PRACTICE-APPEAL-SECOND CONTESTANT.

ADAMSON v. BLACKMORE.

Failure to appeal from the rejection of an application to enter does not defeat the right of the applicant where the requisite notice in writing of such adverse action is not given the applicant.

An affidavit of contest filed during the pendency of proceedings by another against

the entry in question, confers no right, in the event that the entry is canceled as the result of the prior proceedings, as against the intervening application to enter filed by a third party after the cancellation of the entry under attack. First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 11, 1893.

Americus Bendelari made homestead entry for the E. of the SW. and lots 6 and 7, of Sec. 6, T. 10 N., R. 36 W., North Platte land district, Nebraska, on the 27th of November, 1886.

On the 13th of April, 1888, Ella Adamson filed an affidavit of contest against said entry, alleging abandonment. As a result of her contest, the entry was canceled on the 18th of January, 1890.

After the local officers had rendered their decision in the case, recommending the cancellation of the entry, and forwarded the record to your office, William C. Blackmore filed a second contest affidavit against Bendelari's entry, alleging the same grounds of default alleged and established by Miss Adamson.

Miss Adamson was notified of her preference right to make entry for the land, but having in the meantime married, she had ceased to be a qualified homesteader. Her father, David Adamson, thereupon, on the 8th of February, 1890, filed application to make homestead entry for the land. The local officers rejected his application, for the reason that his daughter's preference right had not then expired, and that there was a second contest on file.

Adamson then filed the waiver or relinquishment of his daughter's preference right of entry, whereupon the local officers informed Black. more that the first contestant having waived her preference right to enter the land, he had such preference right as a second contestant. Within thirty days thereafter he made homestead entry for the land. Adamson then instituted contest against the entry of Blackmore, alleging that a preference right of entry was improperly allowed him; that his entry was not made in good faith, but for speculative purposes; and that his (Adamson's) entry should have been allowed, he having been the first legal applicant for the land after the cancellation of the entry of Bendelari.

The hearing which followed, resulted in a decision by the local officers in favor of Blackmore, which was reversed by you on the 29th of February, 1892. An appeal from your decision brings the case to the Department.

In the case of Cleveland v. Banes (4 L. D., 534), it was held that on the cancellation of an entry after contest, the land is open to settlement or entry, subject only to the preference right of the successful contest

ant.

In the case of Armenag Simonian (13 L. D., 696), it was held that an affidavit of contest filed in the local office, does not secure any preference right of entry to the contestant, in the event that the entry under attack is canceled on the prior contest of another.

Your decision was based upon the rules laid down in the two cases cited, and in his argument upon the appeal before me, the counsel for Blackmore attempts to escape the force of those rulings by insisting that Adamson waived any rights conferred by his application to enter the land, by failing to appeal from the adverse decision of the local officers upon his application. In support of his position, he cites Rule 67, of the Rules of Practice, which provides that "The party aggrieved will be allowed thirty days from receipt of notice, in which to file his appeal in the local land office." In this connection Rule 66 becomes of considerable importance. Its provisions are as follows:

Rule 66.-For the purpose of enabling appeals to be taken from the rulings or action of the local officers relative to applications to file upon, enter, or locate the public lands, the following rules will be observed.

1. The register and receiver will endorse upon every rejected application the date when presented, and their reason for rejecting it.

2. They will promptly advise the party in interest of their action, and of his right of appeal to the Commissioner.

3. They will note upon their records a memorandum of the transaction.

The character of the notice to be given is provided for in Rule 17, which says: "Notice of interlocutory motions, proceedings, orders, and decisions shall be in writing, and may be served personally, or by registered letter through the mail to the last known address of the party."

In Elliott v. Noel (4 L. D., 73), it was held that a "motion to dismiss an appeal, because not filed in time, will not be entertained where it appears that the appellant did not have written notice of the adverse decision." The question was discussed in the case of Churchill v. Seeley (4 L. D., 589), and upon page 591 it was said: "It is, however, insisted on behalf of Seeley that Churchill was notified personally by the register, and that such notice is sufficient under the rules. I do not so consider it." Rule 17, and the case of Elliott v. Noel, are cited in support of this position.

In Turner v. Bumgardner (5 L. D., 377), it was held that information as to the right of appeal not having been given under Rule 66 of Practice, the right of the rejected applicant to be subsequently heard is recognized. I deem it unnecessary to multiply authorities in support of this proposition.

In the case at bar, there is no proof, charge, or intimation, that Adamson was ever notified in writing, by the local officers, that the applica

tion presented by him on the 8th of February, 1890, to make homestead entry for the land in question, had been rejected by them.

As the record shows no such notice to him as is required by Rule 17, his appeal, from the final decision of the local officers in the case, was in time to save all rights secured by his original application to make entry for the land.

After the cancellation of the entry of Bendelari, the land was subject to entry by the first legal applicant, and such entry could only be defeated by the exercise by the successful contestant of her preference right, within the time limited by law. In this case, Adamson was such first legal applicant, and his entry should have been allowed by the local officers. The land being subject to entry, and he being a qualified entryman, his application was equivalent to an actual entry, so far as his rights are concerned. He might have appealed from the action of the local officers in rejecting his application, but he was not bound to do so, in order to protect his rights, until he was legally notified of their action. His contest proceedings against the entry of Blackmore cut no figure in the case whatever, and need only be alluded to to complete the history of the transaction, and explain the manner in which the case comes before the Department.

