now appears that, acting upon this direction, the surveyor general of the State of Washington was, by your office letter "F" of December 27, 1894,

directed to ascertain the lands occupied and used at the date named, and for that purpose you will duly advise the Mission authorities and any other interested parties of the action of the Secretary and fix a date upon which they may be heard in the matter.

The case was heard before the surveyor general from March 18 to 22, 1895. The only testimony offered at this hearing of those professing to have any actual knowledge of the condition of affairs on March 2, 1853, was that of several Indians, presented on behalf of the Mission, whose testimony tends to show that a fence was constructed enclosing the lands occupied by the Mission. The fence as described by them and established by the surveyor general in the plat which accompanies the record, would enclose about 240 acres, or a little less than one half of the actual claim of the Mission. The existence of such a fence in the fall of 1855 or the spring of 1856 is testified to by another witness, one Ker, offered on behalf of the Mission. As against the existence of such fence the testimony of two Indians is offered by the protestants; also the testimony of a number of white witnesses, to the effect that at the time of the Indian War in 1855 there was no evidence of the exist ence of such fence. The depositions of the Catholic priests Chirouse and De Herbomez, who established the Mission, are also made a part of the record.

The undisputed testimony shows that the building now occupying about the center of lot 1, Sec. 13, T. 12 N., R. 16 E., is located on the site of the old Mission chapel, around which were the original enclosures; which enclosures are variously estimated to contain all the way from two or three to ten or fifteen acres. The original improvements consisted of a log dwelling and church and some outhouses and a small patch of cultivated land. It is further shown that in the spring of 1853 the priests had about a dozen cattle and a dozen head of horses. After carefully reviewing the testimony in detail, the surveyor gen eral, in his opinion, states:

It is admitted that they had enclosed around the Mission buildings from ten to fifteen acres. It is also admitted that they raised hay and grain, had milk cow, or cows, horses, pigs and chickens. It is fair to assume that they had pens, corrals, pastures, etc., for such, some of which is admitted by the adverse testimony. If they wintered the twenty four head of cattle and horses, the priests testify to have had on March 2, 1853, and if one acre would winter feed two head, which would be a fair estimate with their crude methods of farming, this alone would take twelve or thirteen acres.

It seems to me, therefore, that an occupancy of about twenty five acres on March 2, 1853, by the Mission, would be a just and equitable allowance. I therefore decide that the Mission is entitled to all the land lying in lot 1 of Sec. 13, T. 12 N., R. 16 E., lying south of a line parallel to the north line of said lot, and fifteen chains south thereof, containing about twenty five acres more or less.

This is rather an arbitrary division, but the building which now occupies about the center of this twenty five acre tract was located by Mr. George C. Mills, and is

recognized in the testimony as being on the site of the old Mission chapel, around which the enclosures certainly were located.

It is impossible to fix this more definitely from the Indian testimony, as they show the fences by marks upon a map, Exhibit (A), made off-hand without scaling any distances, etc., all of which their ignorance would incapacitate them from doing. Again, to fix this more definitely would cost more than the land is worth.

Upon appeal your office decision of April 22, 1896, held, as before stated, increasing the allowance ou account of the Mission to the entire lot 1 of section 13, and afterwards adjusting the several claims to the balance of the land involved.

In your office decision it is stated:

Under the strict construction of the instructions of the Department of October 9, 1894, directing the investigation, giving the mission the benefit of the highest estimate of the acreage enclosed in 1853, it would be entitled to only fifteen acres, but since the priests testify that they had at the mission about twenty four head of stock (cattle and horses), I am of the opinion that they should be awarded also sufficient land to furnish grazing and hay for such stock, and that the remainder of lot 1, a little less than forty acres, is not too much to corral and support twenty four head of cattle and horses.

It is of course first necessary to determine the lands to be awarded to the Mission under the act of 1853, and as stated in the previous decision of this Department:

It is unnecessary to refer to the rights of the other parties to this controversy further than the direction that their claim, so far as in conflict with the award herein made on account of the Mission claim, must be canceled.

