This decision restored the practice which had prevailed prior to the circular of October, 1884 (supra), of receiving and passing upon applications to amend pre-emption filings, and homestead and timber culture entries, on such evidence as might be offered, and on their merits, as shown by the evidence in each case, without regard to its form or manner of presentation. In other words, an application to amend, on the ground of error or mistake, might be allowed on ex parte affidavits, if therefrom it appeared that the applicant had acted in good faith, that he had exercised ordinary care and diligence, and the records showed that superior rights would not be interfered with.

The difficulty in fixing and attempting to follow literally in every case an unbending rule, in regard to amendments and changes of entries, is illustrated by the case of Mathias Florey, decided by my predecessor, Secretary Lamar, August 27, 1885 (4 L. D., 112).

In that case the entry was so changed as to permit the applicant, who was a timber culture entryman, to change his entry so as to take an adjoining and entirely different tract of land, and one which originally he had not intended to enter.

The mistake which had occurred was due in part to the local office and in part to the claimant, and on the peculiar facts, as shown by the record and the statements of applicant, his application was allowed.

In the case of Henry E. Barnum, decided by this Department March 11, 1887 (5 L. D., 583), it was ruled that the right of amendment should be recognized where the entry as of record was not for the tract intended to be entered, and due care and prudence had been exercised. In that case the applicant averred that being a stranger in the country, he had employed a "land locator," who appeared to be familiar with all the land thereabouts, who, after applicant had selected the tract which he desired to enter and to which he asked to amend, gave him as the description of the same what proved to be the description of another and different tract. Applicant was corroborated in his statement by the "locator," and the decision, after finding that the applicant had acted in good faith, and that his mistake was such an one as is liable to be made by a man exercising ordinary care and prudence, directed the allowance of the application.

March 2, 1887 (5 L. D., 534), the Department, in the case of Daniel Keesee, although denying his application on the facts presented, which showed a change of mind after original entry, used the following language:

The Department has always permitted the amendment of an entry, in the sense of the correction of an incorrect record (where an error had been made whereby the record failed to describe correctly the land which the claimant intended to enter), provided no superior adverse right intervened prior to the application to amend.

The case of Christian Zyssett, decided by the Department November 23, 1887 (6 L. D., 35 ›), was similar to the Barnum case, cited supra, except the latter was a homestead, while the former was a timber culture 3263-VOL 7—11

entry, and his application, which stated that he was misled by a mistake of the person who located him, was allowed, his statements being corroborated by the affidavits of two persons.

In the case of A. J. Slootskey, decided by me January 31, last (6 L. D., 505), though it was held that the application could not be treated as one to amend, because it was for a tract different from that originally intended to be entered, the following language was used:

If this application had been to amend the original entry, in accordance with the original purpose of the entryman, so as to designate the tract he had intended to enter, and if no intervening right inconsistent with his proposed entry had been established, I think the application to amend should have been granted; certainly, if he satisfactorily excused his contribution to the mistake, this would have been the rectification of an error without injury to the rights of others, and would have been demanded upon the plainest principles of equity and the established usages of the Department, as shown by various decisions.

The case of William Barr, decided by me April 25th last (6 L. D., 644), was that of an applicant to amend timber culture entry, so as to de scribe the land which he intended to enter. The application, which was duly corroborated, set out that a mistake had been made by the notary who prepared the entry papers, he having made a mistake in the number of the township; that as soon as applicant received the receiver's receipt, he returned the same to the notary and requested him to have the error in description corrected.

