the public land fraudulently, the entry will be canceled, even though fraud is not specifically charged by the contestant. Lec v. Johnson (116 U. S., 48).

Since it has been decided by the local land officers, your office, and the Department, that the entryman has acted in good faith, and there is no sufficient reason shown for changing that ruling upon that point, there does not seem to be any valid objection to allowing Schang to make a supplemental affidavit before the proper officer curing the defect above indicated. You will therefore direct the local land officers to advise Mr. Schang that he will be allowed thirty days from receipt of notice hereof within which to file said supplemental affidavit. Said departmental decision is modified accordingly.

RAILROAD GRANT SELECTION-FINAL PROOF.

NYMAN v. ST. PAUL M. AND M. RY. Co.

Selection of a tract within the granted limits will not confer title if the land was not granted; but while the selection remains of record entry of the land should not be allowed.

When final proof is offered for land covered by an adverse selection, the party making such selection is entitled to special citation.

Acting Secretary Muldrow to Commissioner Sparks, February 7, 1887.

I have considered the case of Charles Nyman v. the Saint Paul, Minneapolis and Manitoba Railway Company, transmitted by your office letter, dated December 10, 1885, in accordance with departmental instructions, dated November 23, 1885.

The record shows that said tract is within the granted limits of said company, and that your office, on February 5, 1885, rejected its claim to the NE. of Sec. 3, T. 117 N., R. 29 W., in the Benson land district, State of Minnesota, for the reason that said tract was covered by homestead entry No. 1111 at the date when the right of the State attached to the odd numbered sections granted, to wit, on March 3, 1865. Fuller made said entry on November 18, 1864, which remained of record until May 1, 1872. On June 5, 1873, Nyman offered his pre-emption declaratory statement for the S. of said quarter section, alleging settlement thereon March 14, same year, and Peter Asp offered to file his pre-emption declaratory statement for the N. of said quarter section, both of which were rejected by the local land officers because of conflict with the right of said company, and the parties duly appealed from said action.

An inspection of the records of your office shows that on May 26, 1880, said company selected said NE. §--which your office seems to have overlooked-and the selection was posted on August next ensuing. On November 15, 1883, Nyman made homestead entry No. 11,538 of the N.

and Asp made homestead entry No. 11,539 of the S. of said section, each filing an affidavit alleging that a mistake had been made in the description of the land embraced in his said declaratory statement and that he was actually residing upon the land which he sought to enter. On December 18, 1883, Nyman gave due notice of his intention to make final proof before the proper officers on January 31, 1884, and on the date last named he offered bis final proof, showing continuous residence on the land since November, 1873. The proof was accepted, and on March 15, 1884, final certificate No. 6135 was issued thereon. Your office held that since the railroad company had failed to appear at the time and place mentioned in the published notice for making final proof and contest Nyman's right to make said entry, it thereby waived all right to appear afterwards and assert a claim to the land adverse to him. Said decision is based upon the departmental decision in the case of the Atlantic and Pacific Railroad Company v. Andrew J. Forrester (1 L. D., 431).

It is strenuously insisted by the company that said decision of your office is erroneous in holding that Fuller's said entry excepted the land covered thereby from said grant, for the reason that the papers show that Fuller, at the time he made said entry, was in the military service of the United States, and it does not appear that his family or some member of his family was at the time residing on the land; and (2) that, as the record shows that said company had made a selection of said quarter section, which was posted upon the records of your office, it was error to hold that the company waived any right by not appearing at the time and place mentioned in the published notice, for the reason that there was no special notice served upon the company to appear at that time and contest Nyman's right to the land.

The record shows several irregularities in the proceedings which should not have been allowed. If, however, it shall appear that said section was excepted from the grant to said company, these irregularities are but errors without injury so far as its rights are concerned.

The contention that Fuller's entry, being intact at the date when the rights of the company attached, did not except the land covered thereby from the grant, cannot be maintained. It has been repeatedly ruled by this Department adversely to the claim of the company and may now be considered well settled. Hastings & Dakota Railway Company v. Graham (1 L. D., 380); St. Paul M. & M. Ry. Co. v. Forseth (3 L. D., 446); same company v. Leech (ibid., 506); Northern Pacific R. R. Co. v. Urquhart (4 L. D., 421).

Again, the selection of said company should not have been allowed, on account of the pending appeals from the decision of the local land officers. St. Paul M. & M. Ry. Co. v. Paulsen (4 L. D., 232).

The selection could give the company no right to land within its granted limits which had never been granted. When, however, said selection had been allowed and posted upon the records of your office,

the homestead entry should not have been allowed until the selection had been canceled.

The Forrester case (supra) is not authority for the case at bar. Where there is a selection of a tract of land of record and a homesteader ap plies to make proof for the same tract, the party making such selection should be specially cited to appear at the time and place where the final proof is to be offered. Since, however, in this case it appears that said tract was excepted from the grant for the benefit of said company, said selection should be canceled and the entry passed to patent. The decision appealed from is modified accordingly.

TIMBER CULTURE CONTEST-NOTICE.

RABUCK v. CASS.

The heirs of a deceased entryman are entitled to notice in case of contest against the entry, and the service of such notice must be affirmatively shown by the contest

ant.

Acting Secretary Muldrow to Commissioner Sparks, February 7, 1887.

