On July 8, 1897, he wrote to the "Benton County Democrat" in further explanation of his conduct. He admits writing the letter which as published contains this statement:

A former friend of mine, a most worthy man, John Morris by name coming from Texas, was very desirous of securing this homestead and having no money at the time, I advanced it to him by buying the improvements upon it; to do this of course I had to enter the place in my own name. He has not been able to repay me the money I advanced. Hence of necessity the homestead has continued to stand in my name. I obtained it solely and only for Mr. Morris.

This publication probably gave to Hornsby the information upon which he brought the contest. On being served with notice Carson wrote Hornsby a letter which was introduced in evidence. In said letter Carson says:

Not having read the terms and conditions of obtaining homesteads at the time I filed and my attention having been called to my error or the illegality of the transaction as now appears, as soon as I learned this, I at once resigned and abandoned all claims to said homestead as I have already stated. It was a very careless thing in me not to carefully read the paper over at the time but it was owing to the haste and brief space I had to do it in. The result is I have lost it, which I suppose is a sufficient penalty for carelessness. I could do nothing else in such a case but to abandon all claims to the homestead, as I wish and endeavor always to be a law abiding man-as all should be. I have no design whatever of acting crookedly or illegally in what I did but all was the result of pure carelessness.

Both in the letters and communications as also in his testimony taken at the hearing, Carson endeavored to excuse his mistake in making his homestead affidavit (he did not recollect having sworn to it) wherein he stated that his application

is honestly and in good faith made for the purpose of actual settlement and cultivation and not for the benefit of any other person, persons or corporations . . . . that he has not directly or indirectly made and will not make any agreement or contract by which the title which he . . . . might acquire from the government . should inure, in whole or in part to the benefit of any person except himself, etc. As before seen he admitted that he obtained the homestead "solely and only for Mr. Morris," hence it could not have been obtained in good faith for his "own exclusive use and benefit."

It is probable that Carson's relinquishment was the result of Hornsby's contest. While both Carson and Morris swore that they had no information that a contest had been filed when the relinquishment was executed, yet Carson testified that he had heard "a vague rumor that somebody had threatened to do it" and Morris did not know "for certain" that there was a pending contest.

But whether the relinquishment was the direct result of the contest or not makes no difference in this case. The hearing shows that Carson's entry was not made for his own use and benefit, but for the benefit of John Morris; that was the allegation in the contest affidavit and the hearing clearly established its truth. The contestant did not invoke the relinquishment in aid of his contest, but proved his allegations independently thereof. The contestant's rights in such case are determined by the status of the land at the time of the initiation of

the contest and his rights can not be defeated by the subsequent act of the entryman relinquishing the entry, although the entryman may have relinquished in good faith without knowledge of the pending contest. Brakken v. Dunn et al. (9 L. D., 461). See also Webb v. Loughrey et al. (idem., 440).

The decision appealed from is affirmed.

TIMBER CULTURE CONTEST-FINAL PROOF-EQUITABLE ACTION. WRIGHT v. Diggs.

A contest against a timber culture entry on the ground of failure to submit final proof within the statutory period will not defeat the right of the entryman to have said proof equitably considered, where it is submitted prior to notice of such contest and without knowledge thereof.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) September 18, 1899.

(L. L.B.)

July 21, 1879, Edward A. Diggs made timber culture entry for the NE. of Sec. 26, T. 124 N., R. 50 W., in what is now the Watertown, South Dakota, land district.

September 22, 1896, Joseph Wright filed contest against said entry, in which he alleged that:

The said Edward A. Diggs has neglected and failed to comply with the law. That more than thirteen years have elapsed since making said entry and said Edward A. Diggs has not made, offered or filed final proof for said entry and tract of land, or proof that he has planted or cultivated ten acres of trees or any amount of trees on said tract as required by the tree culture laws of the United States. That on August 22, 1896, affiant filed, in due form, in the U. S. land office at Watertown, S. D., his application to enter said tract as a homestead.

