the supreme court, I am at a loss to know by what authority hecan give validity to a pre-emption filing, which under the decision of said court is void.

It is true that in an affidavit by one of the learned counsel, who ask for the re-instatement of said Doyle's pre-emption entry, it is alleged: "That the supreme court of the United States was grossly imposed upon and deceived by the stipulations entered into by and between the attorneys who presented the case, and in consequence whereof the court adjudged the claim of the State and its pretended purchaser to be the superior title."

Even if this were clearly shown to be so, still I know of no supervisory jurisdiction in the Secretary of the Interior empowering him to review and annul the decisions of the supreme court of the United States. It would be the assertion of a doctrine, both startling and strange, to maintain that the Secretary of the Interior--an executive officer of the government-could in any case interpose his authority to shield a litigant against the consequences of a judgment rendered against him by the highest court known to our constitution. But such a doctrine would be doubly startling and doubly strange when applied to a case such as this is alleged to be, where the judgment complained of was procured by the joint stipulation of the attorneys representing both sides of the case.

But not only must the Secretary reverse a decision of the supreme court, in order to re-instate and validate said entries, but he must go farther and annul a decision of his own predecessor, touching these same entries, made nearly nine years ago, and ever since acted upon and acquiesced in, not only by the Department, but by the very parties themselves, who are now seeking for such annulment.

On the 29th day of September, 1877, Secretary Schurz decided against Mr. C. W. Doyle and Mr. Charles Bales substantially the same application which they are now seeking to have decided in their favor. The following are the words of that decision:

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY, Washington, D. C., September 29, 1877. SIR Referring to my letter of the 28th of July last, in relation to the E. of section 24, township 3 south, range 2 east, San Francisco, California, I have to inform you that I have considered the argument submitted by the counsel for C. W. Doyle and Chas. Bales, claimants for said tract, urging the revocation of my order of June 5th last, for the cancellation of their cash entries. The claim of the State was originally rejected by your office and this department upon the ground that the first section of the act of July 23, 1866, did not confirm the prior selection of the land made by the State, and for that reason the cash entries of Doyle and Bales were allowed, but before patents issued the supreme court of the United States after full consideration of the same point rendered a different decision, and adjudged that the tract in controversy was rightfully certified to the State, and that the title of the

State purchaser was perfect. Notwithstanding this decision of the highest judicial tribunal of the country, the attorney for the pre-emptors requests that a patent issue to them for land the title to which is thus adjudged to be in another.

The proposition is not consistent with a correct administration of the law, and cannot be entertained. By law this department is invested with the control of all matters pertaining to the disposal of public lands, and that control is only terminated by the issue of patent. If it is found that an entry has been erroneously allowed, it is the duty of the department to cancel the same. Under the ruling of the court it is evident that said entries were erroneously allowed, and they should be treated accordingly. All questions of title must now be determined before a tribunal other than this department, and I can take no action that would in effect interfere with the judgment of the court. The application for patents is denied, and the case will be considered closed. The papers are herewith transmitted.

Very respectfully,

C. SCHURZ, Secretary.

To the COMMISSIONER OF THE GENERAL LAND OFFICE.

In rendering the above decision, the Hon. Secretary was simply mak ing his own ruling conform to the law as expounded by the supreme court.

In 1881, in the case of H. A. Pratt v. H. F. Crane (58 Cal., 533) the supreme court of the State of California, upon the authority of said case of Huff v. Doyle and in accordance with the above quoted ruling of this Department, sustained the title of said defendant Crane to that portion of said section 24, which is now claimed by Pratt, and adjudged said claim of Pratt to be invalid. And at the ensuing term of the same supreme court, the same land to which John Carr is now seeking to es tablish a title was adjudged to be the property of said H. F. Crane, who at that time held and still holds adversely to the claim of said Carr. See Carr v. Crane, (59 Cal., 302).

So that the title which the Secretary is now asked to overturn rests upon no less a foundation than the concurring judgment of a former Secretary of the Interior, the judgment of the supreme court of the State of California, and the judgment of the supreme court of the United States.

The re-instatement of said canceled entries, not only requires a power in one Secretary upon the showing above indicated to annul the longstanding and long-acquiesced in adjudications of his predecessors, but it requires, as already suggested, a power to set aside the most solemn adjudications of our highest judicial tribunals, both State and Federal. Inasmuch as I know of no law to warrant any such an extraordinary stretch of power by the Secretary, I am forced to the conclusion that the said application should be denied.

It seems, however, that in anticipation of the foregoing conclusion, the attorneys for applicants have suggested that, in the event of the Secretary's refusal to order a re-instatement of the canceled entries as

prayed for by them, he recommend the Department of Justice to insti. tute suits to annul the patents under which the present owners of said land derive their title. In order for the Secretary to make such a recommendation it will be necessary for him not only to adjudge erroneous the entire series of adjudications just referred to, but to over-ride and to ask the court to over-ride in toto the whole doctrine of res judicata, and thus establish a precedent, which, if acted upon and generally followed, would tend to make a mockery of justice, and to destroy all faith in the stability of property titles, whether resting upon Departmental decisions or upon the solemn adjudications of our highest courts, both State and Federal. It therefore seems clear to my mind that such a recommendation as that asked for should be denied. All of which is respectfully submitted.

DECISION.

Secretary Lamar to Commissioner Sparks.