Since the decision of this Department last referred to, restricting the claim on account of the Mission grant to the lands actually occupied by it, the matter has been considered by the supreme court of the United States in the case of the Catholic Bishop of Nesqually v. Gibbon (158 U. S., 155), in which the claim on account of the grant made for the Mission under the act of August 14, 1848, which is in the same terms as the act under consideration, is restricted to the land actually occupied by the Mission and can not be made the basis for a claim to the extent of six hundred and forty acres without proof of occupation of the same.

In the case of Lesher v. St. Paul Catholic Mission (22 L. D., 365,) it was held that land used by the Indians as a camping ground and for pasture while they were at the Mission and attending religious services was such an occupation as to come within the provisions of the act of March 2, 1853. It is clear, therefore, in the present case, as it is shown that the fathers had on March 2, 1853, about twenty four head of stock of their own and that many Indians attended services at the Mission, that more land was actually occupied in the maintenance of the Mission than the tract covered by the buildings and within the enclosure of ten or fifteen acres including the cultivated tract. The question arises, therefore, as to the establishment of a boundary to the lands actually occupied for herding and pasturage purposes in connection with this Mission.

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Upon the question as to the presence of a larger enclosure, I am clearly of the opinion that the same is not sustained by the record now before me. The testimony of the two Catholic priests, who were undoubtedly the persons having the best information on the subject, clearly disproves the presence of any outlying or larger enclosure covering the tract occupied by the Mission.

The following questions and answers are taken from the depositions furnished:

EUGENE CASSIMERE CHIRouse.

Interrogatory No. 5: State if you know then all the circumstances attending the establishment of the St. Joseph Catholic Mission on the Ahtanum River, what buildings, if any, were erected by the Mission, their character and size and for what purpose used, how much land adjacent to the buildings, if any was fenced and in cultivation on and prior to the second day of March, 1853?

Answer: The Mission was established because of its central position and at the request of the Indians and their chief who wished it there. In 1852 a log dwelling and log church were erected, a vegetable garden was fenced in 1852 and vegetables raised there for the use of the Mission.

Interrogatory No. 10: What quantity of land was actually occupied by the Catholic church at the missionary station on and prior to March 2, 1853, and what boundaries were established to separate the St. Joseph Mission lands and to indicate that it was the specific land claimed by the church as a missionary station among the Indian tribes at that time?

Answer: When St. Joseph Mission was located in 1852 the land for many miles on the north side of Ahtanum River was given by the Indians for Mission lands below the place where the hills come nearest to the river on both sides. The Mission occupied all the land we required, which I could not describe by metes and bounds. There were no posts for lines put in, as there were no white men in Yakima county except ourselves.

LOUIS JOSEPH DEHERBOMEZ.

In answer to interrogatory No. 5: Yes, for the purpose of having a central position to preach to the Indians of Yakima County. One log house for the missionaries' residence and one log chapel for divine services. This work was done by ourselves, and one small cabin which was as much as we could do.

In answer to interrogatory No. 10: The Indians gave us all the land we wished to take. There was no white men in the country and therefore no necessity for lines. The Indian tribes, however, knew the land well.

It is therefore apparent that, as held by the surveyor general, some arbitrary rule must be resorted to in order to fix upon the quantity of land actually occupied and used in the maintenance of this Mission; and from a careful review of the entire matter I think the adjustment arrived at by your office in awarding to the Mission the entire lot 1, being the legal subdivision upon which the Mission buildings and other improvements were established, is a fair and equitable adjustment of the Mission claim. This being determined, it is next necessary to consider the company's claim to the tracts covered by the odd numbered sections.

The former recitation of the record facts shows that these lands were covered by entries of record at the date of the attachment of rights under the grant to the company and were therefore by the express

terms thereof excepted therefrom. The awarding of lot 1 to the Mission causes its elimination from the land claimed by Smith, and the entire award made in your office decision is accordingly affirmed.

ALASKAN LANDS-REGULATIONS OF JUNE 3, 1891, AMENDED.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., October 8, 1897.

