abandoned that intention. His proof made December 1, 1882, failed to show the period of residence required by law, and was therefore prematurely made. Parker now asks to be allowed to make proof under section 2291 and receive credit for his service in the army. He not having commuted said entry, I can see no good reason for refusing to approve the action of the local officers issuing to him regular homestead final certificate provided the proofs heretofore submitted satisfactorily show a compliance with the requirements of the homestead law. Killin v. Suydam (6 L. D., 324); James Jenks (8 L. D., 85).

Upon examination, however, said proofs are not found satisfactory. The affidavits which furnish the only information as to Parker's connection with the land subsequently to December 1, 1882, are general in their terms and make no statements as to the kind or value of the improvements or the character of his residence on the land. The entryman will be allowed to give new notice and submit new final proof showing compliance with the law up to the date of the final certificate heretofore issued.

The decision appealed from is modified in accordance with the views herein expressed.

COMMUTATION PROOF-CULTIVATION.

T. H. QUIGLEY.

Breaking may be accepted as satisfactory proof of cultivation, if good faith appears, and the proof is sufficient in other respects.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 4, 1889.

I have considered the case of T. H. Quigley, upon the appeal of Sarah A. Paige, mortgagee, from your office decision of December 16, 1887, rejecting the proof and suspending the entry of said Quigley for N. NE. and N. NW. 4, section 6, T. 154 N., R. 56 W., Grand Forks, Dakota, land district.

It appears from the record that Quigley made entry for said land March 26, 1883, and on October 13, 1883, after due notice, he presented his final proof in commutation, and paid for said land receiving final certificate October 19, 1883.

On final proof it appeared that Quigley was unmarried; that he made settlement on said land March 1, 1883, by erecting thereon a one-story frame house twelve by fourteen feet valued at $100, in which he had continuously resided until time of final proof, a period of seven months and nineteen days, except that he had been absent to earn a living a few weeks at a time, not to exceed thirty-fi ve or forty days in all. It also appeared in the proof that he had broken five or six acres but had not raised a crop thereon.

This proof was made in October, 1883, but did not reach your office until December, 1887; considering it you rejected the same as insufficient. From this ruling the mortgagee appeals.

No specific reason for the rejection of his proofs is given in your said decision nor does it state wherein entryman failed to comply with the law, but after reciting the facts above stated in regard to improvements and residence, says

The proof is not satisfactory not being conclusive to this office of good faith on the part of the claimant. The proof is rejected and you will inform Quigley that his original entry and cash certificate will remain suspended during the life-time of the entry and he will be allowed to make new proof when he can show full compliance with the law.

*

Just why this proof does not satisfy you of the entry man's good faith does not very fully appear in your opinion. The evidence shows that he went upon the tract in March, lived thereon continuously for more than six months, in the meantime built a house twelve by fourteen feet, valued at $100, and broke up five or six acres of prairie sod. He could not be expected to raise much of a crop in six months on new breaking, taking into consideration that it was probably broken after seeding time. Wherein did he not comply with the law? It appears to me taking into consid eration the presumption of good faith, coupled with the facts corroborating the same, and the final proof of the entryman, that there are no circumstances to predicate bad faith upon, hence in my judgment the entry should stand. Your decision is, therefore reversed.

TIMBER CULTURE CONTEST-EVIDENCE.

ST. JOHN v. RAFF.

A timber culture contest must fail if the default charged is made good before service of notice.

In considering evidence as to compliance with the law between the dates of filing the affidavit of contest and service of notice, good faith is an important if not a controlling element.

The case of Seitz v. Wallace cited and followed.

First Assistant Secretary Chandler to Acting Commissioner Stone, June

4, 1889.

I have considered the case of W. R. St. John v. S. F. Raff on appeal by the former from your office decision of January 28, 1888, dismissing his contest against Raff's timber culture entry for the SE. 4, Sec. 12, T. 25 S., R. 6 W., Wichita, Kansas.

Raff made said entry June 20, 1883, and contest affidavit was filed November 5, 1884, alleging failure to break five acres during the first year, and up to date of said affidavit.

Hearing was had March 9, 1885, both parties being present with wit

nesses.

From the evidence submitted the local officers found that the required amount had been broken prior to service of notice, and accordingly, recommended the dismissal of the contest. Your office affirmed that de

cision, and St. John appealed.

It appears from the evidence that the entryman, who lives some distance from the tract, employed an agent to do the necessary plowing, who sub-let the contract to a farmer living near the claim, the breaking to be completed before June 20, 1884; that the farmer after breaking a little over three acres reported to the agent that he had broken six acres, and collected from him the sum agreed on for that amount of breaking; that the deception was not discovered by the entryman or his agent until about November 1, 1884, when they proceeded to break seven acres more, completing the same between November 10, and 25, 1884.

Notice of contest was not served until December 13, following. It does not appear that Raff had any intimation of the attack on his entry prior to that date. Bad faith on the part of entryman is not shown, on the contrary, he proceeded immediately on discovering the failure, to remedy it.

It is insisted by appellant that the entry must be canceled because the five acres had not been broken when the contest affidavit was filed.

I am unable to concur in this view. In the case of Farnsworth v. Hudson (5 L. D., 315), evidence of cultivation between the date of the filing of contest and that of the service of notice was held to be admissible. In Seitz v. Wallace (6 L. D., 299), it was said, "Under the decis ions of the Department an entryman may show compliance with the law after the affidavit is filed, but before notice is served upon him.”

