days allowed for appeal, the service of notice of appeal was within time under the rules, for rule 96 makes proof of mailing by registered letter proof of service so as to save the right of appeal.

For the reasons stated, the motion to dismiss the appeal must be overruled, and the case will be considered on its merits.

The tract in question, it appears, was a part of certain lands patented by the United States in 1873. The validity of the patents so issued was subsequently attacked by the United States, on the ground of fraud practiced in their procurement. Said patents were annulled and vacated under a decree of the supreme court, rendered at its October term, 1884, in the case of Moffat v. United States, on appeal by Moffat from the circuit court of the United States for the district of Colorado (112 U. S., 24).

While said patents were outstanding, to wit, in September, 1882, a petition was duly filed under the laws of Colorado for the incorporation of the town of West Las Animas. Certified copies of said petition and the proceedings thereunder show that the town was in October, 1882, duly incorporated in accordance with the laws of the State of Colorado. Its boundaries were by metes and bounds and embraced a portion of the legal subdivisions now in dispute and claimed by Boggs.

Pursuant to the mandate of the supreme court in the cases cited, your office, by letter dated February 27, 1885, to the register and receiver at Pueblo, Colorado, canceled said patents on the records of the land department.

The lands then again became a part of the public domain, subject to entry. Said lands had in a sense been public lands during all the time that the patents were out, but were by the entries and the patents based thereon so segregated from the body of the public domain as not to be subject to entry. Said patents were issued to fictitious parties, and as stated by the supreme court, in the case cited, supra, they "could not transfer the title." In the same decision it was said, "a patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one." Almost immediately upon the cancellation of the outstanding patents, Boggs made his application to enter under the homestead law the SE. of said section ten. A few days later the townsite application was made, embracing the N. of the tract covered by the entry of Boggs. The question to be determined is: which of the two claimants has the superior right to the eighty acres in conflict? Upon an examination of the record, I find no difficulty in determining this question.

While the incorporation of the town under the State law was not in its technical sense a selection under the laws of the United States, it was nevertheless a clear indication of the purpose to establish a town, and was the only proceeding possible at the time of the incorporation. The land having been previously patented, and so far as the records

showed, title having passed out of the United States, the town authorities could not then make application for, nor enter, the tract under the townsite laws. They were compelled to rest their location solely upon the laws of the State. This they did, and were accordingly incorporated October 13, 1882.

Not only was the town incorporated at the date March 17, 1885, when Boggs made his homestead entry, but it had been surveyed and laid off into streets and was otherwise improved. The tract in question was included in those thus improved, and was used as part of the town in such a way as to furnish notice to everybody that it was a part of the town. Indeed, it appears that the town has had an existence as such at least since 1877, and has been the county seat of Bent county, Colorado, since 1880. The county jail is on the tract in dispute, and wh:le it is doubtless the property of the county, it appears that it is also used by the town, and it does not seem probable that it would have been erected elsewhere than at the county seat, that is, in the town as incorporated.

Upon a full consideration of the case, I am satisfied that the tract in question was at the date of the application of Boggs to enter settled upon and occupied as a townsite, which fact was a matter of general notoriety. Although the townsite application was not made until a few days after the application of Boggs to make homestead entry, it was made within sixty days after your office letter to the register and receiver notifying those officers of the cancellation of the patents, and apparently with all the promptness which could reasonably be expected of a body acting in its corporate capacity.

This, coupled with the fact that it had for several years had a corporate existence and had occupied and used the land, convinces me that it is entitled to the tract in dispute as land selected as the site of a town, and a portion of which had been included within the limits of an incorporated town.

I affirm the decision appealed from, and return herewith the papers which accompanied your office letter of August 24, 1886.

In the record appears a letter from Messrs. Britton & Gray, calling attention to the fact that a plat of station grounds for the Pueblo and Arkansas Valley Railroad Company in said section 10 was approved by this Department March 13, 1886, under the right of way act of March 3, 1875, and asking to be heard in behalf of said company.

You will advise Messrs. Britton & Gray of this decision, and that they will be heard before your office touching their rights under the approval mentioned by them.

PRACTICE-SERVICE OF NOTICE BY REGISTERED LETTER.

NEW ORLEANS CANAL & BANKING CO. v. STATE OF LOUISIANA.

The transmission of notice by registered letter is prima facie evidence that it was received in due course by the party to whom it was addressed.

The written admission of the party to whom notice, by non-registered letter, was sent that he received the same, is proof of service under rule 95 of practice.

Secretary Lamar to Commissioner Sparks, March 14, 1887.

With your letter of the 20th instant you transmitted for my consideration the appeal filed by the State of Louisiana from your decision of October 8, 1886, rendered in the above stated case, together with a motion made by counsel for the bank to dismiss said appeal, upon the ground that no service of said appeal was made by the method provided for by law, to wit, by personal service or registered letter.

This appeal and the motion to dismiss should have been transmitted to the Department with the entire record in the case to be passed upon when the case is reached in its order, but being submitted for my consideration and no reason being shown to the contrary, this preliminary question will now be disposed of.

Notice of your decision was received by the State October 12, 1886, having been mailed that day by the local officers. Rule 87 provides that when notice of the decision is given through mail by the register and receiver, five days additional time shall be allowed those officers for the transmission of the letter, and five days for the return of the appeal through the same channel before reporting to the General Land Office. The time allowed for said appeal did not expire until December 21, the decision and appeal therefrom having been transmitted through the local office.