On January 6, 1882, William S. Rabuck initiated contest against the timber culture entry of Benjamin F. Cass for the SE. of Sec. 6, T. 111 N., R. 61 W., Huron, Dakota, alleging failure to comply with the law. Hearing was set for October 3d following, and on default of contestant the case was dismissed. Afterwards, by letter of April 7, 1884, on petition of Rabuck your office re-instated said contest. At the date of the re-instatement of the contest, claimant was dead, and accordingly Rabuck filed a supplemental affidavit, dated April 16, 1884, alleging that claimant and his heirs had failed to comply with the law. Notice issued, and service was had by "showing" the writ to the widow of claimant, and leaving a copy of the same at her residence. Testimony on the part of contestant was taken, and the local officers recommended the cancellation of the entry. No appearance was made on behalf of the defense. Your office, by letter of April 9, 1885, reversed the action of the local officers and dismissed the contest. Rabuck appealed.

It is clear that the service of notice was not properly made. Upon the death of the entryman, the law casts upon his heirs the burden of showing compliance with the law. As a consequence: they are entitled to notice of a contest based on want of compliance with the law, and the service of such notice must be affirmatively shown by the contestant. The service is therefore set aside together with all subsequent proceedings. It does not seem necessary however to dismiss the contest, as the error can be cured by a new service, in accordance with law and the rules of practice.

Said decision is accordingly modified.

FINAL PROOF-POSTING NOTICE.

SOUTHERN PACIFIC R. R. Co. v. PATRICK BRADY.

Posting notice in the office of the register, of intention to make final proof is an essential, without which such proof cannot be accepted.

Acting Secretary Muldrow to Commissioner Sparks, February 7, 1887.

་

I have considered the case of the Southern Pacific Railroad Company r. Patrick Brady, as presented by the appeal of the company from the decision of your office, dated June 16, 1885, approving for patent Brady's homestead entry No. 323, of the SE. of the NE. 4, and the NE. of the SE. of Sec. 13, T. 26 S., R. 33 E., and Lot 3 of SW. and NE. † of the SW. of Sec. 18, T. 26 S., R. 34 E., M. D. M., made October 28, 1880, upon which final certificate No. 136 issued April 2, 1883, at the Bodie land office, California, and also rejecting the claim of said company to the tracts in the odd numbered section covered by said entry.

The claim of said company was rejected, for the reason that although the land in question is within the indemnity limits of the withdrawal for the benefit of said company under its grant made by act of Congress approved July 27, 1866 (14 Stat., 292), which became effective on May 21, 1867, yet the company has made no selection of said tracts, and did not appear at the date and place mentioned in the published notice of Brady's intention to make final proof, and contest his right to enter said tracts.

It is insisted by the company that there is no evidence of the posting of the notice of intention to make final proof by Brady in the office of the register as required by law and the regulations of this Department, and that your office has no power to waive a plain requirement of law. But your office held that as the notice of intention was duly published, the presumption must be that the register has done his duty, and since it is "now impossible to obtain a certificate to that effect, owing to a change of officers," the filing of said certificate will be waived.

It is quite clear that if said notice was not posted in the office of the register as required by law, then there was no legal notice given and the company was not bound to appear at the time and place designated for making said final proof. It is not shown that the former register is dead, or that his certificate cannot be procured. The entryman should be called upon to furnish the proper certificate of the register, or furnish satisfactory evidence that the said notice was duly posted, and in case he fails to do so, he should be required to make new proof as required by law.

The decision appealed from is modified accordingly.

ATTORNEYS-RECORDS OF THE LAND DEPARTMENT.

W. H. LAMAR.

An attorney in good standing before the Land Department, prior to filing his appearance in a case, but preliminary thereto, is entitled to inspect the record and all papers upon which action has been taken affecting the rights of the parties. Acting Secretary Muldrow to Commissioner Sparks, February 8, 1887.

On November 5, 1886, W. H. Lamar, esq., filed in this Department his petition, supported by affidavit, in which he avers that he is an attorney practicing before the courts of this District and the Executive Departments; that on or about the fourth day of November, 1886, he received from W. W. Leek, of Plum Creek, Dawson County, Nebraska, a letter requesting him to examine the record in the matter of the homestead entry of George Tull, number 16572, Grand Island, Nebraska, and to fix the fee for which he would take charge of and prosecute his case; that on said 4th day of November, 1886, he made personal application to you for permission to examine said record, for the purpose of determining whether he would accept a retainer in said case, and if so the amount he would charge; that permission was refused, on the ground that it would be contrary to the rules of the General Land Office to allow him to examine said record. Mr. Lamar alleges that said action of your office was erroneous, because,

First: "That there is no rule of the General Land Office prohibiting such examination of records."

Second: "That it is incompetent for the Commissioner to make a rule which would prohibit such examination."

Third: "That it is the imperative duty of the Commissioner to allow such examination of records for the purpose stated in this case."

On November 6th last, said petition was referred to your office by this Department "for early report," and on January 13, 1887, this Department received the report of your office upon said petition, which is dated December 4, 1886.

By your office letter, dated October 25, 1886, Mr. Lamar was advised that if he desired to appear for said entryman he would have to file the entryman's written authority for such appearance, citing as authority for said ruling the circular approved July 31, 1885 (4 L. D., 503) and the case of McIntyre (4 L. D., 527). Said circular and decision were considered by this Department on January 6, 1887, in the ease of F. M. Heaton (5 L. D., 340), referred to in your said report, and it was held that said circular was not intended to and did not apply to attorneys practicing before your office and this Department; that the Department, on February 1, 1886 (5 L. D. 337) prescribed the conditions upon which attorneys-at-law and those not attorneys-at-law may be admitted to practice before this Department, which regulations require "them to furnish satisfactory evidence that they are of good moral character and in good repute, and possess the