1878-prior to filing of township map, in December, 1878, which disclosed the fact that the tract was a portion of a school section. In June, 1882, Smith sold the improvements to Johansen, who at once took possession, and at a later date applied to make homestead entry of the same. This application the local officers rejected; and on appeal, your office affirms their action. Johansen now appeals to the Department. Johansen makes affidavit-sworn to before the register of the land office at Salt Lake City-that the improvements on the tract consist of two miles of irrigating ditches; a fence about the whole tract; thirty acres under cultivation; a log house with three doors, three windows, board floor, and otherwise comfortable as a residence; a log stable, a granary twelve by twenty-eight feet; a well seventeen feet deep; and other improvements, the whole being worth between $1500 and $2000, all of which belong to him, and he is the sole occupant of the tract. Both the homestead and pre-emption laws require personal settlement on public land, in order to recognition of a claim thereunder. Hence in the present case the only person who could successfully contest the reservation in favor of the territory would be Smith, who settled upon the tract prior to survey-providing he had maintained residence since such settlement. But Johansen, settling subsequently to the survey could not defeat the claim of the Territory (Thomas E. Watson, 4 L. D., 169).

The decision of Mr. Secretary Teller, in the case of Christian P. Willingbeck (3 L. D., 383), upon which counsel for Johansen strongly relies in his appeal, declares the rule requiring personal settlement of the applicant to be technically correct. The decision in the case of Thomas E. Watson (supra) is believed to be a right interpretation of the law. I affirm your decision.

PRACTICE-APPEAL-REPAYMENT.

DEFFEBACH v. BONHAM ET AL.

Application for repayment and restoration of homestead right, filed pending appeal from a judgment cancelling a former homestead entry, is an abandonment of the appeal.

Acting Secretary Muldrow to Commissioner Sparks, February 9, 1887. In the contest case of Lewis C. Deffebach against the homestead entry of William H. Bonham for the NW. of Sec. 30, T. 16 N., R. 14 W., Grand Island, Nebraska, in which the relinquishment of claimant was filed by Thomas M. Reed, and the latter was allowed to make homestead entry, your office, by letter of February 25, 1885, decided that said relinquishment was filed as a result of the contest, and accordingly held for cancellation said entry of Reed, and awarded the preference right to Deffebach. An appeal on behalf of Reed was filed.

Afterwards, on April 22, 1886, your office transmitted the application of said Reed for restoration of his homestead right and repayment of fees.

It is clear that Reed can uct consistently maintain his appeal and this application at the same time. Only in the event of the failure of his appeal could the application referred to be considered. therefore hold, since the application was filed after the appeal, that the filing of the application for restoration of the homestead right and for return of fees amounts to an abandonment of the appeal.

This disposition of the case leaves nothing further to be considered by me. Said application is returned for the action of your office.

PRACTICE-APPEAL-REVIEW.

GRAY . WARD ET AL.

The refusal of the General Land Office to review a decision is not appealable. In case of a decision in the General Land Office where the rights of two or more of the parties are adversely affected thereby, the appeal of one will not preclude the consideration of a motion for review filed by another.

But the refusal of the Commissioner to entertain the motion for review affords no ground for the dismissal of the appeal.

Acting Secretary Muldrow to Commissioner Sparks, February 9, 1887.

I have considered the motion of counsel for Charles R. Gray, filed in this Department on December 24, 1886, to dismiss the appeal of John S. Ward from the decision of your office, dated August 27, 1886, cancelling his desert land entry No. 5 of Sec. 8, T. 2 S., R. 4 W., S. B. M., made at the Los Angeles land office, in the State of California, on May 4, 1877, and allowing Ward's homestead and timber culture applications for a portion of said section subject to the preference right of entry of John A. Dixon and Thomas C. Kendall.