The homestead entry of Blackmore having been improperly allowed, will be canceled, and Adamson will be permitted to make entry for the land, as of the date of his original application. The decision appealed from is affirmed.

PRE-EMPTION CLAIM-AGREEMENT TO CONVEY.

TAGG v. JENSEN.

An agreement to convey any part of a pre-emption claim to another, made prior to final proof, will defeat the exercise of the pre-emption right.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 11, 1893.

On September 10, 1889, Elizabeth Tagg filed her pre-emption declaratory statement for the NW. of the SW. 4, Sec. 35, and the NW. † of the SE., and the E. of the SE. 1, Sec. 34, T. 6 N., R. 10 W., Oregon City, Oregon, alleging settlement three days prior thereto.

On the 11th day of December, of the same year, Sofus Jensen filed his pre-emption declaratory statement for the W. of the SE. 1, Sec. 34, same township and range, and the N. of the NE. of the NW. 4, Sec. 3, T. 5, same range.

and the NE.

Their claims conflict as to the NW. 4 of the SE. of said Sec. 34, and the settlement of this conflict is all that is involved in this contro

versy.

June 7, 1890, Jensen gave notice of his intention to make proof, and the testimony was ordered to be taken before the clerk of Clatsop

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county, July 29, 1890, at which time Elizabeth Tagg appeared and protested against the allowance of his proof as to said disputed forty acres, on the grounds (1st) of her prior right thereto; (2) that Jensen was not intending to appropriate the tract to his exclusive use and benefit; (3) that he had not resided on and cultivated the land as required by law; and (4) that his claim was in excess of the amount allowed by law.

Trial was had, and, on August 23, 1890, the local officers found in favor of Tagg, and Jensen appealed, and by your letter of April 16, 1892, now before me on appeal by Tagg, you reversed the action of the register and receiver, and awarded the tract in dispute to Jensen, because, as you find, he was the prior settler upon the land.

I have carefully examined the whole record, and am unable to concur in your judgment.

The material parts of the evidence are, I think, on the whole, very fairly stated in your decision, and it shows that Larson supplied nearly all the funds necessary for the improvements, cost of filing, etc., and Jensen says this was done under an agreement between him and Larsen that they were to help each other in both their claims, and that this agreement constituted the partnership between him and Larsen, alluded to by the witnesses for contestant.

After reading carefully all the testimony, I am forced to the conclusion that this explanation of the agreement or partnership between the claimant and Larsen does not explain the real agreement, but is rather a subterfuge by which he expects to escape the penalty of the law-that is, the forfeiture of his claim. It does not appear that Larsen had any claim of record, or that he intended to make any settlement, or other movement towards asserting any claim on his part. On the contrary, he was all the time working at his trade (shoemaker), at Astoria, and, before the hearing and without attempting to assert any claim to government land, he left the country and went to British America. Further, Jensen says, that upon talking with the land officers, he learned for the first time that such a partnership as he had with Larsen would defeat his claim, and he thereupon immediately dissolved the partnership.

Now, if his partnership had been such a one as he pretends it was— namely, a mutual agreement that they should assist each other in furnishing means, etc., to perfect their separate claims-such an agreement was not in violation of law, and there was no occasion for dissolving it, and it is very improbable that he was advised by any one in connection with the land office that he would be compelled to do so.

But if his agreement was, as contended by the witnesses for the contestant, that they were to be partners in the ownership of the land in controversy, this would be in violation of the statute, and it is quite probable that the clerk, or one of the local officers, should have so in formed him.

I think all the evidence clearly points to the fact that he and Larsen undertook to get title to this land through his filing, and that they were to be equal owners when the title was perfected.

The evasive manner in which he answered, when confronted with his own admissions as to the interest of Larsen, the dissolution of the agreement, the disappearance of Larsen from the country, and the failure of Jensen to have his testimony produced at the hearing, all point in this direction. Added to this, the testimony of several witnesses to the admissions of Jensen himself and the statements of Larsen in Jensen's presence and hearing of their mutual interest in the land, leave no doubt in my mind that there was an understanding and agreement that they were both to share in the land when title was procured from the government.

The case of Aldrich v. Anderson, cited by you in support of your decision, was practically overruled in the case of Molinari v. Scolary, 15 L. D., 201, and the law as now construed by this Department is that any agreement to convey any part of an entry or claim to another, made prior to final proof, will defeat the claim, and the evidence in this case satisfies me that such an agreement was made with Larsen, and was still subsisting on December 21st, when Elizabeth Tagg moved into and took possession of the house and improvements on her claim. Entertaining this view of the evidence, it is not necessary to discuss the question of the alleged settlement of Tagg in September, when she purchased the improvements of a former settler. She was not a citizen at that date, but this defect was cured prior to the assertion of any claim on the part of Jensen, or any one else, and, when cured, in the absence of an adverse claimant, it relates back to the date of the initiation of the claim.

Your decision is reversed, and the protest of Tagg is sustained, and you will direct that the filing of Jensen be canceled.

TIMBER CULTURE ENTRY-COMMUTATION.

CUMMINGS v. RUDY.

The requirements of the timber culture law call for irrigation of the land, if trees can not be grown without irrigation.

The right to commute a timber culture entry under the act of March 3, 1891, is limited to persons who for a period of four years have, in good faith, complied with the requirements of the timber culture law.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 11, 1893.

On May 25, 1883, Frank H. Rudy made timber culture entry (No. of the SE. and the NW. of the SE. and the SE. † of Sec. 32, T. 2 N., R. 1 W., at Salt Lake City, Utah.

189), of the S. of the SW.