D., 152), as voidable but not void, and may properly be submitted to the Board of Equitable Adjudication.

Your said decision is modified accordingly.

FINAL PROOF PROCEEDINGS-EQUITABLE ADJUDICATION.

URIAH SLOAN.

An entry may be referred to the Board of Equitable Adjudication, where the final proof was not taken before the officer named in the notice, but was submitted at the time and place designated, and before an officer authorized to take final proof.

The fact that the officer designated in the notice had no authority under the law to take final proofs, would not modify the above conclusion.

Secretary Noble to Commissioner Stockslager, April 15, 1889.

I have considered the appeal of Uriah Sloan from the action of your office of March 2, 1889, rejecting his commuted homestead proof and requiring claimant to "submit new proof after due publication and posting of notice taken before an officer authorized to take said proof."

Said proof was rejected because "it was advertised to be taken before a superior judge, an officer not authorized to take commuted proof, and was taken before the county clerk."

The record shows that notice was published of the intention of Sloan and others to make final proof before the judge of the superior court of Monterey county, at Salinas, on Thursday January 6, 1887, and that commutation homestead proof upon their several claims was taken on the day advertised before M. L. Dexter, county clerk of Monterey county and ex officio clerk of the superior court thereof (the same being a court of record) at the office of said clerk, who certified that said proof was taken before him on account of the absence from the county of the judge of said superior court.

The act of March 3, 1877, provided that final proofs in homestead entries may be made before the judge, or in his absence before the clerk of any court of record in the county and State or district and Territory 'n which the lands are situated; but the act of June 9, 1880, having application alone to pre-emption and commuted homestead proof, provided that said proof may be taken before the clerk of the county court or of any court of record in the county and State or district and Territory in which the lands are situated.

In the case of James A. Cain (7 L. D., 482) the Department held thatIn the absence of protest or adverse claim, an entry may be referred to the Board of Equitable Adjudication, where the testimony of the final proof witnesses was not taken on the day named, or before the officer designated, but the claimant's own evidence was submitted in accordance with the notice.

Again, in the case of Judith M. Clarke (Id. 485) it was held that

In the absence of protest or adverse claim an entry may be referred to the Board of Equitable Adjudication, where the testimony of the claimant and his final affidavit were not submitted before the officer designated, but the evidence of his witnesses was taken in accordance with the notice.

If the claimant has complied with all the requirements of the law as to inhabitancy, cultivation, improvement, etc. and the proof was taken at the time and place designated in the notice, before an officer authorized to take such proof, and no protest or objection was offered to such proof, I can see no reason why the technical defect may not be cured by the Board of Equitable Adjudication as well in cases where no part of the proof was taken before the officer named in the notice, as in cases where part of the proof was made before such officer. Nor does the fact that the officer designated in the notice was not authorized to take such proof affect the principle upon which the rule is founded. It is the au thority of the officer taking the proof that is alone to be considered.

The proofs in these cases were taken before an officer authorized to take such proofs, although he was not the officer designated in the notice, and they were taken at the time and place named in the advertisement. There is nothing to indicate that any one was misled by this technical failure to comply with the law as to the taking of said proof, and no protest having been filed, I am satisfied that the law has been substantially complied with, so as to authorize said case to be submitted to the Board of Equitable Adjudication, and I so direct.

TIMBER LAND APPLICATION-RESERVATION.

HENRY A. FREDERICK.

An application to purchase timber land under the act of June 3, 1878, should not be rejected on account of a temporary order of reservation, made by the General Land Office, after the application was filed and notice thereof given.

If the character of the land covered by the application, and included within the reservation, is called in question a hearing should be ordered on that issue.

Secretary Noble to Commissioner Stockslager, April 19, 1889.

I have considered the appeal of Henry A. Frederick from the decision of your office dated April 11, 1888, rejecting his application to purchase the SW. of section 26, T. 10 S., R. 26 E., Mount Diablo meridian, Stockton, California, under provisions of the act of Congress approved June 3, 1878, (20 Stat., 89).

The record shows that on May 27, 1887, the register gave due notice by publication that said Frederick had that day filed his application to purchase said tract under said act, and all persons who held any adverse claims for said land should present them to the local office within sixty days from the first publication of said notice. No protest or adverse claim was filed, and the claimant, on August 24, 1887, offered his final proof, made before the register of said office, and payment for said land. The proof and payment were refused by the local officers, for the reason that your office on July 30, 1887, reserved said land from entry.

On appeal, your office affirmed the action of the local office, for the reason that said land "was held for reservation by office letter "C" of July 30, 1887." The record does not contain a copy of said decision of your office reserving said tract, but an inspection of the records of your office shows that the local officers were directed not to allow any entries in sections 26 and 35 of said township. No reason was stated in your office letter for such reservation, but a pencil memorandum on the press copy indicates that there are "big trees" on the sections.

The applicant filed his affidavit with his appeal from the local officers' action in rejecting his said proof, in which he alleges (inter alia) that he made application and offered proof, and tendered payment for said land, which was rejected as aforesaid; that claimant was informed and be lieved that one Noble F. Pickle entered certain lands in section 26, and that your office was informed that the land so entered by said Pickle contained a grove of large trees or sequoyias, and that said land was necessary and suitable for a public park; that thereupon your office withdrew from sale the remainder of said section 26, for the purpose of making an investigation of the true character of the lands embraced in said section; that claimant knows from a full and personal examination of said tract that, upon it there are no large trees or sequoyias, and that it will not be beneficial or useful for a public park; that the tract in question is only valuable for its timber; that it contains no minerals, and on account of its elevation and intersection by gulches, its mount. ainous character, and the fact that snow remains upon said tract as late as May 24th, it is unfit for agriculture; that the tract contains a growth of pine, sugar-pine and fir, not large, and not in groves or parks, and only valuable for milling. The claimant, therefore asked that his proof be accepted, and patent issued for the land.

