relinquishment of the entryman filed by Joseph Dailey who had previously initiated a contest against Stinchcomb and that said Dailey, on April 30, 1879, made the entry now under contest, in pursuance of his preference right as a successful contestant.

On April 29, 1879, David J. Hornback filed his pre-emption declaratory statement for the tract, alleging settlement on the 26th of the same month. Subsequently Hornback offered final proof under his pre-emption filing; Dailey having entered his protest a hearing was had, which resulted in the cancellation of Hornback's filing by the direction of this Department, September 30, 1882, and is based upon the preference right of Dailey as a successful contestant.

On January 16, 1883, Hornback commenced a contest against Dailey's entry charging non-compliance on the part of Dailey with the requirement of the timber culture act. The contest was heard and finally dismissed by the direction of this Department by decision of February 24, 1885. Therein it is found that "Notwithstanding the continuous harrassment which the entryman was obliged to encounter, it appears that he has in good faith ever since the entry endeavored by all reasonable means to sustain and complete the improvements required of him under the timber culture act."

On June 1, 1885, Hornback again filed an affidavit for the purpose of contesting the entry of Dailey for the same reasons as set out in his first contest. This affidavit was rejected by the local officers" because sufficient time had not elapsed since the last decision to allow Dailey to comply with the law." From this decision no appeal was taken.

On February 17, 1886, Hornback commenced the contest against Dailey's entry now under consideration. The affidavit chargesthat the said Joseph Dailey failed to break or plow five acres of said land during the first year of said entry; claimant failed to break or plow five acres of said land during second year of said entry and has failed to break or plow five acres of said land to present time; claimant has failed to cultivate any portion of said land to crop or otherwise since making said entry; claimant failed to plant five acres of said land to trees, tree seeds or cuttings during the third year of said entry and failed to plant five acres of said land to trees, tree seeds or cuttings during the fourth year of said entry or caused the same to be done and has so failed in each particular to the present time.

So far as this charge has reference to the first three years of Dailey's entry it is identical with the charge in the contest of January 16, 1883, and so far as these three years are concerned the matter is therefore res adjudicata.

At the hearing of the contest both parties were present and represented by their respective attorneys.

The testimony of the defendant and of the witness John Eggiman was taken before the local officers; the testimony of the other witnesses was taken partially before John W. Brewster, notary public, and partially before N. B. Vineyard a justice of the peace.

The evidence presented at the trial covered the whole period of

Dailey's entry; the part of it which refers to facts that had occurred before the iniation of the former contest, should be considered only in so far as it may help the court to understand the acts of the parties in relation to the land and to each other, their motives and intentions. This Department can not indirectly review its former decision.

The evidence shows the following facts: Dailey bought of Stinchcomb in the fall of 1878, the latter's improvements on the land, paying therefor, the sum of two hundred and seventy-five dollars. These improvements consisted of a breaking of thirty-nine acres, with some scattering trees growing on it. During the same fall and spring of 1879 before Hornback settled on the land, Dailey replowed of the breaking from twenty-five to thirty acres. He also during the fall of 1878 took up the trees growing on the tract; kept them during the winter on his homestead and planted them again on the land in the spring together with other trees, all covering an area of five acres. The trees were set out twelve feet each way, Dailey intended to plant more trees thereafter between them. The rest of the land replowed by him he sowed to oats; between the trees he planted corn.

The plowing, planting of trees and sowing of oats had been done be fore Dailey filed Stinchcomb's relinquishment and his own entry, and before Hornback made settlement on the land in April, 1879.

In the spring of 1880 Hornback took possession of the said thirtynine acres of plowed land with the exception of the small portion planted to trees by Dailey, and ever since that time the contestant has assumed and kept full and exclusive control of the same, raising crops thereupon each and every year. That his filing was canceled by this department September, 1882, that his former contest was finally dismissed in February, 1885, did not disturb him or affect his action in the least. He kept on holding possession of the improvements not belonging to him, with the strong hand. The corn planted by Dailey in 1879 was reaped by the Hornbacks, father and sons; they drove at will with wagon and teams over the ground planted to trees by Dailey; they plowed up a large number of his trees and for the last two years during the winter, spring and fall seasons the trees were injured by the sheep and cattle of others, to whom Hornback had rented parts of the land adjoining the tract planted to trees for pasturage.

The history of the case shows the continued animosity of the parties. Hornback admits that he held out to Dailey the prospect of losing all the labor he, Dailey, might do on the land, and the contestant's actions verify his intentions, that he would use all means in his power to effect such a result. He repeatedly told others that Dailey should never possess the land. The origin of the strife and enmity of the parties was a misunderstanding regarding the purchase of Stinchcomb's improvements and relinquishment. Hornback claims that Dailey had agreed to purchase the same for him, Hornback; this Dailey denies. This explains the actions of Hornback; he meant what he said, Dailey should

not have the land. It is well expressed in your office letter when you state that Hornback endeavored "to take by conquest what he failed to obtain by negotiation."

In spite of all harassment and obstacles, Dailey fairly tried to comply with the requirements of the timber culture act. In 1883 at the time of his arrest, noted above, he set out twelve hundred trees, which were all plowed up by the Hornbacks; in 1884 he planted out eight thousand cuttings three or four feet apart, and in the spring of 1886, he had intended to plant more trees but Hornback having sowed the plowed land to crops he, from fear of another arrest, or trouble, desisted.

The evidence fairly considered shows about five or six acres planted to trees; trees numbering twenty-seven hundred as counted and admitted by one of contestant's witnesses.

