with the advice of his attorney, the replanting was deferred until the fall of that year. In the meantime this contest was initiated.

Claimant testified that at the time of plowing the eleven acres above referred to, he intended replanting the same or transplanting thereon trees from his nursery which he claims to have preserved and cultivated for such a contingency. In this he is corroborated by Dan. Kane, his hired man, who testified that claimant, before leaving for Iowa, directed him to plow this tract, saying that on his return it would be replanted in trees or tree seeds. This, however, was not done for the reasons already given, and a crop of flax seed was planted instead, Claimant, during the same year, sowed some sixty or seventy acres of this tract in oats and bad in all one hundred acres under cultivation.

A preponderance of the testimony shows that during the spring of 1885, and for some six months previous, the weather was extremely dry, there being scarcely any rain, and consequently very little moisture in the ground. This, claimant alleges, was the reason his tree seeds failed to grow and also the reason he postponed replanting.

Upon the evidence submitted at the hearing, the register and receiver rendered different decisions; the former recommended that Emick's entry be canceled, and the latter that the contest be dismissed. From the receiver's decision Conrad appealed to your office, and on February 25, 1887, you rendered a decision sustaining the register and directing that Emick's entry be held for cancellation. From this action Emick appealed.

From the facts as already recited, it is clear that Emick fully complied with the law up to July, 1885, or at least, until May of that year, when he sowed flax seed in the plat in which he formerly planted tree seeds. The extreme drought of that spring and of the previous winter and fall deterred claimant from replanting and his postponement of the same was therefore in no way inconsistent with his good faith. On the contrary, the evidence satisfactorily shows that he acted in entire good faith and that his short delay in replanting was inspired by motives of caution and prudence. Claimant's other improvements strengthen the theory that he acted in good faith and that he meant to comply with the provisions of the timber-culture act.

The entryman's good faith should be taken into consideration in arriving at a proper conclusion in this contest. Thompson v. Sankey (3 L. D., 365); Peck v. Taylor (3 L. D., 372); Rasmussen v. Rice (6 L. D., 755).

When the requisite breaking and planting were done within the proper time, but the seeds so planted failed to grow, it was held that the entry should not be forfeited. Hartman v. Lea (3 L. D., 584).

I am, therefore, of the opinion that the entryman acted in good faith and has substantially complied with the law.

Your decision, therefore, holding for cancellation the timber-culture entry of John Emick is accordingly reversed.

RAILROAD GRANT-INDEMNITY LANDS.

NORTHERN PACIFIC R. R. Co.

The departmental order of August 15, 1887, with respect to filings and entries upon lands covered by unapproved selections, made applicable to lands within the second indemnity limits of the Northern Pacific.

Secretary Vilas to Commissioner Stockslager, September 28, 1888.

I am in receipt of your letter of May 14, 1888, enclosing communication, dated April 25, 1888, from George P. Flannery, of Minneapolis, Minnesota, in relation to the matter of suspending the final proofs of settlers within what was formerly held to be the second indemnity limits of the Northern Pacific Railroad.

I am also in receipt of your letter of August 2, 1888, forwarding letters from Messrs. Mendenhall and McNaught, counsel for the Northern Pacific Railroad Company, which request modification of instructions heretofore issued in relation to the lands within said limits.

It is suggested by the company, that, inasmuch as the question whether said railroad has a second indemnity belt is now pending before the Attorney General, awaiting his opinion, the further settlement and entry of lands of this class be suspended until the question be finally determined. This suggestion is not approved.

But inasmuch as the company claims the right of selection within these limits, I think it would be wise to instruct the proper local officers that as to any lands therein, covered by unapproved selections, the same action is to be taken, as was directed by departmental order of August 15, 1887 (6 L. D., 91), in relation to filings and entries upon other similarly selected lands in the first indemnity belt of said road.

PRE-EMPTION-NAVAJO RESERVATION.

HUGH A. CARMON.

