located. The instructions of August 28, 1883 (2 L. D., 313), to the register and receiver at Fargo, North Dakota, read as follows:

I am in receipt of the receiver's letter of July 7, 1883, in which the following ques tion is submitted to this office:

"Is it admissible for a register or receiver or special agent or clerk to make a timber culture entry in a district other than the one in which he is located?"

I reply that I think such entry, excepting as to special agents, is admissible. This circular was quoted and approved in the Lock Lode case, 6 L. D., 105.

The ruling thus made remained in force until February 3, 1890, when it was held in the case of Herbert McMicken et al., 10 L. D., 97, that the disqualification to enter public lands contained in section 452 of the Revised Statutes of the United States extends to officers, clerks, and employees in any of the branches of the public service under the control and supervision of the Commissioner of the General Land Office in the discharge of his duties relating to the survey and sale of the public lands.

March 31, 1890, your office rejected Adams's timber culture applica tion under the McMicken case, and on April 18, 1890, he filed homestead application for the land, his term as register of the Spokane land office having expired March 4, 1890.

In the case of Mary R. Leonard, 9 L. D., 189, it was said:

In its practical administration, the law must be held to be what for the time being it is construed to be by the tribunals lawfully constituted for that purpose. . . All that can be required of the citizen by any just government is, that he conform to the law as at the time expounded by its courts or other tribunals invested by it with such authority.

See also Ohio Life and Trust Company v. Debolt, 16 How., 432; and Gelpcke v. City of Dubuque, 1 Wall., 206.

It follows then that Adams's occupancy of this tract was a legal occupancy, and that the Tustins gained no settlement rights by their forcible entry on the land in 1889 (their settlement of 1884 having been abandoned when they moved to the Big Bend country). Atherton v. Fowler, 96 U. S., 513. Mrs. Tustin's claim must accordingly rest entirely on her homestead application.

The claim of the Northern Pacific Railroad Company to this tract was not finally disposed of until January 21, 1892, and at that time the homestead applications of both Mrs. Tustin and Mrs. Adams were pending, Mrs. Tustin's being the prior one. Other things being equal, priority of date would give priority of right, but the surrounding cir cumstances may be properly considered in the effort to arrive at a just conclusion.

The history of this case shows a struggle for years on the part of Joshua L. Tustin and his wife to get possession through legal technicalities of a tract which has been irrigated and improved by the labor and money of another. It is not a contest between two innocent settlers who have accidentally gotten upon the same quarter section, but a deliberate attempt by one party to profit at the expense of the other.

It is a fundamental principle that good faith must characterize every attempt to acquire title to public lands of the United States. The Department will not willingly lend itself to the furtherance of fraudu lent designs. Thus, in the case of Caldwell v. Carden, 4 L. D., 306, it was held that as the settlement, residence, and cultivation of the homesteader were made with due notice of the bona fide claim and occupancy of another, no rights were acquired thereby, and the entry was ordered to be canceled. See also Turner v. Bumgardner, 5 L. D., 377.

All the equities in the present case are with Mrs. Adams. Your office decision awarding to her the right to perfect entry and rejecting Mrs. Tustin's application is accordingly affirmed.

WAGON ROAD GRANT-LISTED LANDS-TERMINAL LIMITS.

DUNCAN ET AL. v. THE DALLES MILITARY WAGON ROAD COMPANY. An incomplete list of lands claimed by a wagon road company, and filed by it for the information of the local officers, who at such time were not in possession of a diagram showing the limits of the grant, is not a waiver of the company's right to lands omitted therefrom, as a list filed for such purpose is not a requirement of the grant.

The terminal limits of a grant are ascertained by drawing a line through the terminus of the road at right angles to the general direction of the last section of the road.

