wards admitted it. The rehearing was allowed on February 20, 1890, and in the judgment of that date it was stated that—

I have carefully examined the testimony in the case, and I am of the opinion that but for the evidence of the two witnesses who are alleged to have sworn falsely, the judgment of this Department in the case would not have been found in favor of Ismond.

You will therefore, order a rehearing under the rules of your office to determine first; whether or not the evidence of said Raymonds (meaning the two witnesses charged with false swearing) was false, and whether such false testimony was given with the knowledge of and was procured by contestant.

Should the allegations in said affidavits be sustained by the evidence, then hearing should be continued upon the issues involved in the original case, and you should then determine the rights of the parties upon the evidence introduced.

You promulgated this decision on March 18, 1890, and a hearing was ordered before the register and receiver, to take place on December 12, 1890. December 9, 1890, the date of the hearing was changed to May 5, 1891, by stipulation of both parties, and afterwards by stipulation it was continued until May 26, 1891, at 10 o'clock a. m.

On the day last above mentioned Canning applied for a continuance and commission to take testimony before a justice of the peace near the land, and filed his own affidavit, which, omitting the formal parts thereof, is as follows:

James Canning the protestant above named being first duly sworn on his oath says that he and all of his witness in the above entitled action live more than eighty miles from the Fargo land office, and that himself and his witnesses cannot personally attend at the Fargo land office at the hearing in the case. That John Courtney, F. D. Stroup, and others are important witnesses of the contestant and will testify that the above contestant resided continuously upon the above described land ever since the month of March, 1883, and that ever since said date it has been said contestant's home and only home. That they cannot appear at the Fargo land office.

Wherefore affiant asks that F. S. Randall, justice of the peace in and for Dickey Co., N. D., of Ludden N. D., be appointed referee to take the testimony of said John Courtney, F. D. Stroup and others.

(Signed) James Canning.

Objection was made by attorneys for Ismond, and it was contended that the first issue to be determined was as to the alleged falsity of the testimony of Charles and H. C. Raymond, and that this issue must be determined before it could be known whether any further steps were necessary or not. They further stated that the said Raymonds were present, having come from Minneapolis, a distance of two hundred and fifty miles, expressly to give their testimony pursuant to stipulation of parties that the hearing should take place on that day.

On motion of Ismond the continuance was refused, and as Canning refused to proceed with the trial, the register and receiver dismissed the hearing, and Canning appealed from said order to you. On October 7, 1891, you held that "since a rehearing of this case was ordered by the Secretary, the case should not be, in my opinion, sum

marily dismissed, under the circumstances shown." You conclude as follows-"I must, therefore, in accordance with the foregoing view, reverse your action dismissing the case, and remand it for a hearing at your office, after legal notice to all parties, in pursuance of the Secretary's decisions." Ismond has appealed from your judgment to the Department.

The hearing directed by the departmental judgment of February 20, 1890, was not intended to open up the case on the old issues unless Canning should first sustain his charges that Ismond's witnesses had sworn falsely, because it was believed that if their evidence was worthy of belief the judgment in the case already made was correct.

The burden of proof rests with Canning to sustain the charges made by him against the credibility of Ismond's witnesses, and until he has done this there is no necessity of witnesses to show his settlement, etc. His affidavit for continuance and for the designation of an officer near the land to take testimony is fatally defective, because it does not state that any of the witnesses named would swear that the evidence given by the Raymonds was false, or that it was procured to be given falsely by Ismond. Besides, the application is evidently made under Rule 35 of the Rules of Practice, and can only be granted in the discretion of the register and receiver, exercised by them" and stated in the notice of the hearing."

It is too late to apply to have evidence taken near the land after notice of a hearing has been given. He might have applied for the issuance of a commission to take depositions under Rules 24 to 34 inclusive by filing interrogatories, but he did not do this.

As the hearing was ordered on affidavits furnished by Canning making grave charges against the witnesses of Ismond, he should have used due diligence to have been ready to furnish the evidence which he said he could and would furnish if a hearing should be ordered. The case was twice continued after notice was issued of the time and place of trial, and it is not made to appear that Canning used any diligence to prepare to sustain his charges against the credibility of Ismond's witnesses, but asks a continuance and an order to take testimony to show his compliance with the law.

I am of the opinion that the register and receiver were correct in dismissing the hearing, and I can see no sufficient grounds for ordering a new hearing. Your judgment is therefore reversed and the case closed.

TIMBER CUTTING-ACT OF MARCH 3, 1891.

BIG BLACKFOOT MILLING CO.

A permit to cut timber, obtained without due advertisement as required by departmental regulations, and substantially changed by erasures and interlineations after the order therefor was granted, should be revoked.

Secretary Smith to the Commissioner of the General Land Office, April 8, 1893.

On the 28th day of July, 1891, a petition was filed in the General Land Office by the Big Blackfoot Milling Company for a permit to cut timber from a large tract of land in Montana. The tract selected was a narrow strip extending fifty or sixty miles up the Big Blackfoot River. The clear purpose was to obtain permission to cut the timber made easily accessible to the market by the stream without going to the trouble and expense of also cutting the timber some distance from the stream. The number of sections covered by their amended application was 37.