My decision in that case ruled that, if the allegations of the applicant be true, the change in the entry as desired should be allowed; but your office having expressed a doubt as to the existence of an error as alleged, and the record failing to show that the evidence had been submitted to the register and receiver, or that they had transmitted an opinion therein as to the existence of the mistake and the credibility of each person testifying thereto, I directed the return of the application and evidence for the opinion of the local officers on the points indicated. In doing this, reference was made to the requirements of section 2372 of the Revised Statutes, the rule in which, I stated, did not apply by the terms of the section to timber culture cases, inasmuch as they were later pro vided by law, but "may well be applied to them in proper cases, out of due caution." In other words, while the statute (2372 R. S.) does not specifically apply to and operate upon timber culture entries, the rea. sons thereof may be appropriately applied to such cases, and the Depart ment may therefore properly make a rule containing a requirement relative to applications to amend timber culture or homestead claims similar to that contained in said section 2372 of the Revised Statutes,

The laws providing for the disposal of public lands constitute one general system intended for the development of the country and the benefit of its citizens. They are consequently to be construed in pari materia, and the rules and regulations under which they are adminis tered should be as nearly uniform as the several methods of disposal will permit, with a view to securing satisfactory evidence of compliance with the law and of good faith in each case,

I therefore reiter te what was said in the Barr case, supra, that in proper cases a rule similar to that contained in section 2372 of the Revised Statutes relative to mistakes, may properly be and should be applied to timber culture cases, and not only to timber culture cases, but to all classes of claims, to which it is not made specifically applicable by said section of the law.

You will accordingly please formulate and forward to the Department for approval a circular in conformity with the views herein expressed, which circular will govern immediately upon its promulgation and receipt at the several land offices.

Pending applications will be considered and acted upon on their merits, and in the light of the evidence found in each case. Should that be such as to warrant the conclusion in any case that a mistake was actually made; that the applicant was not guilty of inexcusable carelessness or negligence, and that he has acted in good faith, amendment may be allowed on the evidence submitted an 1 under the practice heretofore prevailing. Should the evidence in any case, however, not be deemed satisfactory, when considered under former rulings, such case should be remanded to the local office for further evidence, to be furnished and passed upon by the register and receiver, in accordance with the views herein expressed and in compliance with the circular to be issued as directed.

In the case immediately under consideration, your office expresses no doubt as to the fact of the mistake, nor as to the good faith of the applicant, the decision appealed from simply stating that "the claimant must abide the entry as made, as no considerable hardship, it appears, will result therefrom."

Upon the showing made by appellant, as set out in the opening pages hereof, I am of the opinion that he from the first intended to take the NW.; that a mistake occurred in making the record of the entry, which is satisfactorily explained, which under the circumstances is excusable, and which may properly be corrected as asked, if to do so does not interfere with any superior adverse right.

Your office decision is accordingly reversed, and the application will be granted, subject to the condition above mentioned as to an adverse claim,

RAILROAD GRANT-ENTRY-ORDER OF CANCELLATION,

ANDERSON v. NORTHERN PAC. R. R. Co. ET AL.

The cancellation of an entry by the order of the Commissioner of the General Laud Office takes effect as of the date when the decision is made; and the fact that such order was not noted on the records of the local office until after the definite loca tion of the road, though made prior thereto, would not operate to defeat the operation of the grant.

Secretary Vilas to Commissioner Stockslager, August 9, 1888.

On June 3, 1884, Christian Anderson offered declaratory statement for the NE. NW. Sec. 21, T. 132 N., R. 42 W., Fergus Falls, Minne

sota, alleging settlement the same day. The local officers rejected the filing on account of the claim of the St. Paul, Minneapolis and Manitoba Railway Company. Anderson appealed.

Your office by letter of July 16, 1885, found that the tract is within the grante 1 limits of the road now known as the St. Paul, Minneapolis and Manitoba Railway, formerly St. Paul and Pacific, St. Vincent Extension, and within the indemnity limits of the Northern Pacific Railroad; that the former road was definitely located December 19, 1871, and that one John Green made homestead entry for the tract, No. 5359, St. Cloud series, July 28, 1868, which was canceled on the records of the local office January 4, 1872; that this entry subsisting at the date of definite location of the St. Paul road excepted the land from the grant for that line, that the Northern Pacific road can have no claim to the tract, as the law does not allow one road to go into the granted limits of another to seek indemnity, and allowed the filing of Anderson to go on record.

