this fact is shown by a preponderance of the evidence, and it is corroborated by the personal observation of the local land officers, made while passing along the public road near said land; that said entry was made in good faith and not for speculative purposes, and that the contest should be dismissed. Your office, on March 31, 1835, affirmed the action of the local land officers, and held that "it appears from the evidence that the entryman has acted in perfect good faith in the matter of the reclamation of the land embraced in his entry."

This record has been carefully examined. The testimony is exceedingly voluminous, covering about fifteen hundred pages, a large portion of which is quite irrelevant, and many of the statements wholly irreconcilable. The evidence shows that said entry was made upon unsurveyed land, along Wood River, as above stated, and that some mouths after, but prior to survey, said Riggan settled upon the W. of the SE. 1 of said Sec. 4, made valuable improvements thereon and has continuously resided upon the land to the date of said hearing. While a large number of witnesses were examined in the case and their testimony upon many material points is directly in conflict, yet a careful examination of the whole evidence shows by a fair preponderence that the south forty in dispute is timber land, and therefore not subject to entry under said desert land act. The witnesses for the contestant estimate the number of acres upon which there are timber trees to be from fifteen to thirty-five acres, and the size of the trees from two to three feet in diameter and forty to sixty feet in height. The testimony of the contestee shows that there are some trees on both forties in dispute, but he claims that the growth is scrubby and does not exceed one acre on the north forty and five acres on the south forty in controversy. Other witnesses for the contestee state that there are from two or three acres of timber on the north forty and from eight to ten acres on the south forty.

Section second of the desert land act, approved March 3, 1877 (19 Stat., 377), provides "that all lands exclusive of timber lands and mineral lands, which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands within the meaning of this act."

It is clear that, even if it be shown that the land will not produce some agricultural crop without irrigation, yet, if the testimony shows that there are several acres of timber on the land, such land can not be entered under said act.

But there is another element in the case that requires careful and serious consideration. It appears that on June 7, 1882, said Riley, with four others, entered into an agreement with the Idaho and Cregon Land Improvement Company, by which, for and in consideration of the sum of four thousand dollars to them in hand paid by said company, the receipt thereof being duly acknowledged, and in consideration of the further sum of six thousand dollars, to be paid as stipulated in said agreement,

and ten thousand dollars of non-assessable stock, to be paid to said parties within sixty days after the date of said agreement by said com. pany to the said parties of the first part, "have leased, demised, and to forever let, and by these presents do lease, demise and to farm let unto the said party of the second part and to its successors and assigns, all the following described lands and premises, situate in the county of Alturas, Territory of Idaho, bounded and described as follows:" The description embraces the desert land entry No. 71 of Eben S. Chase, one of said parties, containing 455.33 acres, the desert land entry No. 64 of John Hailey, containing 484.87 acres; the desert land entry No. 72 now in controversy, containing 462.57 acres, and the desert land entry No. 66 of F. P. Cavanagh, containing 469 acres-making a total of 1,871.77 acres.

It is evident that said agreement is in effect an assignment of the interest of each of said parties in said entries to said company, and, if fully executed, the company would obtain title to more than eighteen hundred acres of land. It has been uniformly held by this Department that assignments made since April 15, 1880, will not be recognized, and those entries made prior to said date, which have been assigned, cannot be confirmed for a larger amount than six hundred and forty acres. See case of S. W. Downey (2 C. L. L., 1381); Joab Lawrence (2 L. D., 22); David B. Dole (3 L. D., 214); Stanton v. Durbin (4 L. D., 445); Peter French et al. (5 L. D., 19); Henry W. Fuss (ibid., 167).

It is alleged that your office, on March 21, 1881, in response to a telegram from the register of said office, at Boise City, advised him that any person having initiated a desert land entry by making first payment can lease the same with an agreement to sell after patent is ob tained from the government, without jeopardizing his own title, and that said agreement was made in pursuance of said advice. It is to be observed, however, that the agreement was made more than a year subsequent to the receipt of said instruction and went far beyond it.

It does not appear that Riley had made any effort to reclaim said claim, nor is it shown that any of said parties advised your office of the terms of said agreement prior to its execution, and it cannot be presumed that it was the intention of your office to change the settled ruling of the Department and allow parties to do indirectly what they could not do directly.

Aside from the evidence tending to show that the tracts in controversy were not subject to desert land entry, a careful consideration of the whole record shows that the whole entry is illegal and should be canceled.

Your attention is called to the fact that an inspection of the records of your office shows that said entry has not been posted upon the tract book of your office. The better practice would seem to be to post said entry on the tract book and note thereon the contest that is made against it.

The decision of your office dismissing said contest is reversed, and you will cause said entry to be canceled.

On July 12, 1886, your office transmitted to this Department for consideration in this case the report of a special agent of your office, relative to the validity of said entry. Said report contains no new evidence, and its recommendation has not been considered in arriving at the conclusion herein.

SWAMP LAND—MANNER OF SELECTION.

STATE OF LOUISIANA. (ON REVIEW.)

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

From the foregoing it is clear that the State elected to make the field notes of survey the basis of the adjustment of both of said grants. Indeed as appears in the quotation from the argument of counsel (page 9) in said decision of March 25, 1887, "the field notes made by the United States deputy surveyor were agreed upon as the basis as being a substantial compliance with the law," and it would seem that the State, after the lapse of nearly forty years, is estopped from denying such election, if she were so disposed.

The two letters referred to (supra) were not before this Department when said decision was rendered, and hence it did not clearly appear that the State had made the election as above indicated.

But since the State has already made said election, it will be unnecessary to call upon her to elect anew "whether the field notes of survey shall be made the basis of the final adjustment of said grants,” and to that extent said decision (of March 25th) is hereby modified.

