filing of his declaratory statement, professed that his residence upon said land was other than that of a tenant.

A residence thus begun and continued could not by the mere will of the tenant be converted into a legal residence in his own right, by which a settler's claim to public land might be established.

The motion for reconsideration is therefore granted, the filing of Swaim is canceled, and the entry of Call will stand. Your decision is modified accordingly.

HOMESTEAD-RESIDENCE.

BLACK v. CANON.

Failure to commence residence within the prescribed time after transmutation will not forfeit the entry, where it was caused by family sickness and severe weather, and where there was otherwise good faith.

Acting Secretary Joslyn to Commissioner McFarland, July 29, 1884.

I have considered the case of Isaiah W. Black v. George D. Canon, involving the latter's homestead entry, made September 22, 1882, upon the SW. of Sec. 26, T. 108, R. 62, Mitchell, Dakota, on appeal by Canon from your decision of October 15, 1883, holding his entry for cancellation.

This contest was commenced April 14, 1883, upon allegations of abandonment. It appears that Canon filed pre-emption declaratory statement June 3, alleging settlement June 1, 1882. He immediately broke five acres of the tract, sleeping in a wagon thereon during the time, from his inability from poverty to build a house. He then sought work elsewhere to obtain a livelihood, and to enable him to pay for the land. But at length doubting his ability to make his payment within the required time, he changed his declaratory statement to homestead, and then went to his former home in Nebraska to work for wages, intending to return to the land within six months from his entry. He was there detained by the sickness of his mother and by the severity of the weather, so that after a return journey of sixteen days he did not reach the land until April 22, 1883, or about one week after commencement of the contest, but before the first publication of the notice. He immediately purchased lumber and commenced the erection of a house, and was at work on the land when notice of the contest was posted thereon, and was residing thereon at the date of trial. The whole case shows his good faith and purpose to comply with the law, and that he was only prevented therefrom by climatic and other reasons beyond his control. The short time of his failure to commence residence on the land does not, under the facts, require forfeiture of his claim, more especially as there are no equities in favor of Black, who has never resided upon nor improved it.

I reverse your decision and dismiss the contest.

HOMESTEAD--COMMUTATION; CULTIVATION.

JOHN E. TYRL.

Clearing the land of timber for the purpose of planting it, is cultivation within the meaning of Section 2301, Revised Statutes.

Acting Secretary Joslyn to Commissioner McFarland, July 29, 1884.

I have considered the appeal of John E. Tyrl from your decision of January 17, 1884, in which you held for cancellation his cash entry No. 6198, March 13, 1883, for the W. † of NE. †, and Lots 1 and 3 of Sec. 30, T. 62 N., R. 23 W., Duluth district, Minnesota.

It appears that said Tyrl made homestead entry No. 1894, for said tracts on January 24, 1883, alleging settlement July 15, 1882. March 7, 1883, he applied to, commute said homestead entry under Section 2301, Revised Statutes, which was allowed, and cash certificate No. 6198 was issued March 13, 1883.

You held said cash entry No. 6198 for cancellation, for the reason that the proof "clearly establishes the fact that no portion of the land was cultivated by him."

It appears from the proof that Tyrl was qualified to make said homestead entry, that he settled upon the land at the date alleged, established his residence thereon the same day, built a log house 12x16 feet, in which he has resided continuously up to the time of making proof, and that his improvements are worth one hundred and fifty dollars.

The proof also shows that Tyrl has cleared "about one half acie" of said land, but has cultivated no portion of it nor raised any crop there

on.

The reason given by Tyrl for non-cultivation is that he "settled too late."

It is not denied by the counsel for the appellant that the commutation proof required by said Section 2301 must show some cultivation by the entryman. It is, however, insisted that, in this case, the clearing of about one-half acre, taken in connection with the time of settlement, and the other proof offered, is a sufficient compliance with the requirement of said section.

Cultivation, as defined by Webster, is "the art or practice of cultivating; improvement for agricultural purposes; tillage; production by tillage."

It is clear that the kind of labor, as well as the amount required to prepare agricultural land for tillage, will depend upon the character of the land sought to be cultivated.

The clearing of land covered with timber is as essential to successful cultivation of the soil as is the actual planting of the seed.

The real question at issue is the good faith of the entryman.

In this case there is no adverse claimant.

7747 LAND——4

The entryman and his witnesses swear that he has acted in good faith, and I see no reason why the entry should be canceled. Your decision is accordingly reversed.

RAILROAD GRANT-PREDECESSOR'S DECISION.

SAINT PAUL, MINNEAPOLIS & MANITOBA RAILROAD COMPANY v. BOND.

The Eben Owen decision is held not to apply to the present case, as there was no selection by the railroad company of the tract, which is in the indemnity limits. As there never was a decision on the merits, and the homesteader has kept alive his claim by residing on the land, the case may be reconsidered.

Acting Secretary Joslyn to Commissioner McFarland, July 30, 1884.

I have considered the case of the Saint Paul, Minneapolis & Manitoba Railroad Company v. John M. Bond, involving the SE. of Sec. 1, T. 129, R. 35, St. Cloud, Minnesota, on appeal by the company from your decision of November 13, 1883, re-opening his case.

