to answer numerous questions which were pertinent to the case. The testimony of Mentzer can have little, if any, weight. Mann v. Huk (3 L. D., 452).

It is fairly shown by a preponderance of the evidence that Mentzer's contest was fraudulent, and that Clark purchased Jellison's relinquishment, either directly or indirectly, from Mentzer. It is true that due notice to the entryman had not been issued upon Melcher's said affidavit, and, under the rulings of this Department, none could issue until the determination of Mentzer's contest. Woodward v. Percival (4 L. D., 234). As soon, however, as Mentzer's contest was disposed of, the rights of Melcher attached and his rights related back to the date when his contest affidavit was received, so as to cut off any intervening claimant.

Immediately upon the filing of the relinquishment, the district land officers should have canceled said entry. Thorpe et al. v. McWilliams (3 L. D., 341); Tilton v. Price (4 L. D., 123).

From a careful examination of the whole record, it appears that the filing of said relinquishment was the result of Melcher's contest and must be held to inure to his benefit. McCall v. Molnar (2 L. D., 265); Mitchell v. Robinson (3 L. D., 546).

Said decision is accordingly affirmed.

PRIVATE CLAIM-RAMON VIGIL GRANT.

E. P. SHELDON ET AL.

The decision of the Commissioner holding that the survey herein should not be dis turbed became final for want of appeal, and the showing now made by the present alleged owners of said claim is too indefinite to warrant further investigation of the case.

Secretary Lamar to Commissioner Sparks, April 30, 1886.

I have considered the appeal of E. P. Sheldon, George N. Fletcher, and Winfield Smith, from the decision of your office dated April 25, 1885, refusing their application for an investigation by the United States surveyor-general, of the survey of the Ramon Vigil grant, being private land claim, No. 38, in Santa Fé land district, New Mexico Territory.

It appears from the record that said claim was confirmed by the act of Congress approved June 21, 1860, (12 Stat., 71) "as recommended for confirmation by the surveyor-general"; that the survey of said confirmed claim was made by two U. S. deputy surveyors in April, 1877, and approved by the U. S. surveyor-general on June 5, same year. On September 16, 1882, one Thomas A. Hayes, claiming to be the owner of the land, filed in the office of the U. S. surveyor-general his protest against the approval of said survey, and against the issue of a patent there

under, claiming that, "Whereas the grant calls for the Sierra Madre Mountains as its west boundary (by universal custom and understanding meaning the whole mountain on its east side, or to its summit,) the said present survey makes the said west boundary the eastern foot-hills of the Sierra Madre Mountains, thereby attempting to materially reduce the quantity of land in fact granted." Mr. Hayes further alleged that, at the time said survey was made, he was absent "beyond the seas," and until his return, in 1881, had no opportunity of becoming acquainted with the facts and the manner of said survey or to protest against the same as improper and erroneous.

With his said protest was submitted the report of two surveyors, who state that they made a partial survey of said grant at his request, and, from their notes, which are embodied in their report, "The topography therein called for does not in any respect agree with the topography of the country described in the field notes of the grant."

Neither the protest, nor the report of said surveyors accompanying the same, was verified. Your office, however, on April 10, 1883, considered said protest and the survey of said claim, and held that the base and not the summit of the Sierra Madre Mountains constitutes the western boundary, and that said survey was correct and would be approved. Due notice of said decision was given to Hayes, but no appeal was taken therefrom.

