land district. The land described was opened to settlement at noon of April 22, 1889, under the act of March 2, 1889 (25 Stat., 1004). Limbocker's contest affidavit charged that Stovall entered upon land opened to settlement under said act subsequent to the date of the act and prior to the date of the opening, in violation of said act and the proclamation of the President thereunder dated March 23, 1889.

This contest, together with a prior contest of one Charles N. Cushman against the said entry on the same ground, having been dismissed by the local office for want of prosecution, under general instructions from your office relative to numerous contests which had not gone to trial and were apparently lying dormant and neglected, was, on appeal by Limbocker, reinstated by your office decision of March 4, 1895, on the ground that, as therein stated, the local office

erred in dismissing Limbocker's contest for want of prosecution, without first issuing a notice of hearing thereon and giving him an opportunity to serve it, because he could not otherwise know that the prior contest had been disposed of.

Hearing was thereupon duly ordered by the local office on Limbocker's contest (Cushman's having been disposed of by the dismissal thereof and his failure to appeal) for May 13, 1895, on which day, on plaintiff's motion, the case was continued to June 3, 1895. The contestant failing to appear on the last mentioned date, the case was then, on motion of contestee, dismissed for want of prosecution. On July 2nd, following, contestant filed a motion to reinstate the contest on the ground, in substance, that, understanding that the case was continued to June 4, 1895, he made no effort to appear on the day preceding, but was ready, however, for trial on either of those days. With the motion there was filed affidavits of contestant and his attorney tending to show that they had understood that June 4th, and not June 3d, 1895, was the day set for the trial of the case.

On July 18, 1895, the local office denied the said motion in the following language:

The within application to set aside dismissal is denied. Plff's counsel was before the office when continuance was granted and knew the day set.

On appeal by Limbocker your office, on December 10, 1895, in affirming the refusal of the local office to reinstate the contest, said:

It is very evident that this contest has not been diligently prosecuted, and that Limbocker has very tardily taken the various steps by which he has sought to keep his contest alive. Plaintiff and his attorney were both present at your office on May 13, 1895, when the case was, at their request, continued to June 3, 1895, and they therefore have no valid excuse for not knowing positively when the case would come up again in regular order. Besides plaintiff's attorney was advised by telegram (in response to his request), on the very day of the dismissal, that such action had been taken, and yet he did not ask a reinstatement until July 2, 1895.

Contestant now duly prosecutes here an appeal from the decision last mentioned, of your office, contending that under the facts shown it was error on the part of your office not to have directed the reinstatement of his contest.

Contestant's motion for reinstatement having been filed within thirty days from the telegraphic notice (in response to a telegram by his attorney asking whether the case would be heard on June 4, 1895) he is not chargeable with negligence in respect to that motion, as suggested in your office decision (Rule 43 of Practice, 23 L. D., 599). But, having accepted such notice and acted upon it in time by appealing to your office, it is now too late to raise, for the first time, as the present appeal seeks to do, the question of the sufficiency of such notice.

As suggested by the decision of your office, the charge of "soonerism" made by Limbocker against the validity of Stovall's entry has not been diligently prosecuted. More than four years after entry were allowed to elapse before this contest, based upon that general charge, was initiated. More than eight years have passed since Stovall, now over sixty four years of age, began to make a home on the land involved for himself and his family. A similar charge by another person, as already hereinbefore indicated, was allowed to drop without trial. Such cases as these, where the party who files the contest affidavit claims no right to the land superior to that of the entryman, but appears to charge only a disqualification and secure a forfeiture, must be diligently prosecuted to trial and judgment, or suffer dismissal for the failure so to do. This entryman should not be further harassed at this late day by a tardy contestant. The local office is positive that Limbocker's counsel knew that the case was regularly set for trial on June 3, 1895. As both said counsel and his client were present when the continuance to that date was granted, at their request, they should have known with certainty the day on which they were required to proceed with the case.

The default is not excusable. The motion to reinstate the case was properly denied by the local office, and your office decision sustaining the denial is hereby affirmed.

