fice at Dardanelle, Arkansas, rejecting his application to make private cash entry of the NE. of the SE. of Sec. 34, T. 7 N., R. 32 W., for the reason that the land is "unoffered."

The appellant insists that your office erred because, if said land is vacant government land, as claimed by the said register and receiver, and has never been taken from the market or appropriated, it has cer tainly been included in some general advertisement, if so, it would seem to me, that another offering would not be required."

An inspection of the records of your office show that said township was offered on July 31, 1831, under proclamation of President Jackson, dated March 25, same year.

The act of Congress approved June 21, 1866 (14 Stat., 66) (Revised Statutes 2303) restricted the disposition of the public lands in said State (inter alia) to entrymen under the homestead laws.

This act was repealed by act of Congress approved July 4, 1876 (19 Stat., 73) which expressly provided "that the public lands affected by this act shall be offered at public sale as soon as practicable from time to time, and according to the provisions of existing law, and shall not be subject to private entry until they are so offered."

The tract in question, not having been re-offered as provided in said act, can not be entered at private cash entry.

The decision of your office must be and it is hereby affirmed.

ACCOUNTS-UNITED STATES DEPUTY SURVEYOR.

GILBERT M. WARD.

An account rendered by a deputy surveyor, and duly approved by the surveyor general, should not be rejected on the report of a special agent, without due opportunity for a hearing on the merits of the case.

Secretary Vilas to Commissioner Stockslager, February 5, 1889.

By letter of your office, dated July 16, 1887, addressed to J. Cabell Breckinridge, Esq., United States surveyor-general, at Olympia, Washington Territory, your predecessor, Commissioner Sparks, adhering to his decision of March 19, 1887, finally rejected the meanders of three several streams, known, respectively, as East Twin river, West Twin river, and Deep creek, in fractional township 31 north, range 10 west, Willamette Meridian, Washington Territory, as shown by survey of said fractional township, made by deputy surveyor Gilbert M. Ward, under his contract No. 315, dated February 27, 1885; and disallowed Ward's account to the extent of the amount charged for such meanders. From this decision Ward appeals.

The facts in the case, as far as disclosed by said decision of July 16, 1887, are found to be correctly stated therein, and reference is made thereto.

The protest of Ward, referred to in said decision, alleges substantially, that the streams in question take their rise among hills and mountains, some of which are over seven thousand feet in height, and generally covered with snow from October to June; that the discharge of water through these streams, from the melting snows on said hills and mountains, during the months of May and June, is so great as to make them large and rapid rivers, sometimes impossible, and always difficult, to cross; that the tide at the mouths of these rivers rises to the height of from nine to eighteen feet, and thus causes the water to flow inland for a considerable distance; that the settlers located near these streams all desired that they be meandered, and not closed to the public, as in the greater part of the year they serve as highways for canoe naviga. tion, and thus save the making of roads in a rough, timbered country, where roads are very difficult to construct; that all travel in and about said township 31 is done either on foot or by canoe, and in no possible manner can a team proceed even for the shortest distance; that when said survey was made the streams were at their greatest height and their meanders were very difficult to make; that the work complained of was performed in the best of faith, protestant believing that he was doing nothing but his duty under his contract, in accordance with his understanding thereof, based in part upon information obtained from Surveyor General McMicken to the effect that a stream, two chains wide, was within meanderable limits. He further states that, if necessary, he can furnish proof of the truth of these allegations, and asks that his account be allowed and paid in full.

Examiner Martin, in answer to this protest, adheres to the opinion expressed in his former report, as touching the propriety of these meanders, and expresses the belief that further investigation will confirm its correctness. He adds, substantially, that at the time he examined the survey there were but three white settlers in said township 31, all of whom assisted him in making the examination and all freely expressed the opinion that these streams could not be made available for any public use whatever; that when not flooded the streams are small, shallow and rapid, and when swollen they are rushing torrents, upon which no man would dare to risk his life in a canoe or boat; that said fractional township 31 extends but a few miles south of the strait of Juan De Fuca, which forms its northern boundary, and that the lands south of it are unsurveyed and so rough that they never can be settled; that these streams, owing to their rapid descent, are not affected by the high tide more than for a distance of about twenty chains from the beach of the strait; that he stepped across East Twin River a few rods above its mouth at low tide; that the only reason for keeping these streams open that has even the appearance of feasibility is found in the fact that "when swollen by the June floods, saw logs, railroad ties and other timber might be floated down them into the strait and towed to mills and market." He expresses regret that Ward should be subjected

to loss, but thinks "he should have exercised better discretion and given less attention to the wishes of those who perhaps were formulating rapacious schemes with reference to the excellent timber on the public domain in that vicinity."

It appears from the records of your office that the amount of Ward's accounts, as approved by Surveyor-General McMicken, with whom his contract was made, is $892.99. The amount paid him is $624.45. The difference $268.54 is the amount now in controversy.

The only serious question presented by Ward's appeal is whether a hearing should have been granted him upon the allegations of Examiner Martin's report, before final action by your office upon his account, the same having been regularly approved by the surveyor-general of the Territory.

In addition to taking the usual oath of office, Ward, upon the completion and return of his survey of said township, took and subscribed the further oath that said survey had been faithfully and correctly executed according to law and the instructions given him by the surveyor-general, and the survey as made and returned by him, showing the character, and meandering of said streams, was regularly examined and approved by said Surveyor-General McMicken, before being forwarded to your office.

It can not be denied, under these circumstances, that the deputy-surveyor has made out a prima facie case in support of his account as originally presented. The rejection of a part thereof is based solely upon the report and supplemental report of Examiner Martin. In my opinion such rejection should not have been adjudged simply upon said reports, but a hearing should have been had to determine the truth of the allegations therein contained.

