motions for rehearing or review, and does not meet the requirements of Rule 84. A compliance with that Rule would require an "oath," such as is attached to a verified pleading in courts, that "the statements therein contained are true, to the knowledge of deponent, except as to the matters therein stated upon information and belief, and as to those matters, deponent believes them to be true."

In the case of Peterson v. Fort (11 L. D., 238), there was no affidavit attached to the petition, and the application for certiorari was for that reason denied. In the case of Northern Pacific Railroad Company v. Dalton, decided by the Department July 20, 1892, (Press Copy Book 248, page 477), the affidavit was similar to the one in the case before me. The application was also subject to the objection of not setting forth the grounds upon which it was made. For these reasons it was dismissed.

The case before me, however, differs somewhat from those cited. An attempt to verify the application was made, and the grounds upon which the application is based, are fully and specifically set forth, but the application does not comply with the rules, and the motion to dismiss the same is sustained.

The Rules of Practice were adopted for the government of proceedings in the Department and subordinate offices in land cases, but before they were approved, it was expressly stated that "None of the foregoing rules shall be construed to deprive the Secretary of the Interior of the exercise of the directory and supervisory powers conferred upon him by law."

An appeal was taken on June 8, 1892, from your decision, and the date of its receipt stamped upon the notice, and the fact of its filing minuted upon your office records. It is now pending before me.

Under the decisions of the Department, you had no authority to dismiss the same. In the case of the St. Paul, Minneapolis and Manitoba Railway Company, et al. v. Vannest (5 L. D., 205), it was held that "though the General Land Office may refuse to receive an appeal from its decision, not filed in time, it has no authority to dismiss such appeal, if it is received without objection." In the case of John M. Walker, et al. (5 L. D., 504), it was held that the General Land Office has no jurisdiction over a case after appeal therein. In aunouncing that conclusion, it was said:

I can see no good reason for departing from the rule that an appeal places a case beyond your jurisdiction. It has been followed for many years in the practice of this Department, and is, in my opinion, in conformity with the practice of courts.

In a very late case, that of Grinnell v. Wright (15 L. D., 252), the Department again expressed its views upon this subject. In that case, an appeal from your decision was filed on the 14th of June, 1890. On the 2d of August, of that year, a motion to dismiss said appeal was filed, which you proceeded to consider and decide. In commenting upon those facts, it was said:

This you had no authority to do, and your judgment upon the question, having been rendered in a case which was not then before you, is a nullity, as being without jurisdiction. In such cases, jurisdiction can neither be assumed by a court, nor conferred by stipulation of the parties in interest.

To the same effect was the decision in the case of William Galloway (12 L. D., 80); Henry v. Stanton (Ibid, 390); Stenoien v. Northern Pacific Railroad Company (Ibid, 495) and Bennett v. Cravens (Ibid, 647). You will accordingly transmit to this Department all the papers in this case, in order that such action may be had as may seem right and proper in the premises.

TOWNSITE-ADDITIONAL ENTRY-PREFERENCE RIGHT.

HARPER v. GRAND JUNCTION (ON REVIEW.)

An additional townsite entry cannot be allowed to embrace a non-contiguous tract of land.

The extension of the corporate limits of a town to include land that cannot be taken under the townsite laws, and is not occupied for purposes of trade and business, or laid out in streets and blocks, does not operate to segregate such land from the public domain.

An applicant for a pre-emption right who appeals from the rejection of his filing is not entitled to a preference right as a successful contestant where the prosecution of his appeal results, on examination of the records, in the cancellation of a prior townsite entry.

Secretary Noble to the Commissioner of the General Land Office, February 14, 1893.

On January 6, 1890, John Harper applied to file his pre-emption declaratory statement for the E. of the SW. of Sec. 13, T. 1 S., R. 1 W., Montrose, Colorado.

It was rejected by the register and receiver because it was claimed by them to be within the limits of the additional townsite entry of the town of Grand Junction. He appealed from their finding to you, and on August 3, 1890, after considering the case, you held the townsite entry for cancellation, and held "that although the townsite entry should be cancelled in respect to the tract in dispute, yet said tract does not thereby become subject to the entry." You also stated that

The land applied for by Mr. Harper is distant at the nearest point one quarter of a mile from any part of the land covered by the townsite entries, and therefore the additional townsite entry of this land does not come within the requirements of the section of the above act quoted as acting (being) an entry of contiguous tracts.

The act referred to in the above is the act of March 3, 1877, (19 Stat., 392) which provides that towns that have made or may make entry for less than the maximum quantity of land allowed by law may make additional entries of "contiguous tracts which may be occupied for town purposes," etc.

John Harper appealed from your judgment to this Department, asserting substantially that you had erred in holding that he was not entitled to file on the land.

On July 29, 1892, (15 L. D., 124) the case was considered by the De partment, and your judgment affirmed. It was stated

that this tract is not in fact laid out in lots, blocks, streets, and alleys, or used as a town for purposes of trade or commerce, although in fact included within the corporate limits of the town by the certificate of incorporation of the town or city of Grand Junction.

By this affirmance of your judgment, the Department found that the tract in question was non-contiguous to the tract included in the townsite entry, and that it was therefore right for you to have cancelled the townsite entry made as an additional one under the act of March 3, 1877, supra, including this land. It was further held that said tract was not subject to Harper's filing, not because the townsite company had or could have any legal claim to it, but because it was included within the corporate limits of the town.

Harper has now filed a motion for review of departmental judgment in so far as it holds that the land is not subject to entry, alleging error as follows:

1. In not considering the question of Harper's preference right as the successful contestant under the act of May 14, 1880.

2. In not considering the effect of the act of March 3, 1877 as amending the provision of the pre-emption law prohibiting entries of lands within the limits of incorporated towns.