Rule 93 provides that notice of the appeal and specifications of error must be served on the opposite party within the time allowed for filing the same. Hence, service of the appeal on the attorneys of the bank prior to and including the 21st day of December was within the time prescribed by the rules.

The evidence of service not appearing in the record, you directed the register and receiver to report the facts connected therewith. December 31, they reported that the attorney of the State was notified of your decision October 12, and that appeal therefrom was filed in the local office December 11; that on the 13th day of December they transmitted said appeal to the General Land Office, and on the same day mailed (not registered) a copy of the same to James L. Bradford, Esq., of counsel for the bank, and also to the New Orleans Canal and Banking Company, at New Orleans, Louisiana.

This motion to dismiss is made on the ground that Rule 94 provides only two modes by which service can be made, to wit, personal service

or by 1egistered letter, and that Rule 105 prescribes that all notices shall be served upon the attorneys of record. They allege that they are the only attorneys of record for the bank, and that neither has been served with a copy of said appeal, either personally or by registered letter, and that the attorney for the State has not attempted to furnish proof of service, either under Rule 95 or Rule 96. These rules provide that "proof of personal service shall be the written acknowledgment of the party served or the affidavit of the person making the service attached to the papers served, stating time, place and manner of service," and "proof of service by registered letter shall be the affidavit of the person mailing the letter attached to the post office receipt."

Counsel for the bank do not deny that they received the copy of the appeal, alleged to have been mailed to them by the register and receiver December 13, and having notice of this report at the time of filing their motion to dismiss, their failure to deny it might be taken as an admission that they received it.

But conceding that the silence of appellee's counsel should not be construed as an admission that they received the copy of the appeal said to have been mailed to them, the fact that the president of the bank received the copy of said appeal is settled beyond all question; and this, under rule of practice 86, constituted sufficient service, whether said counsel received said notice or not. Said rule provides that, "notice of an appeal from the commissioner's decision must be filed in the General Land Office and served on the appellee or his counsel,” etc. And the affidavit of the president of said "Canal and Banking Company" (defendant), after stating that he has not been served with copy of said appeal, either by registered letter, or personally, says: "I have no notice of said appeal, except that lately I found on a desk in my office a letter containing what purported to be an appeal by the State of Louisiana. How this came to my office I can not say, but by the ordinary mail I believe. It was not by registered letter, nor was it given to me personally nor any other officer of the bank."

Here we have not only a written admission, but a sworn admission, by the "party served," of the personal receipt of said notice of appeal, which brings the proof of service squarely within the first subdivision of rule 95, providing, as we have just seen, that "proof of personal service shall be the written acknowledgment of the party served."

The mailing by registered letter is simply prima facie evidence of the fact that it was received in due course by the party to whom it was addressed, while the written admission of the party to whom a nonregistered letter was sent, that he actually received such letter, furnishes proof positive of the fact. And to hold that a notice thus admittedly received by non-registered letter was not legally served, solely on the ground that the letter containing it was not registered, would virtually be to sacrifice the substance and spirit of the rule to mere technical form.

The motion is therefore dismissed.

PROCEEDINGS IN STATE AND FEDERAL COURTS.

MISSOURI, KANSAS & TEXAS RY. Co.

Suits in ejectment against settlers, pending in the courts of a State, may not be enjoined by proceedings in courts of the United States.

Acting Secretary Muldrow to Commissioner Sparks, March 14, 1887. On June 16, 1886, this Department recommended to the AttorneyGeneral that suit be instituted to set aside the patents issued to the Missouri Kansas and Texas Railway Company for certain lands lying in Allen county, Kansas.

I am now in receipt of your office letter of February 28, 1887, stating that you are advised that such suit has been instituted in the United States circuit court, that a certain purchaser from said railroad company has instituted in the district cou rt of Allen county proceedings in ejectment against certain settlers on said lands, that said settlers have attempted to secure a dismissal of the ejectment cases, or a continuance pending a decision of the case in the circuit court, and have failed therein. In view of these facts, you recommend that "the Attorney General be requested to institute proceedings in the United States courts for the purpose of restraining said company, or any one claiming under it, from prosecutin g any suits against the settlers upon the lands in question pending the decision in the suit to vacate the company's patents, now pending in the United States circuit court." Said letter further states that the eject ment cases will be tried during the present month.

I am of the opinion that the United States could not successfully maintain an action to stay proceedings in said Allen county court, and therefore decline to make the recommendation as requested. Section 720 of the Revised Statutes provides that "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy."

DESERT LAND ENTRY-FINAL PROOF.

LEVI WOOD.

The non-irrigation of rocky and hilly portions of the land does not defeat the right of entry, where the claim was made in good faith, and substantial reclamation of the irrigable portion thereof is shown.

Acting Secretary Muldrow to Commissioner Sparks, March 15, 1887.

September 27, 1882, Levi Wood filed his declaration of intention, No. 419, to reclaim the SW. of NE. 1, S. of NW. 1, NW. 1 of SE. N. of SW. of Sec. 25, T. 51 N., R. 82 W., Cheyenne, Wyoming,

and

2278 DEC--31