Land reserved for the use of the Navajo Indians by executive order of April 21, 1886, is not subject to pre-emption.

The provisions of the act of June 29, 1883, are applicable to settlement claims acquired within certain limits prior to May 1, 1886, and included within said executive order.

First Assistant Secretary Muldrow to Commissioner Stockslager, September 29, 1888.

I have considered the case arising upon the appeal of Hugh A. Carmon from your office decision of March 26, 1887, holding for cancellation his pre-emption filing No. 1828, made December 5, 1885, for the SW.

of Sec. 13, T. 29 N., R. 15 W. Santa Fe district, New Mexico, on the ground that the tract lies within the boundaries of the land reserved

by executive order of April 24, 1886, for the use of the Navajo Indians. I affirm your decision.

I would direct your attention, however, to the fact that the "Act making appropriations for the current and contingent expenses of the Indian Department," approved June 29, 1888, contains the following paragraph:

The sum of ten thousand dollars, or so much thereof as may be necessary, is hereby appropriated to enable the Secretary to pay the settlers, who, in good faith, made settlement in township 29 N., ranges 14, 15, and 16 W., New Mexico principal meridian, in the Territory of New Mexico prior to May 1, 1836, for their improvements, and for damages sustained by reason of the inclusion of said townships within the Navajo reservation by executive order of April 24, 1886; and such settlers may make other homestead, pre-emption, and timber-culture entries as if they had never made settlements within said townships.

Said Carmon having made settlement within the limits named prior to May 1, 1886, the statute above quoted applies to his case.

TIMBER CULTURE CONTEST-APPLICATION TO ENTER-NOTICE OF CANCELLATION.

ENGLISH . NOTEBOOM.

Under rule 17 of practice, notice of cancellation to the successful contestant is not sufficient, where given by unregistered letter.

An application to enter, filed with a timber culture contest, is equivalent to actual entry so far as the rights of the contestant are concerned, and withholds the land embraced therein from other disposition until final action thereon.

First Assistant Secretary Muldrow to Commissioner Stockslager, September 29, 1888.

In the summer of 1885, Gerritt Noteboom contested the timber-culture entry, No. 8441, of David S. Correll, for the NW. of Sec. 13, T. 99, R. 66, Yankton land district, Dakota. Correll made default; and by your office letter of October 4, 1835, the entry was ordered to be canceled— the cancellation being noted on the books of the local office October 11th.

Noteboom had accompanied his application to contest with an application to enter the tract. After cancellation, the local office sent a notice of that fact to Messrs. Ellerman and Peemiller, Noteboom's attor neys of record. Noteboom not being heard from within thirty days, the local officers, on February 7, 1887, allowed Edmund F. English to make timber culture entry of the tract.

On March 12, 1887, Noteboom applied to perfect his entry, tendering the legal fee and commission-alleging continuous residence on the tract since October 1, 1886. The local officers refused to allow Noteboom's application because of English's entry.

Noteboom states under oath that he never received notice of the cancellation of Correll's prior entry. The local officers suggest that this

was because of his substituting one Poole, in place of Ellerman and Peemiller, as his counsel; and urge that notice to the latter should be considered as notice to Noteboom.

It appears, however, that the notice (if sent at all, of which there seems to be some doubt,) was by an ordinary, unregistered letter. This was not sufficient notice (see rule 17 of practice).

Noteboom's application to enter, filed with his contest, was equiva lent to actual entry, so far as his rights were concerned, and withheld the land embraced therein from other disposition until such time as it should finally be acted upon, either by being merged into an entry, or rejected with right of appeal (Pfaff r. Williams et al., 4 L. D., 455).

For the reasons herein given, your decision allowing Noteboom thirty days' preference right of entry from date of notice hereof is affirmed.

MINING CLAIM ADVERSE PROCEEDINGS.

MEYER ET AL. . HYMAN.

(On Review)

A mineral entry prematurely allowed, pending the disposition of adverse litigation, may be permitted to stand on the withdrawal of the adverse claims.

