The decision sought to be reviewed states-and the record coufirms the statement-that by the departmental decision, dated July 10, 1886 (L. & R., Vol. 57, p. 66), the action of your office, dated April 11, 1885, holding for cancellation Ward's said desert entry, was affirmed, and that the same was accordingly canceled upon your office records, and the local land officers were directed to note the same upon the records of their office.

It is further shown that Ward filed in the local land office on January 18, 1886, his relinquishment of the NW.; N. of SW. 1, and N. of SE. of said Sec. 8, which was transmitted to your office same V4 day. On January 20, 1886, Ward applied to enter the NW. of said section under the homestead laws, and at the same time to make timber culture entry of said N. of SE. and N. of SW. of same section, which applications were rejected by the local land officers, for the reason that contests were then pending against Ward's said desert entry. It further appears that on December 19, 1881, Thomas C. Kendall, Charles H. Larrabe, and John A. Dixon filed affidavits of contest against said desert land entry, alleging that Ward had wholly abandoned said tract and wholly failed to comply with the requirements of the act of Congress to provide for the sale of desert lands, approved March 3, 1877, and at the same time offered to file their soldiers' homestead declaratory statements for the land. Notice was given and a day set for the trial of the cause, at which the contestants appeared with their witnesses, but the proceedings were suspended, in accordance with instructions from your office, dated February 7, 1882, to await the result of legislation relative to desert entries, then pending in Congress.

Your office, on August 27, 1886, held that the relinquishment of Ward served to open the land embraced therein to settlement and entry, and that Ward's homestead and timber culture applications should have been allowed, and the local land officers were directed to allow the same upon payment of fees and commissions, subject, however, to the preference right of Kendall, Dixon and Larrabe, for the reason that said relinquishment was filed while their contests were pending, and because Kendall and Dixon had filed soldier's and sailor's declaratory statements, the former for the N. of the NE. and the N. of NW. 4, and the latter for the N. of the SE. and the N. of the SW. of said section.

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It appears that your office, on August 27, 1886-the same date of the decision in the case of Ward, supra-rendered a decision affirming the action of the local land officers rejecting Gray's application to make homestead entry of the N. of the SE. and the N. of the SW. said Sec. 8, for the reason that the land applied for was embraced in the timber culture application of said Ward, which was then pending before your office on appeal. Thereupon, on September 28, 1886, counsel for Gray filed in your office a motion for review of both decisions of August 27, 1886, which your office refused on December 18, 1886, for

the reason that Ward filed two appeals, dated October 27, 1886, and November 3, 1886, from the action of your office in said case. The record further shows that said Gray, on October 6, 1886, offered another homestead application for the same land, which was rejected by the local land officers, for the reason that the land applied for had been entered by said Dixon on September 6, 1886.

The only question passed upon by said departmental decision was as to the cancellation of Ward's said desert land entry, and no opinion was expressed upon the rights of the respective applicants.

It is a well settled rule of practice in this Department that the refusal of your office to review its decisions is not appealable, the party has his remedy by appeal from the decision sought to be reviewed. Pearson v. Bucklee (6 C. L. O. 4); Withee v. Martin (3 L. D., 539); White v. Doherty (Ibid., 551).

Rule of Practice 76 (4 L. D., 46) provides that "motions for rehear ing before registers and receivers, or for review and reconsideration of the decision of the Commissioner or Secretary, will be allowed in accordance with legal principles applicable to motions for new trials at law after due notice to the opposing party," and it is the general rule unless changed by statute that a motion for a new trial is an application to the discretion of the court, and that discretion ought to be exercised in such a manner as will best answer the ends of justice. If that discretion is exercised improperly and not in accordance with settled principles of law and equity, the action of the court may be corrected by certiorari or mandamus. Hilliard on New Trials (p. 15).

