CONTESTS-CROSS-EXAMINATION.

COCHRAN & HELEN.

Rule of Practice 35, as amended, par. 7, providing that "the costs of transcribing cross-examinations will in all cases be taxed to the party making the cross-examination," applies to both protest and contest cases.

Commissioner McFarland to Messrs. Cochran & Helen, McCook, Neb., January 24, 1855.

I am in receipt of your letter of the 26th ult., referring to amended Rule of Practice 35 (3 L. D., 194), and the requirement stated therein, which is also referred to in my letter of November 24, 1884 (Anna M. Livingston, Idem, 193) to the register and receiver at Tucson, Arizona, namely, that each party must pay the costs of his own cross-examina tion.

You suggest that a diversity of opinion exists in regard to the matter in respect both to contest and protest cases. I do not understand how a diversity of opinion arises. The rule is specific. Its application is the same whether a contest is initiated by an adverse party, or invited by claimant upon his notice to make proof. When objection is made to proof offered under notice, issue is joined and the trial proceeds as in other cases.

DISTRICT OFFICES; FINAL PROOFS; PROTESTS.
GOODRICH v. GAMBLE.

Employés in the district offices are required to labor seven hours each day, except Sundays and legal holidays. Local offices must not be closed at noon on Saturdays. When the hour for hearing or making final proof is not mentioned in the notice, contestants or protestants have the whole of the day in which to enter an appearance. The local officers must consider and act upon objections offered to all classes of entries, including cash entries, of the public lands.

Commissioner McFarland to register and receiver, Fargo, Dakota, January 24, 1885.

It appears from proceedings in the case of Goodrich v. Gamble, in which hearing was ordered by my letter of December 31, 1884, that it is your practice to close your office on Saturdays at 12 o'clock noon. You are advised that this practice is without authority, and is disapproved. District land offices are expected to be open for the transaction of public business during proper business hours every day in the week except Sundays and legal holidays, and to remain open on Saturdays the same. as on other days. The law (22 Stat., 563) requires of persons employed in the executive departments of the government not less than seven hours of labor each day, and district land offices should be governed by the same rule.

You are further informed that when no hour is mentioned in a notice of hearing, or for making proof, the appearance of a contestant or protestant at any time during the day so fixed is an appearance under that notice.

My attention has also been called to the following among the reasons specified by the register for rejecting the protest filed with case above referred to, as shown by his indorsement on said protest, namely: "4th. It is not the province of this office to entertain objections to a cash entry." You are instructed that it is your province and duty to entertain, consider and properly act upon all objections offered by any person to cash or other entries of public lands. The large number of fraudulent pre-emption, commuted homestead, and other entries, to which the attention of this office is constantly called might be materially lessened if local officers were vigilant in the discharge of their duties to prevent such entries from being made. Your attention is called to the following among other decisions and instructions: Moore v. Horner, 2 L. D., 594; Tremaine v. Houge, Idem, 596; Henry Buchman, 3 L. D., 223; to register and receiver, Humboldt, Cal., and decisions and instructions cited therein, Idem, 247; to register and receiver Aberdeen, D. T., Idem, 211; to register and receiver, Gunnison, Col., Idem, 141; to register and receiver, Olympia, W. Ty., Idem, 132; to register and receiver, Miles City, M. T., Idem, 220; to F. D. Hobbs, inspector, Idem, 298.

SWAMP LAND-RE-ADJUDICATION.

STATE OF Oregon.

Review of the plans, original and modified, agreed upon by the authorities of the State of Oregon and those of the United States, for the ascertainment and selection of the swamp and overflowed lands within said State.

It was competent for the State, with the consent of the United States, to modify the original plan and to act upon the modified plan, and this most clearly it did, by the agreement to the modified plan, by appointing an agent thereunder, and by approving his doings. It was competent for the United States to regard the governor of the State as its authorized agent, in the absence of notice of legislative enactment to the contrary. And it was competent for the General Land Office to adjudicate the character of the lands as ascertained under said plan. Wherefore said adjudication is approved, and the present claim of the State to some 48,000 acres, reported under said plan as not being swamp land, is rejected, except as to certain tracts in Range 324 east, concerning which, for the reasons assigned, further examination may be made.

Acting Secretary Joslyn to Commissioner McFarland, January 24, 1885.

I have considered the appeal of the State of Oregon from your decisions of September 25 and 28, 1882, rejecting its claim to about 48,000 acres as swamp and overflowed land in that State.

The act of September 28, 1850 (9 Stat., 519), granted to certain States

lands therein, the greater part of the subdivisions of which were from their swampy character, or being subject to overflow, unfit for cultivation; requiring the Secretary of the Interior to transmit lists and plats of such lands to the governors of such States, and, at their request, to cause patents therefor to be issued. Lest the field notes might be found not sufficiently accurate to enable the Secretary to decide in all cases what tracts were and what were not of this character, he adopted the plan of requiring the States entitled to lands under the act to elect whether they would abide by the field notes as the basis for the lists, or whether they would furnish other testimony to determine the character of the lands. The provisions of this act were extended to the State of Oregon by the act of March 12, 1860 (12 Stat., 3), and this State elected to adopt the latter plan. She has not furnished testimony as to the character of the lands now in question, and the principal question raised by the present cases is, whether or not she has waived her right in this respect, and has consented, in lieu thereof, to rest her claims upon other facts and considerations, under a different plan mutually agreed upon by the State and the United States. A review of the action of your office and of the State is necessary to determine this question.

