While this is true as a matter of fact, yet the principle announced by the court is applicable in the case at bar. It is said on page 260.

The jury having found a general verdict for the plaintiff must be deemed to have found that no such lode as claimed by the defendant existed when the application of the plaintiff for a patent was filed. We may also add, to what is thus concluded by the verdict, that there was no evidence of any lode existing within the boundaries of his claim, either when the plaintiff made his application or at any time before. The discovery by the defendant of the Dahl lode, two or three hundred feet outside of those boundaries, does not, as observed by the court below, create any presumption of the possession of a vein or lode within those boundaries, nor, we may add, that a vein or lode existed within them.

Counsel for appellant specially directs attention to the case of Goldstein . Juneau Townsite (23 L. D., 417) wherein small veins or stringers, similar to those found in the land in controversy and being in a mineral belt, were held to be sufficient to warrant the location of a lode claim. But that case has no bearing on the issue at bar. The question there was as to the character of the land. Patent was sought for the land then in dispute for townsite purposes, for which only non-mineral lands may be appropriated, and the question was as to whether or not it was of that character. The department properly held that the presence of these small veins or stringers in a mineral belt were sufficient to impress a mineral character on the land. No such question is involved here. Both parties are claiming the land as mineral, one as a lode claim the other as a placer.

Your office judgment is affirmed.

PRACTICE-REHEARING-ADVICE OF LOCAL OFFICER.

STRAM v. HINES.

A rehearing may be allowed where the contestant relying on the assurance of the local officer, before whom the case was heard, that evidence sufficient to warrant cancellation had been introduced, did not submit further testimony, and it is found on review of the proceedings below that the evidence in the case does not justify cancellation.

Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) (J. L. McC.)

9, 1897.

The Department has considered the case of Roman Stram, guardian of minor children of Ollie Moreau v. Louis Hines, involving the homestead entry made by the latter for the N of the SW, the SW of the SW, and the NW4 of the SE of Sec. 2, T. 44 N., R. 15, W., Ashland land district, Wisconsin.

The entry was made August 22, 1888. On July 20, 1896, Stram filed affidavit of contest, alleging that "Hines never has settled upon or improved or cultivated or resided upon said land or any part of it." A hearing was had, at which defendant made default (after service

of notice by publication). From the testimony submitted by the plaintiff the local officers found that the allegations of the contest affidavit had been proved, and recommended the cancellation of the entry.

No appeal was filed; but your office, on November 21, 1896, considered the case, under Rule 48 of Practice, and found and held as follows:

After five years from the date of entry, which in this case expired August 22, 1893, the presumption is, in the absence of any showing to the contrary, that the entryman had earned his claim by compliance with the law. As none of the witnesses had any knowledge of the tract prior to the spring of 1895, a cancellation of the entry would not be warranted from their testimony. The plaintiff failed to sustain his charges, after being afforded full opportunity to do so; and the contest is hereby dismissed.

The contestant has appealed.

Upon an examination of the testimony, the Department concurs in the conclusion reached by your office, that the cancellation of the entry is not warranted by the testimony offered.

In connection with his appeal, counsel for the contestant makes affidavit that at the hearing he, relying upon the statement of the receiver that the testimony already introduced was sufficient to procure the cancellation of the entry

did not introduce any more evidence on that point, supposing that the evidence introduced was sufficient; and this affiant says that there are several men, who have been well acquainted with said land for more than eight years, since the year 1888, and who know that said land has never been settled upon or improved or cultivated by said Louis Hines, or by any person, and that it has always been vacant and wild land during the whole of said period; and this affiant says that he can and will procure such persons to attend and testify as witnesses in this proceeding:

and he asks that, in case it should be considered that this homestead claim should stand uncanceled upon the records in view of the testimony heretofore adduced,

he be given an opportunity to prove by other witnesses the fact that Hines never settled upon the land, and that he never had any improvements or cultivation on it. Under the circumstances herein before set forth, this would appear to be a reasonable request.

The record is therefore returned herewith; and you are instructed to remand the case to the local officers, whom you will direct to continue the hearing, at as early a date as practicable, after giving all parties in interest due notice of the same. Upon the testimony taken at such hearing the local officers will render such opinion as to them shall seem proper.

The decision of your office is modified as above indicated.

2670-VOL 25-30

PRACTICE-RULE 35-APPEAL-CERTIORARI.

STILL . OAKES.

The appointment of a commissioner to take testimony, under rule 35 of practice, is discretionary with the local officers, and their action under said rule will not be disturbed except upon full proof that they have abused their discretion.

An application for a writ of certiorari directed to the local office must be denied, where it is apparent that if the appeal from the action of said office had been forwarded, it would be dismissed.

A writ of certiorari will not issue where it does not appear that the appeal was wrongfully denied, or the record does not disclose facts calling for action under the supervisory authority of the Department.

Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) 9, 1897. (L. R. S.)

On August 13, 1897, your office denied the application of Jay R. Still for the issuance of a writ of certiorari to the local land officers, at Mitchell, South Dakota, directing them to forward to your office certain papers, including an appeal alleged to have been filed by said Still in a contest initiated by him against the timber culture entry of the NE. of Sec. 10, Tp. 106 N., R. 49 W., made by Allen Oakes, on April 14, 1883, at said local land office.

Said decision of your office states that on December 26, 1894, said Still filed an affidavit of contest against said entry, alleging that the entryman had not complied with the requirements of the timber culture law, and after due notice upon Oakes a hearing was had, at which both parties appeared and offered testimony; that the local officers rendered. their decision against the validity of said entry and refused to grant a rehearing upon the motion of Oakes, who thereupon appealed to your office; that said appeal was dismissed by your office, the decision of the local office was affirmed, and said entry of Oakes was canceled; that said Still made homestead entry of said tract on December 31, 1896, and on January 27, 1897, Oakes filed a motion in your office for a rehearing, and the local office was directed to advise Oakes that he would be permitted to serve a notice upon said Still and the former attorney of said Oakes, one Roger Brennan, requiring them to appear and answer the charges preferred against them in said motion for rehearing; that said Still and said Brennan were duly cited to appear at the local office on April 28, 1897, at which time all parties appeared and were represented by counsel.

