indemuity selection of the Cedar Rapids and Missouri River Railroad Company, which selection was not canceled until after the repeal of the timber-culture law.

On account of the equities in Gallup, and in view of the fact that the contest upon which the State's selection was canceled was instituted by the railroad company after it had practically admitted the swampy nature of the land, a further investigation was ordered to determine the actual character of the land.

In said opinion the fact was noted that Gallup, in July, 1894, had tendered homestead application for this tract, upon which no action. appeared to have been taken. And in the opinion it was stated:

Should the previons adjudication of your office as to the character of the land be adhered to, Gallup's application under the homestead law will then be considered and the tract disposed of as other public land.

In the motion for review filed on behalf of Welch nothing is alleged but what was fully considered at the time of the rendition of the decision under consideration, and the motion is accordingly denied and herewith returned for the files of your office.

Among the papers forwarded with your office letter of September 24, 1897, is also a motion to revoke the order for a rehearing to determine the character of this tract, filed on behalf of Oscar W. Lowery, who, it appears, in April, 1894, tendered homestead application for the tract in question, which application was rejected by the local officers June 29, 1894; from which action he duly appealed to your office.

This appeal has not been considered by your office, and in the previous decisions of this Department the pendency of said application was not mentioned. Lowery claims to have had no notice of the action taken upon the applications by. Welch and Gallup until after promulgation of the decision under consideration. His claim rests solely upon his application, presented, as before stated, in April, 1894, which he asserts gives him a superior right over Gallup, whose homestead application was not filed until July following.

It will be noted that in the decision under review no direction was given to allow Gallup to make entry of the land under his application tendered in July, 1894; the action taken was upon his application for an investigation as to the character of the land; which application was filed on May 7, 1893. At this time Lowery was not a claimant for the tract in question, and by the tender of his homestead application in April following, he secured no such right as would bar the granting of the application for a bearing, and his motion is accordingly denied and herewith returned for the files of your office.

Should the tract upon re-investigation be found not to be swampy in character within the meaning of the act of September 28, 1850, the question as to the respective rights of Lowery and Gallup under their several applications will then be a proper matter for consideration.

PRACTICE—APPLICATION TO ENTER.

JOHN F. DEVOY.

The rule laid down in Cowles r. Huff, 24 L. D., 81, with respect to applications to enter made after judgment of cancellation and prior to appeal therefrom, but within the time allowed therefor, is applicable to pending cases.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) October 20, 1897. (E. M. R.)

This case involves the NE. of the NE. and S. 4 of NE. 4, Sec. 22, T. 10 N., R. 1 E., Humboldt land district, California, and is before the Department upon motion for review, by John F. Devoy, of departmental decision of July 12, 1897.

The records shows that on January 31, 1896, the local officers transmitted to your office the appeal of the said Devoy from their decision of January 7, 1896, rejecting his application to purchase under the act of June 3, 1878 (20 Stats., 89), the NE. of said section and range, because theretofore, on June 28, 1895, one William Lupton had made homestead entry of the land in controversy, together with the NW. of the SE. of said section.

One Isaac Barber, on March 31, 1883, made timber land cash entry for the NE. of Sec. 22, and thereafter, on April 14, 1888, said entry was held for cancellation by your office and on December 15, 1894, finally ordered to be canceled.

Devoy's application was originally filed in the local office on May 28, 1888, where it was held to await the disposition of the proceedings against the entry of Barber. Devoy appealed from the action of your office, which, on March 21, 1896, affirmed the decision of the local office. The decision of the Department of date July 12, 1897, which is now sought to be reviewed, affirmed the action of your office. It was therein held that the case of Cowles v. Huff et al. (24 L. D., 81) had overruled the doctrine laid down in ex parte Gauger (10 L. D., 221), and that after a judgment of cancellation by your office, and prior to appeal from such judgment but within the time allowed for such appeal, an application to enter should not have been received.

The motion for review, while conceding the correctness of the rule laid down in the Cowles v. Huff case, urges that, inasmuch as said rule was first announced in the case of Allen v. Price (15 L. D., 424), on the 15th day of November, 1892, which overturned and in effect overruled the practice theretofore existing, as announced in the said Gauger case, the application of Devoy when made was therefore in accordance with the law and practice of the Department, and he should not be made to suffer by reason of the change of holding upon the part of the Department.

This question was substantially involved in the Cowles v. Huff' case, and was decided adversely to the contention now made, inasmuch as it

was there held, "an application to enter should not be received during the time allowed for appeal from a judgment cancelling a prior entry of the land applied for; nor the land so involved held subject to entry, or application to enter, until the rights of the entryman have been finally determined;" and the entry of Huff was canceled and the application of Cowles to enter was allowed.

This disposition of the case was made after a consideration of the question at issue, and no good reason appearing for disturbing the same, it is adhered to and the motion for review is denied.

OKLAHOMA LANDS—SETTLEMENT RIGHTS.

COPE . BRADEN.

A settler on Oklahama land, who on the day of opening enters the Territory prematurely, with many others, through a misapprehension as to the signal given for entrance, must show, as against one who enters at the proper time, that no advantage was gained by such premature entry.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) October 21, 1897. (P. J. C.) The land involved in this controversy is the SE. of Sec. 12, T. 22 N., R. 7 W., I. M., Enid, Oklahoma, land district, of which Landa H. Braden made homestead entry September 21, 1893. On September 30th following, Otho E. Cope filed his affidavit of contest against the same, alleging prior settlement on the land. A hearing was had before the local officers, and as a result they filed dissenting opinions. In the opinion of the register the testimony of the several witnesses is quoted at some length, and he recommends that the homestead entry of Braden he held intact and the contest be dismissed. A motion for review of this decision was filed by Cope, but was overruled by the local officers. The receiver, in a comparatively brief decision recommends that the homestead entry be canceled and Cope be allowed to make entry.

