DECISIONS RELATING TO THE PUBLIC LANDS. PRACTICE-HEARINGS-BURDEN OF PROOF. JOHN W. HOFFMAN. The jurisdiction of the local office over a case is not abridged by the fact that it comes before such office on an order for a hearing issued by the Department or the General Land Office. In proceeding against an entry on a special agent's report the burden of proof is upon the government, and such report is not competent evidence to be considered on final judgment. Secretary Lamar to Commissioner Sparks, July 6, 1886. On the 27th of May, 1881, John W. Hoffman made homestead entry of the S. E. of Sec. 5, T. 122 N., R. 63 W., 5th P. M. Aberdeen district, Dakota. After due notice he made final proof, April 22, 1882, showing that he was a single man, twenty-three years of age, a citizen of the United States, and in all other respects qualified to make homestead entry; that he settled upon the land July 25th, and took up his residence thereon October 1, 1881, and resided there continuously until date of final proof; that his improvements consisted of nine acres of land broken and cropped to oats; a frame house ten by twelve feet, constituting a comfortable residence; and a well-the total value of said improvements being $80.00. On November 27, 1883-one year and seven months after final proof and payment had been received by the local officers-Thomas W. Jaycox, a special agent of your office, reported said entry fraudulent; whereupon your office, by letter of May 9, 1884, directed as follows: Action on said entry is suspended, subject to the final determination upon the hearing which you will hold at a time to be fixed after consultation with the special agent, to enable him to appear and present tes'timony on the part of the government, and at which the entryman will be allowed full opportunity to defend the validity of the claim. Issue 2278 DEC- -1 due notice of the hearing, and inform the entryman of the nature and substance of the special agent's report, as above set forth, advising him that in default of an appearance at said hearing his entry will be finally canceled. Hearing was had August 12, 1884. The only witness for the government was special agent Jaycox, who testified as follows: On the 27th of October last I visited the claim of John W. Hoffman, and found a board shanty ten by twelve feet, and about forty acres of breaking; the total value of improvements on the claim were about one hundred and fifty dollars. I know nothing about the residence of the claimant on his claim only as I was told by settlers living near there I have made all the effort possible to obtain witnesses to testify in the case, but in every instance they have refused to attend because of threats that had been made against their persons and property The witness stated to me the names of parties who told him of these threats, but I have no reason to think that Mr. Hoffman had anything to do with it. Mr. Hoffman was not, certainly, one of the parties named to me. Upon this, counsel for claimant moved to dismiss the proceedings, on the ground that the government had failed to establish the allegations of the complaint. The register and receiver sustained the motion, dismissed the case, and reported to your office their action in the matter. Your office, on May 1, 1885, after reciting the facts of the case, decided that the action of the local officers In attempting to dismiss proceedings in which this (your) office had exercised original jurisdiction was erroneous. The defendant having declined to submit testimony upon the merits of the case, action must be taken upon the facts as shown, by the testimony for the government and the agent's report. The special agent examined the land October 27, 1883, and found it uninhabited; and he filed with his report sworn testimony to the effect that the claimant never resided thereon. Said cash entry No. 2345, of John W. Hoffman is therefore held for cancellation. In my opinion, the claimant in case at bar did all that was required of him under your order and in law. On the day of hearing he appeared, as he had been cited to appear, "to defend the validity of his claim." In the proceeding attacking the validity of his claim, the burden of proof was upon the government to establish, by competent evidence, the affirmative of the issue. See case of George T. Burns (4 L. D., 62). In that case it was also held that The special agent's reports are not evidence, but simply the basis upon which hearings are ordered. Where the special agent has reported an entry, upon which final certificate has regularly issued, illegal or or fraudulent, and a hearing has been ordered under the circular of May 8, 1884, he should offer the proof in support of his allegations, after which the entryman should present his defense. Thereupon the circular of April 22, 1885, upon which you base your decision in the case at bar, was modified, so as to make it "conform to the ordinary rules of judicial procedure." And according to the or dinary rules of judicial procedure, when a party has been cited to ap pear at a certain time and place, and answer to a certain charge, and he does so appear, he is entitled to a trial, unless the case be continued upon a proper legal showing made by the other side. In the case at bar the party alleging fraud made no such showing, therefore the case was properly dismissed. This case is in many respects similar to that of James Copeland (4 L. D., 275). In that case the investigation was made by the same agent; and as herein, after the government rested its case, counsel for the claimant moved to dismiss proceedings; the local officers sustained the motion; your office reversed the action of the local officers, and held the entry for cancellation. In deciding that case I said: The testimony submitted by the government showed at least prima facie that the law had not been complied with by the claimant; and not being rebutted by any evidence proper on that hearing to be considered, it was error to dismiss the case against the government. The conclusion that it was error to dismiss proceedings in that case was predicated on the fact that testimony had been submitted which showed prima facie that the law had not been complied with. In the case at bar, however, no evidence whatever was presented tending to show fraud; the only testimony submitted was that of the government agent, who testified to finding forty acres of land broken where the entryman upon final proof had shown but nine acres, and to one hundred and fifty dollars of improvements where the entryman had sworn to but eighty dollars-neither of which facts are per se indicative of fraudand concluded by announcing that he could obtain no other evidence. There was nothing to