On June 30, 1880, Commissioner Williamson instructed R. V. Ankeny to proceed to Oregon for the purpose of making an examination in the field of the lands claimed by the State under its swamp grant, the claim to which had not then been fully adjudicated, conforming his action to certain instructions issued to him under date of July 22, 1879, and to the Circular ("Rules and Regulations") of August 12, 1878. These, both, were to the general effect that he should personally examine the lands and endeavor to acquire information, by inquiry of well-informed persous residing in the vicinity, as to the character of the lands. He was required to confer with the State authorities, and, if they decided to appoint an agent to co-operate with him in ascertaining what lands inured to the State, to agree upon some plan of operations; and, if such agent were appointed, to transmit to your office a list of the tracts upon which the two agreed, accompanied by testimony as to the character of each tract, and, in case of their disagreement, to report his own opinion, accompanied by like testimony. This appointment of Aukeny, and the proposed method of adjusting the claim of the State, were adopted at the request of the State; (see Governor Thayer's letter of January 29, 1881, and the letter of the State board for the sale of its school and university lands under date of March 8, 1881, infra).

On August 4, 1880, Ankeny announced to your office his arrival in Oregon, his conference with the governor of the State and his council, respecting the method of investigating the character of the lands, and an agreement on their part to appoint an agent to co-operate with him; that testimony would be taken in the field after he (Ankeny) had made his examination, and that he was then preparing a form of affidavit similar to that used in Florida, (when the swamp lands of that State

were investigated by Ankeny, and respecting which the instructions of July 22, 1879, were issued), which met the approval of the State authorities; and that, when printed and the State's agent was desig nated and ready, they would commence their work.

On September 1, 1880, Commissioner Williamson instructed Ankeny that the taking of testimony in the field would require more labor, time and expense than was contemplated when his instructions were issued, and that, in case the State appointed an agent to act with him, they should jointly examine the lands claimed by the State, make out lists of such as were found to be of a swampy character, and attach their affidavits thereto, setting forth the facts, and that such "affidavits" were what were referred to in his original instructions as "testimony." He was also instructed to submit this plan of operation to the State authorities, and, when agreed to by them, proceed to the examination as instructed on June 30. These instructions wholly changed those of June 30, in respect to the mode of proceeding; and, if the State concurred therein, the report of the two agents based upon their personal examination of the lands, and on such information as they could acquire, and on their own affidavits, was to control the disposition of the lands, instead of ordinary and formal testimony. To this letter Ankeny replied October 1, 1880, that he had submitted to the agent (Whiteaker) appointed by the State this modification of his original instructions, and that Whiteaker had submitted to him (Ankeny) his instructions, directing him "to act in all matters pertaining to his duties as special agent of the State of Oregon in full accord and concert with all the orders and instructions of the special agent of the United States General Land Office"; that he (Whiteaker) deemed his instructions sufficient authority for him to act as suggested, and that he would at once notify the governor of the State of the modification. That such notice was given does not directly appear, but, inferentially, and most conclusively, the fact appears that the State authorities were cognizant of the modification from the time their agent commenced his duties. No work was performed by either or both of these agents jointly, except under the modified plan. It was this plan or system, therefore, to which Governor Thayer referred in his subsequent letter of January 29, 1881, when he advised your predecessor that Ankeny's appointment, in pursuance of his (the governor's) request, not only met with his full approval, "but that the system adopted" would, in his opinion, “prove highly successful," and the co-operation of Ankeny with Whiteaker, the State's agent, "in viewing the lands," and the report of the work which they had prosecuted to a considerable extent during the last season would, in his opinion, be highly satisfactory to the parties concerned. He also expresses his anxiety "that the system be continued," convinced that it would "result in a fair and honest adjustment" of the claim of the State.

The same appears from a letter of the governor, the secretary of

State, and the State treasurer, acting as a board for the sale of certain lands of the State, to your predecessor, under date of March 8, 1881 (supra), wherein, after expressing their approval of Ankeny's appointment and doings in connection with their own agent, they urge upon him "the great necessity of continuing the system of selecting the swamp lands, inaugurated as aforesaid, in force."

These agents reported to your office a large number of tracts, some as swamp and inuring to the State, and others as dry and not so inuring. The State is silent as to those reported as swamp, but claims that those reported as dry were erroneously so reported, because testimony was not offered as to their character according to the original plan agreed upon by the Secretary of the Interior and the State; in other words, it now disclaims the mode of investigating the character of the lands, (suggested by itself, and agreed to by the United States), in which it had taken part, and claims that these proceedings were void, and that the State may still insist upon the original plan, and submit testimony as thereby provided.

It was competent for the State to insist upon the original plan. It was equally competent for it, with consent of the United States, to modify and waive that plan and act under a different one. And this most clearly, in my opinion, it did, not only agreeing to the modified plan, but executing its agreement by appointment of an agent to act thereunder, and aftewards approving his doings.

It is claimed, however, that these acts of the governor and other State officials were void, because not sanctioned by prior legislative authority. Admitting even that no legislation conferred upon them the powers they assumed, yet as the Legislature has since been in session, and (so far as appears) has not dissented from their action, its assent thereto may fairly be presumed. It was also, in my opinion, competent for the United States to regard the governor of the State as its authorized agent in this matter, no legislative enactment to the contrary having been brought to its notice. I can not therefore recognize this claim, but hold that, under the facts, the State waived its right to testimony as to the character of the lands, and consented and agreed that they be determined under the modified plan, by the examination of its own and the agent of the United States, supported by their affidavits, and such information as they could acquire, without formal testimony; and, hence, that it was competent for your office to adjudicate the character of the lands upon the report of these agents, and that in this respect there was no error in your decisions.

It is, however, further claimed that one of these reports is false and fraudulent by the forgery of Ankeny in material matters, and, therefore, not entitled to consideration. It appears that the several reports were sworn to in December, 1881, and were transmitted to your office in the spring of 1882. They were (with one or two exceptions) written in black ink, upon a blank prepared for the purpose, all of the blanks 7747 LAN--22