The township plat of survey was filed in the district land office on November 2, 1883.

It appears that Dion gave due notice of his intention to make proof and payment on February 25, 1884, and that Doyle on the same day filed his protest against the acceptance of Dion's proof and payment for the tract in controversy, claiming to be the first legal settler. Thereupon a hearing was duly held, at which both parties appeared and offered testimony. Upon the evidence submitted the register and receiver rendered their joint opinion, on May 13, 1884, in favor of Dion, and Doyle duly appealed.

On December 17, 1884, your office modified the decision of the district land officers, and awarded a joint entry of the tract in controversy, upon the ground that both parties settled upon the tracts embraced in their respective declaratory statements prior to survey, and have improvements upon the tract in controversy, and that there was a boundary line agreed upon by said parties which divided said tract, and that each party recognized the right of the other to the land on his side of said line.

The improvements prior to the Government survey upon the tract in question were very meager, but at the date of contest each party had some improvements upon this particular tract. The cases cited by appellant's counsel do not appear applicable to the case at bar. In the present case the boundary line of the prior settler appears to have been distinctly marked, and the parties agreed to the same. It would seem that the proper way to adjust the rights of the parties is to allow a joint entry of the tract in dispute, under said section 2274. The decision of your office is accordingly affirmed.

CERTIORARI_RELINQUISHMENT.

JACOB SCHAETZEL.

Certiorari will not lie to review proceedings where from the application it is apparent that substantial justice has been done.

All rights of the entryman cease with voluntary relinquishment.

Secretary Lamar to Commissioner Sparks, July 18, 1885.

I have considered the application of Jacob Schaetzel for a certiorari in the matter of the appeal of Job Marsden from the register and receiver's action dismissing his contest against Schaetzel's timber culture entry, No. 364 (Springfield series), of the SW. 1 of Sec. 5, T. 102 N., R. 59 W., Mitchell district, Dakota.

It appears that Schaetzel made said entry of the tract in question November 27, 1878. Under date of November 29, 1881, Marsden initiated contest against said entry, alleging Schaetzel's failure to comply with

legal requirements in point of breaking and cultivation of the tract. Hearing was had January 17, 1882, agreeably to published notice, but defendant failed to appear. He having, however, filed motion for rehearing upon the ground that he had not been duly notified of said hearing, the receiver allowed him "to submit defense by way of affi davits with leave to contestant to file counter-affidavits."

Marsden having failed to file an application to enter said tract with his affidavit of contest, the same was dismissed January 3, 1883, agreeably to circular instructions of December 20, 1882, (9. C. L. O., 198), issued under authority of the rule laid down by the Department in the case of Bundy r. Livingston (Idem, 173). Such action was had notwithstanding the fact that Marsden had meantime, to wit, December 25, 1882, filed a supplemental affidavit together with an application to enter said tract.

Schaetzel having relinquished his entry the register and receiver can celed the same July 2, 1884, and thereupon the same day allowed one George Best to file declaratory statement No. 22998 for the tract in question.

Marsden having been first formally notified September 25th of the dismissal of his contest, appealed from such action September 27, 1884, upon the ground that he had filed the prerequisite application before the promulgation of said circular of December 20, 1882, and prior to the dismissal of his contest. Thereupon your office allowed his entry, in view of the fact that he had not had opportunity to contest said entry anew by reason of the register and receiver's failure to duly notify him of the dismissal of his contest.

All parties having been advised, December 24, of your office decision of December 13, 1884, Schaetzel appealed therefrom January 24, 1885, and the register transmitted the appeal to your office per letter dated February 23 ensuing, whereupon your office rendered decision May 1, 1885, holding that when Schaetzel relinquished his entry July 2, 1884, "he ceased to be a party in interest," and denying his right of appeal. Wherefore he applied for certiorari, agreeably to rules 83 and 84 of Practice, alleging "that his property is now in jeopardy," and that "he is morally responsible for the safety thereof."

It has been repeatedly held by this Department that certiorari is not a writ of right, but it lies within the discretion of the tribunal to which the petition therefor has been addressed; and where such petition shows on its face that substantial justice has been done, the same will be denied. See Hilliard on New Trials, 689.

Although there may have been irregularity of procedure throughout the premises, it is not competent for petitioner to interpose such plea, having no status therein by reason of his voluntary relinquishment. Substantial justice having been done him, I am of opinion that his pe tition should be denied, and accordingly return the same herewith, together with the accompanying papers.

MINING CLAIM—APPLICATION.

SNOW FLAKE LODE.

A mere application to make entry, not properly followed up, confers no exclusive rights upon which others are bound to wait indefinitely.

Adverse claimants must assert their rights within the period of publication, for, on failure so to do, all matters which might have been tried under the adverse proceedings will be held as adjudicated in favor of the applicant.

Acting Secretary Jenks to Commissioner Sparks, July 20, 1885.

After survey No. 1002 of the Old America lode, Lake City, Colo., on June 14, 1882, application was made for patent for the same and publication commenced. Before the expiration of the sixty days, however, it was suspended at the request of the applicants, for what reason is not shown.

After survey No. 1183, on October 5, 1882, application was made at the same office for patent for the Snow Flake lode by T. C. Stevens et al. Upon due compliance with all the requirements of the law, and no adverse claim having been filed, on March 26, 1883, mineral entry 672 therefor was made, and same day the papers were transmitted to your office.

By the surveyor's plat it appears that a portion of the Snow Flake claim lies within the exterior limits of the Old America survey No. 1002; and because of this fact, on June 23, 1884, Acting Commissioner Harrison directed said entry to be held for cancellation to the extent of the supposed conflict. From this action an appeal was taken, on which the case is now before me.

