Casey made desert land entry of two hundred and eighty acres, including the quarter section in controversy, on August 9, 1882.

The plat of survey of the township was filed in the local office on January 2, 1883. Padia made homestead entry of the tract on March 15, 1883—within three months after the filing of the townsite platalleging settlement in November, 1871.

Slaughter filed affidavit of contest against Padia's entry on November 22, 1884, with the usual charge of abandonment and failure to reside on the claim.

Hearing was had on January 28, 1885. As the result of the testi mony then taken the local officers found—

That the allegations of contest have been proved; that Padia has not complied with the homestead law; that there are no extenuating circumstances shown; that therefore homestead entry No. 1836 is recommended for cancellation; and that Slaughter be accorded preference right of entry.

No reference is made in any part of the local officers' decision, to Casey's desert land entry, and when the case was considered by you, in May, 1886, you remanded the case for a rehearing, on the ground that the testimony was "too conflicting and unsatisfactory to warrant a decision." At the same time the record in Casey's desert land entry was transmitted to the local officers with instructions to make him a party to the trial, that he might show cause why his desert land entry should be sustained.

A rehearing was had, commencing July 27, 1886, at which a large amount of testimony was taken.

On November 9, 1886, the local officers reached a judgment, in which they state that

On the day set for hearing the contestant appeared in person, and by N. B. Laughlin, his attorney. The contestee also appeared in person, and by M. B. Read, his attorney. John P. Casey was represented by P. L. Vanderveer, his attorney.

. . From the testimony submitted it is evident that the law has not been complied with in the matter of said desert land entry No. 32, and the same should be conceled. Padia, who is a sheep-man, has claimed this land as a ranch, and has had his hands there off and on, but has not made his home there as is contemplated by the homestead law. The law has not been complied with in the matter of residence, and the improvement and cultivation of the land has not been such as to indicate the good faith or bona fide intention of the claimant.

and recommend the entry for cancellation.

Padia appealed from said decision to your office, where, on February 10, 1888, you affirmed the judgment of the local officers, and held both entries for cancellation.

Padia appealed from your decision to this office.

While the record was on file in the Department, awaiting action, Casey filed an affidavit, in which he alleged—

That he was not a party to said contest case, has never received any notification of said case from the land office when the same was pending, and has never authorized any person or persons to appear for him in said suit or contest, therefore the testimony upon which his entry is held for cancellation is ex parte, and affiant has not had his day in court.

Inquiry being made of the local officers, and of the person representing himself to be Casey's attorney, no evidence was offered contradicting Casey's sworn statement. Therefore the Department, on January 2, 1889, directed that you should order a hearing,

At which an examination shall be made into Casey's good faith, and fulfillment of the requirements of the law in connection with his desert land entry No. 32-it being understood that, hearing having been already had as to the rights of Padia and Slaughter, the question of their compliance with the law shall not be entered into any further than may be found necessary in order to throw light upon the question of Casey's compliance therewith.

I am now in receipt of your letter of March 3, 1893, transmitting the record of the hearing above ordered. As the result of said trial, the local officers found that the witnesses needed were "scattered all over the territory," and their evidence was therefore taken by deposition— all parties being afforded an opportunity to be heard. After carefully summing up the substance of said depositions, they unite in finding that "Casey's good faith is sustained by an overwhelming preponderance of the testimony," and therefore recommended that his desert land entry be held intact.

It will, therefore, be necessary in disposing of this case, to consider Padia's homestead entry of March 15, 1883, and Casey's desert land entry of August 9, 1882.

I have carefully examined the testimony taken at the hearings had in the matter of Padia's homestead entry, and concur in the conclusions reached by the local officers and by you that he never established or maintained a bona fide residence on the tract.

As to Casey's desert land entry, it is shown that it was made August 9, 1882. On March 15, 1883, seven months and six days later, the local officers allowed Padia to make homestead entry of a quarter section of the same land. These two entries covering the same tract have remained of record upon the tract books of your office until the present time. When Padia applied to enter said tract, his application should have been rejected; and if he claimed residence and improvements prior to the date of the desert land entry, he should have been allowed to institute contest against the same.