Paragraph 32 of Regulations approved June 3, 1891, providing for the allowance of entries in Alaska under the act of March 3, 1891 (12 L. D., 583), is hereby amended to read as follows:

Any person feeling aggrieved by the decision of the trustee may, within thirty days after notice thereof, appeal to the Commissioner of the General Land Office, under the rules as provided for appeals from the opinions of registers and receivers, and if either party is dissatisfied with the conclusions of said Commissioner in the case, he may still further prosecute an appeal, within sixty days from notice thereof, to the Secretary of the Interior, upon like terms and conditions and under the same rules that appeals are now regulated by and taken in adversary proceedings from the Commissioner to the Secretary. All costs in such proceedings will be governed by the rules now applicable to contests before the local land offices.

Approved:

C. N. BLISS,

Secretary.

E. F. BEST, Assistant Commissioner.

JOHN W. KORBA.

· Motion for review of departmental decision of May 5, 1897, 24 L. D., 408, denied by Secretary Bliss October 9, 1897.

PRACTICE-APPEAL-DESERT ENTRY-ASSIGNMENT-SUSPENSION.

VRADENBURG'S HEIRS ET AL. v. ORR ET AL.

An appeal, if not taken within the time designated by the rules of practice, must be dismissed.

An assignment of a desert land entry to one disqualified to acquire title under the desert land law, does not render the entry fraudulent, but leaves the title thereunder still in the entryman.

On the revocation of an order suspending a desert land entry, time will not begin to run as against the entryman, until due service of notice upon him of such revocation.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) October 12, 1897.

(C. W. P.)

On May 17, 1877, Thomas B. Orr made desert land entry, No. 291, of Sec. 10, T. 25 S., R. 25 E., Visalia land district, California. This entry,

with others, was suspended on September 12, 1877, and remained suspended until January 12, 1891, when the order of suspension was revoked. United States v. Haggin, 12 L. D., 34. On June 5, 1877, Orr assigned his entry to Emile Chauvin and Juan L. Noriega, and on June 11, 1884, Noriega assigned to Chauvin.

On April 15, 1886, Luther C. Vradenburg filed an affidavit of contest against said entry, alleging the non-desert character of the land and failure to reclaim. On the day set for hearing Orr did not appear, but Emile Chauvin appeared and was allowed to defend the entry, as assignee of Orr's entry. A hearing was had and the local officers decided in favor of the entryman. On appeal, your office, on April 29, 1891, affirmed the decision of the local officers as to the character of the land, but held the entry for cancellation on account of nonreclamation. But, on motion for review, by your decision of July 20, 1891, it was held that the order of suspension of the Visalia desert land entries of September 12, 1877, had the effect of holding all proceedings in statu quo from the date of the promulgation of said order until it was revoked, and it was ordered that the defendant be allowed three years in which to reclaim, exclusive of the time which elapsed between the date of the order of suspension and the date of the revocation of the suspension.

From these decisions the contestant appealed to the Department. In the meantime many contests were filed against the entry, accompanied by applications to enter.

The Department, on January 9, 1893, held that during the pendency of the order of suspension the local office and your office were without jurisdiction to hear and determine the case; that the contest should not have been allowed; and the hearing being unwarranted, the case was remanded for hearing de novo. Vradenburg v. Orr, 16 L. D., 35, Subsequently, Lyman D. Porter, who had applied to make homestead entry of the N. of the SE. of said section 10, and whose application was rejected by the local officers and your office because the land was involved in the contest case of Vradenburg against Orr appealed to the Department, and on February 16, 1895, your office decision was affirmed. In this decision the Department, referring to departmental decision of January 9, 1893, in the case of Vradenburg v. Orr, said:

From all that has been said, it is clear that the instructions in this particular case and the decisions of this Department have not been followed by the local office, and you will therefore remand this case to the local office and direct a full hearing as to the character of the land and the charges of fraud and collusion. You will further direct the local office to notify every person having any interest in this land, including the heirs of said Vradenburg, to appear at said contest, and allow them an opportunity to submit evidence.

Whereupon, the heirs of Vradenburg and other contestants and applicants to enter, as well as the defendant Orr and Chauvin, transferce, were notified of a hearing to be had on June 6, 1895, when Lyman D. Porter, Hiram L. Waits, John L. Wasson, Teresa Parero, W. B. Tim