Secretary Smith to the Commissioner of the General Land Office, March

On August 4, 1894, your office held for cancellation certain entries in T. 20 S., R. 47 E., W. M., Burns, Oregon, land district, for the reason that they were improperly allowed, as the tracts covered by them are within the primary limits of the grant of February 25, 1867 (14 Stat., 409) for The Dalles Military Wagon Road Company, and were withdrawn December 14, 1871. The action of your office was taken on said company's application forwarded by the local officers May 15, 1894, to list lots Nos. 1, 2, 3 and 4 of section 5, and all of sections 7 and 19, of said township and range.

By letter of February 8, 1895, your office forwarded the appeals of James M. Duncan, William T. Jones, and Frank M. Vines from said decision, and on March 5, 1895, your office forwarded an argument filed in behalf of the appellant Jones.

The following entries made by appellants are involved in this case: Homestead entry made by James M. Duncan January 15, 1893, for the W.

NE. 1, SE. NE. and lot 1 of section 7; Homestead entry made by William T. Jones December 30, 1893, for the NW. of section 7, and desert land entry made by him January 15, 1894, for the NW. 1 SW. 1 and lot 5 of section 7; and desert land entry made by Frank M. Vines January 16, 1894, for lots 2, 3 and 4, of section 7, T. 20 S., R. 47 E.

The appellants contend:

1. That the company has waived its right to the land because on July 29, 1890, it filed for the guidance of the local officers a list of lands claimed by it, in which list no lands east of range 45 were designated. 2. That a part of the tracts involved in this case are east of the eastern terminus of the company's road and therefore do not fall within the limits of the grant.

The company filed a list of lands claimed by it, in the local office on July 29, 1890, for the purpose of giving information to the local officers, who, at that time, had no copy of the diagram showing the limits of the grant. This list was incomplete, but the company was not required to file the same, and waived no rights by its action.

The plat of survey in your office of T. 20, R. 47 E., shows that the terminus of the road is at the ferry landing on the west bank of the Snake River in the NW. NE. of Sec. 19. The tracts in question fall west of a line drawn through that point at right angles to the general direction of the last ten miles (the length of a section under the company's grant) of the road, and are therefore within the limits of the grant. See Daily v. Marquette, Houghton and Ontonagon R. R. Co. et al., 19 L. D., 148. The decision appealed from is accordingly affirmed. With his argument Jones filed an affidavit alleging that the E. NW. and SW. NW. of section 7, included in his homestead entry, and lot 5 of section 7, included in his desert land entry, were settled upon and occupied by bona fide qualified settlers intending to acquire title to the same from the government, from 1867 to 1883, and were excepted from the grant of the company. He therefore prays that in the event of an adverse decision on his appeal a hearing be ordered to allow him to prove his allegations.

This affidavit is herewith returned, for proper action by your office.

PRACTICE-APPEAL-ATTORNEY.

SAMUEL H. BAXTER.

An appeal, taken by an attorney not authorized to practice in the Land Department, will not be entertained.

7, 1896.

Secretary Smith to the Commissioner of the General Land Office, March (R. F. H.) December 22, 1894, I. H. Lookabaugh, Hobbs & Kane as attorneys for Samuel H. Baxter, filed an appeal from your office decision of October 10, 1894, denying his application to amend his homestead entry No. 11628, made January 12, 1894, for the N. of SE. 4, SW. SE. and SE. of SW. 4, Sec. 29, T. 16 N., R. 10 W., to embrace in lieu thereof the NE. of Sec. 5, T. 15 N., of R. 13 W., Kingfisher land district, Oklahoma.

It appears from the records of your office that said attorneys are not

authorized to practice in the Land Department, and the files of the case show that said attorneys and claimant were duly notified thereof by registered letters, which were received by both attorneys and client, October 10, 1894, and February 5, 1895, respectively, since which time no action in the case has been taken on the part of either.

In view of the foregoing facts, the appeal was irregular and unauthorized, and the same is accordingly dismissed.

RAILROAD GRANT-INDEMNITY SELECTION.

SOUTH AND NORTH ALABAMA R. R. Co. v. HALL.

The status of indemnity lands at the date of selection, not definite location of the road, determines the right of the company thereto.

Secretary Smith to the Commissioner of the General Land Office, March, (J. I. H.) (J. L.)

