of practice in the matter of hearings and contests." In said case it is held further that a desert-land entry

Is under a statute looking to reclamation and permanent improvement, upon which proof of good faith is necessary to complete the title, and on failure of which it ought to be forfeited, where the same policy of inducement to contest, of speedy restoration in case of relinquishment and of security of settlement after restoration, ought to prevail, as in case of lands liable to restoration technically within the very words of the statute. It is also an entry which ought to be included in such a classification as will bring it within the rules of practice relating to contests and administrative investigation, without the necessity of making special rules.

Hitherto desert-land entries have been under a "special rule" as regards relinquishment-the relinquishment being forwarded to your office, which thereupon transmits to the local office an order of cancellation. The embarrassment, vexation, and danger of great injustice, consequent upon such a course, clearly appears in the case at bar. If, as the Fraser-Ringgold case decides and directs, desert-land entries are subject to the provisions of the act of May 14, 1880 (21 Stat., 140), the first section of said act provides

That when a pre-emption, homestead, or timber-culture claimant shall file a written relinquishment of his claim in the local land office, the land covered by such claim shall be held as open to settlement and entry without further action on the part of the Commissioner of the General Land Office.

Applying the ruling in the Fraser-Ringgold case to the case at bar, it would seem that the proper practice would have been for the local officers to have canceled Black's entry at once when the relinquishment was presented by Almy, and allowed her then and there to make entry of the tract.

For the reasons herein given, I reverse your office decision holding Almy's entry for cancellation.

ACTION ON FINAL PROOF-RES JUDICATA.

UNITED STATES v. BAYNE.

There is no authority for the Commissioner of the General Land Office to review a final decision of his predecessor, but the Department, by virtue of its supervisory authority, may correct any error apparent on the record.

Secretary Lamar to Commissioner Sparks, July 1, 1887. ·

I have considered the appeal of William H. Bayne from the decision of your office, dated January 20, 1886, rejecting his final proof and holding for cancellation the final certificate No. 31 issued upon homestead entry No. 4467 of the NE. 4 of Sec. 35, T. 121, R. 63 W., 5th P. M., on January 9, 1884, at the Aberdeen land office, in the Territory of Dakota.

The record shows that said homestead entry was made May 7, 1881. On November 19, 1883, claimant gave notice by publication of his intention to make final proof in support of his claim before the register and receiver of said land office on January 9, 1884. The final proof was accepted by the local land officers, and final certificate issued as aforesaid. On November 15, 1885, your office suspended said proof, because it did not show sufficient residence upon the land. Thereupon the claimant furnished supplemental proof, which your predecessor considered on March 18, 1885, together with the original proof, and held that the same showed "a bona fide intention to comply with the law, and the same being in fact a practical compliance therewith, the entry is relieved from suspension and will be approved for patent." The local land officers were directed to "notify the claimant accordingly." On January 20, 1886, your office, without any reference to the former decision of your office holding said proof sufficient, and with no new or other evidence than that upon which said decision was rendered, rejected said proof and held the final certificate for cancellation, "for the reason that the claimant did not properly describe the land (range not given) for which proof was made in his publication of notice, and also for the reason that by the proof submitted he fails to establish his good faith in the matter of residence, improvement and cultivation."

The final proof shows that claimant entered upon said tract May 1, 1881, and established his residence thereon same day; that his improvements consist of a frame house sixteen by twenty two feet, a stable, good well, seven acres broken and cultivated--all valued at $250. With said proof are filed copies of certificates of discharge from the army of the United States, showing that claimant enlisted in Co. D, 28th Reg., New York Volunteers, November 12, 1861, to serve two years, and was discharged from service for disability on May 22, 1862; also that he enlisted in Co. C, 130th Reg., Ohio National Guards, on May 2, 1861, to serve one hundred days, and was discharged September 22, 1864.

Your office decision of March 18, 1835, held that the records of the War Department—which govern your office in all cases of army service-show that Bayne enlisted in said regiment November 12, 1861, for the unexpired term of eighteen months, and that he was discharged for disability May 22, 1862; that he subsequently served in the army four months and twenty days, making a total army service of one year, ten months and twenty days, "which added to his term of residence of two years, eight months and eight days gives a total of four years, six months and twenty-eight days, lacking five months and two days of the five years required by law."

It further appears that your office directed the local land officers to advise the claimant that, "when he showed a substantial compliance with the law by residing a sufficient length of time upon the land to cover the deficiency, he would be allowed to show that fact, without

further formality, by his own affidavit, corroborated by two witnesses." In response to said advice, claimant filed an affidavit, duly corroborated, setting forth that he made said entry in good faith; that he fully believed that he was entitled to credit for two years' residence on account of his enlistment in said New York Regiment, and one hundred and forty-three days on account of his service in said Ohio Regiment; that he resided upon said tract from May 1, 1881, to February 9, 1884, one month after making entry; that being out of money, claimant went to Chicago, Illinois, in search of work; that in the spring of 1884 he hired a person to go upon said tract and put in a crop; that the person so hired resided upon said land for three months, when claimant returned and lived on the land for three months; that claimant has not alienated the land. Upon this showing, your office held that the claimant has shown good faith and a practical compliance with the law, and that said entry "will be approved for patent." This decision became final, so far as relates to the action of your office, upon the expiration of sixty days from notice thereof. Rules of Practice No. 112 (4 L. D., 49).

It has been the uniform ruling of this Department that one Commissioner of the General Land Office has no authority to review a decision of his predecessor that has become final. Eben Owen et al. (9 C. L. O., 111). The Department, however, by virtue of its supervisory authority may correct any error apparent on the record. Lee v. Johnson (116 U. S. 48).

