illegal necessarily involved the conclusion that the law had not been complied with under the former. The contest which procured the cancellation of the cash entry for illegality, therefore, at the same time i effect resulted in a judgment adverse to the homestead claim, which had been merged into and made the basis of the cash entry.

TIMBER LAND-CONTEST.

HOUGHTON v. JUNETT.

The burden of proof is with the applicant to show not only that the land has its principal value in the timber thereon, but also that such land is unfit for cultivation. The right of protest against a timber purchase is not confined to an adverse claimant.

Secretary Lamar to Commissioner Sparks, November 14, 1885.

In the case of Joseph H. Houghton v. James M. Junett, decided by, the Department January 26, 1885, wherein the application of Houghton to purchase the E. of the SW. and the W. of the SE. 4 of Sec. 7, T. 20 N., R. 3 E., W. M., Olympia, Washington Territory, under the act of June 3, 1878, was rejected, a motion for review has been filed on behalf of said Houghton.

January 28, 1882, Houghton filed his application under which notice issued July 29, 1882, and proof was made in due form October 30, 1882, accompanied with the requisite deposit to pay for said land. September 25, 1882, June tt made homestead entry of the tract in question, and a hearing was directed to determine whether said land was of the character described in the said act of 1878.

In the decision now under consideration, it was held that "the evidence failed to show the land to be chiefly valuable for the timber thereon and unfit for cultivation." The motion for review rests mainly upon the allegations that the evidence does not warrant the conclusion drawn therefrom and that the decision is in conflict with that rendered in the case of Tipton v. Hughes (2 L. D., 334).

A most careful re examination of the testimony has been made, from which no material reason has been discovered for adopting a view differing from that expressed by my predecessor. With the language of the tim ber act as a guide as to what must be proven by the purchaser thereunder, there can be no doubt but that the burden of proof is with him to show that the land applied for has its principal value in the timber thereon and is, moreover, unfit for cultivation. Both of these conditions must be shown to exist before the land is subject to purchase under the act. The evidence in this case is peculiarly marked for its widely variant and conflicting character, with no such preponderance in favor of the applicant as the statute in question plainly requires, hence, under said act, his application must be denied, and that irrespective of any claim put forward by the homesteader.

This brings us to a consideration of the case of Tipton v. Hughes, which it is alleged lays down a rule, that followed herein, would lead to a conclusion favorable to the applicant. Said case held in substance among other things, that the "adverse claim," which would defeat an application to purchase under said act, must exist prior to the filing of said application; and that the land described in said act as "unfit for cultivation" was land "unfit for ordinary agricultural purposes."

The standing of Junett herein is of no material importance. He did not make his entry until after the application of Houghton was of record, hence said entry was made subject to any right that Houghton had under the statute. Smith v. Martin (2 L. D., 333). It can make no difference whether Junett appears as an adverse claimant or a protestant, if as the result of such appearance it transpires that Houghton's application covers land not subject to purchase under the act; and the case of Tipton v. Hughes recognizes the right of protest, while defining an "adverse claim" and a "valid claim." In other words, Houghton's right to the land is not impaired, under the law, by the presence of Junett's entry. The application, if rejected, does not fail because of an adverse claim, but because the land is not properly subject to disposal under the timber act, and the right to show such fact might have been properly accorded to Junett even though he had no entry of record, or claim to the land.

In determining what constitutes "land unfit for cultivation," resort must always be had to evidence drawn from the neighborhood of the land, and in such case the testimony of men engaged in tilling the soil must of necessity be held as entitled to the first consideration. In the case at bar, the evidence adduced against the application was for the greater part from farmers, who testified from experience with land of a similar character in that vicinity, while the evidence in support of the application was lacking in that element of competency. 'The motion for review is denied.

TIMBER CULTURE ENTRY-CONTEST.

MURPHY v. LONGLEY ET AL.

If the affidavit required in section 2 of the act of June 14, 1878, is wilfully false in any material respect, the entry made thereupon is illegal from inception and subject to cancellation upon the institution of proper proceedings.

A contest raising such issue may be allowed without instructions from the General Land Office.

In all coutest proceedings the government is a party in interest, and whenever it is shown that an entry was fraudulently made, such entry will be canceled.

Secretary Lamar to Commissioner Sparks, November 14, 1885.

I have considered the case of Henry Murphy v. George Longley and Ira A. Heath, as presented by the appeal of Murphy from the decision of your office, dated June 9, 1884, adverse to him.

It appears from the record that on May 16, 1882, Longley made timber culture entry No. 9020 of the SE. of Sec. 7, T. 110 N., R. 64 W., 5th P. M., (Mitchell series,) Dakota Territory.

On May 11, 1883, Murphy filed in the district land office his affidavit of contest, alleging that Longley "made said entry for speculation, and not for his individual use and benefit; that said Longley has offered his said entry and claim for sale, and holds the same for the purposes of sale only, and that said tract is not plowed, nor any improvements thereon as required by law." At the same time Murphy filed another affidavit, alleging that he was duly qualified to make timber culture entry; that he had not paid or promised to pay any consideration to Longley for any interest in said land, and "that said contest if perfected will be followed by my application to enter said claim under the timber culture laws of the United States, for my sole use and benefit, and not for the use of any other person whomsoever." Both of said affidavits were sworn to before Charles H. Huntington, who afterwards appeared as attorney for contestant. On December 13, 1883, Murphy filed a third affidavit for the purpose, as appears from the heading, of curing "the irregularity of contest affidavit, to which this is attached, wherein one Charles H. Huntington swears contestant Henry Murphy and then appears as his attorney." The amendatory affidavit makes the same charges as the first affidavit, but differs as to the allegation of service of notice, the latter averring that personal service can be made upon Longley, although he is a non-resident, and asking "that service in this case may be so made."

