dated September 12, 1885, relative to certain cases involving the right of said State to certain lands under the grant by act of Congress ap proved March 12, 1860, (12 Stat., 3,) extending the provisions of the swamp grant to the State of Oregon.

It appears from your said office letter of September 2d, that in reply to a letter from said State agent, asking that he be allowed until November 20th next to examine the papers and records in certain cases decided by your office adversely to said State, because of his inability to attend to the matters involved prior to that time, he was advised that "the rules of practice having been approved by the Secretary of the Interior, I do not feel authorized to grant the extension of time asked for in the cases where the claim of the State has been held for rejection, except with the consent of the other parties to the contests." On September 21, 1885, said counsel for the State filed in your office a paper, dated September 12th, same year, signed by him as attorney for said State, which he asks to have considered as an appeal in each and every case referred to therein by number, and also as a motion to certify to this Department all of said cases for final action.

The grounds of the motion are, that the decisions in the cases referred to are not in accordance with the facts adduced at the hearing before the district land officers, and that, as the law makes the action of this Department final, the State is not finally concluded until this Department has finally adjudicated each case.

The paper is unverified, and can not be entertained as a motion for a certiorari under the rules of practice. Rule 83 (September 1, 1885,) provides that when the Commissioner shall formally decide that a party has no right of appeal to this Department, such party may apply for an order directing that the proceedings be certified to the Secretary, and further action shall be suspended until advised by this Department.

Rule 84 provides that "applications to the Secretary under the preceding rule shall be made in writing under oath, and shall fully and specifically set forth the grounds upon which the application is made."

Rule 86 provides that notice of an appeal from a decision of your office must be filed within sixty days from the date of notice of the decision appealed from.

There may be instances where this Department would feel called upon to exercise its supervisory power to prevent a great wrong, and would direct that an appeal be allowed, or the record certified where the offer to file the appeal was not made in time. But no such case is presented by the counsel for the State.

In your communication of October 27, 1885, you ask to be instructed relative to certification of those cases wherein the decisions of your office or of the local officers have become final by failure to appeal, and the claims of the State have been rejected.

It is not deemed advisable to establish any general rule different from those now in force. It was held by this Department, in re State of

Oregon (3 L. D., 474,) that although no appeal was taken from the finding of the district officers as to the character of the lands, it was the duty of your office to review the testimony taken at the hearing and to render a decision upon the whole evidence. When, therefore, the decision of your office rejects the claim of the State to any tract under said grant, and an appeal is filed within the time prescribed by the rules of practice, the case should be duly transmitted to this Department for final adjudication. In no case will you certify proceedings under Rules 83 and 84 unless specially directed by this Department.

Your attention is also called to the repeated departmental decisions to the effect that separate appeals must be filed in each case, and the same transmitted to this Department separately. Griffin v. Marsh, and Doyle v. Wilson (2 L. D., 28); So. Minn. Ry. Ex. Co. v. Gallipean (3 L. D., 166).

PRACTICE-REVIEW-APPEAL.

POSTLE v. STRICKLER ET AL.

The rights of the party having been duly considered by the Department on motion for review, and the decision thereon, denying the same, having been received at the General Land Office, prior to action on the appeal of the same party to the Department, raising the same question, the Commissioner properly declined to transmit the papers on appeal.

Secretary Lamar to Commissioner Sparks, October 31, 1885.

In 1882 Martin Postle began a contest against the timber culture entry of Jacob Strickler for the NW. of Sec. 24, T. 20, R. 1 W., Grand Island, Nebraska, alleging non-compliance with the law. The local of fice decided in favor of the contestant and such decision was affirmed by your office, but on appeal my predecessor on June 25, 1883, dismissed the contest, because the contestant did not appear to have made application to enter at the time of beginning the contest.

Due notice of this decision was given Postle on July 17, 1883. On the 13th day of February, 1884, Postle filed affidavits to the effect that he did in fact apply to enter at the time of initiating contest, and asking that an investigation be made with respect to such alleged application. February 19, 1884, a report was called for from the local office and on March 3, the said application was forwarded to your office, with the statement that it appeared to have been mislaid in the local office. Whereupon, my predecessor, on April 29, 1884, (2 L. D., 246,) reconsidered the decision of June 25, 1883, and vacating the same, affirmed the decision of your office. This conclusion rested upon the ground that Postle's contest was in all respects regular; that the application having been lost through no fault of his, and his search for the same hav ing been diligently followed up to success, he should not be deprived of his right simply because he had not filed his motion for review within the time prescribed by the rules of practice.

A petition is now filed, bearing date October 14, 1885, on behalf of Henry Rogers, alleging that when the period of thirty days had elapsed after Postle had been notified of the adverse decision of June 25, 1883, Strickler, the original entryman, relinquished his entry, and he (Rogers) then made timber culture entry for the land. That your predecessor, on receipt of the decision of April 29, 1884, directed the cancellation of petitioner's entry and permitted Postle to enter the land. That from this action of your office Rogers appealed, but that said appeal was never transmitted to this Department and therefore application is now made to the end that such appeal may be allowed, and the whole case again sent up for examination here.

While it is true that Rogers' case has not been considered by the Department on appeal, it is also true that he has had his day in court through a different proceeding. The record shows that after the decision of April 29, 1884, a motion was filed in this Department on behalf of Rogers, asking a reconsideration of said decision and setting up the rights acquired by said Rogers through his entry made as alleged by him after the right of review had been lost by Postle. This motion was denied by departmental decision of July 25, 1884 (3 L. D., 42,) which again declared that Postle should lose nothing through the negligence of the local office, and directed the cancellation of Rogers' entry.