First Assistant Secretary Muldrow to Commissioner Stockslager, October 1, 1888.

In the matter of the motion for review by D. M. Hyman, of the decision of this Department of July 28, 1888 (7 L. D., 83) in the case of W. B. Meyer et al. and J. B. Wheeler et al. v. said D. M. Hyman, involving the latter's mineral entry, No. 14, for the "Durant Lode Mining Claim," Glenwood Springs series, Colorado, it appears from a communication bearing date of September 14, 1888, of C. C. Clements, attorney for the said Meyer et al. and Wheeler et al. protestants and adverse claimants, enclosed in your office letter ("N") of September 21, 1888, to this Department, that:

Since the appeal from your office decision of January 15, 1887, suspending said entry, all suits have been settled in favor of said Hyman and to the satisfaction of all parties concerned, so that there is now no conflict or controversy existing between said parties, and that it is now the desire of said protestants and adverse claimants that the said motion be granted to the end that said entry may be re-instated and patented without unnecessary delay.

In view of this state of facts, the question now is one solely between Hyman and the government, and his said entry, though prematurely allowed pending the suits between the said parties (R. S., 2326), appearing to be otherwise unobjectionable, and there being no useful purpose to be subserved by the cancellation thereof, it is "competent for this Department to sustain the same." (Gunnison Crystal Mining Com. pany, 2 L. D. 722.)

The motion for review and recall of said decision of July 28, 1888, is therefore hereby granted, and said entry will be re-instated.

DESERT LAND ENTRY-FINAL PROOF PROCEEDINGS.

WILLIAM J. SPARKS.

The testimony of the entryman and his witnesses, in final proof proceedings under a desert land entry, may be legally required to be taken at the same time and place and before the same officer.

When the good faith of the entryman, and hs purpose in making the entry are in doubt, he may be required to personally appear before the local office and submit to a cross-examination.

The Commissioner of the General Land Office is fully authorized under the law to require additional proof, where that submitted is not found satisfactory.

A desert land entry made for the use and benefit of another is illegal, and must be canceled.

A person is permitted to make but one entry under the desert land act; and it is clearly in violation of law for an individual or corporation to secure by indirection more than one entry.

Secretary Vilas to Commissioner Stockslager, October 1, 1888.

I have before me on appeal from the decision of your office, dated April 4, 1887, the case of William J. Sparks, involving the question of the sufficiency of his final proof on his desert land entry No. 2464, for the NW. of Sec. 15, T. 23 N., R. 67 W., Cheyenne land district, Wyom

ing Territory.

Said entry was made April 10, 1885, and final proof tendered December 3, 1886. The proof was rejected by the local officers on the ground that the reclamation of said tract was not shown by the testimony of claimant himself as required by the regulations, and by your office on substantially the same grounds; your predecessor in office holding that "the deposition of the entryman in desert land final proof must be made from a personal knowledge of the facts in the case; and that such deposition made upon information and belief can not be accepted.”

Appellant, by his counsel, insists that said decision is erroneous, "because contrary to law and the regulations of the Department of the Interior in force at the time this proof was made."

In support of his position he quotes the requirements of the general circular of March 1, 1884, pages 36 and 37, as follows:

This proof must consist of the testimony of at least two disinterested and credible witnesses, who must appear in person before the register and receiver. They must declare that they have personal knowledge of the condition of the land applied for, and of the facts to which they testify, etc. (And he says) "For two years after the issuance of that circular, it was the almost invariable practice for claimants to make their depositions on information and belief as to this fact, and proofs so made were until the past year, unhesitatingly received by the officers of the government.

He also insists that as the reclamation of said land is shown by the testimony of two disinterested witnesses who appeared in person at the land office, and as this is all the law and the regulations required that to make "any further requirement is but the assumption of an arbitrary power, not authorized by law or the regulations but in defiance. thereof."

3263-VOL 7---22