TIMBER CULTURE ENTRY-FINAL PROOF.

ROBERT M. WINSLOW.

There is no provision in the timber culture law requiring that the trees should attain any particular height or size before certificate and patent can issue for the land. The eight years of cultivation required by the statute, must be computed from the time the full acreage of trees, seeds, or cuttings are planted.

First Assistant Secretary Muldrow to Commissioner Stockslager, Febru ary 9, 1889.

Robert M. Winslow appeals from your office decision, dated December 6, 1887, rejecting, the final proof tendered by him under his timber culture entry, No. 1395, for the NW., Sec. 26, T. 141 N., R. 64 W., Fargo land district, Dakota.

The record discloses the following facts:

Entry was made July 5, 1878. Final proof was offered June 11, 1887.

The proof was rejected by the local officers, "for the reason that we do not think the trees have reached such size as will reasonably ensure their maturity without further protection."

This action was affirmed by your office, but claimant's entry was allowed to stand subject to his making new proof when he can show that the trees "have attained a growth such as will insure their permanent existence."

I can not assent to the reasons given for the rejection of this claimant's final proof. There is no provision in the timber culture law requiring that the trees should necessarily attain any particular height or size before certificate and patent can issue for the land, and in this respect the proof in this case is not necessarily defective.

The proof submitted, however, fails to show that the trees have been cultivated and kept in a healthy growing condition for the period of eight years plainly required by the law. The eight years of cultivation required by the timber culture act must be computed from the time the full required acreage of trees, seeds, or cuttings are planted. Departmental circular, June 27, 1887 (6 L. D., 284). This interpretation is manifestly in accord with the plain and positive terms of the act, and under it the claimant's proof is clearly insufficient, inasmuch as it shows a cultivation of less than seven years, instead of eight years, since the trees were planted. The proof must, therefore, for that reason, be rejected, and your decision to that effect is affirmed. The claimant will be allowed to submit new proof within the lifetime of his entry, when he can show the full eight years cultivation required.

This case is, in many respects, similar to that of Henry Hooper (6 L. D., 624), to which reference is made.

PRACTICE-APPEAL-RELINQUISHMENT-RESIDENCE.
O'BRIEN v. RICHTARIK.

Failure to file specifications of error within the required time will not defeat an appeal where such failure was caused by the appellant's inability to secure a copy of the decision.

A motion to dismiss an appeal, filed by a former attorney of the appellant, will not be considered where it is apparent that said attorney, at the date of said motion, had ceased to represent the appellant.

A relinquishment to be effective must be the voluntary act of the entryman.

In the absence of an intervening adverse claim, credit may be allowed a homesteader for residence on the land while covered by his previous timber culture entry. First Assistant Secretary Muldrow to Commissioner Stockslager, February 9, 1889.

On January 13, 1874, Jcseph Schumeker made timber-culture entry for the SE. of Sec. 8, T. 5 N., R. 3 E., Beatrice, Nebraska. This entry was, on October 22, 1883, canceled upon Schumcker's relinquishment and same day Frank Richtarik made timber-culture entry for the tract named. On November 12, 1883, John O'Brien filed against the entry of Richtarik his affidavit of contest, alleging that the land was not naturally devoid of timber and on the same day he (O'Brien) applied to make homestead entry thereon.

A hearing upon said contest was had at the local office on January 8, 1884, at which time Richtarik made default. Upon the testimony submitted the local office found "that at least twenty-five acres of natural timber is growing upon said section and at least five acres upon the SE. of said section; that said SE. was not subject to entry under the timber-culture act." No appeal was taken from this finding.

By office letter of August 16, 1884, you state, "that there is also now before me for action, certain affidavits submitted . . . in support of the application of said Schumcker for the re-instatement of his said canceled timber culture entry on the ground that its cancellation was brought about through fraud."

By the same letter, your office held that "a rehearing should be had in the case of O'Brien v. Richtarik and that Schumcker should be allowed to interplead therein, this with the view to arriving at all the facts bearing upon Schumcker's alleged fraudulent relinquishment of his entry and permanent right to the land so that ample justice may be done in the matter."

By letter of July 12, 1885, the local office transmitted the testimony taken at a hearing had before the local office on October 6 and 7, 1884, also the testimony taken before a justice of the peace at Wilber, Nebraska, on October 31, 1884, and before the local office in June, 1885. They also forward by the same letter, the application of Schumcker, dated October 7, 1884, whereby he asked that his timber-culture entry

be re-instated, or, in the event that it should not be deemed proper to re-instate said entry, that he be permitted to make homestead entry for the tract. Along with this application is submitted the formal affidavits made November 29, 1884, before the clerk of the district court by Schumcker and two witnesses, in support of his timber-culture entry, and which he asks in said application be accepted as proof of his compliance with the timber culture law.

In the said letter of July 12, 1885, the local office rendered their opinion to the effect that "if possible his (Schumcker's) rights should be restored."

On June 25, 1887, your office held "as Schumcker had no opportunity to disprove the charge made by O'Brien affecting the timber character of the land," and he (Schumcker) having died since the transmission of the record to your office, that his (Schumcker's) "heirs and legal representatives should be given an opportunity to be heard on that charge, or if such charge be admitted and confessed to be true, then in order to save the valuable improvements. they should be allowed to make homestead entry of the tract involved." From this decision O'Brien appealed. The attorney for Schumcker's heirs on January 5, 1888, moved to dismiss the appeal.