It is further stated that, after several continuances, the case was called for trial, and after said Oakes had submitted testimony, said Still filed a motion for a continuance and that a commissioner be appointed to take testimony in the neighborhood of the land, which was one hundred and seventeen miles from said local land office; that said motion for a continuance and for the appointment of a commissioner was overruled by the local officers, on the ground, mainly, that

the letter of your office, dated March 6, 1897, allowing a rehearing, required the register and receiver to hear the testimony and make such recommendation as to them should seem proper; that said Still excepted to said ruling, and, on June 7, 1897, filed an appeal from said action of the local land officers, and on June 20, 1897, the local officers decided that their said action refusing to appoint said commissioner was merely an interlocutory order, from which an appeal would not lie, and they accordingly declined to forward said appeal to your office.

Upon consideration of said application your office denied the same, on the ground that the action of the local officers refusing to appoint said commissioner was clearly interlocutory and not a final decision from which an appeal would lie.

In his application to this Department, counsel for Still "asks that a writ of certiorari may be issued compelling the local office to transmit the appeal from their decision of June 2, 1897," wherein they deny Still the right to take testimony under rule 35 of rules of practice.

Said rule of practice (No. 35, 23 L. D., 597), provides that:

In the discretion of registers and receivers testimony may be taken near the land in controversy before a United States commissioner, or other officer authorized to administer oaths, at a time and place to be fixed by them and stated in the notice of hearing.

There can be no question that under said rule the local officers are given discretionary authority to appoint a commissioner to take testimony near the land in controversy, and, in the absence of full proof that they have abused their discretion, their action under said rule will not be disturbed. Doherty v. Robertson, 12 L. D., 30; Mechem on Public Officers, section 1005.

It does not affirmatively appear that the local officers have abused their discretion, in refusing to appoint said commissioner, for the record fails to disclose the specific charges upon which said rehearing was allowed before the local officers, and the only reason suggested in said motion for the appointment of a commissioner to take testimony is the distance of the land from the local land office. Besides, said motion for the appointment of a commissioner was not made by Still until after Oakes had submitted his testimony in chief at the rehearing.

In Wood v. Goodwin (10 L. D., 689,) the Department held (syllabus): While the rules of practice provide for certiorari only in cases where the General Land Office denies the right of appeal, yet the Secretary has the power and authority to issue the writ to the local officers in a case that calls for such action.

Certiorari will not lie to review an interlocutory order of the local office where the ordinary methods of procedure afford relief.

It is not shown that any right has been refused the applicant, and it is apparent that if the appeal from the action of the local officers had been forwarded, it would be dismissed. In such cases certiorari will not issue. Rudolph Wurlitzer, 6 L. D., 315; Forney e. Union Pacific Ry. Co., 11 L. D., 430; Jhilson P. Cummins, 20 L. D., 130.

Since it does not appear that the appeal from the action of the local officers overruling said motion for the appointment of a commissioner was wrongfully denied, and the record does not disclose facts showing that the applicant is entitled to relief under the supervisory authority of the Department, said application for certiorari must be, and it hereby is, denied. Johnson et al. v. Beaufort et al., 21 L. D., 122.

RAILROAD GRANT-LIMITS-ADJUSTMENT.

SOUTH AND NORTH ALABAMA R. R. Co.

The approved plat on file in the General Land Office, on which the limits of a railroad grant are marked, must determine whether a selection falls within the limits of the grant.

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

9, 1897.

(C. J. W.)

and

By your office letter ("F") of May 25, 1885, the E. of the NE. the NE. 4 of the SE. 4, Sec. 31, T. 7 S., R. 6 W., Huntsville land district, Alabama, included in the list of indemnity selections made by the South and North Alabama Railroad Company, November 3, 1871, were canceled because they were without the indemnity limits of said railroad. On June 18, 1895, said railroad company again selected the said E. of the NE. and the NE. 4 of the SE. 4 of Sec. 31, T. 7 S., R. 6 W., 120.18 acres, and also the SE. 4 of the NE. 4, Sec. 31, T. 12 S., R. 5 W., 39.52 acres.

On May 18, 1896, your office rejected said selections, calling attention to the former cancellation, and holding for cancellation the SE. of the NE., Sec. 31, T. 12 S., R. 5 W., for the reason that it is also without the limits of the grant and not subject to indemnity selection.

The railroad company has appealed from your office decision, upon the following ground:

It is shown by accompanying plats that the several tracts do lie in the indemnity limits of the grant to the South and North Alabama Railroad by the line as it is of record in the Huntsville local land office, and further that this line is believed to be the correct line, as that office has always so regarded it, and so has the Honorable Commissioner, as is evidenced by the fact that your office, on May 19, 1896, approved to the State of Alabama, for the benefit of this railroad, upon the certificate of the Commissioner, the E. NE. 4, Sec. 9, T. 12 S., R. 5 W., which tract is located similarly to the ones at bar.

Two reasons are thus presented in support of the contention of the railroad company. One is that the plat on file in the local land office at Huntsville shows the tracts selected to be within the fifteen mile indemnity limits of the railroad, and the other is, that the Department on the certificate of your office has held a tract similarly located to be within said limits. The plat in the local office, referred to in the appeal as the Huntsville plat, was intended to be a duplicate of the approved plat on file in your office. There is no report of the local office with