3. In affirming that portion of the decision of the Commissioner of the General Land Office which proposes to sell said tract at public auction under Sec. 2455 of the Revised Statutes of the United States.

I do not believe that the judgment of the Department is correct in holding that the tract in question is not subject to filing or entry.

It is well settled by the rulings of the Department that two entries cannot stand at the same time for the same tract, and it has been held that an entry, though not a legal one, will segregate a tract to such an extent that it may not be entered by another until the first illegal entry shall be set aside or declared illegal, and so, if the town of Grand Junction had an entry of the tract or an application to enter it, of course it could not be entered by another or be held subject to the filing of Harper until the claim had been disposed of; but in this case the town site has been disposed of by your judgment affirmed by the Department. The tract, then, at this time is not claimed by the townsite, and the fact that the corporate authorities, in their enthusiasm at a time when they did assert a claim, caused the corporate line to be run around this tract will not segregate it. No claim is now asserted to the tract by the townsite company, and if it can be allowed to extend its corporate limits so as to segregate this tract from the public domain, then it can so extend the limits to include a thousand acres of government land adjoining this tract, and thereby prevent its disposal

under the homestead law. The corporate authorities of a town located on the public land may extend the limit of their corporation at will, but the Department, under the law, will determine how much land the corporation is entitled to.

In the case of this townsite, an original entry has been made under the townsite law; new territory can only be added thereto from public lands contiguous to the original entry, and this tract is not contiguous. It follows not only that the townsite is asserting no claim, but that under the law it can assert none to this tract.

Having this status in the case, can it be said that the act of extending the corporate limits alone is sufficient to segregate the land? I think not; nor am I at a loss for a precedent in this view. In the case of Lewis et al. v. Townsite of Seattle et al. decided October 26, 1881 (1 L. D., 497) it was held (syllabus) that—

Land within the incorporated limits of a town, which it is not entitled to enter by reason of its population, and which is not actually settled upon, inhabited, improved, and used for business and municipal purposes, is subject to pre-emption claim by virtue of section 1, act of March 3, 1877.

Your judgment, and the judgment of this Department, are undoubtedly correct in holding for cancellation the townsite additional entry for the tract in question. It was also proper for the register and receiver to reject the application of Harper made on January 6, 1890, for at that time the tract was covered by the townsite entry. Hastings and Dakota R. R. Co. v. Whitney (132 U. S., 357); Maggie Laird (13) L. D., 502); Goodale v. Olney, on review, (13 L. D., 498).

When the claims of the townsite were adjudicated and the entry cancelled, the tract should have been held subject to disposal to the first legal applicant.

It is claimed that Harper should be accorded a preference right to enter the tract, because of being a successful contestant; but an examination of the record does not bear out that contention. He has not been a contestant in any sense of the word. He merely offered his application to make a pre-emption filing on the land, and appealed from its rejection, and your action in cancelling the townsite entry was taken because of what was shown by your own records. Besides a letter found in the record, written by Harper on April 7, 1890, shows that he did not consider himself a contestant. It states that "my claim is based strictly upon the construction of the point of law contained in Sec. 4, Chap. 113, Vol. 1, Sup. R. S., and Sec. 2389, R. S., and is not of the nature of a contest."

No motion for review has been filed by the townsite company.

In conclusion, I hold that the tract is public land, subject to entry, and direct that you allow the first legal application therefor since the cancellation of the additional townsite entry. To this extent the former judgment of the Department is modified.

12771-VOL. 16—9

ENTRY-CANCELLATION-ATTORNEY.

FAULKNER v. MILLER.

A prima facie valid timber culture entry (made by a married woman) while of record segregates the land covered thereby, and precludes the allowance of application to enter the land so appropriated.

An entry should not be canceled on the ground of fraud in the absence of clear and convincing proof.

The answer of an attorney will be stricken from the files where it contains scurrilous and impertinent matter.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 14, 1893.

On February 14, 1887, Miranda Wilson made timber culture entry (No. 124) of the E. of the SE. and the S. of the NE. 4, Sec. 22, T. 15 N., R. 120 W., at Evanston, Wyoming.

On November 18, 1887, Charles Faulkner tendered his application (No. 310) for a homestead entry of said tract, but the same was rejected "because at the time the said tract was covered by timber culture entry No. 124."

On December 29, 1887, Miranda Wilson relinquished her said timber culture entry, and August Miller thereupon made timber culture entry (No. 153) of said tract.

Afterwards, upon the same day, the rejection of Faulkner's application was endorsed thereon, and he was allowed thirty days in which to appeal.

Faulkner appealed, and by letter of June 6, 1890, a hearing was ordered to determine the rights of the parties, which was held on October 13, 1890. On November 28, 1890, the local officers found from the evidence that at the time the timber culture entry of Miranda Wilson was made "she was a married woman and living with her husband, therefore her entry was invalid:" They further find "that the action of the officers in receiving Miller's entry was erroneous, and that as soon as the relinquishment of Mrs. Wilson's T. C. E. was filed, the next in order was the homestead application of Mr. Faulkner." They recommended that the entry of Miller be cancelled, and that the application of Faulkner be received.

On appeal, by letter of March 15, 1892, you held that—

There is nothing on the face of the papers of Mrs. Wilson's timber culture entry to show that she was a married woman, and while such entry remained of record, notwithstanding it was illegally made, no other entry of the land could legally be allowed. Faulkner gained no priority of right to enter the land by the filing of his application to enter it. (Maggie Laird, 13 L. D., 502.)

You further held that Miller made his entry "at the solicitation of Mr. Wilson and for his interest, or, perhaps, for the use and benefit of himself and Mr. and Mrs. Wilson." You therefore affirmed the decision