It is alleged in said motion that said appeal by Ward was filed in your office without serving a copy of the same upon Gray or his counsel, as required by Rule of Practice No. 86 (4 L. D., 47); that prior to the filing of said appeal counsel for Gray had filed in your office a motion for a review and reconsideration of said decision, and served a copy thereof on the counsel for Ward; that said counsel recognized said Gray as a party to the record by serving a copy of their answer to said motion upon his said counsel, in which it was claimed that the appeal filed by Ward took precedence over the motion for review, and that your office held that under the departmental decision in the case of W. F. Hawes et al. (5 L. D., 284) that the filing of the appeal by Ward ouste your office of any jurisdiction over said case, and the papers were ascordingly transmitted to this Department on December 18, 1886.

The decision sought to be reviewed states-and the record confirms the statement-that by the departmental decision, dated July 10, 1886 (L. & R., Vol. 57, p. 66), the action of your office, dated April 11, 1885, holding for cancellation Ward's said desert entry, was affirmed, and that the same was accordingly canceled upon your office records, and the local land officers were directed to note the same upon the records of their office.

It is further shown that Ward filed in the local land office on January 18, 1886, his relinquishment of the NW.; N. of SW. 1, and N. of SE. of said Sec. S, which was transmitted to your office same day. On January 20, 1886, Ward applied to enter the NW. of said section under the homestead laws, and at the same time to make timber culture entry of said N. of SE. and N. of SW. of same section, which applications were rejected by the local land officers, for the reason that contests were then pending against Ward's said desert entry. It further appears that on December 19, 1881, Thomas C. Kendall, Charles H. Larrabe, and John A. Dixon filed affidavits of contest against said desert land entry, alleging that Ward had wholly abandoned said tract and wholly failed to comply with the requirements of the act of Congress to provide for the sale of desert lands, approved March 3, 1877, and at the same time offered to file their soldiers' homestead declaratory statements for the land. Notice was given and a day set for the trial of the cause, at which the contestants appeared with their witnesses, but the proceedings were suspended, in accordance with instructions from your office, dated February 7, 1882, to await the result of legislation relative to desert entries, then pending in Congress.

Your office, on August 27, 1886, held that the relinquishment of Ward served to open the land embraced therein to settlement and entry, and that Ward's homestead and timber culture applications should have been allowed, and the local land officers were directed to allow the same upon payment of fees and commissions, subject, however, to the prefer ence right of Kendall, Dixon and Larrabe, for the reason that said relinquishment was filed while their contests were pending, and because Kendall and Dixon had filed soldier's and sailor's declaratory statements, the former for the N. of the NE. and the N. of NW. 4, and the latter for the N. of the SE. and the N. of the SW. † of said section.

It appears that your office, on August 27, 1886-the same date of the decision in the case of Ward, supra-rendered a decision affirming the action of the local land officers rejecting Gray's application to make homestead entry of the N. of the SE. and the N. of the SW. of said Sec. 8, for the reason that the land applied for was embraced in the timber culture application of said Ward, which was then pending before your office on appeal. Thereupon, on September 28, 1886, counsel for Gray filed in your office a motion for review of both decisions of August 27, 1886, which your office refused on December 18, 1886, for

The

the reason that Ward filed two appeals, dated October 27, 1886, and November 3, 1886, from the action of your office in said case. record further shows that said Gray, on October 6, 1886, offered another homestead application for the same land, which was rejected by the local land officers, for the reason that the land applied for had been entered by said Dixon on September 6, 1886.

The only question passed upon by said departmental decision was as to the cancellation of Ward's said desert land entry, and no opinion was expressed upon the rights of the respective applicants.

It is a well settled rule of practice in this Department that the refusal of your office to review its decisions is not appealable, the party has his remedy by appeal from the decision sought to be reviewed. Pearson v. Bucklee (6 C. L. O. 4); Withee v. Martin (3 L. D., 539); White v. Doherty (Ibid., 551).