The present application alleges that the petitioners became the own ers of the land covered by said grant, by purchase in July, 1884; that about the time of said purchase they were informed that the official survey was erroneous; that the original owner had made application for the correction of said survey but as he failed to support his said application by proof, or to show wherein the error existed, by sworn affidavits, the said application was refused; that since the applicants have become the sole owners of said tract, they have retraced the boundaries of said survey and have found the same to be grossly erroneous in several respects; that the Rito de los Frijoles, which constitutes the southern boundary call of said grant, runs nearly east, instead of southeast, as represented on said survey; that at a point where two other streams. empty into said Rito de los Frijoles, upwards toward the source of said streams, the line abandons the Rito de los Frijoles, thereby leaving out a considerable portion of several hundred acres of said grant; and that the west boundary does not extend to the main mountain, as called for in the original muniments of title. The applicants further allege that they are informed and believe that said U. S. deputy surveyors never actually run the said south and west boundary of said grant, but made field notes thereof from a partial survey of only the east and north boundary of the same; that, if said survey is allowed to stand without correction, great and irreparable injury will be inflicted upon the present owners; and they therefore ask that the U. S. surveyorgeneral of said Territory be directed to investigate said survey, and make a report thereof to your office.

With said application are filed the affidavits of said Sheldon and one Elder in support thereof. Mr. Sheldon avers that, since the said purchase and prior thereto, he went over the boundary lines of said survey and found the same to be incorrect.

In a letter filed in this Department, dated May 17, 1885,-since said appeal-Mr. Sheldon states that the south-west boundary lines, as given by said survey, are grossly inaccurate; that he is informed by most reliable authority, that there was no accurate or actual survey ever made, and that parties interested at the time in purchasing this grant, influenced the surveyors to return a fraudulent survey thereof; and that by the present survey he and his partners are defrauded of ten thousand or more acres of the most valuable part of their ranch.

It does not appear that the protest of Hayes, the prior owner, was dismissed because not supported by sworn affidavits as alleged by the applicants. On the contrary, it was duly considered, and both upon principle and upon the authority of the former adjudications of this Department, it was decided, in an elaborate opinion by your office, on April 10, 1883, that said survey was correct and should be approved. From this decision there was no appeal, and the same became final (R. S., Sec. 2273; Rule of Practice, 112).

It is clear that the present applicants can have no better claim than their grantor. They do not even furnish any evidence of title to said. grant. Sheldon admits that he went over said boundaries as shown by said survey prior to said purchase, and does not show that the grantees will not get every acre of land they have purchased. The allegations of fraud are altogether too vague and indefinite, and not supported by sufficient affidavits to make out even a prima facie case calling upon your office to institute the investigation asked for.

For the foregoing reasons said decision is affirmed.

TIMBER CULTURE ENTRY-APPLICATION.

CROOKS v. GUYOT.

An entryman who has failed to comply with the law has forfeited all right to the land, and cannot set up his possession to defeat the application of a contestant.

Secretary Lamar to Commissioner Sparks, May 5, 1886.

I have before me the case of Alexander B. Crooks v. Henry Guyot, involving the NW. of Sec. 8, T. 24 S., R. 8 W., Wichita, Kansas, on appeal by Guyot from your predecessor's decision of December 13, 1884, holding his entry for cancellation.

It appears that Guyot made timber-culture entry No. 78 for said tract on October 14, 1873, and that Crooks filed affidavit of contest January 5, 1883, alleging non-compliance with the law. After hearing, the local officers recommended cancellation of the entry, and, on appeal, their

decision was sustained. The facts, as they are established by the tes. timony, are substantially as follows, to wit: that the entryman had complied with the law from date of entry until 1879, but that thereafter he failed to properly cultivate and protect the trees until the fall of 1881, when they were destroyed by a prairie fire, and that since then he has failed to replant. These facts sustain the allegations of the contestant, and justify your predecessor's action.

Crooks, it appears, filed with his contest affidavit an application to enter this land under the timber-culture law, and Guyot objects that it is invalid because contrary to the ruling in Bender v. Voss (2 L. D., 269), that such entries must be made on vacant land. In said case, as in that of Shadduck v. Horner (6 C. L. O., 113), which it followed, the land sought to be entered was in the possession of another under color of right; whereas in this instance all right of the entryman was forfeited immediately upon default, and the contestant had the right of immediate entry (Hoyt v. Sullivan, 2 L. D., 283).