As the appeal of Rogers was only filed on July 22, 1884, it followed that before any action thereon could be taken by your office the decision of July 25, 1884, was received, and your predecessor very properly held that the denial of Rogers' motion for reconsideration by the Department rendered unnecessary the transmission of his appeal. The petition is therefore denied.

HEARING-EVIDENCE.

MARK L. CAMPBELL.

Statements of a special agent made privately to the local officers, and ex parte affidavits cannot be considered as legal evidence, upon which final action may be taken.

Secretary Lamar to Commissioner Sparks, October 31, 1885.

I have considered the case of Mark L. Campbell, on appeal from your office decision of October 11, 1884, holding for cancellation his declaratory statement for the E. of the NW. and the SW. of the NW. of Sec. 24, T. 60 N., R. 16 W., 4th P. M., Duluth, Minnesota.

Campbell filed for said tract on October 30, alleging settlement June 12, 1883. On report of Special Agent Eaton, alleging fraud, he offered final proof and a hearing was had at the local office.

In the decision of the local officers thereafter rendered I find the following statement: "In arriving at our opinion in this case we are influ

enced not only by the testimony submitted, but also by certain other evidence disclosed to us by the special agent, and which he did not then wish to submit in the case, as he wished to make use of it in criminal proceedings before the grand jury in U. S. district court." This is error. The local officers were authorized to consider only such evidence as was legally offered at the hearing. The statement of the Government agent, made privately to them, was not legal evidence.

I find in the record of the case an affidavit in writing of one George Cole introduced at the hearing. Cole was not present at the hearing; claimant was afforded no opportunity of cross-examining him, and the statements contained in his said affidavit cannot therefore be considered. After an examination of the testimony legally adduced in the case, I concur in the conclusion of your office and that of the local officers, that Campbell did not make his filing in good faith; but for the benefit of others. The decision appealed from is therefore affirmed.

PRACTICE-PUBLICATION OF NOTICE.

BRANNIN v. TOWNSEND.

Publication of notice is only allowed under strict compliance with the rules of practice, and one of the essential requirements of such rules is the contestant's affidavit showing that personal service cannot be made.

Secretary Lamar to Commissioner Sparks, November 5, 1885.

I have considered the case of Robert C. Braunin v. Fred. J. Townsend, involving timber culture entry No. 190, made April 28, 1879, covering the SW. 4 of Sec. 25, T. 5 N., R. 32 E., La Grande district, Oregon, on appeal from your office decision of July 16, 1884, holding said entry for cancellation.

Contest was initiated by Brannin against said entry June 26, 1883, alleging failure to cultivate properly. September 10, 1883, was set for the hearing; at which date contestant appeared, testimony was taken, and the hearing closed. Contestee failed to appear either in person or by attorney.

The register and receiver rendered joint opinion that the allegations of failure to comply with the law had been sustained, and decided that the entry should be canceled. This decision your office affirmed.

Defendant appeals from your decision, upon the following assignments of error:

"First for the reason that it was not shown by the affidavit of plaintiff that personal service of notice of contest could not be had at time of order of publication, as required by Rule 12 of Practice."

The published notice of intention to contest is dated July 30, 1883. The notice of contest, which was placed in the hands of the sheriff of

the county for personal service, bears the following endorsement, dated July 28, 1883:

State of Oregon, County of Umatilla, ss:

I, William Martin, being first duly sworn do depose and say that I have made due and diligent search for the within named Fred. J. Townsend, but am unable to find him in the county or State.

WM. MARTIN,

Sheriff.

While the affidavit of the sheriff to whom the notice of contest was given in order that he might make personal service thereof clearly comes under the head of "such other evidence as the register and receiver may require," it can not supply the place of the "affidavit of the contestant," which the rule explicitly states is indispensable before notice by publication will be recognized as valid.

*

In the case of Parker v. Castle (4 L. D., 84,) the Department decided that in case of notice by publication, in order to render such notice valid there must be full and strict compliance with the provisions of the statute and the rules of the Land Department. In this case such rules were not fully and strictly complied with; the defendant in fact received no notice of the pending contest; he presents affidavits to show that if opportunity were afforded him he could make a meritorious defense.

Said decision of your office, of July 16, 1884, is therefore reversed, and you are directed to order a rehearing, for the purpose of testing the question of the compliance of said Fred. J. Townsend with the provisions of the timber culture law.

PRE-EMPTION-JOINT ENTRY.

O'NEAL v. PAQUIN.

Joint entry allowed for the conflicting claims, it appearing that settlement was made prior to survey and that a common boundary line had been recognized by the settlers as designating their respective possessory rights.

Secretary Lamar to Commissioner Sparks, November 5, 1885.

I have considered the case of William O'Neal v. Moses Paquin, on appeal from your predecessor's decision of September 30, 1882, in favor of Paquin for the SE. 4 of NW. 4 and NE. ‡ of SW. 4 of Sec. 2 T. 44 N., R. 8 W., Lake City District, Colorado.

This is purely a question of settlement right, certain preliminary matters relating to the status of the lands having been heretofore adjusted. Survey in the field of this township was made in May, 1881, the plat approved by the surveyor general October 11, and filed in the local office November 27, 1881.