be required to do any breaking until his application to amend was decided." If this be true, the receiver misinformed him; for local officers have no authority to authorize the violation of the laws of the United States; nor can such violation be excused on the score of misinformation by them. Pending the decision of your office on an application to amend, the claimant should comply with the law. To hold differently would enable a party who desired to violate or evade the provisions of the statute to apply, under any pretext, to amend, and then postpone breaking,,planting or cultivation until such time as your office should reach and act upon the application, and notify him of the result. For the reasons herein given, I reverse the decision of your office, and direct that Milward's entry be canceled. PRE-EMPTION-RESIDENCE; EVIDENCE. KNOX v. BASSETT. Cultivation and improvement cannot be accepted as the equivalent of residence. Evidence is not admissible as to acts performed on the land after the initiation of the contest. Acting Secretary Muldrow to Commissioner Sparks, January 11, 1887. I herewith transmit the papers accompanying a motion by the defendant in the case of Knox v. Bassett, involving pre-emption cash entry No. 3707, Huron, Dakota, for a review of departmental decision of August 17th last adverse to him. Said motion and the argument in support of it I have carefully considered, and I fail to find any good reason for granting it. The assignments of error are three, which on examination are reduced to one, to wit, error in holding that the claimant did not establish a residence on the land. Said finding is a conclusion of fact, upon the contradictory evidence produced at the hearing, and was made in conformity to a wellknown ruling in relation to the intention of the claimant in going upon the land, which appears in several cases cited in the decision. The motion before me alleges generally that the decision is "contrary to law," but it fails to point out any statute or ruling which was overlooked. In fact, it quotes from the case of Grimshaw v. Taylor (4 L. D., 330) the ruling above mentioned, as properly governing the case. There is therefore no error of law to be considered. Nor is there alleged the omission of any controlling fact, which would amount to an error of fact. The motion, then, rests wholly on the allegation that said finding is "contrary to the evidence." But there is no rule of practice better settled than that enforced in the late case of Long v. Knotts (5 L. D., 150), to wit, that a review will not be granted on the allegation that a decision is against the evidence when the evidence is contradictory. Accompanying this motion is an affidavit by Bassett alleging that "since the hearing" he has done certain things on the claim, to wit, breaking and planting an additional quantity of land; and he asks that said allegations be accepted "as supplemental to the proof" in this case, and "as further evidence of his good faith." This request cannot be granted; for, in the first place, proof of cultivation is in no sense evidence of residence; in the second place, an ex-parte affidavit cannot be admitted to an equality with the testimony of witnesses subjected to cross-examination; and, thirdly, acts done on the land after initiation of contest are incompetent as evidence in the case (Donly v. Spring, 4 L. D., 542). It is manifest that a contest raises an issue as to the contestee's past compliance with the law in good faith; and to admit as evidence his future acts on the land would be incongruous and absurd. Furthermore, it would invite the contestee to manufacture evidence in his own favor, to the great prejudice of an impartial judg ment on the actual issue. In the case at bar, the consideration of these allegations in a motion for review would be an equally wide departure from correct principle; because they cover facts arising after the termi nation of the trial, when both parties had had their day in court and had rested their cases, and when, by the settled rules of law and of Land Department practice (Rule 72), the rights of the respective contestants to the land are to be determined from the evidence submitted. For the foregoing reasons the motion for review must be denied. RAILROAD GRANT-STATE SELECTION. WINONA & ST. PETER R. R. Co. The informal notation of the words "set aside," opposite the description of a tract of land in an approved list of indemnity school selections, will not be treated as a rejection or cancellation of said selection. Acting Secretary Muldrow to Commissioner Sparks, January 12, 1887. On April 22, 1885, E. Peter Bertrand made application to be allowed to enter, under the timber culture laws, the NE. of Sec. 33, T. 109 N., R. 32 W., Tracy land district, Minnesota. His application was rejected, because said tract had been "selected and approved to the State of Minnesota as indemnity school land;" and also because the tract was within the six miles granted limits of the Winona and St. Peter Railroad Company, under act of March 3, 1857 (11 Stat., 195). From this rejection Bertrand appealed, and on June 15, 1885, you approved the action of the local officers. You state that the tract in question was "selected by the State May 14, 1863, in lieu of school lands lost in T. 108 N., R. 24 W., and the se lection is still intact upon the official records unadjusted.” The map of definite location of the line of the railroad opposite to said tract was filed August 3, 1864, at which time its rights attached, and the land was selected by the company May 23, 1872; and this selection also remains upon the records intact. In view of this state of facts, in your said decision of June 15, 1885, it is held that "The school selection above mentioned subsisting at the date of the attachment of the railroad rights excepted the land embraced from the grant, and it is a bar to any other selection, filing or entry." And thereupon you held for cancellation the railroad selection and approved the action of the local officers in rejecting the application of Bertrand. From this action the company alone appealed, and it is insisted in its behalf that there was error in holding that said State selection was subsisting at the date of the attachment of the company's rights. It is conceded that the State did make selection of the tract as stated on May 14, 1863, but it is asserted that on July 21, 1863, when the Secretary of the Interior approved the list containing said selection, he "set aside"--that is, rejected-the selection of said NE. 1. An examination of the records in your office shows that opposite to the said NE. 4, on the list approved by the Secretary, are written the words "set aside." By whom this notation was made, or for what purpose, is not apparent. No formal decision has ever been made canceling said selection, nor any action taken to notify the State that the same was "set aside;" and no other lands have been awarded to it in lieu of the tract thus selected. To claim that a selection of proper lands, formally and regularly made, the approval of which has thus informally been suspended, or "set aside," without known cause or proper notice given, is a rejection