the law vests in him over all proceedings instituted to acquire portions of the public lands," has jurisdiction to consider the matter, and render such decision as in his opinion shall be meet and proper under the circumstances. This general rule was distinctly announced in the case of Charles W. Filkins (5 L. D., 49), and has since been followed by the Department. See also Adolph Peterson et al. (6 L. D., 371.)

The remaining questions to be answered are, whether the present applicants are entitled to any scrip at all in the premises., and, if so, to what amount?

By the decision hereinbefore referred to, your office has held, for the reasons therein given, that no scrip could lawfully issue to them.

I am not favorably impressed with this view of the case., Had there been no sales made by the city of New Orleans, legatee, etc., there can be no doubt that the city would have been entitled to scrip under the act of 1858, for the total number of acres called for by the said three claims less the amount of land it actually received as aforesaid under the claims, to wit, 104.81 acres.

It is shown by the record that the city of New Orleans, legatee, etc., has sold to various parties a considerable amount of land within the out-boundaries of these claims as located. Consequently, the city will not be entitled to indemnity for the land thus sold. Any indemnity in lieu of this land must be applied for by the purchaser or purchasers, in case their title should fail. Elias Blunt (5 L. D., 617). As to the remaining part of the indemnity due under the act of 1858, in satisfaction of these several claims, I am clearly of the opinion that the city of New Orleans, devisee, etc., is the proper applicant.

The sales made by the city of New Orleans, devisee, etc., purported to convey a certain amount of land only, situated within the out-boundaries of the several claims as located, and did not purport to convey the whole interest of the city in said claims. The purchasers from the city purchased only so many acres of land. Having purchased but a limited number of acres of land, confessedly a much smaller number than are contained in the total area of the several claims, it will not do to hold that such purchasers are entitled to indemnity for a much greater number of acres than they ever purchased or pretended to own. They will be entitled to indemnity, if at all, for the number of acres for which their title may fail.

It having been found that there is due from the United States an amount of scrip equal to the total number of acres called for by the said three claims, less 104.81 acres, the amount for which the register and receiver and the surveyor-general find that patent should be issued, and it having also been found that the purchasers of the land sold as aforesaid are the proper applicants for scrip as indemnity for that land in case their titles fail, it must necessarily result that the city of New Orleans, legatee, etc., the present applicant herein, is entitled to an amount of scrip equal to the difference between the total amount neces

sary to satisfy all the claims, and the amount the aforesaid purchaser will be entitled to claim as above set forth.

This amount can best be determined by your office. When so determined, if found to agree with the amount for which the surveyor-general has issued scrip, I see no objections to the authentication and approval of the same. If found not to agree with such amount, then the surveyor-general should be directed to issue scrip in satisfaction of these several claims thus correctly determined.

The decision appealed from is reversed, and you will be governed in the disposition of this case by the foregoing.

TIMBER CULTURE ENTRY-“DEVOID OF TIMBER."

JAMES HAIR.

The phrase "devoid of timber" should be construed as meaning land practically so; and in determining whether land falls within such description no arbitrary rule can be formulated for the government of every case.

An entry should not be allowed where the returns show timber in the section; but a hearing may be ordered, if the correctness of the return is questioned, to determine whether the land is in fact subject to timber culture entry.

Secretary Noble to Commissioner Stockslager, May 6, 1889.

December 2, 1887, James Hair presented at the land office at Kirwin, Kansas, an application to enter under the timber culture act the NW. of section 29, T. 1 R. 18 W., at the same time tendering fees and commissions. Said application was rejected by the register because the township plat showed that there was timber in the section.