PRACTICE-APPEAL-CERTIORARI.

C. N. NELSON LUMBER Co.

An appeal filed by a transferee before notice of the decision was served on the entryman, was in time under the rules of practice.

Acting Secretary Muldrow to Commissioner Sparks, April 23, 1887. The C. N. Nelson Lumber Company has filed an application for certiorari under rules of practice 83 and 84, in the matter of pre-emption cash entry No. 3787 of Stephen Pennington of the E. of SE. of Sec. 30, and the E. of NE. of Sec. 31, T. 59, R. 18, Duluth, Minnesota.

From this application and accompanying exhibits the following alleged facts appear: Said entry was made October 16, 1882, and upon evidence taken at a hearing subsequently had was held for cancellation by your office on the 31st of August 1883. April 14, 1884, Messrs. Curtis & Burdett, of this city, addressed a communication to your office,

setting forth that they represented "certain parties, who, as innocent purchasers in good faith," bought the land after entry made, that said purchasers were not parties to the hearing theretofore had, and requesting an opportunity to be heard as intervenors, etc.

More than two years thereafter, to wit: August 14, 1886, your office, referring to said communication of April 14, 1884, informed said at torneys "that you do not state for whom you appear, as required by the rules of practice," and on the same day again held said entry for cancellation. November 14, 1886, said attorneys, referring to your said letter of August 14th preceding, addressed to them, informed your office that in this case they appeared for the C. N. Nelson Lumber Co., of St. Paul, Minnesota, "innocent purchasers of the land in question." November 9th, same year, your office informed said attorneys that said entry had been held for cancellation August 14, 1886, as aforesaid. Thereupon, on the 12th of the same month, an appeal from said order of cancellation was filed on behalf of said purchasers, which was denied by your office March 5, 1887, on the ground that said appeal was not filed within the sixty days allowed by law. Upon motion for review of said last decision, accompanied by a formal application of said company to intervene, filed March 22, 1887, your office, on the 30th of March, 1887, adhered to its former decision, declining to transmit said appeal. Hence the present application.

It is alleged by applicants that notice of your decision, dated August 14, 1886, holding said entry for cancellation, was not served by the local office on the entryman himself, or upon any one for him, until some time in December, 1886, which allegation appears to be admitted by your office. It would seem that the appeal of the transferee who claims under said entryman, having been filed before said entryman was notified of the decision holding his entry for cancellation, was clearly in time under the rules, and should not have been dismissed.

If the allegations in this petition be true, it would appear that the applicant is entitled to the relief prayed for. You will therefore please transmit the record of the case to this Department, and in the meantime suspend further action therein until further advised.

PRACTICE-RULE 48-IRREGULARITY.

HARRIS . MAYNE.

The refusal of the entryman to answer, on cross-examination, questions pertinent to the issue, is such an irregularity as to warrant the General Land Office in a reexamination of the case though no appeal was taken from the decision of the local office.

Acting Secretary Muldrow to Commissioner Sparks, April 23, 1887.

I have considered the case of Albert G. Harris v. William W. Mayne, involving the NW. of Sec. 1, T. 110 N., R. 63 W., Huron, Dakota Territory.

It appears that on June 26, 1880, Mayne filed soldier's homestead declaratory statement for the NW. of Sec. 33, T. 111, R. 62, then in the Mitchell, but now in the Huron land district; on January 7, 1881, he made homestead entry thereof, and having made final proof on February 1, 1882, received final homestead certificate therefor, being allowed a credit for his military services sufficient, with actual residence upon the land, to make up the five years required. On December 7, 1881, nearly two months prior to the last date, he filed another soldier's homestead declaratory statement for the NW. of Sec. 1, T. 110 N., R. 63 W. the tract involved in this case. On February 12, 1882, he also filed pre-emption declaratory statement for the same. tract, claiming settlement thereon three days before, and on November 22, 1882, he made final proof and cash entry thereon, receiving final certificate the same day.

On December 26, 1883, Harris filed an affidavit in the local office, setting forth that Mayne was not a qualified pre-emptor at the time he entered said last described tract, and could not lawfully prove up on the same, because he had a soldier's declaratory statement on each of said tracts at the same time; that at the time of making the filing on the second tract he had not proved up on the first, and that he moved from land of his own-the homestead-to reside upon said pre-emption claim.

This affidavit being transmitted to your office, on February 4, 1884, a hearing was ordered "to determine the validity of" said cash entry. In the notice of this hearing, served upon Mayne, the charges were stated to be that the said pre-emption cash entry "was perfected through fraud and in violation of law, in that you were holding a homestead upon the NW. of Sec. 33-111-63, at the time of making settlement upon said NW. 4 of 1-110-63; that you were not a qualified pre-emptor at the time of entering said tract; that you had a soldier's declaratory statement on each of said tracts, which is fraudulent, and that you failed to establish and maintain a bona fide residence upon said NW. of Sec. 1, as required by law." Hearing was had on April 18, 1884, both parties being present in person and by attorneys, with a number of witnesses.

Testimony was offered by contestant to prove that Mayne had placed a second soldier's declaratory statement on the second tract before be completed final proof on the first; and that he had after receiving certificate for the first tract removed therefrom to the second in violation of law, but no evidence was then introduced to prove that Mayne had not after settlement complied with the requirements of law as to residence and improvement on his pre-emption claim.

The defendant by his testimony sought to show that he had enlisted twice in the army, had been twice discharged, that because of the two discharges possessed by him, he thought and was advised that be was entitled to file two soldier's declaratory statements for the two tracts;