The material charges made by Martin, as stated in his original report, are that neither of these streams is a "navigable river," or a "well defined artery of internal communication;" that they are simply "small creeks and none of them can be ascended at any stage of water, even with a canoe, one hundred yards above its mouth"; that "to create fractional subdivisions by meandering such streams is worse than ludicrous," and that such meanders "should be rejected because entirely superfluous and detrimental alike to the interests of the settler and the government."

Upon these charges, in view of the showing made by Ward, I think a hearing should yet be allowed, and you are accordingly directed to order such hearing to be had before the United States surveyor-general for Washington Territory, in accordance with the rules of practice.

The subject of the inquiry should be whether these streams are "well defined natural arteries of internal communication," or, of such a char acter as that, according to the custom and practice prevailing in the Department at the time said survey was made, they could reasonably have been considered as within meanderable limits, under the rules and

instructions then in existence for the guidance of surveyors-general and their deputies. It should also be shown whether they have been utilized, or, are capable of being utilized, for any purpose, and, if so, by whom and for purpose, and it may be well to inquire what was the condition of the streams at the time of said survey.

Upon the receipt of the testimony taken at such hearing, together with the report of the surveyor-general thereon you will readjudicate the case.

Your said office decision is accordingly modified.

TIMBER LAND ENTRY-PRACTICE.

REED v. FITZGERALD.

The fact that land might be cultivated and crops grown thereon would not except it from entry under the act of June 3, 1878, unless it is shown that such crops could be profitably raised.

A rehearing should be allowed where evidence was introduced and considered under an issue not raised on the hearing as originally ordered.

Secretary Vilas to Commissioner Stockslager, February 5, 1889.

The Department, by its decision of July 9th last, in the above stated case, affirmed the action of your office, holding for cancellation the preemption filing of Reed, for the SE. of Sec. 35, T. 1 N., R. 2 E., H. M., Humboldt, California, and modified your decision to the extent of allowing the timber land cash entry of Hortense E. Fitzgerald, provided she relinquishes her right to the W. of said SE. of Sec. 35, it appearing that some fifty or sixty acres thereof would be fit for cultivation, if the timber and undergrowth were cleared away.

Mrs. Fitzgerald has filed a motion for review of said decision, upon the grounds, that the evidence fails to show that said sixty acres is not "chiefly" valuable for the timber upon it, or that it is fit for "ordinary agricultural purposes." Second, that the question as to the character of the land was not involved in the trial of the case, and Fitzgerald had no notice that testimony upon that point was necessary.

The facts in the case are, substantially, as follows: Reed filed preemption declaratory statement on said land June 6, 1882, alleging settlement thereon May 31, same year; and Mrs. Fitzgerald's application to purchase under the timber land act was allowed May 27, 1884. It appearing that said entry had been allowed without notice to Reed, a hearing was ordered to determine the question of priority of right, and upon such hearing it clearly appeared that Reed had not made a valid settlement upon the land in question, and for this reason his filing was held for cancellation, but in the investigation of said case it appeared from the testimony of Reed, offered for the purpose of showing his good faith as a pre-emptor, that he had cultivated a part of said tract for

three years. The testimony on this point is to the effect, that he planted a bucket-full of potatoes and put the beans in to see if they would grow; that he harvested a half a bucket full of oats the first year, and placed them in his cabin; that he did not dig all of his potatoes, but he got about a bucket-full; that he got about half a bucket-full of potatoes the third year, and only planted the potatoes, beans and oats to see if they would grow; that he did not plant them for the purpose of complying with the requirements of the pre-emption laws. On this point, another witness testified "that Reed put in a bucket-full of potatoes, and that he knows he took out enough for a meal." John Foley, another witness, testified in behalf of Reed, that in March 1883, or March 1884, he saw about a quarter of an acre planted in potatoes.

This seems to be all the testimony tending to show the value of this land for agricultural purposes.

A special agent of the land office testified, that it would cost $200 an acre to clear the land claimed by Reed to be more valuable for farming purposes than for timber, and that it was undoubtedly timber land.

The witnesses for Reed did not testify as to the value of this land for agricultural purposes, but the only testimony as to the cultivation of said land was brought out for the purpose of showing the validity of Reed's settlement. On the other hand, all the four witnesses for Fitzgerald testified that the land was valuable for the timber and for nothing else. The local officers found that Reed intended to acquire title under the pre-emption laws, knowing that the land was more valuable for timber than for farming purposes.

Upon a further consideration of this case, I am of opinion that the correctness of the decision of the Department of June 9th may be questioned. The act of June 3, 1878, allowing the purchase of timber land in certain States and Territories, provides for the sale of lands "valuable chiefly for timber, but unfit for cultivation."

I do not think that the mere fact that some part of the land might be cultivated and crops grown thereon would except such land from the operation of the act, unless it is shown that said crops might be profitably grown.

This seems clearly within the rule laid down by the Department in Hughes v. Tipton (2 L. D., 334), wherein (referring to the decision in the case of Spithill v. Gowen, 2 L. D., 631) it is said:

In ruling on Tipton's application, you have held, I observe, that entries under the act of June 3, 1878, "can only be made for land which is wholly unfit for cultivation, after the timber has been removed," and you base the ruling on the case last mentioned. This ruling carries that case beyond its letter and spirit, which go no further than to hold that the soil must be "unfit for ordinary agricultural purposes," in order to subject it to sale as timber land. Such is the correct standard, undoubtedly, and the only one which could be properly adopted in view of the law, which institutes a comparison of values by force of the descriptive terms, "valuable chiefly for timber, but unfit for cultivation." A similar comparison is made in the mining law between the value of agricultural and mineral land, and