I concur in the conclusion reached by your predecessor and affirm his decision.

REVIEW-NEWLY DISCOVERED EVIDENCE.

ST. PAUL M. & M. R'Y Co. v. MORRISON.

On motion for review there was tendered, as newly discovered evidence, a certificate from the commissioner of the State Land Office of Minnesota to the effect that said State had conveyed to plaintiff, by deed, the land in question. Held, that as the evidence offered was not the best of which the case was susceptible, and could not be considered newly discovered, because of record, the motion must be denied.

Secretary Lamar to Commissioner Sparks, May 5, 1886.

I am asked to review and revoke my decision of December 26th last in the case of the St. Paul, Minneapolis and Manitoba Railway Company v. James A. Morrison (4 L. D., 300), wherein the claim of the railway company to the NE. of NW. 4 of Sec. 7, T. 128 N., R. 34 W., 5th P. M., St. Cloud, Minnesota, was rejected and the land awarded to Morri

son.

In the original case as before me when said decision was rendered, the railway company was claiming said tract under the acts of Congress approved March 3, 1857 (11 Stat., 195), March 3, 1865 (13 Stat., 526), and some amendatory acts of later date, granting lands to the State of Minnesota to aid in the construction of certain railroads, including the road to which the present company is successor; and Mr. Morrison was claiming the tract under the general pre-emption law. The main question then at issue was, whether the United States had title to the tract in dispute, or whether that title had passed over to the railway company. It was conceded that the United States had by certification in 1874 and patent in 1875 passed the legal title to this tract over to the State of

Minnesota, for the benefit of the St. Vincent Extension of the St. Paul and Pacific Company, of which the present company is successor. The records further showed that the governor of the State of Minnesota, acting presumably under the authority of an act of the State legislature approved March 1, 1877, had, on the 23d of June, 1880, executed a deed and relinquishment of said tract to the United States in favor of Mr. Morrison, thus re-investing the United States with full and complete title to the same.

Upon this state of record facts it was properly ruled in said decision that the railway company, which claimed through the State by virtue of the grant, could not be heard to object to any disposition the United States chose to make of the land in question. In fact, the argument filed on behalf of the company in support of the motion before me does not attack the validity and correctness of said decision upon the state of facts presented when it was rendered. The motion is based upon what is alleged to be new and material evidence-evidence of which the company appears to have been unadvised until quite recently-viz: that the State of Minnesota had, by its deed bearing date February 22, 1877, (seven days prior to the passage of said act of the legislature,) conveyed said tract to the railway company; and that, therefore, said act cannot be held to apply to this case.

In support of this allegation is filed here a certificate under the hand and seal of the deputy auditor of the State of Minnesota, and ex officio Commissioner of the State Land Office, dated February 2, 1886, setting forth that said tract was "conveyed by said State of Minnesota to the St. Paul and Pacific Railroad Company by deed bearing date February 22, 1877, as appears by the records of this office." It is sought by the railway company to have this bare certificate admitted as evidence of a character sufficient to overturn and revoke said decision of December 26th last.

It is a general and well established rule governing in the production of evidence, that the best evidence of which the case in its nature is susceptible must be produced. Under this general rule it is held that "A title by deed must be proved by the production of the deed itself, if it is within the power of the party; for this is the best evidence of which the case is susceptible; and its non-production would raise a presumption that it contained some matter of apparent defeasance." (1 Greenleaf's Evidence, Sec. 32.) This would also be termed primary evidence; the general rule in relation to which is that "Until it is shown that the production of the primary evidence is out of the party's power, no other proof of the fact is, in general, admitted," (ib., 34); Ord v. McKee (5 Cal., 515).

And in regard to certificates given by persons in official station, the general rule is: A certificate that a certain fact appears of record is not sufficient. The officer must certify a transcript of the entire record relating to the matter. That is, "if the person was bound to