of the approval of the indemnity selection, exhausts the right of the State to use said loss as a base for indemnity selection, the theory of said decision being that as the State acquiesced in the selection as approved, the adjustment thereby affected will not be disturbed under a subsequent and more liberal interpretation of the school grant under which a greater selection would be possible on account of said loss.

After a careful consideration of the matter the Department refuses to follow the holding made in said decision. This Department is charged with the adjustment of all land grants, and, as held in Leavenworth, etc., R. R. Co. v. United States (92 U. S., 733, 740), they "should be neither enlarged by ingenious reasoning, nor diminished by strained construction." No mere lapse of time, or enforced acquiescence on the part of the State in an erroneous decision, should operate to prevent the State from receiving the full measure of its grant, where the matter is wholly one between the State and the United States and no intervening rights or claims are affected.

So far as concerns the particular tracts eliminated from the original selection of 1877 under the direction which required that selection to be reduced one-half, the State waived any claim thereto and would not now be heard to assert a right under said selection as against an intervening claim made to said land. If, however, it appears that the State has not received a full equivalent for the losses assigned and made the base for the selections which have received departmental approval; the entire grant being yet unadjusted, it is only right and proper that the error formerly made should be corrected.

It seems that without explanation two lists of school indemnity selections have received departmental approval since 1878 on account of a loss in said section 16, namely: list No. 9, approved February 19, 1898, covering the fractional SW. of Sec. 8, T. 18 S., R. 19 E., 46.40 acres, and list No. 10, approved March 26, 1900, covering SW. of Sec. 4, T. 39 N., R. 2 W., 160 acres, and lot 3 of Sec. 4, T. 41 N., R. 4 W., covering 40.36 acres. So far as shown by the data furnished by your office these lists were passed on account of unspecified bases in said Sec. 16, in this respect being like the selection now under consideration.

The Department does not approve of this manner of adjusting the school grant, and therefore directs that the State be required to make a re-arrangement of its bases for the selections made and approved on account of the loss of said section 16, so as to specify a particular tract for each selection, making the selected lands and the base lands agree as to acreage, and when thus adjusted the remaining lands in said section 16, if any there be, will be subject to use by the State in the selection of other indemnity lands.

Your office decisions appealed from are set aside and departmental decision in the case of State of California, reported in 22 L. D., 428, is hereby overruled.

PRACTICE-NOTICE-SERVICE BY PUBLICATION.

SHEETS v. SLAUGHTER.

An affidavit as a basis for service by publication of notice of a contest against a homestead entry must show what efforts have been made to secure personal service; and where such affidavit fails to show that inquiry as to the whereabouts of the entryman was made at his address of record, and also fails to show that inquiry has been recently made in the vicinity of the land, it does not show due diligence.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

March 5, 1903.

(A. S. T.)

On November 22, 1900, Cornelius Slaughter made homestead entry for the NE. of Sec. 23, T. 156 N., R. 86 W., Minot land district, North Dakota, giving his post office address as Lakota, North Dakota.

On June 14, 1901, Noah D. Sheets filed his affidavit of contest against said entry charging abandonment and failure to reside on the land, not the result of service in the army or navy.

At the same time he filed his affidavit to procure an order for service of notice by publication. In this affidavit he alleged that:

He has made diligent search and inquiry for the defendant; that he has made personal inquiry of F. C. Walthers, postmaster at Bethold, that being the nearest post office to the land involved, as to the place of residence or whereabouts of said Cornelius Slaughter, and that he has made like inquiry of L. T. Lautenschlayer and others whose names are unknown, who reside in the immediate neighborhood of said land, and from his own personal knowledge as well as the information acquired from said parties, states that said Cornelius Slaughter abandoned said land and went to Unknown in the State of Unknown on or about the 23d day of November, 1900, that he has since that time been absent from said land, and that his present place of residence or post office address is unknown, and on account thereof a personal service of the notice of said contest can not be made.

Notice issued and was published for five weeks in a newspaper published in the county where the land is situated. Copies were posted in the local office and on the land involved, and a copy was sent by registered mail addressed to the defendant at Lakota, his post office of record, and received by him.

On the day set for the hearing the parties appeared, the defendant appearing specially to object to the jurisdiction for the want of a proper basis for the service of notice by publication.

The defendant's objection to the sufficiency of the service of notice was overruled by the local officers, whereupon the contestant offered proof in support of his contest. The local officers found in favor of the contestant and recommended the cancellation of the entry. Notice of this action was sent by registered mail on September 13, 1901, and on October 12, 1901, the defendant filed his appeal to your office, where,

on August 1, 1902, a decision was rendered affirming the action of the local officers. Notice of said decision was sent to the parties by registered mail on August 14, 1902, and on October 1, 1902, the defendant filed in the local office his appeal to this Department.

The only question to be determined is, whether or not the service of the notice of contest by publication was sufficient under the circumstances, or, in other words, was the affidavit of the contestant sufficient to warrant such service.

Rule nine of Practice requires that: "Personal service shall be made in all cases when possible, if the party to be served is a resident in the State or territory in which the land is situated."

Rule eleven authorizes service by publication, "when it is shown by affidavit presented on behalf of the contestant, and by such other evidence as the register and receiver may require that due diligence has been used and that personal service can not be made.