Both parties appealed, and your office, by letter of March 6, 1896, reversed the decision of the register and held that Cope was the first to reach the land, that he was a qualified entryman and had a superior right of entry to that of Braden. In deciding the question involved, your office held:

The burden of proving that the plaintiff' made a premature entry in the territory devolved upon the defendant, and he has failed to show, by a fair preponderance of evidence, that the plaintiff did start in the race before the signal was given by the soldier above mentioned.

Motion for review of this decision was filed and denied on May 18, 1896. In that decision it is held by your office:

The evidence tends to show and by a preponderance does show, that the plaintiff entered the territory a few minutes prior to 12 o'clock noon, central standard time, September 16, 1893, but under the facts of this case, such entrance was lawful. He

entered the territory with thousands at a signal given by one in authority to designate the time when 12 o'clock noon should arrive. Whether the signal was given a few minutes prior to 12 o'clock noon, it is not pertinent to inquire, so far as the qualification of the plaintiff is concerned.

Whereupon Braden prosecutes this appeal, assigning numerous errors of law and fact.

The land in controversy is situated less than one mile from the town of Enid, and is about seventeen and a half or eighteen miles north of the south line of the Outlet, from which point both parties to this controversy ran on horseback. The decisions of the register and of your office find that Cope prematurely entered the Outlet on the day of the opening. There is no doubt in my mind as to the correctness of this finding. The receiver in his opinion does not controvert this finding, but says Cope went in on the signal.

It is shown by the testimony that there were several thousand people assembled on the south line of the Outlet at a point a few miles north of Hennessey, where the railroad enters the Strip, and that the line of intending settlers extended both east and west of said railroad track where they were congregated on the one-hundred-foot strip, on the morning of the 16th of September, preparatory to making the run.

The parties to this controversy were west of the track, Cope being about one eighth of a mile from it, while Braden was still further west and across Buffalo Creek. On this creek there was quite a growth of timber, which prevented those west of it from seeing those east. In front of the north line of the one-hundred-foot strip was a line of sentries, posted by the military authorities, to give the signal for starting by firing their pieces. The line of settlers was practically solid, and Cope was in or near the front line. It appears that the railroad train, which was a little distance south of the line, after having been loaded, was moved up to within a few feet of the line preparatory to the start. In moving it up the whistle of the locomotive was sounded, and after a few exhausts of steam the great majority of those on the line broke and ran into the Outlet. The first break seems to have been made east of the railroad track, but they were immediately followed by those on the west. The testimony shows that the soldiers tried to stop them, but were unsuccessful save as to a part of them, and those who did remain were largely occupying vehicles. The great majority of horseback riders continued on in the rush. Those who were stationed west of Buffalo Creek, where Braden was, being hidden from view by the line of timber from those east, did not start until 12 o'clock.

The rush thus made started from thirteen to fifteen minutes before twelve. This is the time as fixed by the sergeant, who had charge of the sentries, and the United States marshals, who were superintending the loading and moving of the trains, all of whom were present in the vicinity and witnessed the start.

It is clear to my mind, from the testimony, that Cope was with the crowd that broke and started at that time. Neither he nor his wit

nesses would swear that they were not present in the Outlet prior to twelve o'clock on that day, though the direct question was put to them. They all claim they saw the sentry in their vicinity lower his guidon,' which they took as a signal for the start, and ran by that. But it is not difficult to understand how the sentry, seeing a solid phalanx of on-rushing settlers, may have become disconcerted and lowered his flag. Be this as it may, however, the signal for starting was understood to be the firing of a gun, and there would seem to be no excuse why, if the settlers had been misled, they should not have halted as they were ordered to do and, take their places on the line. This many of them did do, but it is not claimed that Cope or any of his witnesses did so. In fact, it is admitted that he never stopped after the start until he got to his land.

Under these circumstances it is idle to attempt to argue that those who thus started in the race did not gain an advantage over those who remained until the lawful time for starting. Under the peculiar circumstances surrounding this premature entrance, it may be that those who made it should not be held disqualified from entering land in the Outlet. There seems to have been no premeditation in making this start. It was evidently the result of a belief that the train was moving into the Outlet, and the restless mass took that as a signal for moving.

It is manifestly unjust, however, that Cope should be given the advantage he gained by this premature entry, as against one entering the Outlet at the prescribed time. That he did gain an advantage over those remaining on the line until the signal was given to start, of from thirteen to fifteen minutes, is evident. If he was the first to arrive on the land, all other things in the race being equal, he certainly had the advantage of Braden to the extent of the time he made the start in advance of the legal hour, and in my judgment he should not be allowed this advantage.

The burden of proof is upon the contestant Cope to establish the fact that he was first upon the tract in a strictly orderly way. He should have shown with some degree of accuracy the time that he arrived at the land, and under the extraordinary circumstances surrounding his entrance into the Outlet this showing should have been such as to enable the Department to determine with reasonable certainty the time of his arrival. From a critical examination of the testimony of Cope and his eighteen witnesses it is found to be impossible to ascertain the time he did arrive. He says himself that he got there at 12:42 or 12:43. But while he admits he had a watch he says he did not consult it to ascertain the exact time. None of his witnesses fix the time from actual observation, except his father-in-law who saw him a half a mile away at the time he-Cope-got off on the land-and says he then consulted his watch and it was 12.48. All the other witnesses approximate the time as being shortly before one o'clock p. m.

Whatever may have been the number of minutes after twelve o'clock