and cancellation of the same to the conclusion of the State's right thereto, is a contention not based either upon justice or technical law, and will not be further considered. I therefore concur with you that said State selection, pending at the date of attachment of the railroad grant, excepted the tract in question from the operation of said grant, and I affirm your decision in said case. HOMESTEAD-SOLDIERS' DECLARATORY STATEMENT. To secure the right initiated by a soldier's declaratory statement, entry, settlement and improvement must follow the filing within six months. Acting Secretary Muldrow to Commissioner Sparks, January 12, 1887. I have considered the case of John II. Snyder v. Robert E. Ellison, involving the NE. of Sec. 19, T. 110 N., R. 59 W., Huron, Dakota, on appeal by Ellison from your office decision of December 11, 1884. On May 17, 1881, Ellison filed pre-emption declaratory statement on the SE. of the said section and town, claiming settlement four days 2278 DEC -23 prior. On September 4, 1882, he also filed soldier's declaratory statement for the tract in controversy. Afterwards on December 14, 1882, he made final proof and cash entry on his pre-emption claim. On January 15, 1883, Snyder made homestead entry of the tract in controversy, and subsequently on February 28, 1883, Ellison also made homestead entry on same tract. There seems to be some question as to how the hearing in the present controversy was brought about. The register and receiver, in their de cision, state that it was "in the matter of the protest of John H. Snyder against the final proof" of Ellison. The correctness of this statement the attorney for Ellison denies and asserts that "said hearing was the result of an affidavit filed by Snyder, but which affidavit did not set out grounds sufficient to warrant a hearing." Whilst making this statement the attorney waives any supposed irregularities in this respect, and submits the case upon the law and facts, as though contest or protest had been regularly made. Neither the said final proof or affidavit alluded to is to be found in the record. But on this waiver of errors the case will be considered as though regularly brought to trial. The hearing was had before the local officers at Huron on July 29, 1883, at which both parties were present in person and by attorneys. After considering the testimony then submitted, the register and receiver recommended the cancellation of the homestead entry of Ellison, which action was approved by your office. The decision of the register and receiver and of your office both hold that the soldier's declaratory statement of Ellison filed whilst he held and was residing upon another tract of land, under a pre-emption claim, on which he had not then made, but did afterwards make, final proof, was illegal in its inception, and the homestead entry based thereon must fall, in view of the intervening homestead entry of Snyder. It is insisted by Ellison, in reply to this, that conceding his disability to hold the premises in controversy by his soldier's declaratory statement whilst living on another tract of land under a pre-emption claim, yet when on December 4, 1882, he made final proof on the latter and received final certificate therefor, his said disability was removed, and with it all bar to the consummation of a homestead entry based on his said soldier's declaratory statement-no intervening right having, at that time, attached to said tract. To sustain this position, Mann v. Huk (3 L. D., 452) and Martinson v. Rhude (500, ib.) and cases therein referred to, are cited. Had Ellison commenced his "settlement and improvement" upon the tract in controversy before the filing of the intervening claim of Snyder, then his case would have come within the rulings of the cases quoted, and the illegality in his filing, which is conceded by his counsel to have existed, would have been cured. But he did not do this. For, though he made homestead entry within six months after the date of his filing, he did not "commence his settlement and improvement" until after the expiration of more than six months from said date. Consequently it is unnecessary at this time to determine whether it was incompetent for him to file a soldier's declaratory statement whilst holding another tract under a pre-emption declaratory statement; and whether, if such incompetency existed, it was removed, upon making final proof and cash entry on said pre-emption claim; and his right under said soldier's declaratory statement thereafter was as good and complete as though said incompetency had never existed. It is true that in regard to this question of settlement Ellison claims that he was prevented from making it sooner, because he could not get lumber to build with in the neighborhood; that when this fact was ascertained, he purchased a shanty near by but was unable to haul it across an intervening creek, because of the ice and high water, until March 17, 1883, and established his residence therein two days later. A careful examination and consideration of the testimony fails to bear out these statements. The effort to obtain lumber consisted of inquiring in the latter part of February-for a particular kind of only one firm of dealers, though others were equally accessible. His own witnesses prove that, whilst the creek, spoken of, was at times impassable for teams during February and March, at other times it was easily passable. There is also testimony to show that on another trial of some kind before a justice of the peace, Ellison whilst on oath stated that he commenced his residence on this tract on April 9, not March. Whilst admitting he so swore, he says that he was mistaken at that time. But it is observed that whilst he says he commenced his residence upon the tract on March 19, 1883, not one of his three witnesses or either of Snyder's saw him on the land before some time in June, 1883. Indeed, the testimony satisfies me that from the time he made final proof on December 4, 1882, up to within a short time before contest if he had any home it was at the house of William N. Rogers, one of his witnesses. Indeed, he says himself that he had no fixed home; that he was engaged in an itinerant business, with advertised engage. ments in different localities away from the land, six days out of the week; and that his time was equally divided between the towns of Huron and Cavour-occasionally stopping with Rogers. When asked to state how much time he lived on the land, his reply was: "I have never kept track of the number of nights. I have been there as much as I could get there. My business has been away" (p. 51, Rec.). The improvements claimed are the shanty, thirteen by fourteen, and an addition ten by ten for a stable, and five acres of breaking. All the testimony on his side as to residence and improvement is of the most meagre and unsatisfactory character; and on the whole evidence I am satisfied that Ellison never established residence upon said tract prior to the beginning of the present controversy. On the other hand, the testimony of Snyder shows that on the opening of the spring he made settlement and commenced improvement upon the tract, breaking and culti |