At the date of filing the affidavit of contest, the defendant was residing in the State of New York.

Notice was issued, November 11, 1896, and upon a proper showing service of same was made by publication, and the first publication was made December 12, 1896. Prior to this first publication, namely, November 25, 1896, the entryman submitted his final proof, which was accompanied by his affidavit showing sufficiently that he was prevented by sickness and adversity from submitting it during the lifetime of his entry.

At the hearing, oral testimony was submitted, showing that more than thirteen years had expired since the date of the entry, and that final proof had not been submitted within the statutory life of the entry, but no sufficient evidence was submitted to impeach his final proof, which showed compliance with the requirements of the timber culture law as to planting and cultivation of trees, nor was there any evidence tending to contradict the statement in the defendant's affidavit filed with his final proof, to the effect that he was prevented by

sickness and misfortune from submitting his final proof within the statutory period.

It is also sufficiently appears that the entryman had no knowledge, intimation, or suspicion that a contest had been filed against his entry prior to the time he submitted his final proof.

Upon the foregoing facts, the register and receiver recommended the cancellation of the entry, upon the ground that the entryman had failed to submit his final proof within thirteen years after the date of his entry. Upon appeal, your office, by decision of February 4, 1898, reversed the action of the local office, dismissed the contest and directed the issue of final certificate, and that the entry of Diggs be submitted, in due course, to the board of equitable adjudication. Wright has appealed.

It is a general departmental rule that when a default is cured by the entryman before notice of the contest is served upon him and before he has any actual knowledge or intimation that a contest affidavit has been filed against his entry, the contest must be dismissed. Heptner v. McCartney, 11 L. D., 400.

The only default shown to exist against the entryman here is failure to submit timely final proof, and, as heretofore shown, before knowledge or notice of the contest, the defendant made final proof, and thus placed himself in a position where he is entitled, under the circumstances of the case, to the equitable consideration of the Department, as against any rights of the contestant.

The case at bar comes within the law as announced in Thompson v. Bartholet, 18 L. D., 96. See also as bearing upon the case under consideration, Meads v. Geiger, 16 L. D., 366, and Zickler v. Chambers, 22 L. D., 208.

The decision appealed from is affirmed. The entry of Diggs will be submitted to the board of equitable adjudication.

OKLAHOMA TOWNSITE-LOT CLAIMANTS.

LEACH . TANNAHILL.

A townsite entry under the act of May 14, 1890, is for the use and benefit of the occupants of the land at the date of the entry; and priority of possession or occupancy can only be material in case of conflicting claims of occupancy existing at such time.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) September 18, 1899. (C. J. W.) The townsite of Cross, Oklahoma, was entered by townsite board. No. 6, on April 16, 1897.

On May 14, 1897, William Tannahill filed an application for a deed for lots 13 to 24 inclusive (except lot 19), in block 13, of said townsite. On July 27, 1897, A. L. Leach filed application for a deed to the same lots, including lot 19, omitted from Tannahill's application.

The case having been set for a hearing, Tannahill applied to have taken the depositions of E. T. Warren, J. H. Dwyer, C. H. Stowell, F. A. Badger, A. C. Rogers and William Tannahill, and the depositions of said Rogers, Dwyer, Stowell and Badger were taken before a notary on September 25, 1897, the others not appearing.

The case standing for trial on September 28, 1897, Leach moved for a continuance on the ground of the absence of material witnesses, the motion indicating what the testimony of said witnesses would be; whereupon Tannahill admitted that the witnesses would testify as stated, if present, and the motion was overruled. The admission was to the effect that the witness if present would testify that Leach was the prior settler upon the lots in question. The case was then continued to the following day, when Tanuahill was allowed, over the objections of Leach, to amend his application so as to include lot 19, omitted from the original application, and the hearing proceeded.