SWAMP LANDS-WAGON ROAD GRANT-ESTOPPEL.

STATE OF OREGON v. WILLAMETTE VALLEY AND CASCADE MT. WAGON ROAD Co.

The State by securing title to lands under the wagon road grant of July 5, 1866, is estopped from subsequently claiming the same lands under the prior grant of swamp lands.

Secretary Bliss to the Commissioner of the General Land Office, July 12, (W. V. D.) (F. W. C.)

1897.

The appeal filed on behalf of the State of Oregon from your office decisions of January 9 and 10, 1896, rejecting the claim made by the State on account of its swamp land grant to certain described tracts situated within the Burns and The Dalles land districts, Oregon, for

the reason that the tracts claimed had either been certified or patented to the State on account of the grant made by the act of July 5, 1866 (14 Stat., 89), for the benefit of the Willamette Valley and Cascade Mountain Wagon Road Company, has been considered.

By the act of July 5, 1866 (supra), a grant was made to aid in the construction of a certain wagon road therein described, which act was duly accepted by the State, and by act of its legislature, approved October 24, 1866, was conferred upon the Willamette Valley and Cascade Mountain Wagon Road Company.

The tracts here involved were at different times selected on account of the wagon road grant, and, as before stated, all of the lands have either been certified or patented on account of said wagon road grant.

The State has also made selection of the lands, claiming that they had passed to the State as swamp land under the act of March 12, 1860 (12 Stat., 3), which was prior in time to the act making the grant to the wagon road company.

With but a few exceptions the lands had been selected and approved on account of the wagon road grant long prior to the assertion of any claim on account of the swamp grant.

As thus presented the case is in all important particulars similar to that of the State of Iowa v. Cedar Rapids and Missouri River, Dubuque and Sioux City, and Iowa Falls and Sioux City Railroad Companies, decided August 24, 1876, and reported in volume 2 of Copp's Land Laws, 1882, page 959. There the lands had been selected and approved on account of acts making grants to the State to aid in the construction of certain railroads, which grants had been by its general assembly conferred upon certain railroad companies. After the certification of the lands on account of the railroad grants, claim was made that the same tracts had passed to the State under the swamp grant, which antedated the railroad grant, and the State therefore requested that patents should issue to her for the lands, notwithstanding the certifi cation on account of the railroad grants.

The State's claim was sustained by your office, whereupon the companies appealed, urging the following objections:

First. That the State is estopped by her own acts and by the acts of her authorized agents from asserting any claim to the lands in question.

Second. That the said lands, having been once duly certified to the State or to said companies under grants made to aid in the construction of certain railroads, have passed beyond the jurisdiction of this Department.

In considering said objections the Department, in said decision of August 24, 1876, held as follows:

After the lines and routes of the several railroads mentioned in the act of July 14, 1856, aforesaid, became definitely fixed, the State, through her duly authorized agent, procured the lands inuring to said grant, including the lands in question, to be certified to her, and then transferred them to the companies entitled thereto respectively. It further appears that the State by act of her general assembly authorized the said companies to make such disposition of said lands, by mortgage or deed of trust,

as might by them be deemed proper, in order to secure means to aid in the construction of said roads, and that they were mortgaged for that purpose. It further appears that the State has insisted on her right to tax said lands as the property of the respective railroads since they were transferred to them, for State, county, and all other purposes, which taxes the companies have been compelled to pay.

In view of the facts thus appearing, I am of the opinion that the objection is well taken. A State may be estopped by her own acts, or the acts of her authorized agents. (Commonwealth r. Andre, 3d Pick, 224. Bransen . Wirth, 17 Wall., 42. Nieto r. Carpenter, 7 Cal., 528. Bigelow on Estoppel, 246.)