I concur in the foregoing opinion, and the motion for an order to vacate the orders of cancellation of the cash entries therein referred to; to reinstate said entries; and for the issuance of patents for the lands covered thereby, is hereby denied; as well as the alternate motion that the Department of Justice be requested to cause the institution of suits to vacate said patents.

RIGHT OF PRE-EMPTION-DECLARATORY STATEMENT.

FIDELER v. KURTH.

The right of a pre-emption settler, who did not file within the statutory period, is not defeated by the entry of an intervening homesteader who has failed to comply with the law.

Secretary Lamar to Commissioner Sparks, October 12, 1886.

On July 1, 1879, Charles Kurth made homestead entry for the NE. 1 of Sec. 14, T. 102, R. 55, Yankton, now Mitchell, Dakota. On Febru ary 11, 1882, Peter Fideler filed declaratory statement for the same tract, alleging settlement June 20, 1879. On March 20, 1882, he gave notice of his intention to offer proof, and on April 24th, the day set for making said proof, Kurth filed protest, on the ground that Fideler had not made settlement on the date alleged, and also applied to purchase under the act of June 15, 1880. Final proof was offered by Fideler, and additional testimony submitted by both parties. The local officers, on July 26, 1882, held that Kurth had sold all his right in the premises to Fideler and recommended that the "proof of pre-emption claimant be received."

Your office, by letter of May 7, 1883, reversed said decision, allowed Kurth to purchase under the act of June 15, 1880, and held for cancellation the declaratory statement of Fideler. The cash entry of Kurth was then made of record. On appeal this Department, by letter of July 25, 1884, ordered a new hearing, with a view of ascertaining the exact date of Fideler's settlement, and the truth of the allegation that Kurth had sold his rights to Fideler.

The second hearing was had, and on February 12, 1885, the local officers held that Fideler settled between June 23 and July 1, 1879, and further that, "It is evident that Kurth's present claim is an afterthought. He agreed to sell and did sell his interest in the premises to Fideler, and received his price therefor." They again recommended that judgment be rendered for Fideler, and that Kurth's "filing" be canceled. On appeal your office, by letter of May 7, 1885, affirmed that decision, held for cancellation the cash entry of Kurth, and allowed Fideler to enter the tract upon the proof already made, and further found that Kurth has never made settlement upon the tract, established residence, or attempted to comply with the requirements of the homestead law. In these conclusions of your office I concur, and also in the finding of the local officers that Fideler settled about June 23, 1879. In that view of the case it became necessary for him to file his declaratory statement by September 23d following, or take the risk of forfeiting his claim in favor of the next settler in order of time who had complied with the law. (United States R. S., Sec. 2265.) He failed to so file until February 11, 1882, and in the meantime the homestead entry of Kurth was made of record. After the time allowed by law to Fideler to put his claim of record, Kurth applied to purchase under the act of June 15, 1880, his application was allowed, and he claims that Fideler's right to the tract is now at an end.

In the case of Freise v. Hobson (4 L. D., 580), it was held by this Department that the right of purchase under said act was suspended from the initiation of a contest until the final disposition thereof. The proceedings in the case at bar were in the nature of a contest, inasmuch as they must determine the priority of right to the land, as between the parties thereto. I am therefore of the opinion that the reason for the rule announced in said case applies with equal force to the case at bar. Consequently, the application of Kurth should have been suspended to await the final disposition of the questions involved. It being now determined that Fideler had the prior right, the application of Kurth is rejected. The homestead entry not being followed by resi dence will be canceled. Said decision is affirmed, for the reasons herein stated.

FEES OF SURVEYORS-GENERAL.

CIRCULAR.

Commissioner Sparks to surveyors-general, October 13, 1886.

Surveyors-general will be permitted to furnish certified copies of fieldnotes, plats, and other papers from their records and to charge therefor such fees as are now allowed by law to registers and receivers, or to public officials in the state or territory for like services, not exceeding the fees prescribed for registers and receivers, and provided also, that such services are not performed in office hours by clerks paid by the United States, nor the government stationery or supplies used. Approved:

L. Q. C. LAMAR,

Secretary.

MINING CLAIM-MILL SITE.

CHARLES LENNIG.

Both a water right and mill site claim may be located on the same tract of land. Section 2337, R. S., contemplates the actual use, or occupation by improvements or otherwise, for mining or milling purposes, of the land; and it is not satisfied by the use for said purposes of the water from springs situated thereon.

Secretary Lamar to Commissioner Sparks, October 14, 1886.

I have considered the case of Charles Lennig, applicant for patent for the Eureka Mill Site, mineral entry No. 71, Prescott land district, Arizona, on appeal from your decision of February 18, 1886, holding said entry for cancellation.

The appeal purports to have been taken for the United Verde Copper Company, who show no interest whatever in the claim; but since your said decision appears to have recognized them as probably interested, I will waive this informality and treat the appeal as that of Lennig, the claimant of record.

It appears from the record before me that said mill site claim was filed February 18, 1882, in connection with a claim for the Eureka Lode, new mineral entry No. 70, under Section 2337 of the Revised Statutes. It further appears, and your said decision finds, that said mill site claim is situated about a mile from said lode claim, and is variously and commonly known as "Walnut Springs," "Ruffner's Springs," "Eureka Water Site," and "Eureka Mill Site;" that it contains the only springs within six miles of the Eureka lode, and was purchased by Lennig "for the purpose of obtaining the requisite water for mining purposes on the Eureka mine," and is described in the deed of conveyance as "that certain water right and water privilege;" and that the only evidence of