land making part of the Coteaux de France, situate north of Bayou Crocodile, and upon which defendant has acquired pre-emption rights." This decision was affirmed by the Supreme Court of the State, and on appeal by Lanfear was affirmed by the Supreme Court of the United States. (4 Wall., 204).

The heirs of Lanfear having been advised by your office on November 21, 1881, that, after the adjustment of the pre-emption claims, "only a few scattering lots will remain," sent to your office their deed of relinquishment, in favor of the United States, of all their estate and interest in and to any part of said sections one hundred and twenty and thirty-seven, upon the express condition, however, that they should receive indemnity for the lands thus relinquished. On October 5, 1883, your office held said certificates of location for cancellation, as above stated, and the heirs of Lanfear duly appealed.

The grounds of appeal are

1st, Error in holding that indemnity under the third section of the act of June 2, 1858, can not apply to claims confirmed by the old board of commissioners, acting under the authority conferred by the third section of the act of March 3, 1807.

2d, Error in holding that Lanfear's heirs are estopped by the record, or by the conduct of their ancestor from claiming the relief intended by said act of 1858.

3d, Error in holding that the patent issued on the approved survey of the Toups claim was a location and satisfaction thereof.

4th, Error in holding that said act of 1856 was not a confirmation of the Toups' claim, as surveyed by the United States, within the meaning of section three of said act of 1858.

5th, Error in holding that the applicants for relief could not relinquish to the United States the scattered fractions covered by the patent and take indemnity therefor.

The contention is, that the claim of Paul Toups was confirmed by the old board under the act of March 3, 1807, re-confirmed and located under the private act of August 18, 1856, and still again re-confirmed under the second section of the act of June 2, 1858, and, hence, it comes within the provisions of the third section of the last named act and is entitled to the indemnity provided therein.

The second section of the act of June 2, 1858, confirmed the decisions in favor of land claimants, made by P. Grimes, Joshua Lewis and Thomas B. Robertson, commissioners appointed to adjust private land claims in the eastern district of the territory of Orleans, and the third section of said act provides,

"That in all cases of confirmation by this act, or where any private land claim has been confirmed by Congress, and the same in whole or in part has not been located or satisfied, either for want of a specific location, prior to such confirmation, or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor general of the district in which

such claim was situated, upon satisfactory proof that such claim has been so confirmed, and that the same in whole or in part remains unsatisfied, to issue to the claimants, or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and unsatisfied."

It is well settled that "if a right is asserted against the government, it must be so clearly defined that there can be no question of the purpose of Congress to confer it." Charles River Bridge v. Warren Bridge (11 Pet., 420, 536); Dubuque & Pacific R. R. Co. v. Litchfield (23 Howard, 66, 88); Slidell v. Grandjean (111 U. S., 413).

It can not strengthen the case of the appellants that said deed of relinquishment has been tendered, for it was held by this Department in the case of Rudolphus Ducros, decided March 12, 1874, (1 C. L. O. 38,) that said act of June 2, 1858, does not authorize the issue of scrip for any part of a confirmed claim, which at the date of its location was not in conflict with a prior confirmation, and that the Ducros claim was located and satisfied by the United States survey thereof. The same ruling was adhered to by this Department in the case of John Dejan (8 C. L. O., 43).

It is, however, strenuously insisted that since said claim was re-confirmed and located by said private act of 1856, it is therefore within the provisions of the act of June 2, 1858. This contention can not be maintained.

It was expressly provided in said act of 1856, that the confirmation therein should be only a relinquishment of title on the part of the United States, and should not affect the rights of any third person claiming title either under adverse title or as a pre-emptor. The act of 1858 confirms generally the decisions in favor of land claimants made by the commissioners named therein, but it does not necessarily include the Toups' claim confirmed by the act of 1856. The latter act confirms the claims specifically named and in accordance with its terms the rights of all parties were adjudicated prior to the passage of the act of 1858. Besides, as we have seen, the courts of Louisiana and the Supreme Court of the United States, in the case of Lanfear v. Hunley (supra), have decided that the private act of confirmation did not enlarge the grant, and the Toups' claim did not extend to the north of Bayou Crocodile. It is true, that the United States, under said confirmatory act and its patent, has relinquished its title to the tracts in said sections, but no good reason is shown why the government should issue certificates of location, as indemnity for land never granted, and which, therefore, was never lost.

It is unnecessary to consider the validity of the act of June 21, 1860, (12 Stats., 866,) repealing the second section of the act of 1858, for the reason that the latter act gives no authority for the issuance of the certificates of location applied for. The decision of your office is accordingly affirmed.

TIMBER CULTURE ENTRY-REPAYMENT.

THOMAS C. DUNCAN.

An entry made without actual knowledge as to the character of the land is at the risk of the entryman, and repayment will not be allowed in the event of the relinquishment thereof when the land is found untillable.

Acting Secretary Jenks to Commissioner Sparks, August 31, 1885.

I am in receipt of your office letter of November 8, 1884, transmitting the papers relative to the appeal of Thomas C. Duncan from your office decision of July 9, 1884, refusing his application for the cancellation without prejudice of his timber culture entry No. 1826, for Lots 5, 6, 7 and 8, Sec. 32, T. 111 N., R. 71 W., Huron, Dakota, and for the return of the fees thereon paid.

The facts are as follows:

Duncan made said entry on April 2, 1883. On or about October 15, 1883, he executed a relinquishment of said entry, and applied to your office to be allowed to make a new entry without prejudice upon some other tract and for the repayment of the fees thereon.

