to be employed in equipping and maintaining a military post. The support, education and civilization of the Indians is an obligation resting upon the government, and whatever is employed in the discharge of that obligation is devoted to a public use. Lands which are set apart for the Indians, whether to be used as homes for them or in providing a fund with which to meet the expenses of their support, education and civilization, are reserved for a public use within the meaning of the joint resolution.

The State's claim to sections sixteen and thirty-six here in controversy is denied, and your office will recognize the right of the proper authorities of the State to select other equivalent unappropriated pub lic lands as indemnity, as provided by law.

CONTEST-DEFECTIVE CHARGE-AMENDMENT.

CUTTER v. DUMAINE.

In the case of a hearing ordered on affidavit of contest that is defective, but susceptible of amendment, it is not necessary to remand the case for the amendment of the charge, and further hearing, where, at the hearing held, the contestee did not appear, or make objection to the sufficiency of the affidavit, and no ore sought to intervene, and the evidence then submitted establishes the fact that the entryman had failed to comply with the law.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 20, 1899.

(C. J. W.)

The record in the above stated case shows that Noe Dumaine made homestead entry for the S. of the SE. of Sec. 21, and the S. of the SW. of Sec. 22, T. 161, R. 73 W., at Devils Lake, North Dakota, on April 8, 1892.

On June 25, 1897, Louis Cutter, Jr., filed affidavit of contest against said entry, charging that the defendant had abandoned the same and changed his residence therefrom for more than six months since making said entry and next preceding the date of said affidavit. The plaintiff made affidavit that diligent search had been made, both in the vicinity of the land and of the last known post office address of defendant, and that he could not be found, and to his knowledge and belief was not a resident of the State, and asked that the defendant be served by publication. An order therefor was granted, and the notice duly published. Notice was also mailed, July 21, 1897, by reg. istered letter addressed to defendant, at Dunseith, Rolette county, North Dakota-his post office address at date of entry, as shown by the record.

The parties were cited to appear before C. M. Wagner, a notary public in and for Rolette county, at Dunseith, in said county, on the 26th day of August, 1897, to respond and furnish testimony on the charge; and the hearing before the register and receiver was set

for the 31st day of August, 1897. Testimony was submitted by the contestant on said 26th of August, 1897, but defendant made default. The testimony was duly transmitted to the local office, and on August 31, 1897, the local officers found that said homestead entry had been abandoned, and that the land had not been improved or cultivated, and that residence of defendant was unknown, and they recommended the cancellation of the entry, and forwarded the same to your office with the record, no appeal having been filed.

On October 14, 1898, your office considered the case and reversed the local office, holding that the affidavit was insufficient to confer jurisdiction on the local office to order the hearing, citing the case of Shaffer v. Fox (20 L. D., 185) as authority therefor.

The contestant has appealed to the Department.

The entry was made April 8, 1892, and on June 26, 1897, the affidavit charges the defendant with having abandoned the land for more than six months next preceding that date, which charge covers a part of the five year period.

That the affidavit is defective is not to be disputed, but it is not so defective as to render void the action of the local office in ordering a hearing.

In the recent case of Engbard v. Runge et al. (28 L. D., 147), it was held that a similar affidavit contained enough to amend by, and that it was error not to allow the contestant an opportunity to amend, so as to specifically negative the idea that defendant could have earned title to the land. In that case a hearing had been ordered by the local officers on the defective affidavit, and, on the day set for hearing, objection to the sufficiency of the affidavit was made by one not a party to the record, and the local officers thereupon refused to allow the affidavit to be amended, and dismissed the case, without hearing the contestant. The case was remanded, with directions that the contestant be allowed to amend his affidavit and be heard on his charges. In the case at bar, as in that case, the defendant has not appeared, or objected to the sufficiency of the affidavit, an objection to which no one but the defendant can make, unless the affidavit is absolutely void. There was no objection made in the case under consideration, and the contestant offered his testimony and that of his witnesses, which has become a part of the record. From that testimony it appears that defendant never established residence on the land after making entry, that he has never cultivated or improved it, but has abandoned it, and is not a resident of the country. He has made no defense, nor has any one sought to intervene.

There would appear to be no necessity for remanding the case for the amendment of the affidavit of contest and further hearing.

The Department is in possession of evidence which authorizes the cancellation of defendant's entry, and he is not objecting to it.

Your office decision is therefore reversed, and the entry canceled.

The contestant having at his own expense furnished the information on which this action is taken, your office will give him notice of this decision, and that he will be allowed thirty days from such notice within which to enter the land, if he so desires and shows himself qualified to do so.

PRE-EMPTION-INDIAN LANDS-TOWNSITE OCC

COOPERTON TOWNSITE v. CHILDS.

CY-COSTS.

The repeal of the pre-emption law does not affect the disposition of the Ute Indian lands under the act of June 15, 1880, which requires said lands to be disposed of by cash entry only in accordance with existing law.

The right of pre-emption will not be recognized, where prior to the date of the preemptor's settlement and filing the land was occupied and improved under a townsite settlement claim, and such occupants are seeking to make townsite entry, without affording them opportunity to be heard in the assertion of their claim. On a motion to retax costs the official report of the local officers, as to an oral agreement between the parties, made in open court, with respect to the costs, must control as against the statement of counsel.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

May 9, 1899.

(F. W. C.)

Frank A. Childs has appealed from your office decision of May 5, 1898, rejecting the proof offered upon his pre-emption declaratory statement covering lots 18 and 19, Sec. 28, T. 7 S., R. 88 W., sixth P. M., Glenwood Springs, Colorado, land district, and holding for cancellation said pre emption filing.

