1883, and by letter "C" of October 6, 1883, your office canceled the timber culture entry No. 4862 of Wilcox, giving Brown the preference right of entry to the tract.

Ferrier alleges that being at the local office October 26, 1883, he was informed that the entry of Wilcox had been canceled, and that he would be allowed to file for the land; and that supposing such cancellation the result of his contest, he accordingly made said timber culture entry No. 11,441 for the tracts. On November 15, 1883, within the time in which he was required to exercise his preferred right, James Brown made timber culture entry No. 11,616 of the same tracts.

Your said office decision of March 18, 1884, was rendered without knowledge of the prior contest of Ferrier. Upon a motion to review said decision, your office on June 26, 1884, affirmed its previous decision. Upon a second motion for review, your office, on July 21, 1884, again adhered to its former ruling. The decisions of your office held that inasmuch as Ferrier did not file an application to enter on the day he initiated his contest, said contest should be dismissed, under the doctrine in Bundy v. Livingston (1 L. D., 179), and the Circular Instructions of December 20, 1882 (ib., 38).

If the Bundy doctrine be the correct interpretation of the law relat ing to timber culture contests, then this case is ruled by the cases of Pierce v. Benson (2 L. D., 319), and Dayton v. Scott (11 C. L. O., 202), wherein it was held that, if the application to enter the land had been filed on the day of the hearing, it would have cured the defect of not filing at the date of the initiation of the contest, and that the offer to file is equivalent to filing. Or if, as is contended, the Bundy doctrine be erroneous, then as a matter of fact there was no irregularity or informality in Ferrier's contest.

It seems clear from the record, and from the three affidavits filed on behalf of Ferrier, that in either view of the case the local office sadly neglected its plain duty. On the day set for the hearing of the Ferrier contest, the testimony was taken and his allegations of abandonment on the part of Wilcox were proven. His application to enter the land was then filed, upon the advice of the register that the contest was all right."

Nothing further was done by the local office in the matter of this contest. It was not formally dismissed, no decision was rendered on the merits of it, and no report of the proceedings was forwarded to your office under the rules of practice. Consequently, Ferrier's contest was pending at the time Brown initiated his contest; and, under the rules, that of Brown was erroneously allowed.

The entry of Wilcox has been canceled. Inasmuch as Ferrier has the prior right to the land by virtue of his contest, his said entry, No. 11,441, will remain intact. The claim of Brown is rejected, and his said entry will be canceled.

The decisions of your office are reversed.

PRIVATE CLAIMS-LOUISIANA.

HOUMAS GRANT.

Rule upon the grant claimants to show cause why the survey should not be closed npon the line fixed by the court as the limit of said grant.

Secretary Lamar to Commissioner Sparks, April 1, 1886.

I am in receipt of your letter of the 4th ultimo, transmitting the letter of Hon. John McEnery, agent for the State of Louisiana, relative to certain lands within the limits of the Houmas grant, as originally claimed together with certain papers from the record and files of that claim.

The application of Mr. McEnery, on behalf of the State of Louisiana, is that the grant claimants, through their attorney, J. L. Bradford, Esq., be required to show cause at an early day why the order of the Department of April 3, 1884, suspending from disposal all land in rear of the Houmas grant (La.) for a distance of one and a half leagues, should not be revoked. When this order was granted, a suit was pending in the Supreme Court of the United States, involving the depth of the grant. The court had rendered a decision limiting the depth of the grant to forty-two arpents, but granted a rehearing in the case. Pending this rehearing the order of the Department was issued, reserving said lands from disposal or attempted appropriation for one and a half leagues from the front line for a reasonable period to enable the claimants to obtain a final decision on the rehearing, and until the further order of the Department.* Shortly thereafter the Supreme Court de cided that this grant was only valid to the depth of eighty arpents from the Mississippi river, and that the grant claimants have no title to the lands beyond this depth. Slidell v. Grandjean, (111 U. S., 412).