But it is claimed that these cases are in effect overruled by the cases of Eddy v. England, Bolster v. Barlow, and Waters v. Sheldon.

In said first mentioned case one Bennett brought contest against England's timber culture entry alleging failure to comply with the law. On the same day, but at a later hour Eddy cffered a contest on like grounds. The local officers declined to receive the later contest on account of the pendency of Bennett's. Eddy then attached an affidavit charging that Bennett's contest was fraudulent and speculative, and procured by England to enable him to hold the land without compliance with law, and to bar the initiation of a bona fide contest. Eddy's contest was then received and filed. Bennett failed to appear on the day set for hearing in his case, and thereupon notice was served in Eddy's contest and a hearing subsequently had. Prior to the service of notice, however, it appears England had completed the necessary breaking. It was held nevertheless, that Eddy's contest related back to the date when it was offered and should have been received. But this ruling has no relevancy to the case at bar. The facts are essentially different. Beunett's con

test was found to be collusive and fraudulent as alleged. The ruling was based on the established rule of the Department, that, "no rights are acquired by fraudulent and speculative contests." To hold otherwise would violate the established legal maxim, that no one is allowed to take advantage of his own wrong. Had the collusive contest not been commenced, notice in Eddy's case would have issued prior to the cur ing of the default, and it was therefore, held that such contest could not postpone Eddy's rights. (6 L. D., 530.)

In Bolster v. Barlow (idem., 825), the record failed to disclose the date of the initiation of the contest, and it was, therefore, held that the contest papers must "be deemed to have been accepted by the local officers on the date when the notice of contest was issued." As the entryman had cured his laches prior to that date the contest was dismissed. This case simply followed the established ruling in the case of Galloway . Winston (1 L D., 142), dismissing a contest initiated after the failure under the timber culture law has been cured, and does not conflict with the ruling in the case at bar.

In Waters v. Sheldon (7 L. D., 346), John E. Gilbert, on May 3, 1886, brought contest for abandonment against the homestead entry of Sheldon made October 30, 1885. The affidavit of contest was dated May 1, 1886. The local officers and the Commissioner decided that the contest was "prematurely brought", and dismissed the contest. This conclusion was evidently based on the assumption that the contest was initiated on May 1, the date of the affidavit. The Department held, however, that "Gilbert's contest was not initiated until his affidavit of contest was received, and accepted by the local office, May 3, 1886." It was, therefore, held to be not premature (six months from date of entry having elapsed) and was sustained. The ruling was undoubtedly correct in determining the date of the initiation of contest, but in no manner involves the point in issue in this case. The question of notice was not involved.

I conclude, therefore, that these cases have not changed the general rule announced in Seitz v. Wallace and other cases, supra. In the determination of such questions, however, good faith is always an impor tant if not a controlling element.

Finally, the case of Stayton v. Carroll (7 L. D., 198), clearly announces the rule that a contest charging failure to establish residence, and abandonment, must fail where, prior to legal service of notice thereof, the entryman had cured his laches. See also Hunter v. Haynes. (ib., 8).

The decision appealed from is accordingly affirmed.

SWAMP LAND-HOMESTEAD CLAIM-FIELD NOTES.

STATE OF WISCONSIN v. WOLF.

The finding of a commission, mutually agreed upon between the State and the government, that a particular tract is of the character granted, does not preclude the Department from reviewing such finding, or resorting to other evidence in order to determine the true character of the land.

In a hearing ordered to determine the character of land, the burden of proof is upon the State if the field notes of survey do not, prima facie, show the swampy character of the tract.

In order to sustain its claim to any particular forty acres of a quarter section, the State is required to show that the greater part of such forty was swamp and overflowed land at the date of the grant.

Secretary Noble to Acting Commissioner Stone, June 4, 1889.

April 15, 1880, Andrew Wolf made homestead entry for the SW. of Sec. 11, T. 29 N., R. 12 E., Menesha land district, Wisconsin.

August 13, 1881-as appears from the decision of your office of August, 27, 1886-the State of Wisconsin filed a claim for the same tract, under the provisions of the swamp land grant of September 28, 1850 (9 Stat., 519), which claim has not been approved.

May 28, 1886, in pursuance of a general notice of his intention so to do, and without special notice to the State of Wisconsin, Wolf made final homestead proof, which, on June 30th following, was duly approved by the local land officers, and final certificate No. 1158 was thereupon issued to Wolf.

August 27, 1886, your office found, on re-examination, "that the field notes of survey do not show that any of the subdivisions of said SW. 4 are swamp lands within the meaning of the grant of September 28, 1850," and the claim of the State was held for rejection.

Upon being notified of this action of your office, the State appealed, and asks that said decision "be reversed and the title of the State to said tract remain intact." The appeal is accompanied with an affidavit made by C. F. Fricke, the chief clerk of the Commissioners of Public Lands for the State of Wisconsin, in which he says:

That on the 13th day of August A. D. 1881, by a commission appointed by the Commissioner of the General Land Office of the United States and the governor of the State of Wisconsin, under an agreement made by the Secretary of the Interior and the governor, to make a final settlement and adjustment of the swamp lands under the act of Congress approved September 28, 1850, I find that the SW. 1, Sec. 11, T. 29 N., R. 12 E., of the 4th principal meridian, State of Wisconsin, was decided by said commission to be swamp land within the meaning of said act, and the record of which is now on file in Division 'K' of the General Land Office, at Washington, D. C., and that said decision was final; and upon further examination of the plats and field notes of the original government survey, I verily believe said decision to be correct, and that the State is legally entitled to said tract under said settlement.