The record shows that your office on the same day. rendered two distinct and separate decisions, one against the interest of Ward and the other against the right of Gray, and it appears that neither Ward nor Gray can acquire any rights to the tracts claimed by them, unless the decision of your office is reversed, awarding the preference right of entry to Dixon of the N. of the SE. and N. of SW. 1 of said Sec. 8. Gray had the right of appeal from the decision denying his application to enter said tracts, but the refusal of your office to grant his motion for a review of said decisions is no reason why the motion to dismiss said appeal of Ward should be granted.

It is insisted that the case of Hawes et al. (supra) is not authority for the decision made by your office that the motion to review made by Gray could not be considered, because of the appeal filed by Ward. Where there are several parties to a suit pending in your office and a final decision has been rendered adverse to the rights of two or more of the parties to the suit, the filing of an appeal by one of the parties will not preclude the hearing of a motion for a review by another party to the record, asking a reconsideration of the decision so far as the same may affect his rights. But in the case at bar it does not appear that Gray was a party to the decision determining the rights of Ward and Dixon et al. He was a party to a decision rendered the same day by your of

fice, involving some of the tracts mentioned in the decision in the case of Ward v. Dixon et al., and from that decision he has the right of ap peal.

But since your office has refused to consider Gray's motion for review, it is in effect a denial of the same, and it can not make any difference that the refusal was for a wrong reason. From the foregoing it is ap parent that Gray claims an interest in a portion of the land involved in the decision appealed from by said Ward, and since all of the papers in the case are before this Department, Gray's application to be heard upon "the entire merits of the controversy" will be granted, and his counsel will be allowed to file a brief in his behalf within thirty days of notice hereof. The rights of all parties in interest will be duly considered when the case is reached in the regular order.

You will please advise the parties in interest of the action hereof upon said motion to dismiss.

PRE-EMPTION-SECOND FILING.

CLAYTON M. REED.

The filing and cash entry of one who removes from land of his own to settle on public land in the same State, exhausts his pre-emptive right, and he will not be allowed a second filing for the same land on the cancellation of his illegal entry.

Acting Secretary Muldrow to Commissioner Sparks, February 10, 1887.

By letter of May 29, 1885, your office held for cancellation the preemption cash entry of Clayton M. Reed for the W. of SW. 1, Sec. 26, 14 and S. of SE. 4, Sec. 27, T. 45 N., R. 9 W., Lake City, Colorado, for the reason that he had abandoned his residence on land of his own to settle on the public land in the same State.

Claimant filed motion for review, and on consideration thereof, your office, by letter of November 19, 1885, adhered to its former decision. Claimant appealed. It appears that in the summer of 1882 Reed made proof on a homestead claim in Colorado, and received final certificate therefor; that in December following he left said claim and took up his residence on the land above described, and that on July 9, 1883, he made proof, and payment. In February, 1883, he received patent for the land covered by his homestead claim. In May, 1885, he sold the latter tract to one Curt Von Hagen. It thus appears that he abandoned his residence on his own land to reside on the public land in the same State, and that he retained the ownership of his homestead claim during the full time of his residence on the pre-emp tion tract. Under these circumstances he cannot acquire any right of pre-emption. (Sec. 2260 R. S.) None of the cases cited by counsel for claimant present facts similar to those in this case, and I do not deem it necessary to discuss them further.

In his application for review, dated August 4, 1885, claimant alleges that since his said settlement he has continued to reside on said preemption claim, and has expended large sums of money for the improvement of the same, and asks in case of an adverse decision, that he be allowed to make a new pre-emption filing, dating his settlement from the date of the sale of his homestead, and that the money already paid be applied to the payment for said tract of land under the new entry. To grant this request is beyond the power of the Department. Reed must be charged with a knowledge of the law, and cannot be heard to plead ignorance of it. His attempt to acquire title to the tract in question was illegal throughout. In that attempt he has exhausted his preemption right. To allow him now to file again would in my opinion be a violation of law, and would allow him to take advantage of his own wrong.