Notice of your decision of June 29, 1887, was sent by the local officers to the attorney for contestant by letter, dated July 9, 1887, but the letter did not contain a copy of said decision. By letter, dated September 5, and received at your office September 12, 1887, said attorney forwarded his notice of appeal. In this letter the attorney stated, that he received such notice July 12, 1887; that the attorney, who had represented Schumcker at the hearing, had withdrawn from the case, and that he did not know who was attorney of record for Schumcker.

From an endorsement upon said letter of September 5, 1887, it appears that your office, on December 9, 1887, returned said notice of appeal for correction and for service on counsel (E. C. Ford) of "opposite party."

On December 22, 1887, the contestant's appeal and specifications were received at your office, together with registry receipt of notice to the attorney named.

It appearing that notice of the appeal was filed within sixty days from notice of the decision appealed from, that the attorney for the contestant was, as contended by his letter of January 26, 1888, prevented from filing his specifications of error within such period, by his failure to obtain a copy of said decision, and that notice of such specifications of error was properly served after the said notification of December 9, 1887, by your office, this motion can not, in my opinion, be sustained.

On November 23, 1888, the attorney for appellant, O'Brien also filed a motion to dismiss the appeal. This motion is based upon the allegation that O'Brien has abandoned the land and taken up a homestead or 16184-VOL 8-13

pre-emption claim in Kansas; that O'Brien is not the real party in interest, as contestant and his said contest was in bad faith; that O'Brien has failed to keep his agreements with his counsel and that the equities of the case are with the heirs of Schumcker.

It being apparent that the said attorney did not represent the appel lant at the date of the last named motion, the same has not been considered.

The material facts are sufficiently stated in the decision appealed from, to which reference is hereby had, and I concur in your conclusion that the relinquishment of Schumcker was induced by questionable methods, and that it was not his voluntary act.

It is well settled that a relinquishment, to be effective, must be the voluntary act of the entryman. Schumcker's relinquishment was not his voluntary act. The entry made by him should, therefore, be re-instated and his heirs allowed to submit proof in support of the same.

I can not, however, concur in your conclusion that the heirs of Schumcker should at this time be permitted to acquire title to the land under the homestead law. It is true that in the absence of an intervening adverse claim, credit could be allowed for Schumcker's residence upon the land while covered by his timber-culture entry. Falconer v. Hunt et al. (6 L. D., 512).

It is also true that the evidence creates a suspicion that O'Brien's contest against Richtarik's entry was instituted for the benefit of his brother-in-law. The record, however, does not affirmatively show that such was the fact.

The attention of the Department having been called by the allega tions of O'Brien in said contest to matter which goes to the validity of Schumcker's entry, the contestant, O'Brien, should, in my opinion, be accorded the right to be heard.

So far as the record discloses, no action has been taken upon the finding of the local office, that the land was not subject to entry of Richtarik. Richtarik has not appealed, and his entry will therefore be canceled.

In accordance with the view heretofore expressed, you will re-instate the timber culture entry of Schumcker, and notify his heirs that they will be allowed to submit proof in support thereof. If, however, after thirty days notice of this decision, the contestant, O'Brien, fails to appear and contest the re-instated entry of Schumcker, I can see no reason why the entry could not be canceled, and the said application to make homestead entry allowed.

Your decision is modified accordingly.

MINING CLAIM-MILL SITE-SURVEY.

ALTA MILL SITE.

The expenditure of five hundred dollars upon the mill site is not a condition precedent to obtaining a patent therefor, when the applicant is also the proprietor of a lode, and the mill site is located in connection therewith. In such case it is only required that the mill site shall be used or occupied for mining or milling purposes.

It is not necessary that the survey of the mill site should be connected with a corner of the public surveys or a mineral monument, if such survey is properly connected with the survey of the lode claimed in connection therewith.

The non-mineral character of the land claimed as a mill site must be established. On application for patent a mining company must furnish proof that it has complied with local requirements in the matter of filing its articles of incorporation.

Secretary Vilas to Commissioner Stockslager, February 9, 1889.

I have considered the appeal of the Lester Mining Company of San Francisco, California, from your office decision of September 22, 1887, holding for cancellation mineral entry No. 138, Mohave County, Arizona, known as the Alta mill site.

It appears from the record that said mining company are the owners of a lode known as the Alta mine, which is in the neighborhood of their said mill site but the same are not contiguous.

Upon their application for patent for said mill site your office by let ter of November 24, 1886, required the surveyor general of Arizona to furnish his certificate that the value of the improvements made upon said mill site claim was not less than $500, his certificate being only to the effect that the improvements on the Alta mining claim, (a different piece of property) exceeded that amount in value. You also required that the plat and survey be so amended as to connect a corner of said mill site with a corner of a public survey, if such corner can be found within two miles, otherwise, with a mineral monument within that distance.

By letter of the same date to the local officers, you also required proof that a copy of the articles of incorporation of said Lester Mining Company, had been filed in the office of the Secretary of the State of Arizona, and in the office of the recorder of the county in which said company was doing business, and that proof of the non-mineral character of said mill site claim be furnished.

On December 3, 1886, in reply to your said letter of November 24, 1886, the surveyor general said,

This office was not advised until the receipt of the departmental letter above referred to, that it was necessary to connect a mill site with other than the survey of the mine with which it was claimed, if the latter was connected with a United States mineral monument, or a corner of the public surveys; and further that it was required to certify the value of the improvements upon a mill site claimed in connection with a mine, if the required expenditure has been placed upon the mining claim.