contests to determine the character of land, any person who has a knowledge thereof, whether he has an interest there in or not, is permitted to appear and testify in behalf of the surveyor's return. Very respectfully,

S. S. BURDETT, Commissioner,

No. 32. 1. Where parties apply for hearing, they should be required to make a deposit to pay preliminary expenses thereof.

2.

When hearings are ordered in the regular course of examination of cases, it is the duty of the local officers to collect from parties for expenses already incurred and for future estimated expenses.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., March 23, 1880.

Register and Receiver, Sacramento, California,

GENTLEMEN: September 25, 1879, on the application of James Gasper, you were directed by this office to hold a hearing to determine the character of S. of N.W.

of N.E.

, and N. of S. W. of N.E. 4, 26, 16 N., 7 E., your district, said land being embraced in Mr. Gasper's Homestead Entry No. 2528, and in Mineral Entry No. 649, by the Portuguese Mining Company.

I am now in receipt of letter of twenty-fourth ultimo from E. C. Ford, attorney for said company, stating that the hearing so ordered was held by you in the early part of December last, and that he is advised that the mineral claimants paid all charges made against them, but that the agricultural affiant, James Gasper, has failed to pay the charges against him, and hence you have not transmitted the record to this office.

On page 5 of the Rules of Practice, it is provided that parties making application for contest must be required to deposit with the Register and Receiver a sufficient sum of money to defray the cost of proceedings. On page 6, it is provided as follows:

"When hearings are ordered by the Commissioner or Secretary, upon discovery of reasons for suspension in the usual course of examination of entries, the preliminary costs will necessarily be provided from the contingent fund for registers and receivers; but when the parties are actually brought before the Register and Receiver in obedience to the order, such costs should be collected, and provision re

quired for such further notification as may become necessary in the usual progress of the case to final decision."

Deposit to pay preliminary expenses.

The hearing in question was ordered by this office, not "in the usual course of examination," but upon application of Mr. Gasper; and it was your duty to require of Mr. Gasper to make the necessary deposit before giving any notice of the hearing.

Hearings ordered in usual course of examination.

If, however, you regarded the case as falling under said provisions applicable to hearings ordered by this office in the usual course of examination, then it was your duty to collect such costs and require provision for such further legitimate expenses as would be necessary in the case, on said parties actually appearing before you, and before commencement of the hearing.

If the representatives of Mr. Ford are correct, you have failed to perform your duty in this matter.

If said allegations are correct, you will at once, upon the receipt of this letter, transmit the record of the hearing to this office, with a full report of all proceedings relative to the point referred to. Very respectfully,

J. A. WILLIAMSON, Commissioner.

No. 33. An appeal brings before the appellate authority the entire record, and after an appeal had been dismissed the appellant will not be allowed to go back and appeal from a prior order.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., July 19, 1873. SIR: I have examined the appeal of the Overman silver mining company from your decision of the third ultimo, by which you refused to dismiss the appeal taken by the Dardanelles mining company from the decision of the local officers made on the thirteenth of January last. The facts are as follows:

On the twenty-second of October, 1872, the Dardanelles mining company filed in the local office at Carson City, Nevada, an application for patent for 1200 linear feet of the Bosphorus lode, Nevada. On the nineteenth of December, 1872, the Overman silver mining company filed a protest against said application. On the thirteenth of January,

1873, the register notified the superintendent of the Dardanelles company that an adverse claim had been filed against said application, and that said Overman company would be required to commence suit within thirty days from the date of said adverse filing. This was in substance, although lacking in technical precision and formality, a decision that the claim of the Overman company was such an adverse claim as required the case to be referred to the courts.

On the seventeenth of January, 1873, suit was instituted against said Dardanelles company by said Overman, and on the twenty-eighth of February, 1873, the Dardanelles company duly filed its answer in said case. On the fifteenth of March, 1873, the Dardanelles company filed with the register an application to dismiss the adverse claim of the Overman company, and supported said claim with sundry affidavits.

The register set said motion for hearing on the twenty-fifth of March, 1873, and on that day an application was made by the Overman company to continue the hearing of said motion for twenty days, to enable the said company to prepare its proofs and affidavits to resist the motiou to dismiss.