Only an application to make an entry of the Old America lode had been filed; failing to give the proper notice, the applicants did not place themselves in a position which required, or gave opportunity to others to adverse their claim. The mere application, not properly followed up, conferred no exclusive rights to the premises which others were bound to wait upon indefinitely.

The case is different with regard to the Snow Flake claim. All the pre-requisites of the law were complied with; due publication was made whereby adverse claimants were notified to come in; failing to do so within the proper time, the entry was made as matter of course. Thereafter other parties were precluded from setting up adverse claim in their own behalf for the premises, for it is considered that where notice was properly given all matters which might have been tried under the adverse proceedings are treated as adjudicated in favor of the applicants; and all controversies touching the same are to be held as fully settled and disposed of, as though judgment had been regularly rendered in their favor. Therefore, so far as the Snow Flake claim is concerned, there was no adverse pretension or conflict on the part of the Old America claim which your office was called upon to take notice of. There being, then, no adverse claim, the issuing of patent is a matter

between the Government and the Snow Flake claimants only. A mere survey and futile application for patent by another party, for part of same claim, is not considered, under the circumstances of the case, any reason for withholding the patent.

The decision of your office is reversed.

PRACTICE-CERTIORARI.

JOHN WALDOCK.

An applicant for land is entitled to the judgment of the General Land Office as to the validity of his claim, and to a consideration of the testimony filed in support thereof.

Where it appears that the local office did not transmit the evidence filed by applicant, and appeal was denied, the proceedings will be reviewed on certiorari.

Assistant Secretary Jenks to Commissioner Sparks, July 20, 1885.

I have considered the application of counsel for John Waldock, dated 3d instant, to have certified to this Department, under Rules of Practice, Nos. 83 and 84, the record of the proceedings in the case of the cancellation of cash entry for the N. 1 of the SE. 1, NE. 1 of SW. 1, and SE.

of NW. of Sec. 23, T. 27 S., R. 12 W., Larned land district, Kansas, made by Florence L. Copeland, and also "all the papers in said cause, including protest and all the applications of the said Waldock and the affidavits in support thereof in the said local land office, to prevent the allowance of the filing of Ransom S. Bowers, and proof" for said tracts, and also requesting an order to be issued to allow said Waldock to complete payment for said land and receive a patent therefor.

The application is defective in that it is not verified as required by Rule 84 (supra) and no copy of the decision of your office dated June 2, 1885, is furnished, but an excuse is given therefor, that no one was in the local land office to furnish the same.

It appears that Florence L, Copeland filed her declaratory statement, No. 1593, upon said tracts on September 29, 1882, alleging settlement thereon September 20, 1882. On March 28 she made proof and on March 31, 1883, made her first payment (receipt 1007) under the second section of the act of May 28, 1880 (21 Stat., 143). On August 31, 1883, said entry was canceled upon the report of a special agent of your office, and sixty days allowed in which to show cause why the same should be reinstated. On January 6, 1885, said Bowers filed his declaratory statement upon said tracts, and on June 2, 1885, your office directed the district land officers to accept his proof in support thereof.

On June 11, last, there was transmitted to your office an application for a writ of certiorari, and an appeal from said decision of June 2, 1885, directed to this Department. On June 30, last, your office returned said application and refused said appeal on the ground that Waldock was not a party to the case between the Government and Copeland and had no standing in his own right. It is alleged by said

Waldock "that the said decision was obtained from the honorable Commissioner by criminal inducement on the part of Ransom S. Bowers, whereby on the part of said Bowers the land office at Larned, Kans., or a clerk therein, by such inducement withheld and suppressed the affidavits, showings, and applications of said Waldock to secure his rights to said land," and prevented the same from being transmitted to your office. Accompanying said application are the ex parte affidavits of J. C. Ellis, John Waldock, and N. B. Freeland, tending to support the above allegations.

If it be true that affidavits were filed in the local office in support of the application of Waldock, there does not seem to be any good reason why the same were not promptly transmitted to your office. It has been uniformly held by this Department that a party is not entitled to a writ of certiorari as a matter of right, but whether the order prayed for shall issue rests in the sound discretion of the proper tribunal. (Reuben Spencer, 3 L. D., 503.)

From the affidavits presented it appears that a part of the record relative to the status of said tracts was not transmitted to your office when said decision of June 2, 1885, was rendered, although they had been previously filed in the local land office. Clearly the district land officers had no right to retain such papers. The applicant filing the same was entitled to the judgment of your office upon the validity of bis application to purchase and a consideration of the testimony in support thereof.

From the foregoing it would seem that the case presented calls for the exercise of its supervisory power by this Department. You will therefore direct the district land officers to transmit to your office all papers filed in their office relative to Mr. Waldock's application for said land and forward the same to this Department, together with the papers and copies of the decisions of your office relative to the cancellation of said entry, and you will cause all action to be suspended relative to the filing of said Bowers, or the allowance of proof by him, if his proof has not already been made, and, in case Bowers has made entry of said tract, you will suspend the same, until further advised by this Department.

HOMESTEAD-ACT OF JUNE 15, 1830.

NORTHERN PACIFIC RAILROAD COMPANY v. BURT. (ON REVIEW.) Application to purchase under the act of June 15, 1880, reserves the land from the entry of another.

Assistant Secretary Jenks to Commissioner Sparks, July 21, 1885.

I have considered the application of Charles H. Lefever for a reconsideration of departmental decision of April 21, 1885 (3 L. D., 490), in the case of the Northern Pacific Railroad Company v. Elizabeth E. Burt, involving the title to the S. of SW. of Sec. 3, and S. of the SE. # of Sec. 4, T. 8 N., R. 2 E., Helena land district, Montana.