PRACTICE-NOTICE-DEATH OF DEFENDANT.

RUCKELSHAUSEN v. DOUGLAS.

The death of a defendant suspends action in a case until his heirs, or personal representatives, are substituted as defendants, or brought into court by proper order and legal notice, or voluntarily appear.

In such a case the proceedings should not be dismissed, but discontinued until after due notice to the heirs at law or successors in interest.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 15, 1893.

On the 18th of April, 1886, James S. Douglas made homestead entry for the NW. of Sec. 1, T. 5 S., R. 9 E., Tucson land district, Arizona. He made final proof on the 8th of May, of the same year, showing that he had resided upon and cultivated the land from January, 1877, and that the value of his improvements was $1,500. Final certificate was issued on the 14th of May, 1886.

On the 2d of November, 1887, John Ruckelshausen filed affidavit of contest against said entry, alleging that Douglas had sold, or agreed to sell, part of the land before making final proof.

Notice for a hearing, to be held on the 16th of April, 1888, was issued, and personally served upon Douglas on the 14th of March. On the 4th of April he died, leaving a widow and five children, three of whom were minors. William H. Sutherland was appointed administrator of his estate, on the 28th of April, 1888.

On the 14th of February, 1889, a new notice of hearing was served upon Sutherland, the testimony to be taken before the clerk of the district court of Pinal county, Arizona, on the 26th of February, the hearing to be at the local office, on the 5th of March, 1889. Notice of this hearing was also published in a newspaper, but no affidavit was made that the widow and heirs of Douglas were not residents of the State or Territory where the land was situated.

On the 26th of February, 1889, the contestant and his witnesses appeared before the officer appointed to take the testimony. The administrator, accompanied by counsel, also appeared, and objected to the taking of testimony, on the ground that no personal service had been made upon the persons interested in the land in contest, although they were residents of the Territory in which the land was situated. Sutherland's affidavit to this effect was filed. Counsel for contestant objected to the affidavit, and the officer appointed to take the testimony held that under his instruction the testimony should then be taken. There was no appearance on the part of Mrs. Douglas, or any of the heirs of the deceased entryman.

The testimony being certified to the local officers, they dismissed the contest on the 10th of May, 1890, for want of jurisdiction, holding that the parties in interest had not been properly notified of the hearing.

An appeal was taken to your office, and on the 5th of February, 1892, you informed said local officers that: "In view of the failure to serve notice of the hearing, as required by the Rules of Practice, your decision, dismissing the contest for want of jurisdiction, is sustained." A further appeal brings the case to the Department.

Among the several errors in your decision, specified in the notice of appeal, it is claimed that you erred "In not holding that, personal service having been obtained on the entryman before his death, jurisdiction attached; and it became the duty of the heirs and legal representatives to enter their appearance if they desired to do so."

This position is not tenable. The death of a defendant suspends the action, until his heirs or personal representatives are substituted as defendants, or brought into court by proper order and legal notice, or voluntarily appear in the case. In this case, contest having been initiated prior to the death of Douglas, the cause of action survived him, but the jurisdiction obtained by service upon him, terminated with his life.

This question has been passed upon repeatedly by the Department. In many of the cases, the contest was initiated after the death of the entryman. The rule in such cases was laid down in Driscoll v. Johnson (11 L. D., 604) as follows: "Where the entryman dies prior to the serv. ice of notice, his heirs and successors in interest should be made parties to the action, and duly served with notice thereof." This is repeated in York v. Wilkins (13 L. D., 371).

In Allphin v. Wade (11 L. D., 306), it was held that "where a claimant dies during the pendency of adverse proceedings in the local office, such proceedings should be discontinued, and the heirs at law and successors in interest of the deceased, duly notified of their right to appear and be heard in the premises."

This is the course which should have been pursued in the case at bar. Instead of dismissing the contest, the local officers should have discontinued the proceedings, until the heirs at law and successors in interest of Douglas had been duly notified.

The local officers not having pursued this course, it would have been good practice on your part to have remanded the case for new service of notice and new hearing.

Under the decisions of the Department in the case of Dixon v. Bell (12 L. D., 510), and Hanscom v. Sines, et al. (15 L. D., 27), the case is so remanded, with directions that you order a further hearing, after proper service upon the proper parties. The decision appealed from is modified accordingly.

JOHNSON v. CRAWFORD.

Motion for review of departmental decision of September 21, 1892, 15 L. D., 302, denied by Secretary Noble, February 15, 1893.

RIGHT OF WAY-CANAL-UNSURVEYED LAND.

ARROWHEAD RESERVOIR Co.

A map showing the location of a canal will not be approved under the act of March 3, 1891, where the initial and terminal points are on unsurveyed land, and the projected line for the greater part traverses land in the same condition, and the portion thereof on surveyed land cannot be utilized independently of the remainder.

Acting Secretary Chandler to the Commissioner of the General Land Office, January 31, 1893.

I am in receipt of your letter of January 18, 1893, transmitting the articles of incorporation of The Arrowhead Reservoir Company, a corporation organized under the laws of Kentucky, for the purpose of doing business in California, also proof of the organization of said company, with a copy of the laws of Kentucky relating to corporations, together with a certificate of the Secretary of State of California, that it has complied with the law of California, relating to foreign corporations doing business in that State, and that one, Adolph Wood, of San Bernardino county, of said State, has been selected as a person upon whom service of process may be made. With the papers is also filed a map, and field notes in duplicate, of a canal, located by it in T. 2 N., R. 3 W., Los Angeles land district, California.