I concur in your office opinion, that the entry of Dailey should not be disturbed. To hold otherwise would allow the contestant to take advantage of his own wrong. He held by force the improvements purchased by Dailey and his actual possession of the land and his personal presence there after his filing had been canceled, was against law and a hindrance and continued threat to Dailey. It is not for him under the circumstances as shown in this case, to charge failure on the part of the entryman, to comply fully with the conditions under which the entry was allowed.

Your office decision is affirmed.

SWAMP LAND-PERIODICAL OVERFLOW.

MOYLAN v. STATE OF Oregon.

A periodical overflow that subsides in time for cultivation does not render the land subject to the swamp grant.

Secretary Noble to the Commissioner of the Land Office, March 15, 1890.

I have considered the case of Michael Moylan v. The State of Oregon, on appeal of the State from your office decision of July 7, 1887, holding for rejection the claim of the said State to the NW. 1, Sec. 32, T. 23 S., R. 31 E., W. M., Lakeview, Oregon, land district.

Said tract was selected by the State and reported to the General Land Office as swamp land in 1883.

In October, 1884, Moylan applied to enter it under the timber culture. act, and his application was refused on account of the claim of the State. He then filed affidavit of contest alleging that he is "well acquainted with the land in question and knows that it is not swamp nor overflowed within the meaning of said act, but on the contrary, all of said land is good arable land and can be successfully cultivated in a staple crop without any drainage whatever."

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After a hearing at which both parties were represented and introduced evidence, the local officers decided against the State, and upon appeal your office affirmed the decision of the local officers, that the land in question is not of the character contemplated by the swamp grant and does not pass to the State under the same.

As in the case of State of Oregon (2 L. D., 651) the land in controversy is situated in a valley and is subject to an annual overflow in the late winter and early spring months, caused by rains and melting snow in the mountains, and after the subsidence of the overflow the land is dry. The overflow usually subsides in time for the harvesting of the hay which grows upon said land, and its growth is much promoted by such annual inundation. Hay is the principal crop of this and other lands of similar character in that locality.

There are many points of similarity between the case at bar and the case of the State of Oregon, supra.

A similar ruling was made in case of State of California (3 L. D., 521), upon a showing that the land was subject to periodical overflow in the winter or spring months, which subsided in time for the cultivation of the land.

Upon the authority of the cases cited above I conclude that the land in controversy is not of the kind contemplated by the swamp land act and that therefore it did not pass to the State of Oregon by the act of March 12, 1860, but is public land of the United States and as such was subject to timber culture entry by Moylan. Your said decision is accordingly affirmed.

TIMBER CULTURE CONTEST-BREAKING.

MCKENZIE v. KILLGORE.

Breaking done on land by a former occupant, inures to the benefit of a timber culture entryman if it is properly utilized under the law.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 15, 1890.

I have considered the case of Roderick D. McKenzie v. Orington Killgore on the appeal of the former from your office decision of July 30, 1888, affirming the decision of the local officers, and dismissing the contest against the timber culture entry of Killgore for the SW. of Sec. 25 T. 127 N. R. 65 W., 5th P. M., Aberdeen Land District, South Dakota.

Killgore made his timber culture entry for said land August 23, 1884, and on October 12, 1885 McKenzie filed affidavit of contest against the same, alleging therein that-"Orington Killgore failed to break or plow five acres or any part thereof during the first year of said entry and

that said failure still exists." At same time he filed application for timber culture entry for the same land.

Notice of the said contest was given by publication. On January 19, 1886, a hearing was had, both parties being represented by attorneys, and the local officers decided in favor of the entryman and dismissed said contest. McKenzie appealed; your office decision of July 30, 1888, affirmed said decision. From this decision McKenzie again appealed. The testimony clearly proves that no work was done on said tract from the date of entry, August 23, 1884, until November 1st to 8th, 1885; but it is also established that prior to August, 1884, about eleven acres had been broken; part in 1882, part in spring and part in fall of 1883; and a portion of it cropped that year; that in 1884 the tract was all backset. In 1885 some nine acres were plowed and about six acres prepared and planted to box elder and ash tree seeds. This was after notice of contest, and was on the land broken in 1882 and part of that broken in 1883. The land was plowed in June, 1884, but not cropped. The evidence shows that there were some weeds on the land in 1884 and more in 1885, but that it was in fair condition when the planting was done in the fall of 1885.

The attorney for appellant insists-1st, That it was error to hold that under the circumstances of the case the entryman had a right to avail himself of this breaking and plowing. His position can not be maintained for it is held if one purchases land which has been broken by another, the spirit of the law is as fully met as if he had personally performed the work. Gahan v. Garrett (1 L. D., 137); Donley v. Spring, 4 L. D., 542; Flemington v. Eddy, 3 L. D., 482. Again, "an entryman may take advantage of breaking upon the land at date of his entry." Clark v. Timm (4 L. D., 175).

In Vargason v. McClellan (6 L. D., 824), this question was fully discussed. It was there stated that "the entryman can not properly claim credit for the three acres of breaking done by some one else several years before and having been left by the entrymen uncultivated and uncared for in any manner," but the principle announced in Gahan v. Garrett, and Clark v. Timm, supra, was recognized as correct. The length of time between former planting, and the work done by the entryman, being considered as important in determining whether or not the entryman should have credit for such former breaking or plowing. Each case depends upon the fact, whether or not the former plowing was so utilized by the entryman that it inured to the benefit of the land, to be used for tree culture.

I see no substantial reason for disturbing your conclusions in this case, therefore your decision affirming the local officers and dismissing the contest is affirmed.