The tract in question is a part of the Ute Indian lands ceded to the United States under an agreement with the confederated bauds of Ute Indians in Colorado, which agreement was accepted and ratified by act of Congress approved June 15, 1880 (21 Stat., 199). By section three of said agreement, releasing the lands not allotted, it was provided:

and all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands, at the same price and on the same terms as other lands of like character, except as provided in this act: Provided, That none of said lands, whether mineral or otherwise, shall be liable to entry and settlement under the provisions of the homestead laws; but shall be subject to cash entry only in accordance with existing law; and when sold the proceeds of said sale shall be first sacredly applied to reimbursing the United States. . . . And the remainder, if any, shall be deposited in the Treasury as now provided by law for the benefit of the said Indians.

In the case of Schmidt et al. v. Masters (18 L. D., 533) it was held that the repeal of the preemption law does not affect the disposition of the Ute Indian lands under the act of June 15, 1880, which requires said lands to be disposed of by cash entry only, in accordance with existing law.

The tracts here involved were, with other lands, included in the preemption filing made by Frederick C. Childs, the father of the present claimant, in 1885.

One Isaac Cooper, a man of some means, desiring to establish a town upon the lands here in question, secured a release from the elder Childs of the tracts here in question, his relinquishment being filed in 1887. Survey was made of the land into lots, blocks, streets and alleys, and during the year 1887 considerable improvement was made in the way of building houses, stores, and the partial erection of a hotel upon the tract here in question. A school house has also been built upon a portion of the land.

The improvements made upon this land appear to be of considerable value, and in addition to those named, a ditch was constructed for the purpose of irrigating the trees planted in the subdivision and for the use of the occupants of the townsite. A large portion of the improvements were made by Cooper and are claimed by his estate.

Cooper died in December, 1887, and, due to difficulty in the settlement of his estate and the financial depression existing at that time, the development of the town was greatly retarded.

Upon the approved plat of survey of this township, filed in 1891, the land in question is denominated as the "Cooperton or Rockford townsite."

It appears to have been Cooper's intention to make entry of the land in question for a townsite in the manner as provided by section 2382 of the Revised Statutes, and on October 1, 1888, a plat of the town (being described as the townsite of Cooperton) was filed by Sarah F. Cooper, his widow, for record in the office of the county clerk of the county of Garfield, in which the land is situated. This plat does not conform to the requirements of said section; further, a copy or transcript thereof does not appear to have been filed either in your office or in the local office, as required.

It further appears that in 1893 steps were taken to secure entry of the land through the county judge, an attorney being retained for that purpose, but the action taken appears to have been entirely informal in character. No filing or other proceeding has ever been instituted before the land department looking to the entry of these lands for townsite purposes, except that now under consideration.

Frank A. Childs, the present claimant, with full knowledge of the selection and use of the lands for townsite purposes, on December 9, 1895, filed preemption declaratory statement for this land, alleging settlement same date, and on June 20, 1896, in accordance with published notice, offered final proof thereon, at which time Sarah F. Cooper, on behalf of the occupants, filed an affidavit of contest, alleging prior settlement for trade and business, and in a supplemental affidavit asked that the occupants be permitted to enter the land as a townsite in accordance with law and the rules of the land department. Since

filing declaratory statement for this land, Childs has fenced and occupied about six acres and made improvements upon the land to the value of about $300.

After a hearing had upon the contest, in August, 1896, the local officers made a personal inspection of the land, as requested by the parties, and in their opinion said:

From all the facts in this case we are constrained to believe that no such selection for townsite purposes as would bar a preemption entry has ever been made, and we so hold.

It appears that in the taxation of the costs of the hearing, each party was taxed for the testimony of his own witnesses upon direct examination and for the cross-examination of his adversary's witnesses. Following the trial of the case, a motion was made on behalf of Childs to re-tax the costs, assessing each party for the testimony of his own witnesses upon both direct and cross-examination. Relative to this motion the local officers in their opinion said:

This motion is in direct violation of an agreement entered into by counsel on both sides of this case to the effect that in the conduct of this trial each party shall bear the expenses of all testimony brought out by him, both on direct and cross-examination, and is therefore overruled.

Upon appeal, your office in its decision of May 5, 1898, affirmed the local office in overruling the motion to re-tax the costs, but upon the question as to whether the land was subject to the filing by Childs, reversed the local officers, holding that the land was occupied for purposes of business and trade at the time said filing was made, and for that reason was not subject to entry under the preemption laws. Childs in his appeal to this Department urges error in both rulings made in your office decision. Upon the question as to taxation of costs for reducing the testimony to writing, he urges that no agreement was ever made or filed and that the taxation was contrary to the practice which required each party to pay for the testimony of his own witnesses upon both direct and cross-examination.

-While an examination fails to disclose any such agreement on file in the case, yet with the record transmitted is a report made by the local officers in response to your office letter of February 21, 1898, in which they state that the agreement was a verbal one made in open court and agreed to by counsel on both sides. In view of this report, which must control as against the statement of Childs's attorney, the action overruling the motion to re-tax the costs is sustained.

Relative to the question as to the condition of the land at the time Childs made filing therefor, it appears that the improvements begun in 1887, had decreased in value due to inattention; that the business con ducted upon the land represented in 1887 by a grocery, two saloons, a butcher shop, blacksmith shop and a lumber yard, had been reduced to the general country store kept by the postmaster; but the number of