Mr. Hair appealed and filed a corroborated affidavit setting forth that "there are two cottonwood trees in said section, one of which is about eighteen inches in diameter, and there are also four cottonwood sprouts about two inches in diameter, and that the said trees and sprouts are all the timber of any kind that there is in said section." A. A. Burdick and W. A. Buckley, the corroborating witnesses, swear that they are well acquainted with said section and that it is exclusively prairie land and entirely devoid of timber with the exception of two cottonwood trees. The joint affidavit of Jacob Cobb and six others, which was filed in the local office, sets forth that each of them had made a personal examination of said section for the purpose of learning the amount of natural forest timber standing and growing on said section, and each of them states that on January 2, 1888, there were standing on said section the following trees, viz:

Fifty-one cottonwood trees from one to eleven inches in diameter and from five to thirty feet in height, and forty six hackberry trees from one to ten inches in diameter and from five to twenty feet high, and seven cottonwood trees from one foot to two feet seven inches in diameter, and from twenty to forty feet high, and three elm trees from two to four inches in diameter and from ten to fifteen feet high, and twenty nine stumps.

April 9, 1888, after considering said affidavit, you affirmed the action of the local officers in rejecting Hair's application to enter said tract and base your opinion on the ground that the evidence presented failed to show that the said section is composed exclusively of prairie or other land naturally devoid of timber.

Hair appealed.

The statute providing for timber culture entries (20 Stat., 113) pro. vides, among other things, that the applicant in his affidavit shall make oath "That the section of land specified in my said application is composed exclusively of prairie lands or other lands devoid of timber."

In construing these words the decisions of the Department in my judg. ment, go to extremes in both directions.

In the case of Blenkner v. Sloggy (2 L. D., 267) it was held that the land was devoid of timber although there were growing on the section about five hundred trees of natural growth, varying in diameter from six inches to two feet or more, consisting of ash, oak, elm and some underbrush.

In the case of Box v. Ulstein (3 L. D., 143) the principles enunciated in the case just cited are tacitly endorsed, but the claim of Ulstein was rejected on the ground that there were ten acres of trees naturally growing on the tract in controversy.

In the case of Bartch v. Kennedy (3 L. D., 437) it was held that where there were five or six acres of trees of different kinds, probably twelve hundred in number, of all sizes, varying from small saplings to a few trees of twenty inches in diameter and located mostly on the river bank, where the land is subject to overflow, entry could be made under the timber culture act.

These are the cases which take one extreme. On the other hand, in the case of James Spencer (6 L. D., 217) where it was shown that there were about fifty scrubby elm and cottonwood trees on the section, ranging from an average of eight to twenty inches in diameter, the action of your office in rejecting the application was reversed on the ground that under the ruling of this Department in force when the application of Spencer was made, it should have been allowed, in that decision it is said: "Now while the application herein is allowed because made when the departmental ruling permitted its allowance, I am clearly of the opinion that said former ruling is entirely too liberal and is not in harmony with the statute." It is further stated therein that "devoid of timber” necessarily means: "without timber" or "destitute of timber," and that "the former ruling on this subject will not be allowed to prevail longer."

In the case of L. W. Willis (6 L. D., 772) it was held that the application was properly rejected. for the reason that the township plat of survey on file in the local office showed that said section had timber thereon, and the evidence failed to show that the section was composed exclusively of prairie land or other lands naturally devoid of timber. The decision goes on to say:

I cannot follow the case of Spencer, however, in holding that because at the time the application to enter was made at the local office, another opinion was held at the Department, therefore this entry should now be allowed. On this point the Spencer case cannot be supported hereafter.

The interpretation given in the Spencer case to the words "devoid of timber" is illiberal, technical, and too literal to conform to the spirit of the act which ought not to be defeated by "sticking in the bark."

