action of the Department can avail to give them vitality. The disposing power of Congress could alone be invoked to effectuate the title. But if valid as claimed, or if merely voidable, no action should be taken looking to a recognition of conflicting claims initiated after their date, while they remain of record undisposed of upon their legal or equitable merits, after fair trial and examination.

Having strong doubts as to what the final conclusion should be, but being reasonably satisfied that upon any proper construction of law the entries if invalid are at the most voidable only and not void, I accordingly vacate and revoke my decision of October 2, 1884, and all conflicting rulings affecting these cases, and direct that the SipchenRoss case, in which patent has already issued, be not made a precedent, pending the final judgment of this Department hereafter to be rendered.

The approval of the entries of Weimar, Murphy and Kirst, having been made by you under a misapprehension of the true condition of the case in issue, is overruled. The locations of Ross will be reinstated and permitted to stand pending the final decision. The testimony in the pre-emption cases will remain as a part thereof, with opportunity for such further showing in the matter as may be proper on either side. The papers will remain on the Department file for such future examination as may be necessary, and you will forward at the proper time any further papers which may be filed, material to the pending cases.

PRIVATE ENTRY-WYANDOTTE SCRIP LOCATION.

H. C. ODEN.

At the date of the scrip location the land was not in reservation but “subject to preemption and settlement" and therefore open to such location under the provisions of the treaty.

The scrip is evidence of a right under treaty provision and its validity unquestioned.

Secretary Teller to Commissioner McFarland, December 18, 1884.

I have considered the appeal of H. C. Oden from your decision of December 10, 1883, rejecting his application to file pre-emption declaratory statement for the NW. of Sec. 10, T. 1 S., R. 2 W., M. D. M., San Francisco, California.

Said application was made April 27, 1883, with allegation of settlement March 6, 1883, and was rejected because the land had already been appropriated by the location thereon of Wyandotte scrip July 10, 1878.

It is claimed on appeal that the tract was within the claimed limits of the El Sobrante grant, which was at the date of the scrip location sub judice, and therefore that the disposal under the scrip was illegal

and without force. Your decision holds that the tract in question, except a small fractional portion of the SW. thereof, was originally a part of the San Ramon Rancho, and was excluded therefrom by final survey approved and patented April 7, 1866, and was accordingly public land prior to and on July 10, 1878; Further that no portion of the tract was ever embraced in any statutory reservation for the El Sobrante claim.

The status of the land relative to the Sobrante brings the case within the reason of departmental decision of July 15th last in the case of Joel Docking (3 L. D. 204).

That decision is applicable to this case, and affirms your view as above expressed.

The tract, except a small portion of the SW. thereof, falls without the Higley survey of the Morago Rancho claim, which survey was held by the Department in the Docking case to be the boundary substantially of said rancho as claimed. It was therefore at the date of the location of the Wyandotte scrip public land, not in reservation, but "subject to pre-emption and settlement" as required by Article 9 of the Treaty of January 31, 1855 (10 Stat., 1159).

Your decision rejecting the pre-emption application is affirmed.

REVIEW; MARCH 3, 1885.*

In deciding said case I held that the lands in question were, at the date of the location of the Wyandotte scrip, (July 10, 1878,) public land subject to pre-emption and settlement as required under Article 9 of the treaty of January 31, 1855, (10 Stat., 1159,) and therefore subject to the scrip location. Holding thus I decided that the homestead and pre-emption claims initiated after the location of the scrip must be rejected. This conclusion is objected to in the motion for review and a reconsideration asked, because (1) the appeals failed to properly present the questions at issue, (2) other cases involving the same question and in which the issue has been fully presented are now pending, and (3) as it is contended, the location of the Wyandotte float was illegal and void.

The questions involved, as between the scrip locations and the appli cations to file or enter, were carefully considered in making the decision, and, if it be true, as suggested, that counsel failed to properly present the grounds of appeal, I fail to see why such fact should furnish a good reason for review. I am also unable to see why the fact that other cases involving the same questions are pending in the local office should delay the consideration and decision of these cases by the Department. As to the third ground for review, it is claimed in effect, first, that

*The cases of Samuel Weldon and Charles L. Perkins involving the same question were disposed of in this decision.

there was no authority of law for the issue of the Wyandotte scrip, and, second, if such authority exists, that said scrip was not properly locatable on the land in controversy, because at the date of location the township plat of survey had not been filed.

The treaty of 1842 specifically granted lands, to be selected, and that of 1855 in terms recognized that such grant had been made.

I have no doubt as to the validity of the scrip with which the location was made. It was simply a certificate under the grant contained in the treaties of the right to select a certain amount of public land subject to pre-emption and settlement. It was evidence of a right under treaty provision. The right thus conferred has been repeatedly recognized by the Supreme Court of the United States.

In Walker v. Henshaw (16 Wall., 436) the question of location of scrip of the very character and kind as that herein described was under consideration and no remark was made even suggesting the illegality of the issue of said scrip, nor is the right or authority of the Land Department to issue patents under locations there with questioned.

The objection that the scrip was not properly locatable on the land in question because the township plat of survey had not been filed, is not in my judgment tenable.

The land was at the date of the location subject to pre-emption and settlement, and the treaty provisions made such land subject to selection and location as made in this case. That is, it placed claimants under these floats and pre-emption or homestead claimants on an equality of privilege. The claim first presented for land subject to pre-emption and settlement has priority. After full consideration of all the matter presented, the motion for review is denied and transmitted herewith.