You will therefore require the claimants, through their attorney, J. L. Bradford, Esq., of New Orleans, to show cause before you why the survey should not be closed upon the eighty arpents line fixed by the court as the limit of said grant, and why the lands in rear thereof should not be disposed of under the general land laws. You will also notify Mr. McEnery of this action.

*Secretary Teller to Commissioner McFarland, April 3, 1884.

On the 25th ultimo, J. L. Bradford, Esq., attorney for claimants under the Houmas grant, filed a petition, dated 13th ultimo, with accompanying papers, asking, in view of the recent decision of the United States Supreme Court in the cases of Alfred Slidell et al. v. Grandjean, Richardson, and others, respectively, that the lands within one and one-half leagnes of the front line of the original grant to Conway and Latil may be reserved from sale or disposal or any attempted appropriation for a reasonable period, to enable the claimants to obtain a final decision upon a motion for re-argument (which motion has been allowed by the court), and to apply to Congress for such other protection, in the event of a final adverse decision, as may be necessary to preserve their valuable property and improvements upon the lands. The papers are transmitted herewith, and you will give such orders and directions to the register and receiver and surveyor-general, as will effectuate the object of the petition, by reserving the lands until the further order of this Department.

PRE-EMPTION AND COMMUTATION FINAL PROOF.

CIRCULAR.

Commissioner Sparks to registers and receivers, March 30, 1886.

Hereafter the following rules will be observed in making final proof in pre-emption and commuted homestead cases:

1. The entire final proof, including the final affidavit of the claimant, his testimony, and the testimony of his witnesses shall be taken before the officer designated in the published notice of intention to make final proof, and at the time therein named.

2. Such final proof shall be taken only before the following officers: the register or receiver of the proper land district, or the clerk of the county court, or of any court of record, of the county and State, or district and Territory, in which the land is situated, or before such clerk in some adjacent county, in case the land lies in an unorganized county. 3. Cases wherein notice of intention to make final proof shall have been given under the former practice, prior to the promulgation of this circular, shall be in no manner affected by the regulations herein contained.

Approved:

H. L. MULDROW,

Acting Secretary.

PRIVATE CLAIMS-PRACTICE-APPEAL.

NEW ORLEANS CANAL & BANKING Co. v. STATE OF LOUISIANA.

A decision of the General Land Office dismissing proceedings wherein a hearing had been ordered and evidence taken, is not interlocutory, and is therefore subject to appeal.

As the determination of the status of the private claim was reached in an ex parte proceeding, without notice to adverse parties, the right of the State is not affected thereby, and the case is accordingly remanded for consideration under the hearing heretofore ordered to ascertam the nature of the claims set up by the State. Secretary Lamar to Commissioner Sparks, April 3, 1886.

The New Orleans Canal and Banking Company claim certain lands situated on and near the Bayou de la Metairie, in townships 12 and 13 S., range 10 E., New Orleans consolidated land district, Louisiana, which it is claimed are within the limits of two French grants to Louis C. Le Breton-one bearing date October 6, 1757, and the other February 15, 1764.

These grants were the subject of a decision made by the Honorable Secretary of the Interior January 18, 1884, in which he held that, "Upon consideration of the proofs in the record of the grant of 1757, and of the recognition of the confirmatory grant of 1764 by the Span

ish authorities, while in possession of the country, I am of the opinion that a valid grant of the lands in question has been established, and that it was a complete grant under the former government" (referring to the French government).

In this decision the Honorable Secretary further directed, "that the surveyor-general of Louisiana be instructed to cause a corrective and additional survey to be made of the lands in controversy and covered by the French grants of October 6, 1757, and February 15, 1764." (10 C. L. O., 384.)

In accordance with this ruling, a survey was made July, 1884, of the land covered by the grants, to which no objection was filed. It appears that some of the land embraced in this survey is swamp land, which was selected by the State June 22, 1872, and that others were indemnity school selections made by location of school warrant, upon application of Andrew W. Smyth.