No arbitrary rule can be established for the government of every case. It should be the desire of the Department to ascertain what the intent and purpose of Congress was in the passage of the act. Clearly it was to encourage the artificial growth of timber in a prairie country. It is within the experience of all mankind living in prairie regions that in draws and ravines a few scattering trees are to be found thereon, and it would not seem that Congress intended to exclude every tract of that kind from the timber culture act. It stands to reason that it was not the purpose to deprive the occupants of the vast prairies of the west of the benefits of the act if there happened to be a single tree upon the section. I take it, that the words "prairie land or land devoid of timber" within the spirit of this act, means land practically so. To give the act the construction placed upon it by the last decisions just cited, according to their legitimate deductions and fair conclusions, would prevent an entry of any prairie land that had timber of any kind or character upon it, standing, fallen or otherwise. This is certainly too narrow a view to take of the act and perhaps goes as far to one extreme as one of the cases first cited does to the other, wherein it is held that where there are twelve hundred trees on the section the tract is still subject to entry as a timber culture claim.

The equities in the case are strong in favor of Hair and the matter is solely between him and the government, there being no adverse claimant. He invested $800 in buying a relinquishment, apparently exercised due care in examining the tract and seems to have acted in good faith. I am, therefore, of the opinion, on the plaintiff's showing, that the section in which the tract in controversy is situate is in reason, taking into consideration the object of the act, keeping in mind its purpose, spirit and intent, subject to entry under the timber culture act. But as the affidavits differ very widely as to the number of trees growing on the section, and it has been returned as timber land, entry thereon should not be allowed until the correctness of the return of the government survey has been overcome. Such is the rule where land has been returned as mineral or as swamp. Kane et al. v. Devine (7 L. D., 532); Lachance v. Minnesota (4 L. D., 479). The returns being prima facie valid the application to enter was, for that reason, properly rejected by the local officers; but as the applicant alleges that there are but two trees on the section, a number not sufficient to defeat the application, you will order a hearing, under the rules and regulations of your office, for the purpose of determining whether or not the section

is "devoid of timber" as those words are construed herein. In the meantime, Hair's application will stand suspended. If, on the hearing, the testimony discloses the fact that practically the tract is prairie land or devoid of timber, Hair's application to enter thereon should be entertained.

Your decision is modified accordingly.

PRACTICE-REVIEW APPEAL.

BEALL . ENGI E.

Objection to the sufficiency of an appeal from the General Land Office will not be considered, when raised for the first time on motion for review.

Secretary Noble to Commissioner Stockslager, May 6, 1889.

This is a motion filed by James R. Beall, asking that the decision of the Department of August 4, 1858, be reconsidered, and that the case be declared closed, as required by rule 90 of the Rules of Practice, where no appeal from your decision has been taken in accordance with said rule.

The grounds upon which said motion is based are as follows:

First. That no appeal was ever taken from the decision of the Hon. Commissioner in said case, holding the defendant's entry for cancellation, and it was therefore error on the part of your honor to consider the case, and reverse said decision.

Second. That no specification of errors were filed as provided under rules 88 and 90 of the Rules of Practice.

Third. That if an appeal, specification or errors and argument were filed, that same were not served upon the opposing party, as provided under rule 93 of the Rules of Practice.

Fourth. That in considering and rendering a decision in the case your honor abro. gated Rule 88 and 90 of the Rules of Practice, and existing departmental decisions. Fifth. Your honor erred in rendering a decision upon the merits of the case, as no specification of errors were filed within the time required under the rules of practice. Sixth. Your honor erred in not closing the case under rule 90 of the Rules of Practice, for failure on part of defendant to file specification of errors within the time required under the Rules of Practice.

From the foregoing it will be seen that no error is alleged in the decision of the Department, but said motion is based upon the grounds solely that the claimant did not file specification of errors within the time prescribed by the rules, and have the same served upon the opposing party.

The record of said case shows, that within the time allowed for ap peal from your said decision, Nathan Engle, the claimant, filed the fol lowing notice:

Mrs. JANE R. BEALL:

TOWER CITY, D. T., 4-5-1887.

I hereby notify you that I appeal from the decision of W. A. J. Sparks, in regard to my tree claim entry, No. 3618, made at Fargo, for the NE. of Sec. 24, T. 133 N., R. 56 W., to the Hon. L. Q. C. Lamar, Secretary of the Interior, for a final decision in the matter.

NATHAN ENGLE.