

HOTALING V. CURRIER.

The local officers have no authority to dismiss an appeal because they deem it defective.

Acting Secretary Muldrow to Commissioner Sparks, January 17, 1887.

I have considered the case of John R. Hotaling v. David G. Currier, as presented by the appeal of the latter from the decision of your office, dated June 22, 1885, holding for cancellation his timber-culture entry of the N.W. of Sec. 22, T. 110, R. 62, made March 23, 1880, at the Springfield land office, in Dakota Territory.

It appears that Hotaling filed his affidavit of contest against said entry on July 17, 1883, alleging that the entryman "has failed to break, plant, and protect and keep in a healthy growing condition the timber, seeds, cuttings, or trees required to be planted during the third year after entry, on the first five acres broken on said tract as required by law." On July 27, 1883, Currier filed his application, asking for an extension of time, and alleging that he had complied with the requiremeats of timber-culture law in good faith; that the trees planted on said claim failed to grow on account of the extreme dry weather and not through his fault or neglect. On December 14, 1883, the local land officers issued a notice for hearing, personal service was made on December 26, 1883, and February 7, 1884, was set for the trial of the case. On the last-named date, attorney for Currier entered a special appearance, and moved "to dismiss said contest upon the ground that the notice of contest herein served upon this claimant does not contain any allega tions showing a failure to comply with the timber culture laws." The register and receiver overruled said motion, and by stipulation of parties testimony was taken before a notary public. Upon the evidence submitted, the local land officers found that the allegations of the contestant were sustained, that "the records do not show that Currier ever filed an application for an extension of time," and they recommended the cancellation of said entry.

Upon appeal, your office, on June 22, 1885, held that the appeal filed by the defendant was defective and should have been dismissed by the local land office, because it did not set forth in specific terms the excep tions to their decision, but that inasmuch as the case was before your office, the evidence was duly considered and the decision of the local land officers was affirmed upon the ground that it was shown that the claimant has failed to comply with the requirements of the law.

The evidence shows that Currier employed an agent to do the breaking, cultivation and planting required by law, and while it is true that the evidence is conflicting as to the amount of work done and the manner of doing the same, yet it is not shown that Currier has acted in bad