PRACTICE-APPEAL; EVIDENCE.

DAVISON v. PARKHURST.

The record in separate cases should not be consolidated on appeal.

When it is desired to use testimony taken in another case, such evidence should be copied and filed with the case.

Acting Secretary Joslyn to Commissioner McFarland, March 6, 1885.

It is observed that this case was transmitted with the case of Davison v. Smith, involving different tracts, and the parties stipu lated that the testimony in each case should be used in the other so far as the same is applicable. Although separate reports were made in the cases and separate decisions were rendered by your office, yet the record was consolidated and transmitted as one case. This is bad prac

tice and leads to confusion. Each case should be tried separately and if counsel wish to use testimony taken in another case, that portion upon which they rely should be copied and filed with the case, and the district land officers should be instructed accordingly.

The rule relative to appeals as laid down in Griffin v. Marsh and Doyle v. Wilson (2 L. D., 28) and Southern Minnesota Railway Extension Company v. Gallipean et al. (3 L. D. 166), must be observed.

SURVEY.

P. B. JANDON ET AL.

The original survey being obviously erroneous, a re-survey is directed to include certain lands omitted on the former survey.

Secretary Lamar to Commissioner McFarland, March 12, 1885.

I have examined your communication of the 7th ultimo transmitting for Departmental consideration the application of P. B. Jackson et al., for the survey of certain lands in Townships 21 and 23 S., R. 28 E., and 22 S., R. 27 E., Florida. The affidavits and diagrams which accompany the application go to show that the several tracts referred to were erroneously omitted in the original survey.

The allegations that said lands are outside the meanders of lakes in the townships mentioned; that they are timbered and of such elevation as to preclude the possibility of their having been covered by water at the date of the original survey, are sustained by an examiner of surveys sent by your office to inspect the lands. You conclude that it is shown that errors were made in the original surveys which should be corrected by re-surveys of so much of the townships mentioned as may be necessary to embrace the tracts referred to in the application under consideration.

I see no reason why re-survey may not be made as you recommend, and you are authorized to give direction to the surveyor general of Florida accordingly.

RAILROAD GRANT-CONFLICT WITH ENTRY.

ST. PAUL, M. & M. R. R. Co. v. FORSETH.

When the withdrawal within the indemnity limits took effect, the tract involved was covered by a homestead entry and hence excepted therefrom.

An entry though allowed upon au insufficient showing as to the qualifications of the entry-man is not void, but voidable, and while so remaining of record constitutes an appropriation of the land.

n this case the entry existing at date of withdrawal was made through an agent, and the affidavit accompanying the application was sworn to before the commanding officer of the entry man, setting forth that he was a single man, and in the naval service of the United States. Held, that though the entry-man did not appear to have had the proper possession of the land at date of entry, he was authorized under the existing practice of the land office to make the same, and the defect therein was cured by the provisions of Sec. 2308 of the Revised Statutes.

Secretary Lamar to Commissioner McFarland, March 12, 1885.

I have considered the case of the St. Paul, Minneapolis and Manitoba Railway Company v. Martin Forseth, involving the W. of SE. 1,

SW. of NE. and SE. of NW. 4, of Sec. 5, T. 129, R. 35, St. Cloud, Minnesota being on appeal from your decision of November 15, 1883, permitting Forseth to make homestead entry of the tract as per his application.

The land in question is within the indemnity limits of the withdrawal for the benefit of the St. Vincent Extension of the St. Paul & Pacific Railroad, now the St. Paul, Minneapolis and Manitoba Railway Company, under the grant of March 3, 1865, which became effective February 12, 1872.

enter.

It appears that one George A. White made homestead entry No. 4873, April 25, 1868, on said tract, which entry was canceled November 29, 1875, for abandonment. On May 9, 1883, Forseth made application to On notification, the railway company filed objections to said entry and prayed for a hearing, but the local officers without action forwarded the papers to you for consideration. On November 15, 1883, you held that Forseth was entitled to make his entry and the company appealed.

These facts would bring the case within the ruling of Secretary Teller in the case of Prest v. Northern Pacific Railroad Company (2 L. D., 506). But it is sought to except it from that decision, because, it is charged, the entry of White was null and void in its inception, having been made by an agent, the affidavit accompanying it being sworn to before the commanding officer of White; and setting forth that he was a single man and in the naval service of the United States.

There was no hearing in the case either in the local office or in yours, and I think the point presented by the company should be fully consid ered and determined by me. Under the homestead laws all applications to make entry are required to be accompanied by duly executed affidavits showing the qualifications of the party to make such entry. This requirement is made in order to show the good faith of the applicant, and is a matter, under the law, between him and the government. If satisfied with the showing, the application is allowed to be recorded; if not, it is rejected. If accepted on what may be thought an unsatisfactory showing of the necessary qualifications, or on a defective affidavit, either in form or substance, the entry is suspended and the party called upon to comply fully with the requirements of the Department. But such entry, if accepted, is not, because of the defective affidavit, absolutely null and void. It is an entry which may be perfected so that the party can obtain a patent for the land covered by it; or it may be avoided, because of defects, by the government, either with or without contest. But, having been accepted and recorded, until avoided, it is an entry, and as such segregates the tract from the public domain, precluding the claim of any one else to the land covered by it.

Had the local officers declined to receive the application their action would have been sustained. But in the absence of such action the