A contest between the parties was thus brought about, and hearing was had in December 1882, at which the scrip locators attempted to show, first, that Bywater had exhausted his pre-emption right by certain prior filings in Minnesota, and, second, that he had failed to settle on and inhabit the land as required by the pre-emption law. For a reason not stated, the local officers ignored the question of the effect of the prior pre-emption filings, but found that Bywater had complied with the law in respect of residence, and awarded him the land. When the case came before your office on appeal, the question of the prior filings was again ignored, but it was held that Bywater had failed to comply with the law in the matter of residence, and his entry was held for cancellation. I do not find it necessary to enter into a discussion of the evidence upon the question of Bywater's settlement and residence, but will dispose of the case on that relating to the alleged prior filings.

In his testimony at the hearing, Bywater admitted that he had made a pre-emption filing in Minnesota about June 1873, and that he had relinquished it subsequently for a consideration of $900 or $1000. (I understand that at page 41 of the trial record he corrected his testimony at page 12 in regard to said relinquishment). I have caused the records of your office to be examined, and it appears therefrom that one Charles M. Bywater filed declaratory statement No. 20,254 for the NW. † of Sec. 4, T. 107, R. 36, New Ulm, Minn., alleging settlement June 10, 1870; and that on June 25, 1873, Charles M. Bywater filed declaratory statement No. 22,356 at the same office for the NW. 4 of Sec. 24, T. 107, R. 36, alleging settlement June 20, 1873, The latter filing was canceled by letter ("C") of May 13, 1878, for relinquishment; and the relinquishment, which is on file, was executed September 29, 1877, and is unmistakably in the hand-writing of C. M. By water the claimant in this case.

It therefore appears from the record before me that Bywater held a tract of land in Minnesota under the pre-emption law from June 1873 to September 1877, in which last-named month (he stated in his testimony) he removed to Washington Territory. In my opinion he had thereby exhausted his pre-emption right, and his pre-emption settlement and filing on the land herein in controversy were illegal (J. B. Raymond, 2 L. D. 854). This was the status of his claim on January 8, 1880, when Hill and Lewis made their scrip location; and such a claim could not be validated by the subsequent transmutation to a homestead entry, so as to appropriate the land against them (Brooks v. Tobien, 4 L. D., 560). For these reasons your said office decision is affirmed.

I call you attention to the fact that this land appears to be a part of the Maynard donation claim, and that the record shows that a request to issue patent for it to the heirs of Lydia Maynard was on February 27, 1885, refused consideration by my predecessor, because of the pendency of a certain suit in the Supreme Court of the United States involving her title thereto. In the letter transmitting his views to your office is the following passage: "You will please take no action looking to a disposition of these lots until said suit has been decided."

PRACTICE-REVIEW; SURVEY-ACCOUNTS.

J. R. GLOVER.

The decision of the Department rejecting a survey and refusing to pay therefor will not be reviewed, where it appears that application for such action was not made within the proper time, and that prior to such application the townships covered by said survey had been re-surveyed and the work paid for under a subsequent contract.

Acting Secretary Muldrow to Commissioner Sparks, July 22, 1886.

On May 26, 1877, the United States Surveyor General for California executed a contract with Deputy Surveyor J. R. Glover for the survey of Townships 18 to 25 N., Range 10 W., Mount Diablo Meridian, California.

On April 14, 1879, Secretary Schurz made a decision relative to the approval of the accounts of Deputy Surveyor Glover for the survey of these townships, and also upon the question of the approval of said surveys, in which he held that said surveys were not in conformity with law, but in direct violation thereof, and that his accounts for said services should be rejected.

In the decision referred to Secretary Schurz said:

"Viewing the work as a whole, it will be seen that Mr. Glover executed the survey of the 4th standard line in such a manner as to throw the deficiency into the townships which he had the contract for subdividing, instead of allowing it to fall in the place where it naturally belonged. In so doing he violated the law.

"1st. By deducting the deficiency from the east, instead of the west side of the townships north of the 4th standard line; and (2) by dropping a row of sections from the east side of the 4th standard line, and by running the lines of survey in the wrong direction.

*

"I am of opinion that Mr. Glover is not entitled to pay for the survey of these townships, and that the survey of townships 18 to 25 north, 10 west, should be rejected."

It will be seen from the decision above referred to that Secretary Schurz decided (1), that these surveys were improperly executed, and should be rejected, which was accordingly done; and (2) that Glover was not entitled to pay for that service.

No further action was taken in the matter by Mr. Glover, until nearly six years thereafter, when he filed the present motion, "invoking renewed supervisory action and review of said decision

upon matters arising since the date of such rejection," to wit: At date contemporaneous with the Glover surveys, Deputy Surveyor Hanson had executed other surveys in California in precisely the same manner, which though rejected were afterwards re-instated and approved; that in 1883, the Commissioner approved similar surveys of townships made 2278 DEC-2

fractional in the same manner, viz: by the junction of the Mount Diablo and Humboldt Meridian; that numerous surveys have since been approved made in precisely the same manner as the Glover survey, and that instructions have since been given for the survey of fractional townships in the same manner.

I do not think that the grounds urged in this motion for review are sufficient to take the case out of the general rule requiring that all motions for review shall be made within thirty days from date of notice of decision.

It appears from the record that the surveyor general of California approved and forwarded the surveys of Glover and Hanson about the same time, and at the same time forwarded a protest from Robert Gardner, charging fraud in the surveys of Glover and Hanson, and that the fractional townships were surveyed so as to drop the 36th section in the interest of a land ring. It is true that Hanson's surveys were rejected because the lands were not of a surveyable character, and not because section 36 was omitted in the surveys, but it does not follow that because the surveys were rejected upon a ground in itself sufficient, that the other objection to the survey was approved. Hanson waived his right of appeal from the Commissioner's decision, and also all claim for pay for his surveys, and subsequently the Commissioner directed the surveyor general to expunge the cancellation of the Hanson surveys and restore the triplicate plats to the U. S. Land Office. This action of the Land Department was induced solely from the fact that Hanson had waived all claim against the United States and had been compensated for his services by the State of California, and not from an approval of his survey.