The evidence fails to show bad faith upon the part of the claimant, which would warrant the cancellation of said entry. It appears that the number of the range was not given in the published notice. For this defect, the entry will be suspended and the claimant will be required to make new proof in accordance with the law and regulations of the Department.

The decision appealed from is modified accordingly.

RAILROAD GRANT-WITHDRAWAL-ACT OF APRIL 21, 1876.

NORTHERN PAC. R. R. Co. v. DUDDEN.

A homestead entry made subsequently to the filing of the map of general route of the Northern Pacific, but prior to the receipt of notice of withdrawal thereunder, is protected by the act of April 21, 1876.

Secretary Lamar to Commissioner Sparks, July 1, 1887.

By letter of October 7, 1884, the local officers at Helena, Montana, forwarded to your office the application of the Northern Pacific Railroad Company to contest cash entry No. 1604, made under act of June 15, 1880, by Bernhard H. Dudden, for the NW. 4 of NE., Sec. 27, T. 4 N., R. 10 W.

The tract is within the limits of a withdrawal ordered April 22, 1872, upon the map of general route filed February 21, 1872, and also within forty miles of the line of road as shown by the map of definite location filed July 2, 1882.

The records show that said Dudden made homestead entry of said tract April 26, 1872, which was canceled September 11, 1879, and that on August 26, 1884, he made cash entry as aforesaid under the act of June 15, 1880.

Your office, by letter of March 17, 1886, rejected the application of the company and its claim to the tract. The company appealed.

Notice of the withdrawal on general route was not received at the local office until May 5, 1872. It will be observed the entry was made prior to that date, on April 26.

The land at said last mentioned date was properly subject to entry. For the act of April 21, 1876, provides:

That all pre-emption and homestead entries or entries in compliance with any law of the United States, of the public lands, made in good faith by actual settlers upon tracts of land of not more than one hundred and sixty acres each within limits of any land grant prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated, or after their restoration to market by order of the general land office, and where the pre-emption and homestead laws have been complied with, and proper proof thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto.

Sec. 2. That when at the time of such withdrawal as aforesaid valid pre-emption or homestead claims existed upon any lands within the limits of any such grants which afterward were abandoned, and, under the decisions and rulings of the Land Department, were re-entered by pre-emption or homestead claimants, who have complied with the laws governing pre-emption or homestead entries and shall make the proper proofs required under such laws, such entries shall be deemed valid, and patents shall issue therefor to the person entitled thereto. (19 Stat., 35.)

At the time of the receipt of notice of said withdrawal on general route by the local office, a valid homestead claim existed on the tract. But nine days had passed since the entry was made, and claimant was not obliged to establish residence, or perform any other act on the land at that time, for he had six months from entry within which to establish residence. At the date of receipt of such notice a homestead claim, capable of ripening into patent, had attached to the land. The tract was therefore excepted from the withdrawal on general route.

It is true the court in the case of Buttz v. Northern Pacific Railroad Company (119 U. S., 55), held that "when the general route of the road is thus fixed in good faith, and information thereof given to the Land Department by filing the map thereof with the Commissioner of the General Land Office, or the Secretary of the Interior, the law withdraws from sale or pre-emption the odd sections to the extent of forty

miles on each side."

In that case, however, said act of April 21, 1876, was not before the court, nor was it necessary to the decision therein.

It is well settled that all acts in pari materia are to be construed as one. Applying that maxim to the acts here under consideration, it seems necessary to conclude that, upon filing of the map of general route, "the law withdraws from sale or pre-emption the odd sections," subject however to the provisions of the act of April 21, 1876.

In this view it is not in conflict with the decision in the Buttz case to hold that the land in question was not affected by the withdrawal on general route.

The right to purchase under the act of June 15, 1880, excepted the tract from the withdrawal on definite location. Burt v. Northern Pacific Railroad Company (3 L. D., 490); Holmes v. N. P. R. R. Co. (5 L. D., 333); McLean e. N. P. R. R. Co. (5 L. D., 529).

Said decision, for the reasons herein, is affirmed.

HOMESTEAD ENTRY-COMMUTATION PROOF.

JAMES II. SHEPARD.

The cancellation of a commutation cash certificate terminates all rights under the original entry.

On the rejection of commutation proof, with the right to submit new proof, it may be presented at any time within the lifetime of the original entry.

Secretary Lamar to Commissioner Sparks, July 1, 1887.

I have considered the appeal of James H. Shepard from the decision of your office, dated October 16, 1885, rejecting his final commutation proof on homestead entry No. 2489 of the SW. of Sec. 9, T. 114 N., R. 77 W., made March 24, 1883, upon which proof was made April 30, 1885, before the clerk of the district court for Sully county, in the Territory of Dakota, and final certificate No. 12,969 was issued on May 8, 1885, by the local land officers at Huron, in said Territory.

Your office rejected the final proof offered, upon the ground "that his residence upon the land has not been such a continuous actual bona-fide residence as contemplated by law." The local officers were directed to advise the claimant that his cash certificate will be allowed to stand, and he will be permitted within sixty days to make new and satisfactory proof of residence and cultivation, and that in default of such proof, the cash certificate will be canceled, leaving the original entry to be disposed of in regular course of business.

This action of your office was clearly erroneous. If the cash certificate be canceled, then the homestead entry must be canceled. This was expressly ruled in the case of Greenwood v. Peters (4 L. D., 237). If the proof be rejected and the applicant allowed to make new proof, then, under the law, he can do so at any time during the lifetime of his entry. Sec. 2301, R. S.; Thomas Nash (5 L. D., 608).