This application was advertised as is required by the following rule: In order that farmers who desire to have the forests preserved in the interest of water supply for irrigation and all others having adverse interests may have due notice of such applications, the parties making an application, as herein provided, shall cause a notice of such application, describing the lands and timber which it is desired to use, to be published at least once a week for three consecutive weeks, in a newspaper of general circulation in the State, District, or Territory, and also in a newspaper in the county, or, where there is more than one county, in each of the counties wherein the lands are situated, and a printed copy of the published notices must be submitted with the application, together with the affidavit of the publisher or foreman of each newspaper, attached thereto, showing that the same was successively inserted the requisite number of times, and the dates thereof. (Circular May 5, 1891, paragraph 8, 12 L. D., 456.)

The Secretary on the 16th day of January, 1892, gave a permit to cut from 17 g sections, to continue for a space of twelve months.

On the 10th day of September, 1892, a second petition was filed by this company asking for permission to cut timber from all of the land covered by the original petition, and asking that the privilege continue for three years.

This last petition was referred to the First Assistant Secretary and he filed a report against the permit. The Secretary at first denied the petition, but subsequently, on the 13th day of February, 1893, granted it, allowing the company to cut for three years from 22 sections.

The second application was not advertised according to the rule above stated.

On the 8th day of March, 1893, the Secretary had this permit called to his attention. He learned that the permit had been changed so that it applied to sections other than those embraced in the order granting the permit, and that the second petition had not been advertised as the

rule required, and on the 11th day of March, 1893, an order was issued revoking the permit.

A petition was filed to rescind the order revoking the permit. This petition and the petition to grant the permit were heard at the same time.

The original order of February 13th, applied to sections not covered by the order granting the permit in 1892, and no advertisement of the second petition was made as the rules controlling permits to cut timber required.

The permit, before it passed out of the hands of the register, was substantially changed by erasures and interlineations.

These facts alone would require the permit to be revoked, but there is an additional reason deserving attention. The permit was granted within a few days before the end of the term of the former administration. It was to continue through three years of the present adminis tration. It applied to more sections of land than had ever been covered by any permit heretofore granted. It extended for many miles through a large territory, applying to the select sections of timber easily made accessible to market. The same company had paid to the railroad for the privilege of cutting from alternate sections at a rate which would make their permit worth, according to the lowest estimate, $46,000.00, according to the highest, $138,000.00. This permit covered 22sections of land. Except to this company and to the Bitter Root Development Company, no permit, so far as I can learn, was ever allowed to exceed nine (9) sections. There was but one of nine sections, and, since June 1892, all permits, with the exception of those to this company and to the Bitter Root Development Company, have been limited to two sections. Is it wise to extend such great privileges to a single company? Is it desirable to so hasten the destruction of the forests of our country?

These questions must certainly cause doubt as to the advisability of this permit, even though no other objection existed, and the petition to rescind the order of revocation is denied.

This brings up the application of the company on the petition of September 10th, 1892, revived by the order setting aside the permit of February 13, 1893. In so far as it applies to sections included by the permit of January 16th, 1892, I will consider it. In so far as it applies to additional sections, the failure to advertise clearly defeats it. While seriously doubting whether even an extension of time to cut from sections covered by a permit should be allowed without a new advertisement, still the company has acted upon the course pursued on the petition by this Department, and serious inconvenience may now be entailed on the public unless some concessions are made for the present

season.

It is therefore directed that the Big Black foot Milling Company be allowed to select four sections from the number of those covered by the

permit of January 16th, 1892, and that a permit issue according to the provisions of the permit of February 13th, 1893, to allow said company to cut from the sections selected until January 1st, 1894. Each section selected must be a full section in length and width.

TIMBER CULTURE CONTEST-CONTESTANT.

WILSON v. VAUGHN.

A timber culture contestant, who, for purposes of cultivation, has control of the land embraced within the entry under contest, will not be permitted to take advantage of his own failure to cultivate in order to defeat the rights of the entryman.

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

The land involved in this appeal is the W., NE.

and the E. NW., Sec. 24, T. 21 S., R. 22 W., Larned, Kansas, land district.

The record shows that Charles L. Vaughn made timber culture entry of said tract November 9, 1889. On February 21, 1891, Henry Wilson filed an affidavit of contest, alleging failure to break five acres the first year and abandonment; also there had been some breaking done previous to the entry but no cultivation of the same. A hearing was had before the local officers and as a result they decided that the charges were sustained and recommended the cancellation of the entry. The entryman appealed and you by letter of April 6, 1892, reversed their judgment, whereupon Wilson prosecutes this appeal assigning as error, substantially that your decision is against the law and the evidence.

It appears from the testimony that previous to Vaughn's entry there had been broken on said land about eighteen acres; that on the day he made the entry he made a contract with one Simons by which heSimons-was to attend to the cultivation of the land. Simons says he made a bargain with the contestant to let him have the ground to put in a crop for one-fourth of the same and that Wilson was to cultivate five acres of the land. Wilson positively denies that he was to cultivate the land. He admits, however, that he put wheat on the eighteen acres on December 15, 1890, and that he rented the ground from Simons, and that he knew Simons was the agent of Vaughn.

In the case of Lucas v. Ellsworth (4 L. D., 205), it was said—

A portion of this cropping, embracing three acres, was done by the contestant under permission of Ellsworth's agent, and if he failed to prepare the ground for and cultivate his own crop, after obtaining control of the land for that purpose, he is estopped from charging the failure upon his lessor for the purpose of depriving him of his entry and taking the land for himself.

It seems to me that the case at bar falls within the doctrine there announced and is conclusive against the contestant.

Your judgment is therefore affirmed.