reasonable and because it subserves the public interests and is for the good of the practice, that certiorari will not lie where the appeal was properly denied because not filed in time. Chicago, Milwaukee & St. Paul R. R. Co. (2 B. L. P., 324). And further it has been lately ruled here that where the rules of practice are not in conflict with the law, and have prescribed a plain and adequate course of procedure, they are to be followed; that in such cases there is no occasion for invoking the supervisory power of the Secretary of the Interior; and that it will not then be exercised. Stevens v. Robinson (5 L. D., 111). Said application is therefore denied.

IOWA SWAMP LANDS

HARDIN COUNTY.

In adjusting claims for swamp indemnity, the Commissioner of the General Land Office is authorized to order re-examinations in the field of the land for which indemnity is claimed.

Secretary Lamar to Commissioner Sparks, November 15, 1886.

On the 10th of September last, Hon. D. B. Henderson, of Iowa, addressed to this Department a communication, inclosing letters from J. Q. Rathbone, Auditor of Hardin County, Iowa, and Isaac R. Hitt, agent, respectively, relative to certain claims for swamp land indemnity under the provisions of acts of Congress of September 28, 1850 (9 Stat., 519), and March 2, 1855 (10 Stat., 634). These letters were called out by a communication, dated August 23, 1886, from your office to Mr. Rathbone, in which he was advised that certain lands on account of which indemnity is claimed "must be re-examined by special agent before the account can be satisfactorily made up, which examination will be made at the earliest practicable day." The communications from the parties herein mentioned constitute a protest against the pro posed action of your office as indicated in the quotation above made from your office letter of the 23d of August last, and ask of me a review and reversal of that decision on the ground, substantially, that the law has been complied with in the examination and report already made, and that there is no warrant of law in forcing a settlement upon the basis of a re-examination. The matter was referred to your office for report, and in response to the reference I have before me your report, dated October 20th ultimo.

Said report, after reference to the provisions of the act of 1850 granting swamp lands, and to the act of 1855 providing for indemnity for lands granted by the act of 1850, but subsequently sold or otherwise disposed of, proceeds to discuss the claim covered by this protest. It

states that the report of the special agent of your office, who made an examination in the field of the lands for which indemnity is claimed, together with the testimony taken in his presence as to the character of the lands, and submitted by the county of Hardin, the grantee of the State of Iowa, reached your office in March last. It further states that "It was found that a large percentage of the lands is shown by the field notes not to be swamp or overflowed within the true intent and meaning' of the grant of 1855, and in view of this it was deemed best for the interests of the government to have the lands covered by all pending claims of this class re-examined in the field by new agents." You state that where re-examinations have been made the result has been a great saving to the government. The contention of protestants that there is no authority of law for ordering a re-examination in these cases can not, in my judgment, be maintained. The evidence already presented as to the claim under consideration certainly does not bind your office or the Department to a final adjudication in case said evidence is not deemed satisfactory or sufficient for that purpose. To hold that it does would be contrary to reason and would, in effect, lead to the final adjudication, certification and passing of rights and titles in violation of the law, which, as to claims of the class here in question, requires "due proof before the Commissioner of the General Land Of fice." Who is to be the judge as to whether the evidence constitutes due proof? Manifestly the Commissioner of the General Land Office, who is to pass upon the proof, and whose action thereon is subject to approval by the Secretary of the Interior.

The Department recently had before it in the case of certain swamp. land claims in the State of Oregon (5 L. D., 31), questions kindred to that here involved. In that case I took occasion to use the following language relative to lands granted by the swamp-land act: "While the Department has adopted general methods for designating such lands, the Secretary is not restricted to any plan, but may adopt and employ such agencies as may in his judgment satisfactorily determine what lands are of the character granted by the act." If the method of ascertaining the character of the land may be changed at any time in order to reach a satisfactory determination, and thus meet the requirements of the law, I see no reason why a method in vogue may not be employed to its fullest extent, even to further examination in the field, as proposed in this case, if that is deemed necessary. As stated by you, the law does not limit the scope of the inquiry; neither does it prescribe the manner in which it shall be prosecuted.

Concurring in the views expressed in your report, and finding nothing which would justify my interference with your discretion in the matter, I must decline to accede to the request contained in the protest before me.

HOMESTEAD CONTEST-ABANDONMENT.

HOUF v. GILBERT.

Abandonment is not established by evidence showing frequent and protracted absences following entry, where the entryman had, prior to entry, resided upon and improved the land for a term of six years under contract with a railroad company for whose benefit the land was then withdrawn.

Secretary Lamar to Commissioner Sparks, November 15, 1886.

I have considered the case of Milton Houf v. John R. Gilbert, as presented by the appeal of the latter from the decision of your office, dated May 21, 1885, holding for cancellation his homestead entry No. 2213 of the SW. of Sec. 21, T. 6 S., R. 8 W., made August 1, 1883, at the Helena land office, Montana Territory.

The record shows that said tract was within the limits of the withdrawal for the benefit of the Northern Pacific Railroad Company, upon the filing of its map of general route April 22, 1872, that Gilbert settled upon said tract in 1876, made valuable improvements upon the same, and continued to reside thereon with his family until July, 1882, under a contract of purchase from said company. On August 1, 1883, said land was restored to the public domain, and on that day said Gilbert made said homestead entry, his affidavit having been executed before an officer of the county in which said tract is situated.