It is not sufficient for the affidavit to state that due diligence has been used, and that personal service can not be made, but the contestant must show what degree of diligence has been used. He must show what efforts he has made to procure personal service, and from such showing the local officers are to determine whether or not due diligence has been used.

The affidavit in question states that the contestant made inquiry of the postmaster nearest the land in controversy and of others living in the immediate vicinity of the land, and from the information thus acquired, and from his own personal knowledge, he stated that the defendant had left the land and gone to some place to him unknown. It is not shown when he made this inquiry, which would seem to be important in determining the degree of diligence used, since if the inquiry was made several months before filing the affidavit proper diligence would require a more recent inquiry. It is not stated that the defendant was not a resident of the State, and it is not shown that any inquiry was made at his record address, nor any effort to procure personal service of the notice there. The records of the local office showed his address to be Lakota, which is in the State of North Dakota. The very object and purpose of keeping his address is that he may be served with notice of proceedings affecting his entry, and proper diligence required that the contestant should make an effort to procure service of the notice at that place, if the defendant was not found elsewhere.

For these reasons it must be held that the affidavit in question was insufficient to warrant service of the notice by publication, and therefore that the defendant has not been legally served with notice of the

contest.

The contestant asks that the appeal be dismissed on the ground that

it was not filed within the time allowed by the rules of practice, but the record shows that it was filed within the required time.

Your said decision is therefore set aside, and you are directed to cause the contestant to be notified that he will be allowed sixty days from notice hereof in which to proceed anew to serve notice of his contest, and in default of such action on his part within that time his contest will be dismissed without further notice to him.

SCHOOL LAND-INDEMNITY SELECTION-MINERAL CHARACTER.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 6, 1903.

Registers and Receivers of United States Land Offices.

SIRS: The following rules and regulations will be observed in the adjustment of the grants to the several States and Territories made in aid of the support of common schools, where the mineral or nonmineral character of the lands sought to be selected as indemnity, or those made the base for an indemnity selection, is involved:

Rule 1. When a school section is identified by the government survey and no claim is at the date when the right of the State would attach, if at all, asserted thereto under the mining or other public land laws, the presumption arises that the title to the land has passed to the State, but this presumption may be overcome by the submission of a satisfactory showing to the contrary. Applications presented under the mining laws covering parts of a school section will be disposed of in the same manner as other contest cases.

Rule 2. The State will not be permitted to make selection in lieu of land within a school section alleged to be mineral in character and for that reason excepted from its grant, whether returned by the surveyor-general as mineral or otherwise, in the absence of satisfactory proof that the base land was known to be chiefly valuable for mineral at the date when the State's right thereto would have attached, if at all. The proof must show the kind of mineral discovered upon the land and the extent thereof, when and by whom the discoveries were made, as far as practicable, whether any claim to the land was asserted under the mining laws at the date when the State's right thereto. attached, if at all, and if so by whom, the nature and extent of the mining improvements placed upon the land by the mineral claimant, and what efforts have been and are being made to develop the land in good faith for mineral purposes. If, in any case, the proof does not clearly show that the base land was known to contain valuable mineral

deposits, and to be chiefly valuable on account of such deposits, at the date the State's right would have attached thereto, a selection in lieu thereof will not be permitted. A certificate of the proper authorities that the base lands have not been sold, encumbered or otherwise disposed of must also be furnished.

Rule 3. Where the land sought to be selected in lieu of land within a school section has been returned by the surveyor-general as mineral, notice of the proposed selection must first be given by publication for sixty days, with posting in the local land office during the same period, and satisfactory proof submitted as to the non-mineral character of the selected land. Upon compliance with this requirement and in the absence of allegation that the land is mineral, the selection may be received, if otherwise regular, certified and forwarded as required by rule 7 hereof.

Rule 4. Where land sought to be selected in lieu of land within a school section has not been returned by the surveyor-general as mineral, but is alleged by way of protest to be mineral, or where application for patent therefor is presented under the mining laws, the proceedings in such cases will be in the nature of a contest, and will be governed by the rules of practice in force in contest cases.

Rule 5. Where land sought to be selected has not been returned as mineral but is within a township in which there is a mining location, claim or entry, publication thereof must be made, at the expense of the State, for a period of sixty days, with posting for the same period in the district local land office, and during such period of publication the local land officers may receive protests or contests as to any of the tracts claimed to be more valuable for mining than agricultural purposes.

Rule 6. A determination by the land department that a portion of the smallest legal subdivision in a school section is mineral land, will place that entire subdivision in the class of lands that may be used as a basis for indemnity or lieu selection.

Rule 7. No application which involves the mineral or non-mineral character of land sought to be selected or made the base for such selection, will be received and forwarded by you, until the preliminary requirements, herein before indicated, have been complied with. Upon the State conforming to these requirements, you will receive the selection, certify as to the date of filing thereof, and the condition of the tracts selected or bases used as shown by your records, and forward the same, together with all showing made either for or against the selection, to this office by special letter, without further action upon the selection. The legal fees payable upon selection will not be received until you are advised by this office that the selection may be admitted. In the meantime, you will take no action looking to a disposal of the land.