rebut, and therefore it was not error to dismiss the proceedings. I can not concur in the view expressed in the decision appealed from that the register and receiver were without authority to dismiss this case on the motion made by counsel, merely because the hearing had been ordered by your office. I do not think that the fact of your office or the Department having directed that a hearing be had in any case, inhibits the officers before whom the hearing is ordered from proceeding as in other cases. Such order places any case to which it is made applicable, again within the jurisdiction of the register and receiver to whom the order is made, and the proceedings at the hearing should be in accordance with the general and well recognized rules of practice applicable to trials before those officers. If, therefore, as was done in this case, a motion to dismiss is made, raising a question on matters occurring subsequently to the order for the hearing, the register and receiver would have full jurisdiction and authority to grant or deny such motion-their action being of course subject to review by your office, and reversal if found to be based upon insufficient grounds. Your said office decision of May 1, 1885, is therefore reversed. DESERT LAND ENTRY-COMPACTNESS. LIZZIE A. DEVOE. In determining whether an entry is within the regulations as to compactness its relation to adjacent lands may be properly considered. Secretary Lamar to Commissioner Sparks, July 7, 1886. I have considered the appeal of Lizzie A. Devoe from your decisions of September 3d and November 19, 1885, rejecting for lack of compactness her desert land entry No. 2530, for the E. of the N. E. and the N. E. of the S. E. of Sec. 8, and the N. of the S. and the S. of the N. of Sec. 9, T. 47 N., R. 81 W., Cheyenne District, Wyoming. Devoe's entry contains four hundred and eighty acres. It measures a mile and a quarter from east to west-somewhat exceeding the dimensions prescribed in the circular of March 1, 1884, (p. 35). You direct that Devoe "adjust" the boundaries of the entry so as to comply more literally with the requirements of the law and the above regulations. I do not see how this can be done. An examination of the tract-books of your office discloses the fact that such re-adjustment can not be made by dropping two forties from the east end of the tract and taking in an equivalent amount on the north, as said land on the north is, and was before the date of Devoe's entry, filed upon as a pre-emption claim by one Bryan Long. All the land on the south is marked upon the maps and reported in the field notes of survey on file in your office as being, "mountainous"-thus corroborating the allegations in the affidavit accompanying Devoe's appeal that said land could not be rendered arable even by irrigation. There is no way in which the boundaries of the entry can be re-adjusted, except by extending them either north or south, the former of which is unallowable under the law, and the latter impracticable in view of the topography of the country. The rule prescribed in the circular of March 1, 1884, (supra), is by its own terms not a rigid and inflexible one, the statement being explicitly made therein that The requirement of compactness will be held to be complied with on surveyed lands when a section, or a part thereof, is described by legal subdivision as nearly in the form of a technical section as the situation of the land and its relation to other lands will admit. There being in the case of Devoe's entry no departure from reasonable requirements of compactness, but it being as nearly square "as its relation to other lands will admit," I think said entry should be allowed to stand, and so direct. Your decision is modified accordingly. TIMBER CULTURE CONTEST-RELINQUISHMENT. BROWN v. BALDWIN. The charge as laid by the contestant could not be maintained, but as she subsequently during the pendency of the contest and prior to the intervention of any adverse right, filed the entryman's relinquishment her right to make entry of the tract involved is recognized. Secretary Lamar to Commissioner Sparks, July 7, 1886. I have considered the case of Eva Brown v. John H. Baldwin, on appeal by the former from your office decision of April 28, 1885, cancelling her timber-culture entry No. 5923, for the SE. of Sec. 21, T. 116 N., R. 67 W., Huron district, Dakota Territory. The tract described was originally entered by John F. Douglas, October 20, 1882, under the timber-culture act. August 24, 1883, Eva Brown instituted contest against Douglas, alleging as ground therefor that he "had made and executed a relinquishment of said tract, and holds the same for sale and speculation." This relinquishment Brown obtained and filed with the local officers. The relinquishment bears the same date with Brown's affidavit initiating contest, namely, August 24, 1883; but there is nothing among the papers to indicate when it was filed in the local office further than an incidental remark of Brown's attorney, that it was filed "subsequent" to the initiation of contest. The local officers refused to cancel Douglas's entry, but transmitted the papers to your office, November 24, 1883. Your office, April 28, 1884, directed the cancellation of Douglas's entry, but dismissed Brown's contest, holding that "the allegation that a party has relinquished his entry is not of itself a sufficient ground for contest "-at the same time directing the local officers to "hold the land subject to entry by the first legal applicant," thus practically denying to Brown the preference right to enter. Your office also retained upon its files Brown's application to enter. Brown appealed to the Department. The Department, October 20, 1884 (3 L. D., 150) decided that If Brown had obtained possession of the executed relinquishment and filed it at the time of making application to enter (there being no other contest pending at the time), said application should have been allowed; but failing to file the relinquishment upon making application to enter, she had at the time of making such application no statutory ground of contest. Nevertheless, under the circumstances,-having done the best she knew to secure the desired right, and no other right having intervened, but the question being one entirely between the applicant and the United States-I see no reason why she should not be allowed the benefit of being considered the first legal applicant, and so direct. In pursuance of this decision your office, October 24, 1884, directed the local officers to place Eva Brown's application of record. Brown being notified of the departmental decision and your said office order—and her previous application being retained upon the files of your |