On March 15, 1884, Houf filed his affidavit of contest against said entry, alleging that said Gilbert had wholly abandoned said tract; that he has not resided thereon for more than six months since making said entry, and that Gilbert has not resided on said land with his family since he made his homestead entry on August 1, 1883. On March 20, 1884, notice issued, summoning said Gilbert to appear at the local land office on April 30th ensuing, and answer the charge "that he has wholly abandoned said land for more than six months last past." The testimony was taken before an officer in the county where the land was situated, and that of the claimant tends to show that said Gilbert settled upon said land in 1876, and made improvements of the value of more than two thousand dollars; that he lived upon the land continuously with his family from 1876 until 1882; that his leg was broken in 1880 and he was unable to do manual labor in consequence thereof; that in 1882 he sought and obtained employment as superintendent of the Helena Mining and Reduction Company, some seventy miles away; that he removed his family to the place where he was engaged as a superintendent; that his wife was sick and unable to come back to said land until April, 1884, and that the claimant was on the land at the time of making said entry, and that his absence was only temporary. The testimony of contestant tends to prove that said Gilbert has not resided upon said land with his family since the date of his entry and prior to the initiation of the contest.

Upon the evidence submitted the local land officers held that it was not competent to consider the acts done by the claimant on said tract prior to the date of said entry, for the reason that prior to that time he could not acquire any right to said tract as against the United States; that since the date of his entry Gilbert has not resided upon said tract, and that his entry should be canceled. On appeal, your office concurred with the opinion of the local land officers that the acts of the entryman prior to the date of the entry ought not to be considered; that the evidence showed that the entryman had not acted in good faith, and that his said entry should be held for cancellation.

It is insisted by the appellant that said decision is erroneous in holding

(1) That the testimony relative to improvements made upon the tract during its withdrawal should not be considered as material;

(2) In holding that Gilbert did not act in good faith; and (3) In not dismissing said contest.

While it is true that the entryman could acquire no rights as against the United States by virtue of his acts done prior to the date of said entry yet it does not follow that upon a charge of abandonment, such acts showing residence and valuable improvement upon the land are not proper subjects of inquiry.

This Department held in the case of Geer v. Farrington (4 L. D., 410), that as between settlers upon tracts covered by an uncanceled entry priority of settlement may be properly considered. It has been repeatedly held by the courts and this Department that it is immaterial whether the settler purchases improvements already upon the land or caused the same to be made after settlement. Timmons v. Gleason (2 C. L L., 551); Pruitt v. Chadbourne (3 L. D., 100); Kurtz v. Holt (4 L. D., 56); Lansdale v. Daniels (10 Otto, 113).

It will be observed that Gilbert was not a trespasser upon said land prior to the withdrawal. Peterson v. Kitchen (2 C. L. L., 552). His valuable improvements were made while he had a contract of purchase with said company, he had lived with his family on the land continuously for a longer time than was necessary to acquire title if said tract had been relieved from the withdrawal, and at the date of the hearing his family was living upon the land.

It is strenuously insisted by counsel for the contestant that said Gilbert committed perjury when he made said homestead affidavit, for the reason that at that time his family was not living on the land. But it has been repeatedly held by the Department that residence is estab lished from the moment the settler goes upon the land with the intention in good faith of making his home there to the exclusion of one elsewhere. Humble v. McMurtrie (2 L. D., 161); Grimshaw v. Taylor (4 L. D., 330). If Gilbert was on the land when he made said affidavit, and had the bona fide intention of continuing his home there, then in contemplation of law his residence was on said tract, and no perjury would

be committed if his family was temporarily absent. It is shown by the affidavit of a physician and by other testimony that the wife of said Gilbert returned to the land as soon as she was able, and although the testimony shows that Gilbert went to the land only three or four times prior to the initiation of said contest, it does not sufficiently appear from a careful examination of the whole record that he in fact intended to or did abandon said tract.

It follows from the foregoing that said decision is erroneous and must be reversed.

TIMBER DEPREDATIONS-SETTLEMENT OF CLAIMS.

A claim of the government arising from timber depredations is for an unascertained amount which the Secretary of the Interior may properly find and determine, and effect settlement for with the trespasser by receiving payment in full. The amount of such a claim having been duly ascertained and fixed, there is no authority in the Department to compromise the same by receiving in payment therefor a less sum than the amount found to be due.

Secretary Lamar to the Secretary of the Treasury, November 15, 1886.

I am in receipt of a communication from the Solicitor of the Treasury of May 13, 1886, relating to the question of the authority of this Department to compromise and settle timber depredation cases, referring to the opinion of the Attorney General, submitted January 8, 1880, upon this subject.

In his communication (with reference to this opinion) the Solicitor of the Treasury says: "I am informed that since the date of this letter from the Attorney General, a copy of which was furnished your Department about the time it was received, all applications for compromise of claims in favor of the United States arising from trespasses have been considered and disposed of as provided for in Section 3469, R. S." (excepting certain cases therein referred to). Then referring to the regu lations issued by the Commissioner of the General Land Office, authorizing special agents to receive and consider propositions to settle claims in favor of the United States arising from trespass, where the same were not wilfully committed, says: "I know of no authority by which an executive officer can compromise and settle a claim in favor of the United States, except that conferred by Sections 295, 409, 3229 and 3469, Revised Statutes." He brings the subject to my attention with a view of securing some uniform action. To this end I submitted the communication to the Commissioner of the General Land Office for report, which is now before me, a copy of which I also transmit herewith.

The Commissioner of the General Land Office, doubting the authority of that office or of this Department to settle and compromise such cases, recommends that the practice heretofore followed of entertaining prop ositions in that office, and this Department far settlement of timber trespasses be discontinued.