The local officers granted the motion to continue for twenty days, and from this order of the local officers the Dardanelles company appealed to the commissioner of the general land office, who, on the eleventh of April, 1873, on motion of the Overman company, dismissed the appeal. On the hearing had before the commissioner, the only objection made to the proceedings theretofore had before the local officers, was the one which related to the order of the local officers of March 25, 1873, continuing the motion to dismiss for twenty days.

No reference whatever was made to the order of the thirteenth of January, 1873, which in substance held that the adverse claim of the Overman company was such an adverse claim as required that it should be referred to the courts.

After the aforesaid appeal was dismissed, and on the twenty-third of April, 1873, the Dardanelles company appealed from the decision of the local officers, made on the thirteenth of January, 1873, in which they held that the claim of the Overman company was an adverse claim. On

the second of June, 1873, the Overman company filed a motion before the Commissioner to dismiss said appeal, and on the third of June the Commissioner overruled said motion, and set down the case for a hearing on its merits.

From this decision of the third of June an appeal has been made to the department, and the question is now presented for decision, whether the Dardanelles company, having once appealed from the decision made by the local officers, on the twenty-fifth of March, 1873, and that appeal been dismissed, can go back of the decision appealed from, and appeal from another made prior to that (on the thirteenth of January, 1873), or whether the appeal from the order of March 25, 1873, brought the whole case before the Commissioner, and gave him jurisdiction thereof, and required that all objections to the proceedings up to that date should be presented to the Commissioner, or if not presented, regarded as waived.

Appeal brings before the appellate authority the entire record.

I am of the opinion that the appeal brought before the Commissioner, the entire proceedings that had taken place prior to the date of the order appealed from, and that all exceptions to any of said proceedings should have been presented and insisted upon before the Commissioner on the hearing of such appeal, and in default thereof should be considered as having been waived. Any other practice is contrary to the analogies derived from legal proceedings, and would be exceedingly inconvenient in practice.

If a party may go back and appeal from a prior order, then he may go back as many different times as there are different orders made, and there practically would be no end to appeals in a given case.

I can not sanction a rule that would result in such consequences.

I shall reverse your decision, and that leaves the parties in court with their respective claims, where it is to be presumed that equal and exact justice will be done.

Your decision is reversed, and the papers transmitted with your letter of the seventh instant are herewith returned. Very respectfully,

B. R. COWEN, Acting Secretary. Hon. W. DRUMMOND, Commissioner of General Land Office.

No. 34. 1. A paper addressed to the local officers, notifying them that the claimant appeals from their decision to the Commissioner of the General Land Office, when in fact it was intended as an appeal from the decision of the Commissioner to the Secretary, amounts to nothing, inasmuch as it fails to state in an intelligent manner what decision is appealed from, or to what authority the appeal is taken.

2. The rule established in the "Boston Mining Case," applies to questions under the mining laws. In other cases when the rights of adverse claimants are to be determined, different rules must be applied.

3. When an appeal is defective, reasonable time should be allowed for the perfection, and upon failure of the party to comply with the requirements, the appeal will be dismissed, and the case closed.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., February 16, 1880. SIR: I have considered the case of George Ogg v. Alexander McDonald, involving the right to enter under the act of August 11, 1876, providing for the sale of the Osage ceded lands, the S. of S. W. 1, and N. E. 1 of S. W. 1, of section 13, town. 29 S., range 17 E., Independence, Kansas, on appeal from your decision of May 4, 1878, awarding the land to McDonald.

Some questions of practice arise in this case, which it is proper to consider at this time.

A hearing was held at the local office November 1, 1877. Under date of January 24, 1878, the local officers transmitted the papers, together with their opinion adverse to Ogg, and the appeal of Ogg therefrom filed December 20, 1877, and the grounds of appeal by counsel for Ogg filed the following day. Your decision in the case was rendered May 4, 1878.

Under date of June 27, 1878, the following paper was filed in the local office:

"In the United States Land Office, Independence, Kansas. George Ogg, plaintiff, v. Alexander McDonald, defendant. "To the Register and Receiver United States Land Office, Independence, Kansas.

"You are hereby notified that George Ogg, plaintiff, above named, appeals from your decision in the above entitled action to the Hon. Commissioner of the General Land Office, assigning as the grounds of said appeal the following, to wit: (The grounds of appeal are here stated.)

GEORGE OGG,

By HUTCHINGS & DENISON, his Attorneys."