7, 1896.

This case involves the E. of the SW. of section 19, T. 20 N., R. 15 E., Montgomery land district, Alabama.

On November 6, 1889, Robert G. Hall made homestead entry No. 23,180 of said tract. On December 6, 1881, the South and North Alabama Railroad Company per list No. 1, made indemnity selection of said tract; claiming under the grant to the State of Alabama made by the act of June 3, 1856 (11 Stat., 17), and renewed for the benefit of the South and North Alabama Railroad Company by the act of March 3, 1871 (16 Stat., 580). The line of said company's railroad opposite said tract was definitely fixed on June 26, 1871, by the filing of the map of definite location; and the land in question was within the fifteen mile indemnity limits ascertained by said map. At that time said tract was covered by one William D. Morgan's homestead entry No. 1854 made September 16, 1869. Said entry remained of record until February 27, 1879, when it was canceled on account of failure to make final proof.

On January 22, 1895, your office upon the foregoing facts, decided that said land did not pass under the grant, and held for cancellation the company's selection of said tract.

The company has appealed to this Department.

Your office erred in not distinguishing the difference between lands within primary limits, title to which vests on the filing of the map of definite location under the grant and as of the date thereof, and lands within indemnity limits, title to which can be claimed only by selec tion, and acquired only by the approval of the Secretary of the Interior. The tract in question was part of the public domain open to settlement and entry on December 6, 1881, when the company selected it by list No. 1. The filing of said selection segregated the tract, and Hall's homestead entry thereof on November 6, 1889, was erroneously allowed. Your office decision is hereby reversed. The company's selection will be approved. And Hall's entry will be canceled.

10332-VOL 22- -18

MINING CLAIM-ADVERSE CLAIM-JUDICIAL PROCEEDINGS.

SCOTT. MALONEY.

The obligation of an adverse claimant to begin judicial proceedings within the statutory period is not suspended by favorable action taken on a motion to dismiss the adverse claim, and appeal therefrom.

Secretary Smith to the Commissioner of the General Land Office, March 7, 1896. (E. B.)

Against the application of Richard M. Maloney for patent for the American Express No. 2, American Express No. 1, No Mistake and Pidcock lode claims then pending before the register and receiver at Rapid City, South Dakota, Joseph Scott, as administrator of the estate of Thomas H. Breen, filed an adverse claim July 19, 1894, the last day of publication, alleging a conflict between the Dunlap and Emma S. lode claims, and the said American Express claims Nos. 1 and 2. Upon motion of Maloney the adverse claim was dismissed by the local officers August 11, 1894.

An application by said Maloney to purchase was denied by the local officers August 24, 1894, on the ground that the time allowed for appeal from the decision dismissing the adverse claim had not yet expired. On the date last mentioned the certificate by the clerk of the state court having jurisdiction in the premises, and five days thereafter the certificate of the clerk of the proper United States circuit court, were filed as required by paragraph 92 of mining regulations, showing that up to August 20, 1894, the necessary suit had not been begun by the adverse claimant.

From the decision dismissing the adverse claim, and the decision denying the application to purchase the respective parties duly appealed to your office. On December 4, 1894, your office affirmed the action of the local office as to the refusal to allow purchase by Maloney, held the adverse claim sufficient and overruled the action dismissing it, and further decided

that the contestee having filed a motion in your (local) office to dismiss the adverse claim before the expiration of the thirty days allowed for commencing a suit thereon, the adverse claimant was not bound to commence his action in court pending proceedings in the Land Department upon said motion; but in case this decision becomes final the adverse claimant will be allowed twenty days from notice of such official decision within which to commence suit, and in case of default the adverse claim will be held to have been waived.

From this decision said Maloney appeals contending that the failure of the adverse claimant to commence the suit required by section 2326 Revised Statutes within thirty days after filing his adverse claim was a waiver of such claim, and that your office erred in sustaining the denial to allow him to purchase the ground claimed. The parties appear to have had due notice of all proceedings.