On January 23, 1885, upon application of the Canal and Banking Company, the Commissioner of the General Land Office ordered a hearing for the purpose of determining "fully the validity or invalidity of all the State selections in controversy."

This hearing was had, and the testimony duly forwarded to your of fice, when, on the 23d of July, 1885, you, without considering the same, upon your own motion, ordered it to be dismissed, on the ground that the matters in controversy had been compassed by the decision of the Secretary aforesaid, and on the 27th and 31st of August rendered decision holding for cancellation the State selections within the surveys aforesaid, but allowed appeals therefrom.

The State filed appeals from all three of said decisions, which you held to relate almost entirely to the decision dismissing the hearing, and notified the State that the decision dismissing the hearing was merely interlocutory, and allowed them to perfect their appeal, so as to include distinct specification of errors in the decisions of August 27th and 31st, or to apply for an order of certification. Amended appeals were then filed, covering all of your decisions. Subsequently, an application for certiorari was filed, together with a plea to jurisdiction, all of which are now before me.

The decision of July 23d, dismissing the hearing, was not interlocu tory, but final, and was therefore appealable. The decisions of August 27th and 31st were not the result of this hearing, but were made as the result of the decision of the Secretary of the Interior, and were not dependent upon the hearing. The appeal filed by the State to that decis ion is specific and distinct as to the error alleged; and if your decisions of August 27th and 31st, holding for cancellation the State selections, were final decisions in a matter in which the decision of dismissal was merely interlocutory, then the appeal filed to that decision was specific as to the error therein alleged, and the two appeals considered together were sufficient to bring up the entire case.

It is therefore unnecessary to consider the application for certiorari, and the case will be considered with reference to the errors alleged in the appeals from the decisions dismissing the case and in holding for cancellation the State selections, and the plea to the jurisdiction in connection therewith.

From the decision of January 18, 1884, under which your office held that the title of these claimants had been finally settled to the lands in controversy, it appears that in July, 1873, the Canal and Banking Company made application to the register and receiver for a confirmation of this claim under the act of June 22, 1860, (12 Stat., 85), describing the tracts by metes and bounds. At this hearing the register and receiver decided that the claim should be rejected, which decision was approved by the Commissioner of the General Land Office, but said approval was afterwards canceled, and claimant dismissed the proceedings because of pending proceedings instituted by the Bank in the United States district court, praying for a judicial confirmation of said claim. On this application judgment was rendered dismissing the same for want of jurisdiction.

On January 8, 1875, the Canal and Banking Company filed another application before the register and receiver, claiming title under the two French grants of 1757 and 1764. The register and receiver decided that these two grants were complete, and that no further action was necessary on the part of the government than to place them upon the official plats, as requiring no confirmation. The Commissioner did not concur in this opinion, and appeal was taken to the Secretary of the Interior, who decided that the claim of the Canal and Banking Company was derived from two complete French grants that required no confirmation, and ordered a survey to be made to exhibit their location.

In the decision the Secretary says: "This claim is presented to my consideration as an ex parte case. The decision of the register and receiver was rendered without notice to adverse claimants, and no appeal from their decision seems to have been taken to your office."

This decision, relied upon by your office as disposing of the question of title to this claim, was therefore made upon an appeal from a decision of the Commissioner on an application for confirmation of a private claim under the act of June 22, 1860; and, while the Secretary assumed jurisdiction to pass upon the validity of these grants and in effect con firm the same, upon the ground that the State selections were in conflict with the grants, yet the subject of the appeal before him was a decision of the Commissioner disapproving the report of the register and receiver, upon an application for confirmation of a private claim, under the act of June 22, 1860.

Section 5 of said act provides, "That all claims comprehended within any of the three classes aforesaid, on which there shall be disapproval by the Commissioner of the report made by the boards of Commis