Rule of Practice 76 (4 L. D., 46) provides that "motions for rehear ing before registers and receivers, or for review and reconsideration of the decision of the Commissioner or Secretary, will be allowed in ac cordance with legal principles applicable to motions for new trials at law after due notice to the opposing party," and it is the general rule unless changed by statute that a motion for a new trial is an application to the discretion of the court, and that discretion ought to be exercised in such a manner as will best answer the ends of justice. If that discretion is exercised improperly and not in accordance with settled principles of law and equity, the action of the court may be corrected by certiorari or mandamus. Hilliard on New Trials (p. 15).

The record shows that your office on the same day rendered two dis tinct and separate decisions, one against the interest of Ward and the other against the right of Gray, and it appears that neither Ward nor Gray can acquire any rights to the tracts claimed by them, unless the decision of your office is reversed, awarding the preference right of entry to Dixon of the N. of the SE. and N. of SW. 1 of said Sec. 8. Gray had the right of appeal from the decision denying his application to enter said tracts, but the refusal of your office to grant his motion for a review of said decisions is no reason why the motion to dismiss said appeal of Ward should be granted.

It is insisted that the case of Hawes et al. (supra) is not authority for the decision made by your office that the motion to review made by Gray could not be considered, because of the appeal filed by Ward. Where there are several parties to a suit pending in your office and a final decision has been rendered adverse to the rights of two or more of the parties to the suit, the filing of an appeal by one of the parties will not preclude the hearing of a motion for a review by another party to the record, asking a reconsideration of the decision so far as the same may affect his rights. But in the case at bar it does not appear that Gray was a party to the decision determining the rights of Ward and Dixon et al. He was a party to a decision rendered the same day by your of

fice, involving some of the tracts mentioned in the decision in the case of Ward v. Dixon et al., and from that decision he has the right of ap peal.

But since your office has refused to consider Gray's motion for review, it is in effect a denial of the same, and it can not make any difference that the refusal was for a wrong reason. From the foregoing it is ap parent that Gray claims an interest in a portion of the land involved in the decision appealed from by said Ward, and since all of the papers in the case are before this Department, Gray's application to be heard upon "the entire merits of the controversy" will be granted, and his counsel will be allowed to file a brief in his behalf within thirty days of notice hereof. The rights of all parties in interest will be duly considered when the case is reached in the regular order.

You will please advise the parties in interest of the action hereof upon said motion to dismiss.

PRE-EMPTION-SECOND FILING.

CLAYTON M. REED.

The filing and cash entry of one who removes from land of his own to settle on public land in the same State, exhausts his pre-emptive right, and he will not be allowed a second filing for the same land on the cancellation of his illegal entry.

Acting Secretary Muldrow to Commissioner Sparks, February 10, 1887.

By letter of May 29, 1885, your office held for cancellation the preemption cash entry of Clayton M. Reed for the W. of SW. 1, Sec. 26, and S. of SE. 4, Sec. 27, T. 45 N., R. 9 W., Lake City, Colorado, for the reason that he had abandoned his residence on land of his own to settle on the public land in the same State.

Claimant filed motion for review, and on consideration thereof, your office, by letter of November 19, 1885, adhered to its former decision. Claimant appealed. It appears that in the summer of 1882 Reed made proof on a homestead claim in Colorado, and received final certificate therefor; that in December following he left said claim and took up his residence on the land above described, and that on July 9, 1883, he made proof, and payment. In February, 1883, he received patent for the land covered by his homestead claim. In May, 1885, he sold the latter tract to one Curt Von Hagen. It thus appears that he abandoned his residence on his own land to reside on the public land in the same State, and that he retained the ownership of his homestead claim during the full time of his residence on the pre-emp tion tract. Under these circumstances he cannot acquire any right of pre-emption. (Sec. 2260 R. S.) None of the cases cited by counsel for claimant present facts similar to those in this case, and I do not deem it necessary to discuss them further.