It will be noted that Slaughter has no complaint to make of Casey's entry. There is no charge from any quarter against it. After the first hearing in the contest of Slaughter against Padia, you ordered a rehearing, and transmitted Casey's entry papers to the local officers, with the direction to make him "a party to said hearing."-for the very good reason that the contest between Slaughter and Padia was relative to land to which Casey, on the face of the record, had the prior and paramount right, and to which neither of them had or could obtain any right whatever until Casey's entry should be canceled.

I have examined the testimony taken in accordance with the directions contained in said departmental letter of January 2, 1889, and con

cur with the local officers in the opinion that "Casey's good faith is sustained by an overwhelming preponderance of testimony." The time prescribed by law within which he should make final proof has long since passed; but he is excusable for not offering such proof while the land embraced by his claim was under contest; indeed, until the issuance of circular instructions of March 15, 1892, 14 L. D., 250, he would not have been permitted by the departmental Rules of Practice to do

So.

Slaughter has shown that Padia had failed to fulfill the requirements of the homestead law. Under ordinary circumstances he would by his contest acquire the right to make entry of the tract. But in this case, after the cancellation of Padia's entry, no one will have a right to enter the tract, for it will still be embraced in and segregated by Casey's prior entry. The second section of the act of May 14, 1880, confers a preference right of entry, but that right can not be exercised upon the land embraced in Casey's entry and against which there is no default alleged.

Slaughter's contest having been aimed at Padia, and not at Casey, against whom he has never initiated any adverse action, he cannot be considered as having acquired such a right in the premises as would constitute an "adverse claim" that would prevent the submission of Casey's final proof, if it should be found satisfactory in all respects except as to time, to the board of equitable adjudication.

For the reasons herein set forth, your decision of February 10, 1888, is affirmed in so far as it holds Padia's entry for cancellation; but so much of the same as holds Casey's desert land entry for cancellation is modified, and you will notify him that a reasonable time will be allowed, him in which to make final proof on the same.

OFFICIAL SURVEY-AMENDMENT OF ENTRY.

NOYES . BEEBE.

A private survey will not be accepted as sufficient to warrant a conclusion that the official survey, as of record, is inaccurate.

An intervening adverse claim defeats an application to change or amend an entry. First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 23, 1893.

On the 15th of January, 1891, Almond R. Noyes made pre-emption cash entry for lots 1, 2, and 3, of Sec. 3, T. 35 N., R. 37 E., and lots 2 and 3 of Sec. 34, T. 36 N., R. 37 E., W. M., Spokane Falls land district, Washington, having filed his declaratory statement therefor on the 23d of June, 1890, in which he alleged settlement on the 20th of April, 1880. Patent was issued for said land January 18, 1892.

On the 18th of February, 1891, Avery A. Beebe made homestead entry for the SE. of the NE. 4, and the NE. 4 of the SE. 1 of Sec. 3, T. 35 N., R. 37 E., in the same land district. He commuted his entry, and made final proof on the 29th of December, 1891, at which time Noyes protested against the allowance of said proof, claiming that a portion of the land embraced in Avery's entry was occupied, cultivated, and im proved by him, and had been for several years, under the belief that it was included in his pre-emption cash entry.

The local officers allowed testimony to be submitted upon the ques tions raised, and on the 26th of January, 1892, dismissed the protest, on the ground that there was no actual conflict between the lands covered by the entry of Noyes and those embraced in the entry of Beebe. They also found that Beebe had complied with the homestead law, and recommended that his proof be accepted

On the 11th of November, 1891, your office received a petition in behalf of Almond R. Noyes, in which he prayed that the approval of the plats of the townships in which said lands were situated

may be set aside, and that new plats may be substituted therefor, to the end that divers errors in the present plats may be corrected, and that the petitioner may be relieved against great hardship, the consequence of an error in his entry into which he was led by the said errors of the plats.