Your office refused to accept the proof as aforesaid. Said timber land act provides

That surveyed public lands of the United States within the States of California, Oregon, and Nevada, and in Washington Territory, not included within military, Indian or other reservations of the United States, valuable chiefly for timber but unfit for cultivation, and which have not been offered at public sale according to law, may be sold to citizens of the United States, or persons who have declared their intention to become such, in quantities not exceeding one hundred and sixty acres, to any one person, at the minimum price of two dollars and fifty cents per acre. Section two of same act requires the applicant to

File with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and valuable chiefly for its timber or stone; that it is uninhabitable; contains no mining or other improvements, except for ditch or canal purposes, where any such do exist, save such as were made by or belong to the applicant, nor as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper or coal; that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indi

rectly made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title he might acquire from the government of the United States, should inure in whole or in part, to the benefit of any person except himself, which statement must be verified by the oath of the applicant before the reg ister or receiver of the land office within the district where the land is situated etc.

Section three provides for publication of notice for sixty days within which adverse claims shall be filed.

In the case at bar the applicant filed his statement, under oath, and publication was commenced prior to the date of said letter of your of fice directing the local officers "to allow no entries or filings upon sections 26 and 35, T. 10 S., R. 26 E., M. D. M., until further advised." But it has been the general ruling of this Department that the filing of the sworn statement does not segregate the land, and that the tract applied for is subject to entry under the settlement laws subject to whatever rights the timber land applicant may have. Smith v. Martin (2 L. D., 333); Hughes v. Tipton (idem 334); Capprise v. White (4 L. D., 176). In the case of Falk Steinhardt (7 L. D. 10) the Department held that the preliminary affidavit required of the entryman was the same under both the timber culture and timber land laws, to the extent that the condition of the land must be set forth in each case.

In the case of L. J. Capps, on motion for review, it was held, on April 4, 1889 (8 L. D.,), that "Published notice of an application to make preemption cash entry so far reserves the land covered by such application as to prevent its being properly entered by another pending the consideration of said application." If that decision be correct—and it undoubtedly is-there would seem to be no good reason why the same ruling should not apply to a timber land application where publication has been made, and where parties have an opportunity to file their adverse claims within the period of publication.

In the present case, Frederick had done all that the law required to entitle him to entry, if the proof is credible and the land was subject to entry under said act. In the case of the heirs of William Friend (5 L. D., 38) the Department held that the right of a timber land applicant to a patent becomes vested when he has furnished the proofs by the law, and paid the purchase money, citing Stark v. Starrs (6 Wall., 402), and Wirth v. Branson (98 U. S., 118). It was also held that where the applicant had tendered the purchase money for the land, he had done all that the law requires in that respect. But the sole ground of the rejection of said application to purchase is that your office had directed the reservation of said selections including said tract.

It is well settled that where land has been reserved by competent au thority it is not subject to sale or entry. Wolcott v. Des Moines Co. (5 Wall., 681). And by "competent authority is meant the President and officers acting under his authority." (Grisar v. McDowell, 6 Wallace, 381).

In the opinion of Attorney General MacVeagh, it is held that "where a homestead entry of public lands has been made by a settler, the land

so entered cannot, whilst such entry stands, be set apart by the President for a military reservation prior to the completion of full title in the settler; but that where a pre-emption filing has been made of public lands, the land covered thereby, may be set apart by the President for such reservation at any time previous to payment and entry by the settler under the preemption law." See also case of John Campbell (6 L. D., 317).

It does not appear, however, from the order of your office that the land in controversy was set apart for any public purpose, or for any specific period; that it was a temporary withdrawal, and, not being disapproved must be presumed to have been made under the direction of the Secretary of the Interior. David B. Emmert (3 L. D., 55); Wolsey v. Chapman (101 U. S., 769).

The affidavit of the applicant alleges that the land is subject to entry; that there are no large trees upon the land, and that he has complied in good faith with the requirements of the law. If it be conceded that the action of the local officers was correct under the direction of your office, still I am of the opinion that a hearing should be had to determine the true character of the land. If it should appear that the land is of the character contemplated by said act, then Frederick should be permitted to complete his entry by paying for the land, and upon receipt of the purchase money the local officers should issue the final entry papers.

The decision of your office is modified accordingly.

FINAL PROOF PROCEEDINGS-TRANSFEREE-EQUITABLE ADJUDICATION.

JOHN SARGENT.

Where the land is misdescribed in the published notice, the proof submitted by the pre-emptor may be accepted, in the absence of protest, after publication of special notice by the transferee.

Failure to submit the final proof on the day advertised may be cured by a reference to the Board of Equitable Adjudication.

Secretary Noble to Commissioner Stockslager, April 19, 1889.

John Sargent, who discloses under oath that he is a party in interest as grantee of Anthony Krantle, appeals from the decision of your office of April 14, 1888, involving the latter's pre-emption cash entry, No. 1732, for lot 11, Sec. 14, T. 20 N., R. 3 E., Helena district, Montana Territory.

Krantle filed pre-emption declaratory statement, No. 6010, for said land, February 19, 1884, alleging settlement on the 15th of that month. Notice was given by publication that he intended, on September 18, 1884, at Sun River, to make final proof in support of his claim, before John Kerler, a notary public. In said notice, the description of the