held in abeyance and transmit the petition of Watuston asking, in view of the relinquishment by Barnaby, that his homestead application be placed of record.

Watuston contends, in his appeal, that by reason of his application to contest an adverse interest had intervened and therefore you were in error in allowing Barnaby thirty days to amend his affidavit of con. test or to substitute a new one.

The record shows that Watuston did not file his affidavit of contest until December 26, 1890, seven days after the decision remanding the first contest to the local office for a new trial.

Under these circumstances it is plain that the filing of the second contest application could not, in any wise constitute a valid adverse interest, unless the proceeding by which the first contestant was allowed a new trial was clearly in error and illegal. But this does not appear. Barnaby should have been allowed to amend his contest affidavit. Sims v. Busse et al. (4 L. D., 369); Griffin v. Forsyth (6 L. D., 791); hence in this case the local officers were in error in overruling the motion of defendant and therefore I perceive no error in your decision in remanding the case for another trial. This action in effect is simply a continuance of the original trial and carries the amendment back to the date of filing of the original contest affidavit.

The application of a second contestant may be received but no action should be taken thereunder until the final disposition of the prior contest. Hawkins et al. v. Lamm (9 L. D., 18), Westenhaver v. Dodds (13 L. D., 196); Carter v. Griffith (13 L. D., 437), and cases cited therein.

In the event of the success of the first contest, a hearing in the second would be unnecessary. Kiser v. Keech et al. (7 L. D., 25).

The relinquishment of an entry which is the result of a contest pending, inures to the benefit of the contestant and he would be entitled to the preference right of entry. Hay v. Yager et al. (10 L. D., 105); Carter v. Griffith (13 L. D., 437); Brown v. Henderson (14 L. D., 306). In the case under consideration, it appears that the defendant relinquished his entry March 27, 1891, and at the same time Barnaby filed a withdrawal of the contest and made entry of the land under the homestead law. There appears to be no question as to the relinquishment having been the result of the contest, as all the papers were executed on the same day before the local officers. This being the case then Barnaby's contest has been prosecuted to a successful issue and the contest closed, therefore the second application to contest was concluded and of no further force and effect.

Subsequently, however, Barnaby relinquished his entry and one Murphy made entry of the land. Watuston now seeks to have his ap. plication for the land allowed on the ground that Barnaby by relin quishing his entry admits the claim of said Watuston.

Although this question was not raised by Watuston in his specification of errors but was brought to the attention of this Department in

formally, yet I deem it expedient to pass upon the matter. When the land was awarded to Barnaby as the successful contestant, the rights of the second contestant were concluded. Hyde et al. v. Eaton et al. (12 L. D., 157), hence at the time Barnaby relinquished his entry and Murphy re-entered the land, Watuston did not possess an adverse interest therein, but if it had been shown that the relinquishment of the defendant and entry of Barnaby was the result of collusion, the relinquishment would not have inured to the benefit of Barnaby and the land in question would have been subject to the rights of the second contestant.

It does not appear, however, from the record in the case at bar, that any collusion was had and as the whole transaction occurred in the local office and the relinquishment and other papers were executed before the local officers, the presumption is that there was no collusion and that the entry of Barnaby was legally made.

With this understanding of the case your decision is affirmed.

DAVIS v. FOREMAN.

Motion for the review of departmental decision rendered February 6, 1892, 14 L. D., 146, denied by Secretary Noble, April 21, 1892.

TIMBER CULTURE CONTEST-APPEAL-EXTENSION OF TIME.
HAFFEY V. STATES.

The time within which an appeal must be taken can not be extended by stipulation of attorneys; nor have the local officers authority to grant an extension of such period. An application for such purpose should be addressed to the General Land Office, and presented before the time allowed for appeal has expired. One who consents to delay in the taking of an appeal can not be heard to raise the question of time, if the Department, in the exercise of its discretion, takes action on the merits of the case.

Failure to secure the requisite growth of trees does not warrant cancellation of a timber culture entry, if such result is not due to the negligence of the entry

man.

An application to enter can not be allowed during the pendency of an appeal from a decision holding for cancellation the existing entry of another for the land in question.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 21, 1892.

On the 25th of July, 1891, you transmitted to the Department the record in the above entitled case, in accordance with a writ of certiorari, dated July 14, 1891, 13 L. D., 44, issued upon the application of Thomas K. States.

From the record it appears that on the 3d of May, 1880, States made timber culture entry for the NE. 1 of Sec. 2, T. 150 N., R. 53 W., Grand Forks land district, North Dakota, which entry was contested June 9, 1885, by William Haffey. The hearing which followed, resulted in a decision by the local officers on the 29th of December, 1885, in which they recommended the dismissal of the contest. From that decision an appeal was taken to your office, and on the 14th of February, 1887, you reversed the decision of the local officers, and held the entry of States for cancellation.

All parties in interest were notified of this decision, on the 23d of February, 1887, States and his attorney being each notified by regis tered letter. At the time of receiving notice of your decision of February 14, 1887, the attorney for States was officially engaged at the Territorial capital, and he and the attorney for Haffey entered into a stipulation by which they agreed to extend the time for serving and filing an appeal from your decision until such time as the official duties of said attorney would permit him to return to Grand Forks and perfect the same.

No appeal was therefore filed in the case until the 7th of May, 1887, which was transmitted to your office on the 12th of that month.