The map and field notes evidence care and skill in the survey and noting, and the map is in compliance with law and the regulations, in so far as it could be made, under the circumstances. The initial and terminal points are both in unsurveyed land, and neither is therefore referred to any established corner of a government survey, as required by the regulations of the department. The line of the canal starting, as by the map, in the portal of a tunnel, runs to station 90+57, where it enters surveyed land, north line of Sec. 10, T. 2, N., R. 3 W., and making two curves it leaves the section on the north line at station 98+90, showing only 833 ft of the line in surveyed land; it then runs on unsurveyed land to station 149+45, where it enters the SW. of section 4 of said township and range, running in a general southwest course it leaves the surveyed land 310 feet east of the quarter section corner between sections 5 and 8, at station 216+90; thence it runs on unsurveyed land over one and a half miles and enters a tunnel. The engineer seems to have intended only to map these two parts of the canal that are on surveyed land. The length of the canal is not given, but the parts for which right of way is asked are 1.435 miles in length. It is apparent from the map that these parts are but a small portion of the entire canal.

In the case of the Inyo Canal Company (15 L. D., 245), a similar condition confronted me. One of its canals was partly on unsurveyed land. The map of this was returned without my signature. In this I followed the ruling in the case of the Santa Cruz Water Storage Com

pany (13 L. D., 660), pany (15 L. D., 88). 1891, are similar in

and the case of the Tintic Range Railway ComSections 18 to 21 inclusive, of the act of March 3, their provisions to the act of March 3, 1875, (18 Stat., 482), relating to the right of way to railroad companies. The law provides for the filing of maps within twelve months after the location of ten miles of the canal, "if upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States", etc.

You say in your letter that, "A right of way over unsurveyed lands is not asked", and you recommend the approval of the papers and maps, as they satisfy the requirements of your office.

To approve this map would grant the right of way over two pieces of land, separated by unsurveyed land, and to reach either the canal must be constructed across government land. This they probably intend doing under sections 2339 and 2340, R. S. If so, these sections are as applicable to surveyed as unsurveyed lands, and approval of this map would be useless.

If this map should be approved, as it stands, when the government surveys are made of these lands, no distances would appear on the map, from where the canal line would cross the section and half section lines to the adjacent corners, as required by the regulations of the Department and the map filed with the local officers would furnish little or no accurate information to the local officers or to entrymen when the lands are opened to entry.

This canal is an entirety, and the parts here presented cannot be utilized standing alone. In the Inyo Canal Company case it had two branches to its canal, one of which was on surveyed lands and could be utilized independently of the other. The map as to this canal was approved, but the case at bar is a different case from that, and I do not see my way clear to approve the map.

The papers, certificates of incorporation, etc., are in all respects in conformity to law and departmental regulations, they are approved, and may be placed on file. The map I return herewith without approval.

TIMBER CULTURE ENTRY-FINAL PROOF-ADMINISTRATOR.

JOHN A. SABIN.

The administrator of the estate of a deceased timber culture entryman, may submit final proof for the benefit of the heirs, and the patent in such case should issue in the name of the "heirs of the entryman."

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 2, 1893.

December 23, 1878, Mary Adams made timber-culture entry for the SW. of Sec. 2, T. 120 N., R. 48 W., Fargo, North Dakota. Some time after making her entry (exact date not shown), but prior to making

final proof, she died, intestate, leaving as her only heir a daughter, Anna D. Sabin, the wife of John A. Sabin.

August 20, 1884, letters of administration in the estate of said decedent and entryman were issued to John A. Sabin, husband, as aforesaid, of her daughter and heir.

August 21, 1891, said John A. Sabin, as such administrator, submitted final proof on said entry under section 2 of the act of June 14, 1878 (20 Stat., 113), which provides that in case of the death of the entryman, the heirs or legal representatives may make proof.

The register favored the acceptance of the proof, but the receiver being of the opinion that proof must be made by the daughter, the matter was referred to your office, and, by your letter of November 25, 1891, you concurred in the opinion of the receiver and rejected her final proof.

The proof as submitted shows a full compliance with the law, and I see no good reason for refusing to accept it.

In your said opinion you hold that the administrator of a decedent's estate is not a legal representative within the meaning of the statute (20 Stats., 113), and cite Bone v. Dickerson's heirs (8 L. D., 452) to support your position.

I do not so construe that decision. That case holds that a devisee or "testamentary heir" is a legal representative and as such entitled to notice of contest (see top page 445). This is all that is decided in Bone v. Dickerson's heirs.

As I view it, Congress had some purpose in providing if the entryman be dead "his or her heirs or legal representatives" should submit proof, showing a compliance with the law. Unless the terms "heirs or legal representatives," are used tautologically, or are to be treated as synonymous or interchangeable terms, then the executor or administrator of the decedent's estate, may be treated as "legal representatives" thereof for the purpose of submitting the necessary proof to entitle the heirs to acquire title. What purpose could Congress have had in mind in treating the "legal representatives" as heirs, when it provided that the "heirs" or legal representatives might submit proof, or that either one or the other might do so?

It is patent to my mind that Congress wished to preserve the decedent's estate, if the law had been complied with, as an inheritance for his heirs, that they might reap the benefit of his toil, and expenditure upon the land, and left it for the heirs or legal representatives to submit the necessary proof to show a compliance with the law.

While there may be cases where the administrator should not be treated as the "legal representative" of the estate, yet in this class of cases I think it is an equitable rule, good law and fair justice to hold, to prevent the lapsing of an estate, where the law has been fully complied with, that the term "legal representatives" should apply to an administrator or executor, and that where competent proof is submitted by