In support of this application he filed his affidavit, setting forth "that at the time of making said entry he was informed by a land agent of Highmore, who represented that he was well acquainted with the tract of land in section 32, township and range above stated, that the same was a fine tract of land and agricultural in character;" that relying upon these statements affiant made said entry; that about thirty days ago he sent his brother to do the breaking on said tract; that said brother returning informed him that the tract was totally unfit for agricultural purposes, and for the growing of trees; that he could not find five contiguous acres fit for breaking; that the tract was covered with large bowlders, rocks, and gravelly knolls; and that it was broken and very hilly. The breaking thereupon was not done. This affidavit was corroborated by that of his said brother.

On this statement of facts your office, by its letter "C," of November 16, 1883, denied the application. Duncan filed his motion to review, accompanied by his affidavit, setting forth that in selecting said tract he relied upon the surveyor's description of the land, as shown by the records of the Huron land office, and upon the advice of the register. The affidavits of D. L. Cadwallader and Charles S. McGill also appear, setting forth that affiants have lived for eight months in Hyde county (wherein said tract is located), are acquainted with the land in question, that it is unfit for agricultural purposes, covered with large bowlders, and that ten acres thereof cannot be cultivated. By your office letter of July 9, 1884, said application was again denied.

It appears that Duncan was in Huron, Dakota, on April 2, 1883, and there made his entry. It is not attempted to be shown that he then

visited the land, or that he has since done so, nor is any reason assigned for his failure so to do. In one affidavit he says, he relied on information obtained from a land agent; in another, he claims to have acted on information obtained from the register and from the records. He does not pretend that he has made any attempt to further comply with the law. The field notes show the land to be rolling, and the soil first and second rate in character. It was incumbent on Duncan, before making his entry, to inform himself of the character of the land. If he has voluntarily failed so to do, it must be at his own risk, and this Department cannot furnish him relief from the results of his own neglect. Your decision is therefore affirmed.

PRE-EMPTION CONTEST.

PERCIVAL v. DOHENEY.

Contests to clear the record of pre-emption filings are not encouraged by the Department. The rights of the pre-emptor should await consideration until final proof is offered.

Secretary Lamar to Commissioner Sparks, August 31, 1885.

I have considered the case of George W. Percival v. Michael A. Doheney, involving the SE of Sec. 13, T. 154 N., R. 65 W., Devil's Lake, Dakota, on appeal by Percival from your office decision of August 6, 1884, dismissing the contest.

It appears from the record that Percival made homestead entry for the tract described, November 2, 1883, and that on the following day, November 3, the date on which the township plat was filed, Doheney filed pre-emption declaratory statement for the same tract, alleging settlement March 26, 1883. Action was brought by the homestead entryman, Percival, with a view to clearing the record of Doheney's pre-emption filing. Hearing was set for December 22, 1883, at which both parties appeared in person and by counsel. Counsel for Doheney moved to dismiss the contest, and assigned several reasons in support of said motion, the general purport of which was that the notice of contest was vague and indefinite as to the charges which contestee was expected to answer, no specific charge of any kind being made. Substantially the same allegations were made as to the affidavit upon which the notice of contest was based.

These motions were overruled by the register and receiver and the exceptions noted. The hearing of the case proceeded upon its merits, and resulted in a finding by the register and receiver favorable to contestant. On appeal to your office the decision below was objected to on every point, and especially as to the action overruling the motion to dismiss. After quite a full recital of the facts in the case as to the character of the affidavit and notice of contest, your office sustained the appeal and dismissed the contest without prejudice to either party.

Upon an examination of the case, I am satisfied that this was right. The notice of contest which issued only a few days after the pre-emption declaratory statement was filed set forth as ground of contest only the very broad and indefinite charge of "failure to comply with the law in regard to his declaratory statement." It failed to specify in what particular there had been failure. The declaratory statement itself was but a few days old. It was difficult for Doheney to know just what he would have to answer at the hearing. At said hearing considerable testimony was taken which went largely to two points, first, as to when Doheney ceased to be a minor, and, second, as to his settlement, inhabitancy and improvement.

In view of the foregoing state of facts, I refrain from expressing any opinion on the evidence. Contests of this character "to clear the record" are not encouraged by the Department. In such cases, the better practice, as a general rule, is to allow the pre-emption rights to await consideration until final proof is offered. Nichols v. Benoit, (2 L. D. 583.)

Especially is this true in this case, in view of the indefinite and very general character of both the affidavit and notice of contest. Doheney, the pre-emptor, may at any time, after due advertisement, offer his final proof, and when he does, all questions touching his rights under his pre-emption claim will then be open for consideration and determination. The questions presented at the hearing already had may then very properly be raised. Percival may then as an adverse claimant offer his objections and after due notice be fully heard in contest.

I affirm the decision of your office dismissing the contest without prejudice.

PRE-EMPTION-SALE AFTER ENTRY.

MORFEY v. BARROWS.

The sale of the land shortly after making proof and payment does not warrant a presumption against the good faith of the entryman.

In case of contradictory evidence the findings of the local office as to matters of fact are given due consideration by the Department.

Acting Secretary Jenks to Commissioner Sparks, September 1, 1885.

I have considered the case of Stephen Morfey v. Charles E. Barrows, involving the right to the SE of Sec. 3, T. 111, R. 60, Huron, Dakota, on appeal by Morfey from your decision of July 27, 1884, dismissing the contest.

The record shows that Barrows filed declaratory statement No. 17,661 for said tract, May 3, alleging settlement April 19, 1882; and December