Both companies appealed.

It appears from the records of your office that the judgment of cancellation of said entry was made by the Commissioner December 14, 1871, five days prior to the definite location of the St. Paul road. Prior thereto testimony had been submitted before the local officers on the allegation that the entryman Green had abandoned his entry. local officers on the testimony submitted recommended that the entry, with certain others in like situation, be canceled. Your office thereupon by said letter of December 14, 1871, notified the local officers that the respective claims of said entryman "have been adjudged forfeited." No appeal was taken therefrom.

Your office in the decision appealed from in effect holds that the cancellation of Green's entry did not take effect until the local officers noted the cancellation on their records.

This question was disposed of in my decision of March 1, 1888, in the case of John H. Reed (6 L. D., 563), as follows:

The only other question presented in this case is, at what date was George C. Reed's entry canceled and the land restored to the public domain? There is no question as to the authority of the Commissioner of the General Land Office to cancel an entry, and his judgment of cancellation can be vacated and set aside by the appellate tribunal only at the instance of the entryman, or his legal representatives.

When, therefore, a final judgment of cancellation is rendered by the Commissioner, the entry in question is thereby canceled, and the land then becomes subject to appropriation under the provisions of the laws relating to public lands. A judgment is final as to the tribunal rendering it, when all the issues of law and fact, necessary to be determined, have been disposed of so far as that tribunal had power and authority to dispose of them.

Following the rule stated in that case it is held that the cancellation of Green's entry took effect as of the date of the Commissioner's decision, December 14, 1871. At the date of definite location therefore the land was free and passed to the St. Paul company. This disposi

tion of the case renders it unnecessary to pass on the right of the Northern Pacific to select land within the granted limits of the other road, and no ruling is made on that question. The filing of Anderson is rejected. Said decision is modified accordingly.

POSSESSORY RIGHTS SOLDIERS' ADDITIONAL HOMESTEAD ENTRY.

WACHTER ET AL. v. SUTHERLAND.

The assertion of a possessory right to land does not confer any right thereto under the settlement laws.

A soldier's additional homestead entry will not be disturbed where it appears to have been made under the interpretation of the law then in force and recognized by the Department, although under the changed construction of the law such entry would not now be admissible.

Secretary Vilas to Commissioner Stockslager, August 9, 1888.

I have considered the case of J. F. Wachter and J. W. Campbell v. James Sutherland, on appeal by the latter from your office decision of September 11, 1886, holding for cancellation his pre-emption filing for the SW. of Sec. 2, Tp. 2 S., R. 2 W., M. D. M., San Francisco, California land district.

Township plat was filed July 8, 1878. On that day Wachter made soldier's additional homestead entry for the north half of said tract. On the same day Campbell made soldier's additional homestead entry for the south half of said tract. On October 7, 1878, Sutherland filed pre-emption declaratory statement for said SW. of Sec. 2 Tp. 2 S.,

R. 2 W., alleging settlement December 23, 1865.

By letter of your office of January 5, 1882, the local officers were di rected to issue final certificates in the above mentioned soldiers' additional homestead entries, together with a number of other entries of the same character which was done January 17th, of that year.

Sutherland advertised to offer final proof under his filing, fixing October 1, 1884, as the day for making said proof. Upon a protest by the homestead claimants, a bearing was had and the local officers awarded Sutherland the NE. of the SW. of said section; and advised the cancellation of his filing as to the rest of the land covered thereby.

From that decision both Sutherland and Wachter appealed. In your office it was decided that Sutherland was not entitled to enter any portion of said tract and his filing was held for cancellation.

In 1871, Sutherland and one Charles Ramage bought from one Crymble his improvements on a tract of land of about five hundred acres and embracing a part of the tract in controversy. They occupied said land together, being engaged in cattle raising until 1874, when Sutherland sold to Ramage his interest in the cattle and all the land occupied by them, except the particular tract in controversy, which he claims he re