Upon the question raised by the objection I am of the opinion that the rule laid down by Secretary Thompson in his decision of February 8th, 1860, that "when the Department has fully executed one grant its officers should cease all action under another grant of the same land to the same grantee," should be followed in this aud all similar cases. While I am not prepared to admit that the Department loses jurisdiction to act in every case where lands have been certified or patented, I am of the opinion that it should be exercised only in extreme cases, where without its exercise the party entitled to the land would be remediless. The reason for this rule is clearly stated in the decision of my predecessor in the case of Latimer et al. v. the B. & M. River Railroad Company. (Copp's Land Laws, page 403.) "It is of the utmost importance that titles given by the Department should rest on a firm and substantial basis, that they should be accepted and recognized as final adjudications by the Department of the rights on which they are founded, that persons holding these should be secured in their possession and the public generally should have confidence in their stability." If the State of Iowa had any rights to the lands now claimed by her which she has not granted or forfeited she has a complete remedy therefor in the courts, without the aid of this Department.

After careful consideration of the matter I agree fully with the conclusions reached in said opinion, upon which it appears the action taken in your office decisions now under consideration was predicated. Said decisions are therefore accordingly affirmed.

COSTS CONTEST INVOLVING PRIORITY OF SETTLEMENT.

SMITH. CORRELL.

In a contest arising on an allegation of a prior settlement right the costs should be assessed under Rule 55 of I'ractice.

Secretary Bliss to the Commissioner of the General Land Office, July 12, (W. V. D.)

1897.

(C. J. G.)

On July 11, 1893, Phillip A. Correll made homestead entry for the NE. of NE.section 16, and the W. of NW. and the NW. } of SW. } Sec. 15, T. 10 S., R. 5 E., Oregon City land district, Oregon.

On the same date Edwin V. Smith filed an affidavit of contest against Correll's entry, so far as it covered the NW. of NW. 4 of Sec. 15, alleging priority of settlement.

After a hearing was had on said affidavit of contest the local office rendered decision dismissing Smith's contest and holding Correll's entry intact. Smith appealed to your office, where, under date of March 11,

1896, the said decision of the local office was affirmed. Your said office decision concluded as follows:

In determining who should pay the costs in this proceeding, it appears that you adjudged that Smith should pay all the costs, and Smith appeals from that to this office. Smith in his application to contest Correll's entry claims that he was the first settler on said land and that he claims said land by virtue of priority of settlement over Correll. He is not claiming a preference right to said land, and rule 54 does not apply. Your taxation of costs is set aside, and you will retax the costs under rule 55.

Smith appealed to this Department from the decision of your office in dismissing his contest, and Correll appealed from the above order contained in the same decision as to the taxation of costs under rule 55. Both appeals were transmitted to the Department under date of July 11, 1896.

On March 15, 1897, the Department rendered decision wherein the action of your office in dismissing Smith's contest and holding Correll's entry intact was affirmed.

Smith now files what purports to be an application for certiorari; that is,

for an order directing your office to defer and to withhold all and further action on the departmental decision in the foregoing case, dated March 15, 1897, until the motion and the case as above entitled, involving the question of taxing the costs herein under rule 55, now pending before the Secretary on appeal by the contestee herein from that portion of your office decision of March 11, 1896, may be determined and complied with.

It is contended by the applicant that

to allow the contestee to make final entry upon the proof already submitted and now pending before the local office, waiting the determination of the right of entry herein, would, in the event of the Secretary affirming the Commissioner's decision of March 11, 1896, taxing costs under Rule No. 55, place the contestee out of the jurisdiction of the office, and thus defeat the relief asked for.

The Department in its decision of March 15, 1897, failed to pass upon that feature of the case having reference to the taxation of costs, although duly considered in your said office decision, and raised on appeal to this Department. In view of this fact the said application may very properly be treated as a motion for review, and the decision thereon as supplemental to the decision already rendered and promulgated.

After careful consideration of the question raised as to the proper taxation of costs in these proceedings, I am of opinion that the order of your office was correct, and is accordingly hereby affirmed.

This decision by the Department will constitute authority to your office to demand compliance with the order contained in your office decision of March 11, 1896, as to the taxation of costs under Rule 55, before finally passing the land in controversy to patent.