It appears from the report of the register and receiver, that a hearing was ordered and January 29, 1884, was set for trial, and the case continued to March 5th, same year, in order to enable contestant to perfect service on Longley.

On January 29, 1884, the day fixed for the hearing, Longley, by his attorneys, entered a special appearance and moved to dismiss the contest, on the ground that the district land officers had no jurisdiction to order hearings upon the allegations set forth in the affidavits made by contestant, and that the claimant had not been properly served with notice. This motion was overruled.

On January 21, 1884, one Ira A. Heath presented his contest affidavit against the same tract, alleging abandonment and at the same time moved to dismiss Murphy's contest, as appears from the report of the register and receiver, the original motion not appearing in the record, on the ground that the allegations contained in his affidavits were not sufficient to justify a hearing by the local office. Heath's application was rejected, because of Murphy's prior pending application to contest the same tract. From this ruling Heath appealed, upon the ground that Murphy filed his contest affidavit before the expiration of one year from the date of entry.

On February 20, 1884, the register and receiver transmitted to your

office the petition of Murphy, asking that the district land officers be directed to order a hearing upon the basis of the affidavit heretofore filed by him and attached to said petition.

On March 8, 1884, the appeals of Longley and Heath were forwarded to your office.

Your predecessor, on June 9, 1884, reversed the decision of the regis ter and receiver, on the ground that Murphy's first affidavit was a nullity, because it contained no sufficient allegation of contest, and his second affidavit was a nullity, for the reason that no application to enter the land was made at the time of its filing. Murphy's contest was dismissed, and Heath's affidavit of contest, timber culture affidavit, and application were returned to the district land officers as a basis for a hearing.

It appears from the report of the register and receiver, dated March S, 1884, that at the time that Murphy filed his affidavit of contest it was the custom of the office to accept a contest wherein the allegations were speculation and fraud.

The second section of the act of June 14, 1878, (12 Stat., 113,) provides, among other things, that the timber culture applicant shall make oath that "this filing and entry is made for the cultivation of timber, and for my own exclusive use and benefit; that I have made the said application in good faith, and not for the purpose of speculation, or directly, or indirectly, for the use or benefit of any other person or persons whomsoever." If the affidavit required to be made by the applicant is wilfully false in any material respect, then the entry made upon the basis of such affidavit is illegal in its inception and subject to cancellation upon the institution of proper proceedings.

It was held by this Department, in the case of Caroline Halvorson (2 L. D., 302), and cited with approval in the case of Graves v. Keith (3 L. D., 309), that a contest before the local office may be instituted against a timber culture entry for illegality in its inception, without waiting for instructions from your office. The first affidavit was filed four days prior to the expiration of one year from date of entry, and although, in addition to the charge of speculation, it charged failure to comply with the requirements of the timber culture act, it was prematurely filed and could not be the basis of a hearing to prove that charge. But the amended affidavit was filed after the expiration of the year and contained a sufficient charge of failure to comply with the requirements of the law. The affidavit was still on file giving the qualifications of the contestant and notice of the intention of the applicant to take said tract under the timber culture laws, and since no ob jection was raised by the counsel for the entryman that no formal application to enter the tract was filed with the amended affidavit, so far as the claimant is concerned, it must be considered as waived. Butler v. Mohan (3 L. D., 513). In the case at bar, aside from any consideration of the question whether it is necessary in a contest under the 3d 1819 L p—16

section of said act that a formal application for the land shall be filed by the contestant, taking the three affidavits together, it would seem to be clear that the proceedings are not void, but that the contestant should have been allowed an opportunity to prove his allegations. It must not be forgotten that in all contest proceedings the government is a party in interest, and whenever it is made to appear that an entry of the public land was fraudulently made, such entry should be canceled. Smith v. Brandes (2 L. D., 95); Condon v. Arnold (1 Ibid., 96).

It is shown that on August 20, 1884, the register transmitted the appeal of Murphy from said decision of June 9, 1884, which was returned by your office letter of October 7, 1884, for correction under Rule 82, and Murphy was directed "to furnish satisfactory evidence that he has served notice of his appeal on Longley and Heath."

In reply to your office letter, dated November 22, 1884, directing the register and receiver to forward the record in the case of Heath v. Longley, the district land officers reported on December 5, 1884, that the hearing in said case had been continued indefinitely, awaiting the result of Murphy's appeal. Upon receipt of said report, your office advised the register and receiver "that after a hearing has been ordered, either by this office, or by you, it is improper practice to 'continue such hearing indefinitely' because a third party takes an appeal upon a question involving the same land, and you will discontinue such practice and proceed with all such cases now on your docket."

This order, so far as it relates to the case at bar, was erroneous. Murphy had been directed, by said decision of your office, to perfect his appeal by giving notice to both Longley and Heath, which was accordingly done. The appeal then operated, under the rules of practice, to suspend all further proceedings in the case until the final adjudication by this Department of the questions presented in said appeal.

The decision of your office dismissing Murphy's contest is therefore reversed, and he will be allowed to proceed with his contest under the rules of practice. Heath's contest will be suspended until the final determination of the contest by Murphy.

PRACTICE--RECONSIDERATION.

SOUTHERN PAC. R. R. Co. v. ROBERTSON.

On application for a reconsideration of his predecessor's decision, the Commissioner, finding that no notice of such decision had been served upon the applicant, granted the petition: Held, that further evidence as to want of notice shall be required prior to final disposition of the case.

Secretary Lamar to Commissioner Sparks, November 14, 1885.

I have considered the case of the Southern Pacific Railroad Company v. Mrs. Eliza E. Robertson, as presented by the appeal of said company from the decisions of your office, dated December 12, 1883, and of Jan