This subsequent action in regard to the Hanson surveys, and the alleged subsequent action of the Commissioner in regard to similar surveys, will not take this case out of the general rule that all motions for review must be made within thirty days from notice of decision, except when based on newly discovered evidence.

Besides, it appears from the report of your office that since the date of the decision of Secretary Schurz above referred to, and prior to the filing of this motion for review, that the townships covered by the Glover surveys have been resurveyed under another contract, and that the accounts for such surveys have been audited and paid. This fact alone precludes the Department from taking further action in the matter, and is a sufficient ground for refusing to grant the review prayed for. The application for review is denied.

DESERT LAND ACT-FINAL PROOF.

PETER FRENCH ET AL.

The acquisition of land under this act by any one person is limited to six hundred and forty acres whether taken by original entry or assignment.

Final proof purporting to be made by the original entryman but submitted and sworn to by one acting as attorney in fact is illegal and invalid.

Secretary Lamar to Commissioner Sparks, July 23, 1886.

I have considered the appeal of Peter French et al., from certain decisions of your office, hereinafter more particularly specified, adverse to said French and his assignors.

Said appeal involves five desert land entries, made at the Lakeview land office, Oregon, and designated as follows:

Entry of James A. Jennings, final certificate No. 2, dated September 23, 1880, for 639.69 acres; J. M. Dedman, final certificate, No. 3, dated December 20, 1880, for 639.78 acres; Isaac W. Laswell, final certificate, No. 4, dated December 20, 1880, for 599.33 acres; John J. Hallett, final certificate, No. 5, dated December 20, 1880, for 640 acres; Peter French, final certificate, No. 8, dated August 14, 1882, for 610.70 acres.

Of the claims covered by the above mentioned entries, two, those of Jennings and French, were initiated by declarations dated September 24, 1877; two, those of Dedman and Hallett, by declarations dated December 20, 1877; and one, that of Laswell, by declaration dated January 7, 1878.

Your office, by its letter of June 8, 1883, informed the register and receiver that all of the entries named had been canceled for fraud, in that (1) the lands were non-desert in character, and (2) the entries of Jennings, Dedman, Laswell, and Hallett were made in the interest of French. Said action was based upon the report, dated April 4, 1882, made to your office by Special Agent R. V. Ankeny. The register and receiver were directed to allow to claimants sixty days from date of notice within which to show cause why their entries should be re-instated. November 6, 1883, six months after the cancellation, the local office addressed to your office a letter stating that the several parties had been duly notified of the action taken, and that they had made no response. Thereupon your office, by its letter of February 13, 1884, to the register and receiver, declared its judgment of cancellation final, and directed that the lands involved be held subject to entry by the first legal applicant. Subsequently application was filed in your office in behalf of French, asking the re-instatement of all the entries canceled as above. This petition, filed in October, 1884, averred want of notice of the cancellation, and was accompanied by an affidavit of French that he is entitled not only to the land covered by his own entry, but that he is the owner by purchase of the entries of Jennings, Dedman, Laswell and Hallett. Affidavits of certain other persons were also filed for the purpose of

showing that the lands had been desert in character, and that they had been reclaimed as required by law.

Prior to the receipt of the petition, to wit, on August 1, 1884, your office, at the request of counsel, had by telegraph directed the register and receiver to make no further disposition of the lands in question until so instructed.

After further proceedings bearing upon the question of notice, you, by your letter of April 29, 1885, to the register and receiver, declined to re-instate the entries and directed the local office to no longer withhold the lands from entries or pre-emption filings by other qualified applicants.

The appeal now before me is from the several decisions of June 8, 1883, February 13, 1884, and April 27, 1885, above mentioned.

Said appeal sets forth and proceeds to argue several specifications of error, which it is claimed exist in the decisions appealed from. For the purpose of this decision it is not now necessary to consider all of these specifications. Among them is one to the effect that the decision of your office of February 13, 1884, declaring that of June 8, 1883, which canceled the entries in question, final, was without authority and not binding upon appellants, because made without notice to them.

It has constantly been alleged and is stated under oath that notice of the decision of June 8, 1883, canceling said entries, was never received by either French or his assignors, and he states that the matter was first brought to his notice in June or July, 1884, by one Cushman entering upon a portion of said lands for the purpose of making im provements thereon.

December 20, 1884, your office called upon the register and receiver to furnish proof of service of notice of the cancellation of said entries. Those officers replied, under date of February 23, 1885, that they had mailed to the several entrymen notices of said cancellation, as directed by your office letter of June 8, 1883, but that they have no means of proving that said notices, or any of them, were received.

On this showing, and from the proceedings subsequently had, I am unable to find that the parties appellant have had the benefit of the sixty days' notice contemplated by your office decision of June 8, 1883, and I therefore think your action denying a hearing was error.

Your attention is invited to a peculiar feature, which has not been adverted to in any of the several decisions rendered by your office in this case. It is this: It seems that when final proof was made, claimants Jennings, Dedman, Laswell and Hallett did not personally appear, but that they were represented by French, who appeared with power of attorney from them severally to do, with respect to the land covered by their respective claims, whatever they themselves might do if present. In answering the questions usually propounded to claimants in mak. ing final proof, French so personated his principal in each case as to answer said questions in the first person as if he were the claimant or