Said decision is accordingly affirmed.

DESERT LAND ENTRY-DECLARATORY STATEMENT.

E. J. MEECHAM.

Under the desert land act but one declaration of intention to make entry is allowed. Acting Secretary Muldrow to Commissioner Sparks, February 10, 1887.

I am in receipt of your office letter of May 20, 1885, transmitting the application of counsel for E. J. Meecham, asking for a review and reconsideration of Mr. Secretary Teller's decision of January 8, 1885, rejecting the application of E. J. Meecham to amend his desert land entry covering the E. of the SW. of Sec. 4, T. 12, R. 13, Salt Lake district, Utah.

Said entry was made February 13, 1883. A few months later the homestead entry of another settler, on a tract adjoining Meecham's desert entry, was canceled, whereupon Meecham applied to amend his said desert entry so as to cover the tract thus released from homestead entry. The application alleges no error of law in my predecessor's decision, but pleads equity in Meecham's behalf, pointing out that if he were allowed to enter the tract as prayed for, his desert land entry would aggregate only one-half what the law authorizes. It appears that Meecham made or purchased the improvements on the tract he applies to enter, after its abandonment as a homestead, but prior to the cancellation of the homestead entry; and as no other claimant's rights are involved, and only the government is concerned, and as the refusal of his request will inflict considerable loss upon him with no benefit whatever to the government (which will receive from no other entryman any more than Meecham offers to pay for the tract), he urges that the matter be referred to the Board of Equitable Adjudication.

It may be conceded that in this particular case no harm would result to the government, and the applicant might be saved from hardship. Nevertheless, the rule of your office permitting but one declaration of intention to make entry under the desert land act, is one the advantages of which are so obvious, while the disadvantages inevitably resulting from its annulment would be so numerous and serious, that I do not think the Department would be justified in making an exception in favor of the applicant in this case. I therefore reaffirm said decision.

PRIVATE CLAIM-ACT OF JUNE 14, 1860.

SOUTHERN PAC. R. R. Co. v. BURLINGAME.

The date of a survey is determined by the date of its approval.

The publication and approval of a survey under the act of June 14, 1860, in the absence of an application to have it returned into court, has the same effect in law as the issue of patent.

The final determination of such survey is in the nature of a proceeding in rem and therefore conclusive as against claimants who fail to protect their interests.

A ruling of the Department as to the status of a tract of land, on the application of a pre-emptor, will not preclude the subsequent consideration of the same question on the application of the same person under another law.

A claim cannot be held as sub judice if before a tribunal or officer that has no authority or jurisdiction to adjudge the matter involved.

Acting Secretary Muldrow to Commissioner Sparks, February 14, 1887.

This case involves the NW. of SE. 1 Sec. 17, T. 3 S., R. 13 W., S. B. M., Los Angeles, California, and comes here on appeal by the Southern Pacific Railroad Company from the decision of your predecessor, rendered September 19, 1884, denying its right to the tract specified.

This land is within the primary limits of the grant to the appellant to aid in the construction of its road under the acts of Congress of July 27, 1866 (14 Stat., 294–299), and of March 3, 1871 (16 Stat., 573). The map of designated route was accepted by the Secretary of the Interior and filed in the General Land Office April 3, 1871, whereby the grant attached to all lands subject to it under the said several acts; and the withdrawal was made and became effective at the district land office on the 10th of the following May.

By departmental decision rendered June 26, 1880, in the case of Wm. Burlingame v. Southern Pacific Railroad Company and the State of California, the land in question was held to have been excepted from the appellant's grant by reason of its having been embraced within the claimed limits of the "Tajauta Rancho," the true limits of which were not determined until February 21, 1872, and Burlingame's pre-emption filing for this with other lands was allowed to go to record. He did not, however, avail himself of his privilege under the pre-emption law, but abandoned it. Again, in the case of Garcia v. Southern Pacific