LABATHE. ROBORDS.

Motion for review of departmental decision of September 3, 1897, 25 L. D., 207, denied by Secretary Bliss, December 13, 1897.

JURISDICTION-SUPERVISORY AUTHORITY.

UNION PACIFIC R. R. Co. ET AL. v. STEWART ET AL.

The Land Department may on its own motion, for the protection of apparent equities, and after due notice to all parties, reopen an adjudicated case for further consideration, where the land involved appears vacant on the records. Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) 13, 1897. (F. W. C.)

I am in receipt of your office letter "F" of November 19, 1897, calling attention to departmental decision of April 12, 1892 (not reported), in the matter of the case of the Central Branch of the Union Pacific Railroad Company and Arnold Parli v. John B. Stewart, Mathew H. Wymore and The St. Joseph and Denver City Railway Company, involving the E. of the NE. of Sec. 33, T. 1 N., R. 11 E., Lincoln land district, Nebraska.

This tract, it appears, is within the limits of the grant made by the act of July 2, 1864 (13 Stat., 356), for the Central Branch of the Union Pacific Railroad, as shown by the map of definite location filed on March 6, 1866. It is also within the limits of the grant made by the act of July 23, 1866 (14 Stat., 210), for the St. Joseph and Denver City Railway Company, as shown by the map of definite location filed March 28, 1870.

The case as before considered by this Department arose upon the offer of proof by John B. Stewart upon his homestead entry made August 6, 1887, covering this land.

Mathew H. Wymore had, on September 16, 1887, tendered a homestead application for this tract, which was rejected by the local officers; from which action he duly appealed.

On February 21, 1888, Arnold Parli, claiming to have purchased the land from the Central Branch of the Union Pacific Railroad Company, applied to purchase the tract under the provisions of section five of the act of March 3, 1887 (24 Stat., 556).

Upon the consideration of the claims of the several parties and the grantee companies, your office decision of November 20, 1890, rejected the claim of the Central Branch of the Union Pacific Railroad Company, held the entry by Stewart for cancellation, rejected the applications of Wymore and Parli, and held that the tract inured to the St. Joseph and Denver City Railway Company under its grant. From said decision the Central Branch of the Union Pacific Railroad Company, Parli, Stewart and Wymore all appealed to this Department.

The record as presented shows that one Samuel Snooks made homestead entry of this tract on January 16, 1865, which entry was canceled on October 23, 1866.

At the time of the consideration of this case before by the Department, to wit, April 12, 1892, it was the accepted rule of adjustment that the condition of the land at the date of definite location alone determined the company's rights under its grant, without regard to its condition at the date of the passage of the act making the grant; so that your office decision was affirmed because the tract in question appeared to have been free from claim at the date of the filing of the map of definite location by the St. Joseph and Denver City Railway Company. It was noted, however, that on February 16, 1885, Parli purchased this tract from the Central Branch of the Union Pacific Railroad Company, believing the tract to be covered by said grant. This was two years before the tender of the homestead applications by Stewart or Wymore, and it was therefore held that:

Parli, if a citizen of the United States, or if his intention had been declared to become a citizen, would be in a position to be entitled to purchase the tract under said section 5, were it not for the fact that at the time of his application to purchase, the Government did not own the tract, in fact it has had no title thereto since March 28, 1870, when the line of St. Joseph and Denver City Railroad was definitely located.

Your letter of November 19, 1897, calls attention to the decision of the supreme court in the case of Bardon v. Northern Pacific Railroad Company (145 U. S., 535), decided May 16, 1892, subsequent to the decision of the Department in the case under consideration, in which it was held:

The grant is of alternate sections of public land, and by public land, as it has long been settled, is meant such laud as is open to sale or other disposition under general laws. All land, to which any claims or rights of others have attached, do not fall within the designation of public land. The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands are to be selected in lieu thereof under the direction of the Secretary of the Interior. There would therefore be no question that the pre-emption entry by the heirs of Robinson, the payment of the sums due to the government having been made, as the law allowed, by them after his death, took the land from the operation of the subsequent grant to the Northern Pacific Railroad Company, if the pre-emption entry had not been subsequently canceled. But such cancellation had not been made when the act of Congress granting land to the Northern Pacific Railroad Company was passed; it was made more than a year afterwards. As the land pre-empted then stood on the records of the Land Department, it was severed from the mass of the public lands, and the subsequent cancellation of the pre-emption entry did not restore it to the public domain so as to bring it under the operation of previous legislation, which applied at the time to land then public. The cancellation only brought it within the category of public land in reference to future legislation. This, as we think, has long been the settled doctrine of this court.

Said letter states that the case under consideration has been duly closed and that no action has been taken by any of the parties in interest

looking to the re-opening of the same, but as several parties, strangers to the record, have inquired of your office as to the status of said tract, which now appears vacant upon the records, in view of Parli's equities you request such instructions as the Department "may deem suitable to the occasion."

It would appear, in view of the decision of the court referred to, that the tract in question was excepted from the grant for the St. Joseph and Denver City Railway Company, and so far as the record before me shows there would appear now to be no objection to allowing the application to purchase made by Parli. The parties are none of them, however, before the Department, and in order that the matter may be duly presented and all parties be given an opportunity to make a showing in support of their claimed interests, you are instructed to re-transmit the record in this case with such recommendation thereon as you deem proper in view of the decision referred to, and that all parties be duly notified thereof and advised that the case will await action by the Department for a period of sixty days, during which time they may make any showing desired. At the expiration of that time the matter will be taken up for re-adjudication, in the light of the decision of the court, under the provisions of the act of March 3, 1887, supra.