Overlooking the fact that you had rendered a decision in the case on the 14th of February, 1887, and that an appeal therefrom had been transmitted to your office on the 12th of May of that year, you directed that the entry be canceled on the 18th of July, 1887. No record to this effect was made in the local office, and when Anna M. Gray applied to make homestead entry for the land, on the 19th of February, 1891, her application was rejected on account of the uncanceled timber culture entry of States.

From such decision by the local officers she appealed to your office, and in their letter to you, transmitting her application and appeal, the local officers, under date of March 6, 1891, gave an abstract from their docket, the last entries thereon prior to her application being a record of your decision of February 14, 1887, holding States' entry for cancellation, and the appeal therefrom.

Upon the receipt of this letter you examined the record in your office, and found that your decision of July 18, 1887, canceling States' entry, was inadvertently made. You, therefore, under date of March 28, 1891, revoked the same, and reinstated said entry. You then dismissed the appeal from your decision of February 14, 1887, as not having been filed in time, and allowed States twenty days within which to apply for a writ of certiorari, with notice that if such application was not made, his entry would be canceled and the case closed. In that decision you also approved the action of the local officers in rejecting the application of Miss Gray to make homestead entry for the land.

The application for certiorari was made and granted, and the case is accordingly before me for consideration. Among the papers which con

stitute the record, is an appeal by Miss Gray, from that part of your decision of March 28, 1891, in which you approved the action of the local officers in rejecting her homestead application.

The time within which appeals must be taken from decisions by local officers, and from your decisions, is fixed by the Rules of Practice of the Department. These rules can not be changed, nor the time for appeal extended by the stipulation of attorneys. Neither have local officers authority to grant extension of the time limited by the rules. Where an extension is necessary, application therefor should be addressed to your office, and be presented before the time for appeal allowed by the rules has expired.

Still, the subject is one which the Department may, in its discretion, consider, and Haffey, by his attorney, having consented to the delay in bringing the appeal, is not in a position to now raise the question that it was not brought in time.

By its decision upon the application for certiorari, the Department in effect gave notice that the merits of the case would be considered when the record was brought before it, and I have therefore examined the evidence submitted at the hearing, upon which the register and receiver united in a decision recommending that the contest be dismissed.

This evidence shows that the first five acres were planted prior to the expiration of the third year, May 3, 1883. The trees planted failed to grow, and the land was replanted with trees and seeds in the fall of that year, and additional seeds were planted in the spring of 1884. That season, however, was an exceptionally dry one, and the trees did not prosper. In the spring of 1885, the entire ten acres were plowed and put in proper condition, and tree seeds sown and planted thereon. Before the result of this last planting was made known, the contest was instituted.

As is usual in cases of this character, the evidence as to the condition of the ground, the cultivation of the trees, and the growth of weeds, is conflicting, but the contestant failed to show by a preponderance of the evidence submitted, that the claimant had not acted in good faith, or that he had not planted and replanted the land, and done all that could be reasonably expected to promote the growth of trees.

In Kelsey v. Barber (11 L. D., 468), it was held that "the failure of the entryman to secure the requisite growth of trees does not call for cancellation, when such result is not due to negligence in planting and cultivation, but to the character of the season, and seed that proves defective." This ruling is repeated in the case of Friel v. Bartlett (12 L. D., 502); Cropper v. Hoverson (13 L. D., 90), and Griffin v. Forsyth (13 L. D., 254).

Under these decisions of the Department, and from the facts in this case, I concur in the conclusion reached by the register and receiver, that the contest should be dismissed. The decision appealed from is therefore reversed, and the timber culture entry of States will remain intact.

As to the appeal of Anna M. Gray, which constitutes part of the record before me, it is only necessary to say that her application to make homestead entry for the land was properly rejected by the local officers, and their action was properly approved by you.

In Patton v. Kelley (11 L. D., 469), it was held that

An application to enter cannot be allowed during the pendency of an appeal to the Department from a decision holding for cancellation the existing entry of another for the land in question.

This is her case, and her appeal is accordingly dismissed.

HOMESTEAD ENTRY-MINERAL LAND-REVIEW.

DICKINSON v. CAPEN (ON REVIEW).

The discovery of coal on land embraced within a homestead entry precludes the completion of such entry.

A motion for review on the ground that the decision is against the weight of evidence will not be granted where the testimony is of such character that fair minds might differ as to the conclusion to be drawn therefrom.

Secretary Noble to the Commissioner of the General Land Office, April 22, 1892.

This is a motion by George H. Capen for "a review and recall" of the departmental decision dated November 2, 1891, in the case of J. T. Dickinson v. said Capen, involving the SE. of SE. of Sec. 6, T. 15 N., R. 120 W., Evanston, Wyoming.

Capen made homestead entry for said land July 17, 1889. On September 11, 1889, Dickinson filed his affidavit of protest against said entry, alleging that the land was valuable for coal, and on the 23d of the same month, he applied to enter it under the coal land laws. Thereupon the parties were cited to appear before the local officers October 29, 1889, and submit testimony. Dickinson filed a motion to summarily cancel Capen's entry. This motion was denied and the hearing had. From the evidence adduced the local officers found that Dickinson had failed to prove that the land was more valuable for coal than for agriculture and that Capen's entry should remain intact. Dickinson appealed, whereupon you reversed said ruling and held Capen's entry for cancellation. On appeal by Capen this judgment was affirmed by the decision that I am now asked to reconsider.

In said decision it was in effect held under the ruling in the case of Mulligan v. Hansen (10 L. D., 311), that the land, having been designated in the public surveys as "coal land," Dickinson's said affidavit of protest off-set Capen's non-mineral affidavit and that in consequence, the burden of proving the land more valuable for agricultural than mining was with Capen.