This application was denied by you on the 24th of February, 1892, at which time you also declined to order an investigation in the field for the purpose of ascertaining whether or not an error was made in the survey of the meander line of the Columbia river, adjoining or opposite the lands of Noyes. An appeal to the Department was taken from your action, the case being volume 17, number 328.

On the 9th of May, 1892, you rendered a decision in the case of Almond R. Noyes v. Avery A. Beebe, in which you approved the action of the local officers in dismissing the protest of Noyes against the final proof of Beebe. An appeal from your decision brings that case to the Department, it being volume 17, number 415.

On the 8th of December, 1892, a motion was filed on the part of Noyes, for the consolidation of the case of Almond R. Noyes, and that of said Noyes against Beebe, and, as no objection has been interposed to such motion, and as I see no impropriety in considering said cases together, and rendering a decision covering the questions involved in both, such action will be taken.

From the record before me, I learn that on the 14th of August, 1890, the register of the land office at Spokane Falls addressed a letter to the United States surveyor-general, at Olympia, Washington, transmitting a plat and corresponding field notes of the survey of a part of section 3, township 35 north, range 37 east, Willamette Meridian, executed by J. M. Bewley, county surveyor of Stevens county, Washington, at the request of Mr. A. R. Noyes, and also an affidavit of Mr. Noyes,

stating that he had filed a declaratory statement in the United States land office at Spokane Falls, on June 23, 1890,

for lots 2 and 3 of Sec. 34, T. 36 N., R. 37 E., Will. Mer., and lots 1, 2, and 3 o Sec. 3, T. 35 N., R. 37 E., and that he did so with the impression that his said survey embraced all the land west of the NW. of the SW. and the SW. of the NW. of section 2 and being all the land west of said section 2 and the river). That affiant is familiar with the surveys, and believes there was an error made in the plats filed in the Spokane Falls land office, June 23, 1890, as relates to the lots 2 and 3 of Sec. 3, T. 35 N., R. 37 E., Will. Mer., and the SE. of the NE. 1, and the NE. of the SE. of Sec. 3, as shown on said plat to be full, should be noted as lots 2 and 3 of Sec. 3, T. 35 N., R. 37 E., and further that lots 2 and 3 of Sec. 3, as shown on said map, are not in existence, and that my claim embraces all the land lying between the east line of that portion of section 3 and the river.

The United States surveyor-general, in a letter addressed to you, under date of December 17, 1890, reported that the survey of the townships in question was made by U. S. Deputy Surveyor Berry, that it had been examined and found substantially correct, and he recommended that no change or correction be made in said survey.

In a letter addressed by you to said United States surveyor-general, under date of January 29, 1891, you expressed concurrence in his views, and suggested that the attention of the register and receiver be directed to the following paragraphs in the circular from your office of March 13, 1883:

1st. The boundaries of the public lands established and returned by the duly appointed government surveyors, when approved by the surveyors-general and accepted by the government, are unchangeable.

20. The original township, section, and quarter section corners established by the government surveyors must stand as the true corners which they were intended to represent, whether the corners be in place or not.

It was after these proceedings, that Noyes petitioned your office for a correction of the survey of said townships, accompanying his petition with a plat showing a survey made by Charles H. Morgan, a civil engineer, who makes affidavit that his plat shows correctly the course of the bank of the Columbia river and its relation to the lines of the public survey, and also the course of the meander line represented by the field notes of the public survey in section 3, township 35 north, range 37 east.

It was claimed that the government plats included land which is commonly covered with water, and is part of the bed of the Columbia river, and it is represented that the course of said river is at a great distance west of its true course, whereby Noyes was led to pay for land of no value, and failed to enter the land which he intended to enter.

In the case of John W. Moore (13 L. D., 64), it was held that "the returns of the surveyor-general, and the record of a survey made under his direction, are evidence of the highest character, that no private survey can be allowed to overcome." I do not feel at liberty, therefore, to pronounce the government survey inaccurate, simply because Mr. Mor