NORTHERN PACIFIC R. R. Co.

Application for the suspension of action looking to the disposal of lands listed and selected on account of the Northern Pacific grant, east of the terminus established by the departmental decision of April 27, 1896, 23 L. D., 204, denied by Secretary Bliss, December 13, 1897.

TIMBER CULTURE ENTRY-EQUITABLE ACTION--ADVERSE CLAIM. MILNE . THOMPSON.

Failure to submit final proof on a timber culture entry, within the statutory period, is no bar to the equitable confirmation of the entry, if the delay is satisfactorily explained; and such right is not defeated by an intervening contest based only on the default of the entryman in the matter of making final proof. Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) (C. J. G.)

13, 1897.

On December 21, 1881, Andrew Thompson made timber culture entry for the NW. of Sec. 22, T. 112 N., R. 67 W., Huron land district, South Dakota.

On July 2, 1895, Una H. Milne filed an affidavit of contest against Thompson, alleging that he had failed to submit final proof within thirteen years from the date of his entry. On the following day Thompson was personally served with notice that a hearing would be had September 5, 1895.

On September 3, 1895, Thompson offered his final proof which was rejected by the local officers because a contest was pending and the proof was made before the hearing was had.

On September 30, 1895, the hearing having been had at the appointed time with both parties present, the local officers rendered decision in which they recommended the cancellation of Thompson's entry for failure to submit final proof within thirteen years as alleged.

On October 4, 1895, Thompson appealed from the rejection by the local officers of his final proof, and on November 5, 1895, from their decision recommending the cancellation of his entry.

On April 2, 1896, your office, in passing upon both appeals, affirmed the action of the local officers as to the rejection of Thompson's final proof, but reversed their action as to the cancellation of his entry. The contestant has now appealed from your said office decision to this Department.

Your office found that Thompson had not offered his final proof within thirteen years from the date of his entry, but held that under the decision in the case of Pattin v. Smith (21 L. D., 315) he had not thereby forfeited his right to the land. The syllabus of that case is as follows:

A charge of failure to submit final proof under a timber culture entry within the statutory life of the entry, must fail where it appears that under the extension of time authorized by the act of May 20, 1876, the entryman is not in default.

It appears that Thompson made applications during the years of 1884, 1885, 1886 and 1887, for extension of time, alleging compliance with law in the matters of planting and cultivation but that by reason of destruction by drouth, hail and prairie dogs he was unable to secure the growth of the required number of trees. It does not appear whether these applications were allowed or rejected. It was the opinion of your office, however, that as they were placed on record by the local officers, and as the record does not show that they were refused, it will be presumed that they were allowed. Hence your office held that the four years of extension allowed would give Thompson, under the case cited, until December 1898, to make his final proof.

The first section of the act of May 20, 1876, (19 Stat., 54) provided

that

The time allowed by this act in which to plant the trees and make final proof shall be extended the same number of years as the trees planted on said claim were destroyed in the manner specified in this section.

It is thus seen that the above act provided for an extension of time within which to make final proof as well as to replant the trees. As Smith's entry, in the case cited by your office, was made in the year 1875, he was entitled to the provision of said act. But the act of June 14, 1878, (20 Stat., 113), under which Thompson made his entry and which repealed all acts and parts of acts in conflict therewith, contains no provision for an extension of time beyond the statutory period within which to submit final proof. Hence the case cited is not appli

This conclusion is in har

cable to the one now under consideration. mony with the decision in the case of Morris Collar (13 L. D., 339) and other cases, wherein it was held (syllabus)

The timber culture act does not contemplate an extension of the statutory period within which final proof is required but proof submitted after the expiration of said period, either under the act of 1878, or the commutation clause of section 1, act of March 3, 1891, will receive due consideration.

Section 2457 of the Revised Statutes defines the circumstances under which entries may be submitted to the board of equitable adjudication, as follows:

Where the law has been substantially complied with, and the error or irregularity arose from ignorance, accident, or mistake, which is satisfactorily explained; and where the rights of no other claimant or pre-emptor are prejudiced, or where there is no adverse claim.

See also Rule 33 of circular of April 10, 1890, (10 L. D.,

503).

Thus failure to submit final proof within the statutory period is no bar to the equitable confirmation of a timber culture entry where the delay is satisfactorily explained; and this notwithstanding an intervening contest alleging only such failure. Timpson v. Longnecker (22 L. D., 59).

Thompson's final proof shows that he complied in good faith with the terms of the timber culture law, and any failure to secure the requisite growth of trees was due to their destruction by drouth, hail and prairie dogs, as previously set out herein. The contest affidavit contains no allegation of bad faith in the matters of planting and cultivation, it being directed solely to Thompson's failure to offer his final proof within thirteen years; information which was already a matter of record in the local office. In explanation of his said failure Thompson states that he construed the several extensions granted him to have the effect of extending his time beyond the thirteen years; that he was never notified that the time for making his final proof had expired; and that immediately upon ascertaining the fact he offered his said proof, which was rejected only because of the pending contest.

From the fact that Thompson applied for extensions of time, thereby evidencing a purpose to meet the requirements of the timber culture law, taken in connection with his statements as above set out, it is deemed that his failure to submit final proof within the statutory period has been satisfactorily explained.

The conclusion reached herein is in harmony with the opinions expressed in the desert land cases of Phillips v. Almy (17 L. D., 255), and Thompson v. Bartholet (18 L. D., 96).

Your said office decision, as herein modified, is accordingly affirmed, the contest dismissed, and the proof if otherwise satisfactory will be accepted and the case referred to the board of equitable adjudication.