It appears that the land is within the indemnity limits of the grant to the State, now enjoyed by said company, withdrawal for which became effective February 12, 1872. Bond made homestead entry No. 10,325 thereon, March 6, 1879, alleging settlement in March, 1877, and continuous residence and improvement thereafter. On April 15, 1881, your predecessor held the entry for cancellation, because of conflict with the withdrawal. Bond appealed, alleging that at date of the withdrawal the land was occupied by one Sutton, into possession of whose improvements and claim he came, which made his claim good under the act of April 21, 1876; and alleging further that the land had been relinquished by the governor of the State under the State act of March 1, 1877. These were new facts, and justified a reconsideration of the case by your office, which was made; and it was held that the plea of Sutton's claim was insufficient, and that Bond might have thirty days in which to prove the fact of the governor's relinquishment. Of this decision his attorney was notified, and, no further action on his behalf being taken, your predecessor closed the case and canceled the entry October 25, 1881. There has been no appeal from this action. The railroad company have not selected the land. On March 29, 1883, Bond applied for reconsideration of his case, again claiming by virtue of the act of April 21, 1876, and of the governor's relinquishment. You reopened the case, and found error in the decision of your predecessor, that the departmental records show that said relinquishment was made, and that Bond's claim was confirmed by said act of Congress. You accordingly allowed him to perfect his original appeal, which had never been transmitted to this Department; and from this the company appeal.

The first ground is that it is error for a Commissioner to reverse a decision of his predecessor, which has become final, and they cite as

authority the case of Eben Owen (9 C. L. O., 111). That case was one where the decision involved the claim and right of a third party, a coutestant, and was made under Section 2273, Revised Statutes, providing that the Commissioner's decision shall be final "in cases of contest for the right of pre-emption," which by analogy is extended to other classes of contest. As the right of a railroad company to indemnity lands attaches only by selection, as there was no selection by the company in this case, there was no adverse right, and no contest on the question of priorities. Further, the decision was not final on the merits, but the case was closed for want of prosecution. As Bond has kept alive his claim to the land by continuous possession, I see no reason why your office may not now consider it on its merits. The question is between him and the government, and a stranger to the record cannot object to its reconsideration.

The second error assigned is that the relinquishment of this land by the governor of Minnesota cannot divest the rights of the railroad company. As they have made no selection of the land, they have acquired no rights in it, and were therefore not prejudiced by said relinquishment.

In relation to Bond's claim under the act of April 21, 1876 (19 Stat., 35), I may observe that in my judgment said act does not apply to his case. As a railroad company's title to idemnity lands is acquired by selection, and not by the definite location, a legal settlement on such lands before or after definite location and prior to their withdrawal gave a good claim to the tract, and required no act of Congress to confirm it. It excepted the land from the operation of the withdrawal (Jasper Prest, 2 L. D., 506).

I see no reason why Bond should perfect the appeal referred to in your decision, unless points of law other than those above decided arise in your disposition of the case. The case is properly before you for reconsideration; if you decide it against him, he has the right of appeal; if in his favor, the company will be heard on any new question of law or practice.

With this modification, your decision is affirmed.

PRACTICE-CONTEST EXPENSES.

CRAM v. MCALLISTER.

The contestant against a homestead entry must pay all the costs of contest. The expense herein described is no exception to the rule.

Assistant Commissioner Harrison to register and receiver, Huron, Dak., July 30, 1884.

Your letter of June 24, 1884, is at hand, transmitting the appeal of Allen P. Cram from your action dismissing his contest against homestead entry No. 4456, June 23, 1883, of Cora McAllister, for S. of NE. 1, NE. of NE. of Sec. 26, and SE. of SE. of Sec. 23, T. 109, R. 61.

You state that "on the day of trial, after disposing of certain matters, which are duly set forth in the appeal, Cram refused to pay the costs incurred," whereupon the contest was dismissed.

The "certain matters" referred to as "duly set forth in the appeal" are to the effect that on the day of trial the plaintiff made affidavit for continuance, because of the absence of witnesses, setting forth what he expected to prove by them.

This affidavit was admitted by the defendant under Rule 22. It was then stipulated that further testimony should be reduced to writing by the stenographer, and submitted to the register and receiver.

The plaintiff offered no testimony, resting his case upon that in the admitted affidavit of continuance, and paid all costs up to this point. The defendant had reduced to writing the testimony of nine witnesses, and plaintiff was called upon to deposit $45 to pay the cost of taking this testimony. This he refused to do, and you dismissed his contest. In this you were correct. The reducing of this testimony to writing does not come under the exception made by Rule 56, but under the general rule which requires the contestant of a homestead entry to "pay the costs of the contest."

PRE-EMPTION AND HOMESTEAD-FINAL PROOF.

CIRCULAR.

Registers enjoined to see that final-proof notices are published only in established bona-fide newspapers having an actual and legitimate circulation in the vicinity of the land.

WASHINGTON, D. C., JULY 31, 1884.

Registers United States Land Offices :

GENTLEMEN: Numerous complaints are received at this office relative to the publication of final proof notices under the act of March 3, 1879 (20 Stat., 472). Unjust discrimination in favor of particular papers, and publication in papers charging excessive rates, are among the complaints made, while still more serious complaint exists that notices are frequently published in papers having little or no circulation or no existence except for the purpose of obtaining such advertisements, and in some cases that fraudulent publication is made by the insertion of the advertisements in a few copies only of a newspaper and not in the regular edition, or that a correct notice is inserted in a few copies of the paper and the notice then changed by altering the description of the land or otherwise, and the altered notice printed in the remainder of the issue.

You are enjoined to exercise the greatest care and diligence to see that final proof notices are published only in established bona fide newspapers, having an actual aud legitimate circulation in the vicinity of the land. The paper must be actually published where it purports to be, and must be a reputable newspaper of general circulation and not a mere land