On October 11, 1897, the board rendered a decision, wherein lot 19 was awarded to Leach and the remaining lots to Tannahill. Leach filed a motion for a review of said decision, which was allowed, and, on April 4, 1898, the board reviewed its former decision and rendered a second one, in which the former decision was modified to the extent of awarding lot 20 to Leach, instead of Tannahill. On said April 4, 1898, Leach gave notice that he would appeal from said decision to your office. A motion to dismiss the appeal, subsequently filed, was made by Vesta M. Tannahill, alleging herself to be the widow and heir of William Tannahill, deceased, and alleging, inter alia, that Tannahill died without being served with notice of the appeal, and that his heirs had not been served.

In reference to the matter of service, your office, on December 21, 1898, held the service to be defective, but allowed Leach fifteen days from notice in which to secure service of his appeal upon the proper parties. It appears that he was notified of this requirement on January 9, 1899, and on January 21, 1899, transmitted evidence of service upon the alleged heirs of Tannahill; thereafter, on April 13, 1899, your office considered the appeal of said Leach, and the decision of the townsite board was affirmed.

Leach has appealed to the Department, alleging various errors in your office decision.

The principal allegations of error are:

First. That your office erred first in not awarding all of said lots to Leach as the prior settler and occupant.

Second. That your office erred in not finding that the board erred in overruling Leach's motion for continuance, and that your office erred in not sending the case back for rehearing.

It is further alleged that it was error to find that Tannahill ever occupied the lots in question as an adverse claimant to Leach.

Leach and Tannahill were the only witnesses who appeared in per

son and testified before the townsite board. The remaining testimony consists of the depositions offered by Tannahill and of Tannahill's admission that Leach's witnesses would testify if present that Leach occupied the lot before Tannahill did. In so far as the personal testimony of Leach and Tannahill conflicts, neither party is aided by the other testimony in the record.

The vital question in the case was, and is, whether the relation of landlord and tenant existed between the parties so as to make Tannahill the tenant of Leach on the lots. Leach now insists that it did, but his testimony very weakly supports the contention, if it does so at all, and the testimony of Tannahill pointedly refutes it.

It appears that the lots in dispute (not awarded to Leach) were selected and partially enclosed and occupied on the opening of the country by parties other than Leach or Taunahill. Their improvements were slight and comparatively valueless, and appear to have been speedily abandoned, and none of these parties was in possession personally or through tenants when the entry was made by the townsite board.

A townsite entry made by trustees in Oklahoma has been uniformly held to be for the several use and benefit of the occupants of the land at the date of entry, the same as though the entry were made under the provisions of section 2387 of the Revised Statutes. See instruc

tions, 15 L. D., 270.

It follows that the entry made by the board on April 16, 1897, of the townsite of Cross, was for the benefit and use of the actual or constructive occupants of lands at that date, under the second section of the act of May 14, 1890 (26 Stat., 109). The mere priority of possession or occupancy in such cases is material only where more than one person is in actual or constructive possession at the date of entry. An early possession which had been abandoned or lost, and was not maintained at the time of entry, conferred no right. In view of this rule, the admission of Tannahill that Leach could show by absent witnesses that he had been in possession of the lots in dispute at a period antedating his (Tannahill's) possession, was not necessarily an admission of Leach's right. It appeared clearly from the testimony that Tannahill had all the lots, except 19 and 20, in possession and under fence at the date of the townsite entry, and was cultivating and claiming them. Leach failed to show any actual occupancy by himself and was unable to show that the relation of landlord and tenant existed between him and Tannahill. His contention that the case should have been continued to enable him to have his witnesses examined by the board, notwithstanding Tannahill's admission, is not tenable, and your office did not err in refusing to order a rehearing on this ground.

While the testimony as a whole is somewhat vague and unsatisfactory, it supports the conclusion reached by the board, and your office decision is accordingly affirmed.

2967-VOL. 29-12